Understand Your Rights. Solve Your Legal Problems
With its EU connection and appealing tax incentives, we discuss with Elias the common misconceptions investors have towards Cyprus and why it is in fact an ideal location to do business.
The president of the Cyprus Germany Business Association, Stefan Nolte, said, “Cyprus will need to come up with new ways to attract direct investments from Europe.” Why are direct investments so important right now?
Direct investments have been important for Cyprus ever since the country gained independence from the UK in 1960. At that time, the economy was firmly tied to agriculture and tourism and the country’s only natural resource was its people. In order for the country to develop, it was necessary to attract investment and expertise from elsewhere. The economy is now far more diverse, but tourism and tourist related activities do still remain a significant component of the Cypriot economy. The COVID-19 pandemic has adversely affected this sector and will continue to do so for the foreseeable future. In order to return to GDP growth quickly, Cyprus must look elsewhere. Direct investment offers a viable solution since Cyprus has many attributes that render it an attractive location for such funds.
In what ways can Cyprus achieve the above?
By promoting the advantages that it does have, including: its geographic location at the meeting point of three continents; a young and well-educated population which includes a skilled professional services resource; a Common Law legal system offering certainty of outcome; a stable political system; access to the EU, and numerous tax incentives forming part of a legitimate, modern, transparent low tax system.
Cyprus is an ideal headquartering destination for many firms. Its unique EU approved tonnage taxation scheme renders it very attractive to the shipping sector. Several significant development and construction schemes such as that for Larnaca Port and Marina have also been accelerated and should prove attractive to investors. There are specific incentives in place to attract film and media companies and also technology-based businesses. Additionally, there are investment opportunities in the renewable and hydro-carbon energy sectors as well as in the financial services sector.
Cyprus is not a tax haven but a bona fide business friendly jurisdiction.
Nolte also stated that Cyprus is known as a tax haven and an island used by foreigners for money laundering and tax evasion; why is this the notion often made?
Cyprus is not a tax haven but a bona fide business friendly jurisdiction. In his speech, Nolte was referring to the view in Germany and not in the world per se. At the time of the financial crisis of 2013 Cyprus was used as an ‘experiment’ for the concept of a ‘bail in’ and there was a concerted effort to portray the island as a haven for ‘dodgy’ funds to justify this. Money did flow into Cyprus (in much less amount than it did in other countries) following the collapse of the USSR when the country lacked a sophisticated regulatory structure to deal with it. However, this situation changed massively when the country introduced significant regulatory reform in order to become a member of the EU in 2004. Further reform conditions were attached to the EU funds received along with the ‘bail in’. Unfortunately, if you throw enough mud, some will stick. This may have been particularly true in respect of the German people who already felt that they were bearing the brunt of bailing out Europe and were aggrieved by the misconceived idea that they were propping up crooked Russians rather than ordinary citizens who in many cases had actually forfeited most of their life savings.
In fact, the most important flows of money into Cyprus in recent times have been from internationally respected companies and multinationals. This is something that, as a country, we should be publicising more.
What could be done for Cyprus to diminish the reputation of being an ideal spot for money laundering? Should there be tighter regulations in place?
I contest the assertion that this is Cyprus’ reputation. It is certainly not the view reflected in the 2020 Moneyval report on our country which strongly praised the Central Bank of Cyprus, the Institute of Certified Accountants and the Financial Investigations Unit for the systems that are in place to safeguard against money laundering. Furthermore, the two main concerns highlighted in the otherwise very positive report, namely clarity on ultimate beneficial (UBO) holders of a business and possible misuse of the Cyprus Investment Programme (CIP), have been addressed. The 5th Anti-Money Laundering Directive has been adopted into Cyprus Law, this includes the establishment of UBO registers and extends regulation of the crypto-asset sector. The CIP was amended to address Moneyval and EU general concerns but has now been completely dropped as a consequence of adverse publicity linked to the original scheme.
Cyprus law is fully harmonised with EU law. EU Anti-tax Avoidance Directives ATAD1 and ATAD 11 entered into force in June 2020. Cyprus was also one of the initial 68 signatories to the Multilateral Convention on Tax Treaty Measures to Prevent Base Erosion and Profit Shifting. All new and updated tax treaties are aligned with the latest OECD standards. In fact, Cyprus has double taxation treaties with more than 60 ‘reputable’ countries including the USA, Germany, most EU countries and the UK. It is hard to see how that squares with Cyprus having an image as a pariah state.
At 12.5% Cyprus has one of the lowest corporate tax rates in Europe.
To answer the second part of your question, Cyprus has already adopted currently accepted ‘best practice’ in its regulatory approach. This will be updated as necessary to ensure continued compliance with EU and international standards. I cannot see any justification for us self-imposing additional restrictions that would be tighter than those existing in any other country in the world.
Should Cyprus enhance its reputation as a destination for financial services and investment funds?
Definitely, in its growth to becoming an international financial services centre, Cyprus has developed a highly skilled financial services professional sector based in a relatively low-cost economy. It should also seek to promote its introduction of RAIFs which are a time efficient and affordable way for establishing AIFs in Cyprus. RAIFs do not require authorisation by the Cyprus Securities and Exchange Commission, being the competent authority supervising AIFs, in order to commence operations as long as they are externally managed by an Alternative Investment Fund Manager licensed in Cyprus or in another EU Member State.
What aspects of Cyprus are appealing to investors?
There are many but among the most significant are: The regulatory and ‘safety blanket’ that Cyprus’ EU membership confers on them; access to markets in three continents; a skilled low-cost workforce; Cyprus’ investor friendly tax system and, an extensive network of taxation which protects them from the burden of double taxation.
What incentives can firms benefit from if relocating to Cyprus?
At 12.5% Cyprus has one of the lowest corporate tax rates in Europe. There is a 50% tax deduction relief available for 10 years for ex-patriate employees earning above 100,000 and a 20% deduction lasting five years for ex-patriates earning below this threshold as well as a non-domiciled regime. Businesses investing in R&D can benefit from a generous IP Box regime. There are also industry specific benefits such as the Cyprus Film Scheme and the Cyprus Shipping Tonnage Tax Scheme.
About Elias
What has been your biggest achievement in the past 12 months?
Probably the fact that we have not just ‘kept the lights on’ during the COVID-19 pandemic, rather we have driven the firm forward. We have not furloughed any staff, have recruited new talent, recorded several big new client wins and have continued to develop both our staff and our client services. In fact, we are very proud to report that we managed to exceed our 2020 budget which was set and agreed upon before the covid crisis kicked in.
Do you have a mantra or motto you live by when it comes to helping your clients?
Always aim to exceed their expectations and then try a bit harder!
What has been your flagship piece of work and how did you apply thought leadership to this scenario?
I am a huge believer in the importance of leveraging technology to help it improve the quality, accuracy and cost of providing advice and value added to clients. This resulted in my pushing ENC to develop a strategy to adapt and develop services of an Alternative Services Legal Provider. This strategy was converted into action during 2019 when we established an innovation and technology development team. The team was tasked with developing ‘NEOLAW.AI’, a technological tool designed to provide ‘value added’ services to clients and thereby propel the delivery of legal services in Cyprus well into the 21st century. This innovative product will hopefully revolutionise the delivery of legal services both on the island and beyond. The launch of the ’NEOLAW.AI’ Alternative Services Legal Provider offering is scheduled to take place in the coming months.
Elias Neocleous & Co LLC and Elias Neocleous
I am proud to be the managing partner of the largest, and I believe, the best international law firm in Cyprus. I graduated from Oxford University and have been a partner since 1995. My specific areas of expertise are Corporate and Commercial and Tax Law.
Elias Neocleous & Co LLC (ENC) employs more than 150 professional staff and has three offices in Cyprus as well as fully functional offices in Brussels, Prague, Kiev and Budapest. We also operate a Russian desk and an Indian desk. All our staff are bilingual with the majority being fluent in English as well as in their mother tongue.
The firm is fully departmentalized, allowing staff to specialise in the areas of law which are of most interest to them and, enabling us to provide a comprehensive service to our clients which are mainly ‘blue chip’ companies, governmental and public bodies and, high net worth individuals. Whilst we are very active in the domestic market, we are best known for our ability to competently handle complex cross border issues. We are frequently called upon by the ‘magic circle’ law firms to handle the Cyprus aspects of complicated transactions. As a firm, we work hard to promote the expertise of the Cyprus financial sector and of Cyprus as a business centre. The firm is classed as ‘tier 1’ by a host of independent rating agencies whilst our staff are also widely recognised in their fields of expertise.
ENC began life as a family firm and throughout its growth, we have tried to maintain that sense of community whilst simultaneously adopting modern international quality standards, infrastructure and procedures. We operate the largest and most in demand lawyer training scheme in Cyprus and are strong advocates of continued professional development. Several of our current partners are ‘home grown’ and our international standing allows us to attract external expertise to strengthen our team. We place great emphasis on having a diverse staff team in terms of gender, nationality and age as not only is this the ‘right’ thing to do, but it also enhances our ability to engage with and fully understand our clients. The firm is very much a part of the community that surrounds it and consequently, we have a very active CSR programme. Our litigation team has also become quite famous for the pro bono work it undertakes – most recently winning a landmark discrimination ruling from the Cyprus Ombudswoman against the Defence Ministry on behalf of a large group of female soldiers.
As a firm, we believe in applying the highest quality standards to all that we do since a chain is only as strong as its weakest link. To my knowledge, we are the only law firm in Cyprus to hold ISO 9001:2015 for quality management systems in an organisation. I believe that we are also unique in holding certification ISO/IEC 27001 Information Security Management Systems, something that has provided our clients with valuable data security against the modern world’s many cyber threats. In addition to this, we are the only firm of any description to have received Cyprus’ Gold HR award in consecutive years for ‘Excellence in Performance Management Strategy’. Our biggest assets are our staff and our clients, and we are committed to investing in both.
He shares his journey into the legal sector, why shifting towards in-house practice was a better decision for him and what it takes to be an exceptional member of the legal team at Rio Tinto. Offering nuggets of advice along the way, we learn some interesting aspects about what it takes to be in-house counsel at an international firm.
I graduated from law school at Université de Montréal in 1998 and was admitted to the Quebec bar in 1999. My first experience as a lawyer was as a legal researcher for the Quebec Superior court (1999-2001) and then as a litigator in a local Montreal firm (2001-2003).
In 2003 I joined Alcan, the Canadian aluminium company, as in-house counsel (Alcan was acquired in 2008 by the global mining and metals company, Rio Tinto).
The transition from private practice to in-house counsel was a very good decision for me. The practice of law in a heavily weighted business environment pushed me to apply legal concepts in a very practical manner - to corporate proposals and actions.
I was extremely fortunate to join an all-star team of lawyers that formed the Alcan legal group at that time. Our leaders instilled in all of us the ambition to meet the highest standards and to play an active role in the business.
My initial role was to support day-to-day operations in Canada, but throughout the years I have taken on many different positions, involving business units in Europe and Africa, that have enabled me to develop meaningful experiences in many fields, such as large-scale development projects, joint ventures, procurement, sales and marketing, power, mining, financing, indigenous affairs as well as general corporate and commercial matters.
My current role is as chief counsel for Rio Tinto’s Canadian mining businesses which means I am responsible for Rio Tinto’s mining assets in Canada including Iron Ore Company of Canada and Rio Tinto Fer et Titane, as well as QIT Madagascar Minerals, located in Madagascar.
I view my legal training as having gone through two main phases. The first phase of anyone’s legal training is technical where the focus is on understanding legal concepts and interpreting laws and regulations. Looking back, I see this as encompassing my university studies and the first years where I acted as a legal researcher and litigator. This was a time when it was important for me to “get the answer right” in an academic sense.
The second phase of my training was focused on developing complementary skills such as strategic thinking, communication and leadership. This development began when I transitioned to in-house counsel and has been gradually progressing ever since. As a more senior lawyer, I see my role now as not only to “get the answer right” but, and more importantly, to convert legal advice into a workable plan and generate a concrete and positive outcome for the business.
Needless to say, I believe that to be a good lawyer you need to be a strong technical performer but you also need to be able to drive outcomes – to take a sound legal strategy and turn it into a tangible result.
Rio Tinto, given its international profile, does not have difficulty attracting legal talent. It has the ability to hire lawyers who meet very high technical standards. But to be successful within Rio Tinto, certain personal attributes are also extremely important.
As generalist lawyers, we are expected to engage on a wide array of different issues. This requires us to accept a certain level of chaos and a willingness to regularly step out of our comfort zone. Having a sense of adventure is a job requirement!
Leadership is also an important quality to develop when working at Rio Tinto. To properly do our jobs, members of the legal department must become integral parts of management teams in order to craft business strategies and achieve results.
I am very proud to work for Rio Tinto and the values it promotes. Rio Tinto’s core values as set out in our code of conduct ‘The way we work’, are:
Safety – caring for human life and well-being above everything else;
Teamwork – collaborating for success;
Respect – fostering inclusion and embracing diversity;
Integrity – having the courage and commitment to do the right thing;
Excellence – being the best we can be for superior performance.
These values are promoted, discussed and exhibited on a daily basis within Rio Tinto and guide our interactions with internal and external stakeholders. Our senior management demand that Rio Tinto personnel adhere to ethical business standards and to seek out sustainable commercial outcomes.
The mantra within our team at the moment is “just because it is legal does not necessarily mean it is right” and we are challenged to incorporate this mindset into our files in order to favour more sustainable outcomes.
I am enjoying my career with Rio Tinto immensely as it has provided me with so much diversity in the types of files I deal with. I cannot imagine having such an interesting and varied practice working in a private law firm.
This diversity also extends to our team which counts roughly one hundred in-house lawyers spread across the world which definitely adds to the strength of Rio Tinto’s legal department. Perspectives from lawyers based in the UK, Johannesburg, Salt Lake City, Singapore, Perth and Brisbane are always helpful and enriching.
Another bright spot is without a doubt the general standard of excellence of Rio Tinto’s workforce. The level of expertise and knowledge of my co-workers in the various functions and operations at Rio Tinto is truly impressive. Within and between the Rio Tinto functions (legal, government relations, tax, accounting, corporate secretarial, etc.) there is a particular atmosphere of collegiality. People are often generous in sharing their experience and I have benefitted from many mentors and roles models over the years. This in turn motivates me to pass on what wisdom I have gained to newer team members.
Rio Tinto has also allowed me to discover the world over the past two decades. In addition to having spent five years as an ex-pat based in Paris, France, I have had the opportunity to visit over 20 countries. The ability to work and interact with people from different nations and backgrounds has been invaluable to me both on a professional and personal level.
Over the last two years, I have been leading negotiations in two separate cooperation agreements (IBAs) between Rio Tinto businesses and indigenous communities with historical ties to lands where we operate on the North Shore of Quebec, Canada. I am very proud of the approach we took in these discussions andf the outcomes that were achieved. We were able to develop strong bonds with community representatives and create a collaborative atmosphere that allowed the parties to overcome several decades of tension. The successful conclusion of these cooperation agreements is a historic milestone and provides the parties with a framework to build a strong future together.
When I look externally for legal support it is generally to address a substantial business risk in an area of the law where we do not possess sufficient internal expertise. Having dealt with many external lawyers over the years, I have a clear preference for those that are technically sound, responsive and can communicate simply and concisely. Simple, concise communication is extremely important to me as it denotes a clear thinker. It is also important to me that external counsel appreciates the level of risk tolerance of Rio Tinto and puts in the rights amount of cost and resources towards the matter at hand. Receipt of appropriate advice faster and at a lower cost than anticipated is value and will make me a repeat customer!
My advice for young lawyers is to be patient. Being a lawyer is daunting for those starting out, as there is so much to learn before truly being in a position to provide valuable counsel. Don’t put too much pressure on yourself early. Spend a number of years building up good technical experience. Take advantage of mentoring relationships that may be available to you. Continuously work on your communication skills, developing good judgment and strong emotional intelligence, and make sure you have an outlet for the stress of the job – sports, hobbies etc.
Benoit Palmer
Chief Counsel, Canadian Mining Businesses
Conseiller juridique principal, secteur minier canadien
400-1190 Avenue des Canadiens-de-Montréal
Montreal, Quebec H3B 0E3 Canada
T +1 514 848 1799
www.riotinto.com
Amid long hours and the disruption of adapting to new ways of working during the pandemic, tasks like managing your personal finances can easily fall to the bottom of the to-do list.
Here are five key things to keep in mind when it comes to your savings habits.
The very first step in any savings strategy is to think about your financial goals and the reasons why you’d like to put money aside.
This will naturally differ from person-to-person, and it’s possible that you’ll have multiple goals at once, each with differing time spans. For example, an immediate, shorter-term goal might be to save for home improvements or to buy a new car. Over the longer-term, however, it might be to get your foot on the property ladder, or to move a rung up.
Ultimately, the nature of your goals, along with your personal circumstances, will inform your overall savings strategy.
Once you’ve set your targets, the next step will be to consider how much you can afford to put aside.
Carefully review your income and your cost of living – for example, your monthly utility repayments, food bills and rent or mortgage repayments.
Alongside your regular overheads, it’s essential to think about building an emergency fund of savings for a rainy day. As a starting point around three months’ worth of net household income is a good buffer.
Once you’ve accounted for your regular outgoings and any contributions towards your emergency fund, you can then think about putting the extra funds towards your savings goals.
For some, retirement might seem like a long way off, but it’s important to plan for the day you step back from law.
As with saving in general, it’s important to consider your retirement goals – thinking about factors such as when you’d like to retire, and what retirement will look like to you. From here, you can understand how much income you will need at different stages of your retirement, and how you can start or grow your pension pot.
A financial adviser can support you with this process. As well as helping you calculate the financial implications of choices such as taking a phased retirement or working past your retirement date, they can also help you to understand your possible income streams – including any current savings you have, or future access to the State Pension – including when you can start to withdraw funds from your pension.
With interest rates currently lower than inflation, simply keeping cash in the bank means that the value of your savings effectively falls over time.
Investing can offer ways to grow your wealth by helping to beat low-interest rates, outperform inflation and build new income streams. When it comes to investing, it’s important to consider how much risk you are willing to take as the value of your investment can go down as well as up.
Each asset you can invest in – whether it’s property, bonds, cash or stocks – each comes with its own level of risk, as well as its own degree of reward. Diversifying your investment portfolio by spreading investments across asset classes can offer a degree of protection against a single asset’s poor performance.
An easy way to do this is to put your money in an investment fund that covers many different types of assets, spreading the overall risk. Each fund has a risk rating that you can use to see if it’s a good fit for your appetite. Actively managed funds are controlled by a fund manager, and one of the benefits that come with that is it drastically reduces the time you need to put into managing your investments.
When you’re saving, every little helps, and using your tax-free savings allowance can help to get the most out of the money you’ve set aside.
You can save up to £20,000 tax-free into an Individual Savings Account (ISA) with no tax charged on any interest earned. There is a range of ISA types you can use. For example, a cash ISA allows you to save money in cash, meanwhile, a ‘stocks & shares’ ISA – such as Wesleyan’s With Profits ISA – allows you to make investments with your money in assets like funds, bonds or individual stocks.
Our With Profits Fund was recently ranked 1st place* for its five-year net return of 7.31% by independent actuarial services provider Barnett Waddingham. And because it’s an ISA, our customers didn’t pay tax on any interest they had earned.
At Wesleyan, we understand the unique financial needs of lawyers. Our specialist financial consultants available who can offer advice at every stage of your savings journey, from setting targets through to reviewing your pension savings.
For more information visit: www.wesleyan.co.uk/lawyers
*https://www.barnett-waddingham.co.uk/comment-insight/research/uk-with-profits-funds-investment-performance-and-strategy-2020/#form-uk-with-profits-funds-2020-download.
The aerospace industry is an ever-evolving field thanks to recent and upcoming advancements in technology. How has this impacted compliance and management?
While technology is moving along at a very fast pace, regulatory design standards struggle to keep up with the industry. As a result, aerospace organisations are having to self-define what ‘good’ looks like and convince regulators that their designs, production and servicing controls are adequate to meet existing regulations and requirements. With the growing trend of regulators delegating more self-certification authority to ‘certificate holders’, companies are accruing not only authority but also increased responsibility and liability. Such responsibility includes not only meeting regulatory requirements, but also contractual and self-imposed quality requirements. Simply relying on a certificate on the wall as evidence of compliance does not cut it anymore. Organisational management has defined responsibility for compliance to both stated and unstated requirements.
What are the common contractual obligations regarding management responsibility in this field?
Regardless of the applicable national regulatory scheme, nearly all certificated aerospace organisations are required to have a quality management system in place that not only assure design, product, and/or service output, but also mandates processes of capable management oversight that are proactive. The most common quality management standards applied in the aerospace industry are AS/EN9100 and AS/EN9110. These standards are in addition to the regulatory requirements applied to the organisation, and when incorporated as part of the organisation’s conditions for regulatory approval, they carry the same authority as said regulatory requirements. When management does not take into account nor understand the requirements of these standards, a broad minefield of potential liability is created.
From your experience, what regulatory and contractual obligations are commonly overlooked?
The 9100 and 9110 quality management standards require organisations to engage in documented proactive processes that are aimed at preventing non-compliance. However, these are the requirements that are frequently either misunderstood by management or simply ignored, resulting in fodder for auditors and expert witnesses alike. Processes such as management review, understanding both stated and unstated customer requirements, ensuring the organisation has necessary resources, conducting internal audits, and implementing corrective and preventative actions all become non-negotiable requirements of the organisation when they are part of its approved quality system.
What was considered good yesterday may be non-compliant tomorrow.
What are the repercussions of these aspects being overlooked?
Aside from the vast and serious safety implications and expenses related to poor performance, when an organisation is not in compliance with all of its requirements, it exposes itself to all sorts of liabilities. Regulatory agencies have the ability to revoke or suspend an organisation’s design, production, maintenance and operations certifications, as well as, to impose fines. However, when an organisation is found to be non-compliant to its own self-defined quality management system, skilful and experienced experts may be able to create a roadmap of negligence for a court and jury.
Why are these compliance requirements commonly ignored?
Ignorance is one of the most common reasons for non-compliance regarding the quality management system requirements. While an organisation may have been in compliance at one time and it may have drifted away as a result of key personnel changes. Quality management systems are like anything else in an organisation, they must be monitored, maintained, and managed by human beings that know what they are doing. It is when an organisation allows the responsibility for managing its quality system to fall into unskilled hands, is when the problems usually start and grow. The consequences of non-compliance are too great to allow the responsibilities of the quality management system to be handed over to individuals who are not familiar with the industry or its quality and regulatory compliance requirements.
And compliance concerns are quickly growing. The industry has recently taken several big hits, including COVID-19. Many organisations have been forced to lay off personnel and encouraged those close to retirement to retire early. Given that there was an existing industry deficit of professional knowledge, this current ‘brain drain’ presents significant risk. As the industry begins to regain its steam, it is critical that there are professionals in place to understand the requirements to ensure compliance and conformance. Organisations cannot assume those they entrust with managing its quality management system are capable, they are required to ensure such.
What would be an ideal checklist for those wanting to avoid falling foul of such requirements?
Organisational leadership should never assume that they know what all the real requirements are or that their people have all the requisite knowledge and skills.
On the people front:
On the requirements front:
Change is constant, and that includes requirements, people, processes, suppliers, and so on. What was considered good yesterday may be non-compliant tomorrow. In my 41 years of aerospace experience the basic Deming principles of Plan-Do-Check-Act have never diminished in value, but with the stated caveat of “Repeat” once the cycle is completed. If your organisation is unsure about its current state, then it is highly advisable to seek out industry experts that can independently provide objective assessment, troubleshoot, and ongoing review to minimise the risk of non-compliance. And, when the organisation suspects there may be issues, it may be best for such engagements to be protected as work product. The risks associated with doing nothing are way too great.
Contact details:
ASD Experts, LLC
+1.239.283.2839
Dr Michael J. Dreikorn is president of ASD Experts, a full service expert witness and expert consulting firm specialised in all aspects of the global aviation, space, and defense industry. Dr Dreikorn has over 41 years of aerospace experience, most notably previously serving as Vice President for Quality Assurance and Product Integrity for engine manufacturer Pratt & Whitney and before that as Assistant Division Manager for the Federal Aviation Administration’s Production and Airworthiness Division. In addition to holding several academic degrees, he also maintains various FAA certificates and has authored several books and numerous articles. He is a fellow of the American Society for Quality and a co-founder of the AS/EN9100 standard-series writing organisation International Aerospace Quality Group. Dr Dreikorn has extensive experience in organisational troubleshooting and as a testifying expert in various state, federal, and international venues.
1. COVID-19 has resulted in many businesses falling into debt and bankruptcy. What lessons have been learnt here for creditors and debt collectors?
COVID-19 has given everyone a better appreciation of certain fundamental institutions and industries that deserve priority treatment. Some, like healthcare and education, are obvious. Others, like long-haul grocery truckers, have rightly earned new appreciation. Specific to the credit and lending industry, there has been heightened recognition of the critical role of the civil justice system and the administrators that support it.
In British Columbia, there was a short stint in the spring of 2020 where the courts were almost entirely closed. For any creditor party seeking to recover debt, that stint imposed a moratorium on the most effective tools for pursuing recoveries. Courts would still hear urgent applications, but counsel had to use discretion about the designation of “urgent”. The administrative processes of the court that my team are used to navigating were also disrupted, creating unexpected issues.
For example, my team managed to obtain a garnishing order to secure funds held by a debtor party. The order said that a local credit union was to pay that debtor’s bank account balance into court. The usual process is that a process server takes the court order to the branch manager, and then the branch manager cuts a cheque to court services. Sure enough, the credit union was temporarily closed. During periodic follow-ups, the process server kept reporting “still closed” and eventually advised that the credit union’s branch was permanently closed, with all services shifted online. As a result, the creditor had to navigate through a corporate structure to escalate the matter through management and credit union counsel.
This example illustrates the logistical hurdles that have emerged in what is typically a straightforward process. The legislative entitlement for garnishing orders was unchanged, and court registry staff ensured seamless civil procedure, but the usual methods still went off track because of a credit union’s locked door and a “CLOSED” sign.
In my view, creditors should not necessarily view litigation as an unfortunate last resort.
2. Debt collectors have numerous advantages and techniques at their disposal to recover outstanding debts for creditors, but why is the legal agreement important?
Specific enforceable contracts exist on a spectrum. At the far end, there are handshake deals, scribbles on a napkin, and screenshots of text messages. At the other end are industry-approved forms (such as standardized realty contracts and CCDC construction contracts) and customized contract terms negotiated in advance by solicitors. The reality is that any of these formats can create a valid and binding contract with offer, acceptance, and consideration between parties.
In my view, one of the most essential functions of the legal agreement is to dictate expectations at the outset. As an example, getting a new credit card makes some people feel as though they just found money they can go spend. The expectation, however, has to be made clear in the governing agreement. It is the only way that a cautious lender can tell an excited borrower that delayed payment results in 20% interest on top of the credit used.
3. What are vital aspects for the agreement to include in order to avoid issues further down the line?
From the creditor's perspective, several recovery tools are not available unless specified in the agreement. These include prioritised security, solicitor and own client costs on recovery efforts, and automated default rights.
4. As a legal expert, what are common problems which arise with such agreements? Why does it proceed to litigation?
The common problems have very little to do with the agreements themselves. I say that because the most common problem is simply “You were supposed to pay, but you didn’t”. Whether it is a paper napkin agreement or a formal bank loan document, the debtor’s failure to pay is the only hurdle to recovering the money. Once that happens, two other hurdles can arise. The first is that the debtor disappears. The second is the debtor’s impecuniosity. There is not all that much that a creditor can do if a debtor has burned through all of their money and decides not to generate any more.
In British Columbia, litigation is the path to the remedies of the Court Order Enforcement Act. In my view, creditors should not necessarily view litigation as an unfortunate last resort. Litigation—ideally, fast and efficient litigation—is the way forward for securing remedies through the Court Order Enforcement Act.
Whether it is a paper napkin agreement or a formal bank loan document, the debtor’s failure to pay is the only hurdle to recovering the money.
5. Is there a way to end such agreements?The best conclusion to a debtor-creditor agreement is payment and release. Each party can control the formality of that conclusion. The creditor’s ideal scenario is to be paid every penny while leaving the terms of an agreement in place just in case there is another penny that was overlooked. A savvy debtor will insist on a formal conclusion, like a release or written confirmation that nothing is left due and owing, and all obligations are concluded. Ideally, the terms of a contract will dictate the conclusion scenarios, but since creditors are usually the authors of credit contracts, most are left open-ended so that the creditor can keep recovery options open as long as possible.
6. What is a standstill agreement and when should these be considered?
The term “standstill agreement” has subtle differences in different regions and industries. The term is used for takeover bids of publicly traded companies or in pre-litigation disputes between parties where limitation periods are looming.In the creditor context, I prefer to use the term “forbearance agreement”. A forbearance agreement can address a wide variety of things, from stopping the compounding of interest to refraining from litigation steps, to putting a standstill on loan terms during a remodelled repayment schedule.An effective form of forbearance agreement is one where both parties:
- acknowledge that a debt exists,
- agree to a repayment schedule,
- agree not to do anything to each other during the repayment schedule,
- sign a consent judgment order,
- establish undertakings by which the creditor’s lawyer holds the consent judgment order but agrees to do nothing with it, and
- agree that if the schedule is not met, the creditor can file the consent judgment order.
Partner
Vancouver, British Columbia, Canada
eyfordpartners.com
Tel: +1 604 899 5240
Christopher Schuld is a Vancouver-based litigator with experience in civil litigation and a practice focused on construction, real property disputes, defect warranties, and surety bonds. Along with trial experience, Chris has an active alternative dispute resolution practice and regularly navigates complex, multi-party litigation. Chris has extensive experience in debt recovery and drafting commercial agreements for creditors.
About Eyford Partners:
Eyford Partners is a preeminent British Columbia litigation boutique firm. With offices in Vancouver and Kelowna, the firm advises clients provincially, nationally, and internationally.
The lawyers of Eyford Partners have been repeatedly recognized in Best Lawyers™, Lexpert®, Benchmark Litigation, Chambers and Partners, Litigation Counsel of America, and other noteworthy publications.
Eyford Partners pairs the best of big law—the commitment to legal excellence, the readiness to take on complex mandates—with highly responsive service. The firm’s lawyers have appeared at every level of court in British Columbia, served as counsel in landmark decisions, and secured a reputation as litigators and appellate counsel that can deliver when it matters most.
Eyford Partners has reputable leaders in appellate advocacy, indigenous consultation and reconciliation, insurance defence, construction litigation, municipal and expropriation law, securities regulation, and commercial business disputes.
“We forced California to admit that”, says James Daniel Peters III the Executive Director of the Special Education Law Division of the Law Offices of Sheila C. Bayne. James and his team fought tirelessly to prove that California had done injustice to their special needs students, and they won. “Now Students throughout the Country can obtain compensatory educational Services”, shares James.
Below, we hear from James where he expands on the work he put in to ensure every child got access to the education they rightly deserved during a period where, unfortunately, those who need extra care are often left behind.
What has the impact been on families and caregivers with homeschooling children with special needs?
COVID-19 has been a disaster for all students. However, for special needs students and their families, it has been devastating. Exacerbated by the fact experts knew and Federal Law had safeguards in place in the event something catastrophic ever took place, yet they still failed to follow through with those safeguards. Federal Law dictated and the Californian Governor mirrored that law that these children need a variety of services from trained experts just to be able to keep making progress in their education. When they were sent home to virtual distance learning, they lost their access to those services and the experts who provided them. Instead, districts expected parents who never had training in things like providing speech and language services, physical therapy service and occupational therapy services, to keep these children moving forward. They couldn’t, not only did they not have the training, but they lacked the equipment; some had jobs they couldn’t abandon, some had multiple children each of whom needed full-time attention to be able to learn. Because of this, these students not only stopped making progress, but they also began to regress, leaving parents struggling financially and emotionally to deal with the situation. The shame of this is that the state intended the districts to make sure this didn’t happen and intended the districts continue to provide roughly equivalent services and accommodations as needed. Sadly, the districts by and large didn’t.
What further care and attention do these parents and caregivers need?
It depends on the child. Each child has what is called an Individual Education Plan where the district itself identifies the services the student needs to be able to make progress. What the parents need are those services. Moreover, the California legislature recognised that many of these students could not benefit from a Distant Learning model online environment. Students require an intensive educational program and services to compensate students who struggle every day trying to learn. Many students require behavioural, ABA, occupational therapy, speech & language supports that help children with moderate to severe disabilities learn. Parents need support including for home programs. Most of all, parents need the districts to decide to work with them to get through this rather than shoving them off until the pandemic is over and disregarding parental concerns and requests.
You recently worked on a class action suit on behalf of all special need students in the state of California for the District’s failures to offer or provide a FAPE to Students since the closure of schools per the Governor’s order. What made you take on this case?
It is inconceivable how school districts sent students with disabilities to learn from home without providing the necessary supports needed to address their disabilities knowing it violated Federal and State Law. However, they did.
Students were knowingly sent home to virtual learning without assessment of their conditions to appropriately address the accommodations needed in the distant learning model of education. Instead, they dumped all responsibility on the parents. Parents who are not trained in special education, speech therapy, physical therapy, or how to teach their children with maladaptive behaviours or licensed to provide these in-person services - not to mention in California alone there was more than $1.5 billion funding set aside to help special needs students, and most parents saw no evidence of those funds being trickled down to their special needs children.
Parents were struggling and suicides were increasing, and students were not receiving the services they needed. Students with special needs were falling through the cracks. They were losing critical years of education which will set them back throughout their lives. These families were pleading for help and no one was reacting. After six months, little had happened. So, we looked at how to help and we sued. We sued every district in the state, all 977, not because we wanted to, but because we had to!
The amount of time it takes to get the districts to do the right thing is far too long. Districts should listen to parents. They are vested in their student’s education.
What challenges did you face throughout working on this case?
Typically, when you sue a governmental agency, the pace tends to be very slow. Even when it's determined to be on a fast track. Students with special needs required immediate action. Schools had already been closed and special need students were regressing at alarming rates, experiencing frustration, behaviours, outbursts, self-inflicting injuries, a complete inability to understand why they had no school or services they relied upon their entire life. Special needs children lives revolve around routines. An understanding of what will come next and how things are supposed to be. When school districts failed to address all of these areas prior to sending them home and the districts failed to inform parents, the law required that school districts fix their failures. This sent parents and students into a world of confusion with no remedy in sight.
Add to the fact that the Governor of California and the heads of State have more attorneys than most large corporations, which generally puts legal matters off until after they leave office.
Many of us had never filed a summons that ran 147 pages before. Another was that the state superintendent of instruction and most of the districts wanted to fight rather than solve this problem, or should I say “stall” with the understanding most law firms will run out of funds or legal expertise to push a case to the 9th Circuit or Supreme Court.
How did you overcome them?
The Superintendent of Public Instruction and his attorneys, as well as the school district’s attorney’s assessment of our law firm, was quite inaccurate. They were unaware our law firm had a bottomless pot to pursue this case. They were unaware of just how good we are.
With support from special needs families, combined with the determination of our attorneys and entire staff, the Superintendent of Public Instruction attorneys did not take into account support from special education students crosses into all aspects of all people, regardless of race, income, religion, sex, political affiliation. Disabilities affect everyone and everyone has felt the pain of our children that could have and should have been addressed when schools were closed. We established that federal and state law requires services in a student’s IEP should and could have been provided by the many people who have and can continue to do so safely.
The Governor's attorneys turned out to be a lot smarter, and wiser than the State Superintendent of Instruction. They realised we were not seeking monetary damages for the students; we were seeking compensatory services to address the year services that were not provided. We were seeking the services the students were already promised by federal laws. We were seeking the basic education that distant virtual learning was not able to provide our children. We were seeking justice for children who struggle every day to do the things most of us take for granted.
We anticipated this case would end up before the 9th Circuit one way or another – if not the Supreme Court – but more importantly, we knew the law, and we knew it is on the side of these students.
As a result, the Governor signed a settlement agreement and agreed to make public that special needs children, in accordance with federal and state law, should have received the services in their IEP'S.
Rich families are served alongside poor families. Our staff has no idea who has the ability to pay or has not paid, which is the way it should be.
What was the reaction across the board?
When the Governor signed a settlement agreement and publicly stated: “None of the executive orders or public health directives issued in California in response to the COVID-19 pandemic purports to waive the IDEA, which entitles eligible children with disabilities to special education and related services through an IEP", the reaction was instant and overwhelmingly supportive from all over the country. Our office has been receiving fifty calls a day. The heart-breaking stories of everyday American families, struggling to save their children, seeking any and all assistance. Due to COVID-19, we offered to assist those who were unable to pay with no initial retainer.
Rich families are served alongside poor families. Our staff has no idea who has the ability to pay or has not paid, which is the way it should be.
California Governor Newsom absolutely did the right thing. He knew what Federal and State law required – it required that these vulnerable children be protected – and he stepped up and made that clear. That was the legal thing to do, and it was the right thing to do. As a result, many of the parents suddenly realised they did have rights and that their districts should not have just abandoned them, and they’re starting to demand those rights. For example, we are aware of a child with autism who is getting less than 20 minutes of virtual contact a week. We’ve seen IEPs where the district lays out the services that are needed and then only agrees to offer them once the pandemic is over. These aren’t isolated, these are commonplace. All over the state, people are starting to demand what is right. It is only the districts that continue to stall.
This was the bigger picture we were looking for. The California Governor Settlement and acknowledgement of federal laws have reinforced our law firms' statement to everyone across the country. State law must mirror federal law. Special education students from all over America now know federal law requires that schools implementing distance learning must deliver services required under IEPs, including in-person services. Further, students who regressed are also entitled to compensatory services. It’s the law!
This has shaken the governors from across the country and the news is spreading quickly. Our law firm receives calls from across the country seeking information on how to pursue the school districts. We are preparing and assisting parents and law firms in obtaining compensatory services, as well as additional educational services to assist students in obtaining appropriate educational services and programs.
How will this result impact those you represented?
I think what is happening is helping our clients and students across the U.S. tremendously. It is giving them hope and it is giving them the courage to stand up to their districts, and we are helping them obtain the services to which they are entitled, one family at a time. We anticipate the 9th Circuit agrees with us and we can get that same help for all of California’s 800,000 special needs students in one shot and the 7.1 million students in America. However, we are preparing for the Supreme Court case if required.
What areas of the Disabilities Education Act do district officials commonly fail to comply with?
There are many I could speak of, but I think the biggest issue is that the law requires completion of due process hearing in 45 days from filing. California Office of Administrative Hearings takes approximately 6-8 months to provide a decision. The amount of time it takes to get the districts to do the right thing is far too long. Districts should listen to parents. They are vested in their student’s education. Districts should provide appropriate services and programs, but they can drag this process out for whole school years and sometimes more, all of which is lost time for students with special needs. These students struggle enough to keep up with their peers.
How is the disparity between those with special needs handled by the Californian government? What more needs to be done?
The state largely lets the districts handle this individually. More diligent oversight would be helpful, as would quicker evaluations, and maybe a presumption that children referred for assessment should receive special needs services until proven otherwise. In the meantime, it’s really up to firms like ours to step in when special needs children are denied their rights.
Many strive to be the best, however only a chosen few can be considered one of the best. How you get there can vary. My belief, in order to get there: you must accomplish the below points.
The State of California like other States must mirror Federal laws. Most attorneys who represent students in due process hearings are clueless of District Court local rules. Combine that with the large number of cases in which ALJ’s error. Then consider the 9th Cir., where only a small number of attorneys have appeared before. How can you possibly be the best law firm or attorney if you can’t even see the case to fruition?
It does not end there. From Stanford Law, Professor Bill Koski prevailed on his special education case at the Supreme Court. After the tenth Cir. ruled against him, Gorski the Supreme Court Justice which ruled against Koski, indicated he had to rule against him as a matter of law. Yet the Supreme Court made the correct decision. The problem was never with the case, it was with the law. It required a Judge strong enough to address it at the lower level. Or as in Bill Koski’s case (A law professor and friend at Stanford) losing, until The Supreme Court ruling. Clearly, you can’t be the best or the finest without being qualified, and ready to take your case where you have to in order to prevail. In other words, you can’t be afraid to fail and not be disturbed or stopped if a court errors and rules against you.
Regardless to if your case is Special Education or another area of law, you most likely will come to a fork in the road where a case will cost you quite more if you continue to move forward rather than cutting your losses and quitting while you’re ahead. If you have a burning desire, or passion for a cause like Tom Gilhool - an advocate for the rights of people with disabilities – Former Chief Counsel of the Public Interest Law Center, or Andrew Young - Martin Luther King’s attorney. You push through what appears like insurmountable barriers, injunctions, or bad rulings by unknowledgeable, or unwilling judges. That’s where you find success that rises above the norm. You have to have a case ruled against you, in order to appeal the case to greatness.
You cannot solely care for the money or the fame your cases will bring you. If you’re a ‘take the money and run attorney’, the community will quickly recognise that and will not return nor refer. If when you prevail you don’t feel deeply happy for your client more so than the money, then you lack the heart it takes to be great.
You must be aggressive, tough, confident, and take no prisoners, yet kind and caring enough to give the last dollar in your pocket to a man with a sign standing on a corner needing money for food.
My firm and I have a clear reputation for being tough, aggressive, and confident due to our success. If you’re a client and you want to win but not ruffle anyone’s feathers, we won’t take your case because that’s not who we are. We fight very hard for the students we represent. We take no prisoners; if the teacher is a really nice guy, but sides with the administrator and states that special needs children should not be educated with typical kids, our attorneys will drill him on the witness stand like a drill sergeant to an out of shape basic trainee until he tells the truth. We seek the truth for the student and families we represent.
You must be aware of the fact no man or woman makes it to the top by themselves, or without help.
You can’t stay on top if you don’t share the wealth and show appreciation with those who got you there. You must have family or friends to enjoy and share the experience of being the finest or best Law Firm or Attorney.
James Daniel Peters III
www.autismlaws.com
(949) 636-6994.
I am James Daniel Peters III the Executive Director of the Special Education Law Division of the Law Offices of Sheila C. Bayne. We are an aggressive law firm. We are one of the best, if not, the best special education law firms.
I have testified before Congress regarding special education. I am considered one of the top legal minds regarding special education. I have special knowledge of Autism, Educational Law, Autism services, and work with many of the top Educational Consultants, Psychologists, and Professors from around the country. I am the former National Development Coordinator for TASH. I have advised Congressional members, Governors, U.S. Senators and White House Cabinet members regarding disabilities.
I work closely with Democrats, Republicans, Governors, U.S. Senators, and White House Cabinet Members, and maintain very close professional and personal relationships with the top psychologists and professors of Special Education, like Dr Wayne Sailor from Kansas University, and Dr Lou Brown, from the University of Wisconsin Madison. This allows me to have first-hand information about the distress of special education students across America.
As a National Civil Rights advocate for individuals with disabilities today and, as a former National Development Coordinator, I addressed disability awareness throughout the United States.
“I learned educating students with special needs is not like a Civil Rights movement It is a Civil Rights movement.”
I am a spokesperson for State and Federal policy efforts with the goal of promoting progressive disability policy and increasing staff and legislator recognition of the needs of individuals with disabilities.
I personally got into this because my own son, who is autistic and was kicked out of school because he ate m & m candies when students were supposed to count them in kindergarten. The Federal Court ruled in our favour (Ocean View V. Jimmy Peters).
Andrew Price a senior Partner is an attorney with 20 plus years. He is one of the former top attorneys for the U.S. Government (classified), acting both as a litigator and general counsel. Andrew is admitted in Colorado, Washington D.C. and West Virginia (inactive). As a litigator, Mr Price has successfully litigated hundreds of complex matters. His expertise is in Special Education Law, Federal, Constitutional law and IDEA specifically. His experience involves work at the trial and appellate levels in both state and federal courts, as well as agency appeals, with a number of appearances before state supreme courts and federal circuit courts and the GAO. Andrew managed after ten years of appellate work to overturn the life sentence of a young man wrongfully convicted. We never give up. We have yet to find anyone who knows more about Federal and Constitutional law. When he sleeps, he dreams about how we are going to establish to the Supreme Court that education has to be a constitutional right. Andrew is a perfectionist.
Deborah S. Reisdorph is another leading senior Partner of the law firm, Deborah who has been practising law for more than 26 years and is licensed in California, New York, and before the United States Supreme Court. She appears to be the nicest, sweetest, lady one has ever met until she enters a courtroom. At such a point, she destroys opposing counsel’s case, makes them question if they have a case, destroying them like the lioness she is. She worked in the District Attorney’s Office in Johnson County, Kansas. She gained significant trial and litigation experience with juries, bench trials, arbitrations, and mediations. Deborah teaches and educates students, teachers and parents through the non-profit organization she founded in 2011, BARE Bully Awareness Resistance Education, Inc.
We are known as “The MOD Squad” “Masterfully Opposing Districts.” One white, One Black, One Woman.
We are a group of people known as having the inner drive to help special needs kids get the services they need and to which they are entitled from California’s school districts. We are people who will stay up late at night and on weekends thinking, reading, preparing and learning about the little girl with down syndrome who needs therapy, the little boy with autism whose entire life can be improved with just a little help a district is refusing to provide. We work for the strong dads who break down in tears when their kids finally get the help they need, the loving moms who call us months after their cases are over just to tell us how their kids are doing, and the kids, the district gave up on, who come back to tell us how their first year of law school went.
And since this is what drives us, we strive to be the best. We have put together a team of expert litigators who have mastered this area of law and who have no fear of being tough and aggressive or of ruffling feathers and who never lose sight of who we are doing this for.
Client retention is an aspect that holds importance across the board and one which must not fleet during the era of remote working and a global pandemic. How can law firms effortlessly streamline communication and keep the logistics needed to keep a firm running and effective, not just for themselves, but for their clients?
The adoption of collaboration tools within many enterprises has created a revolution that’s driving a new age of customer service. With smaller law firms naturally finding it harder to deal with the pressures of client demands, having a strong integrated system will prove beneficial in more ways than one: it will allow for a stronger team behind the scenes, keeping communication open between partners, associates and paralegals alike; it enables the team to be transparent and responsive towards clients; and, thus, it allows firms to attract new clients. In this era, client demands are changing; they want information almost immediately. In a society where everything is more or less a click of a button away, law firms need to be responsive and quick with it. Efficiency is key. This is why many law firms have opted for software such as Microsoft Teams and Enghouse solutions to allow their staff to coordinate and collaborate effectively.
The arrival of Microsoft Teams, has changed the approach of many businesses as they move to unified communications environments and omnichannel customer interactions. Driven in part by the pandemic, Microsoft Teams has become the collaboration platform of choice for many businesses. In October 2020, it reportedly reached 115 million daily users, up from 75 million in April 2020.
Applications like Teams effectively allow organisations to extend their internal system to the frontline into the middle and back offices, enabling them to streamline business processes and improve customer experience. The tool combines workplace chat, video meetings, file storage, and integration into third party applications such as contact centre, call recording, operator console and KPI based reporting solutions to deliver a powerful collaboration environment.
With the customer journey continuing to become ever more important to organisations over time, more businesses are handling more of the routine or predictable interactions they have with customers through self-service or automated channels. The remaining queries and interactions tend to be complex or awkward, often requiring the involvement of multiple parties to resolve. That is why we are seeing a growing number of organisations using Microsoft Teams to pull in expertise from across the business to resolve the more complex issues. This results in first contact resolution and an improved customer experience. But is Teams alone, enough?
In an ideal world you would combine Teams with your a contact centre allowing you to communicate effectively internally and externally. Luckily, such a thing exists. Integrating Teams with an omnichannel contact centre solution delivers enhanced levels of customer engagement. With more extensive collaboration capabilities, law firms can gain better insight into the content and progress of their calls. When integrated with CRM and legal systems it allows you to access relevant information about the client on the call and the issue at hand, helping them resolve the problem, and easily share information with other agents, if required. Simultaneously, a contact centre chatbot can “listen in” to the call and provide appropriate guidance regarding additional customer service options. And when they feel in need of quick support, they can request assistance very simply.
By integrating your contact centre with Teams, firms can improve the service levels they provide to their end customers by ensuring their agents are supported with the best possible tools to meet their needs. It will also:
Being responsive is important and makes you much more attractive to potential clients and existing ones alike. By implementing simple actions for a smoother client experience, such as having a resolution upon the first call, or directing callers to the right person can leverage a positive response from clients.
With the increase of online activity and clients wanting information almost immediately, law firms are having to cope with increasing queries that are often asking the same basic questions, a demanding after effect of the digital realm. With law firms working remotely and waving goodbye to some of their functional support staff, such as receptionists or like Linklaters, legal secretaries, how can they keep up with client queries in an effective way?
Enghouse Interactive’s Knowledge Base offers such a solution: by enabling customers to easily find correct answers to everyday questions on-line through self-service, it frees up lawyers to deal with more complex high-value enquiries whilst empowering them to quickly respond on every channel and drive operational efficiency.
We are now seeing, in particular, a rise in the use of Artificial intelligence (AI) used in natural language processing programmes which enable systems to answer or even anticipate a user’s question or need. Not only does this save time for solicitors, but also saves time for the client as virtual agents can handle enquiries more quickly and cost effectively.
A well configured and comprehensive Knowledge Base can quickly become the “go-to” tool for enquiries.
Law firms are unique in terms of customer interaction. Maintaining client data securely is vital, not only in improving trust but also in ensuring case files are up to date. Having a contact centre that allows interactions (voice calls and text) to be recorded, fully indexed, searchable, and extracted to be easily exported to email as required, makes a more synchronous and simple system. These recordings can be used for anything from recapping on a call, dispute resolution, achieving regulatory compliance and used for training. Again, this will allow firms to be on top of each task, making it not only simpler for the lawyers and partners, but also for those they are working for.
A system that can help with the above: Enghouse’s advanced call-handling capabilities matched with Teams’ outstanding collaboration options ensure your callers are always assisted in a timely and efficient manner. Microsoft Teams’ native messaging and presence help operators to effortlessly engage back-office assistance to deliver each call to the best destination available.
1.Be personable – getting clients to stay is more than just doing ‘a good job’. Engage well with your clients to ensure a strong professional relationship.
2. Be accurate – bill accurately and make sure that all information, advice and guidance is as precise as can be. Make the process as easy as you can for your clients.
3. Communicate WELL – a common gripe is that lawyers never get back to clients or update them on their case. Keep communication open, ensure clients can get a hold of their lawyer and be responsive.
An advanced, integrated system that can help with the above: Enghouse’s advanced interaction-handling capabilities help route your customers to your front-line workers and the Microsoft Teams shared workspace lets them effortlessly engage back-office experts, to provide the best resolution available for each call.
Web: enghouseinteractive.co.uk
E: marketingemea@enghouse.com
We speak to Jim Greene-Kelly, Office Managing Partner of Marks & Clerk, Singapore about the development of IP law in the ASEAN region. He discusses whether or not a similar system to the European Patent Office could work for ASEAN and why Singapore is a hot spot for patents and trademarks in the South East Asian region.
What is ASEAN?
The Association of South East Asian Nations (ASEAN) comprises the following ten member countries: Brunei, Cambodia, Indonesia, Lao PDR, Malaysia, Myanmar, Philippines, Singapore, Thailand, and Vietnam. Formed in 1967, the regional block primarily aims to promote economic growth, social progress, and cultural development in order to strengthen ties and build a prosperous and peaceful community among its members.
Does ASEAN have a regional understanding when it comes to IP?
There certainly have been steps taken, dating back to 1995, to cooperate when it comes to IP among the ASEAN member countries, mostly because of the aims and purposes of the regional block. The regional group does, in fact, have a specific present initiative called the ASEAN Intellectual Property Rights Action Plan 2016-2025, that sees IP as central to building the region’s socio-economic goals. To do so, one of the main tenets of this 10 year initiative is for all member countries in ASEAN to accede to all the major IP treaties such as, the PCT, TRIPS, Paris Convention, Madrid Protocol, and the Hague System. As of February 2021, all of ASEAN’s member countries are members of the PCT, Paris Convention, and Madrid Protocol, except for Myanmar. As for the Hague System, certainly fewer of the ASEAN member countries have acceded, with only Singapore, Vietnam, Brunei, and Cambodia being members so far.
So in a sense, yes, the member states of ASEAN do have a regional understanding when it comes to IP in that they recognise the strengths of being members of international IP treaties and how that can affect their individual and regional economic outlooks. Having a robust IP regime brings economic opportunities of its own. Typically, when companies are assured that their innovations are safe and can be protected by national or international laws, there is a higher chance that they will want to bring their manufacturing and research and development (R&D) teams here, and that is definitely something that the individual ASEAN governments understand and are actively trying to encourage.
Expansion of similar laws and standards of examination amongst some ASEAN states on an individual basis has also indirectly led to some harmonisation
How has ASEAN developed its patent and trademark law in the region?
Almost imperceptibly, we are seeing cooperation and harmonisation when it comes to the protection of IP in the ASEAN region. Such harmonisation can be seen as starting as long ago as 1994 with the accession by many states to the TRIPS agreement which prescribed certain minimum standards for IP protection. Accession to the PCT with its common search and preliminary examination processes further provided an initial common approach to patentability.
The most notable regional development is the ASEAN Patent Examination Co-operation (ASPEC), which was launched in 2009. As a regional patent work-sharing programme among all the ASEAN member countries except Myanmar, it shares Search and Examination results between participating member countries’ IP offices with the aims of improving examination consistency and quality and reducing pendency times. This provides applicants, who are seeking patent protection in multiple ASEAN countries with substantial time and cost savings. We often have clients who opt to use ASPEC when their business strategies and developments are focused in this region.
Expansion of similar laws and standards of examination amongst some ASEAN states on an individual basis has also indirectly led to some harmonisation. One example is in Brunei. Brunei previously had a patent registration system but in 2012 replaced this with a home-grown Patents Act, which was modelled on the then-current Singapore law, and both laws now share the same definition of patentability and many similar procedures. There is perhaps no surprise that Brunei chose to model their Patent law on Singapore’s given the close cooperation between the countries and that Singapore is repeatedly ranked as having one of the world’s strongest IP regimes, ranking fourth in the world on the Intellectual Property Rights Index 2020, a publication by the Property Rights Alliance.
Another example is the development of the ability to register Singapore patents in Cambodia and Laos. This procedure can be done after the Singapore patent has been granted and therefore allowing the applicant the option to obtain protection in these territories well after the Paris Convention or PCT national phase deadline has passed. It is yet another convenient route for applicants to take should they find themselves with business interests in this region. Of course registering a Singapore patent means that the examination standard and determination of patentability are the same.
On the trademark side, similarly, the Madrid Protocol is the international trademarks system that allows applicants to register and manage their trademarks with a single application and a single set of fees. Although this treaty isn’t unique to Southeast Asia, we have seen an increased take up of the Madrid Protocol amongst applicants from ASEAN countries, giving the ability to streamline the process for trademark protection in this region and elsewhere in the world. Again, we are finding significant take-up of the Madrid Protocol amongst our clients.
A reason why we are seeing these developments in IP protection in the ASEAN region is the appeal of doing business in this part of the world.
Can there be an ASEAN Patent (and Trademark) Office?
Given the level of cooperation among ASEAN countries when it comes to economic goals and IP, this is a valid question, particularly as cooperation and harmonisation on patent matters increases amongst member states.
There are three questions to answer, is it desirable, is it politically possible, and what would it look like?
Concerning desirability, establishing a uniform standard of patent protection in a single application process covering all ASEAN countries would certainly be something attractive to businesses, both in the ASEAN region and internationally, and would be a no-brainer as a device for promoting investment in the ASEAN region.
The remaining questions are to some extent interlinked.
Perhaps the most well-known example of a regional patent office is the European Patent Office (EPO), so would this be a useful model for an ASEAN Patent Office, both politically and physically?
The EPO has over 6000 employees of which about two thirds are patent examiners and most of whom work at two fixed locations, in Munich and The Hague. The patent profession in Europe, European Patent Attorneys, need not be based in these locations but can practice in any member state.
Given the locations of the EPO are fixed, would this be suitable for ASEAN? There would be the political problem of where to site the office, since undoubtedly all ASEAN nations would like the office in their country as a matter of prestige, if nothing else. This might be ameliorated to some extent if the employees of the office, wherever this was based, were evenly distributed amongst nationals of the ASEAN member states, but experience of the EPO does not support this as an outcome. In the EPO’s Social Report for 2019, this showed that the largest proportion of staff, around 27%, were German, about double what they should have been based on percentage of EPC population; this was particularly the case in the EPO’s largest establishment in Munich, where over a third of the staff were German. Equally, although European Patent Attorneys may be of any EPC nationality and practice in any EPC state, over a third of these are German, the vast majority of whom are based, likewise, in Munich.
Thus, a regional patent office that benefits all member countries directly and indirectly by being everywhere and anywhere could be a suitable candidate for ASEAN.
So, the EPO model of a fixed location patent office in one or two ASEAN member states does not seem to provide a good model for an organisation as egalitarian as ASEAN.
Key roles (such as the Secretary General) and Heads of Government meetings in ASEAN rotate through the member states, so would a rotating “caravan” model work for an ASEAN patent office? Again not, as experienced examiners and other staff would be unlikely en-masse to move location every few years and such would be extremely wasteful, disruptive, and thus largely unworkable.
So are there any other models which might work? Until recently one might say “no”, but the COVID-19 pandemic has changed the world’s outlook to many things and provides a possible clue as to how an ASEAN Patent Office might be configured, and that would be to make it distributed.
COVID-19 forced many businesses and government departments including patent offices to cease working in centralised offices and work from home, putting in place structures and practices to allow full office operation remotely. Necessity being the mother of invention has meant significant problem solving and innovation in working in distributed environments has taken place so that what might have seemed impossible a year ago is now reality for many.
This model could work for an ASEAN patent office, given the digitalisation and subtle joining up of the IP environment that is already taking place, with all structures, from administration to examination and appeals distributed amongst the member states of ASEAN, working from national patent offices or indeed from home, on a grand scale.
Experience of our firm during this time is that the areas of the business which suffer the most in a distributed environment are collaboration and training, but an ASEAN patent office based within national patent offices would provide a critical mass in each location and to provide collaboration and training between locations would require the movement of only a relatively small number of people for which a caravan model might be appropriate at least for training purposes.
Thus, a regional patent office that benefits all member countries directly and indirectly by being everywhere and anywhere could be a suitable candidate for ASEAN.
Why seek IP protection in the ASEAN region?
A reason why we are seeing these developments in IP protection in the ASEAN region is the appeal of doing business in this part of the world. This goes back again to the aims and goals for economic growth and development, and the positive effects of a strong IP regime and rule of law. The latter is often a reason cited by companies who decide to set up R&D facilities in Singapore or even to move their headquarters here. Some of the most recent include the news of the video conference company, Zoom, opening a new R&D centre in Singapore by the third quarter of 2021, Tencent, the Chinese multinational technology conglomerate opening a new office in Singapore, which will be its regional hub for Southeast Asia, and the American tech giant, Dell Technologies, opening their new R&D centre in Singapore in late February 2021. Equally, countries in ASEAN such as Thailand and Malaysia have become preferred locations for MNC manufacturing plants. We have equally seen this with our clients. More often than not, regardless of their size, whether they are local companies to multinational companies, small and medium enterprises, or start-ups, they will file a patent, trademark, or registered design application in another ASEAN country.
ASEAN is also home to a combined population of 650 million people and is predicted to continue growing to reach 717 million people by 2030. This combined with its goal of raising standards of living through urbanisation makes for a rather large market for companies looking to invest or expand. Seeking IP protection would be logical at this point of a company’s expansion plans, given the value of the ASEAN market. Even the trend in IP filings in ASEAN reflect this in the number of patent, trademark, and registered design applications filed. The ASEAN IP Portal publishes statistics in this area and all three forms of IP have displayed a steady increase in the number of applications filed since 2013.
Member countries in the regional block also possess a large number of investment opportunities. This is most prominently seen through the levels of foreign direct investment (FDI) streaming into ASEAN. In 2019, FDI inflows into ASEAN increased for a third consecutive year, reaching US$155 billion. This number is only projected to increase over the years with the continual improvements in the business environment and the strengthening of the IP regimes.
About Jim Greene-Kelly
Consistency. Ever since I opened our Singapore office in 1995, my goal has been to provide our clients with a consistently high level of professionalism and the best expertise. I still act for people that became clients in the first year of operation of our firm which is testament to this. It is important to me and to the firm that we make sure our clients are heard and feel supported by us. We want to give them the best IP protection possible and to help them achieve their business development and strategies knowing their innovations are safe from infringement and protected by the law.
It would have to be managing our office through Singapore’s worst period during the COVID-19 pandemic. Almost a year ago now, we went into a “Circuit Breaker”, where we spent two and a half months working from home full time. It was a challenge to make sure the firm was ready and operational on a remote basis on such short notice. This was especially the case, as we moved to digitise a number of our internal processes to make working from home more accessible and convenient, as we were not sure when we would be able to come back into the office. Working with our IT department, we shifted to an almost completely paperless way of working in a very short period of time and with the cooperation of everyone. Fast forward a year, these days we are allowed back into the office on a Team A/B basis. So, there is some sense of normality once again, but this pandemic has certainly shown us how quickly things can change and how to adapt to such change.
Setting up this Singapore office on my own 26 years ago on the very same day that the new patents regime came into force in Singapore. It has been the greatest opportunity to lead and develop this office and to watch it grow into one of the leading patent attorney firms here, which has a current staff level of over 60. Likewise, in 2009, I had the opportunity to help in the development of the Marks & Clerk practice in Kuala Lumpur, Malaysia. It has been incredibly rewarding to be a part of this journey and to watch the Marks & Clerk name flourish in the ASEAN region.
Jim Greene-Kelly
Marks & Clerk Singapore LLP
Address: 77 Robinson Road, #17-00 Robinson 77, Singapore 068896
Tel: +65 6227 8986
Fax: +65 6227 3898
Email: jgk@marks-clerk.com.sg
Jim Greene-Kelly is a Singapore Registered Patent Attorney and UK Chartered Patent Attorney and has been in practice since 1981. He has extensive experience in patent drafting and rendering strategic advice for the protection of his clients’ intellectual property locally, regionally in Asia, and globally. His areas of technical expertise include mechanical engineering, transport engineering, control engineering, electrical and electronic engineering, semiconductors, computer software, and data processing.
Marks & Clerk is an award-winning international firm of Patent and Trade Mark Attorneys. From its origins in Birmingham in the UK, Marks & Clerk rapidly expanded to other cities in the UK and our network of offices has grown steadily over the years. Our global footprint now includes eight offices in the UK, five in Europe and North America, and four in Asia. We have been in practice in Singapore since the establishment of the Singapore Patents Act in 1995 and have had our finger on the pulse of Intellectual Property matters in Singapore ever since.
Leading our Singapore office are eight Partners, who are qualified in Singapore, as well as Australia, New Zealand, the United Kingdom, and under the EPC, and combined they have in excess of 120 years of collective experience. Our patent professionals are all technologically trained with degrees in science and/or engineering and have comprehensive experience in patent law both locally and internationally. Given our wide range of technical specialisms, we can advise on all kinds of technology from electronics to biochemistry to materials. The majority of our team have the skills to conduct business in English along with one or more Asian or European languages.
The stamp duty holiday has created a welcome boom for conveyancing teams and a glut of enquiries from buyers keen to take advantage of the savings. In such a highly competitive field of law, providing quotes quickly and handling enquiries efficiently is a point of potential advantage - but it’s not without its challenges.
For Pritpal Chahal at Askews Legal LLP, an innovative approach to lead capture has helped to increase the efficiency of conveyancing lead management, improve client care and make his existing spend on call handling work harder. He said: “Like lots of firms, we were struggling to keep on top of all the conveyancing enquiries we were receiving and knew we needed dedicated resource to improve the process – instead of it being simply when team members had the time. From our own internal discussions we realised that by making some changes to call handling we could remove the burden from our team and set us on the path to improve efficiency and client care simultaneously.
“Our outsourced call handling partner was already gathering key information from callers so we decided that if we asked a few additional questions– we’d be able to remove the need for one of our team to call them back.”
Working with Askews’ outsourcing call handling provider Moneypenny, Pritpal amended the call handling script to include property value, property postcode and purchase type which would save his team the initial call back and remove one step from the client journey.
Pritpal said: “It soon became clear that if our call handlers were gathering this information, they should also have access to our Perfect Portal account so they could generate a quote at the same time. The seamless efficiency of this approach has meant that all enquiries are responded too very promptly and that our team only needs to get involved for follow-ups. It’s often a case of fastest finger first in this area of law and these simple changes have helped us to put client care and responsiveness front and centre.”
Pritpal’s ingenious approach to problem solving and improving client care is just one example of how a challenging market can lead to product and service innovation. He said: “We fully accept that even with this greatly improved process we won’t win every quote, so we plan to use the same approach to gather intelligence as to the reasons why. If it reveals things we need to change or improve, that’s what we’ll do. Being responsive and ensuring an excellent experience from the very first point of contact has always been a key objective of ours. It’s great to know that by making just a few simple changes and thinking about how we could enhance the tools we already have, we’ve been able to meet our client care ambitions and improve efficiency too.”
Askew Legal LLP’s outsourced call handling and outbound call support is provided by Moneypenny.
About Pritpal Chahal: Pritpal is one of the original founders of Askews Legal LLP and has more than 15 years’ experience working within a busy commercial and conveyancing department. He is responsible for business development and managing the day to day responsibilities of the Coventry based practice.
Nike has responded to the controversial pair of shoes produced by Brooklyn based art collective MSCHF by filing a lawsuit. The shoes feature an inverted cross, a pentagram and the words "Luke 10:18", and reportedly a drop of real human blood. They were made using modified Nike Air Max 97s, which is where the sportswear giant's issues lie.
The shoes, despite their controversy, have proved a huge success, with all 666 pairs released on Monday selling out in less than a minute.
The adapted black and red shoes by MSCHF were produced and launched to coincide with the launch of Lil Nas X's latest song Montero (Call Me By Your Name). The video for the song debuted last Friday and provoked a huge reaction. In the video, the infamous rapper slides down a stripper pole from heaven to hell wearing a pair of the trainers.
Lil Nas X stated that the imagery combined with the trainers is actually a reference to the Bible verse Luke 10:18 - "So He told them, 'I saw Satan fall like lightning from heaven'." As a result of the combination of the video and the fact that each shoe contains 60 cubic centimetres (2.03 fluid ounces) of red ink and a single drop of human blood, donated by members of the art collective, in the air bubble cushioning sole, the shoes have now become the centre of an unfolding legal dispute.
Filing its claim with the U.S. District Court for the Eastern District of New York the sports shoe giant has stated that it does not approve or authorise the customised Satan Shoes. Nike have also requested that MSCHF be prohibited from using the famous Nike 'Swoosh' and be stopped from selling the shoes. In the lawsuit, Nike have said "MSCHF and its unauthorised Satan Shoes are likely to cause confusion and dilution and create an erroneous association between MSCHF's products and Nike. In fact, there is already evidence of significant confusion and dilution occurring in the marketplace, including calls to boycott Nike in response to the launch of MSCHF's Satan Shoes, based on the mistaken belief that Nike has authorised or approved this product."
In a distinct sign of our social media led times, Nike have cited a tweet in their lawsuit by popular shoe influencer @Saint, which teased the upcoming release of the shoes in an effort to increase the publicity around the so-called 'Satan Shoes' in the U.S.
The publicity has been the spark for consternation from leading Conservative voices, including South Dakota Governor Kristi Noem, and as might be expected, a host of some religious social media users.
https://twitter.com/govkristinoem/status/1376239196709478400
Many have taken offence at the design of the shoes and criticised both Lil Nas X and MSCHF on Twitter. It appears Nike's lawsuit is an effort to distance itself from the criticism.
Lil Nas X however, appears to be standing his ground, hitting back at both the governor and tweeting several memes relating to news of the Nike lawsuit as it broke.
