Understand Your Rights. Solve Your Legal Problems
Thibaud Roujou de Boubée, Associate at Signature Litigation, offers Lawyer Monthly his personal experience in beginning a career in law and offers his advice to students looking to enter the field of arbitration and litigation.
Practicing international arbitration and litigation offers many opportunities to assist companies throughout the adaptation or termination of their contractual commitments with their clients, suppliers or subcontractors and to represent them before local courts or arbitral tribunals.
In the context of the crisis we are currently experiencing, many companies have committed to renegotiating contracts, which requires knowledge of civil procedure and experience in contractual dispute resolution mechanisms in order to define the best strategy and stick to it. Our knowledge of contract law enables us to provide our clients with a better understanding of concepts such as force majeure or hardship, to stack all the odds in their favour in the disputes that will arise from the crisis.
Being at the heart of disputes also makes us witnesses of the pressure the crisis is putting on our Courts. The saturation is not new, but this trend has intensified. In this context, alternative dispute resolution methods such as arbitration show all their flexibility and ability to offer adequate and efficient solutions.
In the cases I work on, turning to arbitration enabled the negotiation of new procedural orders by email and conference call to adapt procedural schedules and allow electronic submissions. The way in which hearings were to take place was also rapidly adjusted to allow virtual interventions. In late September, while some countries were announcing quarantine measures for people returning from the Ile de France region, we were able to organise a hybrid hearing at the International Chamber of Commerce hearing centre in order to enable all interested parties to virtually attend.
Other members from our firm have reported similar benefits using arbitration. Ioannis Alexopoulos and Ryan Cable from our London office have been able to secure a stay and resume proceedings with relative ease and flexibility compared to litigation court proceeding, following difficulties faced by both claimants and respondents with respect to cash flow and dedicating time and (human) resources to day-to-day affairs to keep business operating.
In this context, alternative dispute resolution methods such as arbitration show all their flexibility and ability to offer adequate and efficient solutions.
This practice therefore still has a bright future ahead of it. For those of you who wish to specialise in this field, I have detailed the two key steps of this specialisation below: choosing the right training (1.) and choosing the right law firm (2.).
Profiles of the associates I met in the field of international arbitration are extremely varied, but they all have one thing in common: they are international. My advice to students and interns wishing to work in this field is therefore to develop a strategy that will allow them to practice law in a cross-border context.
It is also important to have good understanding of contract law, civil procedure and conflicts of laws. Since those are the main rules arbitration specialists deal with, a lot of confidence can be drawn from knowing those areas of law extremely well.
For my part, I studied French Law and Common Law at Nanterre University (Bachelor's and Master's level) and specialised in international litigation and arbitration during an LL.M. at NYU. I then passed the New York Bar before coming back to France, where I taught Comparative Law at Nanterre University and passed the Paris Bar.
Advice for the New York Bar:
Advice for the Paris Bar transfer scheme:
When applying for internships, you should be thinking about the firm's reputation and the kind of clients it has, but not only that. It is extremely important to know whether you will get drafting responsibilities and constructive feedback from the lawyers you work with. Your goal should be to hone your arbitration skills because this experience will be what matters when you apply for an associate position.
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Furthermore, international arbitration is a field requiring long working hours and absolute dedication to your clients. The cases are generally of a strategic nature and therefore of the utmost importance for clients, who need to be confident that their lawyers will do their absolute best to defend their case. Expectations are therefore extremely high, which is a good thing if you enjoy challenges. Lawyers and interns must, at every level: be hardworking, dedicated, curious and proactive.
For my part, I did internships in international law firms and joined the international arbitration team of Hogan Lovells, before joining Signature Litigation. Signature Litigation being a boutique firm specialising in litigation and arbitration, I found the idea of working with partners with leading experience extremely appealing.
When I decided to make the move, the Paris office of Signature Litigation had been open for two years and I knew the firm was doing well. The boutique firm profile with virtually no conflicts of interest and highly specialised lawyers as well as a solid top-tier client base made the project thrilling. The firm had operational teams in the fields of product liability, insurance, civil fraud, enforcement proceedings, investigations, and compliance, but it was lacking an international arbitration department.
When Flore Poloni offered me to assist her in the launching of the Paris international arbitration practice, I had already met her on several occasions, and I knew she was a brilliant and dynamic lawyer I could learn a lot from.
German authorities have issued international arrest warrants for the two founders of the firm at the centre of the tax scandal revealed in the 2016 Panama Papers data leak, according to German media.
The Süddeutsche Zeitung reported late on Monday that the public prosecutor’s office in Cologne had issued warrants for Jürgen Mossack (72) and his former partner Ramón Fonseca (68), co-founders of Mossack Fonseca. The two men, aged 72 and 68 respectively, are accused of aiding tax evasion and associating with criminals.
Both Mossack and Fonseca are currently living in Panama, which does not extradite passport-holding citizens. However, they will be arrested if they enter the European Union. The FBI are also reportedly investigating the pair.
The firm Mossack Fonseca, established in the 1980s, was closed in 2018 following the leak of over 11 million documents – thereafter referred to as the Panama Papers – to the Süddeutsche Zeitung, which worked with around 400 journalists from the International Consortium of Investigative Journalists to analyse the data before publishing their findings in April 2016.
Mosssack Fonseca was found to have facilitated elaborate networks of money laundering and tax evasion, enabling criminals to use shell companies to hide their assets. The scandal implicated hundreds of wealthy individuals and government officials across the world, revealing that they had hidden money offshore.
Iceland’s then-prime minister Sigmundur Gunnlaugsson was forced to resign after being implicated in the papers, as was Nawaz Sharif, the former prime minister of Pakistan. At least 150 investigations have been opened in 79 countries to examine possible money laundering or tax evasion stemming from the papers’ revelations, according to the American Center for Public Integrity.
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Though there is currently no pathway for Mossack and Fonseca to be extradited, investigators hope that Mossack, who is German-born and has family in the country, may surrender to officials on the chance of a reduced sentence and escape from US charges.
An NGO has filed a human rights complaint against British heavy machinery company JCB over the use of its machinery in the destruction of Palestinian settlements in the Israeli-occupied West Bank and East Jerusalem.
The NGO – UK-based group Lawyers for Palestinian Human Rights – alleges that the involvement of JCB’s equipment in the destruction breached Organisation for Economic Co-operation and Development guidelines.
The claim was launched by the group last December after, it said, JCB refused to communicate with it regarding claims that its tractors were being used to demolish Palestinian villages.
The UK National Contact Point organisation, a subsidiary of the Foreign Office that oversees complaints, issued a statement on Monday announcing that it had examined the NGO’s complaint and heard JCB’s rebuttal – which held that it had merely sold the machinery in question to Comasco, its third-party Israeli distributor, and bore no responsibility for its use following the sale. The UK NCP deemed that the issue fell within its remit and that JCB had a case to answer regarding some of the organisation’s claims.
JCB is now able to enter into government-supervised mediation with Lawyers for Palestinian Human Rights, or it may contest the claim legally.
“We welcome this initial assessment and the UK National Contact Point’s acknowledgment that there are serious human rights issues raised by our complaint under the OECD guidelines for multinational enterprises which warrant mediation or thorough investigation,” said Tareq Shourou, director of Lawyers for Palestinian Human Rights.
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In his statement, Shourou also called upon JCB to cease its “apparent failure to address the material and prolific use of its products in demolition and displacement incidents that cruelly impacts Palestinian families, and also its use in settlement-related construction which creates pervasive human rights violations”.
JCB said: “We are very pleased that the UK NCP has dismissed at the earliest opportunity any suggestion that JCB is involved in, or causes or contributes towards any human rights abuses whatsoever. There was no basis for the Lawyers for Palestinian Human Rights to make their complaint alleging this.
“As an organisation JCB does not condone any form of human rights abuse and we have a consistent record of providing urgent and substantial support in response to natural disasters around the world.”
Signature Litigation's Abdulali Jiwaji, Johnny Shearman and Ligia Bob examine the case and what it might mean for the upcoming Lloyd v Google action.
In March of this year, the Supreme Court granted Google Inc. permission to appeal the Court of Appeal decision which allowed the landmark representative action brought against it for privacy breaches to proceed (Lloyd v Google). Whilst this legal battle has been widely publicised, the more recent decision in Jalla v Shell International Trading and Shipping Co Ltd [2020] EWHC 2211 (TCC) highlights that the courts will not simply rubber stamp attempts to bring claims forward as class actions.
Mr Jalla and Mr Chujor issued the claim against Shell not only on their behalf but on behalf of the 27,500 plus number of individuals and 457 communities in Nigeria that allege to have suffered damage as a result of the oil spill off the coast of Nigeria in December 2011. The claimants allege that Shell is responsible for the oil spill and the damage that the claimants have suffered as a result of it. Shell has rejected the accusations and is defending the claim on numerous grounds, including that no oil from the spill reached the Nigerian coastline or caused any damage.
Messrs Jalla and Chujor have sought to pursue the claim against Shell as a representative action – such an action can be brought were more than one person has the same interest in a claim and the claim is brought by or against one or more of those persons.
Prior to the most recent decision in these proceedings, several hearings had already occurred. In March of this year, the court gave judgment addressing limitation and many other issues concerning the "unsatisfactory state of the Claimants' evidence". The judge directed a further hearing to address, amongst other things, the "representative" nature of the action and whether its structure needed to be adjusted.
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Following the hearing in March, Shell applied to strike out the proceedings, submitting that they were not properly constituted as a representative action under rule 19.6 of the Civil Procedure Rules of England and Wales ("CPR"). Shell reasoned that Messrs Jalla and Chujor and those they purported to represent did not share "the same interest" for the purposes of rule 19.6(1) of the CPR.
Messrs Jalla and Chujor then issued fresh protective proceedings, which largely mirrored the proceedings already on foot. Upon issuing the protective proceedings the claimants abandoned their individualised claims for damages in the present proceedings so that the main relief sought was remediation.
In its most recent judgment, handed down in August, the court decided that, even though the claims of Messrs Jalla and Chujor and of those they represented raised some common issues of law and fact, the group of claimants did not satisfy "the same interest" requirement under rule 19.6(1).
In reaching its decision, the court determined that the individualised claims of the represented class of claimants were not merely subsidiary to the main issues raised in the claims brought by Messrs Jalla and Chujor. In this instance, the issues of loss, damage and causation were an integral part of the overall issues raised by the proceedings. In particular, the representative claims would require individual evidence of damage as each claimant would likely allege that they had suffered loss in different ways and to varying degrees. In addition, this would lead to Shell pleading individualised factual and causation defences.
In this instance, the issues of loss, damage and causation were an integral part of the overall issues raised by the proceedings.
Accordingly, the court found that the represented claimants did not satisfy the requirement of “the same interest” and the proceedings could not continue as a representative action. However, whilst the representative elements of the proceedings were struck out, the court allowed the claims of Messrs Jalla and Chujor to proceed in their own right.
It is evident from recent decisions in this area that the courts will closely examine "the same interest" requirement under CPR 19.1(6) when deciding whether a representative action should be permitted to continue. This is understandable as grouping claims together would be ineffective when there is the possibility of divergence on the issues. If such cases were allowed to proceed it is highly likely that the benefit of reduced costs would be lost.
On this occasion the court highlighted, however, that "the same interest" requirement is statutory and must take into account the overriding objective, namely that cases should be handled justly and at proportionate cost. The requirement, therefore, for claimants to share the same interest should not be invoked as an "unnecessary technical tripwire". This reasoning leaves scope for pragmatism when deciding whether future representative class actions can advance.
It is clear that the claimants in the present case intended to follow the path of Lloyd v Google, but failed to clear the "same interest" hurdle. Therefore, all eyes will now be on the Supreme Court when it hears Google's appeal. That hearing is not expected to take place until late 2020 or early 2021 but either way the Supreme Court's decision will likely have an impact on the representative class action landscape for many years to come.
Abdulali Jiwaji is a partner and Johnny Shearman is a professional support lawyer in Signature Litigation's London office. Ligia Bob is an associate in Signature Litigation's Gibraltar office.
The EU has begun legal proceedings against the UK after it refused to drop legislation that would invalidate sections of its Brexit deal.
Ursula von der Leyen, the European Commission president, said in a statement on Thursday that Prime Minister Boris Johnson had been given until the end of September to remove the contentious clauses in the draft legislation, but “the deadline had lapsed”.
“This draft bill is by its very nature, a breach of the obligation of good faith, laid down in the withdrawal agreement,” von der Leyen said. “Moreover, if adopted as is it will be in full contradiction to the Protocol on Ireland and Northern Ireland.”
As the contentious provisions in the draft had not been removed, she said, “The Commission has decided to send a letter of formal notice to the UK Government. This is the first step in an infringement procedure.”
As it currently stands, the internal market bill would grant ministers legal powers to determine rules on state aid and goods moving between Northern Ireland and mainland Britain, overriding elements of the Northern Ireland protocol that was agreed to in October 2019 in order to avoid a return to a hard border in Ireland.
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Northern Ireland Secretary Brandon Lewis conceded in early September 2020 that the internal market bill would break international law in “a specific and limited way.”
The UK said it would respond to the EU’s legal action “in due course,” adding: “We have clearly set out our reasons for introducing the measures related to the Northern Ireland Protocol. We need to create a legal safety net to protect the integrity of the UK’s internal market, ensure Ministers can always deliver on their obligations to Northern Ireland and protect the gains from the peace process.”
Facebook said that it may end operations of its core social media app and Instagram in Europe due to new regulations governing the transfer of data from the EU to America, Ireland’s Business Post first reported.
In an affidavit filed to Ireland’s high court on 10 September, Facebook sought to challenge a preliminary order issued earlier this month by the Data Protection Commission, Ireland’s data privacy watchdog. The order threatened to block Facebook from transferring data from the EU to the US, citing privacy concerns.
Noting that Facebook had 410 million active monthly users in Europe, Facebook Ireland’s head of data protection and associate general counsel Yvonne Cunnane wrote: "In the event that the Applicant were subject to a complete suspension of the transfer of users' data to the US, as appears to be what the DPC proposes, it is not clear to the Applicant how, in those circumstances, it could continue to provide the Facebook and Instagram services in the EU."
Facebook later denied that Cunnane’s statement constituted a threat to withdraw its services from the EU.
"Facebook is not threatening to withdraw from Europe,” a company spokesperson said. “Legal documents filed with the Irish High Court set out the simple reality that Facebook, and many other businesses, organizations, and services, rely on data transfers between the EU and the US in order to operate their services.”
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Like many other social media companies, Facebook’s business model is built largely on the compiling of its users’ data to allow them to be better targeted by advertisements. The interruption of its flow of data internationally would jeopardise its revenue.
However, the possibility that it might suspend its services in Europe has not been regarded as plausible by privacy experts. “The idea that Facebook would withdraw from the European market is absurd brinksmanship that I don’t think anyone truly believes,” said Michael Veale, a technology policy researcher at University College London, in a statement to VICE News.
In a hearing on Monday, Delaware Chancery Court Vice-Chancellor Joseph Slights III said that a four-day trial would be set for Tiffany & Co.’s lawsuit against French luxury goods conglomerate LVMH Moët Hennessy Louis Vuitton, to begin on 5 January 2021.
Slights added that he hoped the two companies could pursue “productive discussions to avoid the need for litigation.”
Earlier this month, Tiffany sued LVMH after the French firm claimed to be unable to proceed with its $16.2 billion acquisition of the US jeweller, citing an intervention by the French European and Foreign Affairs Minister and mismanagement of Tiffany during the COVID-19 pandemic.
If completed, the acquisition would have been the biggest merger ever seem in the luxury goods sector.
The date set for the trial comes after the 24 November deadline for the companies’ merger to close, but before antitrust approvals for the deal will begin to expire in the new year. Tiffany had pushed for a trial date to be set ahead of the deal’s closing date, while LVMH argued that it would not be possible to bring the case to trial until March or April.
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In a statement, LVMH said that it remained “fully confident” in its ability to defeat Tiffany’s accusations of deliberately stalling the deal. “In the coming months, LVMH will demonstrate to the American justice system that the mismanagement of Tiffany during the COVID-19 crisis constitutes a material adverse effect,” the company said.
Tiffany chairman Roger Farah said that LVMH’s claim of a material adverse effect was “completely baseless”. “Tiffany has acted in good faith in full compliance with the Merger Agreement and will continue to do so,” he said.
On Thursday, a group of European law societies penned an open letter to Turkish President Recep Tayyip Erdoğan arguing for the release of 55 legal professionals recently detained in Ankara.
The lawyers in question were arrested during dawn raids on 11 September, in which their offices were searched and they were subjected to questioning in relation to their professional activities.
These actions by Turkish authorities ran contrary to United Nations principles, according to the letter signed by Lawyers for Lawyers, the Council of Bars and Law Societies of Europe, the Law Society of England and Wales, the Bar Human Rights Committee of England and Wales, the Bar Council of England and Wales and the German Bar Association.
“The undersigned organisations fear that the arrest of these lawyers is connected to and serves to curb their legitimate activities as lawyers,” the letter reads. “If this is the case, then this is contrary to the UN Basic Principles on the Role of Lawyers and possibly also a violation of the fair trial rights of the clients they represent.”
The law societies urged President Erdoğan to release the lawyers, drop all charges against them unless credible evidence of illicit activity can be presented, and end harassment against them. The letter also called for Turkish authorities to “Guarantee in all circumstances that all lawyers in Turkey are able to carry out their legitimate professional activities without fear of reprisals and free of all restrictions including judicial harassment.”
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The Ankara prosecutor’s office has claimed that the police raids on law offices were part of a terrorism investigation. According to the legal organisations’ letter, it was reported that the arrests were sought in connection to the lawyers’ representation of clients alleged to be affiliated with the religious Gülen movement.
A Manhattan federal judge on Wednesday rebuked federal prosecutors for withholding exculpatory evidence prior to the dismissal of an indictment against an Iranian entrepreneur convicted of violating sanctions.
US District Judge Alison Nathan said that federal prosecutors at the Manhattan US Attorney’s Office repeatedly violated their obligations to disclose evidence in a timely manner, eroding public trust in the criminal justice system. The late evidence disclosures eventually prompted the court to vacate entrepreneur Ali Sadr Hashemi Nejad’s guilty verdict issued in March.
"The government both violated its disclosure obligations and subsequently made a misrepresentation to the court about its conduct," Nathan said on Wednesday, adding that the post-trial dismissal of the verdict does not diminish "the need for inquiry into whether the government intentionally and in bad faith withheld exculpatory evidence or intentionally misled the court."
The evidence at the centre of the judge’s remarks was an exhibit called GX 411, a report by Commerzbank to the US Treasury regarding a $30 million transaction thought to have included Iranian money. The fact that the Treasury did not take action in response to the report gave it potential value as exculpatory evidence, but federal prosecutors claimed not to have been aware that the report was in their possession, and appeared to deliberately bury it among unrelated documents sent to the defence.
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Nathan ordered that all prosecutors on the case read her decision and answer a list of questions by 16 October on what they knew about GX 411 and when they knew it.
The decision is damaging to the reputation of the Manhattan US Attorney’s Office, which has been known in the past for the high standards of its lawyers and effective prosecution of high-profile cases involving fraud and corruption.
Nathan commended the Office’s “admission of error and effort to do justice in this case by agreeing to dismiss the indictment”, adding: “Better late than never.”
The US Department of Justice (DOJ) announced on Wednesday that it was seeking to recover a further $300 million in assets allegedly connected with the international 1MDB scandal, which it has traced to an escrow account in the UK.
The $300 million was traceable to a line extended to Saudi Arabia’s PetroSaudi Oil Services by Venezuela’s state oil company Petroleos de Venezuela SA in connection with an oil-drilling venture, the DOJ said in a complaint filed in the Central District of California on Wednesday.
Both companies are currently engaged in a legal dispute over the funds in question, which the Malaysian high court has endeavoured to freeze with cooperation from British authorities.
In addition to the $300 million, the DOJ said that it was also seeking to recover four dozen promotional film posters acquired by Riza Aziz, a Hollywood producer and stepson of former Malaysian Prime Minister Najib Razak, using over $4 million in funds related to assets embezzled from 1MDB.
Set up in 2009, 1Malaysia Development Berhad was established as a Malaysian state fund intended to promote development through foreign investments and partnerships. Chaired by Najib Razak, the fund became the centre of one of the largest financial scandals in history, as the DOJ believes that over $4.5 billion was stolen from its assets.
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In July, investment bank Goldman Sachs agreed to a $3.9 billion settlement with the Malaysian government over its executives’ alleged failure to act while billions of dollars in funds overseen by the bank were stolen.
Following the filing of Wednesday’s complaint, the total value of assets being sought by the DOJ in relation to the 1MDB scandal has risen to $2.1 billion, marking the largest asset recovery action the agency has brought to date. The US has recovered or assisted Malaysia’s recovery of almost $1.1 billion in 1MDB-related assets so far.
