Understand Your Rights. Solve Your Legal Problems
Opening a window into the daily difficulties of a hospital’s accident & emergency department, Lawyer Monthly hears from Aruni Sen, an expert witness that deals predominantly with personal injury and medical negligence claims. Here Aruni tells us about the issues that spark these claims, including clinical errors in A&E, and about the overall evolution of this medico-legal sector over the past twenty years, in the UK and Guernsey.
What kind of legal cases are you commonly appointed for in regards to A&E and what difficulties do these present?
I am instructed for both personal injury and clinical negligence claims. The latter is on the rise.
Personal injury claims are reasonably straight forward. After noting the circumstances of the injury, one has to examine the claimant to establish current symptoms, note unresolved clinical problems at the time of examination and finally comment on causation using the “but for” test of whether the injury has caused the symptoms and clinical features, any complications, any losses and likelihood of resolution of residual problems.
The clinical negligence claims are more complex. One has to establish, on the balance of probabilities, if the care fell below the standards and, on ‘Bolam principles’, that no reasonable body of clinicians would have offered that standard of care.
If negligence can be established, comments need to be made about causation using the same “but for” test towards the consequences of substandard care.
What do disputes in this segment often involve and arise from?
The personal injury claims mostly do not involve any dispute. It is the negligence claims that are disputed, often when the error is indefensible by every standard of care. These disputes often prolong the claims process, wasting tax payers’ money in hopeless defence before accepting the claim.
How does your role differ significantly between reports for defendants and claimants?
Not really, if one remembers that every medico-legal report is addressed to the court. Instruction from defence or claimant should not influence opinion.
What are often the challenges in keeping your provided analysis impartial when appointed on joint medico-legal reports?
There should not be much challenge in keeping expert opinion impartial, regardless of the basis of instruction. An expert report is addressed to the court in order to assist the judge towards assessing any claim. Every expert must bear this in mind in preparing every report – whether it is a screening report or final CPR part 35 report. One should not hesitate in supporting or opposing any claim, if the facts point in that direction applying Bolam principles.
In your 20+ years of experience, how have you seen this expert witness field evolve in the UK and in Guernsey? What has changed significantly over the years, to the point of impacting your work?
The volume of personal injury reports has reduced drastically. Each such report is now expected to be more in depth and detailed; subsections on each report to clarify injury details, medical care if any, symptoms progression, impact on claimant’s life/function, and finally causation are more important now than ever before. The CPR part 35 conditions have also laid stringent conditions on each report.
Clinical negligence claims are on the rise, mostly in the form of complex claims, but also involving clinical errors in A&E.
The most significant change is the details solicitors expect in each report, followed by analytical questions asked according to part 35 rules.
What has been the most rewarding part of your medico-legal career since you began practising in 1992? Have you had any major challenges?
I feel that I have benefitted from good training, workshops facilitated by counsels and eminent experts, and feedback on my reports from lawyers. Joint expert meetings are also educational and help my own reflections on my initial report as well as the standards of practice.
Most importantly, I reflect on every claim, medical event & errors, and try to learn my own lessons in order to enhance my clinical practice well beyond the medico-legal expertise.
Is there anything else you would like to add?
I would advise aspiring experts to stay current in their field of clinical activity, undertake regular trainings & updates on writing reports, seek feedback on their report, and learn through reflection.
This must bring all round improvement to the claim procedure and the experts’ standard of report writing.
In a fast moving European market, the promotion of investment for growth is paramount to the expansion of local businesses, and the establishment of government-sponsored financial institutions has been a great stimulation for increased industrialization and commerce across the EU.
On this matter, Lawyer Monthly benefits from an in-depth article written by Michela Mifsud, a Banking and Investment researcher at PKF Malta, a specialist accountancy & business firm in Malta.
New Horizons for Local Businesses
Supported By A New Development Bank
On the 24th August 2016, Malta joined several other Member States in the EU which during the past years have been reorganising development financial institutions or setting up new ones with a view to amplify their potential by promoting investment and growth. The birth of government-sponsored financial institutions can be traced back to the 19th century, with the Netherlands being the pioneer with the establishment of the ‘Société Générale pour Favoriser l’Industrie Nationale’ in 1822. The significant developments in this sphere and the emergence of large financial institutions for industrial development during this period can be linked to the rapid industrialization which took place in Continental Europe.
The relevance of state-owned financial institutions was triggered once again with the demands for reconstruction ensuing the Second World War ruins. A leading case in point in Europe is the German Kredintaltanlt fur Weidarufban (KfW), which was originally intended to channel external funds for reconstruction but, once the German industry was back on its feet, evolved into a long-term financial institution which, in the ambit of a stable economy, seeks to support the German and European industry, with a particular consciousness to the environment and the climate, the housing sector, asset securitisation and the promotion of SMEs.
The 2007 financial crisis, which threatened the collapse of large financial institutions worldwide, has once again brought to the fore the significance of development banks. Bearing the ability to mitigate capital constraints in scarce credit markets, as well as facilitate access to finance, allowing liquidity-dearth sectors to unravel productive investments, development banks are an imperative tool utilised by governments to surmount difficulties in their economy.
The European Commission gave its green light for the creation of the Malta Development Bank (MDB) after this was found to be in harmony with EU State aid rules. Within the parameters of these rules, as a form of National Promotional Bank (NPB), the MDB will step in when the private market fails to provide adequate financing to certain lines of business, categories of clients or types of enterprises that meet the Bank’s social and economic mission, or, if such financing is available, it is not offered at normal market terms and is not appropriate to reach the Bank’s purpose.
By definition, State aid is an advantage which is conferred on a selective basis by national public authorities to specific undertakings or industry sectors, or companies located in specific regions. Subsidies granted to individuals or general measures open to all enterprises, such as general taxation measures or employment legislation, thus, do not constitute State aid. However, a measure, be it a grant, interest or tax relief, guarantee, government holding or the provision of goods and services on preferential terms, is characterised as State aid when it is the result of an intervention by the State, leading to a possible distortion of competition and one which is likely to affect trade between Member States.
For these reasons, State aid is frowned upon and is generally prohibited by the EU. However, in particular circumstances, government intervention is permitted by the General Block Exemption Regulation (GBER) when this is undertaken in view of fostering overall economic development of the country. Accordingly, in view of ensuring a well-functioning and equitable economy, Article 107 of the Treaty on the Functioning of the European Union (TFEU) exempts specific categories of aid which shall nonetheless be considered to be compatible with the internal market.
The European Commission’s assessment of Malta’s proposal for the setting up of the MDB in light of these exemptions deemed it to be justified in virtue of the fact that such assistance is intended to enable the development of particular economic activities or areas and the aid offered shall not adversely affect trading conditions to an extent contrary to the common interest. To this end, the Bank will carry out non-commercial activities particularly intended to facilitate access to finance to SMEs and to support large infrastructural projects when investment is insufficiently available from the market.
Of their nature, development banks are better suited to take on projects with a higher risk profile, cushioned by the offering of capital being made conditional on functional enhancements and performance targets. In this regard, the Malta Development Bank Act, 2016, stipulates the instances in which the MDB will have the power to make loans to, or investments in, engagements in an enterprise or project which is capable of flourishing and yielding positive results for Malta. The Bank will address lacunae in the financial structure by acting as a wholesale second-tier financial intermediary in coordination with and via other financial institutions, including commercial banks and private investors. Thus, it may only undertake direct lending and provide financing on market terms in a manner which does not compete with or crowd out viable financing from such other sources. Moreover, the Bank may only offer financing directly and not in syndication with other financial institutions provided that this does not exceed 25% of its overall lending and is provided under schemes tailored for the business concerned.
Starting off with an initial authorised capital of €200 million, out of which around €30 million will be paid-up, with additional capital pay-ups contingent on the Bank’s success, the MDB is envisioned to support entrepreneurship and socio-economic growth in Malta by providing promotional investment and financing, financial and advisory services, as well as by issuing securities or otherwise raising funds or capital in support of those services. Aside from this capital injection, the MDB will also cater for the provision of finance through guarantees and tax exemptions totalling to circa €55 million. The Maltese Government MDB will have a guarantee from the Maltese Government on both the assets and liabilities side, the extent of which will be negotiated with the Ministry of Finance.
Amongst its designated investment ventures, the Bank may finance enterprises, businesses and projects, particularly those contributing to a high quality, dynamic and innovative economy, as well as provide suitable access capital to SMEs, the professions and business start-ups. In line with the mission of development banks to promote socio-economic goals, on a more socially-conscious level, the MDB may pump funding into projects undertaken by cooperatives, social enterprises and housing projects, especially those involving urban renewal, as well as infrastructural projects, particularly those geared towards enhancing Malta’s competitiveness.
In light of the Juncker Commission’s €315 billion Investment Plan (2015-2017), adopted in November 2014, which envisages to eliminate obstacles to investment in the internal market, afford visibility and technical assistance to investment projects, and effectively exploit new and existing financial resources, the MDB, together with other Investment Platforms and NPBs, will have a predominant role in Europe’s economic revival. By virtue of its role as an intermediate platform, the MDB can also participate in EU financial instruments, such as COSME, the European Fund for Strategic Investments, which offer further sustenance to SMEs to nourish their competitiveness, or Horizon 2020, being the largest EU Research and Innovation programme the EU has embarked on. Such ancillary source of funding for SMEs and the infrastructure sector will nurture the much-desired sustainable growth in the levels of investment which the EU saw plummeting since the break of the global economic and financial crisis.
In conclusion, in its role as a stepping stone for facilitated access to finance, the MDB is set to contribute towards the Investment Plan’s goal of boosting job creation and economic recovery in a manner which does not further load on public debt nor strain national budgets. On top of that, the Bank will also play a part in supporting investment that meets the economy’s long-term needs, increases competitiveness, as well as fortifies Europe’s productive capacity and infrastructure, with a focus on building a more interlinked single market. In view of the Commission’s reassessment of its findings scheduled for 2019, proper due diligence and project-sustainability studies must be undertaken to ensure that only commercially viable projects will benefit from this mechanism and to prevent it from being used to accommodate entities which fail to receive financing from other avenues due to their weak business models and strategies.
Ownership and operations of a business may at times be family based, and although the law applies the same for all, family run businesses may have some extra considerations to make. To this end Lawyer Monthly hears from Bruno Pichard, Partner at Pichard & Associes, a French boutique law firm.
Bruno illustrates exactly what these considerations might be, what defines a family company, and tells us a little about the firm’s thought leadership in this legal segment.
What is a family company?
There is no legal definition in France for a family company, but you may consider that a family company is a company which has been owned by a family for at least two generations. You may also consider as a family owned company a company that the founder has decided to transfer to his family and not to sell to a third party. More generally, a family company considers itself as such and there are no specific issues in this respect. The most important feature is that the owners wish to maintain the ownership within the family.
Is there particular French or EU legislation surrounding the operations of family businesses that most family start-ups would not be aware of?
In France there are no specific rules governing family owned business. For example, we get a civil code, a commercial code, a labour law code etc., but we do not have a family business code. In spite of this absence of specific legislation, there are some specific and limited rules which may concern family business.
For example in a French société anonyme, the articles of association may stipulate that transfer of shares may be subject to the approval of the board of directors, but such rule does not apply to a transfer of shares to your children, which can always be transmitted without the need of an approval from the board of directors.
Transmission of a business (instead of the sale of a business) benefits also from substantial gift and estate tax reduction, subject to a commitment to keep the shares transferred for at least several years. These rules will also apply if the shares are transferred to a person who is not a member of the family, taking the same commitment, but in practice these rules are generally used for the transfer of a business to the members of the family.
Another important and specific aspect is the duration of the relations. This is particularly true in the case of transfer of the business to the next generation. In the sale of a company to a third party, the process will be limited in time, generally a few months, whereas the transfer of a family business from one generation to the next one can possibly take several years.
Pertaining to the sale, the seller generally stops working in the business (except eventually for a few months to ensure a smooth transition), whereas in a family transmission, the person who transmits the company to the next generation will generally continue working in the company and be interested in its development and success.
What kinds of disputes arise pertaining to family run companies?
To be successful, and to remain as a family business, it is necessary to avoid disputes between members of the family.
As an outside lawyer it is important to take into account the wishes, the needs and the situation of each member of the family. This is particularly true in establishing the governance rules of the company. You always have to see that such rules are accepted by all participants and satisfy all of them. To establish a system which is accepted by some members of the family, but does not satisfy the other members of the family, will cause collapse in the long term.
It is not always easy to determine what these wishes are. For instance, I have in mind the example of a minority shareholder who lived abroad in the country of his wife, and who never went to shareholders meetings. When the majority shareholder proposed to purchase his shares, he was upset and strongly refused. He considered that his shareholding was one of his last links with France and with his family and he did not want to break it.
Financial relations are also a major cause of dispute. The involvement of the family members can be quite different. Some are employed by the company and are paid a salary in addition to their dividends. Others are only shareholders and as such receive only dividends. It is therefore necessary to take these different positions into account, especially due to tax on wealth, as the ownership of these shares may be submitted to this tax and dividends may be necessary just to pay it.
How are these often resolved?
In the worst cases, there are no amicable solutions. The dispute is then solved either by commercial courts or by arbitration (often for confidentiality).
It is also possible to resort to mediation and this process is used more and more often as it is an efficient way to try and find a solution acceptable by all the parties involved. However in case no agreement is reached on the solution proposed by the mediator, the dispute remains pending.
It is also possible to establish a corporate body which would be in charge of settling disputes within the company.
What assets do you believe your previous education and experience contribute to your thought leadership in this legal segment?
My two brothers and I do not only have a legal education, but in addition to our law degree, have graduated from Polytechnique, which is one of the most prestigious scientific schools in France. My brother Hervé, in addition to his law degree in France, graduated from a business school (HEC) and has an LLM from Harvard Law School. This generally allows us to have a more global view in order to answer to the questions and needs of our clients.
As a family owned firm we also understand the stakes for family companies both as regards legal, economic and tax aspect. As well as the underlying human relationships, this gives a unique capacity to provide solutions adapted to our clients’ needs.
As a thought leader, how are you helping to develop or implement new strategies and methods of helping your clients on family company legal matters?
We have conceived and set up a specific mode of transferring family interests. We have named it ‘Family Buy Out’ and we have registered it as a trademark. The process combines a donation, a sale and an equity contribution. With increasing life expectancy, the owner of a company can no longer afford to simply transfer his shares free of consideration to the next generation. He needs to also sell part of his interest to be able to secure some capital.
An innovative legal tool, this technique is now widely recognized in France as the most efficient way to transfer family companies within the family.
You authored a publication titled ‘The transfer of family businesses’ (second edition in 2014); what was the overall scope and conclusion of this book?
I wrote this book with my two brothers and it describes French legal and tax rules applicable to the transfer of a company within the family. This book contains a long development on corporate governance in a family owned business based on our practical experience in this field. We have tried to be as practical as possible and give as many examples as possible. The main message of this book is to succeed in the transmission of a family company to the next generation; you should always take into account the duration of the relations in the family and the need to satisfy all members.
On the matter of management technology, Lawyer Monthly is pleased to introduce Pekama, a legal management technology platform that links lawyers and clients, emails and documents, tasks and deadlines, all from one screen.
Here to explain how it works, its benefits and how it fills the voids the technology industry is missing, is Zeev Fisher, CEO & Co-Founder of Pekama.
Can you describe briefly how you came to found Pekama?
I was trying to improve my private practice and at some point, it occurred to me that using technology is the most sustainable way to do that. It started with going completely paperless about 10 years ago, when it was almost unheard of, adopting the cloud very early on and continuing on a constant journey to automate as much as possible.
At some point, I realized that we simply can’t get the legacy products to do what we wanted, so we started building our own. The improvement to my own firm’s workflows was so overwhelming that I started asking people about it; I was repeatedly told we should spin it out and have others enjoy it as well. I was introduced to a first potential investor who said he wishes to invest straight away and subsequently introduced me to three more investors, all of whom agreed to invest. This was then followed by another 10, including a prominent law firm, so it seemed quite clear that we had something good going.
What are the top assets that set Pekama apart from other management systems for law firms, making it a thought leader in its field?
Pekama solves the single biggest issue that lawyers are facing – communicating internally and externally with clients. The average lawyer receives about 120 emails a day and spends over 50% of its time dealing with them – filing them, searching for relevant information, dealing with attachments, responding etc. This is the single biggest problem that lawyers have and none of the existing tools remotely touch on this problem. Big firms have legacy document management systems that also deal with email, but these tools are slow, manual and expensive. Small firms don’t even have that.
We managed, without a modern interface, both on desktop and mobile, to solve this problem completely, in an efficient and easy-to-use solution. Beyond that, Pekama integrates modern tools such as Xero and Box for document management, allowing its customers to build its secure and compliant tool set of best-of-kind applications. As a cloud and fully mobile solution, Pekama allows lawyers to be completely infrastructure independent and operate in a full scalable environment.
In the particular context of patents trademarks, Pekama also comes with the added benefit of data services automatically connecting to patent and trademark databases and fetching data automatically. Normally this type of work is done by expensive support staff.
How does the successful use of Pekama’s services logistically translate into increased profitability and efficiency?
The research shows that in other industries, similar project management tools saved over 30% of the time, and often 50% of the time, of the relevant parties. Beyond the profitability and efficiency, Pekama also delivers a modern and impressive client experience.
As a thought leader in the use of cloud services, what challenges would you say this technology sector is currently facing and what are the solutions ahead, or which Pekama provides?
With the issue of compliance recently resolved, there is no doubt that we will see lawyers, as accountants before them, moving to the cloud in increasing numbers. Early adopters will likely benefit from a higher market share and an increase in profit.
Is there anything else you would like to add?
As thought leaders in the cloud space, we provide free information to anyone interested in legal technology and how it can benefit a legal practice, I firmly recommend joining our free newsletter here. We look at modern technology and legal, including practical product reviews and guides.
Forensic Expert Witness Services of the Year 2016: Lawyer Monthly Magazine
Dr John Douse
BA, MA, D,Phil (Oxford), FRSC, FCSFS, F ChromSoc, MIExpE, MEWI.
I provide expertise in the fields of explosives, gunshot residue, drugs, toxicology, DNA and forensic chemistry. A full account of my casework including comments on my performance by instructing parties can be found @ forensic-expert.org.
After Oxford, my forensic experience included 14 years at the Metropolitan Police Forensic Science Laboratory and the Forensic Explosives Laboratory, 16 years as an independent forensic expert, and 25 years military experience in the reserve (including experience culminating in becoming a Special Forces regimental demolition instructor).
My research pioneered the current methods used for screening forensic extracts for traces of explosives, organic gunshot residue, and date rape drugs, along with the development of methods for the investigation of sexual offences.
Asa result of this research, carried out with my ever more sensitive detection procedures, I introduced, the quality control procedures, involving the use of clean room technology in forensic trace analysis, and which procedures are now used world-wide in all applications of forensic trace analysis (e.g. DNA).
This research culminated in my analyses carried out in the investigation of the Pan Am 103 Incident (Lockerbie), Hyde Park Bombing and Libyan Embassy siege among many other cases.
The edge that I bring to forensic expert witness work arises as a result of my ability to routinely exceed the expertise of other experts.
This is achieved due to: a more comprehensive knowledge of the most very recent peer reviewed literature, my prior research and also practical expertise in each subject, the sheer degree to which each and every case is investigated (described by one defendant (in 2016) who was acquitted, as being “relentless"), and the ability, as a result of long experience in dealing with very complex cases, to produce concise effective reports to tight deadlines, even in the most complex and demanding cases, often where expertise in several different areas is urgently required.
The ability to include the very latest published research results (including those released just before, and even during the trial itself) is often a game changer, as new fresh insights frequently emerge as a result of such novel publications.
I am called upon to provide expert evidence in the most complex and serious of criminal cases (murders, major terrorist incidents, rape, assaults, drug seizures, Coroners inquests, high value insurance claims, HSE prosecutions of companies, repatriations from Syria etc.), and I have also contributed scientific evidence to several major public enquiries. I am often called in at very short notice, when other experts have been unable to assist the Court, and also am instructed by private individuals as a result of their analysis of my performance detailed on my web site.
Since the Lawyer Monthly award, probably one of the best examples of my work in the field of explosives was completed, and which involved an attempted criminal prosecution of a major international defence firm.
In this case, logical analysis and discussion of the evidence with the opposing expert, resulted in all of the referred complaints having been accepted to have been without scientific foundation. This outcome resulted in the saving of many millions of pounds in fines, and where the defence team described themselves as “having been delighted” with every aspect of my work.
What are the most common cases that you deal with in regard to forensic chemistry?
I deal with the most complex criminal cases, (often high profile), where there is a significant element of possible doubt, and where the consequences of being found guilty are likely to attract the highest penalties.
This forensic casework requires extremely detailed analyses of all scientific and circumstantial evidence and which can routinely take anything from 100-400 or more hours work. It should be noted that the analysis of the circumstantial details of cases if often critical in regard of the significance of traces of materials such as explosives, sexual offences traces and DNA. Thus such exhaustive investigations in some DNA cases have resulted in e.g. the finding that complainants may have had unrestricted access to crime scenes between the time of the claimed offence and the scenes of crime investigation.
It is readily apparent, in the cases presented to me for investigation, that if detailed and thorough investigation were replaced by a simple few hours of analysis, and acceptance of the prosecution findings at face value, then it is likely that this could in some cases result in erroneous trial conclusions.
Examples of my experience in such matters are a euthanasia case (2016), where the charge of murder was dropped upon my revealing, at the defence examination, that the presence of a prescribed, very powerful and hazardous drug, (fentanyl), had been missed by both the prosecution study and analysis of the case.
This case also exemplifies the current serious underfunding of the Legal Aid Authority, as one quarter of my fees could not be paid, (i.e. were required to be carried out pro-bono) and which situation should be noted to affect a significant proportion of all of the cases that I am involved in, regardless of the critical importance of my work to the Court in achieving the true and correct case outcome.
A similar example of the need for the thorough examination of the circumstances of every case occurred also in 2016, where a charge of death by dangerous driving appeared clear cut, but was however found, upon further investigation, to have been likely to have been due, in most part, to the very poor state and design of the vehicle, and also where much, if not most, of the drug and alcohol use appeared to have been post incident.
This situation was only revealed by my repeated and careful questioning of the highly traumatised defendant in prison, a procedure undertaken much against the considered opinion of the Court.
A further example of the importance of thoroughness in investigation involved an explosives case, where an estimated 250,000 pages of downloads were rapidly prioritised to 18,000 significant pages, then summarised into three reports (220, 96 and 26 pages each) and where all section 58 charges were dropped as a result of my detailed analysis.
What do you find are the most difficult cases to provide analysis for? How do you navigate these complexities?
The most difficult cases occur where time is extremely short, i.e. when instruction is received just prior to trial or mid trial.
An example of such a situation was a complex case involving chemicals, fireworks, explosive manufacture, cannabis cultivation, and medical cannabis usage by a vulnerable adult. In this case potential instruction had occurred six months before the trial at the Old Bailey, and where the report of another expert, (instructed in my place), was subsequently found to have been unable to assist the Court.
Instruction ten days before the trial (including 1000 pages, three defence visits all over the country, examination of many hundreds of exhibits, and the need to interview of the defendant - 100 Hours) resulted in the preparation of two reports (one involving explosives, and one regarding cannabis cultivation and medical cannabis usage), with the outcome that the serious explosives charges were replaced by a suspended sentence and a fireworks ASBO.
You have years and years of experience in several laboratories, from explosives to police labs; how do you feel this has contributed to your extensive leadership in this legal segment?
The length of experience has led to the ability to very quickly read and summarise vast numbers of pages of case files and downloads (the latter skill often being due to having previously used such downloads practically (e.g. in military explosive trials) or having read and reported on them in previous trials).
The ability and the time (as an independent expert) to search the internet effectively, without fail and in every case, in order to access the most recent papers (these sometimes being published up to the day of the presentation of evidence) and which can influence the trial outcomes, is also critical.
An example was information on the reported occurrence of instantly forming “super dense fogs” nucleating on solid particulates. Interestingly the experience of such instantly forming “super dense” fogs arose out of a prior military experience during a live ammunition training ambush exercise, on a cold November night, and where a rocket flare was observed to have caused immediate white out of the range precluding the ability to engage the targets.
The ability to draft very extensive reports (often in several areas of expertise and which may overlap) and that have the correct balance in regard of assisting the court rapidly is also important, especially when time is very short.
The ability to consider the case details from the view of the suggested intention, (e.g. by ascertaining the optimum ways of administering toxins such as ricin or nerve agents, or the most effective ways of concealing polonium), is also a critical skill and that is highly related to the experience of operating a forensic laboratory, where the possibility of every conceivable toxin or explosive must be considered to ensure that traces are not missed.
The ability to assist Counsel in Court, in a timely, efficient and rapid manner, through the provision of a wealth of challenges during the live prosecution evidence is also critical.
A recent example (August 2016) involved the need to analyse, mid trial, a notebook containing over 700 references to different legal high type drugs, and also herbal and ancient native traditional psychoactive compounds; and which was required to be carried out continuously over a week using a hotel bedroom as an office, with the production of several reports to very tight deadlines.
It should be noted that often the ability to analyse and correlate case evidence from a general scientific point of view is the skill that is required, as the cause of an effect or trace may have an origin that is not obvious to a lay instructing legal team.
Thus an issue regarding the appearance of a pair of trainers in a photograph (carried out on the last day of a six month murder trial) turned out to involve the different light in the photographic studio (compared to the scene at night) causing other patterns to arise by fluorescence (an area of chemical expertise) thus preventing an unequivocal comparison (resolved by repeating the prosecution photography of the exhibits on the last night of the trial).
Similarly an accusation of deliberate murder by poisoning by a care home was revealed to have been likely to have naturally arisen as a result of a pharmacogenetic cause resulting in the victim being unable to excrete the prescribed tranquiliser in question.
In the case of explosives the practical military experience of making and testing improvised explosives devices, (at times when such activity was authorised by the Secretary of State for Defence), having instructed others in the creation of such devices, the rehearsal of the use of such devices under circumstances parallel to those that defendants are accused, actual use of clandestine recipes, and also chemical expertise in the synthesis procedures used in explosive preparation, are all critical to being able to assist the court in such matters.
Over your years of experience what have you found to be the biggest and most impacting changes in technology and infrastructure that have helped your work in forensic science?
By this means the agreed scientific evidence can be prepared for the Court, and can allow the Judge to control the introduction of the agreed evidence to the Jury, in a manner appropriate to each case.
Thus immediate access can be gained, from an office, to all of the most recent publications; even permitting the identification of publications that can reveal new insights that can alter the outcome, right up to the trial date or even mid trial.
This phenomenon can occur in regard of the subjects both in my areas of expertise, and also in areas of significance outside of my expertise; an example, only a few days ago, being the publication of the identification of the mechanism of cardiac death of individuals during defaecation due to use of the Valsalva manoeuvre: a factor in possible alternate explanations of death due to stimulant drug abuse.
It also should be noted that it has now become critical, in this period of austerity, that every forensic expert (who has had the opportunity to read the entire casefile and medical notes, attend defence examinations, and who has had the opportunity to interview the defendant) should realise that they may have been the only scientifically trained person who will ever access all aspects of the trial evidence; and therefore that they should be constantly aware of the need for any significant forensic evidence in any area of expertise that might assist the Court, to be brought to its attention for consideration by other appropriate experts. It should be noted, in this regard, that I am frequently asked to perform this service by instructing Counsel.
Such an example of this phenomenon was the death by driving case previously mentioned, and where questioning of the defendant by myself (additionally in regard of the circumstantial evidence in the case) revealed that the vehicle was seriously under-maintained and possibly ill designed.
This finding allowed the appropriate vehicle expert, who had not had the opportunity to interview the defendant, to further investigate and opine on this new evidence and hence to influence the case outcome significantly.
In this regard the ability to relate to a highly traumatised individual and gain their confidence in order to try to elicit the truth is yet another essential skill of a forensic expert.
It should be noted that while in England DNA-17 technology has been introduced, which provides greater discrimination especially in mixed profiles, the Scottish Laboratory now has deployed DNA-24 which has potentially even greater discriminatory power.
It should be noted that reproducibility of duplicate profiles will need to be improved if human interpretation is to be replaced in part by machine interpretation.
However it should be noted that the need is once more being recognised (knowledge lost on the closure of the Forensic Science Service) that in forensic science investigations, samples must be analysed for every possible drug, and not just for a fixed number of the variants most likely to be encountered.
An example of such a situation was the euthanasia case mentioned above, where fortunately as a result of my thorough study of the case file, and re-interrogation of the electronic mass spectroscopic record at the defence examination, the more likely true reason for the death in this case (the presence of fentanyl) was able to be ascertained, and the murder charge abandoned.
However it should additionally be noted, in this case, that it was fortunate that this was a prescribed drug and thus its administration was therefore recorded.
Such an opportunity in other cases might not be available if an illegal drug was implicated, and where the possibility can be seen to have the potential to exist that a significant contributing toxic compound might have the potential to remain unidentified.
As an expert witness on the array of chemicals, materials, and the impacts thereof, to what extent do you get to engage the full capacity of your expertise?
Every case, however seemingly simple, is unique and must be exhaustively investigated in regard of circumstantial, medical and analytical evidence; in order to eliminate possible innocent factors and occurrences that could affect the outcome of the case.
This requires in every case a reanalysis of the entire literature of the scientific subjects involved, in order to be certain that no new research has been published and that might have the potential to provide new insight into the case situation.
A recent example of this was the publication of a critical new detailed paper on research into the mechanism of TATP synthesis and that was published the day before a report was completed.
In this regard instructing Solicitors and Counsel need to be aware that brief analysis of the case by a lay person can indicate which type of expert to instruct; however an alert and experienced forensic expert can often provide a wealth of other evidence that can often greatly assist the case.
Do you often work alone in your instructions or do you work alongside a team? What are the benefits of this?
Initially I work alone, under guidance by the instructing solicitor and Counsel, as the intensity of the study and work leading up to the preparation of a report precludes team work at this initial stage.
Later e.g. at barristers’ conferences, and also at court in expert witness conferences, the opportunity to work as a team becomes more prominent and assistance is often given to the Court additionally by this means.
Many novel defence strategies are discovered for the first time by myself (e.g. the gunshot residue defence that police cars, personnel and premises etc. had the potential to be likely to have become contaminated by gunshot residue and propellant components, this having been achieved as a result of my multidisciplinary expertise through reading research papers in the field of explosives).
I retain such observations for use when I am instructed, and at this time possess many scientific defences in a variety of disciplines that other experts may have yet to become aware of.
From changes in pension benefits, to redundancy rights and outgoing packages, employment laws mould the way businesses operate, in terms of human resources, financial impact and regulatory compliance. In order to keep abreast with the latest changes, employment specialist law firm Ogletree Deakins offers expert knowledge and advice for its clients.
Here Carson Burnham, Head of the firm’s International Practice Group, talks to Lawyer Monthly about her thought leadership in this area, and provides insight into the simplest and most complicated of employment benefit issues that can arise, and how these can change from country to country.
On employment matters, what are the most common issues you advise businesses and private clients on?
My clients generally are US headquartered-multinationals with operations outside the States. They must deal with the challenges of managing employees in jurisdictions with employment laws that are dramatically different to those we understand well here, since – outside the US – employees have a contractual right to continued employment on the same or better terms as they move forward through their careers as they did on the day they were hired. From a strategic perspective, this limits any organization’s ability to make decisions that would amount to a unilateral change to terms and conditions of employment. As any leader of an organization will tell you, it is unrealistic to expect to operate in today’s world without changing corporate strategy, which in turn changes people’s jobs. My role is to advise our clients in how to implement those decisions, while staying within the legal framework available to them.
I most frequently advise on carrying out day-to-day management decisions outside the US, such as workforce planning following or in connection with acquisitions, employment terminations, establishing as an employer in a new country, implementing changes to non-US employment policies to make them consistent with one another worldwide, and executive hiring. A large part of my practice also focuses on workplace ethics investigations and their aftermath.
Do you work mostly alone in this arena or alongside a team? How do you apply thought leadership in your work as such?
I lead a team of lawyers in the US, the UK, Germany, Mexico and Canada who work together to resolve our clients’ cross-border matters in a way that works best for them. We also work hand in hand with lawyers from independent firms all over the world. Having come from an in-house environment prior to founding this practice here at Ogletree, I developed a staffing model for matters that is different than what one typically sees in private law practice. Rather than taking a staffing approach where partners have separate cases and associates may be assigned to the case, we approach our matters as a team, assigning two or more senior lawyers to each matter to serve as point of contact for the client and to ensure that we get their work done within their timeframe.
The remainder of the group works to support a project lead however may be necessary at the time, without regard to title. What matters is who has the expertise and how can they help. This means that at any given moment, when one of us is unavailable, others are informed and can step in to maintain our service in line with our clients’ expectations, without having to introduce new people to an issue or to reinvent the wheel. We are all located in separate geographies, so we use technology very effectively to maintain a virtual office. This works wonders in communicating efficiently and ensuring that the entire group knows when support needs to be directed in one direction or another based on urgency. Because the nature of our work requires the ability to operate flexibly across time zones, the dedication that this team has to supporting one another is what makes us successful. We take comfort in knowing we can truly rely on one other to step in and collaborate to take care of our clients.
Have there been any recent US law amendments that would affect the way you work with employment matters?
The continued focus on enforcing the Foreign Corrupt Practices Act on conduct by affiliated entities of US corporations impacts our investigations work, as we know that ethics issues that arise need to be viewed not just as potential violations of local law and not just as local employment- or labor-issues, but need to be reviewed and addressed with the scrutiny applicable in the US under our corporate ethics standard. The increased prevalence of attempts by employees outside the US to raise “whistleblower” claims under Dodd Frank/Sarbanes-Oxley has also affected our work, in that these claims also apply to allegations of corporate fraud on an extraterritorial basis. Although there has not yet been resolution as to whether the whistleblower protections of these laws apply to the claimants themselves, the “bounty” offered by the SEC to these potential claimants is perceived as attractive enough to continue their momentum.
Of wage & hours, contract breach, performance management, disciplinary, redundancy or maternity issues, which incites the most disputes in businesses and why do you think this is?
Redundancy issues. As an initial matter, these are the types of corporate restructurings that are often driven by finance decisions, and the true costs of international layoffs are rarely known to US based Finance teams. Here in the States, we consider layoffs to be generally fixed-costs, whereas abroad – in Central Europe or Asia, for example – what amounts to statutory severance entitlements rarely (if ever) reflects the actual cost of a layoff. In these regions, in fact, there are strict restrictions on the right to terminate for economic reasons, so a company is faced with having to undertake a finance-driven restructuring that would qualify as “unfair dismissal” under local law.
The practical impact of that reality is that companies are often forced to negotiate separations at much higher costs than what would appear if the statutory or contractual severance entitlements in employment contracts were the only consideration. In addition to the frustration this causes for US multinationals at the management level, it causes equal (if not more) frustration in the jurisdictions where these actions are carried out, when employees and/or labor tribunals perceive that Americans neither know nor have respect for employee protections under local law. At a time of incredible pressure at the personal level and at the corporate level, this is often when disputes arise that have long-term effects on an organization’s culture.
You coordinate and implement compensation and benefits practices for businesses worldwide; which jurisdictions would you say cause the most complications for your clients?
France. French employment law is among the most protective in the world, and it is commonplace and culturally acceptable for employees to routinely refuse to accommodate adjustments to rights, compensation or benefits. Further compounding matters, there are intensive and detailed procedures required in order to institute any kind of compensation or benefits practice, the failure to follow which can result in an injunction against an organization. Even when procedures are followed, each affected employee must agree to accept the new programs. The cultural conflict between how businesses operate and how employees consider their jobs described above is best illustrated in this jurisdiction.
How does being a member of the International Labor & Employment Law Committee, as well as many other associations, contribute towards your thought leadership in the global employment arena?
We are continuously growing and developing our service offerings and our teams based on our relationships with good lawyers, all over the world. It is through committee work like this that we are fortunate enough to meet lawyers with an entrepreneurial mindset – who understand that the world is growing smaller and smaller every day in the field of global commerce. We form close professional relationships with one another through our committee work, and develop a nuanced understanding of one another’s strengths such that we can pull together colleagues on a global basis when an urgent need arises for one of our clients. I would not have been able to build this practice and maintain its current trajectory without the generosity of my colleagues all over the world with their time, their ideas and their flexibility. It is an honor for me to be part of a community with the common goal of improving legal services worldwide.
This month’s legal game changer is one of a kind. Lawyer Monthly is proud to present Mr. Musthafa Zafeer O.V., Founder & Managing Director of Musthafa & Almana, an Asian global legal and financial advisory firm operating internationally.
Over the next few pages, Mr. Musthafa Zafeer O.V. talks to Lawyer monthly about several ways him and his firm have ‘changed the legal game’, set precedents in the development of legal talent, and changed the perspective of the legal world through their innovative initiatives.
Mr. Musthafa Zafeer O.V. also discusses the route he pursued through the years, his inspiration in becoming a lawyer, and the advice that pointed him in the right direction. With a mind for innovation, this game changer is a formidable example of a passionate and service-hearted lawyer in a complex world of shifting regulation and unreformed injustice.
Admitted to the bar in 1987, Mr. Musthafa Zafeer O.V. is in his 30th year of legal practice with rich experience in litigation as well as in non-contentious and transactional practice areas. Mr. Musthafa Zafeer O.V. is a pioneer in multi-jurisdictional issues and cross border transactions. As one of the most sought after legal expert and thought leaders in UAE, he has been instrumental in structuring and advising major investments in the region and the Indian subcontinent. He has authored several articles and opinion pieces for major newspapers, magazines and legal journals and is a permanent speaker in many legal and business workshops and seminars conducted in UAE, India, the US and the UK.
He is one of the permanent faculty members of Dubai Judicial Institute (DJI) and Sharjah International Commercial Arbitration Center (SHIAC) and his expertise in both common law and civil law makes him one of the unique legal practitioners of the current generation. Mr. Musthafa Zafeer O.V. is also a Corporate Service Provider to the RAK ICC, and the Ras Al Khaimah Investment Authority (RAKIA).
Under his leadership, Musthafa & Almana has achieved many accolades and the firm now has a unique positioning as the first Asian global legal, business, management and FDI consultancy firm. Also, his unmatched business intelligence and legal acumen has resulted in Musthafa & Almana introducing unique and innovative concepts that help corporate entities as well as individuals to legally streamline their businesses and personal matters.
Mr. Musthafa Zafeer O.V.’s areas of specialization include the business laws of UAE, India, the UK and the US with specific expertise in mergers & acquisitions, franchises and joint ventures. His expertise in FDI related laws of UAE, the United Kingdom and India enables him to advise and provide expert legal services to foreign investors on entry and exit strategies in various sectors including real estate, hospitality, insurance, sports & entertainment and healthcare. He is considered as a pioneer in many unique practice divisions and has the rare distinction of being the first lawyer in Asia and Middle East having expertise in Fashion Law and Music Law, apart from the conventional practice areas.
Musthafa & Almana is a firm with presence in four countries, UAE, India, the UK, and the US. The firm was founded as a law practice in India in 1992, in the state of Kerala, by Mr. Musthafa Zafeer O.V. and Mrs. Almana Zafeer, the founding partners.
The firm’s expertise lies in providing bespoke and innovative solutions to our clients’ requirements, while leveraging our deep understanding of the unique cultural and commercial nuances that exist in each jurisdiction that we operate under. Our clients span multiple industries and sectors and range from start-ups to government entities.
Our experience has enabled us to capture the true spirit of doing business. We are passionate about innovation, entrepreneurship and law. Consequently, we evolved from a full service legal firm in India to a business and FDI consultancy firm, growing organically with the needs of our clients.
For over two decades, we have placed emphasis on fostering long lasting relationships with our clients and other key stakeholders in the jurisdictions we operate in. The depth and scope of our advisory services and our unrivalled understanding of the business dynamics of our focus industries distinguishes us from our competitors.
In 2015, Musthafa & Almana launched two of Mr. Musthafa Zafeer O.V.’s unique and innovative concepts, which aim to support aspiring entrepreneurs and established business groups namely MASS (Musthafa Almana Start up Support) and IAS (Internal Arbitration System).
Another project we have launched is Destination Dubai – Legal Route for Investments, our flagship platform for facilitating UAE inbound investments. We have partnered with a range of state and federal institutions for this purpose. As a trusted advisor of longstanding repute in the region, Musthafa & Almana plays a key role in attracting strategic and financial investments to the Dubai jurisdiction which provides a robust and welcoming investment environment. More information on this and all the other projects we engage in can be found on our website at www.musthafa-almana.com.
WINNER GOLDEN PEACOCK AWARD 2016
In 2016, Musthafa & Almana was awarded the prestigious Golden Peacock Innovative Service Award 2016 for creating a legal framework for the unique ecosystem comprising of the innovative initiatives listed above, among others. The Award instituted by the Institute of Directors, India is regarded worldwide as a benchmark of Corporate Excellence. The Award jury was headed by Mr. Justice Venkatachaliah, former Chief Justice of the Supreme Court of India and it was presented by His Highness Sheikh Nahyan bin Mubarak Al Nahyan the Hon’ble Minister of Culture, Youth and Social Development, UAE at a glittering Award function held in Dubai on 19th April, 2016.
Why would you say you are a Legal Game Changer within your field?
All throughout the globe lawyers depend on litigation and arbitration as a means of service and business, but these are two bi-products of the sector, and any industry that depends on bi-products cannot have thriving businesses. This scenario is exactly what has happened for the legal world and its lawyers.
Our initiatives, which tackle this scenario, are what makes our firm a game changer; including our first ‘Legal Lounge for Business’, which we launched in 2007. The game began to change when we started illustrating to the public and to businesses that law is a positive tool. In this day and age, most see the law as a negative object, but it should not be seen as such, and through this initiative we have tried to change this perspective.
Another concept or platform which we have launched under our banner is the Musthafa Almana Startup Support (MASS), which we launched in 2015, and is in fact the brainchild of our elder son, Azhan Backer, who is the CEO of MASS.
MASS is uniquely designed to enable groundbreaking ideas to crystallize into change-making organizations. We do not focus on the traditional metrics. We ensure that resources, be it capital or time, flow into ideas that have the power to transform societies and communities. We are looking to enable a paradigm shift in the way capital is being employed today.
Through MASS, we serve as a platform for seed-stage and early-stage companies that address key global challenges and leverage our extensive expertise in the legal, financial, technical, and public sector domain to scale up these companies. We are breaking the conventional labels that are employed today and we look to transcend the role of a traditional VC or an incubator and are committed to create a platform that can blood innovative ideas. We want to work with entrepreneurs and entities that share our vision to create micro and macro ripples in the system.
Another game changing contribution is in the dispute resolution domain wherein a significant role has been carved out for legal professionals to use their negotiating and problem solving skills for resolving issues without taking them to Courts. According to me, the first step in solving a problem is in recognising that there is one and then look at it judiciously, ethically and morally. It is this concept that has been included in the IAS project. Since its introduction we have been flooded with requests to resolve issues using the platform, and I am proud to say that within 10 months of its introduction we could resolve a major dispute between a Business Corporation in UAE and their Counterpart in India, which was in the courts for more than four years, over the proprietary rights of the business in India. We managed to reach out at a settlement through sustained dialogue and applying the IAS methodology, within just six months of the matter being put into our Internal Arbitration System.
Our latest initiative on the innovation front makes us the real game changer; the first ever Legal Innovation Centre, namely Musthafa & Almana Legal Innovation Centre (MALIC), which will be located at Smart City, Kochi, India, and is a state of the art facility, the first of its kind, dedicated to testing, launch and incubating start-ups in the legal industry in Asia & Middle East.
Many older lawyers respond to each new advent of technology in law with either studied indifference or technophobic bravado, ‘I’m useless with computers and proud of it!’ But openness to, and affinity for, the newest tools of the legal trade are now fundamental to competent lawyering (and in several jurisdictions, an ethical requirement too). Software is daily growing its capacity to perform legal tasks. Law is poised to finally leverage its enormous stores of data, and you’ll need to know the analytics involved. Law will never again be an exception to the rule. The basic concept of MALIC is to bring law & technology together for the betterment of communities.
You can see that we started as a normal law practice in 1992, and have since evolved ourselves into a global consulting firm, and now the first legal innovators on the move, and I feel that it is this unique and unconventional approach that has given us the tag LEGAL GAME CHANGER.
How comprehensive is commercial law in UAE in? Do you think there is room for more clarity? How does this compare to the UK/US?
When we talk about any legal segment, we have to approach it pertaining to the legal system that is in place. Although the core principles of law in the UAE are drawn from Sharia law, most legislation is comprised of a mix of Islamic and European concepts of civil law, which have a common root in the Egyptian legal code established in the late 19th to 20th centuries. The French influence is most clearly demonstrated by the adoption of the civil law by most countries in the region, similar to those in European states, rather than the common law system in the UK.
In addition to specific legislation covering agencies, company law, labor law, and intellectual property, the UAE has enacted civil and commercial codes. In the constitutions, Islam is identified as the state religion as well as one of the principal source of law. However, although the principles of Sharia influence criminal and civil laws, the direct influence of Sharia in the UAE is primarily confined to social & personal laws, such as family law, divorce or succession.
When you look at it from this perspective, our commercial legislation can be assimilated to that of commercial laws in Europe. In terms of clarity and transparency, from a foreign investment perspective, almost every country has programs implemented for the purposes of attracting foreign investment, but not every segment is open to FDI.
In UAE, foreign investment regulations could be clearer. At its core, one primary rule is that all domestic mainland limited liability companies shall have a UAE National as 51% equity shareholder in the business, leaving only 49% available to the foreign investor, even though he has invested in full for the business. However, in UAE’s ‘free trade zones’, which are scattered throughout Dubai, Abu Dhabi, Sharjah, Fujairah, Ajman, Ras al Khaimah and Um Al Qwain, foreign investment can take place in the form of 100% ownership.
Having said that, for the last 40+ years people have been investing here, and it’s safe to say that UAE is quite a young nation, both in terms of law and industrial and financial growth. The legal systems of the UK and the US, for example, have been established for over 400 years, with a history of progress throughout. Therefore there cannot be a comparison between the legal systems there and that in UAE.
In addition, UAE has been the first country in the GCC, and Dubai has been the first Emirate in UAE, to have a dual legal system; we have the Dubai International Financial Centre (DIFC) Courts, which is a common law Court which deals with only commercial disputes, and we have Dubai Courts which follows Civil Law, UAE’s primary legal system. This has proved very positive, by the works of the government, in allowing investors to feel comfortable and safe,
as they have a fantastic and advantageous infrastructure to do business.
What legislative developments in commercial law would you like to see happen in UAE?
My main playground, in terms of common law, is India, where I started my career. In India, the law is as transparent as it can get, and the nation has made huge steps in recent years. UAE is now catching up with that, and has recently introduced many new legal directives.
This month the World Economic Forum (WEF) declared UAE one of the safest places in the world to do business, and alongside other common law developments, also in several of UAE’s regions, we are increasingly excited about the future of this nation, and what our firm can do to contribute.
What major differences and similarities have you found between commercial law in UAE and its neighbouring Middle East jurisdictions?
UAE’s Legal System, as per the other legal systems in the Gulf, is usually quite simple. While comparing the neighboring jurisdictions I would rather confine to GCC jurisdictions, and in my opinion those unfamiliar with their workings can find this region very difficult. The fact is that these systems are completely different to those in the west, with a whole different language, which makes it worrying for those who want to transact in business in the UAE and the Gulf states.
Although these systems are different, the basic legal principles and structure are logical and understandable. They have evolved over many centuries, in a similar way to the west and, especially in the UAE, are adapting to the changing needs of society with new developments in thinking for a modern age. More changes in commercial law have also liberalized legal regimes, creating a more open and understandable environment for foreign businesses and investors.
Amongst the Middle Eastern nations, UAE is far ahead in terms of legislative development. Following Dubai’s model, Abu Dhabi has also opened a common law Court called ADGM Court, and so has the Qatar Financial Centre, which has introduced a common law court as well as an arbitration centre.
I would like to see a similar progression and development in Saudi Arabia, a nation that is becoming increasingly idyllic for investment, where more and more sectors are opening up to commerce, and where the market is huge. Saudi Arabia is only just about getting on its feet, and while for now we don’t have many clients in Saudi Arabia, we have built relationships and connections on the legal front. Unfortunately in Saudi Arabia, foreign law firms are not permitted to operate, but recently we have received several invitations to engage in matters there, especially since we started provided consulting services.
As a game changer, how do you assist entrepreneurs and start-ups in their legal matters?
As mentioned earlier, one of our latest initiatives has been the introduction of the ‘Legal Innovation Centre’ in India, which should be up and running in 2017. Although similar centres exist in the US and Canada, there they are administered and funded by the government, while in this case, the centre is governed by a private sector entity, making it a first of its kind.
One of the concepts this incorporates is that of ‘legal incubation’ for young legal practitioners. I began my legal career like many lawyers do, first as a trainee, then a junior, an associate and so on; but this is a risky and competitive market, and in order to attract clientele a supportive system is crucial. To this end, our legal incubation segment allows young legal practitioners to come and ‘incubate’ within our firm, for however long they wish to, and at whichever stage of knowledge and experience they are at. In doing so, they can learn, develop, and grow with the support, help, encouragement and expertise of experienced peers.
As an example, a qualified lawyer may join us for ‘incubation’, and in promoting the firm’s brand and attracting clients, can be served with the assistance of our lawyers, as flexibly as they would like. He/she would have the liberty of taking a case on their own, or to be helped by our teams. By this system, these future lawyers, the general public, and our firm, can benefit extensively, throughout all the major jurisdictions we operate in.
What is the best advice you have ever been given and what would be the best advice you may give to young lawyers?
On day one of my first legal role, my senior asked me ‘Are you sure you want to become a lawyer?’ I said ‘Yes sir’. He explained that money would come in slowly, and asked ‘Are you prepared to wait?’ I said ‘Yes sir’. Over the years I realised that what he truly meant was: ‘Don’t run after money, if you are a good lawyer, let the money run after you’.
Secondly, the same senior once told me: ‘Even if you lose one crore (10 million rupees), you’d rather lose it than be present in a court as plaintiff, defendant, complainant, accused or witness, but only ever as a lawyer’. He wanted me to protect the interests of the people, and to never be a party to a problem or issue, only the solution.
Twenty-first century lawyers are playing a much more challenging game than our predecessors did, so we need to bring a very particular set of skills to the table. Today’s lawyers are expected to be leaders, innovators, and strategists, and are also expected to be managers, systems analysts, and business advisors. Everyone’s sleeves should be rolled up now. Nobody gets to just ‘do the work’ or ‘stay outside the business’. You need a wide range of proficiencies and capabilities, acquired and developed through exposure to best practices in several industries and professions outside the law.
It’s 2016; my advice to young lawyers is that ‘It’s time for a new breed of lawyer, a modern legal entrepreneur, more reminiscent of Elon Musk, Tory Burch, Megan Trimble, or James Dyson, than of Lord Denning.’
What do you find most enjoyable about your work and why?
The most rewarding and enjoyable part of my work is seeing satisfaction on the faces of our clients, once we have fulfilled their needs. With different clients, come different requirements and therefore different challenges, and each success has its own reward.
Also what I enjoy is the knowledge I gain from different jurisdictions and understanding the intricacies of various jurisdictions. When you are accepted as a global lawyer, I think that is the best enjoyable position you may experience.
What I tell my team is that our primary concern as lawyers is to bring comfort to the issues and circumstances of our clients, even if that means putting ourselves in discomforting situations.
What led you to embark upon a career in law? What inspired you?
My family, in Kerala, India, was very well-known for our judicial service pedigree, but in my generation I was the only one to pursue a career in law. A silly incident that happened during my school days prompted me to choose law as a career and profession.
It all started when I was on my way to school one day, and in my native town at the time, bus was how we travelled to school. Due to the overcrowding on the bus, that day I had to travel by standing on the footboard of the bus, which was actually prohibited by law as it amounts to travelling dangerously and is an offence punishable under Indian Penal Code and the Indian Motor Vehicles Act; little did I know about the legalities when I travelled on that day.
The bus was pulled over at a police checkpoint, and the inspector called me out from the bus. He questioned me, asked my name and my father’s name, and would not excuse me until he was done asking questions, despite attempting to pardon myself away.
After two days, police men in uniform came to my house; all hell broke loose. This was the first time a uniformed police man had come into our family’s home looking for an accused, whereas usually the police would come to my family house as escorts to my uncles, who were Highly Positioned Judges or statesmen. I was looked at by my siblings and other family members as a “criminal.” At that time one of my uncles was a senior leading lawyer practising in the district court, and he told me to come to his office. As I was shivering in front of him, he told me I would be called to court, and that when I am on the stand and the judge speaks to me, I should say ‘Yes, I am guilty’, and my uncle would take care of the rest.
When the day came in court, I was brought to the defence stand alongside uniformed police men, and the clerk read out the charges against me: that I had travelled dangerously on the footboard of the bus. When asked how I plead, as planned I announced that I was guilty, after which my uncle stood up and said ‘Your Honour, he is under age and therefore may be pardoned under the probation of offender effect’. The judge looked at me and asked whether I would do it again, and of course I said ‘No, Sir’, and was allowed to leave.
The relief I experienced in my heart was overwhelming, and I understood how a lawyer can give comfort and peace; at that point I decided I would become a lawyer and provide the same relief for others. This incident might have influenced my decision to choose a legal career as my life’s profession.
What do you hope to further achieve in throughout 2017?
On the expansion front we will be introducing services to Australia which again is a new jurisdiction. Our first office in Australia is coming up in Sydney. Also, we will be entering Europe by setting up offices in various locations. We have already finalized 2 locations to set up our offices which are Bucharest in Romania and HAGUE in Netherlands.
In ASIA we are opening in SINGAPORE and Seoul, SOUTH KOREA. The year 2017 is going to be very exciting and at the same time very crucial for the firm.
However, the bigger picture for us is that 2017 will be the 25th year that our law firm has been in business, as we started in 1992 in India. Throughout the year we are running several programs and projects, and one of these will be a global women empowerment platform called ‘LYLLY’ (Live Your Life Legally). This program’s mission is to convey the message that each woman on the planet has a right to live legally and respectfully, and real women empowerment can be brought through legal empowerment. LYLLY will be a platform that women and girls can look to for legal awareness, legal support and legal education.
During 2017 we will also be opening at more locations in the UK, the US and India, besides Australia and Europe, making this year a year of expansion and continued game changing for Musthafa & Almana.
Is there anything else you would like to add?
We are now four lawyers in the family. As you can see my principal partner, and co-founder of Musthafa & Almana, is Mrs. Almana, who is also my life partner. Our elder son Azhan Backer is now heading the MASS, and similarly, our second son Zahan Backer has joined the firm after graduating in law from Warwick University, UK, this year. Azhan graduated in law at Warwick University, UK, did an MA in Islamic Finance at Durham University, UK, and an LLM in Commercial law at Cornell Law School, US. Zahan has opted for specialising in Fashion law & IP Laws and is now interning under our Fashion law Practice Division, and at the same time engaging in MASS activities as Deal Flow Executive. I think he has started the same way as I had 30 years ago.
On a personal note, when I look back, I think I have achieved much more than what I thought I would in the beginning, but when I look forward, I think I am yet to achieve much more. My studentship and learning process is always on the move.
Contact Details:
Musthafa Zafeer O.V.
Founder & Managing Director
Musthafa & Almana
Tel: +971 04 38 69 993
Fax: +971 04 38 69 994
www.musthafa-almana.com
www.mastartups.com
From Spain to Peru, this thought leader has made huge steps in the development and implementation of business projects that not only attract FDI, but also contribute towards the overall economy of a developing nation.
On the matter of foreign investment, Lawyer Monthly hears from Dr. Ángel Castro Rivera, Partner at MG Abogados Peru & Spain. Here Ángel discusses the rapid growth of Peru’s economy, its challenges over the years and to come, and touches on the firm’s thought leadership in this critical Latin American region.
What would you say are the biggest draws for investors when looking to Spain and Peru as a place to do business?
Recent data on the Spanish economy's performance shows consolidation of the economic recovery. The IMF prognosed that the Spanish economy would grow 2.5% in 2016, registering a point more than the rest of the advanced economies and double that of the Eurozone.
Spain also offers a privileged position as a gateway to Latin America, given their shared past, and their linguistic and cultural heritage. Spain is also the European country with the most Latin Americans, and for this reason is the European business platform “par excellence” to do business with the Americas.
What about Peru?
Rapid growth in global trade and foreign investments in Peru in recent years has made the country one of the 20 most international trade-oriented nations in the world. According to the World Bank’s report ‘Doing Business 2016’, Peru is very much open to regional and international trade and has a favorable environment for foreign investors. Additionally, Peru ranks 15th in international credit worthiness. Among South American countries, The World Bank ranks Peru as 2nd in ease of doing business. Also, the International Monetary Fund (IMF) and Bloomberg L.P. note that Peru is one of the best frontier markets for global investments.
Peru’s sound economic policies have been key to obtaining an investment grade from major credit rating agencies. From 2004 to 2014, Peruvian exports grew from $12.5 billion to $34.1 billion. Peru recorded $7.89 billion in foreign investments in 2014, placing the country high in the top 5 best investment grades in Latin America.
As a thought leader in international business, how do you think Peru could be even more appealing to FDI?
Despite its shortcomings, Latin America, and especially Peru, has seen much progress in recent times. Peru has prioritized social progress and social inclusiveness, has embraced democracy and consolidated the Rule of Law. A favourable external environment, prudent macroeconomic policies, and structural reforms have helped to stimulate high growth and low inflation; thanks to its attractive legal and fiscal framework, Peru continues to attract FDI.
Nevertheless, as in every other economy, Peru still has a Pending Agenda to keep attracting FDI. In this sense, Peru has to keep investing in public health, security and education. Additionally, Peru has to keep working on giving added value giving to its natural resources, despite being a country rich in natural resources that are highly subject to price volatility (i.e. FDI flows into Peru fell in 2013 following the natural resources slowdowns in Latin American and China). Peru's export earnings depend heavily on world market prices in metals and fish meal. According to the World Bank, the main challenges ahead that may have an impact on Peru´s economic growth include the decline in commodity prices and a possible period of financial volatility associated with the expectation of higher interest rates in the US.
How complex are the rules that govern foreign investment in Peru? What EU directives or treaties directly affect this?
Since the 90s Peru has been simplifying/changing/easing its FDI legislation to host and facilitate foreign investments in the country and to maintain the stability required to promote private sector activity and investment.
Investors in Peru have the same rights over their investments as local investors, based on the principle of “national treatment.” Peru also has a friendly legal framework for investments and offers an attractive business environment for both national and foreign investment, including non-discriminatory treatment of foreign investors, unrestricted access to most economic sectors, and free transfers of capital. It is strictly forbidden to apply unequal treatment to investors with regard to prices, exchange aspects, tariffs, non-custom duties, business information, or any other feature with equivalent effects based on nationality, types of economic activity, or geographic location in the country.
The only investments requiring approval are those involving weapons and/or explosives, private security and surveillance, investments in maritime or air transport, and those located within Peru’s borders or in protected natural areas.
During June 2012 the EU signed an ambitious and comprehensive Trade Agreement with Colombia and Peru (valid since 2013) that opened up markets on both sides as well as having increased the stability and predictability of the commercial relations.
What have been the most recent regulatory developments to affect foreign investment law in Peru? How have these affected your work?
Peru has worked alongside 12 of the 21 participating countries of the Asia Pacific Economic Cooperation Forum (APEC) to develop the Trans-Pacific Partnership Agreement (TPP) that has become the most challenging negotiation process between the Asia, Oceania, and the Americas. The TPP paves the way for a future Free Trade Area of Asia Pacific (FTAAP).
Peru has also signed 20 trade agreements to increase and consolidate access to its main trading partners’ markets for its main products, as well as the Free Trade Agreement with the European Union (EU) that has been in effect since March 2013. Peru is currently negotiating additional agreements with Turkey, El Salvador, the Trade in Services Agreement (TISA), and the Doha Development Round. In October 2015, the annual meeting of the World Bank Group and the IMF took place in Lima and brought together finance ministers and central bank governors from the institutions’ 188 member countries.
For the specific case of Europe, during 2013 the ‘EU-Colombia and Peru Trade Agreement’ entered into force, including commitments in the area of labor and environment-related matters, to strive to improve the laws and policies in these areas, and not to lower them in order to attract trade or investment. During 2014, the EU certified Peru’s access to the Schengen System without approval (since the 15th of March 2015 Peruvians do not need a Schengen Visa to enter Europe).
Peru´s new commercial policies have allowed expansion of the Peruvian export market, enabling over 94% of Peruvian exports to penetrate more than 50 countries under very competitive conditions. The main traditional exports of Peru are gold, oil, natural gas, zinc, lead, iron, fish meal, and coffee.
All of the above mentioned treaties and agreements have open up markets on both sides as well as increased the stability, predictability of the trading environment, and the number of our clients, foreign companies and investors with numerous activities in both economies. Our jobs have been positively affected because of the growing number of clients interested in different kind of business opportunities (Private and Public Partnerships - PPP(s) - , Bidding Processes, Import & export activities, Merger and Acquisitions, etc.). Thanks to our offices in Spain and Italy, nowadays our new clients are mostly European.
We are also facilitating Peruvian investors with the execution of their projects in Europe.
What common challenges do foreign clients face when setting up a business in Peru? How do you help them navigate these?
The most common challenges that foreign investors and clients face when setting up a business in my country are: qualifying for the complex bidding processes for major projects; finding reliable partners to form partnerships or consortiums; and cultural nuance and legal uncertainty & insecurity caused by changing its regulatory environment and not having legal advisors with the capacity to offer them comprehensive and trustable legal services.
The development of an extensive legal network, knowledge and relations within Peru allows us to provide specific assistance to European and Peruvian investors seeking new and very profitable business opportunities. We provide ongoing support for European companies who require it in Peruvian territory, for the consolidation of new businesses. We also provide comprehensive assistance, commercial, both extrajudicial and judicial to European companies wishing to create or having links with business and industry throughout Peru. One of our specialties is to advice companies who wish to qualify for the complex processes of bidding for major projects throughout Peru.
How busy and successful have you been with European clients throughout 2016? Were a large majority of them cross-border, or not? What atmosphere do you predict for the Peruvian FDI landscape in 2017?
During 2015 and 2016 we have been very active with cross border clients. We took care of the registration of several European companies, its legal representation, all legal aspects related to their participation in several national projects, biddings and Public and Private Partnerships.
We have become a platform for all European companies, regardless of their size, seeking to set up and extend their business in the European & Peruvian market, offering them all the legal, fiscal, technical and administrative services entailed in any process for introducing and establishing a new business project outside of its market of origin.
As a thought leader in this legal segment, how do you help create new strategies or develop and implement new legislation in relation to foreign investment and financing?
We are always aware and updated about all the changes, international legislation and new trends occurring in the legal world related to the promotion and protection of foreign investment and financing. Our three offices in Peru, Spain and Spanish Desk in Italy are constantly active and exchanging & collecting systematic information anywhere in the world concerning foreign investment and also organizing seminars trying to influence the implementation of new legislation that has a positive impact on business.
For example, one the most feared evils in Latin America has always been corruption and has caused great damage (for international investors and businesses) to its positive image. Nowadays, and since the First Compliance Law Nº 30424 was published (21.04.16), in Peru we are actively organizing different seminars and collaborating with local institutions in order to promote the benefits and future legal changes that have to be made in the Criminal Code and local legislation to be able to create a culture where public entities and companies do the right things to keep attracting foreign investments and clear the governmental hurdles so that business can get up and running quickly.
We do the same within the ABL (www.abloglobal.net), linking lawyers and legal knowledge worldwide. With over 700 lawyers and 51 offices in 32 countries, ABL allows private and public entities an access to a creative and entrepreneurial quality legal advice and trends worldwide. We held two international meetings every year in different countries and during these conferences. ABL members give seminars, take part in workshops on specialist legal subjects (we call it Business Units), and celebrate meetings with local authorities to offer them our assistance in an attempt to promote their commercial advantages and let the world (and our clients) know the specific strengths and investment opportunities in these specific countries.
You have studied international and EU business law in many countries around the world; how has this contributed to the thought leadership you boast in this legal segment today?
What I am today is just the result of my studies abroad! I had the great opportunity to consolidate my legal background and continuing my professional educational development in different countries (mainly in Europe: France, Germany, Holland and Spain) and nowadays, despite my Latin American legal background, I am an incorporated member into the Council of the European Lawyers under the Court of Justice of the European Union (CCBE).
Europe has offered me an important professional mobility and a promissory career. Nowadays I can offer my clients legal advice on a diverse range of subjects and I can assure them that they will receive quality proactive legal advice to enable them to take their businesses everywhere in Europe or Latin America.
Medical negligence and product liability often come hand in hand, and in the case of vaccine injuries, complex disputes require the services of experienced and skilled lawyers. To this end Lawyer Monthly speaks to Anne Carrión Toale, Partner at Maglio Christopher & Toale, a civil litigation firm in the US, who discusses the firm’s thought leadership in this area, and touches on the ins and outs of vaccine injury claims and how they can be dealt with.
How are vaccine injury disputes resolved in the US?
During the Reagan era, Congress created a little-known Vaccine Court with the enactment of the National Childhood Vaccine Injury Act (the Act). This legislation created a no-fault vaccine injury compensation scheme which covers adults and children who have suffered adverse vaccine reactions. Many developed nations have similar programs. In the US, the Act was spurred by a rash of products liability litigation in the eighties involving the DTP vaccine, which threatened our nation’s vaccine supply and immunization rates. Under the Act, vaccine manufacturers and medical providers became exempt from liability for vaccine reactions.
Unlike most tort reform, which benefits corporations at the expense of injured consumers, the Act offered a significant advantage to the injured. Those who have suffered a vaccine injury are relieved of proving “fault” under the Act, which would typically not be possible, and instead only need prove the vaccine actually caused the harm. Vaccine reactions are generally not due to the negligence of the manufacturer, with some exceptions. Instead, genetic and environmental factors likely contribute to most vaccine reactions which are largely idiosyncratic and unavoidable. Awards are paid from a trust fund, which currently exceeds $3 billion, created by an excise tax on vaccines.
Since you became involved with vaccine litigation how have you seen the number of vaccine claims evolve?
The number of vaccine injury cases filed annually doubled after 2005, with the addition of the influenza vaccination as a covered vaccine. The number of claims filed annually continues to rise, with over $254 million in claims paid in 2013, compared to $180 million in 2010.
Because so many doses of the influenza vaccination are given, I have represented numerous victims of Guillain-Barré Syndrome which is associated with receipt of the influenza vaccine. In the syndrome, the body’s immune system attacks part of the nervous system and is characterized by muscle weakness and paralysis, which can be permanent.
The addition of the influenza vaccination also significantly impacted the demographics of vaccine injured claimants. Many more adults than children are now receiving compensation under the Act, which was originally intended primarily to benefit children.
There is a lot of speculation that vaccines may cause autism, has the Vaccine Court addressed these claims?
The Vaccine Court gained national attention in the late 2000s, when an omnibus proceeding involving more than 5000 autism claims was held. In 2009-2010, six tests cases were tried alleging that autism was caused by the MMR vaccine and/or thimerosal in vaccines (a preservative containing mercury). All six test cases were ultimately unsuccessful. A similar proceeding took place in the UK.
With regard to vaccine injuries, what have been your milestone cases with the firm and what were the challenges therein?
The largest settlement I have recovered for a vaccine-inured person to date resulted in a $61 million payout over the lifetime of a catastrophically injured child who received 5 vaccines (for 7 diseases) at her 2 month-old well baby visit. Within twenty-four hours she developed a fever and seizures, suffered cardiac arrest, multi-organ dysfunction and developed severe brain damage. The money recovered will help pay for her medical care, attendant care, home modifications, and residential care once her parents can no longer care for her at home with attendants.
I have also represented a number of severely injured adults whose damages can run in the tens of millions, if they are no longer able to work and need lifetime care. What makes the high value cases challenging is ensuring that any negotiated settlement will include sufficient funds to cover the injured person’s care throughout their lifetime when their future prognosis is sometimes uncertain. Although Congress intended the vaccine injured to receive awards generously and quickly under the Act, in practice the claims are defended quite vigorously by the Department of Justice on behalf of the Secretary of Health and Human Services.
Have there been any significant legislative developments that have changed the way vaccine injuries are dealt with over the last decade?
Unfortunately, no. Several critical changes are needed to the Vaccine Act which can only come about through legislative action. From a procedural standpoint, an increase in the number of special masters available to hear vaccine cases is desperately needed. Under current law, only eight special masters decide vaccine injury claims for the entire nation. This shortage of decision makers has caused significant delays in the processing of claims, although the Court is doing all it can with available resources.
Other needed changes are an updating of the $250,000 pain and suffering cap and $250,000 death benefit, neither of which has been raised since 1986, to reflect current dollars. The time limitation to file claims should also be increased. For many people, it is too late to file a claim once they realize a vaccine caused their injury. Part of the problem is the Vaccine Act has not been adequately publicized, and many parents, the general public, attorneys, and health care professionals are not aware it exists.
Coverage for the Shingles vaccine and certain Pneumococcal vaccines which are not currently covered by the Act, is also needed. These are not recommended vaccines for children, thus they are excluded from coverage. However, this leaves many of our elderly with vaccine injuries for which they have no recourse. It may also be that the Zika vaccines in development will not be covered by the Act, but they should be.
As a thought leader, how are you currently working towards this goal?
Through our bar association of attorneys who represent vaccine claimants, we have retained lobbyists and had meetings with congressional staffers and court personnel to discuss these needed changes. Because the topic of vaccine injuries is so controversial for so many reasons unrelated to the Act, such as mandatory vaccination and outbreaks related to vaccine refusals, it is difficult to get buy-in from legislators to address Vaccine Act amendments.
What are the most common issues that arise in vaccine injury cases, and are the solutions complex?
Complex medical causation issues require medical experts from the fields of immunology, neurology, rheumatology and epidemiology in cases that go to trial. Invariably, a significant body of peer-reviewed medical literature is analyzed by these experts. The special master must then decide the case, keeping in mind that science and law have two very different concepts of “evidence” and “proof.”
What is the range of solutions or actions available to claimants in vaccine injury cases?
Vaccine injury awards can range from $10,000 to tens of millions of dollars, depending on the nature and severity of the injury. Most vaccine claims are resolved by informal settlement. Some cases are referred for mediation and other cases are tried before a special master with expert witnesses testifying as to the causality issue. There is an opt-out provision which theoretically allows a dissatisfied claimant to seek legal redress in the traditional court system, instead of Vaccine Court, but it is used infrequently.
Being a thought leader, you also write a monthly vaccine injury newsletter and vaccine injury blog; what is the scope of these and how do they help you push the boundaries of this legal segment?
My intention in publishing this newsletter is to educate the vaccine bar and elevate the quality of legal representation provided to the vaccine injured by newcomers to the field because this is a quickly growing niche practice area. In the newsletter, I analyze cutting-edge legal precedents and encourage best practices among all attorneys in my practice area.
Is there anything else you would like to add?
Although every case is a sad story, and it is terribly difficult meeting with parents who have lost a child or an adult who has had life as they knew it changed forever, helping vaccine-injured people obtain compensation from the fund is challenging but very rewarding and interesting work.
The world has become increasingly concerned about the environment and society’s impact on it in recent years, and as a result, regulation has become enormously complex. It can be extensively tricky for companies to navigate these regulations, and litigation in this matter is not uncommon.
Here to discuss the latest updates on environmental law in Scotland and the UK, and providing Lawyer Monthly with an expert outlook on the challenges and potential solutions ahead, is John McGovern, Partner at MacRoberts LLP, a Scottish sector based law firm.
In the past decade, what would you say have been the biggest changes in Scottish and UK environmental law? How have these impacted your work in this field?
There have been many significant changes, not least what seems like constant additions to environmental law affecting contaminated land and to producers’ responsibility e.g. packaging and batteries, and the regulation of waste management/ storage. It can all be very confusing for SMEs to follow and keep up to date with, no matter how well motivated.
In my view, in both the UK and Scotland the biggest change in environmental law which will impact on civic society and the business community is climate change legislation - The Climate Change (Scotland) Act 2009 and The Climate Change Act 2008 (UK). These Acts set ambitious targets for the reduction of greenhouse gas emissions by 2050, and by 2020 on an interim basis; and allow the government to effectively regulate and monitor those targets, through public authorities and bodies.
More practically, as a solicitor, the biggest changes are probably the most recent – the introduction of the new regulatory regime in Scotland which allows the Scottish Environmental Protection Agency to accept an offer of an enforcement undertaking, as an alternative to a criminal prosecution, where there is a reasonable suspicion that an offence has been committed. These changes also allow SEPA to charge the “relevant person” for its cost in monitoring and investigating the viability of any offer made. These changes are consistent with the enforcement undertaking regime that already exists in the rest of the UK. Understanding how this new regime is going to work, and what SEPA’s attitude towards it might be, is a big challenge at the moment.
What are the biggest challenges that lie ahead pertaining to environment law in Scotland?
Generally, I think there is a challenge for SEPA to make the rules more accessible and simpler with clearer standards. The question “do I need a licence for that?” often does not have an obvious or simple answer. While SEPA has improved its website, there is often little clarity on the thresholds for regulation or the standards which need to be met.
As a practising regulatory solicitor, I think that some of the pre devolution environmental legislation may eventually be challenged under ECHR.
As a thought leader, what solutions do you envision and how complex is the logistical achievement of these?
Scotland is a small jurisdiction, and the challenge for the legislators is to engage with all of those operating in the environmental law area. As a lawyer, I want to be able to advise my client on legislative change with some confidence. Sometimes that can be difficult if the legislation passed is designed with a specific purpose, such as to assist the regulator, and to ensure that financial burden is passed to the business being investigated.
You defend clients in investigations involving the Scottish Environmental Protection Agency and the Forestry Commission; what particular challenges do these cases present?
I would like regulators to be more relaxed when conducting these investigations, and be more open with those being investigated. I often struggle to understand some of the thought processes that the regulators follow when conducting their investigations: I think at times that there is a passing nod to the fact that they are often conducting major white collar criminal investigations which could end businesses, and put their owners behind bars, yet they can be very closed with their information. In my experience, most businesses under investigation have a desire to remedy the issue which has prompted the investigation as soon as they can.
As a thought leader, how are you currently working to develop or implement new legislation or strategies in this field?
I think that Brexit has almost led to a moratorium on new legislative initiatives. From speaking to clients overseas, there is hesitancy not just about Brexit, but also about the consequences the vote will have for Scotland. Whether you are in favour or against a second referendum, I don’t think anyone will argue that the uncertainty is producing strategies and legislation for the long term.
