Having recently launched a new office in Sydney, directed at providing legal services throughout the Australasian region, fast-growing international law group Thomas Miller talks to Lawyer Monthly about its thought leadership as a firm, and introduces two expert partners with plenty of experience in the admiralty & maritime sector, who will be managing the new Thomas Miller Australia branch.

Thomas Miller Law Australia is part of a new and innovative approach to delivering legal services pioneered by Thomas Miller, the leading provider of professional, insurance and financial services to the marine and logistics sectors. Thomas Miller Law has been operating in England since early 2015 and now serves the Asia Pacific region through Thomas Miller Law Australia, based in Sydney.

So what’s new about the approach?

Thomas Miller Law Australia delivers legal services using a modern, commercial business model, without the costs and constraints of the traditional professional services approach. The Thomas Miller Group has some 135 years of experience in delivering financial insurance and risk services to the maritime and logistics sector globally. Drawing on this experience, Thomas Miller Law was developed to deliver specialised legal services in a way which answered growing calls in the market for a revised and modern service and contemporary cost model.

While Thomas Miller Law Australia can draw on the global network and vast technical expertise of the Thomas Miller Group, it operates independently, serving a diverse range of marine and logistics clients within Australia and the Asia Pacific region, as well as those from further afield doing business here. Clients of Thomas Miller Law Australia need not have any connection to any other Thomas Miller Group business services.

The principal lawyers heading up Thomas Miller Law Australia are Alexis Cahalan and Danella Wilmshurst. Both have extensive experience in maritime and logistics law having practised at Australia’s top tier maritime firms over many years. Their experience encompasses regulatory and commercial work as well as commercial dispute resolution and is enhanced by an in depth industry knowledge and experience.

Can you talk LM through your previous experience at maritime and transport firms and how this brought you to where you are today?

For many years I was a solicitor with Ebsworth & Ebsworth and subsequently with Norton Smith & Co where I became the first female partner in the Transport and Insurance Group. I went on to become one of the founding partners of Norton White, transport lawyers. I also spent some time working for a large London shipping firm, which was invaluable experience in the international shipping and London insurance markets, before completing my master of laws in International Commercial Arbitration.

Experience gained as a solicitor translated well when I became in house legal counsel for an offshore mineral exploration company, establishing operations in many Asian and Pacific jurisdictions. More recently, I have been based in the Sydney office of the TT Club, Thomas Miller’s ports and logistics insurer, delivering immediate legal commercial solutions on a day-today basis with transport and logistic operators in the region.

Can you detail some of the cases you have worked on in this sector and how your expertise helped towards their successes?

Working in the transport sector often involves reacting to the whole range of issues which arise on a daily basis in the transport industry. These can range from:

• Container handling and stevedoring incidents including dealing with disposal of hazardous cargoes;

• Advising on port authority emergency responses and operational responsibilities;

• Road haulage regulations and incidents;

• Advisory on insurance coverage;

• Drafting and advising on trade terms and conditions;

• Advising on regulations which apply to international vessels coming into Australia and those operating domestically;

• Meeting the demands of cargo owners affected by maritime disasters such as vessels running aground;

• Advising on Border Force Infringement notices;

• Assisting with the removal of injured crew from vessels and organising medical assistance and repatriation; and

• Extensive experience in personal injury incidents arising across the transport system.

Australia’s island economy, geographical diversity of ports and trades and export-led economy mean that shipping and logistics are central to our everyday lives, so the problems we help with every day feel important in a very real way. It is exciting to be part of an industry which underlies our economy and is also at the cutting edge of many legal developments.

Can you talk LM through your previous experience at maritime and transport firms and how this brought you to where you are today?

I have been fortunate in that my previous experience has been at a number of Australia’s best recognised maritime firms including Norton Smith & Co, Norton White and Ebsworth & Ebsworth (now HWL Ebsworth).

For most of my career I have worked in full commercial service firms, with the exception of Norton White Lawyers & Notaries which was established in 1999 as a specialist shipping practice.

Over time, I have come to believe that the sector is best served by a dedicated and specialised practice structure where the sector clients are the sole focus for our legal services.

Admiralty & Maritime Law In this model, which is the Thomas Miller Law Australia approach, our personnel, knowledge resources and cost structures are focused and can be flexible to fit the needs of the industry.

Can you detail some of the cases you have worked on in this sector and how your expertise helped towards their successes?

Over the last 20 years I have worked on a high number of diverse, interesting and challenging matters. Having specialist expertise is very important in just about every admiralty and maritime matter as clients expect commercial and cost effective outcomes. Knowledge and experience of the industry and the specialised areas of the law are essential in identifying key issues at an early stage, improving the chances of reaching a commercial solution quickly. Many maritime matters are subject to significant time imperatives given the nature of shipping and international trade and so there is rarely time or opportunity to develop the necessary knowledge and experience ‘on the job’.

Some of the highlights for me have been:

• Acting for mortgagee obtaining USD70M default judgment against owners of the HAI SHI in favour of the mortgagee Bank and effecting the arrest and judicial sale of the vessel. Priority issued between creditors were resolved by agreement and the vessel sale effected with approximately 3 months of initial interest;

• Acting for Bank in major refinancing transaction for Bermudan shipping and offshore facility operator in managing the Australian law and asset security aspects of USD400M deal;

• Advising a Singaporean entity on the Australian regulatory frameworks in relation to port security and border control as well as shipping regulation relevant to an offshore asset acquisition;

• Acting in relation to the grounding of a Greek registered bulk carrier including GA and salvage award claims and litigation against vessel owners arising from failures in the vessel’s SMS and negligent navigation; and

• Acting in relation to a collision between a Panamanian bulk carrier and a local Australian fishing vessel which caused the fishing vessel to founder off the North Queensland coast. The case included issues of economic loss and remoteness of damage.

What are the goals for the firm in Australasia, given its new regional expansion in this sector?

The goals we have set for Thomas Miller Law Australia are both audacious and exciting. Thomas Miller Law Australia aspires to offer a different approach to legal services, providing them as a dedicated business service and undertaking to continue to invest in our own expertise, innovation and technology solutions for the benefit of our clients.

Thomas Miller Law Australia’s key objective is the delivery of legal services which are first-class in their quality and effectiveness, and modern and efficient in their pricing. The Thomas Miller Law Australia approach aligns perfectly with my own professional goals- to develop and maintain my specialised expertise, and put it to the best and widest possible use in our unique, dynamic and truly global sector.

This month Lawyer Monthly takes a look at the work of Neil Cameron QC, a specialist planning barrister, and current Joint Head of Landmark Chambers, the UK’s leading set of chambers practising in planning & environment law.

What are the most interesting cases you have worked on recently?

I would draw particular attention to R (Orbital Shopping Park Swindon Limited) v. Swindon BC [2016] EWHC 448 (Admin) , R (Wright) v. Forest of Dean [2016] EWHC 1349 (Admin). Orbital was one of the first challenges to a liability notice issued under the Community Infrastructure Levy (CIL) regime. The court recognised that constitutional principles applying to taxing statutes are to be applied when considering the CIL regime.

It has long been held that planning permission cannot be bought and sold. In Wright the court had to decide whether the line had been crossed when a windfarm developer offered to make payments to a community fund to be used for a very wide range of purposes – it was decided it had been.

I have acted for a number of petitioners before the HS2 Select Committees in the House of Commons and the House of Lords. The limited time allowed makes it a great challenge for an advocate; the complex must be made clear, precise, and concise.

What are the common challenges that face you in your work on compulsory purchase and related issues?

Increasing use is being made of local planning authorities’ power to authorise development notwithstanding interference with rights to light. As from 13th July 2016 section 237 of the Town and Country Planning Act 1990 has been repealed and replaced with section 203 of the Housing and Planning Act 2016. The greatest challenge is to ensure that the power is engaged only when necessary, and that local authorities strike the right balance between enthusiasm to assist and reluctance to act. I anticipate that whilst increasing use may be made of the provision, the risk of judicial review will also increase.

In dealing with planning matters relating to habitat, what are the most common concerns raised and how are they usually resolved?

Concerns can be put into two main categories, impact on protected sites and impact on protected species. The main issues to address in relation to protected sites are whether the likelihood of a significant effect on a European site can be ruled out, and if it cannot, the ambit of any habitats regulations assessment. Often, the solution is to include an appropriate assessment as part of the environmental statement. The prohibition (introduced as part of the CIL Regulations) on local planning authorities entering into more than five planning obligations to fund the same project makes it much more complex to put in place measures such as Suitable Alternative Natural Greenspace to avoid/mitigate impact on heathland areas.

The approach to be taken to impact on European protected species has become much clearer following Morge v. Hampshire CC, a Supreme Court case in which I appeared. In most cases, so long as adequate mitigation measures are put in place, impact on protected species will not prevent development going ahead.

Do you foresee any significant changes in planning and environmental law following the recent Brexit decision? Are there any legislative amendments you would like to see?

European legislation on environmental assessment and habitats has had a very significant influence on planning and environmental law in this country. Brexit, when it happens, will provide an opportunity to review the environmental assessment and habitats regimes. It is likely that the current system will remain in place with some adaptations. At present, a distinction is often drawn between restrictions imposed by European legislation, for example on habitat protection, and that offered by domestic law; European requirements are often shown greater deference by decision makers, and by the courts when discretion to quash (in judicial and statutory review cases) is considered. I would like to see the system adapted to allow planning decision makers greater discretion in determining cases, and striking the balance, on the particular facts and merits of the case.

Is there anything else you would like to add?

I am fortunate to work in an area of the law where most discussion is about what is to happen in the future, rather than what has gone wrong in the past.

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.

Lawyer Monthly here talks to Scott about estate planning law in the state of Massachusetts, US, the current discussion points in this legal segment, about the options and processes that are available, and about the extent and implications of federal bearing on state estate planning law.

What would you say are the most common obstacles clients face in Massachusetts and the US as they look to plan their estates?

Overall, the public is not well informed about the need for proper estate planning. First, if you have no estate plan, the state where you reside will allocate your property among members of your family. Often this will be your spouse and your children, but the proportions may not be what you would have wished. For example: in Massachusetts, if you have children from a previous relationship and died without a will, your current spouse is entitled to the first $100,000 of the value of your assets, and half of the remainder. What remains would pass to your descendants. This may be vastly different from what you may have intended and can have unforeseen tax consequences upon the death of the surviving spouse.

Second, a will alone is often not adequate to efficiently transfer property. Wills, for all of their simplicity to construct, have shortcomings. The biggest one is the need and expense of having to go through the probate process. This will tie up the assets for potentially months and will require court permission to transfer the property. Wills do not allow for the continued management of property after your death, for that you will need a trust.

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?

Without proper estate planning, when a person dies, their assets take a few stops before they pass to their next of kin or offspring. The first one is paying for final expenses, i.e. cost of administration of the estate, funeral costs, medical bills, etc. Next, any taxes that are due must be paid, followed by payments to creditors. Whatever is left then passes to the beneficiaries. This is true even when an estate plan is based solely on a will.

When someone becomes mentally disabled, without any planning, a court must appoint a guardian and a conservator. The property stays under the legal ownership of the disabled person, but would be managed by others. This could be avoided by having a durable power of attorney so an agent that you had previously selected could make those management decisions for you should you become disabled.

What processes are available to minimize tax in estate planning? What are the benefits in the US?

In most cases in the United States, a person would be subjected to federal and state estate tax. There are threshold assets values that would need to be met before this is a concern, but once you factor in home values and life insurance policies, it is very likely that a person of even modest means could have a taxable estate on the state level. One common plan is to reduce the value of your estate by making lifetime tax free transfers.

A home, for example, can be placed in a trust with you retaining a fixed period of occupancy. The value of the transfer will be discounted by your retained use of it. Assuming you survive the retained use period, the home will be removed from the estate, and the transfer will not be taxable on the state level and will fall below the federal limit on lifetime gifts. Once the retained use period ends, you could continue to live in the home by paying rent to the trust. This will further increase the wealth transfer.

Other tax free strategies include directly paying for medical or educational expenses. Say your grandchild is in college. If you make a gift to your grandchild either directly, or to an investment account, that gift would be limited to the annual gift tax exclusion amount or else it will start whittling down the lifetime exemption. One way to avoid this is to pay directly to an institution. You would be able to pay the college tuition directly without being limited by an annual exclusion, and may still make your gift to the grandchild below the annual limit. Careful planning is necessary because an improperly executed gift to a grand child could have costly tax consequences.

How do you personally ensure your clients’ affairs are kept private and dealt with the utmost sensitivity?

In addition to the rules of our profession regarding confidentiality, we ensure that when implementing a client’s estate plan we only provide third parties with the information that they need. Unlike a will, which becomes a matter of public record once it is probated, a trust is a private agreement between the grantor and the trustee. Banks and other third parties need only know of its existence, and the authority of the trustee. When titling property to the trust, we provide a certificate of trust, along with select articles of the trust which gives evidence of the trust’s creation, the identity of the trustees, and the trustees’ powers. This way the dispositive provisions of the trust remain private.

You also have plenty of experience as GC of various companies; how does this experience translate into the legal work you deal with nowadays in estate planning?

As general counsel, you have to be a problem solver. The management team of the company will want to accomplish a certain task, and will look to you for advice on how to do it. Saying you can’t do something is not good enough. You must find out how you can with as little legal risk as possible. The same is true for estate planning. Clients will have varying needs, and may not be able to articulate them initially. They may only know the desired end result. There are many tools available, and with careful listening and understanding the client’s needs you will be able to find the appropriate solutions to best satisfy those needs.

As a thought leader you have also published books and many articles; how do you believe the public can be made more aware of estate planning laws?

People just need to have the conversation. The very subject of estate planning can be uncomfortable to bring up because of one key event: death. But while it is true that; first, it will happen to us all; and second, many estate plan events are predicated on that happening, it should not be the focal point of the discussion. Estate planning is really about generosity and preservation. It is also about not ceding control to the state. If you begin the conversation with discussions of generosity and preservation, it will naturally follow that you discuss the legal aspects of estate planning since they will enable you to perform the tasks you wish to accomplish.

I recommend that people attend seminars that discuss estate planning. At the very least, it may expose someone to the fact that they haven’t given it much thought and attention and that a lack of planning could have consequences. The laws basically perform two functions. One is to make an assumption as to what a person wants when they didn’t specifically say so. The other is to call foul when an action seems unfair. As simple as these two functions are, the intricacies of the laws require that a person approach their estate plan with careful consideration.

What would you say are still big steps for the state of Massachusetts or the US government to implement in terms of estate planning law?

One of the big steps that Massachusetts and the US government could implement is the way they approach end of life decision making. This is more of a patient’s rights matter than one of estate planning, but it affects the recognition of advance care directives (‘living wills’). This is a controversial topic to be sure, but it does raise a fundamental rights question that may be addressed at both the state level and the federal level.

Is there anything else you would like to add?

State to state variations in law are a product of our federalist system. Federal law, apart from the U.S. Tax Code, has almost no bearing on estate planning. Many states have adopted their own versions of “Uniform” laws such as the Uniform Probate Code, or the Uniform Trust Code, but even these vary to some degree. While it may be frustrating in our mobile society where cross state moves happen with regularity, it highlights the importance to not only construct an adequate estate plan, but to update it regularly to reflect changes in your life.

Divorce comes with a magnitude of concerns and complex issues that can only be resolved and fought through via the careful assistance of a well-practiced and passionate lawyer; in this case, Connecticut, US, is blessed with the skills and experience of David W. Griffin, Partner at Rutkin, Oldham & Griffin, LLC.

Lawyer Monthly is pleased to have spoken with David, who reveals more about his work in difficult financial cases, the challenges involved in foreign jurisdictions and valuations, and about the concerns pertaining to litigation involving children.

What are the most common cases you deal with surrounding family law and which of these are more susceptible to litigation? Please explain why.

The most common cases I deal with are complex financial cases. While I have had my fair share of challenging custody and access cases, given our geographical proximity to New York City and the financial markets, I frequently find myself helping clients to navigate the intricacies and complexities of large asset and complicated income divorce cases.

These cases present difficult and extremely complex valuation issues particularly when private equity, hedge fund and venture capital holdings are involved, as well as direct ownership in companies generating millions of dollars of income, both domestically and internationally. The identification and valuation of these assets, which can be held in both domestic and offshore vehicles such as trusts, limited liability entities and the like, can trigger significant discovery disputes and involve multiple valuation experts (and the related review of valuation reports), lengthy depositions and the related forensic accounting and valuation of both funds and underlying portfolio companies. Foreign jurisdictions also create an overlay of different rules, the use of local counsel and “boots on the ground” financial investigators. The same holds true of the income generated in this setting. While litigation is never the goal, all of this can quickly translate into serious litigation over document production, income testing and proof, valuation standards and issues and, despite best efforts to prevent it, the emotional reactions of clients to the positions taken by the other spouse and opposing counsel.

Litigation in this setting can involve delving into proprietary information and methods, trade secrets, (formerly) private wealth and income information, and building and working with a team of highly talented and experienced forensic accountants, valuation experts and support staff. Organization of hundreds of exhibits, creation of complex court-mandated financial affidavits and the related litigation preparation can be time-consuming and requires real attention to detail. There can be significant variation, for example, in the positions taken by valuation professionals with regard to cap rates, discount rates, valuation methodologies, normalizing adjustments, as well as valuation premiums and discounts. Each of these variations can lead to substantial differences in overall valuation numbers – and can directly affect arguments and positions on spousal support and the issue of double dipping in the valuation and support arena. All of these issues are intellectually interesting and fascinating – but intellectual interest and fascination must give way to the practical realities of the courtroom, where direct and cross examination questions are the vehicles by which the differences are teased out, exposed and brought to the attention of the fact finder.

What challenges accompany these cases and how do you resolve them?

As mentioned above, litigation in this setting can involve delving into proprietary information and methods, trade secrets, (formerly) private wealth and income information. A significant amount of time can be spent (appropriately) on the negotiation of a confidentiality agreement, covering not only the parties and their counsel, but also covering forensic accountants, appraisers, valuation professionals, public relations consultants and their respective staffs. This can be a challenging but important step for parties who are confronting for the first time that their income and wealth, together with their proprietary business methods and processes, together with their customer and vendor data, developmental strategies, competitive edge and C-suite information, are all potentially at risk of being brought into the public domain by virtue of the publicly-accessible nature of the courthouse.

Another area of challenge is in identifying and pinning down the appropriate standard of value to be utilized and parsing the many components of a valuation expert’s ultimate opinion of value of an asset or business interest. What approach was utilized? What revenue stream was valued? Was it a single period capitalized income stream or was the discounted future benefits approach utilized? What are the differences between those approaches? Was income normalized for the purposes of the valuation and at what level and with what support? Was there double dipping? How readily did Family Law the business owner provide access to the financial records? Did both spouses’ experts utilize the same financial data consistently reported for the same period(s)? How does the valuation expert’s work get dovetailed into a working and workable discovery timetable and order? These questions can individually and collectively lead to skirmishes and full litigation, even prior to trial.

In family disputes involving children, to what extent do you believe children should have a say, given that the child’s welfare is commonly paramount?

Litigation involving children is especially difficult. The question of whether children are “competent” in the traditional sense of an adult client being able to identify issues, rationally assimilate the appropriate data and make a reasoned decision based on that data, is a particularly delicate and challenging question to answer. Is a very mature and balanced 12-year-old child who is performing well in school, more or less “competent” than a 16 ½-yearold child who is emotional, distressed and being subjected to a loyalty dispute between two strong-willed parents who don’t see the damage being done by their “recruitment” of the child to their “side” of the parenting dispute? Should any child be asked to take sides in such a setting? While children certainly should be heard, and listened to carefully, ultimately, I come down on the side of the mental health and social science research indicating that children should not be put in the position of having to “choose” between their parents, and should not make their own decisions about what is best for them in the situation where the parents are unable to agree on what is in their child’s best interests. At that point, a forensic mental health evaluation of the parents and the child, and/or the appointment of a guardian ad litem to investigate and report on the child’s best interests, seems to be the appropriate process to utilize.

Here to discuss the implications of Brexit on immigration law, the challenges of residency requirements, and the implementation of citizenship programmes, is Micha-Rose Emmett, Managing Director at CS Global Partners, an international, industry-leading, award-winning legal advisory firm specialising in citizenship and residence solutions.

What are the hottest talking points surrounding UK / EU immigration and residency at the moment, particularly surrounding the Brexit decision?

The issue of Brexit and the United Kingdom voting to leave the European Union has placed a lot of focus on immigration and what will happen to freedom of movement. At present, there is no clear-cut answer to the issue at hand – we can only wait and see what agreement will be made between the UK and the EU. What has emerged, however, is that more and more EU and UK nationals are starting to consider and wish to better understand the concept of dual citizenship. Pre-Brexit, when you spoke with people with a British passport about their citizenship, they did not appreciate the need for diversification of citizenship. The referendum has generated a new awareness of dual citizenship.

You work predominantly in citizenship planning matters pertaining to High Net Worth individuals; what are the biggest legal challenges this niche faces today and how do you help your clients overcome these?

The challenges depend on each jurisdiction’s appetite to introduce an investment programme. The entire immigration landscape is shifting, and citizenship by investment has become more popular because it is a clear and distinct way of creating a win-win solution. From a government stance, the nation is receiving foreign direct investment and human capital. From a client’s perspective, second citizenship can mean freedom, security, and physical safety. Our goal as advisors is to ensure we understand the client’s needs and that the solution they choose fits those needs adequately. One key factor is being able to assess long-term benefits. Clients may have researched matters superficially, or chosen a solution based on incorrect information. They may also opt for what seems an obvious solution on paper, but is daunting in practice. This is why those who are deciding whether to undertake the path to second citizenship need expert advice from a team that is highly knowledgeable and equipped to handle a wide range of options. In this way, their advisors will be able to give them the best advice based on client needs rather than purely on the laws of the one jurisdiction they are based in.

As a thought leader in this field, how are you currently working towards further exploring and confronting the legal challenges of residency and immigration in the UK?

The UK Government’s general position with regards to immigration does make it more challenging to attract people, especially high-skilled workers (this independent immigration category was closed down in 2009), into the country. Firstly, residency requirements are quite strenuous. To become a resident and then work towards citizenship you would need to not be absent from the country for more than 450 days over a 5-year period, and for more than 90 days in the 12 months preceding your application for citizenship. You would also have to be able to speak English and pass the ‘life in the UK’ test. On the one hand, someone who is committing to becoming a citizen of a country should expect these requirements. At the same time however, it can make the process look daunting and unappealing, especially because people have become more global and have less time to spend in one jurisdiction to fulfil its residence requirements. Top international businesspeople find it especially hard to become UK immigrants. This hampers the UK’s goal of attracting people of excellent talent and entrepreneurial skill.

Are there particular regulations/directives that are often an obstacle in this line of work and how do you overcome them daily?

There are no particular regulations or directives that pose insurmountable problems. In any field, whether it is law, immigration, business, or banking, an expert should be able to discover ways to work within the guidelines and parameters established by the relevant government to find an effective solution for his/her clients. In this line of work, there are certainly more opportunities than obstacles.

You have previously coordinated citizenship programmes and projects alongside the government; what did this entail and what was the impact?

The expertise that we bring to the table involves working with clients from all around the world. We have a deep understanding of various needs in different countries. This helps governments to create programmes that are attractive to their target applicant pool – that is, talented and skilled individuals. The key is to always ensure the programme yields a win-win situation, so that the government and the people of a country experience positive returns when awarding citizenship to new investors.

Having also practised this legal work in UAE, African countries, the Caribbean, and Asia, how would you say residency issues differ significantly and what advantages does the UK’s legal framework have over these other nations?

The number one factor is that the United Kingdom has a Common Law system that provides a very sound legal framework in which to work. The same can be said for some of the other countries whose programmes we evaluate, particularly in the Caribbean.

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Following the Brexit vote, in the UK we have felt a sense of “keep calm and carry on.” It is important that in the coming months the Government presents thought-through solutions, especially as we move forward in a climate filled with uncertainty, but with a future we need to continue to build and support.

This thought leader is renowned for being outspoken and confident in his remit, having delivered several speeches internationally and educated many in his specialist subject, data privacy and protection.

Here, talking to Lawyer Monthly, Simon J. McMenemy, Managing Partner at Ogletree Deakins International LLP, sums up quite modestly the ‘red tape’ stigma of the EU’s General Data Protection Regulation (GDPR), and the overall attitude that has developed in recent years in regards to data privacy and protection.

Are there any particular legislative amendments to employment law you would like to see as a result of the Brexit decision?

I don’t think there is any great desire to ‘unpick’ the employment legislation that has been brought in over the last 20 years from EU Directives. I think most people would agree that anti-discrimination laws originating from the EU and now to be found in the Equality Act are a good thing and are here to stay. There may be some simplification on the rules around the Working Time Regulations and the Transfer of Undertakings but I don’t think many employment lawyers are expecting much to change. Just before the Brexit vote I heard a ‘Vote Leave’ campaigner declare how coming out of the European Union meant that employers would be unburdened from red tape citing as an example that they would not have to comply with new data protection requirements about to come out of Brussels. He was talking about the General Data Protection Regulation (GDPR) that comes into force in 2018. I remember thinking does he really believe that? And, if so, how badly served the average voter was by both campaigns in terms of the accuracy of the information they were putting out there. You also advise employers on data privacy in the workplace how do you think that will be affected by Brexit? Well, for starters it looks unlikely that the UK will have formally left the EU by May 2018 when the GDPR comes into effect. But even looking beyond our exit from the EU it is unthinkable that we will be allowed to reduce the adequacy of our data protection laws if we are to continue trading with our European neighbours, which of course we must. The fallout from the Schrems case last Autumn, the invalidation of the Safe Harbor framework with the US as a safe means of protecting transatlantic data flows, and the difficulties in launching EU-US Privacy Shield as its replacement, show how difficult it could be to try to have a scheme radically different to the one we have now, which of course is currently within the European ‘adequacy’ fold.

Being with a US based law firm specialising in employment law have you been involved in the rollout of The EU-US Privacy Shield?

Yes very much so. Nearly every US client of ours who has employees in Europe will at some point want to transfer some personal data about employees to the US. Although there are other legal means of transferring the data such as Binding Corporate Rules and the EU Model Clauses, Safe Harbor was the most popular, as I think Privacy Shield will be, but it is a much tougher regime and has specific requirements for the transfer of human resources data. In particular companies registering must undertake that the policies and procedures they publish during the registration process comply with local employment laws as well as the variation of data privacy laws across the 28 EU countries. That can involve a lot of work where they are Europe-wide.

Are you seeing much change in the way employers see data privacy and protection?

I’m seeing a change in the way everyone sees data privacy and protection. When the Data Protection Act was introduced in the UK I think generally employers saw it as more unnecessary ‘red tape’ coming out of Brussels. Germany was no doubt a big influencer in this area, with newly reunified East Germans having lived with the State watching their every move. But since its implementation around the time of the Millennium, which of course coincided with the explosion of the internet, who hasn’t been affected by someone trying to compromise their data, whether it is their financial data, their email account or receiving unwanted calls, emails or correspondence? I think people are now much more willing to do their bit to protect personal data in the expectation that others will be doing the same for them. Consumers expect it from service providers and employees expect it from their employers.

From detailing her previous experience in the employment law sector, to discussing the importance of wellbeing in the workplace, clientfocused UK lawyer Anna Harvey here talks to Lawyer Monthly about the employment sector in Britain, her and her firm’s thought leadership therein, and what in her opinion could be the potential implications of a Brexit.

How do you apply your own experiences and life-walk in achieving the best possible results for your clients at Price Bailey?

Prior to working for Price Bailey Legal Services, I ran a successful boutique employment law firm, and a legal and HR consultancy business. I am now able to use the invaluable experience and understanding I gained from running my own businesses to provide pragmatic and relevant advice to my business clients. When clients struggle with recruiting that key individual, struggle to build and maintain relationships of trust, or struggle to reach the right balance between organisational wellbeing and employee wellbeing, I understand, and can empathise. As a result this allows me to become more than just a lawyer to my clients, but a trusted adviser.

My professional journey has given me a greater understanding and knowledge of business which has further helped me to identify the direct correlation between employee engagement and the productivity and efficiency of a business or organisation. For a business to be successful, it must ensure that it gives equal attention to the wellbeing of its staff (that is taking steps to ensure employees are able to maintain a good work life balance, that they are healthy, they are content and engaged) as it does to the wellbeing of the organisation (that is the financial status, its profitability, productivity and efficiency). In essence, a business owner, a Board of Directors, or Trustees must understand that better workplaces will equal better financial results.

At Price Bailey Legal Services we have become thought leaders in this area of workplace wellbeing by incorporating the important issue and its key principles in the way we deliver employment law services.

We are often questioned “why are you discussing wellbeing as lawyers” – the answer – because as employment lawyers and ultimately trusted advisers with a vast amount of experience and knowledge with a variety of businesses and industries, we understand its significance to businesses and organisations, and can help with putting in place workplace strategies.

What are the key priorities you advise businesses to consider in the UK employment landscape?

It is our aim for our clients to have a mind-set shift from believing productivity and profitability is the key to its success, and instead understanding that the key to its success is its people, their wellbeing and engagement.

This is a message we regularly pass on to our clients and we recently held an event with Dame Carol Black as our keynote speaker. Dame Carol Black is a renowned expert on the subject of workplace wellbeing, being an Expert Adviser on Health and Work to NHS England and Public Health England, amongst other roles. The vital messages delivered at this event were key features common to organisations which have improved health, wellbeing, resilience and engagement of staff, including accountable trained managers who empower staff and enable engagement. Evidence shows that resources should first be focused on training line managers rather than just introducing wellbeing schemes such as providing fruit or implementing cycle to work schemes. It is our intention to host three further events with Dame Carol near to our other offices, including in London, to continue to deliver this message.

If I could implement particular legislation, it would be on this issue, to ensure workplace wellbeing is no longer seen as ‘soft and fluffy’ but that it obtains the attention it deserves. With Dame Carol Black continuing to present the government with compelling evidence on this subject, I think it is definitely worth watching this space!

The other factor that differentiates Price Bailey Legal Services from other law firms is that it sits within a firm of Accountants. It is an innovative set up and allows us to provide innovative services that add value to and benefit our clients. Our clients are able to seek complimentary services and advice across the Price Bailey Group, all under one roof. We have recently been able to assist a global property investment company by providing a complete business outsourcing package including, payroll, bookkeeping, management accounting, HR advice and assistance. In addition, we have offered advice and assistance on technical legal matters involved in the transaction, together with strategic financial and commercial advice.

What can we expect further in terms of regulatory developments in the UK employment law landscape, particularly now following the Brexit decision?

Brexit has brought a number of uncertainties to business, but it is my view that UK employment law is unlikely to fundamentally change by our leaving the EU. It is likely that any changes that are made will assist businesses and will be made in order to trigger economic growth. Expected changes may involve removing the particularly onerous provisions of the legislation relating to collective redundancies and business purchases and acquisitions.

What I do expect is clients may need more assistance with international transactions and dealings. Increasingly businesses are having an international presence and moving workforces and employees across jurisdictions can present a number of problems. Price Bailey Legal Services have therefore developed our global mobility services offering to assist our clients with these problems. The benefit for us too (and ultimately our clients) is that we not only are able to deliver the employment law advice and assistance but we can further offer tax advice and assistance and a wealth of knowledge from both our accountants and lawyers on such matters. We expect to see more clients requiring this service as global business continues to evolve.

From the latest changes in the Italian employment sector, to the impact of the economic crisis on this legal practice, our next thought leader, Angelo Zambelli, co-managing partner of Grimaldi Studio Legale, gives his outlook on the changing landscape of employment law and his thought leadership in this ever-evolving legal world.

With almost 30 years’ experience in this sector, what would you say have been the key changes in Italian employment law over that time?

The key changes over that time include the wide reforms recently enacted in 2015 that involved almost all areas of employment law in Italy, and in particular the protection of employees in case of unfair dismissal and the industrial relations systems.

In fact, the economic crisis that was faced since 2008 has led the Government to enact a very significant reform of the protections of the newly hired employees (hired from March 7th 2015) in case of unfair dismissal, reducing the cases of reinstatement in the event of unfair dismissal and providing the newly hired employees with a progressive increase of protection during the employment relationship, with an indemnity that will increase along with the employees’ length of service.

In particular, the Legislative Decree has introduced a ‘dual track system’: in the event of unfair dismissal the newly hired employees are subject to the regulations recently entered into force, whilst to the employees hired prior to the enforceability of the same, the previous and more protective labour regulations continue to apply.

In addition, the reform enacted by the Government in 2015 also restricted the use of CIG (Wage Guarantee Fund) which was largely requested for by the Unions during the bargaining processes within reorganisations: this restriction has indeed entailed a change in industrial relations as the Unions are no longer able to ask the employer to use this cushioning system in a significant number of situations - as it happened in the past - as a matter of negotiation.

As the leader of your firm’s employment law team, what are the most common issues that arise in the Italian labour law landscape and how do you overcome these on a daily basis?

Italy, together with the other Southern Europe countries (such as Greece, Spain and Portugal), has been one of the countries most affected by the economic crisis. In recent years there has been an increase in the number of restructuring plans having an impact on the workforce employed. Although the Italian economy is slowly recovering, companies continue to put in place such plans, thus seeking the assistance of lawyers in implementing them. We are therefore often requested by clients to represent them in front of the Unions within the reorganisation processes and relevant downsizing activities of subsidiaries of Italian and international groups.

Having won several awards in the Labour sector, what would you say have been your biggest achievements pertaining to labour law?

Apart from the various awards I have received in my career, I would say that the biggest achievements regard one restructuring process I have managed from a labour law perspective.

In particular, I represented Alitalia, the pre-eminent air carrier in Italy, in trade Union negotiations and labour law issues connected with the purchase of the air carrier’s assets; the biggest deal that had ever taken place in Italian Industrial Relations, and led to hiring more than 10,000 employees of the 20,000 existing personnel in the former Italian company.

I also successfully represented such air carrier in the first 12 judicial proceedings before the Labour Court of Milan against the selection criteria agreed to with the Trade Unions. These agreements, which were drafted and concluded with Trade Unions with the assistance of my department, allowed CAI to select and engage 10,000 employees.

As a thought leader, how have you helped monitor the developments and changes of the employment law legislation?

I would say that I have helped monitor the developments and changes of the employment law legislation by publishing several books on employment law and Trade Union issues, the latest of which are: Trade Union Law – Industrial Relations after the Jobs Act (2015), Individual and Collective Dismissals Before and After the Jobs Act (2015), Collective Dismissal (2014), E-Book on Trade Union Law (2012), Trade Union Law and Industrial Relations (2012), Dismissals and Disciplinary Procedure (2012) and Labour Procedure Case Law Collection (2010).

In addition, I am also an established lecturer at many conferences organised by Il Sole 24 Ore, Synergia, AIDP (Associazione Italiana per la Direzione del Personale), AGI (Associazione Giuslavoristi Italiani), IBA (International Bar Association), ELA (Employment Law Alliance) and ABA (American Bar Association).

Do you think there are still big steps to go for Italian employment legislation? How do you envision a solution?

During the last years, the wide reforms enacted have significantly changed the employment law landscape in Italy. However, there are still big steps to go for Italian employment legislation, such as the introduction of the whistleblowing legislation in the private sector, and a smart working legislation, both currently under debate in the Italian Parliament.

As far as whistleblowing is concerned, it is important to highlight that for a long time in Italy there was not a specific legislation on whistleblowing. This is now slowly changing. In fact, Law 190/2012 introduced a specific legislation on this matter, although it only refers to civil servants. In addition, Legislative Decree no. 72/2015 (implementing the Directive 2013/36/EU) - that entered into force in June 2015 - has introduced the obligation for banks and financial institutions, as well as for their parent companies, to adopt specific procedures for the internal reporting by personnel of acts or facts that may constitute a violation of the relevant activity.

In your IBA publication ‘Labour and Employment Compliance Handbook’, what are the primary considerations raised in the section pertaining to Italian law?

The ‘Labour and Employment Compliance Handbook’ provides an accurate and detailed knowledge of labour and employment laws. In the last version of the Handbook I analysed all the new reforms enacted in 2015 in Italy, including unfair dismissals, maternity and paternity leave, the reduction of the number of different types of employment contracts and employees monitoring legislation.

Dispute in business is inevitable. It is an integral part of growing a business, succeeding within it, and maintaining that success. It is how disputes are handled that matters. By consulting experienced and skilled legal experts, disputes may not always be avoided entirely, but they can be navigated effectively and a solution beneficial to all involved is more likely to be settled.

In this expert insight feature, Sébastien Richemont, Partner at Woods LLP, a Canadian law firm, gives his outlook on the Canadian litigation system, referring to statutory obligations, class action certification, and the extent of ADR methods in disputes.

According to a recent Litigation Trends Annual Survey commissioned by Norton Rose Fulbright, companies globally are facing a more litigious business environment as they are faced with growing legal challenges. What are these legal challenges in your experience?

The main challenges our clients face are twofold. On one hand, they face increasing statutory obligations in many fields (consumer protection, product liability, securities legislation, and D&O liability, to name but a few), and even a minor breach can lead to a class action or to enforcement actions by various regulators. On top of that, public companies have to deal with the growing expectations and increased scrutiny of shareholders. To meet these challenges, clients should have a strong in-house team that ensures compliance with the numerous statutory regimes and that works proactively to avoid litigation. If litigation is inevitable, I believe that hiring litigation specialists with extensive trial experience is essential.

How tough is the Canadian litigation system on defendants? Is the Court process particularly complex?

Each Canadian province has its own court system and the approach can be quite different from one province to the other - hence the importance of having local counsel as part of the defence team. Courts and legislators are trying to simplify, harmonize and speed up the court process, with varying degrees of success, but substantial differences remain from one province to the other. For example, it is generally much easier to certify class actions in Quebec than in other provinces, and Quebec is therefore perceived as a jurisdiction that is friendly to the plaintiff class action bar. Quebec also has specific consumers’ protection legislation. As a defendant, you must be sensitive to these differences and adapt your strategy accordingly. I believe that any good case, including on the defence side, deserves a quick hearing. Across Canada, the biggest challenge is obtaining a hearing date in a reasonable amount of time and not getting bogged down in procedural and discovery sideshows.

What quirks does the Canadian litigation system possess that make it unique?

Canada’s private law system is built around both the Common Law (in nine provinces and the three territories) and French Civil Law (in the province of Quebec). Over the years, our Supreme Court has occasionally imported Common law principles into the Civil law, or the other way around. I would not go as far as to say that we have a hybrid system but we definitively have a unique one.

You work on international cases and domestic, often as arbitrator or mediator; to what extent would you say Canadian disputes are resolved via ADR methods as opposed to litigation?

The current trend is to try to mediate as many cases as possible. We have no precise statistics on arbitration, but it is not as prevalent as it was fifteen years ago when arbitration clauses were almost automatically included in all commercial contracts. However, I expect a resurgence as businesses try to avoid the courts in favour of arbitration or other forums to resolve disputes. For most companies, it is no longer an option to wait up to ten years to have a final resolution of a legal problem.

Are there any changes that you think would make your job easier?

The end of the hourly billing model!

With over twenty years’ experience in this field, this Côte D’Ivoire lawyer has seen the ins and outs of the West African employment landscape, having worked with some of the biggest names, and witnessed some of the most impacting shifts in labour and employment law in West Africa.

Lawyer Monthly hears from Raymond about the employment sphere in his country, the issues companies can face in a nation of turmoil such as Cote d’Ivoire, and the experience that has helped him push further in the West African employment sector.

How comprehensive do you think Cote d’Ivoire employment law is?

Ivory Coast labour law is comprehensive as the new labour code of 2015 covers employment relationship as well as labor union, training programs and internship for students.

What are common mistakes companies fall into the trap of making when hiring employees? How do you help firms overcome these obstacles?

Many companies believe they can put whatever clauses in the employment agreement ignoring that labour law is governed by strong public policy rules.

With over 23 years’ experience as a specialist employment lawyer, how have you seen the employment sphere adapt and evolve in West Africa over the last decade?

The employment in West Africa has emerged in the last 10 years in West Africa with the competition of local engineering and business schools and the return of US and European trained employees as a result of the global financial crisis. These employees represent a valuable and quality task force that has drastically changed the demand in human resources. However legal practitioners still remain a scarce resource as the demand from law firms is high.

What would you say the next decade holds in terms of legislative development for the future generations of employment lawyers in West Africa?

Based on the challenging development programs of most West African countries (most countries’ dream is to become emergent by 2020 or 2025), key regulations that support economic development are necessary to be passed and among them ambitious law and employment regulations. Young lawyers should be able to anticipate and understand the legal implications of such regulation adaptation.

How has your experience at Unilever helped with the worked you do now?

Unilever is a big machine and school. Being the general counsel and the executive board secretary I was involved in the company’s strategic decisions. I advised the company’s officers and HR director on various aspects of labour law for our approximately 7,000 employees across francophone Africa. This has significantly developed my expertise in providing practical advice to my clients today.

And samely, how has your experience at PwC contributed towards your current expertise in this field? PwC gave me the opportunity to deal with labour law issues through different sectors of activities; from telecoms to oil and gas, from industrial to banking etc. Payroll and personal income tax were the most valuable achievements with PwC.