Understand Your Rights. Solve Your Legal Problems
UniCredit recently informed that the transfer of the CEE Division, including the shareholdings of CEE subsidiaries, from UniCredit Bank Austria AG to UniCredit S.p.A. has been successfully completed following the registration of the demerger of the CEE Division from UniCredit Bank Austria AG to UCG Beteiligungsverwaltung GmbH and the subsequent cross border merger of UCG Beteiligungsverwaltung GmbH into UniCredit S.p.A. with the competent companies' registers of Vienna and Rome, having all regulatory approvals been granted.
The reorganization following the completion of the demerger and the merger will become effective as at October 1st 2016. In this respect, bonds issued by Bank Austria (except for group-internal transactions) are not within the scope of the demerger.
Grohs Hofer Rechtsanwälte GmbH & Co KG (GHR) acted as council to Betriebsratsfonds des Betriebsrates der Angestellten der UniCredit Bank Austria AG Region Wien (BR-Fund). BR-Fund is a shareholder of UniCredit Bank Austria AG (Bank Austria) with special rights. Inter alia any demerger of assets of Bank Austria requires the consent of BR-Fund.
As in the past the CEE-business was the major value creator in Bank Austria, it was a highly important process and decision for BR-Fund under what conditions BR-Fund could agree to a demerger of the CEE-business from Bank Austria, as BR-Fund’s goal and mission has been that he can only consent to a transfer of the CEE-business if a sustainable business model for Bank Austria without CEE and the future of Bank Austria are safeguarded.
GHR advised BR-Fund on all aspects of this transaction and negotiated together with the representatives of BR-Fund the term and conditions of the agreement between UniCredit S.p.A. on the one hand and Bank Austria, Privatstiftung zur Verwaltung von Anteilsrechten and BR-Fund on the other hand in connection with the CEE-transfer.
Fortis Health Care has acquired 51% economic interest in Fortis Hospotel Limited by way of acquiring compulsorily convertible debentures from Fortis Global Healthcare Infrastructure Pte Ltd.
The acquisition transaction was subject to approvals from shareholders, Singapore Exchange Securities Trading Ltd and unit holders of Religare Health Trust and has now been closed after obtaining these approvals.
DMD Advocates, led by Rashi Dhir, Senior Partner, and Raja Kishore, Senior Associate, advised Fortis Healthcare Limited on the Indian Law aspects.
AZB, led by Dhruv Singhal, Partner, Priyoma Majumder and Priyanka Butani, Associates, advised Fortis Global Healthcare Infrastructure Pte Ltd.
Nearbuy, an Indian deals and discounts website has raised venture debt of Rs 15 crore (about $2.25 million) from Blacksoil Capital Pvt. Ltd., a non-banmking financing company.
The online discount and deal promoter will use the capital to invest in customer and merchant tech.
The last transaction by Nearbuy was in August 2015, when Groupon Inc. sold a majority stake in its India subsidiary Groupon India Pvt. Ltd to Sequoia Capital, through an investment of $17 million. Groupon now only owns a minority share in Nearbuy.
Nearbuy (Groupon India Private Limited) is India’s first hyper-local online platform that enables customers and local merchants to discover and engage with each other. Nearbuy also offers its merchants a strong branding and visibility-led platform that enables customers, in and around their establishments, to easily discover their businesses.
Blacksoil Advisory is an independent boutique advisory firm assisting and facilitating corporate clients to meet their growing strategic issues and help them realise their objectives, usually through financial planning, structuring / restructuring, M&A and capital raising. Blacksoil advisory is active across the full range of advisory roles to provide senior-level and conflict-free advice.
Shop Apotheke Europe N.V., one of the leading online pharmacies in Continental Europe focused on non-prescription, over-the-counter (OTC) medication and pharmacy-related beauty and personal care (BPC) products, recently announced its Initial Public Offering (IPO) in Frankfurt.
The Company operates in Germany, Austria, France, Belgium, Spain, Italy and the Netherlands.
The offer consists of up to 3,571,428 newly issued shares from a capital increase of the company.
Additionally, investors may be allotted another 535,714 shares of a securities loan (Greenshoe shares) in the context of an over-allotment option.
The shares were offered to private and institutional investors from 29th September until approximately 11th October. The price range within which offers to purchase could be submitted is between EUR 28.00 and EUR 35.00.
According to Reuters, Shop Apotheke said in the statement: “The final number of newly issued shares was determined in a way that the Company will achieve gross proceeds of approximately 100 million (euros).”
The shares of Shop Apotheke Europe N.V. are expected to be traded on the regulated market and the sub-segment of the regulated market with additional post-admission obligations (Prime Standard) of the Frankfurt Stock Exchange.
Global law firm Hogan Lovells advised Shop Apotheke Europe N.V. on this IPO. In addition Avvocati Associati Franzosi Dal Negro Setti served as Legal Advisory to Shop Apotheke.
Swiss and German start-up FinanceFox has recently revealed a massive $28 million Series A funding round, led by Target Global and Horizons Ventures. This is one of the latest investments in a growing trend of so-called ‘insurtech’ companies that are starting to eat away at the share of venture capital going to finance start-ups.
The company’s app allows users to consolidate insurance plans and manage all claims in one place. It also gives them the opportunity to see new all-encompassing plans that will consolidate all their coverage into a single plan. FinanceFox talks up eliminating the middle man in brokerage, but it invites brokers to send their customers to the app in order to have them be organized with their policies.
FPS, represented by Dr. Katy Ritzmann, served as the legal advisor to investors Target Global and Horizons Venture in the $28 million financing round of FinanceApp AG. Given the already international structure of FinanceFox Group, Katy worked together with a team of Swiss and Spanish lawyers.
Despite the complex structure of the deal, Katy appreciated from the beginning that all parties worked hand in hand with the goal in sight to be partners at the end of the transaction. The team has already grown together during the transaction and FPS is confident that this investment will turn into a successful growth of the company.
UK based Central Accident Management Services (CAMS) recently secured £700,000 in funding, after which it has been able to buy the land it is based on in Birmingham, and create new jobs within the firm.
The land it has bought, a 2.5-acre site in Small Heath, has enabled previous rent sped to be allocated to expanding the services it provides and has allowed for a further seven new jobs.
Celebrating its 10th anniversary this year, CAMS plans to also expand its 90-strong fleet of replacement & rental vehicles by 10% by investment funding from Lloyds Bank. This will allow CAMS to work with more clients.
The expansion will also allow CAMS to increase its annual turnover to £5 million and create further management and operational roles within the firm.
Imran Dean, Managing Director of CAMS, said: “We are fully committed to serving businesses on a national level, and it is important that we now have the scope and flexibility to expand on our land in the future as opportunities arise.”
Risk minimisation is the ultimate goal of insurance. Its purpose is to buy peace of mind and to soften the financial blow should the worst case scenario occur. Insurance claims can however, lead to complex coverage disputes and professional negligence claims and Lawyer Monthly speaks with Insurance Litigation Partner, Nicola Maher of Edwin Coe LLP, who discusses the recent and future changes and developing trends in insurance law.
As a professional whose practice focuses on insurance litigation what have been the recent changes in the regulatory environment regarding insurance in the UK?
The Insurance Act 2015 (the Act), which came into force on the 12th August 2016, represents one of the most significant reforms of insurance contract law in the UK in the last century. The Act came about as a result of a Law Commission review into insurance law which was felt, at the time, to be weighted heavily in favour of the insurer.
The Act changes the law for business in much the same way that the Consumer Insurance (Disclosure and Representations) Act 2012 changed the law for consumers.
At a glance, the key changes are:
Are there any future regulatory changes which are expected to affect insurance litigation?
Currently, insurance companies are able to withhold payment, sometimes for years, and insured parties with valid claims have no form of redress. I have seen many businesses fail following a delayed insurance payment because, after a large loss, they have been unable to rebuild premises or replace plant and machinery required for their business to continue.
This is in direct contradiction to normal contract law where if one party breaches a contract, the other can generally claim damages for any actual loss caused by the breach, provided the loss was foreseeable at the time the contract was made.
However, the Enterprise Act 2016, which comes into force on the 4th May 2017, will amend the Insurance Act 2015 to enable insureds to claim damages actually suffered as a result of insurers’ “unjustified late payment” of claims, which is good news for policyholders.
Of course, those damages will still be assessed with reference to ordinary principles of law, including causation, foreseeability, remoteness and mitigation and what amounts to payment within a “reasonable time” will depend on a number of factors to be determined on a case by case basis.
Furthermore, as with the Insurance Act, contracting out of this implied term will be allowed in non-consumer contracts subject to careful drafting but it is likely that the Enterprise Act will at least result in more active, earlier and open engagement between the parties about any difficulties with the claim.
Are there any other particular developments or trends you expect to see in relation to insurance litigation in the future?
The other hot topic in insurance circles is cyber, and the growing threat to policyholders of cyber-attacks and losses. Cover under specific stand-alone cyber policies, or cover which is added on to existing policies, is likely to come under increasing scrutiny. The rapidly developing threat of cyber-attacks means that insurance requirements are constantly changing. At the moment the SME market is significantly at risk of cyber-attack and yet a significant proportion of that market is either under insured or not insured at all. Education will be a key consideration as far as insureds are concerned, and insurance brokers have a role to play in this respect.
As a minimum, The Association of British Insurers (ABI) recommends that businesses need to consider appropriate steps to take to minimise the risks and also whether they have or ought to have insurance cover for the following:
As this area of insurance grows, and the need for it becomes more widespread, it follows that insurance brokers who fail to bring the availability of cyber cover to the insured’s attention, or who fail to obtain adequate cyber cover, are going to be at risk of litigation.
How will the new regime change things, in particular for policyholders and/or insurance brokers?
Disputes between policyholders and insurers have depended, to a large extent, on the particular class of insurance. It is common to see specific wording and claims issues particular to certain sectors such as the D&O market, the property market, the construction market, and the combined liability market. Many disputes arise from the information purportedly presented or not presented to insurers at the time the risk was first placed or on renewal i.e. alleged non-disclosures or misrepresentations. Breach of policy terms, conditions, warranties and conditions precedent is also a common cause of disputes, as is underinsurance. In turn, these disputes often lead to claims against insurance brokers for a failure to ensure placement of adequate insurance or to explain the terms of the policy and the consequences of breaching those terms.
The new obligation under the Insurance Act 2015 to conduct a reasonable search is likely to give rise to arguments about the scope of that search and what a fair presentation involves. The search is certainly more onerous than that required by previous law in that it extends to information held by the insured, broker and other parties such as IT consultants, subcontractors and outsourced operations.
Brokers will need to give consideration as to how they go about dealing with and explaining the reasonable search duty to insureds. It will also be important for brokers to explain to insureds and to agree with insurers the scope of persons whose knowledge is relevant. They will need to consider the use of formal questionnaires in addition to site visits and discussions and will have to ensure they keep records of those discussions if they are to avoid or rebut any arguments over the duty of fair presentation.
The broker also has a duty to ensure that the insured understands how to go about making disclosure in accordance with the Act and will need to advise on the merits or otherwise and appropriate terms of “contracting out” of the Act.
Whilst the “fair presentation” regime may appear to be onerous for policyholders, it should have some significant benefits including greater certainty for those policyholders who are well-organised and engaged with their insurance arrangements, in addition to more commercially flexible and proportionate remedies in the event of a breach of the duty of fair presentation.
The onus is now on the insurer to demonstrate what it would have done had it received a fair presentation of the risk and remedies include:
Is there still a place for ADR in insurance disputes?
Absolutely. It is well-known that litigation is prohibitively expensive, takes place in the public domain, is often protracted, and can be damaging to commercial interests. In many cases it makes sense for the parties to adopt alternative mechanisms to settlement, such as without prejudice discussions or mediation, which is conducted in private and can lead to earlier resolution.
In my experience, insurance claims benefit from some form of ADR, and more and more policies are including clauses which oblige the parties to seek resolution by ADR such as arbitration or mediation. However, insurance disputes are complex and require a genuine commitment by the parties to the process and a good mediator in order to achieve resolution.
ADR allows the parties to more candidly identify their true obstacles to settlement and to address contract issues and possibly a more creative form of resolution whilst also being a cost-effective way of resolving disputes quickly.
This month Lawyer Monthly spoke to Peter J Kirkpatrick, an enthusiast aircraft pilot, who is deeply involved in the restoration of a Mark I Hawker Hurricane V7497 aeroplane, in the hopes to not only one day fly it, but to also recreate a part of the Battle of Britain’s history, for the educational and cultural benefit of future generations.
Although the restoration project has reached its half way mark, funding and support is crucial, and Peter is now calling for all those interested in supporting the project, to reach out and help be a part of this tremendously inspiring project, by way of funding, legal services and awareness, in order to recreate history for the future.
V7497 was flown by Flying Officer Rogers when the aircraft was felled by three Me109s. He parachuted to survive and serve for Bomb Command. The aircraft came down heavily and was buried, the reason why many original parts appear in the restoration (~30%). This is because engineers would skeletonise the wreckage for parts if they were accessible, and put the parts into another Hurricane. V7497 is probably the most original BoB aircraft in that sense, and represents only the 2nd Mark I Hurricane to be restored to flying condition worldwide.
The engine is the famous Rolls Royce Merlin, Mark III. This powered all BoB aircraft, Spitfires and Hurricane, and deliver 1050hp. Although slightly slower than the Mark I Spitfire, the Hurricane could out turn any of the contemporary fighters, provided a better gun platform, and was designed in such a way for easy on site repairs. As such more remained serviceable for battle, and accounted for over 60% of the enemy aircraft. It is generally agreed that without the Spitfire the battle would still have been won, whereas without the Hurricane we would have lost. If the BoB had been lost, there would have been no Western Landmass available for any future counter invasion, and more importantly, Germany would have been unopposed in their Nuclear Arms development, and were two years ahead of other Nations. The US would have been up against the rest of the World, and against a Nuclear force with an unspeakable outcome.
The Pilot (F/O Rogers) survived being shot down on 28th September, 1940 by Me109s whilst at the helm of V7497. He served for 301 squadron at Kenley, and was downed over Sutton in Kent where the aircraft was found and hence the renovation project. Several pilots flew V7497 before it perished, including Fredrick Howard who was later killed and is buried in Cherry Hinton Church.
V7479 is currently at Hawker Restoration Limited (HR) based in Milden, Suffolk (see www.hawkerrestorations.co.uk). The Merlin Mark III engine, the type used by both hurricanes and Spitfires during the BoB, is being stripped and renovated by Eye Tech Engineering Ltd, located in Eye, Suffolk, one of few companies worldwide who are able to renovate RR Merlins. Eye have made the replica Browning machine guns which were universally used at the time, eight in all.
The aircraft is approximately 70% complete, and the completion date is approximately 6-12 months, at which point it will start the ground run tests before test flights. She is hoped to be displayed by this time next year.
Peter J Kirkpatrick is a Consultant Neurosurgeon who was appointed at Addenbrookes Hospital, Cambridge, in 1994. Peter has been in the post for 32 years, specialising in Neurovascular surgery. This area of Neurosurgery is recognised as being at the most technically demanding end of the speciality attracting both the greatest benefits to patient with Neurosurgical pathology, but also associated with the greatest risks. 32 years is a long time to be in such a demanding specialty and Peter says fatigue is a recognised problem in this arena.
As a consequence, Peter had always expected to change direction in his mid to late fifties, though he never knew precisely what he would do thereon. As it happens, Peter’s enthusiasm for flying began to grow over the last 10 years or so, and says this project has given him an opportunity to engage in both his recreational passion, but also his historical interest in the Great World Wars.
Peter started flying as a medical student – handgliders – the poor man’s flying sport. He then moved to Scotland for three years during his junior Doctors career and flew in the Scottish Hangliding league over that period. This hobby then progressed to Microlights, until he later became a Consultant. Peter says it was only because he bent the microlight in heavy grass and at the same time operated upon a local farmer whose son operated an aerodrome at Top Farm near Sandy, that the opportunity to fly fixed wing presented itself.
Upon transferring to fixed wing aircraft, he soon bought his first aeroplane, which was a 1946 Luscombe Silvaire, an aeroplane which looks very similar to the Spiriti of St. Louis, the first craft to cross the Atlantic! After flying the Luscombe for a few years, Peter then moved up to a Pitts Special, the aircraft he now owns; an aerobatic biplane which demands a lot of flying attention. Having flown this for five years, Peter says he can finally say he now knows how to fly an aeroplane mindful of all three dimensions. He has recently returned from North Carolina having completed a WAR Bird Conversion course flying the American Harvard T6 Military trainer which will continue at Duxford in readiness for the Hurricane completion date.
The opportunity of becoming involved in a Battle of Britain Warbird project came about fortuitously following a telephone conversation between Peter and Tony Ditheridge of Hawker Restoration Ltd. Tony, traditionally a tool maker, setup the Company on the back of his historical Car restoration business, using the same skills applied to aeroplane. He tooled himself up, and has had a hand in restoring the majority of the 11 or so Hurricane flying today. He had kept back a special project for himself, a Mark I Battle of Britain serving Hurricane (V7497), out of Kenley Aerodrome (Squadron 501), which was shot down over Kent on 29th September 1940, having only been in service since the 24th September; a fairly standard duration for fighters at the height of the battle.
Tony was hoping to fly the aircraft himself but, following a flying accident, time was no longer on his side, and so he decided to canvass a partner – Peter J Kirkpatrick.
Peter has now been observing the evolution of the build over the past 18 months, an experience he describes as a true privilege. The engineering skills required to put a hurricane together are immense – they could not have made the engineering more complex if they had tried. Indeed, the engineering techniques are so complex that few restorers worldwide can renovate Hurricanes. Over a million individual parts are involved! Peter says that bearing in mind the aircraft, in concept, was on the drawing board in the early 1930’s, only 12 years after the end of the 1st World War, the pace of industrial evolution with respect to aviation is second to none.
Peter’s current ambition is to therefore honour those who put the Hurricane design project together, those who built the aircraft, and of course those who flew in them, many of whom lost their lives. Peter and the team have a tribute website to the 501 Squadron, a representative of all BoB pilots, which you can view at hurricane501.co.uk.
Ambitiously, Peter would like to see this project complete by next year, in order to fly V7497, and hold the control stick directly after Flying Officer Roger’s final flight!
Currently, Peter is responsible for half the project, with Hawker restoration owing the other half. As you’ll expect these projects are not cheap, and the rebuild cost of circa 2 million, in Peter’s view, belies the30 thousand hours required to construct her even before one starts to consider the cost of the hardware. He says many items have to be made in a bespoke fashion, one offs, and this is expensive. For example eight replica Browning machine guns have been manufactured to fit into the wings, providing authenticity for what was a fighter aeroplane. Unfortunately, by law, the restoration project is not allowed to fit genuine guns.
V7497, when complete, will undergo test flying before going to its rightful home at the Imperial War Museum in Duxford, originally a war time Hurricane base. There, the aircraft will be viewed by hundreds of thousands of members of the public, flown in displays, and at special events. For example, as a medical officer for the Newmarket race course, Peter says they are aiming to display V7497 at their key events, including landing and taxing up the race course at the conclusion of the race day.
As Peter is currently responsible for a 50% share in partnership with HR, he has formed a company called Hurricane Restoration Ltd. However, he does wish to involve other parties, possibly no more than four (ideally three part ownership with himself & HR) with an equal share of the total rebuild cost (circa £2 million).
The other flying Mark I Hurricane has changed hands for £2.4 million. However, this particular aircraft is somewhat aged and needs a considerable amount spending on her to keep her airworthy. The last Mark I Spitfire sold for 3.1 million, and as Peter says, is a far easier aircraft to construct.
This project will result in a zero timed aircraft with guarantees, and very little will be expected to require attention for many years to come. The Merlin engine will be slightly modified with different engine block and a pre-start oiler to increase the life from 300 to 600 hours before an overhaul is required – i.e. probably 15-20 years’ worth of action! This is the current state of play; the wings being the next build project whilst the engine is under renovation.
Another aim for the project now is to help offset the running costs of circa 70Kpa, most of which is insurance. An insurance sponsor (circa 40K pa) and/or an aviation fuel sponsor (circa 20K pa) would represent a massive gain for securing the serviceability of V7497. We will have free hangarage at Duxford due to an internal arrangement. “Indeed it will place amongst the elite collection – the Battle of Britain collection alongside a rare Mark I Spitfire and (non-flying) Me109 what a tribute!” says Peter.
In terms of the business side of the project, the first comments are in relation to the asset – the aircraft itself. The Mark 2’s (significantly less historical value) were going for around 850K in 1997, and now sell just under 2.5 million, a capital gain of 15% per annum, from which running costs need to be deducted. However, air display revenue usually covers the yearly costs including hangar, insurance and servicing costs.
As Hawker does eventually want to sell their half of V7947 to a suitable individual/organisation, funding also remains a concern in the longer term. For those who are mindful of the investment side of things, the rate of capital appreciation from the late 1990s has been around 15% per annum. In addition, like classic cars, these historical aircraft now attract EIS relief, and after three years they are capital gain free. This is the government’s contribution to supporting British projects of importance from the heritage standpoint. However, Peter and the team do emphasise that they wish to operate the aeroplane for several years for the reasons stated above, rather than looking towards a quick investment return.
According to Peter, a second, and potentially very exciting line of revenue, is in relation to merchandise. The team is also building up a number of merchandise items for selling on the website, and through Duxford, for the same purpose. Many of these items will have significant educational value. Duxford provides an excellent opportunity for the public to remember how important this aeroplane was, the plane which literally saved the world. Many school trips come to Duxford, and Peter’s project hopes to extend such educational value into the schools themselves. “This aeroplane should never be forgotten,” he tells Lawyer Monthly.
Peter believes that if the aeroplane is branded via the educational media, identifying the Hurricane as the dominant machine which saved us in the critical six month period of the BoB, then the aeroplane could become more of a house hold identity from which merchandise can be generated under the umbrella of the restoration program. The team has prototypes in place for clothing, leather garments and ornaments which capture the period.
The type of investor required is one looking at the longer capital gain, and the revenue side. This is not a short term investment, and for that reason any individuals will need to embrace the history of the project, engage in the merchandise side of the project, and enjoy the production and display aspects of such an important piece of British engineering. Although this project is eligible for EIS relief, we view the project in the longer term as one which is set to rebuild the past, for the future generations to enjoy.
For those who have experienced a spark of joy at reading about this project, and wish to be involved and share in the cultural and educational reward this restoration will bring to life, you can answer the call by contact Peter and his team via the below information.
For any medicolegal enquiries please contact the secretariat at Nuffield Hospital Cambridge on 01223 370914.
Moving on to the topic of valuations and chartered surveying, here Campbell D Ferguson, FRICS, the Director of Survey Spain, a firm that has been carrying out valuations throughout Spain for the last 13+ years, discusses the valuation considerations expert witnesses have to make in the specialised field of chartered surveying.
What is the role of an expert witness in property valuation in Spain?
To provide clients with professionally qualified valuation reports according to CPR 35/FPR 25 statements, as they would expect to receive in the UK.
What kind of legal cases are you commonly appointed for?
Most are as sole joint expert witness in matrimonial proceedings for UK Courts. Others relate to residential and commercial properties, in relation to actions by the NCA, local Government and HMRC.
In your years of experience, how have you seen this expert witness field evolve?
Increased realisation that there are RICS Valuers resident and working in Spain.
How does Survey Spain ensure its expert witness analysis are thorough, fast and of the best standard?
Compliance with RICS regulations and ethical and professionally conscientious work.
What would you say makes Survey Spain the go-to expert witness in this field?
We have the necessary Expert Witness qualifications and experience and a team of British trained RICS Valuers with many years’ experience living and working in Spain, reporting in English.
How does the work of RICS Valuers in Spain differ from those in the UK?
In UK, it's possible to get the recent registered sale prices for specific properties off the Internet. There are thousands of surveyors, so their particular 'patch' is usually quite small. Spain is substantially larger and less densely populated than the UK. Accordingly, valuers usually have to travel substantial distances and times to inspect a property that may have a reduced value because of its remoteness.
In Spain, the registry information is not publicly available and even if it was, unfortunately, it could not be relied upon as being accurate. Many properties are adapted, some legally and others without permission and these alterations may not be registered on the title description. Historically, many total price submissions are incorrect. Money laundering laws have made the situation more regulated and accurate.
RICS valuers in Spain work in the same way as their UK colleagues in comparing properties. Due to the lack of reliable sales evidence, the values have to be calculated by comparison with those currently being marketed. The valuer has to have skill and experience in order to choose appropriate comparisons (especially as agents and owner sales information can vary considerably in its accuracy, due to accident, laziness, naivety or sometimes deliberate exaggeration), and then adjust those prices to allow for the strength of the market. Survey Spain prepares a quarterly report which analyses the discount from asking price to actual sale price, which is the vital element for both valuers and buyers.
As RICS valuers in Spain, we have gained a detailed knowledge of how things work and to develop the 'art' of judging information as to its accuracy and reliability. We have to gather many more comparisons than our UK colleagues and research those in more detail in order to gauge what the average prudent person would pay for a particular property. In judging the 'prudent' person, we have also to take into account that the sellers and potential buyers may be going or coming from a radically differently performing economy and currency than Spain's and the euro. That alone can make some sellers more prepared to drop their prices below the 'market' level or buyers be willing to offer more in order to make sure of a purchase.
Looking at thought leadership in-house, this month we hear from Emily O’Neill, the Head Counsel of IP & Litigation at Spectris plc. Having established the IP function, we ask Emily about her role and some of the challenges she sees the IP sector faces worldwide.
What kind of IP matters do you work on at Spectris?
My team works across the entire IP lifecycle, from promoting innovation e.g. developing an inventor compensation scheme to using our analytics tools to consider and improve patent quality to discussing pruning of patent portfolios as products approach end of life. I have developed a holistic IP strategy recognising that IP in inventions, brand and valuable IP information, provide our products with competitive advantage.
We are seeing a shift in focus from patents to brands and valuable IP information as our operating companies increasingly offer overall solutions to their customers comprising equipment as well as technical consultancy. Following new Trade Secrets legislation in the US and Europe, we have developed strategy to implement “reasonable measures” to safeguard valuable IP information. Having identified employees as the highest risk of leakage we developed tools and agreements to implement safeguards from joiners to leavers.
How do you manage this over the over 30 countries Spectris operates in?
I set policy, provide guidance and training and then audit alongside our internal audit division to identify areas of development. In setting policy, I take a law agnostic approach, identifying the legal principles to provide clear parameters as well as guidance for our IP managers. They are the front line in developing and safeguarding our intellectual property. This year we are focusing on applying Lean principles in standardising process to help our operating companies maintain high IP management performance.
What is currently the biggest difficulty you believe the international IP landscape faces? Do you envision any solutions?
In my view the biggest challenge is a perception that IP stifles rather than drives innovation. This makes sustaining a focus on creating and maintaining high quality IPRs difficult. Headlines which report record damages for patent infringement or the increase in litigation and cost to operating businesses of non-practising entities enforcing weak patents reinforces this perception. In addition, recent decisions of Supreme Courts of patents having a “chilling effect” on research and innovation and overturning decisions of more specialised first instance and intermediate Courts[1] is adding to this negativity. Finally, the increasing impact of Millennials in the workplace and their differing values around sharing of intellectual property will drive further challenge.
I think the antidote is to focus on value and how IP can be used not only to safeguard innovative and creative work but as security for finance. This is particularly valuable for funding in organisations with low fixed assets to use as collateral. Of course, there are recognised structural issues to overcome in using IP as security for lending, such as the difficulty in valuing patents, as well as the lack of mature IP marketplaces for lenders to realise value in the event of default. However, there is increasing interest in leveraging value from IP in this way.
Are there further developments you would like to see in IP, and as a thought leader, how are you working towards developing said change?
Going forward, I would like to see more streamlining and harmonisation of international enforcement. I am Co-Chair of the Enforcement Standing Committee of the AIPPI. Earlier this year we responded to the European Commission’s consultation on the IP Enforcement Directive. The consultation’s aim was the evaluation and modernisation of IP enforcement in the digital age where infringers can be located in a number of jurisdictions.
