Understand Your Rights. Solve Your Legal Problems
The challenge is to clear the backlog of cases. There are many qualified immigrants waiting in the queue who would otherwise benefit Canada economically and socially but are stuck waiting for their cases to be processed. The immigration system needs a complete overhaul and modernisation in order to keep up with the demand.
They will just exacerbate them. The system cannot accommodate the current inventory. Canada needs a steady and increasing flow of immigrants due to its ageing population and the demand for talent, but in order to capitalise on this, the system needs a major upgrade.
They need to liberalise – currently the system is far too selective in terms of eligibility criteria. Many quality immigrants just do not make it under the current system. The government always leads from behind in terms of understanding and addressing the needs of the economy, which is always dynamic, changing and growing. In my view, we should let Canadian employers themselves formulate the criteria for what they consider a “qualified candidate”, as they are the participants in the real economy – as opposed to the bureaucrats, the central planners who are always one step removed from what is happening in real time.
The good news is that over the last number of years, they have allowed the provinces themselves to manage their own immigration programs, which better addresses the needs of local economies. What I advocate is taking it a step further and leaving it up to the individual employers and companies themselves to call the shots.
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That certainly is a welcome step in the right direction. There are so many professionals coming to Canada who end up as Uber drivers or working in lower skilled occupations due to insurmountable licensing requirements. It is past time for Canada to recognise the skills that immigrants bring to the table and allow them to work in their chosen professions, which would benefit everyone.
I think things will ultimately normalise over time. The pandemic certainly made matters worse for what already was an inefficient system. I hope that it served as a wake-up call. If Canada is to thrive and to compete globally, its ability to not only attract but to successfully process enough immigrants each year is essential.
Like many other businesses, immigration law firms had to quickly pivot and to implement virtual options for their staff and clients. That is exactly what we did and frankly it made us more efficient and provided even greater transparency and of course safety for our clients in terms of how their cases are being managed. Leveraging cloud-based technology has been a blessing for us and I do not think that will go away anytime soon – nor should it.
Michael Niren, CEO
20 Eglinton Ave W Suite 2102, Toronto, ON M4R 1K8, Canada
Tel: +1-786-673-3688 x289
Michael Niren is the CEO and founder of VisaPlace, VisaPlace Legal Canada and VisaPlace Legal USA. An industry leader in the immigration law sector, he is a frequently sought-after public speaker and authority on current events in immigration, with over 20 years of experience as an immigration lawyer.
VisaPlace Legal is an award-winning Toronto-based immigration law firm initially founded by Michael Niren in 1997. and grew it to become VISAPLACE LEGAL. VisaPlace Legal represents clients around the globe and has won the Top Choice Awards for the Top Immigration Law Firm in Toronto from 2010-2019, as well as other awards and designations for exceptional service to clients.
Yoshie Midorikawa of Miura & Partners expounds on these aspects of Japanese law and how they have shaped the landscape of white-collar crime in the country today.
The most common types of fraud investigations in Japan involve accounting fraud, falsification of data or quality of products, and insider trading. Regarding falsification of data or quality of products, companies often conduct their own investigation and issue a news release on their own, even if the falsification is not likely to trigger a compulsory recall or any serious violation of regulations. Companies conduct their investigations to avoid damage to their reputation from being seen as trying to hide their problems from the public.
In addition to these classic fraud cases, investigations concerning “greenwashing” are likely to become the next trend. Since 2017, when the Government Pension Investment Fund (GPIF) – the largest of its kind in the world – began allocating its funds to ESG investment, more and more Japanese companies have embarked on ESG-related investments. Although there are not yet any disclosure rules that specifically regulate ESG-related investments in Japan, the market awaits the disclosure regulations on “greenwashing.”
Once the regulators implement the disclosure rules, violations would fall within the scope of false statements of the securities report, which could become another type of fraud investigation.
When a listed company finds a sign of fraud, the most common response is to voluntarily establish a committee to conduct an internal investigation or a special committee to conduct an independent investigation. The sign of fraud could be found through an internal audit process, whistleblowing, or tipping off from business partners or consumers. It is important for the suspected company to commence its own investigation voluntarily to show good faith to the market and consumers even before the beginning of governmental investigations. In most cases, the company appoints accountants and lawyers as their investigation committee members if they establish a special committee. Former judges and prosecutors are the preferred candidates.
Companies conduct their investigations to avoid damage to their reputation from being seen as trying to hide their problems from the public.
The report prepared by the committee is often released to the public to show the company’s good faith to the market and consumers. This is a practice that is unique to Japan. The report often identifies the causes of the problem, who is responsible for the problem, and what the company should do to prevent a similar case from occurring in the future.
The release of the report may trigger a formal government investigation. In a case regarding false statements in securities reports, the Securities and Exchange Surveillance Commission (SESC) may commence their own investigation which could result in an administrative fine on the company. Following the SESC investigation, interested parties may subsequently opt for litigation. For example, parties that were involved in fraudulent transactions without realising that the transactions were fraudulent could seek damages against the company. Another example would be securities litigation. Some investors may commence litigation against the company to seek damages caused by the scandal. The investors may also commence deliberative action against directors of the company.
The company should be mindful of this possible series of events which might follow the disclosure of the reports by the investigation committee. In practice, the committee prepares two sets of reports, one for the company and another to be disclosed to the public. The publicly disclosed report is carefully censored so that the names of employees who committed wrongdoing or names of other companies which were involved in the scandal are deleted and their identities anonymised.
Attorney-client privilege is not generally recognised in Japan. In the voluntary investigation by the company’s special committee, interviews are often conducted with the directors and employees who were suspected to be involved in the fraud. Usually, a team of lawyers conducts these interviews. As the summaries of interviews are not protected by attorney-client privilege under Japanese law, the regulators could request these documents for their investigations. On the other hand, information regarding the company’s voluntary investigation could be protected in the civil or criminal proceedings by different theories.
Attorney-client privilege is not generally recognised in Japan.
For example, lawyers have the right to refuse testimony in the civil or criminal proceedings under the confidentiality obligation to the client pursuant to the Code of Civil Procedure or the Code of Criminal Procedure. The employee who was interviewed in the voluntary investigation by the committee may refuse to give evidence if it would incriminate themselves pursuant to the Code of Civil Procedure or the Code of Criminal Procedure.
In practice, investigation committees of Japanese companies that operate globally usually explain to the interviewee that attorney-client privilege belongs to the company if it applies, but not to the interviewee (i.e. an employee or a director) in case attorney-client privilege is recognised in other jurisdictions. In such cases, the relevant documents prepared through the voluntary investigation are marked as “privileged and confidential” to be protected in other jurisdictions.
Another legal issue which companies should be mindful of is the managerial responsibilities of independent directors, who are not executive directors and are often professionals like lawyers, accountants and professors. In a recent fraud case, the committee’s report identified that some independent directors failed to fulfill their managerial responsibilities to prevent the fraud. It was not common for reports of an investigation committee to find that independent directors were responsible for the fraud. Now that the Companies Act and the Corporate Governance Code of Japan require listed Japanese companies to appoint independent directors, both they and executive directors should be aware of their potential legal liabilities in case of fraud at the company.
In Japan, a plea-bargaining scheme was introduced in 2018. This new scheme was intended to press charges against a high-ranking criminal with the witness evidence provided by lower-ranked criminals in exchange for dropping their criminal charges. There have been only a few such cases so far in Japan. Unfortunately, the scheme was used for prosecuting an employee in the very first case.
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In this case, the company benefited from the plea-bargaining scheme by giving statements to prosecute its former officer in a bribery case. The second case was the false accounting scandal by Carlos Ghosn, the former CEO of Nissan, which attracted widespread attention from the media. This time, the scheme worked as it was intended. A lower-ranked official made a statement to prosecute the former CEO. However, we are concerned that Japanese courts showed a rather cautious attitude towards the witness evidence provided through the plea-bargaining scheme in some cases.
Every time I take part in an investigation, I recall an investigation case in which a government agency committed fraud on the public pension fund. The investigation committee appointed by the Ministry of Health, Labour and Welfare (MHLW) conducted countless interviews with officials as well as the victims of the fraud, which enabled us to reach the origin of the fraud and the techniques that had been used to conceal the fraudulent activity for years. As a lawyer in the early stages of my career, I learned a lot from the exceptionally talented committee members.
After the investigation, the government agency was reorganised and replaced by a new agency to prevent further fraudulent activities. The investigation contributed to improving the public trust of the government pension fund. Japan is facing the challenges of an aging society much earlier than other advanced countries, and the government pension fund is an irreplaceable social safety net for the public. It was fulfilling to find that our efforts made some contribution to improving the system.
Yoshie Midorikawa, Partner
3F East Tower Otemachi First Square 1-5-1, Otemachi, Chiyoda-ku, Tokyo 100-0004
Tel: +81-3-6270-3515
Fax: +81-3-6270-3501
E: yoshie.midorikawa@miura-partners.com
Yoshie Midorikawa was admitted to the Bar in Japan in 2007 and New York in 2015. Her areas of expertise include many aspects of litigation, alternative dispute resolution, corporate governance and commercial disputes, and her insights on Japanese law have been published widely.
Miura & Partners was established in 2019 as an independent law firm in Tokyo with the aim of creating a new platform for innovative and business-minded professionals. Ever since, the team has handled various cutting-edge cases in the areas of investigations and commercial disputes. Asian Legal Business has listed Miura & Partners as one of the FAST 30: Asia’s fastest-growing firms in 2021.
Below, Mr Schmidt takes us through his career journey and explains the difference his work has made to the insurance landscape of Hawaii and the still-developing Ethereum blockchain.
I joined the Maui County Office of Corporation Counsel as a Deputy Corporation Counsel advising the Departments of Finance and Budget. After three years, I was appointed Corporation Counsel, overseeing a staff of 11 attorneys plus support staff including a paralegal and investigator. We had significant victories in court over Dow Chemical and Occidental Petroleum and the US Environmental Protection Agency and helped the Mayor and Directors of county departments achieve numerous initiatives to benefit the citizens of Maui.
After a few years as a partner in the law firm of Crockett Nakamura & Schmidt, I was appointed Insurance Commissioner for the State of Hawaii. In the United States, each state regulates the insurance business, while most other financial services are primarily regulated by the federal government. As a result, I oversaw regulation of domestic, national, and international companies doing business in Hawaii. We brought in a number of companies to provide new options for the people of Hawaii, including Dong Bu, one of the largest Korean insurance companies. Dong Bu entered Hawaii under a model Port of Entry law that I shepherded through the legislature.
I also began the review of health insurance premium rates and pushed to wrap up several estates of companies in liquidation that returned 100 cents on the dollar to claimants. In addition, I represented the US insurance regulators in testifying before Congress and joining the US Trade Representative in successful negotiations with the government of Japan to privatise Kanpo, their postal insurance company (at the time the biggest insurer in the world).
Of course, as a government attorney, you do not have the joys of hourly billing and attracting new clients. Many attorneys may suspect that the job of government attorney is boring, as I originally did. But accomplishing a variety of good results for society while in compliance with the numerous additional laws that apply to government attorneys requires creativity, intensive research and persistence – and seeing the benefits in your community is very rewarding.
As a government attorney, you do not have the joys of hourly billing and attracting new clients.
Managing government attorneys is no easy task. I gave a lot of praise for a job well done because the media often seems to enjoy frequent criticism of the government and its lawyers. I also established goals for accountability. I emphasised pride in the work, often saying: “Each paper on your desk is not just dried ink on wood pulp; it is important to the life of a person in our community”. As Maui Corporation Counsel I heard all the excuses used to avoid work and learned how to short-circuit such claims and keep the ball rolling. The Division of Insurance (DOI) had a number of attorneys in legal, supervisory and analyst positions. Lessons learned worked well at the DOI as well. I also would not accept a standard government employee response: “That’s how we’ve always done it”. If there is a more compendious and efficient way, that is how we will do it now.
Working with international regulators and working with Insurance Commissioners from the different states with their different views and approaches to the job. I also actually enjoyed working with the media.
The media’s standard story is “big bad insurance company beating up on the poor little consumer”. When the media called me, I would spend time explaining all the facets of the issue. They were appreciative because they then got a better story. Government attorneys normally just say: “No comment”. I got frustrated when there was an opposing point of view because the media would talk to me, then they would talk to my opponent (plaintiff’s attorney, union, et al), and I would not get an opportunity to rebut. So, I established a routine where I would tell them my side, then my opponent’s side (fairly, of course) and tell them why I disagreed. That way I got in a pre-rebuttal.
When the media called me, I would spend time explaining all the facets of the issue. They were appreciative because they then got a better story.
Hawaii was one of the first states to enact friendly statutes for captive insurance. We had good expertise in the DOI. We regularly met with companies and supported the captive managers, reinsurance agents and actuaries in the private sector. We were the second-largest domicile in the US by number of captives and in the top ten in the world. I liked to point out that we were the fifth largest domicile in the world based on capital assets.
We held a captives’ conference in Japan once a year to educate companies and insurers on the captive company benefits. As a result, we became the premier domicile for Japanese companies’ captive companies.
I wanted to set up my own business after I learned about the profound promise of blockchain technology. Through personal contacts, I was introduced to Ethereum leadership and Vitalik Buterin. Because of my background in government regulation and board meeting procedures, I was asked to help Ethereum Foundation run its board of directors meeting and with the charter for the stiftung. Shortly afterward, the Swiss financial authority, SIFMA, asked for a meeting with Vitalik and I was asked to attend and advise based on my understanding of the common concerns of government regulators.
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Following this, I provided a variety of legal services to Ethereum and attended the annual Devcon in Shanghai in 2016 and Cancun in 2017. I gave a presentation on insurance regulation application to blockchain developments at the first Decentralized Insurance Conference (D1Conf). The government of Mexico asked me to present at their annual International Seminar on Surety and Insurance. I co-authored a nontechnical explanation of blockchain and a review of regulation in the US and around the world in the Hawaii Bar Journal.
I will continue to consult and give presentations on blockchain regulation as well as various insurance issues. In February I attended ETHDenver, billed as the “largest ETH event in the world”. There were numerous speakers’ panels and workshops on the latest issues, as well as a retreat at Breckenridge resort.
JP Schmidt, Principal
Abaris Global, E. Amherst Circle, Denver, CO 80231
Tel: +1 808-292-7999
JP Schmidt is a former Hawaii state Insurance Commissioner and Maui County Corporation Counsel with two decades of experience in insurance regulation and insurer infrastructure. As Principal of Abaris Global, he advises on international, national, state and local issues relating to regulatory affairs, corporate governance, insurance, including health insurance, captives, and commercial property, casualty and liability, and government and political process. He is also highly knowledgeable in blockchain regulation with experience advising the Ethereum Foundation.
This month we hear from Fran Marwood, head of PwC UK’s Digital and Forensic Investigations team, who shares his perspective on the current landscape of international fraud and integrity risks.
The expertise we have in the team helps our clients to regain stability and trust, and to emerge stronger when the unexpected happens. That can be fraud, accounting misstatement, or some other matter where the extent and financial consequences are unknown.
I have been fortunate enough to advise on a lot of the most prominent fraud and accounting misstatement investigations in recent years. The role involves bringing together the different experts and technology we have to establish exactly what has happened, often within tight timescales.
We have seen many of these cases before, but our clients are often experiencing these for the first time in their careers. Often a huge amount rests on the clients’ shoulders to get the response right and one of the most rewarding parts of the job is helping them to navigate the challenges that arise. These often involve interactions with regulatory and law enforcement bodies, the company’s auditors and other stakeholders, and helping the client to avoid common pitfalls.
The fraud and integrity space includes a surprisingly broad range of wrongdoing, which is increasingly perpetrated in a coordinated manner by organised crime. Most businesses have experienced losses as the result of this wrongdoing, and the cost to the wider UK economy is huge, often estimated to be in excess of £200 billion.
Fraud and economic crime rates are currently at record highs, impacting more companies in more diverse ways than ever before. There are daily references to it in the press, and for businesses who get it wrong, the consequences are significant. Not only do they face disruption and often reputational damage, but fines of several billions are not unusual.
The fraud and integrity space includes a surprisingly broad range of wrongdoing, which is increasingly perpetrated in a coordinated manner by organised crime.
These sorts of issues often stem from problems with related control environments. A key lesson is to make appropriate investment in identifying fraud risks and ensuring appropriate fraud prevention and detection measures are in place. Counter-fraud technology is playing an increasing role in this area and is something we have invested heavily in as a business. It is also especially important that appropriate integrity, diligence and healthy scepticism is applied to business partners and transactions.
Technology is a continuing theme. Advancements in technology have allowed malicious actors to penetrate many companies’ control frameworks or security infrastructures, so it is unsurprising that cybercrime is one of the most common and disruptive types of fraud experienced by UK companies. We have all heard the stories of fake payment requests being sent to finance teams and many more businesses have fallen victim to this than is reported in the press.
Interestingly, technology presents both a fraud risk and a great opportunity for companies to strengthen their anti-fraud controls. At PwC we use a number of disruptive technologies and automation methods, such as machine learning and AI, which allow us to review whole populations of data to identify fraudulent transactions. This is helping our clients to be more proactive in managing their risks than ever before. Companies are increasingly using these technologies to mitigate potential losses and secure recoveries.
We are also seeing an increasing focus on directors’ responsibilities relating to fraud risk. This is driven by greater stakeholder expectations and a regulatory desire to build confidence across UK corporate governance. The UK’s Department for Business, Energy and Industrial Strategy (BEIS) consultation, ‘Restoring trust in audit and corporate governance’, indicates that directors of ‘public interest entities’ will be required to report on the actions they have taken to prevent and detect material fraud. Whilst the recommendations have not yet been published, many clients are pre-empting these and seeking help to improve their fraud management activities.
Interestingly, technology presents both a fraud risk and a great opportunity for companies to strengthen their anti-fraud controls.
The ‘fraud triangle’ continues to be a great way to think about the fraud risk environment by considering pressures, opportunity and rationalisation. COVID-19 has undoubtedly created a much more favourable environment for the fraudster. New fraud opportunities emerged as organisations moved to working remotely and existing internal controls, such as payment approval processes, and monitoring activities were relaxed. Concerns over business survival have incentivised would-be fraudsters, and government support was also targeted. Moreover, individuals may have been more easily able to rationalise wrongdoing through the lack of positive contact with colleagues.
The pandemic has also disrupted the supply chains of many organisations. In an increasingly regulated and uncertain world, businesses’ reliance on extended global supply chains and networks of third parties heightens the importance of managing risk and resilience across these networks.
The ESG agenda is also causing an increase in non-financial reporting requirements, regulation and scrutiny. Regulators, investors and customers are becoming increasingly focused on fraud concerning ESG issues, whether that is criminal behaviour or exploitation in supply chains, or false claims or reporting concerning green credentials. Most larger businesses are currently working to improve ESG governance throughout their supply chains and operations, and robust intelligence work plays a key role in managing these risks.
With increasing globalisation of trade and investments, risks to organisations are increasing in scale and complexity.
A key issue for businesses is trust. The relationships between global businesses and their counterparties are not subject to the same level of trust that has been built historically through personal contact over a number of years. We see global organisations with increasingly autonomous parts of the business, and this leaves the door open to manipulation.
Where businesses are geographically spread, with a changing profile of suppliers and stakeholders, it is especially important that they do reliable diligence on counterparties to minimise their exposure to risk. This is an area of growth in the work we do, and our intelligence specialists help clients to address a range of business issues and mitigate risk in the supply chain.
The relationships between global businesses and their counterparties are not subject to the same level of trust that has been built historically through personal contact over a number of years.
Global organisations also face the challenge of meeting the requirements of a number of different regulators and regulations, be that multifaceted international sanctions regimes or challenges presented by global data regulations.
Sanctions is an area of economic crime that has become increasingly important, and one where we are repeatedly seeing our clients spotting the risks and seeking our help.
The use of economic sanctions to protect national interests or enforce peace has rarely been more prevalent than in more recent years. We have also seen the breadth of supranational (the UN Security Council) or unilateral (individual nations) sanctions programmes widen since the early 2000s. These often target not only individuals and organisations, but also sea vessels, specific addresses and locations (and even crypto-wallets), and entire national industries.
The increasing globalisation of trade and investments, together with this expansion of sanctions, has made navigating this complex regulatory space even more difficult for our clients. They are exposed to greater risks and challenges to comply with sanctions programmes imposed by multiple government agencies and international bodies. In addition, new “smart sanctions” (e.g. sectoral sanctions imposed by the US Office of Foreign Assets Control) and targeted restrictions mean that measures to ensure compliance need to become iterative and more sophisticated. On top of this, increasing fines and penalties are making non-compliance even more costly.
It is important for businesses to have a sound understanding of their global supply chain so they can assess the risk of sanctions exposure via third parties.
We are seeing organisations looking to enhance their sanctions compliance programmes, monitor sanctions risks and regulatory development, and respond to them rapidly and cost-effectively. Our regulatory team can quickly and accurately assess and improve our clients’ sanctions compliance programmes.
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Technology is increasingly being used for continuous monitoring of sanctions risks. We are helping clients to outsource sanctions screening and alert review processes or build their own based on the latest tools, advanced methodologies and international best practices.
Historically, forensic work was more reactive in nature – helping clients to understand, quantify and evaluate fraud or misconduct following an incident. We are now doing much more proactive work with our clients to mitigate the risks of incidents occurring.
The best defence to the growing threat of fraud is strong and proactive risk management. At PwC, we have developed a Fraud Risk Management solution, which is designed to help our clients understand the key elements needed for an effective control environment and to improve the processes and controls they have in place to prevent and detect fraud. The framework has five components: governance, risk assessment, monitoring and prevention, detection and response.
It is about helping businesses to have an awareness of the risks that they’re exposed to across their supply chain. Key fraud risks need to be identified, and then mapped to the business’s control environment to facilitate effective ongoing risk management. Our team provides clients with data-driven insights to give greater clarity and flexibility in tracking and managing risks and resilience levels in supply chains and third parties.
Fran Marwood, Partner
Tel: +44 (0)7841 491 400
Fran Marwood is a forensic accountant and counter fraud specialist, with 25 years’ worth of experience helping clients with complex investigations across the UK and globally. He leads PwC UK’s Digital and Forensic Investigations practice. The team is based across the UK regional centres and London and includes 250 forensic accountants and investigators, technologists and specialists in intelligence, contracts and asset tracing. They help their clients to protect value by preparing for, responding to and recovering from crisis events and business threats.
With offices in 156 countries and more than 295,000 people, PwC is among the leading professional services networks in the world. The UK firm has 22,000 employees across Assurance, Tax, Deals, Risk and Consulting.
There are quite a few lawyers in my family, and I initially chose to study law without really knowing whether I would become a lawyer. I gradually became interested in corporate and bankruptcy law. I am very sociable by nature and law entails social interaction. Every society needs to know and appreciate the rules of law, and the same goes for individuals. Law is a prerequisite for social and economic freedom. On a separate note, my great uncle was a successful business lawyer, and he recommended that I study law in the US, which I did. It is really in the US that I decided I would become a lawyer. I met a lot of inspiring legal scholars and practitioners there.
Without breaching attorney-client privilege, I vividly remember a massive restructuring for a telecom company (the largest in Europe at the time) a few years ago. We had to work around the clock for weeks and did not sleep for two days prior to closing. The client was demanding, the pressure intense and the documentation off the charts, but so was the huge closing party and celebrations with our lead counsel in London for two days afterwards. Overall, I think the post-closing festivities were more exhausting than the deal itself!
On a personal level, I am grateful to have found a law firm that believed in me and let me grow as a lawyer. I am particularly proud of having been with this firm for 15 years now and having made partner. I have been with NautaDutilh for most of my career, which I consider to be a great accomplishment, especially these days where people tend to change firms multiple times over the course of their careers. It is rare in our profession to be with one firm for such a long time.
I am grateful to have found a law firm that believed in me and let me grow as a lawyer.
In terms of professional accomplishments, I am proud of having helped a client buy out a tough minority shareholder from a business he bought years ago. This happened after years of complex and continuous litigation with the minority shareholder. That was the first time a client ever thanked me for the work done.
I would say they are threefold: new technologies, fee pressure and increased regulation. For years, the legal sector seemed immune to technological disruption. This is no longer true. Nowadays, there are so many new legal technologies introduced every year that it is difficult to determine which are the best fit for which firms. AI and automation is going to change the way we practice law. As someone said, AI won't replace lawyers, but lawyers who use AI will replace those who don't. I absolutely believe this is true. No to mention that the internet has allowed potential clients to carry out digital beauty contests to a greater extent than ever before, meaning there is increased pressure on firms to stand out through their online sales pitch.
All of this means that there is considerable pressure on legal fees, driving clients’ fee expectations and the perceived value of legal expertise down. This forces lawyers to become more specialised and focus on high-end, real added-value services, which is the only way to increase margins in our profession.
Finally, we have seen a global increase in regulation, at both the European and G20 levels. Law firms have to digest these new rules and determine how they affect their practice and thus spend a lot of time on administrative tasks.
I would tend to say Zoom or Teams. Joking aside, it is true that since the start of the pandemic, we have been cutting back and have become more frugal in our lifestyles. However, I definitely could not live without a sense of freedom, the simple things in life, and my loved ones. I am rather down to earth.
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Being a lawyer is a wonderful, fast-paced profession, but it is very demanding and stressful and has changed a lot over the past 10 years. Newly minted lawyers should be aware of this reality and of the fact that they do not know everything. Law school doesn't teach us a lot about the actual practice of law, how to meet with a client, how to engage in business development, how to manage a team, etc.
My advice would be to find a law firm that is willing to invest in you, be curious and go the extra mile to learn as much as you can and, most of all, be prepared to constantly adapt to a fast-changing environment.
We are gearing up to absorb our share of the expected wave of restructuring work. The European markets for distressed deals were quieter than we expected in 2021 due to government lending schemes, supportive sponsors and lenders, and high liquidity levels. As we look towards 2022, the question remains as to when we can expect an increase in distressed deals. Some cracks are starting to show due, for example, to inflation, supply chain constraints, the constant delay or derailing of pandemic recovery efforts, and the fact that many jurisdictions will put an end to the state aid packages that protected companies impacted by the pandemic. Any combination of these factors could result in increased levels of distressed and restructuring activity. NautaDutilh's Benelux Restructuring & Insolvency Team has been preparing for this for the past year and is ready for whatever the future holds.
I am a corporate and restructuring partner at NautaDutilh in Luxembourg. My practice encompasses traditional M&A and private equity work as well as the provision of advice to hedge funds, private equity firms and financial institutions in distress or default. In Luxembourg, we usually – but not always - act for creditors. I also have extensive experience in security interest enforcement and directors' liability issues.
I am a member of NautaDutilh's Benelux Restructuring Team, which has excellent transactional and litigation expertise and capabilities, coupled with the resources required to ensure an optimal outcome in any distressed situation. We are a top-tier firm for R&I in the Benelux Region and work with all leading law firms in the UK, US, France, Germany and other countries worldwide. Our team and its members are consistently ranked highly in all major league tables and legal directories. We pride ourselves on being a trendsetter when it comes to devising innovative solutions, in the context of both domestic insolvencies and cross-border restructurings.
Romain Sabatier
Corporate M&A & Restructuring Partner
2 Rue Jean Bertholet, 1233 Luxembourg
T: +352 26 12 29 47
Mobile: +352 691 12 29 47
Romain.Sabatier@nautadutilh.com
Family lawyering is an ever-evolving area of the law which encompasses both hard and soft skills. I value both; and am privileged to practise in a field where each case is unique to its own family dynamics and circumstances.
Growing and maturing as a legal practitioner has been key. As we transition into a less adversarial approach to resolving marital breakdowns, collaborating with fellow practitioners and stakeholders has been helpful. I am especially fortunate to work alongside stellar colleagues and to have the support of my family.
As we move into a new year, the hope is always for better things to come, to do better and improve oneself. I am also crossing my fingers that the world will be COVID-free!
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After several years in private practice focusing on Family & Matrimonial Law, Michelle served as a District Judge of the Subordinate Courts of Singapore (now the Family Justice Courts) in the Family & Juvenile Justice Division before joining the Law Society of Singapore, as Director and Head, Representation & Law Reform.
Michelle returned to private practice with over 20 years of experience in Dispute Resolution. She has a passion for the welfare of children and her dedication to Family Law practice enables Michelle to support husbands, wives and families to reconstruct their lives when relationships break down.
Michelle is a Director with Quahe Woo & Palmer LLC. QWP is a multi-disciplinary law practice led by a team of experienced lawyers with varying specialist expertise, capable of handling complex modern-day legal disputes and corporate transactions. More than just a provider of legal services, QWP sees ourselves as our clients’ trusted partner as we navigate them through an increasingly challenging legal landscape brought on by ever-changing global economic and geo-political trends.
Michelle’s ability to very well understand the emotions running with all parties and manage the situation professionally without provoking or hurting the other party… essential for the wellbeing of the children involved in any divorce case, and to move on with co-parenting once the case is over.
Michelle Woodworth
Director
Tel: +65 6622 0372
Email: m.woodworth@quahewoo.com
In 2009, after ten years of legal practice in China, I went to the US to pursue a Juris Doctor degree. The language barrier and the cultural differences were the major challenges to me then. To overcome these challenges, I read thousands of legal opinions, recorded all the class lectures and listened the recordings sentence by sentence after the class. Intensive study and hard work had become a part of my life.
With all those efforts, I received JD, magna cum laude (top 1%, 2 out of 438) with 19 book awards and won the President’s Achievement Award from the law school.
I am very fortunate to have received the best legal educations both in China and in the United States, as well as having had the opportunity to intern with Honourable Justice Stephen Markman at the Michigan Supreme Court, practice at big law firms both in China and the US and co-author the book IP Strategy For Business with Prof. Robert Merges, one the most famous IP experts in the world.
I am also very honoured to be a Senior Research Fellow at UC Berkeley Center for Law & Technology (BCLT) and to have met so many great people in my life.
We each have only one life. I hope that I can live my life to its full potential. My goal is to become an outstanding transnational lawyer and a valuable member of society. I hope that my knowledge and skills can benefit society and promote our legal system.
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By whether or not I am valuable to society, and the greatness of that value.
I am very grateful and honoured to win this award. I hope that more people could know me and Tian Tai Law Firm – one of the largest and greatest law firms in China.
I would like to have Tiantai Law Firm ally with more firms all over the world.
Fang Liu is an attorney licensed both in the People’s Republic of China and the United States (New York, California, Michigan and Washington DC). She is in charge of the firm’s international business. Her practice focuses on corporate law, cross-border M&A and international business transactions.
Fang Liu has represented numerous Chinese clients in both business and academic fields. She helped TusStar Holding to set up incubators in the United States, assisted BAIC and Camel Group in setting up their US R&D centres and advised Minth Group, Shengrui Transmission, Qingdao FengGuang Precision Machinery Co., Gusheng Biological Technology Group and dozens of other Chinese companies on their investments, M&A deals, business transactions and operations in the Unites States. She has also represented Chinese clients on various international litigation and arbitration matters.
Her US clients have varied greatly as well, ranging from Ford Motor to JPMorgan Chase Bank, Cottage Inn, Dawson Tire & Wheel, BWI Group, Nelson Fastener and Tarter Industries, among others. Ms Liu’s practice areas cover commercial litigation, transnational lending, international franchising, technology licensing and foreign direct investment.
Fang (Helen) Liu
Email: liufang@tiantailaw.com
I am what I call a “later-in-life” lawyer, meaning I had another career prior to attending law school. My goal in establishing TSI Legal Enterprises, PC was to create a vehicle for international legal and business advisory without the cumbersome aspect of a big firm. Working for myself allowed me the flexibility to choose which projects to accept and how to prioritize my efforts.
The past two years have seen increasing regulation and compliance requirements in the USA and for US companies working abroad. COVID-19 restrictions have hampered the free movement of goods and people throughout the free market economy. However, I think this will soften and even revert to previous standards as the pandemic subsides.
For up-and-coming lawyers, I think the most important piece of advice is to never settle for mediocrity. Always strive for improvement and never rest on your laurels. Secondly, focus on the legal work that energises or truly interests you, because the days can be long, the work tiresome, and often there is no pat on the back at the end. Finally, enforce a balance between work and those people, activities, and places that are important to you. I have yet to meet anyone retiring from any field who says they wish they’d spent more time working.
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My career has given me experience in the corporate sector ranging from field work and subject matter expertise in non-permissive environments to management consulting, project management, C-level positions, and corporate counsel. My work has led to overseeing projects in Afghanistan, Iraq and Kuwait to the Philippines, Latin America, Africa, and the United States. Although I have spent the better part of the last decade advising clients on FCPA and ITAR compliance, often on-the-ground and in rapidly evolving situations, I am now focused on the interstate trucking sector in the US. I recently moved to the position of General Counsel for the largest trucking company in Savannah, Georgia and am entrusted with directing DOT, NHTSA, and other Federal and State safety programs for over 150 drivers as well as another 50 administrative and maintenance employees.
I am a licensed attorney, admitted to practice in California, Washington, DC, and the Court of International Trade. I am a certified project management professional as well as being certified in SCRUM Fundamentals and as a human trafficking investigator. I am a Fellow of the Institute of Leadership and Management and an associate member of the Chartered Institute of Legal Executives in the United Kingdom. I have been recognised as a subject matter expert in the field of international business entity creation and regularly contributed to the International Monetary Fund’s annual “Doing Business” report covering best practices for businesses in 189 economies.
I have been selected for High Honours recognition by the Washington, DC Bar for my pro bono work during 2021. I served for six years as the Vice Chair for the American Bar Association’s Section of International Law Middle East Committee and previously as Vice Chair for the International Anti-Money Laundering Committee. My education credentials include a BA in Organisational Leadership from Chapman University, a Juris Doctorate from Concord Law School, an LLM with Merit in International Business Law from the University of Liverpool and numerous graduate certificates in mediation and negotiation mastery from both Harvard Law School and Harvard Business School. I am also currently pursuing a doctorate (PhD) in International Law and Treaty Law through Euclid University.
My published works include a dissertation on “Improving Corporate Governance Education in Emerging Markets in Sub-Saharan Africa” and a review on anti-money laundering practices in Afghanistan for the American Bar Association.
Conan J Higgins
TSI Legal Enterprises
1712 Pioneer Ave Ste 500,
Cheyenne, WY 82001
conan.higgins@tsilegalenterprises.com
Any large company today that is engaged in international business operates in an environment with ever-increasing complexity. From the challenges posed by the intricacy and volume of regulatory changes and their global, multijurisdictional impact to the incredibly rapid pace of technological change and its many effects on businesses, in-house legal teams have never faced greater challenges. To mitigate the volume of new legal risks that businesses face, such as rapidly evolving privacy or anti money laundering regulations in various regions, it is vital that legal counsel is delivered in a way that is unified and consistent.
As a General Counsel (GC) in an international, independent commodities trading company focused on oil and gas, with a presence in the Middle East, Europe and Asia, I have found it both fascinating and thrilling to observe how my role has developed since I joined the Group nine years ago.
My GC position encompasses various roles. I act as an advisor on commercial transactions and compliance, an advocate in HR matters, a mentor, and more generally as a confidant and sounding board across the group. The lessons I learn on a daily basis are ones that anyone working as part of a similar in-house, international legal team will recognise and can also benefit from.
The pandemic provided a range of new challenges for all in-house legal teams, but negotiating and coordinating different moving restrictions across multiple jurisdictions also provided a fresh perspective on the challenges we face day to day.
It is vital that legal counsel is delivered in a way that is unified and consistent.
These past two years have been ones in which we have all learned a huge amount. In many ways, the way we do business has been reshaped by the pandemic. Its legacy in terms of how we approach business in the future is likely to be long-lasting. For in-house legal teams, used to developing good working relationships with external legal advisors through in-person interaction, there has been a major readjustment.
Web-based video calls have become the norm for business communication across the board, but for legal teams, where building trust based on personal connections and interactions is all-important, they initially posed real challenges – especially in new working relationships.
For me, a key lesson from this was the importance of engaging with external legal advisors through more calls with greater frequency, compared with in-person meetings. Understanding and trust can be built through video calls but there is a definite need for substantial time investment, which is something we have all had to get used to.
In my experience, the best law firms are the ones who are focussed on client service, and the pandemic reinforced that. The firms we have had the best relationships with were retained as we trusted them more.
In a post-COVID world, establishing and maintaining a coordinated structure to control the legal affairs, priorities and policies of a multi-jurisdictional group in a cohesive fashion takes on even greater importance. As GC, it is my responsibility to deliver this, and I do so with the help of over 30 law firms globally. That means I have to manage relationships with these teams while leading various matters, projects and disputes. The group needs a unified centre to account for challenges arising from language, cultural and time differences between local legal teams. Having a unified centre also makes dealing with multiple legal systems, regulatory requirements, and business priorities more manageable.
In my experience, the best law firms are the ones who are focussed on client service, and the pandemic reinforced that.
Adopting this approach will result in cohesion in the delivery and quality of legal services, reduced risk of inadequate legal support for specific areas of the law across geographical regions, and enhanced knowledge sharing across the entire legal team.
To enhance knowledge sharing, teamwork and communication, we recently implemented a new system that is used across the Group to share templates, manage external counsel costs and share drafts. This has increased our efficiency and strengthened communications, both internally and with external stakeholders. The software is worth the investment, no matter how small our team.
In my view, personal relationships are fundamental to establishing coordinated, global legal teams. The great majority of the appointments of law firms in our unified team came as a result of a personal recommendation, which developed into strong working relationships.
A high-performing, multi-jurisdictional legal team relies on good local counsel. Finding the right legal talent at a local level is one of the most important challenges a global GC will face. Sometimes you may encounter language barriers. Other times, the bigger challenge is finding counsel that have niche specialities and other times it is explaining internal strategy to external parties. Identifying and appointing the right local legal talent is made much easier if you have a referral from a trusted source. Personal referrals provide much better insights than your own research as you have an opportunity to ask about the capabilities of the firm you are looking to appoint. It can greatly speed up the process of finding appropriate talent to have a trusted source broker an introduction. It is therefore vital to build strong relationships in each jurisdiction.
Legal systems in the East and the West are often quite similar, in that written or common law rules are applied to the legal question. A major difference, however, is found in how different regions look at certain actions. For example, certain civil law matters that would be negotiated as a civil dispute in Europe are actually classified as criminal matters in the Middle East. This changes the way you consider business in the Middle East, as the repercussions can be more extensive compared to the same transaction in Europe.
It is the role of the GC to work out and implement the appropriate approach, navigating and asking the right questions.
Finding the right legal talent at a local level is one of the most important challenges a global GC will face.
As a GC, one of my biggest pieces of advice is to learn to trust your instinct. As an in-house GC, you do not have access to the same expansive resources available in private practice, such as a team of legal assistants, paralegals, and associates. Therefore, you must learn how to hone and trust your instinct. This pays off, as you learn to make quick and effective decisions based on what you think is right, all the while instilling a sense of confidence in your in-house legal team.
Mentors play an important role in any legal practitioner’s career. As an in-house GC, and thus the firm’s most senior lawyer, my mentors tend to be the partners in the firms I work with. They understand my role, appreciate that I am on my own and support me, offering advice or acting as a sounding board for ideas. This is important to me and has been an important factor in the development of my legal instinct.
Working across a broad range of jurisdictions is challenging during normal times but has been especially so over the course of the pandemic. That said, it has also been a time of great learning. The talented and dedicated in-house professionals and the global team of external advisors that I work with pulled together through this difficult period, and enhanced our ways of working, which we will build on in the future.
Being a GC in a multijurisdictional group does come with challenges due to the complex, multi-faceted nature of the role and the number of stakeholders you need to engage with, but at the same time it is highly rewarding.
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Tracy Wong, General Counsel
12 Marina View, Asia Square Tower 2 #21/01-02, Singapore 018961
Tel: +44 (0)20 3862 0820
Mercantile & Maritime is an independent commodities trading company headquartered in Singapore. Its in-house team advises clients on matters across the oil and gas sector, supporting international businesses from its branches across Europe, Asia and the Middle East.
Tracy Wong leads the Mercantile & Maritime Group’s Legal Department and is a key member of the projects and energy team. She advises upon a wide range of commercial, corporate finance, M&A, energy, and oil & gas matters. She is also experienced in alternative dispute resolution, including the mediations and non-judicial conflict resolution.
Climate change presents one of the greatest threats to human rights of our generation, posing a serious risk to the fundamental rights to life, health, food and an adequate standard of living of individuals and communities across the world. This was the conclusion from The United Nations report on climate-change and human rights published in December 2015.
Now, a recent study by the London School of Economics reveals that the number of climate change cases filed globally has significantly increased from 834 between 1986 and 2014, to 1006 cases being filed since 2015 (the year of the Paris Agreement). This surge of cases throws the issue of the enforcement of individuals’ rights and corporate obligations by private parties (often in groups) litigating against companies into the limelight.
The United Nations Guiding Principles (the “UNGPs”) on Business and Human Rights provide that states have an obligation to protect human rights from harm by businesses, while businesses also have an individual responsibility to respect human rights. In fact, as part of their duty to protect against business-related human rights abuses, states have a positive obligation to take appropriate steps to ensure, through judicial, administrative, legislative or other appropriate means, that when such abuses occur within their territory and/or jurisdiction, those affected have access to effective remedy.
In Milieudefensie v Royal Dutch Shell, a number of environmental NGOs successfully argued that Shell owed a duty to Dutch citizens to protect them from the negative impact of climate-change. The claim was brought pursuant to the Dutch Civil Code, which provides that a private law action may succeed where the defendant has demonstrably breached the “unwritten standard of care” which it owed to the claimant. This standard of care was informed by the Paris Agreement, and various human rights instruments including the UNGPs.
The number of climate change cases filed globally has significantly increased from 834 between 1986 and 2014, to 1006 cases being filed since 2015.
In this instance, Shell was held to have failed to implement appropriate corporate policies. To contextualise this decision, it is also important to note that it followed the Netherlandish public law case of The State of the Netherland (Ministry of Economic Affairs and Climate Policy) v Stichting Urgenda 19/00135 (Engels) in which the Dutch Supreme Court established that the Dutch government has a legal duty to prevent climate-change.
The reasoning in Milieudefensie is potentially significant for similar private law claims brought in England and Wales. A direct comparison can be made between the Dutch ‘unwritten standard of care’ and the law of negligence in England and Wales. It is certainly arguable that the law of negligence could similarly be informed by environmental and human rights instruments to create a liability to private parties.
In the UK there has been an increasing number of claims being brought against parent companies who are said to be responsible for harm occurring outside the UK, albeit those parent companies are not alleged to have directly contributed to the harms caused. Both Vedanta Resources Plc v Lungowe [2019] UKSC 20 and HRH Emere Okpabi v Royal Dutch Shell [2021] UKSC 3 have demonstrated a willingness from the UK Supreme Court to consider a broadened understanding of corporate liability. Whilst neither case concerned global warming in strict terms, the court’s willingness to consider expanding common law duties to parent companies provides a potential avenue for future private litigation in relation to climate-change.
The difficulty such a claim would have in the UK courts would likely be in proving a loss which was caused by the breach. This was an issue in the Californian case of the Native Village of Kivalina v ExxonMobil Corporation (2012) No. 4:08-cv-01138 (N.D. Cal.). A group from the Alaskan island Kivalina claimed damages from the defendant energy company for the extreme erosion and weather events they faced, claiming the weather patterns were caused by the defendant's actions, which they alleged had an impact on climate change. The case was dismissed, in part because the plaintiffs could not make out their case on causation. Demonstrating a causative link between the loss incurred and the defendant’s actions is a nebulous process which demands more from the science of attribution than can currently be provided.
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The difficulty of claims such as this was further reflected in the New Zealand case of Smith v Fonterra Co-Operative Group Limited [2020] NZHC 419. The court struck out the climate change claims brought in negligence and nuisance, but refused to strike out the claim for breach of an inchoate climate-change duty of care.
Much weight was placed on a 2018 paper authored by three New Zealand Supreme Court Judges which argued in favour of a new private law cause of action because the problems of climate change do not easily conform to existing forms of action. The paper considered that private law might develop to meet some of the challenges confronting climate change litigation and adjust the traditional concepts of standing where the wrong affects the whole of society and, in particular, where the impacts of climate change are intergenerational and will impact young generations more significantly.
The inquest in the UK case of Ella Kissi-Debrah was the first UK case in which the coroner found that air pollution was a contributory cause of illness and death due to the child’s asthma being worsened by high levels of air pollution in the area in which she lived. A second inquest focussed on the aspects of causation and contribution and what could have been done to limit the impact of the air pollution. The coroner held that the air pollution had made a “material contribution” to Miss Kissi-Debrah’s death. This amounted to a breach of the UK’s air quality legislation. There have been proceedings arising out of the coroner’s report which have resulted in court orders requiring urgent corrective action and has called into question the need for a change in the law to comply with Article 2 of the European Convention on Human Rights, which states that everyone's right to life shall be protected by law.
Demonstrating a causative link between the loss incurred and the defendant’s actions is a nebulous process which demands more from the science of attribution than can currently be provided.
The ongoing German case of Lliuya v RWE (Case No. 2 O 285/15) provides a further example of private law being used to challenge climate change by recognising the possibility that a private company could be responsible for the effects of its emissions offshore. The plaintiff is a Peruvian farmer who is suing Germany’s largest electricity producer. He alleges that his home on the flood path of Palcacocha Lake is threatened by the potential of two glaciers collapsing into the lake and in turn causing significant flooding. The allegation is that this is all a consequence of global warming. He alleges that RWE has been a major emitter of greenhouse gases, which are causing glacial retreat increasing the risk of flooding in the area.
In respect of quantum, the plaintiff is seeking £14,250 from RWE for its contribution to global warming. This figure reflects the Institute of Climate Responsibility’s estimation that RWE is responsible of 0.47% of global warming emissions from 1751 to 2010, and so the claim is for 0.47% of the cost of the plaintiff protecting against the impact of the glaciers collapsing. Given the potential of private companies being responsible in domestic courts for offshore emissions, the causation issues in play, and the novel approach to quantum pleaded by the plaintiff, this case is hugely significant.
Developments in climate science, particularly in respect of attribution, will continue to increase the significance of bringing private law claims. This emphasises the need for companies to act now by carrying out due diligence to identify risks within a business that may give rise to a private law action being brought against them. As with those cases considered above, private law climate change litigation attracts a lot of publicity even before any material findings by the relevant courts. Moreover, pressure applied to large companies through litigation comes hand in hand with pressure on politicians to act. To that extent, it is likely that private law climate change litigation will continue to gain traction across the globe.
Stephanie Eaton is an associate at Signature Litigation LLP and Michael Rawlinson QC and Samuel Cuthbert are barristers at 12 King’s Bench Walk.
Stephanie Eaton, Associate
Address: 138 Fetter Lane, London EC4A 1BT
Telephone: +44 020 3818 3500
Email: stephanie.eaton@signaturelitigation.com
Michael Rawlinson QC and Samuel Cuthbert, Barristers
Address: 12 King's Bench Walk, Temple, London, EC4Y 7EL
Telephone: +44 020 7583 0811
