Understand Your Rights. Solve Your Legal Problems
Competition and antitrust law is of course an integral part of the business world, ensuring fair competition between competitors and guarding against one company dominating the market, and therefore limiting the choice and variety that the market is offered.
Talking about the latest competition discussions and challenges in the EU markets, about his own work in this field, and on how IP rules may in turn soon affect antitrust matters, is Howard Cartlidge, Partner & Head of EU/Competition at the London office of DWF LLP, a UK law firm.
Howard is a commercial lawyer specialising in EU and UK competition/antitrust law and regulation with a particular focus on competition and regulatory disputes and investigations. He acts for clients across a wide range of industries, particularly regulated sectors and businesses reliant on intellectual property rights.
What are currently the biggest discussion points on EU competition law?
The European Commission under Competition Commissioner Margrethe Vestager remains very active. Four areas are of particular interest:
What does most of your competition work revolve around and who are commonly your clients?
Much of my work involves assisting businesses involved in investigations by the competition authorities. Litigation is another major area and increasingly it is both the first recourse for victims of anti-competitive activity – preferred to the slowness and unpredictability of filing a complaint with an authority – and an inevitable response to an authority's infringement decision, where "follow-on" damages claims are becoming the norm.
How have you seen antitrust litigation evolve throughout the EU over the past decade?
Antitrust litigation has grown enormously in volume – 10 years ago it was still relatively uncommon to sue for breach of competition law, whereas today it is routine, even if many detailed legal issues remain in contention. Although Germany and The Netherlands have seen significant cases, the UK has been the pre-eminent venue for competition actions. Whether that can survive Brexit is one of the many unanswered questions.
What do you believe to have been the biggest turning point in that time?
I don't think there has been one turning point in the UK, with its steady and growing stream of cases. However, the Damages Directive will be a minor revolution for many national jurisdictions within the EU, most notably by introducing limited obligations to disclose documents relevant to the case. Whilst standard in the UK, this is wholly new for many civil law jurisdictions and it will be fascinating to see how courts cope with it.
What would you say are the further steps to be taken in terms of legislative development?
Damages Directive aside, I would expect some slowdown in EU legislative developments on antitrust. However, antitrust law could be significantly impacted by changes to EU intellectual property rules as part of the Digital Single Market initiative, as the Commission seeks to promote cross-border trade.
What are the key points to consider in terms of competition law when it comes to commercial agreements and IP licences?
As with any agreement, context is crucial – what markets are affected by the agreement or licence and what is the position of the parties in those markets? In addition, clauses that seek to fix the prices that customers or licensees charge for their products are always problematic. Another EU–sensitive topic is any attempt to divide up EU markets by territory.
As a thought leader, are there any issues you are currently lobbying on?
As a competition specialist, I tend to confine my own lobbying efforts to arguing for clarity and utility on competition legislation and guidelines. However, a wide range of government legislative initiatives can impact the competitiveness of particular industry sectors, and a competition lawyer's skillset can often be useful in formulating clients' arguments to government.
Beginning a new position at DWF, what are your goals for the antitrust & competition practice?
I am looking forward to working with the great team DWF already has in the UK and in Brussels to grow our practice. My own particular focuses are on contentious competition law and the technology and communications sectors, where I think we have enormous potential to grow. The firm is also becoming increasingly international, with our German and Irish businesses being particularly interesting for the competition practice.
Estate planning is a complex area of the law, with regulations and directives that are changing from year to year, and at all times, lawyers need to be ready to advise on all the latest legal updates, and be highly aware of the most efficient ways to minimize taxes and expenses surrounding the transfer of estate and assets. That’s where this thought leader’s experience and forward looking attitude comes in.
Here Donna Jackson, Founder of her own firm, Donna J. Jackson, Attorney at Law, PC, gives brief insight over the work her and her firm does in estate planning, her thought leadership therein, and an provides an overview of the kinds of clients she works with daily in Oklahoma, US.
What would you say are the most common obstacles clients face in the US as they look to plan their estates?
Estate planning is not just about dying and saving estate taxes. Clients worry about who and how they are going to take of themselves and their families if they get sick and have to go to a nursing home.
Many people would assume that when one dies or becomes mentally disabled, without proper estate planning, their assets automatically pass to their next of kin or offspring. Are they wrong and why?
Assets do not automatically pass to the spouse first, then the kids. If a husband dies without a will or trust in place, the spouse will only end up with part of the husband’s estate, depending whether there are children of this marriage, children of prior marriage, no children, and parents living.
What would you say makes you the go-to attorney for estate planning in Oklahoma?
The greatest fear that drives people to my office is illness, often with the threat of nursing home confinement.
What is currently the scenario in regards to estate planning in the US, particularly pertaining to the IRS and congress?
Currently, there are no estate taxes for estates under $5,430,000. The Presidential candidates and Congress want to change this.
What would you say are still further steps for the US government to implement in terms of estate planning law?
The US Government is implementing legislation to limit the use of discounting when valuing transfers of family owned businesses.
As a thought leader, how are you actively working towards the development or implementation of new estate policies?
I am actively involved with the National Academy of Elder Law Attorneys, the American Bar Association and the Oklahoma Bar Association.
Do you have a mantra or motto you live by when working with your clients in this legal segment?
My staff and I help to provide care and peace of mind to my clients and their families.
Is there anything else you would like to add?
Estate planning is about taking care of the living!
‘The UK Licensing Act 10 Years On’
In the UK, the night life entertainment industry is regulated by the Licensing Act (2003), which governs the licensing of premises that sell or supply alcohol, provide live music or entertainment. Given the size of this sector and the complexity of how each bar, pub or club functions individually, regulations and compliance are crucial in keeping operations afloat.
Over the next few pages, Lawyer monthly has had the privilege of speaking with Helen Wilson, Head of Procurement and Legal Contracts at The Deltic Group, the UK’s largest operator of premium late night bars and clubs. Besides detailing her role at The Deltic Group, her leadership in the company’s operations, and the challenges of being the Head of Legal in such a large entertainment group, Helen discusses the establishment, progression, impact and future of the Licensing Act, with some reference to Brexit and the changing landscape of today’s night life culture.
What kind of legal matters do you generally deal with at the Deltic Group?
My remit is far wider now than it’s ever been and the learning curve of 2016 has been a steep one! My initial role with The Deltic Group was as Head of Legal, I am also assuming temporary responsibility (maternity cover) for company secretarial duties, insurance and litigation. Following a restructure, I am now Head of Procurement and Legal Contracts.
The range of legal issues I am grappling with on a daily basis includes contractual matters for the business (which at the time of writing has 59 trading clubs), advice to the shareholders, licensing issues, data protection issues, IP portfolio maintenance and public liability insurance claims. I also have day to day involvement with suppliers (wet and consumables) and manage the tender process with Deltic’s Senior Buyer.
I advise the Board in relation to acquisitions, disposals and deal with company secretarial matters. On a managerial note, I am fully focused on motivating and supporting my team of eight, which currently includes Licensing, Insurance and Litigation and Procurement.
With such a broad range of responsibilities, my days include all manner of occurrences from the intense and pressured negotiations of acquisitions to, on occasions, service delivery standards by our cleaning contractors to analysis of income for AWP machines!
What would you say are the biggest rewards of working in the hospitality & entertainment sector, particularly in your legal role?
Well, never one to be still and always needing a challenge, I particularly enjoy the fact that no one day is the same! I also get a lot of personal satisfaction from supporting our teams around the country. They are hard-working, dedicated and under incredible pressure. Providing supportive, professional and solid legal support enables them to confidently deliver at the sharp end.
How did your previous experiences in law practice prepare you for this legal role?
I always enjoyed the client relationship management side of my previous role and this position at Deltic enables me to get under the skin of the business and put that commerciality into practice. I am a “doer,” and by listening to the needs of the operators of the business, our team is able to find practical solutions in a proactive way. As a transactional lawyer, I am used to juggling a number of balls at the same time and keeping them in the air. That has been essential in this role due to the variety and often urgency of dealing with the authorities on licensing matters or getting contracts over the line.
What goals did you aim for when joining the Group in 2015, and have these now changed? Do you have new professional goals for the Group?
Interestingly, I joined Deltic with no knowledge of the industry to cover a period of maternity leave, so my expectations were initially short term. I was completely unprepared for how much I would learn and how much I would enjoy this vibrant and interesting industry.
I can honestly say that when I used to go out for a social evening with friends, I never stopped to think about what it takes to provide the evening. Do any of us? If we are having a good time, then probably not.
Operating a late night entertainment venue, whether it’s a club, a bar or a multi-experience club, is nothing short of a military operation. It involves many layers of specialist staff, all managing different parts of the operation to provide a high-class and seamless experience.
When dealing with the public there will always be things that don’t go according to plan. That is why we invest so heavily in training our staff, at every level, to ensure they are prepared to respond to everything from a slip or cut right up to the highest level of crisis. Our customer’s experience and welfare is paramount.
The aim is for our customers to go home remembering an exceptional and memorable night, unaware of the efforts being made behind the scenes and able to reminisce with friends the following day.
Can you tell LM a little about the establishment of the UK Licensing Act (2003) and what it replaced at the time?
The Licensing Act 2003 made provision for the regulation of the sale and supply of alcohol, the provision of regulated entertainment and the provision of late night refreshment and for offences relating to alcohol and connected purposes. It combined eight separate licensing regimes into one, also transferring the regulation of the sale of alcohol from licensing justices and magistrates’ courts to local licensing authorities.
The modernisation of the legislation was intended to support a number of key aims which the Government intended to be principle aims for all involved in licensing work including:
The UK Licensing Act (2003) has had a positive impact on the late night economy with many of these objectives being achieved since its introduction. However, the unsavoury behaviour of some customers, together with the irresponsible attitude of a small percentage of operators, has cast late night activities in a less than positive light. As a result, the authorities have used the new legislative powers to make wide sweeping changes across the entire industry.
Can you explain how it initially impacted the Group? What were/are the significant benefits?
The streamlining of the licensing processes was definitely a benefit and provided clarity from the Government about the application and interpretation of the legislation.
To what extent do you believe the Licensing Act, since 2003 to date, has shifted cultural and social change in the UK’s live music and clubbing scene?
Entertainment is intended to be available to all, in all its forms, with the only limits being entirely reasonable ones; licensable activities are only restricted where its provision would be detrimental by undermining the four licensing objectives, each designed to protect the public; protecting children from harm, the prevention of public nuisance, the prevention of crime and disorder and public safety.
We work hard to ensure that we always deliver great nights out with great entertainment whilst meeting our regulatory obligations. However, I don’t feel it’s unfair to say that the emphasis of protecting the license for some operators has taken such a precedent over providing entertainment. As a result, many licensees now won’t work to provide live music or music events because of the inevitable complaints.
Do you believe that some of the Act’s directives have driven challenges within the Group?
I’d say the Act itself hasn’t driven challenges, but the effects of the introduction of the Act, on the late night economy, has certainly created challenges.
The almost complete lack of regulation regarding supermarkets and off-licensed premises, combined with the incredibly cheap prices for off-sales, means the on-licensed premises is being challenged in every way imaginable. The overheads and associated costs of providing high-class, professional establishments with top line entertainment are considerable.
How have you helped overcome these since you joined in 2015?
By educating our staff, whilst providing a legal and licensing support function, which helps them increase their knowledge, understanding and confidence about licensing responsibilities and issues.
Are there any challenges in terms of compliance with the Licensing Act, and what are the consequences of non-compliance?
The consequences of non-compliance can be many, varied and severe, and compliance is a priority at the highest level within the Group.
The consequences to any premises licence holder can include damage to their reputation or financial penalties, but they pale into insignificance when considering the potential cost to any injured party. The costs can be life altering, whether it’s through being a victim or perpetrator of crime or suffering a serious injury or loss. We strive not just to be compliant, but to achieve the highest and most robust level of compliance possible, continually reviewing and looking to improve.
Have there been any other EU or UK legislative developments to impact the way the Group operates in the last few years?
The need for transparency in the supply chain supported by the Modern Slavery Act 2015 means that we needed to analyse our supply chain and prepare a code of conduct that new suppliers will sign up to next year. We purchase goods and services to support the operation of our trading clubs and bars and the provision of late night entertainment. Consumables purchased include drinks, food, marketing materials, ICT equipment and estate services such as cleaning, waste management, fixtures and fittings and security and uniforms.
What do you believe hospitality & entertainment businesses should be considering in light of Brexit?
For us, it’s very much business as usual. While it is too early to identify any potential implications from the UK’s likely exit from the European Union, we are confident in our strategy and will continue to grow the business, plan refurbishments and invest in our venues and people as usual.
As an industry, over the next two years we will need to consider how we mitigate the effect of this and consider alternative solutions to maintain the quality of our offering. It will be interesting to see what the implications will be for data protection.
Is there anything else you would like to add?
Do you want to book a booth and have a great, safe night out?
The global hospitality industry is huge. From hotels and restaurants to theme parks and cruise lines, this sector employs hundreds of thousands of people all over the world and is subject to a wide and ever-changing set of regulations.
Douglas Wignall, consultant solicitor with Cubism Law, here talks to Lawyer Monthly about the complexities involved in his work, his thought leadership, and touches on the ins and outs of drafting the kinds of contract agreements he deals with.
What are the key challenges you face on a day to day basis, specifically in terms of contract drafting? How do you overcome them effectively?
The key challenge for me, if I am acting for a hotel owner in a management contract negotiation, is to recognize that each hotel owner will have different concerns regarding his legal/commercial relationship with the hotel operator and what could be a key issue for one hotel owner may be of no concern to another and vice versa. Hotel owners vary considerably in their priorities depending on whether they are developers, investors, institutions, entrepreneurs or governments, and depending on the region and country in which the project hotel is located. Therefore the amendments, additions and deletions to the management and related agreements you negotiate for one owner, with a particular operator, may be totally inapplicable in the management agreement negotiations with the same operator for another owner.
What considerations do hospitality companies such as hotels and restaurants need to be aware of in regards to regulation in the UK? How do you assist in this regard?
The law affects the hotelier in many more ways than most other industries. It involves, for example, contracting with guests and customers, suppliers, employees and professional advisers; complying with regulations/laws by central and local government (licensing, health and safety, food standards , consumer protection all spring to mind); also you need to be aware of the hotelier’s liability as an occupier and his liability for the property of guests and of many other areas of the law such as race relations, sex equality and potential legal issues arising from the letting of banqueting rooms and the hiring of entertainers, to name just a few.
I spend a fair bit of time keeping on top of all the areas of law which affect my hotel clients and on which I might be called upon to give advice. I have also prepared legal audits or checklists itemising all the elements of hotel operations and how best to implement them whilst staying on the right side of the law. I prepare this in the form of a questionnaire, which I would go through with the owner or general manager of the hotel, and if need be their key staff.
Can you detail a recent project you have advised on to which you applied particular thought leadership? What were the complexities involved?
I acted for the Government of a country with a stunning coast line, 30 hectares of which it wished to lease to an operator for the operation of two luxury hotels and one five star hotel. The ‘country’ only actually became an independent country sometime after I became involved in the project and, being recently part of a communist state, my client instinctively thought of the Government as all powerful and able to deal with problems as and when they arose, and not to predict and plan for them in advance. There were many problems, the foremost of which was the fact that there were no established leasehold laws or precedents, and several laws had to be passed for this project to happen. There were also issues relating to title, rights of way and with the employees of the existing hotel which had to be shut down for two years during upgrading.
During the negotiations my client came round to a more Western way of doing business and we were able to incorporate in the lease provisions dealing with most potential problems or issues that arose. It was a fascinating project not just for its legal issues, but for its quasi-political dimensions and for the need for all the players to adapt to a new business mind-set.
What are the challenges involved in drafting management agreements in the hospitality sector?
I have drafted several template hotel management agreements on behalf of either start-up hotel operating companies or established hotel operating companies entering into management agreements for the first time. The challenges I am faced with vary considerably from client to client, but here are some examples:
How does being a member of the Associate of Hotel Solutions Partnership help you expand your boundaries and boost your thought leadership in hospitality law?
Hotel Solutions Partnership (HSP) is an association of over 40 independent consultants each with at least 10 years’ experience and which, collectively, embrace substantially all the areas of expertise associated with the hospitality industry including services related to acquisition, development and operations. By being part of a team of hospitality consultants, HSP has helped me expand my boundaries by applying my services to matters not exclusively involving the law. Two examples:
From estate planning and probate, to fiduciary services and health care directives, elder law is in intricate and complex legal segment, with rules and regulations that can differ from state to state. Here to talk Lawyer Monthly through the challenges involved in this field, the latest legislative changes in the US, and through his and his firm’s thorough leadership in the realm of elder law, is R.J. Connelly III, a specialist attorney at Rhode Island law firm, Connelly Law Offices, Ltd.
Connelly Law is a family-owned law firm that specializes in probate, estate planning, elder law, and elder law-related fiduciary services. We strive to give our clients the best legal representation and assistance, and our firm works as a team to successfully meet our clients' end goals. Our firm assists clients create advance health care directives, trusts, wills, powers of attorney, and other essential estate planning documents. For clients who need help with probate, we may walk them through the probate process, assist with estate administration, or represent them during an estate litigation case. Elderly clients who need any type of fiduciary service, representation, or retirement plan may contact our office, as well.
R.J. Connelly III practices in the area of elder law. This area of law involves Medicaid planning and asset protection advice for those individuals, and their families, entering nursing homes, planning for the possibility of disability through the use of powers of attorney for the both health care and finances, estate and tax planning, guardianship, probate and estate administration, preparation of wills, revocable and irrevocable trusts and special or supplemental needs trusts. Attorney Connelly practices heavily in both contested and uncontested probate court matters and provides a wide range of fiduciary services to his clients in acting as trustee, attorney-in-fact, and representative payee or other court appointments. He represents clients primarily in the states of Rhode Island, Connecticut and the Commonwealth of Massachusetts.
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What kind of considerations do your clients need to prioritize in their later years, and how do you help in this regard?
Clients need to begin to prioritize their future needs relating to health, welfare and the transfer of wealth as soon as possible. Many people wait to the golden years in order to think about their estate plan. By delaying this process they may lose out on several benefits of pre-retirement estate planning. Clients need to consider Estate Planning, Medicaid (Title XIX) Planning, tax planning and continuum of care planning when it comes to their living arrangements.
What are the top three mistakes most elderly make in terms of asset planning and medical planning?
The biggest mistake elders make is not having the most basic estate planning documents. Without a health care proxy and durable financial power of attorney in effect the filing of a guardianship may be necessary. The Guardianship process is a probate court proceeding which, in essence, strips the civil liberties and decision making ability from the elder to a third party, obviously less preferable than pre-planning. Many elderly have the mistaken belief that they must utilize all their assets in order to obtain assistance relating to their nursing care, housing and health. This stems from the mistaken belief that they will only be entitled to government assistance if they are poor.
A mistake that some elderly clients make is putting off any estate planning because they are confident that they will never need skilled nursing care or that they have sufficient assets to obtain the care that they may need in their golden years. Another mistake some elderly make is not having a trusted advisor(s) attorney, accountant, or investment advisor. The statistics of elder financial exploitation are staggering and only growing. While much of the exploitation occurs with a family member or friend using a power of attorney, there should be oversight. Sometimes a trusted family member or friend is the most logical and appropriate choice, there are times when engaging a professional with oversight and insurance/malpractice to protect the elder is the better choice.
Have there recently been any ongoing legislative developments in regards to law surrounding the elderly and estate administration?
Connelly Law works in three states, Rhode Island, Massachusetts and Connecticut. Massachusetts has recently adopted its version of the Uniform Probate Code which Connecticut did some time ago. Rhode Island still works on its own somewhat antiquated version of the probate administration. While the UPC streamlines the probate process in many ways, it would behove other states to follow suit.
As a thought leader in this field, if you could change any laws pertaining to the elderly, were would you begin?
I would like to see the laws protecting the elderly from financial exploitation, abuse, neglect and self-neglect strengthened. Many states have been slow to react and while some legislation has been enacted to strengthen the protections necessary, there is still a long way to go.
Another change that would be made is legislation dealing with the soaring cost of long term care. So few people have long term care insurance because of the prohibitive cost and underwriting requirements, families are left financially devastated. Laws need to be changed in order to address these problems.
How are you actively working towards the development or implementation of new or amended legislation, and how has your thought leadership contributed towards this?
Connelly Law attorneys work with several groups, agencies and academies which attempt to influence legislation for the betterment of the elderly community.
What would you say makes you the go-to attorney for elder law in Rhode Island and Connecticut?
Connelly Law Offices believes that the needs of our clients are a top priority. R.J. Connelly III was certified as an Elder Law Attorney (CELA) by the National Elder Law Foundation (NELF) in 2008.
He was only the third attorney in Rhode Island certified as CELA and is the only practicing CELA in Providence County. Lawyers who are certified as specialists have been recognized by independent professional certifying organizations as having an enhanced level of skill, as well as substantial involvement in established legal specialty areas. Certifying organizations require lawyers to demonstrate special training, experience and knowledge to ensure that recognition as a certified specialist is meaningful and reliable.
How would you say the demand and type of issues significantly differ between your clients between the various states you operate in? Are there considerable legal differences?
One difference is that Massachusetts and Connecticut operate on the Uniform Probate Code, which Rhode Island does not. Another is the state Estate Tax exemptions with Connecticut at $2 million dollars, Massachusetts at $1 million dollars, and Rhode Island recently changing last year from $921,655.00 to $1.5 million dollars. Currently, the federal rate is $5.43 million dollars.
Do you have a mantra or motto you live by when working with your clients in this legal segment?
Connelly Law Offices, Ltd., a preeminent probate, estate planning and elder law firm, has a mission to protect the legal rights and financial resources of our clients by employing a multidiscipline approach of legal and wealth management expertise to empower our clients, enhance their quality of life and provide peace of mind to meet their current and future needs.
Insolvency disputes inevitably rise during periods of economic turbulence, and the recent global financial crisis has left uneven opinions and priorities within businesses worldwide. In such situations, it’s very important that credit holders, as well as directors and management, are aware of resolution avenues and the latest in regulatory legislation; advice only a well-experienced insolvency practitioner can provide.
Here Jack Esher of CBInsolvency LLC discusses the challenges involved in insolvency scenarios, his thought leadership in implementing mediation and arbitration in insolvency proceedings, and touches on the positive benefits of resorting to such alternative dispute resolution methods in resolving such business circumstances.
Jacob A. (Jack) Esher has over 30 years of experience as a former insolvency law practitioner in the US, and began serving as a mediator in matters 25 years ago. He is a co-author of the American Bankruptcy Institute’s Bankruptcy Mediation (2016), and was the founding and presiding chair of its ADR Committee from 1994 to 2001. He most recently served for several years as one of the principal mediators in numerous large and complex disputes in the Lehman Brothers bankruptcy, and has trained over 750 mediators for the Thailand Judiciary.
In addition to Jack, his firm, CBInsolvency LLC (CBI), is composed of Daniel Glosband, a former partner with Goodwin Proctor LLP, who has practiced in the international insolvency arena for over 30 years, participated in the drafting of the UNCITRAL Model Law on Cross-Border Insolvency, and co-drafted Chapter 15 of the US Bankruptcy Code; and Hon. Leif M. Clark (ret.), a former US Bankruptcy Judge with 25 years of judicial experience as well as over 20 years of mediation experience in a broad array of matters. CBI's model is to assist other professionals on a cost-effective basis and not directly represent clients.
CBI is a unique assemblage of highly skilled and experienced insolvency professionals with extensive judicial, international, and dispute resolution experience who have come together to offer a unique suite of services to the cross-border insolvency community:
Your firm CBInsolvency LLC deals primarily in cross-border commercial insolvency; what are the particular challenges involved in this work?
Cross-border insolvencies often involve a range of thorny problems that require experience and specialized knowledge to navigate. Choice of law and forum, differences in treatment of secured and priority creditors, differences in legal systems and cultures, conflicts of law, competing claims of jurisdiction, recognition and enforcement by one country of rulings and judgments entered in another country are just a few of the challenges likely to arise in many such proceedings.
You specialise in dispute resolution by mediation and arbitration; how do you approach insolvency matters with these methods?
Our firm, CBI, uses a team-based approach that allows us to combine the unique knowledge and experience base of our principals to suit the needs of the engagement and provide a tailored resolution process that may involve mediation, neutral evaluation, arbitration, or some combination of these. We find that mediation is particularly effective when the dispute involves multiple parties who all have strongly held positions, who all believe that what they want is what is right, and who believe that what the other sides want is wrong, unfair, unreasonable, and incompatible with their goals.
How commonly are insolvency matters resolved through mediation, as opposed to arbitration, and how do the benefits differ between them for insolvency scenarios?
Arbitration is essentially an adjudicative process using a third party decision-maker, similar to a judge. The parties cede their decision-making authority to the arbitrator and the result is not predictable. Mediation, by contrast, is a negotiative process which allows parties to keep control and decision power over their business disputes until they reach a consensual resolution. The mediator serves as a buffer against the contentious positioning and argument that often derails direct negotiation, greatly increasing the prospects for resolution. Mediation has become the preferred alternative in insolvency matters by a wide margin.
Being a thought leader, after founding the American Bankruptcy Institute’s ADR Committee, you co-authored a guide surrounding Mediation on US bankruptcy matters and you also were the lead mediation trainer for the Thailand Judiciary for several years – what impact did this have in the legal sphere and how important do you believe awareness of ADR in this segment is?
Mediation in the US largely grew from grass roots efforts in the field on a somewhat ad hoc basis. Mediation in Thailand came from the judiciary creating the ADR Office and training mediators to serve in the civil courts there. In both cases, raising the awareness of ADR and an understanding of how it can be effectively used with minimal risk to clients has been key to its success. This has primarily come from writings such as the ABI’s most recent Bankruptcy Mediation and from ADR trainings to practitioners and judges. It has had a profound impact on all aspects of resolution of disputes in and out of the courts.
As a leader in this field, what is your ‘golden nugget’ of advice for legal practitioners in insolvency?
Practitioners are missing a golden opportunity in cases, and putting their clients in positions of increased risk by not seeking out mediation before resorting only to the court process. Negotiations often founder between an unrealistic expectation on one side and a lack of compromise on the other. This is where the mediator goes to work. As effective as I know mediation to be, I continue to be amazed at how the process allows settlements to arise from starting points that seemed impossible to bridge.
Is there anything else you would like to add?
Sophisticated business clients are no longer required to put their fates in the hands of a time-consuming and increasingly costly legal system over which they have little control. Consensual dispute resolution - CDR - is the way.
One of the most prominent but less publically acknowledged crimes over the last few decades has been fraud, which in recent years has taken centre stage in large-scale political and financial issues, and been the bane of many nations’ governments, especially as the benefits of certain jurisdictions make it easier to hide wrong-doings and deceive the system.
Here to discuss the litigation and defence work behind such large-scale fraud and deceit matters is Yvonne Jeffries, a Partner at Byrne & Partners. Yvonne delves into the best ways to strategize the lawyering work behind fraud, and talks us through hers and the firm’s thought leadership in this complex legal segment.
You have dealt extensively with prosecuting and defending civil fraud claims; what are often the challenges involved in these cases?
Each case turns on its own circumstances. That said, one of the most common challenges in civil fraud cases is responding to attempts to inflict practical and reputational damage to one’s client. This may include seeking intrusive and restrictive interim injunctive relief such as freezing orders and search orders, often accompanied by a damaging media campaign. These measures are designed to harm your client and stop him conducting business freely, with the endgame being to force an unfavourable settlement – or worse.
From a claimant’s perspective, the pursuit of civil fraud claims often requires assets to be traced internationally. Civil fraud claims frequently throw up questions of foreign law and require intelligence to be gathered on a defendant’s assets. Thought often needs to be given to how one challenges the legitimacy of mechanisms used by defendants to place assets out of reach.
How does your 30+ years of experience help navigate these issues what key advice would you give to the potential Fraud Lawyers of the future?
My Experience has taught me that a lot can, and does, change in the course of a long complex case. Even the most horrible ones which look like stomach-churning losers at first, but are often retrievable so long as one has the stamina to keep at it. In terms of advice I would give to would-be fraud lawyers:
What has been your most prominent and impacting achievement in the legal field of Fraud and Deceit?
One of my proudest achievements recently was securing a complete victory for Abdourahman Boreh in the litigation pursued against him by the Republic of Djibouti.
The background to the claim spanned a decade and Mr Boreh faced extremely serious allegations of corruption and abuse of public position. All of this was against a backdrop of uncertainty in terms of the operation of Djibouti law.
This already difficult scenario was exacerbated by the use of a domestic terrorism conviction, made in absentia, to obtain an Interpol Red Notice and Worldwide Freezing Order against Mr Boreh and the brandishing of the underlying judgment to the media, financial institutions and international security organisations, including US Homeland Security.
The key breakthrough came with the discovery that the evidence underlying the terrorism conviction was fatally flawed. We subsequently applied to discharge the freezing order. After a 5-day hearing, during which lead Gibson Dunn Partner Peter Gray was cross-examined, Mr Justice Flaux held that the court had been deliberately and dishonestly misled by Gray and Djibouti, and set aside the freezing order.
The setting aside of the freezing order dramatically altered the momentum of the litigation and the court’s perception of the parties began to shift. In the run-up to and early stages of trial, the Republic dropped all but two of 21 heads of claim originally pursued. After a 10-week trial, the remaining claims were dismissed and Mr Boreh was fully vindicated in his contention that the entire litigation had been the culmination of a politically motivated campaign against him.
I have fought larger and more legally complex cases in the past but not one that has been as all-consuming. It was extremely satisfying to take on and beat a sovereign nation that had far greater resources at its disposal but had seen fit to behave with such impropriety.
In terms of cross-border Fraud and Deceit disputes, what are the biggest talking points and what kind of problems can arise?
A point of personal interest is the use of the English courts, most typically the Commercial Court, by foreign high net worth individuals and sovereign nations to resolve high value cases.
In a couple of recent decisions, the courts have made it clear that parties to litigation here, no matter their status, are expected to play by the rules.
I experienced this first-hand in the Boreh case. Djibouti had a rude awakening when its impropriety led to the discharge of its freezing order. Matters were compounded when the President, Djibouti’s key witness, declined to attend to give evidence despite the court having indicated that he should. The fact that he announced that he wouldn’t be attending in a letter to the judge, referencing his concerns at the precedent his attendance might set, was not well received and his statements were afforded limited weight.
A similar approach was taken in Estrada v Al-Juffali ([2016] EWHC 213 (Fam) and [2016] EWCA Civ 176), albeit in the context of a matrimonial financial relief application as opposed to a civil fraud action. In Al-Juffali, a wealthy Saudi businessman attempted to resist the application against him on the basis of diplomatic immunity because of his role as permanent representative to the International Maritime Organisation for St Lucia. His claim to diplomatic immunity was rejected by the High Court who described it “an entirely artificial construct.” Al-Juffali later appealed this decision, which received criticism from Phillip Hammond, then the Foreign Secretary, who intervened in the appeal. The Court of Appeal found that the High Court had been wrong to hold that Al-Juffali was not, in principle, entitled to immunity. However, it dismissed his appeal on the basis that he was not entitled to immunity because he was permanently resident in the UK and the claim did not relate to any official acts he was performing in the exercise of his functions.
The Foreign Secretary’s intervention shows how sensitive this issue is. These decisions also illustrate the robustness of the English judiciary and how its independence will not be interfered with.
Is there anything else you would like to add?
I would like to say a few words about Byrne and Partners. We consider that we provide a very attractive service. As a litigation boutique, we can keep costs competitive and costs arrangements flexible without compromising on quality. We ensure that there is always hands-on partner involvement, which gives clients great comfort. We receive a lot of our instructions via referrals from high-profile city firms who know we will do a good job but don’t have to worry that we’ll steal their clients. We are used to going up against some of the largest Magic Circle and US firms and getting excellent results. The breadth of our experience in civil and criminal fraud matters means that we have a fantastic network of contacts. Finally, we are absolutely committed to achieve the best outcomes possible for our clients.
With offices in the US and Mexico, Braumiller Law Group, PLLC, is a highly respected law firm focused on customs and international trade compliance.
This month we speak to Partner and Founder Adrienne Braumiller, who has over 25 years of customs and international trade law experience, and is a well-respected attorney in the trade community.
What is your take on the current status of international trade?
International trade continues to grow in spite of any recessions and economic downturns. Companies are continually seeking new markets or sources of supply and labor. Trade appears to be recession-proof (only time will tell) but with an increase in trade comes an increase in trade sanctions and enforcement. The volume of trade continues to grow, giving Customs agencies throughout the world a real challenge in the handling of enforcement and trade facilitation with static resources and ever increasing volume of trade.
What areas has Customs been focusing on lately?
US Customs responds to pressures from several angles. Importers seek recognition and concessions for investing in compliance. Domestic parties seek protection from infringing or unfair imports. Foreign parties want increased access to US markets. Congress is still seeking to legislate major changes as to how the agency manages trade and compliance. One key development is that Customs has issued Informed Compliance Letters to top importers in which Customs identifies possible areas of risk and warns the targeted company to look at those areas …or risk possible penalties. This is an additional tool the Regulatory Audit Division of Customs is using to increase compliance for companies that listen – and for those companies that don’t, a warning to prepare for an audit, investigation and possible penalties.
What are some of the major compliance issues?
Two main areas for customs compliance are intellectual property protection and anti-dumping/countervailing duty. US Customs has been under considerable pressure from Congress and domestic interests to improve its enforcement in these areas. Unethical importers continually seek ways to circumvent the laws and Customs faces major challenges to discover the offenders. It will be difficult for US Customs to make anything other than marginal improvements in enforcement of IP and ADD/CVD. However, one huge hurdle many importers are encountering with increasing frequency involves the use of whistle blower cases under the False Claims Act, wherein a disgruntled or ex-employee informs the US Government that its employer committed fraud by failing to pay ADD/CVD duties. These types of cases are very expensive to defend given the mounds of documents that typically must be reviewed and turned over, and where the penalty is three times the underpayment. I want to point out that False Claims Act cases are not limited to ADD/CVD matters but can be brought for other types of cases where the US Government has been defrauded. It’s also lucrative to the whistleblower who stands to receive up to 30% of any penalty the Government collects.
On the export side, there are many good changes focused on facilitating trade as the US has been actively involved in export control reform and is shifting certain items from the jurisdiction of the Department of State over to the Department of Commerce. This effort has been underway since late 2009 when the President recognized that the export control system was overly complicated, contained too many redundancies, and failed to focus on the most critical national security priorities. New licensing policies are in effect that allow for streamlined exports, so the biggest challenge for exporters is to stay abreast of all these changes.
Are there any Customs updates coming in 2016 and 2017?
Two of the major changes coming to trade and Customs in this country are (1) Customs moving to a new automated program for trade - the Automated Commercial Environment - and (2) new trade agreements. The latter include the Trans-Pacific Partnership which must be ratified by Congress, and the US-EU free trade agreement (TTIP), which is still being negotiated. If approved and implemented these could be the largest free trade agreements in the world.
Given more changes are coming, what do you currently see as common problems in some areas of compliance?
There is a major dichotomy in this country between companies that have made a major investment in trade compliance on one hand and companies that are either uninformed, or scoff laws, on the other. Customs continues to see itself as a revenue collection agency using audits and other tools to ferret out instances of non-compliance. However, companies who invest in implementing effective internal controls and who monitor their import transactions generally fair better in such reviews than those who take the “head in the sand” approach.
Have you seen companies take more, or less, of a personal responsibility in the ‘self-assessment arena’?
If you are asking if more companies are recognizing the need to self-monitor or self-assess to ensure they pose “a reasonable risk to Customs” (this is what any importing company being audited hopes to achieve) – I think there are many good corporate citizens out there that understand the importance of documented internal controls that are periodically tested to ensure such controls are working as intended. In other cases, we see companies who once had a good compliance program in place who have allowed the program to crumble into pieces because either there was no effort to keep the program current, or significant employee turn-over meant that the new team had little to no awareness or understanding of the program requirements. Regardless, I always warn companies that “you don’t know what you don’t know” meaning it’s important to evaluate your import and export activities on a periodic basis. To do otherwise is like driving with blinders on. At some point, you will crash.
Are there other things that an importer or exporter needs to be aware of when importing to a certain country?
That is a very open ended question. There are several things that one should be aware of when importing in general. These include not only customs duties in the country of import but also local and value added taxes. Countries have licensing and local regulatory rules that may make it difficult or impossible to import. There are also specific countries that demand that one pay attention to what the trade.gov website indicates, inclusive of any current sanctions. For example, while the latest deal with Iran could offer some new opportunities to some companies - for US companies the deal offers little change. That’s because US companies continue to be broadly prohibited from engaging in transactions or dealing with Iran or its government. In addition, non-US persons continue to be prohibited from knowingly engaging in conduct that seeks to evade US restrictions on transactions or dealings with Iran or that causes the export of goods or services from the United States to Iran.
Another key development that could impact multinational companies is the EU creation of a new modernized union customs code or “UCC” as it is called that provides some significant changes to how goods are valued for Customs purposes, among other things. Some of those changes include doing away with the “first sale” rule in a transaction where there are successive sales in favor of the “last sale”. Just as in the US the primary basis for determining the customs value of goods is the transaction value, or the price actually paid or payable for the goods when sold for export to the customs territory adjusted, where necessary. Under the current law it is possible to use a sale earlier in the chain, if it can be determined that the earlier sale took place for export to the EU, but now the focus will be on the last sale for export to the EU. This will mean that duties payable will increase.
“Do you see where NAFTA has improved the trade on our side of the planet? What is your opinion on Presidential candidate Donald Trump calling disaster”?
NAFTA is anything but a disaster! Today NAFTA partners exchange about $2.6 billion in trade per day. Instead of causing the US to lose jobs, NAFTA has created huge opportunities for American companies and has allowed them to greatly increase their business. I give regular webinars and in-person training on the subject, and for more information, you can check out the NAFTA partner’s website www.NAFTAnow.org. There is a lot of good information on the site about how much it has accomplished since its beginning in 1994. At the same time, I always stress to companies – that to successfully participate in NAFTA, training, document retention, good internal controls and periodic self-audits are critical. This is very important given the fact that at least 80% of the NAFTA Certificates of Origin, the seminal document needed so a company can import duty-free using NAFTA, is often facially invalid. This advice applies to both exporters and importers in Mexico, Canada, and the US, as the success of these claims depends on the careful administration of the Agreement throughout the supply chain.
What is your take on potential trade with Cuba?
There is a lot of potential for trade with Cuba, but this is going to be a slow process as it has been isolated from trade with the US for decades. There are still many restrictions on both trade and travel. Again, all updates are on the trade.gov website.
Trade with China has become a political issue in this election year. Do you have any insights on this matter?
It is true that our trade with China needs to be more balanced – our imports greatly exceed our exports. We need to recognize that China represents a huge market for US products. US automakers have realized this for some time. If we put sanctions or special duties on imports from China it could jeopardize opportunities to expand our exports to that country. The Chinese will instead buy from other countries, so we would be “shooting ourselves in the foot.”
It’s our understanding that you and your firm have been recognized as one of the leaders in the industry by C2 based out of London …in the category of ‘Best Regulatory Law Firm’.
Yes, thanks, it was an honor to be recognized.
And you were shortlisted in 2016 in the category of “Best Regulatory Lawyer in International Trade” and “Highly Commended as Best Export Control Law Firm” in 2016 by World ECR.
Yes, we were thrilled with these developments.
We saw a recent announcement that you had formed an alliance with The Law Offices of George R Tuttle in California…is that something you could elaborate on?
Absolutely, this strategic relationship brings together firms with similar cultures and practice strengths that are highly complementary. This will enable us to bring a new and broader set of services and resources to our clients.
For over 25 years, the Dallas-based Braumiller team has focused on providing its clients with the highest quality advice and counseling related to international trade, customs, export control, ITAR, sanctions, free trade agreements and cross-border trade. Likewise, west-coast based Tuttle law, one of the oldest customs and international trade law firms in the country, provides similar high quality services in trade areas such as customs valuation, classification, free trade agreements, customs audits, anti-dumping and countervailing duty, penalty and seizure cases, as well as customs and trade litigation, and in diverse commodity fields, such as electronics and instrumentation, apparel, footwear, and life science products.
The union of our firms will enable us to utilize the deeper resources that Braumiller Law Group PLLC, Braumiller Consulting Group, and Tuttle law offices provide, allowing us to expand our capabilities while maintaining an efficient infrastructure for our clients. We are excited to join forces with George R. Tuttle APC, George Tuttle III in particular, a highly respected and well-known lawyer who places his clients' interests and goals at the forefront - a commitment we both share. By joining forces, we combine talent, creativity and experience while driving innovation, efficiency and cost-savings.
Both firms are extremely proud of the quality of their lawyers and consultants, and the quality of their work, and service. So clients can expect the same focus, and dedication they have come to know from each.
And we noticed another firm alliance in Mexico?
Yes, we have an attorney we have been working with in Mexico for many years, Brenda Cordova, and our Of Counsel George Alfonso, located here in Dallas, helped us form an alliance with TOULET, GOTTFRIED, DAVILA Y MARTINEZ, S.C. in Mexico in order to enhance our ability to guide companies who wish to explore manufacturing in Mexico, as well as importing and exporting.
Understood. Before we wrap this up. Can you clarify the role of Braumiller Consulting Group?
Sure, Braumiller Consulting Group is our non-legal entity that helps its clients achieve and maintain import/export compliance, which is a focal point in any well-structured supply chain. They work as a partner in this process, empowering companies with a compliance portfolio that includes the tools necessary to interpret global trade regulations, determine product classifications, and implement the policies and procedures that uniquely affect their business.
BCG also takes pride in offering ongoing guidance, sharing news about the very latest industry trends and the inevitable regulatory changes. Whether a client needs help identifying and solving compliance problems or boosting his or her business with smarter strategies for international trade, our consultants have an impressive track record of success as many have come to us with years of experience in their particular field of specialty. Braumiller Consulting can provide expert assistance in areas such as: Import Process & Customs, Export Process, Licensing & Agreements, Export Licensing Classification, Schedule B Classification, Import Classification under the Harmonized Tariff Schedule, Duty Drawback Recovery, Foreign-Trade Zones, Mexican Trade Guidance, NAFTA & Other Free Trade Agreements Assistance
BCG also provides training and educational services customized to client needs as well. We will be making some announcements in the first quarter of 2017 that we are very excited to share. Our new offerings will definitely be worth keeping an eye open.
In an ever-changing business world, regulations, from competition compliance, to tax measures and banking rules, are also changing from month to month. To keep up and stay tight in business, every company needs the expert opinion of an experienced and well up to date lawyer.
In Madrid, that lawyer is Hermenegildo Altozano, Partner at Bird & Bird, an international commercial law firm. Here Hermenegildo discusses his work in Spain and Latin America, his involvement in the energy industry, and the prospects of M&A throughout the coming months.
Hermenegildo Altozano is a partner in the international law firm of Bird & Bird. He heads the Energy & Infrastructure practise in Spain.
He specialises in Energy, advising on transactions and projects in Spain and Latin America, and provides investment protection and arbitration advice in relation to Latin America. Hermenegildo advises Spanish and international companies on energy projects in Spain as well as in other countries. He has deep industry experience and understanding of not only the legal but also the commercial issues that challenge his clients’ business objectives.
He is the director of the Senior Programme in Energy Law at the Instituto de Empresa (Madrid), co-director of Energy and Regulation Forum at FIDE association and professor of Private International Law at Universidad Francisco de Vitoria (Madrid). He is a regular participant in Intereconomía Business' television programme.
Bird & Bird is an international law firm, with a rare and invaluable grasp of strategic commercial issues. We combine exceptional legal expertise with deep industry knowledge and refreshingly creative thinking, to help clients achieve their commercial goals. We have over 1100 lawyers in 28 offices across Europe, the Middle East and Asia, as well as close ties with firms in other parts of the world.
Can you provide some detail about the corporate tax systems that attract businesses to Spain and Latin America?
Spain has an attractive tax system by means of the ‘Entitidades de Tenencia de Valores Extranjeros’ (ETVE), which operate as Spanish holding companies and benefits from an extensive network of double tax treaties. In addition they profit from the bilateral investment treaties that Spain has entered into with a significant number of jurisdictions.
Which jurisdiction do you prefer working in and why?
Each jurisdiction has its areas of interest. I very much enjoy working in Cuba, given the challenges involved. The process of apparent "normalisation" with the US has still left plenty of questions, and US extraterritorial legislation is an element that needs to be taken into account to define investment strategies in Cuba. On top of that, Cubans are tough negotiators and this also represents a challenge. Deals in Cuba require patience, persistence and imaginative legal solutions to accommodate the requirements arising from a centralised and planned economy on the one hand, and the legitimate interests of foreign investors on the other.
You are heavily involved in the Energy industry; what are some of the common challenges that face Energy companies in both Spain and Latin American countries? How do you tailor your approach to assist them in navigating such challenges effectively?
One of the main challenges is represented by regulatory changes. In Spain, the learning has been somehow painful given the financial implications in the operators following the reduction of the remuneration initially committed by the Kingdom of Spain vis-à-vis the investors, but has shown a way to structure investments in the renewables industry, so to minimise the potential impact of regulatory changes, particularly by entering into power purchase agreements or other mechanisms, evidencing that there is a specific commitment vis-à-vis the relevant investor.
You are involved in mergers and acquisitions within the Energy industry; how healthy is the M&A sector in this area in Spain currently?
Following the main regulatory changes in the electricity and oil industries, the Spanish Energy sector is facing an increasing appetite by foreign investors (mainly investment funds) which are driven by the perception of stability represented by the new regulatory frame and the general consensus that the main issue represented by the tariff deficit is in its way of solution.
How do you see it progressing through the rest of 2016? Why?
The increase in M&A activity will largely depend on whether a new government will finally be formed, or whether Spain will go for new general elections. The political uncertainty is contributing to a slow down for deal flow (although this deal flow continues), given that certain strategic investments require at least an informal ‘nihil obstat’ from the Government.
Next up on our employment focus is Archin Talpade, Principal and Founder of AT Law, in London. Archin talks to Lawyer Monthly about the potential avenues employment law could take in terms of Brexit, the necessity for pre-thought prevention in employment dispute matters, and the ways of dealing with redundancies in a business.
Archin Talpade runs A.T. Law Solicitors in Mayfair. A City career took second place to his (and his clients’) desire to provide (and receive) quality legal services comparable with the City but at competitive rates. Archin took the plunge and started his firm in May 2006 as a boutique employment law provider. That decision paid off and 10 years later, Archin is recognised by clients - ranging from multinationals to private offices to senior employees - as an integral part of their teams.
Archin’s firm specialises in two things – his clients’ businesses and their people. Many law firms these days tend to focus either on acting for employees and employers to a large extent; rarely do firms act for both in equal measure. Archin considers himself privileged to be regularly instructed by both employers and employees at all levels of business, from board rooms of multinationals to senior executives in board room disputes. Because of Archin’s experience in this regard, his firm has developed a strong and distinctive style and ability to understand the mindset and strategy of opponents or the buyers and sellers of businesses in a TUPE transfer situation. This provides Archin’s clients with a clear advantage when assessing the often critical, sensitive and confidential issues his clients could be faced with.
Archin is often consulted where there are sensitive and often critical legal and commercial issues at stake that require an immediate, solution driven and result oriented approach. Archin’s competitive edge over the last decade has been founded on providing quality advice but at reasonable rates.
In advising businesses on employment matters, what do you find are the most surprising pitfalls they never considered?
I’m instructed by a growing number of businesses which have their headquarters abroad. The executives and management teams I work with are highly knowledgeable and skilled at doing what they do. As such, I find that they’re very switched on in recognising when they might need advice and taking that advice before they actually arrive at a pitfall. The same is true of senior individuals, whether at plc level or in the financial services world, these are people who have the foresight to understand when there might, for example, be a dispute brewing, sometimes many months before they reach a potential impasse. My job in those situations is to guide the business or the individual around any pitfalls I or they might have foreseen, usually in the most elegant and least contentious way possible.
When there are pitfalls, which for whatever reason have not been foreseen, these usually in my experience arise where there may have been factors which are almost, you could say, ‘black swan’ events – for example, when litigating, I’ve been faced with errant employees recording meetings with their colleagues or managers without permission. Such recordings may lead to some potentially embarrassing moments for clients but it’s then a question of dealing with such events in the most tactical and beneficial way for my clients.
Are there particular challenges involved in advising large and busy businesses in the City of London on employment matters?
Most clients, be they commercial enterprises or individuals, are savvy business leaders and there’s not much that they’ve not seen or are unaware of. So to advise clients of the type that approach me you need to be able to think creatively and respond rapidly and pro-actively. My clients are not looking for run-of-the-mill advice that a solicitor reading say an online legal service or textbook , might be able to deliver. They’re seeking solutions which will probably require a degree of ‘advocacy’ - whether that advocacy is carried out around a Board room table, over a series of conference calls, in presentations to prospective purchasers or sellers of my clients’ businesses and/or services or before an Employment Tribunal. It’s really the art of persuasion, in one form or another, married with an in-depth understanding of the practical implementation of the law, which brings about the desired results for my clients.
You have previously advised CEOs of FTSE 100 companies negotiate their exit packages; what kind of complexities did this involve?
Whether you’re dealing with a CEO or any other senior employee, the law is the same – it’s the scale and the tactics that we employ that differs. The key with any client - but in particular a CEO or senior executive - is to ensure that they’re fully aware at all times of the position and are on-board with the approach and tactics, which have to be deployed sometimes within hours of the first meeting. Particular complexities could also include concluding negotiations sometimes within 24 to 48 hours given the sensitivity of such matters on the share price of a plc. Senior executives above all value precision in advice, determination, speed and quick wits!
You have also previously engaged in defence cases surrounding employment matters; what do you find is the best way to approach redundancy claims?
With a degree of empathy for all involved. My company clients, who are usually well versed in dealing with all aspects of employment law including redundancies, understand that first and foremost they’re often dealing with a life-changing situation for their employees, sometimes of many years standing. It’s therefore a concern for many of my clients that they operate fairly – which is not always simply about money – it’s about the human aspect of employment law.
Do you work mostly alone in the capacity of employment law, or alongside a team?
It very much depends on the case. If it’s a large case with different strands which might cross over into employment law, corporate and tax, then I work alongside colleagues, counsel and consultants specialising in those areas.
On the back of the recent Brexit vote, do you expect much change in the realms of employment law and the demand in legal services?
It‘s not entirely possible to predict exactly how the UK's laws might change following the UK’s exit from the EU. Changes to UK laws will likely stem from the arrangements the Government applies when formalising our departure from the EU. There are broadly two ways of dealing with our exit: the first way is a model based on us joining the EEA perhaps in the same vein as Norway; or secondly, the Government of the day tailoring a custom-built UK- EU relationship. The ‘Norway Way’ would entail the least change, as EU law on the whole would likely remain more or less intact. The ‘UK-Tailored-Way’ could in theory lead to a more significant degree of change, particularly to laws which are “EU-Centric” such as certain aspects of TUPE.
In practice, it remains to be seen whether any Government would wish to cause such a potentially seismic change immediately following the implementation of Brexit - which would then have a major impact on employers and employees. Any change is likely to be carried out over time and after consultation with employer groups and employee groups including the CBI and Unions.
As a thought leader, if you could implement changes to facilitate your work in the UK employment landscape, where would you start?
It’s apparent to me that the landscape of employment – not just employment law – is shifting; this can be evidenced by, say, the number of commercial properties which remain vacant for longer, the rise of technology in reducing the numbers and types of jobs (e.g. in the retail sector and financial services sector), the outflows of jobs abroad and the continuing popularity of flexible working patterns. It’s a debate that’s been raging across academia, but is also incredibly relevant to all of us in the UK economy:- how do we preserve skilled paid jobs to facilitate the continued success of the UK? The answer does not solely lie in changing or reducing the impact of employment laws or immigration laws. The answer, I think, partly lies in having a pre-eminent education sector which builds the workforce of tomorrow today while co-ordinating a more holistic and less prescriptive approach to employee relations by both employer and employee groups – eventually leading to a genuine economic and business partnership. That, I think, is the challenge for this country - and the solution doesn’t just lie with the lawyers or legislators.
