Understand Your Rights. Solve Your Legal Problems
EU regulations are not always understood by the member states, and this inconsistency can often lead to struggles for those investing, dealing with tax, or generally solving tough legal cases. We speak with Dr. Levente Lajos, whose knowledge on Hungarian law and EU law, helps guides his clients from the UK, Italy and Hungary itself. He discusses the regulatory changes which would benefit his clients that deal with EU and Hungarian regulations, as well as the malfunctions associated with the Hungarian legal system.
Can you share how your various qualifications from a wide range of jurisdictions enable you to be ahead of your game?
We work for international clients mostly from Italy, the US and England, who invest in Hungary. The understanding of various mentalities and legal cultures is fundamental to assist them in an efficient manner. There are very few colleagues who are able to follow a deal in English, Hungarian and Italian language at the same time with the understanding of the three legal cultures.
How did studying in the US differ to practicing law in Hungary? What challenges did you face to which you did not expect to come across?
Studying in the US added a lot to my approach as a practicing lawyer because the teaching method was more practical. While we were listening to theoretical lectures in Hungary, in the US we discussed certain cases from different points of view. The challenges I did not expect were examples of malfunction associated with the Hungarian legal system.
Could you expand on this and explain the examples of malfunction that are associated with the Hungarian legal system?
For example, the domestic regulation is often in conflict with the European law. We had important cases concerning agricultural subsidies where the Hungarian authorities denied the payment of certain subsidies which should have been paid under European Union law. EU law prevails, so we won at the Highest Court and the domestic rule was consequently modified. Another example is when the legislation goes against the rule of law and human rights. The usufruct rights registered not for family members on agricultural land were canceled in Hungary via legislative changes, from one day to another without compensating the damages. We are initiating a class action for the damages in the second case and I hope that it won’t be necessary to go to Strasbourg [European Court of Human Rights] to win the case.
Moreover, are there any regulation changes your clients, and thus Hungary, would benefit from?
I would change the whole system starting from the constitution. The regulations should be simplified and the bureaucracy as well.
You have recently completed studies in European law – can you share aspects you learnt which thus changed the way in which you practiced law for your clients?
The EU law studies help me during lawsuits when a wrong administrative or court decision is based on a domestic rule which is not in harmony with European regulations. You can find many examples in the field of tax law. The interpretation of the export VAT of the Hungarian tax authority is too burdensome for the issuer of the invoice; they think that the seller should control in every possible way the products exported abroad, when it is usually under the control of buyer.
Levente Lajos
Managing Partner
www.en.studiolegale.hu
+36 1 3316171
Lajos Law Firm’s Managing partner began his career in 1997, starting from an elegant, classic-style law office in the downtown city of Veszprém. In the almost twenty years since, Levente has never ceased to work on every single case with the same energy and dynamism. With long-established family connections, the main profile of his law firm has always been Italian clientele. Looking outwards, the young attorney establishes a law firm in the heart of Budapest which soon expands to a lawyers’ association characterised by professional attitude and dynamism. In 1993, Levente studied banking and corporate law in the USA at Tennessee University, Knoxville. In 1994, he continued on completing his studies at Janus Pannonius University of Pécs. In the following, he obtained a master’s degree in the field of banking and finance at Giordano dell’Amore Foundation in Milan, Italy. Completing his bar exam in 1997 , Levente obtained a postgraduate diploma in European Union Law at King’s College London in 2012. In 2014, he completed a postgraduate course in Insolvency Law at University of Pécs and recently followed studies at University of London for an LLM specialisation in European law.
Lajos Law Firm has been representing Italian, Hungarian and English-speaking clients for nearly twenty years. We welcome complicated and challenging tasks as we consider these to be the merit of a lawyer’s profession. Our service is based on confidence – to earn that, we have to prove our professional and responsible attitude day by day. A lawyer’s self-confidence first and foremost is based on up-to-date professional knowledge. Therefore we maintain and raise the quality of our services by ongoing professional training. Accounting, Real-estate development, HR, Marketing and other services provided by our Partner, the ITL Group Ltd. make us possible to cover the needs of most of the clients.
We all knew that after the Panama Papers scandal, Swiss banking disclosures, and the release of information concerning the Russian/Global Laundromat that the Government would respond to the facilitation of tax evasion at some stage. As a result, Regulation 3 Criminal Finance Act 2017 (commencement No 1 Reg) will enact this new corporate offence, of failing to prevent the facilitation of tax evasion, as of 30 September 2017. This is a strict liability corporate offence only. Following the model as enacted by S7 Bribery Act 2010, it does not apply to individuals, and prosecuting authorities are not required to provide intention to commit this crime.
Tax Evasion is a criminal offence, as opposed to tax avoidance, including aggressive tax avoidance, which is not. Though saying that, aggressive tax avoidance is a grey area, and HMRC have originated criminal prosecutions, in relation to film tax schemes for example, which one would have assumed to fall within the remit of tax avoidance. It’s just one of the potential traps that a business could make under this statute.
Tax evasion is covered in UK criminal law by the following offences: Cheating the public revenue, and Being knowingly concerned in, or in taking steps with a view to, the fraudulent evasion of tax.
There are in effect two separate corporate offences created by the Criminal Finances Act 2017, and both apply to companies, LLPs and partnerships alike:
i. Failing to prevent the facilitation of tax evasion in the UK
ii. Failing to prevent the facilitation of foreign tax evasion (i.e. in a foreign jurisdiction which has duality , i.e. equivalent criminal offence of tax evasion and the facilitation of tax evasion)
For the offence to be made out there has to have been an offence of tax evasion committed either in the UK or abroad by either a tax payer or business (note: there is no requirement for a criminal conviction of the tax evader) – it must have been facilitated (enabled, aided, abetted, counselled, procured) not just by an employee, but includes others associated with the company. This is a very wide category and may include agents/suppliers/sub contactors, for example. It is not possible to give an exhaustive list of those likely to fall within the statutory definition. In short, the business is vicariously liable for the actions of these individuals, though perhaps arguable as far as the actions of a rogue employee/director/partner acting upon their own criminal accord are concerned. It is unlikely to apply in the situation of a straightforward referral.
The facilitator who negligently or mistakenly facilitates tax evasion will not have committed a criminal offence, which requires a criminal intent.
Finally it must be proved that the business failed to prevent that individual from committing the crime.
The Act does provide for a statutory defence, again along the lines of S7 BA 2010, if the business has in place reasonable methods to prevent facilitation by its associated persons, or it is unreasonable to have such procedures in place (more difficult to raise successfully). If successfully prosecuted, a company can face a potentially unlimited fine and/or the confiscation of assets.
It applies to any business that is formed or does business in the UK, and if any element of the facilitation takes place within the UK. At present the only guidance for businesses is to be found within Draft HMRC Guidelines (October 2016), though we know that the Law Society are working with the BAA and Institute of Chartered Accountants in England and Wales (ICAEW) to provide definitive assistance before 30/9/2017.
Let’s look at what HMRC are currently advising in relation to Reasonable Procedures: It will not be possible for a compliance team to rely on existing AML or ABC procedures to comply with the Act, even though Tax Evasion can fall within the definition of money laundering.
The whole issue of tax evasion is very fast moving, topical, international, multi-faceted, and ultra-sensitive. Therefore implementing risk assessments, procedures, training and monitoring are always going to be a work in progress.
If you are advising a multi-national business, then have jurisdiction specific systems in place to avoid falling foul of the act.
HMRC have identified six principles that they expect to see applied, in short they are looking for evidence of full risk assessments, clear policies, continuous training, board/senior management approval and application in order to reinforce these principles and change business culture around this issue.
They expect procedures and training to be proportionate to the assessed risk that the business could face.
i. Full Risk Assessment – this must be evidenced and specific to the business, sector and jurisdiction. Carefully assess the sectors and jurisdictions within which the business is working – are any of these jurisdictions red flagged by organisations such as Transparency International, for example? Is the sector high risk? What is the value and frequency of the business and the nature of the services or products that it sells? Look at the behaviours of the customer or those associated with the company – a bonus orientated culture, which HMRC highlight as potential high risk, could be a red flag.
ii. Proportionality – the Government is aware of the genuine concerns expressed by business about over complicated, expensive, onerous systems. It’s important not to overreact, and keep the systems in proportion with the scale and volume of the business.
iii. Commitment from the top of the business – HMRC insists that businesses follow a ‘top down’ approach (from board/senior management down) to this type of corporate compliance. It shouldn’t be regarded as a necessary evil and side-lined. It’s vital that the board and senior managers of the business take this on board quickly, whilst also remembering that the reputation of the business could also be at stake if it found itself embroiled in a Tax Evasion scandal.
iv. Due Diligence – again, back to a combination of a risk based approach and some savvy lateral thinking is required. Also an in depth knowledge of changing markets, sectors, employees, subcontractors and suppliers. Should you insist that these third party associates of the business have their own specific compliance procedures in place? Where could these specific risks arise, and how often? What can you do to mitigate those risks on behalf of the business? Keep an eye on HMRC website and the financial pages in order to keep up to date with Government policy on Tax Evasion, and indeed other governments if your business has interests abroad.
v. Training and communication of policies and procedures – HMRC will want to see clear, up to date comprehensive training documents, regular meetings and training sessions, which involve all those associated with the business, from the board down.
vi. Monitoring and Review – again it is vital to keep all policies/training updated. Additionally, ensure that there are safe and fully protected whistleblowing procedures in place.
Further, remember if in the event the business is prosecuted for these offences, it isn’t just HMRC or the prosecutors who will be scrutinising the businesses procedures and policies but a very experienced judge!
If you require any advice and assistance our compliance, tax investigations and serious fraud defence team are ready to help. We are of the few practices with more than 30 years of experience in this field. Our team is highly experienced when advising upon compliance, the requirements of businesses of all sizes, HMRC, CPS, SFO and the criminal justice system.
Our linked departments have been ranked and rated by both Legal 500 and Chambers UK.
Contact Jeffrey Lewis/Siobhain Egan on 02073872032 or jlewis@lewisnedas.co.uk; segan@lewisnedas.co.uk
Siobhain Egan
Lewis Nedas Law
24 Camden High Street
London NW1 0JH
DX: 57056 Camden Town
Tel: +44 (0) 207 387 2032
Fax: +44 (0) 207 388 6575
Web: www.lewisnedas.co.uk
Siobhain Egan has a reputation for dealing with high profile cases, high rate of acquittals/overall success rate, particularly adept at ‘nipping fraud investigations in the bud’. Her expertise ranges from: (anti-) bribery & corruption, (anti-) money laundering compliance, asset restraint/confiscation, business investigations, cartels, civil recovery/forfeiture, civil settlements, confiscation, corporate governance, corporate investigations, cybercrime, dawn raids & emergency response, disclosure, DPAs, due diligence, extradition, FCA regulatory & professional disciplinary, FX and LIBOR investigations, informants, insider dealing, market abuse, money laundering, POCA, privilege/ protected documents/information, RIPA, s.2 interviews, SAR reports, sentencing, serious crime, serious fraud, SIPP fraud, tax/VAT investigations/tribunals/prosecutions, white collar crime.
Lewis Nedas Law is an award-winning, modern London based law firm, highly rated and ranked in Chambers UK, the Legal 500, and Super Lawyers UK.
Being General Counsel requires extensive business expertise that complements comprehensive knowledge about regulations and legislations. Mastering both sectors is a huge task, yet a successful General Counsel makes it look somewhat simple. We speak with Richard Hughes, whose professional background as a Partner in a 103-year-old San Francisco area law firm, tenured college professor, elected official, in house General Counsel, and now as owner of his current firm, has served his clients well.
What do you think are key characteristics to being a General Counsel? How these have characterises seen positive results for your clients?
A General Counsel is part of the upper management team which is working toward corporate objectives, whether it be to acquire property, obtain corporate parental guarantees, negotiate contracts, address environmental and land use issues, or various other issues that companies must overcome. I try to steer my clients through the maze of legal and regulatory issues that may stand in the way of success. A General Counsel should be mindful of risk, but being completely risk-adverse is itself risky in many cases. Upper level management knows well the danger of doing nothing. If the volume of business is any indication, the approach I have taken is working well.
What are the common reasons for clients asking for legal assistance in relation to public utilities law? Why do you think these queries are so common?
A large part of my business is advising public utilities, which are highly-complex, regulated businesses. Like any significant business, utilities must deal with state and federal regulators, local land use, and statutory requirements that may specific to their industry or more general, such as wage and hour laws. As General Counsel, I am a resource which my clients call on when they need guidance in these areas which, unlike most outside legal counsel, means frequent communication, almost daily. This close professional relationship allows me to better anticipate my clients’ needs.
You were one of a handful of attorneys state wide who was asked by the Washington State Department of Ecology and Department of Health to co-author legislation known as the “Joint Municipal Utilities Services Act,” RCW 39.106; can you speak about this process and the challenges which arose during this process?
These state regulators saw a need to allow utilities to come together and form joint agencies to better serve the rate paying public. They put together a team of legal and subject matter experts to study the need and propose legislative solutions, resulting in a small group of utility attorneys who wrote this legislation. As you can imagine, the draft legislation went through many iterations before being finalised. It was very satisfying professionally to work with industry leaders to enact a new law that allowed utilities to better serve their ratepayers.
As previous founding co-chair of a productive labour-management committee, can you share the important methods employers should undergo, in order to avoid litigation in the workplace?
I take the position that relationships between management and labour matter. The typical positional method of bargaining does not work well in today’s economy. In positional bargaining, each side only attempts to pursue their own needs and wants, without regard to its negative impact on labour-management relations. I have applied, and spoken to large groups of CEOs and Human Resources Directors, about collaborative bargaining that focuses on interests rather than positions. I became interested in this approach after reading a great book entitled “Getting to Yes: Negotiating Agreement Without Giving In,” by Fisher and Ury. Using this collaborative approach is not without risk but I have witnessed lots of success.
Moreover, how have you seen workplace discrimination and the legal process involved in such cases, change over the years? Would you say clients are more aware of their rights in the internet era?
I have seen discrimination cases increase significantly over my 30 years of practicing law. This is in large part because of greater awareness of workplace rights through media such as cable television and the internet. Further, I see less “quid pro quo” (this for that) discrimination claims and more hostile environment and retaliation claims. Many employers today have anti-bullying policies that are a relatively new source of workplace litigation. I spend a lot of time with my corporate clients working defensively on projects such as executive training, a clear hiring process, and updating employee handbooks and other policies to address the current workplace environment.
Have you seen any trends occur over the years in relation to your work as a General Counsel? How have you addressed these trends?
Corporate clients want General Counsel who possess a business background and can look at the big picture. They want to know the risks of a particular course of action and whether alternatives exist that could achieve the same objective while meeting legal and regulatory requirements. Clients want long-term relationships with their General Counsel who can then learn their business and the environment in which they operate. Their General Counsel need to have sufficient credibility so when they advise to take a particular course of action, or to avoid a course of action, clients believe it is in their best interest to do so.
Is there anything else you would like to add?
It is an exciting time to work with corporate and utility clients in the booming Seattle-area economy. Readers are welcome to contact me if they want more information. Thank you for seeking me out and providing a platform to discuss my practice.
Rick Hughes
Law Office of Richard L. Hughes PLLC
324 West Bay Drive NW, Suite 201
Olympia, WA 98502
United States
(360) 464-6533
rick@richardhugheslaw.com
Rick Hughes is the owner of the Law Office of Richard L. Hughes PLLC in Olympia, Washington, which is in the Seattle area. Through his firm, he is General Counsel to several public agencies, as well as counsel to private corporations, higher education universities, and non-profit corporations. He serves as Seattle-area counsel to foreign companies wanting to take advantage of what cable network CNBC recently called ‘the United States’ top state for business in 2017’. He applies his three decades of experience to assist clients in the areas of contract negotiation, land acquisition, governmental relations, labour and employment law, public utility law, and corporate governance.
Mr. Hughes draws on his 30 years of experience as legal counsel to both private and public entities to assist clients in achieving their objectives. He has also been an elected official, author, college professor, court-appointed arbitrator, and speaker before various professional organizations.
The Law Office of Richard L. Hughes PLLC, was founded on the principle that legal counsel should work as a team with upper management, helping clients through legal and regulatory requirements that help produce a positive outcome. The firm’s location in the Washington State Capital, and proximate to Seattle, is ideal for foreign companies wishing to establish a local presence.
Theo Ling is a Partner at Baker McKenzie, a leading firm whose counsel helps clients navigate uncertainty. Relentlessly creative, curious, and dissatisfied with the status quo in legal services delivery, Mr. Ling was recently recognised as one of North America's Top 10 Innovative Lawyers by The Financial Times. He holds a unique perspective on legal innovation and collaboration both as a member of Baker McKenzie's Innovation Committee and as the creative force behind Whitespace Legal Collab, the Firm's recently launched intrapreneurial venture.
What motivates you?
I'm always analysing and questioning the status quo, exploring how things could be done better, and discovering with whom I might collaborate to solve a problem that hasn't been solved before. I am fascinated by the creative process and captivated by how others' viewpoints, knowledge, and skills improve solutions. This explains why I became so motivated to develop a legal services laboratory at Baker McKenzie, where clients, lawyers, designers, knowledge managers, and many others could come together to tackle tough problems that couldn't be resolved without everyone's perspective and contextual understanding.
How is the launch of Whitespace Legal Collab a game changer?
Whitespace Legal Collab stems from the major lesson I learned building the award-winning iG360 end-to-end compliance tool: that the right people working together to solve the right problem, in the right environment is a game changer. Whitespace Legal Collab is the only innovation lab at a global law firm devoted exclusively to such potentially transformative multidisciplinary collaborations.
The Collab, launched in June to kudos from our clients, our business and academic partners, and Canadian Prime Minister Justin Trudeau, provides optimal conditions for creative problem solving using collaborative innovation methods, thereby enabling in-house counsel to solve tough problems they cannot easily address on their own. In addition, the Collab connects Baker McKenzie and our clients with a diverse community of remarkable people in business, law, technology, and other disciplines. This community's shared attribute is the intrinsic motivation to improve how legal services are delivered and consumed.
Teams assembled by the Collab include innovative lawyers from Baker McKenzie and our clients. They also include selected academics, business strategists, data visualisation professionals, IT whizzes, service designers, software programmers, and user experience experts. Our unique approach harnesses well-curated networks to develop powerful and easy-to-use legal solutions that we anticipate will come to define the future of law.
How does Whitespace Legal Collab reduce the inherent stresses of innovation?
From a human perspective, making transformative ideas come to life is difficult especially when there's no community to lean on. The essence of Whitespace Legal Collab is to redefine what collaboration means in the legal profession. The Collab increases the chances of innovation success by supporting its growing community to improve the efficiency, effectiveness, and experience of legal services delivery.
Most often, clients come to us or we go to them with a shared legal services delivery problem. The Collab works with clients to target a pressing challenge; it assembles a multidisciplinary team with an effective mix of knowledge, skills, and perspective to make inroads, and conceives and prototypes a promising solution testing it with a small group of users.
The Collab runs immersive training experiences to help clients learn about business, legal, and technology opportunities in areas such as data analytics, data visualisation, machine learning, and innovation writ large, as well as optimal ways to establish multidisciplinary collaborations. It also supports Baker McKenzie's training and talent capabilities, so that the next generation of lawyers will become more adept at advising clients against a backdrop of turbulence.
Finally, the Collab demonstrates thought leadership, which inspires clients and others to be more strategic about transformational business opportunities and important legal risks related to smart cities, data privacy, and more.
How enthusiastic are clients about your ground-breaking collaborative approach?
There are numerous innovation labs, hubs, and spaces in the marketplace, a lot of noise, and a lack of substance. We take a wide and deep, practical and ambitious, view of multidisciplinary collaboration. This is why clients are very interested, particularly those that are ahead of the curve in their respective industries. These clients' businesses are shaping the future of work, fostering collaboration-oriented cultures, and taking steps to ensure that how they practice law demonstrates leadership to innovative peers outside the legal silo.
Why do innovators find Whitespace Legal Collab compelling?
Baker McKenzie's global footprint and wide-ranging legal domain expertise, which support closer and more impactful collaborations with us and with our clients, are a magnet for innovators.
The Collab's staffing attracts innovators' attention as well. For example, Sanjay Khanna, Director and Futurist of the Collab, is a strategic foresight expert who brings world-class interdisciplinary and multidisciplinary expertise around global trends and scenarios, enhancing the level of creativity and potential impact we bring to collaboration.
Technology leaders IBM and SAS, as well as academic institutions such as the University of Toronto, the University of Waterloo, and York University, love our open innovation approach, which welcomes and highly values diverse expertise.
The key here is a mutually rewarding flow of talent and capabilities that allows: emerging technology to be leveraged; workflows and user experience to be redesigned; data to be structured more logically; deeper insights to be generated through visual and natural language storytelling; and more integrated solutions to be delivered.
What role does Whitespace Legal Collab play in Baker McKenzie's strategic plan?
Last year Global Chair Paul Rawlinson stated that innovation is one of the three key drivers of Baker McKenzie's strategic plan. Soon afterwards, the Firm's innovation committee assessed proposals for new innovation labs worldwide of which Whitespace Legal Collab is the first.
The Collab is therefore a flag bearer of Baker McKenzie's innovation agenda. The Collab does at least five things that align with that agenda:
• Works together with clients to design new approaches to legal services delivery;
• Solves problems at the intersection of business, law, technology, and other disciplines that require all-star expertise and collaboration skills;
• Engages our lawyers, students, and professional staff;
• Broadens talent and recruiting opportunities; and
• Creates immersive learning experiences that foster new skills lawyers need to help clients be more successful.
Culture change is needed for legal innovation to take root at law firms. How does Whitespace Legal Collab help Baker McKenzie lawyers feel involved with the Firm's global innovation efforts?
Whitespace Legal Collab enables Baker McKenzie lawyers to be an integral part of the Firm's proactive culture change. The Collab affirms to clients that Baker McKenzie lawyers are positioned to:
• Speak knowledgeably about the Firm's legal innovation approach;
• Listen to real-world business, operational, and legal innovation challenges; and
• Explore an intriguing problem in a dedicated innovation space and identify a potential solution.
In addition, the Collab is an arrow in the Firm's talent recruitment and retention quiver, enabling Baker McKenzie to attract new talent, provide lawyers with dedicated time in a living legal services laboratory, and compete effectively for innovation-minded talent.
What makes Whitespace Legal Collab an asset for next-generation legal talent?
Today our lawyers help clients navigate increasing uncertainty in a globalised world facing heightened risk. Some of that complexity and uncertainty revolves around disruptive innovation and new ways of working. Young talent in particular sees exciting possibilities at Baker McKenzie because of the Collab's ability to identify and foster the emerging capabilities for The New Lawyer. The New Lawyer is an aspect of Baker McKenzie's brand positioning that conveys our Firm's aspiration to be the partner and trusted advisor of choice for clients facing a world of volatility, uncertainty, complexity, and ambiguity.
Provide examples of how Baker McKenzie Partners and other experienced lawyers are becoming involved with Whitespace Legal Collab.
We have some terrific examples of Baker McKenzie lawyers bringing clients to Whitespace Legal Collab to explore major legal services delivery challenges and opportunities.
For example, a Partner who manages a relationship with a major life insurer asked the Collab to help them develop ideas for a new innovation-related centre of excellence.
Another Partner who manages a relationship with a financial institution brought us in to help them explore how data science will open up innovation opportunities and risks.
As a final example, a Partner working with one of the world's major technology firms supported us in assisting his client with innovation challenges related to commercial M&A challenges.
The Collab welcomes opportunities where Baker McKenzie lawyers bring a client challenge to the Collab and explore whether that challenge is right for the client, the Firm, and the Collab to engage with.
What are some other ways you're making an impact?
Earlier this year, Baker McKenzie's Global Technology, Media, and Telecommunications industry group was looking for a way to involve lawyers, engage clients, work with other areas of domain expertise, and seed ideas to scale in practice. Working with the global industry group, Whitespace Legal Collab helped conceive the Innovation-in-Motion Awards (the IMA) as a five-month extended competition that aims to drive positive change in the practice of law.
The goal of the IMA exercise is to re-imagine and improve how we deliver legal services to our clients and become a better partner for them using approaches such as co-creation, empathic listening, fast iteration of ideas, and multidisciplinary collaboration. It offers our talent and select clients a unique opportunity to collaborate in new ways to address actual client-identified challenges.
The calibre of the market-leading clients is impressive. Ten teams are competing with each one made up of Baker McKenzie individuals, clients, and external domain experts that teams choose to add (such as data analysts, system engineers, and user experience experts). Client-identified challenges are diverse and inspired: they range from applying machine learning in order to deliver tailored legal alerts, to re-designing terms and conditions in a consumer-friendly format, to creating a technology-driven privacy compliance tool.
Innovation is a journey and we need to train our talent and have them beside us. The IMA facilitates this process. It enables both lawyers and non-lawyers to work across organisational siloes, to challenge set ways of thinking and working, to build and strengthen relationships with clients, and to try something they have never done before but will be expected to do in the years ahead. The IMA are an example of an activity that reveals the power of the Collab to be an agent of change while highlighting to our clients and people how serious Baker McKenzie is about innovation as a source of market leadership.
Recent fatalities of individuals who suffer from mental disabilities due to encounters with the Los Angeles police officers have called into question whether law enforcement is properly equipped to respond to disturbance calls wherein the alleged perpetrator suffers from a mental illness.
According to civil rights attorney Rodney Diggs with Ivie, McNeill & Wyatt, “The LAPD faces a need for systemic change”. In May 2017, the LA police commission unanimously approved 25 new recommendations, after discovering alarming findings in the LAPD’s first ever, Use of Force Report.
Diggs, who has handled multiple wrongful death lawsuits stemming from officer-involved shootings and individuals with mental disabilities, believes these recommendations are a step in the right direction.
Media reports often spur mixed opinions to how the police force in the US tackle [emergency] cases; the use of armed weaponry and the ability to “shoot to stop” has caused controversy, as self-defence being used as an excuse to purposely “aim to harm” due to alternative predisposed aims are in play during discussions.
Nonetheless, when handling such cases, the police department need to ensure they are approaching each situation with caution to avoid unnecessary harm and conflict, whilst ensuring they are following through their vow to protect their citizens.
Where race, religion and other determining factors are usually the base for this debate, Rodney Diggs has noted another concerning increase in cases:
“Over the years I have practiced, I have seen [approximately] 50-60% increase in wrongful death cases related to individuals suffering from mental disabilities/illness.”
Such a vast increase of wrongful deaths is cause for huge concern, so, what accounts towards this increase? Diggs explains: “The changes are due to the officer’s lack of being trained and dealing with individuals who suffer from mental illnesses. Conventional police training directly clashes with effective tactics for resolving a typical mental health crisis.
“Unfortunately, much of that training relies on a command-and-control approach that can lead to dangerous escalations in the use of force.”
It is not unknown that mental illness and its depiction in society is still a challenge society needs to embrace. Not everyone will know how the ins-and-outs of every illness in the book, however, a lack of ignorance towards the subject would certainly not hurt, especially those involved in public services.
Which brought Lawyer Monthly to ask: “Why do you think the LAPD lacks guidance when it comes to addressing those with mental illnesses?”
Rodney replies: “It’s more of a lack of training. Proper training takes time and money and the reason to why departments may not choose to use resources needed to train officers, is because the value may be hard to quantify.
“Once departments realise that it may cost money upfront for training but ultimately will save money and lives, they will see the return on investment.”
Training ought to enhance the public's trust and to lessen the cases we are seeing involving mishandling alleged perpetrators. Rodney says: “Training will teach officers that they do not have to approach a situation and take action right away. But in a medical emergency, slowing it down, getting additional resources and perhaps even stepping back should be the norm.
“When the public sees that someone’s life is saved because an officer properly assessed a situation and now that family doesn’t have to lose a loved one, then the public will trust that the police are equipped to handle these situations.”
And of course, the media comes into play here: “Additionally, the media plays a big role in the perception of its viewers. The media can either assist in enhancing the public’s trust or incite fear. So, if we want to bridge the gap between officers and civilians, the media needs to highlight instances in which officers do the right thing in a very sticky situation.”
Aforementioned, we know that the use of weaponry during emergency cases is now often questions. And so we asked Rodney to expand to when he thinks it is acceptable that use of force is enforced; he again stated the importance behind properly assessing the situation at hand.
“Use of force is never acceptable unless the force used is objectively reasonable and used only when necessary to accomplish lawful objectives.
“Officers have to assess the situation and determine which use of force should be used in their specific situation.”
Rodney outlines the factors officers should use when deciding whether to use force and what type of force option to use:
(1) Whether the suspect poses an immediate threat to the officer or others;
(2) The severity of the crime;
(3) Whether the suspect is actively resisting arrest; and
(4) Whether the suspect is a flight risk or attempting to escape custody.
Further deadly force should only be used if there is an immediate threat of death or severe bodily injury to the officer or another.
However, implementing an effective process will not be easy.
“I think it takes a lot of work for an effective process upfront. However, training should be ongoing and continuous. The work and training should never stop. It all begins with the department understanding that implementing a training for its officers, in the long run, helps saves lives and saves the city money by paying out less for wrongful death lawsuits.”
A method of improving often involves implementing better and stronger sanctions; so, we wonder whether those involved in wrongful deaths need to be better sanctioned.
“A lot of times we see that criminally, officers are not charged with murder or even disciplined within their own departments. On one hand, families of victims wrongfully killed bring civil actions and at times cities, not the departments themselves, pay out millions to these families.
“Despite the monetary compensation that may be awarded to families, the officers face no discipline and the money that is being paid is not being paid out of the officer’s pockets. Monetary compensation by way of settlement, or event civil verdicts, does not equate police reform.
“Greater sanctions would cause a deterrent and would cause officers to think twice and consider the reasonable and appropriate force options available to them or opt not to use force, especially deadly force, when it’s not needed.”
The report itself discusses the following options:
You can read the full proposed report here.
Rodney S. Diggs is a practiced litigator with substantial experience mediating disputes and trying cases to verdict in both federal and state courts. Rodney is Chair of the Labor & Employment practice group, which focuses on harassment, discrimination, retaliation, and wage and hour issues. He represents employers ranging from public entities to Fortune 500 companies, as well as individual employees. He also handles civil rights litigation.
Rodney’s significant achievements include settling a wrongful death lawsuit for $5.5 million and serving as lead counsel in Reginald Mitchell v. California Department of Public Health, which resulted in a published California Court of Appeal decision.
Samuel B. Ledwitz is an Estate Planning Attorney, Trust and Probate Law Specialist, certified by the California Board of Legal Specialisation of the State Bar.
Aside from his work, Samuel speaks about his family: “I have a beautiful wife and two children. I cherish the time I spend with them, my parents, and other relatives. My wife Kamila is a Marriage and Family Therapist who has spent her career helping others manage the most difficult of circumstances – something I greatly admire her for. She is a wonderful mother to our two children.”
And it is this admiration for his own family that enables Samuel to understand the importance of trusts; ensuring your assets are preserved for beneficiaries, eases families of burdens and ensures your loved ones are in hand and are protected after your death. Samuel has an undeniable passion for helping families and making sure his clients wishes are fulfilled.
In this insightful interview, we learn how Samuel has seen his industry change over the years, as well as the inspiration behind him starting up his own firm.
What inspired you to undertake estate planning, trust and probate law as a specialism?
I saw an opportunity to help individuals and their families. Estate planning, due to the complexities it entails, can be very daunting. I saw a need and took an interest in individuals helping people manage their assets and meeting their health care wishes. I thought I could really help families by pursuing this area of the law, and I think I have.
You are a three-time winner of the prestigious Five Star Wealth Manager Award; what qualities do you think accounts towards this achievement?
To receive the Five Star Wealth Manager award, a professional must satisfy 10 objective eligibility and evaluation criteria. Factors considered include assets under management and client retention rate. Candidates also undergo a thorough regulatory and complaint review.
To receive this honour, you need to have a high level of customer service, which I believe my firm has. By operating at that high level of customer service, it goes a long way in not just helping the client, but also in the client referring business back to us.
When teaching courses on estate planning and business law, what are important lessons students must be taught?
Students need to learn the basics of how the court system works and how we can improve the results of the public and our clients when they take our advice. Through this, students can learn how to save clients time and money and how to keep their affairs private in everything they want to achieve.
What has been your flagship piece of work and how did you apply thought leadership to this scenario?
Since an early age I always wanted to run my own business. I got the opportunity in 2007 to do so and haven’t looked back. Founding my own firm gave me a chance not just to do things my way, but also allowed me to do things the best way: always do what is in the best interest of the client, treat him or her with a great deal of respect and you will ultimately be rewarded in the end. This way of thinking has allowed us to continue the financial legacies of hundreds of families over the years.
How has your role in the legal sector changed over the years? How did you allow yourself to progress and transition?
We’ve added additional areas of estate planning, such as those specialising in litigation and probate. We’ve added services clients can utilise when they have disagreements. In general, we expanded to include additional areas our clients need. When we have managed a person’s estate plan, we are able to provide these additional services at an important level of quality due to our familiarity with the estate plan. This gives the client a considerable advantage in litigation proceedings and related areas.
Moreover, can you think of any regulation changes which hugely impacted the way in which you practiced law?
A good example is the Estate Tax Laws changing in January 2013. These changes allowed us to protect more of our client’s legacies from the federal government. It isn’t so much as individual changes to laws and regulations; rather it is having a working knowledge of changes that happen regularly.
What else are you hoping to achieve in the upcoming years?
I want to continue growing personally and professionally. I enjoy the ongoing learning and development of strategies to further the ability of my firm to help clients. I enjoy working with other professionals within and outside of our firm and the camaraderie that comes with it as we pursue mutual goals. I want to continue growing the firm for the benefit my clients and family.
Samuel B. Ledwitz
President and Managing Partner
+1 (310) 316-2400
Samuel B. Ledwitz is an Estate Planning, Trust and Probate Law Specialist, certified by the California Board of Legal Specialisation of the State Bar.
Samuel attended Pepperdine University School of Law, where he earned his law degree (J.D.) with an emphasis in the areas of estate and income tax. Next, Samuel attended The University of Miami School of Law, where he earned his Post-Doctorate Degree (LL.M.) in Estate Planning.
Sam is a three-time winner of the prestigious Five Star Wealth Manager Award and is recognized as a Superb Rated Attorney by the AVVO attorney rating service. Sam has appeared in several national and local periodicals receiving praise for his work, including Newsweek Magazine, Los Angeles Magazine, and the Torrance Daily Breeze. Sam is an active member of the Los Angeles, Long Beach and South Bay Trust and Estate Planning Councils.
Sam has been practicing Law in the state of California since 1998, opening his own firm in 2007. He is currently the President and Managing Partner. He has also been a Professor at Cerritos College within the school’s Law department.
Our Law Firm helps people in the areas of Estate Planning, Estate Administration, Probate and Estate Litigation. These are the only areas of law in which we practice. This focus allows us to effectively address all types of matters, from straightforward Estate Planning issues to sophisticated wealth transfer techniques, tax planning strategies, Estate Litigation and any other issue surrounding our clients. Samuel Ledwitz and Gary Talavera (of Counsel) with our Firm have been certified by the State Bar of California’s Board of Legal Specialization in the area of Estate Planning. Samuel Ledwitz holds an advanced post-doctorate LL.M. degree in Estate Planning, and Gary Talavera has also earned an LL.M. degree in Taxation. Our attorneys’ credentials demonstrate our firm’s understanding of the complex estate planning issues. Further, Bezaire, Ledwitz & Borncamp builds upon decades of legal practice and tradition.
Kathryn P. Russell specialises in US immigration law, particularly family-based immigration, employment-based immigration, removal defence, and citizenship. At Robert Brown LLC, she provides knowledgeable legal counsel and dedicated representation in all areas of US immigration law. She discusses with us how her initial work with refugees helped shape her journey into immigration law.
As Thought Leader, can you share what your main motivation was behind specialising in US immigration law?
US immigration law is extraordinarily complex and there is plenty of confusion as to how it works. My main motivation for specialising in the practice of US immigration law is to help people during some of the most stressful and uncertain chapters of their lives, ranging from clients fleeing persecution, to taking the leap of investing in a new US enterprise. I started my career representing refugees and victims of human trafficking – some girls as young as 12 – and the atrocities my clients endured came as a shock to my system. In short time, I thrived on seeking justice for those who needed my help and I immediately grew into the role of advocate. I haven’t looked back.
You are experienced in family-based immigration, employment-based immigration, removal defence, and citizenship; can you describe the differences in these cases, in terms of what they demand from you as a professional? How do you adapt?
There is a tendency in this practice to pick one aspect of US immigration law and stick to a niche, whether employment-based, family-based, removal defence, or citizenship. I find that the best practice isn’t to focus on the differences, but on the overlap and ways these areas connect. For example, a client facing removal proceedings may have an employment-based solution; an employment case may end up with a status or criminal violation that puts them into removal proceedings, or one of the two could have a claim to US citizenship without even being aware of it. From the client’s perspective, the best advocate can see the big picture when spotting issues and crafting innovative case strategies that may not have been attempted before. As a practitioner, this demands a broad foundational understanding of the law and creative thinking when creating solutions for a very diverse clientele. Fundamentally, we’re in the problem-solving business and our clients usually care about results and not so much the process. If we can offer a solution to someone that helps them achieve their desired goal, then how we go about obtaining it is really something that our clientele just trusts us with.
You began your career in refugee resettlement and now practice in all areas of US immigration law with Robert Brown LLC, how has your experience developed your expertise to be at the top of your game?
Each chapter of my career has exposed me to different populations and case types within US immigration law, but I continue to circle back to what drew me to the practice: focused and creative advocacy for my clients. I initially grew into this practice by developing a sense of purpose when working with vulnerable populations and that sense of purpose remains to be a driving factor in my work. Robert Brown LLC has perfected the focus on innovative thinking across all practice areas and fosters the view vocation from a place of purpose, which I consider to be the essential elements of this practice. In guiding our clients through processes with complex federal agencies, I remember that many of my immigrant clients simply want to have a regular life and are interested in many of the same things as everyday Americans – they want to work hard and raise their kids in a safe environment.
What is the most challenging aspect of defending clients in US Immigration Court and how do you overcome this?
The most challenging aspect of removal defence is ensuring that the client’s story is front and centre in everyone’s mind. Our clients come from all around the world and walks of life, some with little to no education, and I find that the best way to capture the story this is through extensive work with my clients, getting to know them, and the impact their removal will have on their families. By thoroughly exploring each and every aspect of removal as it pertains to my clients, helps me become laser focused. Whether I am working with a young woman fleeing persecution or defending a hardworking father from deportation after establishing a life here for decades, being able to humanise the facts and create a sense of moral imperative is crucial. US Immigration law can be shockingly unforgiving, so ultimate success often comes down to how well we tell our client’s story. We don’t want our clients to become case numbers, particularly given the enormous backlog of cases facing Immigration Courts nationwide. If we are able to do humanise the case, then we significantly improve our chances of achieving our client’s goals.
Are there any reformations to US immigration law that you are keen to see change?
2017 brought US immigration law back to the centre of debate on a number of topics but the way the debate is framed has become a false dichotomy: an imagined conflict between the rule of law and creating humane policies to keep families together, but there is room for both. Lawmakers can fashion a system that rewards hard work, while also understanding the importance of family unity. It is important that we have a system that is orderly and recognises the need for certain types of workers and keep our economy moving; it is equally important that as citizens of our communities that we expect those that want to come to our country to respect our laws and policies. While I don’t envy lawmakers, part of my job as an attorney is to face reality that when I’m faced with a problem, I need to solve it.
Kathryn P. Russell, Attorney at Law
Email: krussell@rbrownllc.com
Tel: 216.861.4414
Kathryn (Katie) P. Russell received her Juris Doctorate Cum Laude from Cleveland-Marshall College of Law and is admitted to practice law in the State of Ohio. Katie graduated from John Carroll University Magna Cum Laude with a double major in History: Latin American Studies Concentration and Spanish. She is fluent in Spanish and has studied at the Universidad Centroamericana with the Casa de la Solidaridad Program in El Salvador and at the Universidad del Pacífico in Lima, Peru. Prior to joining Robert Brown LLC, Katie served as a Jesuit Volunteer at YMCA International Services in Houston, Texas while specializing in Central American Victim of Human Trafficking and refugee resettlement cases. Katie has been with Robert Brown, LLC since 2009 and is experienced in family-based immigration, employment-based immigration, removal defense, and citizenship.
Robert Brown LLC maintains a global immigration practice, serving clients in Ohio, throughout the United States, and from across the world. The firm practices in the areas of employment-based immigration, family-based immigration, and deportation defense, to assist individuals, families, and companies ranging from small businesses to large corporations. Their unique background and wide-ranging experience in practice gives us a special edge in helping their clients achieve innovative and effective solutions to their problems.
Shell has been filling up our cars, motorbikes and trucks with fuel for many years. In fact, today it runs one of the largest retail networks in the world, with more stores than Starbucks or McDonald's. As demand for more and cleaner energy grows, the oil and gas sector is set to change.
We decided to take the opportunity to speak with Michael Coates, Associate General Counsel at Shell. Michael touches on his career at Shell, the challenges he overcomes and offers wise words to aspiring lawyers.
How did your perception of Shell change since you began working there? Was there anything in particular that took you by surprise?
I joined Shell initially in 2002 as a secondee from Slaughter and May in London, where I focused on mergers & acquisitions and corporate finance law. I had never worked in the oil and gas sector before and was surprised and fascinated by how international and “geopolitical” in character it is. As my career has progressed, I have learnt more about the company and the industry generally, but I still have retained that initial curiosity and interest. Many political and economic issues have a direct or indirect impact on our industry and it is always a challenge to try to stay ahead of developments.
What is the most challenging aspect of your job and how do you overcome this?
There are a number of interesting challenges but I will share two examples: one external and one internal. We at Shell operate in a range of different jurisdictions at various stages of economic and political development and that often is reflected in legal systems as well. Promotion of the Rule of Law is very important to ensure predictability and certainty of legal outcomes and the enforceability of legal rights and obligations. A strong Rule of Law can also directly promote economic development. We are active across a range of areas and one thing we do is to support the Bingham Centre for the Rule of Law, which is based in London. A second challenge is the management of our in-house legal team as if it were a business, and that includes a wide range issues such as strategy, ways of working, cost and staffing. I am particularly passionate about our people and trying to inspire the maximum level of engagement in them – I firmly believe that motivated and engaged staff produce the best work and can support our business colleagues most effectively.
What was your main motivation for specialising in law? Could you offer any words of wisdom to aspiring lawyers?
I was interested in law from a very early age but my first undergraduate degree was in Economics and, actually, I thought I might go into banking or management consulting. However, I’m glad that I finished my law degree and became a lawyer. Law is almost becoming a “generalist” degree and legal training offers a disciplined way of thinking, with logic and reason being paramount. Law can be a good springboard for other careers as well – just look at the number of lawyers working in politics, government, banking and the not-for-profit sector. My main advice for aspiring lawyers would be to recognise that both studying and practising law can be very demanding, with long hours and a significant amount of reading. I don’t think people should choose a legal career by default – e.g. because of parental pressure or simply because they have sufficiently good grades to get into to law school. I think people with a genuine interest in the law are the ones most likely to succeed.
You supported various M&A transactions on a global scale; apart from effective due diligence, what do you think is behind a successful transaction?
I think thorough planning, execution and attention to detail are critical. M&A transactions are, in large part, about process and the parties need to have clear and well thought-through plans, including in relation to the integration phase after the closing of the relevant transaction. Equally importantly, I think alignment between the parties to a transaction about their objectives, together with a certain level of trust, are critical to a successful transaction.
What future can you foresee for the world of energy, oil and gas?
Most of the energy we use today comes from oil and coal, and increasingly from natural gas. These hydrocarbons power, heat and cool homes and workplaces, fuel transport systems and power industry. Experts agree that global energy demand is likely to double by 2050 compared to demand in the year 2000, driven by a growing population with rising living standards. At the same time, tackling climate change caused by carbon dioxide (CO2) emissions and other environmental stresses has never been more important. Meeting these challenges will require a radical change in the global energy system and a range of new energy sources. Because the energy system is so large, and demand for energy is rising so quickly, to achieve these changes will take a huge collective effort.
Can you expand your role as a member of the Governing Board of the Energy and Natural Resources Law Institute and what you aim to accomplish there?
We are proud to support The Energy and Natural Resources Law Institute at Queen Mary, University of London. This Institute provides a focus for the development of energy and natural resources law, the training of energy lawyers through its specialist Masters of Law (LLM) in Energy and Natural Resources Law Programme, and the promotion of a broader understanding of this sector. In this role, I have the privilege to be able to provide input and suggestions into curriculum design on energy law topics as well as serve as a guest lecturer to the LLM students, which I very much enjoy.
What goals had you set out from when you joined Shell in 2004 and after 13 years, what do you hope to further accomplish?
I didn’t have any particularly firm goals when I joined Shell, other than to enjoy my work and to try to learn as much as possible. As my career has progressed, I have been fortunate to have worked with some very talented people on some very interesting assignments. I think my personal highlight was when I worked as the Executive Assistant to our former global Chief Executive Officer, Peter Voser, for nearly three years. This was a challenging and fascinating experience which I will always remember. In the future, I hope to continue to develop and perhaps pass on some of my knowledge to more junior staff.
What do you think is the key to becoming a successful Head of Legal/General Counsel?
I think opinions may differ on this question, but from my perspective a good general understanding of the law, together with a business-focused and practical approach will always help. Paying sufficient attention to management issues such as innovation, strategy, cost control and staff engagement is also critical and I think these topics should be viewed as core parts of the role, rather than as “optional extras” in the management of a legal department.
Is there anything else you would like to add?
My final observation is that the role of in-house counsel is constantly evolving. When I first started, an in-house career was sometimes viewed as secondary in importance to private practice. However, as time has passed, in-house counsel have evolved to become valued business partners with a seat at the top management table and, often, with a formal seat on the board. I think the legal and risk environment is changing such that legal skills are becoming recognised as essential to the management of credible companies.
Michael Coates
Associate General Counsel, Upstream Joint Ventures
www.shell.com
Michael joined Shell in 2004 from the London office of Slaughter and May, where he practiced as a solicitor with a focus on corporate finance, securities and mergers & acquisitions (M&A). Thereafter, Michael worked at Shell’s Headquarters in The Netherlands in a number of business and corporate legal roles, supporting international energy and M&A projects in Europe, the United States, Latin America, Australasia and Sub-Saharan Africa. During this period, Michael also served as legal adviser to the parent company of the Shell Group, Royal Dutch Shell plc.
Between March 2011 and December 2013, Michael was Secretary to the Shell Group Executive Committee and Special Adviser to the Chief Executive Officer of Royal Dutch Shell plc. Prior to his current role as Associate General Counsel for Upstream Joint Ventures at Shell’s Headquarters in The Netherlands, Michael was based in London as UK Head of Legal, as well as Associate General Counsel, Downstream North West Europe.
Michael is an Officer of the Corporate and M&A Law Committee of the International Bar Association, and a member of the Energy Law Committee of the City of London Law Society. He serves on the Development Board of the Bingham Centre for the Rule of Law and on the Governing Board of the Energy and Natural Resources Law Institute at Queen Mary, University of London. Michael is a Fellow of the Institute of Directors.
He holds separate undergraduate degrees in Economics and Laws (Hons.) and a Masters degree in Law from the University of London (UCL and Queen Mary).
Royal Dutch Shell was formed in 1907, although its history dates back to the early 19th century, to a small shop in London where the Samuel family sold sea shells.
Today, Shell is one of the world’s major energy companies, employing an average of 92,000 people and operating in more than 70 countries. Its headquarters are in The Hague, the Netherlands, and its Chief Executive Officer is Ben van Beurden. The parent company of the Shell group is Royal Dutch Shell plc, which is incorporated in England and Wales.“Our strategy seeks to reinforce our position as a leader in the oil and gas industry, while helping to meet global energy demand in a responsible way. Safety and environmental and social responsibility are at the heart of our activities.”
Japan has for long been the global leader of innovation and creations. Over the past deacde, however, other jurisdictions, such as China, have slowly grown and produced tighter competition; Japan’s dominance leading patent applications has slowly faded, and so we speak with Tomoyuki Serizawa, a leading patent attorney, who discusses the changes in place that will enable growth in Japan.
What changes have you witnessed in the past few years regarding patents in Japan?
In Japan, opposition system was resumed in April 2015. Currently, Japan has two options to invalidate a patent: one is opposition and the other is trial for invalidation. From April 2015 to March 2017, the Japan Patent Office (JPO) received about 1900 oppositions. According to the statistics, among 990 decisions of the oppositions, the number of decisions to maintain a patent is 884 (about 89%); to revoke a patent was around 90 (about 9%); and dismissal decisions 16 (about 2%). Among 884 decisions to maintain a patent, 370 cases (about 37%) are maintained without any correction to patented claim(s), while 514 cases (about 52%) are maintained with correction to patented claim(s). In other words, it is considerably difficult to revoke a patent using an opposition system in Japan.
Furthermore, the employee invention system was revised in 2015, which came into effect from April 2016. In the new system, a company has an original right to obtain a patent for employee invention, based on agreement between the company and the employee (inventor), employment regulation, etc. An employee has a right to receive reasonable remuneration or other economic profits (reasonable profits). A company can give the employee profits (e.g., opportunity to study abroad, to grant stock options) instead of remuneration.
In what ways do you think Japan led the world of patents, after being a global leader in innovation?
Japan plays an important role in effective utilisation of patent examination in respective countries. In 2006, the JPO proposed a Patent Prosecution Highway (PPH) programme for utilising the examination result conducted by one patent office in the examination of another patent office. The JPO still continues to encourage respective foreign patent offices to participate in this PPH program. The PPH program is a kind of accelerated examination program such as PACE programme in European patent system. The PPH programme requires all claims to be examined and must sufficiently correspond to allowable or patentable claims in the other foreign patent office. As of December 2015, 36 patent offices participated in the PPH programme and the total number of the requests for the PPH programme reaches about 88,000.
Nevertheless, are there any changes you are looking forward to that are occurring in the next year?
The Government seems to be considering a system for procedures that enable appropriate evidence collection in patent infringement litigation. Since Japan does not employ a discovery system, it is difficult for a plaintiff to obtain evidence to establish the fact of infringement in patent infringement litigations. Under the current Patent Act, it is possible that the court issues a “document submission order”, which requires parties to submit documents for establishing the infringement acts or for calculating the amount of damages. However, due to strict requirements imposed on the document submission order, it is rarely issued in patent infringement litigation. Meanwhile, the above documents owned by a defendant generally include trade secrets important to their business.
Thus, the government is now considering a system in which a third party technical expert having the duty of confidentiality can involve in evidence collection procedures.
Will any of the above changes which are proposed / rumoured to occur, help tackle competition Japan has seen increase over the years from China?
Yes. By introducing appropriate evidence collection in the patent infringement litigation system, a patent owner will be able to enforce his/her patent right more easily. This will improve the motivation to acquire a patent in Japan, and will push up investment activity for innovation, thereby giving a positive impact to a global technology competition with China.
The Supreme Court in the US rules that patent law cannot stop the resale of products; as Thought Leader, what is your stance on this ruling?
In Japan, the sale of patented products exhausts a patent right domestically, but does not exhaust it internationally (BBS Supreme Court Case, July 1, 1997). If there is a restriction for prohibiting patented products sold abroad from being imported to Japan, the resale of the patented products sold abroad will infringe a Japanese patent right. Unless there is the above restriction, the resale of the patented products sold abroad will not infringe the Japanese patent right under the doctrine of implicit licensing by the patent owner.
In my opinion, the international exhaustion should not be admitted, because the scopes of patented claims for a particular invention are not necessarily the same in different countries. Taking an example of software related inventions, it is possible that applicant can obtain a patent right with a broader scope in Japan than in the United States.
Tomoyuki SERIZAWA
Patent Attorney
SHIN-EI PATENT FIRM,P.C.
8F Toranomon East Bldg.
7-13, Nishi-Shimbashi 1-chome,
Minato-ku, Tokyo
105-0003 JAPAN
TEL: +81-03-6203-9581
E-mail: tomoyuki.serizawa@shin-ei-patent.gr.jp
Tomoyuki SERIZAWA is a Japanese patent attorney, admitted to practice in court in Intellectual Property (IP) matters. He is a member of the Japanese Patent Attorneys Association (JPAA) and the Asian Patent Attorneys Association (APAA).
He received his Master of Engineering degree from Tokyo Institute of Technology in 2006, where he majored optical communication and semiconductor laser. In 2006, he joined NGB Corporation (“NGB”) in Tokyo, a famous service provider of comprehensive IP services. Having worked for NGB as a foreign patent practitioner for 8 years, Mr. Serizawa joined Shin-Ei Patent Firm, P.C., a Tokyo based patent law firm having a long-standing relationship with NGB. In his law firm, he drafts patent specifications, prosecutes patent cases before the Japan Patent Office (JPO), handles foreign patent applications for Japanese clients, and provides professional opinions. His expertise encompasses wide area of technologies such as semiconductor device, optical communication, self-driving technology, virtual reality (VR) technology, Internet of thing (IoT) technology. Similar to many patent attorneys in his firm, he is knowledgeable in both Japanese and foreign patent practices.
Shin-Ei Patent Firm, P.C. is an IP professional corporation prescribed in the Japanese Patent Attorney Act, started its operation from 2012. (Original establishment was in 1990 with the name of "Miyakoshi Patent Office".) Having a long-standing cooperative relationship with NGB Corporation, which is one of the largest leading providers of the intellectual property services worldwide, Shin-Ei Patent Firm has continuously developed a reputation as a reliable intellectual property firm with a global awareness.
Andrew Miller is Partner at Walkers' Cayman office and Head of the Global Wealth Structuring Group. He is also a member of the Steering Committee of Walkers' LatAm Group and specialises in all aspects of British Virgin Islands, Cayman and international wealth structuring and related regulatory work. His main line of work is for mainly Ultra High Net Worth (UHNW) families and financial institutions. This month he speaks international developments in advising UHNW families.
How have you seen financial institutions progress over the years in the Cayman Islands?
Particularly over the last five or so years, the world has become much more complex for UHNW international families. This has led to some, for instance, banks exiting the business but being replaced by what have become larger more specialised independent fiduciary companies.
How has this affected your role as a legal expert?
This increasing complexity, combined with such families becoming ever more internationally mobile, has meant that the advice we give has become even more complex and broad ranging.
What is the most difficult aspect of international wealth structuring?
Of late, the pace of change of global developments such as Foreign Account Tax Compliance Act (FATCA), Common Reporting Standard (CRS), registers of beneficial ownership and amnesty programmes.
What are important aspects to consider when adhering to the regulations whilst doing the best for your client?
By and large, such global laws and regulations are a good thing inasmuch as they deal with those advisers and clients who, in the past, may not have behaved quite as well as they should. Clients mostly now realise that their structures to preserve wealth for the next generation need to be compliant. Nevertheless, it needs to be understood that many such clients come from countries where there are genuine privacy and security concerns for their families.
What is your main aim as a member of the Latin American Steering Committee and how do you achieve this?
We advise UHNW families across the globe including Asia, Europe, the Middle East, Russia and the CIS, the US and LatAm. Even among generational wealth families in LatAm, many of whom have had wealth outside LatAm for decades, until relatively recently their planning has tended to be less sophisticated. These LatAm families are becoming much more internationally mobile in what is an increasingly complex world and thus have a growing need for the sort of advice we, working with their trusted local advisers, provide. As a result, we expend significant resources making sure we understand their needs, including plenty of time spent in LatAm.
In what ways do Latin America and the Cayman Islands differ in relation to their wealth structuring?
We see the two as complimentary. In many of these civil law countries, structures such as trusts and foundations for preserving their family wealth are simply unavailable.
How do you ensure these differences are addressed when dealing with clients?
Again, it all comes down to spending the time to get an in-depth understanding of the particular needs of LatAm families.
As Thought Leader, can you share with Lawyer Monthly the main motivation behind your role?
One of the main ones is the privilege of getting to know the families well and, over time, becoming a trusted adviser.
Is there anything else you would like to add?
I am most grateful for the indulgence of expressing views on a subject close to my heart!
Andrew Miller
Partner
T +1 345 814 4669 | F +1 345 949 7886 |
E andrew.miller@walkersglobal.com
190 Elgin Avenue, George Town, Grand Cayman KY1-9001, Cayman Islands
www.walkersglobal.com
Andrew Miller is based in Walkers' Cayman Islands office and is head of the firm's Global Wealth Structuring Group. Andrew is also a member of the Steering Committee which drives the strategy of Walkers’ Global Latin American Group. He specialises in all aspects of non-contentious British Virgin Islands and Cayman Islands trust, international wealth structuring and related regulatory work for private individuals and financial institutions.
Walkers is a leading international law firm. We provide legal, corporate and fiduciary services to global corporations, financial institutions, capital markets participants and investment fund managers. Our clients are the most innovative firms and institutions across the financial markets, and rely on us for our ability to provide solutions to their most important legal and business issues. We develop globally-minded, entrepreneurial lawyers who are experts in their field and committed to client service. Walkers is consistently ranked in the top tier of the leading global legal directories. Recognized for being a 'dynamic team that is very user friendly', a regular comment by clients is that Walkers is the "go-to" firm for offshore legal advice.
