Understand Your Rights. Solve Your Legal Problems
From estate planning and probate, to fiduciary services and health care directives, elder law is in intricate and complex legal segment, with rules and regulations that can differ from state to state. Here to talk Lawyer Monthly through the challenges involved in this field, the latest legislative changes in the US, and through his and his firm’s thorough leadership in the realm of elder law, is R.J. Connelly III, a specialist attorney at Rhode Island law firm, Connelly Law Offices, Ltd.
Connelly Law is a family-owned law firm that specializes in probate, estate planning, elder law, and elder law-related fiduciary services. We strive to give our clients the best legal representation and assistance, and our firm works as a team to successfully meet our clients' end goals. Our firm assists clients create advance health care directives, trusts, wills, powers of attorney, and other essential estate planning documents. For clients who need help with probate, we may walk them through the probate process, assist with estate administration, or represent them during an estate litigation case. Elderly clients who need any type of fiduciary service, representation, or retirement plan may contact our office, as well.
R.J. Connelly III practices in the area of elder law. This area of law involves Medicaid planning and asset protection advice for those individuals, and their families, entering nursing homes, planning for the possibility of disability through the use of powers of attorney for the both health care and finances, estate and tax planning, guardianship, probate and estate administration, preparation of wills, revocable and irrevocable trusts and special or supplemental needs trusts. Attorney Connelly practices heavily in both contested and uncontested probate court matters and provides a wide range of fiduciary services to his clients in acting as trustee, attorney-in-fact, and representative payee or other court appointments. He represents clients primarily in the states of Rhode Island, Connecticut and the Commonwealth of Massachusetts.
Bar Admissions:
Legal Affiliations:
Other Affiliations:
Education:
What kind of considerations do your clients need to prioritize in their later years, and how do you help in this regard?
Clients need to begin to prioritize their future needs relating to health, welfare and the transfer of wealth as soon as possible. Many people wait to the golden years in order to think about their estate plan. By delaying this process they may lose out on several benefits of pre-retirement estate planning. Clients need to consider Estate Planning, Medicaid (Title XIX) Planning, tax planning and continuum of care planning when it comes to their living arrangements.
What are the top three mistakes most elderly make in terms of asset planning and medical planning?
The biggest mistake elders make is not having the most basic estate planning documents. Without a health care proxy and durable financial power of attorney in effect the filing of a guardianship may be necessary. The Guardianship process is a probate court proceeding which, in essence, strips the civil liberties and decision making ability from the elder to a third party, obviously less preferable than pre-planning. Many elderly have the mistaken belief that they must utilize all their assets in order to obtain assistance relating to their nursing care, housing and health. This stems from the mistaken belief that they will only be entitled to government assistance if they are poor.
A mistake that some elderly clients make is putting off any estate planning because they are confident that they will never need skilled nursing care or that they have sufficient assets to obtain the care that they may need in their golden years. Another mistake some elderly make is not having a trusted advisor(s) attorney, accountant, or investment advisor. The statistics of elder financial exploitation are staggering and only growing. While much of the exploitation occurs with a family member or friend using a power of attorney, there should be oversight. Sometimes a trusted family member or friend is the most logical and appropriate choice, there are times when engaging a professional with oversight and insurance/malpractice to protect the elder is the better choice.
Have there recently been any ongoing legislative developments in regards to law surrounding the elderly and estate administration?
Connelly Law works in three states, Rhode Island, Massachusetts and Connecticut. Massachusetts has recently adopted its version of the Uniform Probate Code which Connecticut did some time ago. Rhode Island still works on its own somewhat antiquated version of the probate administration. While the UPC streamlines the probate process in many ways, it would behove other states to follow suit.
As a thought leader in this field, if you could change any laws pertaining to the elderly, were would you begin?
I would like to see the laws protecting the elderly from financial exploitation, abuse, neglect and self-neglect strengthened. Many states have been slow to react and while some legislation has been enacted to strengthen the protections necessary, there is still a long way to go.
Another change that would be made is legislation dealing with the soaring cost of long term care. So few people have long term care insurance because of the prohibitive cost and underwriting requirements, families are left financially devastated. Laws need to be changed in order to address these problems.
How are you actively working towards the development or implementation of new or amended legislation, and how has your thought leadership contributed towards this?
Connelly Law attorneys work with several groups, agencies and academies which attempt to influence legislation for the betterment of the elderly community.
What would you say makes you the go-to attorney for elder law in Rhode Island and Connecticut?
Connelly Law Offices believes that the needs of our clients are a top priority. R.J. Connelly III was certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation (NELF) in 2008.
He was only the third attorney in Rhode Island certified as CELA and is the only practicing CELA in Providence County. Lawyers who are certified as specialists have been recognized by independent professional certifying organizations as having an enhanced level of skill, as well as substantial involvement in established legal specialty areas. Certifying organizations require lawyers to demonstrate special training, experience and knowledge to ensure that recognition as a certified specialist is meaningful and reliable.
How would you say the demand and type of issues significantly differ between your clients between the various states you operate in? Are there considerable legal differences?
One difference is that Massachusetts and Connecticut operate on the Uniform Probate Code, which Rhode Island does not. Another is the state Estate Tax exemptions with Connecticut at $2 million dollars, Massachusetts at $1 million dollars, and Rhode Island recently changing last year from $921,655.00 to $1.5 million dollars. Currently, the federal rate is $5.43 million dollars.
Do you have a mantra or motto you live by when working with your clients in this legal segment?
Connelly Law Offices, Ltd., a preeminent probate, estate planning and elder law firm, has a mission to protect the legal rights and financial resources of our clients by employing a multidiscipline approach of legal and wealth management expertise to empower our clients, enhance their quality of life and provide peace of mind to meet their current and future needs.
Insolvency disputes inevitably rise during periods of economic turbulence, and the recent global financial crisis has left uneven opinions and priorities within businesses worldwide. In such situations, it’s very important that credit holders, as well as directors and management, are aware of resolution avenues and the latest in regulatory legislation; advice only a well-experienced insolvency practitioner can provide.
Here Jack Esher of CBInsolvency LLC discusses the challenges involved in insolvency scenarios, his thought leadership in implementing mediation and arbitration in insolvency proceedings, and touches on the positive benefits of resorting to such alternative dispute resolution methods in resolving such business circumstances.
Jacob A. (Jack) Esher has over 30 years of experience as a former insolvency law practitioner in the US, and began serving as a mediator in matters 25 years ago. He is a co-author of the American Bankruptcy Institute’s Bankruptcy Mediation (2016), and was the founding and presiding chair of its ADR Committee from 1994 to 2001. He most recently served for several years as one of the principal mediators in numerous large and complex disputes in the Lehman Brothers bankruptcy, and has trained over 750 mediators for the Thailand Judiciary.
In addition to Jack, his firm, CBInsolvency LLC (CBI), is composed of Daniel Glosband, a former partner with Goodwin Proctor LLP, who has practiced in the international insolvency arena for over 30 years, participated in the drafting of the UNCITRAL Model Law on Cross-Border Insolvency, and co-drafted Chapter 15 of the US Bankruptcy Code; and Hon. Leif M. Clark (ret.), a former US Bankruptcy Judge with 25 years of judicial experience as well as over 20 years of mediation experience in a broad array of matters. CBI's model is to assist other professionals on a cost-effective basis and not directly represent clients.
CBI is a unique assemblage of highly skilled and experienced insolvency professionals with extensive judicial, international, and dispute resolution experience who have come together to offer a unique suite of services to the cross-border insolvency community:
Your firm CBInsolvency LLC deals primarily in cross-border commercial insolvency; what are the particular challenges involved in this work?
Cross-border insolvencies often involve a range of thorny problems that require experience and specialized knowledge to navigate. Choice of law and forum, differences in treatment of secured and priority creditors, differences in legal systems and cultures, conflicts of law, competing claims of jurisdiction, recognition and enforcement by one country of rulings and judgments entered in another country are just a few of the challenges likely to arise in many such proceedings.
You specialise in dispute resolution by mediation and arbitration; how do you approach insolvency matters with these methods?
Our firm, CBI, uses a team-based approach that allows us to combine the unique knowledge and experience base of our principals to suit the needs of the engagement and provide a tailored resolution process that may involve mediation, neutral evaluation, arbitration, or some combination of these. We find that mediation is particularly effective when the dispute involves multiple parties who all have strongly held positions, who all believe that what they want is what is right, and who believe that what the other sides want is wrong, unfair, unreasonable, and incompatible with their goals.
How commonly are insolvency matters resolved through mediation, as opposed to arbitration, and how do the benefits differ between them for insolvency scenarios?
Arbitration is essentially an adjudicative process using a third party decision-maker, similar to a judge. The parties cede their decision-making authority to the arbitrator and the result is not predictable. Mediation, by contrast, is a negotiative process which allows parties to keep control and decision power over their business disputes until they reach a consensual resolution. The mediator serves as a buffer against the contentious positioning and argument that often derails direct negotiation, greatly increasing the prospects for resolution. Mediation has become the preferred alternative in insolvency matters by a wide margin.
Being a thought leader, after founding the American Bankruptcy Institute’s ADR Committee, you co-authored a guide surrounding Mediation on US bankruptcy matters and you also were the lead mediation trainer for the Thailand Judiciary for several years – what impact did this have in the legal sphere and how important do you believe awareness of ADR in this segment is?
Mediation in the US largely grew from grass roots efforts in the field on a somewhat ad hoc basis. Mediation in Thailand came from the judiciary creating the ADR Office and training mediators to serve in the civil courts there. In both cases, raising the awareness of ADR and an understanding of how it can be effectively used with minimal risk to clients has been key to its success. This has primarily come from writings such as the ABI’s most recent Bankruptcy Mediation and from ADR trainings to practitioners and judges. It has had a profound impact on all aspects of resolution of disputes in and out of the courts.
As a leader in this field, what is your ‘golden nugget’ of advice for legal practitioners in insolvency?
Practitioners are missing a golden opportunity in cases, and putting their clients in positions of increased risk by not seeking out mediation before resorting only to the court process. Negotiations often founder between an unrealistic expectation on one side and a lack of compromise on the other. This is where the mediator goes to work. As effective as I know mediation to be, I continue to be amazed at how the process allows settlements to arise from starting points that seemed impossible to bridge.
Is there anything else you would like to add?
Sophisticated business clients are no longer required to put their fates in the hands of a time-consuming and increasingly costly legal system over which they have little control. Consensual dispute resolution - CDR - is the way.
One of the most prominent but less publically acknowledged crimes over the last few decades has been fraud, which in recent years has taken centre stage in large-scale political and financial issues, and been the bane of many nations’ governments, especially as the benefits of certain jurisdictions make it easier to hide wrong-doings and deceive the system.
Here to discuss the litigation and defence work behind such large-scale fraud and deceit matters is Yvonne Jeffries, a Partner at Byrne & Partners. Yvonne delves into the best ways to strategize the lawyering work behind fraud, and talks us through hers and the firm’s thought leadership in this complex legal segment.
You have dealt extensively with prosecuting and defending civil fraud claims; what are often the challenges involved in these cases?
Each case turns on its own circumstances. That said, one of the most common challenges in civil fraud cases is responding to attempts to inflict practical and reputational damage to one’s client. This may include seeking intrusive and restrictive interim injunctive relief such as freezing orders and search orders, often accompanied by a damaging media campaign. These measures are designed to harm your client and stop him conducting business freely, with the endgame being to force an unfavourable settlement – or worse.
From a claimant’s perspective, the pursuit of civil fraud claims often requires assets to be traced internationally. Civil fraud claims frequently throw up questions of foreign law and require intelligence to be gathered on a defendant’s assets. Thought often needs to be given to how one challenges the legitimacy of mechanisms used by defendants to place assets out of reach.
How does your 30+ years of experience help navigate these issues what key advice would you give to the potential Fraud Lawyers of the future?
My Experience has taught me that a lot can, and does, change in the course of a long complex case. Even the most horrible ones which look like stomach-churning losers at first, but are often retrievable so long as one has the stamina to keep at it. In terms of advice I would give to would-be fraud lawyers:
What has been your most prominent and impacting achievement in the legal field of Fraud and Deceit?
One of my proudest achievements recently was securing a complete victory for Abdourahman Boreh in the litigation pursued against him by the Republic of Djibouti.
The background to the claim spanned a decade and Mr Boreh faced extremely serious allegations of corruption and abuse of public position. All of this was against a backdrop of uncertainty in terms of the operation of Djibouti law.
This already difficult scenario was exacerbated by the use of a domestic terrorism conviction, made in absentia, to obtain an Interpol Red Notice and Worldwide Freezing Order against Mr Boreh and the brandishing of the underlying judgment to the media, financial institutions and international security organisations, including US Homeland Security.
The key breakthrough came with the discovery that the evidence underlying the terrorism conviction was fatally flawed. We subsequently applied to discharge the freezing order. After a 5-day hearing, during which lead Gibson Dunn Partner Peter Gray was cross-examined, Mr Justice Flaux held that the court had been deliberately and dishonestly misled by Gray and Djibouti, and set aside the freezing order.
The setting aside of the freezing order dramatically altered the momentum of the litigation and the court’s perception of the parties began to shift. In the run-up to and early stages of trial, the Republic dropped all but two of 21 heads of claim originally pursued. After a 10-week trial, the remaining claims were dismissed and Mr Boreh was fully vindicated in his contention that the entire litigation had been the culmination of a politically motivated campaign against him.
I have fought larger and more legally complex cases in the past but not one that has been as all-consuming. It was extremely satisfying to take on and beat a sovereign nation that had far greater resources at its disposal but had seen fit to behave with such impropriety.
In terms of cross-border Fraud and Deceit disputes, what are the biggest talking points and what kind of problems can arise?
A point of personal interest is the use of the English courts, most typically the Commercial Court, by foreign high net worth individuals and sovereign nations to resolve high value cases.
In a couple of recent decisions, the courts have made it clear that parties to litigation here, no matter their status, are expected to play by the rules.
I experienced this first-hand in the Boreh case. Djibouti had a rude awakening when its impropriety led to the discharge of its freezing order. Matters were compounded when the President, Djibouti’s key witness, declined to attend to give evidence despite the court having indicated that he should. The fact that he announced that he wouldn’t be attending in a letter to the judge, referencing his concerns at the precedent his attendance might set, was not well received and his statements were afforded limited weight.
A similar approach was taken in Estrada v Al-Juffali ([2016] EWHC 213 (Fam) and [2016] EWCA Civ 176), albeit in the context of a matrimonial financial relief application as opposed to a civil fraud action. In Al-Juffali, a wealthy Saudi businessman attempted to resist the application against him on the basis of diplomatic immunity because of his role as permanent representative to the International Maritime Organisation for St Lucia. His claim to diplomatic immunity was rejected by the High Court who described it “an entirely artificial construct.” Al-Juffali later appealed this decision, which received criticism from Phillip Hammond, then the Foreign Secretary, who intervened in the appeal. The Court of Appeal found that the High Court had been wrong to hold that Al-Juffali was not, in principle, entitled to immunity. However, it dismissed his appeal on the basis that he was not entitled to immunity because he was permanently resident in the UK and the claim did not relate to any official acts he was performing in the exercise of his functions.
The Foreign Secretary’s intervention shows how sensitive this issue is. These decisions also illustrate the robustness of the English judiciary and how its independence will not be interfered with.
Is there anything else you would like to add?
I would like to say a few words about Byrne and Partners. We consider that we provide a very attractive service. As a litigation boutique, we can keep costs competitive and costs arrangements flexible without compromising on quality. We ensure that there is always hands-on partner involvement, which gives clients great comfort. We receive a lot of our instructions via referrals from high-profile city firms who know we will do a good job but don’t have to worry that we’ll steal their clients. We are used to going up against some of the largest Magic Circle and US firms and getting excellent results. The breadth of our experience in civil and criminal fraud matters means that we have a fantastic network of contacts. Finally, we are absolutely committed to achieve the best outcomes possible for our clients.
With offices in the US and Mexico, Braumiller Law Group, PLLC, is a highly respected law firm focused on customs and international trade compliance.
This month we speak to Partner and Founder Adrienne Braumiller, who has over 25 years of customs and international trade law experience, and is a well-respected attorney in the trade community.
What is your take on the current status of international trade?
International trade continues to grow in spite of any recessions and economic downturns. Companies are continually seeking new markets or sources of supply and labor. Trade appears to be recession-proof (only time will tell) but with an increase in trade comes an increase in trade sanctions and enforcement. The volume of trade continues to grow, giving Customs agencies throughout the world a real challenge in the handling of enforcement and trade facilitation with static resources and ever increasing volume of trade.
What areas has Customs been focusing on lately?
US Customs responds to pressures from several angles. Importers seek recognition and concessions for investing in compliance. Domestic parties seek protection from infringing or unfair imports. Foreign parties want increased access to US markets. Congress is still seeking to legislate major changes as to how the agency manages trade and compliance. One key development is that Customs has issued Informed Compliance Letters to top importers in which Customs identifies possible areas of risk and warns the targeted company to look at those areas …or risk possible penalties. This is an additional tool the Regulatory Audit Division of Customs is using to increase compliance for companies that listen – and for those companies that don’t, a warning to prepare for an audit, investigation and possible penalties.
What are some of the major compliance issues?
Two main areas for customs compliance are intellectual property protection and anti-dumping/countervailing duty. US Customs has been under considerable pressure from Congress and domestic interests to improve its enforcement in these areas. Unethical importers continually seek ways to circumvent the laws and Customs faces major challenges to discover the offenders. It will be difficult for US Customs to make anything other than marginal improvements in enforcement of IP and ADD/CVD. However, one huge hurdle many importers are encountering with increasing frequency involves the use of whistle blower cases under the False Claims Act, wherein a disgruntled or ex-employee informs the US Government that its employer committed fraud by failing to pay ADD/CVD duties. These types of cases are very expensive to defend given the mounds of documents that typically must be reviewed and turned over, and where the penalty is three times the underpayment. I want to point out that False Claims Act cases are not limited to ADD/CVD matters but can be brought for other types of cases where the US Government has been defrauded. It’s also lucrative to the whistleblower who stands to receive up to 30% of any penalty the Government collects.
On the export side, there are many good changes focused on facilitating trade as the US has been actively involved in export control reform and is shifting certain items from the jurisdiction of the Department of State over to the Department of Commerce. This effort has been underway since late 2009 when the President recognized that the export control system was overly complicated, contained too many redundancies, and failed to focus on the most critical national security priorities. New licensing policies are in effect that allow for streamlined exports, so the biggest challenge for exporters is to stay abreast of all these changes.
Are there any Customs updates coming in 2016 and 2017?
Two of the major changes coming to trade and Customs in this country are (1) Customs moving to a new automated program for trade - the Automated Commercial Environment - and (2) new trade agreements. The latter include the Trans-Pacific Partnership which must be ratified by Congress, and the US-EU free trade agreement (TTIP), which is still being negotiated. If approved and implemented these could be the largest free trade agreements in the world.
Given more changes are coming, what do you currently see as common problems in some areas of compliance?
There is a major dichotomy in this country between companies that have made a major investment in trade compliance on one hand and companies that are either uninformed, or scoff laws, on the other. Customs continues to see itself as a revenue collection agency using audits and other tools to ferret out instances of non-compliance. However, companies who invest in implementing effective internal controls and who monitor their import transactions generally fair better in such reviews than those who take the “head in the sand” approach.
Have you seen companies take more, or less, of a personal responsibility in the ‘self-assessment arena’?
If you are asking if more companies are recognizing the need to self-monitor or self-assess to ensure they pose “a reasonable risk to Customs” (this is what any importing company being audited hopes to achieve) – I think there are many good corporate citizens out there that understand the importance of documented internal controls that are periodically tested to ensure such controls are working as intended. In other cases, we see companies who once had a good compliance program in place who have allowed the program to crumble into pieces because either there was no effort to keep the program current, or significant employee turn-over meant that the new team had little to no awareness or understanding of the program requirements. Regardless, I always warn companies that “you don’t know what you don’t know” meaning it’s important to evaluate your import and export activities on a periodic basis. To do otherwise is like driving with blinders on. At some point, you will crash.
Are there other things that an importer or exporter needs to be aware of when importing to a certain country?
That is a very open ended question. There are several things that one should be aware of when importing in general. These include not only customs duties in the country of import but also local and value added taxes. Countries have licensing and local regulatory rules that may make it difficult or impossible to import. There are also specific countries that demand that one pay attention to what the trade.gov website indicates, inclusive of any current sanctions. For example, while the latest deal with Iran could offer some new opportunities to some companies - for US companies the deal offers little change. That’s because US companies continue to be broadly prohibited from engaging in transactions or dealing with Iran or its government. In addition, non-US persons continue to be prohibited from knowingly engaging in conduct that seeks to evade US restrictions on transactions or dealings with Iran or that causes the export of goods or services from the United States to Iran.
Another key development that could impact multinational companies is the EU creation of a new modernized union customs code or “UCC” as it is called that provides some significant changes to how goods are valued for Customs purposes, among other things. Some of those changes include doing away with the “first sale” rule in a transaction where there are successive sales in favor of the “last sale”. Just as in the US the primary basis for determining the customs value of goods is the transaction value, or the price actually paid or payable for the goods when sold for export to the customs territory adjusted, where necessary. Under the current law it is possible to use a sale earlier in the chain, if it can be determined that the earlier sale took place for export to the EU, but now the focus will be on the last sale for export to the EU. This will mean that duties payable will increase.
“Do you see where NAFTA has improved the trade on our side of the planet? What is your opinion on Presidential candidate Donald Trump calling disaster”?
NAFTA is anything but a disaster! Today NAFTA partners exchange about $2.6 billion in trade per day. Instead of causing the US to lose jobs, NAFTA has created huge opportunities for American companies and has allowed them to greatly increase their business. I give regular webinars and in-person training on the subject, and for more information, you can check out the NAFTA partner’s website www.NAFTAnow.org. There is a lot of good information on the site about how much it has accomplished since its beginning in 1994. At the same time, I always stress to companies – that to successfully participate in NAFTA, training, document retention, good internal controls and periodic self-audits are critical. This is very important given the fact that at least 80% of the NAFTA Certificates of Origin, the seminal document needed so a company can import duty-free using NAFTA, is often facially invalid. This advice applies to both exporters and importers in Mexico, Canada, and the US, as the success of these claims depends on the careful administration of the Agreement throughout the supply chain.
What is your take on potential trade with Cuba?
There is a lot of potential for trade with Cuba, but this is going to be a slow process as it has been isolated from trade with the US for decades. There are still many restrictions on both trade and travel. Again, all updates are on the trade.gov website.
Trade with China has become a political issue in this election year. Do you have any insights on this matter?
It is true that our trade with China needs to be more balanced – our imports greatly exceed our exports. We need to recognize that China represents a huge market for US products. US automakers have realized this for some time. If we put sanctions or special duties on imports from China it could jeopardize opportunities to expand our exports to that country. The Chinese will instead buy from other countries, so we would be “shooting ourselves in the foot.”
It’s our understanding that you and your firm have been recognized as one of the leaders in the industry by C2 based out of London …in the category of ‘Best Regulatory Law Firm’.
Yes, thanks, it was an honor to be recognized.
And you were shortlisted in 2016 in the category of “Best Regulatory Lawyer in International Trade” and “Highly Commended as Best Export Control Law Firm” in 2016 by World ECR.
Yes, we were thrilled with these developments.
We saw a recent announcement that you had formed an alliance with The Law Offices of George R Tuttle in California…is that something you could elaborate on?
Absolutely, this strategic relationship brings together firms with similar cultures and practice strengths that are highly complementary. This will enable us to bring a new and broader set of services and resources to our clients.
For over 25 years, the Dallas-based Braumiller team has focused on providing its clients with the highest quality advice and counseling related to international trade, customs, export control, ITAR, sanctions, free trade agreements and cross-border trade. Likewise, west-coast based Tuttle law, one of the oldest customs and international trade law firms in the country, provides similar high quality services in trade areas such as customs valuation, classification, free trade agreements, customs audits, anti-dumping and countervailing duty, penalty and seizure cases, as well as customs and trade litigation, and in diverse commodity fields, such as electronics and instrumentation, apparel, footwear, and life science products.
The union of our firms will enable us to utilize the deeper resources that Braumiller Law Group PLLC, Braumiller Consulting Group, and Tuttle law offices provide, allowing us to expand our capabilities while maintaining an efficient infrastructure for our clients. We are excited to join forces with George R. Tuttle APC, George Tuttle III in particular, a highly respected and well-known lawyer who places his clients' interests and goals at the forefront - a commitment we both share. By joining forces, we combine talent, creativity and experience while driving innovation, efficiency and cost-savings.
Both firms are extremely proud of the quality of their lawyers and consultants, and the quality of their work, and service. So clients can expect the same focus, and dedication they have come to know from each.
And we noticed another firm alliance in Mexico?
Yes, we have an attorney we have been working with in Mexico for many years, Brenda Cordova, and our Of Counsel George Alfonso, located here in Dallas, helped us form an alliance with TOULET, GOTTFRIED, DAVILA Y MARTINEZ, S.C. in Mexico in order to enhance our ability to guide companies who wish to explore manufacturing in Mexico, as well as importing and exporting.
Understood. Before we wrap this up. Can you clarify the role of Braumiller Consulting Group?
Sure, Braumiller Consulting Group is our non-legal entity that helps its clients achieve and maintain import/export compliance, which is a focal point in any well-structured supply chain. They work as a partner in this process, empowering companies with a compliance portfolio that includes the tools necessary to interpret global trade regulations, determine product classifications, and implement the policies and procedures that uniquely affect their business.
BCG also takes pride in offering ongoing guidance, sharing news about the very latest industry trends and the inevitable regulatory changes. Whether a client needs help identifying and solving compliance problems or boosting his or her business with smarter strategies for international trade, our consultants have an impressive track record of success as many have come to us with years of experience in their particular field of specialty. Braumiller Consulting can provide expert assistance in areas such as: Import Process & Customs, Export Process, Licensing & Agreements, Export Licensing Classification, Schedule B Classification, Import Classification under the Harmonized Tariff Schedule, Duty Drawback Recovery, Foreign-Trade Zones, Mexican Trade Guidance, NAFTA & Other Free Trade Agreements Assistance
BCG also provides training and educational services customized to client needs as well. We will be making some announcements in the first quarter of 2017 that we are very excited to share. Our new offerings will definitely be worth keeping an eye open.
In an ever-changing business world, regulations, from competition compliance, to tax measures and banking rules, are also changing from month to month. To keep up and stay tight in business, every company needs the expert opinion of an experienced and well up to date lawyer.
In Madrid, that lawyer is Hermenegildo Altozano, Partner at Bird & Bird, an international commercial law firm. Here Hermenegildo discusses his work in Spain and Latin America, his involvement in the energy industry, and the prospects of M&A throughout the coming months.
Hermenegildo Altozano is a partner in the international law firm of Bird & Bird. He heads the Energy & Infrastructure practise in Spain.
He specialises in Energy, advising on transactions and projects in Spain and Latin America, and provides investment protection and arbitration advice in relation to Latin America. Hermenegildo advises Spanish and international companies on energy projects in Spain as well as in other countries. He has deep industry experience and understanding of not only the legal but also the commercial issues that challenge his clients’ business objectives.
He is the director of the Senior Programme in Energy Law at the Instituto de Empresa (Madrid), co-director of Energy and Regulation Forum at FIDE association and professor of Private International Law at Universidad Francisco de Vitoria (Madrid). He is a regular participant in Intereconomía Business' television programme.
Bird & Bird is an international law firm, with a rare and invaluable grasp of strategic commercial issues. We combine exceptional legal expertise with deep industry knowledge and refreshingly creative thinking, to help clients achieve their commercial goals. We have over 1100 lawyers in 28 offices across Europe, the Middle East and Asia, as well as close ties with firms in other parts of the world.
Can you provide some detail about the corporate tax systems that attract businesses to Spain and Latin America?
Spain has an attractive tax system by means of the ‘Entitidades de Tenencia de Valores Extranjeros’ (ETVE), which operate as Spanish holding companies and benefits from an extensive network of double tax treaties. In addition they profit from the bilateral investment treaties that Spain has entered into with a significant number of jurisdictions.
Which jurisdiction do you prefer working in and why?
Each jurisdiction has its areas of interest. I very much enjoy working in Cuba, given the challenges involved. The process of apparent "normalisation" with the US has still left plenty of questions, and US extraterritorial legislation is an element that needs to be taken into account to define investment strategies in Cuba. On top of that, Cubans are tough negotiators and this also represents a challenge. Deals in Cuba require patience, persistence and imaginative legal solutions to accommodate the requirements arising from a centralised and planned economy on the one hand, and the legitimate interests of foreign investors on the other.
You are heavily involved in the Energy industry; what are some of the common challenges that face Energy companies in both Spain and Latin American countries? How do you tailor your approach to assist them in navigating such challenges effectively?
One of the main challenges is represented by regulatory changes. In Spain, the learning has been somehow painful given the financial implications in the operators following the reduction of the remuneration initially committed by the Kingdom of Spain vis-à-vis the investors, but has shown a way to structure investments in the renewables industry, so to minimise the potential impact of regulatory changes, particularly by entering into power purchase agreements or other mechanisms, evidencing that there is a specific commitment vis-à-vis the relevant investor.
You are involved in mergers and acquisitions within the Energy industry; how healthy is the M&A sector in this area in Spain currently?
Following the main regulatory changes in the electricity and oil industries, the Spanish Energy sector is facing an increasing appetite by foreign investors (mainly investment funds) which are driven by the perception of stability represented by the new regulatory frame and the general consensus that the main issue represented by the tariff deficit is in its way of solution.
How do you see it progressing through the rest of 2016? Why?
The increase in M&A activity will largely depend on whether a new government will finally be formed, or whether Spain will go for new general elections. The political uncertainty is contributing to a slow down for deal flow (although this deal flow continues), given that certain strategic investments require at least an informal ‘nihil obstat’ from the Government.
Next up on our employment focus is Archin Talpade, Principal and Founder of AT Law, in London. Archin talks to Lawyer Monthly about the potential avenues employment law could take in terms of Brexit, the necessity for pre-thought prevention in employment dispute matters, and the ways of dealing with redundancies in a business.
Archin Talpade runs A.T. Law Solicitors in Mayfair. A City career took second place to his (and his clients’) desire to provide (and receive) quality legal services comparable with the City but at competitive rates. Archin took the plunge and started his firm in May 2006 as a boutique employment law provider. That decision paid off and 10 years later, Archin is recognised by clients - ranging from multinationals to private offices to senior employees - as an integral part of their teams.
Archin’s firm specialises in two things – his clients’ businesses and their people. Many law firms these days tend to focus either on acting for employees and employers to a large extent; rarely do firms act for both in equal measure. Archin considers himself privileged to be regularly instructed by both employers and employees at all levels of business, from board rooms of multinationals to senior executives in board room disputes. Because of Archin’s experience in this regard, his firm has developed a strong and distinctive style and ability to understand the mindset and strategy of opponents or the buyers and sellers of businesses in a TUPE transfer situation. This provides Archin’s clients with a clear advantage when assessing the often critical, sensitive and confidential issues his clients could be faced with.
Archin is often consulted where there are sensitive and often critical legal and commercial issues at stake that require an immediate, solution driven and result oriented approach. Archin’s competitive edge over the last decade has been founded on providing quality advice but at reasonable rates.
In advising businesses on employment matters, what do you find are the most surprising pitfalls they never considered?
I’m instructed by a growing number of businesses which have their headquarters abroad. The executives and management teams I work with are highly knowledgeable and skilled at doing what they do. As such, I find that they’re very switched on in recognising when they might need advice and taking that advice before they actually arrive at a pitfall. The same is true of senior individuals, whether at plc level or in the financial services world, these are people who have the foresight to understand when there might, for example, be a dispute brewing, sometimes many months before they reach a potential impasse. My job in those situations is to guide the business or the individual around any pitfalls I or they might have foreseen, usually in the most elegant and least contentious way possible.
When there are pitfalls, which for whatever reason have not been foreseen, these usually in my experience arise where there may have been factors which are almost, you could say, ‘black swan’ events – for example, when litigating, I’ve been faced with errant employees recording meetings with their colleagues or managers without permission. Such recordings may lead to some potentially embarrassing moments for clients but it’s then a question of dealing with such events in the most tactical and beneficial way for my clients.
Are there particular challenges involved in advising large and busy businesses in the City of London on employment matters?
Most clients, be they commercial enterprises or individuals, are savvy business leaders and there’s not much that they’ve not seen or are unaware of. So to advise clients of the type that approach me you need to be able to think creatively and respond rapidly and pro-actively. My clients are not looking for run-of-the-mill advice that a solicitor reading say an online legal service or textbook , might be able to deliver. They’re seeking solutions which will probably require a degree of ‘advocacy’ - whether that advocacy is carried out around a Board room table, over a series of conference calls, in presentations to prospective purchasers or sellers of my clients’ businesses and/or services or before an Employment Tribunal. It’s really the art of persuasion, in one form or another, married with an in-depth understanding of the practical implementation of the law, which brings about the desired results for my clients.
You have previously advised CEOs of FTSE 100 companies negotiate their exit packages; what kind of complexities did this involve?
Whether you’re dealing with a CEO or any other senior employee, the law is the same – it’s the scale and the tactics that we employ that differs. The key with any client - but in particular a CEO or senior executive - is to ensure that they’re fully aware at all times of the position and are on-board with the approach and tactics, which have to be deployed sometimes within hours of the first meeting. Particular complexities could also include concluding negotiations sometimes within 24 to 48 hours given the sensitivity of such matters on the share price of a plc. Senior executives above all value precision in advice, determination, speed and quick wits!
You have also previously engaged in defence cases surrounding employment matters; what do you find is the best way to approach redundancy claims?
With a degree of empathy for all involved. My company clients, who are usually well versed in dealing with all aspects of employment law including redundancies, understand that first and foremost they’re often dealing with a life-changing situation for their employees, sometimes of many years standing. It’s therefore a concern for many of my clients that they operate fairly – which is not always simply about money – it’s about the human aspect of employment law.
Do you work mostly alone in the capacity of employment law, or alongside a team?
It very much depends on the case. If it’s a large case with different strands which might cross over into employment law, corporate and tax, then I work alongside colleagues, counsel and consultants specialising in those areas.
On the back of the recent Brexit vote, do you expect much change in the realms of employment law and the demand in legal services?
It‘s not entirely possible to predict exactly how the UK's laws might change following the UK’s exit from the EU. Changes to UK laws will likely stem from the arrangements the Government applies when formalising our departure from the EU. There are broadly two ways of dealing with our exit: the first way is a model based on us joining the EEA perhaps in the same vein as Norway; or secondly, the Government of the day tailoring a custom-built UK- EU relationship. The ‘Norway Way’ would entail the least change, as EU law on the whole would likely remain more or less intact. The ‘UK-Tailored-Way’ could in theory lead to a more significant degree of change, particularly to laws which are “EU-Centric” such as certain aspects of TUPE.
In practice, it remains to be seen whether any Government would wish to cause such a potentially seismic change immediately following the implementation of Brexit - which would then have a major impact on employers and employees. Any change is likely to be carried out over time and after consultation with employer groups and employee groups including the CBI and Unions.
As a thought leader, if you could implement changes to facilitate your work in the UK employment landscape, where would you start?
It’s apparent to me that the landscape of employment – not just employment law – is shifting; this can be evidenced by, say, the number of commercial properties which remain vacant for longer, the rise of technology in reducing the numbers and types of jobs (e.g. in the retail sector and financial services sector), the outflows of jobs abroad and the continuing popularity of flexible working patterns. It’s a debate that’s been raging across academia, but is also incredibly relevant to all of us in the UK economy:- how do we preserve skilled paid jobs to facilitate the continued success of the UK? The answer does not solely lie in changing or reducing the impact of employment laws or immigration laws. The answer, I think, partly lies in having a pre-eminent education sector which builds the workforce of tomorrow today while co-ordinating a more holistic and less prescriptive approach to employee relations by both employer and employee groups – eventually leading to a genuine economic and business partnership. That, I think, is the challenge for this country - and the solution doesn’t just lie with the lawyers or legislators.
The Parliament of the United Kingdom is the supreme legislative body - it decided in 1973 to enter the European Economic Community and in 1992, to sign the Maastricht Treaty, thus creating the EU.
Entering into the European structures caused implications for the next 43 years of the UK’s rule of law, economics, structure of society and culture, as the legal, economic and comprehensive taking into account culture, views, habits etc. migration/ immigration began.
Immigration/ Brexit & single market access
Indeed, the invaluable influence has always had an access to a single market.
The common market, the Treaty of Rome’s main objective, was achieved through the 1968 customs union, the abolition of quotas, the free movement of citizens and workers, and a degree of tax harmonisation with the general introduction of VAT in 1970. However, the freedom of trade in goods and services and the freedom of establishment were still limited due to continuing anti-competitive practices imposed by public authorities.
The lack of progress in the achievement of the common market was largely attributed to the choice of an overly detailed method of legislative harmonization and to the rule that required unanimity for decisions to be taken in the Council. According to the Cecchini report (‘The cost of non-Europe’), presented in March 1988, this was extremely expensive for the economy, costing between 4.25% and 6.5% of GDP. In the mid-1980s political debate on this issue led the EEC to consider a more thorough approach to the objective of removing trade barriers: the internal market.
The Single European Act entered into force on 1st July 1987, setting a precise deadline of 31st December 1992 for completion of the internal market. It also strengthened the decision-making mechanisms for the internal market by introducing qualified majority voting for common customs tariffs, free provision of services, free movement of capital, and approximation of national legislation. By the time the deadline passed, over 90% of the legislative acts listed in the 1985 White Paper had been adopted, largely under the qualified majority rule.
The single market refers to the EU as one territory without any internal borders or other regulatory obstacles to the free movement of goods and services. A functioning single market stimulates competition and trade, improves efficiency, and raises quality.
The EU single market for goods accounts for about 500 million consumers and 21 million small and medium- sized enterprises. The EU single market for services accounts for over 70% of all economics activity in EU and similar proportion of its employment.
In conclusion, a fully functional digital single market is a crucial feature for the European business, including the British one. One must bear in mind that the EU single market promotes innovation; contributing 415 billion Euros to the EU economy each year.
The European Commission works on removing the last barriers in internal trading and preventing the creation of new ones. It applies Treaty rules prohibiting quantitative restrictions on imports and exports (vide article 34 to 36 TFEU) and manages the notification procedures on technical regulations (2015/1535).
The European Commission monitors the application of EU law and can launch infringement proceedings against EU countries that do not comply. It also monitors the functioning of the single market, producing evaluations and key economics reports. In cooperation with the local partners namely EU countries, the European Commission is organizing a series of various workshops all over the EU member nations to develop better understanding of the collaborative and shared economy, to identify the most innovative business models, to uncover real risks and regulatory barriers, and to debate the most appropriate form of regulations.
In the case of Brexit, and taking into account the prospective intentions to limit the free movement between the UK and the EU, the option that excludes the single market access is highly probable, but is that a price that should be paid by British businesses?
On the other hand, in the case of aiming towards single market access one must bear in mind the question: who should provide goods and services? There is no unlimited movement of services and goods if there is not enough of the human factor to provide them.
The wider the access to the single market, the more business (namely trade, goods, whole range of services) develops and the more places of work are being created. Therefore a lack of access to the single market would cause an increase in unemployment as a lot of international companies have their branches in the UK and will not be able to provide their services and goods freely, thus the employees will not be needed anymore.
In addition one must bear in mind that the price of opting towards exclusion from the single market (due to the immigration factor permanently raised during the leave campaign) is much higher than the threat of increase in unemployment, and duty customs which will influence the prices for everyone living in the UK, especially in the cases of having a holiday abroad, buying a property abroad, or buying anything abroad via eBay for instance. So the question is whether the British society and British politicians are to pay the price of issuing Brexit without access to the single market as it is obvious that the British economy, particularly London, will not.
Benefits/ Brexit/ Immigration
One of the essential factors promoted by the ‘leave’ campaign was the frustrating issue of benefits for migrants.
David Cameron announced victory and pledged to campaign with “all my heart and soul” to keep Britain inside the EU after the Decision of the heads of state or government, meeting within the European Council, concerning a new settlement for the UK within the EU was struck on 19th February 2016 to redraw the terms of the UK’s membership.
The Decision clearly states that: "It is recognised that the United Kingdom, in the light of the specific situation it has under the Treaties, is not committed to further political integration into the European Union. The substance of this will be incorporated into the Treaties at the time of their next revision in accordance with the relevant provisions of the Treaties and the respective constitutional requirements of the Member States, so as to make it clear that the references to ever closer union do not apply to the United Kingdom."
Leaders of the 27 member nations agreed to:
In conclusion, David Cameron was granted almost all of his demands, therefore if anybody voted to leave because of benefits for migrants, it was a result of the lack of proper information in relation to the decision made on 19th February 2016.
Brexit/ immigration/ Dublin Regulation
In the wider perspective of the immigration issue, Brexit influences the United Kingdom's situation also in relation to immigration beyond EU borders, namely refugees and asylum seekers.
The Dublin Regulation - establishes which of the Member States is responsible for the examination of the asylum application. The main approach of an updated Dublin Regulation is that the country where the asylum seeker arrives has to process the application and is responsible for them. In case of Brexit, the United Kingdom will not be covered with this Regulation anymore, thus dealing and searching for a solution to such a difficult situation connected with the refugees looking for a shelter to protect their lives will be the sole initiative of the UK.
I have been a Practitioner and Solicitor of England and Wales for 33 years. More than 28 years of my Practice has been absorbed by the Immigration, Nationality and Human Rights Practice. The Practice involves applications, representations to the Home Office and conducting cases from the First Tier Tribunal to the House of Lords (in the past) and now Supreme Courts. I enjoy my area of practice in this field because it delivers liberty, life, a future and prosperity to my successful clients.
Settlement in UK
Since 2012, I have been experiencing an agony of inhuman, unjust and unfair laws and dispensing justice. Prior to 2012, Immigrants on various walks of lives were able to achieve UK residency, which is fondly referred by the Immigrants as ‘Permanent Residence’ and legal term as ‘Indefinite Leave to remain’. The changes since 2012 up to now have brought grief to many families of Immigrants who are already settled in the UK.
Family members who are settled in the UK fall within the dream category of the Government who are called ‘hard working people’, but they cannot bring their parents to live with them. The change of rules only allows entry clearance if the parents cannot take care of themselves. Even without being recourse to public funds, parents over 65 cannot enjoy their retirement in settlement with their children in the UK. The rights to appeal on family visits have also been withdrawn. Refusals on technical grounds are on large scales.
Immigrants who are well settled with jobs in the UK and who have adequate income cannot bring their spouses who remain abroad, and also cannot join the spouse in UK unless he or she has higher level of fluency to pass the English Language Test. This test should have been at least applied to the marriages after the implementation of this rule, instead it is applied to the very old marriages and spouses too.
‘Access to Justice’ has become a household name in Legal and Judicial circles. This is simply because of the cuts in Legal Aid funding. In Immigration and Human Rights Law access to justice has been deprived on two fronts; firstly, with the Legal Aid cuts, and in addition to that, withdrawal of rights to appeal in many categories of applications to the Home Office. In the event of a decision which does not attract a right of appeal, the only choice is to seek redress to the Administrative Court (High Court) or Upper Tribunal by way of Judicial Review application. Such application would only be on Point of Law or Error in Law and is enormously expensive for an ordinary man.
Asylum Law
Asylum Law in my view has positively developed in the past 30 years. Earlier it was relied on UN Convention for Refugees 1951. Thereafter, the Human Rights Act 1998 had been installed within the UK Laws. During the landmark case of ‘Sivakumaran and Others’, in which I was also involved, the House of Lords gave guidelines that the expected ‘Standard of Proof’ is not beyond reasonable doubt and not based on a balance of probabilities, but a lower threshold ‘Standard of Proof’ by ‘reasonable degree of likelihood’. This definition made the Asylum Law Practitioners and their Asylums Seekers lives slightly easier.
New weapon to prevent access to Justice
In Nationality applications there is no right of appeal but the application fees have been increased on regular basis. For a single person to apply for Nationality after living in this country for many years and paying taxes, the fee is £1236. The cost for an ideal hardworking family with two children would be £4344. The other scenario is in limited appeal rights; the court fees for the appeals have been drastically increased many fold. This is not to cover the cost of the administration and judicial process, but to deter people from appealing and exercising their right of appeal to have access to justice. The latest increase to appeal to the First Tier Tribunal against an Immigration decision was £140 per person in the family. From the 10th October the fees increased from £140 to £800.
There has been no agitation or lobbying against these unfair administrative rules. There are no consumer lobbies or Immigrant lobbies or even the opposition from MPs or Community Groups. Is it because it only affects the Immigrants?
General view on Service to Clients
With all the difficulties, hurdles and injustice, I still enjoy the practice of Immigration and Human Rights Law. The mantra I preach to the clients is to come clean and tell the truth to your lawyer, who will find the appropriate solution and the best outcome. I tell them: “The system in this country is good. Therefore do not fight the system but fight within the system.”
Continuing on with our very special Raising the Bar interviews, Mark Symes talks to Lawyer Monthly about his work in immigration & asylum, with particular expertise on the implications of Brexit on EU and UK business immigration law. Mark also tells us about his most notable cases and notes his opinion in regards to ‘raising the bar’ on immigration law, following the UK’s exit from the EU.
Mark Symes specialises in all aspects of immigration law; he has appeared in many leading cases involving asylum, human rights and public law. A Deputy Judge of the Upper Tribunal and a fellow of the Refugee Law Initiative at the Institute of Advanced Studies, Mark is co-author of Asylum Law and Practice - “encyclopaedic... pre-eminent” according to one Supreme Court judge, and co-author of Immigration Appeals and Remedies Handbook - (“invaluable … to the armoury of all … a compulsory addition to the library of every immigration judge and practitioner”: President of the Upper Tribunal Mr Justice McCloskey). Mark is also a contributor to MacDonalds Immigration Law and Practice.
How did you come to specialise in immigration, asylum and human rights law?
I became interested in refugee law and worked at the Refugee Legal Centre in the early 1990s, in a very different funding climate to the current one. Over the following decade the NGO sector grew very significantly and there was the possibility of pursuing a legal career within specialist NGOs such as RLC. Eventually I took charge of national legal strategy and training.
What has been one of the most notable and impacting cases you have worked on, and how did you raise the bar in this scenario?
In SQ (Pakistan) [2013] EWCA Civ 1251 I represented a young boy who potentially faced imminent death on a return to his country of origin. His case had failed in the Tribunals but the Court accepted that it raised issues of special public importance such as to surmount the “second appeals” test, notwithstanding that it had been twice refused permission to appeal to the Upper Tribunal. We persuaded the Court of Appeal that the private life of vulnerable children with serious health problems required special attention, representing an exception to the general rule for migrants that only the prospect of imminent death without palliative care could prevent their return abroad.
Over the last decade, what would you say have been the most significant milestones in UK immigration law to affect your work?
Two things:
Do you have any thoughts on the potential legal reforms in immigration and asylum that may be incited as a result of the recent Brexit vote?
By potentially making millions of EEA nationals (often with British citizen family members and children) who have lived and worked freely in the UK for many years subject to immigration control, the government is vastly expanding the work that will have to be done in future by the immigration dept. of the Home Office (UKVI). It remains unclear what arrangements will be put in place for the very large numbers of EEA nationals who are entitled to permanent residence, but have not previously been required to obtain documentation to confirm this.
British workers and entrepreneurs wishing to establish themselves in an EU Member State in future face the likelihood of quotas or rules, by which EU Member States give preference to EU nationals.
One might hope for some kind of transitional measures whereby those who have made their lives in this country, and contributed to the economy, can continue to reside here without satisfying the strictures of the Rules currently applying to non-EEA citizens.
How might this potentially affect the way business immigration is dealt with?
There are very large numbers of EU nationals presently in the UK in circumstances which would normally be subject to the business immigration routes. Currently, they are free to generate income for themselves and wealth for the UK via tax revenues and the general contribution to the economy without any significant regulatory burden. For example, wealthy individuals may be present as self-sufficient EEA nationals, whereas were they third country nationals they would have to satisfy the highly technical requirements of the Investor route; they may have set up a business, but if subject to immigration control they would have to satisfy the dozens of technical Rules found in the Entrepreneur route. There are large numbers of EEA nationals working here who would need their present employers to become sponsors under the ‘Tier 2’ route (and those sponsors would have to face the expense, including the ‘immigration skills charge’ of £1,000 per migrant, per year entering force in April 2017, and the administrative burden set out in the hundreds of pages of government-imposed guidance).
In regards to the UK’s approach to granting asylum, what do you believe should be expected of any government and if you had the power, what would you change or introduce?
The present crisis arising from armed conflict in the Middle East has led to vast population movements on a scale seldom seen since the Second World War. All civilised nations should see the virtue of responding to a humanitarian crisis so that the burden is shared equally. It is especially unfortunate that vulnerable children in places such as Calais are unable to be reunited with family members in the UK and elsewhere because of foot-dragging and reliance on legal technicalities by government bureaucrats.
Finally, how would you explain your reputation as a barrister who has raised the bar when it comes to UK immigration law?
Internal to the brief, when advising immigration clients, it is imperative to master their immigration history and spot missing information that might bear vitally on the case early on. Externally once must be aware of the constantly changing environment of rules and regulations and the possible legal challenge to any adverse decision. It is likely that the UK’s proposed departure from the EU will change the focus of restraint on governmental power from European Union law to domestic public law principles, including the judge-made rights recognised in our unwritten constitution: that is the likely direction of travel for lawyers at the cutting edge.
As Lawyer Monthly’s first Raising the Bar appearance, Mark Dempsey SC introduces the building & construction sphere in Australia, highlighting the challenges he has encountered throughout his legal career, some of the precedents set and seen in the field, and the standards that have changed in this field over the years.
Mark is a highly experienced commercial advocate with a wide-ranging commercial practice. He appears at trial and appellate levels in State and Federal Courts, and in Mediation and Arbitration throughout Australia.
He has developed a special expertise in construction and engineering disputes, in particular, in complex and challenging cases.
He has been recognised as a leader in the field of construction law and litigation in Best Lawyers in Australia (2017 edition), Chambers Asia Pacific (2016) and Doyle’s List (2016).
Mark provides first class service with acuity, efficiency and flexibility. He has a deep knowledge of the law and vast experience in the conduct of commercial disputes from over 30 years of legal practice, 12 as Senior Counsel.
Mark also practices as an Arbitrator (he is a Fellow of the CIArb) and Mediator. In each capacity, he deploys the high end skill sets derived from his years of practice, throughout Australia and the Asia Pacific region. Mark enjoys working closely with his instructing solicitors and clients to achieve the optimal outcome in a cost effective manner.
Seven Wentworth & Selborne Chambers is a leading Australian commercial floor of barristers based in Sydney with a leading group of practitioners specialising in Building & Construction law and dispute resolution recognised in such publications as Best Lawyers in Australia, Doyle’s List, Chambers Asia Pacific.
That group includes Mark Dempsey SC, Duncan Miller SC, Nick Kidd SC, Nuala Simpson, Justin Hogan Doran, Duncan McFarlane, Brett Le Plastrier, David Hughes, Robert Carey and Mark Sheldon.
How did you come to specialise in the legal segment of building & construction and what is it about this industry that appeals most to you?
By chance; about 25 years ago, within five minutes, I received offers of two briefs. I accepted the first (in accordance with the Bar rules) and found myself engaged in my first long-running construction arbitration as junior to a leading senior counsel instructed by Allens. One thing led to another, and from then on I have being engaged in many significant and wrong long-running disputes in court and arbitration throughout Australia.
What have been the most challenging construction and engineering disputes you have had the pleasure of heading up, and what were the complexities involved?
There is a range. From the perspective of legal complexity and difficulty, the Abigroup v Sydney Catchment Authority litigation involved a lengthy reference hearing followed by three adoption hearings in the Technology & Construction List of the Supreme Court of New South Wales, and involved two appeals to the New South Wales Court of Appeal; the final of those decisions establishing significant new law as to the measure of damages recoverable in an action for misleading or deceptive conduct.
From the perspective of commercial significance and intensity, one matter which comes readily to mind was the litigation over the design and construction of the Hilton Hotel redevelopment project in Sydney.
From the perspective of technical complexity, an action by the owner of a coal-fired power plant against an EPC contractor for defective design or construction of the internal refractory lining of the furnace was the most challenging including very complicated questions of metallurgy, combustion and materials science, and systems analysis.
From the perspective of trial advocacy and forensic challenges, a keenly contested arbitration concerning the construction of three large leachate tanks constructed for a large uranium and gold mining facility posed particular challenges in cross examination of the large number of witnesses of 30 days in the conduct of cross-examination of experts giving concurrent evidence in five disciplines over seven consecutive days.
In your more than 30 years’ experience in this field, what would you say has been the biggest precedent you have set in the practice of building &construction law?
The case in which I was involved which has set the most significant precedent is ‘Abigroup Contractors Pty Ltd v Sydney Catchment Authority (No 3) [2006] NSWCA 282; (2006) 67 NSWLR 341’.
How would you justify yourself as a barrister that increasingly raises the bar when it comes to Australian building & construction law?
Dispute resolution of large and high-value construction disputes is constantly challenging.
The great challenge and great satisfaction of practice in this area is to be continually under pressure to identify and achieve improvements in all of these aspects
To what extent do you believe there is still capacity to raise this bar further, and develop the benchmark for legal services in this field in Australia?
There is always room for improvement in all of the six aspects referred to above.
What do you find most exciting and rewarding about your role as an Australian barrister in this legal segment, and what is it that keeps you one step ahead of your colleagues?
It is a privilege to be chosen to represent the interests of parties in litigation, and to bring to bear the combined experience of over 30 years’ experience of working with and learning from first-class professionals and judges.
It is a pleasure to have the opportunity of meeting and working with highly skilled and intelligent clients, experts, solicitors and fellow barristers, and to appear before the many outstanding judges and arbitrators engaged in this field in Australia and throughout the Asia-Pacific region.
Is there anything else you would like to add?
It is great pleasure to be able to work with my colleagues on the combined 7 Wentworth & Selborne Chambers, many of whom are recognised leaders in the field of Building and Construction law and dispute resolution.
