Understand Your Rights. Solve Your Legal Problems
When you serve such a polarised variety of clients, there is no option other than adapting the way you comport yourself to the kind of client business you are working with, and, specifically, to its organisational culture. Together with conducting legal background checks, we always try to learn as much as possible about each of our client’s field of activities and business environment. This helps us better understand the client’s individual needs and provide better service.
In order to properly conduct ourselves when working with various clients, we use the knowledge we have amassed over the years and adapt it to the kind of organisation we are representing. For example, when representing a multinational company, we always account for the organisational hierarchy and operate in complete accordance with it. On the other hand, when we represent a start-up, we often find ourselves working simultaneously with the management and with investor representatives. When we represent certain family-owned businesses we will be sensitive to the fact that, often, important decisions are also made by family members and not just by the CEO or the board.
Aside from this, the extensive regulation in Israel forces us to constantly learn and keep up with the regulations for the represented business’s specific sector. This is no simple task and requires time and resources, but this cannot be forgone if we want to provide excellent legal service.
In my experience, complex disputes that deal with large sums of money are not resolved as long as the parties are unwilling to compromise. Before appealing to the court and even after the beginning of court proceedings, when each party believes in its own righteousness and is sure of its victory, the parties are usually not yet ready for compromise. For this reason, the chances at this stage of achieving an agreed-upon settlement are low. We have had cases in which we were able to solve disputes at an early stage, even before petitioning the courts, but these were the exceptions. In our experience, the suitable time for compromise, as far as the two sides are concerned, is at a later stage of the judicial process – following massive discovery of documents, an attempt to reach a settlement at mediation, and submission of witnesses’ affidavits.
When you serve such a polarised variety of clients, there is no option other than adapting the way you comport yourself to the kind of client business you are working with.
At this late stage, many of the “cards” have been exposed, each party can assess their risks and prospects in the proceedings and there may be better chances of reaching a reasonable compromise.
After years of representing investors from Israel and abroad, we have learned that investors are always interested in product innovation and uniqueness at the company they are investing in and its chance of sweeping the market.
Having said that, it is just as important to investors to understand the personality and state of mind of the entrepreneurs at the companies they invest in. Investors inject companies with money for the sole purpose of seeing return on their investment. That is their only goal. Entrepreneurs do not always manage to get into the investors’ heads and comprehend this. Pointless stubbornness on the part of entrepreneurs during negotiation of investment terms and company operations of the kind that might reveal them as “problematic personalities” in the eyes of the investors, may result in investors backing out of their intentions to invest. I always tell entrepreneurs that they have the right to quarrel with their investor only once – just before the Exit.
LNA, of which we are members, has over 100 law practices scattered over the world. Most members’ are leading law firms with reputations and strong professional credentials in their countries in addition to ample experience working with international clients. The LNA Network holds professional conferences around three times a year. At these conferences we are exposed to, among other things, regulations and rulings from many countries and global developments affecting various legal specialties.
I always tell entrepreneurs that they have the right to quarrel with their investor only once – just before the Exit.
Being part of the LNA network enables us to obtain valuable information for our clients in Israel and abroad as well as the ability to refer any client in need of legal services in a certain country to the network’s law firms there. Usually, we are personally acquainted with the relevant lawyer abroad who will represent the referred client.
We are proud of the fact that in the winter of 2020, just before the outbreak of the COVID-19 pandemic, our firm hosted the LNA European conference, which was held in Israel for the first time. The conference was a great success.
If the differences in various negotiation cultures could be classified, you could say that in general, business negotiations with people from European countries are more pertinent and less forceful in many cases than negotiations with Israeli businessmen, which often may deteriorate to pointless forceful conflict.
Occasionally, in these instances, pointless conflict during negotiation to settle a business dispute should be stopped quickly, even if this may convey weakness. I have in the past, during heated negotiations, asked for a recess to consult with my client and implore them to calm down or even concede on non-fundamental issues so that the achievement of compromise would not be hampered. This kind of intervention is not always welcomed by the client in the heat of the moment, but after de-escalation clients tend to appreciate it very much.
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By law, a director must always act solely in the interest of the company. Nevertheless, in practice this is not always so easily done. Often, directors are sure they need to act on behalf of whoever appointed them. Directors in Israel are appointed and serve on many occasions as part of a network of interests. Unfortunately, many directors are not aware of their great liability and immense legal exposure as directors.
In a company that our firm served as legal counsel, an interested party transaction was discussed by the board. During the board meeting, I stated my opinion that a fairness option should be received for the transaction and its terms before being brought to the board’s approval.
Most of the directors agreed with me, and the proposal was accepted. The director interested in the transaction, who had much influence at the company, was very angry with me and saw me as responsible for delaying the transaction. After time passed, he phoned me and apologised. He had read about a company that had approved a similar transaction without receiving such an opinion, and the directors were sued for tens of millions of dollars.
I believe that a significant proportion of the employers in the market have not yet internalised the enormous change made in Israel in this field. Over the past few years, we have seen a process of new and extensive legislation in labour law in Israel. Alongside rightful protection accorded to disempowered employee populations by the new laws, it is also evident that there is a trend of imposing an unreasonable and unjust burden on employers to the extent of “criminalisation” of a fundamental part of the labour laws.
Today, before making any managerial decision regarding an employee, every employer must check if it is even legal. Furthermore, there are the labour court rulings on the topic of employees’ right to organize, which must not be hindered. All this brings us to the realisation that this field has fundamentally changed from what it was just a few years ago, and employers today must consider their actions with much caution.
Today, before making any managerial decision regarding an employee, every employer must check if it is even legal.
It is very important to think together with the client, to understand what motivates them and their business considerations. However, when these conflict with the law, a lawyer must stand up to the client, even if he is an influential manager or businessman, and even if this may result in termination of representation. I have had such disagreement with clients. It is my experience that, in the long run, a client will appreciate a lawyer that has its back more than a lawyer that cuts corners.
Working with family-owned businesses is my baby. The inherent challenge and difficulty in a family-owned business of achieving success while preserving the family was what attracted me to this this topic many years ago. During the past seven years I have served as the Academic Director and lecturer at the Business and Family studies program initiated by the Bar Ilan University.
It is no easy task to be part of a family that owns a business, whether you work at the business or outside of it. The fear of disputes that may damage the business and family relations is ever-present, even when all seem well.
In this regard, I would advise to always have a binding written agreement between family members to settles relations and serve as a safeguard against conflicts that may hurt the family and do damage to the business; the earlier the better.
The fear of disputes that may damage the business and family relations is ever-present, even when all seem well.
The conduct in American companies is structured in a way that, to Israelis, may seem cumbersome at times. Many parties are involved in the organisation in almost all fundamental business occurrences and there is an orderly process of subject-learning and voicing of opinions by all parties, who are by definition of their roles in the organisation supposed to be involved in the finalisation of said business events. Additionally, the process of decision-making itself is orderly, as mandated by the organisation’s nature.
This kind of conduct is not common in Israeli companies, where decision-making is often done hastily by a small group of senior staff. It is noteworthy that today, the more that Israeli companies and tech-focused companies in particular start to interact with American businesses, the more they are quickly learning how to conduct business in the American style.
My mentor during my internship and in the early stages of the legal practice was the late Eli Zohar Adv., who apart from being a famous lawyer in Israel not only had excellent professional skills but was also blessed with praiseworthy personal attributes. Eli Zohar was definitely a lawyer deserving of the title “a lawyer and a gentleman”. I had the opportunity to work with him and learn from him not only during my internship, but also afterwards as I continued at the Seligman firm. I learned the art of litigation and cross-examining witnesses from Eli, as well as the obligation to respect the other party even when waging a fierce legal war. From attorneys Pinhas Rubin and Moriel Matalon, whom I worked beside at the Gornitzki firm, I learned how to engage in complex commercial transactions. The late Phillip Mandelker, whom I worked alongside at the Rosenman firm in New York, taught me a lot about commercial litigation in the US. I am grateful to all of my professional teachers for all they have taught me.
As one who began his legal practice in the largest firms in Israel and the US, I am well acquainted with the advantages and drawbacks of their services. A large firm is a brand name and has a relatively large array of professionals to offer clients, which provides a sense of security. However, large firms have high overhead costs which raise rates, and for this reason are not right for all clients. Another fundamental difference between large firms and small firms (like ours) is in the access to the senior partner involved in the case or transaction.
I often hear from clients that came from large firms that they felt “lost” in these large legal organisations, and that in the end the lawyer that worked with them had two or three years of experience. We do our best to make our experience and skills available to all our clients. I am involved in almost every case at our firm and clients have almost immediate access to me.
Business life entails many surprises and stressful events that require immediate action. Confrontational events like lawsuits or investigations, as well positive events like the maturing of company acquisition or sales negotiations, may create a sense of urgency in clients, requiring immediate consultation with a lawyer. I have found myself, more than once, when on my way home after a long day at work, redirecting to an urgent meeting with a client because of such developments. We emphasize availability and quick professional response for all our clients, small and large, and we know from our experience that our clients appreciate this very much, and that it is one of the most important issues for our clients.
A Hebrew version of this article originally appeared in TheMarker.
Moshe Kahn, Founder
Address: Amot Investments Tower, 7th Floor, 2 Weizmann St., Tel Aviv 6423902, Israel
Telephone: +972 3-691-4775
Fax: +972 3-691-4706
Email: mk@kahn.co.il
Moshe Kahn has more than 20 years of expertise as a business lawyer providing legal counseling and representation to local and foreign companies, including leading multinationals operating in Israel. He is also a member of key committees at the Israeli Bar Association, the author of many professional articles, and a regular organiser and speaker at conferences at the Bar Ilan University.
Moshe Kahn Advocates deal with an array of legal concerns including commercial law subjects, corporation law and commercial litigation, commercial contracts and international dealings, representation of employers in labour disputes, family-owned businesses and many more areas. Moshe Kahn Advocates is the Israel law firm of Legal Netlink Alliance, an internationally recognised organisation of independent law firms with more than 100 law offices located worldwide.
Below, Michelle Anthony-Desir describes the island’s unique draws and the regulations that should be considered for foreign buyers.
The property market on the island is currently more active than it has been for some years for a combination of reasons:
Saint Lucia has been and continues to be an attractive destination for second homeowners and property developers. Not only is it an English-speaking island, but it also enjoys good airlift from major hubs throughout the United States, Canada and the United Kingdom. Of course, the island’s rich cultural heritage and the welcoming and friendly personality of its people are a major draw to the island, coupled with its natural beauty and topography.
A number of persons who have the flexibility to work from home now realise that “home’ in many cases could be the Caribbean.
The real estate offerings on the island are varied from unbuilt lots to standalone homes, villas and condominiums. Depending on individual taste, lifestyle and budget, there are suitable options for everyone.
First-time buyers are often caught up in the excitement of owning property. It is not uncommon for deposits to be paid without a written agreement or proper title searches being made, or for agreements which have not been appropriately vetted to be signed. In addition, appropriate inspections of buildings may not be carried out prior to completion of purchases or boundaries clearly demarcated and identified. It also goes without saying that the source of funding for any purchase must be confirmed before the acquisition process advances too far.
Whether a buyer has found a property on their own or through a realtor, it is imperative that he or she is armed with an experienced and reliable real estate attorney who will assist them with legal contracts and title searches and will advise on deposits and best practices on the island. It may also be necessary to have a licensed valuer and quantity surveyor on the team.
Foreign buyers should be aware that – save for one or two exceptions – they will be required to obtain an Aliens Landholding Licence to purchase property on the island.
Growing up I had visions of being an archaeologist and having amazing adventures. I quickly realised that the scope for such a career was limited in the Caribbean. While I had had the experience of being educated outside of the Caribbean in my earlier years, what I did know was that I wanted to live and work in my home country. Ultimately, my journey into law was influenced by my desire for a career that would allow me the freedom to chart my own path as well as to provide various avenues for the practice of law.
Athena Law was conceived on the idea that there had to be a better way to engage in the practice of law and to create and appreciate a different life experience. For me, Athena Law is part of my own personal journey to finding balance and focusing on aspects of the law that I really enjoy.
There are so many things I would like to do, but realistically speaking, time may not work in my favour. I would not describe it as a career goal, but the one thing I would love to do is to develop a podcast. I am working on a few concepts and ideally, I would want to launch it within the next twelve months.
Michelle Anthony-Desir, Founder
Address: 6 Brazil Street, Castries, Saint Lucia
Telephone: +1 758 452 5111
Email: mdesir@athenalawslu.com
Michelle Anthony-Desir
October marks the 25th anniversary of my call to the Bar in Saint Lucia. I am a fully trained West Indian attorney and I have practiced in Saint Lucia from the date of my call in 1996. My practice focuses on conveyancing, commercial and investment law and legacy planning.
At Athena Law our desire is to simplify complex legal journeys to make them more client-friendly and to create more efficient work flows and processes. The aim is that, through this type of collaboration, clients will feel more empowered to make decisions with clarity throughout the course of a legal matter.
Björn Frommer, at FROMMER LEGAL, combines the two in this discussion of legal tech and his modular cloud platform, JUNE.
The number of mass actions is increasing sharply – not just in Germany, but also throughout Europe. Yet most law firms are unable to cope with these complex challenges using their current digital tools.
This is due, on the one hand, to the fact that many legal tools are tailored to individual rather than mass proceedings, especially the typical legal software. And on the other hand, there are now numerous specific tools that can help with a wide range of issues. However, these do not usually work hand in hand. On the contrary, interface problems often arise and identical work steps have to be repeated multiple times in different environments, in addition to other issues.
You cannot afford to go through all that in mass proceedings. After all, a four-digit number of claims alone require tens of thousands of steps, and therefore thousands and thousands of precisely produced individual documents.
For law firms and legal departments, this represents a massive drain on human resources and, most importantly, time. The logical consequence of this is that, in addition to a lack of business efficiency, there is also an enormous cost pressure. Competitiveness is lost if one does not simplify and bundle operational processes in mass proceedings in an intelligent way.
What sounds obvious and simple is, however, a difficult problem to solve in legal implementation, especially if you have not already been able to gather a "mass" of experience ahead of time in order to translate it technologically.
Therefore, for me, the term "legal tech" has a deeper meaning than it appears to have in general legal jargon. I do not see legal tech as the mere digital handling of legal files. Legal tech has to be much more, namely intelligent and, most importantly, economical.
I do not see legal tech as the mere digital handling of legal files.
Yes, but it is easier said than done. We launched the modular cloud platform "JUNE" in 2020. It allows tens of thousands of legal processes to be handled comprehensively and efficiently. However, an intelligent platform like JUNE is not just created on the drawing board. We are, of course, also building on a wealth of experience that we have gained over many mass litigation projects.
At FROMMER LEGAL, we have specialised in precisely that – the management of large-scale legal projects. Here we have always relied on specific technologies. JUNE was nevertheless the start of something entirely new.
We translated all the wishes and visions from our almost 20 years of legal practice into reality. JUNE is thus based on our own experience and provides us with the best tool currently available for handling mass proceedings. I would say that we have been successful.
Today I am sure of one thing: you have to have walked a rocky path (sometimes even a wrong one) yourself to reach your goal. Shortcuts do not work in such complex projects, because otherwise the software would lack the crucial proximity to reality.
Every company that relies on software to deliver its services has the same problem: users lack the technical know-how, while IT service providers usually lack the specialist knowledge requirement that users are confronted with.
Finally, we lawyers lack the time and patience to take on this challenge. And by that, I do not mean programming the software ourselves, but rather dealing in depth with the countless possibilities, testing them, investigating them, acquiring them, on-boarding them, learning them, etc. The solution here is actually rather simple: we need IT specialists for the law firm's IT.
That is no longer questioned. Specialists are also necessary for the technological content. These could be either external legal tech consultants or internal staff units. Legal engineers, i.e. those who translate legal needs into technological requirement profiles, also bring the requisite knowledge. So, what has to be done? Law firms have to create new positions. It is that simple.
And to avoid any misunderstanding: lawyers do not have to become programmers. The technical implementation should and can be done by others. That we did it was in our case logical and consistent.
Law firms have to create new positions. It is that simple.
JUNE is not just a fusion of recycled programmes. At FROMMER LEGAL we have been writing our own programmes for decades, but for JUNE we pooled all our ideas and wishes and we started the whole development process from scratch on a completely clean slate.
The important thing here was that we did not just develop for ourselves, but for the market. That makes a big difference in terms of software architecture. Our previous law firm systems were obviously strongly tailored to our needs and built to be rather monolithic.
JUNE, on the other hand, is designed to meet a wide variety of needs and, above all, is modular. JUNE can be expanded. JUNE grows continuously. JUNE even allows the integration of third-party tools. We are therefore catering to the current trend of cloud-based technology – not static old-school software, but rather a dynamic linking of diverse applications under one roof.
For us, JUNE is the digital tool par excellence for handling mass proceedings and other large projects in law firms, legal departments or public authorities. Mass proceedings and litigation are on the rise, but, as I mentioned at the beginning, they generate an enormous amount of time and effort - and often only for a modest fee.
Not quite, but almost. JUNE is absolutely data-driven and thus takes over essential work steps, from digitisation and data capture to file management, deadline management and automated document creation.
The decisive factor here is the completely different way of dealing with the vast amounts of correspondence: the platform and its users do not work directly with this bulk, but with structured data, which is surprisingly easy. This is because every piece of correspondence is converted into essential core information and then into data. This, in turn, allows work steps to be automated and project-specific workflows to be established and maintains an overview of the overall project.
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Another new feature is that clients can access the platform directly and therefore benefit from complete transparency – a wish that comes up more and more often in large-scale projects. And because key figures mean everything in mass proceedings, reports are generated in real time.
Since we are also receiving enquiries from other countries, JUNE now has to become multilingual. This is an item on our roadmap.
Yes, absolutely. The word about the operational advantages of JUNE has now spread outside the legal sector. Insurance companies and public authorities are becoming interested in accessing the system. Recurring processes are not an exclusive legal phenomenon. Here, you need only provide precise information on the operational process during onboarding; the logic behind it remains the same.
No, I do not think so. A machine will not be able to take over the specific way we lawyers think in the foreseeable future. In any case, we should not try to remove the link between human and legal expertise.
A machine will not be able to take over the specific way we lawyers think in the foreseeable future.
Where ethical principles do not play a direct role, the machine must help to simply facilitate and accelerate work steps. It serves to ease the workload, but should certainly never be given a final decision on complex legal issues. The legal expertise will always remain with the lawyer, and that is a good thing.
Björn Frommer, CEO
Address: Goethestraße 49a, 80336 München, Germany
Telephone: +49 89 6931354
Björn Frommer is a lawyer and managing partner of FROMMER LEGAL and the CEO of JUNE GmbH. Developed using FROMMER LEGAL's expertise, JUNE is a modular cloud platform that supports law firms and legal departments in defending mass claims.
The flows generated by the Cape Verdean economy have never been considered sufficient to finance its development, due to various constraints such as the lack of natural resources, the trade balance deficit and the size and division of the territory. Therefore, foreign capital has become a strategic resource in the development of Cape Verde as a way of ending some deficits in the economy.
Thus, foreign investment is of paramount importance to the economy of Cape Verde. It increases Cape Verde's competitive capacity and, by extension, its relevance in the international economy; it increases employment in general terms, as well as creating new types of employment and new jobs; it stimulates employment in other sectors of the economy and therefore improves wage and working conditions. Foreign investment enables partnerships between foreign and national companies, allowing the latter to expand their business. It also increases state revenue through tax contributions paid by foreign companies.
The key regulations are as follows:
- Cape Verde Investment Law – Law no. 13/VIII/2012 amended by Decree-Law no. 34/2013 of 24 S September, which establishes the general bases for carrying out investments in Cape Verde;
- Foreign Investor Statute - Law No. 89/IV/93, of 13 December;
- Tax Benefits Code - Law No. -102/VIII/2016;
- Law No. 38/2013, of 2 October), which creates the Cape Verde International Business Center (CIN);
- Law No. 73/IX/2020, of 2 March, which approves the regime for the realization of direct investment made in Cape Verde by emigrants.
In addition to these legislations in the scope of foreign investment, it is also possible to point out others that regulate incentives of specific sectors, such as:
- Legislative Decree No. 13/2010 of 8 November, which defines the objectives of the country's industrial policy and establishes the principles, means and instruments essential to its pursuit.
- Decree-Law nº 22/2020, which establishes the regime of the status of Tourist Utility and defines the criteria and requirements for its attribution, revocation, expiry and renewal.
- Decree-Law No. 12/2005 of 7 February, which regulates the right to establish international financial institutions in Cape Verde, their functioning and supervision.
The flows generated by the Cape Verdean economy have never been considered sufficient to finance its development.
The countries of the African continent have great ethnic, cultural, social and political diversity, this continent is made up of 54 independent countries, so it is normal that the regulations that regulate the issue of foreign investment are different, varying from country to country. However, regulations may also be the same, varying only in some points.
For example, the investment law of the Republic of Guinea-Bissau resembles Cape Verde's investment law in some points, while varying in others. Both the investment law of the Republic of Guinea-Bissau and Cape Verde offer the same rights and guarantees, namely the freedom to private initiative, security and protection, and the transfer of funds abroad. The resolution of conflicts in both can be undertaken through conciliation and arbitration and recourse to the courts. However, they defer to the incentives offered.
Due to the COVID-19 pandemic that has plagued the world at large since February 2020, there has been a standstill of any foreign investment in Cape Verde in the last 12 months.
A major constraint regarding the attraction of foreign investments is the small size of the Cape Verdean market, which has an impact on insurance. Because of the lack of export diversification and the imposition of the global economy, investors from foreign countries are required to make adjustments with high costs, forcing them to assume greater risks.
There are also constraints regarding the division of the territory of Cape Verde and how its distance from the main markets creates additional costs for the small economy. Transport costs are quite high, both for importing raw materials and for distributing the finished product between islands and especially to international markets. In terms of country management, it requires heavy investments in infrastructure – telecommunications, health, education, transport (including ports, airports and roads) and the installation of administrative machinery, among others, thus making more efficient management impossible.
Due to the COVID-19 pandemic that has plagued the world at large since February 2020, there has been a standstill of any foreign investment in Cape Verde in the last 12 months.
Always seek to collect as much information as possible through lawyers or other competent authorities before starting any investment. View the various possible investment options.
It is wise to invest in a sector understood as the future of the Cape Verdean economy and the development of foreign investment, such as tourism, renewable energies, the ocean economy, the digital economy and creative industries, among others. And above all, do not let yourself be affected by these obstacles; keep trying and persist. Investing in the nation has its advantages, as Cape Verde has an attractive policy of incentives, a rich business environment, a mature democracy, and a modern society with a wealth of transformation, diversity and opportunity. The country has many stories of success and economic progress, not to mention the last and most important factor – sun, beaches and music festivals throughout the year.
Yes. In 2019, there was a project in the portfolio to update the legislation related to the tourism and foreign investment sector, compiling it into a single code. Since the government has been adapting Cape Verdean legislation to new needs after the pandemic, we will certainly have new laws to motivate and attract more foreign investment.
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Since I was a child, my dream was to be a lawyer. My grandfather was a proxy for most of his emigrant family and friends; he helped people who were illiterate or with little knowledge in drawing up letters, contracts or other documents, so from an early age I had contact with books and legal subjects. I studied law at the Universidade Clássica de Lisboa in Lisbon, Portugal, where the contact with full professors motivated me even more. I had the opportunity to do my training with a great lawyer, with whom I learned that being a lawyer is to be constantly studying and learning.
What inspires me to deliver the best possible results for our clients is definitely the desire to be useful and make a difference in people's lives.
I have already had some good achievements in my career, from integrating teams in major corporate operations such as being a jury in public tenders and providing advice in the preparation of national legislation, in addition to some victories in lawsuits with great national repercussions. However, I think the best achievement, which represents an international recognition of my work, was being called to be Vice President of the Specialized Commission for the Creation of the CPLP Economic Community Arbitration Center.
Our Office is working hard to be recognized internationally as a specialist in the field of foreign investment, particularly in the field of tourism, in which we provide advice to investors from the initial business feasibility study to its implementation and consolidation in the market.
Carla Monteiro, Founding Partner
Carla Monteiro & Associados
Address: Entrance of Santa Maria, Garantia Building, 1st Left, PO Box No. 107, Santa Maria –Sal Island, Cape Verde
Telephone: + 238 2422510
Fax: +238 2422550
Email: cmonteiro@cmalex.net
Website: cmalex.net
Instagram: Carla Monteiro & Associados | Carla Monteiro
Facebook: Carla Monteiro & Associados, Sociedade de Advogados, RL | Carla Monteiro
Linkedln: Carla Monteiro & Associados | Carla Monteiro
Carla Monteiro is the founder of Carla Monteiro & Associados and a member of the Bar Associations of both Cape Verde and Portugal. In addition to speaking Portuguese, English, French, Spanish and Italian, she is also the co-author of two real estate law guides.
Carla Monteiro & Associados was formed in October 2008 through the partnership of Carla Monteiro and Portuguese lawyer Alexandra Pereira. Since then, the firm has since expanded to include several additional partners, lawyers and associates, delivering excellence in the fields of corporate, tax, insurance, real estate & tourism, litigation and foreign investment.
Canada, and many other developed countries besides, is struggling under a backlog of criminal and civil cases awaiting their date in court. This has had a knock-on effect for family law, adding unneeded stress to couples and parents during some of the most difficult times of their lives.
This month, we have the pleasure to hear from Laura Bruyer and Tiffany Stokes of Bruyer & Mackay LLP, who have a vision for how the legal profession can rise to meet this challenge. In this article they explore the factors behind the case backlog and how its adverse effects on families in Canada can be mitigated, while also drawing upon Laura’s own career development and Bruyer & Mackay’s plans for future progress.
Even before 2020 there was an immense glut of family law cases in the Canadian legal system, with years-long pipelines for custody trials in some provinces. How did this backlog come about?
There is no one cause that you can blame for the backlog. Changes in the economy, whether good or bad, create work for family lawyers. Many of our clients are competing for limited trial time at the courthouse because there are also other areas of law that need it. Many cases that go to trial require several days of trial time, which adds to the time it takes to get before a judge. Hiring a family lawyer is an expensive step, and there may be times when a client has to self-represent, which can cause delays as they try to navigate a complex system on their own. Our courts have done an excellent job of reviewing family law and trying to implement processes to address the backlog, but it is very challenging because the wave of clients is unrelenting.
What impact have escalating trial delays had on the parents and spouses caught up in them?
More than anything, it contributes to animosity between parents and spouses. Litigation is stressful and overwhelming at the best of times, much less when it is dealing with your everyday life – your children, your finances, and your property. Many clients feel the need to continue to “gather evidence” and be hyper-vigilant toward the other parent or party. Families have trouble healing and working together positively when they have a “litigation cloud” hanging over their heads.
Many of our clients are competing for limited trial time at the courthouse because there are also other areas of law that need it.
In what way has the COVID-19 pandemic and the rise of remote hearings affected the backlog?
The pandemic brought a number of challenges for our clients. First, many clients were navigating the ever-changing public policies and trying to co-parent. This is very difficult if the parents do not agree on how to interpret or implement said public health protocols, and the constant messaging of “creating a bubble” and limiting social contacts was confusing to parents who had custody or parenting schedules in place. This created a lot of litigation because there were so many unknowns, and many parents felt the need to go to court to try and change their parenting schedules to reflect the messaging they received from public health.
In addition to parenting issues, we also had a number of clients who were suddenly out of work. Many clients lost high-earning jobs and therefore needed an urgent adjustment to child or spousal support. This created more and more cases before the court to adjust support, particularly if that support was being enforced through the Maintenance Enforcement Program, as it could only be changed with a court order.
There was a rocky start in getting remote systems in place for hearings. This was to be expected; our generation had never grappled with a pandemic, and it caught so many of us off-guard. Our courts did their best in assessing the need for remote hearings and implemented that technology quickly, but it still limited how fast you could proceed to court and there were definitely delays in the beginning. You had more people competing for fewer spots. Also, appearing before a judge now requires more steps than it used to, which means it takes longer to get into court and is more costly to clients.
In Ontario’s Unified Family Court, family law cases are typically given a court date within 20 weeks after they are deemed ready to procced to trial. Would a wider implementation of this system help to address the litigation backlog in other provinces?
Many of those in our judiciary and members of the family profession have worked hard on implementing a unified family court in Alberta, and we hope that one day it will come to fruition. We believe a unified family court would help streamline systems, which will in turn reduce backlogs. During the pandemic, there were several new procedures implemented that changed rapidly. The rules for the provincial court and our superior court were different. With a unified system, the rules and procedures would be consistent for all families and would be more predictable for lawyers and the public in general. This would avoid missteps and create a lot of certainty and consistency. It would help save costs for clients, and more importantly, it would create greater public confidence in our system.
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What advice would you give to families facing a lengthy struggle to have their case heard?
Our advice is to “focus on the big picture”. Litigation is not always the answer, and in fact, we always review settlement and alternative dispute resolution options with our clients before going to court. We offer mediation, collaborative family law, and arbitration in our firm to meet these needs. Sometimes a small gain in property or support does not justify the cost and effort that is expended in court to get there. For parenting, we always tell clients that the most important rule is to do what is in the children’s best interests. Our lawyers and courts are well-versed in the work done by the Alberta Family Wellness Initiative to teach us how conflict and toxic stress harms the development of children’s brains. Lengthy and drawn-out litigation is not in children’s best interests, and it is important that we try to avoid that if at all possible.
Do you expect to see any regulatory changes to address the continuing build-up of cases?
At the superior court level, we have seen may changes implemented, including the introduction of a docket system to triage cases. The goal is to have clients attend an early intervention alternative dispute process, particularly when there are parenting issues, in order to reduce conflict between the parties. The benefit of the docket system is to get each matter into the most appropriate system that can meet the parties’ needs.
In addition, our courts have implemented strict timelines regarding the filing of materials. This is a concerted effort to ensure that scheduled matters proceed in a fair and timely manner. As with most new processes, there is a significant learning curve. Throughout the course of the pandemic, judges, courthouse support staff, lawyers, and clients have had to adapt to ever changing technology and lengthier wait times.
Litigation is not always the answer, and in fact, we always review settlement and alternative dispute resolution options with our clients before going to court.
What do you feel the legal sector could do to ease the burden of the ongoing backlog on the courts and the families affected?
Lawyers can play a major role in this. We all need to work together in reviewing settlement options with our clients, helping them focus on the big picture, giving them confidence in the system, and advising to proceed with litigation only when necessary. The work that you do not see is that, outside of the courthouse, our family law bar is actively working on settling cases and supporting families. Our work is deeply rooted in the law and jurisprudence, but at the end of the day, we recognise that we are helping real families who make up the fabric of our society. Quite often our clients’ goals and interests are not “being right in law” or “winning”, but rather supporting their children’s needs, ensuring their financial stability, and reducing their stress.
Litigation is a useful tool that is sometimes needed, but first and foremost, lawyers must support their clients in finding alternatives to court in order to achieve their goals and interests. One of the best ways to do so is to identify the issues at the outset of a file, direct clients to agencies that can provide support to them (i.e. psychologists, parenting experts, coaches) and encourage them to focus on the future after the initial trauma of separation.
When I was in middle school, my father asked me what my plans were with respect to my post-secondary education. At that time, and without really considering it to any great extent, I indicated that I was going to be a lawyer. I was a huge fan of the British television series Rumpole of the Bailey and had read all of John Mortimer’s stories growing up.
Upon graduating high school, I entered University in a Bachelor of Arts Program majoring in Honours Sociology. At that time, you could still get into law school after two years in an undergraduate program. I entered university at 17 and by the age of 19, I was starting my first year of law at the University of Alberta.
Following graduation, I articled at a large downtown firm in Edmonton, Alberta, before going to work as a general practitioner in a small firm. It was there that I gained significant experience in all matters related to litigation. I originally thought that I would practice primarily in criminal defence work; however, I quickly realised that any contribution I could make was best suited for family law. I dealt with a number of clients that were devasted by separation, ongoing parenting battles, and concerns over their financial security.
In 2005, I met Michelle Mackay when we were on the opposite sides of a very difficult family law file. We decided following that file that we wanted to work together as opposed to opposite each other. In November 2005, I joined Michelle at her firm Gordon Zwaenepoel. Upon the retirement of Marie Gordon and Susan Zwaenepoel, Bruyer & Mackay was formed.
The firm has more than doubled in size since its inception in 2019; we currently have 17 lawyers and an equal complement of support staff. In terms of the workplace, we have taken significant steps to ensure that not only our clients are supported but our staff are as well. This includes counselling support for staff, bringing in a psychologist on a quarterly basis to address issues that affect our staff (i.e., dealing with difficult clients, regular firm outings and team building endeavors, and stressing the importance of time off).
With respect to firm values, we pride ourselves on the following:
When I was approximately eight years old, my parents separated for a period of time. Fortunately for me, they were able to work out their differences and have been married for over 50 years. However, I believe that that experience, which was traumatic at the time, helped shape me into the lawyer I am today. I can empathise with children whose parents are going through a separation, as well as the parties themselves.
In my early days as a young lawyer struggling to build a practice, most of the matters I dealt with were family law in nature. After approximately 8 years of a general practice, I determined that I would focus on family law, given there was a significant need and I felt my skills could best be utilised there.
Since doing so, I have run a significant number of family law trials and appeared many times in front of our Court of Appeal. I have discovered that, if anything, over the last nearly 30 years of practice, the need for competent, caring family law practitioners has only grown. I am very proud that our partnership created a firm to fill that need.
I can empathise with children whose parents are going through a separation, as well as the parties themselves.
I have been involved in a number of trials in which I felt very strongly about my client’s position, the wrongs he/she had suffered, and the need to see justice done. It is those matters that I feel most proud of with respect to my professional achievements.
However, as a whole, my proudest achievement has to be the formation of Bruyer & Mackay. We have been able to attract a high calibre of lawyers wanting to practice at our firm. We can offer the public every available service for their family law matters. Despite exponential growth over the last year, we have maintained a close and cohesive group of lawyers and staff. Significant mentoring of associates ensures that quality client services will be provided for a long time to come.
Given the changes over the last 18 months, which included:
the partners are hoping for a period of relative calm over the next few months. However, we will be continuing to present at the Legal Education Society of Alberta (LESA), teach family law at the University of Alberta, act for children, ensure that each lawyer of our firm carries at least 3 pro bono files, provide free legal information and advice through the Edmonton Community Legal Center, sit on the board of the Association of Family and Reconciliation Courts to improve the lives of children and families through resolution of family conflict, participate on various community fundraising efforts including Habitat for Humanity and the Kids Kottage, and ensure that quality family law services continue to be provided throughout Alberta.
Laura H Bruyer, Barrister & Solicitor
Tiffany S Stokes, Barrister & Solicitor
Address: Suite 201, 11611 107 Avenue, Edmonton, Alberta T5H 0P9
Telephone: +1 780 425 9777
Email: l.bruyer@bruyermackay.ca, t.stokes@bruyermackay.c
Bruyer & Mackay LLP is one of the largest family law firms in Alberta. We pride ourselves on being the leader in family law and offering superior client service and representation. We offer a breadth of family law services including litigation, arbitration, collaborative family law, as well as supporting services.
In addition to the services we provide our clients, we consider ourselves “ambassadors” of family law. We want the public, the judiciary, members of the profession, and those considering law as a career to know that family law is an extraordinary, challenging, and critical area of law. Family law touches upon almost every other area of law – corporate/commercial, real estate, immigration, criminal, human rights and bankruptcy (to name a few) are all areas that impact our cases. You need to be a highly skilled and competent lawyer to do an effective job for your clients and to uphold the administration of justice. You also have to be able to work well with different personalities and support clients who are often in crisis. Our lawyers publish papers, contribute to continuing education efforts, teach as sessional instructors at the University of Alberta Faculty of Law, sit on boards, and provide countless hours of pro bono work. We work to elevate the status of family law.
We are striving to make Bruyer & Mackay a “one stop shop” so that clients, who are going through perhaps one of the most difficult times in their lives, can benefit from a lawyer knowledgeable in separation and divorce and a firm that can also handle their real estate transactions, as well as will and estate planning. In time, we hope to team up with counselling services to ensure clients are fully supported from the outset of their separation.
The purpose of a vaccine passport is to allow governments and private businesses to confirm to what degree a person may be at risk of contracting COVID-19 or spreading it to others around them. In its most basic form, a vaccine passport is a (usually) digital record that confirms whether its bearer has received two, one or no doses of a COVID-19 vaccine. This is the model that the UK’s NHS COVID Pass uses. The EU Digital COVID Certificate (EUDCC) goes a step further by also containing information about its bearers’ recent test results and recovery status from COVID-19.
The EUDCC was implemented on 1 July, allowing carriers – who are either fully vaccinated, have contracted and recovered from COVID-19, or have tested negative for the virus within the past day – to use a digital or printed QR code to travel freely among the EU’s 27 member states. Some of these members have instated their own digital certificates for use within their borders, such as France’s health passport that regulates entry to clubs and (soon) bars, cafes and restaurants.
As of the time of writing, the US has no plans to implement a similar system at the national level, with individual states left to determine whether (and how) they will provide residents with a method of accessing state-verified health records. Meanwhile, the NHS COVID Pass remains an opt-in measure for businesses in the UK, though Prime Minister Boris Johnson has stated an intention to “to make full vaccination the condition of entry to nightclubs and other venues where large crowds gather” by the end of September, necessitating its uptake by the general public.
There are few historical precedents for such large-scale monitoring of a health condition. What legal complications will need to be considered in relation to this drastic measure? We spoke with a range of legal experts to get a sense of what might lie ahead.
There are few historical precedents for such large-scale monitoring of a health condition.
As far as the UK goes, one of the most significant pieces of legislation that vaccine passports must contend with is the Human Rights Act 1988. Article 8 of the Act guarantees the right to a “private and family life”, which is interpreted broadly to include personal identity. As John Szepietowski of Audley Chaucer Solicitors points out, this could be said to extend to one’s medical status as well, though this right may be suspended “in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.”
Key to the issue here is whether or not the use of vaccine passports is proportionate to the crisis at hand. While necessarily restricting some movement, this would be limited only to specific venues and would not prevent other meetings or social interactions more broadly. By virtue of being so limited in scope, Szepietowski argues, the passports are unlikely to infringe upon Article 8. Other notable Articles of the Act – such as Article 2’s “right to life” or Article 5’s “right to liberty” – may be pertinent to the question of mandatory vaccination, but are sufficiently separated from the issue of passports as to pose little concern in this area.
A key factor that has delayed widespread implementation of vaccine passports has been its lack of availability to younger, less vulnerable adults as vaccinations for the more at-risk have been prioritised. As Szepietowski notes, the creation of a system that tacitly restricts freedoms based on age raises the possibility of discrimination.
“Beyond this, however, there could still be age discrimination because more young people are concerned about the long-term impact of the jab,” Szepietowski continues. “This links to gender discrimination as well, as more women than men have concerns about fertility and the vaccine, and so are less likely to take the vaccine. Likewise, those from Black or Minority Ethnic backgrounds are less statistically less keen on the jab, and so passports could be seen to discriminate against them as well.”
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This situation for young people has begun to shift, as all adults in the UK have now been given the opportunity to receive two vaccinations (though not all have yet been able to attend their appointments), but issues of discrimination in other areas, such as race, have risen to the fore. The EUDCC has already come under fire from the African Union for not recognising the Indian Covishield vaccine, which has been distributed to many low- and middle-income countries through the EU-supported COVAX programme, and vaccine uptake among ethnic minorities remains proportionately low.
As age and race are classed as protected characteristics under the Equality Act, there may be a legal basis to claim discrimination here. However, a strong counterpoint exists in the vaccines’ availability to all, with no need to bring an ID or any more personal information to a walk-in vaccination centre other than a name, address and date of birth. Once vaccine rollout programmes in the UK and elsewhere begin to wind down, the state of being unvaccinated is far more likely to come down to personal choice than an act of discrimination against a protected group of people.
Perhaps the biggest challenge standing in the way of widespread vaccine passport implementation is the security risk represented by the data that the passports would be based upon. Any kind of medical data is already valuable due to its personal nature, and its sensitivity only increases when it is relied upon for travel and access to local facilities.
A particular concern raised by Tim Mackey, principal security strategist at the Synopsys Cybersecurity Research Centre, is that of third-party apps – whose use has become widespread in Europe as part of accessing the EUDCC – and the possibility of a bug or an outside attacker disrupting their function. This point ties in with the need to ensure that a digital passport’s authenticity in the first place.
Any kind of medical data is already valuable due to its personal nature, and its sensitivity only increases when it is relied upon for travel and access to local facilities.
“Significant coordination between international entities is required to ensure that the data recorded by the app is correct and complete,” Mackey explains, noting that the act of safely transferring data to the app would be its own challenge. “Once in the app, the data needs to be verifiably secure and stored in a tamper-evident form that itself can’t be modified.
Balfour+Manson chairman Elaine Motion raises further questions regarding how the information pertinent to vaccine passports will be handled by the private sector: “For example, if shown to nightclub personnel, do they store the information and if so how, for how long and who can access that information?” The question of how long a government organisation might retain the data is also unclear. Whatever the case, the implementation of a passport requirement for travel and domestic activity will require intense scrutiny to ensure that the sensitive information at its base is not mishandled.
Potential employment-related issues with the passport system largely intersect with concerns about discrimination based on vaccination status. While most offices have adopted a vaccine-positive mentality, and “no jab no job” policies have been instituted in many areas, a small percentage of the workforce who have voiced opposition to being compelled to be vaccinated will likely oppose the requirement of a passport to verify their medical history as a prerequisite for work. If these employees also belong to a protected group, disciplinary action against them may result in a discrimination claim. The same issue may arise if it is perceived that employees are treated differently based on their vaccination status.
In cases where employees are expected to work with those most vulnerable to COVID, of course, the situation may be different. From October, anyone working in a CQC-registered care home in England for residents requiring nursing or personal care will be required by law to have received two doses of a COVID-19 vaccine unless they are subject to a medical exemption. If any other professions should receive this treatment, however, they are likely to only make up a fraction of the overall UK workforce, however.
A small percentage of the workforce who have voiced opposition to being compelled to be vaccinated will likely oppose the requirement of a passport to verify their medical history as a prerequisite for work.
Furthermore, Katten Muchin Rosenman partner Christopher Hitchins points out that employers would need to comply with GDPR when storing this information, sparking its own host of pitfalls. “According to the UK data protection regulator (the ICO), the reason for recording your employees’ vaccination status must be clear and compelling,” Hitchins notes. “If you have no specified use for this information and are recording it on a ‘just in case’ basis, or if the employer can achieve their goal without collecting this data, they are unlikely to be able to justify collecting it.”
A company that mandates a vaccine passport would therefore do well to ensure that its need is genuine and take all due care to avoid altering its treatment of employees based on their COVID-19 records.
Perhaps the only certain result of the widespread rollout of vaccine passports is the strain that it will place on the affected industries. The travel, hospitality and leisure sectors, already hampered by a year and a half of slackened demand and heightened regulation, will be further pressed by the responsibility to validate these passports and handle situations with customers who feel they ought to be exempt.
Lucy Gordon, Director of the Employment team at Walker Morris, stresses that the added pressure may be too much for struggling businesses to handle. She states: “Employers will need to allocate resources to checking passes, and train staff on what to look out for and how to handle difficult cases. This all comes at a time when the hospitality industry is already strained and suffering additional resource issues due to the “pingdemic”, with staff being forced to isolate or having to stay at home to look after family members.”
It is also unknown for how long the vaccine passport system will last – likely until the WHO declares the pandemic finished, whenever that may be. Until then, we will watch with close interest as the situation develops in the UK and internationally.
While first being criticised for allegedly not having placed the protection of the environment at the heart of their strategic development decisions, companies are now accused of "greenwashing" consumers.
As such, on 28 January 2021, the European Commission published the result of its "Screening of websites for ‘greenwashing'". This screening, or so-called "sweep", was conducted on the grounds that "national consumer protection authorities had reason to believe that in 42% of cases the claims were exaggerated, false or deceptive". The sweep of 344 claims found that:
On its website, the European Commission states that greenwashing refers to "companies giving a false impression of their environmental impact or benefits".
In 2012, the French Agency for Ecological Transition published a specific anti-greenwashing guide. In this guide, greenwashing is defined as:
The report already highlighted the fact that the three main greenwashing mistakes made by companies are to make excessive promises, to lack sufficient scientific data to back up claims and to use confusing visuals which make consumers believe that the product has a positive impact on the environment, even when it does not.
On its website, the European Commission states that greenwashing refers to "companies giving a false impression of their environmental impact or benefits".
More recently, on 29 April 2020, the French professional regulatory authority for advertising (Autorité de Régulation Professionnelle de la Publicité – ARPP) published an update on its recommendations around fair trade, in force since 1 August 2020. This document defines "ecological argument" as "any claim, indication or presentation, in any form whatsoever, used primarily or incidentally, establishing a link between the brands, products, services or actions of an advertiser, and respect for the environment". While the recommendations firstly aim to prevent adverts which denigrate fair trade, they provide a number of rules around loyalty, clarity, truthfulness and proportionality of the messaging when referring to environment-related allegations. There is also a specific set of recommendations relating to logos and labels, raising awareness of the fact that they are also part of a company’s messaging.
In April 2021, the French Government introduced an increase of the existing fine for misleading commercial practices to up to 80% of the false promotional campaign cost when it comes to claims related to the environment. This is the new step of a brass-knuckle approach that was initiated through the so-called "duty of vigilance" law introduced in 2017 which requires large French companies and groups to establish a vigilance plan to prevent and detect violations – in France or abroad, by its subsidiaries and subcontractors – of human rights and the environment and to preserve the health and safety of the employees involved. A number of claims on the grounds of alleged breach of this duty of vigilance law have already been filed before French Courts.
Interestingly, and right before the above fine increase, in March 2021, the French Agency for Ecological Transition published a report designed to demonstrate why the claim "carbon neutral" should be banned and to push for a law to be enacted in this respect.
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At a European level, the new Sustainable Finance Disclosure Regulation (SFDR), which had its first provisions enter into force in March 2021, not only asks funds to disclose what they do to promote environmental, social and sustainability objectives, but to also provide an assessment of the main negative impacts their investments will have on such objectives. This is the way selected by the European legislator to try to find a balance in green marketing initiatives.
In the United States, on 3 March 2021, the SEC’s Division of Examinations announced that one of its annual examination priorities will be to review ESG funds’ advertising.
Client Earth claims to have filed the first such claim in 2019 against BP, and later against Chevron (which was also subject to a claim in the United States in March this year). In the United States, ExxonMobil, Wesson Oils, and Tyson Foods Inc. have each been targeted by greenwashing claims. Still in the United States, it is worth noting that securities litigation has also been launched by investors claiming that they purchased securities in reliance of false green marketing.
It appears that more is to come when looking at Client Earth's "Greenwashing Files" on its website, stating that "there may seem to be nothing wrong with companies highlighting ‘green’ projects. But these ads are a problem where they create a misleading impression of their overall business and its environmental harms". Companies such as Aramco, Chevron, Drax, Equinor, ExxonMobil, Total or Shell are mentioned.
ExxonMobil, Wesson Oils, and Tyson Foods Inc. have each been targeted by greenwashing claims.
To conclude, the law and rules around greenwashing are still works in progress. This consequently makes companies' lives complicated as they are being asked to promote their actions to preserve the environment while, when doing so, they are exposing themselves to criticism. One can realise that we are at a difficult stage where what is expected from companies is not yet regulated and experience shows that this is the recipe for a future wave of litigation.
Sylvie Gallage-Alwis, Partner
Signature Litigation
Address: 49/51 Avenue George V, 75008 Paris
Tel: +33 (0)1 70 75 58 00
Email: sylvie.gallage-alwis@signaturelitigation.com
Signature Litigation is an international law firm founded in 2012. Its senior lawyers bring years worth of experience to tackle multijurisdictional transactions and disputes, specialising in high value commercial litigation and arbitration.
Sylvie Gallage-Alwis became one of the founding partners of Signature Litigation’s Paris office after spending 10 years practicing at a major international law firm. She leads SL’s product liability practice and represents a variety of globally recognized manufacturers across a broad range of industries.
Following decades of economic instability due to fiscal mismanagement, corruption and conflict, the government of the DRC implemented economic reforms. What were these reforms?
During the period 2001 to 2014, a series of institutional reforms were undertaken by the government administrations, supported by economic reforms that had the implementation of the country’s global development goals as their foundation.
These reforms were structural and were accompanied by infrastructure programmes, the strengthening of the banking system, and the improvement of governance, which led to the reform of state-owned companies and the liberalisation of the energy and insurance markets.
These liberalisations have led to a change in legislation. In this context, we can cite the mining code in 2001 – which has been amended to date – the investment code with the creation of the National Agency for the Promotion of Investments, the law on energy, the hydrocarbons code, the insurance code, the new business law (OHADA law), the law on telecommunications, the law against money laundering and terrorist financing and the creation of dedicated agencies, the law on subcontracting, and others besides.
Did these laws have an impact on attracting commercial activity?
There has been a definite impact as a result of changes in legislation, especially on business law. The creation of companies has become flexible, which has encouraged the creation of new businesses, and net banking and a competitive market have developed following the strengthening of the banking system.
There has been a definite impact as a result of changes in legislation, especially on business law.
GDRC efforts from 2001 to 2014 yielded some improvement, but a drop in commodity prices in 2015 has resulted in significant economic instability yet again. How have things progressed since?
After the instability of 2015, there was an economic rebound with a double-digit growth rate. However, there was a slowdown following the political instability which calmed down after the elections and the handover of power between the elected president and the outgoing one. Then came the COVID-19 pandemic, which put a damper on things.
Now, the government is making efforts to ensure that the recovery is effective with or without COVID-19.
What current challenges are commercial businesses facing in the DRC?
The pandemic is the new challenge for doing business, and the traditional challenges of corruption, development of news solutions and price stability yet remain.
What should businesses be doing to see these challenges through?
Companies in the DRC must reinvent themselves and propose new solutions to get out of the pandemic, and then they must take advantage of the legal tools that have been set up (including new laws and the liberalisation of economic sectors such as insurances, energy, telecommunications and new technologies) to help them thrive in a market of more than 80 million consumers. With the presence of countries such as the States of the European Union, Asia (China, Japan, AUE and others), the African countries, the USA and Great Britain, we are rethinking the tools to facilitate exchanges by re-launching the chambers of commerce.
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Liliane Mubanga, Senior Executive
Thambwe-Mwamba & Associés
Address: 364, Blvd du 30 juin, Im. Kiyo ya Sita, 6th floor, Kinshasa, Democratic Republic of the Congo
Tel: (+243) 817 100 018
Email: cabinet@thambwe.com
Thambwe-Mwamba & Associés is a law firm based in Kinshasa, capital of the Democratic Republic of the Congo. Its lawyers work in a human-sized unit to better serve their clients across a range of sectors including banking, general trade, construction, mining and the hotel industry. The firm covers legal advice in various areas of law, but especially in business; they specialise in creation of companies, drafting of deeds, special contracts and due diligence. Thambwe-Mwamba’s team synergise their skills to master a broad range of areas of law, covering all traditional legal services and continually building upon their knowledge base across multiple disciplines. The firm combines its ever-deepening expertise with an ability to build personal relationships with clients and pursue the best possible outcome for their needs.
Liliane Mubanga
I am a lawyer registered at the Bar of Kinshasa/Gombe in the Democratic Republic of the Congo. I have been a member of the Bar Council of the said Bar for a term of four years. I am a member of the law firm Thambwe-Mwamba & Associés, where I am the Senior Executive. I am also the Mining and Quarrying attorney with the senior partner, Maître Alexis Thambwe-Mwamba.
In a broad sense, what policies does the South Korean government use to oversee foreign investment?
In a broad sense, Korea is quite a foreign investment-friendly state. However, we would say the Korean government approaches foreign investments coming into Korea and foreign investments going outside of Korea differently. Generally speaking, foreign investments coming into Korea are freely allowed, as long as they are properly reported. On the other hand, foreign investments bounding outside of Korea are more regulated and often require prior approval from the Korean regulators such as the Bank of Korea.
How has the 2017 Foreign Investment Promotion Act (FIPA) altered the regulation of foreign investment in the country?
The Foreign Investment Promotion Act (“FIPA”) was first enacted in 1998. Since the enactment of the FIPA, the Korean government has implemented policies to provide several incentives to foreign investors in order to attract more foreign investments into Korea. These incentives include tax incentives, subsidies, and foreign investor visas.
In the past, the Korean government’s interest was the amount of investment made by the foreign investors. However, in my view, more recently, the Korean government’s interest has shifted to the quality of the investment by attracting foreign investments in high value-added industries.
Are there other significant laws governing how foreign investment is handled?
FIPA applies only to certain foreign investments. The primary form of foreign investments first coming into Korea is equity investment (e.g. corporate formation). FIPA applies to a foreign investment whereby the foreign investor purchases shares of a Korean company in the amount of at least KRW 100 million (approximately USD 88,370) and the foreign investor will own at least 10% of shares in the Korean company as a result of the investment. In other words, if the foreign investor’s investment is less than KRW 100 million, we will have to look if any other law or regulations apply. For example, in such a case, the Foreign Exchange Transactions Act (as well as regulations promulgated thereunder) could apply.
In my view, more recently, the Korean government’s interest has shifted to the quality of the investment by attracting foreign investments in high value-added industries.
What regulatory issues are commonly encountered by foreign individuals or organisations attempting to invest in South Korea?
As we mentioned above, as long as the foreign investor makes the proper report for the foreign investment into Korea and is substantiated with the supporting documents, then the foreign investor should be in good shape.
Making the proper report is quite important because it could delay and complicate the process when the foreign investor attempts to later repatriate its investment back to its home state.
How would you advise that foreign investors avoid or overcome these hurdles?
We would say the foreign investors consult with a lawyer or an expert beforehand so that any required report is properly prepared and made.
About Rieu Kim and Hyuk Jun Jung
Rieu Kim: I have been with Barun Law since 2010 and before that I worked as an attorney at a boutique corporate law firm in California and at a major Korean electronics company.
Hyuk Jun Jung: I have been with Barun Law since 2014 and before that I worked as a Judge Advocate with the Korean Army.
Rieu Kim: Together, we have extensive experience advising Korean and international companies in relation to both contentious and non-contentious matters in Korea and outside of Korea. More specifically, we frequently advise clients in relation to their corporate activities in and outside of Korea, such as foreign investments, corporate formation, corporate reorganisations, contract reviews, M&A, joint ventures and employment.
Hyuk Jun Jung: We also represent clients in arbitration cases before the arbitral bodies, such as KCAB, the ICC and the HKIAC. I also represent clients in complex civil and commercial domestic litigation cases before the Korean courts. Our balanced experience in both advisory and contentious matters allow us to comprehensively understand the legal issues the clients are currently facing and may face, thereby allowing me to better support them and to create more values to them.
Rieu Kim, Senior Foreign Attorney (Partner)
rieu.kim@barunlaw.com
Hyung Jun Jung, Partner
hyukjun.jung@barunlaw.com
Barun Law LLC
Address: Barun Law Building, 92 Gil 7 Teheran-Ro Gangnam-Gu, Seoul 135-846
Tel: +82 2 3476 5599
Fax: +82 2 3476 5995
Website: barunlaw.com
Barun Law was founded in 1998 and quickly took its place among Korea’s top full-service law firms. It is now comprised of over 220 attorneys who, together with highly qualified support staff, provide a full range of legal services.
The last 18 months have changed how the world works, and the legal sector is no exception. We seem to have almost daily announcements from firms that are planning to adopt long-term flexible working policies, permanently reduce office capacity and introduce a blend of office and home-based working. As such, this hybrid model of working - mixing both virtual and in-office – is likely to become the norm in the post-pandemic world.
However, while virtual working in some form is here to stay, we are also seeing an emerging trend of law firms moving a few people into new markets without establishing a “real” base. These law firms “without real estate” could be a step too far, particularly when it comes to providing the best service to global clients, supporting local communities and nurturing and attracting the next generation of legal talent.
Clients need expert local knowledge they can trust
Interlaw has argued in the past that corporate “flag planting” – where major firms open an office in a jurisdiction and parachute in a few lawyers with the belief that they will win work by trading upon their reputation and track record - is no substitute for in-depth market knowledge that only established local firms can provide, particularly for global clients.
While we are working in different times, virtual working is not a completely new phenomenon. Pre-pandemic, we were already operating in a world where clients were increasingly requiring borderless, tech-savvy, enterprising and accessible legal services providers that could combine global reach with in-depth local expertise. Elite global networks had become agile, digitally enabled organisations capable of servicing the most complex, multi-jurisdictional client needs and providing a real alternative to the “traditional” international law firm model.
However, to not have an office base in an overseas jurisdiction at all would arguably go against what clients really want to see from their law firms. Pre-pandemic, Interlaw conducted global research among general counsel to find out what they wanted from an international legal provider, which revealed they were more focussed on the calibre of the service they received than the structure of their provider. With this focus on quality in mind, many general counsels also reported difficulties in finding a single law firm with the geographical reach in the practice areas they needed and reported issues around inconsistent working practices between the offices of international firms, as well as inconsistent local insight and cultural awareness.
These law firms “without real estate” could be a step too far.
This need for consistently high standards across all geographical markets is arguably impossible to deliver if the firm chooses not to put down firm roots in the jurisdictions in which it operates. Ours is a profession built on trust and relationships – clients want to know they can trust their legal provider to deliver the best service and advice, both in terms of legal knowledge and understanding the nuances of the local culture of that jurisdiction.
While we have all had to manage our client relationships virtually over the past eighteen months, clients still want the reassurance that their firm has an established base in the relevant jurisdiction. Having no office gives the impression that the presence in that region is transient, which can be withdrawn as quickly as it can appear. In a time of uncertainty, clients want as much certainty as possible – something only an established, expert firm in-country can provide.
Local firms provide much more than legal knowledge
One thing that always strikes me when I talk to our partner firms is just how involved they are in their local communities. They offer so much more than high-quality legal advice - they support local initiatives, nurture home-grown talent by encouraging people from all backgrounds to consider a career in law, and provide pro-bono advice to charities and other not-for-profit organisations. Our lawyers sit on the boards of organisations that want to drive greater diversity in the legal sector, are heavily involved in their local jurisdictions’ networking groups and are recognized for their corporate social responsibility work in supporting vulnerable groups in their society.
For example, following the devastating blast in Lebanon last year, our partner firm, Tohme Law Firm, provided pro bono legal support to NGOs and supported an initiative called “Together LiBeirut”, whose volunteer members are dedicated to helping with the reconstruction effort in the city, as well as providing medical and mental health support to those impacted by the blast.
In a time of uncertainty, clients want as much certainty as possible – something only an established, expert firm in-country can provide.
These are things that you do not get if you move a few non-local lawyers into a region without establishing those deep local connections.
The next generation of lawyers need to experience the office environment
It has been documented by many commentators that junior lawyers are likely to be the hardest hit by the pandemic. For these lawyers, it has resulted in a complete change to both how they work and how they are mentored and coached towards the next stages of their careers.
At the end of last year, Interlaw set out to gauge the impact the huge upheaval has had on the next generation of legal talent and their career ambitions. Interviewing over 100 lawyers at senior associate level and below as part of our next generation lawyers initiative, many acknowledged the positives that could come from a more hybrid way of working, including a better work / life balance and an improved use of technology in the legal industry to streamline some of the processes.
However, while working from home and increased access to digital platforms have several major benefits, the respondents acknowledged that this had also resulted in longer working hours due to a lack of clear definition around the working day. Importantly, they also miss face-to-face interaction with peers, mentors and clients – a crucial factor in the development of the next generation of legal talent.
The balance between more formal and informal mentoring is something that was also discussed at some of our recent virtual events. While formal mentoring and training are clearly important, many also talked about how they are missing the more informal side of learning about the profession, such as stopping by someone’s office for a catch-up or working closely alongside their mentor on a piece of work. As one of our participants said: “The best mentorship happens if it comes naturally.”
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So, if law firms believe that they can operate without a base in a country, but via just a few individuals parachuted in, they run a real risk of missing out on the legal talent of the future. Similarly, the country concerned also runs a real risk of missing out on developing its own home-grown legal talent of the future.
Forward to better
While some virtual practices have undoubtedly improved how the legal sector operates, abandoning the office culture completely would be counterproductive, particularly when it comes to providing the best quality international legal advice to clients, supporting local communities and developing the next generation of lawyers. For clients, having an established base provides the reassurance that they are working with a high-quality firm with deep local knowledge, and for new talent, it provides the “on the job” learning and mentoring that is impossible to create online.
The most effective hybrid model for global legal services should be the best of both worlds. We should be taking the best of innovation from the past eighteen months and blending it with tried and tested ways of working to create something of value for our international clients, our local communities and the future of the profession.
Glenn M Cunningham, Chair
Interlaw
Email: gcunningham@goodwin.com
Glenn M Cunningham is Chair of elite global network Interlaw, which has over 7,500 lawyers based in over 150 cities around the world. Providing organisations across the globe with the highest quality cross-border legal advice, Interlaw and its partner firms offer a seamless, efficient, cost-effective level of service attune to local laws, rules, regulations and customs.
Glenn is also Chair of Shipman & Goodwin’s business litigation and intellectual property practice groups, representing publicly traded and privately held companies in intellectual property and technology cases. He is based in Hartford, Connecticut, USA.
