We hear from Silvio Riesen who reveals his journey to specialising in liability law, the challenges he faces and how he overcomes them for the betterment of his clients.

What was the main reason behind you specialising in liability law?

Before specialising in liability law, I had worked in a business law firm in an advisory capacity dealing mainly with corporate law matters for a few years. During that time, I realised more and more that I actually wanted to do something which puts me in closer contact with people who have tangible problems in their lives and enables me to help them directly. Furthermore, I have always been interested in forensic work; in my job, I can now do both.

How was the journey to specialise in liability law and what was the biggest challenge you had to overcome?

First, it was difficult to get accustomed to the fact that mostly not the legal analysis of a case is important, but the handling of the facts of the case and the assessment of the medical situation. Therefore, it is often hard to predict and tell the client what they can expect from the situation they are in. You also have to be aware that you have to fight hard for the rights of your clients every day and most of the time face considerable resistance from the counter party, especially the insurers.

What motivates and challenges you about your role?

What motivates me most is mainly representing my clients against the large insurance companies. Almost every day you will find yourself in a David vs. Goliath situation. It is one case among many others for the insurers, whereas it is mostly the case of their life for your clients.

This sometimes leads to very emotional situations in which human understanding is often as important as legal skills. You must show the clients that you understand their situation and try to achieve the best result for them. At the same time, you need to be able to persuade them that it is often not possible to obtain as much as they may have hoped for. This balancing act is a big challenge every day.

You often deal with snow sport accidents - what is the most challenging aspect of these cases for you?

The difficulty we often face is to provide evidence in favour of our clients. You have to convince the court that the accident happened in the way as you claim. You usually only have your client’s statement and, possibly, the statement of one or a few other persons who witnessed the accident. The experience shows that the witnesses often remember the same situation differently and that such recollection differs more and more after a certain period of time. Therefore, time is always against your client who bears the entire burden of proof.

Having been successful in providing evidence in your favour regarding the relevant facts of the accident, you must be able, in a second step, to show that the specific situation leads to a liability of another skier or the operator of the ski resort. The court has a big discretion in assessing whether, for example, another skier was too fast or the piste markings were misleading. In summary, it is thus always a big challenge to present as many facts as possible in favour of your client in order to persuade the court that the whole circumstances of the accident lead to a liability.

Another obstacle for claimants may have ceased to exist, at least in a euro-international context. According to a recent and legally-binding decision of a Dutch court based on the Council Regulation (EC) No 44/2001, the court of the residence of the injured party has jurisdiction regarding a claim against the ski resort operator since such a matter can be qualified as a consumer dispute if certain criteria are fulfilled. Obviously, it is easier to succeed before the courts in your own country than before the courts at the residence of the ski resort operator.

Which other areas of liability law do you and your firm deal with?

The majority of the cases we deal with relate to road traffic accidents, especially car accidents. Furthermore, we are often concerned with employees suffering from accidents at work. Due to the great significance of the Swiss public transport system which many people use every day, we also often represent injured persons in connection with accidents related to trains, trams or busses.

Another important aspect of our work are medical negligence claims, especially damages resulting from deficient surgical operations. We have a specialised department which deals with such claims only.

Which are the most important aspects of the Swiss personal injury law system?

The Swiss system consists of an interaction between different social security branches, private insurers and the liability insurance or payments by the injuring party, respectively. The coordination between these players can sometimes raise very difficult legal questions. In case of an accident, the social security usually provides payments based on a certain percentage of the income gained prior to the accident and shall cover a part of the loss of earnings.

Payments based on a third-party liability shall lead to the hypothetical situation which would exist if the accident had not happened. Thus, the injured party shall be fully compensated for their losses. Our legal system does not have any payment limits for certain injuries or circumstances; the amount of compensation is open towards the top.

Additionally, it is worth noting that we are in a very negotiation friendly environment. We settle around 90% of our liability cases amicably. A big advantage for the injured party lies in the fact that the lawyers’ fees and other expenses are part of the damage and therefore have to be paid by the injuring party or their insurance, respectively. This allows us to assist and represent also clients who are not able to pay the (sometimes very high) costs in complex and time-consuming matters.

Is there anything that you know now, that you wish you knew when you first began practising law?

When you first begin practising law, you think that it is the correct legal analysis which decides whether you win or lose a case or reach a favourable or disadvantageous settlement for your client. Every day you learn more and more that in most cases other aspects play a key role. You have to be able to assess which are the most important information and documents of the case and how those facts have to be presented so that your claim can be successful.

Another very important point is your negotiation ability. Over time, you learn how you have to present yourself towards the opposite party and the court, how you have to react to their statements and questions, which information should be disclosed, and, probably most important in our business, to find out their absolute limit as to the compensation payment they are willing to offer.

I sometimes think that I might have settled some cases more favourably if I had had the experience I have now already at that point in time.

Silvio Riesen
Attorney
schadenanwaelte.ch AG, Alderstrasse 40, 8008 Zurich, Switzerland,
Phone Number: 0041 58 252 52 52
Email Address: riesen@schadenanwaelte.ch
Homepage: http://www.schadenanwaelte.ch

I work at the Swiss law firm schadenanwaelte.ch AG which specialises in all legal matters concerning insurance and third-party liability law related to personal injuries. We are the largest Swiss law firm in this field and employ about 20 lawyers. We strictly represent only claimants against the injuring party or insurers.

Personally, I am mainly engaged in various civil litigation cases in complex liability matters. Moreover, I often deal with cross border cases representing foreign persons having had an accident in Switzerland or vice versa.

Have there been any recent trends in the design filings department you have noticed in the past few years?

Design filings in South Africa were steadily increasing up to 2013, after which filing numbers dropped and have not yet been able to reach pre-2013 figures.

A drop of almost 14 % in the design applications filed between 2013 and 2014 was most likely due to a judgment delivered by our Supreme Court of Appeal in BMW vs Grandmark International (Pty) Ltd on 18 September 2013.

South Africa has an active automotive manufacturing industry for right-hand drive vehicles.  In order to protect this industry, automotive manufacturers routinely filed design applications for new vehicle designs as a whole as well as for several of their individual parts such as, for example, bonnets, rear view mirrors and headlights.

Our Designs Act allows the filing of aesthetic designs (providing protection for features which appeal to and are judged solely by the eye, irrespective of the aesthetic quality thereof) as well as functional designs (providing protection for features which are necessitated by the function which the article to which the design is applied, is to perform).

Our Act specifically excludes functional design protection for an article which is in the nature of a spare part for a machine, vehicle or equipment.

It accordingly became accepted practice amongst IP practitioners to file aesthetic design applications for spare parts.

In the abovementioned case, BMW sued Grandmark for infringement of aesthetic design registrations filed for several BMW spare parts.  Amongst other defences, Grandmark contended that spare parts have no aesthetic features and should therefore not have been registered as aesthetic designs.

On appeal, our Supreme Court agreed with Grandmark’s view that spare parts are not selected for their aesthetic appeal.  They are selected so as to act as a replacement for a damaged part and selection based on aesthetic qualities does not come into play as spare parts are not interchangeable between vehicles or vehicle models. The actual customer (the vehicle owner) in fact does not have any choice as to which spare part is used when he sends his vehicle in for repairs.  The BMW design registrations were revoked.

As the judgment has to date not been challenged, spare parts are currently not registrable as designs in South Africa.  This has led to several manufacturers no longer filing design applications for spare parts in South Africa, whereas others have taken a more optimistic view and are filing anyway, perhaps in the hope of one day having the judgment overturned.

How have you seen the pharmaceutical industry develop in South Africa? How do you think your country is guiding the way in patents in this industry?

South Africa does not have a pool of pharmaceutical companies that develop original pharmaceutical products, but several large multinationals have manufacturing facilities here.  Patent filings for pharmaceutical products and productions methods form a large part of overall filings.

As South Africa is currently a non-examining country (there are plans to start examining at least pharma patents), the number of pharma patents granted here are higher than in countries having a similar socio-economic background and in which patents are examined.

Based on our Bill Rights which provides that “the state must take reasonable legislative and other measures, within its available resources, to achieve the progressive realisation of the right to have access to health care services”, our Department of Trade and Industry has developed a draft IP Policy which intends to initiate the amendment of several IP laws, amongst which is our Patents Act.

The aim of the Policy is to: improve access to medicines by making it more difficult for pharmaceutical companies to obtain patents and keep prices high by introducing an examination process for patents, and also by seeking to prevent “evergreening” which acts as a barrier to the entry of generic medicines.  Many aspects of the Policy are vague and unrealistic and have therefore attracted widespread criticism from IP professionals as well as originator companies.

Propaganda supporting the IP Policy claiming that resistance against it by pharmaceutical companies is tantamount to genocide has been prevalent and met by public support.  Pharma companies have been labelled as villains, seeking to prevent patients having access to affordable life-saving medicine.

These companies (rightfully) claim that the problem does not lie with patents, but with South Africa’s sub-standard health policy, lack in service delivery, lack of education and poverty.  Attracting capital and therefore raising the country’s wealth rather than driving away investors by attempting to implement non-sensical policies should be the way forward.

The draft IP Policy has to date not been implemented as far as our Patents Acts is concerned. Although examiners have allegedly been in training since 2015, our Patent Office does not yet examine patent applications substantively and we do not expect examination to implemented in the near future.

Claudia Berndt
Director
Hahn & Hahn
222 Richard Street
Hatfield, 0083
South Africa
General e-mail: hahn@hahn.co.za

My e-mail: claudia@hahn.co.za

My name is Claudia Berndt and I am a Director at Hahn & Hahn which has its head office in Pretoria, South Africa.  My background is in Chemical Engineering and I joined the firm in 1999.  I deal with design filings in South Africa and abroad, Paris Convention patent applications to be filed in South Africa, as well as drafting, filing and prosecuting patent applications for local clients locally and abroad.

Hahn & Hahn was founded in 1951 and has steadily expanded ever since.  We deal with the filing of PCT National Phase patent applications, litigious matters involving patent, trade mark, design and copyright infringement, as well as drafting and prosecuting patents for our local clients.

The term ‘legal malpractice’ is both a rising and evolving concept. It is a rising concept because as a term of art, it didn’t exist in the lexicon of the common law until the late mid-20^th Century. It is an evolving concept because the meaning of the term has matured greatly since first coming into common usage in the middle of the last century.

At least one authoritative treatise on the subject of legal malpractice has opined that “... there is little consensus on, or even discussion of its meaning.”¹  This was certainly true for the first half of the 20^th Century when legal malpractice cases were exceedingly rare. Even academics and commentators seldom discuss subjects that don’t or only marginally exist. The reason for this scarcity of discussion and commentary is clearly demonstrated by conducting searches for the term ‘legal malpractice’ in series one through four of the California Appellate and Supreme Court reports.²

Reported Cases in California Involving Legal Malpractice

In the original California Appellate and Supreme Court reports (1850 - 1934) the term ‘legal malpractice’ does not appear once in an advanced word search. Thus, it could fairly be said that in the context of the common law in California and most other jurisdictions until only a few decades ago, legal malpractice, both in theory and practice, was almost non-existent and certainly not in common usage in the vocabulary of the common law.

In the Second Series of California Appellate and Supreme Court reports (1934 - 1969), the same word search turns up a mere 36 hits.³ Still a rarity. In the Third Series (1969 - 1991), there is a total of 836 hits for the term ‘legal malpractice’. This amounts to an increase of over 2,000% and reflects both a linguistic and societal change in attitudes toward lawyers and legal malpractice. In the California Appellate Reports 4^th Series (1991 - present), the number of hits for legal malpractice increased to 1,463. From a quantitative perspective alone, these statistics tell us a lot about the evolution and role of legal malpractice in the law today. They also tell us something about the etymology of ‘legal malpractice’.

All of the 36 hits for legal malpractice in the Second Series of California Appellate and Supreme Court reports arose out of only 15 cases. The holdings in 11 of the 15 cases dealt with statute of limitations issues; two dealt with duties of an attorney, one with the necessity of expert witness testimony in legal malpractice cases, and one with the defense of contributory negligence. What this paucity of cases tells us about the meaning of the term has more to do with its novelty than its etymology. In other words, out in the real world, it is only within the past 50 years or so that clients have began to look at lawyers like other tortfeasors and seeking remedies for the damages they inflicted.⁴ As to the meaning and derivation of the term, let’s look to the obvious source.

Black’s Law Dictionary Treatment of Legal Malpractice

The 1^st Edition of Henry Campbell’s Black’s Law Dictionary was published in 1891. In it the primary term ‘legal malpractice’ is nowhere to be found, nor in fact is the word ‘malpractice’. What is found is the Latin term ‘Mala Praxis’. The definition is: “Malpractice; unskillful management or treatment. Particularly applied to the neglect or unskillful management of a physician, surgeon or apothecary.” Interestingly, in connection with the subject at hand, the term next proceeding mala praxis is the term ‘Mala In Se’. The term next following ‘mala praxis’ is the term ‘mala prohibita’. This 19^th Century troika of ‘mala’ terms is significant in the development of the term legal malpractice.

‘Mala In Se’ is defined as, “Wrongs in themselves; acts morally wrong; offenses against conscience.” Mala Prohibita is defined as, “Prohibited wrongs or offenses; acts which are made offenses by positive laws and prohibited as such.” How these terms coalesce with the later developed term legal malpractice is explored below.

The 2^nd Edition of Black’s Law Dictionary was published in 1910. Again, the term ‘legal malpractice’ was not included, but the word ‘malpractice’ did appear for the first time as a primary word. It was defined: “As applied to physicians and surgeons, this term means generally, professional misconduct towards a patient which is considered reprehensible either because immoral in itself, or because contrary to law or expressly forbidden by law. In a more specific sense, it means bad, wrong, or injudicious treatment of a patient professionally and in respect to the particular disease or injury, resulting in injury unnecessary suffering or death to the patient and proceeding from ignorance, carelessness, want of proper professional skill, disregard of established rules or principles, neglect, or a malicious or criminal intent.(citations)”  Note that in its infancy, the word “malpractice” applied almost exclusively to physicians and encompassed both mala in se and mala prohibita components.

The 3^rd Edition of Black’s, published in 1933, still did not include the term ‘legal malpractice’, but did expand the application of the term and make a prophetic reference. Malpractice was defined as: “Any professional misconduct, unreasonable lack of skill or fidelity in professional or fiduciary duties, evil practices or illegal or immoral conduct.(citations) As applied to physicians and surgeons, this terms means, generally, professional misconduct towards a patient which is considered reprehensible either because immoral in itself or because contrary to law or expressly forbidden by law. ¶ In a more specific sense it means bad, wrong or injudicious treatment of a patient, professionally and in respect to the particular disease or injury resulting in injury, unnecessary suffering, or death to the patient and proceeding from ignorance, carelessness, want of professional skill, disregard of established rules or principles, neglect or a malicious or criminal intent.(citations).” Then the following appears:

“The term is occasionally applied to lawyers and then means generally any evil practice in a professional capacity, but rather with reference to the court and its practice and process than to the client.”  In other words, in its infancy, the bad practice of lawyers was a concept involving such matters as procedure, decorum, respect, and deference - not breach duties owed to the client.

The 4^th Edition of Black’s Law Dictionary was published in 1951 and had two revisions; the first revision was in 1957 and the second in 1968. The 4^th Edition and both revisions contained essentially the same definition and reference as the 3^rd Edition of Blacks.

The sea change came in the 5^th Edition of Black’s Law Dictionary, published in 1979. For the first time the term ‘legal malpractice’ appeared as a standalone term under the word malpractice. The appearance of the term ‘legal malpractice’ reflected both a maturing of the meaning and application the word ‘malpractice’, and an underlying change in social attitudes toward lawyers. This change is reflected in Black’s definition of both the word ‘malpractice’ and the term ‘legal malpractice’. Malpractice was defined as: “Professional misconduct or unreasonable lack of skill. This term is usually applied to such conduct by doctors, lawyers, and accountants. Failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the services or to those entitled to rely upon them. It is any professional misconduct, unreasonable lack of skill or illegal or immoral conduct.”

The term ‘legal malpractice’, according to the 5^th Edition of Black’s,“Consists of failure of an attorney to use such skill, prudence, and diligence as lawyers of ordinary skill and capacity commonly possess and exercise in performance of tasks which they undertake, and when such failure proximately causes damage it gives rise to an action in tort.” Stated differently, by 1979 the term ‘legal malpractice’ had reached a new level of maturity as lawyers joined the ranks of other common tortfeasors such as automobile drivers, premise owners, manufacturers and physicians and surgeons.

Forwarding to the 7^th Edition of Black’s Law Dictionary was published in 1989. In it, the term ‘legal malpractice’ appears in first position as a subcategory under ‘malpractice’ but with significant changes. Malpractice is artfully defined as “An instance of negligence or incompetence on the part of a professional. To succeed in a malpractice claim, a plaintiff must also prove proximate cause and damages. Also termed professional negligence.”

Legal malpractice in the 7^th Edition of Black’s defined as: “A lawyer’s failure to exercise the degree of care and skill, prudence, and diligence that an ordinary and reasonable lawyer would use under similar circumstances. Also termed attorney malpractice.” The 8^th (1999) and 9^th (2009) Edition of Black’s uses the same definition as the 7^th, reflecting perhaps the full development and meaning of the term legal malpractice.

The social and etymological maturity of the term legal malpractice’ is reflected in the fact that the 8^th and 9^th Editions of Black’s Law Dictionary have continued to use essentially the same definition, now for over 30 years. In place of the explicit mala in se (evil and immoral) and mala prohibita (a violation of law) language in the older definitions, the dictionary definition now utilizes the words care, skill, prudence and diligence as an expansive integration of both the mala in se and mala prohibita concepts in the meaning of the term legal malpractice.

Conclusion

As demonstrated above, the term legal malpractice is a relatively new addition to the language of the law.  Its evolution and social role, however, may have already arrived at homeostasis, a relatively stable state of linguistic and social equilibrium. What this means to the modern practitioner is that all players in the game (attorneys, clients, judges and juries), now share the same understanding and appreciation of not only the meaning of the term legal malpractice, but its role in maintaining the balance between the attorney’s prerogatives in selecting strategy and tactics and the clients’ right to competent, ethical representation.

James S. Rummonds
311 Bonita Dr, Aptos, California 95003, United States
(831) 688-2911
www.legalmallaw.com

James S. Rummonds specializes in all types of legal and professional malpractice, civil and business litigation, and personal injury, throughout California, including, the Central Coast, Central Valley and the entire Bay Area. James is also the author of numerous articles on civil trial practice and legal ethics, a columnist, and was a contributing editor to West’s two volume set on Civil Trials and Evidence.

 ¹. Mallen & Smith, Legal Malpractice, 5^th, § 1.1, Pg. 2

²  For purposes of this discussion all research references to California Appellate and Supreme Court cases are from AccessLaw.

³( The 36 hits in the Cal 1^st series included a total of 14 cases, 13 of which dealt with the applicable statute of limitations.

⁴  This is not to suggest that legal malpractice cases were literally  non-existent prior to the mid-20th Century.  Since the late 1800s, the courts had consistently held that liability would be imposed on attorneys for want of such skill, prudence and diligence as lawyers of ordinary skill and capacity commonly possess and exercise. See, e.g., Gambert v. Hart (1872), 44 Cal. 542, 552; Estate of Kruger (1900), 130 Cal. 621, 626; Moser v. Western Harness Racing Assn. (1948), 89 Cal.App.2d 1, 7; Armstrong v. Adams (1929), 102 Cal.App. 677, 684.

Timo Pitkänen reveals the different technologies impacting the patent world, as well if there is a ‘foolproof’ way of ensuring that a sufficient novelty search has been conducted, and how to pick a suitable IP strategy.

What challenges do you foresee in the patent world, in regard to new technology developments?

I believe that artificial intelligence (AI) is going to change the way how searches, especially patent searches, are made. Although AI as such is not a new thing, since it has been researched for decades, it has showed its power during this decade. AI has influence on all areas of the economy, so naturally it also affects the patent world.  AI can decrease time spent on searches and can even give a more accurate search result. In fact, there are companies who provide AI based tools to make patent searches.

How to adapt search routines to work with AI may be challenging from the view of a patent attorney. Traditionally the patent attorney may have an insight for certain technologies and how to do searches. AI is a new tool for searches and at least at the beginning it is not so familiar how to use it. However, after the AI tools become more familiar, their benefits can be seen clearly. The patent attorney can concentrate more on analysing a search result.

What is the ‘foolproof’ method of conducting a sufficient novelty and availability search?

There is no “foolproof” method of conducting a search, irrespective of search methods used (like AI tools). Searches are mostly done on electronic databases, like patent databases, electrical libraries, science publications etc. It depends on the content of databases what can be found. Not all publications are available in electronic form, or some relevant publications in electric form may be outside the searched databases.  In addition, relevant prior art can also include products in the market. Products may contain relevant features on which there are no written material publicly available. In any case, it is useful to do searches.

What are the various options for IP strategies and how do you pick a suitable one?

Regarding IP strategies there are actually two main possible ways: the owner of an IP right utilises the right directly, or the owner utilises the right indirectly. Direct utilisation means, for example, that the owner directly produces products that are protected by a patent or patents. Indirect utilisation means, for example, that the owner gives a license to a manufacturer in order to produce and sell products that are protected by a patent of the owner. Selling a patent is also indirect utilisation. These main lines of IP strategies comprise a number of different ways to obtain desired goals. For instance, a company having patents may prefer to utilise them directly, but at the same time the company sells licenses to certain patents. Selling patents to other manufactures can increase the income of the company. IP strategy is always owner/company specific. In order to pick a suitable strategy, a company’s business and markets should be known, and how patents can support efficiently the goals of the company should be considered. So, as a patent attorney I provide suggestions for an IP strategy to a customer who needs a strategy. But it is always the customer who makes the final decision.

Which industry is currently facing the biggest challenge, in relation to patenting? In what ways do you think they can work through the patent issues they may face?

The subject matter of this question is broad, and there can be different answers, but I think that any industry where 3D printing can be used has to consider how patents are applied. Currently, many companies use 3D printing for manufacturing their products, and the number of companies is increasing. Especially single complex products can be manufactured cost-efficiently by using 3D printing. Even large objects can be printed. However, manufacturers of products that can be printed in small 3D printers, which are suitable for domestic use, may face challenges in how to monitor their IP rights. Since the relationship between 3D printing and patents (and other IP rights) is a relatively new subject, there is no clear answer currently for how to work through this issue. We are following the issue, and it seems that the distribution networks of products are going to change, which affects the monitoring of IP rights.

Timo Pitkänen
European Patent Attorney
Berggren
timo.pitkanen@berggren.fi
+358 40 772 7401
www.berggren.eu

I am a Partner at Berggren and I have over 20 years’ experience in the fields of IP relating to patents, designs and trademarks. I have worked in patent offices and in industrial companies. Currently I handle patents and designs, focusing mainly on patents and utility models. My technical knowledge is mostly in the fields of electrics, mechanics, telecommunications and software.

Berggren is an IP house providing services relating to different IP matters. We take care of the whole IP life cycle, starting from small ideas and helping them to grow into big business.  Protecting IP rights gives our clients new opportunities to develop even more successful business. Strong IP helps to differentiate from competitors and grow locally and globally. Commercialising IP helps our customers to maximise revenue and return on investments. We have offices in Finland and USA.

Roger Gibson has been appointed as a Planning & Programming Expert on numerous disputes up to more than £100M in value and has extensive experience working for national & international contractors in the programming and planning of major building, civil engineering and process engineering projects. Roger is also a practising adjudicator, and below he reveals why he thinks adjudication is the best method behind resolving construction disputes and ways in which to avoid disputes, especially in regards to delays.

Out of all the dispute resolutions, which do you think is the most effective for construction?

I have been involved in the resolution of construction disputes for some 25 years, and I consider adjudication to be the most effective for ‘construction disputes’. With adjudication, the appointed adjudicator is often a technical person who understands the issues involved. He will understand the technical aspects of the parties’ arguments and present his decision in a clear manner.

What would you say are important considerations to make when trying to resolve prolongation claims? How can these factors change cases?

As ‘Charles Dickens’ wrote in ‘Hard Times’, “Now what I want is facts, facts, facts.”

In my experience, it is important to keep and maintain good progress records for a contracting party to be in a good position to resolve delay and prolongation claims.

Similarly, for employers, my advice is to engage a specialist company to advise you and assist in keeping ‘good records’.

In my experience, it is often the party with the ‘best and reliable facts’ that wins a prolongation dispute.

Throughout your many years of experience, how have you seen construction planning change in terms of litigation cases?

When I first started in ‘construction’ in the 1960’s, there were no computers. ‘Planning’ was a hand drawn bar chart.  Although, to be fair, activity durations were calculated using manhours from the estimate and an assessed labour gang size.  The resulting ‘draft programme’ was then reviewed with the project manager, and then firmed up into the ‘project programme’ usually on a ‘drafting table’, with not a computer in sight.

What do you think is the best way to deal with construction delays, especially in order to avoid litigation?

In my opinion, the best way to deal with construction delays is to try and resolve them as close to when they occur.

In most instances, the factors which caused the ‘delay’ are known to the parties, and the individuals involved can be readily questioned.

Can you share with Lawyer Monthly a case you were instructed on which was the most challenging one you have dealt with to date? What challenges did you face and how did you overcome them?

One of my most challenging appointments was as a Delay Expert, when I was appointed by the contractor on an a delay and prolongation dispute on a major hospital unit in the North of England.

The major challenge was due to the lack of ‘progress records’ the contractor had kept on the project.  There had been very few progress meetings on the project and the ‘minutes’ of these meetings were abysmal; i.e. no discussion or record of ‘delays’ and their consequences.

Through discussions with the project team and a close review of the monthly valuations, I was able to produce a historical record of progress achieved on a monthly basis against the original programme for the project.

This monthly analysis allowed me to identify the critical delays which affected progress that had occurred and caused a 20-week critical delay to completion of the project.

Finally, by reviewing the project’s contemporaneous records with the results of my ‘progress analysis’, I was able to put together a persuasive delay and prolongation report on behalf of the contractor.

My report was presented to the Hospital Authority, and after a meeting, my contractor’s client accepted an EOT of 16 weeks with prolongation costs.

Roger Gibson
Gibson Consulting Limited
3 The Quadrant, Coventry CV1 2DY
Tel: 024 7624 3607 | Fax: 024 7624 3608
info@gibsonconsulting.co.uk
www.gibsonconsulting.co.uk

I am Roger Gibson, Principal of Gibson Consulting Limited.

I am a Project Planning Consultant, Adjudicator & Expert. I have worked in the construction and engineering industries in a career spanning fifty-five years.

Primarily involved in the planning, programming and management of construction & engineering projects. I have been appointed as an Expert on time related issues in numerous disputes, carrying out forensic planning, investigation, delay analysis and disruption studies. I am an accredited Adjudicator.

I am the author of ‘Construction Delays: Extensions of Time and Prolongation Claims’ and ‘Acceleration & Productivity Disputes in Construction & Engineering’. I have also had several articles published in journals such as Construction Law Journal.

Gibson Consulting Limited are a specialist consultancy providing planning, project control and dispute resolution assistance to the construction and engineering industries.

We provide expert advice on matters of delay, disruption and productivity. With our experienced specialists, we also provide conventional planning and project control services.

Family law matters are an emotional process and every client handles this situation in their own way. Dr. Marko Oldenburger supports his clients by dealing with their concerns objectively and arriving at the best practicable legal solution for them.

What are the most prominent and common issues that arise in divorce cases?

Besides conventional divorce proceedings, which include a professional companionship in times of separation, we handle important cases of judicial separations and divorces of hardship.

Given the urgency and sensitivity of relocating or establishing custody of children, what are the primary obstacles in these cases?

There are two main spots in custody files: child’s well-being and their new habitual residence. Every separation is usually accompanied by complex emotions, which blinds the parents of any negative effects on the child’s well-being. To achieve acceptable results, it is necessary to objectify heated discussions and put the focus back onto the children. Often one parent feels terrible when her or his child takes a new habitual residence in future. In highly developed crises child abduction becomes a mostly dramatic subject matter. In all proceedings and disputes with multinational character, the clients appreciate my exceptional expertise. So, if a parent is intended to leave or enter Germany with under age children, I recommend strongly to consult an experienced International Family law firm.

In dealing with divorce cases how do you ensure the mental health of your clients is maintained with the utmost consideration and the subsequent action is not taken by the client irrationally?

I take time for my clients and I take my client’s sorrows and worries seriously. It is important to reduce the complexity of the individual reality to a judicial relevance in every case. That requires to clarify the current legal situation and develop - hand in hand with the client - a measurable procedure of solution. Another important factor to reach this high standard - and deeply contented clients - are our friendly employees. They always find a sympathetic ear for our clients when, for example, answering questions concerning the course of action.

You also work largely for doctors in divorce cases; what is often the biggest difficult in obtaining a fair settlement between the parties regarding their practices?

It’s regularly the practice value. Usually that isn’t a judicial, but a financial assessment problem. These assessments are expensive, and it is necessary to involve tax data and valuations; these are often hard to reach. For that reason, I try to place arbitral agreements. Especially in regard to the unpredictable costs and fees for lawsuits in the first and second instance unwillingness in the first turn often into willingness at last.

What further considerations must you make for doctors, to which sometimes your clients may often be unaware of?

There are often out of court and in court proceedings to fix the monthly amount of alimonies. Nearly all my clients, especially doctors, have to pay no so-called ratio maintenance but a concrete amount of alimony and post marital maintenance. This is a very specialised law sector in which we are experienced and qualified. Furthermore, there could be many (monetary) effects in inheritance law and, of course, in the company law (depending of the contract of association). Protection of the practice and the doctor’s association from any foreclosure could be an important and reachable aim when providing, as we do, high quality advice.

What would you say makes you the go-to solicitor in Germany for divorce law?

I focus exclusively on family law and represent my clients throughout Germany and, consulting, in the whole EU. With special expert assessments in international and European family law I have successfully managed hundreds of family lawsuits since 1998. Apportionments of assets and liabilities, legally binding arrangements or court decisions of child/ spouse support and child custody are some of my main focusses of work in the sub-area of separation and divorce. I am supported by experienced and highly qualified employees. We have good connections to specialised family law lawyers in other countries and hold a big network completed which personal coaches, psychologists, tax accountants and other not judicial professions – all that to enforce our client’s high goals.

Is there particular family legislation you would like to see changed in order to facilitate your work during child abduction cases?

To me there are some adjustable contrary regulations in the European jurisdiction. For example, Art. 3 EU-UntVO defines that there is a freely selectable jurisdiction when it’s up to child support or parental alimonies. E contrario Art. 8 EU-EheVO provides the jurisdiction in custody proceedings to the court where the child has his/her (new) habitual residence. But there is not any definition of what this habitual residence exactly is or should be. This leads often to legal disputes: which court has the right jurisdiction? Thus, there are often applications in different countries and different local courts (forum shopping). That causes not only high costs but legal uncertainties.

Dr. iur. Marko Oldenburger
Karmarschstr. 46 (ggü. Markthalle)
30159 Hannover
Tel.: 0511 – 87459730
Fax: 0511 – 874597303
Email: oldenburger@artvocati.de
Web:www.artvocati.de

Dr. iur Marko Oldenburger, attorney and certificate family law and medical law attorney, is the owner of the law firm Artvocati | Rechtsanwaltskanzlei in Hanover, Germany. After studying law and social science he was admitted to the bar in 1998 and focuses since then on the entire area of family law. He was a long-term member of a research project at  University of Hanover (International demands of family law reforms) and publishes, beneath a monography, regularly articles and essays in specialized law magazines. His, mostly prominent, clients include executive employees, doctors, personalities from industry, politics and professional sports. With focus on  European and International Family Law Dr. Oldenburger is not only mandated in cases of international child abductions, but in delicate and challenging maintenance lawsuits and, of course, divorce proceedings.

In what way does Turkey’s growing economy and geographical position advantageous for its commercial growth?

Turkey’s geographical position provides many advantages as it is almost literally on the centre of the world, positioned as a bridge between Europe and Asia, right on the historical trade routes. This position would enable any producer with the ability to easily distribute its products anywhere in the world. Therefore, against all negative economic developments in the recent years, I do believe Turkey will attract more foreign investors in the upcoming years, shaking off the slowdown in its economic growth, as it will be always an advantageous hub for investors, thanks to its geographical position.

In addition, Turkey’s growing economy naturally encourages foreign investors. In this respect, the state grants provided to the new and growing businesses are worth mentioning as well as the incentive systems for foreign investors which provides important advantages such as exemption from certain taxes or land allocation opportunities.

US-Turkish trade peaked at nearly $20 billion in 2011, but has decreased in recent years, falling to $17.3 billion in 2016; how has this been reflected with what you have seen in terms of M&A activity in Turkey?

It is obvious that recent political and diplomatic tensions do not help in enhancing the commercial relationship between US and Turkey. However, 2016 was a challenging year for most countries throughout the world. Both Brexit and US presidential elections affected the world economy, raising concerns. Along with the political and economic risks and uncertainty in the Middle East, Turkish M&A market has naturally affected negatively.

According to the reports, the volume of M&A transactions, including foreign investors, dropped by 67% in 2016, making it the lowest year after 2009 financial crisis. Moreover, the number of M&A deals between Turkish and North American companies, declined to 17 in 2016, dropping from 28 in 2015.

Moreover, how are you hoping this will change in the upcoming year?

Even though the negativity of recent conjuncture cannot be denied, the Turkish Government aims to provide effective solutions and precautions to remedy the risks for the investors and boost the developing Turkish economy. In addition, as Turkey has a young and dynamic workforce, and is rich with resources under and above ground, it has a lot to provide for investors. Thus, I see the rise in investment and economy is inevitable in the near future.

With regards to M&A activity, some markets were eye-catching in 2016, such as information and mobile services, energy and finance. Thus, it would be rational to expect that there will be significant transactions in those sectors in the upcoming years.

Moreover, Turkey’s positive approach to privatisation and extensive privatisation portfolio also provides important investment opportunities in businesses such as hydroelectric plants, mining and energy businesses. Therefore, privatisation will continue to have an in important place in the upcoming years as well.

Are there any regulations to which you deem as outdated in Turkey, which upon amendments, may help progress economic growth throughout the country?

The most relevant general regulations (Turkish Commercial Code, Code of Obligations, and Code of Civil Procedure) with regards to commerce and commercial litigation are amended in 2011. Therefore, main regulations related to commerce are considerably current. However, the lengthy trials are one of the biggest issues we face in commercial litigation. As I believe that a trusted, effective, and fast legal system will inevitably benefit economic growth, an extensive reform to improve the litigation system and decrease the workload of the courts is necessary.

You are currently working towards your PhD in Private Law – how are you hoping this research will set you out from the rest in legal practice?

As a legal practitioner, I do find continuing higher education following the law school significantly important and beneficial. Besides gaining a deeper knowledge and understanding of law, higher education provides you with abilities to analyse the legal matters you face from different and deeper perspectives. This, I believe, furnishes a lawyer with the ability to develop unprecedented and creative legal solutions, or arguments which are essential in resolving complex legal matters. Through this, a lawyer also undertakes a mission of creating law in addition to enforcing the law.

Moreover, the synthesis of theoretical information with our experience in practice provides excellent results, enabling us to analyse the possible outcomes of a dispute or transaction much more clearly. In return, with such ability, we take pride in being able to protect the rights of our clients much more effectively and gain the best possible results for our clients in dispute resolution.

Göktuğ Can Burul, LL.M, Esq.
BKA Attorneys at Law
Address: Nish Istanbul Residence B Blok K: 5 D: 58 Bahcelievler Istanbul
Office Phone: +90 212 806 43 69
Mobile: +90 533 717 20 61
E-mail: goktugburul@bka-law.com
Web-Site: www.bka-law.com

Goktug Can Burul is one of the founding partners of BKA Attorneys at Law. He holds two LL.M. degrees in International Trade and Economy Law, one of which is from Georgetown University Law Center. He is admitted to New York State Bar along with Istanbul Bar. His practice mainly focuses on commercial and real estate law and he has an extensive experience in complex litigation matters. Goktug has been involved and represented his clients in various projects in different sectors from construction to agriculture. He also represented Istanbul Bar in 2016 in Contracts Negotiation Competition held by European Bars Federation where he was ranked in top three among ten teams.

BKA Attorneys at Law, is a boutique law firm located in Istanbul, Turkey and provides extensive and exceptional legal services in various areas of law including commercial, real estate, customs, labour law, mining, and energy. The firm’s clientele includes leading Turkish and international corporations. In our work, we combine experience and dynamism thanks to our team profile.

We now hear from David Crowe, who touches on his work as an expert witness; he reveals his unique attributes and why he finds the legal industry intriguing.

Why did you start to serve as an expert witness?

I was asked, by a defence lawyer, in the first case! I’d never really thought about it, but it was an opportunity to learn more about the legal system. And I felt good that I was providing expertise to assist the defence. Even the guilty deserve a good defence, or perhaps a good offense.

Do you specialise in a particular type of case?

No. If the case is interesting, and my expertise matches, I’m in. Apart from criminal cases, I’ve been involved with patents, business disputes and intellectual property. Technical areas include base stations, core networks, phones and location services.

Is this your major business now?

No, I still mostly consult in the wireless industry. I chair two industry committees, edit a major emergency services standard, and provide technical assistance to clients.

How would you describe your expertise?

I have a broad understanding of wireless, having worked on core network protocols, smart cards, radio interfaces, identifier issues, security, emergency calling, and lawful intercept (‘wiretaps’).  I have deep technical understanding, although I’m not an expert in the details of, for example, digitally coding voice, or radio modulation schemes. That’s a good thing, because those experts generally don’t have the breadth of knowledge that I’ve gained.

What unique attributes do you provide?

I’m independent both in my work situation and in my thought process. As a consultant I’m free of the constraints that employees have. They need to get permission from their company, and each of their company’s vendors or customers becomes a conflict. I also have a reputation as a free thinker. Not too many people have published articles critiquing VoLTE (cellular VoIP) or IPv6, for example. I have no trouble considering that the dominant view might be wrong. In legal cases what initially appears to be the right answer often ends up proven wrong.

Why do you like legal work?

It’s a challenge. It pushes me to solidify my technical understanding when I have to consider technology from a legal perspective, or observe lawyers doing this. They often ask penetrating questions that I may never have considered before. At first I might think, “How on earth am I going to answer that?”, but then I pause to think, do some research, and surprise myself with what I’m able to find.

Do you like having your opinion accepted as evidence?

Not at all. It is an abdication of responsibility for an expert to take advantage of this. For every claim that I make, I want to have documents to back it up. When asked about something I may respond with an assertion, but I immediately think about how I would prove it. I’d like to feel that after I’ve documented my research, that the lawyers and client wouldn’t need me any more, I would have explained and documented everything so that any testimony I give in court is almost superfluous.

You have testified in court. Were you nervous?

Not nervous, but definitely on edge, which I think sharpens my thought processes at this critical time. It’s a frustrating experience because you wait forever before you are questioned for a few minutes, and then it’s over. I haven’t yet had a question that came from nowhere and threw me completely off balance. I’ve learned to listen carefully, consider the question in my mind, and only answer when I’m fully prepared.

David Crowe
Email: David.Crowe@cnp-wireless.com
Phone: +1-403-289-6609
Web: http://cnp-wireless.com/Resumes/DCroweResume.php

David Crowe has been involved with cellular technology since almost the beginning of time. Which, in the case of commercial cellular, was 1983. David started designing software for a cellular telephone switch in early 1984, for the pioneering company NovAtel, in Calgary, the Canadian city where he is still based. Since the late ‘80s he has been a leader, editor and creator of wireless standards. Also a communicator, he has written articles on technical subjects for industry audiences for many trade journals, and for consulting clients. Since 2003 he has been called on several times as an expert witness.

Cellular Networking Perspectives Ltd. is a consulting company led by David Crowe with over 20 years of experience in the wireless industry, particularly in the area of cellular network standards and high level system design. He has consulted for AT&T Wireless, Alcatel, Agilent, ATIS, CDG, CTIA, Fair Isaac, Qualcomm, Neustar, Syniverse, Telcordia, TIA and Verisign, among others.

The Arbitration (Protocol and Convention) Act 1937 and the Arbitration Act 1940 has been replaced by the Arbitration Act 2001 (the Act) for modernising the concept of arbitration in Bangladesh to face upcoming challenges. It has been argued that such legislative steps were urgent in the face of increasing foreign investment in Bangladesh in various sectors[1]. Now almost 17 years have elapsed following the enactment of the Act, and therefore it is high time to evaluate the Act and to justify whether the Act is successful in modernising international arbitration in Bangladesh.

Scope of the Act

As part of globalisation, on one hand Bangladesh is being involved in foreign trades with different countries; and on the other hand, foreign investors are willing to invest in Bangladesh for its cheap labour and its working environment. In such business relations, disputes are highly likely to arise with foreign traders and investors, and arbitration has become a popular mechanism for resolving such disputes. However, it has been identified that under the Arbitration Act 1940, the national courts had an extensive supervisory role over the arbitral process and, most importantly, there were problems being faced by arbitration users in relation to the enforcement of foreign arbitral awards. Consequently, arbitration mechanism had lost its effectiveness. In order to overcome its shortcomings, Bangladesh enacted the Arbitration Act 2001. The Act is based on the UNCITRAL Model Law. The preamble of the Act has taken into consideration of the aforesaid fact and thus specifically mentions that "An Act to enact the law relating to international commercial arbitration, recognition and enforcement of foreign arbitral award and other arbitrations."

International Arbitration

The new Act is applicable for International Commercial Arbitration. Section 2(c) of the Act defines the term “International Commercial Arbitration” and it means an Arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in Bangladesh and where at least one of the parties is: (i) an individual who is a national of or habitually resident in, any country other than Bangladesh; or (ii) a body corporate which is incorporated in any country other than Bangladesh; or (iii) a company or an association or a body of individuals whose central management and control is exercised in any country other than Bangladesh, or (iv) the Government of a foreign country.

Moreover, by virtue of Section 45 of the Act, foreign arbitration awards are now enforceable in Bangladesh unless it falls within the exceptions listed therein. While enforcement, a foreign arbitral award shall, on the application being made to the appropriate court by any party, be enforced by execution by the court under the Code of Civil Procedure 1908, in the same manner as if it were a decree of the domestic Court. However, problem arises when the seat of an international arbitration takes place outside Bangladesh, as Section 3(1) of the Act states that the Act ‘shall apply where the place of arbitration is in Bangladesh’.

Limitation of the Legal Provisions

Section 3 of the Act embodies a restrictive ‘territorial principle’, whereby only arbitration that is considered to take place in Bangladesh falls within the purview of the Act. Therefore, an international arbitration taking place outside Bangladesh shall not fall within the scope of the Act, whereas the Act has been promulgated for modernising the concept of arbitration to face upcoming challenges that may be resulted from international dispute. This has caused considerable confusion as to what ‘place... in Bangladesh’ means. Moreover, the limited scope of the Act has also squeezed the power of the court to pass interim order where the arbitration is taking place outside Bangladesh, even if it is imperative to secure the interest of the claimant of the Arbitration proceeding.

The hon’ble High Court Division of the Supreme Court of Bangladesh, in the case of HRC Shipping Ltd v MVX-Press Manaslu and Others (HRC Shipping)[2] opted for a wide interpretation of the term. The learned Judge in this case did a long journey to find out the scope of the Act under section 3 in light of the objects of the Act keeping in mind the international commitment and obligations under the New York Convention of which Bangladesh is a signatory and also the provision of the UNCITRAL Model Law. In this case, it was held that under section 3 of the Act the court has jurisdiction to give appropriate relief especially the interim orders where the seat of arbitration is outside Bangladesh.

While deciding HRC Shipping case, the learned court had drawn upon the reasoning used in the landmark Indian case, Bhatia International v Bulk Trading SA[3], where the Court held that the Act itself did not state that it would not apply if the place of arbitration is not in Bangladesh or that it would apply only if the place of arbitration is in Bangladesh. On a similar note, the High Court of Bangladesh further observed that a distinction had not been drawn between international commercial arbitration taking place in Bangladesh and that taking place outside Bangladesh.

On the other hand, Section 3 of the Act also came under scrutiny by the High Court Division in STX Corporation Ltd v Meghna Group of Industries Limited[4] (STX Corporation), and the High Court Division adopted a literal construction of section 3(1) of the Act. In support of such an interpretation, the Court cited the case of Unicol Bangladesh v Maxwell[5], where the Appellate Division of the Supreme Court of Bangladesh, the apex court of the country, stated in unequivocal terms that ‘the law in section 3(1)… is limited in application as to the arbitration being held in Bangladesh’.

In STX Corporation, Mr. Justice Mamnoon Rahman[6] pointed out that foreign arbitration award meant an award made in the territory of any country other than Bangladesh. He reached the conclusion from combined reading of sections 2(c), 2(k) and section 3 of the Act that the intention of the legislature was that the scope of the Act would be limited to within the territory of Bangladesh, except for the scope to enforce of an award passed in a foreign arbitration, pursuant to the section 3(2) read with section 45, 46 and 47 of the said Act. He further stated that this court as well as of our Apex Court came to a conclusion that unless or until the Parliament amended the law or a person could show that any provision of law is ultra vires to the Constitution of the Republic, High Court of Bangladesh could not strike down or interpret a specific law in a different manner.

Consequence of the Limitation

In a hypothetical situation where restrictive interpretation approach of Section 3 of the Act subsists, it may be a case that the courts of Bangladesh are not being able to grant interim order where the parties to a dispute are arbitrating in a foreign seat and the respondent's assets are located in Bangladesh, and there is a possibility that the respondent may dispossess his assets for avoiding enforcement of the same. It would result in the claimant having won an expensive arbitration, and the same left with only a paper award.

Probably taking into consideration of the aforesaid instance, Mr. Justice Mamnoon Rahman[7] has addressed to the fact that it is the generally accepted principal in each developed legal system that the state court order interim and conservatory measures in support of arbitration despite the powers of the arbitral tribunals to do so. There are many reasons: the tribunal may not yet have been composed or it may lack the required power; urgent relief may be required and the tribunal cannot be constituted quickly, an application without respondent may be essential to prevent avoidance of the relief sought.

The supreme Court of India in Bhatia case as well as in several decisions of the High Court held that court can order interim measures where seat of arbitration in outside India. Bhatia case was followed in Venture Global Engineering, vs Salyam Computers Services Ltd[8]. However, there are some decisions having the opposite view[9].

Way Forward

Even though Bangladeshi courts have come to conflicting decisions as to the scope of the Act, there is a decision of the Appellate Division of the Supreme Court of Bangladesh restricting the application of the Act[10], and pursuant to Article 111 of the Constitution of the People’s Republic of Bangladesh, a decision of the Appellate Division of the Supreme Court is binding upon the High Court Division and other courts subordinated to it. This has caused considerable consternation for the legal community and, in particular, foreign parties involved in foreign arbitration proceedings with Bangladeshi companies, as it is apparent that scope of assistance by the Bangladeshi courts to such proceedings are extremely limited.

In India, conflicting decisions are there also. The judgment of Bhatia Case has not been overruled yet, instead Bhatia Case is being distinguished based on facts and circumstances. Therefore, no conclusive decision and guideline have been found in both Bangladesh and India. On the above premises, the first and foremost clarification that is required in the Act is its applicability.

It shall not be out of place to mention that the limited scope of applicability of the Act has already been addressed by the revised Model Law, which states that provisions relating to, inter alia, interim measures shall apply irrespective of the fact that the place of arbitration is outside the country concerned. Now, since the Act is based on the UNCITRAL Model Law, Bangladesh should also amend the scope of the Act in line with Model Law to achieve the objective of modernising international arbitration.

Mr. Dewan Faisal

Senior Associate

www.as-associates.net

Advocate Dewan Faisal is a Senior Associate of A.S & Associates. He completed his legal studies from University of London in 2011. Thereafter, he has completed his LL.M from Eastern University, Bangladesh on 2012. In 2016, he completed another LL.M on International Commercial Law from University of Derby, UK. Currently, he is the Team Leader of the Corporate Financing & Capital Market sector and the Energy & Power sector. He has immense expertise in Company and Commercial matters. His experience also encompasses in the field of Alternative Dispute Resolution (ADR) and he is a CEDR, UK Accredited Mediator.

Pull bio from previous article

[1]Professor Dr AFM Maniruzzaman, The new arbitration act and some afterthoughts, The Daily Star, October 15, 2005

[2] 58 DLR 185

[3] 5A 2002 AIR (SC) 1432

[4] 64 DLR 550

[5] 56 DLR (AD) p.166, at p. 172

[6] STX Corporation Ltd vs Meghna Group of Industries Limited and others (64 DLR (2012) p. 550)

[7] STX Corporation Ltd vs Meghna Group of Industries Limited and others (64 DLR (2012) p. 550)

[8] (2008) 4 SCC 190

[9] Bharat Aluminium Company Ltd. v. Kaiser Aluminium Technical Services, Inc., (2012) 9 SCC, Videocon Industries Ltd. v. Union of India & Anr., (2011) 6 SCC 161, Dozco India Private Limited v. Doosan Infracore Company Limited, (2011) 6 SCC 179, Yograj Infrastructure Limited v. Ssang Yong Engineering and Construction Company Limited

[10] Unicol Bangladesh v Maxwell ; 56 DLR (AD) p.166

The investment sector requires attention to detail, to ensure you avoid any slip-ups.

Adding to this, Matt Bruderman says: “There is often a temptation to take short cuts, but these rarely payoff and often cause more trouble and work down the road.”

He shares his insights and core beliefs that ensure that the firm that bears his name does what is best for their clients: “The single most important principal that we follow at Bruderman, and that I care about deeply when it comes to clients is: ‘do it right, do it perfectly, don’t accept anything less’.”

How do you believe investment banking is currently changing in the face of socio-political turmoil? The industry, particularly in the middle-market arena, is always changing. We don’t focus on external factors such as geopolitics that are outside of our sphere of influence. If, and when, we believe that there is a temporary or transitory event that is suppressing or lifting prices, we talk to our clients and advise them on a course of action which we believe will serve them best. Depending on the circumstances, a seller may become a buyer in an unfavourable environment, or vice versa.

What benefits and opportunities do you think lie in the current state of the US’ investment sphere, and in the development of new sectors such as FinTech, AI, etc?

The United States has been and continues to be the hot-bed for innovation, across many industries, and we don’t expect that to change. New technologies, for instance Blockchain or Artificial Intelligence, are providing more traditional business with the ability to become transformative again. For instance, an energy supply company can greatly reduce its costs, raise its margins and increase efficiencies with the help of technology that didn’t exist five years ago. As advisers and bankers, we believe part of our responsibility is to help clients understand how these new developments may help their businesses, impact their industry and how regulators may respond to these changes.

All too often companies are being advised to implement new technologies because they happen to be ‘in trend’, without fully understanding the benefits and costs. Bruderman takes a different approach, behaving more like a fiduciary and educator in these matters. The opportunities relating to new developments are boundless, but making the smart strategic decision requires a steady hand and forethought, just as it always has.

In an uncertain period, such as the one we’re going through now, how does an investment magnate such as yourself weigh up the risks involved in particular transactions?

Simply put, you have to prioritise. There are a lot of business owners who have reached a stage in their life where careful business succession planning, financial and estate planning and life planning have become the priority. We work with our clients, ensuring that the entire spectrum of the transaction and its consequences are discussed and reviewed. While there are always surprises and some things that are beyond control, being diligent and measured in your approach to each transaction and decision tends to lead to the most predictable outcomes for our firm, as well as our clients.

In terms of the US’ future in M&A and investment, what is the biggest change or development you are looking forward to in 2018?

I think that by early 2018 we will have a better sense for any changes in the tax code and how that might impact the M&A world. We’re reasonably optimistic that the US and the global economy will continue to grow and improve, and also believe that some form of tax reform will occur. This should be beneficial for sellers, while a continued low interest rate environment will continue to benefit buyers and those seeking relatively cheap financing opportunities.

Having dealt with transactions in a multitude of sectors, which would you say offers the most flexibility in the transaction process, and why?

Every deal is slightly different, mostly because every seller has particular needs and concerns. The transaction process itself is well defined and relies on solid execution of our process. The changes and challenges come from asking and answering the “what’s next” question. We ask: “What are the family needs, estate planning needs, or desire to acquire another / new business?”. Our flexible and open approach with the client, focusing on their future needs, is one of the biggest contributors to our success.

You are experienced and well-practiced in many areas of banking, finance and law; how does such an array of qualities allow you stand out from your peers?

We work with the best talent available, our team members come from Ivy League Universities, have broad international experience, are specialists in their respective fields and most importantly, work together. One of the greatest advantages a boutique firm like ours has, is that it is not involved in bureaucracy and red-tape. When you are able to combine the straight-forward work flow with a disciplined process and an open setting that encourages everyone to work together and support each other, the quality of work and end result are remarkable.

MATTHEW J. BRUDERMAN
CHAIRMAN & CHIEF EXECUTIVE OFFICER
www.bruderman.com
​

Matthew Bruderman leads all merchant and investment banking activities for Bruderman Brothers, and takes great pride in being personally involved in each transaction undertaken by the firm. Matthew Bruderman has been active in financial services for nearly 20 years, and represents the third generation of the Bruderman family in the industry. Early in his career he held positions in sales, investment and merchant banking, financial planning, and investment management at T.R. Winston & Company, Shearson Lehman, and Merrill Lynch.

Bruderman Brothers offers holistic advisory services, ranging from best-in-class sell-side and buy-side M&A advisory services to capital raising and strategic consulting services. We strive to accomplish an outcome that is best for a business and its shareholders. With our vast transaction experience and the operating experience of our senior bankers, we know well that one size does not fit all and understand situation specific factors that motivate and drive our clients to engage in a transaction.