Understand Your Rights. Solve Your Legal Problems
What benefits and opportunities do you think lie in the current state of the investment sphere?
Initial Coin Offerings are an area to watch in the coming years. ICOs are being considered more and more, especially by technology companies developing suitable products linked to the blockchain. For example, a company can raise funds in return for tokens, which are a tradeable commodity in their own right and which typically also allow the holder to access and use the product being developed.
In addition, companies with strong intellectual property will remain attractive to investors and trade buyers, even in uncertain times. If you own valuable IP and have a business which is not just surviving but thriving from exploiting that IP, then whatever your size - OMB, SME or larger - there will be people interested in tapping into the IP or acquiring it.
In an uncertain period, what are the risks associated with the transaction process and how important is transparency?
Looking for the risk points in transactions is a dynamic process. It begins from the initial conversation with clients through to closing.
In the OMB and SME space, the biggest risk boils down to expectations: buyers not getting what they thought they were acquiring, and sellers being disappointed if buyers start deviating significantly from the initial terms offered. It can be a rollercoaster ride, particularly for clients who have not been through an M&A transaction before.
As the UK gets closer to leaving, I anticipate there will be a hiatus in M&A activity.
The aim is for no surprises for either side. It is about planning well in advance of a transaction, having honest conversations, identifying issues that might affect a deal later on, and for OMBs and SMEs being transparent about their strengths and weaknesses.
My experience is that deals become problematic when client-specific risks are misunderstood or not well articulated at the outset, so getting to grips early on with ‘skeletons in the cupboard’ that might affect a particular deal is key to keeping the transaction on track.
In terms of the future in M&A and investment, what is the biggest change or development you are looking forward to in 2019?
Brexit is perhaps so obvious that maybe it’s boring to mention. Business has done a great job of staying focused on wealth creation while the details of the political settlement are worked through. But as the UK gets closer to leaving, I anticipate there will be a hiatus in M&A activity. So I am looking forward to getting it over with and finding we haven’t fallen off a cliff.
I am concerned about the Government’s attitude to risk-taking and entrepreneurship, and it will be interesting to see whether at the margins there is a stifling of M&A activity in the OMB and SME sector from recent changes to Entrepreneurs’ Relief announced in the Budget, which may have an impact on those holding alphabet or growth shares in particular.
Adam leads Harwood Hutton’s forensic and corporate finance team and has been recognised with a series of major national awards in both fields in the past two years, including Lawyer Monthly’s Expert Witness of the Year Award 2017.
Adam and his team are experts in valuing unquoted equity and shares and are often called upon to produce business valuation reports, whether for commercial, forensic or taxation purposes.
The corporate finance offering encompasses advisory and transactional assignments, from sale mandates for clients looking to exit to assisting clients seeking external funding and leading financial due diligence work for clients on acquisition trails. Forensic assignments include expert witness work, expert advisory work, accounting investigations and expert determinations. Adam has given oral evidence at the High Court and at the family court.
Letting your staff go is never an easy process and undergoing staff cutbacks drag along extra stress and worry, especially for your employees. With it often being presented with high emotion and upset, it is of paramount importance that everything is done correctly, in order to ensure you will face prosecution or liability.
With economic uncertainty, when is best for businesses to consider staff cutbacks as an option?
We usually recommend reviewing and implementing staff adjustments at companies during a good and successful phase. In most cases, it is considerably more difficult to implement staff adjustments once a crisis has occurred, because the works councils and trade unions are more vigilant and show greater resistance.
What is the planning part of the process? What must businesses plan accordingly, prior to letting anyone go?
Depending on the scope of the staff cutbacks, a range of mandatory legal steps must be planned and adhered to. For example, in Germany, the members of the works council must be fully involved at an early stage. Likewise, from a certain scale on, a so-called mass redundancy notice must be sent to the competent authorities. This regularly results in public attention and has to be well planned.
It is even more important, however, to prepare the restructuring measure really well with regard to personnel. German law requires a social selection, which means that the staff members to be dismissed cannot be unilaterally selected. With proper planning, however, the social selection can be structured, thus providing the possibility to control the cutback according to corporate requirements.
Is there any process which helps determine who should stay and who should go?
Yes, that is indeed possible. Under specific circumstances, German labour law allows for a deviation from the generally prescribed social selection. This, however, must , in any event,be planned and well prepared.
What complications can employees’ employment contract pose? How can employers work around this?
In some industries, employment contracts cannot be terminated at all or only with very long notice periods. Partly, there are also post-contractual payment obligations. We usually achieve to resolve such problems and to reach the goal. However, in many cases, this works only by skillfully negotiating with employees or works council members.
Negotiating the dismissal fee: which method works best?
It needs to be noted that a dismissal fee as such does not exist in Germany. Only in the case of large-scale cutbacks can the works council request such fee. In practice, severance payments are nevertheless often made, partly because employers are poorly advised or poorly prepared for cutback measures. In my experience, especially a good preparation of the relevant dismissal helps avoiding unnecessary costs.
Are there any legal loopholes businesses need to be aware of, before beginning the dismissal process?
The most important aspect is to coordinate any communication with the lawyers. In many cases, a premature or ill-considered announcement by the company leads to a risk, because the employees and works council members rely thereon. As an example, just take the famous press conference of Deutsche Bank AG several years ago, where record profits and staff cutbacks were announced in the same press conference. No wonder that the trade unions and the works councils later insisted on huge severance payments.
Dr. Christian Bitsch is a Partner in the law firm BLUEDEX, specialising in labour and employment law in Germany. Dr Bitsch advises and represents multinationals, mid-sized enterprises and public institutions in questions of labour law. He has a particular specialisation in questions of labour relations and rights of codetermination, employment contract law for board members and labour law in corporate groups. Moreover, he has considerable expertise in restructuring and post-transaction projects.
Luxembourg is a member of the European Union, but Switzerland is not. Is that the only criterion for deciding whether or not to create a vehicle for investing in the European Union?
No. First and foremost is the type of business activity to be conducted by the investment vehicle, which should guide the choice between Luxembourg and Switzerland. Luxembourg has become the jurisdiction for investment funds, but Switzerland is a very competitive jurisdiction for holding companies, headquarters offices, and family offices.
Luxembourg, even though it offers conditions that are slightly more advantageous in terms of exemption of dividends and capital gains.
In a few words, what are the comparative advantages of each of these jurisdictions for the funds’ business?
Both with respect to both UCITs (open-end mutual funds) and alternative funds, Luxembourg has an unequalled panoply of legal solutions, and Luxembourg lawmakers have consistently adapted the legal and regulatory framework for funds to meet market requirements, as happened with the FIAR* in 2016. With respect to company law, which was inflexible for a long time, Luxembourg changed significantly with the arrival of the SCSp§ (a real “Swiss army knife”!) now available to investors and UHNWIs¨, particularly in connection with private equity transactions. This tool, which we were among the first to use, both protects business confidentiality and is transparent for tax purposes with respect to application of double tax treaties with foreign countries, where the partners or shareholders may reside and where investments may be made. There is also total transparency with respect to FATCA· and CRS.
In a few words, what are the comparative advantages of each of jurisdiction for holding companies?
Luxembourg, even though it offers conditions that are slightly more advantageous in terms of exemption of dividends and capital gains, because of the SOPARFI© rules, remains uncompetitive for holding companies that generate cash, because of the wealth tax on companies[1]. In addition, Luxembourg has just introduced CFCÑ-type legislation[2] which makes it a more demanding jurisdiction for benefiting from the SOPARFI[3] treatment. Switzerland is on the verge of a major reform of its tax laws, which will make it a more competitive jurisdiction. Regarding to tax rates on income, with PF17[4]à; it is clear that, even though Luxembourg is trying to resist this tax competition, it is not contemplating a reduction in income tax rates (23%)[5] that is as competitive as Switzerland’s (13.5%[6]). This has a major impact in terms of taxation of income not eligible for SOPARFI treatment, because of CFC legislation or on cash flow.
Switzerland, because of its bilateral treaties, has full access to the European parent-subsidiary regime which provides an exemption from withholding taxes on dividends paid by European subsidiaries.
Would it be interesting to use both Luxembourg and Switzerland in certain cases?
A good example is the combination of a Luxembourg SCSp top tier with a Swiss holding company below. This structure would offer all the advantages of a Luxembourg legal entity in terms of governance and tax transparency, while making it possible to combine it with the advantages offered by Switzerland for holding companies. This structure is particularly well adapted to holding companies for family groups owned by UHNWI of the BRICS.
Is the fact that Switzerland is not an EU member disadvantageous with respect to upstream payments from other EU countries?
No, not necessarily; there is no reason to see things in such Manichean terms. This point is too often overlooked by BRICS and UHNWI investors. Switzerland, because of its bilateral treaties, has full access to the European parent-subsidiary regime which provides an exemption from withholding taxes on dividends paid by European subsidiaries. The same applies to interest payments, more often already exempted, by local law, and royalties. The toughening of tax treaties between Luxembourg and other European countries, particularly France, does not really make it possible to escape taxation of real property gains made in France. The same applies to the toughening of European directives in the area of constructive dividends[7] or deduction of financial expenses or charges[8], which now rely, as a main criterion of disqualification from the exemption from withholding tax, principally on the ground that the structuring has made for main (and not only) tax reason, then being deemed “not genuine”. In this respect, the flexibility of European directives which allowed certain groups to be more aggressive from a tax point of view, as a result of combining European directives offering an exemption for withholding tax on upstream financial flows and presence in an EU country like Luxembourg, is no longer applicable.
From a company law and corporate governance standpoint, is either country more inflexible that the other?
At first blush, Luxembourg would appear to be more flexible than Switzerland, but the principle of intragroup payments makes it possible to introduce all the desired flexibility, especially with change of yearly allocation of dividend payments, with respect to Swiss companies.
In terms of cost structure, is either country more expensive than the other?
Cost structures are comparable in both countries thanks to a significant cross-border workforce from France or Germany that makes it possible to provide services at equivalent cost. The very lively competition between and among service providers now makes it possible to say that these jurisdictions are relatively competitive compared to Asian jurisdictions, like Hong Kong or Singapore.
Switzerland has unequalled expertise in terms not only of tax treatment, but also with respect to highly qualified experts.
With respect to tax treaties, are Luxembourg and Switzerland equivalent?
The tax treaty network is practically identical as between Luxembourg (83 treaties) and Switzerland (90 treaties), with probably more diverse coverage for Switzerland.
From the standpoint of inbound flows paid through investment funds, the advantage is to Luxembourg, which has managed to insert specific provisions into its tax treaties, such as with France, allowing for upstream flows either on an exempt basis, or at a rate of around 15%[9] (as for real property funds investing in France), with a simple tax rate / structuring schedule. Such is not the case with Switzerland.
For holding companies, the situation is the same.
For outbound flows, withholding taxes (“impôt anticipé”[10]), which exist in Switzerland, always cause problems with respect to dividend payments, contrary to Luxembourg. However, flexibility exists for shareholders holding a stake of at least 20% (25% for European parent companies in connection with the AFisE, if there is no applicable tax treaty), this tax can be directly deferred upon authorisation of the AFC, thereby allowing the paying company to avoid paying it.
What about head offices?
On this point, Switzerland has unequalled expertise in terms not only of tax treatment, but also with respect to highly qualified experts. The PF17 reform, even if it may penalize the establishment of head offices, does not seem to be such as to cause an exodus of them, as long as the increased tax cost remains at an acceptable level.
So, Luxembourg or Switzerland?
It all depends on the nature of the client’s business, whether it’s more industrial, or more in the area of regulated or unregulated funds. We have no preference within our firm, as we have a single team with lawyers who are admitted to practice in Switzerland, Luxembourg and France. This unique status allows us to provide clients with service and advice that is always in its best interests.
Patrice Lefèvre-Péaron is a M&A and tax partner at Jeantet. He is the Managing partner of the Jeantet Switzerland law offices in Geneva, and the head of the Jeantet’s tax practice.
* FIAR: Financial Improvement and Audit Readiness. See, FIAR Guidance issued by the US Department of Defense (TN)
¨ UHNWI: Ultra High Net Worth Individual (TN)
© SOPARFI (“SOciété de PARticipations FInanciéres”): Luxembourg holding and financial company (“the most common vehicle dedicated to holding and financing activities in Luxembourg” – Deloitte) (TN)
[1] § 8, Amended Law, dated 16 October 1934 with respect to the wealth tax
Ñ CFC: Controlled Foreign Corporation (TN)
[2] Art. 164ter, LIR [income tax law]
[3] Art. 166, LIR [income tax law]
[4] Federal bill on tax reform and financing of the AVS, dated 28 September 2018
à PF17: “Projet Fiscal” [Swiss Draft Tax Bill) 17 (TN)
[5] Art. 174, LIR [income tax law]
[6] Art. 68, LIFD [wealth tax law]
[7] EU Directive 2015/121 of the Council of Ministers, dated 27 January 2015 amending EU Directive 2011/96 on common tax treatment applicable parents and subsidiaries in various Member States.
[8] EU Directive 2016/1164 of the Council of Ministers, dated 12 July 2016 establishing rules to combat tax evasion, which have a direct impact on the functioning of the internal market.
[9] Art. 10, France-Luxembourg Tax Treaty, dated 20 March 2018
[10] Federal Law on Withholding Taxes (“impôt anticipé”), dated 13 October 1965
“Being ethical, professional, honest, knowledgeable, a pioneer, leader and unique in your work are my core values. I have worked on thousands of cases, with hundreds of lawyers, experts, clients and colleagues across my career and the experience I gained after being exposed to all of this, is what led me to be what I am today", shares Ghassan.
He shares with us his secrets to winning billion dollar cases, why Arabic is an important language to integrate into the legal sphere, and how to tackle sensitive cases.
What has been your most challenging case yet, and how did you overcome it?
I witnessed many challenging cases throughout my career, yet I can easily select a case that was quite complex yet enjoyable. I represented a Kuwaiti Public Listed company before Abu Dhabi Courts against a Chinese Semi-Governmental company in around 1 billion US dollars’ construction and project development dispute. When approached by the client, he was previously represented by another law firm and had a judgment against him for USD160 million claims and a USD44 million performance guarantee issue.
The dispute was heard before the arbitration tribunal and the local courts in Abu Dhabi and the adverse party was represented by a very strong international law firm and a leading local law firm in Dubai. My team and I applied a totally new strategy and litigation approach that led both the arbitration tribunal and the local courts to dismiss the previous claims and rule in favor of my client for USD60 million. The final outcome of the case was changed drastically in favor of my client.
I always believe that when you break down, analyze and reassess any complex dispute, and have an in-depth understanding of the local laws and the application of international standards of practice, then everything becomes simple and possible. I simply applied what I always believed in, to secure the client’s best interests based on my legal knowledge and experience. The real challenge was the ability to change the result and the delivery of a positive outcome in favor of my client.
I consider any case or dispute as an unfinished painting. I am the artist and litigation is the art.
You are one of the few litigators who won multi-billion dollar cases for clients and advised on high complex and cross border disputes; can you guide us through your step by step process when working on such cases?
I represented clients before, during, and after the 2008 financial crisis. As a result, I was involved in billions of dollars of cases and disputes. Assessing the early symptoms of the financial crisis prepared me for any future disputes or cases that may happen and thus gave me an advantage over many other law firms in the region.
Meeting the client and gathering the right information and documents is an essential first step. Once there is clarity on the big picture, the right people are chosen to work on the matter, then the work is divided among the team. I take into account all the information received from the client and team, assess the case and draw the strategy. The strategy revolves around the end objective that is agreed with the client and then break it down into short-term objectives done step by step or stage by stage. The process compromises of proper planning, in-depth analysis, consistently monitoring assessment, and control.
I also take into consideration in my work to be responsive, to focus on quality and to deliver.
Moreover, how did you work your way up, in order to accomplish positive results for high net cases?
I am a positive man who always works on things to happen. I promise myself and the client that I will work hard to achieve and to deliver. This summarizes the personal and professional commitment that I practice. I consider any case or dispute as an unfinished painting. I am the artist and litigation is the art. You need to see the big picture, then use your tools to draw the picture and then focus on how you planned and visualized to complete the painting. There will always be barriers, obstacles and deadlines, but determination, consistency, organization and patience, are key elements. I always look to find an acceptable solution for my client irrespective of the dispute amount. I simply search for the solution, find it and apply it, in the same way I used to solve math problems when I was in high school.
I also listen carefully to my clients in order to manage their expectations properly. Serving my clients is the center of my offerings and building the trust is my main focus, because a law firm is a service industry and the service must be done in a perfect way; there are no compromises on this. Trust is everything in our offerings. Part of my job is to educate the client about the local culture and laws and to connect with them in order to build the trust. My measure is always the logical approach and to present the arguments in a simple way and going to the basics of the principles and articles of the law.
One main recommendation is to optimize your skills and ability, whilst trying to seek innovative solutions. Thinking out of the box is a useful strategy: consider every case to be like a puzzle.
What three things would you recommend litigators do when tackling a sensitive case?
One main recommendation is to optimize your skills and ability, whilst trying to seek innovative solutions. Thinking out of the box is a useful strategy: consider every case to be like a puzzle. You need to search for the pieces, put it in the correct place and rejoice over the result. In addition to that, you need to listen, read, analyze, be patient and fight till the end. Enjoy what are you doing and be always on top of your matter or case.
Secondly, what makes a lawyer stand out is the experience, specialty, intelligence and the ability to lead and deliver. The contribution and the investment of the litigator and the efforts exerted in the case are what makes the difference. Forming the right team and working as a team are basic values in any case or dispute.
My final recommendation is to always have the access to the right information and documents, choosing the right legal route from the beginning and presenting your case before the court in a simple, straight to the point manner.
The legal industry, in my experience, has developed significantly and positively in the last 20 years.
How have you seen the legal sphere change over the 23 years you have been practicing?
The legal industry, in my experience, has developed significantly and positively in the last 20 years. On the industry level, I witnessed and experienced the introduction of online legal services to the courts systems, for example, in the UAE: the establishment of many disputes centers, such as, DIAC, ADCCAC & QICCA; the rise of more local lawyers and firms; the increase in the number of female lawyers; the development of laws like the new arbitration laws in the UAE, KSA and Bahrain; and, the new cybercrime laws and the founding of new common law courts, like the DIFC Courts in Dubai and ADGM in Abu Dhabi.
On the legal level, I have seen the growing need for bilingual lawyers and the increase of the role of Arabic speaking lawyers for international clients and international law firms; at the same time, I have seen the growing demand for Common Law lawyers, for local and regional clients in the region, ever since the English language became the main form of communication in business and alongside the entry of many international law firms. Just to elaborate more, the role of bilingual lawyers gave law firms access to a bigger portion of the legal market and the reach to new clients, as well as enabling local lawyers to change their level of services, either by hiring Common Law lawyers or associating themselves with international law firms. This has been a positive and healthy competition which has since been introduced to the Middle Eastern legal market.
Are there any changes in the Middle East that you are advocating for? How will these changes affect your role, and your clients?
Constant change is imminent. Across my career and based on experience, I can advocate for the following changes in the legal industry in the region: enhancement of the role of experts, specialized lawyers in litigation and bilingual Arabic speaking lawyers.
The legal systems in the Arab countries adopt a concept in litigation cases known as the appointment of court experts, in all of the technical matters that a court is hearing. The expert officially represents the judge and the court, and the outcome of the expert’s role is usually done in a detailed report and is considered a legal document which is accepted by most of the courts. The courts then usually rule based on the expert’s conclusion. Having a professional and well-informed expert appointed in cases is highly crucial. This is why I always make sure that I attend, or my senior team members attend before the experts, since I believe that the case will be decided by the expert. A specialized team who masters the Arabic language is the winning ticket in dealing with such attendance and submissions. Finally, I advocate for a change in the hiring policy of international law firms in the Middle East to include more local and bilingual Arabic speaking advocates.
Practicing in a consistent way is the natural way for success, because success is a daily practice.
What is the importance of Sharia Law and Arabic in your practice?
The Arabic language is the official language used in all of the courts in the Arab countries and most of the Arab countries, GCC specifically, derive their laws generally from the civil law and Sharia principles. Whereas most of the international law firms in the region and the GCs of international clients come from a common law background, this is where our firm and my practice stands out as having Arabic bilingual lawyers who are experts in both Civil Law and Sharia Law. Thus, CRS Middle East bridges the gap and gives a full understanding of Sharia Laws to the clients. We pride ourselves in being one of the few leading international firms in the region to offer complete services to our clients. So, this where the role of bilingual Arabic native litigators become important, crucial and essential in any dispute or case.
What is the most favorite aspect about your role?
The most important aspect is being a leader, no matter what your position is. My favorite aspect of this is building a litigation practice which involves mainly managing people who come from different backgrounds and cultures. I enjoy organizing and motivating the people who work with me to work together, to achieve certain goals. As a manager I must understand people’s needs and behaviors in order to become an effective leader who can inspire and develop the team. Motivating people means to let them feel safe, respected and valued. In any case and dispute, I always seek to align the people working on the case behind a vision and inspire them to make that vision a reality, and this how you win a case or obtain favorable result for your client. Practicing in a consistent way is the natural way for success, because success is a daily practice.
Another favorite aspect of mine is building litigation teams and departments from scratch. I have done this in my career several times, especially when developing four law firms, one local firm and three international. Every time I accepted the challenge and started with one person, myself, and then I grew and expand the business and the team, which delivered results and budget in less than a year. I believe in investing in people and that every case is a new adventure.
Anything else?
Everything I did through my career was inspired by my late father’s passion for law, which made him a great role model and an amazing lawyer.
Also, I want to thank my family, clients and colleagues at CRS for their endless support.
According to reports, Kenya is set out to be one of the top five fastest growing economies in Sub Saharan Africa; how has the infrastructure sector contributed to this?
Infrastructure has an impact on several key components of Kenya’s economy and its growth. As at the end of the year 2017, transport accounted for 7.3% of Kenya’s Gross Domestic Product (GDP), electricity supply 1.7%, water and waste management 0.7% and construction 5.5%. Agriculture, manufacturing and trade, all of which rely heavily on access to infrastructure, accounted for 34.6%, 7.9% and 7.6% of the GDP. That means that infrastructure directly or indirectly affects about 65.3% of the country’s GDP.
Kenya moved up 19 places in the World Bank’s Doing Business 2018 to rank 61st amongst 190 economies across the world, continuing a four-year trend of consistent improvement in the ease of doing business in the country. The report examines factors such as access to electricity which is linked to power generation infrastructure and the ease of cross border trade which is affected by transport and logistics infrastructure.
Kenya is also home to a vibrant Information and Communication Technology (ICT) sector supported by a growing telecommunications infrastructure that has been noted for such characteristics as high internet speeds, according to the Worldwide broadband speed league 2018 report, high mobile phone usage and innovative financial technology products.
According to the United Nation’s Conference on Trade and Development Kenya also saw a 71% increase in foreign direct investment between the year 2016 and 2017 to $672 million; significant portions of the inflows could be attributed to the sectors highlighted above, including information technology as well as infrastructure projects such as the Standard Gauge Railway.
Eight years since Kenya enacted a Constitution which introduced a devolved government, the country is yet to develop and implement regulatory, institutional and procedural frameworks to facilitate county government-initiated, large scale infrastructure projects.
Have there been any regulatory or Bill updates which have contributed to infrastructure development?
Yes, Kenya is similar to some of the other African countries in the sense that the creation or improvement of regulatory frameworks is both a pre-requisite and a spur for the acceleration of infrastructure development. One of the significant legal changes was the introduction of a Public Private Partnerships (PPPs) Act in the year 2013 which created structures for the private sector to play a more active role in infrastructure development. Previously, PPPs were bundled together with other public procurements and the legal provisions governing them were inadequate to provide the clarity, processes and institutions needed to make them work. The enactment of the PPP Act was followed by the PPP Regulations 2014 and the Public Private Partnerships (Project Facilitation Fund) Regulations 2017, which set up a fund to support capacity building to finance the development and procurement of infrastructure projects, and to provide viability gap funding for projects.
In addition, changes in law have introduced several tax incentives for the infrastructure sector. Interest on foreign loans funding infrastructure projects is exempt from withholding tax; payments to foreigners for services rendered under a power purchase agreement are also exempt from withholding tax, and instruments relating to foreign loans advanced to investors in infrastructure are exempt from Stamp Duty.
A majority of infrastructure projects are undertaken at the national government level.
Where do you personally think Kenya is lacking, in terms of better developing its infrastructure; from this, can you share any changes you would welcome, to ensure the economy and country prospers in the future?
Eight years since Kenya enacted a Constitution which introduced a devolved government, the country is yet to develop and implement regulatory, institutional and procedural frameworks to facilitate county government-initiated, large scale infrastructure projects.
Another challenge is the availability and quality of data available to support the risk assessment that is a vital part of infrastructure development. While institutions such as the Public Private Partnerships Unit and the Ministry of Transport, Infrastructure Housing and Urban Development, are taking steps to collate the relevant information, there are still gaps in both macro and micro-economic data needed to support both public and private stakeholders in the infrastructure sector.
How would such changes also welcome increased development, such as ensuring smaller communities and villages have access to better transport or electricity (etc.)?
A majority of infrastructure projects are undertaken at the national government level. This centralisation places an immense burden on a handful of public agencies, which could be argued to limit both the number of projects and the speed at which they can be developed and implemented.
A framework for county governments to initiate, develop, procure and implement infrastructure projects would distribute the responsibility and potentially hasten access to the amenities and services linked to infrastructure, by prioritising infrastructure that is focussed on the needs of specific communities within the counties.
Mercy W Wairua is legal counsel at Mota-Engil Africa, an international developer and contractor with a legacy spanning more than 70 years of working on high impact infrastructure projects, with a focus on transport, logistics, power generation and waste management. Together with other legal counsel in the department, Mercy advises on the company’s projects across the African continent, utilising her knowledge on the legal aspects of infrastructure development, public private partnerships, project finance and power generation to contribute to the work undertaken by the projects and business development team. She is currently involved in infrastructure projects at various stages in Malawi, Uganda, Ghana, Zimbabwe, Nigeria, Mozambique, Rwanda and Kenya.
With sexual harassment being a focal point in 2018, what is on the horizon for 2019, regarding workplace harassment?
There is no specific new workplace harassment legislation expected in 2019 and it’s impossible to predict what the focus will be in terms of appeals against existing case law, or social equality movements such as #MeToo.
However, the House of Commons has been looking into the enforcement of existing legislation, so we would expect that the legal agenda is going to be focusing more on greater scrutiny and tightening up of the enforcement of existing rules, rather than new rights/restrictions being introduced.
Specifically, the House of Commons’ Women and Equalities Committee launched a range of enquiries looking at equality issues, including sexual harassment. This reported in July 2018 and found that there were issues with the enforcement of workplace equality.
Therefore, a further inquiry started in August 2018, gathering evidence on the effectiveness and accessibility of tribunals and other enforcement mechanisms and seeking suggestions on their improvement.
So, we could be looking at proposals for reform, albeit that many of those proposals could require legislation and, therefore, take longer to filter through.
The starting point is always to have a well drafted policy, supported by a clear procedure for dealing with complaints, including a right of appeal.
Suggestions from the first Women and Equalities Committee report published in July 2018 included:
In a linked development, this year has seen a focus on the misuse of ‘non-disclosure agreements’ which seek to prevent victims of harassment making complaints (e.g. Presidents Club scandal). The July 2018 Women and Equalities Committee report recommended tightening up on the use of non-disclosure agreements, e.g. making it an offence to misuse such agreements and requiring the use of standard, plain English so that the effect and limits of such clauses are understood. We could, therefore, see the use/extent of these agreements being curtailed in 2019.
How would you advise companies to assess their current systems, regarding reporting harassment? What system do you think is best, in order to ensure cases are reported by victims?
I don’t think there can be a single ‘one size fits all’ approach. A lot will depend on the size and culture of the organisation concerned.
For most businesses, they will need to review current documentation and cultural practices. The starting point is always to have a well drafted policy, supported by a clear procedure for dealing with complaints, including a right of appeal. But this needs to be ‘baked in’ to the organisation – not just left to gather dust.
Awareness is key: it’s important that your policy and procedure are published and communicated. Ask yourself:
A staff questionnaire may be useful to assess the level of awareness/understanding within the organisation.
Some organisations have Equalities Champions - someone to deal with issues on an anonymous basis and guide complainants through the process. An anonymous telephone reporting service may be also used.
You should implement workforce and management training, which shows that the company took all reasonable steps to prevent harassment from occurring.
How do you think that workplaces should handle the investigation process?
Again, there’s no ‘one size fits all’ approach and a lot will depend on the size and resources of the organisation and the nature of the complaint, but some key points are:
What should companies be doing to protect employees and manage potential liability that they may face?
I have two key recommendations here.
Firstly, you need a well drafted equalities / dignity at work policy which is publicised and embedded in the culture of the organisation, actively implemented (as set out above).
Secondly, workforce and management training is key. You should implement workforce and management training, which shows that the company took all reasonable steps to prevent harassment from occurring. This has a double benefit: it prevents claims from arising in the first place and limits liability if a tribunal finding is made. An employer will have a defence to a claim of harassment or discrimination if they can show that they took reasonable steps to prevent the discrimination or harassment from occurring.
But legislation is only one part of the picture; it takes cultural change, which is more difficult to put in place. Perhaps the driver for change will be social rather than regulatory.
A case example: Caspersz v Ministry of Defence UKEAT/0599/05
A sexual harassment case whereby EAT held that the existence of a "dignity at work" policy that complied with the Commission Recommendation on the protection of the dignity of women and men at work (92/131/EEC), together with evidence that the MoD had followed the procedures outlined in the policy, was sufficient to establish that it had taken all reasonably practicable steps . NB – however, note that the EAT stressed that the mere existence of a policy is not sufficient on its own, and that it is essential that the employer takes practical steps to implement it.
We would recommend that in order to ensure maximum protection from claims, workforce education is implemented at a range of levels, from high level Board training on the wider principles, through to management understanding of the more granular aspects and wider workforce training on understanding how to recognise, report and prevent harassment.
Do you think there needs to be any regulatory or changes in prosecution, for workplace harassment to be taken more seriously?
Possibly…given the level of current complaints, it’s obvious that the current legal framework isn’t working particularly effectively. But legislation is only one part of the picture; it takes cultural change, which is more difficult to put in place. Perhaps the driver for change will be social rather than regulatory. Given recent events (e.g. the Google protest) there does not seem to be any slowdown in the focus on sexual harassment as a headline issue.
Julian Hoskins
Partner
Julian Hoskins is a Partner in Employment Law at Bevan Brittan. He advises businesses of all types and sectors on employment issues, such as Boardroom disputes, senior executive terminations, reorganisations and redundancies, and discrimination and whistleblowing claims. He also runs specific training sessions for all levels of an organisation around sexual harassment and ‘MeToo’ issues.
Learning a second language is always a challenge but it is so important and he stresses learning a second language with his two sons who are currently 9 and 10 years old. He believes hard work pays off and he had to overcome many obstacles when realizing that being a lawyer was his dream job: “I did not have parents who could teach me the English language, let alone assist me in learning proper writing skills at a young age. It was definitely a challenge trying to navigate through the educational system here in the US.”
Nonetheless, he managed just fine, as now Ted is a lawyer in the Chicagoland area who has dedicated his expertise to the field of personal injury. We speak with him this month regarding a variety of matters; from his most prominent case, all the way to insurance issues.
First, we delve into a case which gained national coverage in the US which will be aired on HBO December 3, 2018 at 9pm. Ted along with Cannon Lambert Sr. and Larry Rogers Jr. worked together In this highly emotive case, Ted explains how the actions of him and the legal team impacted more than one life and made history.
Can you share your biggest case with us?
I was involved in the wrongful death case of Sandra Bland, a young woman who was found hanged by a noose in a rural Texas jail. You may remember her case from a few years ago, as it sparked interest around the US and beyond. Sandra used to attend Church with one of the main partners of our firm: Cannon Lambert Sr., so when her case came about, we naturally wanted to help her family gain justice[1][2].
Sandra – to put it rather frankly, a black woman - was driving down a road in Texas, where she was stopped by a white police officer for failure to signal a lane change. The interaction became heated; the officer didn’t like Bland’s tone and tried to throw her out of the car after threatening to Taser her. Bland was screaming and crying, and an eyewitness video shows Bland stating she cannot hear due to the officer slamming her head into the ground.
A big thing which is happening at the moment, is that a lot of police officers are wearing body cams, which is important as we now have documentation of interactions and know exactly how the events unravelled after traffic stops.
To summarise, instead of being charged with a minor traffic citation, Bland was arrested for a Felony, falsely accused of hitting a public servant and thus charged with aggravated battery to a police officer.
So it is not a matter of paying for a traffic ticket, now she’s taken to jail and there has to be a bond hearing; it was a weekend, so she had to sit there until a member of her family who resided in Chicago can come post bond and help her out. Needless to say, three days later they find her hanging from a noose in an isolated jail cell.
There was a federal case that went out in Texas, and I was part of a team that went down to Texas and litigated this case. The case was resolved, not just by the state of Texas, but DPS (The Texas Department of Public Safety) who not only paid compensation to Sandra’s family, but they also implemented a change in escalation training for their police department. They are teaching their officers how to deal with escalated situations and how to deal with people, who may also be suffering mental illness.
We implemented legislation down in Texas and we also saw the jail implementing changes themselves, so that people who may have a mental illness such as depression, or are at a risk of committing suicide, are monitored every half an hour. These changes were a big win for Sandra’s Family.
Another issue is the ego: we have to train and ensure that our officers do not feel entitled and above the law themselves.
The must watch documentary “SAY HER NAME: THE LIFE AND DEATH OF SANDRA BLAND” produced by Kate Davis and David Heilbroner will be aired on HBO Go and HBO Now 3 December 2018 at 9pm.
Do you think anything else could be done to reduce police misconduct cases? Are cases such as Sandra Bland’s case common?
It seems to be happening a lot, and I think the most important part of dealing with the police department, is creating more of a ‘community based’ policing system. This would mean the officers would not feel they can do whatever they want; proper training is needed for this, so they know how to deal with someone if they, for example, see someone with a gun. Seeing someone carrying a gun is not automatically a crime as we have laws stating citizens can carry weapons in the US, but officers need to know how to deal with such situations. If they don’t have the proper training, then situations escalate and get more heated than they need to be. Another issue is the ego: we have to train and ensure that our officers do not feel entitled and above the law themselves.
A big thing which is happening at the moment, is that a lot of police officers are wearing body cams, which is important as we now have documentation of interactions and know exactly how the events unravelled after traffic stops; we are able to see the interaction, what happened and if a crime committed or not.
We are slowly getting to a place where policing is more effective and slowly the community can regain trust in our officers, as well.
It is also vital for those making a claim to record every little detail, especially in reference to medical treatments.
So, you mainly specialise in personal injury law. What should be a client’s initial steps when presented with a potential case for personal injury?
The initial step is to ensure that the affected person contacts an attorney, so they do not have any contact with the insurance company/companies. Being in contact with insurance can pose a risk: they may take a recorded statement, which may produce a stronger case for them to deny claims, and further try their best to diminish the case at the earliest possible stage.
It is also vital for those making a claim to record every little detail, especially in reference to medical treatments. Clients should document every treatment and medical issue; we often see clients suffering in pain, but not documenting it by visiting the doctor or emergency room. A lack of documentation in this area then makes it look like such a problem did not exist, which may be vital further down the road when litigating.
I think that insurance companies should require higher coverage for individuals; too often the insurance coverage is not adequate for the number of injuries sustained.
What are the common challenges clients face when dealing with insurance companies? How do you help them through the complications that arise?
In my opinion, insurance companies will try limit the value of what your injury is worth, especially when they see that you are not represented by an attorney; they often try to reimburse your medical bills to cover liability, but there is a lot more to be compensated for when someone is injured in an accident. Insurance companies are also accountable for the pain and suffering, loss of wages, etc., and many other aspects that you should be compensated for, but often will not be, when you do not have an attorney. Even in some cases where a specialist or resources are unavailable in your area, [insurance] companies can help you get the proper treatment and send you in the right direction to help you on the path to recovery. So, it is very important that you get the maximum value for your injury.
Do you think there should be any changes for the betterment of your clients?
I think that insurance companies should require higher coverage for individuals; too often the insurance coverage is not adequate for the number of injuries sustained.
So, as an example, here in Illinois, people can opt for underinsured coverage whereby they get the bare minimum coverage (a $25,000 policy). Let us now pretend I am driving down the road and get in an accident where someone collides with me, thus making them liable for the accidental damages. If Regardless to whether I break my leg or injure my spine, the maximum amount I will receive from the insurance is the $25,000.
This causes an issue; drivers should obtain sufficient (underinsured/uninsured) coverage to cover themselves, especially if the other driver does not have sufficient insurance. A lot of people think, ‘well it isn’t my fault, so the other party will pay for the damages’, which is not the case.
Majority of the problems we may face relate back to the value of the claim and value of the injury, therefore it is great to get the feedback from the judge.
In your opinion, when should parties opt for dispute resolution (mediation or arbitration), as opposed to litigation?
Parties should opt for dispute resolution as often as possible, so they may reach an amicable resolution to their dispute, this way they can avoid costly litigation, aggravation and a lengthy court process.
What is the best way to prepare yourself for dispute resolution?
It is very important to read all the files and read all the pleadings; you have to make sure you understand the facts of the case, as well as the law. When you know the facts and the respective law inside and out, you are thoroughly prepared to go in to resolve the dispute. The advantage of preparing so well that if nothing is resolved, you are already somewhat prepared for arbitration, a hearing or potential trial.
Are there any complications that you have come across during dispute resolution and how do you work around that?
Sometimes during negotiating an offer may come in very low, which can potentially leave the parties aggravated and possibly more eager to proceed to trial. So, I would say that it is important to have a judge intervene here thru a pre-trial conference so he may make a recommendation to help both sides determine the value of a case.
Majority of the problems we may face relate back to the value of the claim and value of the injury, therefore it is great to get the feedback from the judge, after the facts from both sides have been presented. It is also better to come to a reasonable settlement of the case, rather than wasting time going to trial.
Are there any advantages of using litigation as opposed to ADR?
Advantages to litigation are having a more involved discovery process, as well as a selection of your peers as jurors, instead of a panel of attorneys deciding your claim. However, a tough aspect of litigation is the cost and the time involved. I would advise my clients to settle when possible and to be reasonable along the way. Sometimes, you have got to know when to “fold ‘em” as opposed to going “all in”.
I know that you have experience in the armed forces, how does this help you today?
In many instances, I would say it makes me more compassionate to other members of the armed forces, and allows me to relate to their struggles. When I can relate with my clients, I can give them proper attention and create a stronger bond, so they feel comfortable coming to me for other issues down the road. Even if I personally can’t help them, I will try my best to find someone else that can.
I also guess the discipline we learn in the armed forces also helps as well. It helps you to remain level headed in what can be highly emotional situations in litigating cases. It has helped me maintain composure to help get the resolution that I, and my clients, need.
Is there anything else you think you and your team do quite differently to others that specialise in personal injury?
We focus on treating all our clients with respect and maintaining contact with the clients; one of the main complaints I often hear, is that clients rarely get a call back when they want an update on their case. A lot of the times, a client - an injured party -, does not understand the system, so they need the guidance and need someone to keep them updated. Too often, people will come to us from other lawyers because we give specialised attention to our clients'; we give monthly updates and call them to let them know where things are going.
Ted Diamantopoulos is a lawyer serving individuals throughout metropolitan Chicago with all aspects of dispute resolutions. He devotes the majority of his practice to personal injury litigation.
He obtained his law degree from Thomas Cooley Law School.
He is also an active member of the Hellenic Bar Association, Illinois State Bar Association, and Illinois Trial Lawyers Association.
[2] https://www.nbcnews.com/news/us-news/sandra-bland-familys-lawyer-details-dashcam-footage-her-arrest-n395126
What critical strategic considerations are essential for success in a complex fraud investigation or asset recovery?
1. Where is the documentation/information I need?
Understanding where documentation is held, what form it is in, the ability to acquire it (whether provided at source, for example, in internal investigations, or if it has to be obtained through legal discovery tools) and being cognizant of the data protection laws of certain jurisdictions, are initial key considerations.
Complex frauds are often multi-jurisdictional, understanding international legal remedies is key in determining a successful strategy.
2. Where are the assets?
Getting reliable and usable information about where the assets are, is key if the investigation is likely to result in successful asset recovery. Whilst an entity (corporation or trust) that is the focus of a fraud investigation may be incorporated in the Cayman Islands, it is unlikely that any assets derived from fraud will actually exist here. There is no use pursuing causes of action and incurring the time and expense of those proceedings (including the risk of adverse costs being order against you) if you are not ultimately pursuing a recovery, particularly in complex multi-jurisdictional cases.
3. Are these in jurisdictions where there are robust legal remedies in place?
Complex frauds are often multi-jurisdictional, understanding international legal remedies is key in determining a successful strategy. We have heard many times from litigants pursuing claims (and maybe even having successful judgements) that they made no recoveries of assets. Too often we hear stories of wasted money and time spent pursuing a remedy that was not viable, or worse obtaining a judgement but failing to bring in a recovery. It is critical, therefore, that you do some research upfront to ensure those advising you, particularly offshore, have the relevant knowledge and experience to get you the best result. We use a range of remedies depending on the most efficient route to recovery. For example, we may use insolvency tools if there is debt owed, and in some fraud causes it may be possible to obtain a winding-up or receivership of a legal entity which could provide additional discovery powers regarding its assets, and possibly additional causes of action to be pursued.
The main difference will arise between civil law and common law jurisdictions; it can be more problematic to obtain discovery in civil law jurisdictions.
When undertaking cross-border investigations and asset recovery, how can processes differ across jurisdictions? What misconceptions and assumptions are often made about the ability to recover onshore and offshore?
One of the main challenges in complex financial investigations and asset recovery cases is their multi-jurisdictional nature. In cases where it is discovered that the perpetrators have used offshore corporate vehicles to conceal their proceeds of fraud, a common belief is that with bank secrecy and there being little public information available, there are few options to investigate the fraud and recover the assets. However, whilst the means in which to obtain information and pursue assets will differ, the reality is that many principles in obtaining information to assist in investigations or asset recovery apply equally in offshore jurisdictions as they do onshore, particularly in common law jurisdictions such as Canada, Australia, Ireland, Scotland, Hong Kong, Cayman Islands, the Bahamas, British Virgin Islands, the Channel Islands, and Gibraltar, just to name a few.
Therefore, obtaining disclosure from third parties through the Courts e.g. Norwich Pharmacal, or Bankers Trust Orders, are widely available and often used, making it possible to obtain details of bank accounts and assets from banks, auditors, and registered agents, (all of which should hold detailed KYC information on clients) which may be critical to the investigatory and asset tracing process.
The main difference will arise between civil law and common law jurisdictions; it can be more problematic to obtain discovery in civil law jurisdictions. However victims in civil law countries are not left without remedies, and assumptions about what can and cannot be done often occurs where there is a lack of experience in international asset recovery. We ensure we work with experienced local counsel to navigate the most effective and expeditious path to asset recovery.
We may reveal hidden files, recover deleted files, uncover timelines and other relationships among documents and communications and indeed this has often been the case when the perception was that the information had been deleted and was no longer available.
How does digital forensics and e-discovery tools help you and your clients in this line of work?
Using forensic software and other tools, we apply investigative and analytical techniques to examine digital devices in order to identify, preserve, recover, and analyse data for evidence or other relevant material. We follow industry standards to capture and present this information in a forensically sound manner which can then be used in a Court of law.
We may reveal hidden files, recover deleted files, uncover timelines and other relationships among documents and communications and indeed this has often been the case when the perception was that the information had been deleted and was no longer available. For example, in a recent money laundering and corruption case, we were able to forensically image mobile phone data to recover deleted messages and texts so that we could identify key persons and the level of involvement/knowledge in the fraud.
We often use e-discovery tools whereby through a series of complex processes, data is loaded into a platform where it is organised, and displayed in a manner where we may search, review, and analyse it. The data may be the result of a legal hold, in response to a request for production, or part of an investigation, and may include emails, stand-alone documents like Word and Excel, instant messages, calendars, and social media. Regardless of the format, the content, or the source of the materials, eDiscovery professionals and technology provide us with the ability find the needle in a haystack, quickly, accurately, and cost effectively. For example, I worked with a client whose legal counsel had obtained documentation in support of a corruption and money laundering investigation and was seeking to obtain a worldwide freezing order on a defendant. Fortunately the information had already been uploaded onto our e-discovery platform when we were first engaged to seize and image the data around 18 months prior. Within 48 hours we identified the transfer of millions of dollars from a construction project into the personal bank account of the individual concerned.
What differentiates you and your firm’s approach to financial investigations and asset recovery cases?
First is our hands-on approach. Our firm is markedly different in that we are heavy at the senior level, so each assignment is led and has the integral involvement of a senior member of staff. We do not delegate to junior staff the responsibility of the project. Nor do our senior team members only “front and end” the assignment; they are there step by step, and this allows us to be nimble and creative in addressing issues.
The second is our independence, we are focused on the client’s interests, and not from a prospective audit or tax relationship, which also means we very rarely have conflicts of interests. We are proud of the diversity in our team which includes a wide range of professional expertise, including asset tracing and verification, forensic accounting, insolvency practitioners, former law enforcement and IT forensic experts; having a multi-disciplinary team with experience in a wide range of recovery mechanisms, empowers independence and free-thinking that enables a truly practical approach for our client’s needs.
Thirdly, whilst we incorporate the assimilation of publicly available information as part of our methodology for identifying targets for asset recovery, KRyS Global differentiates itself from other firms in our knowledge, and use discovery tools and on the ground intelligence gathering, to find critical information outside the scope of our peers. We have unrivalled expertise in locating and recovering hidden assets in offshore jurisdictions, and understand that asset recovery is not just the acquisition and analysis of information and assets through technical expertise, but in implementing a considered but creative strategy in conjunction with legal counsel in criminal, civil or commercial dispute proceedings.
Angela Barkhouse is Managing Director at Krys Global, an international asset recovery firm with an expertise in offshore focused fraud investigations, cross-border insolvency and restructurings, and dispute resolution and litigation support. The firm has grown to over 50 outstanding professionals working from eight offices worldwide, predominantly situated in offshore financial centres; she leads the Cayman Island office.
Angela has over 15 years of professional experience consulting with governments, law firms, banks, corporations and NGO’s in investigating financial fraud, bribery, corruption, conflicts of interest, embezzlement, stolen sovereign wealth, and making cross-border asset recoveries, having assisted in a broad range of investigations using criminal, civil and insolvency mechanisms to provide practical solutions in ascertaining the facts and repatriating stolen assets.
Giorgio handles client contracts, including those for stakeholders within the food chain, ensuring regulatory compliance and advising on issues of Italian and European law. He is also assisting clients on contractual issues in a number of research development projects regarding food innovation. He touches on how he has developed his firm in Italy, the assistance food companies often need and future challenges lawyers may face in the food law sector.
What features do you consider winning for a law firm?
According to my opinion and in light of my experience, a law firm should be aware that it is crucial to offer its clients a wide range of qualified services, with a high level of specialisation.
I am particularly proud of the value my Firm offer for superior legal work. This is made possible through:
Every day we understand better and better the importance of a coordinated and integrated approach between legal and technical-scientific expertise.
What do you mean when you talk about “high level of specialisation”?
The world of legal consultancy is changing rapidly. Clients increasingly require expertise in very sector-specific areas.
In light of this, more than 15 years ago, I personally decided to approach the field of food & beverage law and I have acquired a significant experience in connection to all legal issues related to this industry. In 2017, I was named Food Lawyer of the Year for Italy, and The Legal 500 has ranked the firm as the sole in Italy in Tier 1 for the last three years.
Mondini Rusconi Food Law Team, under my coordination, is in the position to offer out-of-court advice and assistance in litigation with reference to all food law-related aspects, according to the principle “from farm to fork” which has been inspiring EU laws: from human consumption to animal feed, from special food to food supplements, from genetically-modified products to novel food.
In particular the assistance can involve: product liability issues; labelling and advertising; regulatory matters; contract issues; as well as in litigation, providing legal advice, among others, within advertising projects or for the creation of labels, both at the national and international level (for instance verifying the presence of all information required by law, the choice of a trade name, the wording adopted, or ensuring that the label bears no misleading nutritional claim); providing assistance both out of court in drafting contracts for companies operating at all levels in food industry, and in litigation before all authorities responsible for controlling food hygiene and safety.
Which kind of assistance do food industry companies need? Are they more interested in a local or in an international approach?
Since the beginning of my personal experience in the food law sector, I have understood that food companies’ needs can vary a lot between them, involving several different aspects: from the presentation of products (e.g. packaging, labelling and advertising) to the best practices of production; from the correct interpretation and application of food safety principles, to the food business development (including the management of the procedures for the authorisation, to placement on the market of special food, genetically-modified food, or novel food).
In light of these different requests, the food lawyer’s perspective cannot be limited and it must be aware of international dimension of many food business operators.
Being aware of the needs of multinational entities, my team maintain relationships with experts from different countries, and is in a position to provide assistance and consulting with reference to the Italian and EU markets as well as non-EU countries.
Through our standing relationships built over the years with foreign colleagues, in 2007 I promoted (in partnership with KWG in Germany) the creation of FLN – Food Lawyers’ Network Worldwide, an international pool of professionals set up with the purpose of sharing opinions and enhancing exchange of views and experiences between lawyers with expertise on food law from all over the world as well as offering integrated legal services to multinationals operating in the agri-food industry. Currently, the network numbers some 40 members and is able to provide assistance in approximately fifty nations. Some network members render consulting services to government agencies in emerging countries (including in the Middle East) to provide more in-depth insight into food safety issues, and assist local law-makers in the implementation of the related body of rules (where it is still non-existent).
Legal and innovation: do you think that lawyers are ready for the new challenges of food sector?
Innovative sectors of food industry need to improve both their image and the way they operate, by ensuring that consumers are always aware of the developments that involve them.
Every day we understand better and better the importance of a coordinated and integrated approach between legal and technical-scientific expertise. It is increasingly evident that a guiding and coordination role within the legal sector cannot be separated from an adequate scientific and technical support.
To ensure that companies operating in the food industry have a wider range of services, our firm works with specialised laboratories capable of providing timely, individualised counter-analysis, as well as with companies specialising in the field of food audits. Also through the collaboration with these special partners, we have the possibility to approach a wide number of issues, not only from the legal point of view, but also deepening the scientific aspects in order to better understand the best way to solve clients’ problems and find out new business opportunities. Inter alia, we are involved in an innovative movement regarding authenticity of wine, focused on the certification of authenticity and origin of products (e.g. through DNA profiling) and the measurement of known food components ‘good’ and ‘bad’, as well as the detection and identification of unknowns (e.g. through non-targeted analyses). This integrated scientific and legal approach is aimed at supporting brand protection and defending “made in Italy”.
Food & Beverage Law Practice: what are the key factors within your team?
I believe that the key factors within the Food & Beverage Law Team at Mondini Rusconi are the expertise of the food and drink lawyers as well as their passion and dedication. Omar Cesana, Lavinia Romani and Giulia Cozzolino are much dedicated to ensure a high standard level of consultancy, Interaction with the IP department is also important to offer a wide range of services.
When would you advise businesses to begin looking for talent outside of the US? What should be their first consideration when deciding to make that jump?
Businesses should work closely with their Human Resource (HR) departments to identify and to forecast their current and future talent needs. Once they have identified their talent gaps, they have to consider whether the current US labor market can fulfill them. Many American companies cannot find domestic talent with specific skill sets and consequently suffer from diminished productivity. If a business with specific talent objectives cannot meet them from the US labor pool, then they should begin searching for skilled talent from the outside.
When a business does decide to “make that jump”, they need to ask themselves if they are prepared for both the time and financial commitment necessary to bring in talent from outside the US. The immigration petitioning process can be slow and cumbersome, as well as costly should the US Citizenship and Immigration Services (USCIS) choose not to approve a petition on its initial submission. Businesses that have incorporated immigration into their budgets, and are aware of the potential wait times for approval, will find the process more manageable than those who jump in heedlessly.
How can businesses ensure they are well equipped to hire from outside of the US? What are the regulatory requirements that they must meet, in order to hire from outside?
Businesses should make sure that their HR departments are fully up to date with the current regulatory requirements. The USCIS have different requirements depending on the specific visa category. For H-1B specialty occupation visas, the prospective employee has to have at least the equivalent of a bachelor’s degree and the employer has to show that a degree is normally required for the position. For the L-1B, which is one kind of intracompany transfer visa, the business has to demonstrate that the worker has specialized knowledge that is not common in their industry. Businesses have to keep on file different kinds of documentation for employees holding different types of visas, and it is essential that their HR departments keep abreast of those requirements and work with immigration lawyers to ensure that they remain fully compliant.
If a business wishes to hire or transfer a foreign worker on a permanent basis, there are also immigrant visa options.
Can you share the differences between the various visas which employers are welcome to offer to skilled immigrants?
Businesses have several nonimmigrant visa options depending on the kind of worker they wish to bring in. The most well-known is the H-1B which I just mentioned. It permits a business to bring in a skilled employee for a specialty occupation - one that requires a bachelor’s-equivalent degree - for an initial stay of up to three years.
L-1 intracompany transfer visas allow businesses to bring employees from a foreign branch or subsidiary if they are coming as either managers (L-1As) or as specialty knowledge employees (L-1Bs), also for an initial stay of three years.
If a business wishes to hire or transfer a foreign worker on a permanent basis, there are also immigrant visa options. There are, for example, EB-1 visas for aliens of extraordinary ability, outstanding professors or researchers, and multinational managers and executives. The criteria for these visas are different than for nonimmigrant visas, but obtaining one provides a path to the green card. A skilled immigration lawyer can help a business to determine the best visa option for their prospective foreign-based employee.
Most companies need to understand the legal responsibility and liability that comes with sponsoring a foreign national.
What are common difficulties businesses are often presented with when first hiring skilled immigrants?
Most companies need to understand the legal responsibility and liability that comes with sponsoring a foreign national. Furthermore, the petitioning employer should make sure that the foreign national is well aware of their role and duties and how this will impact their interaction with US workers. US employers should also invest in training and career advancement skills before seeking foreign skilled labor.
Rami D. Fakhoury is the founder and Managing Director of Fakhoury Law Group (FLG, now known as FGI), the largest independently-owned business-based immigration law firm in Michigan.
