Understand Your Rights. Solve Your Legal Problems
Rediscovering something which reminds you of the good old days, is a pastime everyone is guilty of. Some delve deeper than others, and collecting or rekindling love for a classic car is a perfect example of blasting into the past. Some collect for a show piece and others enjoy revamping the old into the new; nonetheless, there, as with anything else, regulatory requirements to ensure you don’t crash into a brick wall. We speak with Mag. Stephan Zinterhof who discusses regulations collectors often forgets about, and changes he would like to see in this industry.
What are regulations that non-experts are often surprised or not aware about in classic car law?
Many countries of the EU have limitations on the use of classic and collector cars in traffic. In Austria, a historic vehicle may not be used in traffic on more than 120 days per year. In case of substantial changes to a classic vehicle (chassis, engine, braking system etc.), the vehicle can lose its registration as a historic vehicle.
What are the different taxation rules for classic cars?
Motor vehicles that are imported to the EU are subject to customs duty and import sales tax. Pursuant to the heading 9705 of the combined nomenclature contained in Annex I to Council Regulation (EEC) No 2658/87 of 23 July 1987 on the tariff and statistical nomenclature and on the Common Customs Tariff, collector cars are exempt from customs duty. A motor vehicle is defined a collector car, if the vehicle is in its original state, without substantial changes to the chassis, steering or braking system, engine etc., and is at least 30 years old. Additionally the motor vehicle has to be a model or type which is no longer in production and is presumed to be of historical interest.
Import sales tax rates for classic and collector cars differ within the various countries of the EU. In Germany, the Import Sales tax rate is currently 19 %. In the Netherlands, an Import sales tax rate of 6 % applies to classic cars. Austria has an Import sales tax rate of 10 %.
What are the common problems and issues new owners of classic cars can often face? What three things would you advise new owners to consider before purchasing antique vehicles?
As values of many classic and collector cars have risen enormously in the past years, classic cars have become the subject of fraud and counterfeits. Many fake cars and clones of highly valuable cars pop up on the market. Before purchasing a valuable classic car, it is advisable to perform a thorough research on the authenticity of the car. Check the Vehicle Identification Number (VIN) of the car. Gather as much information on the car type as possible. For many car brands you can find extensive literature. Many car clubs have registries of VINs. If necessary, get an expert opinion of the car. Be warned when the seller can provide only sparse information on the history of the car.
Can you think of any regulatory changes that would benefit buyers and sellers of classic cars?
For a few years, newly manufactured and fully licensed bodies for various classic cars are available. There is a controversy whether a classic car that has been rebuilt with a newly manufactured body can qualify as a historic vehicle. In some jurisdictions this is not the case. Those cars cannot be registered as historic cars. There is the problem that in those cases it is nearly impossible to comply with the legal requirements for a new car. In most cases these cars cannot be used on public roads. It should be an aim to simplify the legislation.
Is there anything else you would like to add?
Auctions have become popular for buying classic and collector cars. For the seller, auctions offer the opportunity to sell a classic car fast and at a high price. Buyers hope to make a good bargain when buying a classic car. In most cases, auction houses do not give warranty or guarantee for the cars sold. Buyers should be aware that buying at auctions means unpredicted risks for the buyer.
Mag. Stephan Zinterhof
Rechtsanwalt/Attorney At Law
Rudolfsplatz 3/8
A-1010 Wien
T +43-1-532 30 20
www.ra-zinterhof.com
www.oldtimer-und-recht.at
Mag. Stephan Zinterhof, Law offices, is a law firm in the heart of the city of Vienna. Mag. Zinterhof advises on all aspects of civil liability law, commercial law and real estate law. Mag. Stephan Zinterhof graduated from the University of Vienna in 1999 and was admitted to the Bar of Vienna in 2006. He works with national and international clients and speaks German and English.
Masaki Mikami concentrates his practice in the field of trademark law, providing trademark legal services to individuals and businesses. Masaki is a qualified IP attorney in Japan, and is registered to practice as IP litigator since 2004. He reveals the ways in which his previous global marketing experience makes him the ‘go-to’ IP attorney in Japan, and how he manages to keep on top of all the registered trademarks covering across 120 countries.
How do you use your global marketing experience from your previous role with Mitsubishi Electric Corporation, to enhance the way in which you guide your clients through corporate matters?
Marketing experience and expertise as an IP attorney enable me to provide a market-oriented legal service from the client’s viewpoint.
Through global marketing experience, I have learned the global economy and how to penetrate into overseas markets, and understand the business realities facing clients.
The knowledge of foreign markets, economic circumstance, language, culture, and way of living is helpful in providing advice on the selection of a trademark suitable to the market.
It often happens that lawyers and attorneys have sufficient legal background, but no business backgrounds and are not experienced to promote products by themselves. Such lawyers are likely to appeal clients the necessity to protect trademarks and inventions as much as possible. Through my experience, I am confident that registering IP should not be considered a goal, just a tool to support clients’ business. Without success at main business, any effort to obtain IP right results in failure. What clients want most is success in their business, not obtaining IP rights. In order to meet the client’s specific business needs, a trademarks attorney is required to have a detailed knowledge of business, custom of trade, common practice in the commerce, and relevant information surrounding the transaction. Marketing experience navigates me to the right direction to find out suitable solutions to the best benefits for my client.
I believe the biggest advantage I mastered from marketing experience is “never discouraged by any failure”. Positive attitude based on global business experience will be my strong point and a reason why clients trust in me.
What are three key things to consider when devising a strategic trademark portfolio?
Top priority is the success of main business from the client’s viewpoint. Trademark portfolio should always be along with client’s business. Of course, it includes a matter of budget.
In light of a risk to non-use cancellation, it is vital to confirm whether the client uses a registered mark or its equivalent adequately in a timely manner.
In case the client is a global corporation or luxury brand owner, there exists potential risk to suffer trademark squatting even in countries where client has not commenced business.
How do you ensure you are up to date on all trademark applications in Japan, in order to ensure you give the best advice to clients?
I am assigned as a trademark committee member of IP Research Institute in JPAA (Japan Patent Attorney Association) since 2016.
I coauthored two books on the Japan Trademark Law:
“NEW DETAIL COMMENTARY OF TRADEMARK LAW” (Published in October, 2016)
“LEGAL CONSULTATION OF TRADEMARK” (Published in September, 2017)
I review all administrative and judicial decisions relating to trademarks in Japan and write about interesting decisions and topics relating to trademarks in my blog post every week.
For domestic clients, I release newsletters twice a month (in Japanese only).
In addition, every two months I invite clients to our workshop, where I explain trademark procedures and noteworthy cases useful to client’s business.
What further challenges do you face when involved in a company wanting to trademark their invention/ company, on a more global scale?
So far, I have dealt with more than 2,100 trademark cases covering 120 countries. More than 60% of the 2,100 cases are out of Japan (foreign matters). That means I am quite experienced with trademark prosecution and litigation in other jurisdictions as well.
The challenges I face in dealing with foreign matters are: (i) I need catch up with foreign attorneys in English and be up-to-date with practice in trademarks, (ii) I rely on foreign attorneys hopefully specialised in trademarks.
Sometimes, it is an uneasy task to look for a reliable foreign attorney. I manage to keep in touch to establish a good relationship for mutual benefit. At present, I am in contact with more than 3,000 foreign attorneys.
With Japan previously being the head of IP and patent world, what more do you think could be done to ensure Japan remains ahead of its game?
The Japanese economy relied on hardware businesses with advanced technology and massive domestic market, which used to work well. But, due to past successes, Japan has delayed shifting to the new global economy governed by the internet. At this moment, I have no concrete idea so that Japan can remain ahead of the game.
But, from my experience, I am so proud of the Japanese way of thinking and working. We are prone to be diligent in our work and perform a detail-oriented task. High-quality and creative service or attitude, which I call “Japan Quality”, will be a key factor for Japan to contribute to global economy in the future.
When dealing with small businesses, what do they often undermine, in relation to their IP needs?
From the aspect of trademark, it occurs often that small businesses misconstrue trademark being a product of big businesses.
Small businesses carelessly neglect to register or investigate their trade name, corporate identity (logo), a new name of goods/service and trade dress.
What legal advice do you provide foreign entities who aim to start business in Japan from an aspect of trademark or IP?
Japanese IP legislation adopts a first- to-file system in trademark as well as patent.
It means a first-to-file will win decisively.
As to trademark, approximately 140,000 applications are newly filed to the JPO in a year. More than 1,700,000 trademarks have been registered effectively.
I advise to conduct an availability search of your trade name, trademark, and service mark in Japan, on the outset.
If the entity owns trademark registration in home country, it becomes an option to apply for international trademark registration of the Madrid Protocol by designating Japan as a country to be registered.
MASAKI MIKAMI
Founder
9F Edobori Center Bldg.
2-1-1 Edobori, Nishi-ku Osaka 550-0002, Japan
Tel: +81 6 6225 1051
www.marks-iplaw.jp
Masaki was born in Himeji of Japanese parents and educated at Himeji-Nishi High School, Keio University. Prior to entering the legal profession, he worked in the business world. Masaki has global marketing experience while working with Mitsubishi Electric Corporation for a decade. His extensive experience in that field allows him to understand the business realities facing his clients, helping him to negotiate the most favorable deals possible for his clients, providing meaningful, timely legal advice that is consistent with the client’s specific business needs. He worked with a Kobe-based patent office after qualifying as a Japanese IP attorney in 2003 and has been focusing on trademark matters for over twelve years before setting up his firm.
Masaki has fourteen years of legal experience in the area of trademark law. In addition to trademark prosecution, Masaki’s trademark law services include infringement and validity opinions, strategic trademark portfolio, negotiations, legal advice with respect to trademark assignment, licensing and confidentiality agreements. Masaki regularly advises businesses and corporations on the availability and proper use of trademarks, service marks, taglines, and logos. Masaki prosecutes applications to register these marks in Japan and worldwide. Since beginning his law practice, Masaki has represented a wide range of clients, ranging from small start-up businesses to large international corporations in over 2,100 trademark matters covering more than 120 countries.
Marks IP Law Firm, with the goal of providing big-firm level of service with the nimbleness and individualized attention and responsiveness that boutique firms are known for, is headed and founded by Masaki Mikami.
Marks IP Law Firm is a recently established boutique intellectual property law firm specializing in all trademark matters with an office in Osaka, Japan. We provide high quality legal services and practical solutions to legal problems, in a cost-effective manner.
With its focus on trademark law and related prosecution and litigation, Marks IP Law Firm is dedicated to providing a personalized, client focused service, offering the highest quality of advice and comprehensive representation to our clients in Japan and internationally.
The firm is actively engaged in prosecution and maintenance services in the areas of trademarks. Our specialized IP counseling covers searches and licensing strategies, and enforcement of trademarks, which can include cease & desist matter, infringement litigation, anti-counterfeiting, implementation of custom procedures, opposition/cancellation proceedings before the JPO and the IP High Court, arbitration, domain disputes and related negotiations.
Moreover, we frequently collaborate with reliable foreign lawyers, whom we consider our global partners, to represent their most important clients. Through these relationships and contacts, Marks IP Law Firm has access to a large network of lawyers practising in China, Korea, Hong Kong, Taiwan, Singapore, Malaysia, Thailand, Indonesia and other jurisdictions worldwide and will stand out as one of the few Japanese IP firms which can provide legal services to clients who are doing or planning to do business in the growing Asian economy.
Our motto is simple: “Do everything in our power to produce an excellent result not only to our clients, but also to global society.”
Because of the actual evolution in the market, a big focus of Dr Kemper’s is urban planning and monuments protection law. As an expert in administrative law regarding the problems associated with construction lots, such as: construction logistic, noise and dust, he states: “There is a great lack of places to live in the greater cities in Germany. So, the trend is packing more and more housing constructions in the cities, and redeveloping buildings that are protected as monuments. The latter brings a lot of issues about the collision of new building standards and the targets of monuments conservations.
“Because of my studies in law and archaeology monuments protection law takes a special place in daily business.”
Besides consulting Dr Kemper is an assistant professor for monuments protection law at the University of Tuebingen and Kiel and is an author. He has also consulted in the legislative procedures for monuments protection legislation in federal state of Hassia and Schleswig-Holstein.
In what ways does the international scope differ to the local regulations in Germany that are currently in place?
Recently we have had a lot of lawsuits about the permit of the German market of construction materials. Because the EU does not solve all problems regarding the requirements of construction material, there are still national requirements that are not very well noticed.
Consulting in redevelopment projects we register quite often the problems of foreign investors with the German private construction law on the one hand and the urban planning/public construction and environmental law which is stamped by the federal legislative competence (f. e. we have 16 different monuments protection laws). So, we explain our clients a lot the legal structure in Germany to build up a good understanding by the client.
What challenges do you face during mediation? Is mediation a common method of resolving disputes in Germany?
Regarding administrative and infrastructural law, mediation is still in the beginning of its evolution. Some variations take place in the contraction between townships or in the procedures of public hearings during planning processes. But the communication with the public authorities on behalf of a development partner has to be quite meditative to guarantee success. Because the administrative law court proceedings take a very long time you have to look for chances to avoid it. So, you need good communicative skills and strategies to succeed in such a project.
I consult planning processes for railway projects. To reduce the conflict risk with the affected community members, we often use methods of mediation. I think a great advantage of mediation during mediation-like negotiation is the duty of discretion for the parties. Municipal authorities are especially interested in keeping lawsuits regarding to greater construction and planning projects, in secrecy. Finally, I think we can still learn a lot from the practice of mediation in the Anglo-American law sphere.
How has Germany addressed environmental concerns, in relation to changes in environmental legislation? What has the jurisdiction done to ensure corporate needs meet environmental concerns?
The first matter is on the balance of many interests and the challenges of future environmental and planning problems. From there, we can fix partnerships with companies regarding green energy and electric mobility. In electric mobility, Germany has passed the technical development from planning regulations cumbering the switch to electric mobility. A main goal in urban planning should be to plan the wires as early as possible to ensure the maintenance and the sufficient existence of charge columns. At the moment, the planning authorities are quite hesitant to do so. The result is there are many conflicts with the real estate owners, because it is not clear who has to tolerate a wire on his ground and who doesn’t. I think Germany could learn from Norway on examples on how it can do better.
Dr. Till Kemper M.A.
Rechtsanwalt & Mediator
Fachanwalt für Bau- und Architektenrecht
Fachanwalt für Vergaberecht
Fachanwalt für Verwaltungsrecht
Stephanstraße 3
60313 Frankfurt am Main
+49 (0) 69 / 97 58 22 - 122
E-Mail: kemper@hfk.de
Dr Till Kemper studied in Kiel, Tuebingen and Madrid (Spain) law and medieval archaeology (2003 to 2010). After university, he underwent practical juridical training in Munich and did his PhD in administrative Law (2011-2013). He started his professional life in Giessen in a law firm consulting in many branches, and specialised in construction law and administrative law. Since July 2016, he is a lawyer at HFK Rechtsanwaelte LLP in Frankfurt am Main.
HFK is a boutique with six offices all over Germany and approximately 50 lawyers specialised in real estate, construction and public procurement law.
In the USSR, there was a large and strong support system of inventive incentives. A continual chain was created, beginning from a factory rationaliser and ending by an academician. The chain at each its part gave a contribution to scientific and technological progress and provided an opportunity to use a creative potential to anyone who felt like it.
But the state was not just limited to the support system. The state forced to invent. At the end of the seventies the number of inventor's certificates was one of the most important factors for rating of activities of a huge amount of research organisations. A Patent Department was organised in any Engineering Department or research organisation, in any university or manufacture. All innovative developments went through such a Patent Department.
In parallel, there was a strong innovation support system in all fields and in all levels of the state, beginning from free of charge help in preparing the application documents using All-Union Society of Inventors and Rationalisers, and ending by large system of in-house bonuses and even discounts for apartment rent for inventors and rationalisers. The aforementioned ways allowed the state to keep the world parity rate in the scientific-and-technological field, and consequently to keep factual independence on the global stage.
Despite the fact that the exclusive rights to all intellectual property items belonged absolutely to the state and citizens did not have a possibility to commercialise their inventions, real inventors in the USSR were encouraged by the state. They got a percentage from profit which was given by use of their inventions or after obtaining an Inventor’s Certificate they got a financial gift which was almost a half of average monthly wage in that time. Apart from that they were rewarded with a special badge of honor ‘An Inventor of the USSR’ or with an honorary title: ‘A Honoured Inventor of the Republic’.
ß a badge of honor ‘An Inventor of the USSR’
Moreover, on the last Saturday of June, a specific holiday which called All-Union Inventors and Rationalisers Day was celebrated.
Thus, by the eighties of the last century the Soviet Union achieved leader positions in the world in scientific-and-technological field and kept this level till 1991.
Unfortunately, after the perestroika started and the Soviet Union was disintegrated, the situation dramatically changed. The centralised system of scientific-and-technological development control was destroyed, and expectations the market mechanisms would work automatically were not come up. Weak funding and a reduction of scientific personnel caused Russia to backslide to a very low level.
As time passed the legislation of Russian Federation regarding intellectual property was designed and improved. In October 1992, the Russia’s Patent law was enacted. Since January 2008 the IV Part of Russian Federation Civil code has been in effect. The IV Part of the Civil code consolidated all separated laws existed before in respect to different intellectual property items (for instance, Patent law, Trademarks law, the Law of copyright, etc). In July 2013 the Court for Intellectual Property Rights started to work. As a result, right-holders have obtained a legal basis for protection of their rights and Russian legislation was harmonised with international treaties, conventions, etc.
At the moment there is a stable trend of increasing the number of internal applications. Inventive activity become more intensive and some new government programmes for its support and stimulating have been developed. So, our country gradually but steadily hauls itself out of the crisis.
But let us get back to the history. After breakup of the Soviet Union there was only one company in Russia active in the field of IPR protection and playing the role of collective Patent Attorney. It was state run ‘Sojuzpatent’. Development of the market economy forces in our country created the basis for establishment of private businesses and some active and gutsy IP professionals took a chance and started their own business, but no one knew in that point in time how to form, how to grow their own company in an absolutely new environment. No doubts, that to do such a thing you have to have certain degree of courage and adventurism. And the list of required virtues for the fresh IP entrepreneur was in reality much longer since to convert professionalism into a lucrative business you needed to have knowledge of market rules, basic understanding of company management and it was, obviously, not the same as if to sit in your office composing claims, preparing materials for the Russian Patent Office. And, of course, you needed clients. The state was no longer responsible for bringing you clients. It became your responsibility from now on. Not all IP professionals were prepared to follow this path. At the beginning there was temptation to work with Russian clients only. They speak the same language; they are somewhere near. But, early nineties were the years when the most potential Russian clients experienced lack of funds; state financing was ruined and thus clients mostly hesitated to waste money for protection of their IPRs
It was clear, that if you wanted to feed your business, you had to think about exploration of international markets, to think about search for foreign clients. That way would permit to find reliable, experienced clients with hard currency (and it was life-saving condition then), with interesting applications (which is so important for IP professionals with ambitions, respecting themselves) but this path is not simple at all. You can’t rely on distribution of information/newsletters only. You can’t get a foreign client with the assistance of magic wand. You have to attract attention of your client somehow, catch his eye, win their trust in you with your sustained quality work. If this is a new client for Russia, that’s one thing, one approach; if this is a client willing to change Russian local agent, that’s another story.
The first thing a potential client saw while opening advertising resources was reference about ‘Sojuzpatent’ and few years later into nineties we would meet newly formed IP mammoth ‘Gorodisskiy and the Partners’ which was hatched out of ‘Sojuzpatent’ and few Moscow offices of Big Legal companies from abroad. So, what was to be done? How do you reach potential clients? There’s no secret that Russians in general are not that good in foreign languages. And this is true for IP professionals now, and it was real big problem back then. Most of the specialists in this area didn’t have much of experience in dealing with foreign partners directly and were not experts in business communications. So, when one conceived to establish his own business targeting foreign markets he needed to solve the following problems:
- find really good IP specialists with good command of foreign language;
- find specialists experienced in dealing with foreign businessmen;
- find IP specialists willing to not only be working at the office desk and preparing materials for interaction with the Russian Patent office, but also ready to search for a client on different grounds, which exist on international level in excess;
- have a serious plan of company’s promotion; and,
- have a source of financing.
Those who had managed to solve the above problems had a chance. Evidently, there were some IP professionals who could built relatively good business on former clients (no matter if the clients were Russian or foreign). They operated out of their apartments, teaming as families (mother, father, son/daughter etc.), minimising their expenses and thus surviving. But there was no talk about serious well-established business with interesting targets and various approaches.
On the contrary, those who took risks and managed to go through the perilous times now have new problems, which are the problems of further grows and developments:
- how to keep your existing clients satisfied;
- how to bring up new generation of company’s professionals (choice on the market is very limited);
- how and to what extent you should expand your business;
and many many others.
It looks like it is the very same never-ending story of search for excellence!
Mini Questionnaire:
- What top 3 qualities make a thought leader?
Risk taker, who takes responsibility and never blames subordinates.
Innovative and curious, ready to get new information and study it.
Ready to talk and listen.
- What do you feel you couldn’t live without?
I couldn’t live without new challenges, life is so interesting.
- What motivates you most about your role?
I have team of great professionals with the same mind set behind my back, and they motivate me every 24/7.
Victor Ezhevsky - Managing Partner, Chief Executive Officer (CEO)
Member of AIPPI, INTA, AIPLA, IPO
Elena Davydova – Patent Attorney of the Russian Federation. Chief Patent Department
Member of AIPPI, AIPLA
Russian Patent Company INEUREKA was established in Moscow in the year of 2001. Since then we proved to be one of the most reliable partners among leading IP Law firms of the Russian Federation. The Company renders the whole complex of services regarding all objects of Intellectual Property Protection. We are one of the leading companies in RF in the field of patent annuities and trademark renewals. Our share of the Russian renewal market is more than 15%.
Patent Attorneys and Lawyers of our Company, are highly experienced in intellectual property protection matters, effectively execute professional cooperation with corresponding legal institutions of the Russian Federation responsible for IPP, as well as with Eurasian Patent Organisation, thus providing a needed assistance in successful accomplishment of the most complicated tasks. In shortest possible time INEUREKA secures the most effective solution of its clients’ problems and tasks.
Among INEUREKA clients are both individuals and well-known companies from all over the world. Close cooperation with patent firms in the states of the former USSR facilitates to settle successfully questions related to registration of trademarks or obtaining of patents in these countries.
We speak with Marc Mercier, a Barrister based in Brisbane, who touches on corporate law, human rights and equality, as well as the keys behind to becoming a successful barrister.
Marc is soon releasing the first body corporate law textbook for Queensland, which will help simplify the complicated, and somewhat fragmented nature of the law.
His textbook puts together a lot of practical advice, including flowcharts which will help corporate bodies deal with what is actually a very fragmented jurisdiction; during a dispute, you need to pick out and refer to many acts and regulatory models and so the jurisdictions are very complicated and fragmented.
Marc says: “When you have gathered the legislation, you find that a lot of the situations do not fit in, or there are grey areas and so this is where the tribunal and high court decisions come into play.
“Cases can often go through a number of interpretations and reversions until a definite view helps determine a generic term which cuts across literally everything in the body corporate legislation.”
His book, which will be published at the end of this year, will contain practical information on the application of the law, including case law, and policy documents that influence the interpretation of and application of law relating to body corporates.
You hold a Bachelor of Science as well as a Bachelor of Laws; what led you to transition from science to law, and what was the reason behind choosing to do a Masters in Law?
I have a diverse background as I started science with a focus in forensics; my original intent was to either do medicine or medical law. However, during my fourth year of study, my interest in law increased and so I considered pursuing a career in law.
In between this time, I had also completed a degree in music. My entry into the legal industry took place out of interest, and my music degree really helped make that transition run smoother.
Do you ever find that your background in science and the technical aspects behind it have helped you when practising law?
There are a lot of analytical aspects associated with forensics, and you really have to finely examine situations, such as causes of death; I would definitely say that this cuts across to how you really interpret legislation as well. Science is very analytical, there is a lot of memorising and these factors are parallel to law: you have to analyse back to the case and apply it.
As a family dispute resolution practitioner, what is the most challenging part of the role?
I do commercial mediation, as well as family mediation and I find that during family law, when the emotional aspect starts to kick in during mediation, is when it becomes more challenging. You have got to give more of yourself to really pay attention to manage the dispute.
On the other hand during commercial mediation, the parties - with exceptions - are less emotionally attached to the dispute. I think family mediations are definitely the most challenging as they take a lot out of you; I think maintaining a balance between commercial mediation and family mediation is vital for me, as focusing solely on family law would take a toll, personally, on me.
What different challenges does commercial mediation bring?
Some of the matters can be complex - just as much as family mediation can be complex - however, with commercial matters, you have more complicated arrangements, across a broader range of issues. You need to have some appreciation of company law. It can be a very broad scope of law and it comes along with very prescriptive rules, especially when it comes to bankruptcy and certain commercial strategies. You also need to ensure you are not there dictating the parties, but you still need to have a strong understanding of the disputes, otherwise it is hard to negotiate and facilitate the parties.
Out of the two, which do you think benefits more from mediation: family or commercial law?
In general, I think family law, as it creates possibility to allows the parties to get past the emotional aspect; the process is quite traumatic for some people and mediation can help the parties to get over the dispute a lot quicker, which thus helps the healing process.
In the past, you have dealt with complex anti-discrimination cases; can you talk Lawyer Monthly through how you overcame the complexity behind these cases?
Anti-discrimination is a human rights issue in many ways. I was previously the principal conciliator for the anti-discrimination commission and because I had that role, I often undertook more complex, media sensitive and multifaceted disputes. This was challenging due to the broad tactics and scope of such a case. Often when someone breaches the anti-discrimination legislation, they are not just breaching one very narrow aspect and there could be multiple different levels associated with their misconduct. They tend to consider whether certain human rights have been breached, rather than whether you will get penalties or settlements to negotiate. The moral aspect to it has a huge impact and influence on the challenge I face. This is further enhanced by the fact that many cases see me dealing with large organisations; schools and big multinational companies can make mistakes and ultimately, an apology is required.
Is there anything in anti-discrimination legislation, or other legislative changes in Australia, that you think needs amending?
There are issues regarding the measures on how a dispute is brought up; there can be fictitious claims and the way in which a particular party goes about and makes claims against a large company, as they know that the company will want to settle.
However, where there are incorrect cases being brought to light, there are also very unfortunate cases too, whereby a party has been bullied, perhaps due to their ethnicity or age which can render the person as incapable of working. There are some stark differences when it comes to damages and I think there is always room for improvement when regarding ways in which fictitious claims can be sifted through; claims are easy to make and are difficult to disprove.
Body corporate legislation is currently undergoing a big shift in a lot of its concepts. There are over 46,000 body corporate inquires right now. It is part of the city plan - denser living is a way to accommodate growth; invariably you start off with a piece of legislation that is satisfactory for a while and then when different issues come to light, such as debt recovery, then you begin to find a need for change. At the moment, the property law review committee has stated recommendations to state government and that has resulted in many changes.
Another example of this, is to if someone has the right to vote. This can have a big difference in outcomes in body corporate. The current legislation recognises this, but it does not recognise the whole scope of conditions to substantiate the relationship there.
There are many controversial aspects to consider, such as certain debt recovery processes and how the body corporate can claim legal costs from a debtor. I operate a body corporate management company and we deal with these issues on a more global basis, and not only do I deal with it on a legal practitioner end but also from the body corporate manager perspective, thus making it more practical alongside the vital legal notions.
I also find that in body corporate law the legislation is extremely prescriptive and relies on case law. However, case law sometimes need to catch up to certain things, such as technology. Even to this day, technology is not completely dealt with, an instance being electronic voting; the legislation is provisioned for it, but there are no real rules to how that practically looks like, because it is such a new concept. I think the outcome of this is that the cases will - in its bid to identify and solve the problems certain scenarios can present -, in fact make it more and more complicated. You cannot dismiss that some cases will be clarified, but in some instances, it will widen the possibilities, which in some situations can complicate things.
If you were to fast forward five or ten years, how much do you see these issues in body corporate law progressing? What do you envision and what are you anticipating?
I think in ten years you will begin to have technology kicking in and the ability to utilise it, where we can understand its rules and applications, enabling it to be a lot more defined.
I have to say the body corporate and community management act which was first passed in 1997, is only now undergoing review; there have been certain aspects that have been reviewed over the years, but currently there is quite a large review process addressing a number of areas of the law.
We are also hoping for it to become simplified as some of the rules are very complicated. In some situations, corporate bodies will sometimes have to look at a multitude of different sections, not even in the act but in other regulations and consider other legislation to truly understand their legal position.
Moreover, legislation is one thing, but it is a jurisdiction that superimposes what is called a ‘just inequitable precept’, where an adjudicator can finalise a decision, although the “black and white” law states something else. It may be inequitable for a particular time frame for it to being carried out and so the adjudicator has the power to “bend the rules”. That shift in stance can make it difficult, and again, that is where the case law comes in. It is somewhat ironic, as we have the ability to bend the law, which is very black and white, yet in alterative situations the law is highly prescriptive.
With Australia casting their vote on same-sex marriages, do you think more could be done for the corporate environment to embrace changes in equality?
I think some corporate environments are built in a way that does not always embrace change, however, things are slowly progressing. For example, some corporate environments have that traditional male presence, but I do think this is changing; the workplace has come a long way in terms of equality, because certain issues and debates are in the media all the time. In relation to gay marriage, we have a high level of politicians speaking about I, which helps shift the voting and may pave the way for equality in other areas. You don’t really get much inequality in body corporate, for example, although there could be anti-discrimination issues, which would require an entirely different application. Nonetheless in the workplace, I think a positive shift to equality will be due to the current changes which are undergoing, such as same-sex voting, which will thus pave the way. We ought to bear in mind, however, that there could always be more done to ensure equality is thoroughly embraced.
What do you think makes a successful barrister?
The ability to think outside the box is very important. In law, you learn how to interpret legislation; a good lawyer should be able to pick a piece of legislation in any jurisdiction and be able to interpret it and use it to their advantage in any case.
another thing is organisation - not only in practice, but also how you approach an opinion and litigation; how you organise time frames in civil litigation, and in essence, organising your client will help you gain the best outcome for them.
I also think that the ability to communicate is extremely important. You ought to be persuasive with your client in order to strongly suggest the best outcome for them. When arguing a case in front of a court, you need to persuade and communicate why certain legalisation should be applied in a particular way. Interpreting communication is also important; during mediation, sometimes, nonverbal cues are very telling of how the party is progressing. You need to be able to write well and ensure you communicate enough across, in a succinct manner. Communication in the multitude of forms it comes in, is a tool a barrister must master; it’s your stock of trade in this industry.
What is the most motivating aspect of corporate law?
I think the outcome you reach is motivating; if it is to do with legal practice, for example, you had to argue an application to why a vote should be able to pass, the rewarding aspect is putting together your ideas for legislation, in such a way that is highly persuasive and actually obtains the outcome for your clients. In mediation, whilst it is not your focus, the most rewarding thing is bringing a solution that both parties can live with.
Marc J. Mercier
Barrister at Law
Mediator
www.marcmercier.com.au
Marc Mercier holds a Bachelor of Science (majoring in Anatomy, Physiology and Forensics), a Bachelor of Laws and a Master of Laws (specialising in litigation and dispute management) from the University of Queensland, is admitted as a Barrister-at-Law of the Supreme Court of Queensland and of the High Court of Australia, with a current practicing certificate, and is a Nationally Accredited Mediator in Australia through Bond University and the University of Queensland. Marc is also a Family Dispute Resolution Practitioner, pursuant to the Family Law Act 1975 (Cth) and through the Practitioner Registration Unit of the Federal Attorney-General's Department.
Initially, Marc commenced practice as a Barrister, engaging as counsel on behalf of the Queensland Office of the Director of Public Prosecutions, prosecuting a broad range of criminal matters, including confiscation of proceeds of crime, complex Supreme Court bail applications, sentencing and prosecution of serious offences, appearing before every Supreme and District Court Judge at that time.
Marc then commenced work at the Private Bar of Queensland as a Barrister-at-Law, undertaking a broad range of matters concerning commercial, property, industrial, family and criminal law. Additionally, Marc conducted mediations, civil and criminal trials, and applications in the jurisdictions of the Court of Appeal, Supreme Court, Industrial Court, Family Court and lower courts.
Marc's broad experience and high-level qualifications allow him to assist bodies corporate in complex matters, which often touch on subsidiary body corporate issues.
We now speak with Ester Santana, an expert in tax consulting and in domestic and international tax and estate planning. She discusses the ways in which she uses her years of expertise to overcome challenges her role presents, and the Brazilian fiscal deficit target.
What different requirements do international clients have, in comparison to domestic clients? International clients tend to be more practical and they want you to go straight to the point, allowing them to be faster decision makers. It is not unusual to see domestic clients going around the same issue over and over and taking more time to make a decision, notably regarding to business restructuring and estate planning.
How do you use your expertise to meet their demands?
The time I spent abroad allowed me to build a strong network with lawyers from around the world, and my contacts frequently assist on the firm’s projects abroad. Additionally, to fulfil my client´s expectations and needs, I normally use my expertise to ask the right questions and understand the client´s purpose, before providing the legal advice.
The Brazilian government announced a rise in the country's fiscal deficit target for this year and 2018; what do you think could be done to improve this situation?
The clients should review their corporate and tax structures, anticipating any impact that the changes in our economic environment may have in their business and operations. It is always important to work with a backup plan. For instance, clients should consider benefiting from tax amnesty programmes or evaluating alternatives to use tax credits to offset any potential increase in the tax liability. Moreover, clients may want to consider diversifying their portfolio risks by investing parts of their savings abroad. In those circumstances, we have to be well prepared to assist them internationally.
Moreover, how will this affect your role with your clients?
In times of economic recession, I have to be more sensitive to financial problems and cash flow difficulties that the client may face. Thus, in order to represent the clients to solve their legal and tax issues, I need to be more flexible and creative in terms of fee arrangements.
As Thought Leader, can you share the most challenging aspect of your job and how you overcome this challenge?
The most challenging aspect of my job is to say “no”, when all what your client wants to hear is a “yes”; but even so, I have to be able to retain the client in these situations, so that they will not seek another law firm to do what they intend.
I truly believe it is also part of my job to educate my clients and guide them the right way. I have to be very cautious in not misreading the facts and the client´s case. I try to overcome this challenge by building trust and gaining the client's confidence in a long-lasting relationship.
My name is Ester Santana and I am partner at Chamon Santana Law Firm (CSA Law). I have a law degree from PUC in São Paulo and over 10 years of experience in tax consulting and litigation, having also worked for KPMG’s Tax Advisors – Legal Services area.
My specialty is in tax consulting and in domestic and international tax and estate planning. I hold a Degree in Master of Laws in Taxation from Northwestern University in Chicago (USA) and graduated with honors. I was also awarded with the first place in the 15th Competition of LL.M Students held by the American Bar Association in the US.
At CSA, I primarily focus on interlocution with professional investors and with multinational groups and companies. I am also a member of STEP (the Society of Trust and Estate Practitioners) and the ABA (American Bar Association).
CSA is a highly qualified law firm specialized in cases and operations involving tax consulting and litigation, corporate law, succession planning, M&A, and business structuring. We operate in a far more effective manner than other firms. We add value to our clients and their organisations by providing innovative, tailor-made solutions that deliver high rates of return and that are aligned with each company’s business strategy.
Our more than 20 years of experience and long-term partnership with our founding partners Ricardo Chamon and Ester Santana guarantee that we apply a systemic view to each case. This approach allows us to anticipate the impacts and benefits legal decisions have on businesses.
Dr. Meslin is Senior Managing Director and a founder of CSP Associates, Inc., the leading global provider of commercial diligence advisory services to private equity sponsors active in the aerospace, defence, and government services sectors. He speaks with Lawyer Monthly about how CSP is different from other commercial diligence advisers and all about the current M&A volume in the ADG market.
What is different about the markets CSP serves, compared with those addressed by other commercial diligence advisers?
Unlike other large sectors of the economy such as retail, general manufacturing, media, or technology, the ~$1.5 trillion aerospace, defence and government (ADG) market is driven by 'programmes', often large and long-term activities such as those to develop and field a new type of commercial aircraft or weapon system, manage a government information technology architecture, or support military forces deployed overseas. An ADG commercial diligence adviser such as CSP must therefore have quite specialised domain knowledge in areas such as: foreign policy, national security, government budgets, mission requirements, and procurement practices, aerospace technology, and of course, the specific programs with which a target company is involved.
What is the overall M&A volume in the ADG market, and how many private equity sponsors are active?
Over the past 15 years approximately 350 private equity sponsors have been active in the ADG market. An estimated 500-600 transactions are completed each year in CSP's served markets, although most involve smaller companies with enterprise values of $25 million or less, acquired by trade buyers. CSP estimates that private equity investors are bidders in more than 100 transactions each year. Since 2000, ten PE sponsors have completed more than 10 ADG deals, while a further 26 have acquired between five and nine companies in these sectors.
What is the level of M&A activity that CSP see, and what are some specific examples of the industry segments in which CSP are active?
CSP are typically engaged in 40-50 ADG transactions each year involving target companies and prospective acquirers in the United States, Canada, the UK and Western Europe, and the Middle East. While the US market remains by far the largest in terms of cumulative annual transaction volume and value, aerospace, defence and government services are inherently global markets and CSP are active in a diverse range of industry sub-segments. These include counter-terrorism, cyber-security, aviation component manufacturing, satellite and space launch system production and operations, overseas military logistical support, satellite and wireless telecom networks, defense hardware development and sustainment, aircraft repair and overhaul, and business jet services, to name a few.
What role do CSP perform in providing commercial diligence advice to buyers or sellers of ADG properties?
Simply put, CSP's role is to translate the often arcane vocabulary of ADG programmes, customers, competitive and market dynamics into terms that a private equity sponsor - and importantly, its lenders - can understand in order to value, negotiate, and finance a transaction; in other words to substantiate or refute the value creation opportunity that has drawn a client to engage us. In this respect, our perspective is somewhat different from that of other professional advisers. Legal, accounting, tax or environmental diligence advisers tend to focus on the target company as it stands today, evaluating known or contingent risks and liabilities, reviewing customer and supplier contracts, opining on the quality of earnings, etc. Commercial diligence is inherently forward-looking, and is concerned mainly with validating a target company's forecast financial performance to enable a client to properly value the business.
CSP focuses on assisting our clients to validate the investment thesis underlying a particular target company. A CSP commercial diligence assessment addresses an inter-related set of market, competitive, programme, contract, customer, management, and financial variables, in order to develop a holistic view of a target company and its outlook. Depending on the programmes the company supports, this often includes considering rather weighty (and sometimes inherently unknowable) political and national security-related questions such as: how long and in what numbers will US and NATO forces be deployed in Iraq, Syria or Afghanistan; what level of ballistic missile defences might the US and its allies procure in order to address the threat from North Korea; how might an aviation-related terrorism incident or global recession affect the production rate of Boeing or Airbus airplanes; or, what level of future defence spending might be agreed between the US Congress and the Trump Administration? As a result, clients tend to particularly value advisers such as CSP, who have deep domain knowledge and a long and reliable track record of successfully bounding the risks and opportunities inherent in target company forecasts.
Can you provide examples of particularly interesting or challenging transaction engagements?
Three recent engagements come to mind: in the first, CSP were engaged to evaluate a contractor that provides security services to personnel and facilities operating in hostile or austere overseas environments. Most of the programmes supported by the contractor required security clearances. Providing our client with a bankable view of the company's forecast financial performance - and of the risks inherent in the business - required us to assess a complex set of geopolitical, programmatic, and contractual issues, cross-checked through interviews with company management, customers and other stakeholders.
A second engagement concerned a provider of business jet services. Here, the investment thesis did not involve national security, but rather, the rate at which high net worth individuals and corporate customers were likely to increase business jet flying hours, and in which types of aircraft. This deal turned on understanding competitive business jet access models including aircraft fractional ownership, jet cards, and traditional charter; it also included variables such as, jet fuel prices, aircraft residual values, programme pricing, and new aircraft model introductions.
Finally, a third engagement focused on a manufacturer of components for military radars, missiles, and defence communications systems. In this case, while the company provided a well-defined contract waterfall and new business pipeline, CSP were required, among other issues, to determine: how many units were likely to be procured by US and allied foreign military customers, and when; whether the company's technology was at risk of being obsoleted; and, whether new business capture probabilities driving forecast growth were based on sound assumptions.
In each case, CSP's output to our clients resolves to a detailed three to five-year financial forecast model of revenue and EBITDA, supported by empirical analysis presented in a compelling package, that enables a PE investment committee to determine whether to underwrite the deal, and assists lenders to explain it to internal credit committees to obtain loan approval.
Finally, how has the ADG deal environment evolved and what do you see for the next several years?
CSP has been active in the market for more than 30 years, so we have witnessed a number of economic cycles, wars (and their impact on US and NATO defence spending), and a revolution in information technology (and attendant cybersecurity challenges) that has affected how government agencies operate. Taking the period since 2000, ADG transaction activity was relatively unaffected by the events of 9/11 and the recession that followed, but fell sharply during the Great Recession as credit markets contracted. US spending on defence and government services was then adversely impacted for several years by the federal budget sequestration agreement. But over the same period the commercial aviation market saw unprecedented growth in airplane orders and production which drove high levels of transaction activity, especially among private equity sponsors.
More recently, all ADG sectors have seen good deal flow, as the commercial aerospace market remains healthy, US and European defence spending is forecast to rise, and selected areas of government services remain attractive. Looking forward over the next few years, I expect ADG to become more of a 'stock picker's market', where buyers will need to be more selective around the companies they pursue (as many high-quality businesses have already been acquired). This should place more of a premium on the quality of commercial diligence advice, and the track record of the adviser providing it.
Brad M. Meslin, Ph.D.
Senior Managing Director
CSP Associates, Inc.
bmeslin@cspassociates.com | Tel: +1-617-225-2828
Dr. Meslin also manages CSP Equity Partners, a portfolio of private equity co-investments in more than 100 companies active in the industries served by CSP, which has achieved consistent top-quartile returns over nearly a 20-year period. He has served on the Boards of Directors of numerous client portfolio companies, including CMC Electronics, Sentient Jet, Berkshire Manufactured Products, Primus Aerospace, and Spacehab. He has acted as chief executive of eBizJets, the predecessor company of Sentient Jet which is the largest US business jet charter operator; and co-founded Spacehab, Inc., the first privately-financed commercial space laboratory , which flew numerous missions aboard the US Space Shuttle fleet. Dr. Meslin earned graduate degrees from The Fletcher School of Law & Diplomacy in Boston, where he currently serves as a member of the Board of Advisors.
Since 1990, CSP have been engaged in nearly 1,000 transactions in their served markets on behalf of more than 200 private equity firms, corporate buyers, and institutional financing sources. Since participating in the first known leveraged buy-out of a defence contractor more than 25 years ago, CSP developed and continue to innovate the standard for conducting commercial diligence of technology-intensive government contractors and aerospace industry suppliers. The firm provides buy-side and sell-side commercial diligence advice to clients across North America, Europe, and the Middle East.
As Managing Director of a niche Court of Protection practice, Andy Riddle manages the financial affairs of mentally incapable individuals.
You may be concerned that your ability to make decisions may diminish in the future due to ill health (both physical and mental); making such arrangements ensures - if and when you lose mental capacity -, that your best interests are taken into account even if you can’t make such decisions for yourself.
Andy believes that hiring a specialist in this respective field is the best way to go about ensuring your assets are looked after; he states: “Most of the problems we encounter come from firms who may have tried to undertake a piece of work, and as a result of not having the requisite experience end up making a ‘mess of things’.” He discusses more about his role and how he guarantees the best outcome for his clients.
As Thought Leader in your field, can you think of ways in which the Government or authorities could address issues elders may face when needing assistance with managing properties and finances and health and welfare?
Simply put – consider putting in place a Lasting Power of Attorney (LPA) for both Property & Financial Affairs, and Health & Welfare. It really is all about planning for the future!
There are two different types of LPA’s:
According to an Old Mutual Wealth report from November 2016, only 3% of the UK population had such instruments in place. Thus, there seems to be a huge amount of work to be done by the Government in looking to promote such instruments.
Can you share ways in which you address the client’s best interests when acting as a lasting power of attorney? What challenges may arise and how do you overcome such challenge?
Acting in the client’s (or donor in this example) best interests is one of the five key principles set out in Section 1 of the Mental Capacity Act 2005, of which we are required to comply/adhere to.
When acting as a Property & Financial Affairs attorney, some of the ways we ensure we are doing the best for our client may include:
When acting as Health & Welfare attorney we have the donor complete what we call a ‘Letter of Wishes’. This is a document covering ten points about various aspects when it comes to their health and welfare.
Challenges that may arise could include:
How do you ensure your client’s family or close relative’s interest does not conflict with the best solution at hand? What would you advise is the best approach to take in such a situation?
By always acting in our client’s best interests, and not that of the client’s family or close relative! We have usually been appointed as either an Appointee, Attorney or Deputy because of a number of possible reasons where there are family present who could take on such roles, but for whatever reason it has been decided that a professional would be the more suitable option. Such family members are aware of this, and sometimes they may require a “gentle reminder” of why we were instructed in the first instance.
How have you seen the perception of mental capacity and attitudes towards addressing vulnerable adults change over your years of practice, and how has this affected your role?
The Alzheimer’s Society predicts that by 2025 over a million people within the UK will be affected, in one way or another, by dementia; likewise, mental health is certainly a hot topic and when Theresa May became Prime Minister of this country she pledged a number of new policies around mental health. Mental capacity and dealing with vulnerable adults is going to be one of the seismic shifts that this country will have to deal with in the not too distant future. I believe the general public has become a lot more aware of such issues facing vulnerable adults, and this may be due to more awareness generally throughout society. Unfortunately for our clients (and subsequently myself and my firm) the service we receive from banks, financial firms, utility providers (etc.), when dealing on behalf of our vulnerable clients still leaves a lot to be desired. This is despite British Banking Association guidelines been introduced over the years as to how banks should deal/interact with vulnerable customers or their financially appointed representative.
Andy Riddle
Managing Director
020 3011 5587
www.deputyship.co.uk
Professional Deputies, Rowlandson House, 289 – 293 Ballards Lane, London N12 8NP
My name is Andy Riddle, and I’m the Managing Director of Professional Deputies – a firm that manage the property and financial affairs of adults who are deemed mentally incapable of doing this themselves, and have no family or friends that could or want to assist them with this vital day-to-day task. These adults are some of the most vulnerable members of society, and safeguarding their assets is at the heart of what we do. We do this in one of three ways:
Appointeeship via the Department of Work & Pensions
Deputyship via the Court of Protection
Lasting Powers of Attorney via the Office of the Public Guardian
As a litigation lawyer, Michael Böhme’s focus lies on the institutions of traditional dispute resolution and in particular the courts. The modern courts are meanwhile staffed with well educated, experienced and service orientated judges and clerks. Michael says: “They offer swift quality professional procedures and there is always a review procedure through appeal. At least in this country, I prefer courts to arbitration.”
He reveals to Lawyer Monthly the key behind working through litigation, discussing two methods to use during disputes.
Are there any changes in regulations you would like to see, which would help your clients and the legal sphere?
I would like to see the courts change their attitude towards a more international service entity. They could accept applications and procedures at least in English; from this, they could expand their services into neighbouring countries.
At the same time, court’s fees are far too expensive. In this country, they are the highest in Europe and quite prohibitive. In part, this is because the courts do not use the money they raise for their own funding, but use it as contribution to the national budget.
When acting as legal counsel, how have your many years in practice helped prevent possible disputes? What do you think is key to help clients succeed in or avoid disputes?
si vis pacem, para bellum[1]
The question you raise is a very interesting one as my lawyer’s career was as a litigator. A litigator appears on the scene when the porcelain is already crushed and only a formal communication at court may, as a last resort, finally adjust the adverse interests.
These years of intense and formalised communication confirmed that legal disputes are rather a task of communication and convincing than tactics in the hiding of, or distracting the other party from, relevant facts or even trying to trick them. There are two main approaches to handle formal legal disputes.
One of them is to keep the information low, as sparse as possible, just enough to back the claim and then wait for the other party’s reaction; from there you react again and hope that in a meanderingly dialectic procedure, the other party may overlook important information or be distracted from the “real” legal issue. The prime aim is to convince the judge.
The other approach is a more active method to present all known facts, even anticipating potential objections, and to thoroughly argue through all relevant legal problems.
Both have their merits. The reactive approach, if you achieve a swift decision and the case is not very complicated and you are able to promptly counter react to any unforeseen reactions.
But contrary to the intentions, such procedures tend to develop into lengthy to-and-fro applications and in the end, you neither know what comes next, when it will end, or if the other party has not already anyway looked through your secret strategies.
The active approach requires much more preparation and tedious fact-checking in advance. The initial application is manifold, more extensive and a happy win by surprise cannot be expected; the aim is to convince both the other party and the judge. But the effort usually pays-off and the dispute swiftly turns into a rational matter of discussion of fact, aiming at a solution and a settlement that both parties accept. I even experienced cases where the other party accepted at a very early stage of the procedure.
Experience has shown, that particularly in large cases, the active approach is far more effective in both, the achievements and the acceptance of such achievements.
If you convince the judge, you get a judgement; if you convince the other party, you will get a solution.
Further experience has shown, that the same principles apply for out of court negotiations.
Meandering exchanges of reactive arguments are inefficient and likely to end in court, just to be repeated.
It is good strategy to show the other party respect and to argue your case as thoroughly and transparent as possible. Instead of distracting from problems on the clients’ side, prepare their solution. Draft all the papers in a way that they might be reused in a potential follow-up procedure.
At the same time keep the pace and do not accept delay. If it is announced to escalate the dispute, do it; but never refuse talks with the other party.
What considerations must clients make when dealing with international parties and what are the common misconceptions, which can lead to disputes?
In dealing with international parties, it is important to avoid misunderstandings as to the meaning of legal terms. Legal terms from different jurisdictions rarely have the same meaning, even if their wording is similar or they sound similar. Dictionaries cannot be relied on to give reliable translations even if they appear to have the same meaning as in the original language.
In such situations, it is advisable to use plain and simple language, at least in the first stage of the negotiations and to avoid any legal terms; explain exactly what you mean, even if you are convinced that you would understand a foreign legal term properly.
Once the language of the contract is determined, make sure that legal terms – if they cannot be avoided - are only from the jurisdiction of the contract language. Even then, make sure that the language is clear enough that the other party will understand the meaning of the term, once the contract is signed.
Another common misconception is that the law is the same in every country, although laid down in different articles of different statues. This appears even more frequent if the legal cultures involved are closely related, in particular, if the same written and spoken language is used.
Dr. Michael Böhme
A - 1010 Wien, Falkestraße 1
tel: +43/1/512 31 00-36
m.boehme@breyer-boehme-voithofer.at
[1] if you want peace, prepare for war
Christos has been with Argyrou and Konstantinou LLC. for 9 years. During this period, he has been involved in a number of notable cases for domestic and foreign clients. In the process of interim proceedings, he has obtained worldwide freezing orders for hundreds of millions (RUR, USD), obtained disclosure orders, appointed interim receivers, and, recently, annulled worldwide freezing order coupled with a disclosure orders issued against client of his firm. He speaks with us about his interim proceedings, his extensive experience in cross-border litigation and what his firm offers.
In the process of interim proceedings, you have obtained worldwide freezing orders for hundreds of millions; what do you think are the key aspects to ensure the best results during interim proceedings?
Freezing orders are a very powerful element and as such, they are subject to very strict requirements and safeguards, and those affected by an order must act with the utmost care in ensuring its terms are observed.
An application is usually made on a without notice basis and therefore any applicant is under a duty to make full and frank disclosure of all material facts - whether they support or adversely affect their case - to the Court. Any failure in this regard may lead the freezing order to be set aside. For a successful result, the applicant must prove that there is a good arguable case, there must be a real risk of dissipation of assets which is often difficult to prove, and it must be just and convenient to grant the freezing order.
To ensure the effectiveness of a freezing order, a lawyer should examine whether they could also seek other orders to support the case. For individuals or companies whose accounts or assets have been ordered frozen, the order may result in adverse financial and personal consequences in connection with disposal of assets, living expenses, negative publicity, and asset disclosure. For example, a disclosure order is generally essential, as it requires a respondent to disclose its assets and to produce a list detailing assets. This short timeframe puts the subjected party under pressure to disclose all assets, their value, and location eliminating every kind of privacy. Commercial litigators working on either side of a case should be able to practically approach a case which involves the freezing of assets. For the petitioner, they should be able to act rapidly and guide the clients through, often thousands of pages, of materials that need to be disclosed and presented appropriately to the court to justify the issuance of the requested orders. For the respondents, the legal team must be able to rapidly peruse the evidence submitted by the other side and efficiently and effectively present the shortfalls of the petitioner’s case. Cross-border litigation experience is always significant, as most cases where a worldwide freezing order is sought, have an international element.
You have extensive experience in cross-border litigation. What are the key aspects of a cross-border dispute that you and your firm manage?
Disputes are part of doing business. Transactions do not run perfectly and we recognise the difficulties that often arise. Our team swiftly identifies the issues that are at stake in every jurisdiction involved and has a legal team analysing them in a matter of hours. We coordinate the work of all the law firms that are representing our clients in the various jurisdictions that the dispute spans, in a vast array of legal disciplines. Our clients thus deal only with our firm, and we manage the dispute and ensure that all legal work streams are managed efficiently and no discrepancies appear in the presentation of the case in different jurisdictions, which is often the downside of cross-border disputes. Our high mobility and swift response ensures that any cross-border dispute, irrespective of the jurisdictions involved, is manageable.
The global landscape is changing in the provision of corporate and administrative services. What do you feel sets a law firm or a fiduciary services provider apart from others in an increasingly saturated market such as Cyprus?
Efficiency, expediency and precision. The Cyprus corporate services industry suffers from the shortcomings of poorly managing growth. Several service providers, striving to manage rapid growth, hire individuals who are neither academically, nor by experience, able to cater for the clients needs and protect their interests. Our firm’s benefit is that we only hire lawyers and chartered accountants to administer corporate entities who have the expertise and knowledge to review the clients’ corporate transactions in depth, reviewing the financial statements and transactions of the companies we administer understanding the legal and/ or tax consequences that ensue. We focus on the outcome and provide practical input to the clients even when that is not requested without increasing their costs.
Christos Konstantinou, Director
Email: ck@akfirm.law.
Contact number: +357 24665035
Fax number: +357 24655405
In the process of corporate fraud and other commercial cases, Christos has cooperated with lawyers from the USA, Russia, Germany, United Kingdom, Moldova, Romania, Hong Kong, Japan, Netherlands, Greece, France, Dominican Republic, BVI, Cayman Islands and Switzerland and has coordinated litigation and extrajudicial action.
Argyrou and Konstantinou LLC is co-managed by Miss Argyrou and Mr. Konstantinou. It consists of a number of UK and Cyprus qualified lawyers, legal advisors and administrative personnel. The Corporate Department is managed by Mrs. Rodoula Konstantinou a UK-qualified Chartered Accountant who gained several years of experience working with large multinationals and the public sector for KPMG. At a time of significant change in the legal industry in Cyprus and internationally Argyrou and Konstantinou LLC strive to ensure they always think outside the box when addressing the complex legal issues their clients face. The idea is for the clients to have a one-stop-shop for all their legal needs, which will also cater for their international legal needs with skill, efficiency and professionalism.
