Understand Your Rights. Solve Your Legal Problems
Maggie Ramage’s role in the IP team at Edwin Coe is to support and work in the trade mark registration practice.
“On a daily basis I deal with trade mark clearance, protection, defence, litigation, renewals and any area relating to trade mark protection worldwide.
“I work closely with WIPO, the EUIPO and the UK IPO, and I also handle design protection.”
The world of trademarks varies from day to day: “It is always interesting (and fun) to see what new issues arise each day. I never know what will come up, or from what country”, explains Maggie.
She discusses how the US and UK differ in relation to trademarking, and how the industry has changed over the years.
How would you describe the EU’s progress in Trademark and IP law over the past decade? What was the biggest turning point?
There have been some big changes in trade mark practice over the years, most of which have happened over the last 10 years. There have been improvements in dealing with customs issues and more recently attention has been turned to the cost of protection, which means that it is more cost effective to file in the areas of interest in the EU, not just adding trade mark classes (as used to be the case); previously it was possible to protect three classes for the price of one, which I think most trade mark applicants tended to do whether they had interest in the extra classes or not. This led to clutter on the register, and more uncertainty and cost for trade mark owners, who would have difficulty in clearing marks for use and registration in 28 states, only to have to face expensive litigation against prior marks, where use of those marks in the relevant fields was questionable.
What is next on the agenda for European trademark law and the development of protection for beauty care specialists, financial institutes and mobile telecom providers?
There are some big changes in procedure just introduced in the EU, starting from 1 October 2017. For example, there is abolition of the graphic representation for a mark. This has now been replaced by a requirement for “clarify and precision” as to what is protected. This should help in protection of more non-traditional marks, such as sounds or smells, many of which have failed previously as it was not easy to define the mark being applied for graphically, so it could be easily understood or easily searched. The types of marks now agreed could include not only the word or logo or shape of a mark but also the position of a mark, the pattern, colour, sound, motion, multi-media or holograms. This reflects multi-media ways of disseminating information and brings the system into the 21st century.
Certification marks are now allowable – these indicate that goods and services possess certain characteristics, rather than their trade mark origin (which is the normal basis of trade mark protection, i.e. being a sign of origin of a particular product or service from a particular source). An example of this in the UK is the certification mark for Harris Tweed. It will be interesting to see the take-up of this in the EU. The UK has used this method of protection for years, but some EU member states are not familiar with the concept of certification marks. Regulations will need to be produced governing use of the particular mark.
There are also a large number of procedural changes just commenced, such as the method of corresponding with the EU – there is more on-line correspondence, e-filing of cancellation or invalidity proceedings.
The biggest thing on the horizon in Europe will of course be Brexit. We believe that existing EU protection of marks at the EUIPO will be extended to the UK, but the question is how this is done. Automatic extension of rights is favoured., however also under discussion has been opting in to UK protection by filling in a form or paying a fee so that an existing EU right can be extended to the UK. If there was extra administration, such as form filling or fee paying, it could lead to a huge work load for not only practitioners but also the trade mark owners themselves, and of course the UKIPO.
The other element of Brexit most pertinent to trade mark practitioners is rights of audience before the EUIPO. This is probably the biggest concern right now. We do not yet know when the rights will change, and a number of UK practitioners are looking to link up with EU practitioners for future EU work, or looking to open offshoot premises (which must be real and effective offices, and not just a “brass plaque” address) for example in Dublin. It remains to be seen how this will affect my existing clients and my own practice. Financial institutions in the UK are already looking to relocate staff to premises to the EU to continue their current business. Should we all as UK trade mark practitioners consider doing the same?
You previously worked in the ‘tech capital’ San Francisco taking care of world-wide trade mark affairs; what do you think the UK could adopt in order to better the IP industry for your clients?
When I was seconded to San Francisco to work as a trade mark attorney in the USA, I saw a very different world. The experience was great, but scary at times. It was hard to get to grips with a complex practice that was very different to that operating in the UK. One of the hardest things was working through the Trade Mark Manual of Examining Procedure, to understand how to successfully work with the USPTO. However, it was good to get a broad perspective on, for example, trade mark use. I was lucky to have the assistance of a New York trade mark attorney who was available to help me when I was unsure, as I was the only person handling trade marks for the whole corporation at the time.
It is pointless to have a trade mark on file in the US with no use, and this is also relevant in the UK. This can leave the trade mark owner vulnerable to a challenge by a third party to their mark on the basis of non-use and they could actually lose their rights. It is not possible to stockpile registrations for possible future use – this is a dangerous thing to do. One thing the US does concentrate on is having a pure trade mark register, without the clutter sometimes seen in the EU or UK. Upon registration, a trade mark proprietor must show use of their mark to maintain that registration, and that use must be demonstrated upon renewal – I do not see a problem with this. It serves to clear out trade mark specifications for trade mark registrations, so that the register is easily understood – what remains is what is in use. This helps in trade mark clearance for availability and is a much more certain way of operating a public record register. I think it would be useful to adopt this practice in the UK.
As a thought leader, how are you increasingly raising the benchmark of standards when it comes to Trademark law, especially for your clients?
When dealing with my own clients I am constantly trying to be proactive. It was very useful to have practiced in-house in three different companies. This leaves a feeling that you know the internal problems a trade mark owner faces, such as budget restraints, constant audits, advising on filing and defence strategy, gap filling as new markets become of interest, or brand extension when new product ranges or services are introduced under an existing mark, and prioritising work in general.
It constantly amazes me that updates in trade mark protection are often overlooked in-house, particularly in large corporate companies where there is no in-house IP department to advise. I see it as my role to ask questions and to fill those gaps. I like to visit my clients for those reasons, to get a good grasp of their business and interests and what needs to be done to protect those, together with any future plans they may have.
Generally, I love the variety faced in trade mark protection and defence. I can move from cosmetics to drinks to business services, to clothing, to garden sheds within a matter of minutes. One of the best things about the job is getting to know the clients, their businesses and plans. In addition, I have made a large number of friends and acquaintances around the world over the years, which is so useful in this international world. I try to update both clients and overseas associates with updates in law and procedures in the UK and the EU, plus anything new coming out from the UKIPO or the EU or even Brexit, so we can plan ahead for what is about to hit us.
Maggie Ramage
Partner
+44 (0)20 7691 4031
www.edwincoe.com
Maggie.ramage@edwincoe.com
Maggie is a Chartered Trade Mark Attorney on the UK Register of Trade Mark Attorneys, and a European Trade Mark Attorney practising before the European Trade Mark Office (EUIPO) based in Alicante, Spain. She is a Fellow of The Chartered Institute of Trade Mark Attorneys, and is a past President of that body. Maggie studied trade mark law while working in patent administration, and in 1982 became head of European Trade Marks for the Californian-based Raychem Corporation.
Maggie became a partner in Alexander Ramage Associates LLP in 1991, and in April 2015 joined Edwin Coe LLP as a Partner.
Her clients include start-up firms and multinationals, and range from medical practitioners to financial institutions, bath and beauty care specialists, hair care manufacturers, mobile telecom providers and food and drink providers.
Edwin Coe is a medium sized law firm, established in Lincoln’s Inn, offering many disciplines such as private client, litigation, tax, property, immigration, employment law, among others.
Ergonomics, also known as Human Factors, is concerned with the human in the system. Ergonomists apply knowledge of people’s characteristics to enhance their productivity, effectiveness, well-being and safety. In the context of civil law, safety is the primary concern and ergonomics experts report on the risks from industrial tasks involving repetitive movements, mental stress, applying forces or handling loads. In the criminal courts, we might consider biomechanics – for example: could the accused exert such a force from such a position?
In his role as Director, Dave Usher provides guidance and technical analysis, but also spends plenty of time assuring that our deliverables achieve the three Cs, to be: Clear, Concise and Correct.
What are common reasons employers are sent to Court, in relation to ergonomics?
I think the most common failure of employers is in relation to the Manual Handling Operations Regulations. Handling, lifting or carrying things causes most non-fatal injuries in the workplace.
The guidance published by the Health and Safety Executive is very clear, but still employers misunderstand their responsibilities. Risk assessments need not be complex, but must be done thoroughly and meaningfully. For example, I often see risks described as ‘low’ or ‘medium’ without any indication of what these terms mean.
What do you think employers often dismiss the importance of, in relation to the geometry and layout of workstations? How can this ignorance lead to legal sanctions?
Employers should be willing to recognise that risks do not remain the same. As time goes by, the musculoskeletal system will both be more susceptible to injury and will have accumulated more wear and tear. This raises the risk of Work-Related Upper Limb Disorders – or RSI as it’s known – particularly in women. Ensuring the workstation geometry reflects the anthropometry of the user should help.
When would you personally advise an individual to seek legal action for personal injury?
From an ergonomics perspective, a claim is more likely to be successful if there is a clear link from the injury to a breach of the guidance provided by the Health and Safety Executive.
What challenges do you face when instructed as an Expert Witness? What could legal experts do to reduce any challenge you may face?
One challenge is to remain within the scope of the discipline. There is difference of opinion even between ergonomists regarding, for example, whether the rate of progression of a medical condition is a matter of ergonomics.
Another of the challenges is to remain free from bias. If you are instructed by the claimant there is a temptation to say that the defendant should have reduced the risks – since that can almost always be done somehow – even if they are already very low. Then there is ‘hindsight bias’, where the occurrence of the injury makes its probability seem greater.
I strongly support the movement towards commissioning a single joint expert rather than a report from each party followed by a joint statement.
How have you seen safety in the workplace change over the years of practice? How has this changed your line of work?
I think workplaces are nowadays much safer. It’s rare to come across obvious hazards at a site inspection. The sort of problems we find now are more to do with organisational culture – workers’ complaints being ignored or injuries not being recorded.
Also, funding for personal injury claims has become more difficult to obtain, which has made solicitors more cautious about engaging a medical expert witness as well as an ergonomist.
Dave Usher
Director
email: dave@interactionofbath.com
mobile: 07747 686162
Interaction of Bath, 42 Milsom St, Bath, BA1 1DY, UK
tel: +44 (0)1225 482882
Dave Usher is Managing Director and principal consultant at Interaction of Bath. He is a Fellow of the Chartered Institute of Ergonomics and Human Factors and holds a BSc and DPhil in Physics.
Dave founded the company in 1991, based on his experience in the field of human-machine interaction. Since then he has carried out ergonomics work across most industrial sectors. This strong technical background helps him carry out a large variety of ergonomics work across most industrial sectors. Dave is particularly interested in human error analysis and ergonomics for older people.
Interaction of Bath is an ergonomics consultancy established in 1991. We offer the full range of ergonomics services to organisations of all types. I believe this breadth of reach and depth of experience are valuable to our legal work in giving us an anchor in the real world for our opinions regarding credible risk assessment techniques and the foreseeability of injury.
We are registered with the Chartered Institute of Ergonomics and Human Factors, the Society of Expert Witnesses and the Association of Professional Injury Lawyers. Our certification to ISO 9001:2015 ensures quality, completeness and traceability in all our activities.
Over the last couple of years, Goran Studen has specialised in advising Ultra High Net Worth Individuals (UHNWI), institutional clients and family offices in all aspects of estate planning and inheritance law.
He says: “As Managing Partner at JSP Jakob Studen Partner my focus is to develop our law firm in terms of broadening our client portfolio as well as strengthening our existing client relationships. Furthermore, it is my task to develop and implement a mid- and long-term strategy and vision and to translate it into our daily business.”
Goran speaks on how he combines academic and practical expertise and advises UHNWI, corporations and foundations among his clients.
What are common areas your clients seek advice about?
Many of our clients seek advice in the field of estate and wealth planning. In this context we pursue a holistic approach and also evaluate the need for personal planning, i.e. health care proxies and living wills. Establishing trusts and foundations in Switzerland and abroad, as well as relocation issues and cases involving private international law, are a regular field of activity for our UHNWI clients.
Our corporate clients need regular advice on commercial and company law matters. Furthermore, they rely on JSP Jakob Studen Partner for commercial and M&A transactions. Finally, we offer all-round legal advice for foundations and foundation board members – another core client group of ours.
Can you share with Lawyer Monthly the ways in which you accomplish your aim of passing on entrepreneurial legal advice with a philanthropic element?
One of the pillars of JSP Jakob Studen Partner has always been offering legal services to foundations and non-profit entities and we take pride in actively engaging in charitable institutions and supporting our community. We see ourselves as legal entrepreneurs and often share the passion and ambition of our clients. Since we at JSP Jakob Studen Partner ‘live’ according to our principles and vision, developing and implementing a strategy for our clients is a matter of course.
Have there been any changes in estate planning and asset management regulations which have deeply impacted your clients?
Currently transparency, compliance and anti-money laundering are hot topics in our area of work. The push from governments around the globe to identify and register beneficial owners of assets, corporations and other structures leads to many uncertainties and requires a careful review and, if need be, adjustment of the existing estate and wealth planning of our clients.
As Thought Leader, can you share ways in which the legal sector in Switzerland could change in order to make processes easier for your clients?
As legal community we face a seismic shift in the legal sector in Switzerland and abroad; in the next years we expect a generational shift and automation and artificial intelligence to become irreplaceable tools in our industry. Lawyers and law firms taking a “one-size-fits-all” approach, will need to reconsider their strategy. Having said this, we are confident that automated legal services and personal legal advice based on trust and integrity can and will exist side by side leaving ample room for specialised law firms like JSP Jakob Studen Partner.
Can you share with Lawyer Monthly your postdoctoral research and how this research changed the way in which you practiced law?
My focus in my postdoctoral research is information rights including procedural questions of enforcing them. My research has put me in a position to advise our clients on the complex and often controversial topic of bringing valid claims to receive information as well as to implement adequate protection mechanisms.
Goran Studen
Partner
JAKOB STUDEN PARTNER
Bellerivestrasse 29
8008 Zürich
+41 (0) 44 260 17 04
mail@jsp-law.com
As an associate at an international law firm in Munich I had the opportunity to be part of substantial and cross-border wealth transfers. Following my relocation to Switzer-land, I joined a Zurich based law firm. Working in the Private Clients team of a top tier law firm has given me the unique opportunity to advise HNWI and UHNWI as well as Family Offices, corporations and institutions from around the world.
Building on my experience, in December 2013 I decided to expand my entrepreneurial horizon and to set up a law office in Zurich with a clear focus on providing independent legal advice to clients in Switzerland and abroad in the areas of inheritance law, trusts, estate planning and cross-border wealth planning.
With a clear focus on inheritance law, estate planning, foundation law and commercial aspects, JSP Jakob Studen Partner has quickly established itself as a leading legal brand in complex cross-border cases and legal wealth advisory in Switzerland. The flexibility to team up with suitable domestic and foreign experts gives us the opportunity to adopt an individual and purely client-driven approach in finding the best tailor-made solutions.
Our unique expertise in the field of national and international foundation law guarantees our clients the best possible advice with regards to the establishment and dissolution of foundations, ongoing advice for Board members as well as the evaluation of existing and implementing new structures and governance mechanisms.
With renewable energy being a trend in project finance, we speak with Kunihiro Yokoi, a legal expert specialising in project finance in Japan. He discusses aspects investors are often unaware about and overcoming difficulties during contract negotiations.
Project finance has turned its focus towards renewable energy over the past few years; how has this affected the business plans of your clients?
There has been a dramatic increase in project finance in Japan after the introduction of a feed-in tariff (FIT) system for renewable energy in July 2012. The FIT system coupled with the long-term power purchase agreements with utility companies offers a prospect of long-term stable cash flow for renewable projects which has attracted significant interest from investors and lenders. Major commercial banks, as well as smaller regional banks, have commenced and increased project financing for Japanese renewable projects with competitive interest rates.
Are there any unique processes or regulations that international clients getting involved in project finance in Japan ought to consider and be aware about?
There are no unique processes or regulations which are applicable only to project finance in Japan. However, it should be noted that the due diligence process on the subject project is conducted primarily before a decision is made as to funding in the case of project finance, much like those made in other countries.
Are there any features which foreign investors or creditors are often unaware about?
A filing is required under the Foreign Exchange and Foreign Trade Act if a foreign investor obtains shares in a non-listed company, obtains more than 10% of shares in a listed company, or conducts certain other activities. Investment in certain types of businesses (such as electricity, mining, oil, gas, water supply, transportation, telecommunication and shipbuilding) requires prior filing with the Japanese government. Investment in certain industries (such as telecommunications, airlines and broadcasting) is also subject to maximum shareholding restrictions.
If project lenders are not banks, loans for project financings will generally be subject to the Money Lending Business Act, which requires registration with the authority and compliance with other obligations.
Also, a wide variety of regulations will generally need to be considered for the development and operation of a project. Generally, applicable permits and/or licences may differ depending on the site or facilities, and they are handled by the competent government and/or local government having regulatory oversight of the subject matter. Administrative officers sometimes have broad discretion on permits and/or licence application procedures, and this may result in a certain degree of unpredictability.
What challenges arise when undergoing contract negotiation for oversea firms? How do you use your expertise to overcome this?
Foreign investors are sometimes confused with the above unpredictability concerning the issuance of permits and licences, and the preference toward domestic companies or individuals on a relatively smaller volume of documentation. Employing my extensive experience from numerous projects and communications with relevant parties, I am eager to help foreign investors in analysing the risks related to these issues, by sorting out important issues, advising on standard market practices, and providing the details of the risks with possible solutions, and other useful information.
What predictions do you have in relation to Japans’ energy sector in the upcoming years?
The energy sector in Japan is in the middle of various reforms. The electric and gas retail business was liberalised recently, and the legal unbundling of the transmission function from the existing dominant electricity or gas suppliers will be implemented in the next phase of the reform. The renewable energy market has been expanded, and the FIT system is being revised to address several problems as a result of the rapid expansion of the renewables market, including a newly adopted bid pricing system for certain solar power generation projects, the first of which is expected to occur within this year. The trend of reforms and the increase in projects, which is planned to take advantage of the trend, will continue at least in the upcoming few years.
Kunihiro Yokoi
Special Counsel
T: +81-3-6888-1160 | F: +81-3-6888-3160
E: kunihiro.yokoi@amt-law.com
Anderson Mori & Tomotsune
Akasaka K-Tower, 2-7, Motoakasaka 1-chome
Minato-ku, Tokyo 107-0051, Japan
Kunihiro Yokoi is a lawyer with extensive experience in the field of project financing in Japan. He engages in structuring, developing and operating projects in various sectors, including renewables, conventional power, oil and gas, mining, transport, PFI/PPP, and other infrastructure projects. He regularly advises on an extensive range of legal matters for both domestic and international entities, including sponsors, project companies, lenders, suppliers, and contractors. He also lectures on domestic and international project development and project financing, and his recent publications include The International Comparative Legal Guide to: Project Finance 2017 (Japan Chapter), (Global Legal Group Ltd., 2017) (co-author) and The Energy Regulation and Markets Review (Sixth Edition), (Law Business Research Ltd., 2017) (co-author).
Mr. Yokoi's firm, Anderson Mori & Tomotsune, is a full-service law firm which is known as one of the largest and most prestigious law firms in Japan, including in the area of project financing. The firm has a long tradition of serving the international business and legal communities with its superior expertise.
Over your years of practice, petroleum products and gas demands change over the years. Much of the oil and gas industry has survived an especially tough few years with weak demand and low prices.
Sami Charles, CEO of ANOG says: “It has been difficult to make strategic decisions and plan for the future, although, prices appear to be recovering.
“In the near future, the recent oil price gains — which are due to a rebalancing of supply and demand fundamentals, partly accelerated by OPEC’s recent decision to cut production — are expected to remain in place. That expectation is behind a number of positive industry forecasts.”
Below, he expands more on energy law in relation to environmental concerns.
What do you think is the best option for trades to meet international energy demands, while still preserving the environment?
In my opinion, cap-and-trade programme is ideal. This approach is “quantity-based.” Instead of setting a price on each unit of pollution, the regulatory authority determines a total quantity of pollution (a “cap”) that will be allowed. Companies buy and sell emission allowances (tradable certificates that allow a certain amount of emissions) based on their needs. The limited number of these allowances creates scarcity. The requirement that regulated businesses hold enough allowances to cover their emissions ensures the cap is met and creates demand for the allowances.1 If it is less costly for a company to reduce emissions than to buy allowances, the company will reduce its own emissions. Similarly, if a company can reduce emissions below its requirements, so it has excess allowances, those allowances can then be banked for future use or sold in an open market to a firm that finds it more difficult (costly) to reduce emissions.
Moreover, what complications can arise for your clients, and how do you help them avoid such challenges?
The oil price collapse triggered a wave of cost reduction among upstream businesses. Most of my clients who are global oil and gas companies slashed capital expenditures by about 40% between 2014 and 2016. As part of this cost-cutting campaign, my clients had to let go thousands of workers and major projects that did not meet profitability criteria were either cancelled or deferred.
To avoid such challenges, firstly, I advised my clients that they will need to ensure that their business models are prepared to manage and benefit from this volatility.
Furthermore, as oil prices recover, I advised them to hold on to the benefits of cost reduction though recognising the fact that some cost escalation is inevitable.
As an expert in international trade in the energy sector, which jurisdictions do you think are addressing environmental concerns the best? What can other countries do to follow suit?
There is no single way to address an environmental problem; multiple approaches are required.
This situation is caused by the parlous state of global environmental governance, wherein current global environmental governance is unable to address environmental issues due to many factors. These include: fragmented governance within the United Nations; lack of involvement from financial institutions, and proliferation of environmental agreements often in conflict with trade measures. All these various problems disturb the proper functioning of global environmental governance. Moreover, divisions among northern countries and the persistent gap between developed and developing countries also have to be taken into account to comprehend the institutional failures of the current global environmental governance.
With environmental concerns affecting everybody, how do you expect international trade in the next three decades to progress?
Protection of the environment and economic growth are often seen as competing aims. Proponents of tighter environmental regulation challenge this view. They highlight the financial benefits of increased eco-efficiency and the emergence of a European eco industry with millions of jobs together with the need to improve how we protect public health and manage natural resources.
European industry and business, meanwhile, often claim that tightened European environmental regulation is hampering their growth, undermining their international competitiveness, and destroying jobs, and will force them to eventually relocate their activities to emerging market
economies outside the EU.
The controversy surrounding environmental policy has, perhaps surprisingly, arisen not so much from the issue of conserving non-renewable commodities such as fossil fuels or industrial metals, but from the increasing scarcity or overuse of renewable natural resources, causing problems such as water and air pollution, or damage to global commons such as the atmosphere or the ozone layer.
While demand for environmental protection is growing, it comes at a cost. The costs and benefits of taking action or not must therefore be estimated when environmental legislation is being drafted.
I think the gradual but credible long-term tightening of environmental standards and ambitions helps to establish new markets for environmental technologies.
Hon. Sami Charles
CEO/ Chairman
ANOG Petroleum
www.anoggroup.com
ANOG Petroleum Ltd. is a major trading company in crude oil (REBCO), D2 Gasoil, reinforced concrete iron, steel billets, bitumen and gas. We source from around the world, but our major supplying and manufacturing refineries are in Russia, Western Europe and Middle East. We also have supplying outlet in Africa.
We now hear from Erika Bérdi, who is an expert in insurance law. With many changes occurring in Hungary, Erika speaks about how she is excited for the challenges ahead, and the ways in which technology is impacting the insurance industry for the better.
The Hungarian insurance sector has been hit heavily by the financial crisis: especially the life insurance market, and the car related insurances suffered losses. On top of that, the scope of the previous Insurance Premium Tax (IPT) has been modified and extended, and insurance tax is payable to various accidental and asset insurances as well. The insurance industry used these challenges as a kind of possibility to organise a more effective operational structure, to elaborate more “crisis-proof” products, to find new distribution channels, new markets, and this revival has been accelerated by the new regulation scheme as well. As a result of these efforts (and certainly a lot other factors as well), the Hungarian insurance industry is growing in the last few years.
These changes gave lawyers a lot of work as well, but in my opinion it is more important that the changes also contributed to the modification of the current legal structures, and to the establishment of new legal instruments and new legal regulations. In Hungary we are in a codification process; in 2014 the new Civil Code entered into force, which is quite open to technological changes and gives certain flexibility to the insurance industry as well. This flexibility, combined with the risk-focused Solvency II regime, gives the possibility for insurers to be present on the market with various and variable products, focusing really to the needs of the consumers and to be able to serve the bigger corporate, or even more the big industrial clients as well.
I see a big future for the insurance in Hungary, but this needs the development of other sectors and cooperation with the market players of other industries as well. For instance in Hungary, the health system is based on the social security contribution and state support, but there is an increasing need for a strong private sector as well. The improvement of this private sector could also be accelerated by the insurance sector, which is offering different health insurance solutions, which has already had an improving effect to the smaller service providers.
Another big challenge for the insurance industry is to be available on online channels as well. This generation prefer the online availability rather than the traditional personal one, and beyond this, millennials whose parents also prefer to be able to communicate using online channels with the insurers. This creates a demand for IT development and data security questions, which needs to be answered together with insurance lawyers.
Even in this latter topic, the preparation for the application of the GDPR regulation brings a lot of work for insurers and other players of the insurance industry. In my opinion it is to be welcomed, as market players need to face the amount of data they handle, even if the protection of personal data had a priority in the sector even before adopting the GDPR regulation. The implementation of The Insurance Distribution Directive (IDD) directive will also be keeping us lawyers busy in the forthcoming months.
I really enjoy working as insurance lawyer during these challenging periods. In my opinion, law is important, however it is not the final goal, but only one tool, beside many others, which makes an insurance company compliant to the applicable market provisions, standards, and needs of clients. For me it is really interesting to find legal solutions in this changing environment. I like to use new technologies; I like that they make our life easier, and therefore it is really a pleasure for me to be able to participate in projects that are using such new technologies to bring insurance closer to people and to their needs.
Dr. Erika Bérdi
www.linkedin.com/in/erika-b%C3%A9rdi-8424ab75/
Erika graduated in 2004 in the Eötvös Loránd University, Faculty of Law in Budapest. From 2003 to 2013 she worked in in Cseri & Partners Law Office, when she opened her own firm. She and her office specialise in insurance law, labour law, real estate, commercial and banking law.
Erika is a member of the AIDA Hungarian Chapter (Association Internationale de Droit des Assurances), and regularly participate on its local and international events.
The housing market is subject to fluctuation and in recent years, under scrutiny for being tough on the newer generations due to their difficulty of setting foot on the property ladder. We get in touch with Allan Reece, who is an expert in mortgages; we discuss issues that need to be addressed to improve the mortgage market and he offers unmissable advice to first time buyers.
As an Expert Witness in mortgages, what are common cases you are called for?
Mortgage fraud; lending policies of mortgage providers; advice provided by brokers and other intermediaries; Professional Indemnity cases related to all aspects of lending; valuation fraud; subordinated debt; failure of lenders to comply with legislative and regulatory requirements; protection issues relating to mortgages; banking practice/operations; lending/debt recovery; consumer loans/Consumer Credit Act; sales practices of lenders and intermediaries; credit analysis/approval ratings; lending negligence; debt recovery/realisation; debt counselling; personal insurances; life assurance; medical insurance; credit/financial guarantee insurances.
What do you say is key to becoming a well-recognised and trusted mortgage broker?
To be appropriately qualified and experienced and to always act with the utmost integrity.
To always be open and frank with clients, lenders, conveyancers and estate agents and any other party connected with mortgage lending.
To never make false promises or inappropriately raise client expectations.
To demonstrate empathy with clients showing a clear understanding of their needs, aims and objectives.
To always be available to clients to answer questions that may be raised during the mortgage process.
Longevity: years of experience encapsulating all the changes and aspects of the mortgage market is invaluable in becoming a well-recognised and trusted mortgage broker.
What points of key advice would you offer first-time buyers?
• Seek advice from an experienced mortgage broker before looking for a property to purchase.
• Establish maximum borrowing potential available for first-time buyers in order for them to seek appropriately priced properties.
• To understand clearly how the market works.
• To establish the exact costs required to purchase a property including all relevant insurances.
• Ponder on if the property is in an area where the buyers feel safe walking home at night.
• To view any potential property during the day and at night.
• To view any potential property at a weekend to ensure that parking is not difficult in the area.
• To investigate whether the property or area in question has a reputation for flooding.
• To think if there is adequate schooling in the area.
According to Halifax first-time homebuyers are at the highest level since 2007, what do you think accounts towards this and what else should be done?
One of the major reasons for the increase in the number of first-time buyers is the realisation that low mortgage interest rates has meant that mortgage payments generally are cheaper than renting (particularly in London and the south-east) subject to first-time buyers having a suitable deposit to contribute towards the purchase price. In this regard there has been an up-surge in cases where the “bank of Mum and Dad” provides their children with deposits in order to assist first-time buyers and avoid them having to rent. I am strongly in favour of the Government extending its ‘Help to Buy’ scheme to assist first-time buyers and indeed second-time buyers where appropriate, and I would also recommend that first-time buyers are relieved of the burden of Stamp Duty Land Tax up to a maximum purchase price of £500,000.
What other issues should be addressed to improve the mortgage market?
In my view there are two major areas where the mortgage market can be improved dramatically in addition to removing Stamp Duty Land Tax for first-time buyers. The two areas are as follows:
Estate Agents
There is growing evidence that many estate agents are still indulging in the unethical practice of conditional selling. Many of my clients have reported that in order to buy a particular property the selling agent insists that the purchaser uses their in-house mortgage adviser and their recommended solicitor otherwise the proposed purchaser’s offer will not be recommended to the vendor. It is a practice that was outlawed some years ago, yet it still continues today. Estate agents should be prevented from indulging in this unethical practice and should be properly regulated. The practice of insisting that prospective purchasers only use the estate agent’s in-house mortgage adviser is a clear conflict of interest. Also, estate agent in-house mortgage advisers are rarely able to provide holistic financial advice which, in turn, could severely disadvantage the purchaser. Indeed, the Group Operations Director of a major firm of estate agents recently called for estate agents to be regulated.
The Government
The Government has introduced various policies over recent years which have severely affected the housing market. The changes in SDLT introduced by George Osborne were ill-considered and did not take into consideration long-term consequences. Osborne’s stated intention was to make more houses available for purchase but as so often happens with Government policy he achieved the complete opposite. However, Osborne did succeed in taking more money from purchasers by substantially increasing tax revenue for HMRC despite the number of property transactions falling considerably since the introduction of Osborne’s ill-considered policy. Recently two of my older clients seriously considered down-trading to free up their larger properties but as the cost of down-trading was in excess of £50,000 each they decided to stay in their home of 30 years.
Similarly, the introduction of the 3% surcharge, again designed to free up more properties and discourage individual borrowers from purchasing Buy to Let properties was to the detriment of the rented sector. As a result of the surcharge there has been a significant reduction in the supply of properties to rent which has inevitably increased rents, as supply does not meet demand, and again, the objective set out by Osborne has not been achieved. Philip Hammond has a great opportunity to put things right in the forthcoming budget.
The solution to the housing problems in the UK is very simple as it is a question of supply and demand. Governments over the last four decades have constantly tried to find a solution to the UK’s housing problems. Many schemes have been introduced, some partially successful, some completely unsuccessful. The area of Government policy where the greatest impact on the housing requirements of the UK can be made is in the area of Planning. Governments have consistently failed to introduce Planning Laws that will have a substantial impact on the supply of housing. The current Planning process is unnecessarily complicated and long-winded and places far too much power in the hands of Local Authority Planning Departments. A developer client recently advised me that an application for the development of a small block of flats lodged in March of this year still has not received formal planning approval, despite the planning officer confirming to my client that he had approved the scheme; but the requirement of the local authority concerned was that final approval had to be made by the Planning Committee. The reason the application had not been approved by the Committee was due to the fact that the planning officer could not complete his report for the Committee due to an excessive workload. The application in question will eventually appear on the Planning Committee’s agenda next month having been delayed three months by the failure of the planning officer to produce the necessary report. This situation is replicated all over the UK which makes the housing problem much worse than it need be. By delaying developments, the inevitable effect is that the price of houses in the UK is artificially increased due to the effects of supply and demand and normal market forces.
What motivates you most about your role?
Creating satisfactory outcomes for our clients in a timely and effective manner. Building a long-term relationship with our clients in order to satisfy all their financial services requirements throughout their lives.
Do you have a mantra you live by when it comes to helping your clients?
Reviewing a client’s financial requirements can be very complex as all aspects of a client’s financial life must be taken into consideration. Solutions vary considerably as no two clients or their circumstances are the same and each solution is tailored specifically to the client’s stated aims and objectives. The mantra most common to Allan Reece Associates is ‘there must be a way’. Every effort is made for every client to establish an appropriate plan to suit individual needs.
Allan Reece, Chief Executive, Allan Reece Associates
Independent Financial Advisers and Mortgage Brokers
Web: www.arallp.co.uk Email: allan@arallp.co.uk
Allan Reece is the Chief Executive of a firm of Independent Financial Advisers. Allan’s career spans 45 years in the financial services industry 25 of which were primarily focused in the UK building societies sector. As Chief Executive of Cheshunt Building Society, Allan grew the assets from £70 million in 1980 to £435 million in 1991. Since leaving Cheshunt Building Society in 1991 Allan set up his own financial services practice specialising in mortgages, both residential and commercial. In all Allan has been directly and indirectly responsible for residential and commercial mortgage loans to a value of circa £2 billion during his career. Allan has an intimate knowledge of all aspects relating to mortgages both from a lenders’ and a borrower’s perspective and has acted as an Expert Witness in the mortgage field since 1991.
Allan Reece Associates is a firm of Independent Financial Advisers established in 1991. Allan Reece Associates is a FCA authorised and registered firm of Independent Financial Advisers and Mortgage and Credit Brokers. Allan Reece Associates provides a range of financial advice, management and planning services to individuals and businesses. Services offered are designed to grow and protect the wealth of all clients in the most tax-efficient way possible. Services include the provision of personal and commercial mortgages, business finance, insurance and protection, estate and succession planning, debt management, tax planning, business start-ups and key personnel insurance.
“Nigeria is and will always be an attractive place to do business”, says Abiola Niagwan.
As a nation classified as developing, this means that there is a tremendous potential for businesses to grow. She explains more about why businesses should invest in Nigeria, and where they should be cautious in order to avoid any possible pitfalls.
Why is Nigeria attractive at the moment, as a place to do business?
There are so many areas that have yet been untapped, so many infrastructures yet to be developed. Nigeria is just about getting into its stride of modernisation and the current generation is not sleeping. They are working hard, starting businesses that will change the nature of the society, investing in growth areas like Agriculture, Manufacturing and innovative start-ups. Most raw materials needed for businesses to function can actually be sourced locally in Nigeria. This is why the Made in Nigeria movement is trending at the moment.
If there is anywhere in Africa for any foreign company to invest, it is in Nigeria.
The recession made a lot of Nigerian Companies to be more in-ward-looking and visionary in their approach to business particularly in the private sector. The public sector was also not to be left behind in the sense that it made the public sector more proactive in their responses to government/public sector activities and was a wake-up call for civil servants to be more productive. Government regulatory agencies/authorities are more alive to their responsibilities and better cooperation between the public and private sectors. There are also established channels for reporting misconducts in the business/corporate environment as well as the public sector which has generally helped to boost the confidence of stakeholders in the corporate world.
The recession was a clarion call for all and sundry (public and private sectors) to meet the challenges posed by the recession. Private Public Partnership (PPP) and CSR are being given the impetus and drive they require to foster a better corporate and social environment and I must say all strata of society are involved in one way or the other. There is more awareness and enlightenment about business activities even at grassroots level.
What benefits does the Nigerian tax system and corporate regimes offer to businesses?
The Nigerian Government identifying the potentials the country has for attracting foreign investors has realised that creating a tax system that is investor-friendly will only promote further growth. The current company tax rate in Nigeria is lower than most African countries. The Government also allows for no tax payable in the 1st year of all companies and three year tax holiday for companies involved in pioneering businesses. In terms of registering a company, this used to be a lengthy process but has now been simplified with the introduction of online name availability approval, a singular incorporation form as opposed to the previous 4/5 forms, and the e-filing and e-stamping of the new form which has done away with the need to physically go to the tax office to stamp the forms.
What are the potentials pitfalls, and how can you ensure your clients avoid them?
• Nigerian laws and Acts need to be studied carefully especially the tax laws. I would advise any company looking to come into Nigeria to get a good Lawyer and Tax consultant.
• I think one of the bigger disadvantages of doing business in Nigeria is Power Generation. Nigeria still struggles very much in this area, even though the Government is working hard at stabilising power supply.
• The Banks could also pose a problem. Banks have a lot of restrictions and ceilings on banking activities placed on them by the governing body, Central bank of Nigeria (CBN). It is best to work closely with your account officer and reputable accounting firm.
Abiola Niagwan
Legal Practitioner
Mrs Abiola F. Niagwan is a Legal Practitioner of over 30 years standing having been called to the Nigerian Bar in 1981 after her first degree programme at the University of Lagos, Akoka Lagos.
She was thereafter employed by the Federal Ministry of Justice as a Pupil State Counsel in 1982 and posted to the then Federal Ministry of Works and Housing as Assistant Legal Adviser.
In 1994, Mrs. Niagwan left the Federal Civil Service for the private sector. She joined the C & C Group in 1995 as the Group Company Secretary/Legal Adviser and is still there to date. She has been an active member of the International Bar Association and some of its Committees since 1990. She is fully involved in the activities of the International Construction Projects and Corporate Counsel Committees.
She is one of the Golden Link Ambassadors of the National Cancer Prevention Programme (NCPP) involved in generating awareness and enlightenment on cancer in its various forms and also in raising funds for the establishment of screening centres across the country.
“International HNWIs must plan for additional events which do not concern a domestic client, such as pre-arrival planning, or where they plan to leave the UK”, says Joe Cobb an Associate in the Private Capital team at Addleshaw Goddard.
“Such clients often have an array of professional advisers and the ability to work with other professionals is key to delivering top quality service for international clients.”
He discusses more about his role and work with high net worth individuals (HNWI).
What different requirements do international HNWI clients have, in comparison to domestic clients?
Similarly to our domestic clients, international HNWIs have an array of business and investment interests that need to be balanced with their wider family circumstances. There are, however, added layers of complexity on which a skilled adviser must advise. Clearly, international HNWIs may require guidance as to domicile and the implications of that domicile on inheritance tax and estate planning. Additionally, the complexities of an international investment or asset base require an ability for advisers to be able to assist with succession and tax laws in multiple jurisdictions. Addleshaw Goddard is fortunate to have a network of international offices and "best-friend" firms which allow us to draw on this additional expertise.
How do you use your expertise to meet their demands?
Given that no HNWI is the same, we understand the need, and have the capability, to provide a bespoke and tailored service to suit the needs of each particular client. Our private client team forms part of a full service commercial law firm and our solicitors are immersed in a commercial environment from day one. This environment gives our team a unique but dynamic edge, one which we use to ensure we can provide HNWI clients with leading private client expertise, as well as the corporate services that they may require.
Could you explain why more clients are establishing Family Investment Companies and what the advantages are?
We have been seeing an increasing number of clients look towards corporate vehicles to structure wealth and mitigate against income and capital gains taxes. There are significant opportunities available to clients who wish to plan for family succession using vehicles which are flexible and allow for additional inheritance tax planning, whilst being familiar to those clients used to dealing with a corporate environment.
A company can be used to hold family wealth for the medium to long term, with investments generating income and gains which are taxable at corporation tax rates and then reinvested. The company can be funded by way of loan, meaning that clients can draw down on a regular "income" without paying higher rates of income tax, whilst the growth in value can be outside of their estates. Flexible share classes allow dividend payments to children and/or family trusts, allowing the clients (who are typically the directors and the controlling shareholders) to distribute cash amongst the family at their complete discretion.
When drafting various bespoke settlement deeds to hold group life assurance policies for corporate clients, what challenges arise for you? Moreover, what expectations do corporate clients have, which could be over-adventurous?
Drafting a bespoke settlement deed always presents its own challenges. Firstly, you have very little to start with, so have a large amount of provisions to consider. Secondly, the clauses needed are often substantially different from a classic trust which a HNWI would use to, say, mitigate against tax or protect assets for the next generation.
It is important to think carefully about tax legislation and the impact this will have on the settlement, and how the provisions of the various life assurance policies will interact with the drafting.
Crucially, it is important not to lose sight of the ultimate aim of the client, amongst the different layers of complexity. The settlement deed must be effective, but also must be simple enough to be understood and workable on a daily basis.
Can you share your experience when advising a charity with turnover in excess of £5m in relation to amendments to its constitution and governance issues? Why is this a case you are proud of?
I enjoy acting for charities as clients of the firm as the work is diverse and rewarding. This particular matter involved a full review and update of a charity's constitutional documents, bringing them up to date and improving them in line with the charity's evolving aims and work. It gave us the chance to really strengthen the client relationship and consider in detail our client's work and internal structures. It is always satisfying to complete an instruction such as this one, assisting any client, but particularly those which do such important work in the community.
Joe Cobb
Associate
Addleshaw Goddard LLP
+44 (0)7540 558114
+44 (0)161 934 6060
http://www.addleshawgoddard.com
Joe Cobb is an Associate in the Private Capital team at Addleshaw Goddard, splitting his time predominantly across the Manchester and Leeds offices. He works with ultra and high-net-worth individuals advising on Wills, succession planning, tax mitigation and the taxation and administration of trusts and estates, together with charity law and probate issues, both contentious and non-contentious. Having trained with the firm, he qualified in 2011 and has extensive experience working with a variety of clients
Addleshaw Goddard has one of the UK's most significant private client groups, with trusted advisers guiding ultra and high-net-worth individuals, trustees, corporate entities, family offices, trust companies and charities. The team provides bespoke services and solutions on both a national and international scale, with a client base including entrepreneurs, business executives, land owners and trustees. In the Chambers legal directory, a source describes the team as "extremely technical and able...to express complex advice with simplicity and clarity".
By Martino Jerian, CEO and Founder, Amped Software
In last month’s column, we discussed the main issues around the use of digital images and videos as evidence in general. This time we will focus our attention on footage retrieved from CCTV (Closed-circuit television) and the best ways of handling it to ensure it stands up to scrutiny in the courtroom.
Acquiring evidence from a digital camera or a smartphone is relatively easy to do. Images are usually in standard JPEG format and videos in MP4 or some other format that most players can read.
But how do you get videos from a CCTV? There are numerous possibilities and it depends on where the video is actually recorded. As of today, there are several options for storing/recording videos:
The most probable situation is that the video you need to acquire is on a DVR, so we will focus on this case. The NVR and VMS have issues and features very similar to the DVR from our point of view, so the following could be applied to these systems as well.
Now that you know where your data is, how do you get it out of there? This is another complication.
Depending on the system, there are different ways to export the footage on a USB drive, a CD rom, via network cable and so on. For critical cases it is even possible to do a forensic analysis of the hard drive with the techniques typical of computer forensics and try to recover deleted data or videos on a broken device.
What often happens is that some people who arrive at the scene don’t know how to properly perform an export of the video. So, what do they do? They take their mobile phone out of their pocket and film the monitor playing back the footage of interest. Maybe at this point this is the only piece of evidence that we have, because the video on the DVR was overwritten the next day.
While you may think that you can see something, this approach is very bad: it may be acceptable only when motivated by extreme urgency and should be then followed by a proper acquisition. Otherwise you are relying upon a video of the evidence instead of the evidence itself. In a ballistic analysis, would you present the actual gun and the bullet as evidence, or just the photos taken of the bullet and gun? This is exactly the same situation.
So, let’s proceed to export the video in the proper way with the facilities provided by the producer.
A big issue with DVR video is the fact that the files created by these systems are not normally in a standard format. This means that you need a specific video player program to view them. These pieces of software have a bunch of issues of their own, so what many do, is just capture what is being played on the screen and create a new video which is a recapture of the evidence. This is a bit better than filming the monitor with the mobile phone. However, in this case, not only is there a risk of missing data – entire frames – but also creating new misleading data with new compression and capture artifacts. You will also lose a lot of information not visible on screen but found inside the file, like precise timing information that can be critical in a case. Granted, sometimes screen capture must be done because there are no alternatives, but it must be the last resort and not the standard practice. It must be done with care, and getting it done in the right way is quite difficult.
In order to properly convert the video into a standard format to be more easily viewed and analyzed, you need to be able to do it by preserving the original data as much as possible and, if not possible, at least to minimize the loss of quality.
If you are handed an AVI or a standard MP4 as the original video from a CCTV, it is very likely (though not impossible) that this is not the original file coming out of the system in its native format. You need to always make sure that you request the most original version, if available, to get the best quality, in depth analytical information, and to respect the chain of custody.
Properly handled CCTV footage is one of the most compelling forms of evidence for the judge and jury. How well CCTV evidence is gathered and handled has a major impact on successful regulatory control, enforcement and/or prosecution. However, its value becomes zero if its mishandling presents it from being admissible in the first place.
