Understand Your Rights. Solve Your Legal Problems
Giving us a brief overlook of its thought leadership in the aviation industry, Stelios Stylianou, Senior Partner of Stylianou & Stylianou, a Greek law firm, here talks to Lawyer Monthly about the principal engagements the firm has been involved over the past 40 years. He also outlines the challenges of this predominantly international business and legal sector, as well as detailing the legislative milestones this industry has seen in recent years.
What are the most common aviation legal matters you deal with?
My firm has been acting for major airlines and aviation insurers in all fields of aviation law and particularly air accidents, passenger and cargo claims, litigation of aviation disputes, settlement negotiations, regulatory matters and commercial and finance transactions.
Among other matters, the firm has been involved in litigation and settlement negotiations in respect of claims arising from: the Swissair accident at Athens airport (1979); the EgyptAir aircraft hijacking on a flight from Athens (1985); the Olympic Airways accident at Samos Island (1989); the Greek Dassault Falcon 900 accident near Bucharest (1999); the EKAB/Helitalia helicopter accidents (2001 and 2002); the fatal air accident of Helios B737-300 near Athens (14th August 2005); the fatal accident of a Greek Army Chinook helicopter (11th September 2004); the crash of an Olympic Aviation Schweizer helicopter near Athens (22nd April 2008); the crash of a Bell 206B helicopter in the area of Crete Island (5th August 2010), the crash of an Apache military helicopter near Athens (30th July 2010) and the Tatarstan Airlines accident of B737-53A in Kazan, Russia on 17th November 2013.
What challenges do these present and how complex can these issues become?
Dealing with the above matters is a great challenge. The issues that may be faced often prove to be complicated and need careful consideration and diplomatic handling.
Are there commercial factors/market conditions that often fuel competition disputes in the aviation industry?
Competition in the air carriage field is very high indeed, and it becomes more intensive as a result of the development of low cost airlines.
Given the international nature of the aviation industry what are the difficulties of working on cases across multiple jurisdictions? How do you overcome these?
Given the international nature of the aviation industry, cooperation with expert professionals internationally is absolutely necessary for the purpose of discussing and sorting out the various issues that often arise and are subject to different jurisdictions. This close cooperation with distinguished colleagues practising in the corresponding jurisdictions is very challenging indeed.
You have lawyered in this segment since 1971; what would you say have been the legal milestones in the aviation industry over the years?
I would say that the ‘open skies’ agreement between European Union and the United States some years ago has been the most remarkable milestone in the aviation industry.
You previously worked as assistant judge at the Court of Piraeus for 20 months; how did this contribute towards your thought leadership in this legal segment?
My experience as assistant Judge was of great help to me as I was given the opportunity to see, from the inside, how Courts work, and more importantly how Judges approach each case they are charged to consider and decide on.
Over the years, the Tax Court in Mexico has undergone some changes; we speak to the Head of the Tax Litigation practice at SMPS Legal, Cristian Solis, who gives insight into the noticeable changes, tax disputes in Mexico and how to avoid litigation.
What would you say has been the biggest development to affect your work in tax litigation in Mexico over the last few years?
There have been several changes in recent years that deserve notice. The Tax Court has made strides in eliminating procedural traps and making the process of challenging the tax authorities’ resolutions more accessible, shortening the different procedural deadlines (which results in shorter cases) and implementing an expedited trial, as well as an option to file and follow the case online.
All the previous developments have benefited taxpayers and regained their trust in the justice system. Moreover, the creation of the General Taxpayers’ Attorney (Procuraduría de la Defensa del Contribuyente) has generated new and efficient ways to resolve differences with the tax authorities. Nevertheless, there is also bad news; the actual incarnation of the Mexican Supreme Court of Justice on the most part has turned its back on taxpayers and is more interested in favouring the Mexican Treasury, even if it results in contradicting or overriding previous legal precedents.
What do you find are the most disputed tax matters you deal with?
In recent years, the Mexican Treasury has initiated a very aggressive collection programme that involves goals that seem unsustainable. That resulted in an increase in audit procedures related with federal taxes and a change in the auditor’s approach. Since the performance of the auditors is linked to the tax assessments they impose, taxpayers are being levied with taxes that do not relate with the reality of the operation. That situation has triggered an increase in controversies, as well as an awareness from the taxpayers of the need to be advised during the audit procedure to avoid possible contingencies.
Who are the clients you regularly advise in regards to litigation?
Even though SMPS Legal is a boutique we are specialized and highly knowledgeable in a wide range of areas (e.g. tax, corporate, real estate, energy, M&A), therefore we have a broad spectre of clients that provide unique challenges. We have assisted clients involved in the food industry in recovering considerable amounts of value added tax, clients from the automotive industry in challenging tax assessments involving rejection of royalty payments, clients that have suffered seizures of assets resulting from foreign trade audits, etc. Even though some cases might appear similar, each and every one has its complications.
How do you help your clients best avoid litigation, in your tax consultancy work?
Being able to understand not only the tax implications of the operations that my clients are undertaking, but also the possible contingencies and the expected result if a litigation is needed, helps me in providing the best possible advice so that my clients can avoid any unnecessary contingencies.
I believe that in every situation ignorance leads to mistakes. Therefore, having an overview of the possible scenarios (including even those that could result in litigation and the probable outcome) is the best option when looking for the right decision.
If you had the power, would you change any Mexican tax or litigation regulations to facilitate your work in this segment?
Based on the new attitude we are seeing from the tax authorities, where they are more interested in imposing tax assessments than in investigating the truth behind the operation and whether the treasury suffered any harm, I would change the provisions that regulate the audit procedures. This would limit the auditor’s capacity to request inordinate amounts of information and to include a procedure involving a third party (possibly the General Taxpayers’ Attorney), that could determine whether the information requested by the tax authorities is needed and if the taxpayers are required to have it and provide it in the way it was requested, as in many cases, the tax authorities are requesting work papers and integrations that the taxpayer clearly does not need.
At the beginning of the year, research showed that economic crime has risen from between three to four billion euros per year in Portugal; with the year ending, we ask whether legislation is doing enough to curb this figure. Now with recent regulations applied by the Foreign Tax Compliance Act to administrate cooperation between the US and Portugal, Miguel dos Santos Pereira, Founding Partner of SPASS - Santos Pereira & Associados - Sociedade de Advogados, SP, gives us great insight into the developments of the Portuguese justice system, how they achieve the best outcomes for their clients and representing for white collar crimes.
What criminal law segments would you say you are most involved in? What motivated you to embark upon a career focused on this practice area?
White collar crime cases, as at the beginning of my studies there were some films that made me want to be a defence lawyer. In practice, I understand that criminal lawyers fight for human rights and can make a real difference in people’s lives. What more could a lawyer want?
What are the most recent regulatory developments surrounding civil crimes and related to criminal law in Portugal?
At the moment, there are several mandatory rules and regulations coming from both national and international laws. To avoid, for example, tax evasion there is the decree law n. º 64/2016, of 11th of October, about Foreign Account Tax Compliance Act (FATCA). It generally requires that foreign financial institutions and certain other non-financial foreign entities report on the foreign assets held by their U.S. account holders, or be subject to withholding on withhold able payments.
What are currently the biggest obstacles pertaining to criminal conviction and litigation therein in Portugal / globally, and as a thought leader, what solutions do you envision?
One of the biggest problems is the sentences based on court conviction without real proofs. That sometimes happens because the case is in the news and gets a "public sentence" or the Judge has heard too much about the investigation out of court, or even because the accused is a public and thus exposed person.
In Portugal, it´s time for Public Prosecutors to come out of the court building and stop socialising in the halls and offices and having lunch with Judges; they are human and talking about anything can easily lead to comments about the cases. We should adopt the Anglo-Saxon criminal law system in this aspect.
In any way, a country cannot be sure that the economic criminal cases are being performed according to the presumption of innocence and with the guarantees and rights of a due process.
As a partner at a boutique law firm like SPASS, how difficult can it be to assure your clients of the best quality and outcome in your work?
Fortunately, I have the honor to work with a fantastic team, they have huge technical skills, work capacity, great responsibility and a wonderful team spirit. These aspects make things work very well.
In fact, we all have passion on what we do, which makes the team to ensure total dedication, availability and support towards the Client.
How are you currently working to change the Portuguese criminal law landscape and develop or implement new measures in the country’s law?
I try to do my best in all cases that we have and, in the past, I was a member of the Work Meeting with the OECD Evaluation Team, at OECD invitation, regarding Portugal’s evaluation process within the context of the OECD Convention against the corruption of Foreigner Public Agents, but I believe Portugal has enough legislation to prevent economic crime. The improvement may come from more accurate supervision, more legal advisory and more control in capital movements.
As referred in the above paragraphs, the change of paradigm that I think Portugal needs is adopting the Anglo-Saxon system of Public Prosecutors outside of court buildings and I have written a few things about that.
As a thought leader, how are you reinventing strategies and developing new ways of working in this segment, for the benefit of your clients?
Acting on white-collar crimes it is very important to be tested in criminal matters, but also in tax, financial, commercial and corporate law, you can work with multidisciplinary teams; you should do it but you need to be well prepared. See the entire picture, dominate the court room, be one step ahead of everybody, and don´t underestimate anybody, learn every day and study the law and the cases as much as you can.
Memory is also a great feature for a barrister. Although not everybody admits that you learn a lot seeing other colleagues’ court room performances. Doing sports, dance, mindfulness or yoga can be good for your body and soul and it helps you to have more focus. All of this you can practice, and you can stimulate your team to do the same.
Business integrity and commitment to obey the law are key values due to required diligence procedures by our corporate/commercial clients.
Settling and working with our clients on an integrated mindset for the important areas, like Commercial, Labour, Tax and Contracts, help us and our clients to prevent several problems, but also if problems are evident, we can quickly solve them because we can see the big picture since we know our clients by maintaining day-to-day contact.
Details matter and SPASS works for and with their clients along the way.
Is there anything else you would like to add?
Working prepares you for the challenges of current criminal law practice, but besides that we believe that excellence and service can live hand in hand with reverence and fun and there is nothing better than doing your job with passion and be the best as you can be.
Do you have a mantra or motto you live by when it comes to helping your clients?
Life is a work in progress, enjoy it!
What motivates you most about your role?
Making a real difference in people’s life.
What do you want to achieve in 2017?
Better justice.
Roderick I’Anson Banks of Partnership Counsel in the UK here talks to Lawyer Monthly about his in-depth experience and practice in partnership and LLP law, particularly as regards disputes and the challenges and benefits of ADR, which he says, is definitely preferable to litigation, in almost any scenario.
What is involved in your work pertaining to partnerships and the disputes therein?
One thing to mention is that I don’t deal just in disputes, although that comprises the majority of what I do.
My practice falls into two distinct areas: partnerships in the traditional sense, and LLPs (limited liability partnerships). The latter are confusingly not true partnerships, but more of a modern addition to the general partnership landscape. There are still a lot of traditional partnerships around, despite many converting to LLP status.
There is also a third, more specialised area still, limited partnerships, which are used in the investment field, hedge funds and so forth.
In disputes, I act either for an individual member of a partnership or LLP, or for the partnership or LLP itself when dealing with problems relating to an individual member. So I have to work on either side of the fence, and I know the various tricks that are likely to be played on both sides.
When I act for an individual partner in dispute with his/her firm, that will usually mean either that the firm is downsizing and the partner is being pushed out, or that the partner wishes to leave to go elsewhere, with his/her clients but does not want to serve the required notice period.
In cases where I represent the firm, it would in the same way involve managing partners out of the firm or trying to ensure stability when handling a partner trying to leave early with his/her clients; it’s often just two sides of the same coin.
Over the past 40 years or so I have also edited and re-written the benchmark book on partnership law, now titled ‘Lindley & Banks on Partnership’. It has been going since the 1800s, I have been editing it since the late 1970s, and in 1990 I carried out a substantial re-write when my name for the first time appeared in the title. I am currently working on a new edition, which comes out in 2017.
Who are the typical types of clients you deal with in this field? What challenges do they bring to your work?
In terms of routine partnership/LLP work, my main clients would be solicitors, accountants, and a selection of other professionals. On the other hand, with limited partnerships the clients will usually be corporate partners, hedge fund managers and similar; therefore a very different category of client there.
The real challenge often comes down to tactics and psychology between the parties; a lot of what I do when acting for individual partners who are feeling isolated involves listening, counselling, confidence building, script preparation. It is vital that the client enjoys the requisite degree of support in order to reduce stress levels, when it is one against the many.
What are the benefits of resorting to ADR methods in these cases?
Absolutely huge, in almost any dispute. If you are dealing with a dispute between an individual and his/her firm, or between two warring groups within a firm, it can be hugely damaging to rush off to court, particularly where there is no arbitration clause, which would allow parties to keep their dirty linen out of the public eye.
Mediation represents a very swift method of getting parties together in a way that enables an independent mediator to intercede between them, and, hopefully, avoid or minimise the worst grandstanding and temper tantrums that one sees when two parties try to deal with the issues between themselves.
Mediation is very valuable and relatively cheap, but it’s often difficult to get both sides to agree to pursue this course; that is the biggest challenge. Things have definitely improved over the last two to three years, as people are more aware of mediation and its benefits, and therefore more willing to mediate. There are, however, still solicitors and barristers who enter a mediation and treat it as if it were litigation, making speeches that are distinctly unhelpful. If you can get everyone into the right mindset, and equally important, get the right mediator, then you’re in business. Getting the wrong mediator, however, can be disastrous.
In what scenarios might litigation be the only resort for a partnership dispute?
Where it is (rarely) not capable of being mediated or where you’ve tried mediation and failed. I always prefer arbitration where litigation is required, as the parties have more control over the process and there is less formality.
One instance I am currently involved in concerns the disposal of valuable development land held by three members of a family in a farming partnership. The land was left to them by their father and they want to realise the land but can’t agree on how it should be done. Although there is still a hope it will settle, this is now heading to a hearing next year.
It is matter of a deep regret to me that there is still so much litigation in the partnership field. It suggests to me that the advisers have not made the efforts that they should do to get the parties together and settle. Nobody actually wins through litigation apart from the advisers.
As a thought leader in partnerships, what do you find are often the main motives behind disputes?
In the case of individual clients, motives will range from pure greed, a feeling that ‘the grass is greener somewhere else’, to desperation at the way the firm seems to be going. Particularly difficult is the partner who should have seen there was a problem coming but has put his head in the sand and ignored it.
If I am acting for the firm, the main aim is to maintain stability whilst getting rid of “dead wood” or underperforming partners, or managing the retirement of partners who want to leave in a controlled way.
Ultimately, however, the main driver behind partnership disputes is human nature. Human nature is a constant and partner behaviour follows distinct and identifiable patterns. Once I get into a dispute and I understand the characters involved, it is often easy to predict how they will react in any given circumstance. And that’s what I aim to do: to gear up the client for what is likely to happen next and enable them to second guess what might happen several steps down the line.
Can you talk LM through your experience as a CEDR accredited mediator? How does this help in your thought leadership in this field?
Though qualified, I tend only to act as an advisor to parties within mediations, and I personally think that if you go into a mediation with the right mindset and experience, you have a huge amount to contribute. It’s the client’s mediation, but you are there to provide calm counsel and advice, and ultimately, as and when a deal is done, I find that all parties usually turn to me and tell me to get on and draft the agreement, which has to be done there and then, often in the late evening or the middle of the night. I have to produce, very swiftly, a short but comprehensive agreement that the parties can understand and sign, which can prove very difficult when the parties (and their advisers) are getting tired and fraught towards the end of a mediation.
Do you have a mantra or motto you live by when it comes to helping your clients?
“Be Commercial, and look at the wider implications of a dispute.”
“Avoid litigation where it’s possible.”
“Take nothing for granted, and don’t assume the question the client is seeking is to have answered is the right one.”
“In dealings between a firm and a partner, trust no one.”
What motivates you most about your role?
The ability to innovate and, where possible, to steer the law in the direction I think it ought to go. Perhaps I am particularly well-placed to do this, given my authorship activities. People tend to regard me as the fount of all partnership knowledge.
Trying to do the impossible, and interacting with people, whether face to face or over the phone. Advice in this area is often intensely personal. You’re much better positioned to talk someone through a problem and steer them in the way they need to be steered sitting down with them rather than producing a dry written opinion.
What do you feel you couldn’t live without?
My family, action movies and crime fiction. The latter frees the brain to come up with novel solutions.
Though commonly mediation is an optional method of resolving disputes between litigious parties, in Hong Kong, attending mediation is highly encouraged in most civil proceedings. Over the next few pages, Sylvia Siu JP, a Consultant from Hong Kong’s Sit, Fung, Kwong & Shum (SFKS), delivers a thorough analysis of the East Asian nation’s judiciary system, how far mediation has come through the years, the ins and outs of how mediation is carried out, and of hers and the firm’s thought leadership in developing the use of this ADR method in the region.
Having been at the heart of dispute matters since the start of your career; how would you say that disputes have evolved globally over the past decade? Has it affected your practice?
In the early years of my career as a lawyer, I mainly dealt with resolving commercial, construction, land & family disputes. In most cases, these disputes led to long and bitter legal proceedings that had lasting and damaging effects on the relationship between the parties. Alternative dispute methods such as mediation were rarely used then.
The litigious adversarial approach has gradually diminished. Parties now place considerations on confidentiality and costs before deciding whether to litigate. The global trend has evolved, and alternative dispute resolution (mediation, adjudication and arbitration) is now preferred over litigation. My practice has shifted to include handling arbitration and mediation instead of merely litigation proceedings.
Mediation has grown in popularity in recent years – how in particular would you say its use has changed in disputes throughout East Asia?
Mediation has definitely grown in popularity, throughout East Asia and not only in common law jurisdictions. In fact, the practise of mediation has been around for a long time in China. Two sayings can illustrate the Chinese preferred approach to dispute resolution.
One: “生不入官門 死不入地獄,” which can be translated as, “One would not go to court when one is alive, just as one would not want to go to hell when one dies.” Indeed, many who have gone through a long litigation process equate that experience with having gone to hell. The second is a popular Chinese idiom: “以和為貴,” meaning peace and harmony is of utmost value. The above saying and the idiom shed light on the Chinese mind-set and can explain why mediation is preferred over litigation in China and the Far East, and why the Western litigious culture is avoided, if possible. In the old days, disputes were often settled in China by referring the disputes to the local village elders, who would settle the disputes by local customs and laws of the locality. There were no enforcement issues as the parties would accept and abide by the elders’ decisions.
Nowadays, in Mainland China, parties are required to go through mediation before commencing court proceedings. Parties facing disputes can either go to ‘People’s Mediators’ or have specialized mediation judges conduct pre-litigation mediation. I was extremely honoured to have been invited to share the Western mediation skills and practice at the National Judges College in Beijing with judges from all over China attending. It is worth noting that judges who are assigned to perform the task of mediation will be barred from hearing the same disputes. A note: Mainland Chinese Judges tend to use evaluative style mediation contrasted with the facilitative style mediation generally practiced in Hong Kong.
You were one of the first to set up the Hong Kong Mediation Centre back in 2000, can you tell LM why?
I took the Advanced Mediation Course in 1999 when it was first offered in Hong Kong by the Accord Group from Australia. After taking the five day course, I was convinced that mediation should be the best way forward to resolve most civil disputes. Together with two friends who shared the same vision, we founded the Hong Kong Mediation Centre (HKMC) in 1999. We were the first to offer the mediation courses in our local dialect - Cantonese.
In 2007, I represented HKMC at the Inaugural 1st Conference of Asian Mediation Association (AMA) in Singapore. HKMC together with the Singaporean Mediation Centre, the Malaysian Mediation Centre, the Indonesian Mediation Centre and the Philippine Mediation Centre founded the AMA with the aim of providing the infrastructure for conflict management and dispute resolution for disputes in Asia. The AMA represented an unprecedented grouping of mediation centres in Asia, with combined resources of diverse and dissimilar cultures, providing access to a wide range of dispute resolution and conflict management services across jurisdictions. AMA saw the need to facilitate resolution of cross-border and / or cross-cultural business and commercial disputes by mediation.
The 2nd & 3rd AMA Conference were hosted by the Malaysian Mediation Center in Kuala Lumpur & HKMC in Hong Kong in 2011 and 2014 respectively. By the time of the 4th AMA Conference (the Conference) hosted by China Council for Promotion of International Trade (CCPIT) in Beijing in October 2016, membership of AMA expanded with mediation centres from Bahrain, Delhi, Fiji, India, Japan & Thailand. Over 300 mediators from Asia, Europe, Russia, Canada, USA attended the Conference which offered an excellent platform for attending mediators to share experience.
Could you tell LM about the legal infrastructure in support of mediation in Hong Kong?
In Hong Kong, mediation is now an integral step to the legal process. All litigation lawyers are required to inform clients of the option and desirability of resolving disputes by mediation. Although mediation was introduced as a voluntary process by Practice Direction 31 issued by the Judiciary, it is mandatory for all litigation lawyers to inform clients of the option and desirability of resolving disputes by mediation. Parties who refuse to or do not attempt mediation without good cause may be penalized with costs sanctions. Various other practice directions have since been issued by the Judiciary for different types of civil proceedings, such as Family, Personal Injuries, Employees’ Compensation, Probate and Administration of Estate and Compulsory Sale under the Land Ordinance. Additionally, the Mediation Coordinator’s Office has been set up at the High Court by the Judiciary to enable and assist the general public with the mediation process by providing them with informative videos and reading materials. The Joint Mediation Helpline Office located right next door helps interested parties to find mediators with suitable and appropriate prior experience in all areas of dispute.
To promote a culture of best practice and professionalism in mediation, the Hong Kong Mediation Accreditation Association Limited (HKMAAL) was established in 2012. It is tasked to set standards and accredit mediators, supervisors, assessors, trainers, coaches & other professionals involved in mediation in Hong Kong upon passing the assessments.
Mediation is now conducted in Hong Kong by trained mediators in a structured process, consistent with the preferred facilitative approach. The Mediation Ordinance has been enacted in 2013, to define amongst other matters the scope of confidentiality: mediators and parties to mediation are required to keep confidential all information generated in the course of mediation, save for the limited exceptions listed in the Ordinance. Parties are prohibited from submitting documents obtained during the mediation process as evidence in subsequent proceedings should settlement fail.
Besides being a quick and cost-effective solution to disputes, what would you say are the other benefits for companies in choosing this method of ADR?
In choosing mediation, the potential benefits are, to name a few:
How is mediation conducted in Hong Kong nowadays?
Nowadays, mediation is conducted in a much more structured way; mediators are trained and accredited. The mediator, an independent third party would facilitate the mediation process, with private session and joint sessions, and would observe confidentiality and use of mediation skills such as reframing, BATNA & WATNA, various questioning techniques.
How did mediation in Hong Kong become vibrant so quickly?
I remember fondly the speech given by the then Chief Justice Mr. Andrew Li SC at the Commencement of Legal Year in 2008, in which he said that mediation is complementary to litigation, and its promotion is plainly in the public interest. For the parties, it means reduction in stress, saving of time and costs, satisfactory resolution; for society, economic and social benefits, alleviating conflict and achieving harmony. Such benefits are increasingly recognized in Hong Kong. Its promotion is a matter of Government policy and legal aid funds should be available.
He thought then that we would have a long way to go before mediation reaches a state of maturity but he recognized that momentum was gathering pace.
Chief Justice Mr Andrew Li SC did not then anticipate that within 10 years from his speech, the mediation scene in Hong Kong would be so vibrant. Of course, much has been done by the Judiciary, Department of Justice, the stakeholders in mediation as well as the Hong Kong Government to promote mediation.
The Judiciary set up a Working Party on Mediation in 2006 chaired by the Hon. Mr Justice Johnson Lam , with members made up of representatives from the Law Society, Bar Association, Consumer Council , Legal Aide Department, Hong Kong International Arbitration Centre, HKMC and judges. The Working Party aimed to consider how consensual mediation of civil disputes in High Court, District Court and Lands Tribunal may be facilitated.
The Department of Justice set up a Mediation Steering Committee with membership consisting of the Secretary for Justice (as Chair) and members from representatives of the Judiciary, HKMC, Law Society, Bar Association, Law Schools, Legal Aid Department, Hong Kong International Arbitration Centre & major mediation stakeholders.
Mediation Conferences are organized annually by the Department of Justice to educate the general public of the advantages in resolving disputes by mediation in appropriate cases. Hong Kong’s Government also promotes mediation by providing free venues for mediation.
Would you say mediation suits certain types of dispute more than others? What types of disputes are more suitable to be resolved via this method? Why?
I believe that mediation suits most civil cases, particularly where there is an element of human relationships in matters such as family, probate, or shareholder disputes. In addition, commercial cases are often suitable where parties want to have a cost effective and speedy resolution.
Mediation is a neutral process involving an unbiased mediator, allowing the matters to be kept confidential, and both parties can appoint and approve the mediator giving both parties a sense of control over the outcome.
Is there any legislation Hong Kong is working towards implementing or exploring further in the realm of mediation?
Yes, there is a consultation paper on the enactment of Apology Legislation in Hong Kong, I strongly believe that it would be conducive to the success of mediation if one party could say the magic words “I am sorry,” without the fear that it will be taken as evidence in future litigation.
How are you currently working to progress the adoption of mediation as an ADR method in East Asia?
Working with different organisations in East Asia in promoting mediation as an alternative dispute resolution method has been rewarding. My involvement has been diverse: Vice Chair of the Guangzhou, Hong Kong; Macao Mediation Alliance; the Alternative Dispute Resolution chair of the Hong Kong Federation of Women Lawyers; the Vice Chair of Nansha International Arbitration Centre in Nansha District, Guangzhou, PRC; and the Founder of the Hong Kong Mediation Centre which is founding member of Asian Mediation Association. Holding various positions has enabled me to broaden my knowledge, deepen my belief that mediation can bring benefits to a wide variety of disputes, thus equipping me to meaningfully and passionately share and promote mediation.
I was also honoured to be the Asian representative at the World Mediation Forum, lectured at National Judges College in Beijing, Dongguan Court, Tsinghua University etc, and have spoken at many international conferences relating to mediation.
Being involved in different jurisdictions has exposed me to various cultures and local customs. Despite the differences, there is always one thing in common between the countries in the East Asian region - in most cases involving mediation, the parties want to actively solve the problem together; and that bodes well for the future of mediation.
Asia is undergoing constant development to improve its economy and international relations and with expanding connections, dispute resolution, mediation and arbitration are everpresent and increasingly necessary. Nozomu Ohara is the Managing Partner of Ohara Law with years experience in ADR and dispute resolution. He speaks to us about how arbitration in Asia has grown and what is yet to be done. He gives valuable insight into past cases, effective leadership and the benefits of ADR methods.
As a dispute resolution expert, what trends have you noticed in terms of methods of dispute resolution over the last few years throughout Asia and Japan?
As the South-East Asian economic market has been expanding recently, the number of disputes has also been on the rise. Under these circumstances, South-East Asian countries, especially Hong Kong, Singapore, South Korea, Malaysia and India, as stated below, have been making efforts aimed at marketing their countries as dispute resolution centres in South-East Asia and enhancing their own ADR organisations to increase the number of accepted cases.
First, Hong Kong, from the time it was an English colony, has acted as a financial centre for Asia and in order to provide measures to resolve disputes through arbitration in 1985, Hong Kong established the Hong Kong International Arbitration Center (HKIAC) and reformed its arbitration infrastructure. As a result, it has served for many years as the central arbitration hub for Asia.
However, in response to Singapore’s recent rise in prominence, in order to further improve Hong Kong’s ADR, in 2017 Hong Kong plans to open a new arbitration centre that is open not only to HKIAC but also to arbitration institutions and arbitration focused law firms from around the world.
In order to realise the goal of making Singapore a world-wide arbitration hub, Singapore has put efforts into becoming the centre of Asian international dispute resolution. In 1990, the Singapore International Arbitration Center (SIAC) was established and in order to promote this new institution, Maxwell Chambers, the world’s first combined international dispute resolution centre, was opened in 2009. The major European and American arbitration institutions, including the ICC, AAA and ICDR, hold offices at this centre along with the world’s leading arbitration focused law firms.
In Korea, the Korean Commercial Arbitration Board was established in 1966 and took its current name in 1980, but it has recently started to approach the current global standard. In 2013, the Seoul International Dispute Resolution Center (SIDRC) was opened in a prime location in Seoul and it has become much more convenient to arbitrate in Seoul. SIDRC has established cooperative agreements with the AAA, HKIAC, ICC, LCIA and SIAC among others, and both the government and private sector have worked hard to make Seoul an inviting location for arbitration and to promote arbitration in Seoul.
The Kuala Lumpur Regional Center for Arbitration (KLRCA) was established in Malaysia in 1978 and in 2014 the former Sharia court building was completely renovated into a dispute resolution centre. The centre has 19 hearing rooms and 22 preparation rooms along with offices for the PCA, CIArb and ADR focused law firms.
The Indian Council of Arbitration was established in 1965 and an international alternative dispute resolution centre was opened in Delhi in 2008, but presently many Indian disputes are still being resolved in Singapore. Therefore, in order to make India a major hub for international trade dispute resolution in Asia, in 2016 the Mumbai Centre for International Arbitration (MCIA) was opened in Mumbai. Currently, around 20% of the international arbitration cases heard at SIAC involve at least one Indian party but India is hoping to have these cases heard at the MCIA in the future.
In Japan, an international arbitration organisation for international commercial dispute resolution was set up in 1950 as the International Commercial Arbitration Committee of the Japan Chamber of Commerce and Industry. Thereafter, it became independent in 1953 and was reorganised several times, including on April 1st 2009 with its current name: The Japan Commercial Arbitration Association (JCAA). Its main operations are arbitration, ADR, advertisement, organising seminars, ATA Carnet and SCC Carnet.
However, the number of international arbitration proceedings have been no more than between eleven and twenty-seven arbitrations per year over the ten-year period between 2005 and 2014. When compared with the number of arbitrations in other countries, this figure is significantly low. Considering the gap in economic power with South-East Asian countries where international arbitration is active as described above, such number of cases cannot be said to be enough for Japan’s international dispute resolution organisation.
Under the current situation, most of the international commercial disputes between Japanese companies and their related foreign companies would have to be solved in international dispute resolution organisations outside Japan.
JCAA’s offices are all small rented offices and they don’t have the latest equipment such as an arbitration courtroom or simultaneous interpretation booths as have been completed in foreign countries. Furthermore, without public financial support, maintenance expenses for such office are covered mainly by income from the Carnet operation. Income derived from management of arbitration proceedings provides only a small portion. Compared with the improvements in infrastructure recently promoted in South-East Asian countries, it can be said that Japan is extremely late to the game.
Over the past 20 years, as a thought leader, how have you pushed for the growth of ADR methods in Japan, and what has been the impact?
The move toward promotion of international arbitration in Japan can be said to have started through foreign pressure in relation to the practice of law by foreign lawyers in Japan. Japan enacted the Special Measures Law concerning the Handling of Legal Services by Foreign Lawyers (Foreign Lawyers Law) in 1986 to admit foreign lawyers to practice in Japan within a certain scope (such scope being limited to home country laws and designated laws) if they register themselves with the Japanese bar associations and become a ‘Registered Foreign Lawyer’.
However, because arbitration awards have the same effect as a final judgment, it was interpreted under the Foreign Lawyers Law that foreign lawyers would be unable to represent a party in an international arbitration proceeding in Japan. Due to the above reason, under strong foreign pressure from jurisdictions such as the US and European Union, liberalisation of the market for rice and foreign lawyers has become a serious issue in Japanese diplomacy for a while.
Under such situation, the Japan Federation of Bar Associations (JFBA) and the Ministry of Justice have co-hosted ‘The International Arbitration Representative Study Group’ since June 1994. The Study Group published a report on 25th October, 1995 and recommended to allow foreign lawyers to represent a party in an international arbitration proceeding in Japan.
According to the proposal, Japan revised the Foreign Lawyers Law in 1996, allowing registered foreign lawyers in Japan to become representatives of a party in an international arbitration proceeding conducted in Japan. In addition, foreign lawyers who are not registered in Japan can also become a representative of a party regardless of the governing law in the dispute in the event that his/her client in his/her home country becomes a party to an international arbitration in Japan.
Furthermore, with regard to improvement of international arbitration, the ‘International Arbitration Study Group’ was set up, being co-hosted by the JFBA and the Ministry of Justice in December 1997 and released its report on 31st March 1999. The following proposal was eventually made in the report.
(1) Setting up of Liaison Council
In order to develop international arbitration system in Japan to a higher level and make our country into one of the hubs of international commercial dispute resolution in the world, it is necessary to promptly set up a cross-sectional organisation for the arbitration organisation to work with and cooperate with, which will be called the ‘Liaison Council’. Also, specific issues should be discussed and reviewed to bring into view future establishment of an ‘International Arbitration Center’ aimed to provide human and physical support to existing arbitration organisation in the above ‘Liaison Council’.
(2) Improvement of International Arbitration Legislation
In order to revitalise the international arbitration system in our country, we need to enact easier-to-use arbitration legislation in order to make international arbitration more accessible in Japan.
Based on the above proposal (1) of the Study Group, ‘The International Arbitration Liaison Council’ was launched in December 1999 with its members consisting of JFBA, a wide variety of arbitration organisation and concerned personnel of related ministries and agencies. The Council’s meetings were held on a regular schedule and strategies were discussed to develop Japan’s arbitration system. Furthermore, based on the above proposal (2), a new arbitration law was promulgated in August 2003. The new arbitration law is modelled on the UNCITRAL Model Law (1985). Moreover, the above-mentioned International Arbitration Liaison Council was developmentally dissolved in March 2003, and the Japan Association of Arbitrators (voluntary group) was newly set up on 16th October of the same year. Later, the association was incorporated on 5th December 2005 to become the Japan Association of Arbitrators (JAA). It later became a public interest incorporated association on 16th January 2014.
What do you believe is still required to further and speed up the expansion of ADR methods in Japanese disputes?
While Japan has the Japan Commercial Arbitration Association (JCAA), the number of arbitration cases resolved in Japan is very limited as stated above. Japan is said to be economically powerful and its gross domestic product (GDP) ranks third in the word as of 2014 next to the United States and China. However, infrastructure development for international trade disputes has been seriously delayed. This is because, although the Japanese government made a huge financial contribution to Japanese industrial development after World War II, it didn’t provide any support to international trade dispute resolution measures.
It has been more than sixteen years since the publication of the above-mentioned report from the International Arbitration Study Group in 1999 which recommended the “future establishment of an ‘International Arbitration Center’ aimed to support existing arbitration organisations through both personnel and material support.” In the meantime, similar ideas have been steadily turned into reality in South-East Asian countries.
Carrying out the above-mentioned proposal and establishing a ‘Japan International Arbitration Center’ (tentative name) by way of gaining financial support of government, local government and economic organisations like in South-East Asian countries to make Japan a hub of international arbitration resolution in South-East Asia has become an urgent matter.
First of all, establishing a centre like the ones in the above-mentioned countries, setting up of a permanent secretariat office with bilingual staff, collecting information regarding international dispute resolution methods, enhancing of facilities (including an arbitration courtroom, arbitrator waiting room, party waiting room) and equipment (including simultaneous interpreting, TV conference system and translation of material) are required. All the international ADR organisations in Japan, including the JCAA, should have access to them. Furthermore, increasing the number of international arbitration cases in Japan by way of disseminating information worldwide through advertising that Japan has personnel and the necessary facility with which to resolve international disputes in Japan, and developing cooperative relationship with counterpart organisations in foreign countries (proposing Japan as a neutral third party place for arbitration) are thought to be needed.
As the Vice-President of the Japan Association of Arbitrators, what actions/lobbying have you taken to implement this?
Since its establishment in 2003, the JAA has been conducting activities aimed at dissemination of information about arbitration and training of arbitrators. The Japan International Dispute Resolution Center establishment preparation committee was set up with in the JAA in 2015 and has started to encourage the authorities and organisations concerned to achieve creation of a dispute resolution centre before the Tokyo Olympic and Paralympic Games in 2020.
The JAA has been carrying on the following operations with the purpose of promoting dissemination of information regarding out-of-court dispute resolution (ADR) such as arbitration and mediation. Such measures include: (1) Training of arbitrators, mediators and any other arbitration and ADR related personnel through providing seminars; (2) study of arbitration laws, ADR related laws, actual practice and cross culture issues related to the development of dispute resolution; (3) promotion of liaison and cooperation with practitioners, scholars and ADR related personnel; (4) hosting workshops and lecture meetings; (5) management and operation of the website of the legal body; (6) publishing and distribution of a newsletter and other publications; (7) collection of domestic and overseas material in connection with arbitration, ADR and cross culture issues; (8) liaison and cooperation with domestic and overseas arbitration and ADR organizations; and (9) advertising activity for arbitration and ADR. The JAA is reviewing and carrying out measures to revitalise international arbitration system in Japan which were proposed in the above-mentioned international arbitration study group report.
In 2015, an establishment review meeting for the ‘Japan International Dispute Resolution Center’ was established by the JAA to review specific measures necessary for success. Furthermore, more activities with the same purpose have been conducted in the International Commercial and Investment Arbitration ADR Working Group of International Operation Promotion Center of the JFBA Legal Service Development Head Office.
What are the most common types of dispute you work with and which ADR methods suit certain cases best? Why do you think this is?
In case of disputes between parties of different countries, rather than resolving the dispute in the court of one party’s home country, arbitration with a binding award where neutral and private arbitrators render an award is the best method. Furthermore, it can be said that arbitration is better than a court judgment because the execution of arbitration awards is secured under the New York Convention.
What would you say are the three top benefits of alternative dispute resolution methods?
First of all, one of the benefits is that parties can select an arbitrator who is a neutral private judge by agreement. Secondly, as parties can decide their resolution method, such as applicable laws and rules, a more flexible procedure becomes possible. The third reason is that parties can decide the place of resolution and language through their agreement.
Can you detail a past case in which you applied particular thought leadership and concluded an ultimately creative and successful outcome?
I think that international trade disputes should be guided by three principles: 1) speed, 2) reasonable expense and 3) a good resolution. A recent problem for parties is that the expense for arbitration has been on the rise due to the rise in billable units of time charge for professionals’ fees. I think that an international arbitration case in 2015 (a dispute between a Japanese licensor and a Korean licensee) was resolved by settlement where all of the above conditions of 1), 2) and 3) were satisfied. In such regard, I believe that Med-Arb will become very important.
As a thought leader, do you see a need for any Japanese legislative changes that would facilitate dispute resolution in the country?
As stated above, in 2003 Japan enacted a new arbitration law modelled on the 1985 UNCITRAL Model law (1985). However, the UNCITRAL Model law was amended in 2006. As the Japanese arbitration law has not been amended for more than ten years, an amendment of the law is necessary to bring it closer to a more global standard considering the future international trends. Such amendment should include the introduction of systems such as emergency arbitrators and interim protective measures.
Are there any dispute directives in neighbouring countries that you like, and would see adopted in Japan?
I feel Singapore is gaining success in promoting its institutional reform for international dispute resolution aimed at catching up with and overtaking Hong Kong. I think that the institutional reform in Singapore, especially among South-East Asian countries, serves as a particularly useful model for Japan. However, Korean SIDRC is also a good model for a future Japanese centre because it offers space and facilities for various ADR organisations. Japan is considering a similar type of organisation.
Do you have a mantra or motto you live by when it comes to helping your clients?
“Client’s satisfaction is most important”
What do you feel you couldn’t live without?
Parties’ Trust.
What motivates you most about your role?
Finding a reliable solution.
Notable cases served as an arbitrator:
Nozomu Ohara is the Managing Partner of the Ohara Law Office in Osaka, Japan and the Vice President of the Japan Association of Arbitrators. He graduated from Faculty of Law at Kyoto University and has also completed a graduate course at the Kyoto University (LL.M) and Harvard Law School (LL.M). He has since worked in law offices in New York and California. He is Committee Member of the ‘International Arbitration Representative Study Group’, ‘International Arbitration Liaison Council’ and ‘International Arbitration Study Group’. Ohara’s experience extends to being the Former Chairman of the “Foreign Lawyers and International Legal Practice Committee of the Japan Federation of Bar Associations” and the Former PPID Council of the International Bar Association (IBA).
Ohara Law Office has a strong history of taking on a variety of international and domestic Japanese legal matters. Based in Osaka, Japan and founded in 1979, our firm has continued to provide our clients with quality legal services in an efficient and cost effective manner. We have rich experience in handling a wide variety of international and domestic Japanese legal matters and we look forward to using that experience to assist you.
‘Having a culture of innovation in a law firm is unusual. Many lawyers are trained to be risk averse.’ While our next professional keeps a laser focus on the changes affecting his financial services clients, he also drives innovation in his own law firm, Murphy & McGonigle.
Here, James Murphy, Chairman and Co-Founder of Murphy & McGonigle, a US based boutique securities litigation and enforcement law firm, talks about the inspiration behind his career path, the importance of knowing your client, and keeping up-to-date with the latest regulations and directives, and gives insight into the firm’s innovative projects and future goals.
What led you to embark on a career in the legal profession? What draws you to your specialist area of financial and business litigation?
Well, I usually say it’s in my DNA. My father was an attorney and law professor. He served in the US Army infantry during World War II and stayed on at the conclusion of the War to assist in the war crimes prosecutions at the Dachau prison camp. He ended up working on the prosecution team with Leon Jaworski, who much later served as the Special Prosecutor for Watergate. My father went on to criminal defense work in the States after returning from the War and, thereafter, served in several posts as a law professor. My sister followed directly in those footsteps, working briefly in private practice, after graduating from Yale Law School and then going on to become a law professor. She was also briefly an Academic Visitor to the Oxford University Law Faculty.
So, as I say, it must be in my DNA. I never seriously considered any other profession. Upon graduation from the University of Virginia and Vanderbilt Law School, I headed to Los Angeles, California to start my career. After five pleasant years, I returned to Virginia, worked at a large multi-national law firm, and ultimately decided that I wanted to try my hand at starting a different kind of law firm; which brings us to 2010, and the inception of this firm, Murphy & McGonigle.
If you never chose to be a lawyer, what other profession might you have pursued and why?
I think most litigators are built with a strong competitive streak, but we all discover at some point that we are not going to be able to play sports professionally, so we have to find some other outlet for that competitiveness. For me, being a litigator has been quite a good answer. At trial, there is almost always a winner and loser and that is what drives us to out-prepare the opposition. We all want to deliver a great result for our clients in every case, but underneath the surface for me is a real dislike of losing. But, to answer your question, had I not become a lawyer I would probably have tried my hand at being a writer of some variety, perhaps a reporter.
You also advise on compliance issues; how do you keep informed and abreast with all the latest legal changes and updated regulations?
Great question! This is an essential element of who we are as a firm. We constantly scan the regulatory and litigation landscape for emerging risks or challenges for our clients. As an example, when we see new rules proposed and put out for comment by the SEC, we typically assign one or two of our lawyers to become experts in the subject matter. We produce an annual report to our clients and friends of the firm each year that is entitled ‘Looking Forward’, which includes observations from all of our practice groups about what we think may lie ahead based upon the securities regulators’ priorities and emerging trends in financial industry litigation.
What would you say have been the most valuable legal experiences that have brought you to where you are today?
I was incredibly fortunate to start my career at a boutique securities litigation firm in Los Angeles, where I received tremendous mentoring. The lawyers there all shared a singular commitment to excellence in the work they did. There was an unstated ethos that emphatically rejected the “it’s good enough” standard. Every brief, every piece of correspondence going out the door, every internal memo, had to be perfect. For a newly minted lawyer, that was a high bar to maintain day to day. I also learned from the examples of the partners there that you never compromise on ethics, never take a short cut, and stay out of the grey area. These lessons have guided my career and stuck with me for 25 years, and I feel an obligation to pass on these lessons and values to the younger lawyers in our firm.
With plenty of experience behind you, what advice would you give future potential litigators and lawyers looking to defend financial institutions and financial services firms?
The advice I give young lawyers is not unique to litigators. You should strive to become a “trusted advisor” to your clients. You can only truly become a trusted advisor by gaining intimate knowledge of the clients’ business and the industry within which it operates. It is not enough to know that a bank has to comply with Anti-Money Laundering regulations. You need to understand completely how your client goes about complying with those regulations from an operational standpoint and you need to know how other banks do it. Reading the regulations and commentary is not nearly enough. You need to sit down over lunch, or when traveling with a client, and really learn how things work within your clients’ business. If your clients start looking to you as a trusted source of information on best practices in the industry when it comes to legal and compliance subject matters, then you know you have accomplished something. Those relationships are durable and are some of the greatest rewards of this profession.
Do you have further future goals? Are there avenues you still wish to explore in the global legal sphere, in particular in the business-legal world?
My professional goals are, of course, intertwined with those of the law firm. We are committed to continuing innovation in our industry. Having a culture of innovation in a law firm is unusual. Many lawyers are trained to be risk averse. At Murphy & McGonigle, our partners have made an all-in commitment to innovation which makes me optimistic about the future.
We have created an Innovation Lab at our firm, which serves as a one stop shop for development of new solutions for our clients. We have on staff a full time computer coder who translates lawyer ideas into actual tools for our clients. For example, through the Lab we developed a relational database for all mortgage-backed securities litigation that marries up data about the mortgage backed trusts involved in litigation with information about the ongoing litigation itself, so that clients can gain a broader view of the landscape. That database captures data on every mortgage trust involved in litigation anywhere in the US. We also have enforcement apps and other tools in development that will leverage technology to automate certain regulatory compliance functions that are currently very manpower intensive.
We also need to be constantly in sync with our clients. There has not been a time in my career where the financial services industry has experienced as much change and innovation as we are seeing now. Concepts like ‘Robo-advisers,’ the proliferation of alternatives to cash and credit cards for consumer purchases, and the coming ‘Blockchain revolution’, all bring with them legal and regulatory challenges. I am convinced that the law firms that can help clients overcome these challenges and seize the incredible opportunities that are brought about by all this change and innovation will find themselves in extraordinarily high demand. We intend to be in that small group.
Bankruptcy is a serious wall to hit for any business, but what solutions are available and which is more appropriate for certain scenarios? Lawyer Monthly here speaks to Craig Kelley, Esquire, Senior and Managing Partner at Kelley & Fulton, P.L. in Florida, US, who details what the possible avenues might be, and tells us a little about the firm, its work in the US bankruptcy sector and its commitment to finding creative solutions to its clients issues.
In what circumstances is bankruptcy unavoidable for a business? What are then the necessary steps to take?
There are two types of bankruptcy available for businesses: Chapter 11 and Chapter 7. A Chapter 11 is a reorganization bankruptcy. It is appropriate when a business has the financial ability to reorganize its debt obligations, but merely needs additional time to repay its creditors on a reduced debt basis. When we first meet with a Chapter 11 client, we will work with that client to assess whether the business has the ability to generate income to pay its current expenses and a little extra to fund a plan of reorganization, which is typically five years without interest to the unsecured creditors. Fortunately, there are many statutory tools available through the Chapter 11 procedure that are not otherwise available in other Courts. For example, we can “strip down” secured claims to the reduced value of the collateral and re-amortize the loan. We can also surrender assets or leases that are a burden and the consequences to the business are minimal. Cost will also play a role in our assessment since a Chapter 11 reorganization can sometimes be a lengthy and complex process.
Unfortunately, there are times when a business simply does not have sufficient income to reorganize its debt obligations, and a Chapter 7 liquidation is appropriate; the business closes its doors on the date of the bankruptcy filing, and the Chapter 7 that is appointed to the case liquidates the remaining assets to pay creditors on a pro-rata basis. A Chapter 7 liquidation may not be appropriate for every business looking to close its doors, but can be a very valuable tool to stop expensive litigation and harassment by creditors.
What are the most recent bankruptcy matters you have been involved with and what have been the professional challenges therein?
We are currently involved in a Chapter 11 case involving copyright law and the ‘first sale doctrine’. The first sale doctrine in copyright law allows owners of copyrighted material to treat that copy in any way desired so long as the copyright owner’s exclusive copyright rights are not infringed. For example, this doctrine is what allows someone who purchases a compact disc to them resell that CD to a third party. In the current case where we are counsel for the Debtor in Possession, the Debtor has developed a platform to resell digital music; however, the Debtor received an adverse ruling from the US District Court in New York holding that the first sale doctrine does not apply to the resale of digital music. Therefore, the platform that the debtor spent years developing had to be taken offline as a violation of copyright law. The Debtor is in the midst of appealing this adverse ruling. Additionally, the Debtor has developed a separate platform that it is confident is not a violation of the first sale doctrine and will allow the entity to market it App to resell digital music and other electronic media, such as songs purchased from iTunes and videos/movies purchased online. We are fortunate to represent this fascinating and innovative Debtor in its Chapter 11 case.
With over 28 years’ experience in this sector, how would you say bankruptcy law and the services related have evolved significantly over the past decade?
In 2005, the Bankruptcy Code was completely overhauled with the enactment of the Bankruptcy Abuse Prevention and Consumer Protection Act, also known as BAPCPA. This made several significant changes to the Bankruptcy Code and was the most extensive overhaul to the Bankruptcy Code in 35 years. The intended purpose of the enactment of BAPCPA was to curb abuse of the Bankruptcy Code. To this end, the most notable change to the Bankruptcy Code was the addition of the Means Test, whereby filers who desire to file for Chapter 7 bankruptcy now had to meet certain income-based eligibility requirements. The purpose of the Means Test was to divert filers to a Chapter 13 personal bankruptcy to repay a portion of the debt owed rather than merely obtain a Chapter 7 discharge of debt. Since the enactment of BAPCPA, there have been many studies surrounding the effectiveness of BAPCPA and the general conclusion is that the Means Test is more of a burden than a benefit. In essence, the Means Test has only precluded a small number of people from qualification for Chapter 7 bankruptcy and only resulted in a marginal increase in repayments to creditors.
Is there any further bankruptcy legislation you believe necessary to be introduced at this point in time?
A hot topic in bankruptcy law is dischargeability of student loan debt. As the cost of higher education has risen exponentially, student loan debt has also increased at alarming rates. Currently, 11% of student loans are in default. Most courts use the Brunner Test to determine whether a debtor can discharge student loan debt. Under this test, the person filing bankruptcy must prove that the student loans create an “undue hardship.” This test is very strict and difficult to meet, but there is evidence that some courts are loosening the reigns on the dischargeability of student loan debt. Some argue that the strict Brunner Test should be reduced to a less strict standard since Brunner was decided at a time when private student loans were still eligible for discharge and there were many examples of predatory lending practices.
As a thought leader, how do you help your clients differently compared with other firms?
Our firm rather enjoys handling the difficult cases; in other words, those cases that other firms may shy away from. We take a creative approach to our representation of our clients. Where others may feel that a prospective client’s case is impossible, we like to think outside of the proverbial box to make the impossible possible. We understand that we may not always be able to get our client their desired result, but we strive to obtain the best result available for our client from all available options. I truly believe that every problem has a solution and my job is to find or create that solution for my clients.
Our firm is also unique in that we represent both debtors and creditors. We find that this approach allows us to view a matter from both sides of the coin, which helps us and our clients see things a little bit differently than how our competitors may view the issue. By knowing what the other side thinks and seeks, we can better craft a resolution suitable to all parties and save all parties time and money.
Is there anything else you would like to add?
We understand that bankruptcy is stressful and often an emotional for both debtors and creditors. It has a dramatic impact on both businesses and the personal lives of those involved. We understand that our job includes more than just giving legal advice; we must help our clients deal with the effect that a bankruptcy procedure has on them as people. We go to great lengths to counsel our clients on the most cost-effective and beneficial means to bring each matter to a timely result.
Do you have a mantra or motto you live by when it comes to helping your clients?
“Result Focused. Personal Approach.”
“We find creative solutions to difficult problems.”
What top 3 qualities make a thought leader?
What’s most important to you and the firm?
Most important to our firm is going above and beyond to develop a favourable result in a value conscious fashion. In bankruptcy, neither side desires to spend money and the expedited nature of the process takes this fact into consideration.
Expert witnesses provide valuable information in court to help settle medical negligence claims; their input can dramatically affect medico-legal cases. Orthopaedic Surgeon and Disability Analyst, Richard Scott-Watson writes over 1,000 medico-legal reports per year and here talks about what makes an expert witness a true expert, the complications behind disability claims analyses, and the importance of claimant’s reports.
What does your expert witness role typically involve in this segment, and what has your experience covered in the past?
After many years doing reports I think it is fair to say that I have seen most things. One of the most important aspects of report writing is to remain entirely objective and to stick firmly to the CPR, which far too many experts still do not fully manage. It is also important to provide a personal report which is accurate.
In the analysis of disability claims you are instructed to carry out, what is the overall process, what are the priorities for the report, and what is the average timescale to complete these?
The main way a disability analyst will look at any case is to use the claimant’s daily function to extrapolate to their overall function. The activities typically undertaken during the day will often tell a lot about the claimant’s overall ability, which is the thinking behind the Equalities Act when it looks at activities out of work to assess work requirements.
Timescales are almost always dependent on one thing: the medical records. Personally, I will not do reports without the notes unless specifically requested and then the basis of the information in the report, which necessarily is largely from the claimant and unverified, has to be made clear. I would always prefer to seen any notes prior to the interview as I have seen cases avoidably collapse when a claimant misremembered some facts and their interview was later contradicted by the notes.
Are there ever any complications involved in disability claim analysis? What evidence is required, and how difficult can it be to obtain this and review?
I would always look to obtain General Practitioner and hospital notes where relevant, along with any investigations. In disability cases, there are usually also Department of Work & Pensions (DWP) files and these can be really useful. The GPFR (General Practitioner Factual Report), used as part of the claim process, is particularly useful when filled in well, as it will contain far more detailed information than the GP notes usually have and will to some extent address the disability aspect, which rarely features in the notes.
And what about in the cases of injury claims you are instructed on?
Contemporaneous notes are vital. I have seen thousands of initial GP injury reports, as required by MedCo. I have yet to see one that accurately reflected the injury and disability. Majority of the time the claimant claims during the interview a period of severe disability which is later contradicted by the notes when I see them – either because they were seen and found to have little or nothing wrong with them, or they never got medical attention at all. It is also important to pick out those in whom a relatively small injury causes a large problem. There can be one of several different genuine reasons, and several that are not genuine; the reasons behind any conclusions need to be made even clearer in these cases than in more straightforward cases.
Can you detail an example of an injury claim where your analysis resulted in a conclusion of medical negligence? How did you arrive at this conclusion?
Fortunately, I have found these cases to be rare but I do recall one of a man with a tibial fracture which was operated on so badly that his foot was left rotated out at 45 degrees, meaning that he could not walk properly and not only tripped himself up, but others. The initial chance to re-operate and correct the failure was missed, although it would have been quite straightforward to do. The injury was complicated by later infection around the metalwork meaning that there was too high a risk to correct it and the deformity was permanent, causing significant disability. Liability was eventually admitted, but it took over five years.
I do not see negligence cases myself.
As a leading expert witness in this field, what would you say makes you the go-to expert witness for orthopaedic injury and disability claims?
There are very many extremely high quality orthopaedic surgeons around doing this type of work. The difficulty is that expert witness work is not the same as NHS orthopaedics. Lawyers will go to experienced orthopaedic surgeons for reports on injury such as Whiplash Associated Disorder, when in fact that surgeon will never see such cases in clinical practice and will probably see only a handful a year in medicolegal practice. They also largely have no training in disability assessment, and I have yet to find one with a disability assessment qualification, but I am sure there is one there somewhere.
Providing medico-legal report, in my opinion, is a speciality in itself.
So, I believe it comes down to: what is an expert? Experience is preferable but clearly should be gained somewhere so for those starting out there are numerous courses to help with the basics. Ideally the expert should have the Cardiff University/ Bond Solon Expert witness certificate, and when I took it there were a couple of candidates taking the course who had not yet written a report, so it is possible to start with that qualification. An expert also needs to stick clearly to the CPR and not favour one side, even when pressured to do so, as that happens all too often. The expert also needs to be able to put in the time required to make an efficient system for seeing claimants and getting reports to solicitors. It is no use having reports sitting around for weeks or months that should have been completed; that is something I will never do. Once a week all the post/emails for that week are completed, and I stay at the office until it is all done. Nothing waits longer than that. The expert also needs to carefully remain within their own area and not to stray outside. I have many years’ experience in managing all these aspects.
My record turn-around was: instructed Monday afternoon; claimant seen Tuesday morning; report with solicitor Tuesday afternoon – but please don’t expect that every time. I can accommodate urgent reports (dependant on if the claimant can travel to the venue in time) and undertake prison and home visits as well as clinics in Stourbridge, Birmingham, Coventry, Bristol, Swindon and Oxford.
I am happy to work with cases from other jurisdictions provided the rules are made clear, and have had cases from Eire and Australia.
Is there anything else you would like to add?
Yes, if possible please instruct directly. Agencies are a necessary fact of life but they will not only charge 20-30% more than going direct to the expert but they will take over 50% of the fee for themselves (for about 5% of the work and 0% of the expertise). They also delay any communications as everything has to go through the middle man, who will often not pass on lawyer’s requests but will send the request themselves and sometimes change it or delay it (sometimes for months and then blame the expert for the lateness – yes that was a recent one I had!)
If you do work through agencies, please remember that they will never accept any criticism; it is always the expert that is blamed for their mistakes (and occasionally made to waive fees because of their error).
This should be a smooth and efficient process. Of course, the report will not always say exactly what you wanted it to or expected it to, because claimants sometimes embellish stories. Instruction letters often contain injuries that never occurred, or injuries that occurred prior to the index accident or indeed, occurred independently some time afterwards. Experts are there to sort out the mess and get the conclusions right so that it is fair to both sides – that is our role.
Touching on the course of history for human rights and detailing the way Polish society perceives the migrant crisis currently ongoing in the EU, with a very sincere analysis, here Aleksandra Kowalik, Principal at the Law Firm Kowalik, talks about progress in the realm of human rights and how legal developments fits therein. To start us off, Aleksandra delves into a brief history of the establishment of human rights regulations, which is essential in introducing this topic.
"I am the king (...) when Marduk God ordered me to govern people well, to provide the country with a proper supervision, I put the law and justice to the country's mouth, I guaranteed a prosperity..." (The Hammurabi Code 1792- 1750 BC).
These words are being considered as an initial source of the conception of human rights. This was the moment which the societies as general started their march towards forming the current shape, approach and understanding of human rights as we know it.
The philosophy of those rights has been influenced inter alia by:
Finally, the crowning achievement was The Convention for the Protection of Human Rights and Fundamental Freedoms, known as the European Convention on Human Rights, which was opened for signature in Rome on the 4th November 1950 and came into force in 1953. It was the first instrument to give effect to certain of the rights stated in the Universal Declaration of Human Rights and make them binding.
In conclusion, the current involvement of a legal professional in the human rights area of practice is a result of a difficult and bumpy road taken by humanity all over the world through the ages.
I am honoured to have the opportunity to act on behalf of clients in matters related to human rights in both jurisdictions - British and Polish. I mainly deal with criminal cases and immigration in principle. In both sorts, one (me in concreto) must look after whether the basic rights (absolutely essential for a sovereign a lawfully state) are being followed by the authorities and judiciary, namely whether one is being treated equally and fair upon the widely interpreted law.
How distressing do the cases become, dealing with human rights issues, and how do you protect yourself from becoming too bogged down with the potential negativity?
I do consider that each of a legal professional whose main goal is to perform his or her duties with the highest diligence and who wishes to provide his clients with the best advice feels stressed on a daily basis. It also must be agreed that the bigger influence and impact a case's result will have for the client's life, the greater the stress becomes. One must bear in mind that especially in deportation or European Arrest Warrant cases, namely those connected with the prospective of forced leaving, the family also will suffer. I find this issue as the most tough and stressful in my role, as suddenly a crowd of people believe you are the only chance for their future.
In my opinion the only protection from becoming too bogged down is to focus as much as one can on only the case merits, without involving any feelings.
In your immigration and asylum specialism, what human rights considerations arise and what are currently the biggest talking points in this arena, especially in light of the recent EU migrant crisis?
Let me focus on Poland in referring to that particular issue as The United Kingdom appears to me as an example to follow, while lately Poland has taken many steps back in its attitude to human rights. This is sad and personally for me, devastating impact is visible all over the country and touches every single aspect of the reality. Unfortunately, the current authorities, instead of supporting the proper human rights education, are playing a part in eliminating it.
Poland suffers from a lack of tolerance for different religions, and for people who are atheists or agnostics.
Poland also suffers from a lack of tolerance towards different nations, sexual orientation, women, and paradoxically for the lack of tolerance towards the members of society who are tolerant. This mentioned tendency has clearly come about due to the migrant crisis, and therefore the main issue which currently arises is in the misunderstanding of the freedom of religion. Unfortunately the majority of Polish society has already forgotten the gesture of Iran, Lebanon, New Zealand, India, Mexico, Palestine, The Eastern Africa and RSA, when they opened their borders for Polish asylum seekers during the II WW. Nobody has asked about their religion or sexual orientation, and nobody verified their nationality or race...
How depressing it is that a nation which had to go through the nightmare of the Nazi Camps is not able to share its' experience and give a helping hand to others.
How much have human rights changed/improved since you began your career in law?
Human rights should have never been the subject of any changes, as they are the natural order, and so naturally dependent on humanity, but if humanity is changing, human rights will also consequently change. The further development or improvement should only regard those who are supposed to enforce the law and defend human rights.
As a thought leader in this field, what do you believe to be a business’ no.1 priority in terms of human rights law?
Education, education, education; not only in legal terms, but also relating to a history, which will always mean an opportunity to avoid the same specific consequences in future, as "our greatest glory is not in never falling, but in rising every time we fall (vide: Confucius)." Regrettably I have an irresistible impression that lately, humanity has only been falling, and with no probable perspective for rising again at all.
