Understand Your Rights. Solve Your Legal Problems
The realm of property law can span a vast number of property types, but most litigation matters revolve around real estate property and the complexities therein. Property litigation deals with disputes surrounding ownership, investments, and at times the function and maintenance of a property, whether it be residential, commercial, industrial, or agricultural.
Detailing the UK’s evolution in property litigation over the years, and how MacRoberts LLP, a Scottish sector-based law firm, unfolds particular litigation scenarios, is Gillian Craig, a Partner in the firm’s Commercial Dispute Resolution team.
How has the UK Property Litigation arena evolved since you joined MacRoberts in 2002?
Back in 2002, property litigation was not particularly recognised as a standalone specialism in Scotland, although it was already well established in England. At that time, in the property boom, typical actions would include sellers trying to elide missives due to more attractive offers being received post- completion. Dilapidations wasn’t a particularly active area due to the buoyant letting market. However, come the crash, property litigation really flourished, enforcing missives against purchasers, advice in relation to insolvent tenants, and a real surge in dilapidations cases - given the late-eighties leases reaching their ish - and a real focus on lease end repairing obligations in the absence of new tenants willing to take on FRI leases on any terms. The evolution in title conditions (and improvement in the development sector) has led to an increase in Lands Tribunal applications and, of course, environmental legislation and how it fits into all of this.
What would you say might be the atmosphere in the UK property segment throughout 2017, especially on the back of the recent Brexit vote?
I’ve seen a very mixed picture. Traditional institutional lenders are cautious, particularly in the regions. Whereas entrepreneurial funders see a real opportunity, particularly in purchasing assets the traditional lenders - for political and strategy reasons - are selling. I’ve seen some efforts to wriggle out of concluded missives in light of a Brexit concern but, to be honest, that has dissipated.
Can you detail the strategies and challenges of one of your most recent property litigation cases, and how you applied thought leadership to this scenario?
Sometimes we can get caught up in new developing areas of law that old principles are overlooked. In a recent dilapidations case it transpired that there was a good argument that the landlord had inadvertently renounced the lease, with the possibility that all claims under the lease had therefore been extinguished. It’s not a point that has been tested in Scotland for a number of years.
Other issues arise in relation to landlords gaining possession of demised premises at very short notice (e.g. where a lease and sub-lease terminate on the same day, but the sub-tenant refuses to remove, putting the mid-landlord in a very difficult situation). The court rules do not readily accommodate this, and as a result of this I’ve had to be creative; whether it be actions for recovery of possession or interim orders for possession in the Court of Session, which don’t quite fit the bill but can be manipulated to a degree. This is something that I am hopeful the drafting committee will pick up at some stage in the new Simple Procedure rules, and it is certainly something I have lobbied them about!
You are also experienced in arbitration and mediation; how often can these be applied to property disputes and what are the benefits in your opinion?
Arbitration typically comes up due to the fact that most commercial leases will have an arbitration clause. In my experience, service charge and dilapidations disputes are well suited to arbitration if the arbitrator is a building surveyor. Equally, mediation is a great forum for dilapidations disputes, purely because courts are not an ideal forum for going through the minutiae of a Scott schedule, if nothing else, due to the incredible expense involved.
What I do find surprising is that, notwithstanding the prevalence of expert determination in leases, be it overtly or covertly (e.g. certification of service charge or dilapidations) there is very little challenge or case law in the area. I’ve been vocal in warning the surveying profession of their duties and exposure in this area.
As with all litigation, you must be mindful of cost; it’s an expensive undertaking. The area is usually therefore well suited to mediation, where creative remedies can be found. Certainly, in my experience, dilapidations disputes are very well suited to mediation.
As a thought leader, how are you currently working towards developing or implementing said legislation, or any other directives in this sector?
I am a committee member of the PLA and we are actively trying to become involved in contributing to procedure rule change.
One of the most important priorities for any company wanting to step up in its global presence, expand its business, and become the best in its services, is to nurture the talent within its ranks, and provide an abundance of support to its employees, in order to see a return on that investment, both immediately and in the long term.
As Chief Legal Officer at Lightsource Renewable Energy, Europe’s leading solar energy company, Dr Ece Gürsoy is in a formidable position to drive such investment in the company, and in such a largely operational business, both geographically and legally speaking, challenges don’t go a miss.
As CLO, what are your main day to day roles at Lightsource? Do you work mostly alone, or as part of a team?
Our current in-house legal team consists of 15 lawyers and at one point had 27 lawyers and trainees. The team works hand-in-hand with departments across the whole business from day one of a project through to completion and delivery. This means that our role starts in the initial phase of any new project or structure that the company is looking to embark upon. We have a good reputation for our quick turnaround of work while maintaining the high quality expected.
While effective management is obviously very important in contributing to maintaining this reputation, I don’t act as a traditional manager. I work with the team every day to ensure that they are well supported - I don’t just leave them with instructions. As a team, I think having a close working relationship built on a good rapport and strong trust is vital for success. Law as a profession doesn’t leave much room for error, so I keep a close eye on the final drafts and make sure I’m always available for questions on complex matters to ensure consistent high quality output and continuity.
The key attributes of a good general counsel are leadership, good communication (internally and externally), strong legal knowledge and a pragmatic common-sense approach. Due to the dynamic nature of the sector, you never know what the day ahead will bring, which helps keep the job fresh. This is obviously not to everyone’s taste, but in order to be successful in our sector you have to embrace it.
I also have a role on the senior management team, so as the general counsel I wear a different hat here. I help to manage potential risk when Lightsource looks to pursue new business opportunities, creating checks and balances within the management team. Like in the case of private practice, you must continue to give world-class advice, but you also need to ensure that it promotes the business. I try to find new ways to expand the company’s position in the current solar market thinking outside the box while still applying legal principles. As a lawyer, this is not always easy, but it’s certainly another management skill I have developed at Lightsource.
What are the dominant legal challenges that crop up, in particular in real estate, employment, IP, competition and commercial law? Do these have complex solutions?
In our business model, our projects are comprised of energy regulatory, property, construction, mergers and acquisition, corporate restructuring, and structured finance aspects. The solar industry is a relatively new sector, so the first challenge was to create bankable structures and legal documentation to support our goals.
Another layer of complexity is the strict regulatory environment we work within, which has been subject to considerable change over the years. As a consequence, you have to develop new legal structures to meet the needs of the business and keep achieving your targets, which requires involvement in various aspects of law – from property law to corporate law and from construction law to finance law.
Our projects in the UK have always been subject to very strict deadlines due to government subsidy mechanisms. As a result, time is always of the essence which puts a great deal of pressure on the legal team and the company as a whole. We are now at the last run up of the connection deadlines, as large-scale subsidies are being gradually phased out in the UK. This has brought fresh challenges to the business as we have again had to adapt our business model while looking at ways to create more value from our existing assets. We are pioneering innovative new large-scale projects in the UK that can operate in a subsidy-free environment by connecting solar power plants directly into the electricity supply of major energy users. With this corporate Power Purchase Agreement (PPA) model, we are bringing the same high-level of technical and development standards, as well as brand-new legal documentation and legal structures.
How important would you say is the need to develop skills and foster the progress of employees within the company, given the sector’s competitiveness?
We believe that investing in young talent is a key element to success. Lightsource is one of a select band of UK companies to be accredited by the Solicitors Regulation Authority to offer training contracts to trainee solicitors.
We hire our trainees as paralegals, giving them an opportunity to learn about the industry and the philosophy of the company, before undertaking a training contract. I believe that a lawyer trained within a company is much more effective as they build an understanding of the business, while developing their skills and knowledge handling the complex legal structures that our projects offer.
We operate in a very competitive and fast-paced industry, so one of the key elements for us is create continuity across the whole team. There is a level of understanding across the entire team on each of our projects, so there are no gaps in service and the work doesn’t stop if someone is away from the office.
From a technical point of view, we continuously review and discuss new legislations and how they apply to our system, so there is a continuous knowledge share which is supported through internal training.
In terms of your legal team, how do you personally make sure every individual’s personal and professional development is accounted for and given importance?
Being a lawyer is very demanding. There is a common view that being in-house is a much more relaxed environment, but this is certainly not true for Lightsource. Lightsource has grown from a start-up company to Europe’s leading solar energy company in a very short period of time. We are not just a developer, we also operate and manage all of our assets once they are constructed and we also undertake all of the financial structuring. It’s not only the management of corporate affairs that the legal team helps oversee, we also provide tailored advice on the complex structure and day-to-day management of these assets. This is why being a lawyer at Lightsource is very demanding!
As a manager, I need to look after my team members and ensure that projects are allocated according to their skills as well as their own interests, as I am a great believer that lawyers should enjoy their role in order to be successful. I always try to create a career path for our lawyers, so they are getting an experience that they feel is rewarding, as well as helping them progress and develop their skills further. Believing in people, supporting them and giving them the right level of workload and challenge without boxing them into the standard PQE levels is really what helps to open up their potential.
How do you, in your role as CLO, help nurture said talent within the rest of the company?
Lightsource consists of very young, but bright and talented people, which our management team really values. We invest in our talent by given them responsibility, trust, guidance and relevant training as they progress. We want to open up their career paths by rewarding their efforts and giving them further responsibility to see what they can deliver. We have some very talented young people dealing with reputable law firms, finance houses, service providers and clients on a daily basis and we are very proud of this. If businesses can provide varied and interesting work, then modern in-house roles can attract the best talent available. We have also created an environment at Lightsource where the whole company feels like one team and the senior management is no different - we all work side-by-side.
How would you advise other business to go about boosting their ranks’ talent and how much would the logistics of that development differ between industries and roles?
Bringing a start-up company to a fully-established and successful company is not an easy task, it took five very demanding years of hard work. As the managers or leaders of the company, you need to show to your employees and your peers that you are putting in 150%. You must lead by example and inspire that same attitude in others you work with. Talent is important, yes, but perseverance, commitment and discipline are also major ingredients to success.
It’s important to be open minded and chase the right opportunities, but it’s also important to get the right support and advice. We get expert advice from our external lawyers, from our financial advisors, as well as technical and strategic management advice. The success of Lightsource has been in part down to our own intuition, experience and knowledge, but ensuring that we have the right information on-hand to make informed decisions.
We take a similar approach to nurturing our talent, by getting to know the people and their strengths, so we can make more informed decisions about their development and training requirements to support those strengths further. Nurturing talent is very much about recognizing the individual you have in front of you and understanding how best to support their growth.
On the flip side, what do you think are the most helpful ways all employees, from legal counsels such as yourself, to engineers and R&D workers, can help nurture the services their company provides?
For any business working in a dynamic industry, I believe that you need your lawyer involved from day one if you want to get the most effective results in the quickest time possible. Can you do this with external lawyers? Of course you can, but to a much more limited level.
In the solar industry, for example, there are many different teams involved with the delivery of a project from a planning, technical, construction and financial perspective. We as lawyers are generally the ones putting all the pieces together to bring the project to life. Your in-house lawyer knows all the legal aspects as well as being someone who lives and breathes your business - this is how you can become a sector leader, through speed and quality.
Legal costs can have a big impact on the overall budget and financial models for projects across any sector, which is why we are seeing more and more businesses swaying towards having in-house expertise with the relevant external support when needed. Having high quality in-house legal support is a real added value to the business - not only from a cost perspective, but also by producing genuine workable legal solutions that are right for the business.
Is there anything else you’d like to add?
The role of modern in-house lawyers is set to change the legal profession and the way the legal sector works. In-house lawyers are not just lawyers, they interplay across law, regulation, analyzing business problems and providing workable structures for the business. They are sometimes a “fixer,” sometimes the magician that pulls the rabbit from the hat and sometimes the only person with the abilities to bring a project to a successful close by spending long hours in the office. One important point is that in-house lawyers gain a unique position within a company by listening carefully to what the business is saying and understanding the minds of the senior management team as to what they want to achieve.
Further into our immigration focus, Lawyer Monthly hears from Andrew Osborne, Partner at Lewis Silkin LLP on the potential Brexit effects and impacts on the sports sector, and the business therein. Here Andrew talks about the complexities involved in sports transfers, and touches on his and the firm’s thought leadership in the sports world.
You deal in UK sports and immigration matters; what kind of complexities do you encounter as these come together?
The main concern when doing sports work is usually timing. When a new player or coach joins the team, the club wants them to be available as soon as possible. This can often be a challenge where the application is being made from certain countries. This also applies to their family members, but clubs are usually very good at supporting family members joining and ensuring their player/coach is settled very quickly. Immigration from this perspective is a very personal and emotional process. It's important we remember that the player/coach and their family are often relocating from the other side of the world and can be quite anxious. We work hard to be mindful of this and make the process as smooth and reassuring as possible. There is also the need for discretion - we are privy to information that the press and public would be very interested in, so confidentiality is crucial.
We also help clubs with pre- and post-season tours, and travel for international games. Players have such full schedules that arranging the logistics of appointments, and getting our hands on their passports for a few days, can be tough, particularly when the deadlines for a tournament are immoveable. We are lucky to have members of our team who are passionate about sport and are, as a result, aware of fixtures and training schedules. We know how to prepare applications with the minimal amount of impact on a player’s time.
So I would say the main complexity with immigration and sport is making sure applications are completed correctly and all the paperwork is in order within the allotted timeframe, with minimal impact on the player/coach. We take on the burden of this hugely bureaucratic process, away from the club and player, so that they can focus on what they do on the pitch.
What would you say are the biggest difficulties encountered in the transfers of employees between companies cross-border, and how do you navigate these?
Immigration is a very personal issue. The applicants we advise are going through a major change in their lives by transferring from one country to another. This involves all the stress of moving house but with added cultural, and sometimes, language barriers. Applicants also often have very strict time constraints with travel. They may even have moved out of their current accommodation while waiting for their visa. We need to make the visa application process as smooth as possible whilst working within a pretty inflexible system. It can often be frustrating and we need to be able to reassure and support the applicant as best as possible. We collaborate with them and their employer to make the whole process very smooth.
The introduction of additional priority and premium services in some countries (such as the US and Australia) has made the process a lot more efficient for those willing to pay. On the other hand, the introduction of the 30 day temporary Entry Clearance visa has put another timing consideration into the mix and can make the process even more complicated.
How may these difficulties change in the future, especially on the back of the recent Brexit vote?
The main concern is the pressure on the current system. While it is inflexible and requires us to do a considerable amount of planning to ensure there are no delays, the majority of applications we deal with go through without much incident. However, once there is an issue it is often very difficult to speak to someone and get an update or resolution. If the current infrastructure is expected to deal with EEA applications as well, I just don't see how it could cope. Pilots are currently running to test online systems which might ease some of the pressure, but again, if an application is particularly tricky or requires explaining, it requires a personal review and this might take months.
When it comes to transferring athletes between clubs at an international level, what are your top priorities for the client?
Over the course of the past few years we have worked with some of the top clubs in the UK and Europe. The objective is always a successful outcome for the client. The top priorities to achieve this outcome are to get the paperwork prepared early and accurately, minimise the impact on the athlete, assess the logistical issues and offer the best solutions. Transfers generally happen in August and January so we make sure those who deal with transfers are available and have capacity to deal with these matters immediately when they arise.
Can you detail a sports matter in which you have encountered particular challenges in the past? How did you apply your thought leadership in the field to this scenario?
The most challenging transfers have involved appeals, due to the player not meeting the automatic qualifying criteria for a Governing Body Endorsement. In this case, it is very difficult to plan the visa application and all our energy is poured into preparing the appeal. Once the appeal has been successful, we have a very quick come-down from the high of achieving the GBE, to finalising the paperwork and planning where the player will be eligible to submit their visa application. The player is often in the UK for the appeal, medical or negotiations, and then they usually have to leave and re-apply to return. This requires a lot of explaining and managing the player and club’s expectations of the process from the beginning.
Players are often transferred at a time when they are on holiday or on international duty, so the challenge again is the logistics of getting them to engage in the process and taking the time to submit the application.
Over the years we have built up a lot of contacts in various countries and we could not be as successful as we are, nor ensure such a fluid process for the player, without them.
You most recently authored a publication titled ‘Immigration programmes for low-skilled labour: alternatives to freedom of movement’; what were the conclusions drawn from this piece?
That the UK has never had to develop a low-skilled immigration programme across the whole labour market. Certain schemes to allow low-skilled labour into the UK have been put in place in the past for specific industries and these may be a model for a more general system to deal with low-skilled labour. It appears that any system will have some key features:
Do you have a mantra or motto you live by in service to your clients?
We really try to get to know our clients personally. There are other firms who do what we do, and at this level you would expect the lawyer to be competent and competitive, but knowing the clients you will be working with helps you deliver your advice in a way they will want to receive it. That’s what sets our service apart from the rest. Sport doesn't operate during office hours, so when your phone rings at 10pm on a Saturday you answer, not because it's your job, but because you know the person calling, have a relationship with them and you want to help them. I think that's important and why we try meet our clients in person regularly.
The modern corporate world is pitted with potential legal pitfalls. It takes a skilled and experienced legal professional to guide companies through the challenges involved, challenges which vary from country to country. Here Lawyer Monthly hears from Sumesh Sawhney, Global Head of Lakshmikumaran & Sridharan Attorneys’ Corporate and M&A practice, on issues surrounding the corporate world in India and the UK and the relationship these countries share.
Sumesh Sawhney is Global Head of the Corporate and M&A practice at India’s premier law firm, Lakshmikumaran & Sridharan Attorneys (L&S), and Head of the firm’s UK office. In a career spanning over 25 years, Sumesh has expertise in India-related cross-border investments, M&A and corporate advisory matters. He is qualified as a solicitor in England & Wales but does not practice as such, and is a member of the Bar Council of Delhi, India.
Established in 1985, L&S has a pan-India presence and is amongst the few Indian law firms to establish its international presence in London and Geneva. The firm specializes in corporate and M&A, competition, international trade, intellectual property and taxation.
How would you describe India’s current corporate market and its involvement with UK companies?
India is gaining momentum as a vibrant emerging market under the current political regime and is increasingly outperforming other BRICS economies. With the Government-backed ‘Make in India’ agenda, India is now rebalancing its growth plans from a services-driven outlook to an export-oriented manufacturing outlook. On the other way, as the third largest foreign investor in the UK, India invests more in the UK than the rest of the European Union combined. Likewise, the UK is the third largest foreign investor in India. There is growing interest from both countries to tap previously unexplored funding avenues – the latest being the Indian Rupee-denominated debt securities market. Pursuant to changes in India’s External Commercial Borrowing framework in 2015, this year witnessed the historic issuance of the first offshore ‘masala bond’ by an Indian corporate on the London Stock Exchange. I am positive that Indian and British businesses will continue to engage closely and that this trend shall expand in scope as well as have an upward trajectory.
How do you envision this relationship evolving throughout 2017?
Naturally, the past few months saw intense speculation from the international business community and the economic roadmap ahead for India and UK depends greatly on the bilateral Free Trade Agreement negotiations proceeding favourably. Uniquely, Indian investors are spotting lucrative financial opportunities in post-referendum Britain. To illustrate, the British Pound’s decline relative to the Indian Rupee has translated into significant gains for Indians– especially first-time buyers – in London’s immovable property market. In the wake of an impending ‘Brexit’, Britain needs to send strong signals to its trade partners that it is committed to providing a conducive environment for foreign capital, foreign-owned businesses and international talent. India and UK already share a robust economic relationship – at a glimpse, total bilateral trade in goods and services touched a staggering £16.55 billion last year. Given the mutual political will being demonstrated by both countries’ leadership, there is good reason to be optimistic about bilateral trade further strengthening.
You are highly involved in UK/Europe - India M&A and joint venture transactions; what particular challenges do these present?
India’s foreign exchange, securities and corporate governance regimes were historically known as cumbersome and restrictive. However, these regulatory frameworks are undergoing transformative changes in order to attract foreign capital. The Foreign Direct Investment Policy is being progressively liberalized with each passing year - permissible investment limits and sectoral conditions have been lifted altogether or greatly relaxed and many industry sectors have already been brought under an ‘Automatic’ investment route from their erstwhile ‘Government Approval’ route. The new Companies Act, 2013, is a landmark piece of legislation that has replaced the out-dated framework of Companies Act, 1956. Such reforms have been instrumental in boosting merger and acquisition activity in India - between January to September 2016, M&A deals have already touched $46 billion in value. Nevertheless, there still remains scope to make India’s investment climate more favourable.
To give you an example, under the Companies Act, 2013, issuance of equity shares with differential rights is permitted inter-alia only if a company boasts a consistent track record of distributable profits for the previous three years. This limitation dampens the participation of private equity and venture capital investors into early-stage enterprises. Absence of a single-window mechanism for obtaining business licenses/approvals had long made it difficult for domestic and international entrepreneurs and investors alike. Now, necessary clearances, licenses, mandatory tax registrations and regulatory filings can be applied for and obtained on a single-window ‘e-Biz’ platform. Pendency and long-drawn litigation proceedings in Indian courts is also a deep-rooted problem.
Though efforts to facilitate speedy redressal of disputes are underway – the most recent being establishment of special commercial courts to settle high-stake commercial disputes as well as constitution of the National Company Law Tribunal and its appellate body - I encourage parties to have in place a strong mechanism for international commercial arbitration, at the outset. Then there are legislations that can vary from State to State coupled with the absence of digitized records in the public domain, which can slow down the due-diligence process.
What type of clients do you regularly work with and what makes you their first choice of representative?
In my experience, clients – whether multinationals, small and medium enterprises, individual entrepreneurs or institutional investors - place heavy premium on legal advice rooted in commercial pragmatism as much as in the knowledge of local market trends. Having successfully executed cross-border transactions when the Indian economy has been liberalizing, I’ve had the opportunity to understand foreign businesses’ key concerns when engaging with Indian entities and vice-versa. Of course, all successful relations are built on the classic foundation of trust, work ethic and appreciating clients’ unique business goals.
How can India expand its appeal in terms of FDI and corporate presence?
Sweeping reforms aimed at increasing transparency in corporate affairs, reducing stringent compliances and promoting ‘ease of doing business’, have been implemented lately. Government initiatives of ‘Start-up India’ and ‘Digital India’ are stimulating a culture of innovation and entrepreneurship and to encourage inflow of foreign funds, alternative investment vehicles such as Infrastructure Investment Trusts and Real Estate Investment Trusts have been permitted. The Companies
(Amendment) Bill, 2016 – which seeks to amend the Companies Act, 2013 – when enacted, will rectify omissions and contradictions in the legislation and harmonize it with the Central Bank and securities market regulations. On the other end of a company’s life cycle, the Insolvency and Bankruptcy Code, 2016, has been recently enacted to provide a streamlined mechanism for debt restructuring and address systemic challenges such as the multiplicity of bankruptcy regulations and the long-drawn nature of winding–up proceedings.
What thought leadership assets would you say previously working at Clifford Chance and Jones Day has brought to your current role?
At Clifford Chance and Jones Day, I led the India corporate practices and advised multinationals through the lifecycle of their India-entry, business development/growth and exit strategies. L&S recognizes the value addition that international transactional experience, crossover legal knowledge and inter-cultural sensitivity can bring to clients at the negotiating table, and has entrusted me with the privilege of establishing its second international office in London and of charting the firm’s future vision for its global corporate and M&A practice.
As a thought leader, what significant legislative developments do you think are still necessary in India’s corporate law sphere?
Every jurisdiction poses peculiar regulatory challenges. India is battling a poor image of corruption with Transparency International ranking India 76 out of 168 countries in its latest Corruption Perception Index. When enacted, the Prevention of Corruption (Amendment) Bill, 2013 will align India’s anti-corruption legal framework in conformity with international best practices laid down by the United Nations Convention Against Corruption.
India’s public sector banks are currently straining under the burden of non-performing assets, making it critical for an alternative source of funding to be made available, especially to finance large infrastructure projects. In light of this, efforts to accelerate the development of India’s nascent corporate bond market are underway and the Securities and Exchange Board of India has framed a set of implementable recommendations.
The indirect tax regime of India is characterized by taxation rates and structures differing from State to State. The Government looks set to meet its target for implementing the ground-breaking ‘Goods and Services Tax’ (GST) reform on April 1st, 2017. GST shall subsume various Central and State-level indirect taxes and unify India into a single, common market. For industry, GST promises easier compliance, removal of hidden costs of doing business and a system of seamless tax-credits across the value chain as well as across regions. This will translate into efficiency gains and enhance the competitiveness of India’s manufacturing sector.
From chemicals, biocides and pesticides, to consumer products, tobacco, vaping products and food, our next thought leader thrives in a challenging environmental law landscape, and when it comes to EU prohibitions on chemicals, EU trade barriers and now Brexit, Marcus Navin-Jones, Partner at the Brussels office of niche law firm Keller and Heckman LLP, is well placed to assist.
Here Marcus talks to Lawyer Monthly about his and the firm’s thought leadership in the environmental law landscape, in particular the kind of cases he deals with, the implications of Brexit and the EU in this legal segment, and about the laws that he would like to see changed for the better.
What environmental issues surround most of the cases you deal with?
Chemical defence
Over the past 6 years or more, I have built a reputation primarily in the field of chemical defence, i.e. in defending the sale and use of certain chemicals in the EU. The frontline in chemical defence has been leading appeal cases before the European Chemicals Agency (ECHA) Board of Appeal (BOA) in Helsinki, Finland.
Over the past year or so, I have successfully led industry appeals in a number of cases before the ECHA BOA – to obtain an annulment of the requirements initially imposed by the ECHA. The Appellants included: Dow Corning and others (A-017-2015); Huntsman/BASF (A-012-2014); and TPP Registrants (A-018-2015).
Before that, I assisted on the first appeal regarding REACH Substance Evaluation, which established the ability for REACH registrants to bring so-called group or collective appeals before the ECHA BOA. This had never happened before.
I also counselled, and led the argumentation in the seminal Honeywell case – which was the first case to proceed to Oral Hearing before the ECHA BOA.
In addition to the appeal cases before the ECHA BOA, I increasingly advise and take cases before the EU Courts - such as the current Esso Raffinage case before the General Court (T/283-15).
Consumer products - I advise on product safety and product liability issues regarding consumer and other products, particularly consumer products that are directly impacted by EU chemical legislation such as:
EU and UK market access and barriers to trade (including BREXIT issues) - Having worked at the European Commission on issues regarding free movement of goods, my background is in securing market access for goods entering the EU Single Market and other European markets. Following the UK referendum on EU membership, I increasingly advise on Brexit issues and on issues regarding free movement of goods issues and barriers to trade.
What are the common avenues of resolution for these types of cases? Are there particular complexities involved?
EU chemical law is particularly complex. With scientists that work within K&H itself, we often advise on issues outside the domain of consultants or other law firms. Regarding the Chemical Defence work, we experience an increasing desire to settle cases before an ECHA BOA decision.
Have there been any consequences in your environmental law work pertaining to the recent Brexit vote and the linked EU law?
Since June I have spoken widely on Brexit and its impact on the chemical industry in front of different audiences, including CEFIC (the European Chemical Industry Council) members, but also at conferences in Washington DC, US; Toronto, Canada; Nice, France; and elsewhere. Since the 23rd June 2016 referendum, there has been significant increase in the number of questions regarding Brexit not just from UK companies, but also from US and other companies.
In the short term, there may be divergences in the interpretation and enforcement of EU law in the UK. In the longer term, the impact on UK Chemical legislation could, potentially, be significant. The impact on EU chemical legislation may be comparatively smaller but, potentially, no less important.
As a thought leader, what Belgian or EU environmental legislation do you believe could/should be amended in the near future?
One of the core issues for the chemical industry on both sides of the Atlantic will be the extent to which TSCA reform (in particular the Frank R. Lautenberg Chemical Safety for the 21st Century Act amending the US Toxic Substances Control Act) will lead, or not, to a convergence of chemical policy with EU law in the future. In particular, one of the questions being whether risk management measures adopted in the EU will also be adopted in the same way, and relate to the same substances, in the US and vice versa. Where regulatory action is considered in one jurisdiction and then rejected on valid grounds, it would be helpful to have a similar and consistent approach elsewhere.
In the EU, the Court Ruling in case C-106/14 regarding calculation of the 0.1% threshold weight by weight presents significant practical and pragmatic challenges for industry and law enforcement bodies in practice. Improvements could be made to the BPR, REACH and related legislation such as the REACH Implementing Regulation on Joint Submission and Data Sharing, etc. For example, implementation of the requirements regarding vertebrate animal testing only as a last resort, could be improved. The revision of the GPSD will likely be of importance to downstream users and therefore the upstream suppliers. The New Tobacco Products Directive contains requirements relating to e-cigarette and e-liquid products that are, arguably, not enforceable.
As a thought leader, how are you helping to change the European/Belgian environmental legal landscape, in terms of chemical regulations, waste, or packaging?
ECHA policy and approach to, for example, REACH Dossier and Substance Evaluation, has changed in response to the cases brought before the ECHA Board of Appeal – both in those cases where the ECHA BOA has issued a decision in favour of industry, but also in those cases where the ECHA BOA has not issued a decision, or issued a decision in favour of ECHA. I currently have another case before the ECHA Board of Appeal relating to Substance Evaluation and the extent to which REACH registrants can provide sensitive information on downstream exposure and uses (SI Group-UK Ltd and Others, A-006-2016), giving the ECHA Board of Appeal the opportunity to positively influence and clarify ECHA policy.
How does being secretary, and founder, of the EU Chemicals Board of Appeal Forum contribute towards your thought leadership in this legal segment?
The EU Chemicals Board of Appeal Forum was established as a means of exchanging information on ECHA BOA decision-making. It is not associated with ECHA, with one particular trade association or with one particular company. It is therefore a truly independent group of experts primarily populated with academics and other commentators. Their views and insights, particularly with the insights from other Boards of Appeal, is particularly interesting in understanding how the ECHA Board of Appeal compares to other BOAs in the EU, and the procedural and other requirements the ECHA BOA should therefore adhere to. I have also convened conferences and working groups, lectured and published academic pieces on the ECHA Board of Appeal. A Legal Review of EU Boards of Appeal in Particular the European Chemicals Agency Board of Appeal .
As a thought leader, do you have a mantra or motto you live by in service to your clients?
I believe there should be a direct correlation between our client’s success and our success as a firm. Success can be difficult to define but, in essence, I want every client to be bigger, stronger and better established in the future, than they are today – and I want that success to be a direct result of what we, particularly I, have had direct involvement with. Our success is our client success.
Back in May this year, Lawyer Monthly awarded and showcased hundreds of top professionals from the legal world, in its Women in Law Awards 2016. To follow up on the impact of the award, and gain a little more insight from our winners, this month we caught up with Karishma Vora, an outstanding barrister at 4-5 Gray’s Inn Square, and Winner of the ‘Rising Star of the Year’ Women in Law 2016 award.
Please tell us about yourself and your key achievements.
I am a barrister specialising in commercial litigation and arbitration. I am one of a handful of barristers dual qualified in India and England, with just three of us who practice in both countries. This niche is my biggest achievement. I practised litigation in India for six years before relocating to London seven years ago.
I came to London to serve the vast number of disputes for or against Indian clients, in which English courts have jurisdiction or where London was the seat of arbitration. Whilst I have worked a lot for clients of Indian origin in the UK as well as in India, I also work for clients who have invested in India.
I am now at a set of chambers called 4-5 Grays Inn Square in London that is well known for commercial law amongst other areas of practice.
I am an alumna of the London School of Economics, where I have taught commercial law, and am presently elected to the Gray's Inn Barristers Committee for a three year term.
Could you tell LM briefly about your win and what your initial response was?
I was thrilled to receive the ‘Rising Star Award’ conferred by Lawyer Monthly: Women In Law Awards 2016. It felt great to receive acknowledgement and recognition for my achievements to date from within the legal field.
The award was well received and much appreciated. A bencher of Gray’s Inn congratulated me when the results were announced. She jested, however, that the challenge about being a rising star is that one must 'arrive' thereafter, and I am conscious of living up to the expectation.
What do you feel is your strongest quality, and that which attracts success?
I have been exposed to many cultures, which has given me level headedness that makes me resilient and approachable. I am conscientious and determined for everything I want in life for myself and for my clients. This, combined with the fact that I work hard, attracts success.
Clarity from the onset, not using confusing legal jargon, being abreast of commercial realities and being able to relate this directly to what is important to my clients, has been identified as a strength.
What legal work have you been involved with since?
My legal workload ranges from interim injunctions to cross border trials. My area of specialisation is business disputes such as shareholder disputes, directors duties, breach of general commercial contracts (such as franchise agreements, agreements for the sale of goods), loan defaults, guarantees, mis-sold swaps etc. I am increasingly being asked to advice on the impact of Brexit.
The value of claims has ranged from low value claims to claims worth $79 million, with instructions received from solicitors in both England and India.
I have also accepted instructions directly from lay clients under the ‘Public Access Scheme’ or under the ‘Right to Conduct Litigation’. This makes it easier for companies or individuals to access high quality legal services at comparatively inexpensive prices.
What are your goals moving forward with your practice and professional pursuit?
I want to transfer my international expertise to domestic English disputes. Over the 10 years I have practised as a lawyer, I have been instructed in cases before Tribunals, County Courts and the High Court, and I want my legal experience to hold greater value than my cultural background.
Is there anything else you would like to add?
Winning the award has drawn praise from colleagues. The appreciation that I have received denotes people in England are now watching what I do, which is a tremendous responsibility to have.
Following the recent headlines surrounding the WikiLeaks, the Panama Papers, and thousands of much smaller cybersecurity breaches around the world, legislation and action related to the protection of data and cyber processes is increasingly necessary, and while governments and other parties do attempt to implement ways of managing breaches, the threat of cyber-attacks cannot be shrugged away.
This month Lawyer Monthly has heard from Aaron Simpson, Partner Hunton & Williams member of the firm’s global privacy and cybersecurity team.
Aaron was based in New York since 2002, and moved to the firm’s London office in July 2016. He advises clients on a broad range of complex privacy and cybersecurity matters, including state, federal and international privacy and data security requirements as well as the remediation of large-scale data security incidents. He helps clients identify, evaluate and manage risks associated with their collection and use of information.
What are the common of cyber law matters you regularly advise on? What particular challenges do these matters present?
Generally speaking, my cyber practice revolves around significant data breach events. This includes leading internal investigations into suspected breaches, managing the notification process in accordance with applicable law and contractual requirements, and addressing inquiries from regulators. In addition, given the stakes involved for many companies, I also engage in many proactive legal services in the cyber context, including the development of incident response plans and other breach preparedness tools, as well as negotiating commercial terms in data intensive agreements, which are increasingly common today. Now that I am based in the UK, I am assisting clients across the EU who are gearing up for enhanced breach notification requirements arising from the GDPR.
There are many challenging -- but interesting -- aspects of practicing law in the cyber arena. The first and foremost is timing. There is an incredible amount of time pressure facing breached companies, both from a regulatory and normative perspective. The public is very interested in these events, and they are widely covered in the media today. Thus, getting the team onboard quickly and developing an understanding of the key facts, within the expectations of regulators and the media, can be quite challenging in certain circumstances.
In addition, from a legal perspective, bridging the gap between various legal regimes in different jurisdictions can present challenges. We have been fortunate to have significant experience working on breaches of a global nature and so are quite familiar with requirements around the world. Nevertheless, these requirements are a moving target, and in many countries they are more art than science, in that they are a result of regulatory guidance rather than strict legal requirements.
Which industries do you find are the most prone to cybersecurity issues? Why do you think this is?
No industry has been spared when it comes to cybersecurity. There are so many different motivations for why a company’s data would be targeted. For criminal hackers, the retail industry has been a primary focus given the nature of the payment card data that they process. But retailers would be of less interest to nation-state actors, whose motives could be more focused on learning information about processes and technology in place. In addition, there are hacktivists attacking corporate networks for any number of reasons, including to cause embarrassment. In this regard, all companies are at risk.
How do you personally help your clients identify, evaluate and manage risks associated with data storage and management?
At the end of the day, I am a lawyer and not a technologist. Thus, rather than assisting with technical risks, I assist with the management of risk from an administrative and legal perspective. I start with identifying the organisation’s main data stores and what data are held in those data stores. Then I also look at how that data is moved within the organisation. Once I have a detailed knowledge of the organisation’s data profile, and what compliance and security measures are in place, we are in a position to identify and evaluate the legal risks associated with the data they hold and their systems. When doing so, we look at a variety of legal frameworks applicable across the globe, as well as to recognised data security standards and industry certifications.
The business world is always looking for ways in which to fight cyber-crime; as a thought leader, how would you say legislation could be changed to do this to a better extent?
If the goal is to protect data and data subjects, I think that policymakers need to tread very carefully. Developing prescriptive, proactive requirements generally does not help protect data. To the contrary, it forces companies to shift their focus from protecting data, something they know how to do far better than policymakers, to check the box compliance. Even worse, in six months’ time they will be checking boxes that are no longer relevant given technical advances. And for most legislative bodies around the globe, updating legislation is not something that happens with sufficient pace to keep up with technological change. In my view, the best path forward, from a cyber policy perspective, is to require regulatory notification of meaningful breach events combined with the developing of a standard of care that is capable of evolving with changing technological means. The standard of care concept is important, as it cannot be the case that every breached company has committed a legal violation. In many breaches, particularly those involving sophisticated nation-state actors, a company with perfectly reasonable safeguards in place can still be breached. In other cases, breaches clearly result from a negligent failure to safeguard information. In those cases, enforcement actions should be taken, and the results of those enforcement actions should help to flesh a meaningful standard of care.
Technology moves at a fast pace and new ways in which to break the law in cyber space are being found all the time. Can legislation ever keep up? How?
I don’t believe that cyber criminals are put off by laws. That’s why they’re criminals. The truth is there is a cyber arms race taking place at this time, and companies are well-advised to look to their information security colleagues, and not legislators, for help in defending against cyberattacks. Given the nature of the threat, cooperation among and between both industry and law enforcement, although at times controversial, is also an important piece to the puzzle. Of course, finding the right balance between privacy and security when it comes to such information sharing initiatives can present challenges.
Do you have any thoughts on the recent cybersecurity scandals involving Yahoo and the Panama Papers?
These incidents provide good examples of how ubiquitous the cyber threat has become. All companies, including technology companies and law firms, are potential victims. The Panama Papers case was alleged to have resulted from a disgruntled employee, which is often an underappreciated risk for companies focusing their efforts on outsiders. Companies can learn from these events so that they are prepared to address breaches arising from all of the various threat vectors, including cybercriminals, nation states, activist groups and insider threats.
Is there a prominent case involving the ‘remediation of large-scale data security incidents’ in which you have applied particular thought leadership? Please explain.
At Hunton & Williams we have handled well over 1,000 security breaches since the first breach notification law in the world in California came into effect in 2004. Many of these breaches have been watershed events in the industry and have served to shape how companies respond to these events. I am particularly proud of the work we have done on behalf of clients in this arena on a global scale. As I mentioned, outside of the US, breach notification law has been more art than science in the past decade. Through our work, we have developed significant expertise in assisting clients with responding to breaches at scale that impact numerous jurisdictions around the globe. This is very challenging work that requires a nuanced understanding not only of the legal requirements around the world, but also of the practical business considerations necessary to help clients manage extralegal – and in many cases existential - risks to their business.
Do you have a motto or mantra you live by in assisting your clients with cyber law?
Robert Mueller, the former US FBI Director, famously quipped that “there are only two types of companies: those that have been hacked and those that will be. And even they are converging into one category: companies that have been hacked and will be hacked again.” Knowledge is power, and understanding the ubiquity of today’s cyber threat is critical to ensuring that you are prepared to successfully manage a data breach event.
Is there anything else you would like to add?
Organisations that manage cyber security successfully are those who have moved information security from the dusty basement to the C-Suite. How you secure the data entrusted to you is a strategic management issue and, in today’s day, simply must be embedded as a core value within your organisation.
Regulations, legislation and directives surrounding trade are crucial in protecting businesses that enter into contracts and agreements with others, and also provide resolutions when issues are encountered. Here Michelle Schulz, co-founder and co-chair of Gardere’s International Trade Practice gives her take on this matter, and highlights her thought leadership in the global trade sector.
Michelle Schulz is co-founder and co-chair of Gardere’s International Trade Practice. She also co-chairs the firm’s broader International Practice Group, which provides end-to-end solutions in international business transactions and litigation.
As a leading authority in the international trade and compliance arena, Michelle represents a range of export and import clients in matters relating to compliance with US and international regulations such as the International Traffic in Arms Regulations, the US Export Administration Regulations, and the various embargo and sanctions programs administered by the Treasury Department’s Office of Foreign Assets Control.
Since you began practicing, how have you seen the international trade scene evolve, in particular regards to arms trade, import/export, and embargo and sanctions?
International trade rules and regulations can change on a daily basis, and some of those changes can be quite dramatic. Just in the last few years there have been new sanctions on Russia and reduced sanctions on Cuba and Iran. While the reduced sanctions have not fully opened Cuba and Iran for business with the US, many companies are already preparing to enter these markets. For foreign subsidiaries of US companies, there are already opportunities to conduct business in Iran. On the other side of the spectrum, the sanctions on Russia limit financing transactions and certain oil and gas transactions.
What would you say were the key legislative developments to help international trade in the last few decades? How have they affected your work in your specialised fields?
In addition to ECR, free trade agreements are some of the most important developments. The world is an increasingly global market, and the US’s place in that market depends on maintaining good relations with its current trade partners while expanding into new markets. We’ve seen a number of foreign countries enter into multiple free trade agreements, thereby providing an incentive to shift trade to parties to those free trade agreements. These agreements generally provide for reduced or eliminated tariffs between the partners and controls on government support for state-owned entities. The US is currently debating whether to approve the Trans-Pacific Partnership, which includes 12 countries. If approved, it could significantly impact trade throughout the Asia-Pacific region.
As a thought leader, how are you working to change the international trade landscape for the better?
Over the past several years, I have had the privilege of serving on the President’s Export Council Subcommittee on Export Administration (PECSEA) in Washington, D.C. The PECSEA is a senior-level advisory committee to the US Department of Commerce, and ultimately the President, on ECR. We have worked alongside the Commerce Department to reduce the regulatory burden on US exporters through regulatory reform and outreach. As part of the PECSEA’s outreach subcommittee, I have worked with the Commerce Department and industry leaders to expand outreach to exporters of all sizes. In addition, I chair the PECSEA Data Transmission and Security Subcommittee, which aims to update, streamline, and improve dated export regulations on technology. For example, we have assisted Commerce in the development of the new cloud carve-out in the new definitions rule, providing exporters with a safe harbour when transferring or storing certain data in the cloud. We have also worked with the Commerce Department to help simplify overly complicated encryption export regulations. The simplification and updating of US export regulations has dramatically reduced licensing and other requirements for exporters.
Do you have a thought leader motto or mantra you live by in your international trade work?
A thought leader whom I greatly respect told me once, “You work for your team.” Now I try to follow this mantra to in all aspects of international trade. The most effective leaders in our field listen to key stakeholders and take their opinions seriously. This approach has served me well whether I am advising clients in a crisis situation, building a compliance program, training personnel, or handling day-to-day challenges. Our trade team offers unique insights from different perspectives (e.g., enforcement, Customs brokerage, technology). If you are drafting an export compliance manual in-house, did you talk to Human Resources about how they screen new employees, what works for them, and what doesn’t? Did you solicit comments from sales personnel? I believe working for your team improves your own performance and effectiveness.
Is there anything else you would like to add?
Expanding from a domestic to international company can be challenging, but if done properly it can bring new markets and opportunities. Consider that the US has a population of approximately three hundred million while China has over one billion. Add in the rest of the world and you have a giant potential market. Companies considering international trade should invest in developing their policies and procedures up-front so they have smooth sailing as they grow.
Computer forensics is the intricate science behind investigations and analysis of computer data in order to find evidence and information pertaining to a legal case. This can range from scrutinizing messages on a smartphone device, to sifting through Gigabytes of data on hard drives, or even cloud storage.
This month Lawyer Monthly hears form Craig Reinmuth, a top professional in this segment and the President of Expert Insights, PC, a US-based computer forensics firm. Craig talks about his role, the difficulties therein and the win-win factor of involving a computer forensics expert firm in litigation proceedings.
In cases pertaining to digital forensic investigations, what is commonly involved in your role and how lengthy and complex can the investigation process become?
My role is directly tied to the complexity of the case. Costs are often a big concern with litigation. I therefore encourage counsel to consult with the expert as early as possible in order to develop a strategic plan that will be efficient in the long run. This includes discussions relating to the computers or devices that are most likely to contain relevant data, taking steps to preserve electronic data, and the approach to be taken to obtain the highest level of cooperation from counsel for the opposing party. Should opposing counsel not be cooperative, I will work with counsel in filing appropriate motions with the court to assist in assuring their client obtains the digital data they are entitled to.
What are the primary obstacles in obtaining evidence and facts in order to provide a thorough analysis of digital information?
There are two primary obstacles. Number one, cooperation of counsel. The quality of upfront meet and confer conferences to come up with a mutual agreement significantly enhances cooperation. To gain said cooperation, instead of going after 20 to 25 laptops, an agreement can be made to limit the initial imaging to four or five computers of key people. Based on the review of the data contained on those four or five, sufficient relevant information may be obtained, or you may only need to collect one or two others. Also, assure them procedures will be employed to seclude privileged communications from searches.
Number two, spoliation. Naturally the preference is for the data to be preserved so that it can be ascertained which party is making valid claims. But if the data has been erased beyond recovery, this cannot take place. Nonetheless, I believe digital forensics is a win-win situation. If the data is there, we get to the truth. If it is not there, the party pursuing the digital data is likely to have even a stronger case and win the case based on spoliation alone. At a minimum, material sanctions or adverse inference rulings can be obtained.
How does Expert Insights provide a different approach to the digital forensic process?
Firstly, by not accepting “no” for an answer. Digital evidence leaves behind a trail. By reviewing recovered deleted files, text messages, internet activity, smart phone data, USB history reports, “recent” file activity, “cookies,” GPS data, and information from the registry, a timeline can be put together that will often solve the mystery. A review of this information will also make it clear what electronic data has not been submitted that should have been (e.g. backup drives) and other locations relevant data may reside (e.g. cloud).
As contrasted to electronic discovery, digital forensics can trace documents that were permanently erased prior to submission of the device (volume shadow copy of hard drive), track where the person has been going on the Internet (which can expose what they were researching), and where they may have dumped copies of relevant or confidential files for their future use. “Recent” file activity can disclose activity the individual was up to prior to release of the computer.
Second, by finding ways to provide assistance in every stage of the litigation process, including developing case strategy, the discovery process, analysis of the data, and providing testimony (See table below). This includes developing a clear upfront understanding of the facts and legal positions of the parties prior to reviewing the digital data.
Can the analysis of a large amount of electronic data take a long time? How do you minimize this while still obtaining the required results?
Yes it can. To minimize the time: 1) Be selective with the electronic discovery you collect (see above); 2) Be very cautious with the search terms used to search for relevant data; and 3) Don’t lose site of the core issues of the case.
Does the investigation process differ significantly in complexity according to the digital platform (i.e. mobile phones, hard drives, and the cloud)?
Yes and no. What is most important is using the most appropriate and technically advanced software for the location from which you are going to obtain the data. Specialized forensic software to analyze data on a smartphone, data on a hard drive, or internet activity is different. Some of the analytical procedures remain the same however. Advances continue to be made in the ability to obtain data from the cloud.
You define digital forensics as ‘an art as well as a science’; could you please explain?
Digital forensics is a science and as much as it is a highly technical arena. It requires extensive training and experience. The expert really needs to know what they’re doing, even more so than other areas of expert witness testimony and must stay on top of ever-changing updates to software technology. It is an art from the standpoint of how the expert utilizes their knowledge and experience. How they are able to “think outside the box” and come up with alternate ways to obtain data when they come to roadblocks. The expert’s ability to present technical and complex findings in a clear and understanding manner is also an art for a digital forensics expert.
Is there anything else you would like to add?
Approximately 95% of all data generated today is placed on a computer or phone, and less than 10% of that data is printed out. So whether an executive is: responsible for human relations and suspicious of an employee’s loyalty or false accusations; in finance and suspicious of fraud; or inside counsel involved in unfortunate litigation, it is imperative to examine digital data. And smartphones should be placed at the top of the list… people don’t leave home without them!
It is very rare to come across a professional who in their career to date has had such a depth of unique, high calibre and leading international energy infrastructure experience as our next interviewee, and she says she “still has a lot more she would like to be part of, contribute too and achieve, within the international business and energy sector.”
Lawyer Monthly hears from Nicole Iseppi, currently the Associate Director of Strategy, Economic Development & Communications for Global Centralised Generation at ENGIE. Nicole talks about the progression of how legal skills are now being viewed in being able to add additional value within companies, discusses the first steps of her legal career, and how through great opportunity, they led her to some of the best experiences of her life.
Can you talk LM through the beginning of your legal career, what inspired you to become a lawyer and pushed you to pursue this life?
I am originally from Melbourne, Australia, and have been extremely fortunate to always have strong mentors in my life who have inspired me early on to work hard and “if a job was worth doing, it was worth doing properly.” My parents instilled in me that if you are fortunate to have access to a good education and the chance to be exposed to a variety of opportunities, you also have a responsibility to do something useful with such knowledge and experiences, and return the favour by giving back positively in some way to society.
It all started from the time I was working as a trainee lawyer at Freehills (Melbourne) in the Projects & Energy Group, where I was exposed from day one to this world of “energy infrastructure and finance,” and as the saying goes, the rest is history. I have worked in such sector ever since, around the globe, including having the opportunity to live and work in cities such as Tokyo, Abu Dhabi and Dubai as a senior female professional. It has been this pure passion for the work itself, and having a deep enjoyment of constantly being intellectually challenged & playing a role in contributing to the business acumen and direction of a company, that has led me to take this career path for the past 15+ years and never look back; whilst also at the same time undertaking work that adds value back to society by doing something that assists to bring energy access and energy security to various communities around the globe.
What would you say have been the top experiences in your legal career to date?
I have been extremely fortunate to date, to have had the wonderful and very rewarding experience (both professionally and personally) of working within two great international companies within my career. That is, JBIC and ENGIE. Having the opportunity to act as an adviser to JBIC’s senior management on many of their high profile energy related transactions, plus acting as the adviser to establish and implement on behalf of the Japanese Ministry of Finance and JBIC - the Japan Carbon Finance Ltd (a new financial institution) and also being the first female foreigner to ever work directly as an adviser within JBIC during my time in Tokyo - created an important milestone in my career.
After my 6+years of being based in Tokyo, during which I had such a unique opportunity to work within the international Project Finance department of JBIC and be part of something extremely special, I wanted to become even more actively involved in the long-term development of energy projects and therefore joined ENGIE at the start of 2010, and since then have had the great privilege and reward of being part of the team at ENGIE and holding the following senior legal and commercial positions:
What has been the best decision you have made so far in your legal life?
The decision to join ENGIE at the beginning of 2010 has been, and continues to be, one of the best professional and personal decisions I have ever made. It allowed me to not only become part of an innovative and dynamic group of people who come from multiple disciplines & backgrounds, but also the opportunity to be actively involved in both (i) the initial planning to the post-construction and operation phase of energy projects across multiple continents and (ii) the strategic formulation, as we move through this current energy transition phase the global energy sector is experiencing, providing me with an amazing intellectual reward and sense of contribution.
Due to the exciting work environment ENGIE promotes and inspires in its employees, there is always great energy and enthusiasm in the office, which makes it an absolute pleasure to come to work each day. In light of this, I aim to constantly add value and contribute to the team, in order to assist in the achievement of ENGIE’s objectives.
What are the most recent roles and tasks you have been involved in at ENGIE?
Since the beginning of 2016 I have been applying my skills and industry knowledge as part of ENGIE’s global centralised generation strategy team. Centralised generation is an essential part of both ENGIE’s portfolio of assets and the global energy sector. In working through the energy revolution that is currently transforming our global energy markets, we collaborate with our fellow colleagues within ENGIE - across all our different regions of activities - to achieve further successes in our united pursuit of ENGIE, continuing to be a leader in tomorrow’s energy world. It is extremely rewarding to apply my skills and experience (which have also originated from my legal career) to such a strategic & commercial role and collaborate with my colleagues, so to create additional value for the benefit of ENGIE and the energy sector we are all active participants in.
As a result of my past legal and strategic experiences, this year it has also been very exciting to be given the opportunity to be part of the core team in assisting Isabelle Kocher (as Chairperson of TWI and also as our inspiring CEO of ENGIE), in the implementation of the global solar Terrawatt Initiative (TWI) and TWI’s global ‘Solar Energy Standardisation Initiative’.
TWI was launched during COP21 in November 2015 as a global independent non-profit organisation that aims to promote the acceleration of solar development. In June this year, together with the International Renewable Energy Agency (IRENA), TWI has launched the ‘Solar Energy Standardisation Initiative’, which aims at standardising contracts to streamline the global development and finance of solar projects to assist in meeting the objectives and quotas the governments around the world set via ‘The Sustainable Development Goals’ and the ‘Paris Agreement’.
There is a strong political call for our economies to deliver more sustainable growth, to more people, and to recognise that universal energy access and energy security are critical to the shared prosperity and future of our planet. The energy sector is at the centre of this revolution in the making, in particular solar, because of its ability to provide clean and affordable energy. The energy sector now has to deliver the many socio-economic benefits of affordable renewable energies at the scale required by these two political landmark decisions, and hence TWI aims to animate a high level public and private dialogue at a global level, to bring all core stakeholders together (from funding sources to energy companies and equipment manufacturers) in an open, innovative and collaborative environment, to work out exactly how we can all best define and implement such a global market for solar power.
If you hadn’t chosen the energy sector, what kind of professional world would you have worked in?
Looking back over my career to date, I can say that I’ve had the fortunate opportunity to spend the whole of my career within the energy sector, which has provided me with a very strong base to develop a wide range of commercial, legal, financial and strategic skills and know-how. I’ve always enjoyed being intellectually challenged and working to assist in constantly adding value to the company and therefore, as we now work through the energy revolution that is currently transforming our global energy markets, it is extremely motivating to work for a company such as ENGIE that has been proactive in developing a plan in steering us through this energy revolution period. I am excited as to how I can further professionally contribute to the future of our global energy sector and the opportunities that may lie ahead.
As a long-standing and reputable voice in the energy-legal sector, what advice do you have for lawyers who want to pursue this path?
The best piece of advice I can offer to other professionals in the legal and energy sector is : “Make sure you explore different things during your career; discover what your true passion and interests are, and then once you have found your areas of focus within work, dig deep. It is this passion that will drive your ability to work hard and have the determination to achieve and make positive contributions. Gather all of your courage and believe in yourself. Back yourself to achieve and make sure you have a good support network around you and most of all, make the best of every opportunity.”
Can you detail some other past achievements throughout your legal life which you are most proud of?
- Being appointed to act as the Global Team Leader for ENGIE’s Structured Network on Financing Agreements for ENGIE’s international energy finance practice;
- Acting as a senior adviser to ENGIE for execution of its first ever project bond transaction in the global finance sector (that is the Shuweihat S2 Project Bond Refinancing in Abu Dhabi, UAE); and
- Being invited as a guest speaker at various global finance & infrastructure conferences, including regularly as a member of the Global Power Panel of experts for the International Bar Association, where we have the opportunity to share our industry knowledge with professional peers and collaborate - for the future success of this sector.
