LAWYER MONTHLY©2024 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. Approx. 302,000 net digital distribution. KPS Capital Partners to Acquire Sport Group with Borge Seeger, NEUWERK 64 JUNE 2024 Welcome to the latest issue of Lawyer Monthly magazine. We are proud to highlight some of the most exceptional lawyers in the profession. This edition features in-depth interviews with legal professionals who are making significant impacts in their respective fields. Featured as our main front cover image are Kristina Countess Pilati and Alma Fritz of Pilati + Fritz Rechtsanwälte. Their dedication to family law and their exceptional ability to navigate complex legal landscapes have positioned their firm as a beacon of excellence in Germany. Their story of collaboration and innovation serves as an inspiration to legal professionals everywhere. Also featured in this edition are: - Christophe Rapin of Kellerhals Carrard, sharing insights on commercial litigation and arbitration. - Laurie Webb Daniel of Webb Daniel Friedlander LLP, discussing her expertise in appellate advocacy. - Priscila Kei Sato of Arruda Alvim, Aragão, Lins & Sato Advogados, discussing litigation and dispute resolution in Brazil. - Dana Bentata of Bentata Abogados, explaining the Venezuelan law on the protection of intellectual property. - Stuart Levy of SGL Chemistry Consulting, LLC, providing insights as a leading chemical and pharmaceutical expert witness. We hope you find their experiences and insights both informative and inspiring. Thank you for reading, and we hope you enjoy this edition. Warm regards, Mark Palmer Editor, Lawyer Monthly Christophe Rapin Exploring Franchise Law in Switzerland 18 Pilati + Fritz Rechtsanwälte An Interview with Alma Fritz and Kristina Countess Pilati 10
Production Team: Emma Tansey, Luke Ostle production@lawyer-monthly.com Sales Enquires: Jacob Mallinder Jacob.mallinder@universalmedia365.com @lawyermonthly @LawyerMonthly @lawyermonthly company/lawyer-monthly Universal Media Limited, PO Box 17858, Tamworth, B77 9QG, United Kingdom 0044 (0) 1543 255 537 CONTENTS AN INTERVIEW WITH... 10. Alma Fritz and Kristina Countess Pilati of Pilati + Fritz Rechtsanwälte 18. Christophe Rapin Exploring Franchise Law in Switzerland 22. Laurie Webb Daniel A Journey from Trial Law to Appellate Law 26. Priscila Kei Sato Discussing Litigation & Dispute Resolution in Brazil 30. Dana Bentata Venezuelan Law on the Protection of Intellectual Property 34. Stuart G. Levy Insights from a Leading Chemical and Pharmaceutical Expert Witness 40. Professor Paul Tipton Expert Insights into the Evolving Landscape of Dental Litigation 44. Professor Nicholas Vyner Todd Consultant Neurosurgeon & Spinal Surgeon 50. Dr. Thomas Jenkyn Expert Insights into the Evolving Landscape of Dental Litigation SPECIAL FEATURE 58. How to Choose the Right Corporate Attorney for Your Business 4. NEWS TRANSACTIONS 64. KPS Capital Partners to Acquire Sport Group 68. Villeroy & Boch Moves into Egypt 72. Enel Green Power Espana’s Investment for Campillo Wind Cluster 74. Lindsay Corporation Takes a Stake in Pessl Instrument 76. JFE Shoji’s €50 Million Investment in Serbia 78 - 86. Featured Transaction Reports Laurie Webb Daniel A Journey from Trial Law to Appellate Law 22
4 LAWYER MONTHLY JUNE 2024 Former U.S. President, Donald Trump has been found guilty of all 34 charges of fraud against him in the trial surrounding hush money paid to Stormy Daniels and the falsified records. This has been stated as illegal campaigning and influencing the 2016 election through supressing information becoming public as Stormy Daniels was paid to keep the affair between herself and Donald Trump quiet. The 12 person jury has found Trump guilty and he will be sentence in July. Donald Trump Found Guilty of Fraud Mr. Trump claims this was set up and rigged as a political stab against him. History has been made This is the first time in history that an American former or current president has been convicted of a crime making the predictions hard to determine. Donal Trump will face sentencing on July 11 which could be a large fine or prison time. The sentence is set to be announced just days before Mr Trump is scheduled to be nominated as Republican candidate. What does this mean for the election? Mr Trump is running in the election held in November but with a criminal records, will he still be running? With this being a historical first there is no format to go from and many think if Mr Trump is sentenced to just a fine he will still be running in the election. The prison sentence could be for up to 4 years which experts say will be an unlikely verdict. This could dissuade people from supporting Mr Trump however, with people more worried about aspects such as, the economy and where foreign aid is being sent to this year, the public may not be thinking about Mr Trump’s trial. NEWS
NEWS 5 Open AI got themselves into a legal battle with Scarlett Johansson after imitating her voice for the AIgenerated chatbot, Sky. AI and Copyright Laws They deny the claims that they intentionally mimicked Johansson’s voice and had an actress in place early on. Open AI’s CEO, Sam Altman, did reach out to Scarlett Johansson requesting she replaced their actress with her own voice for the character, to which Johansson declined. The voice was reported to sound just like Scarlet Johansson’s character in ‘Her’ from 2013. SAG-AFTRA, an influential body representing television and radio artists has reported they will be removing the character of ‘Sky’ from their products in support of Scarlett Johansson. John Berlinski, a partner at Los Angeles law firm, Bird Marella will be her counsel if she decides to carry out legal action against Open AI. The worry for the creative industry This is adding to the concern of many in the creative industry as they can be easily imitated and perhaps replaced in the future. 8 different newspapers have filed lawsuits against Open AI and Microsoft alleging that their AI software is undermining the newspaper industry. The newspaper include, The New York Daily News and Chicago Tribune. The Newspapers allege that AI companies unlawfully copied millions of their articles to train Ai products which include Microsoft’s Copilot and OpenAI’s ChatGPT. NEWS
6 LAWYER MONTHLY JUNE 2024 The Chief prosecutor of the International Criminal Court (ICC) has now applied for arrest warrants for the Israeli Prime Minister, Benjamin Netanyahu and the leader of Hamas, Yahya Sinwar for war crimes and crimes against humanity. Also wanted by the ICC are the Israeli defence minister, Yoav Gallant, the military chief for Hamas, Mohammed Deif and the Hamas Political leader, Ismail Haniyeh. The Chief Prosecutor of the ICC, who took position in 2021 believe they are responsible for war crimes since the 7th October when Hamas attacked Israel leaving 1200 killed and took 252 hostages back to Gaza. This is the event which triggered the current war which has left around 35,000 Palestinians killed and many more starved and displaced. Khan believes crimes have been committed and are continuing to be carried out and is determined to find justice. The crimes Hamas are accused of include, extermination, murder, hostage taking, rape, sexual violence and torture as war methods. Leaders of Israel and Hamas Group are Wanted for War Crimes NEWS
NEWS 7 wanted will have their travel options severely limited. The ICC does not have its own police force and so rely heavily on member states to carry out their sanctions. The 124 state members of the ICC will have an obligation to carry out arrest of any and all of the figures if they have the opportunity to. Non-members will be under pressure to carry out arrests, however they are not under obligation. China, Russia and the US are three powerful non-members and could very well dismiss the warrants meaning travel to these countries could be viable. The crimes the Israel members are accused of include, starvation of civilians as a method of war, murder, extermination and intentional civilian attacks. The ICC next steps Judges from the ICC will now decide whether arrest warrants for those mentioned can be granted with sufficient evidence. There will be 3 judges which are reported to be from Romania, Benin and Mexico. There will be an immense amount of external pressure on the judges during this substantial moment the world is watching What could happen if the arrest warrants are granted? This would be the first time a Westernstyle democracy will have an arrest warrant for their leader. This will concern allies of Israel and test the power and limitations of the ICC. The Guardian reports that if the arrest warrants are granted then those Those in Gaza such as, Sinwar and Deif are out of reach and well as those in nonmember countries. The international response Khan applying for these arrest warrants was a bold move against those involved and the response has been varied. Khan did also state that more warrants will be applied for in the future. Joe Biden, has expressed his disdain calling the move “outrageous” as he believes Israel and the Hamas group should not be compared by the same measures. The US is not a member of the ICC despite them supporting the warrants against Vladimir Putin for the attack on Ukraine. They are a known ally of Israel and have been supplying weapons throughout this conflict. A spokesperson for Rishi Sunak also takes an opposed position as Israel is not a state party of the Rome Statue and so is outside of the ICC’s areas of jurisdiction. The South African Presidency welcomes the action taken and believes accountability needs to be taken for the current events and conflict taking place. The Israel prime minister, Netanyahu has denounced the warrants as he says this will be taking away their right for defence against an attacker. Hamas have called out to say they are the victim of brutal attacks by Israel and should not be condemned in the same manner. Many take the stance against the action as it was the Hamas attack in October 2023 which began this conflict and Israel have the right to defend themselves. As Khan counterargues that defence should not include civilian attacks and using starvation of civilians as a war method as the bombing attacks that have happened and continue to happen have destroyed millions of people and areas within Gaza. The US Secretary of State has stated his plan to take legal action against the ICC and the warrants.
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NEWS 9 An amendment to the Criminal Justice Bill now making its way through Parliament will make it an offence punishable by up to 14 years’ custody to cause death or serious injury by dangerous or careless cycling. Is any of this newsworthy? Causing Death By Dangerous Cycling There isn’t much to be gained from denying that cyclists can and do cause serious injury (and even occasionally death) when they use the road carelessly or dangerously. And there is no obvious logical reason why the penalties for causing death on the road should not be the same whether caused by cars or bikes – the outcome is the same in either event. This equality was the professed aim of the principal campaigner for the legislative change, Sir Ian Duncan Smith MP: “just as drivers are held accountable for dangerous driving that results in death, cyclists I think should face similar consequences”. There is something to be said for simplifying the existing system. Even if it is possible to prosecute cyclists who cause death or injury under existing legislation, making the process more straightforward isn’t, in itself, a bad thing. It is, however, worth asking if this issue is being seen in proportion. According to one letter published by the London School of Economics, around 8 cyclists and 60 pedestrians die every year in London alone, and a further 2,000 suffer serious injury. Former Olympic cyclist Chris Boardman has made the point that, nationwide, there are 1,700 deaths caused by or involving motor vehicles every year, while the equivalent number for cyclists is just 3. Even if, as Cycling UK reports, the general risk of any injury while cycling is very small and getting smaller, the plain facts are still that you are much more likely to suffer injury or death as a cyclist than you are to perpetrate it, and the biggest danger to you is likely to come from cars. You might then think it’s strange to give this development so much rhetorical weight. It’s also more than a little ghoulish when it isn’t accompanied by corresponding measures to make the roads safer to use for everyone. If anything, the Conservative government seems to have decided that road safety measures are themselves insidious threats to the liberty of ‘ordinary people’ (leaving aside that car ownership in the UK largely correlates with a higher household income). In everything from opposition to the ULEZ in London to 20mph speed limits, the current government seems determined to fight the Prime Minister’s imagined “war on motorists” as part of a wider series of culture-war skirmishes. Next to the red meat of the Rwanda Plan or rolling back on healthcare and relationship education for LGBT+ people, making it moderately easier to prosecute cyclists might well be table scraps for the reactionary demographic to which the government is appealing. In ordinary times it might not even be particularly noteworthy. But we do not live in ordinary times, and so this relatively unremarkable legislative change carries an air of profound, desperate politicking. Read this article and much more like this, online at: www.lawyer-monthly.com Just as drivers are held accountable for dangerous driving that results in death, cyclists I think should face similar consequences. NEWS
Pilati + Fritz Please introduce yourself to the readers of Lawyer Monthly. We are specialized lawyers for family law and partners of the law firm Pilati + Fritz Rechtsanwälte. For many years, we have passionately defended the rights and interests of our clients, particularly in complex and often emotionally stressful matters involving family law. With our extensive experience and dedicated team, we support our clients in overcoming family-related challenges and accompany them on their way to a changed future. There is hardly any other legal area in which critical issues clash with deep emotions as intensively as in family and inheritance law. In addition to providing our clients with strong legal assistance, we consider it to be our duty to offer tailored advice and to understand their individual needs. In every case, we endeavor to deliver the best possible solution. Divorce proceedings can take a long time and be In this edition of Lawyer Monthly, we are pleased to introduce Kristina Countess Pilati and Alma Fritz, partners at Pilati + Fritz Rechtsanwälte, a specialized German law firm focused on family law. With years of dedicated experience, Kristina and Alma have been passionately defending the rights and interests of their clients, especially in complex and emotionally charged family law matters. Their firm is renowned for providing strong legal assistance combined with tailored advice, ensuring that each client receives the best possible solution. In this interview, they share their professional backgrounds, the services they offer, and insights into the unique challenges and nuances of family law in Germany. An Interview with Kristina Countess Pilati and Alma Fritz 10 LAWYER MONTHLY JUNE 2024
WWW.LAWYER-MONTHLY.COM 11 very painful and costly. Therefore, an amicable settlement is advisable. Very often, such a settlement can be reached. What is your professional background and education? We both hold a law degree and have completed numerous training courses in family law. Through our many years of practice and specialization in this field of law, we have gained a strong foothold in Germany and abroad. Our law firm attaches great importance to ongoing further training and interdisciplinary cooperation. Kristina comes from a family of lawyers. Her father, Dr. Albert Paul, was a wellknown and respected lawyer and notary in Frankfurt am Main. Kristina has worked as a notary for many years and also holds a degree in humanistic psychology. I (Alma) have been with the firm for 16 years, including 10 years as a lawyer, four years as a partner and now as a managing partner. I will continue the law firm and its tradition. Under the longstanding mentorship of Kristina, I was well-prepared to take over the law firm. In our law firm, I take care of family cases with a foreign element, in which child custody matters are in the foreground. From the very beginning, we have served major clients throughout Germany, working at a high level. We complement each other perfectly. Kristina has benefited from my experience, which I gained as a research assistant at the University of Frankfurt am Main at the chair of Prof. Dr. Guido Pfeifer. Thus, she has been able to leverage scientific, systematic work and current case law in the law firm. From the outset, we have complemented each other, operating on the same wavelength, and have secured an orderly succession. We have access to a large network and can, therefore, help our clients in all situations. What type of services do you provide? Our law firm provides comprehensive legal advice and representation in all areas of family law, including the following: • Divorces and separations • Custody and alimony disputes • Marriage contracts and asset protection • International family law issues • Estate planning and inheritance law Why did you decide to specialize in family law? Family law matters can be stressful for those involved and require In every case, we endeavor to deliver the best possible solution. Kristina Countess Pilati (left) and Alma Fritz (right) Partners at Pilati + Fritz Rechtsanwälte
particular sensitivity and expertise. We have chosen this area of law in order to assist our clients in difficult times and exceptional situations and to support them in resolving their family conflicts. The opportunity to help people and give them a perspective for the future motivates us in our daily work. How does child custody work in Germany? This is a very complex topic. In Germany— unlike in many other legal systems— distinction is made between custody and contact and access rights. Custody and, contact and access rights are independent of each other. Thus, a parent who does not have custody still has a right to contact with the child. Under normal circumstances, custody is jointly exercised by both parents. As far as the establishment of parental custody is concerned, distinction is made as to whether or not the parents are married to each other at the time of the child’s birth. If the parents are married at the time of birth, they are entitled to joint parental custody. If the parents are not married at the time of the child’s birth, they are entitled to joint parental custody 1. if they declare that they wish to assume joint custody and make declarations of custody, 2. if they marry each other or 3. if the family court grants them joint parental custody. If joint parental custody is on hand, both parents have equal rights and make joint decisions for the benefit of their children. In the event of separation and divorce of the parents, joint parental custody generally remains in place. If the parents live separately, both parents jointly exercise parental custody, though the parent with whom the children usually reside has sole decision-making authority in matters of daily life. Everyday care includes all matters that arise in daily life, e.g. school life including participation in day trips, picking up the child from daycare or school, and so on. In matters of considerable importance for the children, such as determining their place of residence, school enrollment, enrollment and deregistration from kindergarten etc., the parents must make a joint decision. If they are unable to do so, the family court may, upon application, transfer the decision-making authority regarding the matter on which they are unable to agree to one of the parents. Parental custody may be withdrawn from one parent by the court and transferred to the other parent for sole exercise if there is no minimum level of cooperation and communication between the parents and the continuation of joint parental custody poses a risk to the child’s welfare. 12 LAWYER MONTHLY JUNE 2024 Our law firm has extensive experience in cross-border legal matters and works closely with colleagues and experts around the globe.
Can I move abroad with my child when the other parent has joint custody in Germany? If both parents have joint custody, moving abroad with a child requires the consent of the other parent. Without this consent, such a move could constitute child abduction. In such cases, a court decision to transfer the right to determine the place of residence may be necessary, as the transfer of residence is a matter of considerable importance for the child. If the parents disagree about the child moving abroad, it will often be necessary to transfer other areas of parental custody in addition to the right to determine the child’s place of residence, e.g. in school matters if the child is a student and needs to be enrolled in school abroad. International family law issues can include crossborder divorces, child abduction and custody disputes. What are the main challenges and complexities regarding international family law issues? It depends on the individual case. In international family law, the greatest challenges lie in the different legal regulations and legal systems of the countries involved. The recognition and enforcement of court rulings and the coordination between different national authorities are especially complex. International child abduction and child return proceedings, in particular, pose special challenges for all parties involved. As the situation can be unbearable for the parents concerned, it is all the more important to proceed strategically and carefully evaluate any steps to be taken. International family law is becoming increasingly relevant since families no longer all live in the same place or in the same country. WWW.LAWYER-MONTHLY.COM 13
14 LAWYER MONTHLY JUNE 2024 Our law firm has extensive experience in cross-border legal matters and works closely with colleagues and experts around the globe. What is the divorce process in Germany and what happens to our finances on divorce? Divorce proceedings begin with the filing of the application for divorce with the court. A divorce may be pronounced after one year of separation. If the spouses did not conclude any prenuptial and postnuptial agreement, the statutory provisions apply. The statutory matrimonial property regime is the community of accrued gains. Under the community of accrued gains regime, each spouse retains ownership and management of his or her own assets and also benefits from them. There is no legal liability for the debts of the spouse. There are no joint assets. Instead, the spouse with the smaller gain receives an equalization payment from the other spouse. The respective gain is determined on the basis of a strict cut-off date principle, i.e. information must, on request, be provided about the assets on the date of the marriage and on the date of service of the application for divorce. This information must be substantiated with supporting documents. In addition, information may be requested about the assets at the time of separation. This information must also be substantiated with supporting documents. The spouse who has made the higher gain must pay the other spouse half of the difference between the respective gains as compensation. Inheritances or gifts made by one spouse during the marriage are added to the initial assets so that the other spouse does not participate in the increase in assets resulting from such gifts. On the other hand, any increase in value is subject to equalization. The spouses are subject to restrictions on the disposal of the assets as a whole and of household items. In order to counteract arbitrary reductions in assets and thus a reduction in the equalization claim, certain disadvantageous measures are either withdrawn purely by calculation, or the disadvantaged spouse may demand that the third party return what has been granted. If the spouses are unable to reach an out-of-court settlement, they can include subsequent proceedings in the divorce settlement (so-called combined application), e.g. post-marital alimony or equalization of gains. A good family law lawyer needs excellent legal knowledge, empathy, communication skills, and negotiation skills.
A combined application means that certain matters that are decided in connection with a divorce must actually be decided in conjunction with the divorce. The purpose of the divorce settlement is to clarify the consequences of a divorce even before it is pronounced. In a combined application, a matter is only decided on together with the divorce if the parties involved request this. Distinction must be made between this and the compulsory connection that exists between divorce and pension equalization. This means that as soon as an application for divorce is filed, the family court automatically conducts pension equalization proceedings, equalizing the entitlements acquired by the spouses during the marriage. From a financial point of view, a spouse may also be entitled to separation alimony for the period up to the divorce and postmarital alimony for the period after the divorce. What are prenuptial and postnuptial agreements in Germany, how do they work, and can they be treated as binding contracts in all jurisdictions? Marriage contracts can regulate property issues, alimony, and pension provisions and may be concluded both before and after the marriage. They need to be notarized in order to be legally effective. Marriage contracts may also govern the consequences of divorce, such as equalization of gains, alimony, pension equalization, allocation of the marital home or division of household items, etc. In this case, they are referred to as “agreements on the consequences of divorce”. The recognition of marriage contracts in other legal systems depends on the respective national laws. It is advisable to regularly review and adapt marriage contracts, as marital life can change over time. What does an amicable divorce mean and what is the role of the lawyer in achieving an amicable divorce? An amicable divorce means that both spouses want to get divorced and agree on the main consequences of the divorce. A lawyer files an application for divorce on behalf one of the spouses. The other spouse does not need their own lawyer, but can agree to the other spouse’s application for divorce. The divorce becomes final once the onemonth period for lodging an appeal has expired. If both spouses are represented by a lawyer, a waiver of appeal can be declared at the divorce hearing, so that the divorce decree becomes legally binding right after the judge WWW.LAWYER-MONTHLY.COM 15
16 LAWYER MONTHLY JUNE 2024 has pronounced the divorce decree, i.e. immediately. Thus, the marriage is finally dissolved on the same day. How is an estate dealt with if there are assets inside and outside of Germany? In the case of an estate with assets in Germany and abroad, both national and international regulations must be observed. This may require cooperation with foreign authorities and lawyers. It is important to consider all relevant inheritance and tax regulations in order to ensure a settlement that is both lawful and efficient. Probate matters can be emotionally charged and challenging to resolve. What are the main issues clients face and how are these resolved? The main problems are often family conflicts that may also arise from patchwork families, especially if there are several ex-wives, uncertainties about the legal situation, and tax issues. These problems can be solved through clear communication, timely arrangements, i.e. arrangements made during the lifetime of the respective person, comprehensive legal advice, and mediation. In the case of divorced entrepreneurs with underage children, it is advisable to have a divorce will. Sometimes, overcoming the obstacle of entering a mediation process is a greater hurdle than actually reaching an agreement. What are the challenges and issues regarding German property disputes on the breakdown of a marriage or relationship, and how are these resolved? Challenges can include valuations of complex business structures in the It is advisable to regularly review and adapt marriage contracts, as marital life can change over time.
context of gain equalization, which can be resolved through expert advice and thorough financial analysis, negotiations and, if necessary, court decisions. Family mediation is a popular Alternative Dispute Resolution (ADR) method to settle disputes between exspouses and separated parents. What impact has mediation and other ADR methods had on German divorce cases? Mediation can considerably shorten court proceedings and reduce emotional stress. It can promote an amicable agreement and avoid lengthy court proceedings and offers the parties a chance to talk in a protected environment. A mediator helps the parties to take responsibility, learn how to deal with the conflict, and come to a mutual agreement. Subject to the parties’ agreement, mediation can take place before or during court proceedings. In family law proceedings, mediation is often conducted in court by judges who do not have jurisdiction in the case itself. Out-of-court mediation can even take place while the court proceedings continue. Have there been any recent significant changes in German family law? Yes. In recent years, there have been some significant changes in German family law, particularly with regard to custody, strengthened rights of unmarried fathers and samesex marriage, especially since the introduction of “marriage for all” in October 2017. In January 2024, the Federal Ministry of Justice presented key points for a reform of parentage and filiation law. Besides the conventional marriage and family model consisting of father, mother, and children, new forms of cohabitation have emerged and might need to be taken into consideration. What skills and qualities do you need to become a good family lawyer? A good family law lawyer needs excellent legal knowledge, empathy, communication skills, and negotiation skills. Moreover, passion, trust, integrity, confidentiality, and a sense of responsibility are essential. WWW.LAWYER-MONTHLY.COM 17 Pilati + Fritz Rechtsanwälte Friedensstr. 11 . 60311 Frankfurt am Main Tel: +49 69 2695853-0 | Fax: +49 69 2695853-65 | Email: fritz@pilati-fritz.de www.pilati-fritz.de Mediation can considerably shorten court proceedings and reduce emotional stress.
Christophe Rapin 18 LAWYER MONTHLY JUNE 2024 On January 1, 2022, a modification of the Federal Act on Cartels and Other Restraints of Competition entered into force in Switzerland (Cartel Act), introducing the concept of relative market power. The purpose of this contribution is to analyse those modifications and discuss their possible impacts on franchise relationships. It will focus on the right granted to buyers to purchase goods or services offered both in Switzerland and abroad at the market prices and conditions customary in the industry in the foreign country concerned. It is a fact that prices for goods and services are generally speaking higher in Switzerland compared to surrounding countries like France, Germany, Italy or Austria. For decades, the Commission for Competition (Comco), its Secretariat and the courts have been elaborating substantial caselaw regarding the prohibition to restrain parallel imports into Switzerland. Contrary to the European Union that aims at ensuring and strengthening a single market across the EU, the Swiss approach is driven by the concept of “expansiveness Island” within the European continent, against which the political authorities intend to fight, for the benefit of locally based business and, ultimately, consumers. An Interview with... Exploring Franchise Law in Switzerland Christophe Rapin Partner, Kellerhals Carrard Tel: +41 58 200 33 30 Fax: +41 58 200 33 11 E: christophe.rapin@kellerhals-carrard.ch www.kellerhals-carrard.ch In this interview, we speak with Christophe Rapin, partner and co-head of Kellerhals Carrard’s Competition, Trade, and Regulatory group. Kellerhals Carrard is a leading Swiss law firm with strong local roots and global connections. The firm’s attorneys advise domestic and foreign clients on antitrust and competition law matters, merger control proceedings, and sector-specific regulations. We explore the recent changes to the Federal Act on Cartels and Other Restraints of Competition, the concept of relative market power, and its impact on franchise relationships.. Join us as we gain valuable perspectives from Christophe Rapin on these important topics.
WWW.LAWYER-MONTHLY.COM 19 nor their size is relevant regarding the determination of a relative market power. In addition, it is sufficient that the concerned practice as an effect on the Swiss market, without any quantitative appreciation of such effect. Sufficient and reasonable alternatives This condition must be analysed on a case-by-case basis and is certainly the one that is critical while evaluating the position of a franchisor. Indeed, at first sight, being the franchisor of a specific cosmetic brand or pastry chain does not prevent the franchisee to decide to terminate its existing relationship to become the franchisee of a competing franchisor. It seems however that such an alternative shall not be deemed reasonable in the sense of the law, considering in particular the specific franchise-related investments and the conversion costs. But it remains however that the cause of the dependence still relies in the decision of the dependent undertaking to enter into the contractual relationship, even if the alleged discrimination in the supply conditions lies with the supplier, in that case the franchisor. franchisee and franchisor are not deemed to be “undertakings”, but are part of the same group, the group benefits in principle from the so-called “group privilege” recognized by the Swiss federal Supreme Court in connection with the limitation of parallel imports. Further, the concept of relative market power differs from the concept of dominance in the sense that it is not related to the positioning of an undertaking on a specific market, but it applies to an individual and specific bilateral relationship between two undertakings. In other words, the same undertaking can be deemed to have a relative market towards one contractual partner, but not necessarily another one. This nuance is probably not relevant with regards to franchise networks as we can assume that the same rules shall apply to all the Swiss based franchisee of the same franchise. Thus, a potential analysis by the authority shall probably more focus on the network itself and its consequences in Switzerland rather than on each any bilateral relationship, on a case-by-case basis. It is worth noting that neither the market shares of the concerned undertakings In January 2022, a modification of the Cartel Act entered into force, in particular its article 7. Said modification introduces the concept of relative market power by prohibiting the abuse of such relative power. More specifically, a new lit. g) has been added to article 7,which deems it unlawful to restrict buyers from purchasing goods or services offered both in Switzerland and abroad at the market prices and conditions customary in the industry of the foreign country concerned. Concretely speaking, this allows a buyer based in Switzerland to force a purchaser based abroad to supply it at market prices and conditions that are applied in its own country, assuming the concerned goods or services are offered in both countries. It is worth noting that simultaneously, the Swiss parliament modified the Federal Act against unfair competition in order to introduce a prohibition of the so-called geo-blocking (article 3a I of the Act against Unfair Competition), mirroring the European Regulation (EU) 2018/302. At first sight, it seems obvious that a franchisor or a master franchisor has a relative market power deriving from the franchise agreement towards its franchisees and master franchisees. Assuming the first one is based in a foreign country where the second is in Switzerland, will article 7 of the Cartel Art force it to grant to its Swiss based counterparts the conditions customary abroad? Relative market power Dependence According to the new article 4 § 2bis, a company with relative market power is one on which other companies are dependent for the supply of or demand for a good or service, because they do not have sufficient and reasonable alternatives. In principle, one must assume that this situation is exactly the case in a franchise relationship, assuming however that franchisor and franchisee are economically independent and shall participate autonomously to the economical process. Indeed, where
Another question is whether it is necessary for the dependent undertaking to demonstrate that it effectively tried to develop alternative sourcing channel. As said above the case-law that prohibits restrictions to parallel trade is quite strict in Switzerland and one could expect the franchisee to have explored such channels. That being said, it has to be noted that nothing in the law set forth such a condition. Further, parallel trade will never allow a purchaser in Switzerland to acquire goods or services directly from the supplier at conditions that are customary abroad, as it will necessarily have to deal with an intermediary. The buying power? Certain markets in Switzerland are characterized by the presence of very strong buyers or importers. In other words, it could be very difficult for suppliers abroad to decide not to deal with those counterparts. Would such a situation have an impact on the analysis of the alleged abuse of a relative market power? The law does not mention the potential counter-power of the dependent undertaking that should be taken into consideration while applying the provisions on the relative market power. Considering the fact that a strong buying power can lead to certain obligations to contract under the rules prohibiting the abuse of a dominant position, one must assume that a balanced allocation of market powers on both sides might exclude the concept of dependence of one undertaking towards the other. And the dependence is one of the characteristics of the relationship that is envisaged by the new provision. There would be a tension between a strong market power, in general and a relative market power in particular that certainly be dealt with on a case-bycase basis, taking into consideration the criteria set forth by Article 7 Cartel Act regarding the abuse of dominance. In such case, this should be alleged and demonstrated as a defence by the undertaking that is deemed to abuse its relative power, in our case the Franchisor. With the modification of the law, apart from attempting to fight against the expansiveness island mentioned above, the law maker is clearly targeting an unbalanced allocation of powers between the parties. This means that such a defence should be very strictly assessed, notwithstanding the fact that it would, as a matter of principle, depends on the analysis of the position of the buyer on the market in general and not only in its bilateral relationship with its counterpart. From the perspective of the franchisor, the analysis of the respective market powers should not be limited to the situation on the Swiss market, as the franchisor should be deemed to be the concerned undertaking. And from the perspective of the franchisee, it is certainly utmost relevant whether it is the sole franchisee on the Swiss market, or not. The decision to become a franchisee In principle, no business is forced to become a franchisee. According to the message of the Federal Council in support of the proposed modification of the law, there can be no dependence when a company has put itself in a bind. To put it differently, the law should not support or protect those who decide to take unreasonable entrepreneurial risks considering a disproportion between the commercial risks and opportunities. This is in particular the case of those franchisee which decide for instance to establish a shop in a border area, and which is most of their newly acquired clientele eventually deciding to cross the border to acquire the same product at a lower price… 20 LAWYER MONTHLY JUNE 2024
of fault. The dependency should not have been created by the fault of the dependent undertaking. As already mentioned, the establishment of a franchise is connected to adherence to a franchise model or network, which goes far beyond simply acquiring goods or services from a supplier. Evaluating the choice of the franchisee to put themselves in a situation where they depend on the franchisor – dependence which, by the way, is inherent to any franchise system- will depend on “all the circumstances”, as the Supreme Court often states.. In a jurisdiction where franchise law does not exist per-say and where the franchise relationships are governed by the general provisions of contractual law, unfair competition, competition law or other sectorial or specific regulations, a peculiar attention should be given by both parties, but specially by the franchisor to pre-contractual obligations and talks. The fact that no disclosure is required does not mean that no disclosure should take place. Conclusion Assuming a franchisor based in France or Germany supplies its Swiss franchisee with a significant mark-up compared to those based in France or Germany. Assuming such mark-up cannot not be objectively justified. Assuming that the franchisor is not facing significant buying power from its franchisee. This franchisor can avoid being condemned by the Swiss authorities for restricting the buyers’ opportunityto purchase goods or services at the market prices and conditions customary in the industry in the foreign country concerned, only if it can demonstrate that the franchisee knowingly put itself in that bind. This will only be possible through a very well documented and transparent disclosure of information during the pre-contractual discussion. Christophe Rapin Christophe Rapin is a partner and co-head of Kellerhals Carrard’s Competition, Trade and Regulatory group. He is admitted to the bars of Geneva and Brussels and is recognized for his specific experience in the legal and economic aspects of business relations between Switzerland and the EU. Christophe assists and represents clients with regards to antitrust matters as well as competition law matters and competition law procedure (cartel investigations, abuse of dominance, national and international merger control filings, counselling & compliance). He also has wide ranging experience in international distribution, including franchising. He is also a member of Kellerhals Carrard’s M&A and corporate team and he is active in M&A transactions, particularly in connection to regulated industries. Christophe has been chairman of the Swiss Association for Competition Law (ASAS) for eight years and is currently President of the International League for Competition Law (LIDC). Kellerhals Carrard Kellerhals Carrard has equally strong local roots in all three language regions and all Swiss economic centres. We work in all national languages and many foreign languages and have global connections with leading law firms, economic centers, and professional organizations in all areas of business. Our team advises domestic and foreign clients on antitrust proceedings at the Competition Commission and at civil courts, both under Swiss and European law. Many of our clients are market leaders and are therefore aware of the legal and economic implications of competition law. We also regularly represent our clients in merger control proceedings before the Swiss and European Competition Commission. In addition, our team has extensive experience in advising clients on proceedings relating to sectorspecific regulations in the energy and telecommunications market. Considering the size of Switzerland and its geographical location within Europe, this example is certainly not a theoretical example. This is a very critical point while considering the abuse of relative market power within a franchise network. Indeed, as mentioned above, it is a reality that the prices for goods and services are significantly lower in the surrounding countries of Switzerland, including within many most the well reknown franchise networks. Additionally it is also a reality that the levels of salaries, rental costs and others are significantly higher in Switzerland than in the surrounding countries. But if the conditions offered to the franchisee in Switzerland by the franchisor abroad are not similar to the conditions the franchisors offered to franchise in its own country, there is potentially an abuse of relative market power. The principle mentioned above regarding the lack of protection granted to the entrepreneur which established an objectively unreasonable business has something to do with the concept Neither the market shares of the concerned undertakings nor their size is relevant regarding the determination of a relative market power. WWW.LAWYER-MONTHLY.COM 21
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Laurie Webb Daniel WWW.LAWYER-MONTHLY.COM 23 When is the best time to hire an appellate lawyer? About ten years ago, I was typically hired to handle an appeal after a bad verdict. But often, I would run into waiver problems when the appellate court would not consider a great argument because it was not preserved in the trial court. Now, since Georgia has climbed to the top of the “hell hole jurisdiction” list—where nuclear verdicts from $10 million to $100 million are not unusual—clients often ask our What distinguishes the appellate skill set from the talents of a topnotch trial lawyer? When I decided to focus on appellate advocacy, I realized that what I wanted was to be “a lawyer’s lawyer”—the person trial lawyers would turn to when a judgment needed fixing. In other words, I view myself as the law person on the case, someone who argues to judges, not juries. Someone who can deliver a winning message in only a few minutes or a few pages. An Appellate Boutique: An Interview with at Webb Daniel Friedlander LLP Laurie Webb Daniel Webb Daniel Friedlander LLP An Appellate Boutique 75 14th Street NE, Suite 2450 Atlanta, Georgia 30309 (404) 433-6430 (cell) www.webbdaniel.law Laurie Webb Daniel, a renowned appellate lawyer and founding partner of Webb Daniel Friedlander LLP, is known for her expertise in appellate advocacy. In this interview for Lawyer Monthly magazine, Laurie shares her journey from trial to appellate law, highlighting the unique skills required for success in this field. She discusses the critical role of appellate lawyers, the advantages of a boutique practice, and offers advice for aspiring appellate attorneys. Join us as Laurie provides insights into the world of appellate law and the importance of effective legal advocacy.
factual development can be assigned to the appellate lawyer—jury instructions, motions for directed verdict, and even prompting a trial lawyer to make objections if needed. Do you ever encounter tension with trial lawyers when asked to come into their case? The appellate and trial lawyers almost always make a seamless team. In fact, I have found that the lead trial counsel frequently asks to have an appellate lawyer in the courtroom. This is not just CYA for a high-stakes case. Many trial lawyers realize that having someone else handle the legal arguments frees them up to work on outlines for crossexamination or to spend time with witnesses. And no top trial lawyer wants to be stuck in a charge conference firm to come into a case before trial to make sure that the legal issues are fully developed as needed for a successful appeal. We are sort of a safety net if the trial is lost. What are some examples of the role of an appellate lawyer on the trial team? Appellate lawyers can be an excellent resource in the trial court. For example, they can make sure the pretrial order includes all possible legal angles, otherwise a good claim or defense may not be allowed at trial. Appellate lawyers also can handle motions-in-limine seeking to exclude prejudicial evidence from the trial, and also prepare pocket briefs on points of law that might come up during the trial. Really, anything that involves a legal analysis as opposed to thrashing through proposed jury instructions right before delivering a closing argument. How long has appellate advocacy been recognized as a distinct practice area in Georgia? I formed the Appellate Practice Section of the State Bar of Georgia about 20 years ago. At that time, some lawyers self-identified as appellate practitioners, particularly in the government sector, but this was not common. Georgia’s appellate judges, however, were instrumental in gaining approval for our new section because they believed that it would enhance the quality of the briefs and arguments in their courts. I think it has done so. The appellate bar certainly has grown over the years. What tips can you offer on effective legal writing? Once, when I was Chair of the ABAs Standing Committee on Amicus Curiae Briefs, I had the opportunity to ask this question when meeting with Chief Justice John Roberts. He shared that when he was an appellate lawyer—perhaps the nation’s finest— he struggled to fit his arguments into the page limit or word count. He said, though, when he went on the bench, his perspective totally changed. In other words: “Shorter is better.” What about oral argument? What is the best way to prepare for that? It’s funny that it takes so long to properly prepare for an oral argument that will last only 15 or 20 minutes in a Georgia appellate court. But the Georgia appellate judges are active questioners who will not hesitate to 24 LAWYER MONTHLY MAY 2024
a recognized specialty in Georgia, an identifiable appellate bar has emerged consisting of lawyers who frequently argue before the state’s Court of Appeals and Supreme Court. This is not unlike the US Supreme Court bar, where certain lawyers are hired because they have abundant experience at that court and are well known to the Justices. With that familiarity comes credibility, which is crucial in a high-stakes case. By the way, practitioners do not earn credibility without being meticulously faithful to the record and cited legal authorities again and again. State practice does differ from the federal in some respects, however. For example, in Georgia, the Court of Appeals issues a docketing notice that identifies the three judges who will decide the appeal. Not so in the Eleventh Circuit, which handles federal appeals interrupt, asking about any issue of fact or law. And then there are those darn hypotheticals. So, it is imperative beforehand to study all the briefing, all the cited cases, and all pertinent parts of the transcript and record. And practice is also so important. I always have at least two prep-sessions, one roundtable with the clients and co-counsel to vet themes for the argument, followed by a formal moot court a few days in advance of going before the real judges. What advice do you have for younger lawyers wanting to develop an appellate practice? Work hard; give it your best; and if you win a big case, make sure people know about it. Also, seek out pro bono appeals, which provide an excellent opportunity to get oral argument experience. And volunteering to write amicus curiae briefs can be a way to be associated with high-profile matters. How does appellate practice in Georgia compare with handling federal appeals? As appellate advocacy has become from Alabama, Florida, and Georgia. The identity of the federal judges on you panel is not disclosed until two weeks before oral argument, and then only if there is an oral argument. Moreover, arguing in the Eleventh Circuit tends to be more intense than arguing in the Georgia Court of Appeals—but not more challenging than arguments in the Georgia Supreme Court where there are nine judges, not just three, who can pepper the advocate with questions. How is practicing in an appellate boutique different from the practice you had in Big Law? I was head of the Appellate Team of a megafirm for years. It was fun, working with other lawyers from around the country. But the switch to an appellate boutique is rewarding in another way. We are driven by the thrill of problemsolving, not the billable hour metric. And we have a sense of old-fashioned collaboration. Our lawyers love working with each other, with our clients, and with other firms. For example, every week we gather to go through our docket, sharing thoughts about our work, which often triggers insights from colleagues who are not even working on the particular case. As a result, our clients get the benefit of our collective brain power at no extra cost. And we experience a lovely camaraderie that seems to have disappeared from big firm practice. I view myself as the law person on the case, someone who argues to judges, not juries. Someone who can deliver a winning message in only a few minutes or a few pages. WWW.LAWYER-MONTHLY.COM 25
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