EDITOR’S

4 Editor’s Note
ISSUE 64-15
Welcome to the latest edition of Lawyer
Monthly. As usual we have plenty of
news and features to bring you this
month, keeping you updated with all the legal
and corporate news stories from across the globe.
PUBLISHER
EDITOR’S NOTE
You cannot look at the news these days without reading something about
the ongoing migrant crisis that is affecting both Calais and Greece. As
well as being awful for the migrants themselves, forced to endure such
horrendous and dangerous journeys in an attempt to find a better life,
this crisis is having a disastrous effect on the tourism market. The popular
holiday destination, Kos, is experiencing an influx of refugees from troubled
and war torn countries such as Syria, Afghanistan and Iraq, and streets that
were once filled with honeymooning couples and holidaying families now
resemble refugee camps, lined with makeshift tents, rubbish and people.
It is clear to me that something needs to be done to resolve this situation
soon, whether that be amendments to immigration law or asylum laws,
before many more migrants die needlessly and these countries’ economies
are damaged beyond repair.
This month it was announced that the UK inflation rate has risen to 0.1%.
According to the Office for National Statistics, The Consumer Prices Index
(CPI) grew by 0.1% in the year to July 2015, up from 0.0% in the year to June
2015. It seems that a smaller fall in clothing prices on the month compared
with a year ago was the main contributor to the rise in inflation and falling
prices for food and non-alcoholic beverages partially offset the rise.
In-keeping with this positivity, it was also reported this month that within the
UK conveyancing markets, Q2 transactions have broken the post-recession
record as the top five conveyancers pull ahead of the competition.
According to the Conveyancing Market Tracker from Search Acumen,
the average conveyancing firm enjoyed an 8% year-on-year increase in
business during Q2. Volumes among the top five firms growing quickest of
all (10%), meaning conveyancers in this part of the market handled 220
more transactions on average than in Q2 2014. Total transactions reached
230,430 between April and June this year, up from 219,613 during Q2 2014
when the Mortgage Market Review (MMR) changes contributed to a
temporary slowdown of activity.
As usual, this month I am happy to be able to bring you several exclusive
interviews and features. We speak to international law firm WilmerHale
about the issues surrounding corporate crime and what course of action
businesses can take if they suspect corporate crime within their company.
We also speak exclusively to leading Italian law firm, Bonelli Erede, about
the impact of changing EU law on shareholder voting rights and the brand
new President of the American Bar Association, Paulette Brown, as she
begins her one year term.
I hope you enjoy this edition of Lawyer Monthly and I look forward to
bringing you more news and insight next month when we will be looking
at the options for US employers that wish to have foreign trainees, Funds,
Construction Disputes and our Europe Special Report.
Claire Middleton
Editor
108,229 net digital distribution
figure Audit undertaken May
2013
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ISSUE 64-15
Contents & Welcome
5
CONTENTS
10 WORLD REPORT
10. International News
16. Lawyer Moves
21 MY LEGAL LIFE
30
22. Hoda Barakat from Hoda Barakat Legal Consultancy
24. Maximilien Jazani, Managing Partner at Manswell Advocates
30 LEAD ARTICLES
30. Corporate Crime – How to identify it and what to do when you do
Christopher David Counsel at WilmerHale
32. Italian Increased Voting Rights Mechanism
Gianfranco Veneziano, Partner at BonelliErede
34. New ABA President to Focus on Diversity, Inclusion in justice System
Paulette Brown, American Bar Association
38
37 INTERNATIONAL LEGAL ROUNDTABLE
38. Construction and Infrastructure
43
EXPERT INSIGHT INTO…
44. Bankruptcy & Insolvency
45. Commercial Litigation
46. Patents
48. Intellectual Property
51
SPECIALIST ADVOCATE
52. Construction Disputes
54. Media, Entertainment and Sports Law
54
57
LEGAL FOCUS
59. Introduction
60. Agriculture
62. Commercial Law
63. Electronic Discovery
71. Notary Services
72. Product Liability
74. Professional Negligence
79
TRANSACTIONS
79. What’s happening in the world of M&As & IPOs?
60
91
LAWYER LIFE
92. Sofitel Paris Le Faubourg
www.lawyer-monthly.com

12 World Report - UK & Ireland
ISSUE 64-15
Vincents joins national Legal Aid protest
Lancashire’s Vincents Solicitors
is to boycott Crown Court Legal
Aid work as part of a national
protest against government
cuts. The firm which has one of
the county’s largest criminal
practices, is backing the stance
of other firms across the UK in
aiming to highlight the chaos
further cutbacks could cause.
Government investment in Legal
Aid provision has seen the
funding, which is provided to
people who cannot afford their
own solicitor, cut twice in the last
15 months. The latest 8.75 per
cent cut on July 1 takes reductions
over the last 20 years to 27
per cent.
There are fears that people accused
of a crime could be left
without adequate representation,
as smaller firms would
no longer be able to afford to
undertake Legal Aid work and
larger firms may struggle to attract
new entrants into criminal
law. A shortage of Legal
Aid lawyers could lead to the
accused having to consider
whether fighting a case was financially
viable, rather than on
the basis of whether they were
innocent or had a winnable
case.
Trevor Colebourne, Vincents’
head of criminal law, said the
Q2 transactions break post-recession
record as top five conveyancers pull
ahead of the competition
Conveyancing activity broke
records between April and
June 2015, as total transactions
reached their highest point
for any second quarter of the
post-recession era, according
to the Conveyancing Market
Tracker from Search Acumen,
the search provider.
The Tracker – which uses Land
Registry data to assess competitive
pressures in the conveyancing
market – also reveals the
average conveyancing firm
enjoyed an 8% year-on-year
increase in business during Q2.
Volumes among the top five
firms growing quickest of all
(10%), meaning conveyancers
in this part of the market handled
220 more transactions on
average than in Q2 2014.
Total transactions reached
230,430 between April and June
this year, up from 219,613 during
Q2 2014 when the Mortgage
Market Review (MMR) changes
contributed to a temporary
slowdown of activity.
The relatively strong performance
of Q2 2015 has helped
system is already on the verge
of collapse and further cuts
could take it over the edge. He
said: “Everyone is entitled to legal
representation, regardless
of their ability to pay. This is a
fundamental principle of British
justice. And that representation
should be provided by a qualified,
experienced lawyer who
has the skills and expertise to
understand and work within the
UK’s complex legal system.
“That ideal is sadly under threat
as the Government makes and
proposes further cuts to its Legal
Aid funding, in fact the service
is dangerously close to breaking
down. Law firms who undertake
Legal Aid work have to provide
a 24/7 service yet the money to
pay for that service continues
to be reduced. The risk is that
it becomes unviable for some
firms to continue to take on such
cases or they face going under.
“There’s also the impact upon
recruitment, no one would be
surprised if many junior lawyers
chose to go into other more lucrative
areas of practice. As the
older lawyers retire and younger
ones select other options, the
pool of talent is diminished.
The remaining practitioners are
overworked and underpaid,
and less skilled juniors will be
drafted in to fill the gaps. And
the market recover from a slow
start to this year. Having been
down 5% year-on-year at the
end of Q1, total transactions
were down just 0.3% year-onyear
by the end of H1.
Search Acumen’s analysis suggests
the combination of softening
house prices and record low
mortgage rates has helped to
continue the long-term recovery
in transaction volumes. Fouryear
comparisons show activity
in Q2 2015 was up by 73% compared
with Q2 2011: the year
when the market was at its low
point following the recession.
Q2 2015 also saw the first rise
in the number of active conveyancing
firms since Q3 2014,
as 20 more firms on average
registered transactions each
month compared with Q1. But
with fewer businesses competing
for work than was the case
four years ago, the average firm
has seen an even bigger rise in
transactions – 95% – over this
period.
The top five firms have seen the
greatest growth in the last year,
who wants the overworked, underpaid,
less experienced lawyer
representing their interests
when their very liberty may be
at stake?”
Law firms across the UK are taking
action in a bid to encourage
a rethink by the Ministry of Justice,
which is set to impose another
cut in January 2016, and
prevent the creation of a “twotier”
system of justice where only
those able to afford a lawyer
can defend themselves.
Firms taking action will not represent
clients in Legal Aid cases
at Crown Court for the duration
of the protest. Mr Colebourne
added: “Vincents has decided
to support this protest because
everyone - especially the innocent,
children and the vulnerable
- is entitled to a fair trial
and this usually means representation
from a skilled lawyer. The
criminal justice system must be
organised and funded to make
sure this happens.
“We hope that our clients will
understand why we are making
this protest. This issue is so important
for the future, for everyone
who wants to live in a country
where the rights of the individual
to fair justice are treated with
respect.”
but those firms ranking 51st –
100th have recorded the most
significant uplift since 2011, with
Q2 transaction volumes up by
114% in this part of the market.
The Tracker indicates that dealing
applications – including the
transfer of titles, charges and
notices – continued to make
up the bulk of Q2 activity, totalling
201,522: 4% more than in Q2
2014. There was also a 46% yearon-year
growth in Dispositionary
First Leases to 308 and an 18%
growth of Transfers in Part to
23,409.
Collectively, the top 1,000 firms
maintained a 72% market share
for the second quarter in succession:
down slightly from 73%
in Q4 2014 but up from 71% a
year ago. This is also significantly
more than the 66% market share
the top 1,000 had four years ago
in Q2 2011.
Having hit 8% in Q4 2014, the
market share for the top ten
firms dipped slightly from 6% in
Q1 2015 to 5% in Q2: the same
level recorded in Q2 2014.
DLA Piper and Pegasystems
Collaborate to Automate
the Management of
Regulatory Rule
Maintenance for
Financial Institutions
Pegasystems Inc. the software
company empowering the
world’s leading enterprises with
strategic business applications,
and DLA Piper, a leading global
law firm and regulatory advisor,
have collaborated to assist
Pega in offering new software
capabilities enabling financial
institutions to reduce the time
and costs associated with managing
rapidly evolving laws and
regulations. Banks can now
readily integrate ongoing updates
to their customer due diligence
regulatory rules through
Pega’s industry-leading Know
Your Customer (KYC) application,
helping ensure they are up
to date with major regulatory
rule changes affecting client
onboarding.
According to a recent Forrester
Research report, complying
with KYC regulations ranks as
the biggest pain point for global
corporate banking executives.
(1) The rapid pace of regulatory
change makes it even more difficult
to onboard clients, which
can affect client lifetime value,
client satisfaction, and even the
ability to win new business. This
unique collaboration between
Pegasystems and DLA Piper
gives retail to corporate and
investment banks a faster, more
efficient and cost-effective way
to manage and integrate these
increasingly complex regulatory
rule changes.
DLA Piper’s experienced global
team of regulatory, legal, audit,
and enforcement practitioners
work on behalf of clients
with all major regulators in all
major financial centers to monitor
regulatory changes and
provide legal interpretation for
any relevant updates. These
include key regulations in the
US, UK, EMEA, and Asia Pacific,
such as complex rules related to
Dodd Frank, EMIR, and MiFID, as
well as Anti-Money Laundering
(AML), the US Foreign Account
Tax Compliance Act (FATCA),
and Common Reporting Standard
(CRS) rules.
Financial institutions can rapidly
update and integrate these
regulatory changes directly into
Pega’s flexible, rules-driven KYC
software through an easy-to-use
import wizard that eliminates
the need for manual hard coded
methods. Pega clients can
complement these DLA recommendations
to accommodate
special circumstances or their
own interpretations of the rules
by geography, booking entity,
line of business, and product.
“In this era of unprecedented
regulatory scrutiny, global financial
institutions still struggle
to keep pace with regulatory
changes while minimising the
impact on onboarding times
and customer experience,” said
Reetu Khosla, Senior Director
of Risk, Compliance and Onboarding
for Financial Services,
Pegasystems. “By teaming with
DLA Piper, Pega uniquely taps
into a wealth of regulatory enforcement
expertise to give
clients peace of mind that they
can rapidly update their systems
and efficiently mitigate risk.”
“Financial institutions around the
world are facing unprecedented
regulatory requirements.
Fortunately, a wide range of
innovative technologies are
helping them comply in a more
efficient and effective manner
than ever before,” said Bart Chilton,
former commissioner of the
US Commodity Futures Trading
Commission and a Senior Policy
Advisor at DLA Piper.
“Monitoring rule changes and
updating compliance programs
in this ever-changing regulatory
environment is expensive, timeconsuming
and risky – particularly
in countries where institutions
have less robust business
and support staff,” said Gerald
Francese, Partner, DLA Piper.
“Combining our global regulatory
team with Pegasystems’
market-leading KYC software
gives financial organisations a
cost-effective and collaborative
set of end-to-end services
and software to support them
at every stage of the regulatory
change process and mitigate
any unique localised regulatory
risks."
www.lawyer-monthly.com

ISSUE 64-15
World Report - Asia & Australasia
13
Baker & McKenzie Named the
Strongest Law Firm Brand in
Asia Pacific for Second Year
Running
Baker & McKenzie has again
been named the strongest
law firm brand in the Acritas'
2015 Asia Pacific Law
Firm Brand Index, and has
developed a lead at the top
over its nearest competitor
of 18 Index points.
The Firm's "strategic foresight
to build footprint in the
region" combined with its
global network has made the
Firm "an obvious first choice
for many clients" according
to Acritas. The Firm leads
other organizations as the
most used firm for inbound
work, as well as most
considered firm for multijurisdictional
deals and for
multi-jurisdictional litigation.
The ranking was based on
interviews with 363 senior
general counsel in Asia
Pacific organizations with
revenues over USD50 million,
who were asked about
their awareness of and
favourability towards law
firms; their consideration of
firms for top-level litigation
and major M&A; as well
as their use of firms for high
value work. A further 315
senior in-house counsel
across leading multinationals
based outside the region
with revenues in excess of
USD1 billion were asked
which firms they used for
their legal needs in Asia
Pacific. The Firm has topped
the Asia Pacific Index since it
was first released in 2014.
Bruce Hambrett, Baker &
McKenzie's Asia Pacific
Regional Chairman, said:
"We are extremely honoured
to be cited again by Acritas
as the region's strongest law
firm brand, particularly at
a time when the market for
legal services is becoming
increasingly competitive.
We have been in Asia
Pacific for more than 50
years, and continued
to grow our practice by
aligning ourselves to those
markets where our clients
are investing. We strive to
stay ahead of the curve
by anticipating our clients’
needs and developing
new practice areas. This
recognition validates our
global strategy and clientdriven
approach to our work
and service delivery.”
Lisa Hart-Shepherd, CEO of
Acritas, commented: “Our
data shows an increasing
need for firms that offer
international workflows, both
between the different Asia
Pacific markets and outside
of the region. This means
that firms who can offer
local market knowledge,
and depth and breadth
of expertise in multiple
territories are going to offer
comfort and value to clients,
particularly those who are
often unfamiliar with the
markets themselves. I predict
that we will continue to see
firms who can be a true
global partner to clients
rise up the ranks, seize
competitive advantage and
ultimately win market share.”
White & Case opens
office in Korea
White & Case LLP has
announced the opening
of an office in Seoul, South
Korea to strengthen and
expand its Korea practice.
Since establishing its Korea
practice more than 20
years ago, White & Case
has supported the needs
of clients investing in the
country as well as Korean
clients expanding globally.
The office enables the
Firm to better support
long-standing
project
finance clients, as well as
broadening its role advising
on mergers & acquisitions,
private equity, commercial
litigation and international
arbitration matters.
"Asia is a strategically
important region for the
Firm," said Hugh Verrier,
White & Case Chairman.
"We've had an active Korea
practice for many years,
and now the office in Seoul
will allow us to provide onthe-ground
support for our
clients in their complex,
cross-border work."
The office will be headed
by James K. Lee, who leads
the Korea practice group
and will relocate to Seoul
from Los Angeles. James
specializes in complex
cross-border
commercial
litigation and has been
working with Korean
clients for more than 15
years. He will be joined
initially by Mark Goodrich,
a construction practice
group partner in London
who will be transferring
to Seoul, and Kyungseok
Kim, who recently joined
the Firm as a partner in
the Global Mergers &
Acquisitions Practice.
"We are thrilled to announce
the opening of our new
office in Seoul," said Eric
Berg, Head of Asia for White
& Case. "This allows us to
provide local support with
UK and US law capability
for our Korean clients,
which include a broad
spectrum of organizations
and government agencies.
It is a natural next step for
the Firm."
The establishment of the
Firm's onshore presence in
Korea marks the seventh
location in Asia and the
39th globally.
Clayton Utz covers Victoria PLC acquisition of Quest
Carpet businesses in Australia
Leading Australian law
firm Clayton Utz has acted
as legal adviser to UKbased
international carpet
business Victoria PLC on
its strategic acquisition of
the Quest Carpet (Quest)
businesses in Australia.
The transaction was
announced to the market
on 7 August 2015. The deal
value is approximately
A$35 million.
Clayton Utz Melbourne
corporate partner Michael
Linehan led the firm's
transaction team, which
included senior associate
Quentin Reidy and lawyer
Kate Allison.
Michael said Clayton
Utz was pleased to have
worked with an established
and successful international
business in expanding its
operations in Australia.
He said it was particularly
exciting for the Clayton Utz
team to be able to advise
on part of the recent and
impressive growth strategy
of Victoria PLC.
Victoria PLC manufactures,
supplies and distributes
design-led carpets and
floor coverings. With a
history dating back to 1895,
it has extensive operations
across the UK and in
Australia.
Based in the Melbourne
suburb of Dandenong,
Quest designs, sells and
distributes premium quality
carpets across Australia
and New Zealand.
Under the transaction
terms, Victoria PLC will
acquire all of the issued
share capital in Quest
Carpet Manufacturers Pty
Limited and all of the issued
units in the Quest Carpet
Manufacturers Unit Trust.
www.lawyer-monthly.com

14 World Report - Latin America
ISSUE 64-15
IBAHRI greatly concerned as Venezuela continues to
target lawyers and human rights defenders
The International Bar Association’s
Human Rights
Institute (IBAHRI) is gravely
concerned at the ongoing
targeting of lawyers and
human rights defenders in
Venezuela. The public call
made by the President of
the National Assembly, Diosdado
Cabello, for the imprisonment
of Judge María
Lourdes Afiuni’s defence
lawyers exemplifies a worrying
trend.
Mr Cabello, who is also the
Vice-President of the United
Socialist Party of Venezuela,
made the remark on 22
July 2015 on the television
programme Con el Mazo
Dando, which he hosts. During
the broadcast he called
for the imprisonment of Juan
Garantón, Thelma Fernández
and José Amalio Graterol
on the grounds of alleged
contempt of court.
A group of United Nand Inter-American
Commission on
Human Rights experts have
previously expressed serious
concern at the use of Con el
Mazo Dando, transmitted by
the state network, to target
human rights defenders and
have called on the Venezuelan
authorities ‘to immediately
cease the targeting of
rights activists’.
IBAHRI Co-Chair Hans Corell
commented: ‘The IBAHRI
would like to remind the
Venezuelan authorities of
their responsibilities under
international law, including
Inter-American human rights
instruments, to protect and
uphold human rights and the
independence of the legal
profession. This includes the
fundamental principle that
lawyers should not be associated
with the causes of their
Energy M&A to have a weaker 2015
but to pick up in following years
The energy sectors will
continue to see significant
merger and acquisition activity
over the next five years
reveals a unique new forecast
by Baker & McKenzie
published in association with
Oxford Economics.
The report predicts an estimated
$136 billion in completed
energy deals in 2015,
down from $371 billion in
2014. However, the forecast
assumes that number
will pick up to $251 billion in
2016, $326 billion in 2017 before
peaking in 2018 at over
$350 billion.
Jim O'Brien, Global Energy
leader at Baker & McKenzie
explains, "Although the
drop in oil prices has helped
fuel the global economic
recovery, there have been
negative implications for energy
producers, prompting
a wave of consolidation in
the energy sector. Transactions
should unfold over the
next three years as high-cost
oil producers, especially USbased
hydraulic frackers
that face illiquidity in rolling
over their high-yield debt,
are ripe for takeover.
"Globally, we expect less
efficient and high-cost oil
producers to become vulnerable
to acquisition as
they strive to compete in an
industry in which innovation
is keeping oil prices low. The
quest for geographic expansion
and the need for new
technologies and services
will also drive M&A activity."
Markets that are predicted
to grow the fastest in terms
of overall M&A in the next
5 years across all sectors
are China, The Netherlands,
Mexico, India, UK, Germany,
Indonesia, Saudi Arabia and
the UAE.
"Many US and European
companies have accumulated
large cash balances
available for acquiring new
businesses," explains Tim
Gee, Baker & McKenzie's
global head of M&A. "Financial
sponsors also have the
potential to boost global
transactions, with private equity
firms sitting on a record
US$1.1 trillion in uninvested
capital. Cross-border transactions
will play a significant
role as companies look to
gain market presence in
high growth markets."
The projections are part of
a unique 6-year forecast of
global transactional activity,
developed in partnership
with Oxford Economics. The
comprehensive report, The
Impact of Macro Trends on
Future M&A and IPO Activity
sets out predictions across
regions, sectors and individual
countries worldwide until
2020, linking economic outlook
with corporate activity.
clients.’ He added: ‘That defence
lawyers José Amalio
Graterol, Thelma Fernández,
and Juan Garantón be
chastised publicly by Mr Cabello
is unacceptable. The
likely consequence of such
action is to intimidate and
subdue Venezuela’s wider
Blackboard Acquires
Nivel Siete
Blackboard has acquired
Nivel Siete, a leading Moodle
provider operating in
Latin America. By joining
their forces, the two companies
will be able to offer
more services and solutions
to organizations that
leverage Moodle, one of
the most widely used learning
management systems
(LMS) in the world, and
support a greater number
of learners to achieve their
educational goals.
Nivel Siete offers a variety
of learning solutions,
hosting, support and consulting
services that help
organizations succeed in
their teaching and learning
initiatives, especially those
that focus on the use of e-
learning for talent management
and training. Headquartered
in Colombia, the
company serves over 200
customers in Mexico, Colombia,
Peru, Ecuador, Venezuela,
Honduras and the
Dominican Republic.
"The addition of Nivel Siete
to the Blackboard family
testifies to our commitment
to open source," said
Matthew Small, senior vice
president and managing
director, international at
Blackboard. "We are seeing
strong momentum for our
open source solutions and
in particular for Moodlerooms,
with the addition of
more than 80 new customers
around the world in the
legal profession. As lawyers
are hindered from carrying
out their professional duties
effectively, this in turn would
lead to the undermining of
public confidence in the administration
of justice in the
country.’
last few months and a significant
growth in Mexico,
Colombia, Peru and Brazil.
Our open source solutions
play an integral part in our
strategy and we will continue
to support their growth. I
am thrilled to work together
with the team at Nivel Siete
and improve the educational
experience for learners
in Latin America."
"We are excited to join
forces with Blackboard and
help learners and organizations
be successful," said
José Diáz, CEO at Nivel Siete.
"By working together
with Blackboard we will be
able to enhance the range
of solutions and services
we provide to institutions
and businesses across Latin
America. The local Moodle
community will benefit from
this acquisition, as it will
open up new opportunities
to share knowledge and
best practices."
This announcement marks
the latest investment made
by Blackboard in open
source after the recent acquisitions
of Remote-Learner
UK and X-Ray Analytics
technology. Since officially
joining the open source
community in 2012, Blackboard
has been contributing
to Moodle with code,
quality assurance, platform
integrations and bug fixes.
It has also supported many
community gatherings
across the world.
www.lawyer-monthly.com

16 Lawyer Moves
ISSUE 64-15
CAREY OLSEN ANNOUNCES
THREE NEW PARTNERS
LINDA KLEIN OF
ATLANTA BECOMES
PRESIDENT-ELECT OF
AMERICAN BAR
ASSOCIATION;
WILL BE ABA
PRESIDENT IN 2016-17
MCDERMOTT ADDS PRIVATE
EQUITY PARTNER KATHY
SCHUMACHER IN CHICAGO
www.lawyer-monthly.com

ISSUE 64-15 Lawyer Moves
17
DR. JÖRG KIRCHNER TO JOIN
MUNICH OFFICE OF KIRKLAND
& ELLIS INTERNATIONAL LLP AS
CORPORATE PARTNER
NEW CONSTRUCTION
PARTNER FOR HOGAN
LOVELLS IN SOUTH AFRICA
DLA PIPER APPOINTS
LEADING M&A LAWYER
JAMES PHILIPS
LAWYER MOVES
www.lawyer-monthly.com

18 Lawyer Laywer Moves
ISSUE 64-15
DLA PIPER APPOINTS
LEADING M&A LAWYER
JAMES PHILIPS
DLA Piper has appointed one of Australia's
leading M&A lawyers, James Philips, as a partner.
James joins the firm from Minter Ellison,
where he was Co-Head of M&A.
James has advised on transactions valued
at more than AU$100 billion, spanning
recommended and hostile takeover bids,
schemes of arrangement, public to privates,
redomiciles, privatisations and equity capital
markets. He wrote the Takeovers chapter in
'Australian Corporation Practice' and lectures
in Corporate Fundraising at the University of
Sydney.
His appointment is the latest in a series of strategic
partner hires made by DLA Piper, as part
of the firm's transformation of its corporate
capabilities across the Asia Pacific region.
James is the sixth Corporate partner to join in
the past four months, following the appointments
of Grant Koch in Sydney (20 April), Michael
Bowen, Scott Gibson and Marc Wilshaw
and their teams in Perth (1 July) and David
Hallam in Melbourne (3 August).
DLA Piper Managing Partner in Australia, John
Weber, commented: "This is a very exciting
time for the firm and our clients. We have
gained significant momentum in the Australian
market, in particular with a focus on transactional
corporate work, and we're delighted
to welcome James to our growing corporate
team."
DLA Piper Head of Corporate, Asia Pacific, Bryan
Pointon, commented: "James' appointment
is a significant milestone for the firm. James is
an outstanding practitioner and, together with
the outstanding corporate partners who have
joined DLA Piper in Australia over the last 18
months, he exemplifies the breadth, depth
and strength of the firm's capability in M&A,
ECM and private equity in Australia and the
Asia Pacific region."
LINDA KLEIN OF ATLANTA BECOMES PRESIDENT-
ELECT OF AMERICAN BAR ASSOCIATION; WILL BE
ABA PRESIDENT IN 2016-17
Linda Klein, the managing shareholder in Baker Donelson’s Georgia offices, assumed the role of president-elect
of the American Bar Association this month at the conclusion of the ABA Annual Meeting
in Chicago. She will serve a one-year term as president-elect then become ABA president in August
2016.
Paulette Brown, a partner and co-chair of the Diversity & Inclusion Committee at Locke Lord LLP in Morristown,
N.J., became ABA president today and will serve until next August.
Klein’s practice area includes most types of business dispute resolution, including contract law, employment
law and professional liability, working extensively with clients in the construction, higher
education and pharmaceutical industries.
In June 1997, Klein became the first woman to serve as president of the State Bar of Georgia. During
Klein's term, she devised a proposal and advocated for the state to allocate funding for Georgia Legal
Services and Atlanta Legal Aid to hire lawyers to help indigent victims of domestic violence. She organized
a state-wide group of community organizations and local and minority bar associations that
together convinced the General Assembly to appropriate $2 million. Since then, the annual appropriations
have helped thousands in Georgia with legal issues related to domestic violence.
Klein was one of the first women to lead a prominent Georgia law firm. She served as managing
partner of Gambrell & Stolz, beginning in 2001, and led the firm's 2007 merger with Baker Donelson,
becoming a Baker Donelson board member and Georgia managing shareholder.
She served as chair of the ABA's House of Delegates, the second highest office in the organization,
from 2010-2012. She has also served as chair of the Tort Trial and Insurance Practice Section, chair of
the Committee on Rules and Calendar of the House of Delegates, chair of the Coalition for Justice,
and chair of ABA Day, the Association's outreach effort to Congress. She is a member of the Council
of the ABA Section of International Law and also serves as a columnist and on the Board of Editors of
Law Practice Management Magazine. In 2004, the American Bar Association honoured Klein with the
prestigious Margaret Brent Women Lawyers of Achievement Award.
NEW CONSTRUCTION PARTNER FOR HOGAN
LOVELLS IN SOUTH AFRICA
Philip van Rensburg has joined Hogan Lovells as a partner in the construction department and litigation
team in Johannesburg. Joining with him is senior associate Waseeqah Makadam.
Philip focuses on litigation and projects primarily within the construction, engineering and mining industries,
but also advises clients in the energy and chemical sectors. His dispute resolution work includes
civil litigation, arbitration under local and international rules (ICC), and adjudication (DAB)
proceedings in local and international disputes.
Philip advises contractors, engineers and plant owners in both contentious and non-contentious matters
on all aspects arising from FIDIC, GCC, JBCC and NEC3 contracts. He has extensive experience
in drafting EPC and EPCM contracts in the construction, energy, infrastructure, mining and telecommunications
industries, as well as identifying, evaluating, formulating and defending claims in relation
to construction and engineering projects.
Michael Davison, global head of disputes, said: “Philip’s extensive experience will be a tremendous
asset to our construction team, which counts some of the world's largest engineering and contracting
companies among its clients.”
Philip van Rensburg said: “The fully-integrated teams at Hogan Lovells provide clients with the opportunity
to access industry knowledge and sector expertise with impressive geographic reach.
"I look forward to working with my new colleagues at Hogan Lovells."
Previously Philip was a director at Baker McKenzie, and prior to that he was with Fasken Martineau.
www.lawyer-monthly.com

ISSUE 64-15 Lawyer Moves
19
MCDERMOTT ADDS PRIVATE EQUITY PARTNER KATHY
SCHUMACHER IN CHICAGO
Adding to its broad and international private equity practice, McDermott Will & Emery recently announced
that Kathy Schumacher, an experienced finance lawyer who regularly represents private
equity firms and portfolio companies in acquisition financings, has joined the firm in Chicago as a
partner in the Corporate group.
Ms. Schumacher has an extensive background in acquisition financing, particularly on the borrower
side, and in other types of finance transactions, including infrastructure and project finance. In addition
to structuring the financing of private equity deals, she advises public and private companies
in general corporate debt financings and. She has represented many sponsors and issuers on transactions
up and down the capital structure – including senior, first lien/second lien, mezzanine and
subordinated debt financings. She has also negotiated large bridge loans and other facilities used in
acquisitions.
Ms. Schumacher arrives at McDermott from the Chicago office of Kirkland & Ellis, where she practiced
in the Debt Finance Group.
During her career, she has advised on numerous mid-market and large-cap financings. Frequently
acting for private equity groups and their portfolio companies in acquisitions, Ms. Schumacher has
structured transactions across many industry sectors, including hospitality and gaming, logistics, retail,
building products, energy, refining and others.
At McDermott, she joins a corporate practice with deep private equity deal experience and industry
expertise, along with strength in all areas of corporate finance. The firm’s Private Equity group includes
more than 70 lawyers worldwide.
“Private equity remains a generator of significant transactional activity. Our group continues to be
fully engaged, particularly in the middle markets,” said Harris Siskind, co-head of McDermott’s Private
Equity practice. “Kathy Schumacher is a strong addition to our team, bringing significant experience
handling debt financings of all sizes and complexities and across numerous industry segments. Her
considerable range in handling complex debt financings will make her a valuable member of our
group.”
CAREY OLSEN
ANNOUNCES THREE
NEW PARTNERS
Carey Olsen recently announced that three
advocates in its Guernsey office - Elaine Gray,
Natasha Kapp and Tony Lane - have been
promoted to partners.
Elaine Gray joined the firm's litigation and dispute
resolution practice as counsel in 2012.
She advises local and international clients on
commercial litigation, employment and intellectual
property matters and is recognised as
a leading voice in employment, IP and complex
trust disputes.
Natasha Kapp joined the fiduciary practice as
a senior associate in 2009. She deals with all
aspects of fiduciary law and regulation as well
as contentious and non- contentious trusts issues
and non-contentious insurance matters.
Tony Lane joined the corporate team in
Guernsey as a senior associate in 2008. He
advises on a wide range of corporate matters
with particular expertise in mergers and acquisitions.
Tony also advises on the establishment,
regulation and operation of investment
funds.
Guernsey managing partner, John Greenfield,
said: “Elaine, Natasha and Tony have contributed
a great deal to their respective practice
areas both within Carey Olsen and within their
fields of law. Their appointment as partners is
positive news for the firm and for our clients."
DR. JÖRG KIRCHNER TO JOIN MUNICH OFFICE OF KIRKLAND & ELLIS INTERNATIONAL LLP
AS CORPORATE PARTNER
Kirkland & Ellis International LLP recently announced that Dr. Jörg Kirchner will join the Firm’s Munich office as a partner in the Corporate Practice Group. Dr.
Kirchner focuses his practice on the full range of private equity and M&A transactions.
“Jörg is one of the top private equity attorneys in Germany, with an excellent reputation as a dealmaker,” said Jeffrey C. Hammes, Chairman of Kirkland’s
Global Management Executive Committee. “His experience advising on complex private equity and M&A transactions will further strengthen our robust international
corporate practice.”
Dr. Kirchner joins Kirkland from the Munich office of Latham & Watkins, where he was a founding partner and formerly acted as the office managing partner and
vice chair of the global corporate department. He advises clients on private equity and M&A matters, handling both cross-border and national transactions,
including LBOs, minority investments, joint ventures and carve-outs.
“We couldn’t be more pleased to welcome Jörg to the Firm,” said Volker Kullmann, a partner in Kirkland’s Corporate Practice Group. “His proficiency in advising
top-tier clients on their most significant transactions perfectly complements our international private equity and M&A teams as we continue to enhance
our offerings in Europe.”
Dr. Kirchner is top-ranked by a number of leading legal directories, including JUVE 2014/2015, where he is listed as a “leading name” in private equity and
“recommended” in M&A. He is rated Tier 1 for private equity and M&A by Chambers & Partners, which notes that he is “…very strong from both a technical
and commercial standpoint.” He is also recommended by The Legal 500, and IFLR1000, which praises him as a “leading lawyer” and a “highly experienced
and adept partner.”
Dr. Kirchner holds an LLM from George Washington University Law School and a Dr. jur. from the University of Munich.
www.lawyer-monthly.com

My
Legal
Life
Featuring...
Hoda
Barakat
From Hoda Barakat
Legal Consultancy
Maximilien
Jazani
Managing Partner at
Manswell Advocates

22 My Legal Life
ISSUE 64-15
An Interview With...
Hoda Barakat
From Hoda Barakat Legal Consultancy
Hoda Barakat Legal Consultancy, PO Box 334249, Dubai, UAE
Tel: +971 4 3466411 | Email: hoda@hblegal.ae
Can you begin by telling me a little about the
typical types of case you deal with regularly?
In my professional life, I have handled a
number of contentious and non-contentious
matters. While I am not a litigation lawyer, I
have managed a lot of litigation matters over
the years particularly in the IP and commercial
fields. On the non-contentious side, I typically
advise senior executives on legal matters
and provide a strategy to resolve their legal
issues. I then carry that through by managing
the strategy to ensure implementation and
resolution.
You have been practising for over 20 years,
how much has the legal landscape in Dubai
changed during that time?
Lawyer Monthly’s very special ‘My Legal Life’ feature prides
itself on examining the work, background and opinions of
some of the world’s leading legal practitioners. We look at
what motivates them, what led them to where they are
today, the types of issues they face on a regular basis and
how their particular area of practice has evolved during
their legal career. Here, as part of this month’s ‘My Legal
Life’, we speak to Hoda Barakat from Hoda Barakat Legal
Consultancy in Dubai.
I arrived in Dubai in mid - 1995 with four years’
work experience in London. My area of legal
expertise at the time was intellectual property
(IP). In 1995, the IP laws in the UAE were
relatively new and implementation was just
beginning. I was fortunate to be one of the
first lawyers in the country with IP experience.
I handled enforcement campaigns for
several multi-national companies and industry
groups. I worked closely with Government
officials who were also keen to see the
UAE rise as the leader in the region in the
protection and enforcement of IP rights. With
time, the legal market expanded and new
areas of law became relevant too e.g. IT law.
The legal landscape changed dramatically in
almost every sector. The UAE has led the way
in the region in most areas of the law. The DIFC
legal jurisdiction is a first in the region as it is a
Common Law jurisdiction with its own English
language courts (vs Civil Law and Arabic
language courts in Dubai and the rest of the
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ISSUE 64-15
My Legal Life
23
UAE). Judges are now trained in the UAE and
abroad and cases referred to specialised
judges.
Your practice began life as an Intellectual
Property firm – what led you to expand into IT
and other issues?
I began life in a specialised IP firm in London,
and then I moved to a general practice law
firm in the UAE with 10 lawyers in 1995. I was
the only IP lawyer in the firm but then the
practice grew and we became known for our
IP work. The firm as a whole was growing in
parallel. Expanding into IT law was a natural
organic growth with the emergence of IT and
internet legal issues. The firm opened a new
branch in the Dubai Internet City, a business
park specialised for IT companies. After 15
years with the firm and after becoming the
Managing Partner for five years, I left to take
a break. Following a two year break, I set up
my practice as it is today: a boutique firm that
deals with a multitude of issues but all on a
strategic trusted advisor basis.
“
Expanding into IT law was a natural
organic growth with the emergence
of IT and internet legal issues
“
Finding a solution to a problem
is most rewarding to me especially if it can
avoid the need for litigation
On the flipside, what do you find most clients on legal strategy and management,
rewarding about your work?
in an almost in-house capacity. My aim is to
provide the highest level of legal service while
I love dealing with clients and solving ensuring accessibility by my select clients.
problems. Finding a solution to a problem Each client should feel that they are my only
is most rewarding to me especially if it can client.
avoid the need for litigation. If however, no
solution can be found and litigation is a must, What motivated you to become a lawyer?
winning a case for a client is very fulfilling. I Why IP?
also enjoy working with a team and growing a
practice. Having recently started my own firm,
Actually I started my University life as a science
it is interesting to be involved in all aspects of
student until I realised that labs were not for
the legal practice.
me and that I had a more natural affiliation
to law. I transferred to study law while at
University and I loved it. After University, the
time came for specialisation and IP was
“
“
perfect for a law graduate with a science
background. My training and my first job were
in London where I specialised in IP. When
I moved to Dubai in 1995 I was in the right
place at the right time. IP was in its infancy
in the UAE, a law firm in Dubai was looking to
hire an IP lawyer and there I was. It proved to
be a good match.
Is there anything else you would like to add?
What are the biggest challenges that the IP
world throws up and how do you navigate
them?
Inconsistency was the biggest challenge in
the IP sector. However, it is always important
to remember that the UAE is a young nation
and until recently judges were not well-versed
or trained in IP matters. Over time however
judges were trained and specialised and now
judgements have become more consistent
and harsher in nature. Even at the level of the
Prosecutors and Government departments,
familiarity with IP has improved and so action
is more consistent.
You have built the firm up to be the largest
leading UAE law firm with over 130 lawyers
and 300 staff. How have you done this? Has
it been tough?
My former firm is a solid example of how a
good hardworking team that kept its quality
of service high, can succeed. Ensuring policies
and procedures were in place as the firm grew
was also an important factor as it allowed
staff to feel fairly treated. When the firm grows
so quickly it needs to run like a machine.
We were also lucky to be in the UAE in the
boom times. My new firm is a small, boutique
practice where I work very closely with select
I have thoroughly enjoyed my legal life and
continue to do work that interests me and
that helps others. It was great to be a woman
in an Arab country leading a large local legal
firm and breaking many misconceptions
about age and gender. Now my practice is
small but filled with interesting matters and it
allows me the time to spend on the matters
that I enjoy the most. LM
www.lawyer-monthly.com

26 My Legal Life
ISSUE 64-15
An Interview With...
Maximilien Jazani
Managing Partner at Manswell Advocates
153, BOULEVARD HAUSSMANN. 75008 PARIS – FRANCE
Fax: + 33147205421 | Tel.: + 33145619341 | Email: maximilien.jazani@manswell.fr | Twitter: MaxJazani | Website: www.manswell.fr
You began your career over twenty years ago;
how has music law changed during that time?
When I started, most tracks (phonograms) were
produced by Major labels (Universal, Sony, EMI…
”the Majors”) and they used to sign exclusive
recording agreements with artists or bands and
the tracks were generally manufactured and
released in CD and vinyl.
During the early 1990s, what I would call music.1
period, mp3 audio files appeared and during
this decade, free download and free streaming,
while illegal, affected the Majors’ business
model. Majors have been obliged to terminate
most costly recording agreements, sometimes,
giving back the record maters for 1 euro or 1 £
to artists and the music production passed from
Majors to Artists’ labels: artists created their own
record companies, produced their phonograms
and video-music and entered into distribution
or license agreements with Majors. In the
meantime, the Artists realised that live shows and
concerts bring more exposure and money than
the sale of records. They started managing their
live performances themselves.
Each month, Lawyer Monthly’s ‘My Legal Life’ feature
looks at the work of experienced and highly skilled legal
professionals, exploring the types of cases they work on,
the challenges they face and what motivates them. This
month, we speak to Maximilien Jazani from Manswell
Advocates in Paris. Maximilien specialises in Music Law and
has published many articles on the subject.
In the 2000s started what I would call music.2
period: legal downloading and legal streaming
platforms started appeared and became
significant (iTunes in 2003, Deezer in 2007, Spotify
in 2008 …) and digital music became profitable
but the music production business model
remained lock-stepped and grew with artists
labels producing their phonograms and live
performances. In the meantime, the electronic
music production and music production
through music software became the main music
production way.
In 2010s began what I would call music.3 period:
the social media started becoming more
important than downloads and streaming. The
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ISSUE 64-15
My Legal Life
27
true chart of the artists is now based on their
followers on social media (tweeter, Facebook,
Instagram, snap chat…) rather than their sales or
their streaming.
Nobody can pretend to know what will be the
next evolutionary step but I see in the current
trend that a new business model may appear
from social media and smartphone applications.
What motivated you enter the legal profession
and why did you choose the specialisms that
you did?
In the 90s, I started working with orchestra
conductors and opera singers before working
with electro music artists. I found the legal and
tax challenges very interesting. I still advise
major international opera singers and orchestra
conductors. But, after some MIDEM meetings
I 2000s, when I started working with electronic
artists like Mirwais, David Guetta and Martin
Solveig, I discovered a new area of music that
I had no real idea about before. I said to myself
that I had to know how it works. So, I got some
lessons in a DJ school in Paris, called DJ Center,
bought a Pioneer DJM and DJ Player 300 and
Live and track record software and started to
learn how it worked. Once I understood the
basic mechanism of Electro music (without ever
achieving to handle all tools because that’s a
job in itself) I started assessing the legal bases of
electronic music law. Thanks to a partnership with
the magazine ONLY FOR DJs and then DJ Mag, I
published a lot of articles on DJaying and electro
music contracts and business model.
Today it is delightful to see some managers,
bookers and lawyers plagiarising the contract
templates I made a decade before: some of
my templates have become today standards of
DJaying and producers agreements.
If you could go back to the beginning of your
career, what would you do differently and what
would you tell your younger self?
I spent five years, from 1995 to 2000 in so-called
Big Five (i.e., Deloitte, PWC, Arthur Andersen,
E&Y, Mazars) law and audit firms. I created my
own law firm in November 2005, after 10 years as
associate an then Of Counsel first in Deloitte and
Robson Rhodes and then in Salans. That gave me
knowledge of the financial matters and accounts
which helps me today to render better services,
not only legal, but global, integrating tax and
finance in my advice. However, I think I spent too
much time in these Big Five firms and that two
years would have been enough and that I should
have created my own law firm earlier, i.e., in 2002
rather than 2005.
I would tell younger lawyers to be aware and
analyse your capacities and your limits and if you
have the genuine ability, so jump and create your
practice or your firm. Otherwise, you’d better be
an in-house lawyer or a business manager.
You have significant expertise in Music law and
contracts, Media & Entertainment, International
Taxation, and Business Law; what quirks do these
sectors have that makes them unique?
As I explained, nowadays artists now have their
own labels and license their music to Majors. A
music label in the current international context
of social media and streaming needs more than
a mere intellectual property lawyer but a lawyer
who handles music law, as well as international
taxation, business law and media.
“
Nowadays artists
now have their own
labels and license their
music to Majors
“
For example, an endorsement agreement raises
issues in terms of music licensing, trademarks,
social media, commercial law, live performance
and withholding taxes. With MANSWELL, the
artists benefit from a global advice integrating
all that issues in the negotiation and drafting of
the contracts. I recently negotiated and drafted
the Musical Ambassador agreement of David
Guetta with UEFA for the football championship
EURO 2016 with the legal Department of UEFA
what has been a very exciting and enriching
experience for all of us and we achieved a good
deal in an international context.
Finally, I would say that I am specialist of no
matter but specialist of all matters: I’m used to
say that I am the “Jim Phelps” of Lawyers, in
reference with the legendary leader of TV series
“Mission Impossible” to the extent that in addition
to what I do myself with my partner and my
associates, I have a know-how for finding the
right strategy, as well as for negotiations than
for litigation, planning worldwide missions and
selecting the top-guns for the teams dedicated
to each mission and leading them.
What are the most common challenges you face
within your role? How do you navigate them?
I have a very clear position on conflict interest: I
never advise Majors and I am still artist oriented.
Of course, when your artist and his own label
has licensed a Major or when he (she) entered
into a publishing or co-publishing agreement
with a Major publisher (SONY ATV, UNIVERSAL
PUBLISHING, WARNER CHAPPELL…), you have to
be aware of both the common interest and your
artist’s interest and navigate saving your artist’s
interest while saving the contractual balance.
What motivates you?
I am motivated by the challenges faced in the
matters I deal with and to see the benefits of my
work for my clients. Sometimes, I advise them
against what their “affect” tells them to do but
it may takes some time, may be 1 year or more
before they tell me: you were right, fortunately I
followed your advice.
Is there anything else you would like to add?
As a conclusion, I would say that my mission is
often more than telling clients what is the law
applied to your facts but rather anticipating,
setting strategy and tactics, as well as in litigations
and in negotiations: a true game of chess!
Furthermore, advising artists and their labels in
a sector in speed evolution is something very
exciting and challenging, making you feel that
tomorrow will be more exciting than today!. LM
www.lawyer-monthly.com

30 WilmerHale
ISSUE 64-15
CORPORATE
CRIME
HOW TO IDENTIFY IT AND WHAT
TO DO WHEN YOU DO
In recent years, it has not been unusual to see, on a daily basis, a
news report where a business has been either the victim, or the
perpetrator, of crime. The financial services, engineering, mining
and pharmaceutical sectors have all been the subject of high
profile investigations which, in some cases, have resulted in multimillion
pound fines. So what are the danger areas, and what
should a company do if they suspect criminal activity within their
business? We find out from an exclusive article by Christopher
David, Counsel at WilmerHale.
Before looking at these potential
areas to be aware of, it is important
to understand how a company can
be guilty of a criminal offence. In
general terms, a company is a legal
person capable of being prosecuted for
most criminal offences. At present, (although
reform is currently being considered),
corporate criminal liability is based on
the identification principle, often called
“directing mind” liability. This essentially
means that the offence must be attributable
to someone who, at the material time, was
the ‘directing mind and will’ of the company.
In reality, this means that it will normally only
be senior officers of a company at, or close
to, board level whose acts can be identified
with the company in this way (as opposed
to those acting merely as the company’s
agent). That said, irrespective of the legal
position of the company itself, other concerns
arise if criminal conduct is confined to
junior employees – these concerns include
potential linked civil liability and reputational
harm and mean that a company should be
vigilant for any instances of criminality.
The most common corporate criminal
offences which arise are fraud and corruption.
Fraud is a broad term which covers any act
of deception intended for personal gain or
to cause a loss to another party. Common
examples include false accounting,
insurance fraud, mortgage fraud, Ponzi
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ISSUE 64-15
WilmerHale
31
schemes, procurement fraud and pyramid
schemes. Corruption is an agreement to
directly or indirectly give, offer or promise,
anything of value to influence someone so
as to obtain or retain a business advantage.
The UK Bribery Act prohibits the giving and
receiving of bribes to both private individuals
and public officials and, in addition, the law
specifically criminalises a company who fails
to prevent a person associated with it bribing
someone with the intention of benefiting the
company. This means that a company can
be liable for the conduct of any third party
who acts on their behalf. Third parties include
agents, distributors, consultants, resellers
and vendors. There is though a complete
defence, if the company can show it had in
place ‘adequate procedures’.
This concept of ‘adequate procedures’, in
addition to providing a legal defence under
the Bribery Act, is also the tool by which
a company can try and identify criminal
conduct. For reasons of space, it is not possible
to go into detail with regards to what systems
and controls a company should have, but if
only one thing is kept in mind it is that there
is no point in having in place a complex set
of policies and procedures if the end result is
that no one from within the business reads or
follows them.
Each business will require its own clear and
concise set of systems and controls that suit
its particular industry and structure but there
are two areas on which particular focus
should be made – employee expenses and
third parties. The reasons for a robust expenses
policy are self-evident; this is an area where
it is not unusual for employees to attempt
to defraud the company, sometimes on a
large scale. In addition to sensible oversight
over expense claims, a good expenses policy
(and associated controls) should ensure that
there are suitable checks to identify unusual
expense claim patterns which could identify
fraud or corruption.
The use of third parties to conduct business
or act on behalf of a company is another
notorious danger area, not least as a
company can be liable under the Bribery Act
for the acts of its third parties. It is, therefore,
essential that appropriate due diligence is
done on all new third parties so as to ensure
that the company know who they are dealing
with and can rely on them, as far as possible,
to act in a legal and ethical manner.
Unfortunately, no matter how robust a
company’s systems and controls are, it
is almost inevitable that at some point,
something will go wrong. Once an issue has
been discovered, it is vital that a company
moves fast to investigate the allegations. It
is a common response to want to establish
as quickly as possible what has happened,
but it is almost always advisable, however, to
take a step back and consider carefully the
scope of the investigation before beginning
the substantive work. This is critical both in
relation to deciding the ultimate objectives of
the investigation and, in practical terms, how
these objectives are going to be achieved.
It is not possible to set out in detail everything
that a company should do but on realising
that there is an issue requiring an internal
investigation, a company should establish
internally who is going to be responsible
for conducting and/or managing the
investigation. This is important for the efficient
running of an investigation as well as for
creating a legally privileged environment.
Whoever is conducting the investigation,
whether they are internal or external to the
company, should establish the investigations
precise scope carefully and clearly at an early
stage. An internal investigation is not intended
to be a fishing expedition to identify any and
all potential problems a company may have,
but rather a response to a particular and
specific problem that has been identified. This
is not to say that unanticipated issues coming
to light in the course of the investigation
should be ignored, but rather that a precise
and focused investigation will undoubtedly
be more effective at resolving issues in a time
and cost-effective way.
Once an investigation plan has been
agreed it is important that a company
takes immediate steps to secure all relevant
evidence. This should include all relevant
electronic data, hard copy documents, and
electronic devices. Care should be taken that
routine document destruction and electronic
deletion programs are stopped. Additionally,
all potentially relevant electronic devices such
as laptops, phones and hard drives should
be secured. Relevant employees should be
informed by way of a document hold notice
what material should be preserved without
giving away details of what the investigation
relates to. If necessary a specialist forensic
IT team should be brought in to ensure
reliable evidential collection, as well as to
assist with recovery of deleted data. Once
the data has been secured, a careful
review of the available evidence should
be conducted so as to build up a clear as
possible set of facts.
A further issue that should be considered at
the outset is the status of any employees that,
on the face of it, may be implicated in the
conduct under investigation. Normally, the
most prudent approach will be to suspend
any employees concerned with immediate
effect, pending the outcome of the
investigation. Once the internal investigation
is complete, the decision will have to be made
whether to dismiss the employee, reinstate
them or extend the period of suspension.
Finally, care should be given as to how any
findings are recorded. There is no requirement
in English law to report a criminal offence,
whether that be an employee or the
company itself. A company’s decision to
self-report should only be done following
advice from experienced external counsel as
a misstep at this stage could result in serious
implications for the company for many years
to come. LM
www.lawyer-monthly.com

32 BonelliErede
ISSUE 64-15
ITALIAN INCREASED
VOTING
RIGHTS MECHANISM
Following the adoption of the “Competitiveness
Decree” (Legislative Decree No. 91/2014 converted,
with amendments, into Law 116/2014, which
introduced loyalty shares under Art. 127-quinquies of
Legislative Decree 58/1998 - the Italian Consolidated
Law on Financial Intermediation), the one shareone-vote
principle versus loyalty shares, which grant increased voting
rights, is a hot topic in Italy. To find out more, Lawyer Monthly benefits
from an exclusive article from Gianfranco Veneziano, partner in the
Corporate department at international law firm BonelliErede.
In Italy, almost all private Italian companies
are controlled by families, whereas the
majority of listed Italian companies are
controlled either by families or by the State.
One of the main purposes of the loyalty shares
introduced by the Competitiveness Decree
is to attract international investors and open
the market to reignite business in Italy by: (i)
increasing the number of listed companies,
(ii) providing listed companies additional
opportunities to increase their floating capital
and carry out mergers and acquisitions, and (iii)
supporting the State carry out privatisations by
selling additional shares of State-owned listed
companies without losing control of them.
In this respect, loyalty shares allow: (i) family and
State-owned listed companies to benefit from
the advantages of increasing the company’s
floating capital without the disadvantage of
losing control, and (ii) family-owned private
companies to go public reducing the risk of
the founders losing control over the company.
Another purpose of the loyalty share
mechanism is, on the one hand, to reward
long-term investors by granting them
increased voting rights and, on the other
hand, to discourage short-term investors.
Indeed, it could be argued that short-term
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ISSUE 64-15
BonelliErede
33
investors do not always have the best interests
of the company at heart and can influence
management decisions to the detriment of
the company, e.g. by triggering share price
volatility.
Several other countries have adopted similar
loyalty share mechanisms, such as France, the
United Kingdom and the United States.
Under the new provisions of Legislative Decree
58/1998, three requirements have to be met to
grant increased voting rights, up to a maximum
of two votes per share, to loyal shareholders:
1. An extraordinary shareholders’ meeting has
to introduce a specific article, which grants
increased voting rights, in the articles of
association.
It should be noted that to facilitate companies
to opt in the increased voting rights’
mechanism, until 31 January 2015 resolutions
in this respect could be passed by simplified
quorums, i.e. by the majority of the capital
share attending the shareholders’ meeting for
the resolution, in deviation of Arts. 2368 and
2369 of the Italian Civil Code, which provide
that qualified majorities are required to amend
the articles of association.
2. Shareholders have to have owned the
shares for at least twenty four months without
interruption and, as abovementioned, the
increased voting rights may grant only up to
a maximum of two votes per share. However,
the lawmaker has recognised wide discretion
in this respect to companies, for example, the
articles of association may stipulate that a
single share entitles the shareholder to 1.5 votes
after thirty six months, which increases to two
votes per share after a further twelve months.
This, therefore, allows long-term investors to
play a greater role in the management of the
company.
3. Shareholders have to register in the special
register of the issuing company; this serves
two purposes: a) it establishes from when the
twenty four months of ownership runs; and b)
it informs the market, other shareholders and
third parties when the increased number of
votes becomes exercisable.
It should be noted that increased voting rights
are not classified as a separate class of shares.
Indeed, unlike classes of shares, the entitlement
to increased voting rights is triggered by the
shareholder’s behaviour, namely the length
of uninterrupted ownership of the shares.
Therefore, increased voting rights do not create
differences between shareholders, because
every shareholder can benefit from increased
voting rights simply by maintaining ownership
for the required period. The strict relationship
between the shares and the shareholder’s
behaviour is even more evident when it comes
to share disposal. The increased voting rights
are automatically cancelled when the shares
are transferred - for consideration or free of
charge - thus requiring the new shareholder
to register in the issuing company’s special
register to obtain entitlement.
In Italy, approximately 10 listed companies
have adopted the increased voting rights’
mechanism. Three companies (Campari,
Amplifon and Astaldi) availed themselves of
the ability to amend their articles of association
by the abovementioned simplified quorum
majority. The explanatory reports, submitted
by the boards of directors of all 10 companies
to their respective shareholders’ meetings,
ground the proposal to amend the articles of
associations on arguments generally consistent
with the aim of the Competitiveness Decree.
In particular, such arguments are to incentivise
shareholders to maintain a long-term
commitment to the company, to decrease
volatility of the share price and to facilitate
long-term decisions by the management of
the company.
The impression thus far gleaned from the
reaction of Italian listed companies is that
the loyalty share mechanism may be used by
State-owned listed companies if the Italian
government decides to carry out a new round
of privatisation in the future. Conversely, the
possibility to use this instrument to increase the
number of listed companies and to promote
M&A deals by Italian listed companies is
still uncertain. Traditionally, Italian private
companies have been reluctant to go public,
not only because their founders do not want
to lose control, but also, and mainly, because
they believe that the burden of being listed
(also in term of cost) is not counterbalanced
by the advantages of being listed.
From a comparative point of view, it is interesting
to compare Italian and French loyalty share
mechanisms. In France, double voting rights will
be automatically introduced for all companies
from April 2016 under the “Florange law”.
Hence, French companies must submit an opt
out request to the shareholders’ meeting, or to
an extraordinary meeting convened for that
purpose, if they wish to return to the one-shareone-vote
rule. The Florange law has faced
harsh criticism: investors and boards perceive
it as an anti-takeover mechanism, enforced
by the State through the automatic opt-in,
thus limiting the company’s decision-making
discretion, and the French Financial Market
Authority has expressed concerns that “the
automatic implementation of double voting
rights would, at best, have no significant real
impact, and at worst could lead to a negative
or perverse effect”, for example, in terms of
shareholder democracy at shareholders’
meetings.
In this sense the Italian approach, i.e. opting
in rather than opting out, which therefore
grants companies wider discretion, seems
more appropriate and respective of the will
of shareholders, as the mechanism is not
automatically enforced. It will, however, be
interesting to see the effects of the Florange
law on the French market, in particular if the
purposes of the Competitiveness Decree as
mentioned at the beginning of this article are
not fully achieved through the loyalty share
mechanism in Italy. LM
www.lawyer-monthly.com

34 ABA
ISSUE 64-15
NEW ABA
PRESIDENT
TO FOCUS ON DIVERSITY,
INCLUSION IN JUSTICE SYSTEM
Paulette Brown, a labour and employment law partner and
co-chair of the firm-wide Diversity and Inclusion Committee
at Locke Lord LLP in Morristown, N.J., took office this month as
president of the American Bar Association at the conclusion of
the ABA Annual Meeting in Chicago. She is the first woman of
colour to become president of the 136-year-old organization
and will serve as president until the close of the ABA Annual
Meeting in August 2016.
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ISSUE 64-15
ABA
35
“The challenges we face appear to be
daunting, but they are not insurmountable.
Our commission is up for the challenge and
will offer tangible, sustainable solutions that
will have a positive impact on the perception
of our justice system.”
“I look forward to leveraging the power of
the nearly 400,000 ABA members to promote
full and equal diversity and to end bias in the
legal profession and the justice system. If we
are true to our calling as lawyers, we must
address this issue.”
Fund for Justice and Education and the FJE
President’s Club, and is a life fellow of the
American Bar Foundation.
Brown has held many positions throughout
her career, including serving as in-house
counsel to a number of Fortune 500
companies and as a municipal court judge.
In private practice, she has focused on all
facets of labour and employment and
commercial litigation. Brown has been
recognized by the National Law Journal
as one of “The 50 Most Influential
Brown plans to devote her presidency
to serving ABA members and
highlighting the value of the association
by reaching out to lawyers and communities
across the country. She is also organizing And
Justice for All: An ABA Day of Service on Oct.
30, to mobilize thousands of lawyers across
the country to volunteer their legal services to
those living on the economic margins.
Brown also plans to build on the work the ABA
has already done in the area of diversity and
inclusion through a newly created Commission
on Diversity and Inclusion 360. The Commission
will review and analyse diversity and inclusion
in the legal profession, the judicial system and
the American Bar Association with a goal of
developing sustainable action plans.
“The ABA has an important role in rebuilding
the nation’s confidence in our justice system,”
Brown said.
“Working to eliminate bias and enhance
diversity and inclusion is one of the four goals
of the ABA and it is critically important that
the ABA increase its efforts at this time in our
nation’s history.”
“
The ABA has an important role
in rebuilding the nation’s confidence
in our justice system
“
Brown has held a variety of leadership Minority Lawyers in America” and by the
positions within the ABA. She has been a New Jersey Law Journal as one of the
member of the ABA House of Delegates since “prominent women and minority attorneys in
1997 and is a former member of the ABA Board the State of New Jersey.” She has received
of Governors and its Executive Committee the New Jersey Medal from the New Jersey
as well as the Governance Commission. State Bar Foundation and currently serves on
While serving on the Board of Governors, its Board of Trustees.
Brown chaired its Program, Planning and
Evaluation Committee. She has served on the Brown has repeatedly been named as
Commission on Women in the Profession and a New Jersey Super Lawyer and by U.S. News
was a co-author of “Visible Invisibility: Women as one of the Best Lawyers in America in the
of Color in Law Firms.” Brown also chaired the area of commercial litigation. In 2009, Brown
ABA Council on Racial and Ethnic Justice (now was a recipient of the Spirit of Excellence
Coalition on Racial and Ethnic Justice) Award from the ABA Commission on Racial
and is a past co-chair of the Commission and Ethnic Diversity in the Profession. In 2011,
on Civic Education in our Nation’s Schools. she was honoured with the Margaret Brent
Women Lawyers of Achievement Award
Brown served on the Section of Legal by the ABA Commission on Women in the
Education’s Council on Legal Education Profession. Brown earned her J.D. at Seton
and Admissions to the Bar and its Executive Hall University School of Law and her B.A. at
Committee. She is a former member of The Howard University. LM
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Construction & Infrastructure
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38 International Legal Roundtable
ISSUE 64-15
www.lawyer-monthly.com

ISSUE 64-15
International Legal Roundtable
39
CONSTRUCTION AND
INFRASTRUCTURE
Lawyer Monthly’s International Roundtable takes several
leading legal professionals who specialise in a specific
sector and speaks to them in depth about their work and
experience within that area.
This month our circle of focus is the Construction and Infrastructure industry. This industry
is vast and far-reaching and subject to countless different areas of law and practice –
including health and safety, corporate law, M&A and employment.
This month we look at the sector in the UK and Australia, looking at the rules and regulations
that surround it, the challenges that arise and the outlook for the future.
www.lawyer-monthly.com

40 International Legal Roundtable
ISSUE 64-15
CONSTRUCTION AND
INFRASTRUCTURE
Stephen Dodd, Practicing Barrister at the Irish Bar
Beginning our International Roundtable feature on Construction and
Infrastructure, Lawyer Monthly speaks to Stephen Dodd. Stephen has been a
practicing barrister at the Irish Bar for the last 15 years, specialising in general
infrastructure, construction and planning matters. He generally acts and
advises public authorities and developers and is the author of several books
on planning law and on the National Asset Management Agency (NAMA); the
State bad bank which acquired property related loans following the collapse
of the Irish property market.
Reports state that there has been an increase in
demand recently within the real estate market – has
this been reflected in the construction sector?
One lesson which the recent banking crisis in
Ireland has taught is to be sceptical of reports.
Prior to the collapse, which was largely as a result
of domestic property bubble rather than global
factors, economic reports were uniformly positive.
Even where though there are signs of recovery,
too often there is tendency to produce a simplistic
narrative arc of inexorable expansion. The truth is
often more nuanced and mundane. Having said
all this, a Euroconstruct report indicates that the
Irish construction industry expanded almost 10%
last year, the highest rate of growth across its 19
member states, with similar forecasts for this year.
Building investment also grew by 7.2% in 2014.
However, all this is coming from an exceptionally low
base. There is a serious shortage of housing supply
as a result of years of waning construction. In 2014,
there were 8,800 housing completions, double from
the previous year but mostly funded by NAMA and
significantly down on peak levels of 93,000 in 2006.
Nonetheless confidence in the residential building
sector is indicated by a successful launch on the
London Stock Exchange in June of this year of newly
formed Irish house-building company which gained
€20 million in value on its first day of trade. Equally
the non-residential sector including retail and hotel
sectors are showing clear signs in recovery. Apart
from official statistics, also heartening are large
scale infrastructure projects getting underway such
as €600 million incinerator in Dublin which finally
commenced construction at the end of last year,
the award of contracts for road schemes previously
deferred, the ongoing upgrading of Irish electricity
grid and capital investment in sewage and water
supply network.
To what do you attribute this?
Naturally the recovery in construction is reflective of
generally improving domestic economic conditions.
The headline figures for 2014, show that Irish GDP
grew by 4.8% last year, exports increased 10.5%,
while domestic demand rose 3.5%. Again these rates
are expected to continue in 2015. There has been
a steady decline in unemployment rates which
have fallen below 10 per cent for the first time in 5
years. Rising property prices and rents is also making
investment in construction more attractive. One
of the identified causes of economic collapse in
Ireland was over-reliance on the construction sector
and no one wants a return to this. It is preferable
that the construction sector is following the general
economy rather than the other way round.
What are the biggest challenges facing the
construction and infrastructure sector in your
jurisdiction currently?
The main challenges include increasing supply
of serviced lands as well as securing finance to
develop. Following the collapse, the Irish banks
have understandably become more cautious in
advancing funds for property development. A
further factor is speed of delivery. Last year the
Irish Government announced its Construction 2020
strategy which is a package of measures aimed at
stimulating activity in the building industry. The aim
is to triple housing output by 2020, and at the same
time create 60,000 jobs in the sector. It is all very
well creating condition to encourage construction
but there is inevitably going to be a timelag until
completion and in the interim, soaring demand
creating further pressures on the market.
From a purely legal perspective, challenges include
navigating the consent process for delivering
any particular large scale project. In Ireland this
will generally involve an application for strategic
infrastructure development to the Irish Planning
Board (An Bord Pleanala). Large scale project
will typically involve environmental issues which
have to be addressed. Recent large windfarm
developments have fallen foul of the both the
Habitats and EIA Directives resulting in their consents
being quashed in the Irish Courts. As a result there
is some evidence of a recent trend of the Irish
Planning Board taking a more rigorous approach
during the consent process.
How do you and your firm help clients overcome
these challenges?
A more collaborative approach between public
authorities, in particular local authorities and
private developers is often the most efficient and
expeditious means of delivering construction. I act
and advise both public authorities and developers
and there is more of a dawning realisation of being
stakeholder with common objectives. Engagement
with the community is also important where the
public are informed and genuinely listened to
throughout life cycle of a project from inception to
completion.
Local authorities are adopting a more evidence
based approach in their development plans and
are looking at more strategic means of encouraging
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ISSUE 64-15
International Legal Roundtable
41
development including special land designations
such a strategic development zone (SDZs). An
example of this is the Dublin Docklands area where
there is over 22 hectares of development potential.
A planning scheme and Masterplan has been
adopted which involves Dublin City Council acted
in a capacity of development agency working with
landowners to deliver coherent development.
In terms of negotiating the planning consent
process, particular care and attention needs to be
made to Habitats and EIA Directive considerations,
which entail addressing and assessing uncertainties
at the earliest possible stage prior to the submission
of an application and so anticipatory rather than
reactive.
What regulatory change has had the biggest impact
on this sector, and your work, in the last one to two
years? Can you tell me a little about it?
New Building Regulations were introduced which
require signing off at pre-ordained stages on
the building process start to ensure it complies
with building regulations. The genesis of these
Regulations, arose from a well-publicised
evacuation of large apartment development in
Dublin due to construction and fire safety issues.
The regulations have increased costs and the
burden on the developers but nonetheless provide
more assurance for building standards. The Aarhus
Convention, in particular the requirement that
costs of any legal challenges are not prohibitively
expensive is something which has significantly
exercised the Irish legislature and Courts. It has
been implemented in Ireland by providing that for
certain consents, the default position is that costs
will not be awarded against a challenger where
they are unsuccessful. As result we are seeing more
environmentally motivated legal challenges to
projects.
Although more specialised, also significant is the
Trans-European energy infrastructure [Regulation
(EU) 347/2013] under which 248 projects in Europe
have been designated projects of common interest
(PCI’s) The first of these designated projects to seek
consent approval is an Irish project which is the North
South Interconnector development; a proposed
138km electricity line connecting networks of
Northern Ireland and Republic Ireland. I am acting
and advising EirGrid, the national transmission
operator in the Republic and the applicant for
consent. The Irish Planning Board, is the designated
competent authority and it has been a challenge
to integrate the procedures prescribed in the
Regulation with existing Irish law.
Is there anything else you would like to add?
A lot of construction related Irish laws are unwieldy
with an excess of amendments and there is need
for greater consolidation. However, a common
refrain among lawyers is clarity is not to be overly
encouraged as without confusion and chaos there
would be no need for lawyers. LM
Contact:
Stephen Dodd
The Law Library, the Four Courts, Dublin 7, Ireland
stephendodd@lawlibrary.ie
www.lawyer-monthly.com

42 International Legal Roundtable
ISSUE 64-15
CONSTRUCTION AND
INFRASTRUCTURE
IAN H BAILEY SC FROM WENTWORTH CHAMBERS
Concluding this month’s International Roundtable feature on Construction and
Infrastructure, Lawyer Monthly speaks to Ian H Bailey SC from Wentworth Chambers in
Sydney, Australia. Ian primarily practices as a barrister, but also as a court – appointed
referee, an arbitrator and dispute resolution practitioner. He has practiced as an
advocate in substantial construction disputes in most States in Australia, in domestic
commercial arbitrations and State Supreme Courts appearing before the bench
and before Court-appointed Referees.
You are recognised as one of Australia’s leading
construction practitioners. Why do you think this is?
The focus, if not driving force, of my professional
career has been advancing learning in the field of
construction law and dispute resolution practice in
the Australian construction industry. Recognition
has come from colleagues not only from the
conventional practice areas of litigation and
arbitration, but also from my academic life, and
participation in professional associations. I have
held executive positions in the Institute of Arbitrators
& Mediators Australia (IAMA) and was instrumental in
founding the Society of Construction Law Australia
(SoCLA) (www.scl.org.au). Participating at an
international level for such organisations has allowed
me to forge links with overseas practitioners with
similar professional passions, and take Australian
experience and expertise to the world.
Most recently I have been appointed to chair
a Standards Australia committee charged with
drafting new General Conditions of Contract which,
hopefully, will reflect internationally recognised
standards for construction contracts. With a strong
interest in dispute avoidance, management and
resolution I have developed a process; Contract
Facilitation, to be incorporated as an option in the
new Standard General Conditions.
You have considerable experience in major
construction disputes; what kind of disputes do you
deal with most regularly?
My recent experience has been primarily as an
arbitrator, but also as counsel, in disputes arising
from massive resources projects across Australia.
Subsidiary areas of practice in past years have
included large scale residential and commercial
construction disputes, and professional negligence
proceedings involving construction professionals.
What are the biggest challenges facing the
construction and infrastructure sector in Australia
currently?
The Australian economy is suffering to some extent
as a result of the downturn internationally in the
demand for natural resources. As a response
to these economic pressures governments at
Commonwealth and State level are implementing
substantial infrastructure investments particularly in
transport.
The orderly delivery of these infrastructure programs
will require co-ordinated deployment of labour
and materials resources and involve significant
challenges.
How do you and your firm help clients overcome
these challenges?
My colleagues and I on Ground Floor Wentworth
Chambers are implementing a further education
CPD program, offering to share our expertise with
both lawyers and industry. An important focus
of this program will be tackling issues and current
challenges faced by the construction industry,
developing a better understanding of construction
law and innovative dispute resolution practice.
My intention is to work closely with the SoCLA in
Sydney and other professional associations in
developing the program so as to target the current
issues confronting the construction and infrastructure
sector in Australia.
Have there been any major regulatory changes to
affect your work within the construction sector over
recent years? If so, what impact have they had on
your work?
A major concern for the Australian construction
industry has come about from the introduction
Contact:
more than a decade ago of private certification of
construction work. The legislative schemes in most
States have serious defects. The construction industry
and its clients have seen a dramatic increase in the
extent of defective building work, without having
access to adequate means of redress. Governments
have been slow to recognise the issue. Identifying
solutions is a major priority for the industry.
Do you see the need for any legislative changes? If
so, please explain.
Parliaments could be very busy dealing with
legislative change for the construction industry.
Our federal system of government and strongly
individualist State legislators has led to unnecessarily
inconsistent laws applying to the construction
industry. Security of Payment acts are a particular
problem. I am pleased SoCLA has published a
comprehensive report recommending reform to
harmonise the approach.
Residential contract disputes in Australia are
problematic, particularly where the development
is a Strata Corporation with multiple dwelling or
commercial unit owners. There is a growing wave
of major disputes between Strata Corporations and
the project’s contractors and developers. In many
cases the difficulties are seriously compounded
by the application of inconsistent proportionate
liability under civil liability legislation. Reform in the
procedure for the conduct and resolution of such
matters will benefit the construction industry and
residential consumers. I am particularly interested in
developing such processes. LM
Ground Floor Wentworth Chambers, 180 Phillip Street, Sydney, NSW 2000, Australia
Tel: + 61 2 9230 3290 | Mobile: +61 (0) 407242571
Email: bailey@wentworthchambers.com.au | i.bailey@unimelb.edu.au
Website: www.wentworthchambers.com.au | www.ianbailey.com.au
www.lawyer-monthly.com

EXPERT
insight into...
Bankruptcy & Insolvency | Commercial Litigation
Patents | Intellectual Property

44 Expert Insight Into...
ISSUE 64-15
BANKRUPTCY AND
INSOLVENCY
Ivo-Meinert Willrodt
Branch Manager of PLUTA
PLUTA Rechtsanwalts GmbH, Barthstraße 16, 80339 Munich
Tel.: +49 89 858963-3 | Fax: +49 89 858963-445 | Email: ivo-meinert.willrodt@pluta.net | Website: www.pluta.net
Bankruptcy and insolvency rates inevitably rise during periods of economic turbulence, and the recent global financial
crisis has left many companies with shrinking assets and considerable debt with little or no chance of repayment. To
find out more, Lawyer Monthly speaks to Mr. Ivo-Meinert Willrodt, Branch Manager of PLUTA, who focuses on complex
corporate restructuring and insolvency matters both domestically and on a cross-border basis. Mr. Ivo-Meinert Willrodt is
regularly appointed as an insolvency administrator by several courts in the South of Germany and has also worked as a
CRO. This means that he has gained a lot of experience in insolvency proceedings on all scales. He also advises clients on
the legal aspects of putting capital into distressed investments and in critical situations.
With more than 330 employees in Germany, Italy, Poland
and Spain, PLUTA is one of the top enterprises specialising
in restructuring and turning around companies in central
Europe. PLUTA is a founding member of the Global BTG
Advisory network.
As an expert in insolvency and bankruptcy, what is the
main advice you give your clients so that they can avoid
insolvency?
In many cases the clients ask for advice too late. Often
the crisis scenario starts with a strategic problem. At first,
this only affects sales, but in the short or long term, this
usually leads to a liquidity crisis. With good management,
this situation can be avoided, if the enterprise repeatedly
rethinks their strategy and focuses on the concerns of
their customers. In a liquidity crisis, it is often already too
late for any action.
In addition to financial restructuring, operational
restructuring should always be carried out as well.
Usually financial restructuring only leads to successful
restructuring of the business in the medium term (1-2
years). It is often the case that an enterprise is once more
in a crisis situation after this period of time.
How complex are the rules that govern restructuring in
Germany?
The German insolvency rules differ substantially from
the British Insolvency Act of 1986 (IA 1986) and the
Insolvency Rules of 1986 (IR 1986) or the American
Bankruptcy Code. But that does not mean that it is more
complex or complicated than the other systems. The
German Insolvency Act of 1999 is designed to provide
alternatives to winding up insolvent businesses. It offers
debtor-in-possession proceedings and the opportunity to
restructure a business with an insolvency plan. The Law
on Further Facilitating the Restructuring of Companies
(ESUG) reform of 2012 succeeded in promoting the
use of debtor-in-possession and insolvency plan
proceedings and introduced new restructuring tools
such as the debt equity swap. It introduced debtor-inpossession
proceedings even at a preliminary stage
of the proceedings (§270a InsO) and the so-called
“umbrella proceedings” as a stand-alone option (§270b
InsO). In addition, it strengthened the creditors’ position
by the optional establishment of creditors’ committees
and creditors’ rights even in preliminary proceedings.
Successful restructuring projects are therefore almost
always possible using the existing tools. Expensive COMI
shifts to England are usually not necessary.
Have there been any significant changes in the
bankruptcy law in the EU?
Yes, the EU has adopted the new European Insolvency
Regulation (EU) 2015/848. The new regulation is already in
force (16 June 2015) and will be applicable in all member
states as from 26 June 2017.
What are the main changes in the new European
Insolvency Regulation (EU) 2015/848?
The scope of the new regulation has been extended
to proceedings which promote the rescue of distressed
businesses and which give entrepreneurs a second
chance. It now includes proceedings which provide for
debtor’s restructuring at a stage where there is only a
likelihood of insolvency and proceedings which leave the
debtor fully or partially in control of its assets and affairs
(so-called debtor-in-possession proceedings).
The new regulation also tries to clarify the definition of
the COMI (centre of main interest) of a business in order
to prevent fraudulent or abusive forum shopping. Before
opening insolvency proceedings, the competent court
has to examine at its own discretion whether the debtor’s
centre of main interest or the debtor’s establishment is
actually located within its jurisdiction.
In the area of secondary proceedings (Chapter III), there
are significant changes. Secondary proceedings are no
longer automatically liquidation proceedings. A new
aspect is the introduction of synthetic / virtual secondary
proceedings.
It also assists cooperation, communication and
coordination in the event of the insolvency of group
members (Chapter V) and in secondary proceedings
(Chapter III).
In order to improve the provision of information to
relevant creditors and courts and to prevent the opening
of parallel insolvency proceedings, member states are
required to provide creditors with relevant information
on cross-border insolvency cases in a publicly accessible
electronic register (Chapter II).
In addition, creditors have the opportunity to register their
claims by using standard forms (Chapter IV).
Are the new synthetic / virtual proceedings (article 36 EIR)
a useful new restructuring tool?
With the new article 36 EIR and the establishment of the
so-called synthetic (or virtual) secondary proceedings,
the EU wants to support the main proceedings.
The new article 36 (1) EIR allows the insolvency
practitioners in the main proceedings to ensure that
secondary insolvency proceedings are not opened
and to assume a unilateral commitment concerning the
assets located in a member state in which secondary
insolvency proceedings might be opened. Therefore
when distributing those assets or the proceeds received
as a result of their being sold, the insolvency practitioner
will comply with the distribution and priority rights under
national law that creditors would have if secondary
insolvency proceedings were opened in that member
state.
With this new regulation it is no longer possible for foreign
creditors to prevent all the assets or the whole company
being sold by the insolvency practitioner in the main
proceedings, by applying for the opening of secondary
proceedings. LM
www.lawyer-monthly.com

ISSUE 64-15
Expert Insight Into...
45
COMMERCIAL
LITIGATION
Oliver Clifton
Partner at Walkers
Tel: +1 284 852 2246 | Mob: +1 284 346 0560
| Email: oliver.clifton@walkersglobal.com
The Commercial Court of the British Virgin Islands was established in 2009
and since then it has dealt with a high volume of financial services work. The
most regular disputes involve BVI companies which are owned by clients in
Russia and the CIS, the Far East, and Africa, however, the BVI ultimately has a
truly international client base and BVI practitioners deal with litigation which
originates from around the world. To find out more, Lawyer Monthly benefits
from an article from Oliver Clifton from Walkers. Oliver joined Walkers’ British
Virgin Islands office in 2006 and is a Partner in the firm’s Commercial Litigation
& Dispute Resolution Group.
Since joining Walkers, Oliver has worked on disputes
which involve the enforcement of share security,
the ownership and control of BVI companies, and
claims against trustees. Oliver regularly acts for
clients based in the CIS, in particular Russia, Kazakhstan,
and Azerbaijan, as well as Africa and the Middle and Far
East. Since 2007 Oliver has acted in the on-going Alfa
Telecom v Cukurova litigation. He has recently been
involved in substantial disputes concerning oil terminals
in Russia and the Caucuses.
In the litigation space, the BVI was once best-known for
its fraud work. Although hard-fought shareholder disputes
continue to be a main-stay of the Commercial Court,
BVI litigation now encompasses large-scale commercial
disputes, complex insolvency proceedings, as well as trust
matters. The Commercial Court frequently hears urgent
ex parte applications but now also often hears lengthy
trials. Some of the most significant litigation before the
Commercial Court relates to the enforcement of security
over the shares in BVI companies.
Appeals from the Commercial Court are first sent to the
Eastern Caribbean Supreme Court and thereafter to
the Privy Council. In recent years commercial disputes
originating in the Commercial Court have given rise to
authorities in all of the key areas of BVI practice.
Commercial disputes
The focus of commercial disputes in the BVI is often on the
ownership or control of BVI companies.
Disputes between shareholders are often dealt with
under the provisions of the BVI Business Companies Act,
2004. Where a minority shareholder has been unfairly
prejudiced, the Commercial Court may make a wide
range of orders for relief including the buy-out of shares,
the appointment of a liquidator, and the regulation of the
future conduct of a company’s affairs.
Where shareholder disputes are subject to an arbitration
clause contained in a shareholders’ agreement, the
Commercial Court may nevertheless hear urgent ex
parte applications for preservative relief under the
provisions of the Arbitration Act 2014. These provisions
give the Commercial Court wide-ranging powers to assist
parties to arbitrations heard either in the BVI or overseas.
Disputes as to the ownership of BVI companies may be
the subject of substantive proceedings in the Commercial
Court or so-called ‘Black Swan’ proceedings intended to
preserve the company’s underlying assets. These disputes
are often aggressively fought and sometimes involve the
indirect ownership of very substantial assets.
Insolvency proceedings
In the wake of the financial crisis the Commercial
Court appointed liquidators to a number of distressed
companies. The Commercial Court and the Court
of Appeal have also established various authorities
concerning the liquidation of BVI-registered investment
funds. The Commercial Court has been an important
forum for the determination of a number of Madoffrelated
disputes.
Where a creditor can show that an insolvent company’s
assets are being dissipated the Commercial Court may
appoint a provisional liquidator. Upon appointment the
provisional liquidator will then take steps to secure the
company’s assets pending the Commercial Court’s
determination as to whether a liquidator should be
appointed. In certain circumstances, the Commercial
Court will jointly appoint an insolvency practitioner based
in the BVI and an insolvency practitioner based overseas.
Trust matters
The Commercial Court hears a range of trust disputes.
These disputes often concern claims by beneficiaries
against trustees or by third parties seeking to assert claims
against trust assets. The Commercial Court also regularly
hears applications by trustees for directions. Where
appropriate trust matters are heard in camera and
members of the public are excluded.
Enforcement of share security
The Commercial Court often hears disputes concerning
the enforcement of security over shares in BVI companies.
These disputes usually arise out of attempts by both
institutional and private lenders to enforce security
granted in support of substantial financings. Often at
issue is the ownership and control of very significant
underlying assets which include substantial stakes in
telecoms companies or energy interests.
There is also considerable scope of lenders to enforce
their security following an event of default without
recourse to the Commercial Court. Where the grant of
share security is accompanied by a suitable package of
ancillary documents a lender may take effective steps
to perfect its security and take control of the underlying
company. The lender may thereafter seek to enforce
the security by way of sale either directly or through the
appointment of a receiver. Where the governing law of
share security is not BVI law, the Commercial Court will
give effect to the rights and remedies available to the
lender under the foreign governing law of the security.
This will be the case even where the lender’s rights and
remedies are not available under BVI law. LM
www.lawyer-monthly.com

ISSUE 64-15
Expert Insight Into...
47
You have 32 years of experience in Patent
Law, how drastically has the sector evolved
during that time?
Very significant changes have occurred since
the time I started practicing. The patent
world has seen the advent of “patent trolls” or
“non-practicing entities” that file suit in order
to recover licensing fees on technologies
that they do not use, or that file suit in an
attempt to “extort” money from practicing
entities under the threat of an injunction. The
Eastern District of Texas has become a haven
for these trolls, when 32 years ago, the District
did not even exist for that purpose. The Court
of Appeals for the Federal Circuit (CAFC) was
created in 1982, the year before I graduated.
That Court is now the highest Court in the
land regarding patent appeals, absent the
US Supreme Court. Over the years both the
CAFC and the US Supreme Court have slowly
whittled away the rights of patentees, such
that it has become harder for companies to
enforce their patents. Over the years, it has
also become so complex and expensive to
litigate patent cases that small and mid-sized
companies are often times either unable
to assert their patents or maintain a proper
defence. Therefore, when defending a
claim of patent infringement such companies
usually succumb to threats of patent
infringement by settling early for amounts less
than the cost of litigation, even though they
may not be liable for infringement.
You have appeared in over 260 federal cases
in more than 48 Federal District Courts, as well
as having handled hundreds of injunctions in
over 35 different states around the nation. Do
any of these cases stand out in your memory
as particularly challenging or interesting?
Can you tell me why?
Yes. One of the most memorable series of
cases involved a California state court case
brought by us on behalf of St. Jude Medical
against a former engineer who downloaded
trade secrets from the company’s server,
and then went to China to start a competing
company. The new Chinese company the pressure is actually greater when dealing
sourced integrated circuit chips from one of
St. Jude’s suppliers. The Supplier recognized
the specifications as having been developed
with smaller companies, seeing as though
there is more at risk for them and they may
have more on the line.
by St. Jude. We sued the former employee
and the new Chinese company for theft of
trade secrets. Just before trial the Chinese
company’s counsel and the employee’s
The legislature cannot keep up - either on the
Federal side or the state side. Even though
the America Invents Act was passed only a
counsel withdrew. We then proceeded few years ago, there have been numerous
to trial and obtained a $1.2 billion dollar
verdict against both. The Chinese company
subsequently went into bankruptcy.
attempts to make additions or changes to
in the legislature. Most of these changes
deal with proposed legislation to address
“
The patent world has seen the advent
of “patent trolls” or “non-practicing entities” that
file suit in order to recover licensing fees on technologies
that they do not use, or that file suit in an attempt
to “extort” money from practicing entities under
the threat of an injunction
“
What are the most commonly occurring “Patent Trolls.” Additionally, numerous states,
problems to crop up in Patent litigation? including Florida, have enacted statutes in
order to deal with perceived problems with
Proving damages has become difficult and “Patent Trolls.” None of these state statutes
expensive. A good damages expert will cost
or proposed federal statutes are really
into the six figures. Another significant issue is
addressing the problem—they are only using
ESI (electronically stored information). Again,
a bazooka to try to kill a fly. In the interim, they
are not fixing the “troll” problems, but rather,
it can cost into the six figures to retain a good
enacting legislation that may hurt all small
ESI retention company to assist in discovery
businesses, not just patent trolls.
issues.
How do you see the rest of 2015 and 2016
Your extensive client list includes national and
progressing for this sector? Do you envisage
international high-technology manufacturers.
a busy time ahead?
How challenging are these cases? Can
legislation ever keep up with the pace of I see it continuing to be a very busy area of
change within the Technology sector?
the law, but with a shift in the types of actions
and cases. There will be more filings in the
I think that all cases for a client are challenging, PTO, such as IPR’s (Inter Partes Reviews) and
whether they are for international companies CBM’s (Covered Business Method), with less
or “mom and pop” operations. Sometimes litigation per se in the district courts. LM
www.lawyer-monthly.com

48 Expert Insight Into...
ISSUE 64-15
INTELLECTUAL
PROPERTY
CHILE
Rodrigo Cooper, Founder of COOPER & CIA
Alcántara 200 Of. 402, Las Condes, Santiago, CHILE
Tel: (56-2) 22245-7171 | Email: rcooper@cooper.cl | Website: www.cooper.cl
The World Intellectual Property Organisation (WIPO) defines Intellectual Property (IP) as ‘creations of the mind:
inventions, literary and artistic works, and symbols, names, images, and designs used in commerce’. IP touches
every part of commercial life. It covers trademarks, patents, copyrights and more recently, sound marks. Protecting
a company’s IP and brand is one of the most important aspects to business; it is a vital way in which a company’s
success can be guarded. This month we take a look at the issues surrounding Intellectual Property in Chile by
speaking to Rodrigo Cooper, a lawyer from Universidad de Chile (summa cum laude), with an LLM specialized
in IP at the London School of Economics and Political Science, U. of London. He is Professor of IP Law at U. de
Chile, and invited Professor at postgraduate studies at Universidad Católica de Chile and U. of Heidelberg´s LLM.
Rodrigo founded the IP Law Firm, COOPER & CIA in 2006 and represents a large portfolio of national and foreign
companies, as well as public organizations and charities.
What are the common types of intellectual property
legal disputes that arise in Chile? How are these
disputes typically resolved?
The most typical issues, apart from registering IP
in general, are disputes over piratical trademark
registrations and actions against anti-counterfeiting.
We also have a vast experience in patent litigation.
How often is litigation used to enforce intellectual
property rights in Chile? What is the process of pursuing
intellectual property infringement lawsuit?
Chilean law allows both civil and criminal action
against IP infringement. Most commonly, we prefer
civil actions, as we have more possibility of being
heard by judges. The sanctions are merely fines in
favour of the Government so, as in many countries,
the final goal is to obtain, as soon as possible, an
injunction and seizure order from the courts, and
then the destruction of the infringing goods. In some
cases, when the infringer is an established company,
we seek compensation damages. Chilean IP Law
contains specific rules to facilitate the evaluation of
the damages to be compensated.
How are trademarks registered in Chile?
The procedure is rather simple. An application
should be filed at the TM Office. After it approves the
preliminary Examination (formal), an abstract should
be published in the Official Gazette. There exists a
term of 30 working days to file oppositions against it.
If no opposition is filed, the Registrar conducts a final
examination (to review if any prohibition of registration
exists, both inherent or relative) and, if approved,
the registration is granted. This process may take
approximately nine months. If oppositions are filed, the
applicant is given a term to respond. In this case, the
procedure may take up to approximately 18 months.
In any case the decision, rendered by the Trademark
Office, may be appealed before a Special IP Second
Instance Court.
What difficulties do companies typically encounter
when registering a trademark in Chile? How can these
companies avoid difficulties?
Chilean Law and practice are very helpful in granting
registrations. The most relevant obstacle may consist
in the trademark already registered in the name of a
third party. If the registration was made in bad faith, it
is not generally difficult to obtain its cancellation, but
this process may take more than a year.
The other difficulty is that Chilean TM Law does not
require use of registered trademarks. Hence, if the
trademark is already registered, it is not possible to
challenge it on the basis of non-use. The only way is
through an action of cancellation based on bad faith.
But, the inexistence of the requirement of use may
help foreign companies in protecting their trademarks
in advance, when they are not clear if they would
or would not be used, as they may register them in
advance, without risk of being cancelled if not used
for years.
What are the requirements for copyright protection in
Chile? Who owns the copyright and how long does
copyright last?
Copyright is vested in the author for the sole act of
creation. The author may assign, transfer, license, etc.
its patrimonial rights, but not the moral rights. It lasts for
the life of the author plus 70 years. Chile is a member
of the Berne Convention and most of the modern
conventions.
What types of disputes typically arise from the
copyright act in Chile? How frequently do these
disputes result in litigation?
The most typical cases relate to ownership and
infringement.
Is there anything else you would like to add?
The last Chilean Government sent in 2013 the draft of
a new law of Industrial Property, in order to have only
one, modern and actualized text, as actual law has
suffered so many addendums and modifications, in
order to adapt it to TRIPS, and TLCs with the European
Union and USA.
The new law will include the possibility of challenging a
trademark registration on the basis of non-use.
We do not expect said draft will mature into a new law
until, at least, a couple of years. LM
www.lawyer-monthly.com

Specialist
ADVOCATE
CONSTRUCTION DISPUTES | MEDIA, ENTERTAINMENT & SPORTS LAW

52 Specialist Advocate
ISSUE 64-15
Dr Donald Charrett
BE(Hons), LLB(Hons), MConstLaw,
PhD, FIEAust, MIAMA, FCIArb
Barrister, Arbitrator & Mediator
Email: d.charrett@me.com
Tel: +61 3 9225 6886
Fax: +61 3 8660 2842
Website: www.mtecc.com.au
CONSTRUCTION DISPUTES
AUSTRALIA
The construction industry covers a vast collection of issues and is always subject to the potential
for dispute, just like any other industry. Here, as part of Lawyer Monthly’s Specialist Advocate
feature, we turn our attention to the Australian construction sector by speaking to Dr Donald
Charrett, a barrister practising in construction law, and an accredited Arbitrator, Mediator and
FIDIC trainer. His legal expertise includes litigation, mediation, expert determination, facilitation
of experts conferences, arbitration and membership of Dispute Boards. Prior to becoming
a lawyer, he worked as an engineer for over 30 years, including 12 years as a director of a
consulting engineering firm.
As a barrister in Australia, what are the
common types of construction disputes that
you see? How do disputes in the construction
industry originate, and why do they escalate?
Construction disputes are typically about one
or more of time, cost or quality. Time: is an
event that delays completion the contractual
responsibility of the Contractor, entitling the
Employer to liquidated damages, or is it the
contractual responsibility of the Employer,
entitling the Contractor to an extension of
time? Cost: is an identified aspect of the
work within the Contractor’s scope and
therefore covered by the contract price, or is
it a Variation, entitling the Contractor to extra
payment (and perhaps time)? Quality: has the
Contractor executed the work in accordance
with the contractually specified quality, or are
there defects that require rectification?
The Security of Payment legislation provides
for a short and economical adjudication
of cost claims, which are central to many
disputes. This process is now the predominant
primary forum for the resolution of construction
disputes, and has resulted in the majority of
construction litigation in recent years.
Disputes typically arise because (known or
unknown) risks eventuate and the contracting
parties construe their obligations under the
contract differently. The widespread use of
bespoke contracts, or heavily amended
standard form contracts, means that there
may be little judicial guidance on how unique
contract clauses are to be construed. Disputes
typically escalate because communications
have broken down, and neither party
is prepared to negotiate a commercial
settlement, instead relying on a formal dispute
resolution process.
What can contracting parties do to avoid
disputes?
I have four suggestions:
a. Get the contract right before it is signed: this
requires a comprehensive definition of the
scope, and a balanced allocation of the
risks (time, cost & quality), ie to whichever
party is best able to manage or assume
them.
b. Ensure that the contract is signed before
work starts.
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ISSUE 64-15
Specialist Advocate
53
c. Ensure the project is executed in
accordance with the contract and the
execution risks are properly managed.
d. Resolve contentious issues as they arise, at
least provisionally.
These steps require identification,
understanding and management of the risks
at all project stages.
The potentially adversarial nature of traditional
forms of construction contracts arising from
the divergent interests of Employer and
Contractor often make c. and d. difficult.
There is ample Australian and international
evidence that an appropriately constituted
Dispute Board, comprising members
independent of the contracting parties, can
materially assist the parties in these functions,
and thereby avoid disputes.
You act as arbitrator, mediator, expert and
Dispute Board member. Which method of
alternative dispute resolution (ADR) is the
most appropriate to resolve disputes in the
construction industry?
Avoidance of disputes is the best method
of “resolution”, and a standing Dispute
Board engaged at the start of a project
and meeting regularly with the contracting
parties has proved to be very effective in
assisting the parties to avoid disputes, or in
adjudicating disputes at least cost and time.
In the absence of a Dispute Board, the most
appropriate method of dispute resolution is
the one that delivers an acceptable level of
“justice” at least time and cost, preferably
without destroying working relationships. A
hierarchy of effective ADR methods in order
of increasing time and cost is: negotiation
between the parties, mediation /conciliation
by a third party neutral, adjudication or expert
determination by an appropriately qualified
adjudicator/expert, with formal arbitration the
most time consuming and expensive (albeit
the most “just”). Ultimately, any method of
ADR needs to be tailored to the needs of the
particular dispute to deliver a just, quick and
economical outcome acceptable to the
parties.
As of the 1st of May 2015 the National
Construction Code (NCC) has been adopted
by all States and Territories in Australia. What
does the code aim to achieve? How will the
NCC develop in the future?
The NCC is an Australia wide code to specify
the minimum necessary requirements for
safety, health, amenity and sustainability in
the design and construction of building work
throughout Australia. It is a ‘performancebased
code’, encouraging innovation
and flexibility in how it is complied with. It
also includes prescriptive solutions in the
form of deemed-to-satisfy provisions that
comply with the Performance Requirements.
The NCC is a technical document that is
given legal effect through State & Territory
Building Control legislation, and incorporates
the Building Code of Australia (BCA) and
the Plumbing Code of Australia. These
documents specify uniform building and
plumbing standards throughout Australia (to
the extent achievable), whilst allowing for
the idiosyncrasies of Commonwealth, State
and Territory legislation. The three volumes
comprising the NCC, plus a guide to the BCA
and a volume of performance requirements
extracted from the NCC, are available to
download in pdf format free of charge from
the Australian Building Codes Board (ABCB)
website.
The broad agenda behind the NCC is to
increase the productivity and competitiveness
of Australian industry by removing unnecessary
red tape, and achieve substantial productivity
gains from building regulation reform. All
on- site regulatory building requirements are
to be incorporated into one national code,
including the requirements for gas fitting and
telecommunication pathways, and possibly
electrical works.
What challenges are faced by international
companies in Australia, with regards to
construction?
General Conditions of Australian construction
contracts are frequently bespoke, and even
where standard forms are used, they are
frequently heavily modified. International
standard form construction contracts such
as FIDIC are rarely used. Many bespoke and
modified standard form contracts allocate to
the Contractor risks over which it has no control
or ability to manage. This results in significant
additional time and cost in tendering and
negotiating contracts, and can lead to an
adversarial project environment in which
disputes are more likely.
Although there is a single common law of
Australia, significant issues impacting on
construction contracts arise from State and
Territory legislation on Consumer Law, Security
of Payment and proportionate liability. The
uniquely Australian prohibition on misleading
or deceptive conduct in trade or commerce in
the Australian Consumer Law has far reaching
ramifications that impact all commercial
activities, and may provide a remedy not
achievable via contract or tort law. Whilst that
legislation is essentially the same throughout
Australia, the same cannot be said for
either proportionate liability or Security of
Payment, in which each State and Territory
has unique (and often substantially different)
legislation. This proliferation of legislation, and
in other areas impacting construction such
as environment, health and safety, adds
a burden of cost and complexity to any
company operating throughout Australia.
Amongst other significant challenges are
those arising from corruption, and the control
that unions exert over employment on
construction sites. Both of these issues are the
subject of the current Royal Commission into
Trade Union Governance and Corruption,
due to report to the Australian Government
by 31 December 2015.
How does your experience as an engineer
help inform the guidance you give in
construction disputes?
My engineering background not only
informs my understanding of the technical
issues frequently at the heart of construction
disputes, but is also of considerable assistance
in preparing briefs for technical expert
witnesses and assisting lay technical witnesses
in preparing their witness statements. Further,
my engineering training and experience
in structuring a problem in a logical way,
focussing on the essential issues and
assembling the relevant background facts
and appropriate theoretical considerations is
just as applicable to legal disputes as it is to
engineering problems. LM
www.lawyer-monthly.com

54 Specialist Advocate
ISSUE 64-15
Athelstane Aamodt
Tel: +44 (0)20 7404 5252
Email: clerks@4-5.co.uk
Website: www.4-5.co.uk
MEDIA, ENTERTAINMENT
AND SPORTS LAW
Lawyer Monthly’s Specialist Advocate feature looks in depth into the work of experienced and highly skilled
lawyers and barristers to explore the world within which they practice. We focus on the challenges they face,
how they overcome them, the types of case they work on and what led them to the legal world in the first
place. This month’s Specialist Advocate speaks to Athelstane Aamodt, a barrister at 4-5 Gray’s Inn Square in
London. He specialises in media and entertainment, employment, and sports law. He spent the last thirteen
years working in-house for a variety of film and TV companies, culminating with a period spent at the BBC.
How dramatically has the media,
entertainment and sports law sector
changed in the time you have been
practising?
Hugely, although I still have a fax number
on my business card, so some things don’t
change! Media law (which isn’t actually
an area of law, rather various practice
areas applied to an industry) is unusual in
that what it deals with is deeply wedded
to developments in technology. No
practice area will remain untouched by
developments in technology, but I suspect
that shipping and planning are going to be
less affected than – say – videogames every
time a faster chip is produced by someone.
The change is manifold and extraordinary.
In 2014 libel actions rose over 300%,
thanks principally to social media. People
mistakenly (perhaps drunkenly) think that
merely re-tweeting something defamatory
isn’t anything to worry about, not knowing
that defamation is a strict liability tort. Last
month the High Court gave leave to serve
an injunction via Instagram. All of this is down
to developments in technology. People now
have an audience that they didn’t have in
the past.
What are the most common types of cases
you come across within this industry?
The majority of my clients work in the media,
and regardless of whether I’m advising them
on something contentious or non-contentious,
the biggest issue will tend to be copyright.
In the past copyright was much easier. You
wrote a book, that book was published
(perhaps in more than one language) and
you – as the author – collected your royalty
cheque. Now it’s very different. If you write a
book there are hard copies and e-books. The
rights in the book are frequently optioned for
the purposes of making a film or television
programme, or indeed prequels, sequels,
or spin-offs based on the book. The films or
television programmes will often produce tiein
consumer products (including computer
games on various platforms). The list goes
on. Making sure that this byzantine mosaic of
rights is correctly labelled and apportioned
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ISSUE 64-15
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is something that many of my clients worry kind of royalty you get if the film is shown
about more than anything else.
at three in the morning on an affiliate in
Arkansas.
What are the key challenges you face within
your work and how do you navigate them? Which regulatory changes would you like to
see?
I think that staying up to date is always a key
challenge for a lawyer, especially in an area I still find it odd that in defamation claims
like employment, where the volume of cases the defendant has the burden of proving
(especially in the Employment Tribunal) is that a statement is true because the starting
huge. One of the best ways to navigate this assumption is that it is false. I think that it
is actually using Twitter; BAILII, the Supreme should be down to the claimant to show that
Court, many firms, chambers, academics, the statement is false (as is the case in the US).
journalists, and commentators all have very From a sports law perspective, I still think that
good Twitter feeds that report decisions and a lot of the rules that govern footballers are
news hot off the press, so it’s a great triage long overdue for reform. For example, I think
unit and also a good place to ask questions. that if a player commits a reckless, instant redcard
“studs up” foul and injures that player,
A really good guide to how quickly the
world of media is changing is the slide-show the player who committed the foul should
produced annually by Mary Meeker at KPCB be suspended for as long as the other player
on Internet Trends. They’re available on-line is out injured. I also think that the FA needs
and are the best weather vane that I know. to be more willing to punish terrible tackles
“
I think that staying up to date is
always a key challenge for a lawyer,
especially in an area like employment,
where the volume of cases is huge
“
How complex are the legal frameworks that that the referee misses. At the moment the
regulate these industries?
circumstances need to be “exceptional”. In
an age of 4K UHD TV and multiple camera
It depends. For example, in film and television angles, it’s absurd not to re-referee decisions
a lot of the time you will engage people that are simply wrong.
under the collectively bargained terms of
their union. So if you engage an actor, they Can you tell me about any major cases you
will be a member of Equity or SAG. Both of have worked on?
these union agreements are very long and
contain a multitude of provisions that will I worked on the case of Lee Bowyer, Jonathan
govern everything from nude scenes to the Woodgate and Anthony Hackworth, three
Leeds United footballers who were charged
with seriously assaulting a man called
Sarfraz Najeib outside a nightclub in Leeds.
Although Woodgate was convicted of affray
and Hackworth was cleared of all charges,
the acquittal of Bowyer and Woodgate of
GBH caused a great deal of controversy at
the time.
What did you find most rewarding about the
cases you have worked on?
I think that all lawyers like cases that are
unusual. However, I’ve always found that the
most unusual cases are frequently the ones
that – on the facts – seem unremarkable.
For instance, I once acted for someone
in a case against Cirque de Soleil. At first it
just seemed like a vanilla contract dispute.
However, one of the issues was whether or
not copyright existed in a magic trick, which
is a wonderfully thought-provoking issue. For
the most part (if one excludes the dialogue
and stage set) the answer is “no” because
the underlying origins and contrivances of
many magic tricks are so very old, such as
the “cups and balls” trick and Balducci
levitation (the trick that David Blaine does to
make it look as though he’s floating off the
floor with no means of support).
Why did you choose to embark upon a
career in law and why these specialisms?
I wanted to become a lawyer because like
most lawyers I enjoy argument and debate. I
didn’t actually choose these areas; I fell into
them by accident and have stayed ever
since! I find quite often that people end up
doing things that they never expected. LM
www.lawyer-monthly.com

www.lawyer-monthly.com

Each month, Lawyer Monthly
looks at the legal news from
around the world and the
topics it raises. Legal Focus
explores the most topical
issues by featuring the legal
professionals who deal with
these subjects on a day to
day basis, to gain expert
insight, opinion and fact.
Look deeper into the legal
news of the moment with
Legal Focus.
LEGAL
FOCUS
www.lawyer-monthly.com

ISSUE 64-15
Legal Focus
59
This month’s Legal Focus covers a range of major practice areas and issues, reflecting the news of the legal world over the
last few weeks. The stories below are explored further within the following interviews and features with expert lawyers from
across the world, as well as related issues from their specific jurisdictions and comment on the other legal implications that
many of these major stories uncover. We hope you enjoy this edition of Legal Focus.
Agriculture -
Profitability remains a problem
60
Farming has been in the news a lot in the UK recently, with protests taking place across the country
against the low price of milk, which is forcing dairy farmers to sell their product at unsustainably low
prices. This is a problem which is not just related to dairy farming, profitability of farming is an issue across
all sectors of the industry, as Jon Robertson, Partner and head of Land and Property at Turcan Connell in
Edinburgh says in his Legal Focus interview this month. Jon says: “The related issues of agricultural support
and the profitability of farming are major challenges. The failures that arose in the implementation of
the CAP reform and the ongoing uncertainties with regard to the basic payment scheme and future
payment timetables are causing great concern and uncertainty in the market. Further challenges are
created by the land reform proposals of the Scottish Parliament and the disincentive this creates to
the letting of land to the great disadvantage of those seeking to spread their overheads across larger
acreages.” You can read more from Jon in his interview on page 60.
yer-monthly.com
Notary Services -
An important and ancient profession
A Notary is described by the Notaries Society as being a ‘member of the third and oldest branch of
the legal profession in the United Kingdom’. The functions of a notary include the authentication and
certification of signatures and documents, as well as exercising the powers of a Commissioner for
Oaths. The Notary is a well-established role, as Mark Lello from Parker Bullen explains. He comments:
“The profession of Notary Public is a very old one with its origin in the civil institutions of ancient Rome.
Originally being mere copiers and transcribers they rose eventually to the rank of a learned profession
and because of their technical knowledge and skill took a prominent part in the conduct of public
and private affairs.” You can read more from Mark about the role of a Notary and the work he covers
in his Legal Focus interview on page 71.
71
Professional Negligence -
Claims on the rise
74
Recent reports have been showing that claims of professional negligence, affecting many industries
such as real estate, medicine and accountancy, are on the rise. Graeme McPherson QC at 4 New
Square explains just how important it is to seek expert legal advice on this subject, advising: “Professional
liability work continues to evolve at a rapid pace. Instructing a lawyer who is not on top of the subject
and intimately involved in the field risks the client being poorly advised, missing key opportunities
and ultimately suffering financially and reputation-wise. In addition, the increasing overlap between
professional liability and professional discipline means that a professional can find himself fighting on two
fronts if an initial complaint or claim is not handled properly from the very outset, causing further harm.”
You can read more from Graeme in his Legal Focus interview on page 74.
Also in Legal Focus this month…
As well as the subjects above, this month we also cover Commercial Law, Electronic Discovery and Product Liability. We
hope you enjoy this edition of Lawyer Monthly’s Legal Focus.

60 Legal Focus
ISSUE 64-15
AGRICULTURE
Agricultural law is a vast practice area covering many varied and complex
issues, from rural property issues to agricultural finance. To find out more,
Lawyer Monthly speaks to Jon Robertson, Partner and head of Land
and Property at Turcan Connell in Edinburgh. Established in 1997, Turcan
Connell’s leading team of land and property experts have a wealth of
experience in advising on all aspects of agricultural and rural property
law. As well as handling the purchase, sale and leasing of agricultural
property, they advise on all the legal aspects of managing rural property.
This includes agricultural finance, mineral exploitation, agricultural
subsidies, farming partnerships and tenancies. The firm also advises on
the commercial development of rural property through activities such
as forestry, fishing, shellfish farming and the sale of development land.
They have considerable experience in all aspects of renewable energy
developments including wind, hydro, biomass and anaerobic digestion.
What are the most common types of case you deal
with related to the agricultural industry?
We advise clients on the whole range of agricultural
law matters across Scotland but the main issues
we come across relate to agricultural leasing.
Representing both agricultural landlords and tenants
and dealing with contentious and non-contentious
agricultural law matters we handle everything
from the constitution and termination of leases to
rent reviews, irritancy, fixed equipment issues and
subsidy questions. Uniquely, Turcan Connell has a
contentious agricultural law unit where agricultural
law specialists take agricultural law cases to the
Scottish Land Court and beyond.
What are the biggest challenges facing the Scottish
agricultural Sector currently?
The related issues of agricultural support and the
profitability of farming are major challenges. The
failures that arose in the implementation of the
CAP reform and the ongoing uncertainties with
regard to the basic payment scheme and future
payment timetables are causing great concern and
uncertainty in the market. Further challenges are
created by the land reform proposals of the Scottish
Parliament and the disincentive this creates to the
letting of land to the great disadvantage of those
seeking to spread their overheads across larger
acreages.
claims, the transfer of entitlements and take appeals
through the relevant processes. On land reform
we are currently involved with various industry
membership organisations in advising on agricultural
reform and briefing clients on the impacts on their
businesses of the proposed legislation.
The UK economy continues to make a slow but
steady recovery from the financial crisis of 2008.
Is this recovery being reflected in the agricultural
industry? How?
Scottish agriculture continues to experience low but
volatile prices and at the same time increasing land
prices. The phased reduction of agricultural support
and the volatility of pricing as a result of world events
and weather makes for an unstable economic
platform. The safety net of renewables, ranging
from farm scale wind to anaerobic digestion, is
now threatened by the withdrawal or degression of
support, by planning log jams and refusals and by
grid capacity issues.
Have there been any recent regulatory changes that
have affected your work?
The introduction of the basic payment scheme has
generated an immense amount of work for farmers
and their advisors, a process that has been made
far more complicated than it had to be as a result
of government constantly changing their position
and very often with government guidance one
day contradicting what was said the day before. IT
glitches and delays in responding to queries made
for a very challenging period this year. Constant
government proposals for land reform create
an unstable marketplace threatening inward
investment prejudicing the let land market. Coupled
with the withdrawal and degression of support for
renewables, there have been too many significant
impacts on rural businesses within a very short
timeframe.
Do you see the need for any changes? If so,
please explain.
There is a great need for clarity and certainty on the
basic payment scheme. A huge amount of time has
been wasted and many farmers will be prejudiced
by the chaos surrounding this year’s application
process. On agricultural holdings there has been a
constant moving of the balance of power in favour
of tenants to the extent that it is difficult to see why a
landowner would now let land and existing landlordtenant
relationships have been undermined.
The simple fact that if a government truly wants
agricultural land to be let, they only have to make
the letting of land attractive to would-be landlords,
has been forgotten. A balancing of the interests of
landlords and tenants would benefit the whole of
rural Scotland. LM
How do you and your firm help clients overcome
these challenges?
Advising on the basic payment scheme and its
implementation is extremely difficult because of the
lack of information and the fact that the position
is constantly changing. This is of great concern
given the vital nature of these payments to Scottish
agriculture. We advise on the entitlement to make
Jon Robertson
Tel: 0131 228 8111 | Email: jonathan.robertson@turcanconnell.com
www.lawyer-monthly.com

Leading the way
in rural property
Rural property issues can be complex and
may appear daunting. At Turcan Connell, our
experienced team of legal advisers specialise in
agricultural law and rural property.
Whether you are a land owner or involved with
land management, we advise on:
• Agricultural law
• Agricultural support
• Crofting
• Forestry
• Conservation
• Development sales
• Land reform
• Rural planning
• Renewable energy
We believe in an interdisciplinary approach
which enables us to provide the very best advice
and counsel to each of our clients.
We are here to guide, inform and support you
through this legal landscape.
Contact one of our specialists today.
Edinburgh Glasgow London
Princes Exchange, 1 Earl Grey Street,
Edinburgh EH3 9EE Tel: 0131 228 8111
Sutherland House, 149 St Vincent Street,
Glasgow G2 5NW Tel: 0141 441 2111
Follow us on Twitter @TurcanConnell
enquiries@turcanconnell.com www.turcanconnell.com
Turcan Connell is a Partnership of Scottish Solicitors regulated by The Law Society of Scotland.

62 Legal Focus
ISSUE 64-15
COMMERCIAL LAW
BULGARIA
Commercial Law covers all areas of commercial life and requires
specialist legal knowledge and guidance to ensure compliance with
the myriad of rules and regulations that surround it. To find out about
the commercial legal framework in Bulgaria, Lawyer Monthly speaks
to Dimitar Bonchev Karastoyanov, founder and Managing Partner of
Karastoyanov, Mitkov & Associates Law Office in Sofia. Dimitar heads
the legal practice in the fields of Corporate and Commercial, as well
as Civil law and is a part-time professor in Civil and Commercial law at
several universities in Bulgaria, author of articles and studies in the field
of Corporate Law.
You handle business transactions such as
mergers and acquisitions, how are most M&A
deals structured in Bulgaria? What difficulties do
companies commonly encounter during M&A
deals?
Deals are structured following the classical
approach – the sending of an offer, concluding
of confidentiality agreement, financial and legal
due diligence, closing of the deal and potentially –
escrow agreement and other guarantees. Signing
of a simple agreement for acquisition of the shares
could happen occasionally – in case the parties
are close business partners or relatives. The most
important part of our work is conducting the proper
due diligence and structuring and providing the
mechanism which could protect the participants in
the deal in the most sufficient and balanced way.
When reorganising a company in Bulgaria, what
difficulties are usually encountered? How can
companies avoid these complications?
The lack of proper paperwork and company
archive are the main problems we face in our
practice. Despite this there are ways to avoid or at
least minimize the risk in this situation. Checking all
possible public registers is crucial by all means.
the possible tax implications. We provide certain
indemnities clauses in the contracts in case of nonperformance
which usually push the other party to
follow the contract’s requirements and thus avoid
court disputes. All contracts should be updated
with the current court practice of the relevant
Bulgarian and European courts, of course.
What are the typical contractual disputes that arise
the most frequently in Bulgaria? How these disputes
are usually resolved?
The biggest part of the contractual disputes is
connected with delay payments, non-performance
and claiming indemnities or other kind of damage
compensations. We try to convince and help
our clients for out-of-court settlement. We have
the experience and qualification to provide this
service. Unfortunately the mediation and other
ADR procedures are not so common practice in
Bulgaria as it is expected. Therefore, we advise
our clients to provide an Arbitration clause in their
contracts which allows them to have a time-saving
and cost-saving procedure. Another part of our
efforts is to identify and to distrain in advance
sufficient property of the defendant in order to
secure the proper execution of the court decision.
When undergoing complex international business
transactions, what advice do you give to companies
to help them avoid any difficulties? What difficulties
commonly arise during international transactions?
Each complex transaction requires a complex
approach in order to cover the specific needs of
such a transaction. The legal aspect of the deal is
just part of the whole picture. We do our best to
be focussed in all legal aspects and details and at
the same time to establish good communication
with the other experts involved in the transaction.
Usually, the problematic points in the cross-border
deals are related with reaching an agreement on
the applicable legislation and appointing the court
which will be competent to resolve any potential
disputes. The teamwork in this case guarantees the
prosperous closing of the deal.
Is there anything else you would like to add?
During the preparation of our new web-site
we agreed to adopt a slogan that defines our
Law Office. “We are deal makers, not deal
breakers” was approved among all colleagues
with no objections. LM
What contracts do your clients usually ask you to
draft? What do you include in your contracts to help
your clients avoid future contractual disputes?
Mainly contracts for conducting of the daily
business of our clients which is related to various
types of transactions. Having in mind that we
provide legal services to a wide range of business
activities, the deep knowledge of the specific
business field is essential as well as considering
Dimitar Karastoyanov, Attorney-at-law
Managing Partner at Karastoyanov, Mitkov & Associates Law Office
Member of Alliance of Business Lawyers
11 Evlogi i Hristo Georgievi Blvd., 3rd floor, 1142 Sofia, Bulgaria
Tel: + 359 2 963 05 79; + 359 2 963 06 15 | Website: www.lawyers-bg.net
www.lawyer-monthly.com

ISSUE 64-15
Legal Focus
63
ELECTRONIC
DISCOVERY
Electronic discovery is the process by which electronic data is sought,
located, secured, and searched in order to be used as evidence
in a civil or criminal legal case. Within the modern world, electronic
discovery, also called e-discovery, is increasingly becoming a common
aspect of legal proceedings and it requires skilled and experienced
legal professionals to work on it and navigate the potential issues.
Over the next few pages, as part of Lawyer Monthly’s feature on
Electronic Discovery, we speak to several lawyers who are qualified and
experienced in this type of work to find out about the sorts of cases they
work on, the challenges they regularly face and what regulatory issues
they deal with.
www.lawyer-monthly.com

ISSUE 64-15
Legal Focus
65
ELECTRONIC DISCOVERY
Beginning our Feature Report on Electronic Discovery, Lawyer
Monthly speaks to Andrew Haslam from Allvision. Andrew is the UK’s
leading independent eDisclosure consultant with twenty years of
experience in this area. He provides expertise in eDisclosure; strategy,
planning and implementation to law firms, barrister chambers and their
clients. Andrew produces an annual UK Guide to eDisclosure Systems
which is recognised worldwide as a definitive reference. In 2013 he
was the technical adviser to the working party that produced the
Technology and Construction Court (TCC) eDisclosure protocol and
continues to serve on the team overseeing the protocol’s evolution. He
provides a range of eDisclosure training from one hour sessions through
to a full day.
What is e-Disclosure and what are the common
difficulties that law firms encounter with e-Disclosure?
As a technology person I would say that eDisclosure
is neatly defined in the EDRM model as a staged,
interconnected set of processes that flow from
Information Governance, through to Identification,
Preservation, Collection, Processing, Review,
Analysis, Production and Presentation. If you look at
the TCC eDisclosure protocol you see we use those
headings within the document. The protocol itself is a
set of best working practices that is not just confined
to the TCC, indeed it has been used in Arbitrations,
international cases and in Jersey. The guidelines
to the protocol contain many pages of “worked
examples” of text you can use to explain how you
will meet your disclosure obligations. They are worth
a read in their own right.
The most common difficulty with eDisclosure I see
law firms encountering, is that they still come to it late
and unprepared. By the time they involve people
who know what is going on, they have missed most
of the opportunities to control costs, scale and time.
This is a very complex and technical area and you
need specialist advice very early on.
The budgeting process embodied in Precedent H
has been a significant catalyst in making firms much
more aware of the issues surrounding eDisclosure
and the need to involve suppliers early on in the
process, if you want to have a budget line item that
stand a fighting chance of reflecting the reality of
what you will spend.
Increasingly a key component of resolving a
dispute is to undertake an electronic disclosure
process. However, electronic disclosure can be time
consuming and costly, can you detail the process
you follow in relation to electronic disclosure and
how you manage to keep the investigation on track?
eDisclosure. That can be your in-house team, one
of the forty or so UK eDisclosure suppliers, or external
consultants. The sooner they help you understand
the size and depth of the information you are going
to work with, the better your chances of keeping it
under control. The lawyers still drive the process in
working with clients to identify the issues of the case,
and then looking at who, what and where to identify
the data they need. Then the experts can track it
down and give you an accurate feel for the time
and costs it will take to process.
What IT solutions are available to law firms that are
encountering difficulties with e-Disclosure? How do
these solutions make the management of files more
efficient?
If you don’t have an IT solution you are working
with one (if not both) hands tied behind your back
and run the risk of your opponents running rings
around you, to say nothing of the reputational and
professional risk. There are one hundred suppliers
listed in the current edition of the Buyer’s Guide.
Between them they provide options for any situation
law firms will encounter, from a few hundred emails
to terabytes of data.
There is no single “silver bullet” solution, though a
product called Relativity has emerged as the market
leader for Review work with some 26 organisations
offering it in the UK. I see two trends in the market;
first, a need for a low fixed cost early review of
small volumes of data, second, law firms forming
true partnerships with suppliers who offer a total
managed service. Getting “best value” for your
client by asking for three quotes for every piece of
work you do is a waste of everyone’s time. If you ring
up a supplier on a Friday afternoon and ask them
for a price to process 200 GB’s by Monday you are
severely limiting their options to help you.
There is a lot of clever technology out there that
can dramatically cut the size and time of the review
process. It is all perfectly defensible and offers
significant strategic advantage to those law firms that
work with suppliers to embrace it. The TCC protocol
explicitly details how you can use such things as
early data assessment, email threading, review
propagation to duplicates and near-duplicates
and even the much feared, but misunderstood
Computer/Technology Assisted Review (CAR or TAR).
The 2015 Buyer’s Guide contains the results of a survey
on the use of CAR in England and Wales during 2014.
It found that the technology is being used by the
majority of suppliers across a wide range of areas
(litigation, arbitration, regulatory and fraud) but that
the biggest barrier to use was law firms themselves.
If you aren’t using it your opponent probably is, and
you are at an extreme disadvantage.
Is there anything else you would like to add
There is a window of opportunity for forward thinking
law firms to form partnerships with selected suppliers
and embrace the use of technology to dramatically
cut the size, complexity and cost of eDisclosure.
Those suppliers are already talking directly to your
clients, if you don’t move soon you will find yourself
cut out of the conversation. LM
Andrew Haslam
Tel: +44 (0) 7789 435080 | Email: andrew.haslam@allvision.co.uk
LinkedIn: www.linkedin.com/in/andrewthaslam | Twitter: @AndrewHaslam
The one key factor to success is the early involvement
of experts who understand the issues surrounding
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66 Legal Focus
ISSUE 64-15
ELECTRONIC
DISCOVERY
SUBJECT ACCESS
Drew Macaulay
Continuing our feature looking at electronic discovery, Lawyer
Monthly speaks to Drew Macaulay, Managing Director of Consilio.
Drew is based in London and has overall responsibility for service
delivery for all projects in Europe and Asia. Consilio provides
electronic disclosure and managed document review services to
corporations and law firms involved in litigation, arbitration and
regulatory or internal investigation matters. The company was
founded in the U.S. in 2002 and has grown over time to become
one of the most international electronic disclosure service providers
with offices across the US, EU and Asia. Key specialisms include
projects related to financial services compliance, anti-bribery
and competition/antitrust. In essence, our focus is on reducing
cost and creating efficiencies through appropriate outsourcing of
review tasks and the use of innovative technology.
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ISSUE 64-15
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67
“
Subject Access Requests are frequently
used by existing or former employees in an
impending employment dispute
Drew has been involved with
legal technology for over ten
years and started his career
specialising in courtroom
technology for Civil and Criminal litigation
as well as Public Inquiries and high profile
Inquests. Eventually, the business for
which he was working was acquired by a
US-based electronic discovery company
and the focus of his work shifted from
courtroom technology to pre-trial disclosure
consulting. In 2010 he joined Consilio and
was initially responsible for Consulting
Services and Business Development in the
UK. Over time Drew’s role has changed to
meet the needs of the business but he is still
regularly involved in hands on project work,
particularly for larger and more complex
engagements. In one such matter for a
large UK bank Drew is directing the work
of 30 technical staff and more than 100
Consilio contract lawyers on a multi-billion
pound High Court litigation, so there is
plenty to keep him busy!
“
investigation and needs to undertake a
disclosure exercise. The disclosure exercise
will usually involve a number of different
stages, including collection of electronic
data from corporate IT systems and mobile
devices, processing and searching the
electronic data to identify documents
of potential relevance, the review of
those documents using purpose-built
disclosure software and the production
of relevant documents following review.
In recent years, much of our work has been
for clients in the financial services sector. In
addition to the litigation matters common
to many large corporations, financial
services entities are highly regulated and
are often the subject of investigations into
conduct of business. These investigations
may be internally or externally initiated
and can involve the review of millions of
documents over months and sometimes
even years. At the end of the process
huge fines can be levied by the regulator,
and follow-on litigation is becoming
ever more commonplace, so in-house
legal and compliance teams are under
significant pressure to resolve these
investigations quickly and effectively, even
though they may involve searching and
review of emails, audio files and chat room
transcripts for hundreds of employees.
We are increasingly involved in supporting
Subject Access Requests which, while they
“
The organisation must produce the
information within 40 days of the request, and given
the complexity and scale of some corporate IT
systems this can be a daunting task
“
Please tell me a little about the typical
types of cases you work on related to
Electronic Discovery?
Consilio specialises in large scale and
international projects involving the
collection, processing, searching and
review of electronic documents for
litigation, arbitration and regulatory or
internal investigations. A typical matter
will involve a multinational corporate
client which is involved in a dispute or
The proliferation of electronic data in
terms of volume and type has added
further complexity to the process, with
the majority of our projects now involving
the processing of millions of documents
in a range of formats from email and MS
Office to Bloomberg chatroom transcripts,
telephone recordings and data from social
media applications.
do not usually involve significant volumes
of data from large numbers of employees,
can be challenging for corporate Legal
and HR teams due to the very short
deadlines involved. A Subject Access
Request is a demand made by a person
under section seven of the Data Protection
Act 1998 for any data an organisation
holds about them. The organisation must
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68 Legal Focus
ISSUE 64-15
produce the information within 40 days
of the request, and given the complexity
and scale of some corporate IT systems
this can be a daunting task. The company
must first identify the locations and formats
in which relevant information is stored,
collect the documents that mention
the subject in question then perform a
been within this context that Consilio
has been engaged. While we do not
provide any legal advice in relation to
the dispute itself, the technology and
workflow techniques used in investigations
and litigation disclosure exercises lend
themselves very well to reducing the cost
and time taken to respond to a SAR.
according to instructions agreed with
the client. While you would perhaps
expect that the instructions would be fairly
consistent between clients, the reality is that
in practice the amount of information that
needs to be redacted to satisfy personal
data or other confidentiality undertakings
varies according to client-specific policies,
so careful training, management and
quality control is required to produce
consistently high-quality results.
What common challenges do you face
within this subject area and how do you
navigate them?
review and redaction exercise to confirm
the relevance of the information to
be disclosed. The company must also
excise from the disclosable material any
information that may by legally privileged
or that may reference other employees
(whose data the organisation is bound
to protect!). In practice, this redaction
exercise can be quite time consuming,
as the amount of data involved can be
significant – it is not uncommon for more
than 80% of the documents reviewed to be
redacted.
In the early stages, our consultants
and forensic experts will assist with the
identification and collection of the sources
of potentially relevant documents before
the resulting data is “processed” or
converted into a searchable database
against which keyword, date range or
other more complex searches can be
performed. Once the potentially relevant
documents have been identified they
are loaded into a specialist eDisclosure
platform to enable our teams of contract
lawyers undertake a review exercise
We typically act for clients who, on receipt
of a SAR, are faced with a substantial review
exercise. Therefore, our experience is that
the main challenges are reviewing and
producing the SAR documents within the
40 calendar day timescale, and carrying
out the work as cost-effectively as possible,
as clearly the nominal £10 fee paid by the
subject for a SAR does not stretch very
far! Thankfully over the years we have
built up a large pool of experienced and
screened contract lawyers, which allows us
to put together large review teams of 30-40
lawyers in just a couple of days.
Have there been any major legislative
changes that have affected this sector
recently? Can you tell me about them?
There have been no legislative changes in
relation to the Data Protection Act (section
7 of which creates the right to subject
Can you tell me specifically about
your work in relation to Subject Access
Requests?
Subject Access Requests are frequently
used by existing or former employees in
an impending employment dispute as an
inexpensive method by which to obtain
relevant documents, and it has generally
“
potentially wide-ranging changes to the data
protection sector are on the horizon as a result of the
proposed EU Data Protection Regulation
“
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ISSUE 64-15
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69
“
Citizens in countries with a history of the
invasion of personal rights are more likely to be in
favour than those who come from countries who
have not had a similar experience
“
access). However, potentially wideranging
changes to the data protection
sector are on the horizon as a result of the
proposed EU Data Protection Regulation.
This is currently expected to come into
being at the end of this year. Rather than
individual EU member states setting (subject
to the minimum protection required by the
EU Data Protection Directive of 1995) and
policing their own data protection laws,
the law would become harmonised across
the EU and enforcement centralised in a
single body. There is too much detail to
go into here, but one of the aims of the
Regulation is to give individuals easier
access to their own data. The burden of
complying will inevitably to be shouldered
by the organisations holding that data.
How would you change the regulatory
framework surrounding this area, if you had
the power? Why?
The difficulty here is balancing the
protection of individual rights against the
administrative burden protecting those
rights creates on organisations. Whether
you think that the SAR process needs
changing will very much depend on your
personal and political views of where
the balance should lie. For example, the
owners of businesses are likely to be in
favour of relaxing the rules when (in their
minds) it comes to onerous or nuisance SAR
requests, whilst individual customers are no
doubt in favour of the status quo. Similarly,
those citizens in countries with a history of
the invasion of personal rights (for example,
Germany) are more likely to be in favour
than those who come from countries who
have not had a similar experience (for
example, the UK).
What do you think the next 12 months holds
for Electronic Discovery?
I expect that the volume and variety of
data that needs to be collected, reviewed
and produced for litigation and especially
investigations will continue to rise, so the
use of machine learning technologies
such as predictive coding to identify
and categorise relevant material will
become more and more common, and
will be used on a wider range of source
data types.
I would also expect to
see fewer law firms running large
internal eDisclosure departments as the
requirement to invest regularly in up-todate
processing and review technology
or expensive information security provisions
makes it less attractive from a profitability
standpoint. LM
Contact Details:
Drew Macaulay - Managing Director
Consilio
Global eDiscovery Specialists
10 Aldersgate Street, London, EC1A 4HJ
Direct +44 203 695 0090 | Website: www.consilio.com
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ISSUE 64-15
Legal Focus
71
NOTARY SERVICES
This month Lawyer Monthly looks at the work of a Notary Public
and the issues surrounding Notary services by hearing exclusively
from Mark Lello from Parker Bullen. Mark became a Notary Public
in 1998 and has practised as such ever since alongside his practice
as a solicitor in partnership with others at the firm.
Mark began: “The vast majority of the
notarial work that we do consists
of notarising documents, typically
for use in connection with
transactions involving overseas matters, land or
other property. I am conscious that my principal
duty is to the transaction in those circumstances
and my role as such is to authenticate the
document for use in the context of that
transaction.
“As a further step by way of additional
confirmation to those who may need documents
prepared for use overseas I am also able
to arrange for an apostille (or other official
legalisation of the document) to be fixed by
the Foreign and Commonwealth Office in
accordance with the Hague Convention. I can
also send the document to be legalised at a
relevant embassy, consulate, high commission or
equivalent body. The Hague Convention 1961
enables the parties to that convention to rely on
a document which is apostilled and notarised
to effect the transaction concerned without
seeking further confirmatory documentation.
That said, certain local preferences can arise
and it is helpful to know which jurisdictions like
things done in a particular way.”
Mark continued: “Typical international matters
with which I am concerned as a Notary
include the purchase or sale of land overseas,
the notarisation of powers of attorney for use
overseas, authenticating company and business
documents and transactions and authenticating
personal documents and information for and
with immigration or emigration purposes, or to
marry or work abroad. What I like about the
work is the fascinating mix of documents which
I am called upon to deal with from a wide array
of countries, to be legalised or otherwise dealt
with. One client might be buying a villa in Spain
and the next sorting out their relative’s estate in
Australia.
and understand French and German, like most
other notaries who do not possess specialist
legal language facilities, I insist on there being a
professional translation of the document in almost
all cases with very few exceptions. However, the
work brings me into contact with not only United
Kingdom citizens wishing to transact business
abroad but also those from other countries
who may be based here but have dealings in
countries elsewhere and need my assistance.”
Going on to talk about the origins of the role, Mark
explained: “The profession of Notary Public is a
very old one with its origin in the civil institutions
of ancient Rome. Originally being mere copiers
and transcribers they rose eventually to the rank
of a learned profession and because of their
technical knowledge and skill took a prominent
part in the conduct of public and private affairs.
Some were permanent officials attached to
the Senate in courts of law, recording public
proceedings, dealing with estate papers,
supplying legal forms, registering judgements
and decrees and others dealing with matters of
private concern including drafting wills, deeds,
conveyances and similar documents. Being
one of the oldest professions, notaries occur in
records from the mediaeval period and in works
of art from such times and in other contexts.
English notaries are, in a sense, public officers in
their role in authenticating documents for use in
transactions and we obtain our faculty (i.e. our
authority to practice) from the Court of Faculties
of the Archbishop of Canterbury. However, we
are also entitled to advise in relation to certain
legal matters in a similar way to a solicitor and
so for some categories of legal advice the
competences overlap.
“Some of the powers that we have as Notaries
are unusual, including the right to note and
protest bills of exchange or arrest ships. Whilst
we are not the only people entitled to do so, the
latter is certainly an unusual power and being a
notary based in Salisbury, one that I have had no
cause to use as yet!
“The English notarial profession is relatively
small with something of the order of 800 of us
in practice. This does mean on occasion that
people who need to use a notary sometimes
have quite a way to travel to find one of us. In
Salisbury I am often asked to act for people who
may have travelled for an hour or more and it
does make one very conscious of the privilege
and responsibility of being in a profession that is
so needed and yet not very easily accessed by
all.
“In my view the notarial profession is alive and
kicking and the members of it are very proud of
their status as such. They are also very collegiate
in their approach towards each other. There is
no sense of rivalry between notaries and there is
a good deal of goodwill between us. Notaries
continue to play a vital role in international
commerce, both of a business and personal
nature and I’m delighted to be one of them.”
Mark concluded: “Finally I am delighted to
report that when I do notarise documents, the
red wafer seal, the attractive corner and tape
attached are seen as positive advantages and a
far cry from the normal complaints about lawyers
“tying things up in red tape”. It is a tribute to the
notaries and our profession that the perception
is that!”. LM
Mark Lello
Managing Partner and Notary Public at Parker Bullen LLP
Tel: 01722 412000 | Fax: 01722 411822
Email: mark.lello@parkerbullen.com | Website: www.parkerbullen.com
“The other facet of the work is the range of
languages that across my desk and although I
profess only to speak and to limited extent write
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72 Legal Focus
ISSUE 64-15
How frequently do product liability lawsuits
arise in Japan?
PRODUCT
LIABILITY
JAPAN
While no official statistics are made available
by the Supreme Court of Japan for product
liability lawsuits, it is generally considered that
the number of product liability lawsuits filed
each year in Japan is not significant. However,
this does not mean that only a small number
of product defect related accidents/incidents
occur in Japan. According to the year 2013
statistics published by the Consumer Affairs
Agency (CAA), 3511 accidents were reported
to the CAA under the Consumer Safety Act that
affected or threaten to affect life or physical
health. Among those, 1317 accidents resulted
or threaten to result in severe damages, such
as death or medical treatment exceeding
(30) thirty days. Consequently, together
with properly addressing the risk of possible
product liability lawsuits being brought, it is
increasingly important to manage product
safety related issues proactively and timely;
failing to do so, may prejudice the value of the
manufacturer’s brand image.
At what point during a lawsuit are the
manufacturers of faulty products obligated to
recall their products?
Here we look into the issues surrounding Product Liability in Japan
by speaking to Junichi Ikeda, a partner at Nagashima Ohno &
Tsunematsu, which is widely known as a leading law firm and the
foremost provider of international and commercial legal services in
Japan. Prior to joining the firm, Junichi served as a judge of the Tokyo
and other District Courts, a staff attorney with the Civil Affairs Bureau
of the General Secretariat of the Supreme Court of Japan, and as
a deputy director of the Industrial Finance Division, Economic and
Industrial Policy Bureau, Ministry of Economy, Trade, and Industry (METI).
Junichi has also served as a coordinator of the Legislative Council
of the Ministry of Justice. Against this career background, Junichi
provides a relatively wide range of legal services, including those
concerning areas such as energy and environment, international
transactions, real estate securitization, and dispute resolutions,
including commercial litigation and international arbitration, with a
special emphasis on product safety and liability.
A manufacturer’s obligations to implement
product recall are neither triggered by nor
otherwise directly related to a finding of
liability by a court in a product liability lawsuit.
In short, the stage of a product liability lawsuit is
unrelated to the obligation of manufacturers of
faulty products to recall their products. Where
a serious accident resulting from a defect in a
consumer product occurs, or where a defect
creates a serious danger to the safety or lives
of consumers, or the occurrence of such
danger is considered imminent, the Consumer
Product Safety Act of Japan (the “CPSA”)
authorizes the competent minister to order the
relevant manufacturer or importer to conduct
a product recall or take such other necessary
measures to prevent the occurrence of, and
an increase in the severity of, such danger, as
such minister deems appropriate. Therefore,
a manufacturer or an importer is obliged to
implement a recall when so ordered under
the CPSA.
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ISSUE 64-15
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73
“
Punitive damages are not available under
the laws of Japan; only compensatory damages are
available under the laws of Japan, and these are
calculated based upon the actual injuries sustained or
damage incurred by the aggrieved party
How is the compensation that is awarded to
claimants in product liability lawsuits, typically
calculated? Can a dissatisfied party appeal a
decision made in a product liability lawsuit?
The types of damages recoverable under
a product liability lawsuit include those
recoverable for harm to life, body or property.
Damages for mental suffering are also
recoverable. On the other hand, punitive
damages are not available under the laws
of Japan; only compensatory damages
are available under the laws of Japan, and
these are calculated based upon the actual
injuries sustained or damage incurred by the
aggrieved party.
If a product liability lawsuit is filed and heard
in a district court, as the court of first instance,
and one of the parties thereto is dissatisfied
with the judgment rendered by the court,
such party can appeal against such judgment
to the high court through Koso appeal. If a
party to the Koso appeal is dissatisfied with the
judgment rendered by the high court, such
party can file Jokoku appeal against such
judgment to the Supreme Court on limited
grounds. Such party can also file a petition to
the Supreme Court for “acceptance of Jokoku
appeal” (i.e., to hear the Jokoku appeal) on
the basis that the case involves an important
issue relating to the interpretation of the law.
The Supreme Court has discretion to accept
or deny such petition.
What options are available to the claimants
in product liability lawsuits, when there are
multiple people injured by the same product?
Does Japanese law allow for class actions?
Recovery of Property Damage of Consumer
(the “Collective Recovery Act”) introduced
“opt-in consumer collective actions.” Under
the Collective Recovery Act, only certified
consumer organizations can bring such optin
consumer collective actions.
However,
the scope of such collective actions neither
includes claims concerning the Product
Liability Law of Japan (the “PLL”) nor those
concerning product defect related torts.
Consequently, individuals who have sustained
injuries or incurred damage due to a defective
product who wish to initiate a joint action with
other persons who similarly have been injured
by or have incurred damage from the same
defective product, are constrained to file
parallel product liability lawsuits against the
same defendant manufacturer, and not a
class action.
What consequences can companies, or
individuals within a company, expect to
encounter if they are found to be criminally
negligent? In what circumstances would this
happen?
“
If a person dies or is physically injured as a
result of a defective product manufactured
by a company, the company’s officers and
employees who are responsible for ensuring
the safety of such product may face criminal
charges under Article 211 of the Penal Code.
Contact Details:
They may be punished by imprisonment with or
without labor for not more than five (5) years or
by a fine of not more than JPY1,000,000. Even
if a product was not defective at the time
when it was first introduced to the market, but
it later became defective due to an act by
a third party, such as an improper alteration
of the product, the officer or employee of
the manufacturer who was in position to
ensure product safety may be subject to a
criminal charge on the basis of a failure to
take remedial measures under the said Article
211, depending on the circumstances. To
avoid this possibility from arising, the proper
and timely implementation of a recall or
other remedial measures is indispensable. The
criminal charge mentioned above under the
said Article 211 only applies to an individual,
not company.
Who has the burden of proof in product liability
lawsuits?
The person who sustains injury or incurs damage
and seeks compensation for damages has the
burden of proof in product liability lawsuits.
While the PLL reduces the burden of proof on
the part of consumer who sustains injury or
incurs damage due to a defect in a product
by holding a manufacturer strictly liable for
injuries and damages caused by its defective
product (that is, manufacturer’s negligence
need not be proved), a consumer still has the
burden of proof concerning his damages and
causation, together with proving the existence
of the defect in a product. Recognising that
establishing the defect and causation is
sometimes quite difficult, in some cases, the
courts have lessened the plaintiff’s burden
of proof by allowing for an inference of the
defect or causation from certain indirect facts
that the plaintiff adduces. LM
Junichi Ikeda, Partner at Nagashima Ohno & Tsunematsu
JP Tower, 2-7-2 Marunouchi, Chiyoda-ku, Tokyo 100-7036, Japan
Tel: +81-3-6889-7163 | Fax: +81-3-6889-8163
Email: junichi_ikeda@noandt.com
The recently enacted Act on Special
Provisions of Civil Procedure for Collective
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74 Legal Focus
ISSUE 64-15
As an expert in Professional Negligence,
what are the key pieces of advice you give
your clients in order to avoid litigation?
(1) Make sure you get everything right all of
the time! But if that is not possible …
(2) Instruct the right team at the earliest
possible opportunity. What happens in
the early stages of a dispute often shapes
everything that follows, and having expert,
specialist legal assistance from those early
stages will minimise the risk of setting off down
a path that is later regretted.
PROFESSIONAL
NEGLIGENCE
Recent reports state that Professional Negligence claims
are on the rise over recent years, with claims being made
against people from a variety of professions, including
lawyers, estate agents, doctors and accountants. To
find out more, we speak to Graeme McPherson QC.
Graeme was called to the Bar in 1993 and took silk in
1998 at age 37. He has been a tenant at 4 New Square
throughout his career, which is the pre-eminent set of
Chambers for Professional Liability work. He is named
as a Leading Silk in the field of Professional Liability work
in the major directories and in recent years he has been
involved in many of the leading cases in the field, both in
the UK and abroad.
(3) Keep an open mind no matter how bitter
the dispute. Particularly in a professional
liability dispute, where a claimant can feel
that he has been ‘let down’ by a professional
that he had previously trusted and the
professional can feel that he is being unfairly
criticised by a former client for whom a result
might have been sub-optimal through no
fault on the part of the professional, sentiment
and emotion can often cloud judgment and
commercial sense. Being able to take a step
back and see the bigger picture maximises
the prospect of a swift, successful resolution
of the dispute.
What are the worst case consequences of
not instructing an experienced lawyer when
accused of professional negligence?
Professional liability work continues to evolve
at a rapid pace. Instructing a lawyer who
is not on top of the subject and intimately
involved in the field risks the client being
poorly advised, missing key opportunities
and ultimately suffering financially and
reputation-wise. In addition, the increasing
overlap between professional liability
and professional discipline means that a
professional can find himself fighting on
two fronts if an initial complaint or claim is
not handled properly from the very outset,
causing further harm.
How complex are the rules that govern this
subject?
The basic principles are simple – almost
every case has at its heart issues of duty,
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ISSUE 64-15
Legal Focus
75
breach, causation and quantum of
compensation. However, the principles that
exist to determine those issues become more
evolved and intricate almost by the day,
since professional liability is an area in which
Judge-led law dominates. A good example is
AIB v Redler – a case that went all the way to
the Supreme Court last year on the question
of the correct tests to be applied when
addressing causation and compensations
in claims for breach of trust against lawyers.
Their Lordships were presented with well
over 100 differing authorities and academic
articles from around the world opining on the
subject.
Have there been any recent regulatory
changes that have affected this practice
area? If so, what?
The biggest changes to have an impact in the
last 10 years have been (1) the introduction
of effective pre-action Protocols, and (2) the
Court’s promotion of mediation and other
forms of ADR in the field. The vast majority
of Professional Liability disputes are now
conducted in an open and constructive
fashion from an early stage, maximising the
chances of early commercial settlement.
If settlement is not achievable, the areas
of dispute are quickly defined, enabling
the parties. However, the Courts frequently
grant permission for such evidence at an early
stage and in unfettered terms. Such evidence
is often time-consuming and expensive
to obtain, but by the time that the parties
reach trial there can often be relatively little
in issue between the experts – despite them
each having spent hundreds of hours and
generated thousands of pages developing
and expressing their opinions. I would like to
see a more pro-active approach to expert
evidence, with parties and experts working
together from an early stage to identify ‘the
real issues’ and what differences, if any, in
truth exist between them on those issues. A
more focussed approach, as is now adopted
to disclosure, is likely to result in increased
efficiencies.
What common challenges do you face within
your work? How do you navigate them?
Two challenges most commonly arise –
although which comes up in a case often
tends to depend on which party I am
acting for! The first arises when representing
successful professionals who are busy in their
work and for whom defending a claim is an
extremely unwelcome and time-consuming
distraction. To minimise this, I try to ensure
that their available time and resources are
used as effectively and efficiently as possible.
The second arises when acting for claimants
with unrealistic expectations that need to be
managed - it is all too easy for a claimant to
see a potential defendant as the cause of
all of their woes. In those circumstances a
forensic analysis of how a Judge would be
likely to see the claim is often the best way to
ensure a realistic approach to what might be
achievable in the litigation.
“
What happens in the early
stages of a dispute often shapes
everything that follows
efficient progress towards trial. As a silk, when
I am instructed for trial these days I can be
confident that settlement discussions have
been exhausted and that the trial is likely to
take place!
“
Do you see the need for any further changes?
I would like to see the Courts tackle the
issue of expert evidence. Professional liability
disputes often require expert evidence to
assist the Court to determine issues between
Contact Details:
Graeme McPherson
G.McPherson@4newsquare.com
Is there anything else you would like to add?
Forty years ago professional negligence
claims were rare. Today they are common,
as can be seen not only from the number
of reported cases but also from the number
of lawyers who hold themselves out as
practising in the field. While those professionals
who fall below the standard required by
their profession should of course be liable to
compensate clients who suffer financially as
a result of their failings, it is important that
we do not lose sight of two key, related
matters. The first is that professionals are
human – mistakes happen, and claimants
need to appreciate that not every mistake
is a negligent one. The second is that
professionals need to be able to do their jobs
without being concerned to act defensively
– it would be a great shame if professionals
began to be constrained in how they act
by a fear of what might happen if they fail
to achieve an outcome for which they are
striving on behalf of a client. LM
www.lawyer-monthly.com

MONTHLY
In next month’s edition, we take a look at:
MEDIATION
www.lawyer-monthly.com

MERGERS & ACQUISITIONS
Ava Trade....................................................................81-82
AXA................................................................................... 82
Digicel Group................................................................... 83
Hypothekenbank Frankfurt AG...................................... 84
International Business Systems....................................... 84
Kerensen Consulting....................................................... 85
McNeel International Corp............................................. 86
Nordkraft AS..................................................................... 87
TenCate............................................................................ 88
FUNDS & INVESTMENTS
Hermesmeyer Group..................................................... 83
KKR................................................................................... 85
Leon-nanodrugs............................................................. 86
Oaktree........................................................................... 87
TRANSACTIONS

80 Transactions
ISSUE 64-15
TITLE
Xxx
What’s happening
in the world of M&As
and IPOs?
In this month’s Deal Report we take a look at the world’s M&A, IPO and
fund markets to see what has been happening so far this year, and look
at who is predicting what about what the coming months may bring.
InfraDeals just released its 1H 2015 Trend Report,
which shows that the first six months of 2015 has
seen 462 deals close with a total value of USD
165.00bn mobilising USD 88.20bn of bank debt and
USD 15.95bn of capital market financing.
Some of the highlights of the report show:
• The 1H15 period saw USD 104.15bn of project
finance raised to support USD 165.00bn of
projects, compared to USD 87.58bn supporting
USD 133.33bn of projects in 1H14.
• This was split across greenfield financings (42%),
brownfield (34.5%) and refinancings (23.5%).
• The largest deal of the period was Borealis’ USD
7.2bn acquisition of Fortum Sweden, followed by
the USD 5.725bn Indiana Toll Road transaction.
The United Kingdom closed the most
transactions (88), followed by the U.S. (71),
Canada (34), Australia (33), Spain (21) and
France (18).
In addition, research from MergerMarket shows
that ‘megadeals’ have led the way in H1 2015.
The half-year 2015 edition of Mergermarket’s
EMEA Deal Drivers show that while deal volume
has slowed across the region – down 15% year-onyear
(YoY) with a total of 2,779 announced deals
recorded – deal value has seen a significant boost
on last year’s figures, up 16% and recording a total
of €414.8bn.
“Confidence among corporates that have steadily
strengthened their balance sheets has risen in the
last year. This in turn has leant itself to increased
M&A activity among blue chips as they compete
for market position,” said Paul Francis-Grey,
Deputy Editor, EMEA at Mergermarket. This greater
spending power and competitive environment has
been instrumental in driving deal values up across
most sectors in EMEA as strategics and financial
investors’ appetite for quality assets rises.”
Goldman Sachs remained top of the financial
advisory league tables in H1 2015, with €253.8bn
worth of M&A transactions. Bank of America Merrill
Lynch followed with €181.8bn. PwC and Rothschild
led the way in terms of volume, completing 110
and 103 deals in H1 2015 respectively.
Some key findings in the report include:
• Europe has become Xxx a global hotspot for
megadeal activity, with deals above the €5bn
mark in H1 2015 making up 46% of total deal
value, amounting to €191.7bn – a 46% YoY
increase in deals of this type.
• The UK and Ireland were the top destinations for
European M&A, leading in terms of both volume
and value, with 23.6% and 52.8% respectively.
Additionally, targets of the half year’s three
largest deals were all Ireland or UK-based.
• Valuations in Europe are up, creating a strong
environment for private equity exits. Exit value in
H1 2015 was up 14% at €64.9bn, while exit volume
rose by 21% to 436 transactions
• The Industrial & Chemicals sector remains the
mainstay of European M&A with 20.3% of total
M&A volume. At the same time, Royal Dutch
Shell’s acquisition of BG Group boosted Energy
sector deal value to the top with 23.1% of total
M&A value.
As we head into the second half of 2015, all we can
do is wait and see what it holds for the deal markets
around the world.
TITLE
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ISSUE 64-15
Transactions
81
PLAYTECH GROUP
$105M ACQUISITION OF
AVA TRADE
Playtech’s subsidiary, Markets Limited (“Markets”, formerly TradeFX Limited), has entered
into a share acquisition agreement under the terms of which it will acquire the entire issued
share capital of Ava Trade, an online B2C CFD broker over which Markets had secured an
option to purchase prior to the acquisition of Markets by the Playtech Group.
Katzenell Dimant Frank (KDF), an Israeli and mobile worlds – is unique in my experience acquisition of Plus500 Limited, a financial trading
boutique law firm specializing in cross- amongst other fields. In our years of working on company offering CFD and other trading platform
border JV’s and M&As, advised such deals, we have built a very effective and and services, which is also pending regulatory
Playtech on this transaction, led efficient team completely focused on getting approvals. With these major acquisitions, in the
by Ariel Frank, a founding partner of the the deal done under these circumstances and in hundreds of millions of dollars each, Playtech is
firm. Here, Lawyer Monthly speaks to Ariel about
this deal and his involvement. In Ariel’s 17 years
as corporate and commercial lawyer, he focused
primarily on cross-border M&A transactions, joint
ventures of different types, equity and debt
record times. These conditions and requirements
were enhanced and in many ways taken to the
extreme in the AVA Trade acquisition. This deal
involves the acquisition of a multiple-jurisdiction
structure of companies and entities with complex
establishing itself as a world leader in the financial
services business. From the perspective of the AVA
Trade sellers, this was an opportunity to cash in on
the growth and success of the AVA Group and
the strong results displayed by it over the last few
financings and on-going commercial, corporate inter-company arrangements and hundreds years.
and strategic advice to hi-tech, internet of employees. One of the challenges we had
and gaming companies in various stages of
development.
was to assist our clients to learn and understand
the target group’s structure and functions, and
Have you been involved in any other major deals
this year?
Please tell me about your involvement in the deal.
I have worked closely with Playtech and its
subsidiaries and associated companies as
external legal counsel, mostly on M&A and
transactional work, for about eight years. During
this period, I have led the legal negotiations,
drafting and other legal aspects for dozens of
M&As, JVs and investment transactions involving
the Playtech Group. In the acquisition of AVA
Trade, I have acted on behalf of Playtech and
its newly-acquired subsidiary Markets Limited
(formerly TradeFX Limited), in leading the legal
negotiations and drafting of the transaction
documents and collaborating with other law firms
on the due diligence work undertaken by the
Playtech Group.
What challenges did you face and how did you
overcome them?
As true in most M&A deals in the Internet field, and
certainly to transactional work with the Playtech
Group, there is usually a need to construct,
negotiate, draft and conclude a complex, crossborder
deal in very tight timelines. This type of dealmaking
- which is the result of the very dynamic
nature of these businesses, their scope and
magnitude and the general pace of the Internet
translate all relevant details and intricacies into
clear contractual provisions, warranties and
indemnities. Another task, which is not unique to
this deal but posed many challenges because
of the complexity of the existing operations and
structure, was to clearly negotiate and define
the seller and buyer respective liabilities pre- and
post-completion. The due diligence exercise for
the target group was naturally a major task, but
in that, unlike the negotiations and drafting of the
transaction documents, we took a back-seat role
only. The exceptionally short timelines dictated by
both buyer and seller and the various twists and
turns in the course of the negotiations, required
our utmost attentiveness, efforts and focus to
bring about a successful result under dynamic
and challenging circumstances.
Why is this a good deal for all involved?
The acquisition of AVA Trade falls straight into
Playtech’s recent expansion into the financial
services world, which was commenced by
acquiring Markets, followed with the acquisition of
AVA Trade (which is pending regulatory approvals
to complete) and topped up by the recent
Website: www.kdf.co.il
Much of our firm’s practice, and a big majority
of my time personally, is spent on international
M&As, investments and strategic transactions.
Only over the past four years I have been involved
in and led about 65 such deals which were
consummated, and negotiated several dozens
more that fell through for various reasons. Many
of these deals involved the Playtech Group. This
number is exceptional in Israeli terms and we are
proud of the sizable and steady flow of deals
we are involved in. From January of this year, to
point out only a few which were consummated
and involved public companies (and therefore
can be referenced here), we represented the
shareholders of Markets Limited (formerly TradeFX
Limited) in the purchase by Playtech of the majority
shares of Markets for €208,000,000 and earnout
payments of up to an additional €248,000,000;
we represented Safecharge International Group
Limited (traded on the AIM) in the acquisition of
CreditGuard Ltd., an Israeli payment processing
company, for NIS 30,000,000 and we represented
the shareholders of MarMar Media in a sale of
control of the company to XLMedia Ltd. (traded
on the AIM) for an amount of up $7,360,000. LM
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82 Transactions
ISSUE 64-15
Playtech Group’s
$105m acquisition of
Ava Trade
Playtech PLC’s Proposed
Acquisition of Ava Trade Ltd. and
new Revolving Credit Facility
Playtech recently announced that its subsidiary, TradeFX Limited ("TradeFX"), has
entered into a share acquisition agreement under the terms of which it will acquire
the entire issued share capital of Ava Trade, an online B2C CFD broker over which
TradeFX had secured an option to purchase prior to the acquisition of TradeFX by
the Playtech Group.
Legal advisor to Playtech Group:
The consideration payable to the Sellers under the terms of the Transaction is
US$105 million, which is subject to a post-Completion working capital calculation
on a cash-free/debt-free basis. Completion of the Transaction is conditional on
approval from Playtech's shareholders and relevant financial services regulators.
In addition, Playtech has agreed a €200 million unsecured revolving credit facility
with Barclays Bank PLC and Royal Bank of Scotland plc, which will, together with
existing cash resources, be available to fund the recently announced acquisitions
of the Playtech Group and also further growth initiatives.
Commenting on the Transaction, Mor Weizer, Chief Executive Officer of Playtech,
said: "The acquisition of the Ava Group is another important milestone in Playtech's
strategy to expand and enhance its overall technology offering through multiple
vertical markets. Since the recent earnings-enhancing acquisition of TradeFX
and the creation of our financials division we have sought further opportunities
to broaden our reach into this vertical.” The Ava Group is a well-recognised and
established online CFD broker with multiple regulatory licences and a strong
customer base with insignificant geographical overlap with the TradeFX Group.
We are very excited about the opportunities for the Group arising from the
combination of the Trade FX Group and the Ava Group which we are confident
will deliver long term value for Shareholders."
This announcement appears as a matter of record only
Legal & General and CIB
sell Commercial International Life Insurance
Company in Egypt to AXA
Legal advisor to the acquiror:
Legal & General and CIB sell
Commercial International Life
Insurance Company SAE in Egypt
to AXA
Legal & General Group Plc and Commercial International Bank SAE (CIB) have
jointly announced the sale of Commercial International Life Insurance Company
SAE (CIL) to AXA for 763m EGP ($97.5m USD), subject to financial adjustments at
completion. CIL is jointly owned by Legal & General with 55%, and CIB with 45%
respectively.
CIL was formed in 1998 and was the first life insurance company in Egypt to adopt
the bancassurance model. In 2014 it was ranked No.3 in the Egyptian life insurance
market for new written retail premiums. It has 90,000 individual insurance policies,
and provides retirement benefits group life and credit life insurance for circa
350,000 customers.
Legal advisor to the vendor:
Financial advisor to the vendor:
Completion of the transaction is subject to customary closing conditions, including
the receipt of regulatory approvals, and is expected to take place by the end of
2015.
Simon Burke, Managing Director Emerging Markets for Legal & General said: "Legal
& General is delighted to have been part of the success of CIL for the past 17
years, and pleased to see the positive impact that life insurance has delivered to
its Egyptian customers. Legal & General's strategy of building scalable, customer
focussed, long-term businesses has been achieved in Egypt, and now is the right
time to hand the business over."
This announcement appears as a matter of record only
www.lawyer-monthly.com

ISSUE 64-15
Transactions
83
Barrie Holdings Limited and The
Bermuda Telephone Company
Limited acquired by Digicel Group
Wakefield Quin Limited represented Barrie Holdings Limited and The Bermuda
Telephone Company Limited (BTC) in their sale to the Digicel Group, a leading
global communications provider. Founded in 1887, BTC is Bermuda’s largest voice
and data service provider for both business and residential customers in Bermuda.
The Wakefield Quin team was led by Erik Gotfredsen with the assistance of Orla
Halpin and Johann Oosthuizen.
Erik commented: “This transaction was important as BTC is one of Bermuda’s
premier and essential utilities and the transaction was high-profile requiring
numerous governmental and regulatory approvals.”
Barrie Holdings Limited and The Bermuda
Telephone Company Limited (BTC)
acquired by Digicel Group
Bermuda counsel to shareholders
of Barrie Holdings Limited:
Counsel to Digicel Group:
Counsel to Barrie Holdings Limited:
This announcement appears as a matter of record only
Steadfast Capital invests in
Hermesmeyer Group
As part of the reorganisation of the shareholder structure, Steadfast Capital Fund
III, LP, acquired a stake in Hermesmeyer Group on 19th June 2015. The transaction
structure fulfils both the personal and economic aims of the shareholders and the
strategic aims of the group.
Together with Frank Hermesmeyer, who continues to be the CEO and a stakeholder
in the group, Steadfast Capital will support the group’s regional expansion as well
as the ongoing strategic and personnel development of the company.
Marco Bernecker, Managing Partner of Steadfast Capital GmbH: “Hermesmeyer
has successfully positioned itself over the years in a competitive environment. Due to
its strong market position and diverse product range it is poised to take advantage
of numerous areas of growth, both organically and through acquisitions.”
Conducting all necessary preparations and identifying the optimal time of the
transaction, Hermesmeyer Group has been supported by CVM Capital Value
Management GmbH within a structured M&A process.
Steadfast Capital
invests in
Hermesmeyer Group
Bank:
Legal advisor:
M&A advisor to Hermesmeyer Group:
Financial and tax due diligence provider:
Insurance due diligence provider:
This announcement appears as a matter of record only
www.lawyer-monthly.com

84 Transactions
ISSUE 64-15
Commerzbank AG
has sold a portfolio of non-perfoming European
loans of Hypothekenbank Frankfurt AG
to Lone Star and JP Morgan
Legal advisors to Hypothekenbank Frankfurt AG:
Commerzbank sells two portfolios
of commercial real estate loans
Commerzbank has reached agreements with investors on the sale of two
commercial real estate (CRE) portfolios. Accordingly a European portfolio with a
face value of EUR 2.2 billion has been sold to a consortium comprising JP Morgan
and Lone Star, and a German portfolio with a face value of approximately EUR 0.7
billion to the investor Oaktree.
The portfolios sold account for approximately 17% of the total of commercial real
estate loans of EUR 17.5 billion still held in the Non-Core Asset (NCA) segment as
of the end of March 2015. Confidentiality was agreed on the further details of the
agreements.
The German portfolio of commercial real estate loans sold primarily comprises nonperforming
loans. As a result of the sale the domestic CRE black book is being
reduced by approximately 40%.
Legal advisor to JP Morgan:
Legal advisor to Lone Star:
The European portfolio encompasses the countries, Austria, Belgium, Czech
Republic, Cyprus, Denmark, Finland, Hungary, Luxembourg, Netherlands, Rumania,
Sweden, Switzerland, Slovakia and Turkey. The portfolio contains non-performing
loans as well as other loans. The complexity in the NCACRE unit could be reduced
considerably as a result of the sale.
“Both transactions show that we are continuing to press ahead with our valuepreserving
run-down, and that we are significantly reducing both risk and
complexity,” said Sascha Klaus, Divisional Board Member Non-Core Assets
Commercial Real Estate. “In this respect we are taking advantage of market
opportunities, in order to achieve best possible results through competitive bidding
procedures.”
This announcement appears as a matter of record only
Marlin Equity Partners
has agreed to buy
International Business Systems
Legal advisor to TPG Speciality Lending:
Marlin Equity Partners buys
International Business Systems
Marlin Equity Partners (“Marlin”) has signed a definitive agreement to acquire
International Business Systems (“IBS”), a global provider of enterprise resource
planning (ERP) and supply chain management (SCM) software to the distribution
industry. IBS’s industry-leading ERP platforms, IBS Enterprise and Bookmaster,
and Dynaman, a best-of-breed warehouse management system, are used by
customers worldwide to streamline, automate and accelerate their operations,
and drive profitability and efficiency. The company serves over 1,000 customers
across a variety of industries including pharmaceuticals, third-party logistics, food
and beverage, consumer goods, automotive and publishing.
Douglas Braun, CEO of IBS, stated: “We are excited to be partnering with a
premier global investment firm with significant expertise in enterprise software
and a strong reputation for growing businesses and helping management teams
achieve operational excellence. Marlin shares our philosophy of delivering value
to customers and we welcome their significant resources and industry insights to
help us increase our competitive advantage and accelerate investments into our
products and services.”
“IBS participates in a rapidly growing market with strong brand recognition within
the distribution and publishing industries. The company’s robust solutions are a
testament to its commitment to continuously innovate and provide customers with
the highest-quality products,” said Shawn McMorran, a partner in Marlin’s London
office. “We are delighted to be working with IBS’s highly talented team to help
grow the business organically, as well as through strategic acquisitions, and to
support them in delivering world-class products and services to their diverse client
base.”
This announcement appears as a matter of record only
www.lawyer-monthly.com

ISSUE 64-15
Transactions
85
Salesforce Customer and Partner
Momentum Accelerates in France,
Creates Positive Impact on French
Economy
On June 25th, 2015 Salesforce, the world’s #1 CRM platform, acquired Kerensen
Consulting, a leading Cloud Consulting provider in Europe.
Salesforce also announced the opening of a second French R&D centre in its
headquarters in Paris and that it has signed a definitive agreement to acquire
Paris-based Kerensen Consulting, a leading cloud consulting firm in Europe. The
announcements were made at Salesforce World Tour Paris with more than 9,000
registered attendees. Tune in to watch the keynote live on 25 June at 10:00 a.m.
CET.
"Salesforce continues to increase its investments in France by opening its second
French R&D centre and signing a definitive agreement to acquire Paris-based
Kerensen Consulting," said Olivier Derrien, senior vice president, France and
Southern Europe, Salesforce. "In addition, the Salesforce ecosystem of customers,
partners and developers across France continues to grow, and IDC forecasts it will
drive €3.3 billion of GDP impact and nearly 20,000 jobs across France by 2018. We
are thrilled that our commitment to customer success in France is not only driving
our own growth locally, but having a positive impact on the broader French
economy."
Based in Paris, Kerensen Consulting has helped hundreds of Europe’s largest
enterprises move to the cloud. The company provides business consulting, cloud
solution management and digital customer experience services to help companies
transform their businesses through power of cloud, social, mobile and data science
using the Salesforce Platform.
Europe is Salesforce’s fastest growing region and Salesforce is investing in the
success of its customers. Kerensen Consulting will enable the company to expand
Salesforce’s Advisory Services capabilities in Europe.
Salesforce
acquisition of
Kerensen Consulting
Legal advisors:
Financial advisors:
Legal advisors to the sellers:
This announcement appears as a matter of record only
KKR Credit launches a 100%
privately funded platform with
capital and expertise committed to
Italian Companies
Intesa Sanpaolo, UniCredit, and KKR Credit, part of KKR & Co. L.P. a leading global
investment firm, has reached an agreement by which, subject to completion of
certain conditions precedent, the two main Italian banks will transfer credit and
equity exposure on a selected number of companies under restructuring into a
vehicle managed by the Italian platform launched by KKR Credit.
The platform aims to provide long-term capital and operational expertise to medium
and large Italian companies, thereby supporting Italian banks in managing assets.
The platform is intended to help Italian companies stabilize, grow and create value
for the benefit of all stakeholders, including the companies' existing shareholders
and the banks who will share in the upside of the recovery in performance of the
businesses and the value of the related assets on their balance sheet.
KKR’s creation of the new
vehicle with UniCredit and
Intesa Sanpaolo
Legal advisor to KKR:
Legal advisor to UniCredit and Intesa Sanpaolo:
Intesa Sanpaolo and UniCredit, together with KKR Credit, developed this
innovative project, including its assessment by the relevant authorities. In the future,
the platform will be open to other lenders and companies who would benefit
from fresh capital and additional operational support. Alvarez & Marsal will be a
preferred Service Provider to the platform.
Tax advisor to KKR:
Tax advisor to UniCredit
and Intesa Sanpaolo:
This announcement appears as a matter of record only
www.lawyer-monthly.com

86 Transactions
ISSUE 64-15
TVM Capital Life Science’s
Investment in
leon-nanodrugs
Legal advisor to leon-nanodrugs:
Legal advisor to TVM Capital Life Science:
Legal advisor to Signet Healthcare Partners:
leon-nanodrugs GmbH raises EUR
18.5 million in Series A financing
leon nanodrugs GmbH has completed the first closing of its Series A preferred stock
offering at EUR 18.5 million. The financing was led by TVM Capital Life Science,
based in Munich and Montreal, with participation from Signet Healthcare Partners
(USA), LifeCare Partners (Switzerland), CD-Venture (Germany), Albany Private
Equity Holding (Australia), and a non-disclosed Family Office from Germany. Dr.
Hubert Birner, Managing Partner, and Stefan Fischer, General Partner & CFO, TVM
Capital Life Science, James Gale, Managing Director, Signet Healthcare Partners,
Dr. Gerhard Ries, Managing Partner, LifeCare Partners, Dr. Frank Mathias, CEO,
Medigene AG, and Dr. Bernd Baumstümmler, CEO, Instillo Group, will be joining
the Board of Directors.
leon-nanodrugs was founded by a group of experienced drug development
professionals in mid-2011. The company focuses on the reformulation of approved
or promising small molecule and protein drug candidates based on its patented
and award winning MJR-nanotechnology-platform. leon-nanodrugs develops
novel oral and parenteral formulations by using GMP (Good Manufacturing
Practice) compliant nanotechnology to improve bioavailability, solubility as
well as dissolution rates. leon-nanodrugs will use the proceeds of this Series A
financing to expand its profitable service business and to enter into high margin
co-development deals with pharmaceutical partners.
Being TVM Capital Life Science’s long-standing legal counsel ORRICK, HERRINGTON
& SUTCLIFFE LLP advised TVM Capital Life Sciences ( or: the firm), who led an
international syndicate of investors in a EUR 18.5 million Series A financing of
leon-nanodrugs GmbH. The consultancy assignment included a due diligence
process as well as negotiating, drafting and the signing/closing of the transaction
documentation.
The transaction team at ORRICK was led by Counsel Thomas Strassner (Corporate,
Munich); other areas of specialisation Thomas’ considered while staffing included
IP/IT, employment and tax law.
This announcement appears as a matter of record only
Coveris Holding Corp.
acquired
McNeel International Corp
Guatemala, Costa Rica and Colombian counsel:
Mexican counsel:
Ecuadorean counsel:
Panamanian counsel:
Coveris Announces Acquisition
of Agricultural Plastics Leader
Olefinas
Coveris Holdings S.A., a leading global packaging and coatings solutions
company, recently announced the acquisition of Olefinas, a leading agricultural
plastics company with operations in Guatemala and Mexico. Entering Latin
America supports Coveris’ initiative to providing a full range of packaging solutions
for agricultural products. This is the second new geographic market Coveris has
entered in the past six weeks, following the recently announced acquisition of
Elldex, a full-service flexible packaging company in New Zealand.
Olefinas manufactures packaging solutions for a full range of agricultural products,
including tree bags, labels, twine and aging ribbons for the banana industry, as
well as mulch and fumigation films, insect traps, modified atmospheric packaging
and shrink films. Since 1959, Olefinas has been the pioneer of banana plastics and
produces more than 300 million pounds of high value added products annually
dedicated to enhancing crop yield.
“We consistently look for opportunities to better serve our growing customer base
and expanding our market reach,” said Gary Masse, Coveris CEO.
ROSAS Y ROSAS counseled McNeel International Corp. on corporate issues, during
this acquisition.
The team of ROSAS Y ROSAS, led by Ms. Diana L. Montemayor, provided legal
advice with regard to the several Panamanian subsidiaries of Mc Neel International
Corp., specifically in the reviewing of corporate and contractual aspects involving
these subsidiaries, as well as in the conduction of a complete due diligence of
different legal aspects of such companies. The main purpose of our intervention
was to complement the thorough review of documentation for the closing of the
transaction, from the standpoint of subsidiaries based and operating under the
Panamanian jurisdiction.
This announcement appears as a matter of record only
www.lawyer-monthly.com

ISSUE 64-15
Transactions
87
SL Capital Partners acquires
13 small power plants from
Nordkraft AS
SL Capital Partners LLP ("SL Capital") has agreed to acquire 100% of Nordic Power
AS from Nordkraft AS ("Nordkraft"), the Narvik based energy group with interests
in Northern Norway. Nordkraft's core business is the development, construction,
production and distribution of natural renewable energy through hydropower and
wind power. The Nordic Power portfolio of hydropower assets will be acquired by
private markets specialist SL Capital, funded through SL Capital Infrastructure I
LP ("SLCI I"), its infrastructure fund. The disposal provides Nordkraft with capital to
continue its development program.
SLCI I is focused on investing in core infrastructure assets in Europe and this
acquisition of 13 high quality, small scale hydro plants generating 58 MW
provides an opportunity for the fund to invest in long-term assets alongside a
strong Norwegian partner in a region with a stable regulatory environment. The
transaction is the second investment completed in the past week by the fund,
following the acquisition of Gasum's local gas network operations in twelve areas
of Finland and the Helsinki natural gas network.
Looking forward, SL Capital and Nordic Power will co-operate closely and
have agreed a 15-year management contract with the Nordkraft. Under this
agreement, the Nordkraft team will manage, operate and maintain the plants,
ensuring continuity of supply to the grid for consumers in the region. Nordic Power
has committed to continue the maintenance capital expenditure program
established by Nordkraft. In addition, Nordic Power has entered into a strategic
co-operation agreement that provides the basis for Nordic Power to acquire
further hydro power assets that are close to commissioning from Nordkraft. This
would provide the utility with visibility on funding for the development of further
hydropower assets in northern Norway.
SL Capital Partners
acquires 13 small power plants from
Nordkraft AS
Legal adviser to SL Capital Partners:
Financial adviser to SL Capital Partners:
Legal adviser to Nordkraft AS:
June 2015
This announcement appears as a matter of record only
Commerzbank sells two portfolios
of commercial real estate loans
Commerzbank has reached agreements with investors on the sale of two
commercial real estate (CRE) portfolios. Accordingly a European portfolio with a
face value of EUR 2.2 billion has been sold to a consortium comprising JP Morgan
and Lone Star, and a German portfolio with a face value of approximately EUR 0.7
billion to the investor Oaktree.
The portfolios sold account for approximately 17% of the total of commercial real
estate loans of EUR 17.5 billion still held in the Non-Core Asset (NCA) segment as
of the end of March 2015. Confidentiality was agreed on the further details of the
agreements.
The German portfolio of commercial real estate loans sold primarily comprises nonperforming
loans. As a result of the sale the domestic CRE black book is being
reduced by approximately 40%.
The European portfolio encompasses the countries, Austria, Belgium, Czech
Republic, Cyprus, Denmark, Finland, Hungary, Luxembourg, Netherlands, Rumania,
Sweden, Switzerland, Slovakia and Turkey. The portfolio contains non-performing
loans as well as other loans. The complexity in the NCACRE unit could be reduced
considerably as a result of the sale.
“Both transactions show that we are continuing to press ahead with our valuepreserving
run-down, and that we are significantly reducing both risk and
complexity,” said Sascha Klaus, Divisional Board Member Non-Core Assets
Commercial Real Estate. “In this respect we are taking advantage of market
opportunities, in order to achieve best possible results through competitive bidding
procedures.”
Commerzbank AG has sold
a portfolio of non-perfoming German
loans of Hypothekenbank Frankfurt AG
to Oaktree
Legal advisor to Commerzbank:
Legal advisor to Hypothekenbank Frankfurt AG:
Legal advisor to Oaktree:
This announcement appears as a matter of record only
www.lawyer-monthly.com

88 Transactions
ISSUE 64-15
Consortium led by
Gilde Buy Out Partners
acquires Royal TenCate
Legal advisor to the supervisory board:
Legal advisor to the
supervisory board:
Communications advisor
to TenCate:
Financial advisors to
TenCate:
GILDE BUY OUT Partners
leads consortium to make a
recommended cash offer for all
shares of TenCate
Royal Ten Cate N.V. and Tennessee Acquisition B.V., a company controlled by a
consortium of investors led by Gilde Buy Out Partners and also including Parcom
Capital and ABN Amro Participaties, have reached conditional agreement on an
intended recommended full public offer for TenCate of EUR 24.60 (cum dividend) in
cash per ordinary share of TenCate, subject to customary conditions (the “Offer”).
Loek de Vries, President and Chief Executive Officer of TenCate, said: "This offer
represents positive news for all stakeholders involved in our company. Both
our employees and our customers will benefit from the longer-term horizon the
consortium will bring. There is a clear commitment to support our strategy, which
means we can invest in our product-market-technology combinations, thereby
further strengthening our leading market positions. In addition, we can continue
our buy and build approach and we will benefit from the capabilities, experience
and financial support of our new shareholders. Last but not least, the offer
represents a fair price for our existing shareholders. The boards consider the offer to
be in the best interest of TenCate and we therefore fully support and unanimously
recommend the offer".
Financial advisor to
the offeror:
Legal advisor to
the offeror.
Hein Ploegmakers, Partner at Gilde said: "The Consortium has great respect for the
longstanding heritage of TenCate covering over 300 years of history. TenCate’s
market groups hold leadership positions in a number of high growth, specialised
niche markets and we aim to support each of them the best we can. Together with
our co-investors Parcom Capital and ABN Amro Participaties, we are delighted at
the prospect of working with TenCate management and supporting them in the
next stage of the Company’s development."
This announcement appears as a matter of record only
www.lawyer-monthly.com

Sofitel Paris Le Faubourg
Paris - France
LAWYER LIFE

92 Lawyer Life
ISSUE 64-15
www.lawyer-monthly.com

ISSUE 64-15
Lawyer Life
93
Sofitel Paris
Le Faubourg
Paris - France
P
aris is world-famous for exuding style and glamour and when staying in
the French capital, either for business or pleasure, your choice of
accommodation must do the same. Look no further than the stunning
Sofitel Paris Le Faubourg.
Perfectly located on the doorstep of the bustling Place de la Concorde, this
exquisite hotel is an integral component of the elegant Saint-Honoré district.
Nestled among high fashion houses and fine jewellery workshops and boutiques, it
is just minutes from the city’s preferred art and culture venues such as the Tuileries
Gardens, the mythical Champs Elysées and the Grand Palais Galleries.
Once home to the editorial offices of Marie Claire magazine, the Sofitel Paris Le
Faubourg is stylishly decorated and offers a chic yet homely home from home
for guests. The hotel offers 147 guestrooms of which 20 Superior rooms, 81 Luxury
rooms, 10 Premium rooms, 7 Junior Suites, 7 Prestige Suites, 17 Collection Suites, 4
Opera Suites, 3 Prestige Suites, 4 Faubourg Suites and 1 ‘Couture’ Apartment.
The light bathes the clear toned rooms and plays sensually on the precious velvets
and the satins of the bedspreads. Mouldings, pendants and Louis XV style armchair,
the charm of the Parisian 18th century harmonizes audaciously with the design
and with the asserted modernity of the furniture.
For business use, Sofitel Paris Le Faubourg has exceptional facilities. Equipped with
the latest technologies, two new flexible meeting rooms welcome up to 50 people
for seminars, conferences or showrooms. Honey woodworks, greige leather, design
chandeliers, Anish Kapoor artworks… A subtle harmony weaves a rich dialogue of
materials, and the hotel yellow chrome brightens your meeting.
There is also a well-equipped wellness room, a welcoming bar and stunning
restaurant for all your business and leisure needs whilst in Paris. All in all, this hotel can
offer everything you need complete with that added touch of Parisian elegance.
For more information on Sofitel Paris Le Faubourg, please visit
www.sofitel-paris-lefaubourg.com
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