Understand Your Rights. Solve Your Legal Problems
Travelling internationally is an adventure for anyone, but for Paul, experiencing other cultures and societies via their laws, regulations and through business transactions or projects has been among the highlights of his career. Having lived, worked, and travelled to six of the seven continents, Paul shares with us his journey and offers some thoughts and advice for lawyers aspiring to counsel clients and companies across the globe.
How has your career developed over the years?
During law school at Indiana University, I thought it would be beneficial to develop my skills in a law firm and then move in-house to establish an international practice and develop management skills. During my early years of working in private practice in California, I resolved commercial disputes and defended clients from litigation in state and federal courts in the US.
From this work, I then started to look for opportunities that would allow me to become involved on domestic and international projects. Soon, I was handling global corporate transactions, including large real estate developments. As a result of that work, my Hawaii law firm seconded me in 1995 to the HQ of Itochu Corporation in Tokyo so I could advise on its international projects. This was an exciting time to live in Japan. After working in Tokyo for three years, including with a prominent Japanese law firm, Itochu Oil Exploration hired me as its first General Counsel to manage global energy projects. That one-year contract went on for seven years as we expanded the international portfolio of Itochu.
In 2005, I returned to private practice to advise US and international clients on cross-border projects and M&A transactions in Asia and elsewhere globally. In 2008, I joined Chevron Corporation and worked for seven years in Houston and Singapore handling commercial negotiations for transactions and projects in the US and internationally. I enjoyed this work, which was cutting edge in many ways. Then in 2015, Schneider Electric hired me as General Counsel for East Asia & Japan.
Having worked for American, Japanese, and French MNCs, along with major international law firms, I have been privileged to advise on matters in 40 countries and to work with sophisticated management teams. This broad experience has equipped me to handle a variety of challenges that come my way.
I try to be a “servant-leader” and help colleagues to be motivated and energised about the work we do together. I respect, empower, and trust colleagues to be productive and I listen to their ideas about efficiency for handling projects or transactions.
Describe a typical day of work for you.
My day usually starts by checking in with senior leaders, which helps me to set priorities for the day. Then, I may spend time drafting agreements and handling negotiations, advising Business Units on liability/indemnity or finance issues, consulting with team members or commercial colleagues, and working to resolve compliance cases.
I am a big fan of “plain-English” contracts and enjoy developing templates that enable greater speed and efficiency on transactions. I also make some time to read and connect with peers about industry and legal developments in the US and globally. I have a network of connections in business and legal circles that provide insight into current issues and business solutions.
How would you describe your leadership style?
I try to be a “servant-leader” and help colleagues to be motivated and energised about the work we do together. I respect, empower, and trust colleagues to be productive and I listen to their ideas about efficiency for handling projects or transactions. We set a strategy and then collaborate with Business Units to fulfil their objectives. We succeed as a team and their well-being is important to me as a manager. There are regular updates calls and an annual meeting to learn together and share best practices to ensure we are continually improving.
Cybersecurity, data protection, and supply chain management are among my top concerns this year.
Having a diversity of viewpoints acquired from different life experiences will always strengthen the overall quality of a team and the work produced for our clients. I have promoted diversity and inclusion in my leadership roles and actively seek opportunities to advance this.
What types of issues keep you up at night?
Cybersecurity, data protection, and supply chain management are among my top concerns this year. With more data being stored in the Cloud, lawyers need to support strong multi-layer security systems for companies and law firms. I led an initiative to encourage proactive, preventative efforts and collaboration with the IT Department to minimise the damage and loss caused by a cyberattack, which seems inevitable these days. Cyber-attacks have increased in 2020 through phishing and malicious links as more employees work remotely and from home.
Yes, lawyers should be open to using AI and innovative technology more as it develops further.
I train employees about new laws in relevant jurisdictions regarding data protection and reporting obligations should a breach occur. As these laws are constantly evolving, I work hard to stay current on all the enforcement requirements under the GDPR, the California Consumer Privacy Act, and the New York Stop Hacks and Improve Electronic Data (SHIELD) Security Act. In all agreements that I advise on, there are comprehensive provisions that protect company IP and proprietary information.
What are your thoughts on the AI and other technology for the legal industry? Should it be embraced more?
Legal teams continue to process more work with fewer resources, so I always consider how to work more efficiently. To the extent that AI or other legal technology enables me to process more work faster, then I am a huge proponent. Over the years, I have embraced innovative technology for all kinds of projects such as subsidiary entity data management, predictive coding in e-discovery on litigation/disputes, and for M&A due diligence.
In recent years, I have served as an adviser to a non-profit martial arts entity in Singapore, a global health organisation in Indiana, and a non-profit in the US that provides education and health care to communities in Uganda.
Yes, lawyers should be open to using AI and innovative technology more as it develops further. For various types of agreements, the ability of algorithms to review and analyse key provisions is impressive. Technology for patent and e-court filings are also helpful for lawyers handling those types of matters. Lawyers need to think about how professional or ethical requirements may require us to stay abreast of evolving technologies and AI that can be used in representing clients. At the same time, we need to supervise and understand the limitations of certain tools being used along with confidentiality obligations when using AI.
Can you discuss any involvement in the legal community and on pro bono matters?
I enjoy participating in activities outside of the office. Recently, I have spoken at seminars on the topics of compliance, law technology, managing a legal team, and dispute resolution. I have also written about cybersecurity, data protection and international sanctions law. Attorneys should want to share best practices with our peers and build a more connected and collaborative professional community.
Pro bono work is also personally important. In recent years, I have served as an adviser to a non-profit martial arts entity in Singapore, a global health organisation in Indiana, and a non-profit in the US that provides education and health care to communities in Uganda.
I encourage younger lawyers, particularly those in-house, to learn the business of the client. I cannot emphasize this enough.
Any advice that you would share with younger lawyers that has been beneficial for you?
Lawyers, at every level, should have good mentors and I encourage such mentors to be from both the legal and commercial side. Throughout my career, I have been fortunate to have quality mentors who provided helpful feedback along with great opportunities for professional development. Such feedback and opportunities enabled me to develop as a leader and become a trusted, reliable partner when advising clients. Building quality relationships and being open-minded to the views of others is important to work collaboratively and proactively as a team.
I encourage younger lawyers, particularly those in-house, to learn the business of the client. I cannot emphasize this enough. Quality advice is about more than a well-drafted contract or analysis of some law. Effective communication skills, cultural awareness, and the ability to understand the commercial aspects of a business are vital. Whether I am working on a project or transaction in the US or internationally, I actively listen to the goals and objectives to be accomplished and then stretch to “see around the corner” so I can grasp unspoken parts of a negotiation that may be important for a mutually beneficial conclusion.
Paul Fredrick
I am a US-educated lawyer and licensed to practice in Indiana, California, and Hawaii along with the federal court in Texas. As General Counsel - East Asia & Japan for Schneider Electric, I lead a team of ten lawyers based in seven countries and manage legal, compliance, regulatory and litigation/dispute matters on almost $2 billion annually of operations in 15 countries. In all my roles in-house and in private practice, I have enjoyed supporting clients on transactions and projects as we worked together to achieve their business goals.
Most Arab governments have carried out numerous legislative, institutional and procedural reforms and further improvements in their infrastructure to prepare their environment to attract foreign investment, across several axes, which can contribute to improving the investment climate in Arab countries.
“ Foreign Direct Investment (FDI) inflows to the countries of the region jumped during the period 2006-2011 to about $438.5 billion, with an annual average of $73.1 billion, almost seven times the total inflows received during the same period in 1999-2004, amounting to about $67.2 billion. With an average annual rate of $11.2 billion, it then deteriorated”, shares Dr Azab Alaziz Alhashemi, who plays a leading role in the field of international arbitration.
The role of arbitration and modern dispute settlement mechanisms has an impact on attracting investment to Arab countries. Given the prevailing belief that the judiciary in developing countries does not enjoy a sufficient degree of independence from political power, and in the absence of specialized national tribunals that are not experienced in investment cases and its complex areas, arbitration has become the only convincing and unique means of settling disputes.
“With the emergence of arbitration in the Arab world, however, most Arab and non-Arab investors have abandoned arbitration before Arab arbitration centres, and have even set aside Arab arbitration laws and turned away from Arab arbitrators and turned to international arbitration centres and laws other than the laws of their Arab countries”, expands Dr Alaziz.
How does investment reflect the judiciary setting in a jurisdiction?
The investment reflects itself in the judiciary setting as international arbitration has become the only convincing way from the foreign investor's point of view, to settle disputes with the countries he/she is investing in due to the following reasons:
If we quantify the turnover investor’s capital, we will find that these investments will be at much higher profits than the capital invested originally in the Arab countries.
Foreign investment flow to the region increased significantly to approximately $438.5 billion from 2006-2011. What are the reasons for this increase?
Foreign direct investment (FDI) is estimated to be $ 438.5 billion in the Arab countries, however, the foreign investments are in limited fields and do not include all sectors directly related to economic development. Most of these investments are distributed among service consuming sectors such as: oil, security, and tourism. Investing in the region helps the foreign investor to decrease the costs of production. The investors also gain some free of charge services in exchange for their investment such as gas, petrochemicals, and herbals which are useful in the pharmaceutical industry.
If we quantify the turnover investor’s capital, we will find that these investments will be at much higher profits than the capital invested originally in the Arab countries.
By investing in foreign lands, foreign investors avoid taxation and administrative fees that they would otherwise pay if investing in their own countries. However, financial corruption that occurs due to poor decision making resulting from the upper class distributing the wealth coming out of the FDI, has a direct effect on the poverty rate in these countries.
All of the points discussed above helps to constitute an economic and investment power in the countries of the world and provide added value to these foreign countries.
Why is the Arab business world an attractive investment force?
The investment nature and the volume of the business alone cannot determine the approximate capital invested abroad by the Arabs. However, as per the Arab Guarantee Corporation, the invested capital is between 800 and 1000 billion dollars while the Arab Economic Unity Council estimates the investment to be 2400 billion.
In addition, the Arab culture, in general, lacks the transparency of sharing accurate information. Most reporting sources of these investments are indirect such as stocks, bonds markets and global exchange. Most of the Arab investments abroad are private investments, which are owned by individuals. Very few public investments are owned by the government. For example, the Gulf government has been trying to invest in the returns of oil and gas in foreign capital markets. These funds are distributed between direct investments varied in real estate, lands, commercial companies, tourism projects, etc.
All of the points discussed above helps to constitute an economic and investment power in the countries of the world and provide added value to these foreign countries.
Technological development requires some changes in the law of arbitration.
Is the current legislation compatible with the judiciary development?
There is no doubt that the recent constitutional amendments in some Arab countries became essential entry points to reform the judicial system, with the approval of the judiciary body as an independent authority equal to the legislative and executive branches.
The effect will be great if the constitutional provisions affirming the independence of the judiciary are activated in a manner that guarantees to achieve constitutional principles in the judicial and litigation realities with their direct impact. There are Arab countries that do not comply with the current and constitutional legislations with the development of the judiciary branch, especially the executive laws for arbitration, due to the presence of a clear gap between the two sides.
Do you think development and advancement are necessary here?
Technological development requires some changes in the law of arbitration.
Some countries previously adopted independent law of arbitration, such as: Egypt, Qatar, Kuwait, Bahrain, and previously Iraq. Other countries chose to organise it within the procedural law framework such as: Kuwait, Libya, Lebanon, Morocco, Syria, and Qatar.
The effectiveness of arbitration whether it is ordinary or judicial depends on the rules of clarity of the roles governing it, which pays off in terms of ruling and implementation. However, if the rules are vague, the arbitration will not be effective and will not achieve its intended goals.
The need for new cultures and societal norms appears as the new reality we live in today which is represented in the business and investment sector, as well as the conflicts and legal problems which may accompany this vital facility and requires adjudication in these disputes.
The Arab investor’s confidence in the investment potential of Arab economies is still low; why is this the case?
The investment is considered an essential pillar of development. In addition to productive capacity, it constitutes a wealth increase which has an impact on satisfying needs, providing services while achieving legal and judicial security, as well as having a positive effect on the investor whether he/she is a national or foreigner.
Despite the encouragement, initiatives specified in legislation and regulations, the Arab investor will continue to lack confidence unless there is verification with regards to the existence of an independent and effective judiciary which would translate the texts. The existence of such a judiciary body was not available in the Arab countries for various reasons, which contributes to the lack of confidence of the Arab investor.
What are Arab arbitration laws ineffective in spreading the arbitration culture?
The need for new cultures and societal norms appears as the new reality we live in today which is represented in the business and investment sector, as well as the conflicts and legal problems which may accompany this vital facility and requires adjudication in these disputes.
For this, the international arbitration concept emerged and was in alignment with the judiciary branch to solve the disputes which arise between the litigants in this trial, in order to spread the arbitration culture in the Arab countries. These vital issues bring to light that we live in a changing world and a region in which local and regional conflicts and rivalries happen regularly. Therefore, we have to consider all these variables. Considering these variables requires highlighting the international arbitration concept as a basic principle in settlement disputes facing us at the local and international levels, and the legal means which protects the interests of all.
The most important reason for most Arab and non-Arab investors to abandon arbitration is that the local courts’ procedures will be included by state immunity principle, as well as the investor’s lack of familiarity with the local courts' procedures, and the fear of no procedures to accommodate investment disputes.
The international arbitration concept has become increasingly important as a preferred and effective means for resolving various disputes. This is due to its advantages, speed and effectiveness in resolving disputes, maintaining confidentiality, as well as achieving justice and maintenance.
This vital matter calls us to build strong relations with international organisations to continue coordination efforts to spread the arbitration culture to Arab countries and to build the arbitrators’ capacity in a manner that qualifies them to engage in all disputes that occur inside and outside the country. The international arbitration culture spreading in the Arab countries should be considered a higher priority among all the state institutions in order to go forward with the scientific progress witnessed by all societies and countries.
Meanwhile, many arbitration laws are ineffective in Arab countries, despite their importance to settlement disputes, especially arbitration laws linked to the executive mechanism aspects of arbitration decision making and its applications.
What are the reasons why Arab and non-Arab investors abandon arbitration?
The most important reason for most Arab and non-Arab investors to abandon arbitration is that the local courts’ procedures will be included by state immunity principle, as well as the investor’s lack of familiarity with the local courts' procedures, and the fear of no procedures to accommodate investment disputes.
Furthermore, there is no customary international law obligating any country to accept the resort to arbitration located outside its territory. Essentially, the foreign arbitrator settles disputes with foreign investors and the foreign investor’s resort to arbitration and international jurisdiction is still an exceptional matter in contemporary international law.
The legislator’s interference with legislation, laws, regulations and judicial mechanisms is important in settling disputes between dealers in the international trade field.
We find that most oil agreements contain an explicit text accepting the host country to deal with settlement disputes through arbitration courts that are held abroad. Furthermore, arbitration is the only available and effective means for settlement disputes arising from energy contracts.
A negotiation process must occur between producing countries and companies involved in drilling, exploration, processing, manufacturing, refining and export operations. These countries must start with ensuring their energy contract formulations are accurate. This is to ensure a fair balance between the contract parties. This is followed by ensuring the arbitrators are qualified to resolve any contract disputes.
What are the effects of the above and what can be done to change that?
The Arab countries are in a global situation which defines speedy transformations governed by the laws of economic globalisation, severe competition controls, as well as the differences in emergence between countries that possess capital and technical expertise and others that lack one or both of these elements.
The legislator’s interference with legislation, laws, regulations and judicial mechanisms is important in settling disputes between dealers in the international trade field.
The dispute settlement systems, such as negotiations, conciliation and mediation also play an important role in ending disputes before resorting to arbitration. Until desired goals are achieved, the arbitration agreement must be carefully crafted and certain procedural steps should be followed from the beginning of the dispute, until holding of the preliminary arbitration procedures session. The arbitration agreement should not be resorted to initially.
However, some reported that alternative dispute settlement systems, such as the new global system, have been beneficial in ensuring the exclusion of the ordinary judiciary from the disputes in which they are aside. This forum deals with means of arbitration and explaining the use mechanisms, learning about effective negotiation skills to organise contractual relationships and conclude successful contracts that are implemented without entering into disputes during the implementation process.
Hence, we are in urgent need to spread the arbitration culture and prepare competent Arab arbitrators to have technical skills and international arbitration capabilities.
The Arab League has been concerned with commercial arbitration and this interest was embodied in the conclusion of many agreements, including the agreement to implement the signed provisions in 1952, such as the arbitration provisions and the Arab Investment Guarantee Agreement in 1970 which stipulated arbitration as a means of settlement disputes. This is in addition to an Investment Distributions Agreement between host countries for Arab investments and other Arab countries in 1974, which called for arbitration as a means of dispute settlement.
Finally, Amman Arab Agreement for Commercial Arbitration in 1987, which is considered the most important Arab agreement in the commercial arbitration field, called for the establishment of a unified Arab Center for Arbitration Dispute Resolution with its headquarters in Rabat, but it has not yet been initiated.
Despite the efforts by the Arab countries in the arbitration legislation field to find legal tools to organise international commercial arbitration to establish many Arab arbitration centres, as well as joining the most important international agreements for arbitration, we have not yet reached the quality and professionalism in this field. There is also a clear disparity between the Arab countries in familiarity with vocabulary and mechanisms associated with the arbitration legislation field. Hence, we are in urgent need to spread the arbitration culture and prepare competent Arab arbitrators to have technical skills and international arbitration capabilities.
Dr Azab Alaziz Alhashimi
www.azabalhashemi.com
info@azabalhashemi.com
Azab Alaziz Alhashimi has more than 13 years of experience in international commercial arbitration, investor-state arbitration, and international arbitration.
He completed his university studies as an engineer specialising in information security protection. He obtained his doctorate in this specialisation in 2010 and has pursued his career in international arbitration in several countries.
He has served as an arbitrator of disputes on all continents, following UNCITRAL rules, the International Criminal Court, and the Permanent Court of Arbitration in The Hague.
He has received high and exceptional qualities in international arbitration for his essential role in spreading the culture of mediation in several countries. He has also won significant awards and trained an elite of intellectuals, lawyers, academics, ministers and leaders. He has received the title of International Arbitrator" International Advisory Body in the Kingdom of Norway.
Dr Alaziz plays a leading role in the field of international arbitration and investment and has a significant impact on the construction of his investments And those of his partners.
He has built more than 60 companies in various disciplines for a wide range of investors in the United Arab Emirates and Great Britain. He has a thorough knowledge of the understanding and practice of International law and only operates in the legal context.
These agreements, either before or after marriage, serve equally as estate planning as they do for the unintended divorce. By agreeing before the conflict or death, costly litigation is avoided. But only if the prenuptial agreement is enforceable.
There are three keys ways to ensure an enforceable prenuptial agreement. These agreements get set aside or reformed (partially set aside) by contract law defenses that a party may raise, such as fraud, misrepresentation, mistake, duress, coercion, undue influence, capacity, illegality, unconscionability and lack of formation (e.g. lack of consideration).
The first step to take, and thoroughly complete, is financial disclosures of each party’s assets and liabilities, with the disclosures attached to the agreement. Complete disclosure gives both parties actual knowledge of what they agree to waive. Incomplete disclosures will not automatically cause a court to set aside or reform the agreement, but a material nondisclosure is carefully considered by the court and creates litigation otherwise avoidable by proper disclosures. The Maryland court says the test for the validity of a prenuptial agreement is whether there was “overreaching” or “unfairness or inequity in the result of the agreement or in its procurement." Stewart v. Stewart, 214 Md. App. 458, 462 (2013). The best way to avoid this validity attack is to have a “full, frank, and truthful disclosure” of all property being waived.
It is important for each party to have their own independent counsel so that each party has received legal advice about the terms and had an opportunity to negotiate those terms. While independent counsel does not insulate the agreement from attack, it creates a strong barrier against claims of fraud, misrepresentation, mistake, duress, coercion, undue influence, capacity, illegality, unconscionability and lack of formation (e.g. lack of consideration). Such defenses are precisely what lawyers are hired to protect against.
A common reason for prenuptial agreements to be set aside is when they were entered too quickly on the “eve” of marriage or close to that date, especially if the negotiations leading up to the execution were in short duration and the agreement was largely drafted by the monied spouse’s counsel, such that a reasonable person may believe the agreement was rushed into, without full understanding, for the sake of proceeding with the marriage.
In sum, the best way to ensure the validity of a prenuptial agreement in Maryland is for both parties to disclose all financials, hire independent counsel and take time to carefully consider the terms.
About Stuart Skok:
In college, I was not sure what I wanted to be “when I grew up”. The best advice I received was from my late dad, who always said, whatever you do, what’s important is the intention you bring to your work. You should do something “that matters to you and to the world” in a way that leaves the person or organization you serve better off because of you. Don’t just show up to put something on your resume – leave your legacy in a way that matters. It occurred to me that there are so many ways I could achieve this as a lawyer.
I practice family law because I like to help people rise from what is often the worst time of their life. It never fails to inspire me when I see my clients overcome what they thought they could “never” do. My favorite meeting in a case is often the last – when the divorce decree is delivered, the case is resolved, they have a big sigh of relief and I hug them goodbye.
After 20 plus years of practice as a partner in mid-size law firms, I came to realize that I am meant to be an entrepreneur. In 2017, I was at a crossroad for change. A choice between doing what I had always done or following my heart to do something new. I realized every effort I made towards creating a new firm was taken with excitement and passion and every effort on the other path was taken with dread. So I chose the other path, opened my law firm in December 2017 and now, looking back, I have the career and success I always envisioned.
Stuart K. Skok, Esquire
Stuart Skok Law LLC
2275 Research Blvd., Suite 500
Rockville, MD 20850
(301) 296-4512
sskok@stuartskoklaw.com
www.stuartskoklaw.com
Stuart K. Skok, Esquire has practiced matrimonial and family law for over 20 years. Her firm’s mission is to assist clients in looking forward and visualizing the path ahead through innovative thinking and collaborative approaches.
The first thing to consider is: What type of mediation is best suited for the particular fraud dispute in question? There are two types of mediation: facilitative mediation and evaluative mediation.
Facilitative mediation
In a facilitative mediation the mediator’s role, as the title of the type of mediation suggests, is to facilitate the participants to reach an agreement. I would recommend that those attending a fraud mediation should be called “participants” and not “parties”. My recommendation in a fraud dispute is to set the tone, both in pre-mediation correspondence and at the mediation, by using the word “participants”. Choosing to do so helps to promote a friendly atmosphere in a fraud dispute; it is conducive for a settlement and it helps attention to be diverted away from entities, personalities, dislikes - by and against both -, and onto the real issues in dispute.
One key characteristic of facilitative mediation is that the mediator has no form of judicial, arbitral or other decision-making function. This is particularly important when considering what sort of mediation to recommend to clients in fraud disputes. If the fraud dispute lends itself to one where some sort of decision may be needed to help reach a settlement, then a stand-alone facilitative mediation may not be the most appropriate form of mediation. Below, I list the situations where a facilitative mediation on its own might not stand in a fraud dispute.
Evaluative mediation
Returning to the types of mediation, the other type of mediation is evaluative mediation.
In this type of mediation, the mediator is asked to give a (normally) non-binding opinion on the merits of the matters in dispute.
An alternative to the provision of an opinion prior to the participants meeting with the mediator in a fraud dispute is for the mediation to commence and then agree on a set time (say, in four subsequent hours) for a non-binding opinion to be obtained from the mediator.
This opinion can be provided at various stages in the mediation process. It could be provided before the participants meet with the mediator; the opinion is thereafter used as a basis of settlement discussion between the participants at the mediation. I am very keen on this form of process, and I have written about the mediation process, including a form of Practice Note, as an Appendix to the next edition of Contentious Trusts Handbook, the leading textbook written by Carl Islam of 1 Essex Court. This way of using the evaluative form of the mediation process, on which I am, as I have said, very keen, either with or without a facilitative mediation, will, I believe, become more and more popular in fraud disputes because it takes the heat out of the situation, which is very helpful in fraud disputes where almost always the temperature is very high.
An alternative to the provision of an opinion prior to the participants meeting with the mediator in a fraud dispute is for the mediation to commence and then agree on a set time (say, in four subsequent hours) for a non-binding opinion to be obtained from the mediator. The mediation is thus adjourned with a fixed date/time to continue. I would recommend set times in fraud cases because it concentrates the mind. I also recommend fixing the next date in fraud cases because it keeps the participants feeling that they are very much in mediation-mode. The particular advantage of this process is that the non-binding opinion can take into account all that has been said to date at the mediation. Further, in fraud disputes, a break in the mediation process allows the dust to settle and wiser counsels to prevail. In my experience, fraud disputes are often complicated and are tangled affairs; therefore clear heads and a pause for thought often pay serious dividends.
Considerations for settling a dispute
I address now what the participants to a fraud dispute should consider in order best to settle the dispute.
First, they should, in my opinion, consider whether the fraud dispute is amenable to settlement at all. I am not one of those mediators who says that every fraud dispute is amenable to mediation. Some may be too intractable to resolve without court or arbitral process.
Another classic example is a case where creditors are seeking to trace assets and get behind various companies into which relevant assets have been placed as a result of fraud.
Secondly, and in any event, my recommendation is that mediation should certainly be considered in every fraud dispute, not least because the courts in these modern times increasingly say that mediation should be considered in every case with costs consequences following if it is not. However, if mediation is not suitable, my recommendation is that this should be made plain in correspondence so that this can be referred to at the costs stage of the fraud dispute, after final court or arbitral resolution, by way of corroboration.
Thirdly, if it is considered that mediation is a sensible route for the fraud dispute to be resolved, then I recommend that the issue of which type of mediation to use should be carefully examined. There is not a specific rule that can be applied to all types of fraud disputes; they all need to be carefully analysed.
It is worth looking at some examples of fraud disputes as these can be used as a guide. A classic example is a case where there is an issue about whether a trust-creating instrument has been procured by fraud. In order to achieve the best result on a settlement, this type of fraud dispute may well be one where it would be very beneficial to have a non-binding opinion as to the validity of the trust, including the circumstances surrounding its creation, coupled with a facilitative mediation.
Another classic example is a case where creditors are seeking to trace assets and get behind various companies into which relevant assets have been placed as a result of fraud. In order to achieve the best result in a settlement in this type of fraud dispute, it may well be the case where a facilitative mediation will be the most beneficial form of mediation, because there may be a deal to be struck between allowing the asset tracers to have some of the assets - but leaving the companies otherwise intact - coupled with an undertaking by the tracers not to wind-up the companies and not to seek an opportunity to trace any further assets.
Using the mediation process to settle
I recommend that, even if the mediation is getting bogged down, the participants should try and keep the mediation from coming to an end.
I have considered how best the choice of mediation can be used to settle fraud disputes. I now look at how best to use the procedure in mediations in order to reach a settlement in fraud disputes.
ANTHONY TRACE QC
4 Pump Court, Temple, London, EC4Y 7AN | www.4pumpcourt.com
While sub-section 1 to 10 of section 230 has been operative since 2016, the MCA, after a gap of almost three years, has finally notified some of the key provisions under section 230. These notified provisions pertain to the takeover of unlisted companies by majority shareholders (through squeezing out of minority shareholders) under a scheme of compromise or arrangement. Takeover offers with respect to listed companies in India will continue to be governed by the relevant regulations framed by the Securities and Exchange Board of India.
Section 230(11) provides that any scheme of compromise or arrangement involving unlisted company can include a takeover offer made in a prescribed manner. Further, section 230(12) permits any party aggrieved by the takeover offer to present its grievances with respect to the takeover offer before the National Company Law Tribunal (“NCLT”) by filing an application in a prescribed manner. The MCA, simultaneously with the commencement of sections 230(11) and 230(12) of CA 2013, also notified the consequential amendments in the Companies (Compromises, Arrangements and Amalgamations) Rules, 2016 (“C&A Rules”) and the National Company Law Tribunal Rules, 2016 (“NCLT Rules”) which deals with the procedural aspects of the takeover offer.
As per the C&A Rules, an application for a takeover would need to contain, amongst other aspects, the report of a registered valuer disclosing the details of the valuation of the shares proposed to be acquired by the majority shareholders.
The recently notified provisions allow the majority shareholder(s) holding not less than 3/4th of the total shares (i.e., equity shares of the company carrying voting rights, and includes any securities, such as depository receipts, which entitles the holder thereof to exercise voting rights) in an unlisted company to make a takeover offer for acquiring any part of the remaining shares of the company, through an application for the arrangement to be submitted with the NCLT.
As per the C&A Rules, an application for a takeover would need to contain, amongst other aspects, the report of a registered valuer disclosing the details of the valuation of the shares proposed to be acquired by the majority shareholders. The C&A Rules further provides that the valuation report should be prepared by a registered valuer after taking into account (a) the highest price paid by any person or group of persons for the acquisition of shares of the company during last 12 months, and (b) the valuation parameters including return on net worth, the book value of shares, earning per share, price earning multiple vis-à-vis the industry average, and such other parameters as are customary for valuation of shares of such companies. It appears that the provisions regarding valuation of shares have been inserted in the rules for the purpose of ensuring a fair exit price to the minority shareholders. However, considering that valuation has always been a debatable issue which depends on a number of factors, including sound judgment of the concerned valuer, it remains to be seen if the above guidelines would be helpful in ensuring a fair exit price to the minority shareholders.
As far as protection of minority interest is concerned, it appears from the C&A Rules that the only protection available to the minority shareholders would be payment of a fair price for the shares held by them in the company.
The C&A Rules also cast an obligation on the majority shareholders proposing to acquire the shares under the takeover offer to deposit a sum equivalent to at least 50% of total consideration amount of the takeover offer in a separate bank account. It is evident that this has been done with a view to secure the consideration to be paid to the minority shareholders. However, considering that substantial time would be involved in the disposal of the application by the NCLT, this may lead to a liquidity crunch for the shareholders proposing to acquire the shares under the takeover offer as the funds would remain blocked in a separate bank account.
It is pertinent to note that the C&A Rules by way of an explanation provides that the provisions of section 230(11) of the CA 2013 including the rules made thereunder would not apply to any transfer or transmission of shares through a contract, arrangement or succession, as the case may be, or any transfer of shares made in pursuance of any statutory or regulatory requirement. Therefore, in effect, any transfer of shares under a private arrangement would continue to be governed as per the contractual terms agreed between the parties and shall be outside of the purview of section 230(11) of the CA 2013.
The CA 2013 also provides other modes through which exit of minority shareholders can be ensured from the company, such as through selective reduction of capital under section 66 of the CA 2013 or through the purchase of minority shareholding under section 236 of the CA 2013.
As far as protection of minority interest is concerned, it appears from the C&A Rules that the only protection available to the minority shareholders would be payment of a fair price for the shares held by them in the company. While section 230(12) and rules made thereunder provides an avenue to the parties aggrieved from the takeover offer to put forward their grievances before the NCLT, it is not clear as to what relief that they would be able to secure from the NCLT except a payment of fair price for their shareholding in the company. This clearly establishes the rule of majority under the CA 2013, whereby the shareholders holding the majority interest in the company would be able to push out the minority upon payment of a fair price. It would therefore now be more important for minority shareholders to have appropriate protective covenants in the shareholders' agreement/ articles of association of the company. This can help in ensuring that the provisions of section 230(11) are not utilised by the majority shareholders for forcefully removing the minority shareholders from the company.
To conclude, it can safely be said that commencement of sections 230(11) and 230(12) and the rules thereunder is a welcome move which will certainly facilitate the purchase of the minority interest in the company.
The CA 2013 also provides other modes through which exit of minority shareholders can be ensured from the company, such as through selective reduction of capital under section 66 of the CA 2013 or through the purchase of minority shareholding under section 236 of the CA 2013. However, the commencement of section 230(11) would certainly provide an additional measure for ensuring the exit of the minority shareholders. Each of the aforesaid modes has its separate process and preconditions, and the mode to be opted out for the purchase of minority interest would need to be decided on a cases to cases basis. The factors which would need to be kept in mind while selecting a mode for acquisition of minority interest in a company would include the timelines for completion of acquisition of the minority interest, the tax implication arising out from the transaction and the stamp duty, if any, to be paid on the transaction value. One of the important aspects which single out the takeover offer under section 230(11) of the CA 2013, is that all other modes for purchase of minority interest are required to be followed as a separate process under the CA 2013. However, the takeover offer under section 230(11) can form a part of a scheme of compromise or arrangement proposed by the company or its members or creditors and is not required to be followed separately.
To conclude, it can safely be said that commencement of sections 230(11) and 230(12) and the rules thereunder is a welcome move which will certainly facilitate the purchase of the minority interest in the company. However, the protection which it will offer to the minority shareholders and the nature of their grievances which would be taken into account by the NCLT while adjudicating upon the application involving takeover offer would only become clear with time.
For any clarification or further information, please contact:
Neetika Ahuja
Associate Partner
E: neetika.ahuja@clasislaw.com
Vikrant Anand
Senior Associate
E: vikrant.anand@clasislaw.com
The very first month of 2020 saw Travelex, Microsoft and Regus experience high-profile data breaches. The enactment of GDPR and the ICO’s intention to fine British Airways £183m for its 2018 cyberattack – plus the estimated compensation pay-outs that could reach the billions – has not resulted in businesses taking cybersecurity seriously.
But how much of this inaction is down to a lack of understanding about data safety? The increasing digitalisation of information storage is not being met with additional staff training and employees are often unaware of how to avoid simple data leaks that could have catastrophic consequences.
So, how can businesses approach data security and protect themselves from any reputation-tarnishing breaches? Aman Johal, Lawyer and Director of Your Lawyers, shares his advice with Lawyer Monthly.
The importance of educating your staff about cybersecurity cannot be understated. If your employees are not clued up, you don’t have a viable defence. Your defence is only as good as the weakest link – it’s as simple as that.
But despite the constant threat to consumer data, businesses are still dragging their heels and failing to upskill staff or at least bring in experts. For example, the 2019 State of IT Security Survey found that email security and employee training were the top issues faced by IT security professionals. Yet, more than 30% of employees surveyed by Wombat Security Technologies didn’t know what phishing or malware was. That’s almost a third of employees not even knowing what two of the most basic forms of cyberattacks are.
There’s a clear gap between what employees need to know about cybersecurity and the training opportunities available to them from their employers.
Your defence is only as good as the weakest link – it’s as simple as that.
The risks posed by not educating your staff extends beyond defence. For instance, without adequate training, your staff can easily end up being the cause of a data leak. This was the case in the New Year’s Honours list leak, where a member of staff didn’t seem to think that publishing the addresses of more than 1,000 honour recipients constituted a data leak. It was a farcical and avoidable act which showed a total lack of regard and understanding of the most basic security protocols.
A similar situation arose with the Wyze Labs data breach in December. Here, a mistake by an employee when using the company’s database exposed the personal information of 2.4 million users, including protected health information and email addresses.
Your employees need proper cybersecurity training to protect themselves and the company from cyber-attacks, and data protection training to avoid other breaches and leaks. By making employees aware of security threats, how they might look and what procedures to follow when a threat is identified, you’re strengthening the most vulnerable links in the chain.
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At the same time, it’s the employers’ responsibility to make sure that employees are not put in a position where they can cause a data leak. The 56 Dean Street Clinic and the Charing Cross GIC clinic leaks are perfect examples. Instead of the organisations making use of readily available mass mailing software, employees were instead left to send emails to people using the BCC function. Unfortunately, on both occasions, the BCC function was not used, and the recipients’ private and sensitive confidential medical data was exposed.
These events are often referred to as “human error” breaches. In reality, they are the result of systemic failures within the organisations.
All businesses are legally required to take all reasonable steps to prevent cybersecurity incidents. They should have effective defences and infrastructure in place to prevent third-party threat actors from gaining access to their systems, networks and information. It should be thorough: from basic protocols, such as encrypted storage, to the use of professional tools like firewall protection.
We know that businesses still take a lax approach and almost seem surprised when a data breach is followed by a hefty regulatory fine and compensation claims. The rules are clear – if you breach the law, you can be liable to compensate those affected.
British Airways was recently handed a provisional fine of £183 million for their 2018 cyberattack. But this financial cost does not account for the huge bill to compensate consumers – estimated to be £3 billion – and the loss of consumer trust which follows a data breach.
The rules are clear – if you breach the law, you can be liable to compensate those affected.
Security experts have suggested that British Airways could have spent as little as a few thousand pounds on a bug bounty to avoid their infamous 2018 cyberattacks. Instead, they’re facing costs that may hit the billions.
It’s not an understatement to say that competition in sectors could be shaped by data breaches. Those who experience an attack could face reputational damage that’s so significant that they lose market share, and the costs of meeting regulatory fines and compensation claims could be ruinous. Businesses simply cannot afford to treat cybersecurity as an afterthought and must urgently be more proactive in their approach and bolster their online security if they have not already done so.
In fact, Coronavirus has prompted a 76% jump in the demand for Wills in the last two weeks, as revealed by deVere Group. The company stated that the dramatic increase for its Wills service has been driven by people’s “minds being more focused” on certain aspects of financial planning due to the current pandemic.
Nigel Green CEO of deVere Group said: “Like too many aspects of financial planning, including retirement planning, drawing up a Will is not something that most people rush to do.
“It remains ‘on the back burner’ until something, such as an illness or a change of circumstances, focuses minds.
“With frightening death tolls and confirmed cases, with more people than ever bravely risking their own health to help others, and with more people with more time on their hands due to social distancing measures and lockdowns, the coronavirus pandemic has had an unprecedented, collective focusing-of-minds effect.”
He continues: “In these highly unusual and worrying times, we should all be playing our part.
The current rules and restrictions on social distancing and isolation have posed some unprecedented challenges for Will writers and those wanting to get their affairs in order in response to the threats we are facing and future uncertainty.
Below, law firm Prettys have explained how they have adapted their practices to prioritise the writing, reviewing and signing of Wills. Whilst following government guidelines on social distancing, they have ensured that the essential service provided by their Will writers is as accessible as possible to clients and families who may require it.
The challenges faced
Perhaps the biggest challenge faced under the current circumstances is the signing and witnessing of Wills in order for them to be deemed valid.
The Ministry of Justice has recognised the need for a period of relaxed rules. It has been discussed whether signings and witnessing could take place remotely, via video call technology. This would be an exception to the current requirement for all parties to be present in the room when signing.
The need for this becomes even more apparent, when the matter of deathbed Wills is brought into question, as those hospitalised and reaching end of life care with the coronavirus are unable to be with friends and family and those all-important friends, neighbours or legal professionals who would normally act as witnesses.
In these cases, there is a plea for hospitals to also relax their rules around doctors, nurses or other members of staff witnessing patients’ Wills.
Although, there are fears that with a more relaxed standpoint, many vulnerable people could be taken advantage of, as the face-to-face interaction currently in place ensures the Will definitely outlines the client’s wishes.
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An adapted service
The current challenges being faced by all businesses and services are causing a lot of disruption and change. This is certainly not ideal in situations where individuals and families are making important decisions about their affairs and, as a result, firms are putting measures into place to enable them to continue catering to client needs.
Upholding their duty of care and commitment to clients, the courts and the Law Society, Will writing solicitors must continue to provide their services throughout this challenging time. In order to do so and keep themselves and clients safe in the process, it has become important to use remote means of communication, such as telephone and video calls as well as email to take instructions.
From here, solicitors will be able to draft a Will in accordance with their client’s wishes and their timeline. In urgent cases, Wills can be turned around in a matter of hours and in less pressing cases, a one to two-week deadline can be expected.
Although it may be some time before we see changes to the law itself, Wills can still be written and signed in less conventional ways, allowing those in need to rest assured that, no matter what the future holds, their estates and affairs are safe.
Signing your Will
Emma Woollard, Partner in the Wills, Trusts and Estates team at Prettys, explains how in cases where individuals are well but are self-isolating at home, the firm has had to be innovative in order to get Wills signed and validated.
The firm has always offered an at-home service whereby they go to clients' houses, if they are unable to come to the office, and this has become the new norm for current signings.
Abiding by social distancing rules and ensuring staff and clients are put at no risk, Will signings are taking place through house windows, patio doors, either ends of a drive or corridors long enough to allow at least two metres distance. Although it is clear that there is no easy solution, this is an example of how the firm is ensuring clients can get their affairs in order by any means necessary.
Therefore, despite the challenges, solutions are still being found - some reassuring news for individuals or families without Wills in place who may be worried that it is too late.
Preparation rather than panic
Over recent weeks, not only has there been an increase in demand for Wills but also, their urgency. Under the current circumstances, this is understandable but individuals are being reminded that Wills are about preparation, rather than panic.
Whether you're concerned about your own health, a loved one’s or if the pandemic has reminded you to review an existing Will, firms are advising that they are well-equipped to provide the service clients require. Therefore, rather than entering into a panicked decision, it is advised that you and your loved ones put thought into the following:
This information will allow you to create a basic Will that can help you get your affairs in order without the process becoming too chaotic at a time already full of adversity.
With all that is going on, it is easy to become consumed by feelings of stress and panic. However, it is reassuring to see how firms are stepping up and making necessary adjustments to cater to their clients’ needs. Although it may be some time before we see changes to the law itself, Wills can still be written and signed in less conventional ways, allowing those in need to rest assured that, no matter what the future holds, their estates and affairs are safe.
Bridget Deiters, UK Managing Director at InCloudCounsel, breaks down the latest developments in LawTech and what they mean for the UK legal sector.
The legal sector is undergoing rapid transformation driven by technology, with agile legal tech service companies introducing better ways of practicing law and delivering legal services. In a survey by Robert Half Legal, 34 percent of responding lawyers said in 2017 that emerging technologies would have a greater impact on the practice of law during the next five years than governance regulations, globalization, and even data security concerns; and, in the Thomson Reuters 2019 Legal Tracker LDO Index, 70 percent of law department attorneys ranked the use of technology to simplify workflow and manual processes as a high priority.
With respect to transactional legal work, the services offered by alternative legal service providers (ALSPs) range from AI-driven document review apps to end-to-end tech solutions for managing routine agreements, such as NDAs and vendor contracts, and helping companies streamline high-volume legal tasks.
Given their focus on identifying and mitigating risks for demanding clients, lawyers have historically been reluctant to adopt new technologies, but as more ALSPs prove their reliability, that reluctance is gradually declining. Around 50 percent of corporate legal departments surveyed in 2018 reported they were concerned about ALSP quality, compared to 58 percent in 2016, according to research by Thomson Reuters, Georgetown Law, Oxford Saïd Business School & Acritas.
Particularly in the case of recurring transactional work, ALSPs with technology-enabled solutions have demonstrated their accuracy and utility, thereby addressing a fundamental flaw in the pricing of legal services: how to differentiate between bespoke, highly-sophisticated legal work and routine, high-volume documentation, diligence and compliance processes that are often repetitive and time-consuming.
Given their focus on identifying and mitigating risks for demanding clients, lawyers have historically been reluctant to adopt new technologies, but as more ALSPs prove their reliability, that reluctance is gradually declining.
In most large law firms, routine work is delegated to the least experienced people on the team. This often means that clients are being billed at premium law firm rates for low-value work done by junior lawyers.
A better option for law firms and their clients may be to outsource that high-volume, routine work to a tech-enabled ALSP that has affiliated law firms or networks of experienced lawyers who can deliver high-quality work without the premium law firm price tag.
By partnering with an ALSP or by connecting their clients with an ALSP with a proven track record of reliability, law firms can focus their resources on resolving their clients’ most challenging legal issues.
Similarly, in-house legal departments are often tasked with routine contract work that distracts them from focusing on value-generative legal work that leverages their institutional knowledge and directly supports key business goals. Outsourcing routine work to a specialist ALSP frees an in-house legal team to dedicate as much time as possible to the projects that matter most. When legal teams have time to focus their expertise on those important projects rather than routine work, the company relies less on expensive law firms and more on their in-house talent to meet their legal needs.
The rise of legal tech has also had a positive impact on legal talent, as it breaks from the traditionally binary career options (law firms or in-house) and gives corporate lawyers a third option. Establishing a solo practice or small law firm is an exciting prospect, but it is risky. A lawyer who is offered the opportunity to join a talent network managed by a tech-enabled ALSP can combine practice and entrepreneurship, engaging with high-calibre clients and choosing the types of projects best suited to their strengths and skill sets.
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Partnering with an ALSP allows lawyers to have a private practice without the burdens of business development, firm administration, billing or accounts receivable. Moreover, technology enables lawyers to practice law from anywhere, freeing lawyers who want to work with high-calibre clients to live outside of major financial centers if they choose to.
The opportunities for a more flexible working style enabled by legal tech also address the challenges of attracting and retaining talent in the legal industry. ALSPs allow more lawyers who are parents or who have other care responsibilities, side projects, or personal interests to stay in the legal workforce. Innovative technology platforms and business models created by ALSPs are bringing about changes like this.
In the UK, the leaders in the legal tech market are becoming increasingly established and recognised by law firms and their clients as reliable, low-risk options for legal work, offering innovative ways of delivering legal services that benefit all parties and provide added value. Investment in the UK’s legal tech industry is likewise growing, with startups receiving at least £62 million in 2019 and the UK government making a modest commitment to the sector of slightly more than £2 million last year.
As the legal sector adopts technology and ALSPs, law firms are liberating themselves from work that doesn’t align with their value proposition, lawyers are exploring new, adaptable career options, and clients are using their legal resources more effectively and more efficiently.
The unexpected death of a loved one is something that is difficult to come to grips with no matter the circumstances. However, if that death was caused by the negligence of another person, it can be even more devastating to the survivors of the deceased. In such difficult times, there is very little anyone can do to relieve the grief of the people the deceased left behind. Money certainly will not help to do so but it can ease the burden of those closest to the deceased and help to make sure that they are financially secure.
If a loved one died due to the negligence of another, then their family can make a wrongful death claim. A wrongful death claim can be made if someone died because of an accident caused by someone else or if they died because of a deliberate act by someone else, i.e murder or manslaughter. An experienced wrongful death attorney can help the family of the decedent file a wrongful death lawsuit so that they can receive compensation to help them bear the financial burden incurred by the loss of a loved one. If you live in the Miami area and have lost a loved one because of wrongful death, ensure you seek out the help that you need.
A wrongful death suit is related to a criminal charge against someone that caused the death of another. The main difference is that a criminal charge is punitive, meaning that it is about punishing the wrongdoer, typically with fines and/or imprisonment. However, a criminal case does not award financial damages to the family of the deceased. In order to receive damages, they need to file a civil suit, which in this case, is a wrongful death charge.
The person who brings the wrongful death claim is called the plaintiff and the person accused of causing the wrongful death is the defendant. The plaintiff is usually a close family member of the deceased and they usually file the lawsuit on behalf of all the heirs of the deceased. If the deceased person had a will, then the plaintiff is the executor of their estate or a personal representative.
The plaintiff is usually a close family member of the deceased and they usually file the lawsuit on behalf of all the heirs of the deceased.
In order for a wrongful death case to proceed and to have a good chance of success, it needs to have the following elements:
Duty of Care. This simply means that the defendant was in a position where they should have acted in a responsible manner to the deceased. It can be something like a doctor owing a duty of care to their patient by prescribing the right medication. Or it could be a driver owing a duty of care to other drivers and pedestrians on the road by driving safely and following the rules of the road.
Breach of Duty of Care. Once it has been established that the defendant owed a duty of care to the deceased person, it must then be proven that they violated that breach. In the examples above a breach of duty by the doctor could be a misdiagnosis that leads to death. In the case of the driver, their breach could be that they were texting while driving and their distraction led to an accident.
Causation. The plaintiff must prove that the breach of duty was the cause of the passing of the deceased. That means the doctor’s malpractice directly resulted in someone’s death or that the accident caused by the distracted driver resulted in a fatality.
These are the same elements that you would see in a personal injury case, and for the most part a wrongful death case is similar to a personal injury case. The main difference of course is that in a wrongful death case, the personal injury resulted in someone’s death rather than just an injury.
In a wrongful death case the surviving family members receive damages related to the loss of a loved one. This can involve quantifiable monetary damages like the loss of inheritance, medical bills for the period when the deceased was still alive, and funeral expenses. They can also include non-measurable factors like pain and suffering, loss of parental guidance, loss of consortium, and more.
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If you have recently lost a loved one due to the negligent or intentional act of someone else, then the last thing on your mind is calling a lawyer. However, that can be a necessary step in addressing the incident since they can help you with your wrongful death claim. That claim may not ease the emotional burden left behind by the untimely death of a loved one, but it can ease the financial burden. So contact a wrongful death lawyer so that you do not have to worry about the financial aftermath of a loved one who was taken from you well before their time.
The last three months have most likely changed the way we live and work forever. As a profession we have turned to technologies such as video conferencing that many within the legal services professions might have previously seen as a suboptimal way of servicing clients, but which turn out to have found favour. Mark Lello, Partner and Notary Public at Parker Bullen LLP, explores the failings of traditional law training programmes and how the COVID-19 crisis has exposed them.
Necessity has also seen calls for changes in the law, for example in for example in the move towards electronic signing and witnessing of wills, something that we have been demanding for a long time, because even before COVID-19 many clients had mobility issues. I should add that we still see a similar need for change in notarial services.
But perhaps the most stark change is how we have had to manage our business in times of crisis, and how this has called for skills which are lacking by too many within our profession.
Crises of one sort or another are cyclical. Thirteen years ago we suffered a global financial meltdown and nineteen years ago the world was shocked by the events of 9/11. Thankfully such crises are infrequent, but the result is that there will be a large number of Partners across the UK who have never experienced business turmoil, and have limited experience and knowledge to call upon.
Crises of one sort or another are cyclical.
But it’s not just crises that many lawyer trainee programmes fail to address. Practical issues such as winning new business, client handling and how to run a meeting are often learned by osmosis rather than in a structured manner.
Our experience also shows that many legal issues are not discussed or are simply skirted over in traditional education environments, including the thorny issue of when a contract exists even though there is no formal contract and the likes of quantum meruit.
Another problem that often needs addressing is the fact that law is very siloed. The overarching needs of both private and corporate clients are often ignored as the solicitor does not have the depth of experience to talk through the issues. A prime example of this is the universal need for a Power of Attorney which is equally important for owners of businesses and arguably should be put in place at the same time as a shareholder agreement.
The goal of the Parker Bullen Training Academy (PBTA) is to complement the 'on the job' experience with content that trainees may not usually come across, but which is nonetheless necessary to add value to their clients, colleagues and employer on a day to day basis or when a crisis occurs.
In part the training modules have been designed around the unknowns I wished I had been told when I was a junior lawyer. Good examples of this are the importance of marketing as an integral part of one's practice and the 'internal market', not just the external customers, for your services – making sure your colleagues know you.
Having to furlough trainees has presented its own opportunities and challenges. The challenge has been to continue to deliver SRA training while not breaching the conditions of the furlough, so participation has been optional. The benefits were plainly measured in time, both for the trainees and the instructors. An additional benefit was seen in giving everyone a sense of purpose and as a result the feedback has been exceptionally positive.
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When redesigning the PBTA we looked at other organisations which had similar business issues and customer dynamics to ours, to see if we could learn from their experience and knowledge base.
For Parker Bullen the way Goldman Sachs approach training fit perfectly, especially their small business course. What we found particularly useful is the way Goldman Sachs addresses the likes of developing employees for future leadership roles, and how colleagues and clients may behave in the workplace.
We have also designed the new training scheme to be flexible and to adapt and evolve alongside the needs of the business and our clients. A good example of the latter is in developing a module on franchising, as we have a strong presence in the military locally, and many ex forces personnel choose franchising as employment post their service.
In conclusion, out of the adversity of COVID-19 we are trying to build a better and stronger business. Integral to this is looking at the training programme and seeing how it can be improved to provide our future leaders with the skills to drive the business forward at a much earlier age.
