Understand Your Rights. Solve Your Legal Problems
Tomislav Šunjka states that: “In fraud and asset tracing matters it is very important, after studying the evidence and careful consideration of all the facts, to decide on proper and adequate legal strategy and procedure.
“Legal knowledge that is necessary for the effective conduct of a case is much more complex. It is necessary to be a good business lawyer, first of all, with vast knowledge on financial and banking law, in order to understand the transactions, transfers of money funds, to know the manner of functioning of various assets registers, such as: cadastral, yacht, company registers, as well as offshore accounts and business structures and systems.
“As an upgrade after that come investigation and litigation / prosecution skills, where the prior knowledge is used as tools. Only then a real added legal value can be awarded to fraud and asset recovery matters and cases.
“All above mentioned are core value of Law office of Tomislav Šunjka.”
In an exclusive interview, he expands more on white collar crime in Serbia.
What do most fraud and asset tracing cases involve? What are the most common occurrences?
Each asset tracing case can be observed through subjective, human dimension and objective legal occurrence dimension.
Main features of the subjective dimension are always kleptocracy and greediness. Generally fraudsters are arrogant; they think that they are too clever and therefore legally and socially untouchable. They think that firstly their activities will not be understood or discovered, and if discovered, that the asset will never be found. If, however, asset is found, the asset recovery cases will move very slowly, since the court systems are inefficient and corrupt in general. Finally, the fraudster believes that if it turns out to be a court epilogue, the results of it will be still minor in terms of recovered assets and the biggest part of the asset will still be controlled by him.
Legally speaking each asset recovery case can also be viewed through legal strategy and choosing appropriate legal procedures. The prevailing question is: should the asset recovery be conducted through civil or criminal procedure, since in a number of jurisdictions, both civil and criminal procedure cannot be lead at the same time. Where civil and criminal procedures can be lead in parallel, there is often a communication problem with the state prosecutor and obtaining evidence from the criminal file. The most common goal in legal terms is to obtain freezing order / preliminary injunction before initiating the lawsuit (civil or criminal) to secure the assets and secure future enforceability of court or arbitration decision.
What is currently the state of fraud / white collar crime in Serbia and how is it being confronted from a legal perspective?
On June 1st 2017 amendments to the Criminal Code of Serbia came into force, which regulate the field of fraud / white collar crime significantly better than the previous law. The amendments retained fraud as a criminal act in the part of the law governing crimes against property, which could be described as fraud in general. However, the part of the law governing business and white-collar crime prescribed two new criminal acts of fraud - business fraud and insurance fraud. In my opinion, although the amendments of the Code are good, it can still be significantly improved with a more detailed and precise determination of criminal acts in the field of business and white-collar crime and prescribing additional fraud related criminal acts, such as accounting fraud, fraud on the stock market and related to securities, fraud in the sale of excise goods, commodities trading fraud etc.
What have been the latest legislative developments in Serbian securities and financial law?
Recent legislative developments in the field of securities and financial law is Law on banking (2015). It is a parent law that regulates the financial market and system of functioning of financial markets, and it introduced additional stability in it. This was achieved through high mandatory bank deposits and reserves, which are to be deposited to Central Bank by all business banks, for loans ranked as risk, high risk, hard or non-performing loans (NPLs). In general, for any business or financial activity on the financial market, special permits and licences issued by the Central bank are obligatory, which, as a condition for issuance of such a permit, requires monetary deposits and reserves. Financial business activity without such a permit is prescribed as a criminal act.
In my opinion, it is important to note that with recent amendments to the Law on capital markets from 2016, stricter rules apply to securities trading on and outside of organised market, as well as to the overall stock market operations. Important role of the Commission for Securities was also introduced. The Commission has special supervision and investigative authorities, including the authority to file criminal charges for economic offenses and misdemeanours. The law itself prescribes two criminal acts: stock price manipulation upon trade through forbidding market manipulation and inside trading. Our office has direct experience in white collar crime cases in these criminal acts, both as defence counsels for people and companies who had some misunderstandings with authorities and on the side of victims of these criminal activities.
What is next on the Serbian agenda for fraud and asset tracing law? What would you want to see change?
I would like to see a lot of change. Firstly, I would like to see a separate Asset Recovery Law, which does not exist at the moment. It is very important to define approach and solutions in commercial and business crime, white collar crime and civil asset recovery.
Side on that, we desperately need Anti - corruption law with prosecution authority given to Anti-corruption commission or special anticorruption prosecutors and special criminal and civil code/law as an effective instrument to recover stolen assets from political criminals.
Last but not least, juridical culture must be changed, including formal basic/changes in part of criminal procedure and civil procedure legislative, to allow prosecutors and judges to engage private professionals, lawyers and attorneys to represent them in asset recovery cases, international legal assistance matters and international enforcement of court verdict and decisions.
My name is Tomislav Šunjka and I am founder and principal of the independent Law Office of Tomislav Šunjka in Serbia. My background is business and transactional law. Because of this background, I understand very well the nature of transactions, bank transfers and financial arrangements and use that knowledge as a tool in my practice of asset tracing and asset recovery. I practice in Serbia and internationally and am a member of the Vojvodina and Serbia Bars, the International Bar Association and the London-based ICC Commercial Crimes Services Fraudnet.
The story of the Law office of Tomislav Šunjka success is a story with a moral: integrity is an investment that offers substantial professional, private and financial rewards. We are qualified to prevent problems. We are qualified to recognise them in their early stage, to make close study of a client’s legal requirements and then – to solve the problem.
Tomislav Šunjka
tomislav.sunjka@sunjkalawoffice.com
Law Office of
TOMISLAV ŠUNJKA
Sremska Street No.4/I
Serbia, Vojvodina, 21000 Novi Sad
Since 1992 Mr Munchi Choksey, MD (Cantab) FRCS (SN) has worked as a Consultant Neurosurgeon. Munchi has performed over 2,000 intracranial procedures, including clipping of over 400 cerebral aneurysms. Performing back surgery in Warwickshire he has operated on over 5,000 lumbar spines, including 350 spinal fusions; and over 1,000 cervical spines (necks). In particular, he carries out a large number of revision spinal procedures in patients who have had previous spinal surgery elsewhere. This often involves spinal fusion, which may need to be done from the back or front. Munchi carries out over 100 lumbar spinal procedures and approximately 30 cervical spinal procedures a year. Mr Choksey has a very wide experience of all aspects of clinical neurosurgery. In addition, he acted as an examiner for The Royal College of Surgeons in Surgical Neurology for ten years. He is a recognised expert witness, preparing reports for both the Plaintiff and the Defendant.
We speak with one of the UK’s most experienced neurosurgeons, Munchi Choksey, this month about how the medical sector is often under the litigation spotlight. Serving as an expert witness, Mr. Choksey will be revealing in the next two editions of Lawyer Monthly various conditions which are subject to medical negligence and where improvement can be made in order to avoid such lawsuits. This month we will focus on intracranial conditions; Munchi speaks on common problems that arise, and the faults in the NHS which add to the ever-present negligence lawsuits.
What are the common conditions regarding head injuries that you often see arise in your role as an expert witness?
There are about ten conditions I deal with fairly regularly, regarding neurosurgical negligence. I have discussed four here – head injury, subarachnoid haemorrhage, intracranial infection and venous sinus thrombosis. The themes they illustrate apply to most, if not all, neurosurgical emergencies.
If there is a common theme, it is that with all neurosurgical emergencies, by the time the diagnosis is glaringly obvious, it is often too late to do anything useful about it and the consequences for patients and their relatives may be devastating. Part of the art of clinical medicine is being able to spot the genuine emergency and then to know what action to take, and to take it quickly. Above all, to brook no delay from anyone who seeks to obstruct the way ahead.
Head injury
Head injury is quite common. Approximately a million people a year go to the accident and emergency (A&E) department in England and Wales with a head injury. Only a small proportion need to be kept in hospital. Around 30-40,000 will be detained, and about 15,000 will need transfer to the neurosurgical department. The reason why things go wrong with head injuries, is due to the fact the problem is not always initially evident.
I have always pointed out to the junior doctors I have trained that patients with a neurosurgical emergency will seldom walk in evidently displaying that they have a such a problem; it really is up to the doctors and nurses to realise that this is not one of the 50 other patients that have attended in the last week with a more common minor head injury. This patient has the potential of developing a very serious problem, usually an expanding haematoma in the cranial cavity. There are clues that you have to pick up. The most important clue is their behaviour: particularly changing conscious level. The patient begins behaving in an erratic fashion, becomes uncooperative and frequently abusive.
The most frequent, yet dangerous, assumption made is that the patient is under the influence of drugs and alcohol. When a patient is not sober, there are two further risks posed: he is more likely severely to injure himself, and being under the influence of such substances often leads to the patient not being treated quickly. Drunken patients sober up, so if their state is progressively getting worse and their behaviour is becoming more erratic, the problem is likely to be something else. Unfortunately, these patients are ignored and later found in a worsened state, frequently in a coma.
Response time is the next problem; nowadays there can be a delay for up to two hours to find a neurosurgical unit which can take the patient. More often than not, there may be a lack of beds. This results in consultants phoning back and forth trying to find a specialist, while all in the time the patient’s state is deteriorating. Preparing for surgery also takes time. Frequently, the anaesthetist can take up to an hour to ensure the patient is stable. All-in-all, from the time of injury, it can take up to six hours – or more - for definitive life-saving surgery to begin. Recommendations from the Royal Colleges of Surgeons suggest that the maximum interval should be four hours from injury to haematoma removal; unfortunately, this is rarely complied with.
The essential message about these patients with life-threatening traumatic intracranial haematomas is this:
These patients often seek litigation as their quality of life is significantly reduced; due to improper treatment, they often have lifelong disability, are unable to work and look after themselves. The costs of these cases are colossal. Care costs can amount to around £100-150,000 a year; multiply that by 40+ years of expected life, and you can see why these are very big cases.
What are other conditions involving the brain?
Brain Haemorrhages
The next diagnosis that I deal with quite frequently are haemorrhages: bleeding inside the head. Subarachnoid haemorrhage is a unique condition which can strike anybody at any time without warning. A common symptom is a sudden agonising headache and the most prevalent cause of this is a ruptured intracranial aneurysm. There is virtually no other condition in medicine that mimics this. The diagnosis lies almost entirely in the history. Frequently, the first bleed is small and its effects may wane over hours or days. When the patient arrives at A&E, they may feel fine and on examination, there may be nothing to find, so the patient is reassured and sent home. However, with a ruptured aneurysm, the patient is very likely to bleed again. Usually, the second bleed is worse: disabling or fatal. Frequently, the pain is attributed to migraine, or cervical spondylosis. The condition is more common in women, and the peak incidence is in the sixth decade: when patients frequently have co-morbidity.
As a neurosurgeon, you want to identify the patient when they are awake and talking. In this group, the cure rate is very good (around 95%). The re-bleeding rate is about 2% per day over the first two weeks; 40% in 6 weeks, and 67% over a year. So, miss the diagnosis, and the consequence is either death or disability in over half these patients within a year. This condition often comes to the attention of lawyers for two reasons: delayed diagnosis, and a consequent stroke, or a second (or third or fourth…) bleed. The consequence of missing the diagnosis may be a lifetime of severe and avoidable disability, or unnecessary death.
These are tragic cases, involving families suffering due to a treatable condition that was missed.
Infection
Infection inside the head – which is not very common these days – is another condition I deal with as an expert witness. Paranasal or mastoid sinus disease is a common factor causing such infection; it can lead to spread of infection into the cranial cavity, causing an abscess in the brain, a surface collection (a sub-dural empyaema), or venous sinus thrombosis. Curiously, meningitis from untreated sinus disease is uncommon. Surprisingly, teenagers are quite prone to this condition, which is often misdiagnosed because the symptoms are often dismissed. Feeling groggy, with a headache and a depressed mood, is not uncommon in teenagers. If not treated as an emergency, these patients become very sick. They may suffer widespread brain damage, with paralysis, fits or a stroke. Once again, when the treatment is delayed, the patient can be left disabled for years. A student who was hoping to go to university may lose the prospect of studying and then earning. These are high value cases, often settled for millions of pounds: a compound of the care costs, the loss of earnings, and the prolonged life expectancy.
Venous sinus thrombosis
Another condition is venous sinus thrombosis, which leads to raised intracranial pressure, and venous haemorrhage. If identified early, it responds well to anticoagulant therapy. However, once again the significance of the early symptoms may be underestimated. The patient suffers from headaches, blurred vision, nausea, and dizziness. In the early stages - when this condition is most readily treated – the symptoms may be dismissed. Women are more prone to this condition. It may be more common in those taking the oral contraceptive pill. As with so many other neurosurgical emergencies, by the time the diagnosis is glaringly obvious, it is often too late. The skill of medicine is to be able to spot these problems early on.
General comments
All these cases come up with depressing regularity: and they are still being missed. This is a shame, as we have good access to scanning and technology.
Take a subarachnoid haemorrhage: the argument often voiced is that not everyone suffering a sudden headache – for example - can be scanned, and then subjected to a lumbar puncture. This would cost about £500 per patient. The system cannot afford it, say the NHS providers. However, consider the counter-argument: a successful lawsuit for a missed subarachnoid haemorrhage can cost £5million. That means the clinician has to be right only once in every 10000 cases.
Quite often, litigation is not sought after for financial gain, but based on the breach of Duty of Candour; doctors seldom apologise or try to rectify the mistake at hand by referring the patient elsewhere. More often than not, they lie (or are economical with the truth) and hope the problem at hand will go away. Anger is also a really important aspect of the litigation. Honesty is vital in these situations. The NHS purports to have a culture of openness. In my 35 years in the NHS, from 1979 to 2015, I only rarely encountered anything even remotely approaching candour. Rather, the culture is one of obfuscation, and delay in responding to complaints. Frequently, the complaints are handled by people quite untutored in the subject. By contrast, The Courts expect that anyone who puts himself forward as an expert witness has the appropriate experience, knowledge and expertise: and will confine himself to that area, and not stray outside his own field.
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Reports often blame a lack of funding; to what extent do you agree with this?
Most people blame lack of funding, but the problem is recruitment and retention of high quality of staff. Above all, the problem is a demoralised and de-motivated medical profession. Those who can afford to leave, do so as soon as their pension pot seems adequate. The new system of appraisal and revalidation has not caught any Shipmans – nor will it: psychopaths like them will be past masters at manipulating the system. There has been a proliferation of new “cottage industries”. It has spawned an ever-expanding bureaucracy, which is strangling the medical profession like a metastasizing illness. There has been no scientific randomised clinical trial evaluation of all this jargon-infested verbiage. It has been put in place to delude the public into believing that doctors’ performance is evaluated rigorously and forensically. It does nothing of the sort. Rather, there is a huge emphasis on evaluating behaviour, and little or none on clinical standards. As a neurosurgeon, the only outcome measures that matter to me are clinical. Has the advice I gave my patients been balanced, thorough and fair? How many of my patients have improved, or been cured? Has there been a significant number of post- operative complications, like infections, haemorrhages, CSF leaks, nerve damage, or avoidable deaths? This is real accountability: what the NHS measures is usually trivial.
Matters will only improve when the NHS faces true public evaluation of the CLINICAL outcomes achieved for its patients, and accepts its obligation to provide honest, objective data. That is its duty as a public service. Until that happens, the Courts will provide the only route to forensic scrutiny.
Since 1992 Mr Munchi Choksey, FRCS has worked as an independent Consultant Neurosurgeon. Munchi has performed over 2,000 intracranial procedures, including clipping of 400 aneurysms. Performing back surgery in Warwickshire he has operated on over 3,000 lumbar spines, including 350 spinal fusions and over 1,000 cervical spines (necks). In particular, he carries out a large number of revision spinal procedures in patients who have had previous spinal surgery elsewhere. This often involves spinal fusion, which may need to be done from the back or front. Munchi carries out over 200 lumbar spinal procedures and approximately 50 cervical spinal procedures a year. Mr Choksey has a very wide experience of all aspects of clinical neurosurgery. In addition, he acts as an examiner for The Royal College of Surgeons in Surgical Neurology and has done so for ten years. He is a recognised expert witness, preparing reports for both the Plaintiff and the Defendant.
Mr. Munchi Choksey MD (Cantab) FRCS(SN)
Neurosurgeon
Fillongley House,
Fillongley.
CV7 8EA
munchichoksey@outlook.com
01676 549 017
www.munchichoksey.co.uk
Earlier this year, Professor Claoué established the Eye-Law Chambers, an organisation that is dedicated to ophthalmology expert witnesses. We spoke with him earlier this year regarding the aim of the chambers and so we decided to catch up with him, to discuss the chamber’s progression, what makes them the go-to experts for medical issues involving the eye, and issues they face with the legal sector.
What is the most challenging aspect of devising a report?
We have a policy at our Eye-Law Chambers to keep our report as short and relevant as possible without missing any material facts, which is a good challenge. This contrasts with other experts, who sometimes seem to want to produce the longest possible report. We like to make the point of delivering the report on time and on budget, and we try to keep a turnaround time of four weeks or less; at the moment, we have not had any problem keeping to that.
Because we have several experts, we try to make sure each expert has an appropriate amount of work to meet our timelines and we believe that potential clients appreciate a clearly stated and relatively short time-line for reports.
What do you tend to do when the investigation of facts does not give much leeway into you producing an overall conclusion? Following on, if there is little evidence for you to produce an opinion, do you think more could be done (from the legal side) to ensure sufficient evidence is sought after?
This is a very good question; in our field of expertise, the problem is always in the quality of medical records, which were never created with the intention that they would be subjected to forensic analysis.
What would you advise to try and change that?
We are often provided with the ophthalmology medical records, but occasionally having the optician’s records are very helpful. Of course, opticians are not medically qualified but they can measure vision very accurately and this helps, especially if there is dispute as to whether vision was or was not normal before the index event.
If there is little evidence for you to produce an opinion, is there anything that could be done by the legal side?
A careful witness statement from the client can often be very helpful, as well as optician’s records as previously mentioned..
Does the legal profession often underestimate the time needed to devise an appropriate report, and if so, what could be done to solve this issue?
This is a really big problem because the legal profession seems to underestimate the time to go through very copious medical records in a rigorous manner. As a result, we have to have robust discussions to explain that a high quality report will take time and effort. One of the things we like to point out is that there is English case law that it takes 1 minute to scrutinise one page, and not one second! As my favourite, yet highly applicable phrase goes: ‘Pay peanuts get monkeys’.
Can you notice when looking at the opposition’s reports, any traits which indicate the report has been rushed?
Yes, and it implies to me that the expert has not had the time to get to grips of the information provided. There are typographical errors, wrong dates or laterality, and there is the impression that “cut-and-paste” has been used a lot to pad it out. A high-quality report ought to be short, relevant and technical terms should be explained.
What is the best way to devise an objective report? What stages do you undergo?
The most important part of this is strategic planning from the outset; so you must consider: what are the facts? Iin our field, we look at indications for treatment – whether the diagnosis was correct, whether the consent process was reasonable and what was the outcome and management. I have to say that the consent is currently the hot topic, due to the Montgomery case.
Following from the above, do you often find that the requirements i.e. time constraints, from the legal profession could alter your own method of analysis?
Eye-Law chambers are quite often instructed to produce screening reports and my concern with that is that it may miss subtle aspects which are not immediately obvious. Time is obviously the key to producing high quality rigorous reports but if we are time limited and we regard it as inadequate, we do state it in our report so the Court is aware. If speed is of the essence for reasons of limitation we do offer a 5 day and a 48 hour service subject to our workload, but the solicitors who need thi service are always very grateful to find that our Chambers can deliver it.
What do you classify as a bad report?
Of course any report that is not provided by Eye-Law Chambers! More seriously, reports where people stray from their area of expertise, or at the other end, where experts advise ultiple other Expert opinions and then don’t come to any conclusion themselves. I would like to add that any reports that are late having been promised in a given time, but then are delayed for no good reason, are bad reports! This is why we have a four week timeline in our terms of engagement.
How do you ensure your conclusion is succinct for non-experts and how difficult is it to ensure the message is still portrayed?
This is very relevant in ophthalmology, as even within medicine ophthalmologists have our own language and technical terms that other doctors may not understand. Therefore, in addition to our conclusion statement in the text of the report, we also provide a bespoke glossary to clarify technical terms and include a short appendix which tries to cover the basics of ophthalmology as succinctly and simply as possible.
The report structure seems reasonably straightforward, however, with your extensive experience, do you think any requirements could be altered to produce a higher quality report?
Eye-Law Chambers are frequently told the diagram and explanation of the anatomy of the eye is very helpful, so perhaps other experts should be more generous with their illustrations in their reports as I agree that a picture is worth a thousand words.
We speak with Ghada about the recently new arbitration law passed in Qatar. The new law allows the arbitral tribunal to decide questions involving nullity or invalidity of the arbitration agreement. Ghada says: “In relation to this is the principle of severability, which ensures that the arbitration clause contained in any contract remains independent of the contract. Thus, nullity or termination of the contract will not affect the validity of the arbitration clause. Further, arbitral tribunals may render temporary measures which may be applied for enforcement with the competent courts.” In this interview, she expands more on what the new law means to Qatar’s legal and investment development.
The new arbitration law in Qatar was set out to help aid investment into the country; what do you think was the initial motive behind setting out to ensure investment strengthened?
The new Arbitration Law can be seen as another positive step to welcome investors to an already booming economy, and it is expected that the market and the general environment will be more open for investors.
It is not surprising that the new law aims to make Qatar more “arbitration-friendly”, despite the fact that arbitration has been resorted to in Qatar for quite some time already. Prior to the passage of the new arbitration law, arbitration was governed by the Qatar Civil and Commercial Procedure Code. In 2002, Qatar became a party to the New York Convention and since then has strived to apply and enforce the rules contained therein.
The new law will undoubtedly aid in solving commercial and civil disputes, especially those that may involve international parties. With the passage of the new law, foreign investors can rest assured that their disputes can be resolved through arbitration in Qatar.
Even though the new arbitration law is a positive step towards development, where else do you think Qatar could improve to further drive in investment?
It is true that the new arbitration law is a positive step toward encouraging further investment in Qatar. Recently, the Cabinet of Qatar has approved a draft law on foreign investments which will allow non-Qataris to be 100% owners of a company. The New Commercial Companies Law which came out in 2015 also took steps to ensure that Qatar becomes more “investor friendly”, which includes removing the need for a minimum capital requirement for Limited Liability Companies. Further, the creation of the Qatar Financial Centre (QFC) also paved the way for the creation of the QICDRC, which is the arbitration centre of QFC arbitration disputes.
All in all, legislation is evolving and progressing in order to adapt to the needs of the market, and taking bold steps to truly encourage foreign investment and development.
How do you think the enforcement of this law will affect other nearby jurisdictions? What do you think will be the affect if they adopted a similar adaptation of the law?
The enforcement of the law would not affect the nearby jurisdictions negatively. In fact, nearby jurisdictions may even choose to hold their arbitration proceedings in Qatar. The new law is applicable to proceedings conducted in the state of Qatar or proceedings conducted abroad where the parties agree to subject the proceedings to the Arbitration Law of Qatar.
The new law is largely based on the UNCITRAL Model Law, which is used and recognised worldwide. Thus, nearby jurisdictions will be familiar with a majority of the provisions of this law, making it more accessible and appealing to other jurisdictions and international parties.
Nearby jurisdictions adopting a similar adaption of the law would yield positive results as the nearby jurisdictions would have similar enforcement and interpretation procedures. This would be useful for cross-border businesses and transactions between and among the nearby jurisdictions.
The Arbitration Law sets out a number of requirements that need to be reflected in the content of an award; could you expand on this for Lawyer Monthly readers?
The new Arbitration Law stipulates certain requirements that must be included in an award. First and foremost, arbitral awards are void if the subject matter of arbitration is a matter which is prohibited from being arbitrated under the laws of Qatar. The arbitral award is to be rendered according to the procedures agreed to between the parties and the provisions of the arbitration law. The arbitral award should be in writing, signed by the arbitrators, reasoned unless the parties agree otherwise, and shall contain the names, addresses of the parties as well as the names, addresses, nationalities, and capacities of the arbitrators. The costs of the arbitration and the party bound to pay them should also be specified. The arbitral award should be given to the parties within fifteen days of rendering the judgement.
The time period to issue the arbitral award is dependent upon the agreement of the parties, however in the absence of such agreement then the time period shall be one month, extendible for a similar period. In relation to time periods, the period for amending an arbitral award is set at only seven days.
A very important aspect of the law is that the award may be appealed only by way of a request for annulment with the competent courts, which must be based on the grounds specified in the arbitration law. The petition for annulment should be initiated within one month from the date the arbitral award is issued.
How has the new law been addressed in Qatar? Have you noticed any problems with the enforcement of the new law?
The new Arbitration Law was very well received by both practitioners and lawyers in Qatar. The law was highly anticipated for several years, which explains why the community welcomed the new law very positively. So far, there have been no problems in its enforcement or application. Further, the Arbitration Law provides that the law will apply to all pending matters of arbitration, in addition to matters which will be subject to arbitration in the future.
Application for enforcement of the arbitral award should be submitted to a competent judge along with a copy of the arbitration agreement, original award and certified translation of the award if the award is rendered in English, unless the parties agree on alternative means of enforcement of the judgment. The application for enforcement will only be allowed after the expiration of the time for filing an annulment of the award, which in most cases is within one month from the date the award is issued.
In what ways will this help Qatar to progress? In light of recent news, with Qatar being cut off by nearby jurisdictions, what is next in line to help aid further progression and not hinder investment?
The new Arbitration law will help Qatar progress as it is aimed at making Qatar more “arbitration friendly”, as well as to promote Qatar as a leader in arbitration. It is important to assure investors that all business and commercial transactions remain functioning and for the most part, unaffected.
Ghada M. Darwish law firm is a law firm in the State of Qatar. It offers legal services to clients with matters requiring corporate, commercial or dispute resolution assistance. We have legal experience in regulatory matters, commercial transactions, employment issues, and civil, criminal and family law disputes.
The firm provides advisory services to foreign clients involving in accordance to local rules and regulations of incorporation and registration, joint ventures, commercial contracts, construction, tenancy, labour, tendering and dispute resolution. The firm cooperates with local and foreign entities in relation to corporate and dispute resolution matters, including arbitration.
Divorce is seldom an option that is considered when you first step foot into the union of marriage, however, ‘till death do us part’ may not be applicable in all cases, which allows divorce to free you from the bounds of the relationship. It may not be the most pleasant of processes to undergo, so we speak with Stacy Phillips, an expert in family law, who shares what could be done to ease families through the difficult circumstances, her work with celebrities and how the Courts in California have addressed family legislation.
How have you seen legislation change since you began your career in family law?
The first major change is that in 1992, the California State Legislature enacted the Family Law Codes as part of the general statutory law of California. Until then, we practiced under the state’s Civil Codes. Another important change is that we now have Mandatory Disclosure laws in California. Now, all assets, liabilities, income, and expenses must – under penalty of perjury—be fully disclosed in writing. Failure to do so can trigger punitive damages; for example, concealed assets can be awarded to the other party. We also now have legislation mandating evidentiary hearings in Family Law cases. This used to apply only to custody and domestic violence cases, but now applies to dissolution as well. Now, we have to provide written declarations as well as attending evidentiary hearings. This was designed so that everyone has their “day in court”. Finally, it used to be in California that if one party petitioned for personal contact restraining orders, the court would order that it applied to both parties. That is no longer the case.
What further progress would you like to see made in family law in terms of US divorce cases and marriage law?
Our court system in California needs more funding. I have practiced through numerous budget crises and the negative impact has been felt by families as well as attorneys. When cases cannot be processed through the system, peoples’ everyday lives, feelings, and financial realities hang in the balance. In Los Angeles in particular, I would like to see reorganisation of how our family law system is set up.
What special considerations must you make in dealing with high profile/celebrity divorce cases?
My first consideration is to protect the privacy of my clients and their children from the media. In addition, in order to provide excellent counsel to my clients, I must have direct access to them and have the cooperation of all of the professionals who work with my client in other capacities (such as managers, agents, publicists, other attorneys).
What is the primary scope of your book, Divorce: It’s All About Control?
My wish as a family law attorney is to make a positive difference in my clients’ lives, helping them get through an incredibly difficult time, and also helping them reshape their lives to move forward. My goal in writing this book (and the updates to each edition, now 7 in total), was to offer an objective view of how destructive the divorce wars can truly be, and to offer the reader viable suggestions on how to deal with – and even avoid-- them. My book is meant to give readers insights into how to regain their personal power and how to assume and maintain control in their lives and relationships. The chapters include characters and scenarios (a combination of real people I have encountered in my 35 years of practice, and hypothetical/ fictional situations), plus worksheets for personal reflection, together intended to raise readers’ awareness about what causes relationships to disintegrate, what keeps people stuck in their battles, and the pain and suffering that can occur in the throes of divorce and its aftermath. The impact of divorce on children cannot be overstated. Every chapter in my book contains observations and advice about how to mitigate the effect on their delicate psyches. While I am not a psychologist and do not pretend to be, this is just the nature of the work I do. Through my book, I hope to help others find strength, make peace, and move forward productively with their lives.
Stacy D. Phillips | Blank Rome LLP
2029 Century Park East 6th Floor | Los Angeles, CA 90067
Phone: 424.239.3400 | Fax: 424.271.9167 | Email: sdpdissoqueen@BlankRome.com
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Article Written by Calogero Boccadutri
Divorce in Italy can be both simple and quick, if an agreement can be reached with the future ex-spouse. In case of a lack of agreement, the fate of the divorce is decided by lawyers, within the limits of their role and remit, and by the judge.
After law 55/2015 for quick divorces came into effect on May 2015, in order to dissolve a marital partnership in Italy, six or twelve months must pass for mutual and judicial separations respectively.
Separation
To go through a divorce in Italy you must pass through an initial phase of separation. Separation does not bring the marital relationship to an end, but reduces the effects of it.
Above all, the obligation to live together is no longer applicable, you are no longer held to fidelity and the legal sharing of property terminates. Other marital duties also cease.
However, patrimonial obligations and material assistance obligations do exist. Only a subsequent divorce means the break-up of the marriage or the end of the civil effects, and a change in the status.
There are different paths to achieve separation.
When separation occurs by mutual consent, the spouses provide a common request before the President of the Court, in order that they might support their approval. If the agreements are judged to be reasonable for the spouses and appropriate for the offspring, the court can approve them.
When spouses do not agree on the conditions of the separation, judicial or contentious separation can happen.
In the case of no agreement, when living together becomes “intolerable” to carry on with, the request for separation can be presented by one of the two spouses.
This separate path is defined by the “judicial separation code” since the final provision request constitutes the outcome of a contentious civil process: a ruling that arranges for the personal separation of spouses.
In these circumstances you can make a request for a separation charge to the spouse whose “behaviour is contrary to the duties deriving from marriage”. (Art. 151 Codice Civile)
If the spouses do not have this type of understanding, it is up to the Tribunal to make a decision upon all the controversies and to establish the rules of separation. In this case, one would resort to a civil trial.
The court, pending a judgement, can release a provisory sentence that liberates the spouses from the matrimonial path, proceeding with the disagreement only on the aspects relating to property or debt or child custody.
Another way to achieve separation is the assisted negotiation introduced by Decree n. 132/2014, made into the law 162/2014.
The spouses in agreement can bypass the Tribunal and turn directly to the lawyer or state official for the Municipality.
In the absence of dependent children, if an agreement is reached, it would have to be authorised by the public ministry. Within a month, if opposite opinions do not exist, the agreement would be transcribed at the office of the civil state.
If there are underage children who are disabled or severely disabled the agreement must be sent to the public ministry within ten days for approval.
In the absence of underage children or those in need of assistance, spouses can ask to appear by themselves before the Mayor to obtain separation.
A decree that approves separation by mutual consent, or rather the judicial separation agreement, or the assisted negotiation agreement, authorised by the public ministry, or alternatively the signing of the agreement before the Mayor in order for the separation to be valid, are all sufficient.
Reconciliation
Separation is the only way that leads to divorce but it is not a path with no going back. Spouses can be reconciled if and when they want. Reconciliation brings an end to the effects of the separation.
In accordance with article 157, c.c., spouses can bring an end with a mutual agreement to the effects of the separation with an “express declaration”, intimating that it could be made, orally or in writing by means of a public acknowledgement or private writing, of an act received from a notary or registrar.
A more recent jurisprudential orientation has actually concluded that the declaration must submit to “desires of certainty ascribable not just to the interests of the parties, but also to the indisputable publishing reflections recognised by the system to the family institution.”
And so, while not supported by sacramental formulas, this declaration must possess the requisites of a formal acts to make it verifiable at any moment.
Divorce
Once the agreement for a divorce has been announced the marital bond is completely dissolved.
This produces effects from the civil point of view, given that the spouses primarily change their status, and can now re-marry. The wife must give up the husband’s surname, unless the judge allows them to keep it.
From an inheritance point of view, the right of one to succeed the other is lost. Depending on the property situation, one of the two spouses should give to the other a periodic “divorce allowance”.
If the parties reach an agreement it can be substituted with an allowance given to one solution subject to the consent of the court that is to make sure that the amount is enough.
Furthermore, ownership of the house, of the property and of other possessions have to be decided.
Divorce also includes a definitive decision on the custody of potential children, but normally the one that is established is ratified during the separation, unless the conditions have changed.
In case of “holy marriage with civil recognition”, honoured in a church and transcribed in the registers of the marital record of the Municipality, the civil effects cease but to terminate the religious path a pronouncement of annulment from the Regional Ecclesiastic Court or Sacred Rota is needed.
Exceptions
It is possible to get a divorce in Italy not only after a separation but also in other exceptional cases:
If the marriage was not consummated
If one of the spouses committed a very serious crime
If one of the spouses legally changed their gender
If one of the spouses is a foreign citizen and has got the divorce/annulment abroad, or has remarried.
Tfr and The Ex-Spouse’s Pension
The spouse that is the main child-care provider has the right, if they have not remarried, to a percentage of the indemnity of severance collected by the other spouse to the act of cessation of the employment relationship, even if brought about and after the ruling.
In case of the death of the former spouse, in the absence of another marriage, the spouse that until now has received the maintenance allowance (not having remarried on their part), will have the right to the widow’s pension, as long as the employment relationship from which the marital compensation originates comes before the settlement for a divorce in Italy.
If in any case there is a surviving spouse with the requirements for the widow’s pension, the court would have to establish, based on the duration of the marriage as well, and the extent of the need, the amount to be handed out.
The separated spouse has the right to the widow’s allowance unless the separation has already been charged to them and that the court has not recognised their right to receive the allowance.
Custody of the Children
In the presence of children, usually the matters related to their custody are discussed within the separation or divorce proceeding.
The last reform of shared custody has set out that for the good of the children, the best solution is that they be entrusted to both parents. The so-called “shared custody” grants parents an equal role in the upbringing of their children, even if they don’t all live under the same roof, the child will be resident at the house of one of the two parents.
It is always possible that sole custody be decided in some exceptional cases.
The parent who looks after the children for the most amount of time tends to be granted the family house.
Modifying the Conditions for Separation or Divorce
The conditions established in the place of separation and divorce can always be modified.
It can happen that the situation of the ex spouses or the conditions of the children’s custody changes and that this should necessarily be ratified in court.
We speak with Dr Geza Toth-Feher about Brexit and the real estate market. He explains: “Brexit will not prompt the final sell-out of the UK, this process began many years ago. Therefore, I believe the UK will provide ample opportunity for foreign investors to buy opportunistically for the next eighteen to twenty-four months.”
In this insightful interview, he reveals what the impact of Brexit has been on the investment market and what the future looks like for transactions and FDI in the upcoming months.
What is the immediate impact of the referendum?
Last spring no member of the investment or financial community expected the people to ‘vote leave’. The referendum campaign was fought on the shallowest of levels, on both sides of the campaign trail. The arguments that were exchanged were ill-prepared to absurd, and the notion of an entire country plunging itself voluntarily into the abyss was just unthinkable. The representatives of the leave campaigns were perceived by many people in the finance and investment community as clowns, thriving on a neo-populist wave that rallies against everything that is modern and foreign and somehow not tightly controlled. Against this background, the decision truly came as a shock.
Therefore, the immediate aftermath of the referendum decision was dominated by turmoil in the financial markets and a major political crisis, which in my opinion, is still ongoing. To exacerbate matters, there was a legal vacuum. No one seemed to have thought this through or was prepared to show leadership. The public were confronted with details of the process only after the event and even then, the information given was scarce at best, often wrong, intellectually on mickey-mouse level.
The decision, ultimately born out of a Tory political backbencher quarrel that David Cameron simply could not quell, has thrown open largely unprecedented challenges, and it will take the United Kingdom some decades to overcome all of those. The technicalities of the referendum outcome and next steps are unclear, so are the solutions.
The UK negotiators, who will have to be trained first, are under massive pressure due to an ever-tighter timetable, set in motion by the article 50 notice. The fact that the 8 June 2017 election may have produced a minority government does not make this task easier. As a result, uncertainty about prevailing market conditions, as well as uncertainty about the political spectrum, as it now presents itself after the general election on the 8 of June 2017, prevail and affect investor sentiment.
How does the currency market affect real estate investments?
A prudent real estate investor will look at an investment not only with regard to its sector fundamentals, but also with regard to the currency in which the transaction is done, especially if the repatriation of returns (such as rental income or refinancing proceeds or sales proceeds) occurs into a currency other than sterling. For example, the famous (and fully let) Gherkin Tower had to enter receivership because it was financed in a multi-currency-structure, mainly made up of Swiss Francs Tranches. When in 2013/2014 the Swiss Franc rose, the loan amounted to roughly £644m, versus its original value of £396m.
The dramatic drop of the sterling against the two other relevant currencies (sterling came down from almost €1.35 to below €1.10, and from almost $1.45 to below $1.25) in the weeks and months following the referendum decision has sparked substantial trading activity on the currency markets. Furthermore, the US dollar and EUR property buyers are beginning to take advantage of the correction of the sterling value, which they perceive as being temporary.
In a way, the currency disaster provided some relief. It took some of the heat out of the Central London property market. The ‘Brexiteers’ never became tired of selling the currency development as a success.
However, the currency impact is of course relative, especially in commercial property investments, at least as long as rental income and other proceeds will be received in the same currency as the acquisition currency. Hence, real estate transactions will have an element of hedging and speculative currency trading as part of their normal risk profile. This uncertainty will eventually drive prices down.
It is unclear, what the long-term impact on sterling figures will be with: the Eurozone regrouping and reforming; France and Germany apparently able to defeat the ghosts of populism and isolationist politics, and the notion of parity between sterling and the EUR – and we have been close before – seems to becomes quite a likely scenario.
Has the referendum result sparked transactional activity?
It almost certainly has. Now, almost twelve months down the road from the original referendum decision, transactional activity has picked up and the paralysis that was seen in the days and weeks following the Brexit decision has lifted to some extent. The key element of uncertainty is the exact shape such Brexit is going to take. Is it a ‘soft’ or ‘hard’ Brexit, with additional uncertainty as to what exactly these terms mean.
It is difficult to have a comprehensive analysis of Foreign Direct Investment (FDI) into the UK, but Ernst & Young have compiled a report (EY’s UK Attractiveness Survey 2017: Time to Act) which is published on www.ey.com.
Looking at the statistics in that report, the UK has retained its top spot for FDI performance, ahead of Germany, with a 7% rise in total projects (1,144), the highest figure on record. It is also Europe’s leading beneficiary of FDI-related jobs, with a 2% rise to 44,665. However, this development was far outpaced by the increase across Europe as a whole, meaning that the UK’s market share of all FDI projects in Europe fell from 21% to 19%.
Aside from these numbers, the impression of most market participants is that there are lot of large-scale investors “kicking the tyres” on large deals in the UK. There are a number of very substantial property transactions under negotiation or under offer. One cannot help but feel that the interested buyers are more of the opportunistic, bargain-hunting nature, and that this is a first sign of an impending downturn, not from a healthy and functioning property market. We should not forget that the sector also suffers from the UK’s own home-grown problems, in particular the notorious shortage of affordable housing and the somewhat paralysed UK mortgage market.
Will the UK become a tax haven for offshore investments?
In the months following the referendum, it appeared that this might be the direction the government would take. By the end of 2016 it was widely expected and reported in the press that we would see a regime of falling corporate income and dividend taxation and a general relaxation of investment rules, the traditional cures for low activity and productivity.
Strangely, the government in its 8 June 2017 election campaign led by Theresa May, seemed to try to embrace a socio-economic approach, very contrary to what a stronger chancellor would be able to propose. With Philip Hammond gagged, the Tory party was suddenly becoming the champion of traditional new labour values. During the election campaign Theresa May refused to rule out tax rises.
With the result of the general election being as it is, the chancellor’s hand appears strengthened again. At this stage, no one can exclude yet another U-turn in this never-ending tale of political miscalculations.
Of course, the reality is that the United Kingdom, and with that one means the Greater London area, the commuter belt with good transport links to London, and maybe the powerhouses in the North, still provides investors with an investment market of considerable breadth and depth. Taxation is one factor an investor should consider but it cannot or at least should not be the main investment driver.
What is the impact of the referendum results on the fund and hedge fund industry?
The fund industry dislikes change. The hedge fund industry usually thrives on it. Change prompts transactional activity and returns. Of course it brings risks – a lack of certainty in the fields of taxation, of cross border dividends post Brexit, the absence of a unified approach to the regulation of the industry, and a drain on the UK based pool of human capital and talent.
Where the immediate impact of the referendum, at least legally speaking, is non-existent, during the Brexit negotiations the funds regulation will have to change and quite fundamentally. This applies not only to funds, but also to financial services, insurance and other regulated industries.
It is entirely unclear which regulator regulates what in the future. As an example - if a fund is located in Luxembourg, within the EU, but does investments in the United Kingdom, will there be a double layer of regulation, one coming from Brussels and one from Westminster? These questions need answering and fast.
How have you adjusted your investment strategies?
We are generally opportunistic in our approach, as are our investors. We, therefore, see opportunity, not without challenge, in these difficult market conditions. The main issue for us is not so much the worsening of the general outlook but the extreme volatility. Market sentiments and economic outlook on the world, post Brexit, change on an almost weekly basis, with a few U-turns here and there.
As a result of our fluid outlook, we at CBE Trapp & Co. have adjusted and solidified our investment strategy. We continue looking at the investment fundamentals. The market conditions are what prompts the activity that promote a transaction and pressure points. However, we try not to fall into the trap of doing a deal just because of that.
We look for those deals where a good asset is caught in a market-driven special situation and is therefore, artificially and temporarily, undervalued. We prefer solid and tangible value, capital growth and income growth in defendable positions, but not necessarily with a long-term view.
Investments have become larger and the composition of investors has changed. We see large institutional amounts piling into the UK and we are now, more than before, keen to secure large scale portfolios or platform transactions, where the assets will be worked on by an experienced management team.
How concerned are you that organisations will move to cities such as Paris or Frankfurt?
Banks and financial institutions have always been toing and froing between Frankfurt and London. In my personal career, which I started in Germany, Frankfurt became a boom town for some years in the 90s, then the sentiment swung towards London, then back again. A new phenomenon of the post Brexit area is the wooing, with Paris and Berlin sending clear – almost shameless – signals to the talent pools in the UK to try and attract them away from London. This may work well for the start-up industries (and generally for ‘hipsters’ working on ‘projects’) in Berlin, and for natural sciences in France. However, people forget that London is a metropolitan city with enormous attractivity for families and young professionals, and they do not – and often simply cannot - just move over night.
I believe that talent will always seek the best place of employment and opportunity, and we will see more people commuting between London and Paris. In a way, these two cities have almost merged into one Pan-European unit.
I am also convinced that Paris will have political difficulties in offering ‘sweetheart’ deals for bankers, this may be different for other talent such as technological, pharmaceutical or the academia.
How is the banking and lending market affected by the referendum results?
The banking and lending market reacted as all institutional markets first did, with paralyses. Lending became scarce and the availability of debt finance for commercial and real estate transaction was limited. The markets have since relaxed a little bit and we now find bankers, if not bullish, but at least willing to participate in the natural course of business.
The hurdles for any bank to make a lending decision have become higher. Once the decision in principle has been made, lending values, LTV and repayment terms are just as aggressive as they were ten years ago.
The European banks, in particularly those with a license to issue German Pfandbrief as a means of refinancing, are taking a large share of the markets, together with their US counterparts, who now benefit from a massive competitive advantage in that the US is beginning to deregulate its banking system under the Trump administration.
What is your prognosis for the future of the real estate market in the UK?
As I said before, the UK remains a property market with quite considerable breadth and depth. I would firmly expect to see a temporary correction, with a lot of influx of foreign investment capital into the UK, and I would not be surprised if some of the landmark buildings around town and some prized companies and infrastructure assets were changing hands.
Mini Questionnaire – ‘Food for Thought’:
What do you want to achieve in 2017?
We would like to achieve further growth in our property portfolio and we would also like to add more partners to the firm.
Do you have a mantra or motto you live by when it comes to helping your clients?
Nice and simple: focus.
How do you measure your success?
On the returns achieved for us and for our investors.
My name is Geza Toth-Feher. I am the Managing Partner of CBE Trapp & Co Ltd., London, a multi-family office with German, Swiss, Austrian and UK investors and co-investors. The firm acts as lead investor and operating partner for multinational private equity transactions. Additionally, we provide advisory support, usually in special situations, restructurings and/or recapitalisations. The firm invests in commercial real estate in the UK, Germany, Austria and Italy with prime emphasis on special situations or particularly complicated structures. The firm has recently been involved in one of the largest commercial real estate transactions post Brexit in 2016. We co-arranged the sale of a property portfolio of Marks & Spencer retail outlets to Fortress and funds managed by Fortress, Los Angeles.
Dr. Geza Toth-Feher Lord of Kennal
Managing Partner of CBE Trapp & Co Ltd.
4 St James's Place
London SW1A 1NP
United Kingdom
Tel: +44 2074 994 596
E-Mail: gtf@cbetrapp.com
Robert Doty is a municipal bonds litigation consultant and municipal bonds expert witness.
He became involved in litigation consulting and municipal bonds expert witness work 30 years ago when he began receiving calls from counsel involved in litigation relating to municipal bonds. Counsel heard of him by word of mouth, and he states that the reputation-based form of contact continues to be the primary way he obtains business. He discusses with us this month his experience in the municipal bond field and his work as an Expert Witness.
What is your consulting experience?
I have worked in approximately 150 litigation matters and have testified at depositions and at trial approximately 80 times. Not all of the matters in which I am retained lead to expert witness consulting.
What is your municipal securities market experience?
I became involved actively in the municipal bond market in the early 1970s when I was asked by a municipal bond counsel firm to research how the securities laws apply to municipal bonds. By that time, I had already been involved in the corporate securities market for several years. My active involvement in the finance industry extended for more than 45 years.
Over my municipal bond market career, I served as General Counsel to the Government Finance Officers Association, and as a municipal bond counsel, underwriter’s counsel, counsel to issuers, investors, private borrowers, and trustees, an investment banker, special consultant to underwriters, and financial adviser to municipal bond issuers.
I have worked in billions of dollars of successful transactions in municipal bond offerings, workouts of defaulted and other troubled municipal bond issues conducted by others, and corporate finance transactions benefiting local governments and private corporations in approximately two dozen states.
Have you worked with groups active in the municipal bond market?
I have been an active member of national associations of municipal bond issuers, investors, counsel and financial advisers. I speak several times a year on municipal bond matters. I also have participated actively with national task forces and committees preparing authoritative municipal bond market disclosure and due diligence guidance for issuers, counsel, investors and others involved in municipal bond transactions. Additionally, I have served as an officer of associations of investors, financial advisors, and committees of municipal bond counsel. The National Federation of Municipal Analysts honoured me with its Municipal Industry Contribution Award, and the International Municipal Lawyers Association gave me its Most Outstanding Associate Member Award.
Have you published books or articles on municipal bonds?
I have published several books on municipal bonds, including most recently, the Bloomberg Visual Guide to Municipal Bonds (John Wiley & Sons and Bloomberg Press, 2012), Municipal Securities Law & Practice: Regulation, Disclosure and Enforcement, 212 Securities Practice Series (Bloomberg BNA 2014), and Expanding Municipal Securities Enforcement: Profound Changes for Issuers and Officials (International Municipal Lawyers Association, 2016). Altogether, I have authored and co-authored more than 80 articles on municipal bonds, including seminal works dating back to the 1970s, on securities law application to municipal bond transactions and articles on fiduciary duties of certain professionals.
Who are your clients? How much of your work is on the plaintiff and defence sides? Enforcement work?
My clients are the legal counsel who retain me. I do not accept retention by, and do not provide advice to, counsels’ clients. To date, approximately two-thirds of the matters in which I have been engaged were on the plaintiffs’ side and one-third on the defence side, although in recent years, I have been retained by a number of defence counsel. In the case of federal enforcement work, my retentions have been split approximately evenly between plaintiff and defence counsel.
What type of services do you provide?
Initially, I generally serve first in a consulting capacity with counsel. In that role, I provide information regarding the municipal bond market. Most often, because the municipal bond market is rather obscure for most people, counsel want to learn about it.
I have found, especially on the defence side, that by working closely with counsel, I am able to assist by making suggestions concerning organisation of evidence that will demonstrate the counsel’s case more effectively. Some counsel, being unfamiliar with municipal securities practices, do not always know the best questions to ask.
With respect to expert witness work, there are times when I am unable to provide opinions that are asked of me. Sometimes, with my feedback, counsel may be able to ask me somewhat different questions. Sometimes, I must decline to accept the work because the opinions the counsel is seeking do not coincide with my own perspectives.
How do you decide whether to accept engagements?
I decide on accepting engagements according to the questions that counsel ask me and whether I am able to provide accurate answers. I do not feel compelled to accept every matter. Counsel decide whether my answers assist their cases, but that does not drive my opinions.
How do you arrive at your expert opinions?
My responsibility is to be accurate. I spend considerable time becoming familiar with the facts involved in the litigation. I carefully review transcripts of depositions and the exhibits. I pay substantial attention to the municipal securities industry guidance published by professional organisations and also research regulations and authoritative books and other literature as a way to double-check, and demonstrate substantive support for my opinions. It is not unusual for my opinions to evolve, in the sense of becoming more refined, as I conduct this research. I will staunchly defend those opinions.
How do you charge fees?
My fees are strictly non-contingent hourly fees. I am paid regardless of whether counsel like or do not like my opinions. Since I take the time to be careful and detailed in my work, my fees can be higher than fees charged by some others in my field. In the end, however, I must know that I have done my best.
What are common cases and disputes that arise in your field?
Many disputes are focused on whether municipal bond issuers have made materially accurate and complete disclosure to investors. The materiality concept is defined by the courts.
Other cases consider whether underwriters have conducted appropriate investigations of the issuers’ disclosures, commonly called due diligence. Still other cases relate to questions of whether counsel have provided appropriate advice in offerings or other professionals, such as financial, and other municipal, advisers, have fulfilled their fiduciary duties. Yet, other cases relate to compliance with regulatory requirements.
How does municipal bond market practice and law differ from the corporate securities market?
The municipal bond market is regulated in a very different manner from the corporate securities market. That makes understanding the municipal bond market more difficult, even for counsel accustomed to corporate securities regulation. Municipal bond offerings generally are not subject to the requirement of registration with the SEC. Issuers are not subject to the same periodic reporting requirements. Instead, the SEC has devised an indirect form of regulation by imposing restrictions on municipal bond underwriters. The restrictions prohibit underwriters from underwriting most municipal bond offerings, unless the issuers provide a disclosure document called an “official statement” and the issuers agree to make continuing annual and specific event disclosures. Enforcement, rather than SEC pre-offering guidance, is much more important.
Municipal bond dealers are regulated by a special market self-regulatory body named the Municipal Securities Rulemaking Board. The MSRB also regulates a newly-defined group of professionals known as “municipal advisers.”
How has municipal securities law and practice changed over your career?
Regulation has become much more complex, enforcement far more intense, and professionals significantly more conscientious.
Do you think any of these cases could be avoided, and if so, how?
Yes. If some market professionals would pay closer attention to regulations and available industry guidance, they would be better served. Fortunately, most professionals are quite careful in their work.
What are the common misconceptions that non-experts have in relation to your field?
Some non-professionals believe that expert witnesses essentially will provide any opinion that counsel ask. I take great pride in being thorough and careful in forming my opinions.
Robert Doty
President and Proprietor
+1 (916) 761-3432
About
Mr. Doty, President and Proprietor of AGFS, participated for more than 45 years in billions of dollars of successful transactions in municipal bonds, municipal securities offerings, workouts of defaulted and other troubled municipal bond issues conducted by others, and corporate finance transactions benefiting local governments and private corporations in approximately two dozen states across the nation. Mr. Doty continues to serve as consultant to, and municipal bond expert witness on municipal finance in consultation with, legal counsel to municipal securities issuers, underwriters, municipal advisors, bond counsel, trustees, investors and governmental agencies.
Through AGFS, Mr. Doty provides municipal bond expert witness, litigation consulting, and forensic analysis services to counsel relating to state and local government securities and transactions in municipal bonds.
The world of construction is a complex one, full of rules and regulations to ensure that the safety of others is met to the best of standards. More often than not, these regulations are not met, or, clients are dissatisfied with the completed project. After investing a vast amount of money to be disappointed or met with a list of faults, can lead to heated disputes between contractor and client. This month we speak with Christopher Ling, who dedicates a lot of his work to construction litigation cases. He discusses with Lawyer Monthly issues the construction industry can face and the best way to avoid litigation in such cases.
As you are responsible for all litigation support through physical investigations, analysis, report writing and expert witness testimony, which phase poses the most challenges for you?
Physical investigations pose the greatest challenge because we do not know what the major issues are when we begin the discovery phase of a claim. What may appear to be a major issue may turn out to be unimportant after the physical investigation. And conversely, as the investigation process progresses, we may find major issues that have not yet been identified.
There is an art to investigating an existing building. We have techniques and equipment to examine the building before destructive testing. We use infrared technology, moisture probes and other hi-tech devices.
How have you seen the construction industry change over the years; how have these changes affected the lawsuits which occur?
The biggest change that I’ve seen in the construction industry is the lack of quality in the labour force. In years past, technicians that specialised in their trade were a great resource on how something should be installed. In the last ten years, the labour force has been less skilled. There are fewer technicians and fewer workers who have experience working with different types of materials or projects. Many workers in the construction industry do not know how to properly install these materials. Compounding this problem, good contractors are forced to utilising cheap, inexperienced labour to be competitive, which weakens the industry as a whole. It has been said that one cannot have price, timing and quality. If the quality goes down below industry standards, the potential for lawsuits goes up.
What is the best way to resolve a construction claim before it goes to trial?
I believe that construction claims start as a personality conflict and end with a business decision. The best way to resolve a construction claim before it ends up going to trial is to get all the information out to all of the parties involved including the attorneys and insurance companies. If we can get the facts out in the open and have a meeting of the minds, that will often allow all sides to make a business decision before the matter goes to trial.
What aspects are clients often unaware of, which can thus lead to easily avoidable litigation?
My mother told me, “If you do it right the first time, you won’t have to do it again.” In construction, multimillion dollar claims can often be avoided by using the right materials and techniques from the start, which may cost as little as tens of thousands during construction.
Sometimes, the “get to” costs are significantly more than the actual replacement cost of an item. Developers and contractors may cut corners and save a few thousand dollars during construction, but once the building is built and repairs need to be made to replace something that is behind the walls, it becomes very expensive.
Once a building is fully built and operational, there are a lot of other factors to be considered when making repairs. For example, if the building is occupied, you need dust control. It’s harder to work on a site that is being used; you have to avoid the occupants and work around the operations of the building and it’s harder to stage work.
You are a registered architect in a variety of states – do you think any of the states to which you practice in would benefit from adopting regulations from other US states?
Absolutely. Each state has the authority to determine what its building code will be, as well as its own process and perspective on what should be included in the building code. Since the code can be looked at as a record of previous mistakes, certain states have their own perspective based on things that happened in that state. For example, if a big fire happened, that state might then require additional features as part of the building code to prevent another such fire. It may be a good idea to implement those features in other states, but they don’t have the same perspective and history.
Conversely, some states have less of a regulatory stance on building codes where they allow professionals and builders to do what they think is best. Thus, there is a surprising variation in just the 250 miles between New York City and the middle of Pennsylvania. A few years ago, I worked on a project in the middle of PA where they didn’t have a model building code or building inspectors. Today, more states are adopting a uniform building code such as the IBC (International Building Code), which helps all jurisdictions move toward a unified building code.
Another big difference is that some states utilise public inspectors while other states allow inspections to be outsourced through a third party. Third party inspectors are professionals who have their own insurance and a greater liability if something is done wrong than a government entity would.
What difficulties do you face as an expert witness? In what ways could the legal sector advance to ease such difficulties?
As an expert, it is not good enough to take very complex construction issue and reduce it to just a complex issue. A good expert must take a very complex issue and make it clear and simple so that it can be understood by the layman.
It is an art to be able to simplify something as complex as the construction industry into something that is factual, true and easily understandable. Because the statement must be both technically correct yet understandable to the layperson.
In arbitration, it often helps when there’s a retired construction judge, a construction attorney and a technical expert on the panel.
About
Christopher D. Ling, AIA, NCARB, PP, LEED AP, CCT founded ARCHforensic LLC to assist attorneys and insurance companies in resolving construction litigation claims. Mr. Ling is directly responsible for all litigation support through physical investigations, analysis, report writing and expert witness testimony.
Mr. Ling has 28 years of experience in the construction industry as a constructor, Registered Architect and Professional Planner. His leadership, knowledge, experience and thorough analysis have been very effective in resolving construction disputes. He has a knack for explaining complex design and construction issues in a simple and clear manner. Mr. Ling has testified in deposition, mediation, arbitration and court in multiple states. Court appearances include federal and county courts.
Mr. Ling has managed project risk to avoid potential issues by reviewing and commenting on construction documents including: drawings, specifications, project controls, schedules, budgets and general conditions. He brings his experience in construction litigation to bear on risk analysis to help his clients avoid litigation.
Our firm specialises in providing professional services to help clients through the construction litigation process. While construction is complex, our experienced professionals understand client needs and objectives. We are focused and committed to excellence in each project and strive to build trust and exceed expectations.
Christohper D. Ling
Founder
408 Main Street
PO Box 441
Chester NJ 07930
Planning for dissolution of the marriage raises a number of complicated issues. Marilyn Chintz states: “It is more than just signing a document to dissolve a marriage. Critical issues arise when attorneys do not turn over every stone to understand their client’s case.
“One example, is the net after tax value of an asset. The basis of assets transferred as a result of divorce should be an important part of the divorce negotiating process. However, courts are often reluctant to get embroiled in speculative tax consequences of the divorce. Indeed, several courts have held that regardless of the certainty that the tax liability will be incurred in the future if an asset is sold, liquidated or otherwise reduced to cash, the trial court is not required to speculate on or consider such tax consequences in the absence of proof that a taxable event has occurred during the marriage or will occur in connection with the division of the asset. It is really important for clients to understand the tax implications regarding distribution of assets.
“Assume a spouse has a choice between taking $1 million in cash or $1.2 million in stock which has a zero basis. For tax purposes (assuming an immediate stock sale) the $1 million cash maybe a better choice. Why? Assuming a combined state and federal capital gains tax rate of 30%, the $1.2 million in stock carries an inherent tax cost of roughly $360,000, meaning the stock has a true after tax value of only $840,000. Your attorney has to understand all the nuances and should make certain to have all the necessary documents available to properly advise the client.
“The bottom line is make sure that your attorney is knowledgeable, has excellent credentials, is reliable, demonstrates that they are available to you at all times and that they have an excellent reputation amongst their peers and the Judges whom they appear before. Make sure that you are in the best hands.”
In couple disputes, what are the challenges of tracking assets that are held internationally – in an offshore trust for example? Does this come up often?
Individuals look to protect their assets hopefully before they even marry. There are numerous ways to protect assets, including, but not limited to, self-settled trusts, which are distinct in that they are funded by a grantor who retains the benefit of the trust assets. Only legal title is conveyed to a third-party trustee to put trust assets often outside the reach of creditors. Those trusts are often referred as Asset Protection Trusts. The best time to take action to protect yourself is before you walk down the aisle. After that, transferring assets could be considered fraudulent if challenged in a divorce case. As a matrimonial practitioner, I have seen litigants make serious mistakes, particularly when they do not have the protection of a prenuptial agreement or never established an asset protection trust prior to marriage. In some cases we have seen litigants attempt to reduce the potential claims of a divorcing spouse. These techniques can include hiding assets to minimise the allocation of marital assets upon divorce. This approach is extremely dangerous because the divorcing spouse will, as part of the discovery process, obtain financial documents about those assets and be asked question under penalties of perjury. Other litigants attempt to move assets off-shore. Some have questioned whether this provides better divorce protection than a US based spendthrift trust. The Court looks at whether or not establishing certain trusts are red flags or proper estate planning. If justifiable for other purposes, some people move assets into vehicles which restrict the ability of the spouse to access the underlying assets. For example, it might be possible to transfer assets into a family limited partnership that has both estate planning and asset protection benefits however, if moving such assets into a Family Limited Partnership or Trust is designed to remove the asset out of the marital estate in contemplation of divorce in order to defraud the soon to be ex-spouse, the transfer may be rescinded by the court as being a fraudulent conveyance. Any ethical practitioner knows that you must be careful that your client does not engage in fraudulent conveyances. If transfers occur long before the actual divorce, courts are not inclined to disturb the estate or tax plans implemented. However, if done in contemplation of divorce, the courts may take action adverse to the party who engaged in tactics designed to minimise the marital estate.
Is it possible for a financially weak/weaker party to gain a fair and just outcome in separation cases, for example in the distribution of assets? What financial challenges are faced by those involved?
If you are financially disadvantaged and do not have funds to engage in litigation or even retain counsel to handle your matter or to uncover hidden assets and obtain information concerning the marital assets, you will be severely disadvantaged. Litigation and divorce is a costly proposition. You need to hire a top-rated attorney; hire forensic accountants, tax experts and other professionals needed to obtain all the necessary information and evidence to properly prepare your matrimonial matter to ensure that you receive your equal and fair share of the assets acquired during your marriage. Financially disadvantaged litigants do not have the resources and oftentimes, have to settle compromising significant rights.
How does your family law expertise help you avoid litigation proceedings for your clients? In what situations is litigation completely unavoidable?
Soon after my client comes to my office, I spend a lot of time going through the parties’ assets to understand the extent of the marital estate. Because of my intimate knowledge of the law and experience as to how judges decide cases, I can advise clients on how best to resolve their matter in the hopes of avoiding years of litigation. If you are knowledgeable about the law, how courts decide matters, you can advise your client how best to settle their case, if possible. If your client’s expectations are unrealistic, you need to manage their expectations so that they don’t fight a losing battle. Providing your client with sage advice enables them to avoid unnecessary litigation.
Marilyn B. Chinitz | Partner | Blank Rome LLP
The Chrysler Building 405 Lexington Avenue | New York, NY 10174-0208
Phone: 212.885.5564 | Fax: 212.885.5002 | Email: MChinitz@blankrome.com
Ms. Chinitz concentrates her practice almost exclusively in family law, with particular emphasis on high-net-worth divorce actions. She has been involved in numerous high-profile celebrity cases that have received national and international attention. Ms. Chinitz has more than 35 years of experience in every facet of family law, including diverse transactional matters. Her client representation is characterized by responsive, creative, direct, and efficient communication, whether within the context of litigation or settlement negotiations.
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