Welcome to the May 2022 Edition of Lawyer Monthly! Four our cover feature this month, we are delighted to welcome back worldleading legal expert Romain Gerardin-Fresse, who spoke with us last year about building operational resilience in governments and businesses. In our exclusive interview on page 12, we ask Romain about his predictions for the global economy and rule of law following the dual ‘black swan events’ of the COVID-19 pandemic and the Russian invasion of Ukraine. The Russia-Ukraine war is analysed in several articles aside from our main feature; Hans-Michael Wolffgang discusses the impact of the conflict on global trade on page 40, while in a special feature on page 28 Tomas Vail offers his thoughts on how business withdrawals and breach of contract claims in Russia may develop as the prospect of sovereign default becomes a reality. Lawyer Monthly web editor Rachel Makinson also explores how a war crime is legally defined, which can be found on page 24. Also included in the May edition is a deep dive into the insurance and reinsurance sector. On page 61 you can find a pair of articles that discuss the state of this fascinating sector today and the rapid development of cyber insurance, which stands to bring great change to the increasingly digitised working world. Readers may also be interested in learning about looming changes to corporate sponsorship schemes, the impact of domestic violence on divorce proceedings, the challenges faced by general counsel and forensic accountants, and the obstacles to be taken into account when planning international construction projects in China. These and many other stories impacting law and business are featured within these pages. We hope that you enjoy this edition. Approx. 302,000 net digital distribution. LAWYER MONTHLY©2022 Universal Media Limited Lawyer Monthly is published by Universal Media Limited and is available on general subscription. Readership and circulation information can be found at: www.lawyer-monthly.com The views expressed in the articles within Lawyer Monthly are the contributors’ own. All rights reserved. Material contained within this publication is not to be reproduced in whole or in part without prior permission. Permission may only be given in written form by the management board of Universal Media Limited. Universal Media Limited: PO Box 17858 Tamworth, B77 9QG, United Kingdom Tel: 0044 (0) 1543 255 537 Follow Us: @lawyermonthly @LawyerMonthly @lawyermonthly linkedin.com/company/lawyer-monthly - EDITOR Oliver Sullivan firstname.lastname@example.org PRODUCTION MANAGER Emma Tansey email@example.com - A Note From the Editor Oliver Sullivan Editor - Lawyer Monthly LM EDITOR'S NOTE 3 MAY 2022 | WWW.LAWYER-MONTHLY.COM
INSIDE THIS ISSUE Contents 4 WWW.LAWYER-MONTHLY.COM | MAY 2022 Romain Gerardin-Fresse 12 WORLD REPORT 6. Monthly Round-Up 8. Lawyer Moves - Recent Appointments FRONT COVER FEATURE 12. Black Swan Events: What COVID-19 and the Ukraine War Mean for Governments and Economies with Romain Gerardin-Fresse, GFK Conseils-Juridis MY LEGAL LIFE: 20. Arbitration and Its Relevance to the Tech Sector Mihaela Maravela, Maravela Codescu Buliga SPECIAL FEATURES: 24. Russia-Ukraine Conflict: What Constitutes a War Crime? Rachel Makinson, Lawyer Monthly 26. Is There Another Option to Fund Mediation? 28. Arbitration, Russian Sanctions and the Spectre of Sovereign Default 32. Bringing Calm to the Confusion of Global Entity Management EXPERT INSIGHT 36. What are the Challenges Facing Corporate Immigration in the UK? Joanne Taylor, Magrath Sheldrick 40. How Will the Invasion of Ukraine Shape Global Trade? Hans-Michael Wolffgang, AWB 48. Handling Construction Law in China and Internationally Jean Zhu, Merits & Tree Law Offices 54. US v Facebook: Impact on Corporate Sponsorships Mary Pivec, Pivec & Associates, PLLC INSURANCE & REINSURANCE 58. What's Happening in Insurance in 2022? Oliver Sullivan, Lawyer Monthly 62. The Growth of Cyber Risk Insurance Dennys Zimmerman, RPZ Advogados THOUGHT LEADER 66. The Role of Forensic Accountants in Dispute Resolution Sandy Cowan, Mazars 70. How Domestic Violence Affects Divorce Proceedings Elizabeth Voorhees, Seabrook Law Offices, Inc Black Swan Events What COVID-19 and the Ukraine War Mean for Governments and Economies
INSIDE THIS ISSUE 5 MAY 2022 | WWW.LAWYER-MONTHLY.COM TRANSACTIONS 74. What’s Happening in the World of M&As and IPOs? TRAVEL & LIFESTYLE 94. Country Luxury: The Alice Hawthorn, Yorkshire Joanne Taylor What are the Challenges Facing Corporate Immigration in the UK? Mihaela Maravela Arbitration and Its Relevance to the Tech Sector 36 24 58 20 94 Yorkshire The Alice Hawthorn RussiaUkraine Conflict: What Constitutes aWar Crime? Written By Rachel Makinson What’s Happening in Insurance in 2022?
MONTHLY ROUND-UP On 7 April, a US appeals court panel reinstated President Biden’s executive order mandating COVID-19 vaccines for federal civilian employees. On 31 March, a minimum pay standard for Uber and Lyft drivers was signed into law in Washington, making it the first state in the US to implement income standards for ride-hailing companies. Image by Gage Skidmore from Surprise, AZ, United States of America - Joe Biden, CC BY-SA 2.0, https://commons.wikimedia.org/w/index.php?curid=87229850 US COURT REINSTATES BIDEN’S COVID-19 VACCINE MANDATE FOR EMPLOYEES UBER AND LYFT DRIVER PAYGUARANTEE SIGNED INTO WASHINGTONLAW A 2-1 vote by the Fifth Circuit Court of Appeals saw the removal of an injunction issued by a Texas judge in January that had blocked enforcement of the COVID-19 vaccine mandate for federal employees. Last September, the US President had said he would require approximately 3.5 million government employees to receive their vaccinations against coronavirus by 22 November, with the exception of those with valid medical and religious reasons for not doing so. Failing to get vaccinated, employees would been vaccinated or are seeking medical or religious exemption. Back in January, Biden’s COVID-19 vaccination-orAcross Washington, drivers will now earn a guaranteed minimum of $1.17 per mile and 34 cents per minute with a minimum pay of $3.00 per trip. The new law will see drivers also be given access to paid sick leave, family medical leave, long-term care programmes, and be eligible for workers’ compensation. If removed from Uber or Lyft apps, drivers will now be able to appeal the decision. “This new law decisively gives drivers what they want – face discipline or lose their jobs altogether. The Biden administration said that the federal trial court had no power to hear the dispute, claiming that workers were required to raise any issues through the Civil Service Reform Act (CSRA). However, the panel majority said the plaintiffs “seek to circumvent the CSRA’s exclusive review scheme.” According to the US government, over 93% of federal employees have now had at least one dose of a COVID-19 vaccine, while approximately 98% have testing mandate for large businesses was blocked by the US Supreme Court, though it allowed a separate federal vaccine mandate for healthcare providers. LM to stay independent while gaining historic new benefits and protections,” said Uber’s head of public policy in the Western US, Ramona Prieto, in a statement. Prieto said Uber hoped the law could be replicated across other US states. Seattle passed its own ride-hailing pay standards back in September 2020, guaranteeing drivers minimum rates of $1.38 per mile and 59 cents per minute at a minimum of $5.17 per trip. LM 6 WWW.LAWYER-MONTHLY.COM | MAY 2022
MONTHLY ROUND-UP Employees at an Amazon warehouse in New York City have voted to form the first union at the eCommerce giant, which is the second-largest private employer in the US. On 28 March, a federal judge in LA signed off on Activision Blizzard Inc’s $18 million settlement of a US Equal Employment Opportunity Commission (EEOC) lawsuit claiming widespread sex discrimination. This came over objections by a California agency that says the settlement could derail its own case against the US video game company. JUDGE APPROVES ACTIVISION BLIZZARD’S $18 MILLION SEX BIAS SETTLEMENT The judge also dismissed a renewed bid by California’s Department of Fair Employment and Housing (DFEH) to intervene in the case. The DFEH sued Activision Blizzard over claims the company violated state antibias laws several months prior to the filing of the EEOC’s lawsuit. A spokesperson for the EEOC said the agency was pleased that the judge had said she would approve the $18 million settlement. In addition to the payout, the deal also requires Activision to take steps to prevent and address discrimination, harassment and retaliation. LM NYCWAREHOUSE EMPLOYEES TO FORM FIRST US UNIONATAMAZON Employees at Amazon’s fulfilment centre in Staten Island secured a majority by voting 2,654 to 2,131 in support of the Amazon Labor Union (ALU), according to a count released by the National Labor Relations Board (NLRB) on Friday. “We’re disappointed with the outcome of the election in Staten Island because we believe having a direct relationship with the company is best for our employees,” Amazon said in a statement. However, the vote is seen as a victory for US organised labour by labour advocates, who have long considered the eCommerce giant’s work practices a threat to employees. Nonetheless, even once the vote clears any objections and the NLRB certifies the union as representing employees, union negotiators would still need to enter into talks with Amazon to deliver on expectations of improved compensation and working conditions. LM 7 MAY 2022 | WWW.LAWYER-MONTHLY.COM
LAWYER MOVES Global law firm Kennedys has continued to expand its team in Scotland with the appointment of a third partner from Clyde & Co. Lesley Allan is a liability expert who specialises in catastrophic and large loss claims. In addition to this, she also has extensive experience in fatal accident inquiries as well as data protection and freedom of information issues. She began her career as an in-house litigation solicitor for local authorities in Strathclyde and North Lanarkshire after studying law at the University of Glasgow. She joins Daniela Fusi and Gavin Henderson, both of whom joined Kennedys from Clyde & Co earlier this year. Her appointment brings the total number of fee earners across the firm’s Edinburgh and Glasgow offices to more than 20. The firm also recently increased its office space in Glasgow through workplace transformation programme ‘WorkWise’. “I have long admired Kennedys’ commitment to innovation as a means of responding to and anticipating the future needs of its clients,” Allan said in a statement. “It is an exciting time for the legal sector, with technology increasingly transforming the way we work, and I am delighted to join a firm such as Kennedys which is at the vanguard of that change.” Kennedys’ Scotland Practice Grows With Third Clyde & Co Partner Hire UK law firm Clarke Willmott LLP, which has offices in Birmingham, Bristol, Cardiff, London, Manchester, Southampton and Taunton, has boosted its planning and environment team with the appointment of a new partner. With over 20 years of experience in contentious and non-contentious planning law, Marianne Barker is the latest recruit to Clarke Willmott’s expanding specialist team. She will be based in the firm’s London office working and will advise on all aspects of planning law, including permitted development rights, CIL, green-built release and heritage. In a statement, Neil Baker, head of Clarke Willmott’s planning and environment team, said: “We’re delighted to have Marianne join us and offer her high quality legal and commercial advice to clients. Marianne’s expertise includes providing strategic and long-term planning input for town centre regeneration schemes and negotiating complex infrastructure agreements to deliver major planning consents. With a reputation as a solution-focused practitioner, she also has a sound understanding of the political framework in London, which plays a key role in decision making. Our planning and environment team has seen huge growth in recent years and Marianne’s appointment is part of our plans to continue this expansion.” Meanwhile, Baker said: “I am looking forward to working with Clarke Willmott’s already impressive planning and environment team to work with clients on building their businesses and unlocking potential roadblocks. “My recent focus has been project managing major residential-led, mixed use development schemes both locally and on appeal, and I’ve built up a particular expertise in scheme viability and affordable housing.” On 21 April, global law firm DLA Piper announced it had taken on a team of 27 private equity lawyers from Detroit-based firm Honigman. The hiring spree will substantially boost DLA Piper’s Chicago team of middle-market private equity attorneys. The hires include managing partner of Honigman’s city office, Harris Eisenberg, as well as co-leader of Honigman’s private equity practice, Alex Plakas. “The firm developed and is implementing a focused strategic plan, and private equity is a primary part of the plan. We strongly believe middle-market private equity represents a tremendous opportunity for the firm and our focus is to continue growing our PE practice in Chicago, other major markets in the US and around the world. This premier group, led by Harris and Alex, exemplifies what we’re looking for: top-notch practitioners who are difference makers in major markets,” said Joe Alexander, DLA Piper’s US vice chairman. Meanwhile, Harris Eisenberg commented: “On behalf of our team, I want to say how excited we are to join DLA Piper’s highly-respected team of talented dealmakers." ClarkeWillmott Boosts Planning and Environment TeamWith NewAppointment DLA Piper Snags 27 Former Honigman Attorneys 10 WWW.LAWYER-MONTHLY.COM | MAY 2022
LAWYER MOVES Dentons, the world’s largest law firm, has announced the appointment of Ash Banerjee as its Global Chief Information Officer. Banerjee first joined Dentons in 2021 as Chief Information Officer in an interim capacity, bringing more than 25 years of experience leading technology and digital transformations across multifaceted organisations. As full-time CIO, he is expected to continue his efforts leading Dentons’ technology transformation and drive its technology innovation worldwide. Before joining Dentons, Banerjee served as Hogan Lovells’s Chief Information Officer and Chief Operating Officer for the Americas region – a position in which he was responsible for a global team of more than 300 employees. Prior to this, he was Chief Information Officer at WilmerHale, and has also served in senior technologyfocused roles at EMI Music, Equant, Global One, and Heidrick & Struggles. His appointment comes as part of a series of critical additions made by Dentons to its global leadership team. Other recent appointments include Billy Curley as Global Chief Financial Officer, Neelima Paladugu as Global Chief People Officer, Kate Broer as Global Head of Inclusion & Diversity and Aragon St-Charles as Global Head of ESG. “I am honoured to continue as Dentons’ Global Chief Information officer in a full-time capacity,” Banerjee said in a statement. “I look forward to leading strategic information and technology initiatives, in order to tackle the challenges that our Firm faces, and to identify opportunities that will positively impact our clients and our people, and to help build an amazing digitally enabled firm.” Dentons Names Former Hogan Lovells CIO to Permanent Position Global law firm Jones Day announced has announced the hire of Jennifer Kane as counsel in its Business & Tort Litigation Practice, based in Jones Day’s Atlanta Office. Kane represents companies in the consumer products, medical device, pharmaceutical and automotive sectors in high-risk matters in federal and state venues nationwide. In joining the Business & Tort Litigation Practice, she brings extensive experience in all phases of litigation, from discovery to mediation and trial. She is also skilled in litigation management, acting as a national coordinating attorney for large consumer products clients. Kane has served on trial teams in dozens of highstakes commercial disputes and was a key member of the team that was recognized for earning one of the National Law Journal’s “Top Defense Verdicts”. Jones Day’s Business Tort & Litigation Practice comprises litigators who represent major companies and organisations in multi-district litigation, coordinated state proceedings, product liability cases, class actions and other high-stakes business disputes. Stephanie Parker, co-leader of the practice, welcomed Kane’s arrival. “Jennifer’s experience with mass tort and product liability litigation is an excellent complement to a key strength of our global practice group,” she said. “Her knowledge across multiple industries and both federal and state jurisdictions will be an asset to our clients.” Counsel Hire Boosts Jones Day’s Business &Tort Litigation Practice inAtlanta 11 MAY 2022 | WWW.LAWYER-MONTHLY.COM
Black Swa Events What COVID-19 and the Ukraine War Mean for Governments and Economies Romain Gerardin-Fresse is one of the world’s most influential lawyers and strategists. His expertise in advising many public figures and global decision-makers has earned him numerous titles and awards, the most recent of which saw him winning Global Investor Magazine’s “Man of the Year” award two years in a row. He has also been considered among the five lawyers in the world, and regularly speaks in the media about current economic and political issues. Lawyer Monthly last had the opportunity to talk with him in April 2021, where he spoke on the effectiveness and impact of pandemic regulations. As the geopolitical landscape shifts further with changing public health measures and the ongoing RussiaUkraine war, creating new risks for businesses and governments to face, he has once again given us an exclusive interview to discuss the challenges ahead.
The COVID-19 Pandemic hen we last spoke with you in April 2021, we discussed governments’ COVID-19 response measures. As the current health crisis is slowly receding, what plans have you seen the international community adopting to handle future pandemics? To reiterate from our past conversation, world governments have all taken drastic measures which had hitherto been unprecedented, not only to contain pandemic but also to support the economy. For the first time in the history of the modern world, public debt and the convergence criteria were no longer a variable in the equation that had to be taken into consideration. The dogma of the public deficit has been temporarily set aside, sacrificed on the altar of protecting populations. In a sort of general alignment, W 14 MAY 2022 WWW.LAWYER-MONTHLY.COM by the state of Hong Kong where families are sometimes separated in prefabs. It is to be feared that the sacrifice of the public deficit on the altar of health preservation risks mutating into a sacrifice of individual freedoms on that of prevention. To bring it down to a smaller scale, what should individual (large) businesses be focusing on as we emerge from the pandemic? Having witnessed one global ‘black swan event’, how would you advise senior management to safeguard their assets in preparation for another? It is important to remember what the “black swan” theory is. The black swan theory, developed by statistician Nassim Taleb, notably in his essay ‘The Black Swan: The Power of the Unpredictable’, is a theory according to which a black swan is a certain unpredictable event that has a low probability of occurring and which, if it occurs, has far-reaching and exceptional consequences. Taleb describes the black governments have succeeded in overcoming tension or enmity to succeed in conducting a policy of general interest. It was quite fascinating to witness this near unison. It must be kept in mind that with the pandemic being global, no one could afford the luxury of placing political or diplomatic ideology ahead of public health. In France alone, the COVID debt is more than €600 billion. Colossal. I have just returned from Mauritius where our Group has opened a strategic centre supervising our interventions on the African continent. The local population salutes the decision-making of Prime Minister Pravind Jugnauth, his responsiveness and the ties he has been able to strengthen with friendly countries for the purpose of serving the local population. His attitude made it possible to convince even part of the population among whom the protest was mounting after the legislative elections of 2019. However, the fear of reviving a global COVID wave as we experienced at the beginning of the pandemic is leading some governments to take measures that can be described as excessive. I am thinking in particular of the preventive confinement of part of the Chinese province or the isolation measures taken
swan problem as “escaping the use of degenerate metaprobabilities”. The importance of the metaphor is that it constitutes an analogy showing the fragility of systems of thought. A set of conclusions is potentially refuted as soon as one of its fundamental postulates is disproven. In this case, the sighting of a single black swan could disprove the logic of a system of thought, as well as any reasoning that followed the same underlying logic. This is exactly what happened with the COVID-19 pandemic and, to another extent, with the war in Ukraine. In the first case, this was because no one had included such a scenario in their economic planning for a single moment, and therefore this unpredictability of the event – coupled with its utterly unknown duration and consequences – totally paralysed and then turned the world economy upside down. The choice of increased outsourcing decided by many business leaders, strongly developed in recent years, led to the fact that, when strict confinements became generalised and freight and logistics problems appeared, production chains complete were shut down and then, when they 15 MAY 2022 WWW.LAWYER-MONTHLY.COM Many office floors no longer find takers, and market prices have changed postpandemic. With a drop in France of 42% in investments and 45% in leases, under the shock of the global pandemic, 2020 was the worst year for the tertiary real estate sector in twenty years. If the office is not dead, the coming months will be synonymous with the rationalisation of surfaces. During each crisis, the primary reflex is to revisit the issue of the real estate footprint, the second cost item for businesses. Today, new workspaces are emerging which aim to improve the daily lives of employees required to officiate face-toface. Many real estate groups now offer annexes – satellite structures of reduced size – hosting a company in a privileged setting a short distance from the places of residence of employees, accessible 7 days a week according to needs. Flexibility seems to have become audible again for everyone. The “usual place of work” within the meaning of labour law, which was a more than essential concept, will end up becoming quite relative. The autonomy of employees is increasingly extended. More than 72% of weekly meetings are now held in dematerialised format, no longer because the pandemic risk requires it, but because, ultimately, it has become part of our habits. This has also prompted digital majors to develop new dematerialised meeting platforms with new features and numerous refinements. restarted very slowly, continued to be disrupted for many months. In the second case, it is the international response and its economic and political consequences, particularly in terms of sanctions, which had been underestimated or little considered. The conclusion is clear; risk management is the assessment of a situation or strategic planning which must be fully appreciated by broadening the spectrum of “reasonably possible”. Alternative plans – at least two – must always be associated as part of governance planning. Previously, you mentioned that the pandemic may have irreversibly altered the way we see asset security and human resources management. How far has this been borne out in your observations since then? Are there other ‘new normals’ that you have encountered? It is obvious, and it has been confirmed. Take a look today at the strongly encouraged notion of teleworking, which has even become mandatory in some cases. Such a measure before the pandemic would simply have been unthinkable. There has never been so much co-working space development. “ Risk management is the assessment of a situation or strategic planning which must be fully appreciated by broadening the spectrum of “reasonably possible”. Alternative plans – at least two – must always be associated as part of governance planning.
The Russian Invasion of Ukraine n the aftermath of the Russian invasion of Ukraine, the Financial Times estimated global trade as having fallen 2.8%. How far does this qualify as a ‘black swan event’ for the international economy? This ties in perfectly with what I mentioned earlier. The international response in the aftermath of the Russo-Ukrainian conflict, its uniqueness in decision-making by the international community and the speed that followed had undoubtedly been completely underestimated. However, the resulting consequences are obviously eminently harmful due to the increased globalisation that governs international economic relations today. The ban on access to the SWIFT network – even if it spared the banking institutions on which international trade is more dependent – has put a sharp and brutal brake on global economic flows. In addition to the United States, it should be remembered that the sanctions taken by the European Union in financial and commercial matters have been strong: limitation of access to the primary and secondary capital markets of the EU for certain Russian banks and companies, a ban on transactions with the Russian Central Bank and the Central Bank of Belarus, a ban on supplying banknotes denominated in euros to Russia and Belarus, prohibition of any public financing or investment in Russia and even prohibition of investing in projects cofinanced by the Russian Direct Investment Fund and of contributing to them. The European Union has also banned coal imports from Russia, exports of goods and technologies in the oil refining sector to Russia and new investments in the Russian energy sector. The impact on global transport and cargo has also been particularly significant, with the closure of EU airspace to all Russianowned and Russian-registered aircraft, the closure of EU ports to shipping 16 MAY 2022 WWW.LAWYER-MONTHLY.COM First, because the economic reason, a fortiori in the case of an entity of tens of thousands of employees, requires reasoning as a captain of industry, and not as a philanthropist or a conscientious objector. To blame entities, decried for not having ceased their activities in Russia, is to establish an unhealthy connection with any political endorsement of the decisions taken by the authorities. companies, the ban on Russian and Belarusian road hauliers from entering EU territory and the ban on exports to Russia of goods and technologies in the aviation, maritime and space sectors. Russia’s responsive sanctions obviously had a particularly big impact as well. It is the whole of world trade that has been impacted. Though there has been a mass departure of multinational businesses from Russia, several – accounting for as many as 188,000 Russian employees – are continuing their operations. What would your advice be to companies uncertain about the consequences of a move away from Russia? It is always extremely complex to weigh the pros and cons of leaving a country, even for good ideological reasons. “ It is always extremely complex to weigh the pros and cons of leaving a country, even for good ideological reasons. I
First there are the consequences for the overall balance of a group, which can be dangerously endangered when a single branch generates a high ratio of total turnover in Russia, which can push to carefully assess this type of decision. Next, it should be remembered that the first companies that were led to withdraw from Russia – and which communicated widely about it – were those that did not generate significant turnover there, which was therefore more of a PR opportunity than a real economic sacrifice. Many of those who finally decided to withdraw from Russia did not do so by choice but quite simply because, faced with serious supply problems due to the sanctions, they could not do otherwise. This was the case, for example, of Decathlon which, unable to find alternative suppliers in China or Russia, resolved to temporarily cease its activity. Philippa Foot’s tramway dilemma takes on its full meaning here. Take the risk of staying and being portrayed as a financier of an abject war by paying a tax to the 17 MAY 2022 WWW.LAWYER-MONTHLY.COM What should businesses and governments take away from this event in terms of operational resilience? If addiction is the mother of all evil, autonomy is the key to freedom. The European doctrine in force for decades was to strengthen its economic ties with Russia in order to obtain security and stability in relations. It is clear that the result is strictly not up to par, but more importantly, such a strategy generated a real energy dependence. In the same way that too much outsourcing induces dependence on subcontractors – as we have already mentioned in relation to the COVID pandemic – which in the event of a crisis and unexpected event impacts the entire chain of production, an energy dependence with a third state, even if it were a friend for a day, can have dramatic consequences in the event of a diplomatic reversal. Know how to produce in-house and not depend on anyone. This is the obvious, quasi-survivalist asset that governments and businesses alike need to keep in mind. And what you cannot produce, or what you have to buy if you stick to absolute advantage theory, you have to get from enough different people so that in a crisis, you can always keep an alternative solution. Putinist state, or leaving and taking the risk of being nationalised and losing millions of euros in investments that will eventually be recovered by this same state. Another question then arises: in terms of economic stakes, what would benefit the Russian state the most? Moreover, to speak of a “mass departure” is quite popular. L’Oréal, for example, has announced the closure of its 40 stores, but has kept its production plant in Vorsino. Renault has still not withdrawn from the shareholding of the Avtovaz Company – the Russian manufacturer of the LADA brand – of which it owns 68% alongside the Russian state’s 32%, and Accor has not abandoned its portfolio of 56 hotels on Russian territory. The choice must obviously be dictated by one’s conscience, but we must measure the chance such a departure within the framework has of benefiting the Ukrainian cause against the consequences in economic and social matters, particularly in terms of jobs destroyed, that such a decision may induce. “ If addiction is the mother of all evil, autonomy is the key to freedom.
18 MAY 2022 WWW.LAWYER-MONTHLY.COM Following our last interview with you, you said that you had ambitions to expand the presence of GFK Conseils-Juridis in Africa and Asia. Can you share any news on this front? As far as Asia is concerned, we opened a branch in Singapore last year, which allows us to reach out to all the Asian territories that we had identified. In Africa, we have just opened an operational base in Mauritius, from which we operate throughout Africa, whether in the context of the internationalised growth of our private clients or the public policies of our institutional clients. 2022 should be a particularly interesting year, culturally and structurally. of which I am proud, but on which I cannot speak publicly. However, one of my greatest prides is to have succeeded in creating a firm which, each year, manages to come to the aid of the most disadvantaged by the financing of public utility programs in Africa and in Sri Lanka by setting aside part of our profits. The tactical support that we provide our customers on a daily basis through this measure is supplemented by vital operational support to the disadvantaged, which meets basic needs where public policies meet their limits. This dimension is even more important in the current economic context. We also organised a great charity evening on 25 March, during which an artwork auction took place. The proceeds from the sales, initially planned to build a school building in Sri Lanka, will make it possible to release emergency health and food aid for the country, which is suffering greatly from global tensions. About GFK Conseils-Juridis Romain founded GFK Conseils-Juridis in 2017. Today, the firm is present in Europe, the Middle East, the United States and Asia. Specialising in the definition of strategies, Romain has a strong reputation in the resolution of technically complex cases, from mergers and acquisitions to restructurings, through the drafting of laws that contribute to legislative and constitutional changes. Do you have further plans for the remainder of this year and beyond? Advanced discussions with tactical, legal andmanagerial groups in the Emirates will allow us to conquer new market shares in a territory in which we have already been well established for years. The United Arab Emirates, as I told you earlier, have developed a particularly intelligent and attractive policy for welcoming start-ups. In addition, because we act as a strategic advisor for many tech organisations, the new task force that we are developing around this area is certain to become an essential operational tool for them. If you had to name one of your career accomplishments that you are particularly proud of having achieved, which would it be? There are a number of achievements About Romain Gerardin-Fresse
About Mihaela “I am a Romanian qualified lawyer with almost 20 years of practice. I focus on domestic and international arbitration, both as counsel and as arbitrator. I also act as a domain name panelist, having solved over 140 domain name disputes, as a panelist with the Arbitration and Mediation Center of the World Intellectual Property Organization in Geneva. In terms of substantive areas, I specialise in intellectual property matters, domain name disputes and internet law. I also handle consultancy work in the corporate, M&A, finance and banking and real estate fields. I have recently co-founded Maravela Codescu Buliga Attorneys at Law, specialising in arbitration and other type of disputes, consultancy work and tax-related matters.” Contact Mihaela Maravela, Founding Partner Maravela Codescu Buliga Attorneys at Law 123 Tepes Voda, District 2, Bucharest, 021524 E: firstname.lastname@example.org www.mcblaw.ro
Arbitration and Its Relevance tothe Tech Sector MAY 2022 | WWW.LAWYER-MONTHLY.COM pandemic had a major effect on how arbitration proceedings are conducted. We have witnessed a rapid and major switch to virtual hearings, all the participants in the process taking huge technological steps in making use of new technologies in arbitrations, such as Zoom-held hearings or eDiscovery. In terms of substantive issues, a topical discussion in the last couple of years was on the subject of environmental, social and governance expectations of business, which together with the climate change goals will probably lead to an increased number of disputes in this area. Can you tell us about further trends that you expect to see in the sector in the remainder of 2022 and beyond? As companies and activities in the tech sector are subjected to regulations, we might see tech companies bringing investment claims against states for breach of their investments in the sector. Blockchain arbitration is likely to become more widely used for its advantages as an affordable and decentralised system. The way I see the process developing, access to blockchain-conducted arbitration will be possible without personal identities York Convention is also beneficial. The confidential character of the arbitration process makes it attractive for tech disputes as well. What benefits can arbitration (and ADR more widely) have for fast-evolving industries like digital technology? Having recourse to a fast and confidential dispute resolution process enables continuous innovation, as the legal positions of the parties are swiftly clarified and development is not halted by lengthy litigation. What trends in arbitration and industry have you personally observed in the past two years? During the last two years, the COVID-19 The AI, cryptocurrency and blockchain spaces have recently seen a marked increase of development contracts featuring arbitration clauses. Why do you believe arbitration is seen as an attractive option for dispute resolution in the tech sector? I think arbitration is well suited to solve disputes in this field because of the specific technical issues involved. Having tech-savvy arbitrators deciding a case is a key advantage of arbitration in tech cases. The efficiency of the process is also a major advantage compared to the length of normal court proceedings. Moreover, cryptocurrency and blockchain have a borderless character and from this perspective, being able to enforce an arbitral award in almost 170 countries that have ratified the New MY LEGAL LIFE - MIHAELA MARAVELA As a fast-changing area of industry, the tech sector is especially suited by the flexibility afforded by ADR as opposed to litigation. What are the advantages of this, and how is the relationship between arbitration and tech likely to develop as companies invest more heavily in “Web 3.0” and blockchain technology? Arbitration specialist Mihaela Maravela offers her thoughts. 21
being revealed and without the need to seek enforcement before national courts, which is a major advantage in terms of the cost and duration of the process. Development of the metaverse, or “Web 3.0”, will most likely give rise to various kinds of disputes, such as IP disputes concerning trademark infringement in the virtual world, or disputes deriving from the issue of non-fungible tokens (NFTs) related to goods sold by various trademark owners or related to artworks. Notably, there might be disputes deriving from the type of rights NFTs are able to transfer to their buyers, i.e. ownership rights or merely license rights. Disputes might also arise from IP rights based on contracts concluded before the metaverse era. I can also imagine that there will be an increased number of domain name disputes as cybersquatting will most likely grow with the development of the metaverse. In terms of procedure, I think that arbitration institutions must continuously improve or at least maintain the quality of their nominated arbitrators and of their works (arbitral awards), as there is a trend of visible improvement in judicial state proceedings – the organisation of the hearings, the qualification of the judges, the grounding and length of the court decisions. These two pillars of the justice system, public on the one hand and private on the other hand, are becoming more and more like rivals in the eyes of a client or a practitioner. WWW.LAWYER-MONTHLY.COM | MAY 2022 MY LEGAL LIFE - MIHAELA MARAVELA 22 Please tell us a little about your journey into law. I started practising law in a specialised IP law firm in Romania, where I have focused on trademark rights and domain name disputes. Together with my passion for IP during law school, this has shaped the evolution of my career. I also worked in the banking and finance team of a Big Four firm before moving to the arbitration practice of an arbitration-focused firm, also in Romania. I found that the transactional experience gained during the first part of my career in finance and banking, real estate and M&A was extremely helpful in large international arbitration disputes, as it gave me the necessary edge when preparing the strategy of arbitration and court cases that involve large volumes of data and that require attention to every detail and, at the same time, a strategic view of the case. I have further developed my experience by acting as arbitrator in commercial disputes with the Romanian Arbitration Court and as a WIPO domain name panelist in over 140 UDRP cases. I also enjoy writing on the legal topics that interest me, and in addition to contributing to various book chapters on arbitration-related issues, I have recently started my own blog (maravela.blog) with my insights on arbitration, domain name disputes and intellectual property issues. I think that my experience at the intersection of international arbitration, intellectual property, cybersecurity and internet laws will assist my practice in the challenging legal system that the rise of the metaverse will shape. Do you have a particular career achievement that you are especially proud of? One of the highlights of my career was obtaining a favourable decision for the Romanian state in a high-stakes investment arbitration case where I coordinated, together with my partner at the time, the work on the Romanian law issues applicable in the case. The claims against the state were rejected in full. I am also particularly proud of having presided on a three-member panel in a UDRP case concerning one of the hot topics decided in 2021, which addressed free speech issues in a “.sucks” domain name case. What motivates you to achieve the best possible success for your clients? I always strive to find the best solution for the client for the legal issues that I analyse either in consultancy or transactional work or in disputes that I handle. I find the entire process of putting the factual pieces and the results of the legal research together to prepare the strategy of the case fascinating. In my capacity as decision-maker I always strive to find the truth and to take the correct and just decision for the parties in dispute. More About Mihaela Maravela Development of the metaverse, or “Web 3.0”, will most likely give rise to various kinds of disputes.
RussiaUkraine Conflict: What Constitutes aWar Crime? Written By Rachel Makinson More than twomonths on from the outbreak of hostilities inUkraine, evidence has emerged of violence against civilians, among other crimes. Below, Rachel Makinson explainswhat “legally” defines awar crime and how it applies to the conflict inUkraine. What is a War Crime? The term “war crime” refers to any serious breach of international humanitarian law committed against enemy troops or civilians during a conflict. Such crimes predominantly stem from the Geneva Conventions (1949) as well as their Additional Protocols (1977) and the Hague Conventions (1899 and 1907). War crimes include: 1. Wilful killing; 2. Torture or inhuman treatment, including biological experiments; 3. Wilfully causing great suffering, or serious injury to body or health; 4. Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly; 5. Compelling a prisoner of war or other protected person to serve in the forces of a hostile power; 6. Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular trial; 7. Unlawful deportation or transfer or unlawful confinement; 8. Taking hostages.
What Are the Key Elements of a War Crime? What exactly counts as a war crime is somewhat ambiguous, partly due to this definition varying depending on whether or not the conflict in question is international. However, according to the United Nations, war crimes contain two key elements. Firstly, the contextual element: “the conduct took place in the context of and was associated with an international/non-international armed conflict”. And, secondly, the mental element: “intent and knowledge both with regards to the individual act and the contextual element.” How Do War Crimes Differ fromCrimes Against Humanity? Four key elements distinguish war crimes from crimes against humanity: 1. War crimes can only be committed during an armed conflict, while crimes against humanity can also be committed in times of peace. 2. A crime against humanity may be committed against nationals of any state, including that state’s own nationals. 3. War crimes can be committed against both civilians and enemy combatants, while crimes against humanity may only be committed against civilians. 4. A crime against humanity must be committed as part of a systematic or widespread attack upon civilians, but this is not required of a war crime. While an isolated act could qualify as a war crime, it could not be counted as a crime against humanity. Have War Crimes Been Committed in Ukraine? Shortly after Russia invaded Ukraine, ICC Prosecutor Karim Khan announced he would be launching an investigation into whether Russia was guilty of committing war crimes: “Last Friday, I expressed my increasing concern, echoing those of world leaders and citizens of the world alike, over the events unfolding in Ukraine. Today, I wish to announce that I have decided to proceed with opening an investigation into the Situation in Ukraine, as rapidly as possible […] I have already tasked my team to explore all evidence preservation opportunities. The next step is to proceed with the process of seeking and obtaining authorisation from the Pre-Trial Chamber of the Court to open an investigation. “An alternative route set out in the Statute that could further expedite matters would be for an ICC State Party to refer the situation to my Office, which would allow us to actively and immediately proceed with the Office’s independent and objective investigations. […] I will continue to closely follow developments on the ground in Ukraine, and again call for restraint and strict adherence to the applicable rules of international humanitarian law.” The shelling of a maternity hospital in Mariupol and a bread factory just outside of Kyiv are two early examples of civilian objects being destroyed by Russia’s troops. Since, Human Rights Watch (HRM) has issued a statement saying it had discovered “several cases of Russian military forces committing laws-of-war violations” in Kiev, Chernihiv, and Kharkiv. The HRM’s statement came just one day after civilian bodies were found scattered through the streets of Bucha, three days after Russian troops withdrew from the city. Russia’s defence ministry, however, has denied claims that its forces killed civilians. For a Court to Determine The evidence that Russian military forces are guilty of war crimes appears strong thus far. However, whether or not Russian troops, or Russia’s president, are guilty of such crimes will ultimately be for a court to determine.
26 WWW.LAWYER-MONTHLY.COM | MAY 2022 Although external third-party funding (“TPF”) is becoming progressively more common across litigation and arbitration, there is virtually no commentary available on this formof funding formediationandalternative forms of dispute resolution. This is perhaps not entirely surprising, as most mediations occur prior to or alongside litigation and are conducted privately. Increasingly, mediation is used in circumstances where litigation is not even in prospect or where no solicitors are instructed and so, alongside that, there will need to be greater consideration of the costs involved. In almost all cases, mediation will be significantly less expensive than litigation (most mediations take only a day or two). However, to make optimal use of the process, mediation can still require significant preparation. Whilst this is likely to take a different form from litigation, parties may benefit from the involvement of legal representatives or other advisers, especially if there are legal issues in discussion or other complexities where an adviser can be helpful. When conducting mediation, parties constantly weigh up the likely outcomes, which inevitably includes the financial cost of continuing the dispute, including taking more adversarial routes such as litigation or arbitration. There are numerous options available to parties when looking at the costs of resolving a dispute, including legal aid, seeking pro bono assistance and entering into conditional fee arrangements or damages-based agreements, which can all help make pursuing a dispute more financially viable. TPF is equally well suited to mediation. In fact, the prospect of a dispute being settled via mediation is hugely appealing to the funders as, generally speaking, risk Scotland’s only independent provider of third-party commercial funding, Restitution Ltd, has carved out a niche in the marketplace and over the past 10 years has worked with law firms and their clients on claims with damages ranging from tens of thousands right up to multimillion pound claims. In this article we hear from Frances Sim, general counsel at Restitution, on another option for funding mediation. Is There Another Option to Fund Mediation? Frances Sim WS, General Counsel Restitution Ltd 6 St Colme St, Edinburgh EH3 6AD Tel: +44 07547 824773 E: email@example.com www.restitutionltd.co.uk Frances Sim WS is the general counsel for Restitution Ltd and a member of the Society of Writers to Her Majesty’s Signet, known as the WS Society. She has over 20 years’ experience working in private practice within Edinburgh before joining Restitution in 2017. Last year, Frances trained as a mediator and now offers her services as a volunteer mediator covering small claims at the Sheriff Court. Restitution Ltd, established in 2012, is a specialist provider of commercial litigation, arbitration, mediation and dispute resolution funding. IS THERE ANOTHER OPTION TO FUND MEDIATION?
27 MAY 2022 | WWW.LAWYER-MONTHLY.COM IS THERE ANOTHER OPTION TO FUND MEDIATION? escalates over time. While this form of support was traditionally suited to larger and more complex claims, its model has changed in recent years. It is now geared for a wider range of claims, and it is more accessible to all. It is usual for a third-party funder to carry out its own sophisticated due diligence and only agreeing to provide funding if it is of the opinion that it has been presented with a meritorious case with reasonable prospects of settlement and has good prospects of recovery. That can be helpful for the funded party, as it provides additional comfort that another fresh set of eyes has scrutinised the case. It can also change the dynamics and send a strong message on the merits to the opposing party which may result in faster settlement. As in all legal processes, TPF can bring great value to mediation by assisting financially – and, perhaps, psychologically. Reputable funders will approach funding mediation in the same way as litigation. They will not seek to control the case or settlement discussions and should leave ultimate control with the parties (and their legal team if there is one involved). A funder should of course have a voice, but not necessarily veto rights and ultimately will have the option whether to continue or extend its funding. A funder will likely approach settlement discussions much less emotionally, but their interests should be perfectly aligned to encourage parties to mediate and placing increasing emphasis on mediation as a method of resolving disputes. An unreasonable failure to consider or attempt mediation in England and Wales may result in court-imposed costs sanctions. Scotland is also looking at strategies to introduce a mandatory requirement on parties to attend a session about mediation, funding options and primary legislation by way of a Mediation Act. The analogy between TPF and mediation seems useful; neither will be available or relevant for all cases, but can be viewed as different tools in the toolbox to provide more options for a party with a dispute, opening up many potential additional benefits other than pure finance. John Sturrock QC is widely described as a thought leader and is internationally recognised as one of the leading commercial mediators in the UK. When it comes to TPF, he says: “Anything which encourages more clients to use mediation to achieve speedy and cost-effective resolution of disputes is to be welcomed. third-party funding is one such imaginative option.” with the funded party. They can act as a useful check and balance for the funded party. With a funder involved, the mediator may need to encourage each party to take that fact into account in their exchange of views and their approach to financial settlement. Assuming settlement is reached, the funded party will have to ‘share’ its winnings with the third-party funder on a pre-agreed basis, but should it fail, typically the funding provided is not repayable. Although there are contrasting views, TPF can also provide a means of giving access to justice. The funders invest in existing or prospective cases – often those which might otherwise not be able to be pursued – to enable their clients to progress their dispute. Mediation is well-recognised in the UK as an accepted form of dispute resolution. Although parties contemplating court litigation are not obliged first to mediate, in England and Wales they are under an obligation to consider whether their dispute could be settled by alternative means. This includes many courts having powers As in all legal processes, TPF can bring great value to mediation by assisting financially – and, perhaps, psychologically.