Understand Your Rights. Solve Your Legal Problems
Could you give a basic overview of the oil and gas sector in Libya and the role of the National Oil Corporation of Libya?
The major oil discoveries in Libya were made under the Petroleum Law No. 25 of 1955 which introduced two contractual models: The Preliminary Reconnaissance Permit (which is merely a seismic option) and the Deed of Concession. The Law authorised the Minister of Petroleum to issue Petroleum Regulations implementing the provisions of the Petroleum Law and detailing its various aspects. Nine regulations were issued. The only ones still in force today are Regulation 1 dividing the country into four petroleum zones, Regulation 8 on Conservation of Petroleum Resources and Regulation 9 on Financial, Administrative and Technical Control for the Preservation of Oil Wealth. Other forms of contracts such as the joint Venture Agreements and the Exploration and Production Agreements were introduced by Law 24 of 1970 establishing the National Oil Corporation and decree 10/1979 Re-organising the National Oil Corporation.
Oil and gas is the biggest sector of the Libyan economy, accounting for 60% of its GDP. What legal issues often arise in bidding for contracts in this area?
Since Libya abandoned the direct negotiations for awarding petroleum licenses in 2005 in favor of public bidding rounds, the legal issues were reduced to compliance with the pre-qualification requirements, including the form of the bidding bond and the formation of consortium among the bidders. The applicability of Libyan law, including Petroleum Law, as the governing law of the agreement was also of concern to new participants.
What advice do you often give to companies bidding for Exploration and Production Sharing Agreements (EPSAs)?
The advice we often give to companies bidding for EPSAs is to be transparent in dealing with NOC and avoid any irregular ways and means throughout the process, in particular in collecting technical data on the blocks offered in the relevant bidding round.
Your firm has been advising exploration and production companies for three decades. How has the legal landscape of the oil and gas sector changed during that time?
One major change since 1990 was the abandonment of the direct negotiations in awarding exploration and production licenses and adoption of public bidding instead. This change introduced a high degree of transparency to the process and heightened the competition among the international oil companies, including the medium-sized ones.
The advice we often give to companies bidding for EPSAs is to be transparent in dealing with NOC and avoid any irregular ways and means throughout the process.
What do foreign companies often fail to understand about negotiating contracts in Libya’s oil and gas sector?
Since the introduction of the bidding rounds there are no negotiations of the contractual terms, as the model contract is attached to the bidding documents with no possibility to change its provisions. NOC conducts clarification rounds to answer questions on technical, financial and legal issues. From our experience, we can say that among the common legal issues that companies request clarification on is the following:
What provisions of the Petroleum Law and the Petroleum Regulation would apply to the EPSA? This question arises because the Petroleum Law deals mainly with the deed of concession. However, a few provisions continue to apply to the EPSA. Among them: a) Article 12 regulating the use of excess capacity in pipeline and terminal facilities; b) Article 16 on the exemption from certain import and export duties and c) Article 22 imposing certain penalties on violation of the law, especially in the events causing loss or dissipation of hydrocarbons or causing damages to petroleum reservoir as a result of failure to observe the provision of this Law and regulations issued thereunder. Most of the clauses of Regulation 8 are applicable to the EPSA. Some clauses of Regulation 9 also apply, such as the Clause introducing the formula of the pipeline and terminal tariff for use of surplus capacity and the Clause defining the operating and administrative expenses.
Abdudayem Elgharabli, Partner
MKE Lawyers
Address: Mukhtar, Kelbash & Elgharabli Attorneys-at-Law, Magta Alhajar Street, Dahra / PO Box 1093, Tripoli, Libya
Tel: (+218) 21 333 2665
Fax: (+218) 21 333 1650
Email: info@mkelawyers.com
Website: www.mkelawyers.com
The Tripoli-based Libyan law firm Mukhtar, Kelbash, Elgharabli & Abdulaziz ("MKE") was established in the early 1990s by Mahmud Mukhtar and Bahloul Kelbash following the liberalisation of private legal practice in Libya. The firm's partnership was further widened with the addition of Abdudayem Elgharabli in 1992 and Ahmed Abdulaziz in 2014. MKE provides legal support to Libyan and foreign clients in the areas of oil and gas, corporate, litigations and international commercial transactions involving Libyan interests, Labour Law, Civil Law, Commercial Law and Administrative Law.
Abdudayem Elgharabli is a Partner at MKE Lawyers and carries a wealth of experience in Petroleum Law. Between 1978 and 1992 he served as Senior Advisor and later General Counsel to the National Oil Corporation of Libya. He has also provided legal support to major international investors as well as oil and construction companies looking to begin projects in Libya.
Witnesses are usually outside of their element when being questioned by an attorney. What is different for them in this scenario?
I always tell my clients that testimony – whether it is deposition or trial – is a game with its own unique set of rules. These rules are unlike anything they have ever come across. No matter how much they may agree or disagree with them, they have to learn the rules and play by them if they want to prevail.
Their “job” is to testify confidently in this tightly constrained arena. One of the biggest challenges is the restrictive nature of testimony. Businesspeople especially are used to having some degree of control. But, at trial, they never play offence. Their job is only to answer questions. It can feel like they are continually at the mercy of someone else’s agenda and timetable. In deposition, it is much more restrictive because the goal is to tell as little as possible.
Additionally, witnesses need be on their best behaviour throughout. This can be especially hard in cases where your witness is angry, frustrated or feels justice is not on their side.
How can an attorney ensure their witness is prepared for these elements?
In my experience, the biggest challenge for attorneys is in diagnosing their witnesses’ weaknesses. What is keeping them from delivering case-winning testimony? Is the client scared, worried, talking too much, defensive, abrasive, having a hard time remembering important details, inarticulate, using problematic body language? In my decades of experience, these are only symptoms of deeper problems. Telling the witness to stop talking, to stop being afraid, work harder at remembering, or sit up straight and make better eye contact – does not work! You must dig deeper and diagnose where the surface symptoms come from. Then and only then can you resolve these problems.
I always tell my clients that testimony – whether it is deposition or trial – is a game with its own unique set of rules.
Here is an analogy: a patient shows up at the doctor’s office with tingling or numbness in their fingers. To diagnose the problem, the doctor has to look beyond the fingers for the genesis of the problem. Generally, they look for nerve damage in the elbow or neck. The same theory is true with witnesses.
Yes, that takes time and finesse. So, I developed a “diagnosis sheet” I use with new clients. It is divided into three sections: 1) what is going on in their thinking, 2) what is showing up in their actions or behaviour, and 3) what emotions are affecting their behaviour or communication. There are five or six key symptoms in each area. Email me and I will be happy to send you a copy. Early and proper diagnosis is the only way I know to solve the underlying problem and keep it from rearing its ugly head under the duress of deposition or trial.
How important is confidence here? How can a witness work on their confidence before trial?
Confidence is the single biggest – and most elusive – challenge for witnesses. So often my clients are searching for the “right answer,” the right thing to say. As though, if they knew what opposing counsel was going to ask, then everything would be ok. However, it is not about knowing the right answer. It is about feeling confident that no matter what question is asked they can provide a thoughtful answer that supports their case.
Luckily, confidence is a skill that can be built. It is done by learning a new skill, practicing, evaluating progress, refining, trying again. That is what the best athletes, musicians and actors do. The world-class pole vaulter runs the approach, plants the pole and vaults. Over and over. Each time evaluating what worked, what did not, refining their technique. Each time building confidence. Guitarists learn notes, then chords, playing them over and over. Practicing the nuances of the instrument, becoming more confident in achieving the sound they want.
The same holds true with witnesses. They can learn new skills and practice them to build confidence. For example, here is how I work with clients to learn how to answer briefly, not lecturing. I would ask: “Tell me about your last vacation.” One client went on for eight minutes (really)! My reply: “Make it shorter.” He cut it down to 3 minutes. My reply: “Make it shorter.” Again and again. Until he finally said: “We went to Hawaii.” We worked on simple questions for an hour until no matter what the question was, he could pause, think, and confidently answer in a very short sentence. Now we applied his new-found skill and greatly enhanced confidence to the tough questions for trial. He aced his testimony. I use this drill-the-skill technique to help witnesses learn to listen to questions, learn to pause and think, and learn to breathe and control emotions.
This kind of diligent practice builds confidence that shows up in dramatically improved body language, attitude, and overall impact of testimony.
Confidence is the single biggest – and most elusive – challenge for witnesses.
What are hijacking tactics and why should witnesses be aware of them?
The principle of hijacking is based on the witness’s brain’s fundamental need to protect them. When their brain senses any threat (from opposing counsel), it instantly jumps into survival mode. It shuts down all their higher-level logical thinking and brain power is focused on fight-flight-freeze defensive responses. Their body is flooded with hormones that narrow vision, decrease hearing and force blood flow to body systems in order to defend themselves. It can take from 20 minutes to two hours to regain logical thinking, which is devastating to a witness on the stand.
The four key triggers to watch for from opposing counsel are 1) aggression, 2) humiliation, 3) confusion and 4) negative facial expression. Sometimes it is a constant assault during cross exam. But with a tender witness I have seen it as simple as: “Mrs Howard. Really! Are you sure it was Tuesday the 15th when you signed the agreement, not Monday or Tuesday the 22nd? Wasn’t that important enough that you would have remembered?” while counsel shakes his head, huffs and rolls his eyes. I have seen artful counsel hijack sophisticated and articulate medical experts and turn them into defensive, blabbering fools.
Countering hijacking is tough. It is not passive. It takes active training. Training your witness to recognize the triggers, then develop their own active internal dialogue to neutralise the effect of the triggers. Yes, it can be time-consuming. But it will save your case.
What part does body language play here?
The spotlight is on your witness. Every movement, every nuance, from the top of their head to the tip of their toes is being judged – whether that is by opposing counsel, the jury, or the judge. In just the first few seconds, people make a hundred unconscious nondecisions about your witness – are they smart, honest, trustworthy, approachable, open or closed, guilty or innocent?
Body language, together with tone of voice, makes up their nonverbal communication, which is about 90% of what is communicated. It is the yardstick by which their words are judged. Which means that if there is any incongruency between body language and words, the listener (jury) always defaults to body language. A scared or worried witness can be interpreted as lying. I have seen a jury ignore tentative or meek testimony from an expert. In another case, a jury took a dislike to a curmudgeonly-behaving plaintiff, ruling in favour of the much weaker case of the defendant.
Do you think all witnesses should be trained?
When there are millions of dollars on the line or the fate of a business or child custody or a reputation, why would you not do everything you can to ensure the best possible outcome? I have never met a witness who could not benefit from some polishing. Even sophisticated businesspeople and experienced expert witnesses can always get better. That is why athletes, musicians and actors have a coach – to show them where and how they can fine-tune their performance.
How can you train witnesses to build new habits in order to be ready for trial questioning?
Habits are all about repetition, building new neural pathways in their brain. The more they do something, the more ingrained it is. And the easier it is to depend on it in a stressful situation. Start early – three to four weeks before testimony. Practice diligently until it is second nature.
Deborah Johnson, MC
President of High-Stakes Communication, LLC
High-Stakes Communication, LLC
Address: 1634 E Echo Lane, Phoenix, AZ 85020-3922
Email: deborah@high-stakescommunication.com
Telephone: +1 602 216 0049
About Deborah Johnson
It’s straight-forward. My passion is helping your witnesses communicate with influence and impact. I’m a six-time EMMY Award-winning television producer with a Masters degree in cognitive psychology. I’ve developed strategies and proven practices to help your witnesses think clearly and answer articulately. To help resolve emotional and behavioral issues. To give them new skills to testify with confidence.
Autonomous vehicles in particular may require great changes in the approach to IP. What changes do you foresee on the horizon?
Indeed, the automotive industries are currently facing enormous, far-reaching changes. Digitalisation will lead to completely new concepts of automotive production and transportation not only regarding the technical details but also regarding future customers and customer behaviour; the individual customer will be replaced by groups of customers. These groups of customers will necessarily have to organise themselves, for instance, in sharing systems. This can lead to entirely new strategies of patenting. Under certain circumstances, the patenting strategy could then be aimed not only at producers of automotive systems but also be developed with regard to hiring companies that may be organised in completely new ways.
Regarding the technical details of automotive, however, the patenting strategy will remain the same. Intellectual Property, and patents most prominently, will still be the dominant tool to secure leadership within this specific market for a limited period.
However, patenting strategies of technical details of autonomous driving will be similar to the patenting strategies of IT and telecommunication companies, so that internal decision-making processes and the evaluation of innovation and know-how will get closer to the strategies known by the IT and telecommunication companies.
Autonomy requires innovations in artificial intelligence, mapping, sensors and connectivity. Is the law up to speed in respects to the fast-paced nature of AI?
As I have pointed out in a recent article in a publication by the “Innovation commission” consulting the German Government, I am convinced that artificial intelligence will lead to a boost of diversity in innovation, comparable perhaps with the start of computation and the technical revolution triggered by it after the Second World War. With the growth of artificial intelligence, two areas of law will move more and more into the focus of jurisdiction. On the one hand, there is innovative success, until now and in all current law systems worldwide judged on the basis of the individual performance of the average craftsman, hence the performance of a human being. Will the judgement be the same if the invention was produced by an artificial intelligence? Will the height of an unprecedented invention still be a valid criterion for the exclusive (although not eternal) rights of a patent?
Another point in need of clarification will be the question of who will be the owner of the intellectual property behind an innovation that might have been created to a far extent, or even entirely, by an artificial intelligence. Today, human beings are the creators of inventions either by hard work or by sudden insight. Hence, currently, most legal systems worldwide ascribe the intellectual property of an invention to the person behind it or, in the case of an invention made in the context of dependent work, their respective employers. How about inventions made by processors? Will the invention generated belong to the owner of the processor or the developer of the software behind the artificial intelligence? Or, indeed, to the person who came up with the task that made the processor develop the invention? These are just some of the highly relevant questions that will come up as soon as artificial intelligence becomes more dominant in the field of innovation.
Today, human beings are the creators of inventions either by hard work or by sudden insight.
Much of the current investment is in areas that IP protects poorly or patchily from jurisdiction to jurisdiction: computer programs, computer generated technology, data and business models. Do you think this will cause more emphasis to be placed on trade secrets and confidentiality?
Secrecy is a central tool for the protection of competitive advantages. Over the last few years, legislation has done a lot to guarantee the protection of secrecy within the European Union. On the one hand, the protection of know-how has been officially acknowledged. On the other hand, the abuse of secrecy has been tackled as far as a certain degree of documentation has become obligatory, so that participants in the market will not be withheld unduly from developing their own ideas. New insights from information that is not under secrecy will simply not be protected.
How ‘peaceful’ is the automotive sector in terms of IP disputes and litigation?
In my experience, patent infringement litigations fought out openly, i.e. publicly, are rare and random. Companies simply know that conclusive patent infringement claims can never entirely overcome disadvantages in the market. However, the market put before the actual automotive production, i.e. the market of automotive suppliers, is fought over fiercely. This market is under pressure not only by more and more restrictive price policies within the automotive industries but also by the density of innovation in this section. As such, in the field of automotive, intellectual property is one of the most essential elements of creating a safe space for company-owned know-how and innovation while at the same time fighting off imitators and competitors as well as potential take-overs.
Do you see this changing with the rise of innovation, especially for autonomous cars?
It is perfectly possible that universities can gain essential power in the field of intellectual property, especially as soon as the automotive industry will increasingly have to adapt to the digital economy. The digital economy is profoundly characterised by infringement litigation – perhaps due to the much more rapid push of innovations and by far shorter product life cycles.
Nils T F Schmid
Boehmert & Boehmert
Address: Pettenkoferstrasse 22, 80336 Munich, Germany
Tel: +49 (89) 55 96 80
Fax: +49 (89) 55 96 85 090
Email: n.schmid@boehmert.de
Nils T F Schmid specialises in traditional mechanical engineering, defence, and artificial intelligence. For his clients, especially medium-sized companies in Germany/Europe as well as Asian and American corporations, he identifies the best possible protection of their innovations. He drafts, develops and defends European and global patent strategies and sees to their implementation with regard to the building up and management of successful patent and design portfolios.
As one of the largest and most renowned law firms for Intellectual Property in Europe, BOEHMERT & BOEHMERT offer their clients "everything in IP" from a single source. From advising on patents for technical inventions to protecting designs and trademarks to copyright, antitrust and competition law. In all classical scientific and engineering disciplines, in traditional and young industries, across national borders.
How does mental health impact family law cases?
Mental health concerns may be particularly impactful in family law because this is the area of law that guides married couples through their divorce and unmarried parents through child custody and child support battles when they separate. Ending a marriage or a relationship may cause any person, even if they do not suffer from a diagnosed mental disorder, to become distressed, depressed, or abnormally anxious for a significant period of time. If you add this stressor onto someone’s plate when they already suffer from a mental illness, they may react in a range of ways, some of which will negatively impact their case either temporarily or permanently. For instance, a clinically depressed party, without proper treatment, may start to self-medicate with drugs or alcohol, causing the other parent to point out their sudden shift in behaviour, using their consumption as justification to limit that parent’s time with his or her children. This result may further exacerbate and prolong a problem that was situational and temporary. In family law cases, it is commonplace for people to be at their lowest just as the stakes are highest.
Have you seen a shift in how family law attorneys and judges approach the topic of mental health and if so, how has this impacted the family law cases you work on?
There has been some progress in how our industry approaches this topic, but it is not as discerning or consistent as it could ideally be. Some attorneys are better equipped to handle clients with mental illness than are others, and the same goes for judges. Some attorneys understand that their clients may be suffering from a mental disorder even though clients will not voluntarily confirm it, or even know they are likely suffering from a diagnosable and treatable condition. Overall, I believe that societal efforts to lessen the stigma around mental illness have enabled clients to be more willing to participate in individual therapy, co-parenting counselling and reunification therapy, or seek other professional behavioural help for themselves or their children when they agree that would benefit them or their children. There also seems to be more widespread openness amongst family law attorneys to encourage their clients to seek professional assistance, tempered sometimes by worries about how receiving help may make clients “look”.
Some attorneys are better equipped to handle clients with mental illness than are others, and the same goes for judges.
Have you noticed any instances when mental health considerations are used as a tool to impact the trajectory of a family law case? What impact can this have on clients?
Definitely. Many litigants are quick to throw around terms like “psychopath”, “unstable”, “crazy”, or “bipolar”, even when there is little in that person’s history or behavioural patterns to support such a description. People are understandably emotional and upset once they get to a family law attorney, but these labels are frequently used without medical merit. When litigants use these descriptions of their exes in written pleadings, they are usually incorporated with the intent to paint the exes as abusers, unfit parents, or both. Ironically, in cases where one or both parties have actually been diagnosed with a mental health disorder, those parties rarely reference it in their pleadings and judges will rarely come to know that mental illness is a factor in the case. Oftentimes litigants seek that their ex undergo a mental health evaluation just so they can plant a seed of concern about their opponent’s ability to parent in the judge’s mind. This can trigger unnecessary animosity between parties, prolong cases, and deflect from the most important issues in a case.
Is the legal industry equipped to determine when mental illness plays a part in family law cases?
Not as much as it could be. I think parties would benefit more in the long term if the law differentiated between people with and without mental health disorders, particularly when it comes to certain remedies offered by Domestic Violence Restraining Orders. If a party seeks a Domestic Violence Restraining Order against someone they live with, the court can order the non-applicant to move out immediately. This happens frequently. It is undeniable that this remedy is appropriate and necessary in many situations to help prevent against real and serious harm. I do not wish to downplay their importance or usefulness - Domestic Violence Restraining Orders save lives. However, currently, the law does not treat a true abuser differently from someone experiencing a psychotic break or someone experiencing a temporary mental breakdown.
Many litigants are quick to throw around terms like “psychopath”, “unstable”, “crazy”, or “bipolar”, even when there is little in that person’s history or behavioural patterns to support such a description.
Imagine a couple of limited means – Jane and Joe - have lived together for years, maybe even decades. Joe begins experiencing symptoms of mental illness, and these symptoms eventually become more pronounced. In response to Joe’s foreign behaviour, Jane seeks a Domestic Violence Restraining Order against Joe and requests a move out order. Because the burden of proof is low and because the Domestic Violence Protection Act defines “abuse” very broadly, it is likely that the court will grant Jane’s request and order Joe to move out immediately. To comply with the court’s order, Joe needs to move out immediately, or, if he is served while outside his home, he is forbidden from returning to the home at all, pending the hearing.
For someone experiencing a mental hardship, this remedy is particularly harsh, and will likely worsen their condition. Without a home to return to and without a support system, people with serious mental disorders who have been expelled from their homes may end up homeless, turn to substance abuse, and may suffer worsening symptoms. It would be great if our laws could differentiate between those with and without mental illness so that laws designed to protect people do not end up hurting others.
The United States Congress passed legislation to designate 988 as a national mental health crisis hotline. What impact do you think this will have?
I think this will have a tremendous effect on getting people – family law litigants or not – more appropriate help, which will hopefully improve how parents take care of themselves, each other, and their children in the course of their family law case and beyond. As it stands, people call 911 for any and all emergencies, and sometimes for no emergency at all. Slated to go into effect near the end of 2022, people experiencing suicidality, or any range of mental health or substance abuse crises will be able to call 988 to receive a more nuanced crisis response. From those experiencing a mental break to others experiencing situational depression or anxiety, this new resource will be designed to connect them to appropriate care, giving people the opening to receive treatment and get better, if they are open to it.
Though it is hard to predict how exactly this will impact the practice of family law in the future, I believe it will change how litigants act, how lawyers advise their clients, and how courts view a case with a 988 history. I hope that introducing this nationwide resource will help the public better understand the severity of mental illness, its pervasiveness, and that it will make litigants think twice before they involve law enforcement and crisis response teams as a way to create a paper trail against their opponent in their family law case.
How should family lawyers be approaching these changes in order better serve their clients?
Family law attorneys should try to follow major changes like this one and inform their clients of their options, once these options become available. Unlike other areas of law, family law litigants may be particularly in need of other professional help, and it makes sense for family law attorneys to inform their clients of the range of options and help that exist.
What more needs to be done or changed to help family law cases progress in the most appropriate manner for clients?
The shortcomings of family law practice and litigation in preserving the interests of those with mental health disorders seems to stem, at least partially, from a lack of understanding of the nature of chronic mental illness, the ways such illnesses can manifest, and what can aggravate their symptoms. One in five people in the United States suffers from a mental illness. This means that many litigants, attorneys, and judges that preside over these cases have experienced, or know someone who has experienced mental illness. Taking the initiative to educate ourselves about mental illness will go a long way towards understanding how to better counsel clients in crisis and will allow us to better discern when litigants are using someone’s plight to further their strategic interests.
Monica Nemec, Senior Associate
Hoover Krepelka LLP
Address: 1520 The Alameda Suite 200, San Jose, CA 95126, United States
Tel: +1 408 947 7600
Fax: +1 408 947 7603
Email: Monica@hooverkrepelka.com
Hoover Krepelka is a service-oriented family law firm based in San Jose, California. The largest law firm in Silicon Valley that tackles family law exclusively, their lawyers share a combined 130+ years of experience and strive to deliver excellence in client service.
Monica Nemec: I am a Senior Associate at Hoover Krepelka, LLP. I am a first generation American, born to two Czech parents, and a native Californian. I am a native Czech speaker, but also speak French fluently as a result of attending bilingual schools through the end of high school. I have always been interested in people’s personal lives and interpersonal dynamics, so, very early on in law school, I knew that family law was the natural choice for me. I practiced family law for two years after graduating before returning to school to complete my master’s degree in Public Policy. I wanted to understand how the laws that lawyers are required to interpret and apply, were made. My interest in behavioural health led me to become the Director of National Policy for one of the nation’s leading behavioural health providers for a couple of years in Washington, DC. Deciding to return to the practice of family law, I now have a heightened interest in how mental health plays a role in family law litigation.
What are the major differences between the EPO and USPTO approach to patenting and how can you develop global portfolios despite them?
The US is actually becoming more like the EPO in its approach, but differences still exist, particularly in software, AI and medical devices. Leaving aside minor differences in claim form, the key point is to make sure there is a story that can be told which will work in each jurisdiction, and that each specification has enough of the right “hooks” to let it be told without unhelpful components. We often work with US attorneys to reshape and remove red flags for Europe before they file their international applications. Going the other way, it is important to know what you can try that you cannot in Europe or the UK and be bold.
How long can the patent application process take? Does it vary significantly between the US and EU?
The process can take 3-4 years but there are ways to accelerate it, particularly in Europe and the UK, and at a cost in the US if you set out to do so. There is variation between technologies. However, because we are all experienced practitioners, we are happy to pick up the phone to examiners – many of whom we have got to know over the years – and this can cut times and costs compared to the traditional approach of having associates crank out serial form responses.
What are the common pitfalls that patent applicants encounter?
Often there is not a realistic appreciation and communication of what might be granted of commercial value. Searching is never easy or cost-effective and a lot of advisors are reluctant to speculate what might be out there if a client does not tell them, often leading to unrealistic claims that set off on the wrong path or run out of fallback positions. It is important for the patent attorney not to take an academic approach but a commercial one.
How has the patent application process changed during the pandemic?
An obvious change is the move to hearings by videoconference, which has had some pushback in contentious matters which some may have been following, and IK-IP has filed an amicus brief at the EPO Enlarged Board of Appeal which has attracted support. Other than that, it is largely business as usual and there are happily not the significant delays there might have been. Offices have generally responded well and pragmatically to the challenge.
It is important for the patent attorney not to take an academic approach but a commercial one.
You have a great deal of EPO opposition experience – can you tell us what value they have for clients?
An EPO Opposition is a great way to keep your competitors’ IP in trim and stop it encroaching on your territory. Patents in particular can be filed anonymously and there is little downside as opponent, importantly with no link to infringement. The cost is a fraction of that of litigation, perhaps as little as £5-10k to file one. Conversely as a patentee faced with an opposition, it is really important to be strategic, particularly with changes in appeal procedure, and not treat it simplistically as errors or omissions may be hard or impossible to recover on appeal.
Ilya Kazi
IK-IP Limited
Address: 201 Borough High Street, London SE1 1JA
Tel: (+44) 020 3805 7765
Email: ilya@ik-ip.com
Website: ik-ip.com
IK-IP was founded in 2020 to offer what observation suggests works best in IP. They benefit greatly from an experienced strategist to foresee latent problems and appreciate the business relevance and value of IP assets even for apparently routine matters. IK-IP’s ethos is to work collaboratively and is happy to dovetail with other law firms, whether in the UK or overseas, to bring specialist expertise to bear to complement existing capabilities.
Ilya Kazi has been practicing as a UK and European Patent attorney for nearly 30 years and he is a qualified litigator. After a brief spell in a Silicon Valley firm, he oversaw the growth of a small UK firm to approximately 200 people, winning numerous awards and being personally involved in over 4,000 patent applications as well as numerous oppositions, appeals, and litigation.
You have been a practicing litigation counsel for 44 years. Have you learned anything over that time?
No, I pretty much knew it all when I started out. Or I thought I did. Some of the things I have learned are the importance of (1) mentoring, (2) patience, (3) humility, (4) candor, (5) coping effectively with stress, (6) adapting to change, and (7) written advocacy.
Could you elaborate?
Sure.
Mentoring: When I started out, I was lucky to work with lawyers who were not only skillful but were also highly ethical. I learned a great deal from them, largely because they took the trouble to teach me but also by osmosis, by their good example. I feel badly for young lawyers who have not had the opportunities that I had to learn from good mentors.
Patience: When I started practicing, I was young, and it showed. I talked like a book to impress clients with how smart I was. They were not impressed. It takes time and patience to develop trust and confidence. You have to remember the three As: Ability, Affability, and Accessibility. Ability will often be assumed if you are with a good firm. It’s not hard to be affable, and it’s not hard to be accessible. You just have to work hard, do your job, and if you are patient eventually clients will want you to be their lawyer.
Humility: There is no shortage of oversized egos in our profession. We have to empathise with others and always be open to appreciating the opposite side’s position. Judge Learned Hand’s advice should be taken to heart: “think that you may be mistaken”.
Candor: In an adversarial system, judges expect and want you to argue your side of the case. But that does not mean you should cover up its weaknesses. Candor in facing up to them is disarming and often powerful. It builds trust. Judges who have read the parties’ written submissions do not want to hear you repeat in oral argument what you have written; they want to hear your response to the other side’s submissions. You also have to be candid in advising clients. If you create unrealistic expectations and the results are not what they expect, you will hear about it.
Coping effectively with stress: Litigation is society’s way of resolving conflict peacefully, and conflict is inherently stressful. The best antidotes in my experience are preparation and civility. If you are thoroughly prepared, the stress of worrying that you have not done everything you can to advance your client’s interests is removed, or at least minimised. If you deal with opposing counsel with courtesy and respect, you will not aggravate the stress resulting from the parties’ conflict by piling on the stress of conflict with the lawyer on the other side. From the vantage point of the court, civility is also good advocacy. A sense of humour does not hurt either.
Judge Learned Hand’s advice should be taken to heart: “think that you may be mistaken”.
Adapting to Change: In ‘The Origin of Species’, Charles Darwin wrote that it is not the strongest of the species who survives, nor the most intelligent, but rather the one that is able best to adapt to its changing environment. I suspect that is true of our profession as well. Many of our traditions should be treasured, but we cannot stand still. It would be impossible to practice effectively today without deploying the tools enabled by the technological advances of the last 40 years. Just as importantly, advocates must adapt to social change, including change as reflected in jurisprudence and reform legislation.
The Importance of Written Advocacy: When I started practicing, I believed that oral advocacy was what made the difference between failure and success. I considered written submissions much less important. In most cases today the opposite is true. Your written submissions on appeals and motions are what form judges’ initial impressions, and those impressions are difficult to displace. When the court reserves judgment, the judges have the written submissions in front of them as they draft their reasons. When I started practicing you could almost always take as long as you wanted to argue your case. Over the course of my career, courts have imposed time limits on oral argument. This too has underscored the importance of written advocacy.
Are there other ways in which the practice of litigation changed in your time?
Many of the changes have been retrogressive. We used to have what in Ontario we called County Court cases, where young advocates could try claims over real estate or employment agency commissions and the like and gain valuable trial experience in cases in which the stakes were relatively low. There were few relevant documents and the pre-trial stages consisted of pleadings and short examinations for discovery and that was about it.
Now we also have endless case conferences, status hearings, pre-trial conferences and mediations, all designed to promote settlement and prevent cases going to trial. For cases that should be tried, the added steps simply add time and expense. The advent of email has resulted in an exponential increase in the number of documents that must be produced, and a corresponding increase in cost. Access to justice has suffered. So have the opportunities for advocacy for young lawyers.
We have made some progress recently in promoting proportionality through limiting discoveries and holding mini-trials confined to resolving issues of credibility on which cases turn.
Tell us about your practice today.
I practiced for most of my career in large firms. Five years ago I started my own litigation boutique with my daughter, Brooke MacKenzie, who had three years’ experience as a litigation counsel at a large and prestigious national firm. We concentrate our practice primarily in two areas: civil appeals and professional responsibility opinions and litigation. Almost all of our clients are other law firms or were referred to us by other lawyers. Brooke and I always knew that our partnership would have a limited shelf life, but practicing with Brooke has been the highlight of my career.
I am also a Member Arbitrator at Canada’s leading arbitration chambers, Arbitration Place.
How did you come to develop your interest in professional responsibility?
When I was in law school in the mid-1970s, students were not required to learn professional responsibility. There was an optional seminar in Legal Ethics. I did not take it and I do not know anyone who did.
I was lucky at the beginning of my career to practice with one of Canada’s leading counsel, who was recognised as the lawyer to call on if you got in trouble with the profession’s self-governing body, the Law Society. I started acting for other lawyers on discipline hearings myself, and during the late 1970s and throughout the 1980s I represented lawyers in that forum on dozens of occasions.
From 1990 to 1993 I took a mid-career break to become the Law Society’s Senior Counsel (Chief Prosecutor). While I held that position I wrote my text, ‘Lawyers and Ethics: Professional Responsibility and Discipline’. It was published in both a Practitioners’ Edition and a Student Edition. I have kept it current, and the 6th Student Edition was published in 2018, when we celebrated the book’s 25th anniversary.
While I was a Bencher I chaired a Task Force on modernising the Law Society’s Rules of Professional Conduct, which were badly outdated and in need of reform. The new rules that resulted have been used as a model in other Canadian jurisdictions.
I was unable to represent lawyers in professional conduct proceedings while I was a Bencher, but I have resumed doing so in recent years. It is the most important work I do.
What is your role in representing lawyers in professional conduct proceedings?
To protect the reputation and livelihood of practitioners. Often that involves protecting lawyers from regulatory overreach. In my experience, regulators sometimes seem to have little conception of how devastating to a lawyer even an allegation, let alone a finding, of professional misconduct can be.
What are the most common ethical issues that arise in your practice?
No other profession devotes anything like the amount of attention to ethics that we do.
The duties of confidentiality and resolute representation (which is sometimes referred to as the duty of zealous advocacy, particularly in the US) are duties peculiar to lawyers and are sometimes seen as being at odds with non-lawyers’ ideas of ethical conduct.
I have frequently acted on motions to disqualify law firms from acting in litigation because of alleged conflicts of interest. Even though the Supreme Court of Canada has established governing principles in a series of decisions since 1990 the outcome of disqualification motions is often unpredictable. This is because of the differing orientations of judges toward them. Some judges place the highest priority on protecting the reputation of the administration of justice if there is even a hint of a potential conflict. Other judges believe that most disqualification motions are tactical and place a higher priority on fairness to litigants and the prima facie right to be represented by counsel of their choice.
No other profession devotes anything like the amount of attention to ethics that we do.
Is there anything that lawyers can do to avoid allegations of disqualifying conflicts?
You have to maintain a conflict management system so that potential problems are identified promptly. Your database should be as comprehensive as possible, listing all parties to transactions and litigation.
You should avoid receiving confidential information from a potential client until you check conflicts.
If a potential conflict is identified, the key is to remember that the identification of a potential conflict is only the first step in the process. You cannot act on both sides of a dispute, of course, but most other conflicts can be managed. If the concern is that a lawyer in your firm has received relevant confidential information from a former client, promptly putting in place an effective ethical screen is likely to protect against disqualification. Engagement letters should carefully circumscribe the firm’s mandate and specify the circumstances in which the firm may act adverse to the client in unrelated matters. In some cases, problems may be addressed by limiting the firm’s role and entrusting part of the client’s representation to independent co-counsel.
You have received a number of awards and accolades. Which ones are most meaningful to you?
I do not consider ratings based on peer reviews to be significant, because many lawyers just vote for their friends and colleagues, or vote based on name recognition. One that means more to me was being honoured by induction as a Fellow of the American College of Trial Lawyers 21 years ago. Also, I was elected a Bencher of the Law Society of Ontario four times for four-year terms, and I was elected (or acclaimed) as Treasurer of the Law Society three times (the Treasurer is the Law Society’s President—the title is derived from the Inns of Court in Britain). In 2010 I was awarded an honorary Doctor of Laws degree in recognition of my contributions to the profession. These things are nice if you do not take them too seriously.
Gavin MacKenzie
MacKenzie Barristers
Address: Richmond Adelaide Centre, 120 Adelaide St. W., Suite 2100, Toronto ON, M5H 1T1
Tel: 416-304-9293
Mob: (416) 579-9528
Email: gavin@mackenziebarristers.com
MacKenzie Barristers is a boutique litigation practice concentrating on civil appeals and issues of professional responsibility and liability. They are frequently retained by other lawyers for advice or representation on legal ethics issues and professional responsibility disputes; to act as independent counsel for a third party or affected person in continuing litigation; or to collaborate or act as counsel on a motion or an appeal.
Gavin MacKenzie was called to the bar 43 years ago. His practice has since focused on commercial litigation, civil appeals, arbitrations, judicial review applications, and professional responsibility, liability and discipline. He has appeared as counsel in over 200 reported cases, before all levels of court including the Supreme Court of Canada and before many tribunals. He was honoured by induction as a Fellow of the American College of Trial Lawyers in 2000. He is the author of Lawyers and Ethics: Professional Responsibility and Discipline – a leading authority on legal ethics and professional responsibility and liability issues for practitioners and the courts for the past 27 years – and in 2010 he was awarded an honorary Doctor of Laws (LLD) degree from the Law Society of Upper Canada in recognition of his contributions to the legal profession.
The dispute between the European Commission and AstraZeneca (AZ) rumbles on following the Commission’s decision to commence legal action against AZ for alleged breaches of the COVID-19 vaccine supply contract. Commission spokesperson Stefan De Keersmaeker confirmed it was the Commission’s view that “the terms of the contract, or some terms of the contract, have not been respected, and the company has not been in a position to come up with a reliable strategy to ensure the timely delivery of doses.” In a statement issued on 26 April 2021, AZ noted that it “regrets” the Commission’s actions but remains resolute that it “will strongly defend itself in court”. The dispute has also put UK and EU relations under strain, especially after the EU triggered Article 16 of the Northern Ireland Protocol, although they were quick to make a U-turn after widespread condemnation of this action.
Who is right and who is wrong? Nicholas Scott and Jade Brooks of Blaser Mills Law offer some insights on this dispute, how it could have been avoided and what it might say about the current state of UK/EU relations.
The problem in brief
The Commission has stated on numerous occasions that (i) AZ has failed, in breach of contract, to deliver the contracted quantities of AZ’s COVID-19 vaccine and (ii) in order to cure this alleged breach, AZ must send doses manufactured in the UK to the continent to make up for the shortfall arising from production problems at AZ’s Dutch and Belgium plants. AZ denies this.
What has AZ actually agreed to do?
So far as material, the contract says that AZ will use its “Best Reasonable Efforts” to (i) manufacture the 300 million “Initial Europe Doses” and (ii) “deliver [redacted] quantities of vaccine to certain distribution hubs following EU marketing authorisation.”
‘Best Reasonable Efforts’ is defined in the agreement as:
“the activities and degree of effort that a company of a similar size with a similarly-sized infrastructure and similar resources as AstraZeneca would undertake or use in the development and manufacture of a Vaccine at the relevant stage of development or commercialisation having regard to the urgent need for a Vaccine to end a global pandemic which is resulting in serious public health issues, restrictions on personal freedoms and economic impact…” .
Further, ‘Initial Europe Doses’ is defined in the agreement as follows:
“AstraZeneca has committed to use its Best Reasonable Efforts… to build capacity to manufacture 300 million Doses of the Vaccine, at no profit and no loss to AstraZeneca, at the total cost currently estimated to be [redacted] Euros for distribution within the EU [redacted] (the “Initial Europe Doses”).”
What were AZ’s delivery obligations?
The Commission claims that the contract contains binding obligations to deliver the Initial Europe Doses, essentially on demand and as determined by the Commission. However, the contract’s drafting does not support this, referring instead to “Best Reasonable Efforts” to deliver [redacted] quantities of vaccine to certain distribution hubs following EU marketing authorisation.” As set out above, the definition of “Best Reasonable Efforts” makes no mention of delivery, referring only to “development and manufacture.”
In fact, the sections of the contract dealing with delivery state that the parties “shall work together to identify the final delivery schedule for such Doses”. This is the sort of drafting you might expect to find in a framework agreement, e.g. delivery of commodities, where a shipping schedule has to be agreed to cover a period of months or even years, in order to accommodate the parties’ commercial needs. It is not at all obvious how this drafting creates an absolute obligation to deliver whenever the Commission demands it.
Choice of Law: Belgian vs English Law – might the Commission have been better off with English Law?
We do not pose the question above to be tendentious, but in order to test whether the Commission’s choice of Belgian law worsened its position. The UK government contract is subject to English law, which takes the approach of holding the parties to the obligations created by the words used in their contract. Whereas, Belgian law, (in common with other civil law systems) will focus on whether the parties acted in good faith and tried their best to deliver the vaccines. That is a more nebulous standard of performance, the pitfalls of which can perhaps be more easily avoided through the more precise manner of drafting obligations seen in English law commercial agreements.
How can such disagreements be avoided in the future?
The Commission’s contract betrays a certain lack of commercial common sense because it does not appear to give the Commission a great many (if any) contractual levers to effectively police the contract. By contrast, the UK government’s contract with AZ states that if any third party tries to force or persuade AZ to take any steps that would hold up supply of vaccine doses, the UK government can terminate the contract and activate various penalty clauses. However, the Commission’s approach seems to have been to rely more on the broader civil law concept of good faith, rather than the English law approach of spelling out in the contract what should happen. That has been to the EU’s detriment.
What could the Commission expect as a remedy?
It is understood that the Commission has waived its rights to sue AZ for any delay in delivery. The Commission could terminate the contract for a material breach, but this would not result in delivery of any vaccine doses, so it would seem self-defeating. Equally, it seems relatively unlikely that a court would order specific performance of the contract, as this would require diversion of doses from other countries, which would likely be prevented by some form of export control in those other countries.
Despite the recent legal action the Commission has launched against AZ, it seems fairly unlikely that it will actually result in delivery of more vaccine doses. As such, you have to question the merit of it.
Did the EU go too far in invoking Article 16?
Northern Ireland’s first minister, Arlene Foster, branded the triggering of Article 16 “an incredible act of hostility”. The Commission has acknowledged that it went too far, with the President of the Commission, Ursula von der Leyen, stating that “mistakes were made in the process leading up the decision to invoke Article 16, I deeply regret that”. Michel Barnier, the EU’s chief Brexit negotiator, has since stressed the need to ensure that we are “preserving the spirit of co-operation” between the EU and the UK and has called for the EU to step back from a dispute with the UK over AZ vaccines.
However, the AZ row is invariably linked to the other key issues that have impacted the UK-EU relationship recently - Brexit and trade. Clearly this remains a developing picture, but the fact that the Commission is suing AZ and has dialled down the rhetoric about export controls on vaccines might suggest an element of rapprochement between the Commission and the UK in these unprecedented times.
Nick Scott, Partner
Jade Brooks, Associate
Blaser Mills Law
Address: 107 Cheapside, London, EC2V 6DN
Tel: +44 (0) 203 814 2020
Email: nxs@blasermills.co.uk
Blaser Mills Law is full-service law firm based in London and the South East, offering a comprehensive range of legal services to businesses and private individuals. We act for blue-chip companies as well as SMEs, entrepreneurs and not-for-profit organisations.
Nicholas Scott is a highly experienced litigator recommended in the UK Legal 500 as “outstanding” and who has “tremendous knowledge and experience…always available and responds to challenges in a calm, decisive and unphased manner.” Specialising in complex high value commercial disputes – typically with a significant international element – he represents clients in both High Court litigation and arbitration (LCIA, ICC, AAA, LME, WIPO) and also has extensive experience of alternative dispute resolution including mediation, early neutral evaluation and adjudication. Nick was a key member of the Defence team awarded “Dispute Resolution Team of the Year” at the 2014 Legal Business Awards and “Litigation Team of the Year” at the 2014 Lawyer Awards.
Jade Brooks is an Associate in the Blaser Mills Dispute Resolution team. She specialises in all aspects of Commercial and Civil Litigation. Jade is recommended in the Legal 500 and was a finalist for Junior Lawyer of the Year in the Law Society Legal Excellence Awards 2018.
What is music clearance and licencing?
Music clearance is the process of obtaining the legal right to use a protected musical property in the way of a composition and recording. Music clearance professionals require specialised training. Their work entails meticulous research, extensive knowledge of music copyright and razor-sharp negotiation skills. They should have an overall understanding of the music business and every conceivable exhibition market or distribution platform. Music licensing is the contract administration portion of the process required to finalise a music clearance. A music licensing professional must understand music law and effectively be able to draft and negotiate a music licence.
Why is it important to get right?
It’s important to get it right because so much can go wrong. Issues that come up could be anything from not obtaining the correct rights, under-clearing a song use, clearing the wrong song, or making incorrect assumptions about the copyright status of a song presumed to be public domain. Even if clearance goes well, a poorly drafted agreement could leave a film or TV production open to legal liability. Overall, common clearance and licensing mistakes can be costly, resulting in expensive copyright infringement claims and even injunctive relief.
Who should be responsible for music clearance?
Many production companies have in-house clearance departments, which are responsible for clearing their own music. However, there are many who do not, and in that case, a music clearance professional should be hired to do clearance work for their project. They will have the specialised knowledge and connections required to get the job done correctly.
It’s important to get it right because so much can go wrong.
Some state that the business of clearing music rights continues to present itself as a complex issue. What aspects remain complex?
This is true, and that’s why it’s always gratifying to complete a clearance successfully. Overall, there are many issues that could emerge, from copyright disputes, incorrect or missing copyright registration, deceased songwriters, appointed trustees not knowing how to administer on behalf of the songwriter’s catalogue, undisclosed samples, or multiple songwriters for one song with several different copyright owners and approval parties, any of which may make clearance and negotiation more complex. A music catalogue may change hands due to a sale or merger, which could make it difficult to find current administration. Also, public domain songs may present a unique challenge due to the lack of clear documentation.
Much can be resolved at an early stage if the correct details about the music can be ascertained; what details are needed?
Ideally music clearance should be contemplated in pre-production. The production should anticipate music costs and have a budget in place for music clearances. There may be music references in a script, music that may not be cleared in a clip licence, or music that is tied to a scene that requires clearance upfront to ensure that it can be used and properly budgeted. Otherwise, music is typically cleared in post-production. With rare exception, if music is audible, assume clearance is needed. In order to effectively research a song for potential use, the production needs to be able to identify the song title, version of the song (i.e. English or foreign language, instrumental), the songwriter(s), and recording artist (providing a pre-existing recording is being used). If a production decides to move forward with clearance, there is other important information required, such as how the song will be used, scene description, whether the use involves a parody use of the song, etc. There is no set cost for music use and no guarantee of approval, so productions need to be prepared to have alternative choices should their first choice be cost prohibitive or denied.
There is no set cost for music use and no guarantee of approval.
How have new issues been presented with the rise of new mediums, such as podcasts? How does the traditional model of clearance and licencing apply?
Mediums are constantly evolving with new technology and platforms, which does impact licence requirements and fees, based on the new medium being cleared. However, the clearance process is fundamentally the same no matter the medium. Fees vary greatly for streaming or downloading rights depending on the type of use. As an example, streaming has become as important as traditional broadcast television rights for audio/visual productions and popular streaming platforms frequently require all media excluding theatrical rights, putting streaming clearance costs on par with television clearance costs. Many productions such as podcasts have little to no money in the budget for music and often request gratis rights or very low fees. Publishers and labels may hesitate to grant licences for small productions because it could be difficult to control monetisation. If the stream is through a platform like YouTube, which has performance licences in place worldwide and distributes income according to use, publishers and labels are more willing to grant permission.
What are the different types of music licences?
There are several different types of music licences, but with respect to audio/visual productions, there is the synchronisation licence (for the use of the underlying musical composition) and the master licence (for the use of the sound recording).
Are procedures more complicated when foreign rights are needed?
Procedures can be more complicated if the worldwide rights are split between multiple parties. In a perfect scenario, you would go to a single music publisher for the worldwide synchronisation licence and a single record label for the worldwide master licence. However, in many cases (such as when the U.S. rights have reverted to the songwriters and/or the artist), you have to enter into multiple licences for the U.S. rights and deal with completely separate parties for the rest of the world. This can be further complicated if the foreign rights are divided, where several licences may also be required.
Film & Ink Law Group PC
1100 Glendon Avenue
17th Floor
Los Angeles, CA 90024
Tel: (310) 689-7291
Email: hello@filmandink.com
Kathleen Taylor is an expert in the area of music clearance and licencing for feature films, trailers, television and new media. In addition to clearing and negotiating music rights, Kathleen drafts and negotiates master and synch license agreements, prepares music budgets and analyzes copyright issues. Kathleen’s music career spans across two decades during which she has cleared and licensed music for feature film, trailers, television and new media properties for such clients as ABC TV Network, NBC TV Network, Disney Studios, CBS Studios, HBO, Lionsgate Entertainment, STX Entertainment, Warner Media, E! and UPN. Prior to joining Film & Ink in 2011, Kathleen held positions at Universal Music Group, where she worked in music licensing on both the music publishing and record label side. Prior to working in music clearance and licensing, Kathleen spent several years working in television and feature film production, which gives her a unique understanding of both music and production needs.
Since its founding in 2005 by Natasha Mandich and Trisha Gum, Film & Ink has guided clients through media’s integration with technology, representing both established studios and streaming services on live action and animated projects for television, theatrical, and digital platforms. Simultaneously, we furnish general counsel services to growing companies on day-to-day legal matters such as contract review and negotiation, employment issues, and regulatory compliance. We also advise clients on marketing campaigns, both traditional and in the social media space. Additionally, we possess a core strength in data privacy issues, an area of particular importance to our consumer-facing clients that collect and use customer data.
Eagerly awaited, the draft Online Safety Bill has finally been published, delivering on the government’s manifesto commitment to make the UK “the safest place in the world to be online”. The Bill has its genesis in the Online Harms White Paper, published over two years ago in response to widespread concern at the malign underbelly of the internet. But following passionate lobbying by stakeholders, is the result a Bill which has tried so hard to please all interested parties that it ends up satisfying no-one?
Elusive duty of care
The cornerstone of the Bill is a new ‘duty of care’ placed on service providers to protect individuals from ‘harm’. It will apply to providers both based in the UK and – nebulously – those having ‘links’ here. In the government’s sights is the gamut of illegal and legal online content, from child sexual exploitation material and terrorist activity to cyber-bullying and trolling.
The ‘duty of care’ will apply to search engines and providers of internet services which allow individuals to upload and share user-generated content. In practical terms, this net will catch social media giants such as Facebook as well as less high-profile platforms such as public discussion forums.
As regards illegal content, the duty will force all in-scope companies to take proportionate steps to reduce and manage the risk of harm to individuals using their platforms. High risk ‘category 1’ providers – the big tech titans with large user-bases or which offer wide content-sharing functionality – will have the additional burden of tackling content that, though lawful, is deemed harmful, such as the encouragement of self-harm and misinformation.
Adding a further level of complexity, the regulatory framework will apply to both public communication channels and services where users expect a greater degree of privacy, such as online instant messaging services and closed social media groups.
Quite how service providers will be expected to meet these onerous new obligations is not specified in the Bill and, instead, they must wait for full Codes of Practice to be issued.
Rabbits from the hat
Sensitive to public pressure, the government has built on early iterations of its proposals to include new measures addressing concerns raised during the consultation process over freedom of expression, democratic debate, and online scams.
The initial release of the Online Harms White Paper triggered a furore over the potential threat to freedom of speech, with campaigners fearing the proposals would have a chilling effect on public discourse as service providers self-censored rather than face swingeing regulatory penalties for breaches in relation to ill-defined harms. In response to such concerns, service providers will be expected to have regard for the importance of protecting users’ rights to freedom of expression when deciding on and implementing their safety policies and procedures.
Concern has been building for some time about the influence which the largest social media companies potentially wield over political debate and the electoral process. This was seen most starkly in the US during the recent presidential election, where some platforms may have felt like a political football in their own right. While there are only distant echoes of that here, the role which social media plays in UK democratic events has attracted attention and, in a nod to this the government has proposed a new duty on category 1 providers to protect “content of democratic importance”. In what might euphemistically be described as opaque, such content is defined as “content that is, or appears to be, specifically intended to contribute to democratic political debate in the United Kingdom…” Service providers affected might well be left scratching their heads about quite how they will be supposed to interpret and satisfy this obligation, and it is to be hoped that the eventual Codes of Practice will provide some much-needed clarity. Absent such guidance, the risk is that they will be pilloried by all sides.
The government has proposed a new duty on category 1 providers to protect “content of democratic importance”.
Following a vocal campaign from consumer groups, industry bodies and Parliamentarians, the government appears to have capitulated to pressure to include measures bringing online scams within the scope of the Bill. eCommerce fraud is estimated to be up 179% over the last decade, with romance scams alone resulting in UK losses of £60 million in 2019/20. All service providers will be required to take measures against these illegal online scourges. Commentators have noted, though, that frauds committed via online advertising, cloned website and emails will remain outside the Bill’s ambit, leaving many investors still vulnerable to the lure of sham investment frauds.
A fierce watchdog?
This ground-breaking regulatory regime will be enforced by a ‘beefed-up’ Office of Communications (‘Ofcom’) which will wield an arsenal of new powers including fines and, in the last resort, business disruption measures. Penalties of up to £18 million or 10% of annual global turnover (whichever is the greater) will be at the regulator’s disposal. Those calling for senior management liability will, however, be disappointed; the Bill will not impose criminal liability on named senior managers of in-scope services, though the Secretary of State has reserved the power to introduce such liability in the future.
Conclusion
It remains to be seen how the juxtaposition between online safety and freedom of expression and democracy will play out. Service providers and Ofcom alike will no doubt have their plates full trying to decipher just how to moderate lawful but harmful online content whilst also ensuring users’ freedom of expression and democracy is not adversely affected.
Greta Barkle, Associate
Guevara Leacock, Legal Assistant
BCL Solicitors LLP
Address: 51 Lincoln's Inn Fields, London WC2A 3LZ
Tel: +44 (0)20 7430 2277
Fax: +44 (0)20 7430 1101
Email: law@bcl.com
BCL Solicitors LLP is a market-leading London-based firm specialising in domestic and international corporate and financial crime, tax investigations and litigation, financial regulatory enforcement, corporate manslaughter and health and safety offences, disciplinary proceedings, serious and general crime, as well as the associated areas of anti-money laundering and anti-corruption compliance and risk management. BCL is consistently top-ranked by Chambers & Partners and The Legal 500, and recognised in Who’s Who Legal and in GIR’s list of the world’s leading investigations firms.
Greta Barkle is a New Zealand-qualified lawyer specialising in business crime, regulatory investigations, extradition and cybercrime. Prior to joining BCL Solicitors LLP, she worked on a range of complex disputes, including claims against the New Zealand Police and Government Communications Security Bureau in relation to dawn raids and unlawful surveillance of communications.
Guevara Leacock is a Legal Assistant in BCL’s Corporate and Financial Crime Team. He joined the firm in 2019 from another leading criminal defence practice where he also specialised in white-collar and business crime.
We have a legal system that it is the envy of the world. Unfortunately, it is not the envy of divorcing couples or parents trying to agree arrangements to see their child. In fact, it is the antithesis, adding stress to an often already toxic mix of emotions. Our adversarial system relies on creating ‘two opposing sides’, polarising arguments, promoting one side at the expense of the other and ultimately involving the court to impose a solution. All this at tremendous financial and emotional cost and the erosion of access to justice.
The current approach is broken. People rarely feel satisfied, and the process can quickly descend into a zero-sum game of “I win, you lose”. In short, the system escalates conflict by design.
The court is an expensive and scarce resource and most legal professionals agree it should be reserved for the most difficult cases where the protection of court is needed. We know that cooperation and coordination produce better outcomes (The Prisoner’s Dilemma). It follows then that, when trying to resolve most family disputes (those that fall outside the need to involve the court), we should be looking to a system that promotes cooperation, coordination, and communication.
Many lawyers are deeply frustrated by the system in which they work, and most will greet the recent no-fault divorce legislation, set to start this autumn, as a welcome step forward. The removal of the ‘five facts’ in the Divorce, Dissolution and Separation Act 2020, and their replacement with a statement of irretrievable breakdown and an option for a joint application goes a long way to de-escalating the conflict that permeates the current system.
While this legislation is largely just playing catch-up with the way many of us have been trying to resolve issues for years, it does represent a step towards healing the broken court system. But more broadly, we have reached a point where the government must rethink how it handles family matters entirely. The recent decision to offer £500 in tax-free vouchers to separating couples to go to mediation, whilst welcome, was far too narrow in scope. What is really needed is complete overhaul.
At present too many people end up in the court system, and once in the system it is hard to get out. It is the equivalent of heading down a one-way street. If we only look at the ‘system’ or ‘alternative processes’ for getting divorced, we will never create lasting change. Instead, we need to think about how we deal with relationship breakdown as a civilised society.
At present too many people end up in the court system, and once in the system it is hard to get out.
This is a subject close to my heart. Whilst training to become a Counselling Psychologist I researched the process of relationship breakdown and the emotional journey people go on when they end a significant relationship. It is clear from the data that as we live longer the likelihood of having only one significant relationship is ever-diminishing. People expect to experience relationship breakdown and yet we are not skilled as a society at handling it when it happens.
The research shows there are very raw emotions being processed and stress and fear are prevalent. At times when we are emotionally processing (and close to being overwhelmed), we find it harder to make good decisions (those that serve our interests in the longer term or create a ‘greater good’ scenario rather than short-term pay-off). Unless we address this emotional journey and learn how to support and guide people through it, we will keep ending up with people in an overwhelmed state being funnelled into an overwhelmed court system.
If we want to change the numbers, we need to reframe how we think about relationship breakdown. Instead of seeing the ending of a relationship as a battleground – and one that requires a legal expert or process to resolve – we should be looking at separation and divorce as emotional processes that have both legal and financial consequences. If we attend to the emotions and human consequences of separating first, we give people an opportunity to choose better ways to resolve financial and children issues. We free people up to cooperate, communicate and coordinate.
There needs to be a public information campaign to make it much clearer to separating couples that divorce and separation are emotional issues, and that is where people should first look for support and be signposted to when their relationship breaks down.
Next, we need to break the link between divorce and going to a solicitor. There should be a neutral service that gives people support and information on the different options and help available to them whatever type of significant relationship has broken down. The purveyors of one option (solicitors) should not be the conveyors of all options.
A neutral relationship breakdown service should be supported by the introduction of a triage system that gives people different options, based on their individual circumstances, and could help people understand which process is right for them. This needs to extend beyond signposting people to mediation, looking at the wide variety of tech and human help that now exists. We need to drop the pursuit of a gold standard legal approach to divorce and adopt a cost-proportionate approach that serves all citizens.
Most people we speak to in the amicable service are keen to tell us they have not done this before, and they do not know what they are doing. This is completely understandable; nobody gets married thinking it will end in divorce, but it means much more neutral guidance and information is needed for people, so they do not wrongly end up in the court system.
Protecting children must be our priority when conceptualising a societal change to relationship breakdown – what better motivation is there as a parent? That is why we are supporting the “Parent Promise”, which was launched this month by the Positive Parenting Alliance. The promise encourages parents to plan for how they will parent if their relationship breaks down before it does. Cultural changes can be powerful and agreeing to discuss parenting arrangements in the event of a separation or divorce when couples are still together could help to improve outcomes for families if relationships do break down.
Protecting children must be our priority when conceptualising a societal change to relationship breakdown.
The need for reframing and rethinking as a society is urgent. No-fault divorce legislation will pass at a time when divorces are at a seven-year high and are expected to increase even further following family tensions that have been fuelled during lockdown. Latest Cafcass figures show a 40% increase in private law cases since the start of the pandemic. Not only will a system already stretched because of COVID-19 face a huge increase in new cases, but a huge number of previous cases will be returning to courts as well. Whether this is to negotiate first-time arrangements that the pandemic has exacerbated through job losses, or more difficult situations such as parents using the pandemic as an excuse to withhold contact, the court system will be overloaded by problems that would benefit from being resolved quickly.
The adversarial legal system is not the right way to handle divorces. But changing the system without changing the perceptions of the people using it is doomed to failure. It is still far too common for people to think that using the courts is the only way to get divorced. Pursuing other paths and keeping things amicable often achieves better outcomes. It can help you preserve a better relationship with your ex-partner, save you money in solicitor’s fees, and most importantly, protect children from a harmful process. Divorce is a reality of life; it does not have to be a battleground.
Kate Daly
amicable
Address: amicable, PO Box 73636, London, SW14 9BZ
Tel: +44 (0)203 004 4695
Email: hello@amicableapps.com
amicable is a solicitor-free legal services company that provides divorce services to couples looking to end their relationship.
Kate Daly is co-founder of amicable and a divorce advisor specialising in non-conflict divorce. Her background is in psychology, conflict resolution and negotiation. She also hosts The Divorce Podcast.
