“There is no substitute for experience”, says Nigel Rowley, Managing Partner at Mackrell Turner Garrett.

“Litigation - particularly complex cross-border litigation – is a minefield where you need to balance client expectations against complex long established practices and procedures, laws and regulations. Local knowledge is essential, whether you are dealing with the most complicated Supreme Court Appeal, local Magistrates Court application, or document heavy International Arbitration. Never underestimate your opponent; they may have been doing this as long as you have, but do they have the international knowledge, the cultural knowledge, the legal knowledge? That is where experienced, specialist international law firms have and always will have the edge. There is no substitute for experience.”

Below, his team speaks more about their work in litigation.

What is the most complex aspect of commercial litigation?

Thomas Crittenden (Associate - Litigation): “There is a two-part answer to this – with both parts intertwining. Firstly, it is strategy – and that is something only gained after many years experience of reading the other party and anticipating there next move before they decide what it will be. “Secondly, and linked with that is the process of disclosure of documents - particularly so where the litigation itself concerns complex issues and a multiplicity of documents.

“Disclosure needs to be analysed carefully as documents disclosed must be both relevant and proportionate to the issues raised in the proceedings; determining whether a document or class of documents satisfies these criteria can be a very tricky decision and can have a dramatic affect on your clients’ case and strategy.”

What is the best method for businesses to avoid litigation in employment matters? How do you advise your team on the best action to take?

Donna Martin (Partner – Employment): “One word: contracts. It is vital that suitable contracts are in place between a business and its employees and consultants; legally, employees are entitled to receive particulars of their employment within two months of their start date however, and perhaps more importantly, commercially, the terms which govern the relationship need to be agreed so that there can be no ambiguity at a later stage.

“Once the agreements and any non-contractual handbooks are in place, in order to avoid litigation, they must be adhered to. For example, even where an employee makes an informal complaint, the grievance procedure should be followed despite this causing additional work for human resources. Provided the correct procedures are followed, any exposure should be minimal at an Employment Tribunal.”

In what ways can litigation become complex during cross border disputes and multi jurisdiction litigation?

Kirsty Wright (Solicitor – Litigation): “Jurisdictional arguments and cultural differences are the bugbear of cross border disputes. Many cross-border and cross-jurisdictional disputes choose to apply English law, which is attractive because it relies heavily on the principle of freedom of contract and as a result, attempts to hold parties to their contractual bargains or award damages where this is not otherwise possible. But that can cause issues.

“Many law firms across the globe with strong litigation offerings are able to handle legal disputes subject to English law; they understand the cross-cultural differences and the difficulties in managing differencing demands and expectations of multiple parties when it comes to the softer aspects of disputes such as negotiations or settlement. With the Mackrell International law network comprising of 170 offices in 60 countries we are excellently positioned to deal with the softer aspects of disputes such a business and cultural differences that can have a huge impact on the people involved and the outcome of the case.”

Are there any regulations you think would benefit your role, and your client’s, if they were to be amended? If so, which and why?

Robert Jappie (Senior Associate – Crime and Regulatory & Maya Paunrana (Solicitor – Crime & Regulatory): “In criminal proceedings, schedule 7 of LASPO Act 2012 made it much more difficult to successfully recover legal costs on behalf of the defendant in the event of an acquittal. Costs recoverable in both the Magistrates Court and the Crown Court are limited to legal aid rates. Furthermore, legal aid has to be applied for and refused on financial eligibility grounds before any costs recovery can be attempted. It would certainly benefit my role and the financial position of my clients if these regulations were to be reviewed and amended. It doesn’t seem right that a defendant acquitted of all charges can only reclaim a small portion of the legal fees incurred – when they have done nothing wrong.

How have you seen data security concerns change over the years throughout litigation?

Robert & Maya: “When receiving case papers and associated trial documents, the Crown along with other investigative bodies (such as HMRC, the NCA and the SFO) is now taking a position whereby they will only send electronic copies to a secure CJSM email account. This has effectively become the standard procedure in receiving disclosure. With many firms moving towards a paperless practice, safe and secure electronic service and retention of documents is key. It is essential that law firms have up to date systems in place to accommodate this paper-free and postage free environment.”

What are important aspects for clients to follow and remember during their cases with HMRC? Robert & Maya: “In terms of preparing their strategy from the outset, a client must be aware of which HMRC department is handling the case against them. The operations and nature of the proceedings differ greatly between departments and it is vital that a client is guided correctly in their initial dealings with HMRC. Secondly, it is highly likely that the client will need to be proactive early on in order to open a dialogue with HMRC and manage an investigation. Clients are strongly advised to begin collating records and documents to put forward to HMRC, and where documents are unavailable, prepare if possible to obtain replacements.”

Nigel Rowley

Managing Partner

www.mackrell.com

Nigel is the Managing Partner and Head of Litigation and Dispute Resolution in the London office of Mackrell Turner Garrett.

Nigel has considerable experience in defending FCA prosecutions, and HMRC Appeals.

He is an International committee member for EMEA on Mackrell International, the independent network of 80+ law firms around the world and Chairman of the Membership Committee for Mackrell International.

As a result of the firms membership of Mackrell International, Nigel is very experienced in cross-border disputes, and multi-jurisdictional litigation.

Thomas Crittenden

Associate, London

Tom joined Mackrell Turner Garrett’s London Litigation and Dispute Resolution team in November 2015. Tom is a dispute resolution specialist who focuses on disputes conducted in the High Court in London and through arbitration. He also regularly deals with challenges to the jurisdiction of the English Courts, issues concerning the choice of law, and obtaining or opposing injunctive relief.

Donna Martin

Partner, London

Donna Martin is a partner in the Employment team of Mackrell Turner Garrett’s London office. As an Employment Relations Specialist, she advises both employers and employees on a full range of contentious and non-contentious issues.

Kirsty Wright

Solicitor, London

Kirsty Wright joined Mackrell Turner Garrett in August 2016. She is a specialist in commercial litigation and has acted for companies and individuals across a wide range of sectors including: oil, gas and sustainable technology, sport and sponsorship, fashion, and financial services.

Robert Jappie

Head of Crime and Regulatory Group, London

Robert is the Head of Mackrell Turner Garrett’s Crime and Regulatory Team in London.

He joined the firm in November 2016 as a solicitor and is able to assist a wide range of clients, whether individual or corporate.

Maya Paunrana

Solicitor, London

Maya Paunrana joined Mackrell Turner Garrett’s London office in 2012. During her time as a trainee at Mackrell Turner Garrett, Maya gained significant experience in the Criminal Department, working on matters involving complex and serious fraud, money laundering, tax evasion and Financial Services and Markets Act (FSMA) offences.

Founded in 1845 Mackrell Turner Garrett prides itself on a long-established tradition of providing partner driven quality expertise where client care is the top priority. As a founder of Mackrell International, an international network of 5000 lawyers in 94 firms in 170 offices around the world, we can offer immediate international legal advice and assistance in any jurisdiction worldwide. Mackrell Turner Garrett are International Solicitors in London and Surrey.

We now hear from experts from SRK, situated all around the globe. Andrew Van Zyl, from South Africa, John Pfhal, from North America, Simon Hanrahan and Mark Noppe, from North Australia all offer their insights into due diligence in relation to the mining industry.

Andrew: “The key to our due diligence studies is assembling an experienced team and working together to focus on the sources of uncertainty – in order of priority.”
Simon and Mark: “The key aspect before due diligence commences is to agree on the scope of work requirements. Depending on the stage of the project and the potential funding requirements, the required scope can vary significantly. The time and effort needs to be put in up-front to make sure that all stakeholders are aligned and all expectations will be met by the proposed due diligence team.”

John: “This usually involves a staged process. The first step is to understand the underlying strategy of the client. Often, in the mining industry, we work with companies or funds that have very little experience in mining and do not have a good feel for what questions should be asked. Therefore, we want to make sure that we are providing the information needed, even if the client didn’t realise they should be asking that question.

“The next step is a high-level review of the project/opportunity to identify any obvious red flags and better tailor the focus and effort of the team. Mining due diligence can often be described as following the 80/20 rule. 20% of the time gets you 80% of the answer. Often, this 80% is more than enough to know that the due diligence should not progress. Finally, if the due diligence progresses, it goes into the final stage which is the detailed analysis. Under this stage, each discipline is reviewed in detail. Depending upon the specific nature of the project, some disciplines are not necessary and other projects have other factors that also come into play. We also put a heavy priority on a site visit as seeing the asset is always important, but even more important is the opportunity to interact with the team on the ground as the message may very well be different from what’s being given at the most senior levels.

“Finally, due diligence is an iterative process and you need to adjust strategy and focus as necessary as the due diligence progresses. The process must be dynamic to provide the best results. Most importantly, there is no standard list where boxes are simply checked. Every mining project is unique and must be evaluated appropriately given those unique conditions.”

What makes SRK’s due diligence reviews so highly regarded?

Andrew: “SRK has built a reputation for being thorough and for being independent. In addition to our focus on deep technical skills, we are involved in a range of professional bodies and in the mining community. We try to avoid being distracted by short-term cyclical changes in the market and understand the underlying asset, the specific short-term challenges and the long-term potential. Our understanding of regulatory and more general challenges – as well as the management skills and experience required to manage these – is also key to providing a balanced and insightful view.”

John: “Our technical experts are also combined with team leaders that have multi-disciplinary expertise and a long history with M&A, project investment and business improvement that help direct the team to make sure the material risk and opportunity is identified without getting stuck in the weeds on non-material issues.”

In what ways do SRK’s clients benefit from these reviews?

Andrew: “Where our clients are mining companies themselves, they have benefited from the reassurance that they are on the path to world-class performance and that they have identified the key risks to be managed.”
Simon and Mark: “Firstly, in instances where SRK has been commissioned by a project owner to carry out a due diligence, the owner gets the benefit of the review team identifying issues and then being able to remedy them ahead of going to the potential lenders. This has happened recently in Australia, where SRK carried out an initial review and identified a number of key technical shortcomings in a Feasibility Study. Secondly, the potential lenders get a review report that addresses their needs, to understand the risk, opportunities and financial model inputs that may require modification or stress testing. Finally, the potential lenders get access to the due diligence team, if required, to elaborate and further discuss their key insights and observations.”

How important is it to manage client expectations?

Andrew: “Many of our clients are repeat clients and are familiar with our approach; our focus here is on delivering to the same standard achieved in previous projects. New clients can be surprised at the level of detail we go into, and so the time and cost of developing our view of the asset can often require explanation. It can be difficult to convince first-time clients of the value of our approach, particularly during a boom. Clients that have benefited from our approach over the course of a cycle, however, require little convincing of the value proposition.”
John: “A vital thing to note is that SRK does not view due diligence as a check the box exercise and if a client just wants a rubber stamp on a transaction, it must be explained that our due diligence is independent and the result may not always be what is desired.”

How often do problems surface when undergoing mining project reviews? What is your team’s next step from this?

John: It is very rare for a mining project review to result in everything being exactly as presented. Due diligence often results in significantly different assumptions than original, data availability is often poor (or slow or disorganised), management often tries to evade answering questions, etc.”

Andrew: “The mining industry attempts to extract long-term value within a very volatile environment and this will always lead to problems. Changes in prices and exchange rates can lead to substantially different outlooks during the period from request for quotation to execution. “Sometimes this happens during the due diligence, which could lead to a company looking to respond to these changes; subsequent changes to the timeline and conclusions may then be requested. We understand that this happens and so we look to provide a balanced view to the client and insight into where the response by the company is critical and the delay is warranted and where it will not have a fundamental impact on the conclusions.”

Simon and Mark: “The question is, does the supporting study information meet the criteria. In the current times, particularly at the junior end of the market, this can be challenging as the juniors often do not have adequate funds and hence have taken a number of short-cuts on the study works.”

Can you explain the importance of mining data management for your clients?

John: “Mining projects generate massive amounts of data. This includes wide ranging technical data supporting resource estimates, mineral processing, mine engineering, permitting, environmental, etc. Effectively managing this data is critical as it allows for it to be fully utilized in design and operations.”

What could go wrong (thus leading to litigation) if due diligence is not properly executed?

Andrew: “We have had no recent instances of litigation arising from one of our due diligence studies. Litigation could arise from facts that are material that were not disclosed, or from negligence on the part of the investigating team. In general, though, this is difficult to prove and a further reason to hire a qualified team.”

John: “Blatant mistakes often lead to shareholder lawsuits and even direct investigation from regulatory authorities into these transactions.”

Simon and Mark: “A number of takeovers are occurring currently and SRK is required to carry out a due diligence review for a potential new owner. They rely on us to identify any longer-term legacy issues that could result in significant liability for them as a new owner.”

Moreover, how have environmental concerns affected your line of work? Have these changes affected the types of cases that could be taken to court?

John: “One very important issue with mining due diligence involves liability for environmental damages, especially historic damages. Every jurisdiction handles these liabilities differently and, especially in the USA, where the allocation of liability to current owners is at its most extreme, making an acquisition that includes significant unintended liabilities can result in significant litigation down the road. In addition, missing something major on the environmental liability or permitting side that can take an asset’s value to zero can also result in immediate write-downs and associated lawsuits.”

Andrew: “The challenges might be considered to be more related to ‘softer’ requirements and guidelines. We understand as a team how to apply the prevailing legislation, but some of this regulation is open to interpretation and some of it subject to competing authorities. Some of it, such as the new South African mining charter, are being challenged and are currently suspended – making it difficult to advise clients on a clear path forward despite relative clarity on current official requirements.”

Andrew van Zyl, Partner and Principal Consultant in the Johannesburg office of SRK Consulting, focusing on valuation of mining projects and assets, and working in general roles on the development of mining codes and related concessions.

Simon Hanrahan is a Principal Consultant specialising in mining, and Project Evaluation corporate services. He has over 30 years’ experience, 24 of which was gained leading operations and major projects globally across multiple commodities. Simon joined SRK in 2010 and works across the whole value chain of the Resources industry carrying out due diligence style work, as well as technical reviews of both surface and underground projects.

Mark Noppe is a Corporate Consultant in geosciences providing advice, training and mentoring in all aspects of orebody knowledge, from exploration reporting, resource definition and reporting, mine geology and grade control through to inputs into reserving. Mark has worked in South Africa, Western Australia and Queensland in exploration, mining geology, practical geostatistics applications, resource estimation and reporting, grade control, mine reconciliation, technical reviews and auditing, and professional training and mentoring.

John Pfahl is a team leader for due diligence, cross-discipline expertise with a focus on strategy, valuation and risk analysis. John Pfahl is a mining engineer with over 15 years of global experience in the mining industry. He is a Corporate Advisory Consultant with SRK. He has expertise in strategic planning, business improvement, investment analysis, risk analysis, capital markets and project valuation in the mining field. His background activities include project and investment management, strategic evaluations, technical and commercial due diligence, structuring and negotiating terms in mergers and acquisitions, and project finance for projects ranging from exploration through production and across a broad spectrum of commodities.

SRK Consulting provides professional technical consultancy services to the mining and metals sector, encompassing multi-disciplinary technical studies and due diligence for mineral assets including exploration through to development, operation and mine closure.

Established in 1974, SRK employs more than 1,400 professionals internationally in over 45 offices on 6 continents.

A widespread underappreciation of the complexity of Stamp Duty Land Tax (SDLT) law has resulted in a deluge of UK citizens making overpayments to HMRC. This has left the firms that advised them exposed to both financial and reputational liability risks. David Hannah, Principal Consultant and Founder of Cornerstone Tax, speaks on how SDLT could be the biggest financial consumer issue since PPI and the types of cases Cornerstone Tax often sees.

The SDLT tax has supposedly raised an extra £2 billion in tax for the government, but how much of that is due to overpayment? David discusses below the issues behind overpayment and how clients receiving the wrong advice can quite literally cost them.

 For those who aren’t familiar, SDLT is the fixed tax paid by property purchasers in England, Wales and Northern Ireland. Changes were made to UK SDLT rates in 2014, of no tax on residential purchases up to the value of £125,000, 2% tax for purchases between that and £250,000, 5% in the band up to £925,000, 10% between that and £1.5m and 12% for everything over. Rates for Mixed Use and Commercial Properties were, and remain, much lower.

The changes to the tax have been one of the many factors associated with the slowing of the UK housing market since the changes were made. This hasn’t come as a surprise to the property industry, as the most recent revisions applied increased financial pressure to those looking to buy, particularly first-time buyers who now have to save more cash to pay their SDLT, in addition to their deposit.

What nobody expected, was for confusion to have been quite so rife among agents, solicitors, lawyers and portfolio managers. However, they are not to blame. SDLT has been subject to more alterations since its inception in 2003 than any other comparable tax and certainly its predecessor – Stamp Duty. The legislation governing it is full of exceptions, exemptions and reliefs covering the vast variety of property types and property buyers in the United Kingdom. Many professionals advising buyers are not trained  to differentiate between a residential and commercial property for the purposes of SDLT calculation but, rather, use a common sense approach that frequently leads to errors. For anyone who isn’t a dedicated expert in SDLT, this confusion is understandable, and is least understood among the taxpaying general public who are unaware of the various reliefs and pitfalls in the detail of the Tax.

Over the last 12-months, Cornerstone Tax has been piloting an SDLT review and reclaim service, which recently converted into a permanent stand-alone division, SDLT Refunds. It has converted more than 95% of the applications pursued and the average applicant has received more than 50% of their original stamp duty paid. With 2015-16 SDLT revenues in the UK recorded at £10.7bn, this leaves possible annual overpayments projected at more than £3bn across the UK.

This is not a loophole. Purchasers have overpaid SDLT under the instruction of their advisers throughout the purchasing process. The two examples that follow are real client cases that Cornerstone has worked on, with only the names of refund applicants changed for privacy.

The First Time Buyer

Mr A. was buying his first flat in his sole name, with his girlfriend named as a guarantor and borrower on the mortgage. He was incorrectly advised by his solicitor that, as his girlfriend already owned a separate property, he was liable for the custom 3% surcharge. This gave him a tax bill on his first home of £14,000. Mr A. solicitor had, albeit unknowingly, advised him incorrectly because he believed that somebody who was a joint borrower had an ‘interest’ in the property. Since Mr A's girlfriend, who was the joint borrower, had another property the solicitor incorrectly identified that that meant that Mr A. was liable for the 3%. This is a common misconception, that being on the title or indeed being on the mortgage means that you have an interest in the property. It was this fundamental misunderstanding that created the liability to tax which was not actually there. Mr A’s correct tax bill was in fact £5,000 - a difference of £9,000.

The High Net Worth

Mr K. bought a property in August 2014 for £4,250,000.  He was advised by his solicitor that the property was wholly residential and paid HMRC £297,500 in SDLT. Having discussed this with his accountant in July 2017 (almost 3 years later), it came to light that Mr K. should have only paid £170,000 in SDLT. This is because the property came with additional land, that qualified it as mixed use under SDLT law and not wholly residential. When Mr K’s situation was explained to HMRC, he was awarded a refund of £127,500 (plus interest).

If successful SDLT refund applications continue to grow at their current trajectory this could be the biggest financial consumer issue since PPI. What is most alarming is the confusion that has clearly been rife among third party advisers; companies who are committed to offering their clients sound and reliable advice. Many of the cases to date demonstrate a reliance in-house among firms on property law experts advising on SDLT, rather than tax experts.

During what is, for many people, one of the most important financial decisions they will ever make, due diligence is owed by service providers who profit from advising them. While almost certainly not deliberate, the fact that so many professionals in the property and legal sectors have fallen foul of the complexities raises serious concerns about the exposures that companies have potentially left themselves vulnerable to. Similarly, HMRC has clearly not done enough to provide the clarity or resources needed to avert overpayments.

Refunds of SDLT can be claimed up to four years from the point of completion on a property. Without swift action from all sides to ensure that a culture of prevention is fostered and historical errors openly addressed, it will soon become a cross-industry battle to avoid the finger of blame being pointed by those who have paid a large amount of tax that was never owed.

David Hannah

Consultant and Founder

www.ctatax.uk.com

As a chartered accountant and chartered tax adviser David is one of the most respected commentators in the UK on tax matters, often quoted by the financial and property press, and consulted by accountants and tax counsel alike. David’s encyclopaedic knowledge of the UK tax legislation is matched to a commercial brain that allows him to see practical solutions to any problem he is presented with.

In a decade of dealing with clients’ tax matters, Cornerstone has emerged as the leading authority in the sector, powering solutions for clients and the industry. Our international reputation for quality, concise advice, which can be trusted is second to none.

Saqeb Mahbub is an Associate Partner at Mahbub & Company, a leading full-service firm in Bangladesh with an international outlook serving clients since 1995. Saqeb handles labour and employment, banking and finance, commercial disputes and foreign investment matters at the firm. He discusses why Bangladesh is an exciting place to keep an eye on, and how the country has progressed, legally and economically. 

How have you seen the commercial scope change over the years in Bangladesh?

Of course, I have witnessed many changes. With a consistent 7% GDP growth rate, Bangladesh’s economy and its businesses have matured a lot, attracting large investments - particularly home grown. Multinationals had entered the manufacturing industry long ago, but I think it is the boom of the local private sector catering to a growing middle class that has transformed the face of the commercial sphere in Bangladesh.

With this in mind, how has this affected your role and the legal world?

As businesses have matured, their need for legal services has grown and that has created a huge demand for lawyers well-versed in the language of international commerce, information technology and client-oriented service. Young lawyers, being more adaptable to this change have been far more successful in tapping this growing demand. The composition of our firm’s work has changed over the years from primarily dispute resolution, in order to include a healthy mix of regulatory advice and transactional work. Many young law firms are now coming to the forefront, which was not the case even a decade ago.

Moreover, what do you think could be done to help aid international investment in Bangladesh?

Bangladesh manages to attract healthy amounts of foreign investment every year despite many infrastructural issues. I think factors like our geographical location, consumer base and readily available labour have been helpful in the past two decades. But now the time has come to invest in infrastructure, with a focus on IT, streamlining bureaucracy and most importantly, people. Bangladesh is infamously known for its cheap labour. We need to start being known for our skills too. Legal services also need to be more outward looking, as lawyers are often the first point of contact for foreign investors. The Bangladesh Investment Development Authority (BIDA) has taken a very good initiative to start a quarterly round-table meeting with professionals like us who are in the frontline advising foreign investors.

What is the most challenging aspect of your role as a litigator in the Supreme Court of Bangladesh? How do you overcome this challenge?

Litigation is challenging anywhere in the world. Our Supreme Court is not an exception. It has an abundance of well read and high calibre judges who can test your mettle. There is really no shortcut to overcoming this challenge, except to prepare well. In commercial litigation, it is vital to know and understand the business of your client and ground realities of the industry they are in. No preparation is sufficient without that.

You have advised well known corporations such as PepsiCo; what unique challenges do you face when representing or advising big companies?

Once we have accepted an instruction or a brief, the quality of the effort we put in is not really affected by the size of the client’s business. But, with a big corporation often comes a big and experienced in-house team instructing us. That can mean potential for more scrutiny, but I think most of the time it works to our advantage as good in-house counsel will usually draft well-articulated and focused instructions making it easier for us to understand what the client really wants from us.

As Thought Leader, can you share the biggest difference between the UK and Bangladesh legal system and how you adjusted to this change?

The British created the Bangladeshi legal system as we know it, but unfortunately we have not really been good at updating and modernising it as time progressed. In terms of time required to enforce a contract, we are ranked at the bottom. Efficiency in dispute resolution is a certainly a key challenge that I have had to adapt to. However, there is always room to be innovative. While drafting contracts, it is particularly important to have a strong dispute resolution clause with an ADR mechanism. Often the prospect of an expensive arbitration can persuade an offending party to settle.

Is there anything else you would like to add?

I would like to thank Lawyer Monthly for taking the time to conduct this interview. I would just like to add that as we speak, Bangladesh is going through exciting changes and is maturing into a modern economy very fast. Mahbub & Company is proud to be a part of the progress and hopes to keep contributing in the future.

Saqeb Mahbub
Barrister-at-Law
Senior Associate
m: +8801725150912 a: F: E1, H: 37, Rd: 12/A, Dhanmondi, Dhaka, Bangladesh

w: www.mahbub-law.com

e: saqeb.mahbub@mahbub-law.com

Saqeb Mahbub is an Advocate of the Supreme Court of Bangladesh having experience of providing legal services to international organizations of repute. He obtained his LLB (Hons) and LLM Degrees from the London School of Economics, UK, and was called to the Bar of England and Wales from Lincoln's Inn, UK in 2009. He has extensive experience in corporate and commercial litigation, documentation and advice. During his time at his previous firm, he advised and represented Wells Fargo Bank, Pepsi Co, TVS Motors, Grameen and Bangladesh Bank among others.

MAHBUB & COMPANY is one of the leading law firms in Dhaka, Bangladesh having extensive litigation and corporate services experience of over 20 years. We have a strong client base of local and international businesses and organizations across all emerging and established sectors.

With a dedicated team comprising of UK-trained Barristers and qualified Advocates, Mahbub & Company is a client's one-stop shop for legal assistance.

MAHBUB & COMPANY is the a trusted legal adviser to businesses spread across the construction, energy, real-estate, technology and shipping industries and acts as a full-service firm with a dedicated corporate team.

Members of the firm have expertise in a wide range of areas of law and regularly participate in policy-level meetings on legislative reform. MAHBUB & COMPANY prides itself on modern, cutting-edge legal practice that breaks traditions and is client-oriented to the core.

The firm's expertise in corporate affairs lies at the heart of services giving impetus to its litigation and arbitration practice in commercial law, shipping, intellectual property, employment, tax and so on.

Below we have a short Q&A with Ogier Partner, Daniel Richards, who discusses The International Stock Exchange. As we are into the latter half of 2017, Daniel speaks on the development of the Exchange over the last 12 months and where opportunities have arisen, most notably as a result of Market Abuse Regulation and further interest globally in what it can provide institutional investors.

What developments have affected TISE in the last year?

From the perspective of The International Stock Exchange (TISE), there have been three significant developments over the last 12 months: the impact of the EU Market Abuse Regulation which came into effect on 3 July 2016; the TISE expansion to the Isle of Man (and accompanying rebrand); and, inevitably, Brexit uncertainty. The Market Abuse Regulation (MAR) extended the scope of existing EU market abuse regulation to issuers of debt securities which are currently listed on EU markets for the first time, including many commonly used exchanges for the listing of Eurobonds. MAR requires that appropriate measures, including policies and procedures, are put in place to ensure compliance, for example in respect of additional disclosure requirements, the preparation of insider lists and reporting of transactions involving persons discharging managerial responsibilities within the issuer (PDMRs) (which can have a de minimis threshold in certain Member States as low as €5,000 to trigger the reporting obligation) and the maintenance of lists of such PDMRs and any associated persons. As an internationally-recognised exchange situated in the London time zone applying generally applicable London market norms with recognised expertise particularly in relation to debt securities but without the additional regulatory compliance burden of MAR, TISE has seen a 50% increase in year-on-year debt listings.

Aside from MAR, how does TISE position itself in regulatory terms?

The absence of MAR compliance is not to say that the regulatory standards of the exchange present a soft option. TISE's position on MAR is instead recognition that specialist debt securities issued by special purpose vehicles (as defined in the exchange listing rules) tend to be purchased and traded by a limited number of sophisticated and/or institutional investors. Disclosure requirements in the listing particulars have been set at a level to provide such investors with sufficient information to make an informed investment decision regarding the listed securities but without imposing unnecessarily onerous demands on an issuer. TISE's status as a highly-regarded exchange in terms of regulatory requirements is underlined by its status as an Affiliate Member of both the International Organisation of Securities Commissions (IOSCO), and the World Federation of Exchanges (WFE), and the more recent recognition from the German financial services regulator (BaFin) enabling German UCITS funds – which are designed for retail investors – to invest into products listed on the exchange. That recognition demonstrates that the absence of MAR is not viewed as a regulatory weakness inside or outside EU countries, on the contrary, the international recognition substantiates the highly regarded position of TISE-listed securities in terms of investor asset allocation.

In commercial terms, what has the impact of these development been?

This combination of factors has led to a very healthy growth in activity on TISE during 2017. The exchange has said publicly that the first five months of the year saw 270 new listed securities, representing a 50% rise on a year-on-year basis. They have also confirmed that – as forecast by ourselves among others and on which we have advised – there have been migrations from other exchanges which are subject to MAR.

Who is using TISE?

There is an increasingly international flavour to the promoters, arrangers and issuers using TISE. Chinese and South African firms have used the exchange in recent years, and the more recent activity demonstrates an increased popularity and market share in Europe and the US. Of more interest, perhaps, than the geographical spread is the range of industry sectors represented on the exchange – at the end of last year, the exchange listed the first regulated Bitcoin fund to be listed on any exchange globally, laying down a marker that the exchange is open to innovative activity. New activity on TISE includes a mix of European and US companies (including high-profile issuers such as Netflix).

Is there a flow of business from MAR-regulated exchanges?

TISE has confirmed publicly that the last 12 months has seen both new issuances, and migrations from exchanges subject to MAR, including the Irish Stock Exchange and the Luxembourg Stock Exchange. As the leading sponsor of listings on TISE (and as a member of the exchange since its launch in 1998) our team at Ogier has seen significant activity in listings across a range of areas including bonds, corporate debt and special purpose vehicles.

How does Brexit play into the current position?

The shadow of Brexit hangs over much of what we see in terms of current trends in international investment activity, and albeit that TISE's position outside of the UK and the EU is not directly affected by the UK's decision to leave the EU, it has had an impact. The main implication is that while questions about the potential impact of Brexit on the regulatory environment remain in the air (and appear likely to remain unresolved for some time) TISE represents something of a beacon of certainty. The fact that there has been marked growth since the Brexit vote tends toward supporting this view.

What does the future hold for TISE?

TISE has almost two decades of established track record behind it as a recognised exchange, and its recent growth bodes well for the immediate future. That optimistic view is supported by a range of factors: close links to London, in physical as well as professional terms; increased visibility since its expansion and rebrand; the non-applicability of MAR compliance; the stability it presents in contrast to the Brexit uncertainty; and the international recognition of its standing including in terms of asset allocation eligibility for the most highly regulated EU retail investor funds. As the leading sponsor in terms of listings, and having been involved since its launch in 1998, the Ogier team is ready to assist with any inquiries about any aspect of listing on TISE.

Daniel Richards
Partner
Jersey, Luxembourg
www.ogier.com

Daniel practiced in a City law firm before joining Ogier in Jersey, and recently returned to the Island after having spent five years in Luxembourg having jointly established Ogier's presence there. Daniel is qualified in England and Wales, Jersey and Luxembourg.

Ogier provides practical advice on British Virgin Islands, Cayman Islands, Guernsey, Jersey and Luxembourg law through our global network of offices. Ogier is the only firm to advise on these five laws. We regularly win awards for the quality of our client service, our work and our people.

International legislation and local regulations in Romania

For almost 30 years, the “Eastern Block” has been busy transitioning to a ‘market economy’. For some countries, such as Romania, this has been a radical proposition, not least because the starting point was very much to the very left of the spectrum of socialist economies, with very little to no private business activity and private ownership scaled back to the bare minimum. It was an exciting journey dominated by a turbulent mix of regulation and de-regulation, each with its own success stories and cautionary tales.

It was also a very interesting period for “legislative transplant”, be it with respect to rule of law institutions or human rights, business organisations or governance, taxation or competition law. Also, interestingly, there was an unprecedent shift to a mix of local-and-international order. A plethora of Bilateral Investment Treaties (BITs) and multilateral agreements, European Court of Human Rights (ECtHR) precedents and EU “acquis”, all place Romania now firmly on a “dual” foundation of locally-crafted, as well as internationally-designed, regulation impacting businesses in all sectors and walks of life.

This has put pressure on the legal community to think outside and beyond the narrow confines of traditionally local regulation, to start internalising general concepts of EU law, of international public order and human rights and to learn new habits and practices of international dispute resolution.

How can Bucharest become a legal hub for the region?

Romania is increasingly a hub destination for investments in the region, with a maturing managerial class and commercial acumen growing over time and not least with a strong and vibrant legal profession.

One key to growth is legislative stability and this continues to be a challenge, although the pace of legislative change is dampening. According to one survey, the number of laws adopted in Romania (and the CEE region) exploded in the early ‘00s and stabilised at a fairly high rate ever since.

To deal with this, the justice system must come and balance the change with professional and predictable dispute resolution avenues.

Recently, Bucharest has seen increasing interest and development in international arbitration which may prove to be momentous for its development in the coming years. In a recent development, Bucharest International Arbitration Court (www.bucharestarbitration.org) has become the most prominent addition to the international arbitration scene in CEE and is sure to provide a healthy alternative to both regular commercial courts and existing arbitration venues.

This is an example of change forging ahead by example more than top-down regulation and we hope it will provide a benchmark for how modern disputes can be managed fairly, professionally and in a cost-effective manner.

In terms of top-down regulation, what states can do to promote arbitration is to a certain extent “get out of the way” or avoid micro-managing procedures through arbitration laws, all the while providing a “safety net” to participants in terms of ultimate control over ethical issues and due process.

What challenges do you face during international arbitration?

International arbitration worldwide is booming and this is indisputably a good thing. As growth continues, so are concerns with ethics, costs and case management. In my view, an arbitration scheme is as good as the arbitrators it fosters, and, in particular, it depends a lot on their ability to manage parties’ conduct.

Modern international arbitration owes a lot to civil procedure in big common law jurisdictions, such as New York or England. This gives common law lawyers an edge, which reflects in the relative share of common law lawyers’ appointments in Europe. Increasingly, dual qualification or experience with dealing with continental law in a modern “common-law” fashion, has become, rightfully, in high demand. As much as common law lawyers may be naturally conversant with the language of international arbitration, many disputes in Europe hinge on a sophisticated grasp of continental systems. The best arbitrators I encountered knew their way around both common law and continental institutions.

How does a lawyer keep a business-like mindset?

Thinking from a business perspective is a professional necessity for lawyers. There are of course purely academic or research lawyers out there that play a major role in the development of the law, but, for professionals, knowing the business is half of the job.

How do you keep your eye on the business while scanning arcane precedent and dense statute? You should of course stay informed, read the “pink pages” of the morning newspaper. But what I always advise younger lawyers is to use a simple rule-of-thumb and ask themselves: “Would I, with my parents’ pension money, invest based on my own advice?” In other words, to remind yourself at every step that people do act and take risks based on what you do as a lawyer, and the work is not just a matter of pleasing your supervising attorney. Thinking about the business should inform everything you deliver.

Ideally, regulation should also be solidly anchored in how business is likely to react to it. It is pointless to introduce rules that no one will follow or understands, just as it defeats the purpose to propose rules that generate the exact opposite of the political aims. I suppose that what regulators should always ask themselves is: “If I were a bank, an insurer, a business, and had to act on this rule, would I engage the Compliance Department or hire 15 lawyers to help me avoid it?”

What do international businesses think about “corporate” Romania?

Many multinationals now have extensive experience with Romania, its rules and practices. Mid-market players are more in need of assistance and are understandably cautious in navigating a new market. In our experience, it is good to obtain ample legal and regulatory guidance on entering the market, not least so that one can avoid misunderstandings or false hopes. If the peculiarities are known, they become clear cost items, which is something businesses know how to handle well.

There is also a common narrative about corruption and we found it has mixed effects on foreign businesses; serious multinationals are naturally apprehensive about it, perhaps overreacting to non-existent dangers, while more speculative investors would sometimes count on a “fixing” culture that is overhyped.

In reality, Romania is a just another EU country, with lots of opportunity that is best accessed with solid legal and regulatory support. In a sense, it is not unlike Italy or some of the other newer EU members, except that there is more room for growth.

On a slightly different note, you think that cognitive psychology will change this century in deep and interesting ways; can you expand on this? Moreover, do you think this way of thinking will impact the legal sector, and if so, how?

“Cognitive psychology” is a name given to a new and more realistic and disabused attitude to the life of the mind and is not so much radically different from classic academic psychology, as it is more focused on certain avenues of investigation. It is also intensely open to other disciplines, such as artificial intelligence, social psychology, behavioural economics, neuroeconomics and neuroscience in general. It is now percolating into general culture and I expect that within our generation most people will be using fluently the new language of how the mind “computes attitudes,” or “encodes” social knowledge, or how a “heuristic” might make “evolutionary” or “ecological” sense, and so on, eventually replacing Freudian psychology which dominated 20^th century’s take on how the mind works.

Will it impact lawyers? Of course. If the legal practice is about something, it must be about people. A very visible contribution to the sector was by way of recent advances in artificial intelligence, which benefited greatly from a more realistic understanding of the biological mind. Today, we already have a lawyer-robot hired by a law firm and machines that plough through disclosures and due diligence at a pace which would make human alternatives prohibitively expensive. This is due largely to our progress in understanding of psychology.

But there are other areas as well. Cognitive psychology offers new insights in human motivation, which may impact the way law firms strive to attract and especially retain talented lawyers. We learn every day more about how people develop alliances, how they assign value and how they perceive loss. All this will eventually inform the way we develop argument in court or conduct negotiations, as well as the way we set up our own organisations.

Bureaucracies are slower in adopting such changes, but regulators will eventually become more adept at recognising the hard realities of human behaviour. Already back in the ‘90s, the “broken windows” theory of criminality has become common place in the US and “nudging” has recently become a respectable way of thinking about “light-touch” regulation. Either way, it would benefit regulators to be at the forefront of psychological understanding and, I dare say, promoting it would be the morally responsible thing to do for politicians.

Adrian Iordache

Adrian Iordache proudly runs the firm as Managing Partner. Adrian is an international lawyer with particular interests in business law, commercial disputes and international arbitration, as well as aviation law. Adrian is widely recognized as a pragmatic, business-first attorney, with a deep knowledge of both the international environment and local complexities. In his spare time, Adrian is absolutely convinced that cognitive psychology will change this century in deep and interesting ways.

 Iordache Partners is a no-nonsense, project-comes-first approach to legal services. The way they see it is that lawyers are partners, conversing fluently in the language of business, adopting entirely the project for which they provide support.

Your ideas keep the world in motion and their job is to make sure that nothing stands in your way. It’s that simple. So they root for new business, support good ideas and promote intelligent choices.

 In what ways would you say IP differs when you are dealing with cases in the US and Europe, in comparison to Nigeria?

 There are numerous differences but let me highlight a few:

 ·         In UK and US, smells, sounds, shapes and colours are recognised as having trademark capability and are formally protected under relevant Trademark legislations as opposed to Nigeria, whose Trademarks Act is a regurgitation of UK Trademarks Act of 1938 and thus less modern.

 ·         Still on trademarks, the UK (unlike Nigeria), does not require any examination on relative grounds prior to acceptance for publication, thus putting the onus on 3^rd parties, to oppose applications of interest to them at the advertisement stage. This reduces the time frame for obtaining registration.

 ·         In both the UK and USA, ownership of a trademark is established by whoever first uses it in commerce. This is known as the First to Use system. It requires you to actually use the mark in connection with goods or services in order to protect your trademark. Therefore, if there is a dispute between you and another party over a trademark, whoever used it first commercially will own the right, even if they did not register it. In Nigeria, the registered trademark owner is the legal owner of the trademark and has superiority over any other right. However, exceptions are made where there is evidence to show that a person or a predecessor in title has continuously used that trademark from a date previous to the use of the registered trademark. The Registrar may permit the registration of trademarks that are identical or nearly resembling each other by way of ‘Honest Concurrent Use’.

  ·         Still on patents, the US recognises the ‘First to Invent’ rather than the ‘First to File’ system which obtains in Nigeria. Whoever establishes proof of being the first inventor of an item or technology will be awarded the patent, rather than who filed first. In Nigeria, the first to file is given a patent right in addition to the real inventor.

Uwa Ohiku

Telephone: (234)-1-4626841, 1-2806989

www.jacksonettiandedu.com

Email: uwaohiku@jacksonettiandedu.com, ipjacksonettiedu@jacksonettiandedu.com

Uwa is a Partner and Head of the Intellectual Property Department (IP) of the Firm. She has specialist experience in all aspects of IP law & practice and handles the local IP portfolios of numerous blue chip international corporations based particularly in the US and Europe.

 JACKSON, ETTI & EDU is a leading full-service commercial law firm rendering legal services to a broad spectrum of local and international clientele in diverse areas of law. With over 30 years combined valuable experience, our lawyers have gained extensive experience in advising and acting for clients on a wide range of subject matters.

Neil S. Lerner has practiced maritime and transportation law in Southern California for 30 years and his level of expertise is evident when we speak with him. Below, he discusses how he has seen the maritime and transportation industry develop – touching on the impact of UBER -, and changes he is eager to witness.

You have practiced maritime & transportation law in state and federal court in Southern California since 1987; can you share with Lawyer Monthly the ways in which you have seen these industries develop? How has the legal sector addressed these changes?

This is the most dynamic period in the maritime and transportation industries in my 30-year career.

For ocean carriers, the momentous Hanjin bankruptcy was followed by a consolidation in vessel ownership, with OOCL (Orient Overseas Container Line) and COSCO (China Ocean Shipping Company) joining forces as one example, which was followed by Maersk gobbling up the business impacted by the Hanjin bankruptcy; this was followed by recent news reports that CMA CGM may be purchasing as many as nine new ULCV’s (Ultra Large Container Vessels). As quick as existing players exit the market, new entrants come in, the survivors double down and the giants pick up the pieces. It’s like watching a global chess game play out in real time. In addition, larger and larger vessels are carrying more and more high value cargo, while marine underwriters hold their breath.

For motor carriers, private equity is lining up to acquire majority stakes in well-established trucking companies, Silicon Valley is engaged in a high-stake race to perfect driverless trucks and autonomous vehicles, UBER and Amazon have entered the freight moving industry and NAFTA is being renegotiated.

Change is everywhere and it is very fluid and exciting.

Your emerging practice areas are transportation network companies (TNC) & trucking; how have you seen upcoming transportation services, such as UBER, change the legal issues you see? Has this spurred on any changes in regulations, and/or do you foresee any changes to address the shift in technology and transport?

The expansion of the UBER, Transportation Network Company (TNC) model into other modes of transportation, such as trucking and (initially) coastal shipping is a certainty as is the survival of the TNC model. Before UBER’s management problems came to light, I was told by a colleague at the California Public Utilities Commission, which regulates TNC’s, that UBER’s survival was a certainty because the Governor of California wanted UBER to succeed. One consequence is that private equity money is pouring into the TNC and trucking space. The next interesting development will be the response of the taxi industry to the threat posed by the TNC model. It will be aimed at regaining their lost market share, which estimates peg at 30%, and will be propelled by new technology and evolved business models.

Can you share the challenges you face when acting on unfair competition cases? How do you overcome these challenges?

Unfair competition cases rarely settle because the parties have spent years hating each other and one party is convinced the other is acting unlawfully and stealing customers. These obstacles are generally overcome by taking the case to trial after years of bitter discovery. But even after a trial, one party usually continues to believe - with some basis - that the other is still engaged in unlawful trickery. These cases start as wars and stop as cease fires; they never really end.

Are there any regulation changes in maritime and transportation law that you are eagerly anticipating, and if so, why?

Nationally, in trucking, the FMCA’s December 2017 ELD mandate is being closely watched, truckers are ramping up their compliance plans and purchasing equipment and confusion abounds about the FMCSA’s enforcement plan, which has not yet been detailed for the public.

Locally, states are flexing their muscle by regulating industries (shipping, trucking and, to some extent, air carriage) that were previously thought to be immune from state regulation because they were regulated exclusively by the feds. Consequently, pre-emption of state regulation of interstate and international commerce, primarily in trucking and shipping, has been side-lined as the states cleverly disguised their regulatory intent by labelling it “green” and promising cleaner air and water in return, which, of course, has not happened. Deregulation is, for all intents and purposes, on life support.

Neil S. Lerner
Partner
Cox Wootton Lerner
12011 San Vicente Boulevard, Suite 600
Los Angeles, California 90049
Phone: (310) 440-0020
Email: nsl@cwlfirm.com

A partner at CWL, Neil S. Lerner has been named a Southern California “Super Lawyer” for maritime and transportation law in 2012, 2013 and, recently, for 2014. Prior to joining CWL, Neil was a founding partner at Sands Lerner (1992-2013). He has practiced maritime & transportation law in state and federal court in Southern California since 1987. His CV can be viewed at www.transportationlaw.com.

Cox Wootton Lerner is an award-winning law firm that provides litigation and business attorneys, as well as transactional services to clients throughout San Francisco, the Western United States and around the world.

Our work is inspired by the relationships we have with our clients, with whom we work as a team to reach and surpass goals. This team-driven approach, combined with our extensive experience and knowledge of the businesses and industries we serve, allows us to handle cases and transactions in a thorough and cost-effective manner. We invite you to explore this site and contact us to find out how our litigation and business attorneys in San Francisco can serve you.

From the beginning Corbion has always had a special focus on establishing fruitful cooperation's with trust-worthy partners.

Barbara Veldhuis says: “Corbion needs such partners, as in our role as ingredient supplier we're always very much depending on the success of our customers further down the chain.

“This last decade Corbion has, and continues to, put much effort in gaining know-how on the application side of our products and in particular the application of our bio-based molecules.”

As more and more parties are entering into this field, it is essential for Corbion to monitor the technical and IP developments in the field and continue to vest in the search for valuable partners. We speak with Barbara about this topic and how her background in chemical engineering, offer her a unique stance in the IP field.

What made you transition from chemical engineering into the field of law?

I actually did not experience this as a transition in that sense; in my roles as patent attorney, legal (contract) counsel and lead of the IP department, both disciplines are required. The first joint venture for Corbion 20 years ago (Corbion was named Purac at the time) first introduced me to the intriguing world of IP. The company provided me, a recent graduate, a unique opportunity in managing and actively participating in the start-up of a completely new plant and process together with that joint venture partner. In working with our partner, I got more insights in the typical IP-related challenges and opportunities that arise when parties are cooperating and are sharing know-how, and how having clear legal arrangements and working protocols can actually contribute in bringing the joint venture to a success. At that time Corbion did not yet have an IP department in place nor an in-house legal counsel. It was in 2002 that both the company and I decided to make a move towards the set-up of an in-house IP department followed by me in 2004 to become a Dutch & European patent attorney.

Moreover, how does your background in the subject enable you to be ahead of your game in the legal sector?

The combination of both technical and legal know-how is pretty unique in the legal sector. However, it is essential for Dutch and European patent attorneys as it is one of the requirements to become a patent attorney. The majority of the legal counsels and even the IP litigators I know do not have an academic or university degree in a technical field, let alone gained any working experience in such a field. The same holds for many IP judges. Both disciplines and my working experience enable me to provide additional value in the work as patent attorney, but also as counsel in negotiating and setting up legal contracts. This is because I can explain to legal and business (on both sides) and challenge the meaning and relevance of most of the technical aspects involved. In my role as Director IP, I am able to participate in the discussion on the company's strategy and in what direction to steer R&D/innovation. It often is not realised, that patent attorneys can play an important role in competitive intelligence due to insights they gain through their work as patent attorney.

How has the advancement of technology affected the patent field in the Netherlands?

Statistics from the European Patent Office (EPO) indicate the increasing Dutch potential in advancing

technologies and growing patent field; the number of Dutch patents granted via the EPO system grew significantly in 2016 (apparently a new record number and the strongest growth in 10 years). The Netherlands held a fourth position in Europe and a seventh position in the year before in filing patent applications with the EPO. Moreover, the Netherlands is within the top 10 of largest number filing countries of the world and within Europe a second place was achieved by the Netherlands in the number of filings with the EPO when expressed per capita ranking/mio inhabitants. These numbers also indicate the increasing interest of parties to maintain an IP position in the Dutch economic landscape. More and more parties realise that patent rights provide a means to establish a legally-allowed (in view of anti-competition laws) exclusive market position in which the patent holder can forbid other parties to initiate production and commercialisation activities of the patented processes and products or applications. Dutch patent rights may as well be used in preventing parties from using the Netherlands in transporting the patented products from one part of the world to another (also if those patented products are only stored temporarily 'in between' transports and do not enter the Dutch market).

How has it affected Corbion?

Corbion has a history of more than 85 years in lactic acid manufacturing and applications, and has maintained a leading market share. Not so many patent positions exist on the conventional manner of lactic acid production and Corbion owns the most essential ones.

Corbion strives to contribute to the transfer to a circular economy by amongst others optimising the lactic acid manufacturing process to avoid byproduct formation, to optimise the energy balance and to reduce the carbon footprint. Corbion further aims to contribute to the circular economy by providing bio-based molecules made by using renewable feedstocks as alternative or to replace fossil-based molecules (e.g. polylactic acid (PLA), bio-based succinic acid and poly-ethylenefuranoate (PEF)).

A circular economy is a must for our world-existence. Luckily many parties see the necessity of this as well and are developing new process and product technologies. This increasing participation is observed in the patent field as well and in the end, serves the original objective of the patent system: to increase and stimulate innovation by publication of patent applications, including the newest technology developments in return to the patent owner of a compensation in the form of a 20-years exclusivity period.

Barbara Veldhuis

Director IP and registered Dutch and European Patent Attorney

Corbion Group Netherlands bv

Arkelsedijk 46 • 4206 AC Gorinchem • P.O. Box 21 • 4200 AA Gorinchem • Netherlands

T +31183 695 822

Barbara.Veldhuis@corbion.com

www.corbion.com

Barbara has been at the company since 1996. She started in 1996 as process design engineer after having completed her masters in Chemical Engineering at the University of Delft. She became Corbion‘s head of the Intellectual Property (IP) department as Dutch and European Patent Attorney in 2009. She has been involved in the formation and operation of three major joint ventures, various bigger cooperation's and experienced the typical IP-related challenges that comes with that. She as well gained much experience in contract set up and negotiations in her temporary position as legal counsel. Her focus since 2009 has been to have ‘IP’ being used as an enabling business tool to support the business strategy and direct innovation. Barbara has been recognized as corporate IP star of 2016 and 2017 by Managing IP.

 

Corbion is the global market leader in lactic acid and lactic acid derivatives, and a leading company in emulsifiers, functional enzyme blends, minerals and vitamins. We develop sustainable solutions to improve the quality of life for people today and generations to come. For over 100 years, we have been uncompromising in our commitment to safety, quality and performance. Drawing on our deep application and product knowledge, we work side-by-side with customers to make our cutting edge technologies work for them. Our solutions help differentiate products in markets such as food, home & personal care, pharmaceuticals, medical devices and bioplastics.

With religion heavily influencing perceptions towards divorce in the past, the shift in addressing family law and separation has changed over the years. Societies are becoming more forgiving towards those who wish to pursue divorce and legal changes have allowed the process to be easier for those involved.

Ana Maria Kudisch Castelló has over 30 years’ experience in the field of family law and we speak with her this month to how she has seen Mexico address the shift of perception towards separation and how she handles cases involving child abduction.

How has the perception of divorce changed in Mexico since you began practicing? How has this affected your role?

The perception of divorce has most certainly changed; in the past, people needed 21 causes to obtain a divorce but since 2008, a member of one of the parties only need to inform the judge that they want to have a divorce, without any reason for it. Therefore, the real fight is now on the consequences of this change; I would say that my role has been not really been affected by this shift in perception.

What is the most challenging nature of dealing with cases involving child abduction? How do you overcome this challenge for the benefit of your clients?

The challenge is obtaining another lawyer in the country where the child has been abducted, so the client will have the support of a lawyer in the respective country, which will thus help the client with the procedure. I try to assist the international congresses on family matters and it would be beneficial to know lawyers in the respective countries reciprocate the same efforts, in order for me to obtain such help if needed.

What do you think is key in maintaining a divorce that is in the best interests of the children? How do you ensure your clients make the correct decision with their children in mind?

It is so important that parents know and remember that their children have no responsibility in the bad relationship they have with their (to be ex) spouse. They should try to give their children what they had before the divorce and separation, including seeing their mother and father, if not together at the same time, then at least on equal amounts.

As Thought Leader, can you share with us the most motivating aspect of your role?

What motivates me is ensuring and seeing that children are well protected and have the same life as they had before the divorce and separation of their parents, as well as obtaining the best for both sides of the new family.

What changes would you welcome in Mexico, to better your clients and the ease of family law?

That there are stricter guidelines for parents to pay up when needed; judges ought to enforce parents to pay the money that they owe their children, and that they cannot get away with avoiding payment.

Ana Maria Kudisch Castelló

Founder and Owner

Agustín González de Cossío # 229

Col. Del Valle. CP 03100

Del. Benito Juárez

México, D.F.

 Phone:

+52 (55) 1107 8604

+52 (55) 1107 8605

+52 (55) 5543 8788

 Email:

contacto@kudischabogados.com

This is Ana Maria Kudisch Castelló owner of Kudisch Abogados S.C. a firm specialising in family law and international abduction; she has a master degree in family law and has a vast amount of experience in related matters in Mexico. She is also an expert witness in foreign countries.

 Kudisch Abogados SC was founded by Lic. Ana María Kudisch Castelló, who has more than 30 years of experience as a litigant in the various matters of civil, family and mediation law.

The Firm is made up of lawyers whose work experience has been projected in the practice of civil litigation, family, amparo, exercise and general legal advice in this area.

Kudisch Abogados has professional experience in Mexico and Abroad, due to the fact that they have participated as experts in Family Law.

We try to take care that in the affairs of Adults, children are not destructively involved.

 

We are a Law Firm interested in seeking justice and equity in any conflict that comes to our hands and with our ethics and professionalism to make our clients feel respected, accompanied and supported by our experience.