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ISSN 2052-6474MONTHLYCONNECTING THE LEGAL & BUSINESS PROFESSION, GLOBALLY APRIL 2013The key to a good deal:EvershedsNorton Roseon Cambodian Arbitration CentreTechnology and Private Equity:Getting the right balance(LexisNexis)Also Inside...Focus on Contentious Trusts & ProbateNEWS l MOVES l FEATURES l LEGAL UPDATES

APRIL 2013Xxxxxx 3www.lawyer-monthly.com

4Welcome & ContentsAPRIL 2013Welcome to April’s edition of LawyerMonthly, where we’ll be taking a lookat many of the key stories that havebeen gracing the world’s legal newspages over the last few weeks.PUBLISHEREDITOR’S NOTEThis month saw the death of former UK Prime Minister,Margaret Thatcher, at the age of 87. Her death has causedhuge division in the country with both supporters andopponents of the Conservative leader making their feelingsknown. It seems interesting to me that the death of someonewho has been largely out of the public eye for two decades cancause so much controversy and has caused long-runningpolitical feuds to rise again.A key story from the Intellectual Property world is theannouncement that India will be joining the Madrid Protocol,as of July. This will mean that after that date, trademarkowners outside of India will be able to designate India as partof an international application. This is of course being seen asa positive move and a step closer to getting all countries signedup to the Protocol. As it stands, there are ninety countriessigned up. Only time will tell how many more will follow.As usual, we have several exclusive features for you thismonth including a chat with Guy Spooner, partner at NortonRose in Singapore, about the recent launch of Cambodia’sNational Arbitration Centre. In light of Cambodia recentlybeing ranked 133 out of 185 countries on the ease of doingbusiness there, Guy discusses the reasons for the low rankingand what the National Arbitration Centre can do to changethings for the better.We also take a look at the role of a legal team in successfuldeals by speaking to Eversheds partner, Keith Froud, and howto meet investment criteria of private equity with FraserMayfield, Product Director at LexisNexis EnterpriseSolutions.Also in this month’s edition, we have a special feature lookingat Contentious Trusts and Probate. As part of this we have anexclusive interview with the Chairman of the Association ofContentious Trust and Probate Specialists (ACTAPS), HenryFrydenson. We also speak to several trust and probate lawyersabout this delicate practice area and the challenges that arefaced.As always, I hope you enjoy this month’s issue of LawyerMonthly, and I look forward to bringing you more news andinsight next month!Claire MiddletonEditorSUBSCRIPTION DETAILS:Lawyer Monthly is published 12 timesper year.Annual print subscription rates:£285.00 GBP +VAT$450.00 USD€335.00 EU +VAT if applicableDigital Edition Subscription - FreeAvailable from:www.lawyer-monthly.com/subscriptionsLAWYER MONTHLY ©2010Parity Media LimitedLawyer Monthly is published by Parity MediaLimited and is available on general subscription.Readership and circulation information can befound at: www.lawyer-monthly.comThe views expressed in the articles within LawyerMonthly are the contributors’ own. All rightsreserved. Material contained within thispublication is not to be reproduced in whole or inpart without prior permission. Permission may onlybe given in written form by the managementboard of Parity Media Limited.Parity Media Europe:No. 2 Parkside Court, Greenhough Road, Lichfield,Staffordshire, WS13 8FETel: 0044 (0) 1543 415422Follow us on twitter -@LawyerMonthlyLinkedIn -http://www.linkedin.com/company/lawyer-monthlyKey Contacts:Claire MiddletonEditoreditor@lawyer-monthly.comMark PalmerEditorial Director (Parity Media Publications)mp@parity-media.comAndrew GoldCommercial Directorandrew.gold@lawyer-monthly.comEmma TanseyProduction Managerproduction@lawyer-monthly.comLeona SheasbySales Managerleona.sheasby@lawyer-monthly.comStephanie BarrattFeatures Managerstephanie.barratt@parity-media.comwww.lawyer-monthly.com

APRIL 2013Welcome & Contents 520296313110 World Report10. International News16. Lawyer Moves20 Lead Articles20. Eversheds22. Norton Rose24. FAST26. LexisNexis29. Association of Contentious Trust and Probate Specialists (ACTAPS)57 In Association With...58. The Transportation Lawyers Association63 Intellectual Property Law Series65. Enforcement & Compliance73 Specialist Advocate74. Fraud & Asset Tracing77 Solicitor Journal78. Family Law83 Expert Witness Profile84. Psychiatry89 Legal Focus90. Introduction92. Brand and Reputation Management in the Wake of a Crisis93. Bribery Compliance in Oil and Gas Industry94. A Guide to Competition Law for Foreign Companies100. Construction Contracts101. The New Data Protection Act102. Data Protection & Privacy Law103. Dispute Resolution within M&A Transactions104. A Guide to Drafting Dispute Resolution Clauses108. Employee Obligations to the Protection of an Employer’s Trade Secrets110. Employment Law Reforms111. Forensic Accounting115. Company Formations116. Inheritance and Estate Tax118. The New Patents Act119. Out of Court Restructuring123. Pensions124. Private Equity128. Public Procurement Disputes130. Legal Challenges facing the Telecommunications Industry132. Real Estate133 A Legal Guide to...134. Investing in Mexico135 Transactions135. What’s happening in the world of M&As & IPOsCONTENTSwww.lawyer-monthly.com

10World Report - USAAPRIL 2013PwC releases latest securities litigation studyWhile the first three quartersof 2012 saw an averageof 46 cases, securitieslitigation filings decreaseddramatically in the fourthquarter, to 33 cases—thelowest level since the 30cases filed in the secondquarter of 2009, accordingto the 17th annual SecuritiesLitigation Study released byPwC US. The study entitled,At the crossroads, waitingfor a sign, finds that federalsecurities class action filingsin 2012 decreased by about10 percent from 2011. Therewere 172 cases in 2012,compared to 191 cases in2011.In the U.S., the last quarterwas affected by two pivotalevents: the impendingpresidential election andthe political uncertaintyinherent in the run-up, anda looming “fiscal cliff” ofautomatic tax hikes andgovernment spending cuts.PwC also noted SuperstormSandy may have playeda role by interruptingtransportation, shuttingdown power, and blockingaccess to the Internetand phone service in theNortheast, therebydisrupting law firms, courts,and financial markets.“While 2012 started muchthe same as 2011, it endedvery differently,” saidPatricia Etzold, securitieslitigation partner with PwC.“Despite the uncertaineconomic and marketconditions in the secondhalf of the year, the numberof securities litigation filingsdecreased by 21 percentleaving us to question thedirection things will go fromhere.”According to PwC, theoverall number ofsettlements and total valueof settlements decreased inDLA Piper securessignificant patentinfringement win forCovidienDLA Piper recentlyrepresented Covidien(NYSE: COV), a leadingglobal provider ofhealthcare products, ina successful patentinfringement suit againstEthicon Endo-Surgery, Inc.,a Johnson & Johnsoncompany, relating toEthicon’s Harmonic® line ofultrasonic surgical products.On March 28, 2013, USfederal judge Janet BondArterton for the District ofConnecticut awardedCovidien a $176.5 millionverdict upon ruling thatEthicon infringed Covidien’sUS Patents 6,063,050,6,468,286 and 6,682,544,each relating to ultrasoniccutting and coagulationsurgical devices. Theamount of the verdict,which could be appealed,was based on an eightpercent royalty rate frominfringed sales throughMarch 2012, plusprejudgment interest.New York partners DrewWintringham and FrankRyan led the DLA Piperteam, which includedpartner Mark Rueh andassociates Erica Pascal,Matt Ganas, AirinaRodrigues and JoannaSykes-Saavedra.2012. After a 26 percentdecline in the number ofsettled federal securitiesclass action cases from 2010to 2011, cases settled in2012 decreased by sevenpercent and the total valueof settlements in 2012represented the lowestamount since 2002.With the exception of 2011,which saw an increasein total settlement valueto $3.4 billion, total annualsettlement amounts havebeen on a downward trendsince 2005. The averagesettlement value (excludingzero-dollar or undisclosedsettlements) decreasedfrom $50 million in 2011 to$38 million in 2012.Filings related to thefinancial crisis, China-basedcompanies and merger& acquisition (M&A)transactions - although toa lesser extent - sawsignificant downturns during2012. Illustrating the drop,only three financial-crisisrelatedcases were filedafter a total of 178 suchcases were filed from 2008to 2011.However, while only 36M&A-related cases werefiled in 2012 (as comparedto 48 in 2011 and 41 in 2010),those 36 cases represented21 percent of the totalcases filed for the year,making 2012 the third yearin a row in which M&Arelatedcases accountedfor more than 20 percent oftotal cases filed.“The overall level of M&Adeal activity continues toremain below the levelsseen prior to the financialcrisis,” said Neil Keenan,principal with PwC. “Despitethe expectation that M&Acases will continue withsome level of activity, it willtake another market-drivenevent to truly fill the void leftby these waning marketevents and trends.”PwC also notes that casesagainst foreign issuers (FIs)decreased dramatically in2012 compared to 2011,with only 32 cases filed in2012 (19 percent of totalcases), versus 61 filings (32percent of total cases) theprevious year. Casesagainst China-basedcompanies decreased 60percent, from 37 in 2011 to15 in 2012. Twice as manycases against China-basedcompanies were filed in thefirst half of the year (10cases) than in the latterhalf (five cases).“With future of litigationtrends still murky,companies must cast awide net for monitoring,assessing, and mitigatingrisks,” added PwC's Etzold.TAGLaw Awarded EliteRanking in Chambers Global2013 for Legal NetworksTAGLaw®, a worldwidealliance of independent lawfirms, has been recognized asan “Elite” network in theChambers Global 2013rankings guide for legalnetworks. With over 145member firms operating outof more than 300 offices inmore than 80 countries,TAGLaw is one of more than30 global legal networks, butone of only six to receive thehighest ranking of “Elite” inChambers Global.In selecting networks for theirElite award status, Chamberspays particular attention tothe quality of the firms in thenetwork and to their globalreach. TAGLaw, with itspresence in over 80 countrieshas leading firms in eachjurisdiction providing legalservices to companiesranging from the Fortune 1000to local businesses. Withexperience in more than 20practice areas and dozens ofindustries, TAGLaw offers aformidable capability to itsmember's clients.“Chambers is one of thepremiere rankings guides inthe legal industry. We knowthat it is a valuable resourcefor in-house counsel, andwe have used it in our ownresearch to identify the mostqualified members forTAGLaw,” said Robert Sattin,President of TAGLaw. “It isonly fitting that Chambers haschosen to rank legal networks,since they have substantiallyimpacted the legalmarketplace by offering firmsand their clients’ access tolegal services around theworld. We are honoured toreceive this distinguishedrecognition and feel it is atribute to the quality of firmswho are members ofTAGLaw.www.lawyer-monthly.com

APRIL 2013 World Report - Europe 11Olswang advises EuromoneyInstitutional Investor PLC onthe agreement to acquireHSBC's QuantitativeTechniques operationOlswang has acted forEuromoney InstitutionalInvestor PLC, one of Europe'slargest business and financialmagazine publishers, on theagreement to acquire HSBC'sQuantitative Techniques(QT) operation. QT is thecalculation agent business ofHSBC Bank PLC and createsand maintains more than 100equity and bond indices forHSBC's Global Markets divisionand 60 other external clients.Completion of the salewill take place after atransition phase, which isexpected to take six months.This acquisition will allowEuromoney InstitutionalInvestor to build anew business buildingindependentindexcompilation services, andleverage its strong relationshipswith financial institutions toexpand QT's customer base.Euromoney also plans to useQT's index calculationexpertise to develop newindex families across otherparts of its business.Stephen Hermer, Partner inOlswang's Corporate Group,commented: "We weredelighted to help one of thebiggest European businessand financial publishers on thisstrategic acquisition whichwill see it expand into a newbusiness area and leverageexisting relationships."The Olswang team was led byCorporate Partner StephenHermer with assistance fromPartner Ross McKean andAssociates Yasmine Meeajunand Melanie Shefford.Cypriot citizenshiprules to be relaxedfor foreign investorsThe rules regulating Cypriotcitizenship are set to berelaxed for foreigninvestors who have lostmore than 3 million eurosin the bailout deal as aresult of the recentfinancial crisis.The announcement willmostly affect Russianbusinesses, which havebillions in Cypriot banks.According to the BBC,President Anastasiadessaid at a press conferencethat the move would‘mitigate to some extentthe damage" that hadbeen suffered by theaffected investors.6th annual University of Oxford / Gide LoyretteNouel French law mootOn Monday 11 March2013, the University ofOxford held its French LawMoot for the 6th yearrunning, sponsored by theinternational French lawfirm Gide Loyrette Nouel.The competition broughttogether teams from theUniversities of Oxford,Cambridge, Birminghamand Warwick, UniversityCollege London, King’sCollege London and,from further afield,Complutense University ofMadrid, the University ofFlorence and the Universityof Cologne.The moot, or concoursde plaidoiries, this yearconsidered an issue ofFrench employment lawwith the added element ofan employee’s right toprivacy and was judgedby a variety of highlyrespected French legalprofessionals andacademics.The panel overseeing thefinal was chaired by MAlain Lacabarats, thepresident of the SocialDivision of the Cour deCassation, FrenchSupreme Court. He wasassisted by:Mme Françoise Kamara,conseiller in the CivilDivision of the Cour deCassationMme Dominque Fenouillet,professor at the UniversitéParis 2 Panthéon-Assasand director of the Institutefor Legal SociologyM Philippe Stoffel-Munck,professor of private law atthe Université Paris 1Panthéon-SorbonneRupert Reece, partner withthe International DisputeResolution team at GideLoyrette NouelInterestingly, M Lacabaratsconfessed that it was notat all clear how the mattershould be decided giventhe facts and that it wastherefore down to thedexterity of each side'scounsel to convince thecourt of their client’s case.The winning team fromUCL, Micol Flegenheimerand Lara Levet, each wonan internship with the firm.Rupert Reece, partner andjudge said: “The standardof advocacy wasparticularly high this year. Itwas very impressive to seestudents from such a widevariety of legal andculturalbackgroundsattacking a reallychallenging topic ofFrench law and doing it allin French.”www.lawyer-monthly.com

12World Report - UK & IrelandAPRIL 2013Businesses seek out specialist legal advisors totackle a rise in international disputes, PwC surveyshows.The number of businesseshiring in-house specialistlawyers is set to riseaccording to a new PwCsurvey, after a third reportedan increase in the numberof international disputes.The survey, CorporateChoices in InternationalArbitration (IA), showed35% of the polled counselshad reported a rise in thenumber of internationaldisputes. When asked whatmethod they would chooseto resolve their disputes,twice as many opted forinternational arbitrationthan other forms such aslitigation.Currently companies tendto seek this specialistexpertise from external lawfirms but under the currentconstraints of the economicclimate and the rising costof proceedings, many moreare likely to start recruitingin-house, the report says.Whilst 90% of respondentshad a dedicated legaldepartment, the surveyrevealed only half (49%)had a dedicated in-housedisputes team.In partnership with QueenMary, University of London,researchers analysed IAtrends in more than 100multinational businesses,focusing on the financialservices, energy andconstruction sectors.Overall 73% said IA waswell suited to resolvingtransnational disputes, withpreferences strongest in theconstruction and energysectors. When asked to rankvarious dispute methods inorder of preference, 68% ofconstruction respondentssaid arbitration wastheir preferred methodcompared to 56% forenergy, whilst in financialservices, 82% ranked courtlitigation as their numberone method.Despite this, over two thirds(69%) of in-house counselin financial servicescompanies felt IA wasbecoming more suited toresolving their disputes.Gerry Lagerberg, PwC’sHead of InternationalArbitration, said: “One ofthe key findings of theresearch is this trend inspecialist counsel beingbrought in-house. In part,this is down to a cost-controlmeasure but it will alsoserve as a real vote ofconfidence in IA as thesefirms recognise the value inhaving arbitration specialistsembedded more withintheir multinationalbusinesses.“It was interesting to seethat the majority ofbusinesses use specialistarbitration counsel theyhave worked with beforeand they are blendingexternal expertise within-house capability. The rolethat third-party fundingplays will be another area towatch in the future assmaller firms may well needto secure financial back-upbeforecommencingproceedings or at theenforcement stage.”Of those that saidarbitration was not theirpreferred method forsettling disputes, 22% saidthis was down to it being lesscost effective than othermethods – such as litigation,according to the report.Many businesses opt forarbitration for internationaldisputes due to its speedierprocess and private nature.There is usually no appealprocess and the finaldecision is binding, unlikelitigation.Legal aid: furthercuts andcompetitivetendering plansThe Ministry of Justice (MoJ)has issued details of itsplans to introduce pricecompetitivetendering(PCT) for criminal legal aid.The consultation alsoincludes measures to cut afurther £220m from thecriminal and civil legal aidbudget.Richard Miller, the LawSociety's head of legal aid,said: “It is very concerningthat the governmentappears prepared tosacrifice client choice,which is widely regardedas a vital principle and animportant driver of quality inthe justice system.“We will examine the detailof the government'sproposals very carefully andurge members to respondto our consultation onalternatives to PCT before10 May.”Thomas Eggar and PritchardEnglefield to mergeLaw firm Thomas Eggar LLP isto merge with City of Londonbased firm, PritchardEnglefield.Thomas Eggar has been clearfor some time about itsintention to strengthen itsLondon office as a part of itsstrategy to develop specialistteams and to give greateraccess to an internationalclient base. Over the last year,Thomas Eggar has made anumber of high profile lateralhires into its London officeto develop an impressiveinternational tax team.Pritchard Englefield is along-established commerciallaw firm, which is highlyregardedboth for itsinternational and domesticwork, particularly advisingon Anglo-German andAnglo-French trade, financeand commerce.The merger between ThomasEggar and Pritchard Englefieldwill add strength and depth toboth firms’ current offeringand will provide a strong basefrom which to developadditional specialist teams,including Financial Services.The London office will beoperating under the name ofThomas Eggar incorporatingPritchard Englefield.The merger brings with it somestrong international andEuropean links, most notablyin Germany, France, NorthAmerica and Asia throughwhich the combined firm candrive its business developmentactivity. Together, the firm willoffer a broader range of legalservices to clients, andthrough Pritchard Englefield’sinternationalconnections,gain a strong profile in certainkey jurisdictions.www.lawyer-monthly.com

APRIL 2013 World Report - Asia & Australasia 13First movers to have THE REALDEAL advantage in 2013Bidders who are first to marketwill have a key strategicadvantage in getting mergersand acquisitions over the linein 2013, although the needfor due diligence anddesire for a target boardrecommendation meansdeals are likely to take longerto announce and complete.These are some of the keypredictions for M&A activity inAustralia in 2013 contained inTHE REAL DEAL 2013 edition,an annual Clayton Utzpublication based on anin-depth analysis by the firm'sM&A team of announcedpublic company mergers andacquisitions in Australia duringcalendar year 2012, valued atover A$50 million.Clayton Utz Corporate / M&Apartners Karen Evans-Cullenand Jonathan Algar, the keyauthors of THE REAL DEAL 2013edition, commented thatbidders who were first toannounce deals wouldcontinue to have a strategicadvantage in a market inwhich securing internalsupport to publicly proceedwith a transaction remainedchallenging. "In 2012 wesaw that bidders who wereprepared to brave the lack ofmarket confidence were inmost cases rewarded with asuccessful deal, especially ifthey reached agreement withthe target and secured thesupport of target shareholders.In this environment, anypotential second mover willneed to factor in the possibilityof a bidding war for the targetin deciding whether toannounce a competing bid,as well as being unable todictate the timetable for thetransaction," said Ms Evans-Cullen.2012 was almost more notablefor the deals which didn'thappen, rather than thosethat did, Mr Algar said. "In THEREAL DEAL 2012 edition weidentified the increasing use ofbear hug proposals in place ofhostile bids as a successfultactic for pressuring targetboards to engage with abidder that would not haveotherwise been welcomed,"he said. Bear hugs continuedto be a popular tactic in 2012,but many did not lead toan announced deal. Thisdemonstrates that bidders arenot always either willing, or insome cases able, to convert abear hug into a deal.Other trends that are likely toshape M&A activity in 2013include a heightened focus bybidders on acquisitions in thefood / agribusiness sector, thelikelihood of strategic mergersin sectors such as financialservices, manufacturing, retailand media, and shareholderactivism as a continuing driverof target boards having toengage with bidders.Although 2012 was not a stellaryear for M&A activity, with only41 announced deals valued atover $50 million − down 31% on2011 levels − Ms Evans-Cullenand Mr Algar said both biddersand targets could learn fromsome of the trends they sawemerge last year.Allens acts onAustralia's biggestenvironmentalupgrade agreementAllens has advised ANZ on itscommitment to provide a$16.5 million senior securedloan to Eureka FundsManagement Limited, astrustee of The AustralianEnvironmental Upgrade FundNo. 2.According to Partner PhillipCornwell, who led the Allensteam on the matter, the loanwill partially fund Eureka's$26.5 million financing of anEnvironmental UpgradeAgreement (EUA).The EUA is Australia's largestever, and will enable theinstallation of a 2 MWtrigeneration plant at the $2billion Central Park project inSydney.'The EUA is between Eureka,Frasers Central Park Land No.2 Pty Ltd and Council of theCity of Sydney,' Mr Cornwellsaid.Low Carbon Australia Limitedhas agreed to provide a $10million subordinated securedloan to Eureka to fund theremaining portion of Eureka'sparticipation in the EUA.'Allens has a long history ofworking with ANZ, andworked opposite Eureka on aprecedent transaction,' MrCornwell said.'It was pleasing to continueour work with both of themon this record-breakingagreement to assist in thefunding of Central Park.India joins MadridProtocol, from JulyHerbert Smith Freehills opensin SeoulThe Indian Minister of Industrydeposited the accessioninstrument of India to theMadrid Protocol on 8th April.This will come into effect from8th July this year.This will mean that trademarkowners located externally toIndia can designate India aspart of an internationalapplication under theProtocol. Also, Indiantrademark owners need to firstfile for or possess a registeredtrademark in India andthereafter they can fileinternational registrationsunder the Protocoldesignating any of the other89 countries who aresignatories to the MadridProtocol.Herbert Smith Freehills LLPrecently announced theofficial opening of its Seouloffice.The world's 12th largesteconomy and the 4th largesteconomy in Asia, South Koreais an investment market withsignificant potential globally.Free trade agreements withtwo of its main tradingpartners—the US and theEU—recently came into force.These provide for broad anddeep liberalisation of trade ingoods and services, includinglegal services, and permitUS and EU law firms to openoffices in South Korea for thefirst time.Herbert Smith Freehills isalready an established adviserto a number of Koreancorporates on internationaltransactions, projects anddisputes in Australia, theMiddle East, Africa and otherterritories. Establishing an officein Seoul is a significant step forthe firm, enhancing its offeringto Korean clients and drivingfurther expansion in the regionand around the network.Jonathan Scott, Herbert SmithFreehills' senior partnercommented: "Our officeopening in Seoul is one of thekey synergy projects for ournewly merged firm. As aninternational law firm with thelargest integrated Asia Pacificpresence and capability,Herbert Smith Freehills isperfectly placed to assistSouth Korean clients ontheir international expansionactivities. We have longstandingexperience inadvising clients on outboundinvestments in a range ofjurisdictions, including themore difficult territories andemerging markets, and lookforward to offering ourexpertise to our clients in SouthKorea.”www.lawyer-monthly.com

APRIL 2013 World Report - Offshore 15Ogier advises Ophir Energyplc in placing and rights issueOgier in Jersey acted forBritish gas and oil explorerand FTSE 250 listed OphirEnergy plc in connectionwith its recent placingand rights issue which hasseen Ophir generateapproximately £553million. The proceeds fromthese equity raises willbe used to amplify Ophir'sdrilling programs inTanzania, Kenya andGabon as well as assistOphir in acquiring futureassets for its portfolio.Ogier advised Ophir onall Jersey aspects of theplacing and rights issuethrough the use of a Jerseycashbox company. OgierCorporate Servicesformed the Jerseycompany and provideongoing administrationservices.Paul Burton, ManagingAssociate at Ogier inJersey said: “We aredelighted to have advisedOphir on their recentequity raise, having actedfor the company in 2012on a previous deal of thistype. The dual purpose(placing and rights issue) ofthe Jersey cashbox heredemonstrates the flexibilityof a vehicle which is ableto meet PLC secondaryfundraising requirements ina tailored way. The abilityto provide both Jerseylegal input and corporateadministration support toclients is key in these typesof transactions."Significantly, the combinationof the placing and therights issue as backto-backtransactionsprovided the adaptabilitywhich Ophir required.The Jersey structureenabled existing qualifyingshareholders to subscribefor new ordinary shares inthe rights issue (on apre-emptive basis), whilstalso being able to satisfythe significant demandfrom new investors tosubscribe for placing sharesand then participate in therights issue.Ogier have advised onmore cash boxes than anyother firm and have theexperience and expertiseto assist PLCs with anyequity raise or otherstructuringrequirements.Cash boxes have beenused by not just PLCs listedon the Main List of theLondon Stock Exchangebut also by AIM listedcompanies.The Ogier Jersey legalteam was led by corporatepartner, Marc Yates whowas supported by PaulBurton, Sean Inggs andLaura Hendrick. The teamworkedalongsidemembers of Linklaters inLondon.Appleby advises AsiaMezzanine CapitalCorporation on a US$30mfacility to CAAMLeading offshore firm Applebyacted as British Virgin Islandsand Bermuda counsel for AsiaMezzanine Capital Corporation(“Asia Mezzanine”), in relationto the provision of a US$30million facility to CAAM Limited(“CAAM”), which, together withan equity investment, wereapplied to finance anacquisition of approximately70% of shares of Moraitis GroupPty Limited, at a value ofapproximately A$211.82 million(equivalent to approximatelyUS$223 million).CAAM and its shareholdersgranted various forms ofsecurity in favour of AsiaMezzanine as well as options.The Appleby team was led byJeffrey Kirk, the banking andasset finance team leader inAppleby’s Hong Kong officeand assisted by Associate,Vincent Chan.Jeffrey Kirk commented “Thetransaction involved acomplex security structure overconvertible preference sharesand raised challenging issuesin relation to the security, equityoptions and issuance ofadditional equity. We atAppleby were pleased to bepart of this interestingfinancing.”About Asia Mezzanine, CAAMand Moraitis GroupAsia Mezzanine is anindependent direct investmentfund management groupbased in Hong Kong. Togetherwith its constituents, AMCGinvests in the strategicdevelopment of promisingmedium-sized companies thathave substantial operations inAsia and are seeking capital.CAAM is an investment holdingcompany incorporated in theBVI.Moraitis Group is one of theleading fruit and vegetablesupplier aggregators andsuppliers in Australia. Up to 27June 2012, it had revenue ofover A$490 million (equivalentto approximately US$515million).Harneys launches special practice group to adviseon legal aspects of the Cyprus banking crisisHarneys has created aspecial practice groupdedicated to advisingclients on the evolvingbanking situation inCyprus.Based in the firm’s Cyprusoffice with additionalmembers in London, HongKong and the BVI thegroup is at the forefrontof advising on the legalimplications of the bankingcrisis. Already the grouphas been advising clientson issues related to theimposition of capitalcontrols and bankrestructuring in Cyprus aswell as the legal position ofongoing financing andderivatives transactions,Cyprus corporatestructures and Cyprus taxtreaties among otherthings.Members of the practicegroup have significantexpertise in internationaland particularly Russianinvestment, financing andholding structures utilisingCyprus as well as broadexpertise in a wider rangeof banking, finance andinsolvency areas.Global Managing Partnerof Harneys Peter Tarncommented: “With aninternational network, amarket-leading Cyprusoffice and decades ofexperience in banking andfinance law, Harneys isuniquely positionedamong law firms to adviseclients on the rapidlyevolving situation inCyprus. We have anestablished reputation withthe world’s top financialinstitutions and law firmsand are known for ouragility, responsiveness andreliability which are whatwe believe clients need atthis time.”The special practice groupcomprises senior Cyprusbanking partner PavlosAristodemou as well asCyprus partners EmilyYiolitis, Demetris Loizides,Nancy Erotocritou andMargarita Hadjitofi. It alsoincludes head of the firm’sglobal banking andfinance practice partnerColin Riegels; insolvencypartner Andrew Thorp;head of the firm’s Russiapractice, partner SimonHudd; and derivativesspecialist, partner RussellWillings.The practice group beganthe week with a 45-minutewebinar on the legalimplications of the bankingcrisis. It featured Harneys’partners as well asinternational financeexpert Philip G WoodQC (hon), special globalcounsel at Allen & Overy.www.lawyer-monthly.com

16Lawyer MovesAPRIL 2013APPLEBY GROWSGUERNSEY FUNDS TEAMFRED ALVAREZ TO JOIN JONESDAY AS LABOR & EMPLOYMENTPARTNER IN SILICON VALLEYLEADING US AND CROSS-BORDERLITIGATOR CEDRIC CHAO JOINSDLA PIPER IN SAN FRANCISCOwww.lawyer-monthly.com

APRIL 2013Lawyer Moves 17RÖDL & PARTNERSTRENGTHENS TAX LAWPRACTICE IN HAMBURGWITH DR. FLORIAN HAASEDAVENPORT LYONSAPPOINTS ITS FIRST CEOTHREE SENIOR PROMOTIONSAT OGIERwww.lawyer-monthly.com

18Lawyer MovesAPRIL 2013FRED ALVAREZ TO JOIN JONES DAY ASLABOR & EMPLOYMENT PARTNER INSILICON VALLEYThe global law firm Jones Day hasannounced that Fred W. Alvarez will jointhe Firm as a partner in its Silicon ValleyOffice, where he will be a member of theLabor & Employment Practice. Mr. Alvarezis joining from the Palo Alto office ofWilson Sonsini Goodrich & Rosati, wherehe was a partner and the leader of thefirm's Employment Law Litigation Practice."Fred is one of the preeminent leadersin labor and employment in the UnitedStates, with significant experiencedefending employers in individual,multi-plaintiff and class action lawsuitsbrought by private and governmentalparties," said Lawrence DiNardo, whoheads the global Labor & EmploymentPractice at Jones Day. "He will be anexcellent addition to our L&E team inCalifornia and throughout the UnitedStates."With the addition of Mr. Alvarez, there arenow 60 lawyers in Jones Day's SiliconValley office. There are 21 lawyers in thefirm's Labor & Employment Practice inCalifornia and more than 130 labor andemployment lawyers firmwide. Fredjoins Kari Erickson Levine, a well knownemployment litigation partner, whorecently joined the Firm's San FranciscoOffice."This is a special opportunity to practice ina global law firm well-known for its laborand employment practice," said Mr.Alvarez. "I'm pleased to join Jones Day asit continues to expand its presence inSilicon Valley, throughout California, andaround the world."RÖDL & PARTNER STRENGTHENS TAX LAWPRACTICE IN HAMBURG WITH DR. FLORIANHAASERödl & Partner continues to promote growthof the tax law practice. On May 1, 2013, thewell-known tax law practitioner Dr. FlorianHaase (38) will return from DLA Piper backto the Hamburg office of Rödl & Partner,where he previously worked from 2008to 2011. As a partner, Haase will beresponsible for thearea of international taxlaw for Hamburg and northern Germanyand expand the department.“The return of Dr. Florian Haase will makea big difference to our tax law practice. Thisis an area where we can fully exploit ourinternational strength as a corporate lawfirm with own offices in many countries. Ourfuture growth will depend on experiencedand highly competent advisors such ashim”, explains managing partner Prof. Dr.Christian Rödl.The activities of Dr. Florian Haase willfocus on tax structure consulting for(international) M&A transactions,restructuring, group reorganisation andcompany reorganisation activities, privateequity and real estate transactions andcomplex financing measures with regardto group tax planning and international taxlaw. In recent years as head of the taxlaw practice of DLA Piper in Germany heespecially provided tax law advice tointernational groups in relation to complextax law arrangements and transactionsand tax law advice for companies enteringthe German market.APPLEBY GROWSGUERNSEY FUNDSTEAMAppleby, one of the world’s largestoffshore providers of legal, fiduciary andadministration services, has announced twosenior additions to its Funds & InvestmentServices team in Guernsey.Appleby’s Global Head of Funds, Ian Gobin,will transfer from the Cayman office to leadthe global Funds practice for a period oftime from Guernsey. Ian will be joined byDeborah Poole who will be returning toAppleby in May as a partner in the sameteam.Gavin Ferguson, Managing Partner forAppleby’s Guernsey office, said, “Guernseyis an important market for Appleby. The lastyear has been a busy transactional year forGuernsey, particularly from a fund and fundmanagement perspective, where we haveseen a number of large deals includingnew entrants to the market. This activity iscontinuing and it is further evidence ofGuernsey being an attractive jurisdiction forinternational business.”He added, “The arrival of Ian and Deborahdemonstrates our further commitment to theGuernsey market and underpins our growthstrategy here and for the Funds & InvestmentServices practice.“In 2012 we doubled the number of ourassociates in the Corporate team and earlierthis year, we added significant weight to thepractice with the arrival of Matthew Wrigleyas a senior funds lawyer with specialistexperience in the creation andmanagement of investment funds andMichael Richards, an associate withextensive experience across a range ofcorporate and commercial transactions.“We are planning to continue to expand theteam, through hiring additional talent andthrough internal promotions which we willannounce in due course. In the meantime, Iam delighted that Ian and Deborah will bejoining us and helping to drive the globalFunds strategy from Guernsey.”www.lawyer-monthly.com

APRIL 2013Lawyer Moves 19LEADING US AND CROSS-BORDERLITIGATOR CEDRIC CHAO JOINS DLA PIPERIN SAN FRANCISCODAVENPORT LYONSAPPOINTS ITS FIRSTCEOCedric Chao has joined DLA Piper’sLitigation practice as a partner in the SanFrancisco office.A seasoned trial lawyer with a history ofsuccessfully handling complex US andcross-border litigation and internationalarbitration matters, Chao has servedas lead counsel in high stakes mattersbefore US trial judges and juries,international arbitration tribunals, andappellate courts on behalf of clientsoperating in a wide range of industriesand countries.Chao joins DLA Piper from Morrison &Foerster LLP, where he co-chaired thefirm’s international litigation andarbitration practice. In addition toappearing in courtrooms across theUS, he has led teams in significantinternational commercial arbitrationproceedings under the rules of theInternational Chamber of Commerce(ICC), the International Centre for DisputeResolution, the London Court ofInternational Arbitration, the UnitedNations Commission on InternationalTrade Law, and JAMS. He has also servedas an arbitrator for the ICC and theSingapore International ArbitrationCentre.“Cedric will play a leadership role inthe continued expansion of our globalplatform, of which cross-borderlitigation and international arbitration areintegral components,” said Jay Rains,co-chairman (Americas) of DLA Piper.“We also anticipate that he will be asignificant asset in growing our Asia-Pacific practice.”“Cedric is a leading trial lawyer on theWest Coast, with a rare combination ofsignificant jury trial experience and aninsider’s knowledge of the rarefied worldof international arbitration,” said RobertMathias, joint global leader and US chairof DLA Piper’s Litigation practice. “He willstrengthen our capabilities within theglobalized business environment, whereclients are increasingly facing potentiallegal liabilities and financial andreputational risk.”Davenport Lyons has appointed RichardWilliams as the first Chief Executive Officerto the business following his engagementsome 12 months ago as a FinancialConsultant to the Business. Richard will bea member of the firm’s Governing Board.Richard has had a varied career andfollowing his qualification at Ernst &Young as a Chartered Accountant, hehas worked in Television (Carlton),Telecommunications (Cable & Wireless),Consultancy (as a Finance Director andPartner at Lane Clark & Peacock) and theLegal industry (as Finance Director atLawrence Graham LLP and CPA Global).More recently, Richard has been astrategic financial consultant for bothDavenport Lyons and Phoenix BusinessSolutions.His appointment marks a shift in approachat Davenport Lyons as the businesslooks to focus on the challenges andopportunities in the profession for thewell-managed and ambitious law firm.THREE SENIOR PROMOTIONS AT OGIEROgier has announced the promotion of three commitment to the growth andof its senior lawyers. Bryon Rees was development of the firm.promoted to Managing Associate andRobert Macredie and Sally Peedom werepromoted to Senior Associates.William Simpson, Managing Partner of Ogierin Guernsey, said: "These senior roles atour firm take a lot of hard-work andProgression to the roles of Managing andcommitment, and a touch of the X factor,Senior Associate is recognition of certaincompetencies, expertise and all roundabilities, such as managing teams whilstproviding consistent levels of high qualityto achieve that status. Bryon, Robert andSally have all done extremely well andthe partnership is delighted to see themlegal advice, and demonstrating promoted."Richard Williams comments: "I amdelighted to be joining such a wellestablishedand enterprising law firm asDavenport Lyons. In the year I have beenworking with the Firm I have beenimpressed with the quality of legal adviceand service offered to clients in Londonand indeed around the world, and verymuch look forward to helping drive furthergrowth, as we take on the challenges inour market head on.”www.lawyer-monthly.com

20EvershedsAPRIL 2013THE RULE OF LAW FOR SUCCESSFULDEAL MAKINGA new report by global law firm Eversheds, ’The M&ABlueprint: From inception to integration’, highlights someof the common issues that affect the successful conclusionof international mergers and acquisitions. Robin Johnson,M&A expert and partner at Eversheds, looks at the role,influence and impact of legal teams when it comes toidentifying potential issues, helping deals run smoothlyand, ultimately, realising the full value of a proposedtransaction.The boards of global businessesare under pressure to drivegrowth. While consciousof problematic economicconditions, nonethelessinternational deal-making andmergers and acquisitions remain astrategic business tool to secure thisgrowth. However, driving value from suchdeals is a key factor in their future success.According to our report, which gainedinsight from 400 global firms, it appearsthat the full potential of cross-border dealsis often compromised due to commonweaknesses in the deal process. TheEversheds report advocates close scrutinyof key areas which could, ultimately,determine the future success of the deal.One of these is the involvement, role andinfluence of the legal team.Communicate betterAn important factor for deal success is thenecessity to bring internal and externalwork streams together. The researchfound that business development teamsoften put the failure to realise value inM&A down to external, uncontrollablefactors such as economic crises or thedeparture of the target’s managementteam, whereas legal experts often pointto internal and highly controllable factorsas the reason for deal failure. In fact,over a quarter (26%) of the companiesquestioned said that the key reason forthe failure of a recent cross-border M&Adeal was a misalignment betweeninternal work streams and time pressuresto complete, for example, when a legalteam received the findings of operationaldue diligence too late to be able toproperly react under the procedure fixedin the contract. A lack of coordination orcommunication between legal andmanagement teams was highlightedby many as creating unnecessarycomplexity in getting the deal done.www.lawyer-monthly.com

APRIL 2013Eversheds 21Experience CountsThe report advocated the importance ofexperience when it comes to successfullycompleting deals. Legal M&A expertswho had worked on more than 10transactions over the past five yearswere more likely to pay understandingthe full potential liabilities for directors andthe company. Issues such as tax planning,strategy and gaining an overallunderstanding of the target company’soperation and materiality were cited asareas that experienced legal expertswould be more aware of. The view ofexperts was that less experienced legalM&A experts tended to focus more oncontract review and managing outsidecounsel.In at the startAnother significant issue was a belief thatlegal advice was sought too late and notat a strategic level. Indeed, gone are thedays when businesses relied solely uponindemnities – they now want solutionspre-deal. Our report shows thatintegration went as expected for 86% ofbusinesses involving their in-house legalteams in the proposed transaction earlyenough.In-house legal teams feel that they couldadd more value by identifying anddealing with potential issues if theybecome part of the process earlier on, forinstance when considering potentialtargets for mergers or acquisition activity,or before the decision to proceed andstart due diligence has been made.Over a quarter (27%) of in-house legalteams do not get involved in integrationplanning until the negotiation phase oreven after the deal has been finalised,with nearly half of those who first becomeinvolved at these stages feeling that itwas too late in the process. Even for asignificant number (30%) who had playeda role before due diligence had started,they too expressed that this entry pointwas too late in the process.There appears to be a direct relationshipbetween organisations that reported aless than smooth integration phase andthe later point at which they involved theirin-house lawyers. For instance, on theirmost recent transaction, legal experts feltthat they were two and a half times morelikely to have faced problems with theintegration if their legal team becameinvolved in the integration planning toolate into the process.Our report showsthat integrationwent as expectedfor 86% of businessesinvolving theirin-house legalteams in theproposedtransaction earlyenough.Assessing legal risksWith regulatory concerns a significantissue for companies, the reporthighlighted the increasingly importantconsideration of legal risk around M&Aand the assessment of potential deals.General Counsel provide essential inputat such a stage and more than half (59%)of all respondents said they had beenable to spot potentially damaging issuesearly enough in the process to cautionsenior management about proceedingfurther with the transaction.Robin JohnsonA core teamRespondents advocated the essentialrequirement to create a core deal teamto provide the ‘connective tissue’ to linkall the phases of the deal together. Thecore team is needed to take the dealfrom the inception stage through topost-completion integration. Businessesneed to start to join the dots between thedifferent stages of the deal cycle to movethe focus from just simply ‘doing the deal’to thinking about life for the businessbeyond the deal itself.The report findings show thatorganisations that fielded core teams,including legal experts, with memberswho were continuously involved frominception and planning through to theintegration stages, were less likely toexperience unforeseen difficulties duringthe subsequent integration phase.According to our respondents, theinclusion of expert and experienced legalteams at an early stage, and thenthroughout stages of the deal processto counsel, offer advice or highlightpotential problems, is of criticalimportance if they are to derive valueand realise the full potential from anymerger and acquisition transaction. LMwww.lawyer-monthly.com

22Norton RoseAPRIL 2013Cambodia launchesNational Arbitration CentreExclusive fromNorton RoseAccording to a recent World Bank study on the easeof doing business, Cambodia is ranked 133 out of185 countries worldwide. Corruption, regulatory policyuncertainty, and the lack of a reliable dispute resolutionmechanism have regularly been cited as obstacles todoing business in Cambodia.The NAC has 7 members on its EXCOboard, 11 representative consultants fromthe private sector and a panel of 43arbitrators trained in collaboration withthe Singapore International ArbitrationCentre and the Singapore Institute ofArbitrators.Guy SpoonerIn a bid to boost both local andinternational investor confidence,Cambodia has launched a NationalArbitration Centre (NAC) that offersthe business community an alternativeto the courts for the resolution ofdisputes, and aims to solve them morequickly, inexpensively and fairly.To find out more, Lawyer Monthly speaksexclusively to Guy Spooner, partnerat Norton Rose in Singapore and headof the firm’s Arbitration and DisputeResolution practice. He is also onthe board of the NAC, making himwell-placed to offer insightful comment.Guy began: “Cambodia’s ranking in theWorld Bank Study is a reflection on itsturbulent political past, which severelyslowed the country’s commercial andlegal development. Legal issues includingcorruption, regulatory uncertainty andlack of reliable dispute resolution arecommonly cited concerns for businesseswww.lawyer-monthly.com

24FASTAPRIL 2013ActingFAST onIP protection:Alex Hilton appointed Chief Executiveof Federation Against Software TheftIn February, the Federation Against Software Theft’s (FAST)board of directors announced the appointment of Alex Hiltonas its new Chief Executive. Alex is well known in the softwareindustry and has been working with FAST since 2009 whenhe joined as a Non-Exec Director.He has over 25 years’experience in the IT sector. Here, Lawyer Monthly catches upwith Alex to see how he settling into his new role, discuss thechallenges facing the IP arena at the moment and to find outwhat he hopes to achieve during his time in this position.What are the key issues you hope toaddress during your time as ChiefExecutive of FAST?Amongst the many priorities that we faceis the one of a continually converging ITmarket. As consumers of IT we are moreinformed, sophisticated and educatedthan ever so procurement is becomingcommoditised and IT is increasinglydelivered as a service just like otherutilities. We need to support and informour members and customers to ensureIntellectual Property remains valued inthe future and not undermined by thischange.A further development has come throughthe internet, which has changed thelandscape for software developersdramatically. Although peer-2-peersharing remains a bugbear for theindustry, cloud computing is helping tochange software delivery models, verymuch for the better. By deliveringsoftware as a service (SaaS), developershave found new ways to monitor andmanage the deployment of theirsoftware, however must not abdicateresponsibility for their legal softwarelicensing.It has been said that your appointmentshows FAST’s renewed focus onIntellectual Property protection. How is thisso?Intellectual property protection hasalways been one of FAST’s core tenetsand this has not changed since theorganisation was established over 30years ago. I have many years ofwww.lawyer-monthly.com

APRIL 2013FAST 25experience in this area so I hope to beable to continue to push the FAST agendasupporting our members and theirrequirement for continued IP protection.The success of our digital economy, andby extension, economy at large, dependsupon the protection of IntellectualProperty. The creators of content, andthose who invest in IP, must get thesupport and protection that they need,otherwise they will either stop creating, orgo to countries with more advantageousIP legal protections. We are making someprogress in this regard. Recent changesto the Patents County Court and theintroduction of a small claims track forcopyright disputes that make it easier forsmall businesses to enforce their rights areall steps in the right direction, but there isstill much to be done.What are your goals?We are a not for profit organisation andour primary purpose remains to serveour members who are primarily softwarepublishers, supporting their desire toprotect their IP. We will not be shy ofenforcement where necessary and willcontinue to ensure the professionalmanagement of the value assets ofbusiness software.Over the past few years, FAST has beenat the forefront of some of the mostimportant debates in the industry. Theadvent of new routes to market suchas mobile apps, BYOD and the Cloudhas created new challenges forbusinesses both supplying and consumingtechnology. FAST is well positioned torepresent the industry and steer thesedebates, while supporting our memberswith guidance and counsel in theprotection of their IP.How could legislation be changed toincrease IP protection for businesses?The fact is that the legislation that wecurrently have in place is supportive ofrightsholders. Our stumbling block hasalways been enforcement. It’s all verywell having the right legal framework inplace, but if you can’t enforce your rights(in a cost and time-efficient manner)they’re impotent.Focus must be on cost effective accessto justice, which yields a deterrent effect.Reform should focus on the law ofdamages in order that there is a truedeterrent on those infringing software IPrights. The tables should be turned so thatinfringers cannot escape justice by merelypaying the licence fee when caught. Byensuring the sound protection of IP rightsas assets we will encourage investment innew software innovations and grow thisimportant part of our economy.We would also like to see more directengagement from Government to smallbusinesses, who we see as being anessential part of the innovation process inthe UK. Stifling growth with weak andover complicated IP law discouragesinnovation amongst this sector. On thatpoint, it’s important that we endow our IPlegislation with enough flexibility to allowfor changes in technology, like cloud.What challenges do you think lie ahead?The explosion of the Application marketfor consumers is already well establishedin the consumer market and we aregoing to see its rapid take-up in thebusiness field. This will lead to a moremobile workforce and represents anexciting opportunity and development inthe software world.In terms of enforcement, recent cuts toTrading Standards will no doubt have animpact. We work closely with the TSI totrain and educate Trading StandardsOfficers about the use and impact ofillegal software but with fewer bodies onthe ground to investigate the misuse ofsoftware there will likely be a knock-oneffect.How will you navigate them?As we have successfully done for manyyears, through a process of educationand support for the needs of our membercommunity.Ultimately, we are a memberorganisation, so we will look at thechallenges and work with our members tounderstand their impact. This continualprocess makes us very responsive to therapidly changing software industry.What has been the highlight of yourcareer so far?No single highlight comes to mind, butthere have been a number of highs andlows as with most people. As long as I finda role stimulating and intellectuallychallenging then I am completelyengaged and committed. As Chief Execat FAST I am looking forward to all thechallenges it will bring. LMAlex Hiltonwww.lawyer-monthly.com

26LexisNexisAPRIL 2013Leverage TechnologyPrivateto MeetEquityInvestment CriteriaFor many law firms today, securing external investment is abusiness strategy, but to realise it, it is important that theyposition themselves as attractive investment targets. Individualprivate equity firms have their own criteria for selecting law firmsto invest in, but it is reasonable to assume that most investors willlook for scale, growth potential and quality of earnings of thelaw firm in question, prior to making an investment decision.Technology can enable law firms to meet these criteria. Here,Fraser Mayfield, Product Director at LexisNexis EnterpriseSolutions tells us more.Achieving scaleAutomating and streamlining businessprocesses delivers efficiencies andfacilitates a joined-up approach tobusiness across the organisation, whichin turn provides the capability to easilyscale operations in response to marketdemand.Technology in the form of businessmanagement systems enable lawfirms to simultaneously operate acrossmultiple disciplines, borders and legaland non-legal business environments.For instance, organisations can registerfinancial transactions, managerelationships between subsidiaries andwww.lawyer-monthly.com

APRIL 2013LexisNexis 27the parent organisations, administerinternal cost accounting and enforceaccounting policies and rulesseamlessly across the businessoperation.Law firms’ ability to scale can often berestrained by the availability ofresources, both human and physical.Business management systems inparticular facilitate human resourceand commercial management,supporting growth and allowing firmsto create expansion plans based onaccurate strategic analysis.Visibility of growth potentialInvestors are looking for law firms thathave potential to grow organically, orexpand into new markets, geographiesand lines of business. Leveragingbusiness intelligence can provideevidence of growth potential byreporting on all levels of the business –i.e. industry sectors, types of work,practice areas, or clients/matters. Lawfirms who invest in systems that are ableto provide this insight will be ideallyplaced to demonstrate their growthpotential to external investors.Evaluation of quality of earningsInvestors want to assess the futurepotential of firms’ assets, the majorityof which are intangible – things likeintellectual and human capital, brand,strength of client relationships andclient satisfaction. This again can bedrawn from the business intelligencefunctionality provided by businessmanagement systems.Law firms can evaluate and valuethese typically unquantifiable assets ina tangible manner by breaking downtransactional information. For example,finance managers/partners/lawyerscan assess the billing rates that clientsare on, which clients pay the highestrates, which ones are offereddiscounted rates the most and forwhich activities and matters, for whichcustomers the firm has had to write-offbilling and for what reasons, who arethe most profitable, who are theoutliers, who pose the most risk, andmuch more.Investors are looking forlaw firms that havepotential to groworganically, or expand intonew markets, geographiesand lines of business.This kind of management informationanalysis is essential – it helps ensureoverall client satisfaction and providesvisibility into areas where risk must bereduced, relationships strengthened,and where new opportunities lie.Investors want to see top-notchbusiness management“Every day you walk into the officeyou’re looking to make a profit” –famously said by investor James Cannin the context of the traditional viewthat a law firm is a service businesswhere profitability is a dirty word. Hissentiment sums it up – private equityfirms are looking to invest capital andstrategic expertise into law firms thathave potential to grow, and whosevalue in the market can be raisedin order to earn a high return oninvestment.Underpinning the firm with nextgeneration technology providescompelling evidence of theorganisation’s ability to achieve its ownand its investor’s strategic businessgoals. Enterprise-class financial andbusiness management systems areextensively used by mainstreamcorporations as platforms from which toexecute strategy and conduct businessoperation. Private equity investors arealready conversant with them and seethem as critical tools for fool-proofbusiness management – firms thatutilise these systems will likely provideprivate equity investors confidence intheir business. LMFraser Mayfieldwww.lawyer-monthly.com

IN ASSOCIATION WITH...TRUSTPROBATEDeath and bereavement is always a difficult time pitted with emotion and upset. Add tothat the complexities and complications that come with dividing the deceased’s estateamongst their beneficiaries, and it can become even more stressful.Currently it is estimated that over 60% of the UK’s populationdoes not have a will, which is worryingly high. The complicationsbecome even more complex when intestacy is involved,especially combined with family arguments and disputes.However, the problems don’t simply dissolve even when thereis a will, due to disputes about the validity of wills andaccusations of undue pressure on the deceased at the time ofmaking the will.There are of course a myriad of challenges that can arise withinthe practice area of wills and probate, especially whencontentious issues are involved. That’s why this month LawyerMonthly is taking a very detailed look at these issues byspeaking to a wide range of experienced will and probatelawyers and solicitors about the issues they see regularly, howpeople can avoid challenges to wills and how to plan willseffectively and correctly.We also feature an exclusive interview with Henry Frydenson,chairman of the Association of Contentious Trust and ProbateSpecialists (ACTAPS).According to the Association’s website, the ‘objects of ACTAPSare to provide a forum for specialists to exchange experience,know-how and an appreciation of the law and statutes in thisspecialist area; to hold seminars, conferences and meetings forthe discussion of contentious trust and probate issues; topromote the enhancement of the specific skills specialisationand expertise in this area by the provision of education andtraining and, where possible, to enable representations to bemade to the appropriate governmental and judicial bodies inrelation to contentious trust and probate issues’.

30In Association With...APRIL 2013trustprobateChairman ExclusiveThis month, Lawyer Monthly takes a detailed look into the practice area of ContentiousTrusts and Probate, and the challenges that face the lawyers and legal professionalsworking in this sector. As part of this, we speak exclusively to the Chairman of theAssociation of Contentious Trust and Probate Specialists (ACTAPS), Henry Frydenson. Aswell as this position, Henry also heads his own boutique firm, Frydenson & Co Solicitors,which specialises in this practice area.To begin with, Henry explained a littleabout his career and the role ofACTAPS. He said: “I have been inpractice for over thirty years, andspecialise in contentious trust, probate,Court of Protection, charities andmediation matters. In 2010, I set up my ownboutique firm specialising in these areas.“In the Queen’s Birthday Honours 2012, I wasawarded an MBE for my legal services and also formy work over a period of thirty years with avolunteer ambulance service. This was in additionto receiving the Queen’s Diamond Jubilee medalas a member of BASICS, a professional associationof medical professionals whose members providecare at the scene of major incidents andaccidents.“The Association of Contentious Trust and ProbateSpecialists (ACTAPS) was established on Monday8th September 1997 for solicitors, barristers and legalexecutives who are substantially engaged incontentious trust and probate law and practice.“I had for several years previously been consideringthe possibility of setting up a group for practitionerswho specialised in contentious trust, probate,charities and allied subjects. I initially wrote to 15firms, all of whom became founder members, andthe popularity of our specialist association canbe seen from the fact that we now have some550 members, despite the very rigorous entryrequirements.“The launch meeting of ACTAPS took place in thepresence of Mr Justice Lightman and the thenChief Chancery Master Dyson. The objects ofACTAPS are to provide a forum for specialists toexchange experience, know-how and anappreciation of the law and statutes in thisspecialist area; to hold seminars, conferences andmeetings for the discussion of contentious trust andprobate issues; to promote the enhancement ofthe specific skills specialisation and expertise in thisarea by the provision of education and trainingand, where possible, to enable representations tobe made to the appropriate governmental andjudicial bodies in relation to contentious trust andprobate issues.“There are two routes to membership of theAssociation, namely:-• An applicant whose existing expertise in ourspecialist area enables him/her to apply forfull membership• For those practitioners who do not yet havesuch substantial experience, we have formany years been running in conjunction withthe College of Law a very successfuleducation course. Those who successfullyconclude the course become associatemembers of ACTAPS and following two yearsafter the successful completion of theeducation course, they too can apply for fullmembership of the Association.“All membership applications are in theabsolute discretion of the AssociationCommittee. We have a monthly associationmagazine, monthly lunchtime lectures, anall-day seminar in April, an annual lecture inNovember, and a joint annual seminar with STEPin December of each year. In addition, we havewww.lawyer-monthly.com

APRIL 2013In Association With... 31recently instituted the annual ACTAPS awards foroutstanding achievement, and the winners of thefirst annual awards will be announced at the Aprilall-day seminar.”Going on to explain the most common types ofcases Henry sees within his role, he said: “The mostcommon types of cases are probate disputeswhere essentially either a person is contesting thecapacity of a testator/testatrix to have drawn upthe will they did; or cases where people who fallwithin the relevant categories of the Inheritance(Provision for Family and Dependants) Act 1975 findthat the provision or lack thereof in a will doesnot meet their expectations. We also comeacross national and international trust disputesand cases where people are patients of theCourt of Protection. In addition, we deal withcharity disputes, and an ever-increasing numberof mediations. In addition to being a solicitoradvocate,I am also a CEDR-accreditedmediator.”Of course, cases such as these can be tricky, andHenry went on to outline the main legal challengesthey can bring. He explained: “Having dealt withcontentious trust and probate matters of a nationaland international nature for a considerablenumber of years, I think the principal legalchallenge raised by such cases is to establish thefactual matrix that underlies the projected legaloutcome in any given case. In addition, I think it isessential to see the bigger picture at all times sincevery often, where families are involved in suchdisputes, it is preferable to try to secure anegotiated settlement rather than have the costand acrimony of formal court hearings, whichinevitably polarise the members of a family for alltime.”Talking about the advantages of an associationsuch as the ACTAPS, Henry said: “Where one isdealing with members of the Association, we haveinvariably found that there is a uniform degree ofunderstanding of the legal and other factors whichare involved, leading very often to a far moresatisfactory outcome than where one has apractitioner who does not have the necessaryexpertise.”Moving on to talk about the need for legislativechange within this area, Henry said: “While thecurrent intestacy provisions provide a coherentstructure, I feel strongly that in the fullness of time,legislative change is required to ensure that moreareas are covered in relation to intestacy.“In addition, I feel very strongly that legislation isrequired to rein in non-qualified people who do nothave an expertise in this field, from drawing up willswhich are subsequently challenged through thecourts.”Looking forward to what the future holds forthis practice area, Henry said: “In the currenteconomic climate and recession, I think the scopeand ambit of contentious trust and probatematters will increase and with it the need foracknowledged specialists to address the issues thatarise.“Having been the Chairman since the inception ofthe Association some sixteen years ago to date, Ihave been delighted by the calibre of specialistsolicitors and barristers that have been attracted toour ranks. In addition, our honorary membership,which has representatives of the judiciary andleaders in the legal field, is a dazzling list of theforemost exponents in our specialist area of legalwork.”Concluding, Henry said: “Initially, the Associationgrew out of the City of London. Presently, wehave members in Canada, Australia, Hong Kong,Switzerland and other countries as well.I am working very hard indeed to improve facilitiesfor our regional and international members, since Ibelieve that it is only by the increasing national andinternational membership role that we will be ableto further the objectives of the Association andmake it even more meaningful in the future.” LMIn the currenteconomic climate andrecession, I think the scopeand ambit of contentioustrust and probate matterswill increase and withit the need foracknowledgedspecialists to address theissues that ariseContact Details:ACTAPSC/o Frydenson & CoCentral Court25 Southampton BuildingsLondonWC2A 1ALwww.frydenson.co.ukHenry Frydensonwww.lawyer-monthly.com

32In Association With...APRIL 2013trustprobateContinuing with our special focus on the issuessurrounding contentious trusts and probatework, Lawyer Monthly speaks to Ryan Mowat,a partner in the Dispute Resolution departmentat Kingsley Napley. Kingsley Napley’sContentious Trusts and Probate team compriseslawyers from the firm’s Dispute Resolution,Private Client and Family teams. They act in afull range of disputes in this field, includingbringing and defending claims under theInheritance (Provision for Family andDependents) Act 1975 (“the 1975 Act”).Contact Details:Ryan MowatPartnerKingsley Napley LLPEmail: rmowat@kingsleynapley.co.ukDirect dial: +44 (0)20 7814 1238Are claims under the 1975 Act on the rise?Yes. According to the most recent statisticspublished last year, it was estimated that in thepreceding three years more than 1000 claims underthe 1975 Act have been formally commenced incourt. I expect that the number of claims willcontinue to rise especially in the current economicclimate, where the parties are often fighting over apotentially large financial windfall. I also believethat claimants are often heartened by other highlypublicised successful claims under the 1975 Act.However, this is dangerous because every caseunder the 1975 Act is fact sensitive and heavilydepends if/how a judge decides to use his or herdiscretion. This uncertainty may encourageclaimants to bring claims, but it also adds to the riskof the litigation.Have you noticed any trends with 1975 Actclaims in recent years?We have noticed a steady increase in claims underthe 1975 Act by surviving spouses where one orboth of the parties have been married previously.In those cases, it is quite common that the couplemay have children from previous marriages andhave started the marriage with different financialassets and liabilities. Surviving spouses in particularhave excellent prospects of succeeding with aclaim under the 1975 Act if a reasonable provisionhas not been made for them either in a Will or ifthere is an intestacy. In addition to the usual factorsthat need to be taken into account under the 1975Act, the courts will undertake a ‘divorce crosscheck’ to hypothetically weigh up what thesurviving spouse may have received from adivorce. Last year, the most high profile case in thisarea was Lilleyman v Lilleyman, which gave afurther insight into the way that the courts canapproach these cases. I expect the 1975 Act tocontinue to be fertile ground for claims by spousesfor the foreseeable future, especially as the numberof second and third marriages is likely to increase.How will the 2012 Court of Appeal decision in Ilott vMitson affect claims by adult children under the1975 Act?In my view, it will have very little impact on theoutcome of future cases commenced by adultchildren. I believe that the significance of it hasperhaps been overplayed in some quarters. The firstimportant point to note is that every case isdependent on its facts and the facts in that casewere quite unique. It is not difficult to understandwhy the court would have had some sympathyfor an adult child of limited means and withdependents of her own, where the namedbeneficiaries were charities. In any event, theaward itself was relatively low and, given the costsof litigation, a relatively small award under the 1975Act can often be a pyrrhic victory. Ultimately, adultchildren will continue to struggle with 1975 Actclaims if they cannot evidence some financialreliance on the parent and if the provisions in theWill do not lead to an unreasonable result.Are there any developments to look out forin 1975 Act claims?The intestacy rules protect spouses but notcohabitees, which in my experience tends to leadto more claims under the 1975 Act by unmarriedpartners. The Government has recognised that thenumber of couples cohabiting, rather thanmarrying, is widespread and on the increase. Underproposals made by the Government last year,cohabitees will be entitled to a right to inheritsomething under intestacy from the estate of theirpartner, provided that they have lived together fora minimum of five years if there are no children, orfor a minimum of two years, if they do havechildren. I believe that this proposed reform issensible and it will probably lead to a reduction in1975 Act claims by cohabitees. LMwww.lawyer-monthly.com

APRIL 2013In Association With... 33Looking further into the issues surrounding contentious trusts andprobate, Lawyer Monthly speaks to Victoria Jones, a partner atLester Aldridge LLP, a full service law firm with offices in London,Southampton and Bournemouth.Please introduce yourself, your role and yourfirm.I am a partner in both the Contentious Trusts andProbate and Charities Teams at Lester Aldridge LLP.I specialise in contentious trust and probate casesand also Court of Protection matters. My caseloadinvolves both claimant and defendant work and Irepresent private clients, families and charities.What kind of trust and probate cases have youbeen involved in during the last year?During the last 12 months, I have worked on a widevariety of contested trust and probate cases. Theserange from breach of trust claims, to those madeunder the Inheritance (Provision for Family andDependants) Act 1975.I have also dealt with cases involving mutual wills,will construction and validity as well as various Courtof Protection applications.Which case interested you the most and why?One case which I found of particular interest thisyear involved a Barder application against anestate which was made by the ex-spouse of thedeceased.After the deceased’s death, the ex-spouse hadsought to set aside a complex divorce settlementwhich they had both entered into by consent (andwith the benefit of legal advice), during thedeceased’s lifetime.I represented the residuary beneficiaries of theestate. Although, the claimant’s application wasunsuccessful, the unusual nature of this case didpresent a number of challenges.What area have you found most challengingand how do you feel this practice area hasdeveloped over the course of the last year?I have not found any single particular areachallenging, but there are periods when I willdeal with one type of case more than others. Forexample, the number of claims under theInheritance (Provision for Family and Dependants)Act 1975 currently appears to be increasing.This may be due to family members anddependants becoming more aware of their legalrights under the 1975 Act, due to high profile casesreported in the media. Also, in the currenteconomic climate, potential beneficiaries may feelmore inclined to pursue a claim if they believe thatthe testator has failed to make reasonable financialprovision for them and the court may award thema significant lump sum from the estate.Tell me about trust litigation and how you dealwith complex and multi-jurisdictional claims?Trust litigation is such an interesting area as it is sovaried.Many trust cases will relate to the management ofa trust fund. These will usually involve disputesbetween either the trustees and beneficiaries or thetrustees themselves.Where there are life interest trusts, it can also bevery difficult for trustees to maintain a balancebetween considering the needs of the party withthe life interest and the remaindermen of the trust.Those cases where communication between theparties can be re-established and the futuresmooth administration of the trust secured areparticularly rewarding.Most trusts will have a number of elements that willneed to be considered. Multi-jurisdictional claimsare not a problem, as Lester Aldridge is part of theMSI network of lawyers and we therefore havelinks with trusted specialist firms all over the worldwhen required. We also have our own specialistInternational Probate Team who deal with theadministration of estates in foreign jurisdictions.What are the main challenges to arise withindomicile disputes?Domicile disputes are fascinating and, it very muchdepends upon which jurisdictions are involvedand also the facts of each case, as to types ofchallenges which will arise.Establishing whether or not someone had electedto change their domicile of origin can be difficult.One interesting area is where a claim is madeunder the Inheritance (Provision for Family andDependants) Act 1975 and a party fails to firstlyconsider the issue of domicile. This can beespecially catastrophic for a claimant; if it can beproved that the deceased did not die whilstdomiciled in England and Wales.A recent decision where domicile was consideredin a claim under the 1975 act is Musa & Ors vHolliday & Ors [2012] EWCA Civ 1268.Practically, domicile disputes in such cases willincrease costs, given the time involved in dealingwith this preliminary issue, before the main part ofthe claim can be addressed.Is there anything else you would like to add?The contentious trust and probate landscape haschanged considerably during the last 10 years,especially as family dynamics continue to evolve.More people now appear to be prepared tochallenge wills and trusts and also the actions ofexecutors and trustees. This might be due, in part,to the fact that information about their rights andhow to bring claims is far more easily accessiblethrough the internet. With the introduction ofsmartphones and tablet devices, people can nowlook up how to enter a caveat on their morningcommute. LMContact Details:Victoria JonesVictoria Jones – PartnerEmail: victoria.jones@LA-law.comTelephone: 01202 786152www.lawyer-monthly.com

34In Association With...APRIL 2013trustprobateChallenges to the validity of willsAs part of our feature on contentious trusts and probate, here we take a look atchallenges to the validity of wills by speaking to Andrea Zavos, partner in the contentioustrusts and estates team at Speechly Bircham, a full service law firm with 90 partners andover 250 lawyers in total.Please introduce yourself, your role andyour firmI have 20 years’ experience in advising oncontentious Will disputes. My practicefocuses on disputes over estate and trustadministration including professionalcharges, investments, challenges to validityand advising trustees when trusts arechallenged on divorce and Will disputes.I handle claims in various jurisdictions andhave extensive experience of and apreference for resolving disputes bymediation as well as in High Court litigation.What key probate cases have you beeninvolved in during the last year?I cannot provide specific details of cases wehave been involved in but a typical scenariothat arises is as follows:An elderly, childless testator who, havingmade a professionally drafted Will with herregular solicitors leaving her estate to anational charity for example, then dies.Following her death, a new Will emergesleaving everything to her neighbour or carer.In one recent case it turned out that the laterWill was made the day before the testatordied and it was witnessed by two ‘friends’.Following enquiries, it became clear thatthe carer had prepared the Will and that thetestator was in a coma by the time sheapparently signed it.We also regularly bring or defend claimsunder the Inheritance (Provision for Familyand Dependants) Act 1975. This is not reallya challenge to the validity of the Will but aclaim that the Will does not make provisionfor someone who was financially dependenton the deceased up until his or her death.Those who can claim under this Act includespouses, cohabitees, mistresses (men don’ttend to make provision for their mistresses intheir Wills) and children.Which case interested you most andwhy?Probate cases are particularly interestingbecause the main witness, the testator, is notaround to tell us what he or she was thinkingat the time. We have to form a pictureof what the testator intended to do byweighing up the competing evidence offriends, neighbours and doctors. In one ofour current matters, we are quite sure thatthe testator believed he was signing off aschedule of works rather than the Will whichhis decorator, whom he had known for acouple of months, subsequently produced.Because these cases are so fact heavy, theyare expensive to bring to trial and there is,even in the strongest of cases, a risk that theevidence will unravel at trial therefore I getthe most satisfaction out of settling theseclaims for families.How do you feel this practice area hasdeveloped over the course of the lastyear?Probate claims are on the rise. These claimswere once just a part of my work as ageneral commercial litigator. For the last 10years, I have specialised solely in contentioustrust and probate disputes.The reasons for this increase include therise in property prices, increasingly complexfamily relationships with families widelydispersed and, more recently, the recession.www.lawyer-monthly.com

APRIL 2013In Association With... 35There has also been an increase in themedia’s interest in these claims so that thepublic are more informed about their rights.Finally, and most significantly, as theaverage life-span increases, so does thelikelihood of people’s bodies outliving theirminds, creating more opportunities forunscrupulous people to take advantage ofvulnerable elderly people.What are the most common challenges tothe validity of Wills?The most common challenge is that thedeceased did not have the necessarymental capacity to make a Will because ofdementia or ill health. It is important to notethat dementia is not necessarily a bar tocapacity and it depends very much on thedegree of dementia. It is possible tochallenge a Will on the grounds that thedeceased was unduly influenced to make aWill in someone’s favour but even if this issuspected, it is hard to prove. We are allsubject to influence by those around us butto be undue, it has to be akin to force, whichis difficult to prove when the person doingthe forcing will deny it and the person whohas been forced is not around to describe it.It is also possible to challenge a Will on thegrounds that it has not been properlyexecuted so it is always worth checking thiswith a solicitor as the rules are quite intricate.How can people avoid challenges to theirWill?Make your Will with a reputable solicitor whowill be able to assess your mental capacityto make it and will obtain the input of adoctor if there is any doubt. If you want toleave everything to the cat’s home ratherthan to family, a solicitor will record yourreasoning which makes it far more difficult tochallenge your decision. A reputablesolicitor will ensure that he or she sees youon your own so that you will be as free as ispossible from undue influence. It is muchmore difficult to challenge a Will if all theright steps have been taken therebyavoiding unnecessary stress and costs foryour family after your death.What is the most popular method ofdispute resolution, other than litigation,within trusts and probate?Undoubtedly mediation. Approximately 75%of cases which go to mediation are resolvedwithout having to proceed to trial. Even ifa case does not settle at mediation, itoften triggers a resolution before trial as themediation process will have forced theparties to examine the strengths andweaknesses of the case and air theirgrievances: sometimes there is even ameasure of reconciliation if the dispute isbetween family members. It is much, muchbetter to have the chance to agree a dealwith the opposition. It might not be perfectbut the outcome at trial is win or lose, quiteapart from the costs, the stress and the timeit takes to get to trial.Ideally mediation should take place earlyenough to justify the cost savings of theexercise, but not so early that the partiesare still considering the evidence and meritsof their respective cases. However, overallthere is never a bad time to mediate andI have known many clients reach acompromise despite their best intentions notto. LMApproximately75% of caseswhich go tomediation areresolved withouthaving toproceed to trial.Contact Details:Andrea ZavosTel: +44 (0)20 7427 6453Email: andrea.zavos@speechlys.comwww.lawyer-monthly.com

36In Association With...APRIL 2013trustprobateHere, Lawyer Monthlyspeaks to Deborah Cain,Associate at Adams &Remers, about her workaround contentious trustsand probate and thechallenges she faces.Contact Details:Deborah CainEmail: deborah.cain@adams-remers.co.ukTel: 01273 403211Please introduce yourself, your role andyour firm.I have been practising in Dispute Resolutionsince the late 1990s but increasingly, andparticularly over the past nine years, I havebeen dealing with more and more ContestedTrusts and Probate cases.I am a member of The Association of ContestedTrusts and Probate Specialists (ACTAPS), theLondon Litigation Lawyers Association (LSLA)and the Professional Negligence LawyersAssociation (PNLA). My firm, Adams & Remers,have offices in Sussex and Central London,and I try to divide my time between the two. Ihead up the firm’s Contested Trusts andProbate Team which draws on the considerableexperience of our Private Client Team andour Litigation Team. The firm serves corporate,institutional and private individual clients.What key trusts and probate cases haveyou been involved in during the last year?Most trusts and probate disputes get resolvedbefore trial and I am pleased to say thatmost of my cases tend to follow that pattern –sparing my clients the expense and anxiety ofhaving to attend court. I have however beeninvolved in some interesting cases. I dealt withone will challenge claim where the testator hadmade his will, married and died all on the sameday. I acted in a claim under The Inheritance(Provision for Family and Dependants) Act 1975brought by the gay partner of a Deceasedin circumstances where the relationshiphad been conducted in complete secretover many, many years. One particularlychallenging case involved Inheritance Actclaims brought by members of a Deceased’sfamily where he had in fact had two “families”on other sides of the world, neither of whomknew about the existence of the other.Which case interested you most andwhy?No two cases are ever the same. They mayoften involve the same legal principles but howthe facts fit into those principles and theapproach the client wants to adopt are sooften very different. This is therefore a difficultquestion. If I had to select one, it would haveto be the case where what was very clearly ahomemade will featuring the (allegedly) forgedsignature of the testator had been mysteriouslydelivered to the Deceased’s usual familysolicitors offices shortly before her death butit excluded entirely my client who was theDeceased’s only son and who had beendevoted to her up until her death.Can you tell me about trust litigation andhow you deal with complex and multijurisdictional claims?Many trust disputes do involve off shorejurisdictions and that can present a whole hostof different challenges for obvious reasons.There are decisions to be made aboutjurisdiction which require knowledge of howthe different jurisdictions operate and whichserve the clients’ best interest in any givensituation. The law of one jurisdiction might bedeliberately designed to frustrate the law ofanother or the assets of the trust may belocated in a jurisdiction which does notrecognise trusts. It is always necessary toidentify at the outset whether the trust, althoughvalid on the face of it, might be said to beinvalid meaning that its assets could be clawedback by relatives, creditors or the Revenue.Often there may be an urgency to addressasset preservation issues and of courseultimately enforcement. LMwww.lawyer-monthly.com

APRIL 2013In Association With... 37Looking further into the issues surrounding the practice area ofcontentious trusts and probate, Lawyer Monthly speaks toJonathan Grogan, head of the Will and Trust Disputes team atnational UK law firm, Dickinson Dees. Based in Newcastle uponTyne, the firm has offices across the country in the North East,Leeds and London. It is currently on the verge of a merger withBond Pearce to create Bond Dickinson – a law firm employingover 1,200 people across eight offices in the UK.What key trust and probate cases have you beeninvolved in during the last year?Whilst we can’t give specific details due to clientconfidentiality, here are some examples of recent keycases:• We acted for the trust company of a major bank ina wide variety of litigation affecting trusts andestates where the trust company had beenappointed as executor or trustee. Issues includedlitigation involving beneficiaries and applicationsto court relating to the interpretation of trustdocuments.• We’ve also acted for the executor of a particularlycomplex estate and its related pilot trusts dominatedby contentious issues. Seven separately representedbeneficiaries were involved with claims mainly underthe Inheritance Act 1975. The case includeddifficulties concerning the potential tax treatment ofthe estate, the fact that a lot of the value was tiedup in unsold real estate and major disagreementsover the level of financial support required forminor beneficiaries.• Recently, we acted for a wealthy individual whoseprevious advisers failed to advise on the taximplications of a gift of property to his son, which heowned jointly with his wife. Significant CGT was due.Sadly, the wife died of a terminal illness shortly afterthe gift, causing IHT to be payable too. In additionto a professional negligence claim, we areconsidering a court application to set aside the gift,arguing that it would not have proceeded had thewife known about her terminal condition. The casewill be heavily influenced by the forthcomingSupreme Court decision in the Futter case.Which case interested you most and why?The second case above has been particularlyinteresting. It involved tricky legal concepts, somevery difficult family issues and a challenging projectmanagement aspect given the number of partiesinvolved.What have you found the most challengingaspect of trust and probate disputes and how doyou feel this practice area has developedrecently?The most challenging aspect is balancing the need toresolve matters in a financially sensible way against theentrenched positions which family members oftentake. In this way, I would say that lawyers in this fieldtherefore need to be ‘emotionally intelligent’ in orderto advise their clients effectively.As a practice area, things are developing apace.Trust and probate disputes are proving to becounter-cyclical in that that more cases are reachingcourt following the downturn. Complex familysituations and increased press attention are alsoplaying a role. Hopefully an increase in specialistpractitioners in this area should lead to disputes beingresolved more efficiently in future.Can you tell me about trust litigation and how youdeal with complex and multi-jurisdictional claims?The underlying problem is usually a dispute betweenbeneficiaries and trustees. The trustees may havedecided to prefer one beneficiary, or may beaccused of mismanaging the trust assets.Disputes also arise due to the use of offshore trusts tohide assets. It can be harder to extract information inmulti-jurisdictional claims due to the different lawswhich apply. This results in complications andincreased costs. The key to resolving them is havingtrusted relationships with offshore advisers andcommunicating effectively with the client so theyunderstand the main issues.What is the most popular method of disputeresolution, other than litigation, within trusts andprobate?Without a doubt mediation is most popular andprobably the most successful. One of its great benefitsis flexibility – the parties don’t even have to sit in thesame room if they don’t want to! Recently we haveeven successfully conducted mediations bytelephone which helps avoid travel and additionalexpense – realistically it was the only way we couldproceed when one of the parties was based inAustralia.What is the main challenge arising within Domiciledisputes?In a word, uncertainty. The law in this area means it isoften hard to say for certain where someone isdomiciled. Clients often find it confusing as differentconcepts of domicile apply to different jurisdictions’laws of succession and taxation regimes. LMContact Details:Jonathan GroganTel +44 191 279 9804Email: jonathan.grogan@dickinson-dees.comWebsite: www.dickinson-dees.comwww.lawyer-monthly.com

38In Association With...APRIL 2013trustprobateAs part of Lawyer Monthly’s special feature on contentious trusts and probate, we speakto Paula Myers, a Partner at Ward Hadaway, a UK Top 100 full service law firm with officesin Newcastle, Leeds and Manchester. Paula is the Head of the Commercial LitigationDepartment in the Leeds and Manchester offices and the Head of the ContentiousPrivate Wealth Department for all three offices. Paula is ACTAPS (Association ofContentious Trust and Probate Solicitors) qualified, having a Diploma in contested Trustsand Probate and an Advanced Certificate for Trust Disputes from STEP, the Society ofTrusts and Estate Practitioners. Paula has also been nominated and now shortlisted tothe final three candidates for the inaugural ACTAPS Awards in the category ofContentious Solicitor of the Year 2013.Paula explained: "Over the past 12months, I have been involved in thefollowing types of cases:-I was instructed by a wife of 40 yearswho had been excluded completely from a Willby her husband. Their son (one of four children)had also been excluded, despite dedicating hislife to the family business, having sacrificed hisown career and educational desires. The casewas complicated as it involved seven otherparties who were outside of the jurisdiction andsometimes without legal representation. Welodged a claim for the widow for financialprovision under the 1975 Act and a claim forresulting trust in respect of five properties. Forthe son, a claim for Proprietary Estoppel wasbrought. The case resulted in a three daycontested High Court Trial. We were successfuland managed to obtain an Order forapproximately 90% of the Estate and indemnitycosts. As the parties were outside of thejurisdiction we also obtained an Order for aninterim payment towards costs of £100,000. TheDefendants asked for permission to appeal theJudgment and were refused by the FirstInstance Judge and subsequently refused alsoby the Court of Appeal."On another case, we acted for an individualwho was the youngest child of the family. Hewas excluded from his father’s Will, despitededicating over 38 years of his life to the familyfarm and expectations to benefit from theterms of earlier Wills. The Client was pennilesswith no assets and therefore unable to fund thelitigation, although he had a strong case forProprietary Estoppel. An After The Event (ATE)policy was obtained to provide the Client withprotection against adverse legal costs andwe agreed to carry out the case on a 100%Conditional Fee Agreement (CFA). We settledthe case after an18-hour mediation and theclient secured a settlement of over £1 million.We were also successful at a contestedDetailed Assessment Hearing regarding costsand recovered indemnity costs.www.lawyer-monthly.com

APRIL 2013In Association With... 39"These cases interest me because the outcomehas a real impact on people’s lives and in somecases changes those lives dramatically. Thereis a lot of client contact and I enjoy meetingclients and getting to know them, albeit insometimes very difficult circumstances."This area of Law is growing and cases becomemore prevalent. This is mainly because we livelonger and enjoy more complicated familyarrangements. Mental capacity issues aremore prominent as our life expectancy hasincreased and we face illnesses which wepreviously may not have had to deal with.Step-children and step-parents find themselvesfighting for what they believe is their inheritanceand their entitlement. It is difficult for peopleto make plans which cater for everyone andappear ‘fair’ to family members in order toavoid disputed issues."In addition to these factors, I think that as asociety we have become more litigious bynature and are more likely to bring claims wheremoney is concerned. This is especially thecase at the current moment in time when theeconomy has undergone a prolongedrecession and money is in shorter supply than inprevious, more prosperous times. We also livein something of a blame culture whereprofessionals can be held accountable for theiractions. As a result, professional negligenceclaims against Trustees are on the increase andthis is especially the case with investmentswhich have not performed well in a very difficulteconomy. Some beneficiaries turn to theTrustees to explore if there is some element ofblame or breach of fiduciary duty."In some cases, it is very difficult for people witheven the best intentions to make provisionswhich satisfy everyone in their family. I havedealt with a case where a father tried, wherepossible, to be as fair to his wife and his 3children via his Will. The assets involved werevery varied and raised dramatically differentshares for the beneficiaries. The eldest sonof the family believed this to be unfair and healleged as a result that his father did not havemental capacity to execute and prepare hisWill. We were fortunate in this case to be ableto obtain a favourable Medical Expert whichconcluded that the father did have capacityto make the Will. Evidence from his formerSolicitor and Accountant and a very detailedpersonal diary helped to persuade ouropponents of the strength of our case, whichsettled on amicable terms after WitnessStatements were exchanged between theparties."We also represented Sir John Howard Lawsonin defending a claim brought against him by hisson. We have acted for Sir John for many yearsas he has been in litigation with his son foralmost 20 years. The last case proceeded tothe Court of Appeal and Sir John was successfulin defending this case. The Supreme Courtrefused permission to appeal the Judgment.We then assisted Sir John in defending 21 out ofthe 22 claims brought by his son, which relatedto breach of trust which involved allegations offraud and coercion. The case is now with TheCourt of Appeal, and we await the outcome forthe Claimant’s further Application for Permissionto Appeal the First Instance Judgment. Thecase was heavily reported in the national press."Because you are dealing with human nature, itis not possible to avoid all claims completely.However, it is possible to minimise the likelihoodof a claim by talking to family members aboutwhat you want to happen after your death orin circumstances where you lose your capacity."With this in mind, it is vital to make sure your Willand Powers of Attorney are up to date and welldocumented since this will protect those dearPaula Myersto you and have, in many cases, helped toexplain to the Court what was intended or whatthe thinking was behind best laid plans whichmay not have proceeded in the way they weredesigned."Mediation is also a great tool to help to resolveTrust and Probate issues. This is becausethese cases involve family dynamics and theindividuals concerned can feel upset andemotional about other family members and theposition that they find themselves in. Mediationprovides a forum to discuss emotional factorswhich are rarely aired in detail in a court roomand are sometimes constrained by the rules ofevidence. It is often the case that a resolutioncan be reached which incorporates settlementterms that cannot be achieved throughcontested litigation and allows the parties,in some cases, to rebuild a relationship –something which is often worth more in the endthan the sums of money or property involved."In the forthcoming year, we are handlingfour large Breach of Trust claims involvingprofessional Trustees, which may result in a trialor a settlement. The breaches of fiduciary dutyrelate to breaches of investment duties andfailure to keep proper accounts." LMwww.lawyer-monthly.com

40In Association With...APRIL 2013trustprobateAs part of Lawyer Monthly’s focuson Contentious Trusts and Probate,here we speak to Adam Draper,Partner in the Wills Trust and EstateDispute Team at Irwin Mitchell, oneof the largest law firms in the UK withoffices throughout the country.Adam Draperwww.lawyer-monthly.comWhat key trusts and probate cases have you beeninvolved in during the last year?Re JC; D v JC (2012) MHLO 35 (COP).This was a statutory will application by JC’s daughterD, who had been conceived following a post-maritalrape of JC’s ex-wife and adopted by other parentsvery shortly after her birth, and who had never met orhad any contact with JC; she sought a statutorywill giving her an equal share of JC’s £3.5m estatealongside his other children.Fowler v The estate of Reginald Cornelius (deceased)& OrsHere we acted for the Claimant in relation to theestate of her parents who were killed in a caraccident. The Claimant and her deceased parentshad won the National Lottery receiving in excess of£2million. The Claimant was the driver of the vehicleand was convicted of causing the death of herparents by dangerous driving. The effect of this wasthat her share in the estate she would receive from herparents was forfeit.Jabeen v Lloyds TSB Bank PLc and 5 orsHere we acted for the personal representatives in aclaim under the Inheritance (Provision for Family andDependants) Act 1975.Which case interested you most and why?The Re JC case was a fascinating and challengingcase for all involved. JC was the daughter of thewealthy patient. She had been conceived followingthe rape of her mother by the patient. She wassubsequently adopted. The question for the court waswhether it was in the best interests of patient who hadthroughout his life done precisely the ‘wrong thing’, tomake provision in his statutory will for JC. Senior JudgeLush dismissed the application on the basis that JChad had no relationship with her father and would nothave stood to benefit on intestacy.What have you found most challenging and howdo you feel this practice area has developed overthe course of the last year?Enquiries into the team have grown by over 60%compared with last year. This is certainly a growtharea which appears to derive from an ageingpopulation (who are beginning to become involvedin legal disputes regarding their estate and care) andthe increasingly diverse family unit. Statutory will andLPA disputes are likely to become more common withan ageing demographic.Are there any legislative changes you would liketo see? If so, please explain.In 2012 there were 5.9 million co-habiting couples. Alarge proportion of the 5.9 million also have children.The law has failed to keep pace with this socialchange. Whilst there does not appear to be anyappetite for amending the rules of intestacy, it wouldbe helpful if long terms partners were regarded on thesame footing as married spouses.Such a changing global economy makes trust andestate planning a difficult task for many wealthyindividuals, what are the key legal implications theyshould consider?We deal with a lot of claims in which the deceasedholds property overseas and there is no provisionmade in the Will to deal with it. The simplest way toavoid problems is to ensure that separate wills areexecuted dealing with the assets in that particularjurisdiction.Can you tell me about the issues that commonlycrop up within claims arising from wills or onintestacy, including claims under the Inheritance(Provision for Family and Dependants) Act 1975?The two main types of 75 Act claim we see are;1.Conflict between a second spouse and childrenfrom a first marriage. These claims usually arisebecause of a failure by the testator to consider thefinancial realities of the family unit post death.2.Claims by unmarried partners. These usually arise onintestacy and involve the partner having to bringa claim against the intestate family members. Onnumerous occasions we have acted for parentsbringing claims against their minor children. Theseclaims are often to resolve the inflexibility of intestacy.Is there anything else you would like to add?2013 will be an interesting year. Post-Jackson themarket will need to evolve to meet the needs of theconsumer. Finding the right funding solution for theclient will be critical in securing market share. LM

APRIL 2013In Association With... 41Continuing with our focus on Contentious Trusts and Probate,but with a particular spotlight on charities, we speak to LucyGill, Associate and Charity and Contentious Trust andProbate Specialist at Foot Anstey LLP.Which key trusts and probate case that you haveworked on recently interested you the most andwhy?Gill v Woodall & Ors [2009] EWHC B34 (Ch)The RSPCA was the sole named beneficiary in the Willof Joyce Mary Gill deceased to the exclusion of heronly daughter Christine Gill. Dr Gill brought a seriesof claims against the estate which included theclaim that her mother did now know and approve ofthe contents of her Will (because of a severe anxietydisorder) and/or that her mother and father hadpromised her the family farm (worth approximately£2.5 million). Shortly before trial Dr Gill also raised afurther claim that her mother had been undulyinfluenced into making a Will.Unusually the trial Judge determined that the burdenof proving that Mrs Gill knew and approved of her Willlay with the RSPCA because he felt that suspicion hadbeen aroused. That suspicion arose, according to thetrial Judge, because Mrs Gill had disinherited her onlychild.The trial Judge went on to find that the RSPCA haddischarged the burden and this challenge failed.However despite having approved of her Will the trialJudge found that the deceased was undulyinfluenced into making her Will by Mr Gill. The trialJudge was satisfied that Mr Gill exerted pressure on MrsGill and that it amounted to coercion. Unusually thepressure that was exerted arose simply from the natureof the relationship that existed between Mr and MrsGill.The RSPCA appealed the High Court’s decision. TheCourt of Appeal agreed with the trial Judge that it wassurprising that Mrs Gill had not left anything to her onlydaughter in her Will and chose instead to benefit theRSPCA with whom she had no obvious connection.The Court of Appeal however reached a differentdecision to the High Court. It found that the Will wasinvalid because Mrs Gill did not know and approve ofthe contents of the Will.The trial Judgment has been seen by some as relaxingthe high standard for establishing undue influenceclaims because influence arose from the nature of therelationship between Mr and Mrs Gill, not evidenceof a specific act of coercion. It might also be saidthat this case leans away from the concept oftestamentary freedom that we have in this countrysetting a higher bar in cases where testators havechosen to do something not in line with expectations.It certainly places charities in a difficult position giventhat a large amount of their income is derived fromlegacies, more often than not from individuals with noprevious connection to the charity.What have you found most challenging and howdo you feel this practice area has developed overthe course of the last year?Given that over 60% of the population have not madea Will it is perhaps surprising that Will disputes are socommon place, but it seems the number of disputesin this area continues to rise. The increasing mediacoverage of family feuds over estates and themedia’s interest and opinion on charities’ involvementin such disputes inevitably fuels this area of litigation.In the current economic climate disappointedbeneficiaries with an expectation of inheritance seemto be willing to ‘have a go’.Are there any legislative changes you would liketo see? If so, please explain.The reluctance to attribute any great weight to lettersof wishes or clauses in Wills explaining the reasons forthe testator’s decision makes it difficult to prevent adispute arising after death if the family members feeldisgruntled. There should be greater certainty forindividuals who take the step to make a will that theirestate will be dealt with in accordance with theirwishes.Such a changing global economy makestrust and estate planning a difficult task for manywealthy individuals, what are the key legalimplications they should consider?Be alive to the fact that idle discussions with childrenabout testamentary intentions may be interpretedand converted into a legal claim.Can you tell me about the issues that commonlycrop up within claims arising from wills or onintestacy, including claims under the Inheritance(Provision for Family and Dependants) Act 1975?• We see an increasing number of claims concerningexecutors’ conduct. This applies to professionalexecutors as well as lay executors. From a charitybeneficiary perspective the executor commonlyfails to understand the charity’s own duties and legalobligations and can be hostile to providing theinformation they require. From an individualbeneficiary perspective they are often tempted todeal with contentious issues which should be amatter for the beneficiaries.• We have an increasing number of claims by adultchildren or children of second marriages for financialprovision from the deceased’s estate. There seemsto be an automatic expectation for inheritancewhich fuels the claim, regardless of their need formaintenance. Often the key issue is the adult child’sability to work, the extent of their search for work orthe court's expectation that they should work. LMContact Details:Lucy GillEmail: lucy.gill@footanstey.comTel: 01392 685257www.lawyer-monthly.com

42In Association With...APRIL 2013trustprobateContinuing with our special feature on contentious trusts and probate issues, LawyerMonthly speaks to Lucy Howard and David Catchpole, Head of the Contentious Trustand Probate department at national firm, Mills & Reeve, one of the few firms outside ofLondon which has a specialist team dealing exclusively with such matters.What key trusts and probate cases haveyou been involved in during the last year?We have had a very busy year as the numberof contested trust and probate cases continuesto rise. Having said that, very few of our casesreach the courts and most are thereforedealt with in private away from the public eye.Due to the nature of our work, the vast majorityof the cases we have are (and remain)confidential. They range from dealing withcomplicated multi-jurisdictional trust disputeswhere tens of millions of pounds are at stake, toadvising in relation to contested probate issueswhere the estate may only be a few hundredthousand pounds or involve items of particularsentimental value. We have had to argue overthe return of a garden gnome in the past forexample!During the last year, we have dealt withnumerous will disputes involving testamentarycapacity, want of knowledge and approval,improper execution, undue influence andsecret trusts. We have also acted in somerelatively high value proprietary estoppelclaims. In addition, we have been instructedin various trust disputes for either trustees orbeneficiaries, many of which have involvedmulti-jurisdictional issues. We have dealt withclaims trying to prove copy wills where theoriginal has been lost; we have encounteredtrustees whose behaviour was completelyinappropriate towards female beneficiaries (wewill say no more!); files where solicitors preparedwills which did not do what they purportedto; cases where elderly testators have beensurreptitiously moved to secret locations in thedead of night; wills which have been signedtwice in different coloured pens and a wholerange of other weird and wonderful issues.Which case interested you most and why?Virtually all of the cases we deal with areinteresting – which is why this is such an excitingarea of the law in which to specialise. There isalmost always a high degree of emotioninvolved for the client which, as well as somecomplex areas of law, makes each case verydifferent but also demanding. We have dealtwith a couple of proprietary estoppel cases inparticular which have been challenging giventhat the person allegedly making theassurances is no longer around to giveevidence. Piecing together the backgroundfrom a variety of sources can be difficult butalso very rewarding when someone yougenuinely feel deserves something receiveswhat they are entitled to. Being based inEast Anglia, people may not be surprised tohear that some of these proprietary estoppelcases have involved farms being promised tounderpaid workers by rather taciturn farmers!How do you feel this practice area hasdeveloped over the course of the lastyear?It never ceases to amaze me that an area oflaw which has been around for centuriescontinues to evolve at such a rapid rate. Thisis especially the case in matters involvingtestamentary capacity where advances inmedical science are constantly pushing theboundaries of our knowledge. The brainremains, however, something of an enigmain so many ways and this makes capacitycases frequently extremely interesting andchallenging. The area of law also reflectsmodern society and this can be seen inoutcomes which may not have been predicteda decade or two ago – such as the growingnumber of claims by co-habiting, non-marriedcouples under the Inheritance (Provision forFamily and Dependants) Act 1975 for example.What are the most common challenges tothe validity of wills?Although many people seeking to challenge awill believe there has been an element ofundue influence at some stage, proving suchcoercion in practice is usually very difficult. Asa result, the most common challenge to thevalidity of wills that we see involves an allegedlack of testamentary capacity. With an ageingwww.lawyer-monthly.com

APRIL 2013In Association With... 43population and the resultant increase ofdiseases like Alzheimer’s, this is a trait which wethink will only continue.How can people avoid challenges?There are a number of ways in which thechances of a challenge arising can bereduced, although it can be very difficultto avoid the possibility of any challengewhatsoever. People should ensure that theyhave an up to date will prepared by a solicitorwho should take a detailed attendance noteof their instructions and the circumstancessurrounding the preparation and executionof the will. If someone who might expect tobenefit is being left out of a will, it is always agood idea to have an explanation by thetestator either in a letter of wishes or even thewill itself. While this might not appease thedisinherited, it should help them understand thetestators’ motives and rationale. It could alsoprovide useful evidence to the court as to thetestator’s state of mind should the matter everget that far.If the testator is elderly or ill, it would be wise toengage a medical practitioner to opine ontestamentary capacity to reduce the chancesof a later challenge. The testator should ifpossible ensure to give their instructions andexecute the will without the involvement ofanyone that stands to benefit from the will whocould be alleged to have unduly influencedthem. Likewise a solicitor should satisfythemselves that the instructions they arereceiving reflect the true wishes of their clientand not someone subject to the overbearinginfluence of others.The testator and their solicitor should ensure thatthe legalities of properly signing the will areadhered to carefully to avoid any argumentsabout due execution. We had one case lastyear where a will had been signed twice by thetestator in different coloured pens. It transpiredthat he had in fact signed it on two separateoccasions, each before a different witness butthat the witnesses were not present at the sametime – with the result that the will was entirelyinvalid.Can you tell me about the most commontypes of disputes that arise from Court ofProtection work?The most common types of case that we seeinvolving the Court of Protection are the abuse,or the alleged abuse, of Powers of Attorney.We frequently see cases where it is argued theAttorney has abused their powers by oftenusing a donor’s money for their own purposesrather than for the benefit of the donor. Themorale of the story is choose your attorney verycarefully!Is there anything else you would like toadd?I would say that the world of contentious trustand probate is a fascinating but specialisedone inhabited by relatively few lawyers whoreally know their subject area. It is also onethat often requires practitioners to adopt asympathetic yet pragmatic approach toresolving what can be very delicate issues.These types of case can affect anyone insociety and most people we speak to haveeither experienced a dispute in their family orknow someone close to them who has.Contentious trust and probate is an area of thelaw that will continue to grow and providespecialist teams like ours interesting and fulfillinginstructions for many years to come. LMLucy HowardDavid CatchpoleContact Details:David CatchpoleHead of Contentious Trust & ProbateMills & Reeve LLPTel: +(44)(0)1603 693383Email: david.catchpole@mills-reeve.comwww.lawyer-monthly.com

44In Association With...APRIL 2013Next we speak to Paul Buckle, atrustprobategroup partner in the firm of AO HallLegal Specialists in Guernsey. Paul isthe head of the firm’s FiduciaryDepartment, and also a member ofthe Disputes Resolution team, wherehe works on trust litigation.Contact Details:Paul BuckleAO Hall, Legal Specialists12 – 14 New StreetSt Peter PortGuernsey. GY1 2PFTel: 01418 749836Email: paul.buckle@aohall.comwww.lawyer-monthly.comWhat key trusts and probate cases have you beeninvolved in during the last year?The last year has been very busy indeed withcontentious trust and probate cases. They have allbeen in the Guernsey Court, bar one, which is unusual,but shows how significant an area this is over here. Asof yet, none are reported and in fact, they may notbe, having either taken place in camera or elsewith the parties’ identities protected. The first is a veryinteresting case which has explored the extent towhich damages are available for undue influence.Perhaps unsurprisingly, there is little if no Guernsey lawon that point, but it shouldn’t be assumed we wouldfollow the orthodox position elsewhere. So we havehad to look at whether the English rule, for instance,which says generally no damages, is a reasonableposition here in Guernsey.A second case involved looking at the service outrules where there were more than 24 trusts (many withdiffering governing laws and beneficial classes) andnumerous underlying companies, in respect of eachof which a trustee sought an account of remunerationand expenses from its predecessors. That was quite achallenge, but we got there.The third was the one case outside of Guernsey,where our role was to advise a Guernsey trusteelitigating in the English Court on the application ofGuernsey trust law (on litigation costs that is) to Englishfunding agreements and CFAs. This is quite a new areareally.Other cases have involved challenges to wills andtrusts, breach of trust claims, divorce and disclosure ofinformation matters, and one case where someonewanted to trace to a real property if a will was setaside for undue influence.What have you found most challenging and howdo you feel this practice area has developed overthe course of the last year?One frequent challenge is trying to find an answer toa problem in our trust law (in effect our trust statute).The law isn’t a code, but it should always be the firstpoint of call even for new law, as tempting though itmay be to look straight to other legal systems, such asEngland and Wales, you would be surprised what youcan find, and the judges appreciate that.Are there any legislative changes you would liketo see? If so, please explain.Yes. I would like to see a stop to these so-called trustproducts, which are supposed to make Guernseycompetitive for trust business the world over, andwhich appear in our trust laws from time to time. Thatis an odd thing for a litigator to say, I know, becauseexperience tells us these products are a litigator’sdream. But for Guernsey as a jurisdiction, it isn’t goodto have them being litigated all the time. By and largethey are to do with pushing the boundaries of theconventional trust to allow control over the assets. Thatis not a great idea, as the people who sign up to themdon’t really want a trust. But there are few alternatives.What we need is something other than a trustwhich does exactly what it says on the tin. Maybefoundations will work, it is too early to say, but theyhaven’t got off to a great start in Jersey in Senatorov.There the Jersey Court was so uncomfortable abouthow little a Jersey company administering a Jerseyfoundation could find out about what it was doing,that it warned the legislature to go back to thedrawing board, if the effect of the law was to allowpeople to use foundations free of any enquiry as totheir activities.Such a changing global economy makes trustand estate planning a difficult task for manywealthy individuals, what are the key legalimplications they should consider?They should look for a stable jurisdiction with a proventrack record for dealing with trust cases effectively.Also, they shouldn’t sign up to something they don’tunderstand, or which is sold as a proven standarddocument. There is rarely such a thing.Can you tell me about the issues that commonlycrop up within claims arising from wills or onintestacy, including claims under the Inheritance(Provision for Family and Dependants) Act 1975?We haven’t long had the dependents’ claimslegislation here in Guernsey so it is too early to say. Asfor frequent wills issues, we see a lot of incapacityand undue influence cases, and allegations ofmaladministration and overcharging of estates. LM

APRIL 2013In Association With... 45Here we speak to Catherine Paget, an Associate at BlakeCatherine PagetLapthorn, as part of our focus on contentious trusts andprobate. Blake Lapthorn is a full-service, regional law firmwith offices in London, Southampton, Oxford andPortsmouth.What key trusts and probate cases have youbeen involved in during the last year?In the past year, I had conduct of the defence ofa case which went to a 3 day trial in the CentralLondon County Court before His Honour JudgeDight. Our client had lost his wife in tragiccircumstances. The sister of the deceased broughtan action to establish the validity of a hand-writtenwill which allegedly appointed her as executrix andtheir mother as the principal beneficiary. Our clientput forward an earlier will, made with my firm,which appointed him as executor and solebeneficiary. The deceased's mother was joined tothe action as third party. With evidence from apre-eminent forensic document examiner, weestablished that the manuscript will was a forgery.I have also acted in an unusual Inheritance Actclaim, brought by the male partner of a testator. Hehad co-habited with the deceased for a numberof years but they had not entered into a civilpartnership as the deceased was still in a 30yearmarriage. The testator's will made no provision forhis partner as it pre-dated the relationship. Thiswas a sensitive case which was resolved aftermediation.I have recently assisted in the preparation of astatutory will application in the Court of Protection,for the Property and Affairs Deputy of a lady whowill be 100 in May. One of her sons is himself avulnerable adult who has appointed an unsuitableattorney under a lasting power of attorney (LPA).The statutory will is designed to provide thevulnerable son with a home for his lifetime and putthe title of that house beyond the control of theattorney. The Office of the Public Guardian recentlyattempted to remove the attorney in a specialapplication to the Court of Protection but as theson technically retains capacity to revoke the LPAhimself, the court did not have jurisdiction toremove him.Such a changing global economy makes trust andestate planning a difficult task for many wealthyindividuals, what are the key legal implications theyshould consider?Wealthy individuals should attempt to make theirwills as "claim proof" as possible. It is wise to have awill drafted by a competent, accredited solicitor.This should avoid a challenge on the grounds thatthe will does not reflect the client's real instructionsor contains mistakes. Also there is less chance of thewill being lost or the draftsman being unavailableto confirm his instructions if the will is challenged.Detailed instructions given by the client to hissolicitor either in writing or in the course of ameeting, which is then summarised by the solicitorin an attendance note on the file, provides strongcontemporaneous evidence of the testator'swishes. Also, a "letter of wishes" to be placed withthe will and distributed after death, is a goodmethod of explaining the testator's reasoning andmaking a challenge more difficult for disgruntledrelatives. If a testator goes to his doctor and askshim to witness his will, the GP is providing evidencethat the testator had capacity to sign it himself.Similarly, if a close family friend acts as witness tothe will, but does not receive a benefit from it, thisis strong proof that the testator knew what he wasdoing.Can you tell me about the issues that commonlycrop up within claims arising from wills or onintestacy, including claims under the Inheritance(Provision for Family and Dependants) Act 1975?The issue that crops up over and over again inevery kind of inheritance dispute is the opinion heldby a large number of people - that money andproperty should be left to family, regardless of howclose or otherwise that family relationship was.There is no forced heir-ship regime in England andWales in the way that there is in Scotland andon the continent, where a certain percentage offamily assets have to pass to family members.Technically, a testator domiciled in England andWales has complete freedom to leave his estate toa charity or to a family friend.Many modern families have a complicatedstructure with second marriages and first andsecond families. Often an inheritance dispute willarise between a step-parent and the children of afirst marriage. Given the fragmented nature ofthese family relationships, there is less naturalreluctance to bring a court action against eachother. Furthermore, the amounts at stake are muchlarger due to the huge increase in house valuesover the past 40 years. Many people think that itis worth "having a go" at a claim in order to try tonegotiate some sort of deal regardless of thetestator's intentions. This is because the estate of therelative is the only "pot of money" that they mayever receive a life-changing amount of moneyfrom. LMContact Details:Catherine PagetTel: 023 8085 7229Email: catherine.paget@bllaw.co.ukwww.lawyer-monthly.com

46In Association With...APRIL 2013trustprobateContinuing with our special focus on trusts and probate, Lawyer Monthly speaks to GavinFaber, a Partner in the Dispute Resolution Team at Higgs & Sons, an award-winning lawfirm in the West Midlands. Gavin specialises in contentious probate and trust litigation.How do you feel this practice area hasdeveloped over the course of the lastyear?I consider that the area is growing far quickerthan many people appreciate. The vastmajority of disputes on which I advise settlelong before proceedings are even issued.This can be attributed to numerous factors,including an aging population, an increasein the number of people suffering fromage-related illnesses, people leaving it untillater in life to make or update wills, peoplebecoming increasingly dependent uponcarers who can abuse their position oftrust, the increase in the value of estates,complicated family structures and peoplesimply becoming more litigiously minded.Testators themselves are also becomingmore aware of the possibility of challengeand there seems to be an increase in the useof forfeiture clauses.The enormous amount of informationavailable on the internet has given rise to asubstantial increase in people's awareness ofthe possibility of challenging wills and trusts.They no longer rely on professional advisers.This in turn has lead to a greater numberof litigants in person which is problematicgenerally in civil courts but perhaps more soin this type of case where a number of veryspecific rules apply to this specialist area ofwork. However, the Courts have also madeit absolutely clear that where proceedingsare issued without merit, it carries significantrisk of a substantial adverse costs order. Thecommon misconception that costs alwayscomes out of the estate or trust should bedissipating (see Wharton -v- Bancroft [2012]EWHC 91 (Ch)).I consider the case of most practicalimportance is that of Marley -v- Rawlings[2012] EWCA Civ 61, which is currently thesubject of an appeal to the Supreme Court.The Court of Appeal would not rectify ahusband's will where he had mistakenlysigned a will meant for his wife (and viceversa). Private client lawyers must be alert tohusband and wife clients inadvertentlyswapping around and executing eachother's wills. As things stand rectification is notavailable in this situation and if a fresh willis not executed the will draughtsman willhave been negligent and liable to thebeneficiaries under those would be wills.What are the most common challenges tothe validity of wills?The majority of disputes upon which I advisearise from either lack of due execution orlack of testamentary capacity. It isunsurprising given the changingdemographic of the population, that thedeceased's poor health is often the startingpoint for a challenge. Having said this, clientsoften allege undue influence. However, theCourts have made it abundantly clear thatnotwithstanding what may appear to besuspicious circumstances, they will notreadily interfere with the testamentaryintentions of the deceased on this groundwithout clear evidence of coercion beingapplied (see Hubbard -v- Scott [2011] EWHC2750 (Ch)).How can people avoid challenges?The fact of the matter is that there is no waythat someone can prevent a challenge tothe validity of a will. That is not to say that therisk cannot be reduced significantly. The willdraughtsman’s expertise and experienceare important factors and taking properadvice is essential. Whilst there is a desireto save cost, few people will be able toproperly draft their own will and the scopefor mistakes, and potential abuse, isenormous. It is imperative that the willdraughtsman follows the ‘golden rule’ andtakes account of the principles set out in thewww.lawyer-monthly.com

APRIL 2013In Association With... 47Contact Details:Mental Capacity Act 2005 and the age oldtest of Banks v Goodfellow. They shouldapproach a suitably qualified medicalexpert if in any doubt, even where it canlead to very awkward discussions with aclient. Medical practitioners need toproperly understand what is required ofthem in order to satisfy themselves of thetestator’s capacity and understanding andit is the duty of the will draughtsman toproperly direct them on the correct legaltests. Naturally this will not always be possibleand the Courts have recognised this, forexample Norris J noted in Wharton –v-Bancroft that in a situation where someoneis close to death a solicitor “cannot simplyconjure up a medical attendant”. However,this would in my experience be rare.It is also vital that the will draughtsmanextracts detailed and comprehensiveinformation from the testator wheninstructions are taken. Naturally, withimproved technology, people are lessinclined to have face-to-face meetings butoften this prevents the will draughtsman frompicking up on signals given by the testatorwhich would otherwise be noted. It isimportant that their family affairs andarrangements are properly explored toavoid any surprises. Further, it must not beforgotten that, although it is an elementarypoint, the will draughtsman must ensure thata comprehensive attendance note is made,both at the time instructions are givenand the time the will is executed. It isextraordinary how often this is overlooked orneglected.I would always encourage a testator inalmost every case to prepare amemorandum of wishes in the event thattheir estate is not to be split “equally”between the family or left in a way thatwould be expected. It can explain thereason why they have left their estate in theway that they have and explain the situationto those who may consider a challenge.Once the initial upset has passed, this canenable disappointed beneficiaries to fullyappreciate the position, which may besufficient to discourage or dissuade themfrom taking any further action. It is humannature to avoid discussion about death andtheir mortality but sometimes if the testatorsimply discusses their wishes with theirfamilies, it can sometimes diffuse situations.Can you tell me about the most commontypes of disputes that arise from Court ofProtection work?The most common disputes arise in relationto statutory wills. The increase in propertyand finance LPAs means that more peoplehave standing to make such applicationswhich in itself has increased the number. TheCourt should only exercise its power inthe best interests of the patient. This is oftenoverlooked, or not properly considered, bythe person making the application, theymust have this at the forefront of their minds.Sometimes the applicant’s views of thepatient's best interests are somewhat poorlyunderstood, and in some cases fall behindtheir own interests.The requirement to serve on potentialbeneficiaries means that you often have toinvolve numerous parties with differingagendas, which in itself increases theopportunity for an objection. Unlikeapplications for a deputyship which arelargely unopposed, where a statutory will issought and the potential beneficiaries seethat they are going to receive less than theythought or indeed nothing at all, they aremore inclined to object and take positiveaction. LMGavin FaberPartnerHiggs & Sons3 Waterfront Business Park,Brierley Hill, DY5 1LXTel: 0845 111 5050Web: www.higgsandsons.co.ukThe deceased'spoor health isoften thestarting point fora challengewww.lawyer-monthly.com

48In Association With...APRIL 2013trustprobateContinuing further with our focus oncontentious trusts and probate andthe surrounding issues, Lawyer Monthlyspeaks to Martin Reynolds, partner atHorsey Lightly, a well-establishedmedium sized law firm (10 partners)based in Newbury, Wantage andCentral London. Martin is a partner inthe firm’s Litigation/Dispute ResolutionDepartment and is based, primarily, inthe Newbury Office.Contact Details:Martin ReynoldsTel: 01635 275 256Email: mreynolds@horseylightly.comWebsite: www.horseylightly.comwww.lawyer-monthly.comWhat key trust and probate cases have you beeninvolved in during the last yearIn addition to the usual claims under Trusts of Land andAppointment of Trustees Act 1996 and Inheritance(Provision for Family and Dependants) Act 1975, Ihave had some more unusual matters including amulti-party construction summons regarding a Willrelating to a substantial Estate. I have also handledcontentious matters in the Court of Protection –including opposition to the registration of an EnduringPower of Attorney.Which case interested you most and why?Although not appropriate for me to comment in anylevel of detail on cases dealt with during the last year,some of which are still ongoing, I would say thatthe construction summons was both interesting andtechnically challenging and gave me the opportunityto work with prominent Counsel advising on thisarea. It also brought home to me the subtle issues onwhich cases of this type can turn.Are there any legislative changes you would liketo see? If so, please explain.I am not a big fan of legislative change as a meansfor resolving problems, whether in relation to legalmatters or more generally. More often than notexisting rules and legislation are adequate anddifficulties actually arise from two areas:i. Lack of public awareness of the relevant provisionsand the under resourcing of organisations intendedto provide advice and facilitate access to justice; andii. The under resourcing of organisations intended toadminister and/or enforce the relevant provisions(which would include inadequate levels of staffingand lack of resources for staff training and motivation).The introduction of wholesale change andreorganisation may attract headlines but - particularlyin the context of a lack of willingness to dedicateadditional resources to more pragmatic issues - willgenerally do little to resolve underlying difficulties.The above said, I do think it would be appropriate forWill-writing to be regulated, preferably with some fairly“light touch” regulation. I understand, however, thatthis is already in hand.I also think there are strong practical and commercialarguments for the expansion and formalisation ofexisting arrangements for the voluntary registrationand tracking of Wills. I am aware however that, dueto differences between our legal system and the legalsystem in various European countries where systemsfor public registration exist, it would not be possible toexactly mirror those systems.Is there anything else you would like to add?An increasingly globalised economy and thefragmentation of the traditional family unit are makingtrust and estate planning an increasingly complextask. With a view to avoiding disputes, it is vital thatcompetent advice is taken at the appropriate stage.Horsey Lightly’s Private Client Department is headedby an experienced tax Barrister which allows us toadvise clients on the tax implications of their proposedactions. We can also represent clients when they arein dispute with HMRC.Equally, if and when disputes relating to trusts andestates do arise it is important that they are handledin the appropriate manner with a view to containingcosts and, where possible, preserving familyrelationships. Disputes of this type can be particularlysuited to various forms of alternative dispute resolutionincluding mediation and, indeed, straightforwardnegotiation between legal representatives.Please tell me a little about yourself, your role andyour firm.The firm provides a full range of legal services includingproperty services, individual and family services,business services and litigation/dispute resolution. Wepride ourselves on having retained a highly personalapproach to our clients and on providing robust,professional advice when it is most needed.The Firm’s Litigation/Dispute Resolution Departmentcovers a range of work including property litigation,insolvency and contentious trust and probate matters(as well as more general commercial disputes). Mycontentious trust and probate work comes both fromother departments of the firm (in particular the PrivateClient Department) and by referral from externalsources. LM

APRIL 2013In Association With... 49Looking further into Contentious Trusts andProbate, Lawyer Monthly speaks to RobertPeach, from Coffin Mew Solicitors inPortsmouth. Robert is also a Fellow of theChartered Institute of Legal Executives and aRegistered Member of the Association ofContentious Trust and Probate Specialists and specialises inwill and probate disputes and contentious Court of Protectionmatters.What key trusts and probate that you have beeninvolved in, interested you most recently?Elizabeth Hodges -v- Margaret Bunyard – In thematter of the Estate of Catherine Jean Lewis,deceased: This matter went to trial before MrJustice Hildyard in the High Court of Justice,Chancery Division, with judgment being deliveredin my client’s favour on 6 February 2013. This was adisputed will case.In this case Catherine Lewis asked her IndependentFinancial Advisor (“IFA”) to prepare her last will.However, it was signed by her twice, witnessed bythree different people and bore two differentdates. This Will excluded her only living relative, hersister, from whom she was estranged, in favour of afriend, who was my client. At the time of makingthis Will, Ms Lewis was seriously ill in hospital and theIFA arranged for the Will to be taken to her where itwas signed and dated for the first time, but beforeonly one witness. The IFA realised shortly after thatthis would render the will invalid and he thereforereturned to see Ms Lewis for a second time andarranged for her to sign the same document asecond time when he and a doctor at the hospitalacted as witnesses. Ms Lewis’s sister sought tochallenge the validity of the Will because itappeared defective and as part of the legalprocess, she required all the witnesses to appearat Court for cross examination. However, inthe eyes of the law and in my view, the sister’schallenge was always bound to fail because theevidence I obtained in support of the Will so clearlyshowed that it was valid when signed on thesecond occasion. At the hearing before Mr JusticeHildyard, in finding for the force and validity of thewill, he said that what the defendant sister wantedhim to do would have required him to undo whatin his opinion Ms Lewis clearly intended. On theface of it the Will looked defective but theevidence I obtained proved that when the Will wasexecuted by Ms Lewis on the second occasion, theformalities required by the specific Act coveringWills were observed. I expected the defendant towithdraw her challenge, but she chose not to,which proved to be pure folly and resulted in herbeing ordered to pay the majority of my client’s notinconsiderable costs. For me the case wasinteresting because it demonstrates that the Courtprefers to endorse a testator’s last wishes unless theformalities for the execution of a valid Will are notfollowed. The case was also a salutary lesson forthose engaged in preparing Wills that great careneeds to be exercised when observing theformalities for doing so. The Court said that had theIFA simply printed off a fresh copy of the Will andthen had it signed and witnessed, rather than usingthe original document, then this case might neverhave come to Court.How do you feel this practice area has developedover the course of the last year?In my view the number of claims that I am seeinghas increased quite considerably. This is eitherbecause people are more aware that they canbring claims of this nature or the straightenedfinancial times make such claims a necessity.Can you tell me about the most common types ofdispute that arise from Court of Protection work?In my experience the most common cases I aminstructed in relation to arise in respect of theappointment and actions of attorneys whetherappointed under Enduring Powers of Attorney orLasting Powers of Attorney. As an example, say youhad a large family with several siblings but only oneof them was appointed to act, then you will oftenfind that the remaining siblings will either seek tochallenge the attorney appointed claiming thatthey are unsuitable to act or will seek to allege thatthey are using their position of trust to acquire fundsfrom the Patient. I had an interesting case at theend of last year where an elderly lady hadexecuted an Enduring Power of Attorneyappointing her youngest daughter to act for herbecause she knew that she could not trust hertwo elder daughters to do the best for her. Theinteresting issue here was that the elderly ladydid not yet need anyone to act as she still hadcapacity to manage her own affairs, however hertwo elder daughters sought to challenge theappointment of their younger sibling because theyfelt they were being excluded. The Court dismissedtheir claim and ordered them to pay their mother’scosts. LMContact Details:Robert PeachCoffin Mew1000 Lakeside North HarbourPortsmouthPO6 3ENwww.coffinmew.co.ukwww.lawyer-monthly.com

50In Association With...APRIL 2013trustprobateLooking further in to the issuessurrounding contentious trustsand probate, Lawyer Monthlyspeaks to Mark Dubbery, headof the Inheritance andVulnerable Elderly team atPump Court Chambers inLondon.Please introduce yourself, your role andyour firm.We are a large common law set whowork nationally but with particularly strongties to the Western Circuit. We have longhad a particular interest and expertise inclaims under the Inheritance (Provision forFamily and Dependants) Act 1975.Members of the team were involved inthe early cases of Coventry, deceased[1980] Ch 461, Callaghan, deceased[1980] Fam 1, Dawkins, deceased [1986]2 FLR 360, Jessop v Jessop [1992] 1 FLR 591and Davis v Davis [1993] 1 FLR 54.From there we have developed a teamcovering all manner of disputes arising ondeath including probate disputes, claimsfor damages for negligent will making,estoppel, implied trusts. The team, as itsname implies, also specialises in claimsinvolving the vulnerable elderly personsuch as undue influence claims and Courtof Protection work. In reality, of course,claims rarely fit into neat categories so wehave been able to draw upon a lot ofvaluable knowledge and experiencefrom our colleagues particularly in familyfinance and public law and we haverecruited internally as much as externally.We have also established a verysuccessful specialist InheritanceMediation Team under Giles Harrap’sleadership comprising only barristers withlengthy experience of resolving claimsarising on death.What key trusts and probate cases haveyou been involved in recently?Chambers has been involved inHammond v Osborn [2002] WTLR 1125(setting aside pre-death gifts), Chappell vSomers & Blake (a firm) [2004] Ch 19(negligent administration of estate), P v G,P & P (Family Provision: Relevance ofDivorce Provsion) [2006] 1 FLR 431, O’Brianv Seagrave [2007] 1 WLR 2002 (1975 Actclaim as an interest for probate), Ilott vMitson [2011] WTLR 779,(adult child claimsre-visited) , Musa v Holliday [2012] EWCACiv 1268 and Iqbal v Ahmed [2012] 1 FLR31 (Second wife’s claim against childrenof 1st marriage)..What have you found most challengingand how do you feel this practice areahas developed over the course of the lastyear?When I was called to the Bar 17 years agothe expectation was that one wouldspend the majority of one’s working life inCourt. Now a majority of matters that Ideal with are resolved through mediation.I am a huge supporter of mediation butwww.lawyer-monthly.com

APRIL 2013In Association With... 51without a living body of reported caselaw received wisdom doesn’t always getthe reality check it deserves. I think there’salso a continuing trend towards evergreater specialisation which again hasobvious advantages but shouldn’t be atthe expense of importing fresh thinkingfrom like jurisdictions. I keep up mypractice in matrimonial finance and I findthat invaluable when dealing with aspouse’s claim under the 1975 Act.Are there any legislative changes youwould like to see? If so, please explain.When I was called to the Bar 17 years agothe expectation was that one would spend themajority of one’s working life in Court. Now amajority of matters that I deal with areresolved through mediation.The domicile requirement for claims underthe 1975 Act makes for some fascinatinglitigation but I have always struggled tosee a good policy argument to justify it. Iwould also like to see a far morepredictable regime for pre- and postnuptialsettlements along mainstreamEuropean lines.Can you tell me about the issues thatcommonly crop up within claims arisingfrom wills or on intestacy, including claimsunder the Inheritance (Provision for Familyand Dependants) Act 1975?Many probate disputes, including thoseunder the 1975 Act, arise out of theconflicting claims of the deceased’s adultchildren from one relationship and thoseof his or her partner from a subsequentrelationship. Both demographic andsocial trends suggest that these disputeswill become more numerous and in suchsituations both sides feel a compellingclaim to the estate. One side has alongstanding expectation of “family”money and the other has enjoyed theestate as the spouse or partner of thedeceased often over a long period. Insuch cases the task of calculating thevalue of a family business attributable todifferent periods of time and to “active”versus “passive” growth is obviouslychallenging.It doesn’t help that relationships betweensuch parties have often only been keptcordial, if at all, by the strenuous efforts ofthe deceased. Mind you the same canfairly be said of many disputes betweensiblings.If, as seems likely, we are entering into anunprecedented period where successivegenerations will be less rather than morewealthy than their parents I suspectclaims by relatively although notabsolutely impoverished adult childrenwill become more common. LMContact Details:Mark Dubbery3 Pump CourtTemple, London EC4Y 7AJT. 020 7353 0711F. 0845 259 3241www.lawyer-monthly.com

52In Association With...APRIL 2013trustprobateHere we continue our focus on the issues surrounding contentious trusts and probate byspeaking to Richard Roberts, director and co-owner of Gedye & Sons. Richard discussesthe types of case he regularly works on, his work as Chairman of the Law Society’s Willsand Equity Committee and as an interesting angle, the problems surrounding wills andprobate for gay and lesbian clients.As the director and co-owner of the firm, canyou tell me what are the most commontypes of case you deal with on a day to daybasis?I regularly act as an independentadministrator, in cases where the partieshave reached an agreement in an estatedispute and they are looking for a solid andexperienced pair of hands to continue tokeep the peace between the warringparties. I am also often appointed by HighCourt, either when I have allowed my nameto go forward with others and the court hasto make the decision, or when a firm ofsolicitors who know me are asked tonominate somebody to act on their client’sbehalf.As a firm 75% of our fee income is from wills,probate and powers of attorney work.Throughout the practice we deal witheverything from a small estate worth £15,000right up to the multi-million pound estates,and everything in between.Are you able to tell me about any key casesyou have been involved in over the last year,and which case interested you the most?None immediately spring to mind that wouldnot be instantly recognisable! My cases tendstem from a significant argument betweenfamily members, leading to a confidentialagreement being reached. In thesecases, a good pair of hands is needed toadminister quite complex estates. Whenan agreement has been reached, ofteneveryone breathes a sigh of relief, failing torealise that someone then actually has toput that agreement into place. Sometimesthat brings up issues that perhaps were notthought important when the agreement wasreached, which just requires diplomatic andcautious handling – and that is where I comein!What would you say you found mostchallenging about those types of cases?The main challenge is keeping everybodyfocused on where we are actually going.The big danger in these cases is that allparties are so focused on reaching anagreement that once they reach it, theythink that’s the end of it, but of course it isn’t.Very often we then have to start distributingcontents, selling houses, dividing outproceeds of sale and other items, a periodin which there is still plenty of time for peopleto fall out.Do emotions get in the way easily?Yes, definitely, therefore I approach all mycases with compassion and empathy – itneeds to be understood that the case isoccurring because someone has died.Whether that person is a long lost cousinor a husband, mistress or son, somebodywww.lawyer-monthly.com

APRIL 2013In Association With... 53It also meant that the widow didn’t haveenough money to live on and so she endedup having to sue her own children and thewhole case cost around £150,000 to resolve.Although these types of cases are not thatcommon, they do exist all the way down thesocial scale, and it matters not whether it isa £125,000 house in Hartlepool or a £2.5million house in London.has died, and even little things you dowhen handling the case can make all thedifference to the client. One of the things Ioften ask when I am an independentadministrator, is if I can have a look aroundthe house and to see a picture of thedeceased. I want to see who the personwas, what interested them and what madethem tick. I think that this makes you betterat communicating with people, andultimately, to achieve a better outcome forall.Can you tell me a little about yourinvolvement in the Law Society’s Wills andEquity Committee?I am the chairman and have been on thecommittee for around seven years, primarilyrepresenting high street practices. We dohave quite a large gay and lesbian practiceand as a very open and happily married gayman, one of the selling points I made to theLaw Society when I applied was that theneeds of gay and lesbian clients needed tobe looked at, particularly in relation to willsand elderly client issues. We are seeing nowthe first real cohort of gay couples whocould live together legally – it was onlydecriminalised in 1967 – and there arenow quite a lot of elderly gay couples. A lotof my older homosexual clients struggle withthings such as elderly care needs and thefeeling that they should leave money to theirfamily even though their family may haveabandoned them. A lot of them wouldactually prefer to leave money to theirfriends but then worry about what theirfamily will think.In addition, the Law Society’s Wills and EquityCommittee primary role is helping to formLaw Society policy, to look at consultationpapers produced by the government andto promotion of the practice notes of theLaw Society.You mentioned that the Committee looks atpolicy changes; are there any policy orlegislative changes that you feel areneeded and would implement if you had thepower?I certainly think there needs to be a reviewof intestacy provisions. Well over 60% of theUK population do not have a will. In the olddays, it didn’t really matter because in themajority of cases a family consisted of ahusband, wife and two children. Nowadayswe have all sorts of complexities and onesees quite a lot of unfairness.I was involved in a much-publicised caseabout four years ago where a young manhad died. The only asset was the matrimonialhome in Notting Hill, London which wasworth around £2.5 million, but because hehad died intestate his wife only got the first£250,000 and his three year old daughterand one year old son effectively got the rest.The consequence of this was an enormoustax bill because the children weren’t exemptbeneficiaries, meaning the house wouldhave had to have been sold to pay the tax.Another key area I would like looked at is thefact that the law under which wills are madeis governed by the Wills Act 1837. No seriousoverhaul of how wills are put together andthe formalities which go into them havebeen undertaken since that year. I see lotsof occasions now where wills are challengedbecause the person making them may nothave testamentary capacity, which in myeyes raises questions such as to what extentshould the role of the witnesses be beefedup? Should wills be registered to be valid?Even to what extent can we use moderntechnology? LMContact:Richard RobertsTel: 020 3427 5078London Office at Old Bailey or:015395 32313Lake District Office at Grange over SandsEmail: infoOB@gedye.co.ukWebsite: www.gedye.co.ukwww.lawyer-monthly.com

IN ASSOCIATION WITH...Everything we consume or use in the modern world has to come fromsomewhere; it has to be transported in one way or another. Therefore,transportation is vast and highly important area, and it is important that it isregulated by a strong set of laws.Of course, Transportation Law covers everythingfrom trains and rail infrastructure to aviation law. Tofind out about the issues which surround this largepractice area, Lawyer Monthly speaks to severaltransportation lawyers about the work they do andthe laws that govern them.We also have an exclusive interview with GordonHearn, the President of the Transportation LawyersAssociation, about the advantages of belonging tosuch an association and the common issues whicharise.The Transportation Lawyers Association is anindependent, international bar associationdedicated to ensuring members are informed of thechanges in all aspects of the legal environmentwhich touch the transportation community.

58In Association With...APRIL 2013President ExclusiveGordon HearnLawyer Monthly’s Claire Middleton exclusively interviewed Gordon Hearn,the President of the Transportation Lawyers Association as part of thismonth’s In Association with… feature. Here, he discusses the commontypes of cases his members are involved in, the legal challenges that areoften raised and his goals for the remainder of his presidency.Please introduce yourself and tell me a littleabout Transportation Law.I practice transportation law with FernandesHearn LLP in Toronto, Canada. To most, evenfor some lawyers, transportation law invariablyleads to the question as to what exactly I do fora living. The field is quite the array of activity:the different modes for the transit of cargo andpassengers – maritime, aviation, trucking andrail. Add in related considerations of insuranceand the burgeoning area of logistics services.Mix it up with the multi-modal carriage of cargo,or for that matter an international routing andyou’re into different legal regimes. Sometimesthere is uniformity in the law by virtue of a treatyor convention; sometimes it is not so simple.What laws apply to the contract of carriage?Where can suit be commenced? How long doI have to sue?The practice, as my colleagues are well aware,breeds interesting issues in the area of the“conflicts of law”. It seems that no two casesare the same. That different countries, states orprovinces may be involved puts a premium onthe awareness that different laws may apply.Having a network of colleagues as potentialresources and to perhaps provide “local”representation can be important. As they sayyou never have too many friends in too manyplaces.Tell me a little about the Transportation LawyersAssociation.My first TLA conference in 1999 saw a welcomemat rolled out for me – as is the intention foreach new member. New members becomecolleagues, who become friends. Contacts areestablished, with seeds planted for referrals andcooperation on cases. And in the process ofattending meetings and conferences membersare offered an education on a variety ofsubstantive topics from different jurisdictions.Having a “feel” for the laws of the “othercountry” involved in the transit or intendedtransportation related undertaking can reallyhelp position the transportation law practitionerto provide “value for money” advice.One of the benefits of membership in the TLA(open to “private” practitioners and to “inhouse” counsel) is its mission of keepingmembers ahead of the constant changes in thisspecialized legal environment. The Associationproduces a cutting edge legal journal in TheTransportation Lawyer published five times ayear for members. Contributions are provided– being substantive or technical in scope,or perhaps speaking to procedural andevidentiary points of law - by members as ameans to network and share their experienceand specialty. Members are invited to presentpapers and case comments at the educationalmeetings at our conferences and on internetwebinars.Education and keeping “current” are big goalsof the Association, but I suppose the hallmarkthat I hold dearest is the “culture”. The senseof community – colleagues helping and beingresources for each other – is fostered with thefact that only lawyers may join the Associationand most of our functions are attended only bymembers. The social and educational benefitswww.lawyer-monthly.com

APRIL 2013In Association With... 59of the Association really do come together atour meetings and conferences.What are the most common types of cases thatyour members are involved in?As mentioned we’re into all modes of carriage– and the representation of shippers,passengers, carriers, insurers, freightintermediaries, warehousemen, consigneesof goods – right up the “supply chain”.Our members tend to be heavily involved inmatters directly affecting the business of thecarriage of goods and passengers by advisingon regulatory and safety compliance, contractadvice, alternative dispute resolution andlitigation management and strategy.Our members are not however just involved inthe regulation of the carriage industry or inadvising per se on the provision oftransportation services. They also offer adviceto businesses as going concerns.What are the main legal challenges raised bythese cases?As mentioned we may be concerned withdifferent legal regimes in any one undertakingor dispute. There may be different time periodsto sue, different “rules”; or different risks tomanage. A bill of lading or a contract ofcarriage may provide that suit has to beinstituted in a particular country. That countryor an alternative venue that a plaintiff may wishto take suit in may or may not enforce such an“exclusive jurisdiction clause”. There may be aConvention on point that governs or “readsdown” this or other contract clauses. If cargohas transited through different jurisdictionspotential defendants may be in differentcountries. And just what is the packagelimitation or governing law anyways in thatother country for something that was lost ordamaged?Obviously I cannot exhaustively list thechallenges – but can point to some examplesof issues that reveal the benefit of havingcolleagues as resources in other jurisdictions,and having a strong education componentthat comes with the Association. Sometimesthere are disparities even within the same legalsystem on points of law or precedent. Forexample I marvel at my American colleagueswhen they talk about tensions as may existbetween case law precedent in one federalU.S. judicial district as compared to another – orhow “state law” may be preempted by U.S.federal law on a point.Challenges are presented with the expanse ofgeography involved, but with this there is theopportunity for the transportation attorneyto showcase efficiency in working towardsdisposition of the matter. A due diligence reviewof a contract may require counsel from adifferent jurisdiction to “weigh in”. Similarly, duediligence for regulatory and safety compliancemay call for foreign or such “other” counsel –standards not always being uniform. Prudencewould dictate that it be assumed thatregulations elsewhere are not uniform. Theremay be an issue in a contract dispute on thecomputation of damages, or in a statutory ora contractual limitation of liability. Counselhandling a claim or a defence may needassistance in the event of a ‘conflicts’ dispute –what law might they may want to assert asbeing applicable, if there is a difference in whatlaws might be said to govern? By extension,what might constitute an unintended“attornment” to the courts of anotherjurisdiction? Militating against this complexityis the fact that interests of economy andefficiency often call for consultation with acolleague in a different jurisdiction withoutdelay, and at minimal cost. There is always thelegitimate need to “keep costs down” andoften the refrain of “we don’t have much time”in the conversation that unfolds.What are your goals and aspirations for yourtime as the president of the Association?As President of the TLA I serve a one-year term.The best that I can reasonably hope for is to domy little part in overseeing the agenda, lookingfor consistency with the goals of the Associationand upholding our fine traditions culled fromour 75 years of existence. The world haschanged a lot since the initial raison d’etreof the Association of bringing lawyers togetherengaged in U.S. motor carrier regulation.However the need for skilled counsel of courseremains. Working to maintain, if not exceed, ourstandards of education while presenting anaccessible and welcoming opportunity formembers, new and old, to hone their skills andawareness are the goals here. We work hardenough. It is critical that we continue to “up ourgame”. It sure helps to have some fun alongthe way. LMInformation about the TLA can be obtainedfrom its website at www.translaw.orgwww.lawyer-monthly.com

60In Association With...APRIL 2013Looking further into the issues surrounding transportation law, we speak to David F. Blair,partner at Heenan Blaikie‘s Québec City office.Please introduce yourself, your role and your firm.Heenan Blaikie is one of Canada’s premier lawfirms, with a team of more than 575 lawyersand professionals serving businesses across thecountry. Heenan Blaikie responds to the needsof large Canadian and foreign corporations,governments and public institutions as well asstart-ups, and is active in a wide range of sectors,such as mining, energy, education and health,information technologies and telecommunications,transportation, construction, entertainment, retailservices as well as pharmaceutical andbiotechnologies.As a member of Heenan Blaikie’s Business LawGroup, I have extensive experience in thetransportation law sector and am well-known formy expertise in interprovincial and internationaltransportation, safety standards, regulations,carriers’ liability and NAFTA-related issues. Irepresent a wide variety of Canadian and U.S.clients in the bus, rail, trucking, mining, andtelecommunications industries. Knowing thebusiness of the industries I serve, my informedstrategic advice is tailored to specifictransportation issues and is consistently sought outby these industries. I regularly appear beforeadministrative tribunals and the courts inregulatory, safety compliance and liabilitymatters. I also have broad experience in mergersand acquisitions, particularly in the transportationsector, as well as in real estate and commercialleasing. Finally, I am frequently approached toparticipate in the negotiation of service contractsin the rail, bus, truck and mining sectors.I have been repeatedly recognized in variouspeer-reviewed surveys and directories, includingthe Canadian Legal Lexpert Directory(Transportation Law – 2012) and The Best Lawyersin Canada (Transportation – 2013) , amongstothers.Please tell me about the most common types ofcase you deal with?I regularly deal with regulatory matters in twomajor aspects of the transportation sector: theroad and rail. The most prevalent matters that Ihandle in the bus and trucking industries relate todisputes over operating authorities and safetyoperating related issues. With regard to the railindustry, I am specialised in dealing with railregulatory matters. I represent class-one andclass-two railway companies in addition to otherclients in matters before the CanadianTransportation Agency that are regulated by theCanada Transportation Act. I am involved inmandates relating to rail construction projects,mining logistics infrastructure projects, rates,freight claim issues and safety regulations. Anexample of my practice is a recent matter inwhich my team and I obtained authorizationsfrom the Canadian Transportation Agency fora class-one American rail company for theconstruction of an intermodal terminal and a newsection of main line in the Province of Quebec.What cases interest you the most and why?The transportation industry is exceptionallyimportant to the Canadian economy. Its impactis felt in numerous areas, including mining, retail,infrastructure and trade. Cases in which I amapproached for strategic advice for infrastructureand logistics projects are particularly interesting asI guide clients through from early planning tofinal start up and operations. Such mandatesencompass questions not only relating totransportation regulatory compliance, but also toother related sectors, such as mining,environment, aboriginal, and political issues. Theyare mostly long-term projects that require afirm grasp of the strategic aspects at play in theindustry and the country at the outset of the file.Can you tell me about the challenges thatarise relating to regulatory compliance within thispractice area?Working in highly regulated sectors is demandingbecause not only are there constant changes inthis ever-evolving industry, but becausecomplying with the regulations involves satisfyingthe regulators. In my experience, I have foundwww.lawyer-monthly.com

APRIL 2013In Association With... 61that the degree of precision required by officialsin relation to the requested information and thenecessary procedures is exceedingly high.Complying with the regulations and continuallymeeting all the criteria is an everyday challengefor any transportation company and its legalcounsel.What key legal issues surround cargo claims?Undoubtedly, issues related to limitation of liabilityand knowing what clauses are and are notenforceable in which jurisdictions and whatmodes are the primary legal issues surroundingcargo claims.What are the most common types of commerciallitigation within transportation law?The most common types of commercial litigationwhich I deal with in respect of transportation laware cases involving large bus and truckingcompanies and related to disputes overoperating authorities and safety operating relatedmatters. Other traditional commercial litigationmatters within transportation law include disputesrelated to freight rates and tariffs and freight claimissues. Such issues are especially vital to the railindustry.Have there been any recent legislative changesto affect your work?Although not yet in force, Bill C-52, introducedon December 11, 2012, will soon bring its share ofcrucial changes to the rail industry. Briefly, this Bill,namely the Fair Rail Freight Service Act, gives shippersthe right to enter into service contracts withrailway companies. The railway companies willhave 30 days to offer a service contract to allshippers who make that request. Shouldcommercial negotiations between shippers andrailway companies fall through, the shipper willhave access to an arbitrator via the CanadianTransportation Agency. If the Bill goes ahead, wecan expect that our expertise will be more soughtafter than ever to negotiate transportationcontracts, or even to go into arbitration beforethe Canadian Transportation Agency.Further critical legislative changes that we areeagerly awaiting relate to changes to the MiningAct and possible changes to the mining royaltyregime presently in place in Quebec. Mininginvestments have received a great deal of recentfanfare in the Quebec press as the North of theprovince is looking very promising for miningdevelopment. However, as the changes to theMining Act and the royalty regime are not allsubject to consensus, many mining companiesremain on the defensive and are waiting for thechanges to come into force before giving thegreen light to their projects. As transportation is amajor issue for these projects, these changes willhave a major impact on whether investments andinfrastructure projects in that sector get the goahead or not. LMContact Details:David F. BlairAssocié / PartnerDroits des affaires et du transport/Business andTransportation LawHEENAN BLAIKIE AUBUT partie intégrante deHEENAN BLAIKIE S.E.N.C.R.L., SRL / Forming partof HEENAN BLAIKIE LLPTel: 418 649.5483Fax: 1 866 277.7853Email: dblair@heenan.ca900, boul. René-Lévesque Est, bureau 600,Québec (Québec) Canada G1R 2B5www.lawyer-monthly.com

62In Association WithAPRIL 2013Kenneth R. PeelKRP Law - Legal aspects of Canadian railCounsel in Transportation Law &Dispute Resolution since 1983Certified Specialist in Civil Litigation [LSUC]333 Spadina Road, Toronto ON M5P 2V5 CanadaDirect Tel: 416-489-1400Cellular: 416-948-0012Fax: 416-489-1402Email: ken@krplaw.cawww.lawyer-monthly.com

APRIL 2013Xxxxxx 63IntellectualPropertyLaw Serieswww.lawyer-monthly.com

APRIL 2013IP Law Series 65Intellectual Property:IP Enforcement & ComplianceAs part of Lawyer Monthly’s special Intellectual Property Law series, this month’sinstalment takes a look at Enforcement and Compliance, the issues that they bring andthe challenges that can arise.IP touches every part of commercial life;protecting a company’s IP and brand isone of the most important aspects tobusiness and is a vital way in which acompany’s success can be guarded.The World Intellectual PropertyOrganization (WIPO) has reported strongincreases in intellectual property filingsworldwide over the last few years.According to the WIPO, 2011 saw thehighest number of internationaltrademark applications ever filed underthe Madrid System, with 42,270applications, a 6.5 % increase comparedto 2010.Similarly, WIPO’s 2012 Hague YearlyReview shows some equally interestingfacts and figures. The report shows thatinternational design registrations onceagain rose in 2011, and states that‘international design registrations issuedthrough the WIPO-administered Haguesystem grew by 6.6% in 2011. This growthwas driven by Germany, the United Statesof America (US) and Norway, with thesecountries accounting for 81% of totalgrowth’. Taking a specific look at thecompanies who contributed to the filingslast year, the report states: “Procter &Gamble of the US, with 167 internationalapplications, heads the list of topapplicants for the third year running. TheSwatch Group (70) of Switzerland rankedsecond in 2011, followed by PhilipsElectronics (64) of the Netherlands, TheGillette Company (56) of the US andDaimler AG (55) of Germany.”There is, of course, any number ofexplanations as to why registrations riseparticularly in a particular year, and ofcourse, many of these reasons canbe linked to economic performance.However, WIPO Director General FrancisGurry ventures forth an explanation in hisforeword to the 2011 World IntellectualProperty Indicators (WIPI) Report,commenting the upturn shows thatcompanies across the world aredisplaying a continuation of innovation,which can only be good news for growth.He said: “This can help to create newjobs and generate prosperity oncemacroeconomic stability is restored.” Headded: “If economic conditions were todeteriorate sharply in the short term – ashappened in 2009 – companies mightbe forced to curtail or abandon theirinvestments in innovation, stifling anessential source of growth.”Other big news in the IP world recently isthe agreement between EU leaders toform a Unified Patent System, anagreement which brings to an end adecade-long argument over the creationof a single patent system that will nolonger require inventors to validatepatents in each country individually. Thesystem is aimed at reducing red tapefor inventors and while significantlydecreasing the cost of applications,helping to boost competitiveness andinnovation.Over the next few pages, Lawyer Monthlyspeaks to experienced IP professionalsfrom India, South Africa, Mexico andMorocco about the issues they facesurrounding IP enforcement andcompliance, answering key questionssuch as what to do if you are concernedthat another company is profiting fromyour idea, what your legal rights are if youbelieve another company is violatingyour copyright or trademark and howto defend yourself against a claim ofviolating someone else’s copyright ortrademark. LMwww.lawyer-monthly.com

66IP Law SeriesAPRIL 2013Intellectual PropertyEnforcemeThis month, as part of our Intellectual Property Law Series, we focus onIntellectual Property Enforcement and Compliance. As the global marketplace becomes increasingly competitive it is imperative that companiesprotect their intellectual property in order to maintain their competitiveedge. To find out how this can be done, and other issues surrounding thissubject, Lawyer Monthly speaks to Margarita Garate Turanzas, Of Counselat Von Wobeser y Sierra, S.C. in Mexico.If an individual is concerned thatanother company is profiting fromtheir idea, what rights do they have?An idea itself cannot be protected underMexican Law. However, the core areas ofthe intellectual property field that couldprotect the expression of an idea aretrade secrets, patents, trademarks andcopyrights, giving creators rights toexclude others from using or exploitingintellectual property without authorization.A trade secret means information thatderives independent economic value,actual or potential, and which is subjectof efforts that are reasonable under thecircumstances to maintain its secrecy. Ifan idea represents valuable information,keeping an intellectual creation as asecret is one way to assure that others donot misappropriate the information thatqualifies as secrecy.If the idea signifies an invention, patentlaw provides a right to exclude othersfrom making, using, selling, offering to sell,or importing a patented invention. Thesubstantive requirements that arenecessary to obtain a patent registrationare patentable subject matter, utility,novelty, and non-obviousness.Copyright law also provides a right toexclude others from reproducing an ideasupported through a copyrightedexpression, publicly performing ordisplaying the expression, distributingcopies of the expression, and fromcreating derivative works based onthe expression. Obtaining copyrightprotection does not require registrationwith the Copyright office, nor does itrequire a notice or copyright (©),although there are benefits to both theregistration and the notice. To obtainprotection, a work need only to beoriginal and fixed in a tangible medium ofexpression.Trademark law protects ideas expressedas distinctive signs (words, names,symbols, devices, or any combinationthereof) used by individuals and entitiesto identify the source of their products orservices in commerce. Trademark lawmakes it unlawful for someone to useanother’s mark in a way that is likely tocreate consumer confusion.Therefore, an intellectual property rightover an expressed idea grants theexclusive right to use and exploit suchright and to defend it through the legalvia.If someone has a copyright/trademark in place which theybelieve another company isviolating, what are their legal rights?Enforcement of the rights of an intellectualproperty owner will mainly come down toquestions of personal jurisdiction overthe infringing party. There are severalinternational treaties that bind countries toprovide a minimum level of protectionfor intellectual property based on thewww.lawyer-monthly.com

APRIL 2013IP Law Series 67Mexicont and Complianceprincipal of national treatment, whichstates that the rights afforded to a foreignnational should be identical to thoseafforded to a home national.In many ways, trademark law is quitedifferent from copyright protection.However, under Mexican law, the ownerof a copyright or a trademark couldinitiate an infringement action against anentity that is violating his/her intellectualproperty rights. If the owner of the rightobtains a final and favorable resolution,the authority will request the infringer tostop the illegal conduct and will impose afine. Moreover, a copyright/trademarkowner may seek monetary awardsconsisting of actual damages and profitsthrough a civil action.To prevail under an infringement action,the trademark holder must prove i) that itpossesses a mark; iI) that the opposingparty used the mark; iii) that the opposingparty’s use of the mark occurred “incommerce”; iv) that the opposing partyused the mark in connection with thesale, offering the sale, distribution, oradvertising of goods or services; and v)that the opposing party used the mark ina manner likely to confuse consumers.Copyright infringement is establishedwhen the owner of a valid copyrightdemonstrates unauthorized copying.A prima facie case of copyrightinfringement is typically stated asconsisting of two elements: i) ownership ofa valid copyright; and ii) an unauthorizedexercise of the affected rights (dependingon the right allegedly violated).If someone has been accused ofviolating a copyright/trademark,how do they defend themselvesagainst the accusations?If someone is using a trademark notregistered, he/she could be infringing theintellectual property rightsregistered/owned by a third party. In suchcase, what one register for protectiondetermines the scope of the registeredmark? Likelihood of confusion is akey concept in trademark law as afundamental test of infringement. Thus theuse of a competitor’s mark that doesnot cause confusion as to source ispermissible. When a trademark ownersues based upon a registered mark thedefendant must prove the absence oflikelihood of confusion i) as to affiliation,connection, or association of the owner ofthe right and a third party; and confusionii) as to the origin, sponsorship, orapproval of his/her goods, services, orcommercial activity by another person.On the other hand, copyright protectionhas many different limits to the rightsgranted to copyright owners, includingthe doctrine of fair use, which is anaffirmative defense. It represents alimitation that applies to all of the rights ofa copyright owner. Fair use takes onmany different appearances dependingon the right at issue and the activities ofthe alleged infringer. The factors thatshould be considering determiningwhether the use made of a work is a fairuse are i) the nature of the copyrightedwork; ii) the purpose and character of theuse, including whether such use is of acommercial nature or is for non-profiteducational purposes; iii) the amountand substantiality of the portion used inrelation to the copyright work as a whole;and iv) the effect of the use upon thepotential market for or value of thecopyright work. LMContact:Margarita Garate TuranzasOf CounselVon Wobeser y Sierra, S.C.Email: mgarate@vwys.com.mxTel: 52(55)52581049www.lawyer-monthly.com

68IP Law SeriesAPRIL 2013Intellectual PropertyEnforcemeFor a South African perspective on IP enforcement and compliance,we benefit from an exclusive piece written by Danie Dohmen fromAdams & Adams.As in most developing anddeveloped countries, theunauthorised use of thirdparty Intellectual Property(“IP”) rights occurs in arange of industrial sectors in South Africa.The type and extent of the IP infringementdiffer from sector to sector and dependson the type of IP protection which isprevalent in a specific sector. AlthoughSouth Africa is classified as a developingcountry it has a large, diverse and welldeveloped first world industrial sectorfunctioning within large first and thirdworld consumer markets.The diversity in the economy andconsumer markets requires a range ofprotection measures to curtail theunauthorised use of IP rights and over theyears South Africa’s IP protection lawshave been extensively developedthrough both legislation and a large bodyof jurisprudence.Types of available IP rightsIn South Africa IP rights are protectedthrough a number of statues as well asthrough common law and althoughenforcement of IP rights is generallyachieved through civil enforcement anumber of criminal remedies areavailable in respect of some forms of IPrights.Through membership to a number ofinternational IP rights conventions andtreaties and national legislation SouthAfrica makes provision for the protectionof patent, design, trade mark, copyrightsand plant breeders’ rights. Patent, design,registered trade mark and plant breeders’rights are obtained through registrationprocedures and copyrights (exceptfor registered cinematograph films) areconferred automatically without the needfor registration. South African patent,design, trade mark and plant breeders’rights applications may claim priority fromforeign applications in terms of relevantinternational conventions and SouthAfrica can be designated in aninternational patent application (PCTpatent application).Through common and contractual lawprotection is also afforded to IP rights suchas unregistered trade mark rights,knowhow and trade secrets. Thesecommon and contractual law rights areenforced through civil litigation andgenerally do not require registration.In addition to the establishing legislationa number of further pieces of legislationhave been put in place to assist interestedparties and IP rights holders to enforcetheir IP rights. In this regard one of themost important pieces of legislation is theCounterfeit Goods Act which criminalizescertain acts of unauthorised use of IPrights and provides severe criminalsanctions against guilty offenders.Patent RightsA granted patent has a maximum termof twenty years and in order to obtainvalid patent rights in South Africa absolutenovelty and inventiveness of the claimedinvention are required.A discovery, a scientific theory, amathematical method, a literary,dramatic musical, or artistic work or anyother aesthetic creation, a scheme, ruleor method of performing a mental act,playing a game or doing business, aprogram for a computer or thepresentation of information are notpatentable in South Africa and differenttypes of IP rights might find applicabilityto these aspects. Additionally, anyvariety of animal or plant or anyessentially biological process for theproduction of animals or plants, not beinga microbiological process or the productof such a process, is not patentable. Amethod of treatment of the human oranimal body by surgery or therapy, or ofdiagnosis practiced on the human oranimal body are also not patentable.However, in addition to first medical uses,second and further medical uses ofknown substances are patentable by wayof a Swiss type claim.Although no substantive examinationtakes place in South Africa only validpatents can be enforced and patentrights are enforced through a civillitigation in a specialised court, the Courtwww.lawyer-monthly.com

APRIL 2013IP Law Series 69nt and Complianceof the Commissioner of Patents. TheCommissioner effectively has the powersof a high court judge and the specializedcourt functions in a very similar way to adivision of the South African High Court.The Commissioner has the power to granttemporary and final injunctions againstinfringers as well as to order deliveryup, the payment of damages, in lue ofdamages the payment of a reasonableroyalty and the payment of litigationcosts.Although the infringement of a patentright is not actionable under theCounterfeit Goods Act a patentee isentitled to bring proceedings to the Courtof the Commissioner of Patents to preventimportation of an infringing article.Design RightsSouth African design rights extend to bothaesthetic and functional designs andrelate to the pattern or the shape or theconfiguration or the ornamentation of anarticle, or to any combination of two ormore of these features.An aesthetic design must be new andoriginal and has a maximum term offifteen years. An aesthetic design relatesto those features which appeal to and arejudged solely by the eye, irrespective ofthe aesthetic quality thereof.A functional design must be new and notcommonplace in the art in question andhas a maximum term of ten years. Afunctional design excludes features ofornamentation ans is limited to thosefeatures which are necessitated bythe function which the article to whichthe design is applied, is to perform.Functional design rights can extend to anintegrated circuit topography, a maskwork and a series of mask works. In caseof an article which is in the nature of aspare part for a machine, vehicle orequipment, no feature of pattern, shapeor configuration of such article is affordfunctional design rights.The scope of protection afforded bya registered design depends upon thedegree of difference between theregistered design and prior similar articles.If the degree of difference is large, thenthe scope of protection afforded by theregistered design will tend to be wide.However, if the degree of differencebetween the registered design and priorsimilar articles is small, then the scope ofprotection afforded by the registereddesign will be correspondingly narrow.The objective of design rights (as withmost other IP rights) is stated to be that theregistered proprietor shall enjoy the wholeprofit and advantage accruing by reasonof the design registration.Enforcement proceedings are conductedthrough the relevant division of the SouthAfrican High Court and civil remediesinclude preliminary injunction, a finalinjunction, delivery up and destruction ofany infringing product or any article orproduct of which the infringing productforms an inseparable part, damages, inlieu of damages and at the option of theplaintiff, a reasonable royalty andpayment of legal costs.ConclusionIP rights are well established andrecognised in South African law and it isgenerally accepted that the protection ofIP rights is important to protect investmentand growth.As is evident from the above, a largerange of different remedies, both civil andcriminal, are available in South Africa tosafeguard against the unauthorised use ofIP rights. The enforcement proceduresfor IP rights in South Africa are wellestablished and the successfulenforcement of IP rights is common.Currently, a comprehensive and overarching IP policy framework is beingdeveloped in South Africa in order tocoordinate the effective enforcement ofIP rights across industries and governmentdepartments. LMContact:Danie DohmenTel: +27 (12) 432 6201www.adamsadams.comwww.lawyer-monthly.com

70IP Law SeriesAPRIL 2013Intellectual Property:Enforcement & ComplianceContinuing with our focus on IP enforcement and compliance, Lawyer Monthly speaks to Dr Mohan Dewan,the principal of R K Dewan & Co (RKD). RKD was founded in 1942 by Mr Raj Kumar Dewan and hascompleted over 70 years of committed and excellent service in the field of IPR. The firm has its head officein Mumbai, with additional branch offices in Delhi, Pune, Chennai and Kolkata. Dr Mohan Dewan has over40 years of experience in the field of Intellectual Property Rights and is a registered Patent & Trademarkattorney.Tell us about yourself, your role and your firm.RKD currently represents over 4000 corporate andindividual clients worldwide including several ofthe top Indian companies. Our clients come fromdiverse fields such as software, electronics &telecommunication, automobiles, mechanicalengineering, power sector, specialty chemicals,pharmaceuticals, food packaging technology,biotechnology, process equipment, academicinstitutions, scientific and research organizations andso on.RKD is actively involved in advising clients on everyaspect of IPR, including Patents, Trademarks,Copyrights and Design. The firm regularly handles IPRprosecution and litigation on behalf of its manyclients.How big an issue is IP theft in your country?Which sectors are most affected by it?Intellectual Property theft is a significant issue in India.IP theft involves violation of the major intellectualproperties: trademarks, patents, copyrights anddesigns. The most affected areas are fast‐movingconsumer goods, particularly garments, footwearand electronics. Other major areas are foodstuffs,pharmaceutical products, automotive parts andthe like. When it comes to patents, the drug andpharmaceuticals sector is most affected by IP theft.In the field of copyrights the most affected sectors arebooks and publications, films and music. As far asdesigns are concerned, the sectors most affectedare white goods such as washing machines andrefrigerators, luxury goods such as carpets and rugs,electrical fittings and implements.What rights does a company have if they suspectanother company is profiting from theirintellectual property?If a company suspects another company is infringingits intellectual property, in the case of trademarksand copyright, the violated company can exerciseremedies both under the civil as well as the criminallaw. Injunctions and seizures can be obtained andthe infringer/violator can be made to pay damagesand at the same time can be punished by fines andby imprisonment. In the case of patents and designsonly civil remedies are available.How can these rights be enforced?Patent & Design rights can be imposed by filing suitsbefore the appropriate courts or by filing complaintsbefore the police. In the case of trademarks andcopyrights, in addition to the aforesaid, a criminalcomplaint can also be filed before a Magistrate or aFirst Information Report (FIR) can be filed before thepolice.On the other hand, how can somebodydefend themselves and what are their legalrights if they are accused of violating acopyright/ trademark?Once suits are filed or complaints are lodged, thedefendant/accused can defend themselves on thevarious grounds available for defendants includingpleading invalidation of the intellectual property rightthat is sought to be enforced.What are the most effective brand protectionstrategies in your experience?The most effective brand protection strategy in Indiais a multi‐pronged strategy. This includes issuingcaution notices in the newspapers, sending legalnotices to infringers, visiting the infringers and makingthem aware of their wrong‐doing, selectively filingcivil cases and also filing criminal cases.What are the issues surrounding reputationmanagement? What challenges does thisbring?Reputation management is also an important areain which we work. Where individuals are involved,the civil remedies for defamation are availableboth under the civil as well as criminal law. Whencorporate reputation is involved, remedies will beavailable under the law of torts. The challengehowever, is the huge pendency of litigation in theIndian Courts which slows down legal proceedings,although lately the Supreme Court of India has laiddown guidelines for expediting intellectual propertycases.What are the penalties for IP theft?The penalties include heavy fines with escalation inthe case of repeated acts. Other penalties includeimprisonment and the confiscation of the impugnedarticles.Do you see any need for legislative changeregarding IP enforcement and compliance inyour country? Have there been any recentrelevant legislative changes?Not so much legislative change but what needs tochange is the mindset of the judiciary. Except in afew courts, violation of intellectual property is notconsidered as a very serious misdemeanor. Even inproperty matters, real property is looked uponby courts more seriously than intellectual property. Ibelieve the laws are strong and robust but thewill and spirit to implement them are feeble andlacking. LMContact:Dr Mohan DewanCell No. +91 98 2305 7535Podar Chamber, S. A. BrelviRoad, Fort, Mumbai‐400 001Tel: +91 22 6177 5300 / +91 22 2266 1662/+91 22 2266 3002Fax: +91 22 2265 0159Email: dewan@rkdewanmail.comrkd@rkdewan.comPune:Niti DewanEmail: niti_dewan@rkdewanmail.comNew Delhi:Mr Nirbhay Kumar BhardwajEmail: nkbhardwaj@rkdewanmail.com,delhi@rkdewan.comChennaiEmail: chennai@rkdewan.comwww.lawyer-monthly.com

APRIL 2013IP Law Series 71Intellectual Property:IP Enforcement & ComplianceContinuing with our special focus on IP enforcement and compliance, Lawyer Monthlyspeaks to Nadia Kettani, partner at major Moroccan business law firm, Kettani Law Firm(KLF).Please introduce yourself, your firm and yourrole.KLF was founded in 1971 by Professor AzzedineKettani who was admitted to practice as a lawprofessor at the University of Casablanca andas a lawyer in 1968 and is approved by the HighCourt of Justice of the Kingdom of Morocco.After internships in France and the UnitedStates, I joined him and I am the Head of theInternational Consulting Department whilesupervising some areas of the LitigationDepartment. Rita Kettani, the Head of theCommercial Department, the LitigationDepartment and the Labour Law Department,joined in 1993. The firm acts for banks and otherfinancial institutions, international businesses,major public and private companies andgovernment departments.Counterfeiting is a serious concern for manycompanies operating in Morocco. A recentsurvey conducted by the National Committeefor Industrial Property and Anti-Counterfeiting(created in 2008) showed that the followingsectors are mainly injured by acts ofcounterfeiting: textile, leather, electronic, carspare parts and cosmetics. The same surveyshowed that counterfeiting resulted in 1 billiondirhams tax losses in 2012 and that the profitsgenerated by counterfeiters ranged between 6and 12 billions dirhams, which representsbetween 0,7 and 1,3% of the gross domesticproduct.What rights does a company have if theysuspect another company is profiting from theirintellectual property?On the other hand, how can somebodydefend themselves and what are their legalrights in they are accused of violating acopyright/trademark?In the context of a civil suit for counterfeiting, thedefendant will prepare his defence in the sameway as any civil suit; i.e., by rebutting thealleged evidence of counterfeiting. However,no immediate recourse is available to theentity whose goods are being seized by theauthorities based on allegations ofcounterfeiting. LMContact:KLF covers the whole spectrum of financial andbusiness activities, and is an acknowledgedleader in the fields of corporate finance,banking, project finance, corporate andcommercial law. Areas of particular expertiseinclude stock exchange law, aviation law,telecommunications regulations, energy,tourism, labour law, intellectual property, legalaudits and IPOs. Additionally, the firm has agreat deal of experience in internationalarbitration and litigation as well as handling allforms of commercial disputes.How big an issue is IP theft in your country?Which sectors are most affected by it?The expression of “IP theft” is used in practicefor counterfeiting of trademark and patents butnot in the law. The Moroccan legal definition ofcounterfeiting encompasses the violation of anyintellectual property rights; such as (i) patentcounterfeiting, (ii) trade name counterfeiting,(iii) service mark counterfeiting, or (iv) technicaldrawing counterfeiting.The best legal tool available is the launch of alegal suit for the deregistration of the trademark,the patent or the drawings together with afast-track procedure whereby the injured partyrequests the judge to order the counterfeiterto immediately stop the acts of counterfeiting.In order to succeed, the entities sufferingfrom the counterfeiting must first identify thecounterfeiters, then send summon lettersfollowed by a conservatory seizure of theproduct through court bailiff who drafts minutesconfirming the presence of counterfeitedproducts at the seller’s address and then file alawsuit on the merits within 30 days togetherwith the fast track procedure.In some circumstances, injured companiesmay bring criminal proceedings or request thecustoms authorities to seize the counterfeitedproducts at the border if coming from abroad.The request to the customs authorities is initiatedthrough a request made before the judge underthe above-described fast-track procedure.Nadia Kettani,PartnerKETTANI LAW FIRM8 rue lahcen basriCasablanca-Morocconadia@kettlaw.comTel:+212 522 438 900Fax:+ 212 522 205 925www.lawyer-monthly.com

APRIL 2013Xxxxxx 73Fraud and Asset Tracingwww.lawyer-monthly.com

74Specialist AdvocateAPRIL 2013Graham Eklund QCwww.4newsquare.comThis month Lawyer Monthly is taking a look at the work of barristers within the field of Fraudand Asset-tracing and the issues they face. To this end, here we speak to Graham EklundQC from 4 New Square in London.Please tell us a little about yourselfand your professional background.I was educated at Auckland University inNew Zealand, where I qualified andpractised as a Barrister and Solicitor. In1985 I commenced my career at the barwhere I specialised in insurance work,substantially coverage issues, fraud casesand general commercial work as wellas personal injury work. In 2002 I wasawarded Silk. In 2003 and I was invitedto join 4 New Square. I accepted theinvitation and have been ensconced at4 New Square since then.Please explain a little about yourwork and what type of cases youtypically deal with.Most of my work derives from insurers. Inmany cases I deal with defending theinsured, who is being indemnified byinsurers, but in circumstances where theinsurers dispute the underlying liabilityof their insured. Fire cases are typicalexamples of such circumstances. Equally,on the other side, insurers may have paidout following an insured event and thenseek to recover what they have paid totheir insured, from a third party responsiblefor causing the loss and damage. Manyother cases deal with whether or not theinsured is entitled to an indemnity underthe policy. Whilst my experience is thatinsurers mostly agree to indemnify theirinsured when they have suffered a loss, orwhen they have caused a loss, there is avery small percentage of cases wherethere is a good and commercial reasonfor insurers to decline to indemnify.Typically, these are that there has notbeen full disclosure of the nature of therisk at the outset of the insurance, orprotections, which ought to have beenin place to minimise the risk of loss anddamage, had not been in place. In thelatter type of case, the insured finds itselfnot having complied with the terms andconditions of its insurance policy, andtherefore not being entitled to anindemnity. Examples include constructionworkers undertaking hot-work whereprotections are not put in place to guardagainst ignition, or fire extinguishers arenot kept at the place of work to use if fireis found. On some occasions, the whiff offraud permeates the air following a fireand the investigation and work is then ofa different nature.Have there been any legislativechanges in this area in yourjurisdiction recently? Do you see theneed for any?Most of the discussion in relation tochanges has been around the changesproposed by the Law Commission. Mostof those relate to issues of non-disclosureand misrepresentation of material facts,which if proved, enable insurers to avoidpolicies of insurance and therefore todeny liability to indemnify, irrespective ofany link between the fault or failure andthe ultimate cause of loss. At present,there is a certainty about the obligationto disclose material facts, in that it ispossible to state certainly what theobligation is – i.e. that all materialfacts have to be disclosed. There is awww.lawyer-monthly.com

APRIL 2013Specialist Advocate 75considerable uncertainty, however, for aninsured as to what is a material fact. Whilstcategorised in law as being a fact whichwould have an effect on the assessmentof a risk by a prudent underwriter, veryfew people have ever been prudentunderwriters or know an underwriter(whether prudent or not!) and thereforecan only guess at what facts would,and would not, have an effect on theassessment of a risk. Clearly, greatercertainty is required in that area of thelaw. If greater certainty is not possible,then a less draconian consequencewould be justified in cases where thereis no link between the fact which wasnot disclosed and the ultimate peril whichcame to pass, causing the loss anddamage.What do you enjoy the most withinyour career?My son will probably laugh at this andmany who know me will probably disputeit (or laugh too), but the intellectualchallenge posed by many of theproblems which come my way isprobably the most enjoyable aspect ofmy career. Sometimes the intellectualproblems are factual. Sometimes they arelegal and knotty. Almost always, resolvingthem is enjoyable. Rarely are they thesame. Only infrequently are theyrepeated. Working with brighter, youngerlawyers than me who are learning theirway, is always a special thrill. A number offormer pupils have gone on now to Silkand it is always a great pleasure to tracktheir stellar careers. Making a modestcontribution to the body of legal learningand helping to develop the law isparticularly satisfying, even if theargument advanced has not beenaccepted or entirely accepted buthas been part of participating in thedevelopment of the law.Is there anything else you would liketo add?Success in a legal career is of coursedependent on having acceptabletechnical ability. That goes withoutsaying. Above that, it is dependent ongood judgement and sound advice,which give your clients confidence andthe ability, in the commercial arena, tofind solutions for their problems. I havenever met a client yet who is interested inme having fun at their expense, arguingan abstruse point of law in the Court ofAppeal. It is also imperative to analyserigourously the facts and law of eachcase which lands on your desk, to giveadvice and to be prepared to back thatadvice, and your judgement, by arguingit in court if necessary. When I left HerbertSmith, I was given extremely good adviceby a partner I worked with. His advice wasto ensure that I would not be one of thosebarristers who gave bold advice inconference, but backed away when thedoor of the court beckoned. There areoccasions when the information andmaterial upon which you based on yourearlier advice is no longer valid or otherfacts, information and material havebecome available which require are-think. It is important not to shy awayfrom the re-think, but equally important,where there has not been a change tothe underlying facts or material, not tosimply to back off because of clammyhands or cold feet. Finally, any barristermust remember that he is in a serviceindustry. There are any number ofbarristers practising now who could dothe job that I do. A successful practicedepends on providing a service, whichservices the client’s needs – a barristerwho does that will find his practicegrowing. A barrister who fails to do thatwill find much time to wonder why lessbright contemporaries have soaring practices,while he or she can only dine on thecrumbs. LMwww.lawyer-monthly.com

SolicitorJournal

78Solicitor JournalAPRIL 2013Family LawFamily law is a vast practice area covering a broad spectrum of issues, fromdivorce and child custody, to parental abduction. It is subject to a changinglandscape of distinct and complex rules and legal regulations, and has been inthe news recently due to a huge government plan to cut spending in this area.Legal Aid was the issue of the day withthe government looking to reduce the£2 billion legal aid bill it previouslyfooted. In early April, the amount ofcases that would be eligible forfinancial assistance via Legal Aid wasdrastically cut, causing controversyamongst the country’s family lawyers.The new rules state that people with asalary of over £14,000 per annum willnow be subject to stricter means teststo determine whether they can gethelp, meaning that around 200, 000couples will be affected.In addition, The Law Society hasreacted with disappointment to acourt ruling that the Legal Aid Agency– formerly the Legal ServicesCommission (LSC) – is not normallyobliged to fully fund the cost of anexpert witness report ordered by ajudge in the family court where onlythe child is legally aided and theparents are unable to afford the costsof a report.Law Society president LucyScott-Moncrieff said: “The LSC'sposition simply results in deadlock. Thecourt has first to decide that an expertreport is necessary, not just desirable,to help it decide a child's future, butunless someone is able to pay – in thiscase the legal aid budget – therecannot be a report. The court's rulingdoes not address that impasse, andfor that reason it is disappointing forthose children who find themselves inthe family courts.“This is going to be a more commonproblem following the cuts on 1 Aprilwhich removed legal aid from privatelaw family proceedings in most cases,placing vulnerable people in moredifficulty. In future, where childrenare parties to these proceedings it ismore likely that they alone will belegally-aided. Reports required by thecourt for the child's benefit should bepaid for by the legal aid budgetwhere the parents are unable tocontribute: it should not be goodenough to argue, as the LSC did, thatthe parents also benefit from a report.These cases are about the child'sfuture.“For family solicitors the judgmentraises questions about when'exceptional circumstances' wouldarise which would engage s10 ofthe Legal Aid, Sentencing andPunishment of Offenders Act 2012and oblige the legal aid budget topay to ensure effective access tojustice. The Law Society will bepreparing guidance on this for firms.”These cuts are not only bad news forfamilies, it is also bad news for manylaw firms across the UK, especiallysmaller high street practices for whichLegal Aid work makes up a largemajority of their portfolio.To find out more about how firms willbe affected by the cuts and otherissues affecting Family Law at themoment, Lawyer Monthly speaks toexperienced and specialised familylawyers from the UK to gain an insider’sinsight and opinion. LMwww.lawyer-monthly.com

APRIL 2013Solicitor Journal 79Family LawThis month Lawyer Monthly takes a look at the work of Solicitors, looking here specifically atFamily Law. To this end we speak to Kim Stradling, partner at the multi-office high streetpractice, Everys Solicitors.Please introduce yourself, your role and yourfirm.I am a Partner in the family department of amedium sized multi-office High Street Practicewith a Legal Services Commission Franchiseserving Exeter and Taunton and the market andseaside towns of East Devon. I qualified as aSolicitor in 1992; am a trained Mediator andCollaborative Lawyer; have been on theChildren Panel since 1999, and have been aResolution Accredited Specialist since 2011.What are the main types of cases that you workon?I have dealt with most aspects of Family Lawover the last 22 years, but now concentrate onPublic Law Proceedings relating to children, andget the greatest satisfaction from representingchildren in Care Proceedings. I appear regularlyin the High, County and Family ProceedingsCourts in the area, and have had a couple ofcases go to the Court of Appeal.What are the main challenges you face andhow do you navigate them?Main challenges are:-a) Time management, by which I meanjuggling the need to prepare for and attendCourt, deal with the paperwork that results,and see clients. Family work often requires animmediate, intelligent, energised and focusedresponse to emergencies, and demandsregular rearrangement of the diary and asupportive, self-starting team behind you.b) Meeting the pressure imposed bymanagement to make a profit out of workwhich is largely funded by the State, through theLegal Services Commission. Hourly rates do notincrease and indeed last year there was a 10%reduction in fees across the board. We are nowoperating fixed fees.What are your opinions on Court Alternativessuch as Mediation, Collaborative Law andArbitration?As a trained Mediator and CollaborativeLawyer I support the non-confrontationalaspirations of both, but they are rarelyappropriate to the work that I do. However inmost Private Law children cases a referral to aMediator has to be made before a publicfunding certificate can be applied for, but thereality is that by the time legal advice is sought,the parties are too polarised to benefit from thisapproach.Have there been any recent legislative changesthat affect your practice area? If so pleaseexplain.Public funding has now ceased to be availableto many clients wanting help in relation to familymatters as of early April 2013. In many, if notmost, cases, this means that the parents ofchildren, about whom the law says in Section 1of the Children Act 1989 should be the Court’sparamount consideration, will beunrepresented. The middle classes withdisposable incomes will continue to be able toafford representation to argue not just aboutcontact and residence issues, but removal fromthe jurisdiction, and issues relating to medicaltreatment etc. However the rest of society willbe disadvantaged, and by extrapolation, so willtheir children. There will be more Litigants inPerson, inevitably clogging up the Courts whichis not their fault, but we are told that no moreCourts and no more judicial time will beavailable.Recent guidance also requires CareProceedings to be concluded within 26 weeksof issue. This is an idea that has some merit, afterall the Children Act says that delay is prejudicialto the welfare of the child. However equally, achild has the right to be brought up by a parent,and many of us feel that those parents whoneed to show six months abstinence from drugsand/or alcohol before rehabilitation can beconsidered, will be discriminated against, as thesystem imposes pressure on the Court toconclude proceedings within that time span.Consequently, some children will lose theopportunity of being brought up by theirparents.If not, are there any changes you would like tosee?I would like to see a proper hourly ratefor a specialist, multifaceted, sometimesdangerous, often challenging and alwaysrewarding job.Legal Aid Lawyers are often seen as the poorrelation but we work far harder than ourcommercial colleagues. We rarely receive thesame respect.I would like to see the State revisit theParamountcy Principle in Section 1 of theChildren Act, and fund family workappropriately to ensure the safety andwellbeing of all of our children. After all, everychild matters.Is there anything else you would like to add?Family work is one of the most poorly paid,stressful, emotionally draining, fluctuating,changing, dangerous areas of Law, yet it isfor those who embrace it, one of the mostrewarding. Without family, all of us are nothing.Yet the State no longer sees it as a priority.Society will inevitably live to regret that. LMWithout family, all of usare nothing. Yet theState no longer sees itas a priority. Society willContact:Kim Stradlinginevitably live toEmail: Kim.stradling@everys.co.ukTel: 0800 8840 640regret that.www.lawyer-monthly.com

80Solicitor JournalAPRIL 2013Family LawContinuing with our focus on the work of Family LawSolicitors, Lawyer Monthly speaks to Joyti Henchie,Partner and Head of the Family Department atAttwaters Jameson Hill Solicitors. Attwaters JamesonHill is a 14 Partner, multi-disciplinary practice with fouroffices across Hertford, Ware, Loughton and Harlow.also an Accredited Specialist withResolution in Advocacy; Children(Private Law) and Children Law-Private. I am a Collaborative Lawyer.Please introduce yourself, yourrole and your firm.I qualified as a Solicitor in 1995 andhave specialised in Family Law sincethat time. I am a member of the LawSociety Family Law AccreditationWhat are the main types of casesyou work on?I specialise in all areas of Family Lawto include Divorce and Separation,Financial Remedy, Children disputesincluding Private Law Children ActScheme and the Law Society Children proceedings and Public LawPanel Accreditation Scheme. I am Children Act proceedings, TOLATAI think it is important that allclients are given informed alternativeoptions as to how they wish toconduct their family mattersproceedings, Pre-Nuptials, PostNuptials, Civil Partnership Agreements,Cohabitation Agreements andCohabitation Disputes.What are the main challenges youface and how do you navigatethem?My clients are often vulnerable andemotional following the breakdown ofa marriage/relationship, or followinginvolvement with Social Services. Theyrequire not only sound legal andpractical advice, but also reassuranceand support. I am required to balancethe provision of all of these servicesagainst the commercial pressures ofoperating a successful and profitablebusiness. The biggest challenge isto ensure that I do not, in any way,compromise my compassion anddesire to do the best to support myclient against the financial demandsthat may be placed upon me.www.lawyer-monthly.com

APRIL 2013Solicitor Journal 81What are your opinions on courtalternatives such as mediation,collaborative law and arbitration?I welcome ADR. I think it is importantthat all clients are given informedalternative options as to how theywish to conduct their family matters.For some, mediation may be themost suitable option. For others,collaborative law is a very attractiveoption.Others are quite clearthat they require me to put on my“Litigation Hat”. Each client needs tobe considered on an individual basisand whilst there are alternativesavailable to them, such as mediationand collaborative law, it allows us, asFamily Lawyers, to ensure that theircases are dealt with in the bestpossible way for them. My onlyreservation is MIAMs.I am notconvinced that client’s should beforced to attend MIAMs before issuingproceedings. This is an additional costand can lead to delays. I believe thata good, experienced solicitor canassess for themselves whethermediation or indeed collaborative lawcould be explored with a client priorto litigation.Have there been any recentlegislative changes that affectyour practice area? If so, pleaseexplain.Child Care work (Public Law ChildrenAct proceedings) requires specialistknowledge and expertise from boththe advocates involved and theexperts instructed. Limitations beingimposed by the Legal ServicesI follow with interest the Childrenand Families Bill and thebenefits that this could give tovulnerable children.Commission are making it difficult forthis specialised and complex workthe financial constraints imposed bythe Legal Services Commission.(which has serious outcomes) to beconducted by the right people, at theright level, with the right qualificationsAre there any changes that youwould like to see?and for good experts to be identifiedand sourced. I fear that this will causeproblems in the future with low levelI follow with interest the Children andFamilies Bill and the benefits that thisfee earners and inexperienced could give to vulnerable children. Inexperts presenting cases. For now Isimply continue to do the work withthe passion and consideration thatit deserves, to the best of my abilityand properly utilising my skills andknowledge without being hindered byparticular I support, in principle, thelegal presumption in favour of sharedparenting, albeit I am concerned asto how information will be conveyedto parents and how they will interpretand act on this measure. LMContact:Joyti HenchiePartnerAttwaters Jameson Hill Solicitorsjoyti.henchie@attwaters.co.uk60-62 High StreetWareHerts SG12 9DAtel. 01920 460531fax. 0845 5085909www.lawyer-monthly.com

Profile

84Expert Witness ProfileAPRIL 2013PsychiatryRecent decades have seen a significant increasein the frequency at which psychiatrists andpsychologists have been called as an expertwitness in the UK.In light of this, over the next nine issuesLawyer Monthly is producing a series ofExpert Witness Profiles which will look atthe role of expert witnesses in legal cases.Across this feature, we will speak to avariety of experts including surgeons andarchitects. This month we take a look atPsychiatry and the role that psychiatricexpert witnesses play in variety ofcases – both criminal and civil.www.lawyer-monthly.com

APRIL 2013Expert Witness Profile 85PsychiatryRecent decades have seen a significant increase in the frequency at which psychiatrists andpsychologists have been called as an expert witness in the UK. Experts play a critical role in family,criminal and civil proceedings, the outcome of which can be dependent on an expert’s opinion. Aspart of this month’s Expert Witness Profile, we look further in to the work of Psychiatric Expert Witnessesby speaking to Steven Hirsch, an experienced Expert Witness, about his work and the issues thatsurround it.Please introduce yourself and your role, tell ushow long have you acted as an expertwitness for and what drew you to begin?I am Professor of Psychiatry Emeritus atImperial College where I led a communitypsychiatry service for over 25 years, prior toretiring from academic life and doing privatepractice. For over 20 years I have beeninvolved in medical-legal matters after beingdrafted in to provide a report on a lady whostabbed her GP’s partner believing she wasthe Devil. The patient was psychotic and theGP negligent because he sent her to hishome alone with his wife.As an Academic I organized the mainEuropean meeting on Psychoses researchand edited the reference textbook onSchizophrenia, but my own work studied theeffect of environmental factors on psychiatricconditions, as well as the condition’sunderlying biological cause. In the course ofbeing an Expert Witness, my interests havemoved to focus on stress-related issues, andtheir effects.What are the main types of cases you arecalled to work on?Beside the everyday work of assessingCapacity and Testamentary Capacity, I havea special interest in Employment and PersonalInjury cases, and anything where a Psychiatricopinion is required for adults.What are the main challenges you face andhow do you navigate them?I especially like the challenge of contestedcases, and cases going to court, but mainlycivil cases, except I do capacity issues whichcome up in criminal cases.What are you more likely to be involved in –civil or criminal cases?Civil.How valuable to the law do you think expertwitnesses in the field of psychiatry are?Whenever individuals experience stress,breakdown, unhappiness or any form ofmental illness, either as a result of a terribleexperience or injury, or as a factor leading toits causation, psychiatrists provide a valuablespecialist opinion about causation, the natureof the injury, its prognosis, and treatment. Myperspective is a medical one, but there issome overlap with the role of psychologists,who also understand the psychologicalcauses and their treatment.What can knowledge of psychiatry bring to acriminal or civil case?An understanding of the influence ofexperience, psychological factors andmental illness plays an important part inunderstanding human behavior, which ofcourse is the meat of most civil and criminalmatters. My usual instructions are to considerprevious medical history, what has caused aperson to act or caused their distress orcondition, the nature of their psychologicalor psychiatric condition, its treatment andprognosis. Often one has to make judgmentswhether they will be able to function in theirprevious role after they have had treatment;and going on into the future.Are there any changes that would help you inyour capacity as an expert witness? If yes,please explain.Some experts conduct their interviews in away which constrains the witness to onlyspeak about certain issues or in a limited way,thereby distorting a full understanding of thefacts; while others such as myself, give thewitness as much time as they need to give afull understanding of the issues from their pointof view. I believe that the witness shouldnot be constrained in presenting a fullunderstanding of their point of view and thatthe client, as well as the examining expertshould be aware of the obligation to give thewitness as much time as she/he needs to fullyexplain the nature and circumstances of theircomplaint. LMContact Details:Steven HirschImperial College LondonReynolds BuildingSt Dunstan's RoadLondonW6 8RPUKTel: 020 8846 7342Email: s.hirsch@imperial.ac.ukwww.lawyer-monthly.com

86Expert Witness ProfileAPRIL 2013PsychiatryLooking further into the work of Psychiatric Expert Witnesses, here we speak to Dr RajeevDhar, a Consultant Forensic Psychiatrist and non-practicing Barrister, from Harley Streetin London.Please introduce yourself and your role.I specialise in the assessment andtreatment of mental health problems. Inmy clinical practice I deal with a widerange of mental health problems rangingfrom anxiety, depression, bipolar disorderand psychotic illness to work stressand personality difficulties. I also have aspecial interest in clinically assisting thosewho may be suffering stress arising out oftheir experience of litigation and thoseworking in the legal field. As an expertwitness I see myself, very simply, asproviding useful evidence on how anindividual’s mental health may or may notbe relevant in a legal context.How long have you acted as an expertwitness for and what drew you to begin?I have provided expert psychiatricopinion for 15 years. After obtaining myMedical Degree from the University ofLondon I trained in psychiatry at StGeorges Hospital. I then worked asa Consultant Forensic Psychiatrist,Consultant Psychiatrist in Intensive Careand Clinical Director in the NHS. Morerecently I have entered the world ofhealth care commissioning as a boardmember for the newly formed NHS clinicalcommissioning groups. What initially drewme to expert witness work was a naturalfascination with the mind and humanbehaviour as it is seen both inside andoutside the clinical domain. I continue toremain passionate about offering variousclinical explanations and hypothesesfor human actions especially in legalcontexts. The need for a thorough carefulanalysis of the clinical evidence in a waythat can offer an explanation of theaction of an individual has since thenbeen at the core of my professionaldevelopment. The experience I have hadin senior healthcare management hasalso provided me with useful perspectivein terms providing expertise in health carecases involving corporate and publicbodies, clinical negligence andemployment and disciplinary matters.What are the main types of cases you arecalled to work on?I provide expertise on both civil andcriminal matters. In particular, in civilmatters, I specialise in assessing causationand quantum related to psychologicalinjury arising out of clinical negligenceand personal injury; the issue of anemployee’s mental health and whetherit constitutes disability, mental fitnessin disciplinary hearings and mentalcapacity. In terms of criminal work, Iprovide evidence on the issue of fitness toplead, psychiatric defences and opinionsthat assist in sentencing both in terms ofmitigation and disposal.What are the main challenges you faceand how do you navigate them?Gathering clinically relevant informationfrom the larger body of evidence,particularly when there has been little orno past medical contact in a case andmaking sense of this in with recognisedclinical formulation can often be achallenge. The best way to navigateone’s way around this is to identify andclarify the information required to form auseful opinion. Legal training has enabledme to identify and filter clinical evidencemuch more efficiently. It has helpedme to distinguish with ease what maybe legally relevant and what may beclinically relevant and how to draw theline as what is opinion as opposed to fact.This helps me appreciate the relevance ofclinical evidence and the weight that youshould attach to it.How valuable to the law do you thinkexpert witnesses in the field of psychiatryare?Psychiatric evidence is crucial to the Lawacross various areas for many reasons.Questions in a psychiatric interview canbe used, rather like a surgeon’s scalpel, towww.lawyer-monthly.com

APRIL 2013Expert Witness Profile 87carefully reveal what is or has been goingin an individual internal world. It canthus offer an explanation for or anunderstanding of an individual’s state ofmind and behaviour directly relevant tolegal issues such as culpability, injury,capability and disposal. It can also offera balanced view that will assist the Courtin determining how best to deal withthe individual in terms of justice, welfareor compensation. As the Law is oftenconcerned with the conduct orfunctioning of an individual, anunderstanding of their state of mind andmental functioning becomes crucial.Psychiatric evidence ought also, ifproperly introduced, to offer a balancedview as to what should be regarded asoccurring within the range of normalmental functioning and whetherpathology has any bearing on thefunctioning or behaviour.What can knowledge of psychiatry bringto a criminal or civil case?Psychiatry can be introduced in a varietyof ways. It can be introduced in a civilcase to assess the psychological impactof an injury, whether personal or througha negligent act and how this mightrelate to any pre-existing disorder. Inemployment matters it is often crucial tounderstanding the impact of allegationsof harassment or bullying; determiningwhether an employee falls within disabilityunder the legislation and so may or maynot have been discriminated against. Incriminal matters it may be introduced asan issue having a bearing legal process,such as an assessment of fitness to pleador of a defendant’s mental health incustody to ensure that defendant isnot disadvantaged. A defendant canintroduce it as a possible driving factorbehind his or her behaviour where it maybecome relevant to the mens rea oractus reus of an offence or meet thecriteria of a psychiatric defence. It can beintroduced later to assist those disposingof the case in both understandingpsychological factors relevant tomitigation and determining the range ofoutcomes possible.Are there any changes that would helpyou in your capacity as an expertwitness? If yes, please explain.On a personal level, one often feels thatit would have been better to have beenintroduced into the legal process earlierso that any possible mental health factorscould be examined then applied in amore timely fashion. As a possible solutionto this and also because of the extentto which mental health problems areinvolved with legal issues I have alwaysfelt it would be helpful if some screeningwere used by those working in the legalsystem to detected possible mentalhealth issues early on within the legalprocess.Is there anything else you would like toadd?Psychiatric evidence has evolved overthe years. In the time I have worked as awitness I have seen it become moreand more sophisticated and relevant,allowing a better understanding of thestory that may have gone on in the leadup to a legal event. The analytic andimpressionistic nature of both legalprocess and psychiatric assessmentmakes the relationship between Law andPsychiatry very natural. This said, however,I strongly believe that developments inneuroscience and psychiatry now meanthat more scientific data and evidenceshould be introduced into legal contextsto improve the reliability and validity ofclinical opinion put forward.. LMPsychiatricevidence iscrucial to theLaw acrossvarious areasfor manyreasons.Contact Details:Dr Rajeev Dhar10 Harley StLondonW1G 5 9PFEmail: dharrajeev1@yahoo.co.ukTel: 02074678409Mob: 07928613223www.lawyer-monthly.com

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INSIDE THIS MONTH...JUNE 2012Brand and Reputation Managementin the Wake of a CrisisBribery Compliance in Oil and Gas IndustryA Guide to Competition Lawfor Foreign CompaniesConstruction ContractsThe New Data Protection ActData Protection & Privacy LawDispute Resolution within M&A TransactionsA Guide to Drafting Dispute Resolution ClausesEmployee Obligations to the Protection of anEmployer’s Trade SecretsEmployment Law ReformsForensic AccountingCompany FormationsInheritance and Estate TaxThe New Patents ActOut of Court RestructuringPensionsPrivate EquityPublic Procurement DisputesLegal Challenges facing theTelecommunications IndustryReal EstateEach month, Lawyer Monthly looks at the legal news from around the worldand the topics it raises. Legal Focus explores the most topical issues byfeaturing the legal professionals who deal with these subjects on a day today basis, to gain expert insight, opinion and fact. Look deeper into thelegal news of the moment with Legal Focus.Xxxxxx 89LEGAL FOCUSwww.lawyer-monthly.com

90Legal FocusAPRIL 2013This month’s Legal Focus is as in-depth as ever, covering a wide range of major practiceareas and issues, from the new Patent Act in Taiwan and real estate, to employment lawreform and bribery compliance. This feature reflects the news of the legal world, andthere has certainly been plenty keeping the world’s legal news rooms busy over recentweeks. Many of the stories below are explored further within the following interviews andfeatures with expert lawyers from across the world, as well as related issues from theirspecific jurisdictions and comment on the other legal implications that many of thesemajor stories uncover. We hope you enjoy this edition of Legal Focus.Brand and Reputation Management inthe Wake of a CrisisThe recent scandal involving the discovery of horse DNA in food productsacross Europe has highlighted the need for drastic action in terms of reputationmanagement in the wake of a scandal or crisis. Companies involved in theincident, such as UK supermarket Tesco, would have been very vulnerable toserious brand damage during and after the scandal. Sound legal advice isthe key.92Employment Law reform: Bulgaria2012 saw the enactment of legislation relating to temporary agency work. This is apositive move as previously there was a distinct lack of legislation on this area inBulgaria. The move changed the recognition of “triangular” labour relations in thecountry.110www.lawyer-monthly.com

APRIL 2013Legal Focus 91The New Patent Act: TaiwanTaiwan’s new Patent Act came into force on January 1 2013, which introducedmany significant provisions to the patent system, bringing Taiwan’s law morein line with international standards, allowing more expansive protection fordesign patents and increased flexibility in application procedures.118Legal challenges facing the Telecomsindustry: IndonesiaThe Indonesian government is currently in the process of updating the presentTelecommunications law with a new one. This is in response to the fact thatthe present regulatory system has failed to keep up with pace of technologicaladvance. The changes are hoped to accommodate the technologicaladvances and increase and change in market demand.130Also, in Legal Focus…In addition, this month’s Legal Focus takes a look at company formations,private equity, employee obligations to dispute resolution clauses,inheritance and estate tax, dispute resolution in M&A transactions, out ofcourt restructuring, pensions and public procurement disputes.www.lawyer-monthly.com

92Legal FocusAPRIL 2013Brand and Reputation Managementin the Wake of a CrisisThe European food industry was recently rocked by revelations that traces of horsemeatwas detected in various products across several countries. As the scandal deepenedday by day, so did the potential disastrous effects on the reputations of the companiesinvolved. To find out how problems such as these should be best managed, and howthe reputational damage can be restricted, Lawyer Monthly speaks to Barbara Kuchar,partner at Austrian law firm Gassauer-Fleissner attorneys at law.Please introduce your firm and your role.My practice focuses on all aspects ofintellectual property law with an emphasison all aspects of trademark law, anticounterfeitingand brand protection. Ourfirm’s IP practice is ranked in tier 1 by allrelevant directories such as Chambers andPartners, Legal500, Managing IP, PracticalLaw Company.What are the main types of risk thatbusinesses face in the wake of a scandalsuch as the recent horsemeat incident?Besides the obvious exposures of sometimestremendous loss in income and regulatoryrisks (or sometimes even criminal law risks)the devaluation of the brands is certainlyone of the major risks. This can concern notonly product brands directly related to anincident but eventually a negative publicityspill over can seriously harm related brands,the company brand itself and sometimes, ifthe credibility of an entire group of productsis concerned even the brands of differentcompanies.How can companies recover from such anevent?It has proven that brand protection is inmost cases best achieved by a mix of PRand advertising measures on the one handside and internal investigations, complianceefforts and corporation with the applicableregulatory authorities. Generally anapproach of transparency and the pursuit ofa forward strategy instead of a defensiveapproach have proven most helpful, inparticular in cases where the issue triggeredsubstantial media coverage.What is the most difficult case you have everworked on in terms of brand and reputationmanagement?Protecting the reputation of a famous brandof a charity organization in a case whereserious misconduct on behalf of itsmanaging directors leaked to the press.Maintaining the ability to attract donators toany charity organization is particularlydifficult when allegations of misappropriationare raised and it is in such case particularlyrequired that an internal investigation isconducted with highest degree of diligence,that immediate actions are set followingsuch investigation and that full account ofthe facts is actively communicated to thestakeholders, the donors and where requiredto the media.What challenges proved to be the trickiestand how did you overcome them?One of the main challenges is in many casesto align the client’s organization on aforeword strategy rather than giving in to thefirst instinct of passively defending the brand.Another challenge lies in the fact that thebrand protection requires a seamlessintegration of management, marketing andlegal efforts, from the first steps after anincident up to a potential re launch of abrand.Is there anything else you would like to add?While brand protection is essential asdescribed, companies should be remindedthat a continuous legal protection of brandsis required to prevent the credibility of abrand being tarnished by counterfeits orme-too products. Not pursuing anaggressive stance when it comes to fightinglow quality counterfeits in itself is a majorand unacceptable carelessness to thetrademark. This is true especially in areassuch as pharmaceutical products orengineering parts, which, if counterfeitedcan pose a major threat to the safety of theconsumer; it also applies, however, to allkinds of other products, which are just aseasily impaired by counterfeits. LMContact Details:Tel.: 00 43 1 205 206 120Fax: 00 43 1 205 206 125b.kuchar@gassauer.atwww.gassauer.atBarbara KucharGassauer-Fleissner RechtsanwälteGmbHWallnerstrasse 41010 WienFN 224579p HG Wienwww.lawyer-monthly.com

APRIL 2013Legal Focus 93Bribery Compliance inOil and Gas IndustryDue to the nature of the oil and gas industry, companies are far more exposed to the risk of corruption thanother types of business. With this in mind, Lawyer Monthly speaks to Glenn Faass and Mauricio Zagarra-Cayónfrom the Bogotá office of Norton Rose. Here they discuss with us the issues surrounding affecting briberycompliance in Colombia currently.Please introduce yourself, your role and your firm.G. Faass: Since 2005, Norton Rose has been activeon international aspects of Colombian transactionsrepresenting parties in many of the market's marqueeM&A transactions. This naturally led to commencingon-the-ground operations in September 2010. NortonRose in Bogotá now offers a 20-lawyer team deliveringan integrated package of international and domesticlegal services for Colombia-based assets or parties.Our focus is in natural resource investments andtransactions and therefore our experience is heavy withsuccessfully completed and ongoing engagements inthe oil and gas, mining, real estate, electricity and powerindustries throughout Colombia.Please give me an outline of the developments in briberyregulation and the impact they will have on operatorswithin the oil and gas sector?M. Zagarra: Our “top of mind” anti-corruption point in2013 is the likelihood of increased focus and investigationby Colombian authorities of their new anti-corruptionlegislation. New measures in 2011 include: (i) extensionof the anti-corruption regulation to offences involvingbribery of private companies and individuals, and notonly government entities or employees; (ii) imprisonmentof up to 18 years upon conviction; (iii) the enlisting of thepublic to denounce corrupt acts; and (iv) necessaryamendments to the Contracting Statute, a legalinstrument which regulates agreements to be enteredinto between the government and private entities.G. Faass: Simultaneously, “new generation” legislation,such as the Bribery Act (UK), tends to be stricter, andolder legislation (such as Canada’s law) is beingamended to bring it in line with a lower or no toleranceenvironment. Where the legislation is not new oramended, increased and stricter enforcement mayachieve a similar result. This is the case in the US, wherethe Department of Justice is interpreting the FCPA morerestrictively, while simultaneously commencing moreinvestigations and proceedings.legislative and enforcement environment. Companieswhich take their eye off this ball are risking costs andpenalties, significant damage to their share value andreputation, and also prison terms for their executives.How rife is the problem of bribery and corruption in theoil and gas industry?M. Zagarra: Colombia has come a long way fighting corruptionand bribery in every sector of its economy, andparticularly in the oil and gas industry. However, there ismuch left to do, as evidenced by Colombia’s modestranking in the Corruption Perceptions Index in 2011, andits decline in the 2012 rankings.As a result of scandals in previous years, including overallegedly falsified documentation, some Colombiangovernmental agencies, including the petroleumregulator, are now more careful. Proof arrived in theterms and conditions of the 2012 Ronda Colombia,where standards for awarding of E&P contracts were sostrict that the ANH was criticized for scaring off small andmid-size companies. On the flipside, our clients, whooften have participated in many countries’ bid rounds,told us that they had never seen a more professional ortransparent petroleum bidding process.This is part of the reason for the Colombian government’sinitiative to apply lessons learned from petroleumbidding rounds to a proposed mining bidding round.Time will tell to what extent this experience transfers tothe mining industry.What, if any, further legislative progressions do you seefor oil and gas law in the next 5 years?M. Zagarra: Bribery regulation in Colombia, regardlessthe industry, will be covered by the 2011 Statute.Because that law is recent and strict, we are notexpecting significant legislative initiatives over the next5 years. Instead, we believe the authorities will focus onimproving enforcement, and we likely will see high profilecases, including potentially against foreign companiesand their officers.integrate the requirements of both domestic andapplicable foreign laws. Accordingly, it is indispensablethat counsel can understand and cover bothdimensions. This is much more difficult for a purelydomestic law firm, and one of the value-added featuresthat an international firm alone canprovide. LMNorton Rose Colombia S.A.S.Edificio K2, 7° PisoCalle 97A, #9A - 50Bogotá DCColombiaTel +57 1.746.4666Glenn FaassContact Details:Fax +57 1.746.4620Glenn Faass is the managing partner of theBogotá office of Norton Rose and is one ofthe co-founders of the office in 2010. Hepractices principally in the area of energy,mining and anti-corruption/business ethics.Mauricio Zagarra-CayónPrior to joining the Bogotá office of NortonRose, Mauricio Zagarra-Cayón workedboth in Colombia and the Andean Regionas legal vice-president, general secretary,and associate general counsel for LatinAmerica for several multinational corporations. His practiceareas are focused on corporate, commercial, transactionaland telecommunications/IT.The general message is that companies need to makesure that anti-corruption monitoring and programmesremain on their “to do” checklist. Programmes whichwere sufficient some years ago now need to bereviewed, and often overhauled, to deal with the newIs there anything else you would like to add that you feelour readers may be interested to know?G. Faass: Anti-corruption analysis and complianceprogrammes for foreign investors in Colombia need towww.lawyer-monthly.com

94Legal FocusAPRIL 2013Starting or expanding a business in a different country isdaunting and stressful in its own right; start adding complexlegal considerations – such as competition and anti-trust law –and it can be easy to become overwhelmed and potentiallymake mistakes.Failure to heed sound competitionadvice can lead to majorconsequences, as seen in therecent case against Mercedes-Benz. The German carmanufacturer was fined £2.6 million, alongwith British commercial dealers Ciceley,Road Range and Enza, by the UK Office ofFair Trading for competition infringementswhich allegedly took place between 2008and 2010.Another high-profile case which highlightsthe important of compliance with anti-trustlaws is that involving Microsoft from last year.The software giant’s failure to fulfil promisesit made three years ago to offer consumersa choice of browsers landed the companyin hot water with the EU, resulting in a hugefine. EU Competition Commissioner JoaquinAlmunia said that companies must carryout what they have promised to do “or facethe consequences.” He also warned that“companies should be deterred from anytemptation to renege on promises or evento neglect their duty."To find out about the competition andantitrust issues that companies should beaware of when doing business in foreigncountries and how to avoid trouble, LawyerMonthly speaks to three legal professionalshighly experienced in the field ofcompetition law. LMwww.lawyer-monthly.com

APRIL 2013Legal Focus 95A Guide to Competition Law for Foreign CompaniesUKAs part of our guide to competition law for foreign companies, we get a UK perspective by speaking toAnthony Maton, Partner at Hausfeld & Co LLP. Here he discusses with us the competition issuesforeign companies need to be aware of when navigating the business world in the UK, as well as hisopinions on the £2.6 million fine which was given to Mercedes Benz and the British commercial dealersCiceley, Road Range and Enza, by the UK Office of Fair Trading for infringements between 2008 and 2010.What are your opinions on the fine given toMercedes Benz and Ciceley, Road Range andEnza?Anti-competitive behaviour is notoriously difficult todetect and prove, so the Office of Fair Trading’s(OFT) successful investigation into these businessesis to be congratulated. Whilst the OFT may nothave as strong a track record in uncoveringinfringements of competition law as otherEuropean authorities, such as Germany’sBundeskartellamt, it has been continuallyattempting to unearth anti- competitive behaviour.What effect will this ruling have on future cases?The ruling could provide an opportunity for theforthcoming collective redress reforms in the CATto be put through their paces, if they areimplemented soon enough. However, thegeographic scope and the length of theinfringements uncovered by the OFT were relativelylimited, which suggests that the pool of affectedpurchasers may be small. It remains to be seenwhether the size of a potential claimant group willhave a bearing on the likelihood of a collectiveaction being brought. Having said that, we haveseen in Nokia that the limitations of a competitionauthority’s ruling/decision are not a hindrance tothe issuing of much broader actions, brought on astand-alone basis. Consequently, the ruling mayprove to have much wider implications.What are the main challenges involved inprotecting foreign companies against competitionand antitrust law infringements in your country?As the body of case law continues to grow, thelegal challenges faced by foreign companiespursuing damages actions in London have evolvedand become much more straightforward.‘Claimant-friendly’ judgments like those in Toshiba,for example, have made the challenge ofidentifying a suitable English domiciled defendant(so as to anchor proceedings in London)considerably easier. This in turn has encouragedclaimants to push the boundaries further bybringing even more ambitious and complex claims,which inherently give rise to new challenges.Nevertheless, the biggest challenges in protectingforeign companies against antitrust lawinfringements are not legal challenges, but morefundamental practical problems. First, foreigncompanies are often not even aware that theyhave been affected by a cartel or an abuse ofdominance. Secondly, even if they are aware ofthe infringements, they then face the psychologicaland economic hurdles associated with pursuing aprivate claim for damages against infringers withwhom they may have an ongoing commercialrelationship.How can they be navigated?Having pioneered the development of privatedamages actions in Europe, Hausfeld & Co arewell-placed to navigate these challenges andhave experience of achieving commercialresolutions for foreign companies, both Europeanand global.What are the key legal issues within competitionlaw that foreign companies need to be aware of?England, Germany and the Netherlands haveemerged as the premier fora to pursue privatedamages claims in Europe and foreign companiesshould be aware of the advantages anddisadvantages of each so as to choose the bestforum to pursue their action in. The Netherlandsfor example is a comparatively cheap jurisdictionto litigate in, which must be weighed against therelatively slower pace of litigation which canultimately delay a commercial resolution. In thecontext of an action against a cartel, whosesecretive nature makes pursuing such actionsespecially challenging, the disclosure provisionsimposed on defendants in the English Courtsoffer a significant pressure point in settlementnegotiations as does the English “loser-pays” costsrule. In the wake of the Pfleiderer and National Gridjudgments, a claimant’s entitlement to accessconfidential leniency materials in the English Courtsoffers another significant advantage over otherfora, such as the German Courts.Is there anything else you would like to add?Many companies will have a claim arising fromcompetition infringements which have beendiscovered and pursued by a regulator. It is alwaysworthwhile conducting an audit to see the extentand value of claims. Once recognised thereare then many different avenues to recoveryof damages, many of which do not involvelitigation. LMContact Details:Anthony Maton12 Gough SquareLondon, EC4A 3DWTel: +44 (0)20 7665 5000Fax: +44 (0)20 7665 5001www.hausfeldllp.co.ukHausfeld & Co LLP is a leading, claimant focusedlitigation practice, based in the City of London,specialising in Competition / Antitrust, FinancialServices, Consumer and Human Rights law, veryoften with an international dimension.www.lawyer-monthly.com

96Legal FocusAPRIL 2013A Guide to Competition Law for Foreign CompaniesChinaRecently the PRC enforcement authority imposed alandmark fine of around 0.4 billion RMB on two leading luxuryalcohol companies for setting the minimum RPM. Thishighlights the importance of seeking sound legal guidancein relation to competition issues to avoid such problems inbusiness. To find out more, Lawyer Monthly speaks to Ken Dai,partner at Dacheng Law Offices, specializing in antitrust,competition law compliance, merger control filing andprivate antitrust litigations. Ken is also the head of the Antitrust& Competition Practice Group at the Firm.Can you please tell me about the verticalrestraints in China with emphasis on resale pricemaintenance since PRC enforcement authorityjust imposed the landmark fine up to about0.4 billion RMB on two leading luxury alcoholcompanies for setting the minimum RPM?Recently, the National Development andReform Commission (NDRC) has engaged inhigh-profile investigations of two State-ownedalcoholic producers – Kweichou Moutai(Moutai) and Yibin Wuliangye (Wuliangye) – forcertain business practices which allegedlyconstitute resale price maintenance (“RPM”).Following the NDRC investigation, Moutai andWuliangye have issued a public announcementstating their intention to repeal all policiesalleged to have infringed the AML and toadopt rectification measures. Nonetheless,on 22 February 2013, Guizhou Provincial PriceBureau (“Guizhou Price Bureau”) released thedecision to impose a penalty of RMB 247 millionon Kweichow Moutai, for conducting RPM. Onthe same day, Sichuan Provincial Developmentand Reform Commission (“Sichuan PDRC”)released its decision to penalize Wuliangye withan amount of RMB 202 million for RPM as well.In China, vertical agreement is the mostcommon type of commercial agreementbetween distributor and reseller ormanufacturer and distributor. Article 14 ofAnti-Monopoly Law (AML) contains an expressprohibition on vertical agreements that fix theresale price or restrict the minimum resale priceof goods to a third party, which are commonlyreferred to as “RPM”. However, Article15 ofAML sets out a series of exceptions to suchprohibition, for example, for the purpose oftechnological improvement or raising thebusiness efficiency of small and mediumbusiness operators.A similar regulation is adopted by the NDRC inits Anti-Price Monopoly Provisions, issued on29 December 2010. The Anti-Price MonopolyProvisions defines a “Price MonopolyAgreement” as an “agreement, decision orother concerted action that eliminates orrestricts competition in respect of price”. TheNDRC’s provisions similarly prohibit “PriceMonopoly Agreements” that fix the resale priceof products or set minimum resale prices or RPM.According to international practice, there aretwo approach applied in the assessment ofvertical restraints, that is “per se illegal” and“rule of reason”. Although literal interpretationof the AML does not refer to an ‘effects based’analysis, the rule of reason has been establishedby NDRC in this case. According to the officialpenalty notice for Wuliangye, the fine imposedon it is decided on the basis of concrete analysisof RPM’s consequences instead of the mereexistence of RPM.www.lawyer-monthly.com

APRIL 2013Legal Focus 97What legal challenges will this bring?According to the AML, where an undertaking,in violation of the provisions of this Law,concludes and implements a monopolyagreement, enforcement agencies of the AMLshall instruct it to cease the violation, confiscateits unlawful gains, and, in addition, impose on ita fine of one to ten percent of its sales achievedin the previous year. The fines are only a portionof punishment for Maotai and Wuliangye, thereal challenge in the coming days is privateantitrust litigation. The victims (e.g. consumersand distributors) suffering the loss are entitled toclaim their rights under the Article50 of AML. Inthat case, Maotai and Wuliangye will involve intime-consuming litigation, which is the last thingthey want to see.What legislative developments do you feelthere is a need for?First, since the application of rule of reason toRPM is settled down, the AML does not makespecific stipulation about vertical territorialallocation. Currently, the AML only provides fortwo types of vertical monopoly agreements,namely fixing resale price and restrictingthe minimum resale price. The SAIC has notpromulgated any rules on non-price-relatedvertical agreements.Moreover, there is no rule setting out the basisfor calculation of the sales revenues. Accordingto Article 46 of the AML, for companies thatenter into a monopoly agreement, the AMLenforcement agencies are entitled to impose afine ranging from 1–10% of their sales revenuesfor the previous year. However, according tosome news report, Wuliangy’s sales revenue in2012 may hit more than RMB 60,000 million, andKweichow Moutai’s sales revenue in 2012may hit around RMB 35,200 million. If this is thecase, it would appear that the fine was notcalculated on the basis of the sales revenues ofthe entire group in the previous year. Therefore,it is not clear whether the basis for calculatingthe fine will be the group revenue or therevenue of the single company investigated,the worldwide revenue or the China-widerevenue, the revenue of the whole business orthe revenue of the affected business.What are the key legal issues within competitionlaw that foreign companies need to be awareof?Considering the severe damage that a cartelinvestigation can cause, the implementationof preventive measures is more importantthan ever. Firstly, it is advisable to draw up aneffective compliance program that fits for theneeds and specific circumstances of thecompany concerned. And the complianceprogram should provide regular training andmonitoring.In addition to the compliance program, theforeign companies should bear in mind that theleniency treatment is very important wheninvolving in monopoly agreement. The businessoperator who comprehensively and activelycooperates with the investigation may beleniently punished by enforcement agencies.Is there anything else you would like to add?For foreign companies, evaluating the antitrustrisk and seriously considering taking preventivemeasures to avoid or mitigate the negativeconsequences of violation should be a priorityin their daily management and legal affairs. Therecent cases have sent a strong signal to themarket that vertical monopoly agreement hasbecome a focus of NDRC’s AML enforcementactivities. It will be vital for companies doingbusiness in China to review their marketingactivities and assess the legal exposures underthe AML if they cover any vertical restraints suchas RPM. It is advised to get rid of the originalmode for distribution, and pay more attentionon product improvement and improving corecompetiveness. LMContact Details:Ken DaiKen Dai earned his LLB and LLM respectivelyfrom the China University of Political Scienceand Law, and the University of Bristol in UnitedKingdom. His working languages are Mandarin,English and Cantonese. Currently, Ken Dai isthe member of the Outbound Investment andAntitrust Committee at Shanghai BarAssociation and Asian Competition Forum. He isalso a columnist at Forbes.Ken DaiDacheng Law Offices3/F & 30/F, China Development Bank Tower500 Pudong South Road, Shanghai, 200120, P. R. ChinaTel: 86-21-5878 5888Direct: 86-21- 5878 1965Fax: 86-21-5878 7350Mobile: 86-139 1611 3437Email: jianmin.dai@dachenglaw.comWebsite: www.dachenglaw.comwww.lawyer-monthly.com

98Legal FocusAPRIL 2013A Guide to Competition Law forForeign CompaniesIn keeping with our guide to competition law for foreign companies,we take a look from a French perspective, and in particular, the sectorinquiries that the French Competition Authority has announced it willconduct this year. To this end, Lawyer Monthly speaks to Anne Servoirfrom one of France’s leading competition law firms, Intuity.Please describe briefly the main provisionsregulating competition in FranceThe two main types of infringements areanti-competitive agreements betweencompanies (articles 101 of the TFEU and L. 420-1of the Commercial Code) and abuses ofdominant position (articles 102 of the TFEU and L.420-2 of the Commercial Code). Competitionlaw is enforced by the Competition Authority, anindependent collegial institution, which replaced,in 2009, the former Competition Council.It is vested with the full spectrum of competitionregulatory and enforcement powers.Since 2009, competition investigations aremostly conducted by the investigators of theCompetition Authority, under the sole supervisionof the chief case-handler.Nevertheless, the minister of economy retainscertain powers regarding merger control.In case of competition law infringements, theCompetition Authority can impose on companiesinterim measures, injunctions or penalties of up to10 % of their consolidated global turnover.What is your opinion on the sector inquiries theFrench Competition Authority announced it willconduct in 2013?The two sectors concerned by the inquiries are, onthe one hand, the pharmaceutical sector and, onthe other hand, the coach transport sector.Under French Law, those inquiries are part ofCompetition Authority’s “advisory” competences.In this regards, the Authority has the power toinitiate the inquiries on its own in order to “renderan opinion on any matter related to competition”.In France, sector inquiries are conductedinformally since the procedure itself is notdescribed by the Code. Generally, the firststep would consist in the Authority sendingquestionnaires to the concerned parties. It maythen hear some of them.For both inquiries, the Competition Authorityindicated that it will publish its preliminary reportin order to gather the stakeholders remarks beforerendering its final opinion on its findings. Theopinion may also contain recommendations tothe stakeholders or to the Government toimplement legal measures aiming at improvingcompetition in the concerned sectors.What impact will these inquiries have on thesectors concerned?Although the inquiries do not constitutecontentious procedures by themselves, theyare a sign of the “interest” of the CompetitionAuthority for the sectors concerned. They are alsoa way, for the Authority, to gather an extensiveamount of information, it can then use toopen contentious procedures against someof the undertakings in these sectors during orafter the inquiries themselves, as did theEuropean Commission in 2008 and 2009 in thepharmaceutical sector.In the opinion it publishes after the inquiry, theAuthority does not take position regardingconformity with competition of individualbehaviors. However, the opinion is aimed to beused as guidance by the stakeholders and asquasi case law by the Authority in the frameworkof subsequent contentious matters. It is thusessential, for the undertakings consulted to payclose attention to the answers they formulateorally or in writing.Regarding the pharmaceutical sector, theAuthority announced it will investigate each levelof the pharmaceutical supply chain:• the pharmaceutical firms, especially pricesand the way originator firms handle genericpre-entry phase,• the wholesalers, in particular the possibleimpact of direct sales on wholesalers and theirrole regarding imports/exports on prices, and• the pharmacies, especially their behaviorregarding reimbursable or non-reimbursablemedicines.www.lawyer-monthly.com

APRIL 2013Legal Focus 99The Authority also indicated its intention to monitorthe newly authorized sales on the Internet fornon-reimbursable medicines. Although the newtext’s provisions have recently been suspendedby the Supreme public Court, this inquiry will inparticular allow to ensure that the opening up ofonline sales for medicinal products would benefiteveryone, in the form of price reductions,increased services and innovation.Concerning the interregional coach transportsector, the Competition Authority announced itwill seek to understand the reasons why thistransport mean is not as well-developed in Franceas it is among other European countries and willinvestigate:• whether the authorization scheme for openingnew lines has blocked the entry of coachoperators into the market,• to what extent the market could be openedup more extensively to domestic lines for thebenefit of consumers,• whether the equality of opportunity isguaranteed between all potentially interestedoperators, and• under what conditions coach operators couldregroup.What are the main challenges involved inprotecting foreign companies againstcompetition and antitrust law infringements in yourcountry?Under French Law, there are no provisions specificto foreign companies. Consequently, they mustcomply with general provisions as mentioned inthe answer to question 1 and French authorities’case law in this field.The Competition Authority is competent onpractices carried out abroad in the case wheresuch practices have effects on the Frenchterritory. It is also competent on the basis ofarticles 101 and 102 of the TFEU on practicesaffecting trade between Member States, eventhough such practices do not have any effect onthe French territory. It may also investigate casesupon request of a competition authority fromanother EU member states within the frameworkof the European Competition Network.The risk of engaging in anticompetitive practiceshas become one of the major business risksforeign companies must be aware of. Fines mayindeed reach tens, even hundreds, of millions ofeuros.Consequently, foreign companies doing businessin France, even if there are not located in thecountry, have to take into account Frenchcompetition rules when operating in France andwithin the European Union.They also should run a legal audit of their majorcontracts, of their commercial practices , in orderto adjust their actual practices and adapt theirfuture strategies.They may also implement internal programsaiming to ensure compliance with competitionrules.Such programs are taken into account bythe Competition Authority when dealing withcompetition law infringements and under certainconditions when setting the fines’ amount.What are the key legal issues within competitionlaw that foreign companies need to be aware of?French competition law enforcement provides tocompanies suspected of infringement alternativemeans to resolve competition issues.Firstly, before notifying an actual statement ofobjections, the Authority may indicate acompany that it has “competition concerns”regarding some of its behaviors . The saidcompany may then propose commitments inorder to resolve such concerns and thus avoidbeing fined.Furthermore, even having received a statementof objections, companies may initiate asettlement procedure enabling them to obtain afine reduction between 10 % and 25 % if the agreeto waive their right to challenge the statement ofobjections and propose behavioral or structuralcommitments.Finally, French law also provides a leniencyprogram under which companies may reportanticompetitive practices to the Authority beforeor after the opening of a contentious procedureagainst them. They may thus obtain either fullimmunity or a reduction of the fine they wouldotherwise have incurred in consideration forhanding over evidence to the Authority andfor their cooperation during the investigationphase. LMContact Details:Anne ServoirPartnerIntuity44, rue FortunyF – 75017 ParisEmail: aservoir@intuity-legal.comTel: +33 1 43 18 53 63How can they be navigated?To avoid the main risks, foreign companies shouldseek advice regarding the application of theserules and case law in France before implementingbehaviors that would potentially put them at risk.www.lawyer-monthly.com

100Legal FocusAPRIL 2013Construction ContractsChinaToday’s construction projects are highly complex, presenting stakeholders with a range ofchallenging risks and obligations, and an ill-conceived contract can spell disaster for a wholeproject. To find out more, Lawyer Monthly speaks to Jihong Wang from V&T Law Firm in Beijing.Here Jihong discusses with us the issues surrounding construction contracts, especially within sucha rapidly growing economy as China’s.Can you briefly introduce yourself and your firm?I have been practicing in the area of constructionand infrastructure for twelve years, representingmajor landmark construction projects in Chinaincluding the Olympic stadiums, museums and inparticular the new CCTV site. I am also an arbitratorof China International Economic and TradeArbitration Commission as well as deputy directorof Environmental Resources and Energy LawCommittee under All China Lawyers Association.Aside from construction, I also focus on environment,resources and energy practice, representing foreignand domestic clients such as Chevron and ChinaGold Group in their inbound and outboundinvestments.What are the main types of case related toconstruction contracts that you deal with?In general, the cases relate to EPC contracts /TurnkeyContracts, survey and design contracts, contracts forgeneral construction, labor service sub-contracts,sub-contracts on specialized areas such as firecontrol, domestic or foreign procurement contractson materials and equipment, design andconstruction contracts for decoration engineeringprojects, leasing contracts on machines.What are the main challenges you face, and how doyou navigate them?Under the current practice environment, thechallenges to domestic law firms actually comefrom many aspects, among which, the prominentones are the discretional law enforcement in thegovernment and judicial proceedings, as well asthe unfair competition in the legal service market. Forexample, for a variety of reasons or excuses, somegovernmental departments responsible for recordingbidding contracts refuse to record the contractsvoluntarily formed by the parties, resulting in improperadministrative intervention in the market. In mainlandChina, the function of courts in safeguarding stabilityhas been over emphasized, correspondingly, theirrole in shaping the idea and spirit of the laws isignored; and so forth. The domestic lawyers areprone to adjusting themselves or making efforts tobreak through the above bottlenecks throughimprovement of their professionalism and expertise,as well as through advocacy of alliance betweenlaw firms. A general consensus is: keeping highprofessionalism in a comparatively difficult legal areacan, to some extent, reduce the pressure to survivecaused by the challenges above.What are the worst possible consequences of an illconceivedor non-existent contract for a companyinvolved in a construction project?According to my personal experience, among thespecific concerns of the construction project owner,the common catastrophic consequences wouldinclude the following situations: 1) the recovery ofexecution cannot proceed due to wrong payee ofthe project payment; 2) quality standard is notmet when the construction is completed; 3) thecontractor keeps asking for additional projectpayments during the construction while threateningto delay the construction, which eventually causesthe project cost to rise constantly; 4) the contractorrefuses to complete the construction and also refusesto withdraw from the construction site; 5) constructionsafety accident; and 6) serious delay of construction.What are the most key legal issues surrounding constructioncontracts?Take the construction contract for example, as forthe construction project owner, the significant legalissues include: 1) the selection of bidding process,formation of technical needs and the match up oftechnical needs and tender assessment; 2) whetherthe project scope and project costs remain stable,and if not, the principles and methods of adjustment;3) whether the construction drawing provided by theproject owner can satisfy the actual constructionneeds and the control of quality, project costs andtime period; 4) the general tendency and balanceof contract provisions; 5) the correspondencebetween the liability for breaching contract and therights and obligations on each party; 6) the disputeresolution method selected; 7) the establishment ofperformance security; 8) project insurance; 9) thecompletion and acceptance inspection of project,as well as the offering of inspection materials;10) settlement and payment; 11)the reservation ofquality assurance; and so forth.How common are contractual disputes and islitigation or arbitration more common in this industry?Construction disputes are fairly common. It is usuallydecided by the parties to settle the case by litigationor by arbitration; in practice, both solutions arecommon. The characteristics of arbitration are:Arbitration award shall be final and binding; the timeperiod for arbitration is comparatively short; inarbitration, the losing party may claim for the relevantlegal expenses; the parties may choose onearbitrator as supporting arbitrator; the service can befulfilled by postal delivery rather than publicannouncement.What, if any, legislative changes do you feel there isa need for?I believe that the governmental nonfeasance orarbitrary law enforcement should be further adjustedand improved. The judicial enforcement should beenhanced so as to make the laws guided more bythe social values and thereby foster the spread of theconcept and spirit of the rule of law. LMContact Details:Jihong WangEmail: wangjihong111@vip.sina.comTelephone: 137 0122 9834www.lawyer-monthly.com

APRIL 2013Legal Focus 101The New Data Protection Law inSingaporeHere, Lawyer Monthly takes a look at the new data protection law in Singapore and what organisationsneed to do to ensure compliance with the new law. To this end, we speak to Winnie Chang, Partner andHead of Technology, Media and Telecommunications at Singapore law firm, Colin Ng & Partners LLP.General provisions of the Personal Data ProtectionAct came into effect on 2 January 2013, meaningthat companies have up to 18 months to ensurecompliance with the Do-Not-Call registry provisionsand data protection rules. What are youropinions on this?The Personal Data Protection Act 2012 (“PDPA”)will be implemented in two phases – first, theDo-Not-Call (“DNC”) registry provisions will comeinto force after a transition period of 12 months(and the DNC registry is expected to be ready forregistration by the public in early 2014); second,the data protection rules will come into force aftera transition period of 18 months. This transitionperiod of up to 18 months is essential as it provideslarger private organisations an opportunity tothoroughly review and update their datamanagement policies and procedures, and itgives smaller or medium-sized companies time todevelop their data protection policies and makethe necessary adjustments to their businessprocesses in handling personal data.What are the other key points of the Personal DataProtection Act?The PDPA applies to all private organisations thatcollect or process personal data in Singapore,including the organisations that are not physicallylocated in Singapore. It is important thatcompanies take note of this extra-territorial effectof the law, particularly those companies that planto expand their business to Singapore andmultinational companies with existing businessinterests in Singapore.Generally, organisations will have to obtainconsent from individuals before collecting, usingor disclosing their personal data. The PDPA alsorequires organisations to use personal data only forthe purposes for which consent was obtained.Once the DNC provisions come into force,organisations will need to check the DNC registrybefore making unsolicited marketing phone calls,or sending mobile text messages or faxes to anySingapore telephone number.Does it go far enough in your opinion?Singapore has previously adopted a sectoralapproach to data protection, relying on varioussector-specific laws to protect personal dataprocessed by organisations in certain regulatedindustries, such as telecommunications serviceproviders, and financial and healthcareinstitutions.The PDPA establishes an overarching dataprotection framework that applies to allorganisations in the private sector and sets outbaseline rules on the collection, use, disclosure andprotection of personal data. The enactment ofthe PDPA brings Singapore’s data protectionregime in line with international standards of dataprotection. Significantly, such enactment is a stepforward in increasing the trust between consumersand businesses, facilitating cross-border datatransfers, and in the medium to long term, theimplementation of the new data protectionregime will help bolster Singapore’s position as amajor business and data management hub inAsia.Unlike the data protection rules in certainEuropean countries and many US states, the PDPAdoes not require organisations to notify or reportdata security breaches to the Personal DataProtection Commission (“PDPC”), the regulatorresponsible for enforcing the PDPA in Singapore.That said, businesses must take complianceseriously, as the PDPC has the power to impose afinancial penalty of up to S$1 million, and thepenalty for a criminal offence under the PDPAincludes fines and imprisonment.Has the amount of data protection-relatedchallenges risen considerably as the growth oftechnology becomes more and more rapid?Yes, absolutely. Technology has transformed theway organisations do business and utilise customerdata. With the advent of the internet andadvanced computing technology and thegrowing popularity of internet-enabled devices,personal data can be collected from individualson a large scale quickly and processed andtransferred abroad easily.Is there anything else you would like to add?Under the PDPA, every organisation in the privatesector is required to appoint a data protectionofficer, who will be responsible for ensuring that theorganisation complies with the PDPA.Private sector organisations are advised to get theball rolling as early as possible during the 18-monthtransition period, and among other things, reviewtheir business processes carefully, assess the dataprotection compliance risks associated with theirinternal and business practices, monitor the costof compliance, conduct staff training, put in placesufficient technical and operational data securitymeasures, and develop and implement effectivedata management strategies. LMContact Details:Direct Line: +65 6349 8758Mobile: +65 9270 9696Fax: +65 6323 8282Winnie ChangPartner, Head of Technology,Media and TelecommunicationsColin Ng & Partners LLP36 Carpenter StreetSingapore 059915Email: wchang@cnplaw.comWebsite: www.cnplaw.comWinnie is experienced in assisting both multinationaland local companies with data protectioncompliance review projects. She is the author of “APractical Guide to Singapore Data Protection Law”.This concise book explains the new data protectionlaw in plain English and offers practical tips andguidance on complying with the law.www.lawyer-monthly.com

102Legal FocusAPRIL 2013Data Protection & Privacy LawMexicoThe laws relating to privacy and data protection are developing at a rapid pace and companiesface ever-growing demands regarding compliance and legislation. Although the dataprotection law in Mexico was only implemented in 2010, the government has continued toupdate the legislation to adapt to changing trends within the industry. With this in mind, we speakto Jorge León-Orantes B. from Mexican law firm, Santamarina y Steta.What happens when there is a breach to theprovisions of the law?The IFAI is authorized to sanction, basically with fines.Additionally, the IFAI may warn for the complianceof requests by the holder in the exercise of its ARCOrights. Finally, there are certain conducts that qualifyas felonies, and in all cases the holders may sue fordamages and lost profits. The fines go from 100 daysof the general current minimum salary in the FederalDistrict up to 320,000 days. The general currentminimum salary for the Federal District is of $64.76pesos for which the fines may be up a little morethan 20 million pesos.In the event of repeated violations, additional finesmay be imposed that go from 100 days to 320,00days; and in case of infringements committed on thehandling of sensible personal data, the fines may beincreased up to double.The sanction shall depend on the kind of breachbeing carried out, and for its imposition theprocedure established in the law and the regulationmust be followed. It is important to mention that theprocedure may be initiated upon request of anyindividual or by its own initiative (arising from averification procedure).In the event of felonies, two conducts contemplatedin the law shall be punished with imprisonment: (i)from 3 months to 3 years of prison to who, beingauthorized to handle personal data, for a profit,provokes a security breach to the databases underhis/her custody; and (ii) from 6 months to 5 years ofprison, to who, in order to obtain an improper profit,handles personal data through deceit, takingadvantage of the mistake in which the holder or theperson authorized to transmit them. When handlingsensible personal data, the penalties shall duplicate.What are the penalties in terms of fines and sanctionsthat the IFAI might impose?There exists a real obligation under the law to“protect” the personal data being handled, withoutconsidering if the treatment is carried out by theresponsible or by a third party.The obligation consists in establishing andmaintaining administrative, technical and physicalsecurity measures that allow the personal data to beprotected from breaches. The security measuresshall not be less than those applied for the handlingof their information.A breach of personal data is understood as (i) theloss or unauthorized destruction; (ii) the robbery orunauthorized copy; (iii) the unauthorized use, accessor handling; or (iv) the damage, alteration orunauthorized modification.What can we expect for 2013?• Application of the lawFrom our point of view, the consolidation of theefforts of both the authorities as well as the individualsin complying with and persecuting breaches of thelaw. We know that IFAI has begun to exercise itsverification authority and that it has already givenway to fines for the offenders. It is also expected forthe IFAI to issue guidelines for security measures.On an international level, there exists no uniformity inthe regulation. Even between the Europeancountries there are differences. The tendency is toincrease the regulation, even in countries wherethere already is regulation. The security matters haveevolved from being “improved practices” to legalrequirements.• Cases of Information LeaksThe attacks and thefts of information are going to bemore common. Concepts such as cyber-felonies,cybernetic wars, crimes with respect to computersor committed with them, as well as attacks to thecybernetic security are not new concepts, and shallbe more common.On the other hand, the proliferation of apps is alsoimportant. In the development of apps, the mostimportant issue is the data protection and privacy,including matters such as location of individuals,private medical information, children rights’protection, etcetera.• Awareness of the companies in Mexico andefforts to improve their preparation level.The companies already show important awarenessadvancement, but there is still a long road ahead.In acquisition processes, it is important to identify asa part of an audit all of the personal informationprotection systems, in order to avoid assumingcontingencies for prior actions.Will 2013 be more or less risky?It shall be riskier due to the foregoing; however therewill also be less risk due to the implementation of thesecurity measures and awareness of the players. LMContact Details:Tel: +52 55 5279.5452Fax: +52 55 5280.7840Email: jleon@s-s.mxWeb: www.s-s.mxJorge Léon- Orantes B.Edificio OmegaCampos Eliseos 345, Floors 2, 3 and 11Col. Chapultepec Polanco11560 Mexico, D.F.www.lawyer-monthly.com

APRIL 2013Legal Focus 103Dispute Resolution within M&A transactionsGermanyMergers and acquisitions can be tricky; they can be unpredictable, complex and pitted withpotential obstacles. Many issues within M&As can lead to a dispute, and a quick and effectiveresolution is the key to minimizing the stresses involved in an already complicated affair. To find outabout the trends within M&A disputes at the moment and how companies can reduce the likelihoodof conflict, Lawyer Monthly speaks to Dr. Christoph von Burgsdorff from German law firm LutherRechtsanwaltsgesellschaft mbH.What are the current trends driving M&A conflictsat the moment?We can still see the aftermath of the globalfinancial crisis. Some years ago it was much easierto predict how markets develop in a rather stableeconomy like for example the EU. Today, theeconomic parameters which are very often thebasis of an M&A deal may change rapidly. Ineach and every M&A deal the parties havecertain expectations. To a certain extent thoseexpectations become part of or form the basis ofthe M&A contracts. We have seen several caseswhere at least one party to an M&A deal had toface a situation where the economic parametersaround the deal have changed dramaticallyafter the signing or closing. The result is the sameas in most M&A disputes: either the seller startsarbitration to claim the purchase price or toenforce financial guarantees or the buyer claimsfor breach of representations and warranties.How can companies reduce the likelihood ofM&A disputes at the outset of a deal?A thorough and in-depth due diligence hasalways been the best preparation for a successfultransaction. This applies to both sides of thedeal: If both parties are well aware of theconsequences of the transaction the likelihood ofa dispute is comparatively small. We have seen alot of litigation cases and arbitral proceedingswhere the dispute could have been avoidedwhen the parties had exchanged moreinformation regarding the target at the outset ofthe deal: What is the current market situation inwhich the target is doing business? Who are themain customers of the target and why? When thetarget itself is involved in certain litigation, what isthe background and risk of such litigation? Theseand many more questions have to be dealt withprior to signing the SPA.Sometimes the seller tries to avoid certain “topics”which would be disadvantageous for him duringthe negotiation phase. Therefore, he disclosesthose topics only at a very late stage and just priorto signing. Due to the pressure of the situation(“We want to get the deal through now”) theparties do not properly handle the respectivetopic, but simply agree on a certain purchaseprice reduction. Then, only weeks after the signingof the SPA the parties become aware of the realissue. As a result, one should try to avoid such latedisclosure.Even if this seems to be commonplace: the SPAand its exhibits need proper drafting. Many M&Adisputes are caused by the bad quality of thecontractual provisions. Clear structure and clearwording are the basic requirements of a complexSPA. This should be the rule not only for the firstdraft, but also for the final contract which isthe result of the “hot negotiation phase”. Since Ihave also been advisor in a number of M&Atransactions I know very well that a high qualitycontract is essential to avoid M&A disputes.What is the best form of dispute resolution in youropinion? Arbitration or litigation?There is no straight answer to this. It very muchdepends on the content of the respectiveagreement and the involved parties. However,there are a number of aspects that have to betaken into account when deciding whether atransaction should contain an arbitration clause.For me, arbitration has substantial advantages:Professional expertise of the arbitrators: M&Atransactions require not only excellent knowledgeof corporate law, but also experience in this field.State court judges are excellent lawyers and mayhave good knowledge of corporate law. But mostof them are inexperienced in M&A transactions.In arbitration, the parties have to appoint thearbitrators and have the chance to choose anexperienced M&A lawyer.Confidentiality of the procedure: Different to astate court hearing where anybody may attend,arbitration is a confidential procedure. Noneof the parties has an interest to discuss businesssecrets of the target company during a hearingwhen competitors may be present.Easy enforcement of the arbitral award incross-border transactions: More than 140 countrieshave ratified the New York Convention whichfacilitates the recognition and enforcement offoreign arbitral awards.Autonomy and flexibility of the parties regardingthe structuring of the procedure: The partiesare not bound by the rules of civil procedureapplicable in state court litigation. They are forexample free to select the appropriate rules ofevidence.But there are many more aspects that have to betaken into account when deciding betweenlitigation and arbitration: subject matter of thecontract, tactical considerations and of coursefinancial aspects. LMContact Details:Dr. Christoph von Burgsdorff, LL.M. (Essex)PartnerLuther Rechtsanwaltsgesellschaft mbHGaensemarkt 45, D-20354 Hamburg, GermanyTel: +49 40 18067 12179Email: christoph.von.burgsdorff@luther-lawfirm.comWebsite: www.luther-lawfirm.comwww.lawyer-monthly.com

104Legal FocusAPRIL 2013A Guide to Drafting Dispute Resolution ClausesUKDispute in business is inevitable; it’s how you resolvethe dispute that counts. Many issues arise within disputesthat can be costly both financially and in terms of time.However, a carefully drafted dispute resolution clause canprevent many unnecessary disputes. To find out more,Lawyer Monthly speaks to Gregory Hunt from the Centrefor Effective Dispute Resolution (CEDR).Please introduce yourself, your role andyour firm.explores wider issues in the conflict landscapefor the public benefit.The Centre for Effective Dispute Resolution(CEDR) is a London-based internationalnon-profit making organisation offeringexpertise across a variety of commercialproblem solving disciplines. Our disputeresolution arm, CEDR Solve, is in the business ofsolving disputes in the here and now –individualsand organisations come to us when they havereached deadlock in a dispute and need aneutral third party to help them resolve theissues stopping them from reaching asettlement. Mediation is currently the mostpopular method of dispute resolution chosen byour clients, but we offer a range of independentinterventions and services tailored to eachclient’s individual needs.We also operate on a longer term scale on asupranational stage. Taking the lessons learnedfrom the field back to the classroom, ourNegotiation and Leadership Academy offerstraining and development in conflictmanagement techniques to individuals andorganisations across the world. To date wehave trained and accredited more than 7,000individuals as mediators, and regularly work withclients including UNHCR, the InternationalMonetary Fund, Allen & Overy and Barclays.Our charitable Foundation arm, meanwhile,My current role as Director of Client Relationsgives me a tremendous “client’s eye”perspective on all aspects of the business andits operations – and I mean it when I say that Iam astounded by how broad and deep ourknowledge and capability is.What are the most common types of disputeyou deal with?We see a broad spectrum of disputes acrossour practice areas. This confirms for us the factthat disputes are a natural and inevitable partof modern business and personal life. What isvery much in the power of individuals andorganisations is how those disputes are plannedfor and handled. When properly anticipated,acknowledged and administered, disputes canbe something of a hidden gift.In the last few weeks for example, from officesin London, Hong Kong and Dublin, CEDR hasmanaged disputes ranging from multi-millionpound construction, insurance and financialservices projects and multi-party facilitationsand investigations, to requests for an apology,a replacement urn, and vouchers towards aholiday. In 2012 alone we facilitated theresolution of more than 6,000 disputeswww.lawyer-monthly.com

APRIL 2013Legal Focus 105worldwide with a combined value exceeding£1bn. Independent interventions includingconciliation, mediation, facilitation, evaluation,investigation, adjudication, arbitration,coaching, independent chairing - our peoplehave seen it all and do it all.What are the main challenges involved indrafting a dispute resolution clause?It is actually relatively straightforward – at heart,the clause outlines that in the event of adispute, the parties involved affirm a dedicationto pursuing alternative dispute resolutionmethods before instigating legal proceedings.The specific ADR method, or methods, aredecided on by the parties; the clause may alsospecify what happenings might trigger theclause (e.g. whether a party would need towrite to the other with an invitation to mediate)and suggest timelines for proceedings.In many cases, the main challenge in draftinga dispute resolution clause is one of attitude –some people erroneously believe that a disputeresolution clause will inhibit their right to legalrecourse. While it is true that an arbitrationjudgement may affect parties’ right to a legalhearing, this is only one kind of dispute resolutionmethod; a clause that prescribes mediationor neutral chairing leaves the right to a courthearing intact. The other common perceptionis that asking for a dispute resolution clause is asign of weakness. Considering how frequentlydisputes occur in business, I take the viewthat ‘jaw-jaw before law-law’ is actually a verypragmatic, cost effective and respectful way ofworking. It can certainly take a lot of strengthand self-awareness to acknowledge that youcould face problems, and to plan a way ofsolving them that preserves a businessrelationship.people do not like to be seen as sayingone thing and then doing another, so a highproportion of parties with ADR clauses will usethem before litigation is even a realistic option.I know of many cases where parties formerly indispute reflect on their experiences and saythat the ADR clause gave them a chance to‘breathe’ and really think about things in themiddle of a tense dispute.What is the best form of dispute resolution inyour opinion - arbitration or litigation?Both forms have strong merits, and can be anobviously appropriate course depending on thecircumstances at any given time. In somecases, such as where a crime has beencommitted or where parties are seeking to seta legal precedent, litigation may be the onlyoption available (though for some crime andalso for clinical negligence, there is a recentmovement towards mediation being usedas part of a process of restorative justice).However, the full spectrum of ADR methodsincluding arbitration, mediation and neutralchairing also have an important role to playin getting disputes solved. Around 70% ofcases brought to mediation settle within themediation window, with a further percentagesettling at a later date without resorting tolitigation. LMContact Details:Gregory HuntEmail: ghunt@cedr.comTwitter: @GregoryH_CEDRTel: +44 (0) 20 7536 6027Please tell me about the problemssurrounding the enforceability of anagreement to ADR.Agreements reached through ADR are onlybinding once settlement is recorded in writingand signed by all parties, whose representativeshave the authority to settle. Psychologicallyspeaking however, setting out a writtencommitment to ADR is very powerful – generallywww.lawyer-monthly.com

106Legal FocusAPRIL 2013Drafting Dispute Resolution ClausesUAEIn a region that places an unusually high level of importanceon procedure, lifting dispute resolution clauses from dustycontracts where they have been hibernating in silence andnever tested in practice, has so far proven to be not the wisestway to save on legal fees. Many have had their fingers burnedin the UAE and the wider GCC region when they leastexpected it, often not being sure which door to knock on toget the dispute resolution process started. AntoniosDimitracopoulos, Partner and Head of the Arbitration andDispute Resolution practice of Bin Shabib & Associates LLP inDubai, UAE explains the basics of what to look out for whendrafting a dispute resolution clause.The main concern most parties have whennegotiating a dispute resolution clause is:‘arbitration or litigation’. Is this position differentin the UAE?To start with, no. However, the difficulty withthis region is spelling out one’s choice inunequivocal terms that will stand the test of thelocal judiciary. The default position is thatdisputes under a given contract are to beresolved by way of local litigation. Departingfrom this requires a higher level of clarity inwording, finality in incorporation and authorityin agreeing, than in most jurisdictions.What would be the major areas to watch out forwhen drafting an arbitration clause?I would say it would be essentially two: theauthority of the person that signs the arbitrationclause and the way arbitration has beenincorporated into the agreement.Can you give an example of what could gowrong?For instance, a contracts manager may nothave the power to agree in a subcontract toarbitration under UAE Law. On the other hand,a CEO may have this, but if he signed on acontract that referred to an arbitration clauseexisting in say the main contract, then that typeof loose reference may not be effective andbinding. So it pays to be careful who signs andwhat is being signed. Assumptions on this frontcan mean nullification of the arbitration by theUAE Courts.Would you say that UAE Courts are suspicious ofarbitration and possessive of their jurisdiction?Not at all; it is simply a case of a higher thresholdfor proving that an arbitration clause clearlycarries a departure from litigation and this isbecause the latter is considered a fundamentalright that only authorised personnel canabandon.Would the position be less complicated beforethe DIFC Courts, which apply English Law?One would think so, in the sense that a lessstringent test on whether arbitration has beenagreed should apply. However, the DIFC Courtshave in one single year issued two diametricallyopposite and contradictory judgments on theissue of validity of arbitration clauses, whichplaced a dark veil of uncertainty on whatpractitioners thought to be an oasis ofstraightforward procedure.How did those judgments affect the drafting ofarbitration clauses?In short, one judgment upheld, correctly in myview, that the DIFC Courts cannot opine on thewww.lawyer-monthly.com

APRIL 2013Legal Focus 107validity of a non DIFC arbitration clauseregardless of how it is drafted, and the nextjudgment, within the same year, reachedthe exact opposite decision, namely thatDIFC Courts can opine on how effective andbinding any arbitration clause is, and that,consequently, proceedings can be stayed forany type of arbitration clause, be it DIFC basedor not. And it took eight months for that lastdecision to be issued.What are some of the challenges a practitionermight face when drafting an arbitration clause?The main aim for a practitioner is to preparean enforceable dispute resolution clause. TheUAE Courts have become infamous forinvalidating arbitration clauses mainly for thereasons previously mentioned, resulting in anullified award. Drafting Powers of Attorney,that may or may not include the power toarbitrate, is a science in itself in the UAE and canmean the difference between enjoying all thebenefits of arbitration and wasting a lot of timeand money.Do you find that the business and the legalcommunity are aware of what troubles mayarise from overlooking the drafting of a cleardispute resolution clause?In the wider business community the problem isknown only to those that have experienced it.Parties often are unaware of, or underestimatethe importance of drafting a valid disputeresolution clause in their eagerness to completecontractual negotiations. As for the legalcommunity, generally lawyers stemming fromArab jurisdictions are far more sensitive to theseprocedural issues.So is there a list of do’s and dont’s that one canfollow to ensure the functionality of what isdrafted?Yes, but it is by no means exhaustive andcertainly not static. A practitioner must be up tospeed with the most recent case law to ensurefunctionality of a dispute resolution clause, aswell as a benefit for the client’s specific interestsbecause trends change.Any examples of how the trend on these issuesmay change?For instance, issues relating to incorporation byreference have been relaxed with the adventof the construction boom and the use ofstandard FIDIC contracts that provide certaintyas to what is within them. On the other hand,the position has been tightened on issues ofauthority to arbitrate and now senior officershave been held not to have a presumedauthority to sign on an arbitration clause.Is there any mileage in agreeing mediation oradjudication in a clause?Mediation and conciliation is recognised and,although of course not binding, may offer afilter in resolving a dispute. Adjudication is notonly not recognised but the reference to it inmany clauses lifted from, say UK contracts, canbring proceedings to a halt whilst the Court andarbitral bodies debate on what is meant by thisterm. So, is there any mileage in either? I do notthink so, and given how complicated departingfrom local litigation can become, it is best forpractitioners to master the art of advising theirclients on how to effectively and bindinglyagree to arbitration. The GCC region and theUAE in particular, is a respondent’s paradise interms of how easily the arbitration process canbe frustrated for the unwary.Can the defects of an arbitration clause alreadysigned be salvaged by practitioners?If issues of authority or incorporation, andsometimes of applicable rules, are ambiguous,one approach often favoured is for theclaimant to go to Court, in full cognizance ofthe arbitration clause. The benefit of this wouldbe that, if the opponent omits to raise thearbitration clause at the very first hearing,proceedings are locked into litigation. If theopponent raises this and the Court agrees, thenthe matter will be dismissed but with the Court’sblessing on the validity of the arbitration clause.The claimant can then start the arbitrationprocess without fear of whether he is walking ontreacherous ground. LMContact Details:Antonios DimitracopoulosPartnerBin Shabib & Associates (BSA) LLPAdvocates & Legal ConsultantsLevel 6 | East Wing | Building 3 | The Gate PrecinctDubai International Financial CentreP.O. Box 262 | Dubai | UAETel: +9714 368 5555Fax: +9714 368 5000Email: antonios.dimitracopoulos@bsa.aeWebsite: www.bsa.aewww.lawyer-monthly.com

108Legal FocusAPRIL 2013Employee Obligations to the Protection ofan Employer's Trade SecretsMEXICOWhen protecting trade secrets and other sensitive companyinformation, it is crucial that companies develop carefully plannedstrategies which make effective use of well-designed employeecontracts and the law of trade secrets. To find out more about thisand the obligations employees face, Lawyer Monthly speaks toJorge Gomez, Head of the Trademarks and Litigation Practice,and Rodrigo Navarro Vega, IP Attorney, at Mexican law firm,Dumont Bergman Bider & CoPlease tell us a little about your firm.Dumont Bergman Bider & Co., S.C. is a MexicanIntellectual Property (IP) Firm. The practiceincludes all aspects of IP such as obtaining,registering and protecting inventions (patents,utility models and industrial designs), distinctivesigns (marks, trade names, brand slogans andappellations of origin), copyrights (ownerand author's rights, related rights), informationtechnologies (domain names and Internetassets) and data protection issues. It alsohas an extensive expertise in litigation,anti-counterfeiting and related commercial law(corporate, licensing, immigration, regulatoryand tax) and our capabilities provide a full arrayof IP related legal services. Founded 72 yearsago, Dumont Bergman Bider & Co., S.C. hasremained contemporary and responsive toever-changing client needs.Dumont Bergman Bider & Co., S.C. is the onlyIP firm in Mexico that has received theISO 9001:2008 certification by the GermanOrganization TUV Rheinland®. The certificationindicates that the firm meets high qualitystandards for its management systems includingfor counselling, filing, prosecution andconsulting services, litigation and managing ofIntellectual and Industrial Property Rights(including filing, prosecution, etc). It means thatthe quality of our legal work is consistent,constant and reliable in each and every case.Consistent with the firm's commitment tomodern technologies that enable the firm tooffer the highest quality and most completeintellectual property service, Dumont BergmanBider & Co., S.C. has implemented PATRIX®HELPWARE System, a state of the art docketingsystem. The firm also has digitalized its files; thusis fully able to work on a “paperless” basis.How can a company ensure that they have theright strategy in place to protect their tradesecrets from former-employees?It is not an easy task to “ensure” that acompany has the right strategy to protect itstrade secrets, given that every entity hasdifferent needs and activities. In ourexperience, the best course of action is alwaysto propose tailor-made measures comprising:limiting the access to the confidentialinformation, encrypting the information andhaving strong non-disclosure agreements(NDA’s) with the employees and related thirdparties.The contents of the NDA have to be very clearas to how the confidential information and/orthe trade secret should be handled andhow the employee will “behave” towards suchinformation when leaving the company. Inaddition, when the employee is leaving thecompany he/she has to be warned againabout the legal consequences of disclosing -partially or entirely - the relevant confidentialinformation or the trade secret.Another way to “ensure” that a company isprotecting its trade secret in the best possibleway is to get expert legal assistance. It is veryimportant to combine the practical aspects ofthe trade secrets with the relevant applicablelegal provisions.What consequences do employees face if theyexpose former employers’ trade secrets?The potential consequences includeimprisonment, economic fines and damages.www.lawyer-monthly.com

APRIL 2013Legal Focus 109What laws are in place to prevent employeesfrom taking trade secrets to a competitor?Under Mexican Law, three different laws“govern” trade secrets; the Federal Labor Law(FLL), the Federal Criminal Law (FCL) and theMexican Industrial Property Law (MIPL), whichcontains a complete section regarding theprotection and enforcement of trade secrets.Furthermore, Mexico is part of several treatieswhich provide the obligation for the MexicanGovernment to include within the domesticlaw, specific provisions and processes to protectconfidential information and/or trade secrets.i.e. the North American Free Trade Agreement(NAFTA) and the Trade-Related Aspects ofIntellectual Property Rights (TRIPS).Do you see the need for any?Yes, for example: we have seen in the past thatthe Attorney General’s Office (AGO) has hadsome issues to understand the principalsconcerning the protection and enforcement of“trade secrets”. Consequently, in our opinion,the law should be amended to ensure that theAGO will be assisted –within the investigationstage- by the Mexican Institute of IndustrialProperty to “explain” the extent and technicalaspects of the relevant trade secret. In addition,the law should be amended to include strongersanctions to the offender.What is the most interesting case related to thispractice area that you have ever been involvedin?One of the most challenging cases was one inwhich we advised a “maquila” company todefine its trade secret and create a complexlegal structure to ensure its confidentiality withinthe different levels of the company and relatedthird parties.Why was it so interesting?The complexity of this case relies on the factthat the company did not have at the time,sufficient NDAs or policies to control theinformation. Our advice included, among otheraspects:• Identifying the employees that would haveaccess to the relevant information;Jorge GomezJorge Gomez’s area of practicefocuses mainly in corporate,regulatory, trademarks andlitigation cases related topatents, trademarks andregulatory. Before joiningDumont, Jorge was a seniorassociate in charge of the IPand administrative litigationarea of the firm Creel, García-Cuéllar, Aíza &Enríquez in Mexico City.Jorge has a BA in legal studies from the Universidadde las Américas and has participated in severalofficial international forums associated with theprotection of IP rights. He has also assisted variousmembers of the Mexican congress in preparingseveral amendments to the Industrial Property Lawand the Customs Law. In the past two years, Jorgehas been recognized by Chambers & Partnersfor his work and participation in matters of greatimportance.He is an active member of professional nationaland international organizations, such as theMexican Association for the Protection ofIntellectual Property (AMPPI) where he participatesin the trade mark committee and inter-institutionalmatters, the Inter-American Association ofIntellectual Property (ASIPI), and the InternationalTrademark Association (INTA).Rodrigo NavarroRodrigo Navarro Vegagraduated from the Faculty ofLaw of the UniversidadPanamericana. Rodrigo joinedDumont, Bergman, Bider & Co inNovember 2012 as an IPattorney. He specializes incounseling clients in theadoption and protection oftrademarks and management of internationaltrademark portfolios. Furthermore, Rodrigocounseled clients in all phases of strategic planningand protection of intellectual property, includingprosecution, licensing, enforcement, and litigation.Before joining Dumont, Rodrigo was an associate inthe IP litigation area of Goodrich, Riquelme yAsociados and collaborated in Arochi, Marroquín& Lindner, both in Mexico City.Contact Details:Website: www.dumont.com.mx• Drafting NDAs with a standard “language”in order to be easily understood by everyemployee.Is there anything else you would like to add?The process to “protect” a trade secret is lessexpensive and complicated than the losscaused by not protecting it correctly. LMwww.lawyer-monthly.com

110Legal FocusAPRIL 2013Employment Law Reforms:BulgariaThe on-going uncertainty in the global economy has led numerous governments to revisitemployment laws to help stimulate struggling economies and the last year has subsequently been abusy year for employment reform in various countries. One such country is Bulgaria, and LawyerMonthly finds out why by speaking to Youliana Naoumova, partner at Djingov, Gouginski, Kyutchukov& Velichkov (DGKV), one of the largest, oldest and most prominent business law firms in Bulgaria.Please introduce yourself, your role and the firm.I co-head the firm’s employment law practiceand I have considerable experience in advisingand assisting major foreign investors in Bulgaria onvarious aspects of labour, employment and socialsecurity issues, and legal aspects of the hiring ofBulgarian and foreign employees, including onimmigration-related requirements. My role alsoinvolves structuring and implementing of individualand collective dismissals, employee transferschemes and leasing of personnel arrangements,as well as employment litigation.2012 was a busy year for employment law reformin Bulgaria. Can you tell me about the reforms?What were the key points?Bulgaria has been an EU member state since2007 and its labour and employment legislation isharmonized with the EU legislative acts. The majorchange in 2012 related to the enactment ofa specific legislation on temp agency work intransposition of Directive 2008/104/EC of theEuropean Parliament and of the Council of 19November 2008 on temporary agency work (the“Directive”).What do you think will be the main effects of thereforms?Historically, the lack of express legislation on thesubject gave grounds to competent authorities totreat such triangular relations as void which boreupon negative tax consequences (expendituresof user undertakings not being recognized for taxpurposes), but also impacted labour relations(providers were not treated as actual employersand thus, user undertakings faced the risk ofproclamation of an existing labour law relationshipbetween themselves and the respectiveindividual). Nonetheless, throughout the years riskswere oftentimes neglected by businesses in theirstrive for flexibility, decrease of administrativeburden and cost optimisation.After numerous attempts to adopt a uniformpiece of legislation on temp agency work, whichfaced the opposition of social partners, in January2012 - pushed by the deadline for transpositionof the Directive - the Labour Code and theEmployment Enhancement Act were finallyamended. The step marked a turn in therecognition of “triangular” labour relations inBulgaria and conclusively ended some 10 yearlong process of divergent practices anduncertainly on the permissibility of lease ofpersonnel schemes.Could they, and should they, have gone further, inyour opinion?On a European level, the Directive marks a scopeof permissible restrictions or prohibitions whichmight apply to temporary agency work (e.g.,prohibition to use agency workers in sectors ofactivity considered dangerous; limitation ofpermissible reasons for using agency work,limitation of the numbers of agency workers thatmay work in user companies, restrictions relatingto market access and the exercise of activities oftemporary-work agencies, etc.). The Bulgarianlegislator (in attempt to preserve the labour marketand the rights of employees and also in line withthe traditional rigidness of the national labourlaw) has imposed a large number of restrictions incombination. While such restrictions have been(unsurprisingly) applauded by the social partners,businesses do see these as excessive constraints tothe market.What are the main issues under discussion?Following the formal implementation of theDirective into local legislation, questions started topile up as to whether the limitations towards userundertakings on using temp labour force arebusiness reasoned, whether the local lawrequirements towards temp agencies areadequate to ensure qualitative services on theirpart while in the same time protecting tempemployees, whether the restrictions on the typesof labour contracts applicable to temp workersare justified, and whether, as a whole, the locallaw transposes the letter as well as the spirit andpurposes of the Directive.Among the restrictions argued by businessesfrom both sides of the service chain fall (1) thequalification requirements for obtaining necessaryregistration as a temp agency (and in particular,maintaining a group insurance/bank guaranteeof approximately EUR 100,000 to provision againstemployees’ claims, which - with a minimummonthly salary in the country of less than EUR200 - is deemed highly excessive to Bulgarianstandards of living and also unjustified (as notdependant on the number of temp employeeson agency’s payroll, or the duration of theassignment); (2) impossibility for a user undertakingto employ agency workers counting to morethan 30% towards its own payroll employees; (3)impossibility for the temp agency to offer contractsof indefinite duration to agency workers, and thelike.Is there anything else you would like to add?For over a year now, court and administrativepractice has not developed to provide clearanswers to the few legal ambiguities; however,temp agency work has gained ground (with thenumber of registered temp agencies increasingsteadily). LMContact Details:Youliana NaoumovaPartnerDjingov, Gouginski, Kyutchukov& Velichkov10 Tsar Osvoboditel Blvd.Sofia 1000, BulgariaMain Board: +359(0)2 932 1100Facsimile: +359(0)2 980 3586Email: youliana.naoumova@dgkv.comwww.lawyer-monthly.com

APRIL 2013Legal Focus 111The Network of Independent Forensic Accountants definesforensic accounting as the ‘integration of an individual'saccounting and auditing knowledge with investigative skills thathave been gained from years of practical experience’.The increase in high-profile corruptionand fraud cases since the financialcollapse has led the role of theforensic accountant to becomemore prominent in the public eye.With more and more companies findingthemselves involved in legal action, thedemand for forensic accountants has neverbeen higher. The discovery of incidentsof fraud or professional negligence canseverely damage corporate businesspractices, profitability, and continuedviability. In order to tackle and resolvesuch issues and achieve the best outcomepossible, the expertise of a forensicaccountant is crucial when contentiousfinancial and accounting issues arise.It is estimated that the average company inthe US loses around six percent of its revenuethrough fraud. Statistics like this show theneed for forensic accountants and thedemand has grown considerably over thelast 15 years. According to figures from TheInternational Federation of Accounting, in1997 fraud and white collar crime reacheda level of $400 billion in the US. By 2007, thatnumber had climbed to $660 billion.Over the next few pages, Lawyer Monthlyexamines the field of forensic accountancy,looking at the types of work carried out,the challenges faced and how they areovercome.www.lawyer-monthly.com

112Legal FocusAPRIL 2013Forensic AccountingThe increase in high-profile corruption and fraud cases sincethe financial collapse has led the role of the forensicaccountant to become more prominent in the public eye.With more and more companies finding themselves involvedin legal action, the demand for forensic accountants hasnever been higher. To find out more, Lawyer Monthly speaksto Penny Cassell, Director at KRyS Global.Please introduce yourself, your role andyour firm.I have over 20 years’ experience of usingthe tools available to insolvencypractitioners and forensic accountantsto investigate misappropriation of fundsand recover assets for the benefit of thecreditors and/or victims. I also lead ourforensic technology service line, ferret,which uses the power of technology torecover, analyse and handle electronicmaterial in a forensically sound and costeffective manner. KRyS Global has officesacross five offshore jurisdictions –Cayman, BVI, Bahamas, Bermuda andGuernsey. We are dedicated to crossborder insolvency matters, asset-tracingand forensic investigations working in awide range of business sectors.What are the main types of cases youdeal with?Each case is very different, the commontheme being that there are allegations ofmismanagement and possible fraud.These include forensic investigationsconnected to a dispute or claim againstor by a third party and the use of forensictechnology to support an investigationconnected to civil litigation or criminalinvestigations. The forensic skills are usedalongside appointments as receiver orliquidator to secure assets andinformation pending the outcome of theinvestigations and the outcome of civil orcriminal proceedings.Has fraud and corruption increased sincethe beginning of the financial downturn?Awareness of fraud and poorgovernance issues has increased duringthe downturn. The financial crisis hasincreased the pressure on businessesand their investors to deliver results. Thiscombined with some spectacularcollapses due to lack of adequatecontrols and/or complex internationalfrauds has forced fraud up the politicalagenda across the globe.To what do you attribute this and what isthe outlook, in your opinion?There will always be an underlying level offraud due to greed and those who enjoythe feeling that they can ‘outsmart’ theauthorities. Both of these have impactedon some of the failures of internationalbusinesses that have been seen duringthe financial downturn due to the scarcityof available money. A lot of frauds rely ona ready supply of funds to cover up thelosses due to money being diverted awayfrom legitimate activities.What can be done to fight it?A lot can be done by raising publicawareness of the risks and signs offraud – the red flags – and what can bedone to recover assets following a fraud.If fraud or mismanagement is suspected,what steps can you take to report it tothe regulatory and/or prosecutingwww.lawyer-monthly.com

APRIL 2013Legal Focus 113authorities? Cayman has always been atthe forefront of offshore jurisdictions in theprotection of the interests of investors andcreditors. Alongside amendments tothe Proceeds of Crime Law in 2008,Cayman is compliant with internationalAML standards and the Anti-CorruptionLaw established the Anti-CorruptionCommission in 2010. There are also privatefirms which specialise in advice on therecovery of assets that can provideadvice.How can public confidence in thebanking industry be reinstated in youropinion?There needs to be greater clarity ofthe changes that have and are beingintroduced. The Cayman IslandsMonetary Authority are currentlyengaged in consultation with privatepractice, including investors, fundmanagers and their advisers, onproposed changes to the Statement ofGuidance for regulated businesses. In theUK and US there have been substantialfines imposed on financial institutions butthe public needs to made aware of realchanges that will ensure that corporategovernance has been improved.Penny CassellIn the UK Penny has been instructed in anumber of high-profile cases as receiver,forensic accountant and expert witness. Thisincludes the largest confiscation order in theUK and related complex inter-jurisdictionalissues. She has acted as expert witness inconfiscation matters and civil litigation. Pennyspent most of 2007 on secondment to theSerious Fraud Office in the UK.Penny is a regular presenter at conferences andis contributory author to Law: Fraud, Practiceand Procedure and International Asset Tracingin Insolvency. She is a member of theAssociation of Business Recovery Professionals(R3) Fraud Group and deputy chairman of theFraud Advisory Panel Asset Recovery WorkingGroup.Contact Details:What legislative changes do you thinkwould help?The legislation is there, it needs to beapplied more rigorously and adequateresources provided to enable criminaland civil recovery proceedings to bepursued. At a time when public funding istight there is an increased role for privatepractice to provide resources andsupport.Is there anything else you would like toadd?Penny CassellEmail: Penny.Cassell@KRyS-Global.comDirect: +1 345 815 8409Businesses and individuals should not beafraid to report fraud. There needs to bea greater understanding of how theregulatory and prosecuting authoritiesconduct cases and what is being done toimprove corporate governance tominimise the risks of fraud. LMwww.lawyer-monthly.com

114Legal FocusAPRIL 2013Forensic AccountingLooking further at the issues surrounding Forensic Accounting, we have an exclusive piecefrom RGL Forensics, an independent worldwide firm of forensic accountants and consultantswith 23 offices in the UK, USA, Australia, Chile and Singapore. The London office of RGL is anindustry leader and is the largest dedicated forensic accounting firm in the UK.Often considered detectivesof the financial world, forensicaccountants are trained tofollow the money trail left byeconomic transactions andevents – sometimes when thattrail may have been concealed.Our forensic specialists work closely with lawfirms on a wide range of litigation disputes,Case studyOur client was subject to a clever but simpleinvoice fraud. In December 2011, the companyreceived a fax purportedly to be from theirsuppliers advising of their amended bank details.This resulted in a substantial amount of moneybeing paid out in two separate transactions, oneweek apart. During the first week of January2012, our client received a phone call from thesuppliers chasing outstanding payment. Ourclient then established that the fax was a forgeryand instructed RGL to investigate. The Bank intowhich the payments were made was contactedand they were able to suspend the account withimmediate effect and retain a percentage ofthe transferred funds, pending the outcome offurther enquiries.RGL’s Investigation Team requested informationfrom the Bank using a formal DPA (DataProtection Act) Sec 29(3) request. Cooperationfrom the Bank confirmed that a false EU nationalID card and doctored utility bill had been usedto open a personal account with the Bank inFebruary 2011RGL examined the fax that the client hadreceived. The phone number noted wasidentified as a supplier of virtual office facilitiesand in this particular instance, when thetelephone number on the fax was called, itdiverted to a mobile number. In this case it wasregulatory and competition finance, andprovide a full range of valuation services. In anylegal dispute where money is a factor, wedetermine the financial strengths andweaknesses of a case, including sufficiency andreliability of evidence, economic assumptions,and methodologies and application of facts.As party appointed experts or single jointexperts, we provide expert evidence anda pre-paid number and the subscriber had useda credit card to pay for three months’ line rentalin advance. The provider was able to disclosethe name and address of the subscriber anddetails of the credit card.In conjunction with the DPA requests, RGL’sForensic Technology Team imaged fourcomputers within the accounts department ofthe client. Through careful analysis of the dataheld within the computers, investigators wereable to identify suspicious documents and emailtraffic between a member of the accountsdepartment and two members of the generalpublic.The organisations that unwittingly facilitated thewithdrawals were equally helpful and providedevidence to RGL, by way of CCTV footage andcopies of documents produced to withdraw thefunds. Using the information provided, RGL wereable to identify the employee responsible fororganising the fraud and the two members of thepublic who carried out the fraud.The client informed the police and arrests weremade. RGL are now in the process of locatingassets, resulting from the ill-gotten gains of allthree fraudsters.advice in relation to settlements, mediationsand other alternative dispute resolutionproceedings as well as at trial. Our professionalshold qualifications in alternative disputeresolution and expert witness practice –credentials that attest to our value in all phasesof dispute resolution.Fraud investigationsIn matters involving the prosecution or defenceof white collar crime, our experienced fraudinvestigators employ a wide variety of tactics todetect, document and present financialevidence. Our professionals are certified asfraud examiners, accountants, and computerforensics experts. We are assisted bysophisticated software and technology toolsthat review, match and examine vast amountsof electronic financial data to help us quicklydetect anomalies and spot questionabletrends.Where non-financial scrutiny is required, weprovide background research and intelligencegathering, and can also assist with asset-tracingand recovery. Our combined expertise inforensic accounting, forensic technology,non-financial investigations and businessintelligence provides a comprehensive fraudservice. LMContact Details:Tel: +44 (0)20 7065 7900Email: expert@uk.rgl.comWebsite: www.rgl.comwww.lawyer-monthly.com

APRIL 2013Legal Focus 115Company FormationsMaltaGetting a business off the ground is never easy, no matter which countryit is in. Repercussions of the ongoing financial crisis of the last few yearshave not helped the process, and now more than ever, companies facea myriad of legal implications and potential pitfalls along the way. To findout more about company formation in Malta – a country which had over4,000 companies formed last year – we speak to Nicolette Spiteri Baileyfrom leading Maltese law firm, Aequitas Legal.Dr. Bailey began: “Aequitas Legalis a leading law firm in Malta witha wealth of internationalaffiliations through Multilaw, theglobal legal practice.“Our lawyers are part of aninformation-based community that crossesborders and shares industry knowledge asit develops. Seeking to understand thechallenges a client’s business will be facingin the future is critical for us to provideassistance in the present.“I head the international tax and corporatestructuring practice. This departmenthas two main sub-divisions namely theCorporate Structuring arm and the CSP arm.Whereas the former assists clients in exploringthe structure which would best suit theirbusiness and supply any corporate advisorywork which a company may require fromtime to time, CSP executes the formationof the structures and the ongoingmaintenance management thereof.”Dr. Bailey continued: “In 2012,notwithstanding the bleak internationaloutlook, we experienced a steady inflowof business. Over four thousand companieswere formed in Malta in 2012. The numbershows growth from previous years andreflects Malta’s excellent economic trackrecord amidst global recession.“Challenges in company formation includebalancing the clients’ needs for urgencywith the importance of complying withEU-wide money laundering rules and KnowYour Client Procedures.“We have recently set up limited liabilitycompanies and PLCs in a variety of industriesranging from maritime and aviation tosoftware and technology. We work withblue-chip clients, government agencies andsole traders. Recent cases include advisinga world-renown bookmaker on its operationsin Malta and handling the start-up in Maltaof a technology company which is one ofthe largest employers in the Caribbeanlooking to relocate to Malta.”Dr. Bailey went on to say: “Malta has anexceptional statutory infrastructure which isboth well-regulated and industry-friendly.The laws benefit industry and foreigninvestment in many ways includingnumerous government incentives, fullexemption on IP income, a generousparticipation exemption, an effective rate of5% corporation tax on most trading incomeand unparalleled access to an EU financialservices regulator.“The law surrounding company formationhas remained consistent since its majorre-haul in 1995 and is closely modelled onUK legislation. It is drafted to the highestinternational standards and is fully EUcompliant. Recently trusts have beenintroduced into Maltese law (2004) andthe law governing Private and PurposeFoundations has been codified (2007)resulting in an increased interest in theseareas.“The laws regulating financial services inMalta will continue to develop but nosubstantial change is envisaged in thefuture. The role of “Corporate ServiceProvider”, previously unregulated in Malta, islikely to become licensable this year. Thenew regulation may affect smaller practicesbut existing law firms and licensed trusteeslike Aequitas will be exempt from itsprovisions as they are already regulated toa higher standard.” LMContact Details:Nicolette Spiteri BaileyAequitas LegalValletta BuildingsSouth StreetValletta VLT 1103Tel: +35621234085Fax: +35621223306Email: nspiteribailey@aequitas.com.mtWebsite: www.aequitas.com.mtwww.lawyer-monthly.com

116Legal FocusAPRIL 2013Inheritance and Estate TaxSwitzerlandIncreased mobility among high net worth individuals and familyowned and private companies with assets in multiple countries hasmeant estate planning is subject to ever more complex tax issues. Inturn, individuals are increasingly seeking specialist estate lawyers tohelp navigate complex legal affairs relating to inheritance andtax, such as tax residency and domicile and the tax aspects ofinternational investments. To find out more, Lawyer Monthly speaks toKinga M. Weiss and Stephan Neidhardts from one of Switzerland’sleading law firms, Walder Wyss.Please introduce yourself, your role and yourfirm:Walder Wyss clients include national andinternational corporations as well as public-lawentities and individuals. The firm offers privateclients comprehensive advisory services and wehead the private clients’ team. We providesupport with relocating to Switzerland and withplanning as well as setting up appropriatestructures and evaluate the most suitabledomestic and international arrangements.What are the most challenging aspects of yourrole? How do you navigate the challenges thatarise?The most challenging aspect of our privateclient’s work is to elaborate state-of-the-artsolutions on a case-by-case basis for the clients.Each case is different and requires an overallassessment of all circumstances of the clientincluding his personal affairs. With ourlongstanding expertise and many years ofpractice experience in private client’s work wenavigate these challenges by a thoroughanalysis of each case.to simplify the processing of cross bordersuccessions within the EU, the conflict-of-lawrules on cross-border successions of 24 membersof the EU have been harmonized and will byoperation of law directly be applicable to alldeaths on or after 17 August 2015. The EUSuccession Regulation provides for one singlecriterion for determining the jurisdiction and thelaw applicable to cross-border successions: thelast habitual residence at the time of deathof the deceased. Pursuant to Swiss law theconnecting factor in inheritance issues is the lastresidence of the deceased. In cases, where theEU and the Swiss connecting factors will notbe defined congruently, conflicts will arise.Therefore, it might be recommendable fortestators to make a choice of law in the last willin favour of his law of citizenship. The broadscope of the member state’s competencesmight also lead to conflicts. Hence, already asof today the EU Succession Regulation has tobe considered and appropriate actions mightbe necessary.What is the most efficient way in which clientscan minimize their tax liability when it comes toa substantial inheritance?Have there been any legislative changes thataffect your practice area?In the international inheritance law area actionsneed to be taken based on the EU SuccessionRegulation (No. 650/2012), which entered intoforce on 16 August 2012. Switzerland is not amember of the EU, but is affected by it. In orderIn Switzerland the inheritance tax falls into thecompetence of the cantons. Most cantons levyan inheritance tax except the canton ofSchwyz. The inheritance tax is generally leviedon the deceased’s worldwide assets and bythe canton where the deceased had his lastresidence. In cases where a real estate istransferred, the canton where the real estate iswww.lawyer-monthly.com

APRIL 2013Legal Focus 117situated levies the inheritance tax. Real estatesoutside of Switzerland are generally not taxed.Only the respective value of the real estate isincluded in the calculation of the applicabletax rate. In almost all cantons the heirs/legateesare subject to tax. As an important exception,spouses or registered partners are exempt fromtax in all cantons, issues are exempt from tax inthe majority of cantons, parents and unmarriedpartners only in some cantons. The amountof tax is usually calculated by the degree ofcognation and the amount of the incurredassets. By taking up residence in a canton,where no inheritance tax exists or where thepotential heirs are exempt from inheritance tax,a testator can in an efficient way minimize thetax liability of his heirs. The same is true bypurchasing real estates in an inheritance-taxfriendly canton. In international cases existingdouble taxation agreements must be taken intoaccount.This February a constitutional initiative to reformthe inheritance tax has been filed. The initiativestates that the estate of a deceased with lastresidence in Switzerland shall be taxed if theestate exceeds an amount of 2 million Swissfrancs, whereby certain exceptions areforeseen for family businesses. Tax exemptionsexist only for spouses or registered partners butnot for direct descendants. Not the heirs will betaxed, but rather the estate itself and thetax rate shall be 20% of the estate. Based onthe initiative the new provisions shall have aretroactive effect as of 1st January 2012 eventhough the new constitutional provision would– if approved – enter into force on 1st ofJanuary 2016 at the earliest.How severely will private clients’ wealthmanagement strategies be affected by therecent tax deals that have been agreedbetween countries such as the UK andSwitzerland, and Switzerland and Germany?First of all, the proposed agreement betweenSwitzerland and Germany has not beenapproved and shall most likely never come intoeffect.Although the agreement between Switzerlandand the UK has entered into force, we do notbelieve that this agreement has or will have anylarger influence on future wealth managementstrategies, since this agreement is mainly tryingto solve past undeclared funds issues and welladvised wealth managers have to look intothe future: the worldwide activities againstundeclared funds shall continue and this willcertainly also be the case with regard toSwitzerland. Rumours are out that the large Swissbanks are not going to accept undeclaredfunds in the near future. The Swiss federalcouncil just released a proposal that the bankscan only accept wealth in the future if they areabsolutely sure that the respective funds aredeclared in the client’s tax return. Theagreement between Switzerland and the UKshall only, at least for the moment, ensure thatthe respective funds may stay in Switzerland,but the future of such funds in Switzerland is veryunclear should the before mentioned proposalscome into effect.What are the possible effects of family mobilityon investment planning and taxation and theapplicable legislation?Any change of residence to another jurisdictionwill result in a new legal framework, whichmakes it indispensable to review one'sinvestment planning and private wealthplanning including the matrimonial propertylaw, the inheritance law, any existing structures(e.g. trusts) and last but not least the taxplanning. Often in these areas of internationallaw the connecting factor is a person’sresidence, his/her habitual residence, domicileor nationality. Therefore, in most cases actionsneed to be taken at an early stage. LMContact Details:Walder Wyss Ltd.Seefeldstrasse 123P.O. Box 12368034 ZurichSwitzerlandFax +41 44 498 98 99Kinga M. WeissDr. iur., LL.M., Attorney at Law / Certified Specialist SBA Inheritance Law CounselDirect phone: +41 44 498 96 80Email: kinga.weiss@walderwyss.comStephan Neidhardtlic. iur. HSG, LL.M., Attorney at Law / Certified Tax Expert PartnerDirect phone: +41 44 498 95 70Email: stephan.neidhardt@walderwyss.comwww.lawyer-monthly.com

118Legal FocusAPRIL 2013The New Patent Act:TaiwanTaiwan’s new Patent Act came into force on January 1 2013, introducing manysignificant provisions to the patent law, bringing Taiwan’s law more in line withinternational standards. To find out about the new Act and its expected effects, LawyerMonthly speaks to patent attorney, Candy Chen, from TSAI, LEE & CHEN.Can you tell me about the main points of thenew act?The amendment highlights the followingchanges:• Granting 6-month grace period to applicantswho publish their own inventions at will. Thegrace period extends to both novelty andinventive step (non-obviousness).• Allowing reinstatement of rights forunintentionally missing priority rights at filing orfailing to pay issue fee and patent annuities.• Abolishing time limit for voluntary amendmentsprior to receipt of office actions on merits.• Allowing amendments made on the legalbasis of translation errors, but limiting the varietyof foreign languages that may be admitted atfiling for securing a filing date to ten languages(currently being those permitted under PCT).• Relaxing the timing to file divisionalapplications up to 30 days after grant formatters that are granted in the firstexaminationstage.• Adopting international patent exhaustionwhile enlarging the scope of patentexemptions to include private use fornon-commercial purposes and clinical trials.• Removing the 2-year threshold requirement forapplying for patent term extensions forpharmaceutical and agrochemical relatedinventions.• Specifying grounds, procedures andcompensation for compulsory licenses.• Stipulating compulsory licenses and exports forpharmaceuticals under DOHA Declaration.• Permitting partial invalidations.• Permitting consolidation of pendinginvalidation and amendment proceedings atexaminers’ discretion..• Requiring subjective intent for damageawards.• Stipulating reasonable royalties as one of themethods for computing damage awards.• Abolishing patent marking as a pre-requisitefor damage awards.• Allowing invention and utility modelapplications to be filed at the same time forthe same innovation, while providing optionsto choose one right upon the grant of theinvention patent.• Admitting partial designs, derivative designs,design of articles in a set, icons and graphicuser’s interface (GUI) as patentable subjectmatter.What will be the main effects of this?Because of the added legal bases for restorationof rights, and the added 30-day window for filingof divisional applications, the new Act providesmeans to rectify applicants’ or patent agents’non-intentional faults. The additional exemptionsfor the grace period also provide theinventors/applicants means for early disclosureof inventions, when needed, without ruining theopportunity for seeking patent protection.Partial invalidation system may also help expeditethe examination procedure since the examinersno longer need to instruct and await thepatentees to delete invalid claims before makinga decision. However, partial invalidation systemmay also complicate the subsequent appealproceedings as the patentee and petitioner of aproceeding may both appeal the case if neitherparty is satisfied with the invalidation decision. (Inthe past, since the patent is either revoked ormaintained as a whole, only one party willappeal.)As for claims for damages, the infringer’s mentalstate is required. The infringer's intentional ornegligent act is clarified as a requisite for thepatentee to claim the damage of patentinfringement. Therefore, in cases of patentinfringement, a warning letter shall be servedbefore filing the case to the court; if theinfringement continues after the warning letteris served, the infringer has subjective intent ornegligence.Is the new Act a good idea in your opinion?Yes. The Taiwan Patent Act, in general, movestowards harmonization with the internationalstandards.Should it have been amended further? If yes,please explain.Yes. The clause allowing invention and utilitymodel applications to be filed at the same timefor the same innovation, should be furtheramended by taking reference from the Chinaand German utility model patent system. That is,the election of the invention patent should notresult in the utility model patent to be non-existentab initio. (The current Act has a flaw in designingthe “right to elect” system, which is, when aninvention patent is matured to be grant, uponelection of invention patent by the application,the utility model patent granted earlier will bedeemed non-exist from the beginning. The totalwipe out of the early-grant utility model rightwill result in disputes, for example, patentinfringement based on the utility model patentbefore the grant of invention patent) LMContact Details:Candy ChenTSAI, LEE & CHENPatent Attorneys & Attorneys at Law11th FL., 148 Songjiang Rd. Taipei104, Taiwan, Republic of ChinaWebsite: www.tsailee.comwww.lawyer-monthly.com

APRIL 2013Legal Focus 119Bankruptcy and insolvency rates inevitably rise during periodsof economic turbulence, and the global financial crisis leftmany companies with shrinking asset values and considerabledebt with little or no chance of repayment. Market losses overthe last year or so dampened spirits regarding the expectationsof recovery, lowering business confidence globally andenhancing the risk of falling back into recession.The restructuring and insolvencymarket has undergoneconsiderable change anddevelopment over recent yearsand according to a recent report,the global financial crisis has significantlycontributed to an increase in insolvencywork, keeping bankruptcy lawyers acrossthe world very busy. Insolvency is viewed asthe least favourable outcome, and creditorsand stakeholders are increasingly turning torestructuring strategies in an effort to avoidbecoming insolvent, preferring options thatoffer greater value return potential.However, companies do not have to simplyaccept insolvency as the inevitable resultin times of crisis, as those facing financialdifficulties now have a variety of optionsopen to them to avoid insolvencyproceedings. It seems that an increasingnumber of companies are now turning toout-of-court restructurings rather than theformal insolvency process.Over the next few pages Lawyer Monthlyexamines the options open to companies introuble, and the mechanisms they canemploy in order to avoid the courts.www.lawyer-monthly.com

120Legal FocusAPRIL 2013Out of Court RestructuringIndonesiaCompanies facing financial difficulties have a variety of options open to them when seekingto avoid insolvency proceedings and recently an increasing number of companies areturning to out-of-court restructurings rather than the formal insolvency process. To find outmore, Lawyer Monthly speaks to DR. M. Idwan Ganie from Lubis Ganie Surowidjojo in Jakarta.Would you say that out of court restructuringrather than the formal insolvency process isincreasing in popularity?Out-of-court restructuring has always been apopular option, and continues to be used in asignificant portion of matters due to its flexibilityand ability to often provide a more timelyresolution. At the same time, Indonesia has amodern Bankruptcy Law that was passed in2004, following a period of reflection on the1997 Asian financial crisis. The resulting currentbankruptcy regime seeks to encouragenegotiation between the parties prior to thecommencement of formal court proceedings.What do you think are the advantages anddisadvantages of out of court restructuringprogramme as opposed to insolvency?An insolvency process is necessarily more rigid,which raises questions of the ability to resolve itby means of out-of-court restructuring, and attimes through arbitration. The ability to secureassets in a restructuring and recover assets in aninsolvency following arbitral proceedings is animportant factor that needs to be consideredwhen deciding whether to pursue arbitrationor to proceed to court. Furthermore, it isimportant to consider the effects of insolvencyon unrelated arbitration and courtproceedings, whether commenced prior to orfollowing the insolvency. The viability of sucharbitration proceedings will be further affectedby the location of the assets, and the view thelocal courts take on arbitration proceedingsduring an insolvency. This is of particularimportance to counterparties of companiesthat are at risk of facing insolvency proceedingsand whose relationship is governed byagreements with arbitration clauses. TheIndonesian Bankruptcy Law states that uponthe declaration of bankruptcy certain courtproceedings against the insolvent party willterminate. The extent to which this, and certainother, provisions of the Bankruptcy Law apply toarbitration proceedings and the enforcementof arbitral awards also needs to be carefullyconsidered.What other informal mechanisms areavailable to companies in trouble?Establishing an effective dialogue with creditorsis essential, and typically should be done at anearly stage to ensure that the creditors donot make incorrect presumptions regarding thesituation, while keeping in mind the businesspractices in the jurisdiction. Related to this, itis important to ensure that the anycommunications to creditors are accurate anddo not mislead. For this, and to ensure that thecompany does not make any unnecessaryconcessions during the negotiating, it is essentialthat counsel with extensive experience ininsolvency and restructuring is retained tosupport the company’s management andlegal teams throughout the process.What legal challenges and complexitiesarise when dealing with out of courtrestructurings in your jurisdiction? How canyou assist clients in navigating/solving thesechallenges and complexities?With restructuring, it is important to begindiscussions on the possibility of restructuringpayment obligations as early as possible so asto avoid a deterioration of the financial situationfaced by the business. As such, it is essential tokeep in mind any ‘debt restructuring’ triggersthat may be present in contracts to which thecompany is party to. And if present, to identifythese and work with the relevant counterpartiesto prevent the occurrence of unintendedconsequences that could further complicatethe process. Considering the above, it isadvisable to work with counsel experienced insuch matters from an early stage, so as toensure that critical missteps are not made,which could later compromise the survival ofthe company or the success of the restructuringprocess. As such, restructuring is oftenpreferable in cases where there is sufficient timeto satisfactorily initiate the process as it allowsfor the affected business more flexibility than aninsolvency process.How do you see this practice areaprogressing over the next 3-5 years?In the longer term, we foresee an expansion ofthe practice area to include work with clientswhose businesses are not at risk of financialdifficulty, but who decide to involve counselwith bankruptcy experience to ensure that anycontracts and arrangements are sufficientlyresilient in the face of either party’s financialnon-performance. LMContact Details:Dr. Mohamed Idwan (‘Kiki’) GanieManaging PartnerTel: +62 21 831-5005, 831-5025Lubis Ganie SurowidjojoFax: +62 21 831-5015, 831-5018Email: ganie@lgslaw.co.idWebsite: www.lgsonline.comMenara Imperium 30th FloorJl. H. R. Rasuna Said Kav. 1 KuninganJakarta 12980, Indonesiawww.lawyer-monthly.com

APRIL 2013Legal Focus 121Out of Court RestructuringAustraliaContinuing with our focus on out-of-court restructuring and the issues that surround it,Lawyer Monthly speaks to Dominic Emmett from Gilbert + Tobin in Sydney.Would you say that out-of-court restructuringrather than the formal insolvency process isincreasing in popularity?In Australia the formal insolvency processes ofreceivership and administration can take placewithout any court involvement whatsoever.Courts are not involved in initiating eitherprocess. Further, receivers and administratorscan sell and realise assets without courtinvolvement. If an administration involves arescue or rehabilitation proposal it is for creditorsto decide upon it and not for a court toapprove any such proposal.Of late in a few very large restructurings, thescheme of arrangement process has been usedin Australia, which process is similar to that seenin the UK. The court is required to order theconvening of creditors’ meetings to approve ascheme and a second court hearing is requiredto sanction a scheme subject to it beingsatisfied on such issues as class and fairness.We have not necessarily seen an increase inrestructurings not involving receivership oradministration other than to say that it is still thecase that lenders and creditors continue toallow companies and debtors to remain incontrol (and grant such forbearance andwaivers as may be required to allow for that) solong as trust exists as between them and,indeed, as between creditor stakeholdergroups.What do you think are the advantages anddisadvantages of out-of-court restructuringprogramme as opposed to insolvency?The advantages of avoiding receivership andadministration include:• not having to incur the costs of administratorsand receivers; and• not facing the risk of counterparties tocontracts looking to terminate or repriceusing termination rights on administration orreceivership. In Australia debtors are notafforded any ‘ipso facto’ protection as theywould be under the US Chapter 11 regime.This advantage can be both critical andvaluable in the services, contracting, IT andmedia sectors.The disadvantages of restructuring outside ofadministration or receivership include:• inability to exit unprofitable businesses andcontracts;• inability to challenge antecedenttransactions, e.g. preferences, transactionsat an undervalue and certain claims againstdirectors; and• inability to cram down minority dissentingcreditors in creditor stakeholder groupsWhat other informal mechanisms are availableto companies in trouble?In Australia there is not really any other form ofinformal mechanisms available other thanthose arising by agreement and negotiation.What legal challenges and complexities arisewhen dealing with out-of-court restructurings inyour jurisdiction? How can you assist clients innavigating/solving these challenges andcomplexities?The most significant challenge to restructuringsoutside of receivership and administration inAustralia is the very conservative and strictinsolvent trading regime which has the potentialto impose personal liability on directors for allnew debt incurred from the time a company iscash flow insolvent. The practical impact of thismeans that lenders and secured creditorscannot make demand during the restructuringprocess and companies cannot unilaterallyextend payment to creditors without exposingthemselves to personal risk. The only practicalway to mitigate against that risk is for thedirectors to appoint administrators.Advisors can assist companies through aninformal restructuring process by setting theground rules with creditor stakeholders throughthe process such that directors are notpersonally exposed. For fear of stating theobvious, informal restructurings necessarilyinvolve agreement with stakeholders, with theonly real leverage against such stakeholdersbeing the threat of formal insolvency involvingreceivership or administration.How do you see this practice area progressingover the next 3-5 years?We believe both formal and informalrestructurings will continue at the same paceover the next 3-5 years. With the influx ofalternative capital providers from outside thejurisdiction we are likely to see more distresseddebt trading at least at the upper end of themarket along with the continuation of loanto own strategies which traditionally up untilaround 5 years ago were not common inAustralia. The local lenders in the market willcontinue to look to restructure in their traditionalways and tension will continue to subsistbetween them and others into the market whoare not otherwise restricted from adopting loanto own strategies and in holding equity. LMContact Details:Dominic EmmettTel: +61 2 9263 4328Email: demmett@gtlaw.com.auwww.lawyer-monthly.com

122Legal FocusAPRIL 2013Out of Court RestructuringContinuing further with our focus on out-of-court restructuring, Lawyer Monthly speaks toJamie Ensor, a solicitor in the Insolvency and Corporate Recovery department of Irishlaw firm, Dillon Eustace.Would you say that out-of-court restructuringrather than the formal insolvency process isincreasing in popularity?In relation to out-of-court restructuring ofcorporate entities and their debt, there areno figures available in Ireland for suchrestructurings unless those restructuringscome to light in the context of a formalcorporate insolvency process. That said,anecdotally the indicators do point to anincrease in the popularity of out-of-courtcorporate restructuring.If so, why is this?There have been a number of recent highprofile examinerships and receivershipswhich have benefited from restructuringproposals that were negotiated prior to thecommencement of those formal corporateinsolvency processes and contributedsignificantly to their ultimate success. Thistrend in Ireland would suggest thatcompanies and their stakeholders arebecoming more alive to the benefits ofout-of-court restructuring.What do you think are the advantages anddisadvantages of out-of-court restructuringprogramme as opposed to insolvency?Although we do not have a programme forout-of-court corporate restructuring in thisjurisdiction at this time, the advantages ofprogrammes similar to the appointment of acorporate restructuring officer in the UK orDebt Mediation in the US would, in my view,be the reduction in the costs associated withformal insolvency process together withgreater flexibility in the time available tocompanies and their key stakeholders inagreeing the restructuring. In addition,restructuring programmes with courtinvolvement are more likely to be adversarialin nature when compared with restructuringoutside the court process.What other informal mechanisms areavailable to companies in trouble?The landscape for out-of-court restructuringin Ireland is limited to restructuringarrangements between companies andtheir stakeholders that can be agreedbetween themselves without the benefitof a formal programme or informalmechanism. As I have mentioned, asignificant proportion of those restructuringarrangements will ultimately be thepre-negotiation that compliments ordetermines the success of the formalinsolvency processes.What legal challenges and complexitiesarise when dealing with out-of-courtrestructurings in your jurisdiction? How canyou assist clients in navigating/solving thesechallenges and complexities?The challenges and complexities whendealing with out-of-court restructuring inIreland are often more practical than legalin looking to encourage the key stakeholdersto engage with the process and toformulate proposals which are acceptableto all the key stakeholders without a formalprocess for doing so. We can assist our clientsby advising them of their rights and likelyoutcomes under the different formalinsolvency processes so they are fullyinformed in evaluating any restructuringproposal. Our assistance to clients wouldalso include ensuring that anydocumentation giving effect to anyrestructuring arrangement fully protects theirinterests.How do you see this practice areaprogressing over the next 3-5 years?In light of the number of recent high profilecases mentioned, I think that it is inevitablethat the element of pre-negotiation inadvance of companies commencing moreformal insolvency processes will increase.While it has been reported that thegovernment is in talks with EU and IMF on anew out-of-court system to allow small firmsto restructure their borrowings, we have yetto see an indication as to whether it isproposed to put in place a formalout-of-court restructuring programme as isseen in other countries. Accordingly, while Isee the area progressing, it will be hard toevaluate to what extent the area does infact progress, other than where we seepre-negotiated restructurings in advance ofcompanies commencing formal insolvencyprocesses. LMContact Details:Jamie EnsorDillon Eustace33 Sir John Rogerson's QuayDublin 2IrelandDDI: + 353 1 673 1722Tel: + 353 1 667 0022Fax: + 353 1 674 1022Email: Jamie.Ensor@dilloneustace.ieWebsite: www.dilloneustace.iewww.lawyer-monthly.com

APRIL 2013Legal Focus 123PensionsUKTurbulent economic times sparked by the financial crisis have had a significant impact on pension systemsglobally. In turn, the reforms of pension systems are in a continuous state of change. Part of this is theentering into force, on 1 October 2012,of the new laws on pension auto-enrolment, considered to be thebiggest change to retirement saving for over a century, and having been welcomed with caution bytrade unions, employers and charities. To find out more about this and the other issues surrounding pensionscurrently, Lawyer Monthly speaks to Camilla Barry, partner at Macfarlanes LLP in London.What are your opinions on the new laws onpension auto-enrolment?The genius of auto-enrolment is to harness the powerof apathy. Minimum contribution levels have initiallybeen set so low that they give no reason to opt out.As they increase to a more meaningful level by 2018,acceptance may have settled in and the focusmay shift to sufficiency. It is a shrewd strategy forencouraging people to take responsibility for their ownsavings and living standards in retirement.In a world without default retirement ages, wiseemployers will take steps to encourage participationand to monitor investment performance and chargesso as to ensure their workers can afford to retire whenthe time comes.However, the auto-enrolment legislation is terriblyconvoluted and prescriptive. There are realchallenges for employers with workers on irregularearnings. Employers wanting to ‘over-comply’ bybringing workers in early or including everyone needto be very careful. Higher than expected commission,bonus or overtime earnings could also lead toaccidental breaches through insufficientcontributions. It is hoped that, despite its vast arsenalof sanctions, the Pensions Regulator will take asupportive and pragmatic approach.The risk of a proliferation of ‘small pots’ is also very realand the solution has not been found.What do you think will be the main effects of thereforms?In time, and coupled with the changes to the statepension, I do actually believe the reforms will create astronger savings culture. But it is unreasonable toexpect auto-enrolment to be adequate for everyone.How necessary do you think the reforms were? Arethere any further changes you would have likedto see?Auto-enrolment is needed.Employers have, through bitter experience, withdrawnfrom pension provision wherever possible. And yetpension savings are needed more than ever, givenchanging demographics. We can’t continue to relyon younger generations to provide for our retirementas we have done in the past. But everyone has morepressing spending needs than an old age they mightnever reach. The young can never imagine growingold.The only alternatives to get people saving arecompulsion or incentives. Compulsion would be seenas a tax and has its own controversies. Incentivescontinue to be part of the system, as tax incentives,but the best rewards go to those who would otherwisepay the most tax. They don’t reach everyone.Auto-enrolment is a good middle road and will getpeople used to the idea of having retirement savings.There are still challenges. Falling home ownershiplevels will make it hard to eliminate means-testedbenefits so that some may see little value from theirsavings.The other key challenges relate to ‘small pots’, lowreturns and decumulation of small savings particularlyfor those on the lowest earnings, in casualemployment or who have significant career breaks:some people will get very low benefits and there mayneed to be some relaxation of the rules. For instance,ISAs can be used to bridge a gap between actualretirement at, say, 65 and the ever rising state pensionage which may be 68 or higher. Small pension savingsshould be available in the same way.I would like to see a relaxation on the use of small potsand the creation of a couple of aggregator funds thatsmall pots could be transferred to. For instance, therules on access could be changed to provide lumpsums or short term pensions up to specified levels atleast after minimum pension age (55).What are the main issues to consider relating to riskmanagement in pensions?Documentation of all kinds has to be high on the list.Whether it’s the formal documentation or theemployee communications, most disputes arisesomehow from a mismatch between the two orbetween the documentation and actual practice.Good communication with those involved in theadministration of pensions, at every level, is also criticalto ensure that what is intended is the same as iscommunicated and implemented.Is there anything else you would like to add?Pensions is an industry that has been driven byregulation, from tax incentives to tax limits, not tomention contracting-out, preservation, equalisationand now auto-enrolment. Old age however is notinvented.Even with a very mobile workforce, employers andworkers alike do need to ensure that the best level ofretirement income that can reasonably be affordedis achieved to avoid bitter disputes over forcedretirements. While one can have every sympathywith employers’ wariness of involving themselves inpensions, engagement over investment strategy,contribution levels, charges and expectations isneeded. Variants on classic defined contribution,so-called ‘defined ambition’, are worth considering asthey aim to deliver more predictable outcomes. LMContact Details:Camilla BarryPartner, MacfarlanesT: 0207 849 2238E: Camilla.Barry@macfarlanes.comwww.lawyer-monthly.com

124Legal FocusAPRIL 2013As the world continues its attempts at a recovery from thefinancial crisis, focus on private equity and mergers andacquisitions seems ever more intense, with analysts and expertsdesperate for the opportunity to report some good news.However, it seems that this may notbe as easy as hoped for the PEmarket lately, with reportsshowing that the number of dealshas dropped considerably duringthe first few months of 2013. According to areport by Grant Thornton, global PE activityfell by 39 per cent between January andMarch 2013 to USD 1.29 billion. The numberfrom Q1 last year was a markedly higher USD2.13 billion.In the report, Grant Thornton said: “Thequarter clearly saw decline in deal activity,possibly driven by interplay of factors giventhe macro conditions (global economicweaknesses along with slowness in growth inIndian economy), as well as the pressure onliquidity.”This slump is no doubt a disappointment, asmany industry experts had hoped for apromising 2013; many stating at thebeginning of the year that the scene was setand poised for a revival. However, as thisreport shows, it’s not quite there yet.To find out more about the private equitymarket and how the scene is faring inparticular countries, Lawyer Monthly speaksto two experienced PE lawyers, one from TheCayman Islands and one from the U.S. Herethey tell us about their current work and thechallenges they face as the PE market strivesto meet expectations. LMwww.lawyer-monthly.com

APRIL 2013Legal Focus 125Private EquityU.S.The private equity arena operates in a rapidly changing, complex, and highly competitivemarket. However, 2013 appears to be shaping up like a positive year for the PE market with creditavailability on the rise. To find out how the market is faring in the US at the moment, LawyerMonthly speaks to Rashida La Lande, corporate partner in the New York office of Gibson Dunn.Rashida is also a member of the firm’s private equity and M&A groups.What recent transactions have you beeninvolved in?I recently helped Investcorp sell a portfoliocompany, CCC Information Services, Inc.,one of the leading providers of advancedsoftware and workflow tools to the insuranceautomotive claims and collision repairindustries, to Leonard Green & Partners. Ialso completed a leveraged recapitalizationof a portfolio company of New MountainCapital.What challenges and complexities arose, andhow did you navigate them?It is really good to see that the financingmarkets appear to be opening up. Anincrease in the availability of credit onreasonable terms could mean a significantuptick in the number of PE deals in 2013.However, there is still a sense that lenders arehesitant to lend to companies with flaws. Intoday’s market it is particularly important forlawyers to get ahead of potential issues bynot only identifying them during diligence,whether the lawyer represents the sell-sideor the buy-side, but also developingcomprehensive risk avoidance and mitigationstrategies to help buyers and prospectivelenders see the true potential value in acompany.What are the key legal implications that needto be considered when dealing with PrivateEquity projects in your country?The key deal issue in the sale of portfoliocompanies relates to finding ways to cut offthe post-closing risk to the fund withoutalienating a buyer. No fund wants continuinglegal obligations hanging over its head as ittries to close out a fund or market a new one.Ideally, from the perspective of a seller, yousuccessfully negotiate for a public companystyle deal even for a private companytransaction. However, while other privateequity sponsors may be willing to take thisapproach, most strategic buyers remainharder to convince. That is one of the reasonswe are starting to see representation andwarranty insurance pop up with increasingregularity. We see sellers “stapling” insurancepolicies with no-indemnity auction contractsin some instances and buyers and sellersmutually agreeing to a more limitedindemnity with support from an insurancepolicy in others. I expect this trend tocontinue.What are the main issues to be aware of whendealing with cross-border PE deals?One of the big issues to consider in crossborderPE deals is dealing with the diligenceconducted by the financing sources. Thecustom varies dramatically country bycountry as to whether the banks can rely ondiligence materials created by the buyer’slawyers.Trends also show there is increased interest ininvesting in SMEs; is this something you havewitnessed? What do you think are the reasonsfor this?Yes, I have seen a growth in small to middlemarketPE funds and a flight towards deals atthe lower end of the range. At the heightof the market there was a lot of capitalcommitted to PE and a lot of big deals -mainly club deals. Since then, the fundraisingmarket has been much tighter for everyoneexcept the most established and successfulfunds. In addition, a number of club dealsblew up publically. So you have smaller funds,with less capital to put to work and lesswillingness to join with other funds to do adeal.As its participants become increasinglyinstitutionalised, private equity continues tobe an important asset class that enablesmanagers to control their investments. Whatdo you feel are the attractions and benefitsof dealing with private equity firms forbusinesses?Any mature business looking for access tocapital should consider partnering withprivate equity sponsors with experience in therelevant industry. The value propositionoffered by sponsors is more significant thanthe money they bring to the table. Theycome with key relationships, access to theirother portfolio companies, themselvespotential customers, suppliers and partnersand a wealth of industry knowledge. Theycan be exactly the partner a company needsfor healthy growth. LMContact Details:Rashida K. La LandeGibson, Dunn & Crutcher LLP200 Park AvenueNew YorkNY 10166-0193Tel +1 212.351.3906Fax +1 212.351.6241Email: RLaLande@gibsondunn.comWeb: www.gibsondunn.comwww.lawyer-monthly.com

126Legal FocusAPRIL 2013Private EquityLooking further at the issues surrounding Private Equity at the moment,we take a look at it from an offshore perspective. To this end, LawyerMonthly speaks to Rolf Lindsay, partner at leading offshore law firm,Walkers. Rolf is a partner in the firm’s Global Investment Finds Group,making him more than well-placed to comment.Please introduce yourself, your role and yourfirm.My practice focuses primarily on private equityfunds and their activities, and encompassesthe structuring of fund sponsor vehicles, theformation of alternative investment funds andthe consummation of acquisition and exittransactions undertaken by them.Walkers focuses principally on corporate andinternational finance law with an emphasis oninvestment funds, private equity and capitalmarkets and structured finance. Walkers’Global Investment Funds Group is one ofthe largest specialist offshore teams worldwide.We have established funds for our clients withvirtually every known style and strategy. Ourteam has extensive first-hand experience innumerous structures used in the investmentfunds market and has in-depth knowledge ofthe practical and legal consequences as wellas the commercial rationale behind them.Walkers represents the majority of the top fiftyhedge fund managers and private equity fundmanagers worldwide.What recent transactions have you beeninvolved in?Some transactional highlights from my practiceduring the past 12 months include our workon some high profile IPOs, and illustrate thecontinued importance of the Cayman Islandsto its core traditional sectors of intellectualproperty and energy.Within the industry itself, Walkers actedalongside Simpson Thacher to advise longstanding client Carlyle in relation to its muchanticipated IPO which raised $671 million,valuing the investment management group at$6.7 billion.In the public markets more generally, Walkers'role as Cayman counsel to Manchester Unitedon the football club's New York Stock ExchangeIPO last year is indicative of the burgeoningpopularity of Cayman and the BVI asjurisdictions for the domicile of significant globalbrands.Illustrating the continued importance of theIFCs to structuring technology and energytransactions, Walkers acted as specialistCayman counsel when Skadden advised FoxPaine on the sale of oil and gas technologysoftware group Paradigm to Apax Partners forapproximately $1 billion in cash.How do you assist your clients in achieving theirobjectives?The need in the developed world and theemerging markets for efficient means of raisinginternational capital has rarely been moreacute than at this time. From a private equityfund formation perspective, the CaymanIslands in particular offers a well-developed andwidely-understood limited partnership structureunder a statutory regime that is highlyresponsive to changes in the globalmarketplace, and within a common law systemthat is renowned for its sensible approach tocommercial disputes. Add to that the abilityto raise capital efficiently in a tax neutralenvironment, and the benefits to investors andthe jurisdictions in which they deploy theircapital are significant.From a transactional perspective, therehas been a notable increase in interest andappetite for the use of International FinancialCentres such as the Cayman Islands to structurecomplex transactions efficiently. Recentrhetoric in the developed world has given wayto an understanding that jurisdictions such asthe BVI, the Cayman Islands and Jersey areat the forefront of jurisdictions that enforcerobust anti-money laundering policies andprocedures. The focus of regulators in thosejurisdictions on transparency and themanagement of systemic risk has all buteliminated concerns about capital raising in theleading IFCs.www.lawyer-monthly.com

APRIL 2013Legal Focus 127What are the key legal implications thatneed to be considered when dealing withPrivate Equity projects in your country?Financial services legislation in the CaymanIslands continues to evolve as the jurisdictionresponds to changes in the marketplace,regulatory requirements, changes in clients'needs, as well competitive challenges fromexisting and new financial centres. We expectthat Cayman's legislative and regulatoryframework will continue to adapt to meet thesedemands and, by way of example, in theCayman Islands, we are anticipating theupdating of our Exempted Limited PartnershipsLaw that respond to the development of themarket in recent years and that more closelymirror the law and practice in Delaware, withthe aim of continuing to provide a cutting edgeenvironment and consistency of approach withour counterparts in Delaware for structuring andforming private equity funds. The changes areas a result of extensive consultation both withinand outside the Islands, illustrate the abilitythe ability of the jurisdiction to be nimble in itsresponse to an evolving world, and are muchanticipated by private equity practitioners andtheir advisors.Elsewhere, increased international regulatoryrequirements, driven by the response to theglobal financial crisis from governments in theUS and in Europe, have dominated discussionsin recent years. At the same time, the industryis facing the implementation of the EU'sAlternative Investment Fund ManagersDirective, the imposition of the Volcker Rule -which places restrictions on the proprietarytrading activities of banks - and the forthcomingFATCA legislation, which will result in hefty taxpenalties for managers that fail to comply.Overall the picture is one of significantly highercompliance costs, which has raised barriers ofentry for new managers to a large degree,as well as placing extreme demands onmanagers' time. There has been a notabletrend among our clients to increase the size oftheir internal compliance teams and hire theirown heads of compliance.Private equity is an industry that has alwaysmanaged to adapt and reinvent itself tochanging economic conditions. Meeting thechallenges of the new regulatory landscape willmake for a stronger industry more focussed onthe management of systemic risk. The practicaleffects of regulation, such as the spin-out ofmanagers from former proprietary trading desksat banks as a result of the Volcker Rule, presentnew opportunities.understanding about what is meant by the"alignment of interests" has led investors to focusdiligence and information sharing, seeking toinvestigate such matters as successionplanning, without necessarily doing violence tothe fund terms. Attractive fees are great, but amanager without incentive is not an attractiveprospect for investment.We have seen a return to better conditions forfund raising, with all the large LBO funds eitherin the market or about to enter it, but there isstill no easy capital out there. Larger investorscontinue to wield significant power, and theinsistence by the sovereign wealth funds inparticular on single-investor platforms hasseen significant diversity of terms and thedevelopment of innovative systems for themanagement of funds and the rewarding offund managers.In this competitive environment, where termsare being negotiated, it is the start-ups andmid-market houses that are under the greatestpressure to accept investor-friendly terms inrelation to fees, suspensions and terminations.European-style whole-fund waterfalls aredifficult to avoid in many instances.The increasing preponderance of smaller,industry focussed funds being launched bythe traditional fund managers has, whenconsidered alongside the single-investor funds,made more important the discussion aroundconflicts, the discharge of fiduciary duties andthe management of competing funds. In allof this, the role of the Advisory Committees isincreasingly important with greater authoritybeing conferred there. As with the changes tothe regulatory environment, the fund managersthat respond quickly and positively to theseinevitabilities are the ones most likely tocontinue to flourish. LMContact Details:Rolf LindsayPartnerWALKERSTel: +1 345 914 6307Email: rolf.lindsay@walkersglobal.comWhat are the main issues being negotiatedbetween General Partners and Limited Partners?More recently we have seen the relationshipbetween investors and sponsors adopt aless adversarial culture. A growing subtlety ofwww.lawyer-monthly.com

128Legal FocusAPRIL 2013Public Procurement DisputesU.S.The public procurement industry continues to struggle inmany regions as governments continue tightening theirbudget belts. Some reports show that there has been asizeable rise in litigation cases as companies with failedbids increasingly challenge the decisions of publicauthorities when awarding bids. To find out more aboutpublic procurement and the disputes they commonlybring about, Lawyer Monthly speaks to Fernand Lavallee,partner at DLA Piper’s Washington D.C. office.Please introduce yourself, your role andyour firm.I am a partner in the Global PublicProcurement Practice. Our practiceentails the representation of clients in allaspects of U.S. federal, state and localprocurement law matters – bothcontentious and non-contentious. Mypractice focuses on contractorcompliance, intellectual property andhigh technology issues in governmentcontracts. I also am experienced inappearing before U.S. federal and statecourts, the U.S. Defense and CivilianBoards of Contract Appeals, and theU.S. Government Accountability Office(GAO).What are the key points of procurement inyour jurisdiction?DLA Piper’s Global Public Procurementpractice is especially for clients whooperate internationally and seekintegrated, comprehensive, cohesiveand cost-effective public procurementrepresentation.Currently in the United States,sequestration (budget reduction),contractor compliance with uniquepublic contracting laws and regulations,allocation of rights in intellectual property,and cyber security are key issues. While“sequestration” is grabbing headlines,the reality is the U.S. federal publicprocurement market is, and will remain,massive. Every year there are a trilliondollars in opportunities: the U.S.Government is the world’s largestpurchaser of virtually everything,spending over US$ 500B annually onprocurements; the various states, in theaggregate, have a similar annual spend.Have you witnessed an increase in publicprocurement since the economic downfall?In Fiscal Year 2012 the U.S. federalgovernment spent US$ 514 Billion in publicprocurements, the first decline inprocurement spending in a decade,down approximately 4% from the US$537.3 billion spent in FY 2011. Remarkably,in the decade between 2001 and 2011www.lawyer-monthly.com

APRIL 2013Legal Focus 129the dollars obligated to public contractawards by the U.S. Department ofDefense alone more than doubled. Whilethe current “sequestration” suggestscontinued declining public procurementspends, the majority of the decline willnot be “cuts”, but rather will be decreases- or stagnation - in the percentage ofprocurement budget growth. All thingsconsidered, the future holds substantialopportunities for government contractorsin the United States.The future holdssubstantialopportunities forgovernmentthe express terms of the Solicitation, orfrom mandatory requirements ofprocurement law. The basis for claimstypically includes contract breaches,additional work or disputes over contractinterpretation.What are the main challenges/complexities they bring and how are theynavigated?The primary challenge of any bid protestor contract claim is to mount a costeffectivechallenge while preserving therelationship with the GovernmentalAuthority. While there is no “sure fire”way to avoid all procurement disputes,many if not most, can be avoidedthrough adroit relationship-buildingwith customers. Well-credentialedand experienced public procurementattorneys can facilitate theseobjectives. LMcontractors in theUnited States.Contact Details:Fernand A. Lavallee, P.C.T +1 202.799.4401F +1 202.799.5401E fernand.lavallee@dlapiper.comIn your experience, what are the mostcommon types of disputes to arise in thisarea?DLA Piper LLP (US)500 Eighth Street, NWWashington, DC 20004United Stateswww.dlapiper.comA routine and important feature of theU.S. public procurement system is the bidprotest mechanism (used to challengethe terms of, or improprieties in, asolicitation or a contract award), and theformal claim process (for disputes arisingduring contract performance). Recentdata shows a significant increase in bidprotest disputes, and some increase inclaims. The most common grounds forprotest are associated with some materialand prejudicial departure by anawarding Governmental Authority fromwww.lawyer-monthly.com

130Legal FocusAPRIL 2013Legal Challenges facing theTelecommunications IndustryIndonesiaThe Telecommunications industry is one which isfast-paced, ever-evolving and subject to a complex legaland regulatory framework. To examine the complicatedweb of legal issues which touch this sector, Lawyer Monthlyspeaks to Ariani Nugraha from one of Indonesia’s oldestand largest law firms, Mochtar Karuwin Komar (MKK).What is the main regulatory challenge thetelecoms industry faces at the moment?The telecommunications industry in Indonesia israpidly evolving. The development oftelecommunication technology allowing not onlybasic telecommunication activities such as phonecalls and text messaging, but the sharing ofpictures, videos and music and the ability totransfer and store data online, has beenembraced by Indonesian consumers. However, inaccommodating the developments intechnologies the current regulatory frameworkoften proves to be challenging for industryparticipants.There are two main challenges in the Indonesiantelecommunication industry currently:(i) The current law and regulatory regimes havenot kept pace with the advancement intechnology and cannot consequentiallyaccommodate the increasing demands of themarket.(ii) Indonesian telecommunications law isgoverned by Law Number 36 of 1999 regardingTelecommunications (the “TelecommunicationLaw”). Within the implementing regulations of theTelecommunication Law is a distinctionbetween “network providers” and “serviceproviders”. A network provider is obliged to bothconstruct infrastructure to supporttelecommunication services and to providetelecommunication services. A service provider ismerely entitled to provide telecommunicationservices by leasing the network owned by anetwork provider.Network providers and service providers arefurther classified into sub-categories; for anetwork provider as either a fixed line networkprovider or a mobile network provider and forservice providers as either a multimedia serviceprovider or a value added telephony serviceprovider. This inflexibility in classification createsdifficulties for the telecommunication industry interms of determining the appropriate operatinglicenses to be obtained.The change in market structure, evolution ofservices and customer needs and expectations,require substantial amendment to the regulatoryframework in order to meet the above mentionedchallenges. The industry trend is towardintegration between telecommunication, datacommunication, and information andbroadcasting technology (convergence).Currently each of these activities are regulatedunder separate legal and regulatory regimes.These are respectively: telecommunication,broadcasting and information and electronictransactions. This leads to conflicts between lawsand therefore to legal uncertainties.How could this challenge be softened? Islegislative change the answer?In response to such developments, the Indonesiangovernment, through the Directorate General ofPost and Telecommunications of the Ministry ofCommunications and Information Technologyis in the process of replacing the currentTelecommunication Law with a new law.Changes are to be made to accommodate thetechnological development and marketdemands in Indonesia. These changes include,inter alia, (a) the restructuring of services andactivities which may be carried out by networkwww.lawyer-monthly.com

APRIL 2013Legal Focus 131providers and service providers; (b) the adoptionof the concept of convergence or harmonisationof laws and regulations in the fields oftelecommunication, broadcasting andinformation and electronic transactions.Temasek an ability to control the market price oftelecommunication services to the detriment ofthe consumer. This Commission requires Temasekto divest its ownership in one of thetelecommunication companies.Although the Indonesian government is makingprogress in addressing the regulatory challenges,it would appear that more time is required toresolve the various issues which may beconsidered to be an obstacle or conceptuallydifficult in processing and completing the newlaw. We note that the Parliament has urged thegovernment to expedite the process ofcompleting the formulation of the newtelecommunication law however we have noinformation as to when the new law can beexpected to be enacted.Have there been any big antitrust andcompetition disputes within the industry recently?Can you tell me about them?Prior to 2001,the Indonesiantelecommunicationindustry wasmonopolized bythe State throughthe operation ofits state ownedenterprises.Prior to 2001, the Indonesian telecommunicationindustry was monopolized by the State throughthe operation of its state owned enterprises.However, due to the commitment of theIndonesian government to implementliberalisation of the telecommunication industry,the telecommunication industry in Indonesia isnow opened for competition subject to foreignownership limitation.In 2010 there was a competition law case relatingto the procurement of the tender for the PalapaRing Mataram – Kupang Cable System Project byPT Telekomunikasi Indonesia. PT TelekomunikasiIndonesia and Huawei Sansaine Consortium werereported to the Commission for discrimination andconspiracy in the procurement process. However,both parties were found not guilty by theCommission. LMAs the telecommunication industry has relativelyfew major participants and these incumbenttelecommunication companies have dominantmarket positions, fair competition within theindustry is required. Competition Law in Indonesiais governed by Law No. 5 of 1999 (the“Anti-monopoly Law”. The Anti-monopoly Lawrequires that any merger, consolidation andacquisition must be reported to the SupervisoryCommission for Business Competition(“Commission”) after completion of a transaction.The most notable Anti-monopoly case inIndonesia regarding the telecommunicationindustry occurred in 2007. This case was in relationto the cross ownership by the SingaporeanTemasek Business Group of two major Indonesiantelecommunication companies, Telkomsel andIndosat. Temasek’s cross-ownership resulted in ithaving market control of more than 50% of thetelecommunication sector, such was the marketdominance of Telkomsel and Indosat. TheCommission took the view that Temasekcross-ownership had the risk of decreasingcompetition in the Indonesian market and gaveContact Details:Ariani NugrahaMochtar Karuwin Komar14th Floor Wisma Metropolitan IIKav. 31 Jl. Jend. SudirmanJakarta 12920 IndonesiaP.O. Box 2844 Jakarta 10001Tel. + 62 21 571 1130Fax + 62 21 571 1162, 570 1686Email: mail@mkklaw.netWebsite: www.mkklaw.netwww.lawyer-monthly.com

132Legal FocusAPRIL 2013Real EstateCyprusIt seems that the outlook for 2013 for the real estate industry is improving amid growing investorappetite and recovery and activity in certain markets appears to be on the rise. With this in mind,Lawyer Monthly looks at this sector further by speaking to Deborah Primett, Senior Lawyer at the realestate and construction team at George Z. Georgiou & Associates LLC in Nicosia.What were the key trends with regards to theinvestment in commercial real estate in 2012, andhow are they shaping up for 2013?The commercial real estate market was affectedby the global economic crisis in 2012 andcontinues to be so in the first part of 2013.Development of commercial properties was alsoaffected in 2012, forcing Cypriot developers tolook for other potential markets in Asia and theMiddle East.There was some demand in the commercialproperty markets in Nicosia and Limassol (themain commercial centres) in 2012; however priceswere reduced island-wide due to the fact thatsupply often exceeded demand. Conditions aregenerally challenging and large numbers oftenants are seeking rent reductions fromLandlords. During the first quarter of 2012, thevalues of commercial properties dropped in allcities in the retail sector.Looking at the current state of the commercialreal estate market, it seems that the trend willcontinue in 2013. Supply within the commercialproperty real estate market is expected to besteady and the current rent for commercialproperties is expected to remain around the samelevels in 2013, as they were in 2012.Has litigation continued to increase between realestate owner and occupier?In our experience, litigation has increased as aresult of current economic conditions. However,we have found that real estate owners are onlywilling to litigate as a last resort. In most casesattempts are made to settle disputes out of courtin order to free up the property from the occupieras soon as possible. Reaching an out of courtsettlement enables real estate owners to put theirproperties back on the market in much less timethan would occur if matters are taken via theCourts, as time frames may be protracted as aresult of the workload of the Courts. Out of courtsettlements also reduce legal costs whichotherwise tend to be much higher. This is wherearbitration may have a significant role to play andwe encourage clients to include arbitrationclauses in agreements.Is investor appetite growing in your country, andif so, why do you think this is and can it continue?Cyprus is still recovering from a housing boomwhich ended in 2008. The latest figures from theLand Registry show that transaction volumes arefalling, despite the fact that the lower real estateprices enable local and foreign investors topurchase property in Cyprus at a much reducedlevel to what they used to cost prior to the globaleconomic crisis. Property sales in January 2013were down by 53% when compared to the sameperiod in 2012 according to the Land Registry.However, the January 2012 figures are presumedto be the result of a rush to deposit contractsof sale at the Land Registry which followed thereduction in Property Transfer Fees. Despite thesefigures, there are signs that certain parts of themarket are on the brink of a resurgence, at leastin relation to units with special characteristics likethose around the Limassol marina and surroundssome of the newer golf resorts.The Cypriot residency scheme was introduced bythe government in 2012 in order to attractinvestors from Russia and China. This schemeenables investors from outside the EuropeanUnion to obtain permanent residence in Cyprus ifthey spend at least EUR300,000 on a property. Inorder to be eligible the investors must have aclean criminal record, be in good financialstanding and agree to deposit EUR30,000 for aminimum of three years in a local bank account.The scheme was introduced in order toreinvigorate the Cypriot property market,following a trend which has been set by Irelandand Portugal which offered similar residencyschemes to foreigners. Due to the fact that thescheme has had some notable success, the lawwas further amended in December 2012 in orderto further encourage foreign investment inproperty.Do you foresee any changes in legislation for thereal estate sector?Although a number of bills have already beenpassed, in order to secure a bailout from theEuropean Stability Mechanism, the newly electedGovernment (which came to power on 1 March2013) may need to take new measures as a resultof negotiations with Troika. Such measure couldhave a significant impact on the commercialreal estate market, particularly those proposalsrelating to taxation of immovable property (andthe method of its calculation), the method andspeed with which immovable property may berepossessed against non-performing loans andthe possible implementation of a property priceindex establishing average property marketvaluation per square meter.Is there anything else you would like to add?Despite its current problems, Cyprus remains afavourable destination for investment in realestate. The existence of a good legal framework(that is consistently improved) coupled with thelocation and climatic conditions of the island isattractive to both EU and Non-EU businesses andindividuals. LMContact Details:Deborah PrimettGeorge Z. Georgiou & Associates LLC1 Eras Street, Nicosia, 1060, CyprusTel: +357 22 763340www.lawyer-monthly.com

APRIL 2013A LEGALLegalGUIDEFocusTO133INVESTING IN MEXICOwww.lawyer-monthly.com

134A Legal Guide to...APRIL 2013Investing InMEXICOMexico is doing pretty well at the moment. Since recovering from the recession that blighted so many,this vast country has experienced rapid growth and a rise in foreign investment. To find out why and tolook at the advantages of investing in Mexico, Lawyer Monthly speaks to Claudio Rodríguez-Galán andSergio Férez-Bitar from Capín, Calderón, Ramírez y Gutiérrez-Azpe, S.C.What are the most complex legal issues thatforeign investors should be aware of whenlooking to invest in Mexico?Although Mexico has a highly diversified freemarket economy, tax and labor laws can poseparticular challenges to foreign investors ifoverlooked. Mexico is one of the few countries leftin Latin America that still include inflation in itsincome tax accounting, and includes a corporateincome tax that was temporarily increased from 28to 30 percent. Mexican taxation includes anincome, corporate, and value-added tax (now at16 percent), exempting food and medicines. TheMexican laws remain tied to having a businessincorporated or managed in Mexico, or receivingincome stemming from Mexico. Income taxes canbe withheld for a service provided, leasing or sellingreal estate, selling shares, distributing dividends ofcompanies resident in Mexico, interest on capitalinvested in Mexico, proceeds from financial leases,royalty payments in technology transfers, andconstruction services provided in Mexico, and canbe credited against a 17.5-percent flat-ratebusiness tax imposed on cash received frombusiness activities in Mexico, where royalties andinterest are non-deductible. However, it isimportant for investors to know that the income taxcan be credited against the flat-rate business tax,but only before the flat-rate business tax is paid.What is the current state of the Mexican M&Amarket?Overall, Mexico´s M&A is slow but steady. Dueto the global economic downturn and domesticfactors, during 2011 the Mexican market's dealvolume contracted, and remains well below the2006 to 2008 period, but picked up in 2012. Thelargest M&A deal (and the largest merger inMexico) was America Movil’s purchase of Telefonosde Mexico. America Movil paid $62.5 billion pesosto the shareholders of Telmex who participated inthe offer. Most recently, following a trend in beeracquisitions dating back to Heineken´s acquisitionof FEMSA for $8.1 billion in 2010, Anheuser-BuschInBev has moved on February 14 of this year torescue its $20.1 billion proposed takeover of GrupoModelo of Mexico. It made concessions by sellingthe rights of Corona and other Grupo Modelobrands in the US to Constellation Brands for $2.9billion, and selling a brewery near the border.To what would you attribute Mexico’s rapidgrowth in recent years?As an emerging economy, Mexico is leading in theglobal standardization of its import classificationsystem “Harmonized System for MerchandiseClassification and Codification.” The NorthAmerican Free Trade Agreement, NAFTA, signed byMexico in 1994, fully went into effect in 2009,strengthening Mexico´s trade relations with itsbiggest trade partner. Mexico is the biggestexporter of manufactured goods in Latin America,having increased by 475 percent since 1994. It hasalso opened up to international investment. Foreigninvestors can also hold up to 100 percent of capitalstock of Mexican companies and partnerships.Particularly in shipping, insurance, secondarypetrochemical, ground transportation, mining,petroleum pipelines, aquaculture and auto parts,foreign companies can own up to 100 percentunder the Foreign Investment Law. Even thoughmuch of Mexico´s energy sector is publicly-owned,there are increasing opportunities in gas (transport,storage and distribution) and renewable industries.Recently, Mexico´s auto and mining industries havebeen especially luring to foreign investors. In termsof the auto industry, Mexico already laid thegroundwork for opening up to international tradewith its 2004 phasing out of import restrictions ofautomobiles. U.S. companies are expanding inMexico and a young tech industry is booming inMonterrey. Although there are still major problemswith governance in Mexico, investors are seeingmore political stability. The Federal Reserve’sdecision to keep interest rates low until 2014 haslikewise contributed to a friendly investmentclimate by strengthening the peso and keeping astable exchange rate, which is the outcome of taxand monetary policies, which have driven downinterest rates and have kept inflation in single-digitlevels.What, in your opinion, are the incentives andrestrictions of foreign investment in Mexico.As already mentioned, the incentives have beenthe opening up of Mexican markets to internationalinvestment by decreasing restrictions on directforeign investment reforming the automobile andtelecommunications sectors. Mexico, a member ofG20, hosted the summit in 2003. The organization´smain objectives, drafted at a summit in Washington,D.C. at the onset of the global recession of 2008,are: restoring global growth, strengthening theinternational financial system and reforminginternational financial institutions. Mexico signedthe GATT in 1988, committing itself to reducing tradetariffs, eliminating import permits, and generallyeliminating barriers to global trade. GATT laid thefoundations for the formation of the World TradeOrganization in 1995, of which Mexico was afounding member. By participating in the globalcommunity through the WTO, NAFTA, OECD, APECand other international organizations, the world hasrecognized Mexico's commitment to free marketprinciples.Restrictions to foreign investment still exist inMexico, particularly in relation to the oil industry(downstream), which belongs to a state-ownedand operated enterprise Pemex, or PetroleosMexicanos. The Mexican Constitution protectsPemex as a publicly-owned enterprise andonly allows private investment in secondarypetrochemical industries. However, PRI, as rulingparty, now back in power under President EnriquePeña Nieto, favors loosening restriction on privateinvestment in the oil industry. The party is expectedto modify its political statutes to allow privateinvestment in Pemex. LMContact:Claudio Rodríguez-Galán / Sergio Férez-BitarCapín, Calderón, Ramírez y Gutiérrez-Azpe, S.C.Galileo No. 55 1er pisoCol. Polanco11560 México, DF.Tel. 52 (55) 52 80 91 93Fax. 52 (55) 52 81 08 51Email: claudio.rodriguez@ccrga.comsergio.ferez@ccrga.comwww.lawyer-monthly.com

Mergers & Acquisitions4-Text ...............................................................................137Abuja Electricity Distribution Company......................137AES ..................................................................................138Aviva ...............................................................................139B&L Real Estate ..............................................................139Cobbetts ........................................................................141Copano Energy .............................................................141Enviro-Hub Holdings ......................................................143EQT IV..............................................................................143Gamesman Limited ......................................................144GMR ................................................................................145HEROtsc ..........................................................................146Kautex Maschinenbau .................................................146Key Trust ..........................................................................147Latexx Partners...............................................................148Manganese Bronze .......................................................148Ogone ............................................................................149Parlophone Label Group..............................................150Funds & InvestmentsAdyoulike ........................................................................138Bumi Plc ...........................................................................140Crystalsol .........................................................................142Cultiba .............................................................................142FWU Group......................................................................144GeoPark ..........................................................................145Labco ..............................................................................147MCE Finance...................................................................149Pubeco............................................................................150Wpd’s Butendiek Offshore Wind Farm.........................151Joint VenturesBurger King......................................................................140TRANSACTIONS

136TransactionsAPRIL 2013What’s happeningin the world ofM&As and IPOs?As we head into the second quarter of the year, as usualwe take a look at what has been happening in the world’sM&A, IPO and fund markets.Thomson Reuters Mid-Market and Small-Cap M&A Reviews for Q1 2013 shows some interestingresults for the first quarter of the year. It states: “Worldwide announced Mid-Market M&A dealsvalued up to $500 million (including undisclosed value deals) totalled US$152.5 billion in thefirst quarter of 2013 – a 4.6% decrease from the same period in 2012.” The report states thatthe Americas region led the market with ‘with US$56.5 billion of announced deal activity – a37% market share, marginally bigger than the 36.8% market share produced in the full year2012’.The deals reported in this month’s issue of Lawyer Monthly are varied and once again spana wide spectrum in terms of both industry and value. Featured deals this month includeWarner Music Group’s acquisition of Parlophone Label Group from Universal Music Groupand Burger King’s joint venture agreement with Beboca.As we head into Q2 2013, it will be interesting to watch and wait to see how the year willprogress for this type of activity across the world. LMwww.lawyer-monthly.com

APRIL 2013Transactions 137ZURMONT MADISON'S CLSCOMMUNICATIONS COMPLETESTHE ACQUISITION OF 4-TEXTCLS Communication, which is majority-owned by Zurmont Madison PrivateEquity L.P., acquired 4-Text Software-Lokalisierung und technischeÜbersetzungen GmbH, a Berlin-based quality provider of technicaldocumentation, as of 1 January 2013. The acquisition is an important step inimplementing the international growth strategy of CLS Communication. Theparties have agreed not to disclose the purchase price.!The technology platform developed by 4-Text is tailored to the requirementsof industrial clients and to technical documentation. While CLS and 4-Texthave comparable business models, the two companies are an excellentcomplement to one another in terms of client base, industry focus andgeographical area of activity. 4-Text, which has more than 60 highly qualifiedemployees, will now operate in the market under the new name CLS 4-TextGmbH. 4-TextZurmont Madison has acquired a majority shareholding in CLSCommunication in 2009 in the context of a partial owner buyout andenabled the financing of two add-on acquisitions in Denmark and Canada.This further step in the realisation of its international growth strategy willsignificantly strengthen CLS’ presence in Germany and technical translationsmarket. This latest transaction was financed in part with equity provided byZurmont Madison and bank finance.! Andreas Ziegler, Partner at Zurmont Madison, said: “We are pleased to notethat CLS Communication has arrived in the global Top 10 of the largestlanguage services providers with this acquisition.” LMCOPPERBELT ENERGY CORPORATIONPLC ACQUIRES STAKE IN ABUJAELECTRICITY DISTRIBUTION COMPANYKANN Utility Company Limited, a 50% joint venture of the Copperbelt EnergyCorporation PLC is set to acquire a 60% interest in the Abuja ElectricityDistribution Company.The agreement was signed in the Nigerian capital, Abuja, on Thursday 21stFebruary, between KANN Utility Company Limited, the Bureau of PublicEnterprises and the Ministry of Finance of Nigeria.The consideration payable for the 60% interest in AEDC is US$164 million, outof which 25% which is about US$41 million is payable within 15 days of signingthe Agreement, with the balance of 75% which is US$123 million payableafter six months.The financing plan for the acquisition has been developed with StandardBank of South Africa, and it is intended to finance the acquisition with acombination of debt and equity.The transaction is expected to be finalised and shares transferred when thefinal payment is made which is anticipated to be around August 2013.Detail Commercial Solicitors acted as local legal counsel to CopperbeltEnergy Corporation, led by Dolapo Kukoyi, Partner. Dolapo commented:“The success or failure of Nigeria’s ongoing power sector reforms areintricately linked with the success of the ongoing privatisation, a lot of theongoing industry reforms will be practically tested in the next 6 months. Whatis apparent however is the Federal Government’s commitment to thesuccess of the process.” LMAbuja Electricity Distribution Companywww.lawyer-monthly.com

138TransactionsAPRIL 2013Adyoulike "!!BANEXI VENTURES PARTNERSBACKS ADYOULIKEAdyoulike recently unveiled the concept of « Native Advertising » in Europeand announced the raising a Series A of €1.2 million with Banexi VenturesPartners.The French Ad Network Adyoulike, specialized in innovative and interactiveformats, has performed beyond expectations in 2012, delivering more than 30million display and video Advertising Captchas for hundreds of Premiumwebsites, generating a turnover of nearly € 1 million.Due to success of these Advertising Captchas, Adyoulike closed € 1.2 million inSeries-A funding with Banexi Ventures Partners, in order to support thecompany's growth in France and Europe.The Ad Network is now upgrading its offer, bringing to Europe a brand newadvertising concept coming straight from the US: Native Advertising. Thisadvertising revolution delivers interactivity and efficiency to brands thanks toan obvious solution: integrating the ad directly into the editorial content,making it unique and native advertising experience that is a 100% userinitiated, on exclusive spaces, for quality brand content. Thanks to thisinnovative and interactive approach, Adyoulike offers brands a place for userengagement and sharing, providing higher results that other advertisingformats.Julien Verdier, CEO of Adyoulike said: “We are eager to evangelize theconcept of Native Advertising because it is the clear continuity of AdvertisingCaptcha. It perfectly fits market expectations, in terms of both efficiency andinnovation. We are happy to rely on Banexi Ventures Partners for experienceand support.”Philippe Herbert, Banexi Ventures Partners said: “Adyoulike's Native Advertisingstrategic positioning perfectly fits our search for future leaders of interactiveadvertising bringing creativity, interactivity respecting the content for the users.”D’Alverny Avocats partner Guillaume Schmitt and associate VéroniqueMervoyer represented Adyoulike in its €1.2 million Series-A funding. LMAESAES AGREES TO SELL ITS UKRAINE ASSETSThe AES Corporation has agreed to sell its two power distribution businesses inUkraine to VS Energy International.Under the agreement, AES will sell its 89.12 percent equity interest in AESKyivoblenergo, which serves 881,000 customers in the Kiev region, and its 84.56percent equity interest in AES Rivneoblenergo, which serves 412,000 customersin the Rivne region.AES Executive Vice President and Chief Financial Officer, Tom O’Flynn, said:“This transaction represents another step in the process to simply our structureso we can focus on creating value in markets where we have a compellingcompetitive advantage.”The transaction is expected to close by mid-2013 and is subject to localregulatory approval.Both AES Kyivoblenergo and AES Rivneoblenergo will continue operations,supplying energy to customers and working constructively with all stakeholders.AES plans to provide additional detail on the transaction in its fourth quarter2012 earnings call materials and 10-K filing.Chadbourne & Parke LLP acted as legal counsel to the AES Corporation in thistransaction, led by London partner Charez Golvala and Kyiv managing partnerJaroslawa Johnson, with key input from a talented team of Kyiv and Londonassociates: Anna Putintseva, Andriy Kirmach, Tetyana Dovgan, MarynaGolovko, Oleksandra Soloviova, Anna Iakubenko, Alexandra Neovius and PaulWhite.The AES Corporation (NYSE: AES) is a Fortune 200 global power company. Weprovide affordable, sustainable energy to 27 countries through our diverseportfolio of distribution businesses as well as thermal and renewable generationfacilities. Our workforce of 27,000 people is committed to operationalexcellence and meeting the world's changing power needs. Our 2011revenues were $17 billion and we own and manage $45 billion in total assets.To learn more, please visit www.aes.com. LMwww.lawyer-monthly.com

APRIL 2013Transactions 139AVIVA SELLS AVIVA RUSSIA TOBLAGOSOSTOYANIEAviva plc recently sold Aviva Russia to Blagosostoyanie, a non-state pensionfund in Russia, for a consideration of €35 million. The consideration is payablein cash and represents a modest premium to IFRS book value. This transactionis consistent with Aviva’s strategy to narrow the Group’s focus to businessesand markets where Aviva has leadership positions.The transaction, which is subject to the approval of the Federal AntimonopolyService of the Russian Federation, is expected to complete in the first half of2013.Mark Wilson, Chief Executive Officer of Aviva plc, said: “We are pleased tohave agreed the sale of our life and pensions operations in Russia to Blagosostoyanie.This transaction builds on the progress we have made to narrowAviva’s focus. LMAvivaGSK STOCKMANN + KOLLEGEN ADVISEDB&L REAL ESTATE AND CENTRUM ONTHE SALE OF A RETAIL COMPLEX INBERLIN-MITTEWith legal support of the Hamburg Real Estate transaction team lead by Dr. MichaelJani a joint venture company represented by the B&L Real Estate GmbH, Hamburg,sold the commercial building complex Karl-Marx-Straße 92-98, a former Hertiedepartment store, after complete refurbishment and construction of a new carpark with 402 parking spaces to aik Immobilien-Kapital-anlagegesellschaft mbHin Düsseldorf, who had acquired this object for the open-ended real estate fund“apoReal International“.The property which is completely let amongst others to C&A, H&M, Rewe, Aldi, afitness center and – extending to three floors – the selfstorage company Lagerboxprovides rental space of approximately 13.000m² and represent the first finalizedproject of the urban redevelopment district “Neukölln-Karl-Marx-Straße/Sonnenallee“.Thus, in addition to transactional services GSK’s activities also included advice onthe agreements concerning the release from the redevelopment area to benegotiated with the City of Berlin.Advisors to B&L Real Estate GmbH:GSK Stockmann + Kollegen: Dr. Michael Jani, lead (Real Estate Hamburg);Associates: Dr. Thilo Franke, Felix M. Riethmüller (both Real Estate Hamburg) as wellas Dr. Frank-Florian Seifert (Public Law, Berlin).Advisors to aik:Hogan Lovells: Sabine Reimann (Real Estate, Düsseldorf)GSK Stockmann + Kollegen is one of Germany's leading corporate and real estatelaw firms. GSK also focuses on banking/finance and public law. It was founded in1997 by lawyers from renowned business law firms. Today, more than 135 lawyersand tax advisors are at our clients' disposal at our offices in Berlin, Duesseldorf,Frankfurt, Hamburg, Heidelberg, Munich, Stuttgart, Brussels and in Singapore. LMB&L Real Estatewww.lawyer-monthly.com

140TransactionsAPRIL 2013RECAPITAL GROUP DISPOSAL OFITS ENTIRE SHAREHOLDING INBUMI PLCHFW acted for Recapital Group in relation to the disposal of its entireshareholding (24.2m shares with a market value of over £90m) in Bumi plc,driven by a December 2012 UK Takeover Panel ruling that certain Bumi plcshareholders must divest themselves of their shares.Bumi PlcThe transaction involved three separate disposals of shares to investors. Keyto the sale were HFW's submissions to and meetings with the UK TakeoverPanel, and obtaining its consent to each of the individual sales. HFW workedwith the many interests involved in Bumi plc in securing Takeover Panelapproval.The deal involved an integrated transactional team drawn from Singaporeand London offices: Brian Gordon (Singapore), James Lewis (London), NickHutton (London), supported by Robert Finney (London), Steven Paull(London), drawing on corporate, finance, regulatory, and energy and naturalresources expertise.Thomas W. Shreve, Chief Executive Officer of Recapital Investment Group,said: "The dedication of the team was impressive, the expertise andexperience made available to us were consistently excellent, and the use oflawyers in different time zones to keep the process moving forward 24 hoursa day was nicely done". LMBURGER KING IN JOINT VENTUREAGREEMENT WITH BEBOCABurger King Worldwide, Inc. has entered into a multi-country, Master FranchiseJoint Venture Agreement with BEBOCA LTD in Central America. Thismulti-country joint venture is a first of its kind for the BURGER KING® brandworldwide.Burger KingUnder the terms of the agreement, BKW and BEBOCA LTD, a long-standingBURGER KING® franchisee, which currently owns and operates 48 restaurantsin Costa Rica and Panama, will establish a new entity named BK CentroAmerica. The new joint venture will acquire the master franchise rights for the178 restaurants in Costa Rica, El Salvador, Guatemala, Honduras, Nicaraguaand Panama and has committed to manage the aggressive developmentof the BURGER KING® brand in these countries. The company will provide operations,supply chain, procurement and marketing for franchisees in CentralAmerica and will have new development exclusivity in these markets.Pacheco Coto was involved in this transaction led by Freddy Fachler, Partnerand Tomas Nassar, Associate. They commented: “Our client is a corporationwith a participation in a foreign entity which acquired a going-concern inCosta Rica, following a special procedure mandated by Costa Rican law.Our expertise and exposure to international transactions enabled us to act asliaison between the client’s counsel in the United States and the counterpart’slocal counsel, at the same time conveying to the client the nature andcharacteristics of this special procedure, understanding the concerns of theclient and ensuring that they were properly addressed in the transactiondocuments.” LMwww.lawyer-monthly.com

APRIL 2013Transactions 141COBBETTS TO ENTERADMINISTRATIONCobbetts recently appointed KPMG as administrators in February followingpoorer than expected trading in November and December last year, whichcaused the firm to review its financial position and subsequently obtain aninterim statutory moratorium to enable a sale of the business and its assets.National business law firm, DWF, will now acquire Cobbetts.The Cobbetts team comprises a total of 491 people, of which 72 are partners.Based across offices in Manchester, Leeds, Birmingham and London, theywill migrate across to existing DWF office space within the next few weeks tosupport the integration with their respective counterparts. As part of the deal,DWF will honour all training contracts which includes those already in place,as well as those contracts entered into with trainees who are yet to start."Both firms agreed that this was the best route forward and so the processwas a smooth one, with the two parties working towards the same outcome,"said Managing Partner and CEO of DWF, Andrew Leaitherland. Hecontinued: "This is the latest milestone in what is already proving to be apositive year for DWF and one that continues along our clearly defined planof strategic growth.”Mark Firmin, Brian Green and Howard Smith of KPMG's restructuring practiceare the joint administrators for Cobbetts. Mark Firmin, UK regions head ofrestructuring at KPMG, said: "In the current economic climate we aredelighted to have brokered a deal that saves more than 400 jobs, Wehave moved swiftly, working in collaboration with a number of stakeholdersincluding the Solicitors Regulation Authority. This is a strong result and animportant step forward for DWF in the market." LMCobbettsKINDER MORGAN ENERGYPARTNERS TO ACQUIRECOPANO ENERGYKinder Morgan Energy Partners, L.P. and Copano Energy, L.L.C. recentlyannounced a definitive agreement to acquire all of Copano’s outstandingunits for a total purchase price of approximately $5 billion, including theassumption of debt. The transaction, which has been approved by the boardsof directors of both companies, will be a 100 percent unit for unit transactionwith an exchange ratio of .4563 KMP units per Copano unit. The considerationto be received by Copano unitholders is valued at $40.91 per Copanocommon unit based on KMP’s closing price as of Jan. 29, 2013, representinga 23.5 percent premium to Copano’s close on Jan. 29, 2013. The transaction,which is expected to close in the third quarter of 2013, is subject to customaryclosing conditions, including regulatory approval and a vote of the Copanounitholders. TPG, Copano’s largest unitholder (owning over 14 percent of itsoutstanding equity), has agreed to support the transaction.“We are delighted to have reached this agreement with Copano, acompany that we know very well and have partnered with through theyears, as this transaction will enable us to significantly expand our midstreamservices footprint,” said KMP Chairman and CEO Richard D. Kinder. “As aresult of this acquisition, we will be able to pursue incremental developmentin the Eagle Ford Shale play in south Texas, gain entry into the Barnett ShaleCombo in north Texas and the Mississippi Lime and Woodford Shales inOklahoma. We continue to be bullish on the domestic shale plays andbelieve they will drive substantial future growth at KMP.” LMCopano Energywww.lawyer-monthly.com

142TransactionsAPRIL 2013CRYSTALSOL RAISES €8M FROMCONOR VP, ARAX CAPITAL ANDOTHERSCrystalsolcrystalsol, a Vienna (Austria) and Tallinn (Estonia) based company developingan entirely new type of flexible photovoltaic film announced the closing of aSeries A round financing of EUR 8 million led by Conor Venture Partners. Whilemaintaining existing investors, crystalsol received capital from Arax CapitalPartners, an Austrian investor with focus on innovative and growth-orientedAustrian high-tech companies. Public funds also contribute significantly to thisround.Jari Mieskonen, Managing Partner of Conor says, “As lead investors intocrystalsol we have managed to complete a substantial financing round tocontinue the development of crystalsol’s disruptive technology. Key focusis on ramping-up a low investment roll-to-roll pilot production line for oursemi- finished photovoltaic film. This semi-finished product will allow trueintegration into building elements of different shapes and sizes and will therebyeliminate up to one hundred per cent of the sealing cost.”Co-founder and COO of crystalsol, Thomas Badegruber, highlights, “We havemade excellent progress and are working on unique semi-transparent andcolored films to better integrate photovoltaic elements into facades androof-tops. Our flexible production process enables us to easily tailor the filmaccording to customer specifications of the Building Integrated Photovoltaicmarket.”The unique advantages of crystalsol’s photovoltaic film already attractedpartners like EDP Innovation. The company, belonging to the Portuguese utilitygroup EDP, signed a collaboration agreement to get preferred access to thefirst 200 MW of crystalsol’s product. LMCULTIBA $350M EQUITYOFFERINGCultiba shares closed at 35 pesos recently, down 11.39 percent from a previouclose of 39.50 pesos and in line with the secondary offering price of 35 pesosa share.That offering priced at the lowest end of a range set at between 35 and 40pesos, according to documents filed with Mexico's stock exchange.CultibaBecause the offering attracted a price at the low end of the range publishedin the prospectus, it put pressure on Thursday's share price, said analyst MarcoMontanez at brokerage Vector Casa de Bolsa.Other market officials noted that Cultiba, previously known as Geupec, willlikely face stiff competition from its Coke-bottling rivals which have seen awave of consolidation in the last two years.Mexico's Coca-Cola Femsa, the biggest Coke bottler in Latin America, hasbought four local bottlers in the last 18 months.Cultiba, which raised $310 million in its offering, exclusively distributes PepsiCoInc brand drinks in Mexico, in addition to producing and selling its own andthird-party brand beverages. Cultiba also produces and sells sugar.The capital raise was the first major deal for Mexico's stock exchange this year.Stock exchange president Luis Tellez said he expects at least five initial publicofferings during the rest of 2013. LMwww.lawyer-monthly.com

APRIL 2013Transactions 143CEREBRA INTEGRATED TECHNOLOGIESACQUIRES SUBSIDIARY OFENVIRO-HUB HOLDINGS Mumbai based IT solutions provider Cerebra Integrated Technologies Ltd hassigned a Share Purchase Agreement (SPA) with Singapore based Enviro-HubHoldings Limited (SGX Listed) to acquire 100% of its wholly owned subsidiaryCimelia Resource Recovery Pte Ltd, Singapore. Cerebra will be investingapproximately $ 20 Million (approx Rs. 110 crs) for the proposed acquisition.With this deal, Cerebra will become one of the first Global Indian MNCs inthe area of Waste arising from Electronics & Electrical Equipment (WEEE).Globally, this industry is estimated to be around $ 20 billion currently. Indiagenerates 2.5 million tonnes of waste a year. Bangalore generates approx75,000 tonnes of E-Waste annually and Mumbai generates over 82,000tonnes of E-Waste annually. The Government of India has also made itcompulsory to set up a collection and disposal mechanism for E-Waste. Theimplementation of this law by the government would be good for both theenvironment and the E-Waste recycling industry.Through this deal, Cerebra proposes to acquire the technology, know-howand global expertise that Cimelia has garnered over about nine years in theElectronic waste (E-Waste) management industry.Dacheng Wong Alliance LLP advised Cerebra Integrated TechnologiesLimited on this transaction, led by Managing Principal Aloysius Wee, co-headSouth Asia and India and Yang Yen Thaw and Senior Associate – RichaChaturvedi. LMEnviro-Hub HoldingsEQT IV SELLS BTX GROUP TO SUNEUROPEAN PARTNERS’ AFFILIATEEQT IV has agreed with an affiliate of Sun European Partners, LLP (“SunEuropean Partners”), the European advisor to Sun Capital Partners, Inc., to sellBTX Group (“the Company” or “BTX”).BTX is a wholesaler comprised of five brands: Brandtex, Jensen Women,Signature, Imitz and Ciso, all of which have their own identity, addressingvarious sub-segments of the mature womenswear market. During EQT IV’sownership period, BTX has been through a significant transformation. Beinginitially a traditional manufacturing and wholesale company, the Companyis today a focused clothing business, targeting the classic mature woman,and having a clear retail-focus, including more than 120 shop-in-shopssolutions with its broad network of retail partners.While under EQT IV’s ownership, the Company has taken important steps tostreamline its operations and create a coherent portfolio of brands,additional potential exists for BTX to further expand its footprint beyond itscore Scandinavian market.EQT IV“The management team and the employees have done a tremendous job.BTX has continued to strengthen its position in its core markets and is todaywell positioned for growth”, says Åsa Riisberg, partner at EQT Partners AB,investment advisor to EQT IV.“BTX is today a focused niche player in the mature women’s apparelsegment, where the group enjoys a strong market position. We look forwardto continuing the Company’s ongoing efforts to optimize its offering underthe new ownership of Sun European Partners and benefit from theiroperational resources”, says Jesper Roe, CEO of BTX Group.” LMwww.lawyer-monthly.com

144TransactionsAPRIL 2013FWU GroupFWU GROUP ISSUANCE OF US$55MILLION ISLAMIC NOTESVinson & Elkins LLP (V&E) advised the FWU Group in connection with theissuance of US$55 million Islamic notes (Sukuk Al-Ijarah). The FWU Groupintends to use the proceeds of issuance to expand its global presence. This isthe first ever Sukuk by a German corporate and the first globally to utilizeintellectual property rights (in this case a software program) as the underlyingasset which makes this transaction ground-breaking in a number of ways. Thenotes were issued through a Luxembourg SPV incorporated using a DutchStichting (foundation) structure – a structure first used in connection with thequasi-sovereign Sukuk issuance by the German state of Saxony-Anhalt in2005.Vinson & Elkins LLP (V&E) acted as international counsel, Loyens & Loeffadvised on Luxembourg law and international tax structuring for the issuingspecial purpose vehicle (SPV), and RölfsPartner advised on financial and taxaspects of the transaction.The deal was recently named “Europe Deal of the Year” and “Ijarah Deal ofthe Year” at the Islamic Finance news Awards, 2012.Headquartered in Munich, the FWU Group is a leading global provider ofinsurance and Takaful (Shari’a-compliant insurance) solutions. The FWU Groupoffers its products in parts of Europe, the Middle East and Asia.V&E Partner Ayman H. A. Khaleq led the team which included associatesBarry Cosgrave and Amanjit Fagura. LMGamesman LimitedSUCCESSFUL SALE OF THE ENTIREISSUED SHARE CAPITAL OFGAMESMAN LIMITEDEsterline recently acquired the entire issued share capital of GamesmanLimited, a market leading business in the design and manufacture of productsfor the international gaming industry.With manufacturing facilities in the UK, China and USA covering everythingfrom plastic injection mouldings to in-house PCB designer manufacture,Gamesman is a leading supplier to the burgeoning global gaming marketand has achieved remarkable rates of growth over the last five years. EsterlineTechnologies Inc is a New York Stock Exchange registered $2 billion companywhose main market is in the US defence industry.The acquisition of Gamesman Ltd provided further opportunity for Esterline topursue its stated intentions of diversifying its business into the leisure sectors andto expand its non-US based manufacturing and customer base. Denis Staver,Platform President for Esterline Interface Technologies said: "Gamesmanexpands Esterline's capabilities and market reach with a strong leadershipteam, great products and an important portfolio of customers in key markets."AHV Associates LLP was the corporate finance advisor to Gamesman Ltd andits shareholders. Andrew Harrington, co-founder of AHV Associates LLP, wholed the transaction, said: “We have been working with Gamesman and itsshareholders since the initial approach by Esterline in early 2011. We assistedMark Smith, CEO and majority shareholder of Gamesman, in the initialdiscussions relating to valuation and structure and in the detailed negotiationswhich led to the completion of the transaction in February 2013.” LMwww.lawyer-monthly.com

APRIL 2013Transactions 145GEOPARK $300 MILLION NOTEPLACEMENTGeoPark Holdings Limited, the Latin American oil and gas explorer, operatorand consolidator with operations and production in Chile, Colombia andArgentina (AIM GPK), successfully placed US$300 million notes, offeredunderRule 144A and Regulation S exemptions of the U.S. Securities laws.The net proceeds of the notes will be used to finance the Company’sexpansion plans in the region and also to repay existing debt ofapproximately US$170 million, including the existing RegS Notes due 2015. Thetransaction extends GeoPark´s debt maturity significantly, allowing theCompany to allocate more resources to its investment programs in thefollowing years.Settlement of the transaction occurred on 11 February 2013.Commenting, James F. Park, Chief Executive Officer of GeoPark, said, "Weare pleased with thesuccess of this bond transaction and the strong interestshown by the international investmentcommunity and capital markets, whichresulted in a substantial over-subscription of the offering.We believe thistransaction demonstrates GeoPark’s foundation of stable production andcash flowgrowth and our continuing ability to access capital from diversifiedfunding sources – which is a key element of our dynamic growth plans. Wealso appreciate the important efforts and support of ourGeoPark team, allour advisors and counsels.” LMGeoParkMACQUARIE ACQUIRES 74% STAKEIN GMR JADCHERLA EXPRESSWAYSFROM GMR FOR £24.6MIn a significant move and in pursuit of the Asset Right and Asset Light Strategyrecently announced by the GMR Group, GMR Highways Ltd. signed adefinitive agreement with Macquarie SBI Infrastructure Investments Pte Ltdand SBI Macquarie Infrastructure Trust (‘Macquarie SBI’) to divest 74% stakein GMR Jadcherla Expressways Ltd (‘GJEL’), subject to customary closingconditions.GJEL is operating the Farukhnagar-Jadcherla highway in Andhra Pradesh,under a concession agreement signed with NHAI. The project commencedcommercial operations in February 2009. GMR Group will receiveconsideration of about Rs. 195 Cr immediately and about Rs.11 Cr on completionof certain conditions totalling to Rs. 206 Cr for the sale of 74% stake.The original invested capital for the corresponding 74% stake was aboutRs. 146 Cr.Macquarie SBI, which is one of the largest India focused infrastructure fundshas expanded its roads portfolio with this investment and has a well-diversifiedportfolio with assets in the telecom towers, airports, power, roads andrenewable energy sectors.Kotak Investment Banking was the exclusive financial advisor to GMRHighways Ltd for the transaction.Mr. Suresh Goyal, Chief Executive Officer of Macquarie SBI InfrastructureManagement Private Limited, the adviser to MSIF’s manager said: “Thistransaction, the seventh that MSIF has completed to date, demonstrates thesuccessful execution of MSIF’s investment strategy in the Indian infrastructuresector, including the roads sector. MSIF invests in a diverse range of assetsalongside leading Indian developers who have built high quality assets thatprovide attractive risk adjusted returns.” LM# # !!" & !!%'! ($! " #$! "# GMRwww.lawyer-monthly.com

146TransactionsAPRIL 2013NEW OWNERS PLAN FURTHERINVESTMENT IN UK EXPANSIONHEROtsc, one of the UK’s leading contact centre companies which employs over 6,000people across nine sites, has been acquired by Paris-headquartered Webhelp Group.Webhelp Group operates 24 contact centres in continental Europe and North Africa,has annual revenues of 220m Euros and employs 10,500 people. It is backed byLondon and Paris based Charterhouse Capital Partners, which acquired a majoritystake in the business in 2011.HEROtscHEROtsc, which changes its name to Webhelp TSC following the acquisition, gives theWebhelp Group a major presence in the UK for the first time and the capability toprovide English-language customer management to its international client base.The combined group will be one of the largest independently-owned customerexperience organisations in the world, with revenues in excess of 350m Euros, 33centres serving 25 clients and 16,500 employees globally.Webhelp TSC will retain its operational headquarters in Falkirk, Scotland, and continueto be run by its existing long-standing management team, led by Chief ExecutiveDavid Turner, Chief Financial Officer Dean Hartley and Chief Operating Officer AndyDoig.David Turner, Webhelp TSC Chief Executive, said: “This acquisition is excellent newsfor our people and customers. Webhelp is a dedicated customer relationshipmanagement organisation and is therefore totally supportive of our ambition toprovide customers with the very best multichannel experience. Our managementteams share an entrepreneurial drive to push the company forward and achieve newgrowth across all of our markets."Harper Macleod LLP advised the vendor group – HERO Group and themanagement team – on the sale of HEROtsc to the Webhelp. The firm's 13-strongteam advising on the sale was headed by Head of Corporate Donnie Munroand Associate James MacGregor. LMKautex Maschinenbau STEADFAST CAPITAL SELLSITS STAKE IN KAUTEXMASCHINENBAU TO CAPITONSteadfast Capital has sold its stake in Kautex Maschinenbau (Kautex) to fundsadvised by Capiton AG and the Kautex management for an undisclosedamount. The transaction resulted in an investment multiple of x3.6 net and anIRR of ca. 25% p.a.In April 2007 Steadfast Capital acquired its stake in Kautex from the Munichbased turnaround fund Adcuram AG. During the last six years Kautexsuccessfully expanded its position as global market leader for high-endextrusion blow molding machines. With a strong presence in fast growingeconomies, especially in Asia, the development of new application areasand new types of machinery, Kautex is not only able to demonstrate a strongfinancial performance but is also developing new growth markets.Adi Seffer, Partner at Heuking Kühn Lüer Wojtek, assisted Steadfast Capital aslead advisor in this deal together fellow partner, Pär Johansson. Klaus WeinandHärer (tax) and Bernd Weller (labor) and the firm’s China Desk, Mr. Dong werealso involved as respective specialist in their areaMr Seffer commented: “For the first time we conducted a secondary PEtransactionwhere finally the management team acquired more than 50% ofthe Company. A further specific was the M&A-Insurance coverage of mostof the Sellers guarantees.” LMwww.lawyer-monthly.com

APRIL 2013Transactions 147DUNEDIN'S HAWKSFORDACQUIRES KEY TRUSTJersey based trust company, Hawksford, has acquired trust and corporateservices provider, Key Trust. The acquisition forms a part of the company’sgrowth strategy and follows its recent expansion in Jersey, the Middle Eastand Switzerland.!" Baker & Partners carried out a client due diligence review on Key Trust forHawksford which involved reviewing a sample of Key Trust’s client files inorder to understand client backgrounds, the client risk rating process andcompliance with the AML/CFT regime in Jersey. The process involved areview of files and interviews with senior management. The objective was togain an understanding of the level of AML/CFT and associated regulatoryrisk attaching to the client base.Ed Shorrock, Director of Regulatory Services, led the Baker & Partners team.He commented: “Acquisitions of fiduciary services providers by private equityhouses are becoming increasingly common in the Channel Islands. Carryingout regulatory due diligence on the underlying client base as well as routinefinancial and legal due diligence is becoming an increasingly importantaspect of transactions of this nature.”A J Gallagher was also involved in the transaction. As professional insuranceadvisors to Hawksford since 2009, A J Gallagher was engaged by both partiesto provide a robust insurance solution covering any past and future liabilities.Led by Toby Shackcloth & Alex Phillips, Client Executives to Hawksford, andfaced with the challenge of sourcing insurance market capacity for run-offinsurance over and above the existing level of cover maintained by thevendor, and improving policy terms and conditions to eradicate potentialissues identified in an earlier due diligence exercise, Gallagher delivered asolution that allowed Hawksford to close the deal with confidence. LM " Key TrustLABCO S.A. €100.0 MILLIONHIGH-YIELD OFFERINGLabco S.A., a French société anonyme, made an offering of €100.0 millionin aggregate principal amount of senior secured notes due 2018. Thetransaction closed on February 13, 2013 and the net proceeds of the offeringwill be used to refinance certain indebtedness and for general corporatepurposes.The Labco group is one of the leading groups in the European clinicallaboratory services market. The Labco group offers various routine andspecialty tests used by medical professionals for patient diagnostic purposes,as well as for the monitoring and treatment of diseases.Landwell & Associés advised the group Labco in aspects of French lawduring this transaction. The issuance of a new round of funding high yield (€100m) was underwritten by Deutsche Bank, Barclays and Natixis. LM" Labco!www.lawyer-monthly.com

148TransactionsAPRIL 2013Latexx PartnersSEMPERIT AG HOLDING:SUCCESSFUL ACQUISITION –SEMPERIT HOLDS MORE THAN85% OF LATEXX PARTNERSemperit AG Holding announced recently that the offer period for alloutstanding shares and warrants of Latexx Partners Berhad closed. The offerwas made via Semperit Investments Asia Pte Ltd, a wholly-owned subsidiaryof Semperit.After the successful closure of the offer Semperit holds more than 85% ofLatexx Partners on a diluted basis of 274.7 million shares (post potential exerciseof all warrants) and more than 82% based on an undiluted basis of 222.7 millionshares.The publicly listed company Semperit AG Holding is a group operatinginternationally, which develops, produces and markets highly specialisedproducts made of rubber and plastics (examination andsurgical gloves, hydraulic and industrial hoses, conveyor belts, escalatorhandrails, building construction profiles, cable car rings and railwaysuperstructure products) in the Medical and Industrial Business Sectors. Theheadquarters of this well-established Austrian company, whose rootsdateback to 1824, are located in Vienna, whereas the global R&D centre isin Wimpassing, Lower Austria. Semperit employs a workforce of about 8,100people worldwide, of whom more than 5,600 work inAsia and more than 700work in Austria. The Group encompasses 21 production facilities as wellas numerous sales offices in Europe, Asia and the Americas. In 2011 the Groupgenerated revenue ofEUR 820 million and an EBIT of EUR 83 million. LMManganese BronzeGEELY GROUPACQUISITION OF THEBUSINESS AND PRINCIPLEASSETS OF MANGANESEBRONZEwww.lawyer-monthly.com

APRIL 2013Transactions 149MCE FINANCE (MELCO CROWNENTERTAINMENT) $1BN NOTESISSUANCE !#!( %#% % !%$$$& Melco Crown Entertainment Limited (6883.HK) (MPEL), a developer, ownerand, through its subsidiary Melco Crown Gaming (Macau) Limited, operatorof casino gaming and entertainment resort facilities currently focused on theMacau market, recently announced that its subsidiary, MCE Finance Limited("MCE Finance") priced its international offering of senior notes.MCE Finance is a wholly owned subsidiary of Melco Crown Entertainment.The offering consists of US$1,000 million aggregate principal amount of 5.00%senior notes due 2021. The notes were priced at 100.00% of par and MCEFinance intends to use the net proceeds from the offering (i) to repurchasein full MCE Finance's US$600 million 10.25% senior notes due 2018 issued onMay 17, 2010 and fund the related redemption costs, and (ii) the entireremainder of the net proceeds thereafter for the partial repayment of RMB2.3billion (equivalent to US$364.9 million) 3.75% bonds due 2013 issued by MelcoCrown Entertainment on May 9, 2011.The notes will be senior obligations of MCE Finance, rank equally with all ofMCE Finance's existing and future senior indebtedness, rank senior to allof MCE Finance's existing and future subordinated indebtedness and beeffectively subordinated to all of MCE Finance's existing and future securedindebtedness to the extent of the value of the assets securing such debt. Thenotes will be guaranteed by certain of MCE Finance's subsidiaries. MelcoCrown Entertainment will not be a guarantor for the notes. LM'$!#%! '$!#$%!&%$ &$%# ( #!&" !###) %#!&" MCE FinanceINGENICO TO ACQUIRE OGONEFROM SUMMIT PARTNERS FOR€360M#Ingenico, a leading worldwide provider of payment solutions, has reachedan agreement in principle with Summit Partners to acquire Ogone, theleading pan-European online payment services provider for an enterprisevalue of € 360 million."! This acquisition represents a key milestone in the execution of Ingenico’sstrategy of becoming the unique “one-stop-shop” provider coveringmulti-channel payment solutions: point-of-sale, online and mobile. Thecombination of Ingenico’s customer base and infrastructure with Ogone’splatform would offer an unrivalled ability to generate significant synergies interms of new upselling opportunities and offer optimization expected togenerate additional EBITDA in excess of €20m by 2015. With this acquisition,Ingenico would also further reinforce its presence in Transactions whileleveraging the attractive exposure to the online transactions growth.“The acquisition of Ogone is a key milestone in the execution of Groupstrategy offering unique synergies with Ingenico entities, notably easycashand ROAM”, said Philippe Lazare, Chief Executive Officer of Ingenico.“Combining Ogone leading position in the online space with our uniqueposition in the point-of-sale and mobile space will enable us to addressmulti-channel global payment solutions for both merchants and acquirers,first in Europe and then in high potential geographies. I am very proud of thisacquisition that will benefit our employees, customers and shareholders. Welook forward to working together.” OgoneErnst & Young Société d’Avocats advised on this transaction. LMwww.lawyer-monthly.com

150TransactionsAPRIL 2013Parlophone Label Group"! #%#'$ WARNER MUSIC GROUPACQUIRES PARLOPHONE LABELGROUPWarner Music Group Corp. (WMG), an Access Industries company, has signeda definitive agreement to acquire the Parlophone Label Group from UniversalMusic Group, a subsidiary of Vivendi, for £487 million (around $765 million) inan all-cash transaction.The Parlophone Label Group, formerly a part of EMI Music, includes a broadrange of some of the world’s best-known recordings and classic andcontemporary artists spanning a wide array of musical genres, as well as someof the industry's leading executive talent.Len Blavatnik, Chairman and founder of Access Industries, said, “This is a veryimportant milestone for Warner Music, reflecting our commitment to artistdevelopment by strengthening our worldwide roster, global footprint andexecutive talent.”Stephen Cooper, CEO of Warner Music Group, said: “Having the ParlophoneLabel Group become part of our family represents a unique opportunityfor us to join with legendary record labels and artists that are highlycomplementary to our existing organization from a creative, geographic andstrategic standpoint. We are committed to making this a great outcome forParlophone’s artists and employees, who will find in WMG a similar spirit andculture that is dedicated to providing the most supportive and innovativehome for recording artists. The continuation of the Parlophone legacy andbrand are central to the future success of this combination, and we are proudto have them join us.” LMPubecoPUBECO SECURES INVESTMENTFROM ISAIPubeco, who specialize in helping retailers digitalize all those annoying paperads and catalogs they send potential customers, has just announced thatthey raised 1.25 million euros from French VC ISAI (Blablacar, CommerceGuys, Shopmium, & more). Since its founding in 2008 by Romain Sarels andYannick Lalleau, Orchies-based (in Northern France) Pubeco has grownsteadily to reach a solid 700k consumer subscriptions and more than 100 retailoutlets. With the ISAI capital injection, they plan to accelerate their growth,double the size of their team, and triple their number of subscribers in 2 years.Having ISAI as an investor, who have done several investments in the socialshopping and shopping promo space, is definitely a big win Pubeco. Havingthe backing of a good VC that has experience in the sector will be a bigadvantage for them as they push to accelerate their growth. In addition, theirboard, which according to the Journal du Net comprises such notablemembers as Yves Peis (previous with Vivarte and PriceMinister), Frédéric Bartoli(founder of infobebes.com and previous director general of LagardereInteractive), Jacques Etienne de T’Serclaes (a previous retail sector partnerat PriceWaterHouseCoopers), and Arnaud Barey et Pierre Brisset, founders ofVoyagerMoinsCher, will continue to offer them invaluable connections andsector experience. However, the consumer promotion business is notoriouslya tough one (ask Groupon and LivingSocial about that one…yes, differentmodels, but still a similar objective).Aston Avocats were the lawyers for the founders and the company duringthis transaction, led by Olivier Sanviti, Private Equity Partner and Christelle LeNaour, Private Equity Associate. LMwww.lawyer-monthly.com

APRIL 2013Transactions 151BUTENDIEK OFFSHORE WINDFARM PROJECT FINANCINGThe implementation and realization of the Butendiek offshore wind farm isproceeding. Today, wpd group is announcing that the financing of theproject has been secured by signing the agreements for both equity anddebt project financing. The main components of the wind farm will beproduced during the course of 2013, and the offshore installation is scheduledto start in spring 2014.Butendiek is the third offshore wind project for which wpd has negotiated thesupply contracts and it is the second offshore wind farm where wpd takesresponsibility for the construction. For the first time, wpd will take over notonly the project management during the construction phase but also thetechnical and commercial management during the operational phase.White & Case advised the Bremen-based wpd group (developer /shareholder of the offshore wind project Butendiek) and the borrower, i.e.OWP Butendiek GmbH & Co. KG on the financing of the Butendiek offshorewind farm.The White & Case team was led by Florian Degenhardt and includedCounsel Dr. Beate Treibmann and Associate Veit Sahlfeld (all Project Finance,Hamburg).Florian commented: “The successful completion of this complex projectfinancing for our client after more than one year of preparation will stimulatefurther projects for the German energy turnaround“, says White & CasePartner Florian Degenhardt. White & Case has special expertise in the areaof renewable energies and has acted as legal advisor in a number of otherGerman offshore wind farm projects.” LM#"!wpd’s Butendiek Offshore Wind Farmwww.lawyer-monthly.com