Understand Your Rights. Solve Your Legal Problems
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Simon Quinton Smith is a highly experienced Chartered Surveyor and Expert Witness who is at the top of his game. However, he finds opportunities that he is eminently suited for often go to the larger better known companies who are seen as a better option, but in his experience, Simon has come up against them with his extensive knowledge being considerably greater than his opponents. He speaks with Lawyer Monthly about the ins and outs of chartered surveying and his role as an expert.
What does the Expert Witness role of a Chartered Surveyor involve on a day to day basis?
As I am the most experienced Chartered Surveyor providing property and business advice to the garden centre and horticultural industry throughout the United Kingdom, my involvement on a day-to-day basis is to undertake a variety of work buying, selling, letting and valuing garden centres, farm shops and horticultural properties and businesses throughout the United Kingdom, occasionally into Ireland and Europe. I also undertake rating appeals and provide some general consultancy advice on concessions and other matters.
Our valuations are based on comparable evidence which goes back many years. The majority of Chartered Surveyors undertaking valuations in my sector do not have comparable evidence, which makes their lives difficult and many of my peers regularly telephone to ask for my help and advice. I try to be authoritative and detailed, as well as base my argument on hard evidence from when I have personally been involved in transactions.
Accordingly, day-to-day I am continuing to build my knowledge and experience so that when I am appointed as an Expert Witness, the weight of my argument to the Court will usually be stronger than the surveyor acting for the other side.
What kind of legal cases are you commonly appointed for and what principal issues do these present?
The majority of the legal cases revolve around property values where individuals cannot agree. It can be family matters, divorce or perhaps one company arguing against another – even sometimes the Inland Revenue, again, on values. There have been occasions when I am providing Expert Witness advice on the value of garden centres/garden centre supply businesses or horticultural businesses rather than the value of the assets.
How has this changed from when you began practising in 1986? Do you think the industry has undergone major changes and if so, what were these changes and how did it affect your work?
I think the industry has become more litigious and there is a far greater trend in settling prior to Court. It is now relatively rare that I have to give evidence in Court - sometimes the matters are settled on the steps of the Court as a compromise has become far more important.
What alternative challenges arise in the horticulture industry as opposed to agriculture, or other cultivation management industries? Are these problems often underestimated by those who do not specialise in horticulture?
The challenges in the horticultural industry relate to the large cost of building and fitting out new glasshouses. The different specialisations of the services relative to the crops/plants grown and the rapidly changing and improving innovations.
The problems faced by garden centres relate to the difficulties of being an excellent retailer across multiple disciplines to include being restauranteurs. We had the experience of a company running department stores who decided therefore that they could run a garden centre because of the many different departments, the only great difference being plants, but they sold it relatively quickly because they said they couldn’t even get the same margin out of the garden centre restaurant as they got out of their department store restaurants.
The other major problem facing both industries is seasonality and difficult weather conditions in what are supposed to be good seasons. These problems are regularly underestimated by surveyors not used to the industry.
As a member of the Royal Institute of Chartered Surveyors, what is your secondary remit as an expert witness, after your responsibility to the court?
My secondary remit as a Chartered Surveyor after my responsibility to the Court is to uphold the Rules and Standards of the Royal Institution of Chartered Surveyors.
How complex can the court’s procedure guidelines be in surveying disputes?
So far, I have not found the Court’s procedure guidelines to be complex. Our reports naturally have to contain all the relevant clauses and paragraphs but so long as I am giving my expert opinion which is always backed up by detailed comparable evidence, I don’t seem to have found myself having had any major issues.
What can companies involved in horticulture and aquatic/ pet centres do in order to avoid such disputes?
I think that most companies/individuals involved in garden centres, aquatics, pet centres, farm shops, etc. generally try and avoid disputes. They are time consuming and costly. Unfortunately, many disputes happen after divorce - often employing a joint expert such as myself to mediate between the parties can save considerable lawyers’ fees and court fees.
Is there any legislative change you believe could facilitate the work of chartered surveyors?
I think Chartered Surveyors are very capable of working within our legislative – my only concern is that the sector is getting quite litigious against experts.
The role as an Expert Witness can be equally challenging and diverse as it is satisfying; Graham McNeil comprehends with this as his clients span a wide range of sectors, which he sees as a positive thing, which of course provides challenges in itself when working in an expert capacity. As planning and quantum experts, he explains, they are expected to have a practical understanding of the nuances that are sector specific; Graham speaks with Lawyer Monthly about his role as an Expert Witness and the legal sector from his perspective.
Across the multiple sectors, you have worked in (regarding construction solutions), which has been the most difficult and why?
Perhaps the most challenging sector for me personally has been Rail. Not, the infrastructure around rail or indeed the trackwork itself, but rather and more specifically: signaling. The systems and processes involved are rather complex and take time to understand. I frequently joke to my Clients about the never-ending three letter acronyms DWS, APR, ATO, ATP, SER. Until you become familiar with the terminology it’s like sitting in your first French class as a child and simply having no idea what is going on or what people are talking about. With that said, once one is able to converse “in the same language” the principles of valuation that we adopt are consistent across the majority of sectors.
As a construction consulting professional, what common misconceptions do solicitors have in regard to construction requirements? How does this make your role as an Expert Witness more difficult?
Let me preface this by saying that I have the utmost respect for the legal profession and that these legal practitioners are now being faced with very demanding expectations. Solicitors who specialise in construction are familiar with the various forms of contract we operate within and are able to advise their clients in constructions projects from inception through to completion, guiding them through partnering agreements, claims, variations and the various forms of dispute resolution. Those seasoned solicitors and indeed barristers who are familiar with construction/contract law are a joy to work with. However, on the rare occasions we are appointed by firms who do not specialise or frequently operate in multiple jurisdictions and things can become more difficult. By way of example, lawyers may find themselves working in common law jurisdiction e.g. England or a civil code jurisdiction e.g. Taiwan. The answer one may derive from assessing concurrent prolongation in a common law jurisdiction may be different from a civil code jurisdiction where apportionment could come in to play. Having a solicitor appoint you early and seek initial opinion on the dispute in hand is key to finding the right expert. Solicitors who are perhaps not as familiar with construction disputes tend to appoint us at the eleventh hour. Remember, as experts we may not always agree with the case/valuation you put before us and a good expert will always remain independent and impartial when providing his opinion to you, whether we agree or not.
Having worked as an Expert on multiple disputes, do you feel that Expert services have improved over the years?
I have noticed a marked improvement on what the industry considers to be “best-practice” for the Experts involved. By way of example, to become an Accredited Practising Expert Witness with the Academy of Experts, one must undergo a rigorous vetting procedure (recognised by the law Society) to ensure standards of excellence are maintained. A comprehensive range of training programmes have been developed to assist members to enhance their expert skills and undertake Continuous Professional Development (CPD). As an Expert I must maintain my independence, impartiality and integrity. I am employed to assist the tribunal and any training or CPD that assists me to do that is most welcome. I would add one cautionary comment – there are a number of “Expert Experts” developing i.e. those that simply specialise on giving expert evidence. In my opinion, one must have a balanced portfolio of work to ensure you have live project experience enabling you to comment on current best practice.
What support do you often offer to solicitors and barristers during disputes?
As an Expert Witness, the level and type of support can vary depending on how advanced the matter is in the dispute process, but it would typically commence with some initial advice following a brief period of “reading in.” The advice in the first instance would focus on refining the relevant matters in issue that we, as the Expert, would be asked to address, this would then progress into providing some initial opinions related to those issues. It is not uncommon at this early stage to develop a list of information required, which is critical in order to refine the initial opinion. Thereafter, our Experts work closely with the legal team to assist in each stage of the chosen dispute resolution process, which could also include providing some input into Calderbank offers.
Alternatively, we may be appointed to act as an Expert Adviser. This this role typically means that we are involved far more strategically and tactically. This is most effective when given the opportunity to advise on the issues in dispute as early as possible. As an Adviser, we are not expected to appear as an Expert Witness in any hearing. Instead we work “behind the scenes,” working closely with the legal team on every aspect of the dispute. We are able to rely upon our commercial acumen to advise clients and their legal teams. Our obligations shift away from an impartial role with a duty to the tribunal and move towards us securing the best possible result financially for the Client.
With Asia rapidly developing and becoming a highly competitive continent, has this effect the number of international disputes? If so, what has changed and what future changes do you foresee?
The last two decades have been a time of tremendous change, excitement and opportunities in Asia and in the world. We are living in a more inter-connected and inter-dependent world, global trade and international investments have risen rapidly and the number of cross-border transactions has surged. In Asia, this has inevitably led to a rise in cross-border disputes involving multinational companies as well as Asian entities that are beginning to flex their muscles abroad. Parties involved in cross-border business will inevitably have to expend resources to ensure they are complying with a myriad of international and local laws and regulations. When disputes do arise, companies then have to invest further resources to navigate unfamiliar foreign legal systems, often having to rely on unfamiliar foreign counsel, as well as bearing the additional risks that accompany the cross-border enforcement of judgments. The major shifts in the global landscape that we are witnessing today ought to remind us that our legal systems cannot stand still. The quest to improve the dispute resolution process and to enhance access to justice must be an ongoing one. For example, in Singapore, an array of effective dispute resolution capabilities has been designed to meet the varied needs of its stakeholders and have been developed over the past years with the establishment of institutions such as the Singapore International Arbitration Centre (SIAC) and the Singapore Mediation Centre (SMC). Gazing further into the crystal ball, we see other countries in the Asia Pacific region embracing the Singapore model. The continued growth of international commercial arbitration has proven to be an excellent illustration of the cross-fertilization of civil and common law concepts, even offering a test-bed to further develop best practices in the resolution of transnational commercial disputes.
Do you feel that dispute resolution in Asia differs from other jurisdictions?
A common belief related to dispute resolution within the Asia Pacific region is the importance of saving face and public apologies. Where the Western legal culture typically embraces confrontation, and finding the ‘winner’ and ‘loser’ in a dispute, the Asia Pacific region has traditionally stressed the virtues of compromise and harmony. Due to underlying philosophical beliefs, saving face is an important issue to consider, especially in China and Vietnam and to a slightly lesser degree in India, South Korea and Japan. Chinese judges, for example, seem to be rather reluctant to render judgments that clearly point the finger at the wrongdoers of each party and prefer settling a dispute by way of mediation to avoid the confrontation between the parties. If I was to use a traffic light system to describe enforcement in various jurisdictions in Asia (with ‘green’ designating a state as pro-enforcement, ‘amber’ designating caution, and ‘red’ meaning problematic), I would give Hong Kong, Singapore, Taiwan, Korea, Malaysia, and Japan a ‘green’ light; Indonesia and Philippines an ‘amber’ light; and China, Thailand, and India ‘red’. The Courts in Hong Kong, Singapore, Taiwan, Korea, Malaysia, and Japan construe the nebulous concept of public policy narrowly, which is a ground for refusal of enforcement under Article V of the New York Convention. Over recent years, we have also noticed the use of adjudication gaining traction throughout the Asia Pacific region as a means of resolving disputes. This can be seen in Singapore and Malaysia with the implementation of the Security of Payment Act. However, not all countries see the benefits of this approach to resolving disputes. In Hong Kong for example, this form of dispute resolution is not yet available, although with the proposed introduction of the Security of Payment Legislation (SOPL), adjudication could become a compulsory first step in resolving most disputes.
We had the pleasure to gain insights into the changing scope of insolvency law with Steven Jansch. He begins by stating: “as a practising solicitor advocate, I have had the privilege of appearing in the Court of Session on several occasions now, but the commerciality of Courts is something that is finding more focus particularly from professional clients, such as those that my firm acts for. My commercial role experience has been hugely positive to date. It can entirely alleviate wasted time, which used to be the constant concern of some of my fellow Court practitioners. The revamp of the Court system, including new Court rules, is in my view a massively positive step forward for all Court users; but that of course is not the full story, as how we get from point A to B is only part of the story. Where the client approaches any professional adviser at point A looking to get to point B, the real challenge that I have, and the one that I relish, is to bring the client along with me as their adviser on that journey. It is sometimes impossible to foresee at the outset, the route that needs to be taken to get there, however, with the myriad of insolvency regulations and with the changes happening throughout the Courts systems, and with the changing landscape, I find my job on a day to day basis massively challenging and rewarding.”
Throughout your years of practice how has Insolvency law changed over time? Have you seen an increase in cases and if so what do you think accounts towards this?
Insolvency law has significantly changed during the course of my years in practice. When I first started the 1986 Insolvency Act and the 1985 Bankruptcy (Scotland) Act were the 2 cornerstones of the insolvency regime. However, albeit cornerstones are clear to identify, there were then a myriad of various statutory instruments, Court rules, practice notes, and guidance notes that were then put in place to trip up even the savviest of Court practitioners. That says nothing about the various changes to the statements of insolvency practice guidance notes (SIPs) that are also applicable to the insolvency practitioners in addition! The recent consolidation of the bankruptcy legislation is a welcome albeit imperfect solution to some of those problems. It used to be that there was very little in the way of case law to give practical guidance on what the legislation actually meant however. That has significantly changed, principally towards the end of the 2000s with the brilliant Lord Glennie becoming very vocal in the insolvency cases he handled. That was partly because insolvency cases were treated as commercial actions, so they were filtered effectively to him (or 2 or 3 other judges that were on the commercial bench in the Court of Session), but also because as more experienced senior judges became aware of the issues the lack of guidance was causing, they took active steps to ensure that the decisions being taking were published. That is a very helpful tool in the armoury of the Court practitioner working in insolvency. Again however, there appear to be different decisions on the same issues – that makes my job advising insolvency practitioners clients even more difficult!
I suppose it is because of the inherent uncertainty with the trickier cases in insolvency law in Scotland, and partly because of the significant costs associated with the formal insolvency processes available to an individual or company, that the number of cases has significantly decreased over the last few years. On the face of it the number of insolvency appointments is on the increase. However, the published numbers include personal insolvencies where things like the Debt Arrangement Scheme or Trust Deeds are included within the statistics. The insolvency lawyer simply does not get involved in those cases in the main, and it is only if problems arise after appointment that somebody like me gets involved.
Nevertheless, the wider the options, the more advice that needs to be given by the insolvency lawyer or insolvency practitioner before the most appropriate option for the company can be identified. There is also an inherent problem with the directors seeking advice for their company, and separately seeking advice for themselves as individuals. An individual director who has not dealt with insolvency before will not necessarily be able to make that distinction, a crucial one from the lawyer's perspective.
What further considerations must be applied when disputes involve other issues (such as employment or contractual issues)?
Very often disputes involving employment or contractual issues are dealt with just as that. What I mean is that it is often the case that the fact of insolvency can be forgotten where even very experienced lawyers are dealing with such separate litigation or tribunal proceedings. To give an example, proceedings being raised against an entity or group of entities alleging professional negligence where one of the defender companies is in a form of insolvency necessitates either the administrator’s or the Court’s permission before such proceedings can be raised. Even the most experienced litigators can forget that, which leads to questions of competency of the whole proceeding. There is also a sharp reality both in terms of the statutory available moratorium where insolvency is then the backdrop to any such dispute, but also practicalities of whether a recovery could ever be made if an insolvency event happens during the course of a dispute. Each case is of course very fact specific but again even for well versed practitioners getting good advice from a specialist early is crucial in the management of client expectations, particularly insofar as the achievability of the objective given to any professional by the client is concerned.
As General Counsel, Ann Shuman is responsible for advising senior management and the DTCC Board of Directors on legal and regulatory matters. She also manages the company’s global legal team and serves on a variety of internal governance committees. Even though she states: “that’s really no different from the General Counsel role at any large, regulated company”, she does say that one of the most challenging aspects of the job for any General Counsel is balancing one’s time between acting as the senior legal adviser to the firm and serving as the leader of a group of busy professionals who cover a breadth of complex legal issues, where you can’t possibly keep up with all of the substantive matters they’re working on. Ann explains: “DTCC is fortunate to have a great group of lawyers with deep expertise and experience in a corner of financial services that can be arcane, but is also indispensable to the smooth functioning of the securities markets.”
In this exclusive interview, Ann speaks more on her role and the financial sector.
What legal and regulatory challenges does the financial services industry face? How does DTCC help guide the industry in the best way possible in response to these challenges?
The industry has experienced a tremendous pace of change since the financial crisis. In fact, regulators are still finalising rules governing new requirements in some areas, whilst at the same time regulators and legislators are starting to assess the impacts and effectiveness of rules issued earlier. DTCC plays a unique role in the industry because our clearing agencies and trade repositories are critical tools for satisfying the new requirements. In particular, clearing has become much more important. Our services help the industry comply with the new rules, better understand and manage risk, and reduce capital pressures.
At DTCC, we’re proponents of strong regulation that increases transparency, improves the functioning of the markets and mitigates risks – particularly systemic risk. At the same time, we want regulation to work, and we want policymakers to be informed on potential unintended consequences.
How has advanced technology changed the legal sector over the years and what developments are you excited to witness?
While technological changes have allowed all industries to work and operate more efficiently, so-called disruptive technologies have not yet been very impactful in the legal sector. However, new technologies are having a great impact on financial services and, as lawyers in this field, we can’t be effective if we don’t understand those impacts or fail to evaluate how they may alter behaviour or the ways in which securities markets operate.
Technological advancement will ultimately benefit investors and the markets, but there can be hiccups if the regulatory environment isn’t keeping up with the pace of change. At DTCC, we strive to be thought leaders on new technologies in financial services – the potential uses of distributed ledgers in clearance and settlement is a good example. We also work behind the scenes to find the pathways for the regulatory framework to adapt – if needed – to the ways in which new technologies will change back office operations.
The finance sector is often vulnerable to cyberattacks – what more do you think could be done to ensure firms remain protected?
Cybersecurity is top of mind for everyone operating in the financial services industry. For example, in DTCC’s Systemic Risk Barometer study, a bi-annual survey we conduct to identify current and emerging risks in the marketplace, respondents have cited cybersecurity as the top risk to the industry for three years in a row.
Market participants have been focused on this area for some time, and financial services regulators globally have now elevated the conversation to ensure preparedness and appropriate responses to cyber threats. The CPMI-IOSCO cyber resilience guidance and the European Network and Information Security (NIS) Directive are both examples of regulators successfully focusing much-needed attention on this important issue.
Common regulatory frameworks are helpful as they can be leveraged industry-wide. In our view, this is more effective than implementing overly prescriptive mandates that may not match diverse risk profiles across organisations. Moving forward, we’re encouraging regulators to harmonise cybersecurity mandates and guidelines to ensure firms are able to leverage best practices.
Also, as a result of the evolving nature and increasing emergence of cyber threats, there is a need for a greater level of interaction among financial firms. Organisations must communicate with each other and share threat intelligence information in order to defend against these attacks, and policymakers should promote threat intelligence sharing as a critical tool in the industry’s defences.
How does the changing nature of financial services affect your role? How difficult can it be to stay on top of things?
The industry has undergone so much change in recent years. Regulatory reform has really reshaped financial services. There is still a lot of uncertainty, particularly in the US with regards to how the Trump administration and Congress will proceed with proposals to pull back financial services regulation. It is inherently complex because of the sheer number of new rules that have taken effect since Dodd-Frank was passed. Firms have restructured, client expectations have changed, and industry practices have adapted. The same can be said about Brexit.
The financial markets are globally interconnected. We feel strongly that regulators and policymakers must coordinate and cooperate across jurisdictions. A fair playing field with clear rules promotes efficiency and protects all players, and coordination in a future crisis will be essential to reduce systemic risk.
DTCC offers several different services – in your opinion which are the most difficult from a legal stance? Do you think more could be done to ensure reduction of these challenges? (i.e, if you could change any legislation involved, what would you change?)
DTCC faces different types of challenges for each business area. In some cases, there are challenges because the rules have not kept pace with changes in the marketplace. Particularly in the US, legislative changes are tough to achieve, and as a result many of our services operate within regulatory frameworks that were designed for the markets as they existed decades ago. The regulatory rulemaking process also takes quite a bit of time, and the agencies that regulate financial services have a lot on their plates.
In other parts of our business, we face challenges for the opposite reason: the rules are new, and they may not interact with industry structures in the way that regulators intended. That doesn’t mean the regulatory processes are flawed: on the contrary, new rule-making should be a careful and deliberative process, with lots of input from the industry and other interested parties. Some regard that as a sign of capture, but in my opinion it’s not. The regulators take their roles very seriously and want to get it right, without unnecessary expense or disruption or unintended consequences. That’s quite a balancing act. It would be great to see increased opportunity for policymakers and the industry to evaluate regulatory impacts over time and adjust where appropriate.
What would you advise young lawyers in order to prepare themselves for a career in finance/corporate law?
The ability to stay up-to-date on the drivers of the business is critical in financial services or any fast-paced, heavily-regulated industry. I strongly believe that you are at your legal best when you are knowledgeable about the business you support, its objectives and the interests of key stakeholders. This enables you to understand the motivations and intentions around, for example, the contract you are trying to complete or the joint venture you are attempting to launch.
At a personal level, I always advise young lawyers to stay open to unexpected possibilities. While following the established path after graduating from a law school will likely lead to a successful career, sticking only to that path also sets limitations on what you might be able achieve. Remaining open-minded and seeing each opportunity through your own personal prism and without being too attached to established norms might just lead you to a role that is more rewarding over time.
What are your upcoming goals for DTCC; what are you aiming to achieve in the next year?
Major political developments in the US and Europe will impact regulatory agendas, creating new risks and new opportunities. We are ready to play our part in that process. Tackling new challenges on the regulatory front is an inherent part of the job. My personal goal is to ensure we are always improving on that front, working to influence good outcomes and adjusting to change as it comes.
In Nigeria, the present administration recently set up the Presidential Enabling Business Environment Council. The task of the Council is to make doing business in Nigeria much easier and improve Nigeria’s rating on the ease of doing business. Currently, the council is meeting with various stakeholders with a view to try and understand hurdles in the way of doing business in Nigeria and eliminating them; with this laudable step, one expects that in the near future, doing business in Nigeria will not be as challenging as it currently is and allowing more foreign investors being attracted to invest in Nigeria. We speak with Segun Omoregie about Nigeria’s development: what has changed and what he foresees for their investment future.
Recent reports suggest that Nigeria’s insurance industry is poised to enter a period of consolidation; can you comment on this and how do foreign insurers contribute towards this?
This is true and going by what we saw in the banking sector during the banking reforms of 2005/06, we may be set to see significant M&A activities in the Insurance Industry. Over the years, the reforms introduced by the National Insurance Commission has led to a steady growth in the insurance sector in Nigeria. To meet capital requirements, insurance companies have had to consolidate and/or seek fresh capital. Other far reaching reforms have strengthened the sector making it potentially more profitable and attractive to financial and strategic investors. We have seen investments from the IFC in a few sector players and Sanlam Group in First Life Insurance; we have also seen interests from strategic foreign players which may end up in possible deals.
Over the years, how have you witnessed the international investment scope alter the M&A sphere in Nigeria?
Global trends have had a significant impact on the Nigerian M&A sphere. Changes in global trends such as the need for food security, interest in fast moving consumer goods (FMCG) and health (etc.) have led to a significant interest in sectors (such as agriculture, FMCG and healthcare). In addition, the increase in population in Africa (especially in Nigeria) and the forecast that the African economy will double in a decade have contributed to the influx of foreign investments in unusual sectors, resulting in an alteration of M&A transactions in Nigeria. We have seen strategic acquisition by foreign companies wishing to expand their operations not just in Nigeria, but in West Africa. In 2015, we advised Tolaram Group on Kelloggs’ acquisition of 50% of its sales distribution company.
How do you prepare for your client(s) when you are called to advise for a transaction?
The first important step we take is to understand the client’s requirements and set up the right team for the deal bearing in mind the need to achieve the client’s business objectives within their timeline. We also set up very efficient communication links between the deal team and the client’s contact person(s). With this we are able to get answers to questions we may have in order to perform our work more efficiently and resolve issues with the client timeously.
What are the biggest challenges you face when advising big, international corporations?
The biggest challenge with advising corporations will be meeting their business objectives in the face of the peculiarities of our legal and business environment. This is usually evident where foreign laws are significantly different from local laws or where it is impossible to meet deadlines on account of the clogs in our legal systems.
What would you advise young lawyers to consider when they are trying to ‘seal the deal’?
My advice to young lawyers when they are trying to seal the deal is to always have the client’s business interests in mind. Business clients always expect lawyers to understand their business objectives and appreciate ones that will help them achieve these objectives within the confines of the law. Innovation and creativity will always help a lawyer to achieve this, so will thoroughness and resourcefulness.
How do you see the petroleum industry progressing in Nigeria and what will this imply for other jurisdictions across the globe?
The 3 most obvious challenges currently bedevilling the petroleum industry in Nigeria are: (i) the unrest in the Nigeria Delta area which has affected oil production significantly; (ii) the uncertainty over the non-passage of the Petroleum Industry Bill (PIB); and (iii) the volatility of oil prices. Unfortunately, it is almost impossible to foresee how these issues will play out both in the short and long term. Even though as with previous governments, this government is taking steps to resolve the Niger Delta crises and the National Assembly continues to commit to pass the PIB into law; we are yet to resolve these issues. The best experts in the industry also continue to fail in predicting where prices will go.
Having said this, I think it is reasonably safe to predict some stability and growth in the midterm and this growth will attract more investments in the sector from global players.
Every advocate, lawyer and barrister places their upmost dedication and passion into their role in the legal sector; the role they play more often than not, requires sacrifice and a hard-working nature. Gopal Subramanium is a perfect example to how hard work pays off, not solely for selfish purposes, but for the nation and its Courts.
Gopal commenced his legal practice in 1980 in the Supreme Court of India and by the time he was 35 years old, he was designated a Senior Advocate (Queen’s Counsel equivalent) suo moto by India’s Supreme Court.
His sheer dedication enabled him to become one of the youngest to be designated by the Supreme Court and thus saw him take on challenging and pinnacle cases that India would not forget and evidently so, as Gopal was honoured with the National Law Day Award for Outstanding Jurist, in 2009 by the President of India, for his consistent professional excellence and adherence to the highest traditions of the Bar.
Gopal’s list of achievements is endless; he has been involved in a number of landmark cases, tackling issues from mental illness to terrorism. More recently in 2013, Gopal acted as a member of a Committee to Recommend Amendments to Criminal Laws, recommending much-needed amendments to various Indian laws, to ensure the safety and dignity of women and young children.
Gopal's arbitration experience includes appearing as lead Counsel for Indian companies in ICC and domestic arbitrations. He has also appeared in cases concerning the law of arbitration in India, including the BALCO case (2012), where the Supreme Court of India ruled on the applicability of Part I of the Indian Arbitration & Conciliation Act, 1996, to arbitrations held in a foreign seat, and awards arising therefrom. He has Acted as the Special Public Prosecutor in the prosecution of Ajmal Kasab, the sole surviving terrorist who carried out attacks on Mumbai in November 2008; and has acted as amicus curiae to the Supreme Court in 2011 in the matter of Bachpan Bachao Andolan v. Union of India, where he presented a report on the realities of trafficking of children in India, and assisted the Supreme Court in framing guidelines to deal with the menace of trafficking.
Gopal continues to act as lead counsel in several path-breaking matters. He recently acted as lead counsel for Novartis AG in Novartis' challenge before the Supreme Court to a denial to grant it an Indian patent for the cancer drug ‘Glivec'.
Evidently, Gopal’s extensive contribution to the legal sector is more than greatly appreciated and recognised; he has delved into significant cases and trials, which not only tested his own ability, but also challenged India’s Court.
This month it brings us great pleasure to discuss with Gopal his achievements, the actions he took to become as well recognised as he is today and how India has progressed throughout his years of practice; Gopal delves into how he dealt with cases involving the terrorist attacks in India, as well as individuals wrongfully detained in mental hospitals.
You were one of the youngest lawyers to be designated a Senior Advocate by the Supreme Court of India; can you explain to Lawyer Monthly what was behind this success? Moreover, how did you find that transition and how did you use your age to your advantage?
A prerequisite to becoming successful at the Bar is hard work. One also needs to ensure respect towards the Court and the judicial process. Equally, a lawyer ought to acknowledge his duties as an advocate, foremost among which must always be an unequivocal display of integrity.
Being designated a Senior Advocate by the Supreme Court was a great honour, though the transition was indeed difficult, involving some personal sacrifice. There was, for instance, a need to be patient with money, and to serve the Court with care and objectivity.
The advantage of being recognised as a Senior Counsel at a young age was an affirmation that the Court insisted on merit, character and independence of judgement as criteria for such designations.
What common cases do you face when called to the Supreme Court of India?
I have had the great privilege of arguing a variety of cases before the Supreme Court of India. These include criminal appeals, commercial cases, appeals from arbitral disputes, and intellectual property litigation. I also appear in several constitutional matters, especially those involving the interpretation of the Constitution and fundamental rights of citizens.
Importantly, I undertake pro bono work because of my commitment to Legal Aid, and am honoured by occasions where I am appointed Amicus Curiae by the Court to provide them an objective and non-partisan opinion in complex cases. I must say that while all the cases I deal with involve a significant degree of concentrated effort, it is such cases that are most deeply satisfying to me as a lawyer.
You’ve acted as a member of a Committee to Recommend Amendments to Criminal Laws in 2013. Since then, do you think amendments to the law have affected the ever-growing concern of equal rights for women and young girls (and boys) in India? What more do you think can be done?
I had the great privilege of serving on the Committee on Amendments to Criminal Law alongside Justice Leila Seth and the late Justice J.S. Verma. I cherish my experience with the Committee, especially owing the tremendous respect I have for my fellow members.
The Committee began its work during a challenging time for the nation and its people. Though this made our work difficult, it also made it more important. It was necessary to acknowledge the expectations Indian citizens had from the Committee; it was, however, more important to approach issues concerning gender equality and sexual violence with a degree of objectivity and dispassion.
We consulted several experts in criminology, gender studies and psychology before publishing a comprehensive report on the changes that were needed in India’s criminal law framework. The report made a number of recommendations on the law concerning rape, sexual harassment, trafficking, child sexual abuse, the medical examination of rape victims, and police reform. Recommendations were also made regarding the need to introduce sexuality education at schools.
I believe the Committee’s report was influential in addressing the concerns of gender equality. Some of our recommendations were accepted by Parliament, and have since brought about amendments to criminal law. The Report was also treated as a valuable contribution in other jurisdictions.
The Report, we intended, would enable us to change our thought and attitudes, and promote equality in its true essence.
I must add, however, that I am optimistic that with time, society will rid itself of the evils of sexual violence.
Can you talk Lawyer Monthly through the process of investigating into individuals being wrongfully detained in mental hospitals? What Thought Leadership skills did you apply to the case?
The case in question arose in Sheela Barse v. Union of India, a matter that concerned the unlawful detention of mentally ill persons in prisons. The Supreme Court had passed an order strictly prohibiting the confinement of non-criminal mentally ill patients in jails. To ensure that the State of Assam was complying with this order, I was appointed a Commissioner by the Court.
Gauging the reality on the ground was an immensely saddening, even devastating, experience. I found that almost 400 persons had been unlawfully confined to prisons solely on the ground that they were mentally ill. The conditions under which they were kept were deplorable, sufficient to cause more trauma to those so imprisoned. Many did not even suffer from any mental illness.
At personal expense, I had ventured beyond my mandate in preparing my Report, not because this was common practice, but because it was necessary. As an Officer of the Court, it was my duty to provide a comprehensive and objective account of the facts to the Court. In doing so, I also recommended that those who had been wrongfully confined be adequately compensated for the violation of their constitutional rights. It was a proud moment that the Court accepted my report in its entirety.
For me, the experience was also an exercise in learning. I learnt that the true spirit of the Constitution and the rights it recognises must be upheld and affirmed.
Moreover, what further considerations must you make when dealing with legal cases including terrorist attacks? How do you deal with the added pressure of the public’s concern and scrutiny?
Cases involving terrorist attacks are incredibly testing. One owes a duty to the Court to handle such matters delicately, with due care towards the rights of the accused, and above all, with a degree of impartiality. It is important for a prosecutor to refrain from falling prey to mass (though justified) hysteria, and to guide the Court towards a just decision. The outcome that is reached must be devoid of vengeance and malice, and instead serve the ends of justice.
I have looked to adopt this belief in cases that followed from terrorist attacks. I served as prosecuting Counsel for the Central Bureau of Investigation in the case of the Bombay Blasts of 1993 and later, as a Special Public Prosecutor in the Parliament attack case of 2001. I appeared in the case concerning attacks in Mumbai in November 2008, where 164 people lost their lives. It was a moment of gratitude when the Supreme Court in its judgement recognised my dispassion in this case. The feeling that one had done a service to the nation and achieved a just outcome was incredibly rewarding.
How do these specific considerations differ when you are acting as Counsel for commercial reasons (for e.g., your involvement in the Indian patent case concerning the drug ‘Glivec’)?
Appearing in commercial disputes requires approaching cases very differently. The frame of one’s mind while arguing a constitutional matter is, for instance, significantly different from the approach one takes to commercial litigation. There is, first, a need to acquire industry-specific knowledge. In a pharmaceutical patent case, this would involve studying medicinal chemistry and pharmacology in considerable detail. Similarly, for a mining dispute, one must spend sufficient time grasping the nuances of mining procedures and developing an understanding of the best mining practices. This knowledge may not always be of immediate relevance to a particular case, but is nevertheless necessary to form a thorough understanding of the intricacies at play. I often attempt to develop such an understanding through sessions with experts in their fields, in addition to a significant amount of self-study.
It is also worth noting that a lawyer has a duty to guide the Court, carefully and meticulously, through what are often complicated cases. Subject-specific knowledge often impacts the success of this cause.
What different problems are you presented with when acting as lead Counsel for Indian companies? Have these changed over time as India as progressed?
Being the lead Counsel for companies before the Supreme Court is always a stimulating experience. The Court often, and rightly, considers public interest in reaching its decisions. To then convince the Court of the necessity of purely commercial interests becomes incredibly challenging (an enjoyable challenge, I might add).
I often appear on behalf of companies in property disputes, patent infringement matters, and challenge and enforcement proceedings that arise out of arbitrations. Perhaps the greatest difference I have observed over years of practice is the ever-increasing presence of foreign companies in commercial disputes. Indeed, foreign companies have to be advised about the Indian legal system carefully.
What are you hoping to change in the next few years in India that will enable it to progress globally?
At least at this point in my life, it would be wise to limit my efforts to the legal domain. I hope that the professional standards which lawyers must meet are not only met, but also surpassed. It is necessary for lawyers to conduct themselves with unquestionable integrity, devoid of ego or the need for personal gratification. I often tell my juniors that their need for personal financial development ought to be secondary, subordinate to their duties towards clients and the Court. A better and stronger judicial system, where the law is practised with honesty, will undoubtedly help in India’s progress in every way. The best investment, I told the government recently, was to strengthen legal institutions.
Morocco has opened doors to Africa and entered more than 1000 commercial conventions with almost all sub-Saharan countries. Billions have been invested by Moroccan companies/institutions in banking, insurance business, industry, infrastructure projects. With an increasing focus on encouraging international commercial dispute resolution and growing economic prosperity, Morocco has vastly developed; we decided to speak with Professor Azzedine Kettani who has years of knowledge and research in Morocco’s commercial development.
How has Morocco developed in relation to its international corporate activity?
Morocco cumulates a fine-tuned legal system and a dynamic governmental strategy in order to develop its international corporate activity; examples are as follows:
What is the biggest challenge the country is currently facing?
In short, to increase the judicial system efficiency and improve legal certainty. One of the most specific aspects usually relates to the difficulties that a foreign investor may face with respect to the enforcement of the limitation of liability, the liquidated damage clause, the security package or a foreign judgement. In this regard, one of the most important challenges, would be to speed up the settlement of disputes before local courts and to improve the length of judicial proceedings. However, foreign investors may avoid all these difficulties by recourse to arbitration and indeed, Morocco is a member of the New York Convention on the recognition and enforcement of foreign arbitral awards and a member of The Washington Convention on ICSID.
What are the current motives for people wanting to invest in Morocco? How does this compare to nearby jurisdictions?
With the media offering conflicting reports on Morocco’s societal development, what are common misconceptions international corporations have when investing in the country?
The most common misconceptions that our international clients have when investing in Morocco relates usually to:
Does Islamic Law in Morocco have an effect on other legal sectors? If so, how?
Not at all. Islamic law applies to personal status and family law issues to Moroccan Muslims. It applies to Islamic finance activity, while commercial law, corporate law and all matters relating to business and economy are regulated by specific laws and codes that are similar or close to European law.
As head of the construction and projects division, Fenella Mason advises on all aspects of construction law from procurement routes and contract drafting through to dispute resolution. She regularly conducts adjudications, mediations and litigations and has handled numerous arbitrations for both national and international clients. She speaks with us today on the construction sector in Scotland and how the Scottish Courts are evolving.
Construction Litigation In Scotland: Paving The Way To A More Efficient System
Most clients want the same thing - a cost effective and quick resolution of their dispute, whether the dispute is to be resolved in Scotland or England. However, if the Scottish Commercial Court, rather than the Technology and Construction Court (TCC), is the location of the battlefield the implications for cost and speed can vary significantly. Differences in practice (and sometimes law) can impact the time and cost of resolving the dispute. Can recent changes in the Scottish Commercial Court limit the differences?
Same Building, Different Building Blocks
In Scotland, the equivalent court to the TCC is the Commercial Court of the Court of Session. The underlying law may be similar in most – but not all – respects. However, the differences in processes are significant, even if they often seek to achieve the same outcome.
What is new in Scotland?
The good news is that the litigation landscape in Scotland is changing. One of the most relevant changes for construction disputes is the new Commercial Court Practice Note and Guidance. The court is now embracing the digital age but it will be a steep learning curve for judges and practitioners alike. The cost burden of complying with technology requirements in construction disputes can not be underestimated. Construction disputes, with their voluminous documents, are most likely to bear the brunt of any expenses incurred as both judges and practitioners grapple with the impact of the new rules. The embracing of technology by the courts will not necessarily reduce the client’s costs at this early stage. Consistency of judicial approach will be key, as well as an appreciation of the implications - financial and logistical - of any judicial requests.
The new rules also promote Alternative Dispute Resolution (ADR) but do not go so far as to give a Court of Session commercial judge a mandatory power to compel ADR. The sanctions are tied to expenses but historically there has been a reluctance of Scottish judges to engage with costs/expenses, albeit this may change in the future.
Another, not so welcome, change is a recent increase in Court costs - many of the Court fees have doubled. This will have a substantial impact on long running, multi-party litigation which are a feature of so many construction disputes.
Do the changes serve construction sector users?
There is one recurring point which clients are making: litigation simply takes too long. Do they have a point? Adjudication enforcement actions are probably the biggest issue. The Scottish Courts recognise that adjudication is a “novel and unusual legal beast” but there are no bespoke rules for this process. The Commercial Court rules do not lend themselves to enforcement actions. Although, in theory, an enforcement hearing could take place within six weeks of failure to pay an adjudicator’s award, it is not uncommon for at least four months to pass between an adjudicator’s award and a hearing. Contrast this with the TCC’s stated objective of a hearing within 28 days. This difference in timescales and varying judicial approaches to the necessary procedures is difficult to explain to clients who are used to the speed of adjudication enforcement in the TCC.
A related issue is the time it takes to produce judgments. Whilst this is an issue common to construction disputes in general, it is felt most acutely in adjudication enforcement actions. Advising clients on the timescale for delivery of a judgment can be a lottery, not a commercially attractive proposition to put to an experienced CEO, particularly given that adjudication is only ever a temporarily final answer.
Time and money
Shortening and standardising litigation timescale, and as a consequence reducing cost, are challenges that the Court of Session appears to be alive to. Court fees are rising but so too are expectations of service delivery from the Court service. The TCC has set a high standard in relation to adjudication processes in particular; a bespoke process for construction disputes, and adjudication enforcement would be a welcome addition to the Commercial Court reforms.
