This month we have the pleasure of speaking with Dr Parish Pandya who has dedicated his life time to the world of academia. With Masters of Sciences and Doctorate in Philosophy, Dr. Pandya has also spent significant time and energy in the legal world. He currently works at the University of Windsor, where he shares his legal expertise advising his clients in the best way, using his prior experience in India and the US to his advantage. We speak with him this month, on how the Canadian legal system differs, and ways in which it can improve when welcoming refugees.

You received your law qualification in India, yet are often involved in Canada and the USA – how does the legal sector differ in those respective countries?

Yes, I received my law credential from India and became an advocate to practice law in the Indian jurisdiction specified by advocate act, however, I am currently involved in Canada and the USA legal sector.

I would say that these days, law professionals are regulated by national and state/provincial law very precisely; primarily, I am enrolled in all legal bar associations and international bar associations, in order to understand various legal practices. For example, I am practicing Indian law in Ontario with the permission from law society as a foreign legal consultant; this kind of permission has been given by the law society in Canada and the USA, and for that you need to prove a reciprocity of concerned countries. In Canada, I think it is much easier to go through and practice law, due to the fact that the Canadian legal system is same as in India as both countries were under British colony and so as a result there are fewer differences in comparison to the US. Nevertheless, there are not so many differences in the US’ system either.

Generally, the legal sector in Canada and the USA is divided in many categories; for example, there are barristers, solicitors, mediators and arbitrators, (etc.), whereas in India the system is a little less refined and more different.

What was your main aim as a member of the Canadian Association of Refugee Lawyers (CARL)? What more do you think legal experts could do worldwide for refugees?

I joined CARL because they are working on voicing positive views on refugee law and the human rights of refugees and forced migrants; the organisation promotes just and consistent practices in the treatment of refugees in Canada. CARL carries out its work promoting the human rights of refugees in the Courts, before parliamentary committees, in the media, among its membership via bi-annual conferences, and elsewhere in the public sphere. I also joined the University of Windsor – Faculty of law Refugee program, called SSP, which also provides training.

Worldwide, refugee lawyers can do a lot, because you have to fight for refugees on a humanitarian and compassionate ground. Ways in which individuals can fight for rights, are by contributing towards interventions on cases and initiating litigation as a public interest litigant on: Designated Countries of Origin, The Designated Foreign National Regime, for the Refugee Protection and Refugee Appeal, and Humanitarian and Compassionate Consideration and Pre-Removal Risk.  Legal experts can really do many things for refugees.

Can you speak with Lawyer Monthly about your role as a Panel Judge for Client Consultation Competition Law?

I regularly consult with other legal experts and I work as panel judge for the International Client Consultation Competition at the Faculty of law at University of Windsor and other moot Courts. I also work as an international legal competition panel judge at the law faculty. It is important to update our knowledge from time to time, therefore, I always discuss with lawyers on different grounds, for example, on: the working atmosphere, description of the problem, client’s goals and expectations, problem analysis, moral and ethical issues, alternative courses of action, effective conclusions, teamwork, and the judging standard on awarding points and making a decision. These are things that need to be addressed and considered for revision all the time.

As a foreign legal consultant, what are common pieces of advice that clients seek?

In general, my clients want to know about their properties protection and law, money, family law, pension related questions, affidavits, passport and visa, after death disputes, marriages, immigration, business law, and so on. Sometimes, I feel, clients ask many questions which often test our legal knowledge and can challenge us for the better. An interesting but recent trend, is that nowadays there is an increase in concerns from our clients of fraud and cheating from client’s family members!

Do you think that the immigration sector in Canada needs altering? If so, why and in what way?

I would say, yes, because Canada needs are different to other countries. The Canadian system is very different; as other countries turn away refugees or have divisive debates on limiting newcomers, Canadians will welcome many immigrants to the country. We are in need of new blood, because the Canadian population is low with a lower birth rate to other jurisdictions.  Moreover, the labour force growth depends very much on the entrance of immigrants. We really have to have a fundamental reconsideration of where the Canadian labour market is going. Academic studies show many talented newcomers, ranging from doctors to accountants, are struggling to become accredited in Canada and find jobs in their field even after the government spent millions into improving the system. Many move to the United States because making it in Canada is simply too hard. Another key concern is how to spread immigrants to small cities and rural areas. There are many ways in which we can alter the immigration sector, for example, licenses for professionals to make them accredited easily and consideration the education system for immigrants. Immigration laws are currently concentrating on what the big centres need and we need to look past that in order to improve.

Canada is often viewed as a welcoming country for refugees – what has been the effect of this on the country?

Refugees make an important economic contribution to Canada. Families make significant positive contributions to Canadian society, both economically and socially. The Longitudinal Survey of Immigrants to Canada (2003) found that immigrants tend to establish themselves more easily if they are supported by families. Refugees are an integral part of the Canadian mosaic.  Fears about newcomer integration are not new. Generation after generation, people have worried about whether the most recent immigrants will integrate as well as previous immigrants. A hundred years ago, Canada was actually quite diverse, with First Nations people, a significant Chinese population, especially in the West, and African Canadians who had been living in Canada for generations, in addition to people of different European heritages. Diversity is not something to be feared: diversity is Canada’s strength.

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Frances Joychild is a Queens Counsel practicing in Auckland, New Zealand. She works in the field of civil litigation with a human rights speciality. She has been in sole practice for 19 years advising and appearing for a broad range of people and organisations since leaving her role as counsel at the Human Rights Commission. We speak with her today on how she is a game changer in the human rights sector, what motivates her in her role and landmark cases she is proud to have contributed towards.

Throughout your years of practice, what has been your favourite and proudest case and why?

There are several cases. The one that has ongoing potential to make a positive difference, even to this very day, took place before I was practising as a solicitor. It was a 1985 test case of H v E, which established that sexual harassment in employment, goods and service provision, tenancy and education was a breach of the anti-discrimination provisions of the Human Rights Commission Act 1977. The case was heard before the New Zealand Equal Opportunities Tribunal and I was the commission investigator handling it and briefing counsel.

The decision meant that the investigation and mediation processes were accompanied with the opportunity for meaningful restorative steps, including compensation, which were available for complaints of unwelcome and offensive sexual behaviour. Unexpectedly, this had an unexpected effect. Victims of such behaviour, including sexual assaults and rapes, came forward in large numbers. What drew them was the alternative process to the criminal justice system or civil adversarial process for processing such allegation. At that time, it involved a private investigation by sensitised skilled persons, followed by an analysis of the law and facts and advice to both whether the Commission considered the complaint had substance; if it did, an offer was made to both parties to mediate a resolution. That enabled resolution which was meaningful to the plaintiff, dignifying to both parties but kept legal rights, if either chose to proceed to an adversarial hearing.

Initially, there had been a crisis within the Commission, especially the trained lawyer Commissioners, as to whether it was proper to accept sexual assault and rape allegations for this type of civil resolution, rather than referring them straight away to the police for criminal charges. However, complainants were clear that they could not and would not go to the police due to the punitive and traumatising criminal justice processes. At the same time, they wanted to hold the perpetrating manager, employer, landlord or lecturer accountable, but through a supported private restorative process that had meaning to them and respected their privacy. For example, they may have sought an acknowledgment from the perpetrator, such as a face to face apology in a controlled setting, among other things.

Though the Act was amended after about nine years and the inquisitorial and opinion forming aspect of the process was removed, I believe this model is a precedent for a better way of handling most offensive and unwelcome sexual behaviour, in any area, especially where there were prior relationships between the parties or will be on going relationships. The effects of unwelcome and offensive sexual behaviour are so huge for society as a whole. This was not understood a generation ago; these actions are often destructive to the victim’s emotional and psychological wellbeing, their work performance and general organisation functioning, as well as affecting those around the victim, including their family who live with them and work colleagues. We have come a long way in naming unwelcome and offensive sexual behaviour and outing it. But we need a better way of resolving it than what is on offer now.

A case I acted in five years ago was particularly rewarding for me due to the wonderful people I met. I was counsel for seven parents of adult children with major disability support needs and two of those adult children. They were each challenging an irrational, unfair and unwieldy government bureaucracy which was refusing to pay them for the care work they did for their children. The children wanted to have their parents as their paid carers. At the same time the government was refusing to pay parents, it would pay a neighbour to come into the home to do the exact same care support tasks. The case was challenged by the Crown through a six-week Tribunal hearing, at the High Court and Court of Appeal. The parents succeeded at every step. However, litigation is still ongoing as the government later enacted legislation to permit payment, but limited the rate for parents to minimum wage and 40 hours per week only. It also blocked any other parent claiming back payment.

What has been your most challenging case and how did you overcome these challenges?

Probably in 1987 when I was the office legal adviser in a claim of employment discrimination taken by the Human Rights Commission on behalf of 17 air stewardesses against Air New Zealand. The women had been locked into a two-step promotion system that ran parallel to the main five -tep one. Their male peers in terms of seniority were chief pursers. When the system merged with the main one, the women had to go to the bottom of the promotion queue, alongside new recruits. They would not recognise the women’s years of service.

When mediation attempts failed and we launched proceedings, I was shocked and unprepared for the bitterness and anger the case raised inside the women’s male dominated union. The majority of the members, including the leadership, were deeply resistant to the claim for equal promotional opportunities. The women were trapped because their employer was not prepared to enforce equal opportunities against the wishes of the union, though it expressed sympathy to their claims.

There were some horrible retaliatory measures against the complainants, including death threats, racial abuse and character assassination. Towards the hearing, which was two years in the preparation, so much was happening on a daily basis I became very fearful of the lengths the antagonists were prepared to go to. The challenge was to keep morale during the long wait, ease fears and keep preparing the case.

There was a difficult legal issue of retrospectivity and we had been given only a 50/50 opinion of success when we started, so I constantly wondered about the ethics of what the case was putting the women through and whether we should advise them to stop. But these women, whose day time jobs required them to be charming and accommodating, evolved into steely individuals who held their dignity while they claimed their rights. To my amazement there were about 17 applications from the media for filming on the first day of the six-week hearing. It was widely reported and supported in the media. The women won against their employer and the case was settled. Years after the union acknowledged the error of their ways. I learned a huge amount about human behaviour through that experience.

Out of all the practice areas you specialise in, which is your favourite and why?

I enjoy test cases – those that make a systemic challenge and have the potential to bring positive systemic change, whether I am acting for plaintiffs or defendants. Through such cases a better system often comes about. There have been many in the human rights field over the years that I have been involved in.

I often feel humbled and grateful to work for people stoically dealing with harsh things that life has thrown at them. I learn so much from them, including how indomitable the human spirit is and its wisdom and courage. I also enjoy working with those responsible for organisations and helping them work through how they can better comply with the needs of players (in sport), and customers, clients or employees from a human rights perspective.

You are often called for cases involving human rights; how has the human rights sector changed throughout the years? Have you been involved in cases that have changed the sector in the long run?

The human rights sector has grown and human rights have become more mainstream. Over the years the Human Rights Commission and Director of Human Rights Proceedings have been the major players in funding systemic human rights litigation. A lot of my work has been funded through them.

However, currently I am acting for a major NGO in the disability sector which is taking discrimination proceedings against the government for the disadvantageous way it delivers education support needs to students with disabilities. Some cases raising significant human rights dimensions are eligible for legal aid. I have acted for social security recipients challenging policies that affect them, both on legal aid and pro bono.

The Secular Education Network is crowd funding to pay for a legal challenge to the provisions allowing Christian religious instruction in state funded schools. Last year a major law firm took a claim on behalf of a terminally ill woman seeking the right to die, should she want at the time.

Which sector do you think needs the most reforming in New Zealand? How does this legal sector compare with other jurisdictions?

Well I don’t need to go outside my own legal sector to say that it needs major reform. Currently, I would say that as many as 60% of New Zealanders have no real access to civil justice as they cannot afford to hire a lawyer or pay court fees. In this respect things are better for the very poor, as they can be required to repay part if not most or all of what they borrow.

When people cannot afford to challenge a civil wrong done to them, then society as a whole suffers greatly and the rule of law diminishes. The courts become unaware of how huge numbers of the population live their lives and this affects assumptions made by all players in the court system. One thing we do not have in New Zealand, which most other comparative jurisdictions do, is a Pro Bono Clearing House which matches lawyers and their specialities with persons needing legal help. There are plenty of lawyers doing pro bono cases but in a hit and miss ad hoc way. Developments are now underway for a clearing house here.

A few years ago a young barrister who was finding difficulty getting paid employment approached me for work. Being conscious of the dire shortage of civil legal aid lawyers in Auckland since punitive changes were made to the legal aid system, I took him on and increased the legal aid, low bono and pro bono cases I took on. I supervised him doing the bulk of the work. We had some wonderful outcomes for people who otherwise may not have got representation. He gained tremendous experience in multiple areas of civil law including employment, contracts, professional regulation, property, tort, refugee, martial, superannuation and insolvency. He has left and I have greatly reduced my legal aid work, for financial reasons, but it was good to contribute for two years in a sustained way like that.

At the same time, a retired judge in his 80’s offered to help me one day a week pro bono. The ex-judge reviewed new cases that came in from people with no ability to pay and gave advice on processes, causes of action and the like.

I have many approaches from young lawyers longing to do work which is meaningful to them and will make a difference in society. Somehow we have to harness their passion and skills to the huge swathe of unrepresented people. We have to keep thinking how it can work.

How do you prepare yourself for a Court case? What are important things to remember?

Everything is in the facts. Even when I have very competent instructing solicitors and junior counsel I make sure I have read every document and affidavit so I have the full factual picture in my mind. Legal research is next important to make sure I have the most appropriate causes of action and am aware of all possible defences. The pretrial steps are also very important. You need to be on alert to make sure your client will not be disadvantaged at trial by any orders sought by the other side etc. It is also important to push on discovery to make sure you really do have all relevant documents.

What is your main motivation behind all your success in the legal sector?

I guess it has always been to make a difference for the good of our human species, the planet as a whole and all other species we share the planet with. Throughout my childhood and parental influences I am sensitised to vulnerability and injustice and the fact that things need not be the way they are. More importantly, there is no point doing anything unless you can have fun with it and I really do enjoy being creative as a lawyer. When I took on a junior a few years ago I told him that was our primary objective; if you are happy and positive you are more creative in your legal thinking, more empathetic, more focussed and more litigating. Being a human rights lawyer requires a lot of energy and creative thinking, and alongside that inbuilt passion, it really pushes me to achieve the best for my clients.

Anne Hall is the Founder and CEO of ITagree, a global online IT legal solutions provider aimed at ‘helping businesses agree’. ITagree does not provide legal advice; customers buy their products, use their configuration services and then get whatever customisation or legal advice they require from their lawyer, at their discretion. With lawyers and businesses buying their products, we speak with Anne about how her company is changing the legal sector and why ITagree is an innovative way to do business.

Can you please give me a brief description of ITagree, its services and its journey so far?

ITagree began as a business idea in the year 2000. I had only recently established my specialist law firm ‘IT Law’ after 9 years as an IT lawyer in a big firm.

I decided I wanted to provide resources for IT companies and others to access IT legal agreements without having to visit a lawyer. I had been working as an IT lawyer for many years and knew that IT law was still a very specialist area. It was mostly only big firms that had IT lawyers which made it financially out of reach for many IT companies. Also I perceived a cultural mismatch between the big firms and the relatively new tech industry. IT Law started in 1999 with some large corporate clients and also a mix of smaller tech companies as clients. I wanted to reach a larger audience, a global audience.

2011 was an exciting time as we were getting our first online customers. It was very interesting that the customers were mostly in North America and were well-established businesses, not the small tech companies I was expecting. There was a variety of utilities companies, hospitals, digital agencies and software companies; our first law firm customer was even a big firm on 5th Avenue in New York!

My belief is that the ‘standardization’ model is good for efficiency and consistency; this was further confirmed with a significant project I worked on for the New Zealand Ministry of Health. I was engaged by the Ministry to draft and establish an ICT agreement for use by the Ministry and the major health agencies in New Zealand. It was an ambitious but very worthwhile project. I was part of a team that included a change management lead and other senior leaders that brought this project to life. I knew that if we could do this with the health sector in New Zealand, we could bring a similar thinking to other industries. By this stage, I had advised large corporate clients in a variety of industries and I had a strong sense that I could bring to these verticals a new and improved way of managing their IT legal engagements. I felt a sense of frustration for my clients when every supplier they dealt with presented a different type of agreement and realised the process could significantly benefit from standardization. Also, suppliers often faced lengthy negotiations each time they issued an agreement and there was no easy way for me to share the learnings (and drafting) from one negotiation to the next. I decided to make it my business to change this. Our next website iteration was launched in 2015 and it was based on a subscription model. We presented the legal products based on industry type. We also introduced negotiation resources, to share (in product format) the learnings from my negotiation experience and from feedback from user communities.

Who are your ideal clients and users, and what are they looking for that you offer?

IT businesses of all varieties benefit significantly from using ITagree. So do businesses that are procuring IT, most businesses! They want to manage this process efficiently and safely. Although each business is unique in its own way, we have visibility of the types of issues that need to be addressed by businesses with certain characteristics. By becoming an ITagree customer, the business benefits from the user community we create around that business type and for which we produce updates and new products as needed.

Lawyers are often doing a great job but they are working within the confines of a traditional mode which rewards long hours and risk adversity for the law firm. What businesses need is a rapid jump-start and then to get the ‘unique to them’ work done by their lawyer as required. ITagree provides that rapid jump-start. Lawyers are also a natural user of ITagree products and by using ITagree, the law firm can be even more profitable. Lawyers either don’t have a solid precedent base or if they do it comes at a high cost to the practice.

Another really important aspect is that we work with business networks and communities of various types in a way that recognises the common or recurring needs. Then we provide products to suit. The community could be a supplier network that includes resellers and others, or it could be an association with multiple members. An example is the work we are doing with Microsoft; Microsoft is introducing us to their distributors and the distributors are bringing us in as a vendor because the distributor’s networks all need IT agreements and so on. With this type of consistency and access to relevant legal products across a community, there can be some excellent new benefits and insights for everyone.

How would you say ITagree is changing the game when it comes to IT agreements?

We are bringing to the IT sector and their networks, an approach which has long been in use by the sector itself. That’s why it makes so much sense to our customers. IT suppliers are used to supplying base software or a cloud service and setting it up for their customers.

Bespoke software development is not very common these days, it’s all cloud service and licensing models. Imagine if we still needed to rely on software developers writing code every time our business needed some IT functionality! Yet despite this incredibly fast-paced IT industry, legal work is still being done on a bespoke basis.

At ITagree, we take the learnings and create products to disperse good practice with the speed required. When new products are required, our approach and product architecture enables those new products to be rapidly produced.

What is the rest of the agreements industry lacking, where ITagree fills the gaps?

There is a big gap in terms of IT agreements and related resources, between free and cheap templates at one end of the range and lawyers charging hourly rates at the other end of the range. Template sites often have thousands of products with an anonymous author or, templates are provided by law firms as a means to get the client in the door. There is a perception that if something is lower cost it can’t be good. Customers want the assurance of quality and support to suit their needs and so we focus on meeting that need in a highly responsive way. At the same time, our customers include cloud service providers who are charging small monthly amounts per user. For them to pay big legal fees is often unpalatable. With our plan options, we have something for everyone.

ITagree is positioned as a premium provider of standardized IT legal products. Customers know the products are drafted by IT lawyers with significant expertise and that they can get the agreements and clauses that they want. Even if we don’t have the type of agreement that a customer wants, we can produce it very quickly thanks to our approach.

There’s also a gap in that having a good agreement is often just the start. For this reason, ITagree’s products include checklists, additional clauses ad negotiation resources.

Do you have an example of a time when you have worked with a client and ‘changed their game’, allowing them to see opportunities or risks they did not see before?

Our customers are relieved to find ITagree and happy to know we are there. The customer stories are typically very positive. An example: a listed company in Australia, an e-learning platform provider, asked whether we had a ‘content creation agreement’. We didn’t, but agreed to produce one. We expected other e-learning platform businesses might be interested in this agreement too and so while there was no commitment needed from the customer that they would purchase the new agreement, we were happy to produce that agreement product and make it publicly available for purchase on our site. Within 48 hours the agreement was available and the customer did purchase it. The customer reported that they modified and populated the agreement for their own use and were able to issue it to the content providers within half a day of down-loading it from our site. In the customer’s words: “The quality of the ITagree product meant that we could use it immediately. It was all very pain free and within a few hours of first looking at the Content Creation Agreement we were able to use it and send it out – the same day! ITagree provides a valuable and high quality service that saves us time and money.”

Finally, what would you say is ITagree’s prime purpose in the world of business of law?

Our prime purpose is to help businesses agree, efficiently.

Speed to market, speed to start a project or new service, speed to stay ahead of competition and speed to transform. However you look at it, businesses need to be able to move and respond quickly. While quality needs to be a given, speed and cost are the two big differentiating factors for us. For some businesses it’s speed that’s most important, for others it’s cost, for many it’s both.

ABOUT ANNE HALL

Anne Hall specialised as an IT lawyer in 1992 and has worked exclusively in this area of the law ever since. She established a specialist law firm called ‘IT Law’ in 1999 and in parallel with that, she has worked on her online business which is today called ‘ITagree’.
ITagree utilises her experience as an IT lawyer across many industries to provide a fast and cost-efficient product-based service aimed at delivering on the speed that their customers need.

OVERVIEW

Many businesses are in transformation mode and speed is essential so that they can remain or become competitive; other businesses have, for a long time, reluctantly accepted the way they need to go about the contracting process but question why it needs to be so complex, time-consuming and expensive. ITagree’s products are aimed at all businesses looking for an efficient way to agree with other businesses on how they will deal with each other relating to supply or procurement of IT.

CONTACT

Anne Hall - Founder & CEO of ITagree

T: +64 9 377 6220   |   E: anne@itagree.com   |   W: www.itagree.com

Going into business with family is not always as easy as you wish; often business ventures fixate on the potential possibility of heated family arguments and ignore focusing on how future generations will continue to revenue capital for the years to come. We speak with Dr Kurt Moosmann on the key features when dealing with family owned business enterprises and the importance of human capital. This insightful interview reveals the best way to maintain inter-generational wealth.

What is an "Homme d’Affaires" and what services do you offer?

In general Hommes d’Affaires serve families as a benchmark for the applied level of sophistication in relation to their governance structures and development plans[1]. In other words, the Homme d’Affaires aims to create a bespoke decision making process which shall be governed by the core values of the individual family, and that is guided by the long-term objective of multi-generational stewardship. The true essence, in my opinion, lies in the profound sense for trust, responsibility and scrutiny that guides such trusted adviser in safeguarding the family’s current private and business interests, whilst building bridges for the future generations to adopt existing governance systems, yet leaving enough flexibility for them to adjust the structures to the ever-changing needs and external factors.
At Moosmann Capital Advisors (MCA) we typically cater to business owning families, family offices and entrepreneurs with multi-jurisdictional backgrounds. We are foremost passionate about preserving and growing a family’s human, social and financial capital. By applying the profound experience gained from many years of dealing with complex family situations, we team-up with our clients to develop their appropriate family governance framework, that addresses the family’s vison and their corresponding values; this is followed by the creation of tailored plans that address the concurrence of various interest levels, e.g. family, ownership and business. The plans are embedded in a set of rules, structures and processes which shall enable sound decision making and support the framework of the corporate governance.

We firmly believe that a sound family governance must be aligned with mostly pre-existing corporate governance frameworks. Only by blending the two governance systems the stakeholders will be able to enhance their long-term economic value. Complementary to both systems, it’s often forgotten, that in order to establish a sound family governance structure, one has to understand the persons’ financial demands on the respective business profits. Understanding the individuals’ fears, wishes and responsibilities is paramount for building a solid foundation which can stand the test of time.

What are the key features in dealing with family owned business enterprises? Why is the Human Capital component so important?

Business owning families are often overwhelmed with the complexities associated with growing their businesses in a sustainable manner. These complexities tend to become even more challenging when several generations and/or multiple jurisdictions are involved. Irrespective of their genuine understanding for the business, they are often inexperienced in defining, structuring and implementing the proper processes needed to grow or transfer the family’s business to the next generation. There are inherent conflicts between the various interests of a family and the tasks of the related business which need to be addressed.

Moreover, principals often underestimate the disruption that a generational transition brings along. The associated risks can easily lead to value erosion or even business failure. Often these business risks are adversely affected by the lack of the principal’s willingness to deal with a timely transition of business to the next generation or to competent non-family members. Hence, the interdependencies between the three features: family, ownership and business, are crucial and stand at the forefront of all discussions. Finding the right balance among the different, likely contradicting needs and thereafter, creating the right systems for the family, the owners and the business respectively, will enable the constitution of various implementation plans that ultimately culminate in a lifecycle plan.

To make it even more challenging, such a transformation process is often coupled with the need for capital, and thus we facilitate patient capital from other family owning businesses or family offices to provide for long-term secured funding.  This is one of the prevailing reasons why only 3% of all business owning families have been able to make it to the 4^th generation and beyond.

With regard to human capital it is interesting that to most people wealth is often associated with the amount of assets they own. As Gary S. Becker once nicely alluded to: “such tangible forms of capital are not the only type of capital (…) economists regard expenditures on education, training, medical care, and so on as investments in human capital. They are called human capital because people cannot be separated from their knowledge, skills, health, or values in the way they can be separated from their financial and physical assets.”[2] When dealing with business owning families, the human capital includes the proprietary knowledge the family has gained over the years and possibly generations which have defined and made their business enterprise successful. In this context, the capital is closely connected to the “ins and outs” of doing business, the specific expertise and technical know-how, the important network of relationships with customers, creditors and regulators, etc. Enabling the next generation to become more sensitive towards these kinds of aspects at an early stage, will enhance his or her understanding of the business and the responsibilities associated with ownership, and fundamentally improve the chances for a sustainable transition of business interests to the future generation.

In dealing with families predominantly from North America, Asia and Europe - What complications do you experience in family businesses operating internationally?

Irrespective of whether I work with families in Europe or elsewhere, fundamentally it is and will always remain a people’s business. Hence the needs and wishes are often similar, but when it comes to execution and implementation, structures and strategies differ. This is largely driven by the different cultures and legal frameworks the clients are subjected to. For example, depending on whether the family is resident in a common-law country or bound to the laws and regulations of a civil-law country, the estate planning tools or testamentary dispositions may vary. Corporate structures, financing schemes and ownership structures need to be chosen prudently, and anticipated tax consequences need to be well thought through. Especially when dealing with foreign asset holding structures or evaluating foreign investment opportunities, clients tend to continue operating under the same mind-set, thus often paying too little attention to regional conditions; but the proverb “when in Rome, do as the Romans do” strongly prevails. Thus, seeking advice and possibly partnering with local families and family businesses in foreign places in which you want to do business, is in my opinion, an absolute prerequisite. At MCA, we collaborate with seasoned professionals and other family enterprises on various continents to provide locally adjusted corporate development and generational transition solutions.

What issues arise and do you often deal with, in relation to inter-generational wealth transition?

In theory, the long-term preservation of family wealth is a question of human behaviour. Setting the right framework, or governance, will therefore successfully re-energise each new incoming family member and thus mitigate the threat of entropy. But to successfully preserve its wealth, a family must form a social compact among its members reflecting its shared values, and each successive generation must reaffirm and readopt that social compact. A family must also agree on creating a transparent system of representative governance through which it actively practices its values and each successive generation must, once again, reaffirm its participation in that system of governance.

Understanding that inheriting wealth and responsibility is often considered burdensome, rather than a blessing. Young family members who are sought for future management functions within the family enterprise must be accompanied and well-trained before taking on leadership roles. In many cases undergoing an apprenticeship in a foreign company, prior of entering the family business, will help sharpen the level of sensitivity and enhance the understanding for general business processes. There are a number of well-recognised next-generation seminars and conferences where younger family members gradually acquaint themselves with the key value drivers of businesses at large. But irrespective of how early young family members become aware of their future role within the respective family business enterprise, engaging them at an early stage is never wrong, and will allow the principal to evaluate the learning aptitude and individual skills well in advance of any factual transition.

As mentioned above, one of the biggest problems arises from the mere fact that generational transitions are rarely well-planned in advance. Often CEOs or Chairmen of family owned businesses start thinking about succession strategies or possible successors when they will no longer be in the position to fully execute on the transition. Multi-generational stewardship entails the definition that you ought to plan the transition early enough, so that the company is handed over in a better shape than it was handed to you by your predecessors. This bares the responsibility to transfer the human capital - proprietary to any one business - at a stage where the future successors can still process the information with the assistance of the current leadership. In my opinion, accomplishing a sound transition constitutes the ultimate test for any one entrepreneur who wants to be remembered for having dealt with all stages of true entrepreneurship.

Businesses need to keep its eyes and ears on how matters develop over the Brexit negotiation period. Peter Sellar states that while it seems that the UK Government wishes to keep matters secret, the EU can be counted on to be transparent. He expands: “Thanks to that, we will be able to keep track of developments and the likely direction of travel. That should facilitate matters in terms of adapting or, better still, pre-adapting as we enter Brexit.” Peter has since founded a Brexit consultancy called Scotland’s EU Consultancy to navigate clients through the Brexit process; we speak with Peter on matters involving the UK leaving the EU and his previous role as Head of Competition.

Before you were called to the Bar, you worked as Head of Competition for Lloyds Banking Group – what were the main indications to a ‘good’ corporate deal?

I worked as Head of Competition and Regulatory in the insurance division. Indications of a good corporate deal – from the competition law point of view – were obvious. The earlier that the legal minds could be brought into the matter, the more likely issues down the line would be avoided. Necessarily, lawyers need to be kept in the background otherwise they can get in the way, but for as long as they have a shadowing remit with an invitation and encouragement to interject as required and as very much part of the team, the deal was more likely to run smoothly.

The issues that had to be dealt with tended to be ones where the business got carried away with itself, concentrating on internal targets for example, rather than thinking about the client. In short: personal greed would get in the way of treating customers fairly.

Since being called to the Bar in 2014, how did your role change? What new challenges did you face?

At the bar you are autonomous. You trade on your reputation. It is up to you to go out there and get that work and to keep on getting it because there is no wage or fixed salary. That is the principal challenge that all advocates face. In terms of changes to the work itself, life is much more focused on: (a) research and drafting, whether of opinions or pleadings and (b) preparation for and appearance in the highest courts. When you are busy, it is full-on work with no one to share the responsibility – “on your head be it”, in other words, but there is plenty of positive adrenalin.

Did you have any misconceptions of the European Courts before you were called to the Bar? What changes would you make to the EU Courts if you could?

I had practiced for 15 years in private practice and had appeared as a solicitor before the European Courts and Tribunals, so I was familiar with those courts. Personally, I would hope that – Brexit notwithstanding – the UK courts continue to borrow more from the tendency in the EU and focus on written pleadings in the first place and then a targeted oral hearing. There is a myth that one turns up and speaks for only 15 minutes in Luxembourg. My experience is the opposite – the judges come prepared and will grill you good and proper on the five or ten irksome issues they have identified. That stands in contrast with the UK way of doing things, which focusses too much on procedural obfuscation and an oral hearing at which one finally discovers what one meant by the written pleadings, only after having rehearsed every argument at virtual dictation speed. Too much hangs on human error at that stage in my view. Writing should be king, with the killer blows landed by mouth.

How do you expect cases to change throughout and post Brexit?

We have no idea at this stage how EU Law based cases currently being litigated before UK courts will be considered. It would strike me as most odd if, for example, any such case which is brought in accordance with the applicable procedural rules should be denied the opportunity to refer a preliminary preference to the Court of Justice, for example. Those already in train must – it seems reasonable to me – be grandfathered to their natural end. Whether that will allow their barristers and advocates to continue with the presentation is another matter given that they will no longer be members of bars of a Member State but perhaps that is a detail which will rank very low on the negotiations priority list. Unless there is clarity coming from those negotiations, what will the appetite be of client, lawyer and judge alike, to avail themselves of that preliminary reference opportunity? Given Scotland’s innate reluctance to engage (only 15 or so total references since 1973), I foresee none being sent from now on. All this, however, will not mean that EU arguments cannot be played out in national courts and the usual way of assessing them – by reference to CJEU case law for instance – will continue. But over time, the authority given to that case law will wane; it will take on a different sheen.

What after effects are you predicting to witness once the GDPR act takes effect in May 2018? I.e., what do you think clients will be seeking advice on?

May 2018 falls in the middle of the Article 50’s two year-deadline for negotiations. One year further on and the UK will have Brexit-ed. We can expect the Great Repeal Bill to anticipate the grandfathering of the GDPR after April 2019, and indeed the Government has stated that Brexit should not alter its application. It will, then, become part of UK Law and general advice to those affected is simply to adhere accordingly. Of the principal issues for concern, I imagine that they will include the following: the potential administrative penalties will motivate boiler-plate compliance; what falls within the broader definition of “data”; what constitutes “consent”; and how to ensure the right to erasure.

Peter Sellar

Founder of Scotland’s EU Consultancy (www.scoteuc.com / peter.sellar@scoteuc.com)

Advocate at Axiom (www.axiomadvocates.com / peter.sellar@axiomadvocates.com)

Tel 07917 018 274

Article written by Lionel Schwirtz, Deputy CEO in charge of operations at Legal Suite

Young boxers entering the ring for the first time very quickly learn an important lesson: it’s not necessarily the hardest hits that floor you. Rather, it’s the punches you don’t see coming that knock you out. The same is true in business – there’s nothing worse than being blindsided by an issue you weren’t aware of. Take Credit Suisse for example: on an analyst call earlier this year, chief executive Tidjane Thiam admitted that he had been kept in the dark about some illiquid trading positions at the bank. The result? About $1 billion of write-downs across two quarters.

And it’s not just the CEO's at financial institutions who find themselves at risk if they fail to expect the unexpected. In-house legal teams can handle thousands of cases across hundreds of customers in an environment where missing even a single deadline might cost the firm dearly – perhaps even enough to wipe out profit for an entire year.
The only way to be sure that nothing slips through the net and protect the company is to gain a holistic view of all legal activity – one that enables in-house counsel to view the full picture of company exposure and take proactive steps to manage it, mitigating issues before they arise.
In a way, it’s a bit like classic sci-fi adventure The Matrix. The story begins with Keanu Reeves’ hero Neo being offered a choice between two pills. If he takes the blue pill he’ll remain ignorant about the true state of the world. But take the red pill and he’ll get to see the world for what it really is. Of course, he chooses the latter.
And this is how we see our mission at Legal Suite. We allow our clients to take the metaphorical red pill, seeing the truth about their situation so that they can change it – in much the same way as Neo bends the Matrix to his will.
This allows those clients to add much greater value to the business. Typically, legal departments in financial firms have been thought of as cost centres within businesses but those with a holistic view of company exposure are different.
For the first time, legal departments have been enabled to act as trusted advisers, providing strategic counsel to the CEO on how to mitigate risk and grow the business – not just dodging bullets.
In particular, there are two areas in which legal teams can add value simply by seeing more clearly the true state of company affairs: control and corporate governance.

Control

It’s very easy for a situation to spiral out of control, sometimes without people even realising it. A holistic view of company legal dealings allows in-house counsel to see in advance when a situation could get out of hand and take steps to rein it in – minimising the firm’s exposure to risk.
For instance, the company could be handling too many litigations at once. Of course, this can be difficult for a team if its resources are being stretched too thinly, but the bigger issue is the real risk it poses to the firm. To put it simply, litigation is expensive – especially in a post-financial crisis world of fines that can run to hundreds of millions – and can be a severe drain on cash-flow, even for the winner.
And given the proliferation on financial risk regulation in recent years, it’s only those legal departments able to see problems coming that can turn away from crisis mode and on to the front foot, taking control of their companies’ destinies.

Corporate governance

Good corporate governance depends on efficient process. Efficient process depends on knowledgeable employees. And knowledgeable employees depend on a near real-time holistic view of all moving parts – both present and historic.
Take contract life cycle management for example. One of the major issues with a negotiation can be when one party is determined to force a clause through and keeps adding it in at every stage – even after it has already been rejected. Tools like Legal Suite display the complete transaction history so users can see exactly what was agreed and when, along with what was rejected at each stage – allowing in-house teams to keep control of their negotiations, doing deals more quickly and on more favourable terms, even in the event of personnel changes.
And this is the fundamental point. Credit Suisse’s Tidjane Thiam was living in the Matrix, with only an illusory view of the bank’s affairs. But in-house legal teams that take the red pill can see the truth, picking up on problems before they appear and – just like Neo – their personnel can move faster and their advice can punch harder. Protecting the boss, the bottom line and the business.

What would you recommend doing if a company is handling too many litigations at once? What is the best course of action?

When facing too many litigations it’s important to get perspective through a holistic view of your situation. There are five key steps to this process:

1.      First, make an inventory of the types of litigation the organisation is facing;

2.      Next, identify and mitigate common sources of disputes and litigation;

3.      Then collect data for conducting an effective Early Case Assessment;

4.      It’s also important to automate alerts and reminders on deadlines and important dates;

5.      Finally, generate reports on potential and existing litigation and related risk and costs to the organisation.

Ultimately, it is crucial that you take a hands-on approach to anticipating all litigation-related activity in order to evaluate the financial risk and control costs.

In your experience what are the common reasons for companies ‘spiralling out of control’? Do these reasons differ depending on the industry and/or jurisdiction?

Companies can lose control for any number of reasons. Common causes include a lack of global vision and transparency, levels of disconnect within the organisation or instances when information gets lost.
These difficulties have been on display in the financial sector in recent years, such as through the data silos that contributed to the crisis in 2008 and with subsequent Basel II and III regulations intended to strengthen risk management by increasing transparency.
But these issues actually affect all kinds of organisations and we’ve got clients spanning a whole range of sectors, looking to implement preventive, detective and corrective measures and manage their exposure.

Which legal department do you think demands the most? Moreover, which department is the most important to scrutinise?

Of course, much depends on the specifics of the organisation but all areas of legal activity are important and should be monitored carefully.
That said, contract management has long been a top priority for many firms. According to the IACCM, more than 80% of worldwide business is managed through contracts. To put that in perspective, the Institute of Supply Management estimates that the average Fortune 1000 company has between 20,000 and 40,000 active contracts at any one time. Given that Faulkner suggests that 10% of active contracts are lost each year, it’s apparent that legal technology is absolutely essential to not only saving time and money but to reducing risk as well.

What more could international corporations do to ensure they get the best outcome for business?

International organisations need to implement a fully integrated solution within their global information system. They would need to make sure the system they choose is user-friendly, adaptable and scalable, as it will have to accompany the organisation development in a fast-moving business environment.
Anticipate deadlines, prevent and measure risks through a collaborative system – these are the keys to success!
ELM solutions vendors, unlike internal developments, will provide state of art technologies offering best of breed solutions and helping optimise legal department performance.

This month we have had the pleasure to hear from Moira Oliver who is the Chief Counsel and Head of Policy at BT. BT is a British multinational telecommunications services company with operations in around 180 countries and so Moira’s role in the company is an integral cog in their system; she currently leads BT’s human rights programmes and is particularly involved in the Business Network for the Rule of Law, to which BT is a founding member. Moira speaks on her varied role, the aspects she enjoys the most and what can be done to ensure human rights is addressed globally.

How did your perception of BT change ever since you began working there?

I came to BT from [city law firm] Slaughter and May where I had trained and worked on corporate and banking deals.  Our [BT] business has changed significantly in that time – in the early days the legal team were working on content deals with dial-up internet access; now it’s superfast broadband, TV and sport.  My perception however has stayed the same: it’s a great place to work, talented people, with lots of opportunities to develop professionally.  In my time here I have worked on privacy issues, commercial deals, development of our TV platform, corporate social responsibility, environment and now human rights.

Can you tell Lawyer Monthly what your role at BT entails? What is the favourite part of your role as a Chief Counsel and why?

I moved from our legal team to our strategy and policy team to lead BT’s human rights programme.  We’ve committed to implement the UN Guiding Principles on Business and Human Rights (UNGPs). The UNGPs expect business to ‘know and show’ their human rights impacts, both from their own operations but also in their wider business relationships. That means my job is very varied - from reviewing and developing our human rights policy approach, contract requirements, training, communications and assessing the human rights impacts of specific business proposals.  Our Modern Slavery Act statement and programme fall within my remit too. I report regularly to our Human Rights Steering Group, which is chaired by the CEO of our Consumer business, our executive committee and Board.

My favourite part of the role is working in such a new and fast-moving area, understanding what it means for our business and working closely with other BT teams to refine and improve what we do.  It’s not necessarily about creating new processes, but looking at existing processes in a new and creative way.  For example, the UNGPs guide companies to look at risk to people rather than risk to the company. I work very closely with our legal, procurement, security, human resources, sales, risk and compliance teams to do this.

I also enjoy collaborating with other companies, civil society and academics to exchange views and develop business’ approach to human rights.  We’re working with The Institute for Human Rights and Business and others to better understand the impact of large-scale sports events on human rights where we focus on the role of sports broadcasters.  We are also one of the founding members of the recently-formed Business Network for the Rule of Law, in which we’re particularly focussed on the challenge of respecting human rights when operating globally.

What are the particular human rights challenges faced by [BT/the communications sector]?

The rights to privacy and free expression are critical to our business – particularly when it comes to the role we play in the UK government’s use of investigatory powers, and rights for people to access content online.  That’s why we published our Privacy and Free Expression in UK Communications report in 2015 – to explain our approach to these complex issues.

How important is it to ensure the Modern Slavery Act is adhered to? What are the main challenges in ensuring that companies and employees adhere to this?

The Act is critical to addressing the pernicious crime of modern slavery.  The reporting obligation is a catalyst for companies to re-think their approach to due diligence on these issues.

In regard to human rights – what do you think could be done internationally to ensure equality for all is better achieved?

There’s no single solution, but at an international level change has to come from nations fully accepting and implementing their responsibilities under international treaties to protect and fulfil human rights. From a corporate perspective, I think the emerging legislation in many countries to report on human rights measures is certainly helping to drive change.

Regarding the above, what do you do as Head of Policy to ensure you (and your team) are stepping closer to that aim?

Ongoing human rights due diligence is key.  We have to keep moving forward in that aim, not doing one assessment and thinking our work is finished. At the same time, being more transparent and talking to other external stakeholders can be really helpful to drive change.

What are your future goals at BT and what will you do to ensure you achieve them?

My goal is to make sure we’re always doing the best we can to respect human rights.  In an organisation of more than 100,000 people, serving customers in 180 countries, we need to keep focussed on integrating our commitments and making sure everyone at BT understands them.

Barbara is a trusted adviser and international authority on setting strategy and delivery of projects. She has received two doctorate degrees from British universities and has produced a body of published works endorsed by the leading global professional associations. She exemplifies an approach to life as a project manager that everything we face is a project - a collaborative enterprise requiring the right methods to resolve it. In her thought-provoking presentations, she promotes a 360-degree duty of care inside and outside of work. She speaks with Lawyer Monthly about the changes the field of law and construction could undertake to ensure problems are solved in an improved manner, and the key skills and motives behind her success as an exceptional project manager.

What does it mean for you to be a project manager? What attracted you to the profession?

For me being a project manager means sitting in the engine room of the business. I deal with the day-to-day projects and contracts that drive the success of the firm I work for and my clients. What attracted me is the lack of clearly established boundaries of what it means to be a project manager. The great majority of professions see the world in simple terms, for example in the legal profession you are either a lawyer or a non-lawyer. As a chartered architect, I realised that the boundaries of our professions are generally the greatest limitation to what we can deliver. Project and contract management offered me opportunities to deliver positive outcomes beyond what would be possible for me as a member of a perhaps more traditional and established profession.

How has the world of construction changed since you began in the profession?

The biggest shift I observe on a day-to-day basis, apart from the relentless march of technology - digitisation, deployment of enterprise project portfolio management platforms, building information management systems and drones - is probably the realisation that construction projects are made of flesh, not concrete; they are works-in-progress that never stop adjusting to the changing needs, technology and aspirations of their users. There is also a significant shift towards a genuine concern for wellbeing of the people we work with.

What changes had a significant impact for major cities and corporations?

The increasing concentration of the world’s population in cities and the growing accumulation of political and economic power by corporations create new threats and opportunities for improving global health.  Our cities need to respond to these stresses and quickly – their liveability and competitiveness depend on it. At Arcadis we are proud to work alongside some of the world’s most forward thinking cities across the world, to compete and attract investment, deliver and develop transformational programmes that improve the quality of life and increase resiliency. Our Sustainable Cities Index explores the three demands of people, planet and profit to develop an indicative ranking of 100 of the world's leading cities.

What could construction companies do to avoid disputes and legal action? What cases could easily be avoided?

In construction, we tend to define a dispute as a situation where two parties differ in the assertion of a contractual right, which results in a decision being given under the contract, which then becomes a formal dispute. The industry is getting better at proactively addressing disputed issues and the majority of construction disputes are resolved privately. Arcadis’ data-driven review of projects and disputes, ‘Global Construction Disputes Report’, considers the most important activities in helping to avoid a dispute to be proper contract administration, fair and appropriate risk and balances in contract and accurate contract documents.

Could you suggest any legislative changes you would make to improve the outcomes of your work?

At present, we are obviously concerned with the potential impact of Brexit, given that so much of the debate concerns free-movement of labour. It is conceivable that any changes to labour market rules could affect the UK’s ability to meet long-term project commitments and could turn out to be a significant trigger for project problems and possible disputes over the next few years.

The leading issue for me is the instrumental control that has been imposed by the UK Government focusing on how buildings should be constructed which exacerbates, rather than solves, the energy consumption and CO2 emissions problem. There is certainly a need for the government to adopt an enabling role for the issue to be addressed at a scale commensurate with its magnitude.

Construction is certainly one of the major energy-consuming and carbon dioxide producing sectors; however, it is not the hardware of buildings – bricks and mortar – that is the sole source of the issue, but its software – the people who inhabit or occupy these buildings. It is us, after all, who are blissfully unaware of the critical mass of government strategy that has gone into the design and construction of our offices and homes, open the windows in our airtight buildings because it is too hot, turn on all the lights, with energy-saving bulbs of course, as well as our brand-new digital energy-saving televisions whilst the old, less energy-efficient ones join other unwanted goods in our bike storage space. This means that the potential of the current legislation to deliver significant CO2 emission savings and offer a genuine solution to the energy shortage issue is highly debatable.

How did your career path take you to the position of a Board Director of the International Association for Contract and Commercial Management (IACCM)? What was your main goal to achieve when your joined the board?

My vision for my professional career stems from my very early career as a volleyball player. At a mere 5’10’, I was at a disadvantage to the top European players who averaged 6’2’’ in height. What I achieved though, was a vast collection of fair play awards. This strong notion of fair play which accompanied me in sport, in the construction industry context, translates to an atmosphere characterised by openness, co-operation, trust, honesty, commitment, and mutual understanding among team members. Considering this parallel between sport and construction, I developed my personal and professional brand as a project manager around these values. In my first annual professional development plan, which I submitted shortly after joining Arcadis, my answer to the question ‘what is your career aspiration?’ was very different from those of all my colleagues, who identified the next step on the corporate ladder, such as ‘senior project manager’ or ‘partner’. Mine was ‘I will be the next Sir Michael Latham’. Taking forward Latham’s concept that through teamwork the construction industry could delight its customers and following the publication of Arcadis’s Disputes Report, whose findings demonstrate a growth in the value and length of contractual disputes in the construction industry and that the most common cause of disputes is a failure to properly administer the contract, I created the global IACCM fair play recognition – the Excellence in Contract Management Award. This award aims to recognise and promote those individuals who, through their ability to do the right thing, achieve the best results. This award is open to all contract and commercial practitioners globally, across all sectors.

As a Board Director of IACCM I also look at ways in which I can support the growth and organisational success of IACCM by promoting initiatives that develop a sense of pride and satisfaction among its membership. I would like to expand the ways in which IACCM supports and empowers its members.

You co-authored a reference book with key-players in the legal industry, Liquid Legal, that compels the legal profession to question its current identity and to aspire to become a strategic partner for corporate executives, clients and stakeholders, transforming legal into a function that creates incremental value. Can you expand on this?

Liquid Legal was an intense collaboration of over 30 authors: professors, legal counsels of multinationals, CEOs and COOs of leading legal process outsourcing providers, co-founders of legal search firms, pioneers in legal operations, attorneys and entrepreneurs.  This resource provides a broad range of perspectives, advocating a shift that will see future corporate lawyers no longer being primarily negotiators, litigators and administrators, but intermediaries who link legal opinion within the context of the business.

My proposition revolves around the challenge of what if, in the construction industry, a contract administrator, contract manager or even a portfolio, programme or project manager, rather than being a construction professional with an appreciation of legal issues, happens to be a law practitioner trained in basic construction? Construction is one of the few uncharted waters for lawyers. While in most other sectors there might be complaints that lawyers are too intrusive, in construction, lawyers are very rare. Considering the average value ($51m) and length (13.2 months) of a construction dispute, the potential benefits to the industry of legally trained professional staff taking over contract administration and various project management roles are immense. With construction projects increasingly being aggregated into big complicated programmes, attracting additional risk as well as political and public attention, high-visibility disputes are not an option for their owners. The construction community should follow suit, and greater involvement of satisfied and professionally fulfilled legally trained professionals offers an opportunity for the industry to deliver excellent customer service.

 ence of practitioners, executives and government.

CompuMark, the industry leader for trademark research and protection, has announced the findings of its latest research into the trademarking of hashtags, with a global growth of 64% in 2016 from the previous year. Notable registrations from well-known international brands include #lovetravels (Marriott), #getthanked (T-Mobile), and #gofor2 (Hershey).

Since the first trademark application for a hashtag was made in 2010, there have been more than 5,000 applications, 2,200 of them in 2016 alone.

The research also shows that while global hashtag trademark applications are on the rise and the US remains the leader in the number of these marks applied for — 33% of all applications since 2010 — the country’s total share of applications in 2016 was down to 28%, compared with 35% in 2015. However, the US still registered the most hashtag trademarks in 2016 (608), followed by Brazil (226) and India (141) in second and third place.

“Even though overall organisations are registering more hashtag trademarks than ever before, there has been a slowdown in the rate of growth in the U.S. market, possibly due to the time and effort it takes for success,” says Rob Davey, Senior Director, Global Services, CompuMark.

“But what the overall rise in global applications does indicate is that brands are seeing the value in going through the proper trademarking process in all spheres, including social media, to make sure they are protecting themselves from possible infringement and mitigating the associated risks.”

The company that applied for the most hashtag trademark applications in 2016 was Colombian-based broadcaster RCN Television S.A. with 50 registrations related to its Grita Gol football programming.

Looking at trademark classes, three attracted the majority of applications. These included 594 in Class 41 (education and entertainment services, shows, sporting events, training), followed by 587 in Class 35 (advertising and administration, business consultancy, marketing, online retail, recruitment), and 512 in Class 25 (clothing, footwear and headwear).

While the top three classes remain the same, their ranking has changed. In addition, the fourth most popular class in 2015 — Class 9 (computer software, hardware, computer games, CDs, DVDs and MP3 players, electronic publications (downloadable) — fell to 15th spot with just 101 applications in 2016, down from 278 in the previous year.

Comments on CompuMark hashtag research

By Rob Davey —Senior Director, CompuMark, a brand of Clarivate Analytics

Why do you think there has been a rise for hashtag trademarking?

The social media sphere has grown substantially over the last few years and is now seen as an essential additional channel for brands. As a result, the tools associated with social media, such as the hashtag, are being used more and more — for brand awareness, customer engagement and promotions. Hashtags are being used to add value and once they become associated with a particular brand it’s important to protect them from misuse, or from falling into the hands of competitors.

What could be the repercussions for companies that haven’t trademarked their hashtag?

The repercussions of not trademarking a hashtag would be the same as infringement on trademarks of other kinds. If a competitor is using the same hashtag or one that is very similar, the result could be brand confusion in the marketplace and a loss of brand equity. It could also lead to litigation, something that can be both time and cost intensive.

Do you think the reasons behind trademarking these hashtags outweigh the cost and litigation process?

Again, the same can be applied to trademarking other elements, like brand names, slogans, etc. Regardless of the duration of use (long-term use associated with the brand, or short-term associated with a campaign, for example) it is always a good idea to perform the due diligence and register marks. This avoids any potential litigation in the future and gives brands the means to protect themselves should infringement occur. A hashtag is no different from any other trademark.

If you were to advise companies to trademark hashtags, which sector/ what companies would benefit most?

The research suggests that by far the most popular classes for hashtag trademarks include goods and services such as entertainment, online retail, advertising and clothing/fashion. This shouldn’t be a surprise as all of these goods are heavily promoted online and on social media. There is a particular connection between fashion and social media, especially Instagram, which will make protecting hashtags for Class 25 goods very important.

Can you think of any other aspects of social media that ought to be trademarked? /or any trademark ‘trends’ that may develop over the year?

My own opinion is that the rise of the hashtag trademark is not over. What started on Twitter less than 10 years ago is now very well established on Instagram, and we see Facebook and LinkedIn also adopting the hashtag, so I would expect this growth to continue. Social media user names are another area of concern which should be monitored as part of a comprehensive brand protection strategy. New social media should also be constantly reviewed (Snapchat and others are growing fast). For a global brand it is important to understand which social media platforms are important in the markets in which the brand is sold. China and Japan have very different social media platforms from the UK and USA. In addition, brands should be aware of how they are being represented in social games which use Augmented Reality such as Pokémon Go.

Are you surprised over the top three countries that registered the most hashtags? What reasons do you think are behind the fact these countries fall in the top three?

The USA is not a surprise and Brazil is a jurisdiction in which you have to apply for one trademark for every class, so is probably therefore a little higher than it would be if it had a multi-class registration system. On average, CompuMark sees 1.8 classes per application around the world in multi-class jurisdictions. France is a bit of a surprise as it is not a country you may think of as being particularly online focused. It is, however, a large trademark register compared to other similar sized countries, which will account for some of the scale. Looking at the data it appears 25% of hashtag applications in France include class 25, so maybe fashion is driving some of the hashtag volume on the French register.

We speak with one of the UK’s best 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 head injuries; 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 and head injury, is quite common. Approximately a million people a year go to the accident and emergency (A&E) department in England and Wales every year with a head injury; of those, only a small proportion need to be kept in hospital. Around 30-40,000 will be detained in hospital and about 15,000 will need a visit 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 head injury and there are clues that you have to pick up. The most important clue is behaviour rapidly changing on a conscious level; the patient begins behaving in an erratic fashion and doesn't co-operate which can often lead to abusive behaviour.
The most frequent, yet dangerous assumption made is that the patient is under the influence of drugs and alcohol; when the patient is not sober, there are two further risks posed: the patient is more likely to severely injure themselves, and them being under the influence of such substances often leads to the patient not being treated quickly. In these instances, patients sober up, so if their state is progressively getting worse and their behaviour is becoming more erratic, the problem is likely to be more severe. Unfortunately, these group of patients are ignored and later found in a worsened state.

Response time is the next problem; nowadays there can be a delay for up to two hours to find a neurosurgeon as, more often than not, there may be a lack of beds. This results in consultants phoning back and forth trying to find a specialist, all in the time the patient’s state is deteriorating. Preparing for surgery also takes time, the anesthetists job 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 to eight hours for the procedure to be underway. For clot removal in the brain, reports from the Royal College of Surgeons suggest that the recommended time span should be four hours and unfortunately this is rarely complied with.

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, and you can imagine why. Care costs can result to around £100-150,000 a year - multiply that by 50+ years and you can see why these are very big cases. I currently have many of these cases seeking litigation where I am presuming the NHS will have to settle.

All-in-all there’s failure: to realise the claimant’s condition, to diagnose that problem quickly, to act upon the diagnosis quick enough, to stabilise and transfer the patient, to reduce cranium pressure and then, from a neurosurgeon point of view, failure to take the clot out quickly.

What are other conditions involving the brain?

The next diagnosis that I deal with quite frequently are hemorrhages – a bleed inside the head -, it is one of these unique conditions which can strike anybody at any time without warning. The most common symptom of this condition, which is due to a burst blood vessel on the brain, is an aneurism; the common symptom is an agonising headache, a sudden explosive pain inside their head and there are virtually no other conditions in medicine that actually do this. The problem is that when a patient arrives at A&E, they may feel fine as the initial small bleed has worn off and so the pain has reduced and the patient is sent home; with an aneurism, however, you are very likely to bleed again, and the second bleed is always fatal or disabling. Failure to recognise the pain was not a migraine or a tear in the neck is common, as the target group for these conditions are people in the 60s – people who are object to suffer with such problems.

As a neurosurgeon, you want to capture the patient when they are awake and talking, when you can get in a treat the aneurism and save their life as if you spot the diagnosis, the cure rate is very good (around 95%). This condition often comes to the attention of lawyers because when patients have their second bleed - if they are survivors, they often survive in a poor state or -, they die. These are tragic cases, involving families suffering due to a condition that was missed.

Infections inside the head – which are not that common these days – is another condition I deal with as an expert witness. Sinus disease is a common factor causing such infection because it can cause an abscess in the brain. Teenagers are more prone to this condition which is often misdiagnosed because the symptoms are often undermined - feeling groggy, blocked sinuses and a depleted mood - are not uncommon in teenagers. Eventually, they’ll become very sick, suffering with paralysis, having fits or a stroke. Once again, when the infection is treated, the patient can be left disabled for years; all of a sudden, a student who was hoping to go to university has no prospect of earning or studying, so you can imagine how lawyers will make a case out of this. These are high value cases, being settled for millions of pounds, and for obvious reasons as you are dealing with the loss of earnings.

Another condition is venomous sinus thrombosis, which lead to bleeds in the brain and pressure due to the bleed; appropriate drugs can easily rid of the problem, but again, the symptoms are undermined. Women are prone to this, as headaches and dizziness often coincide with side effects of the contraceptive pill, leading the GP to not address the seriousness of the problem. In retrospect, you look and wonder why the GP hadn't picked up the problem, but by the time it is glaringly obvious, it is too late. The skill of medicine is to be able to spot these problems early on.

These cases come up with depressing regulatory and are still being missed, which is a shame as we have good access to scanning and technology; the argument often placed is that not everyone suffering a headache can be scanned. What health services need to consider is that a scan costs around £50, whereas a lawsuit can cost £5million.
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, and more often than not, they lie 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, but the NHS has a culture of blame.

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, which is reducing. The NHS is in a mess, there are bogus job titles, little knowledge to who is coming and who is going; it is a state within a state. There is a huge emphasis on evaluating behaviour – how the ‘hospital experience’ was – when in honesty it is seldom a pleasant experience for a suffering patient. What ought to be measured is the clinical outcome – was the patient cured, effectively and appropiately and if not, was appropriate action taken? – but as this is difficult to measure and somewhat unpleasant, no real accountability is made in the NHS. That is their biggest problem, instead on focusing on ways to improve their system, they focus too much on trivial problems, such as hospital parking.