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BOOKSHELF: PagE 23 Life and death

The Voice: 3

Banking and the apocalypse Once the golden boys of capitalism, bankers are now seen as corrupt

harbingers of doom – and some might soon be headed for prison

guru Talk: Page 12

Bear bites backMoscow growls at litigation tourism Talking PoinTs: Page 14

Firm foundationsPrivate equity and law firms

20 July 2012 issue 10

EurOzOnE €10.00. uK: £7.99. uSA: uS$13.00. uAE: AED49.00. SOuth AfricA: zAr99.00. cAnADA: c$15.00. BAhrAin: BD5.00. AuStrALiA: A$15.00

Jon

Ber

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us: Page 5

Ex-Dewey partners face $103m bill eu: Page 7

Patent court deal lacks clarity

ManageMenT sPeak: Page 17

A struggle with the innovator’s dilemma TechnoPhile: Page 18

running scared of e-disclosure coding

2 The global Legal Post 20 July 2012 www.globallegalpost.com

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www.globallegalpost.com The global Legal Post 20 July 2012 3

At a glance

Libor scandal could cost Barclays $6bnBarclays Bank could face claims totalling $6 billion globally as the fall-out continues from the revelation that staff manipulated a key interest rate.

london’s Law gazette reports that – in addition to existing us claims – counterparties from housing associations and insurers are examining past trades to determine whether they made a loss as a result of misconduct around the london inter-bank offered rate (libor).

last week, los angeles-based litigation practice Quinn emanuel confirmed it had begun work on potential claims with clients in the uk and the us, while earlier it was announced that fellow us firm sullivan & cromwell had taken on a leading role advising the bank in the states.

it also emerged last week that one of the world’s biggest law firms is to walk a conflicts tightrope in the rigging scandal, as the magic circle’s clifford chance has been instructed by both Barclays and the predominantly state-owned royal Bank of scotland to advise on the ramifications of the debacle.

and international law practice norton rose is set to advise former Barclays chief executive Bob Diamond. (See pp4&13).

clyde leads English pack in financial figures frenzy

london-based shipping and aviation specialist law firm clyde & co leads its english rivals in the jurisdiction’s annual round of financial results as it boasted revenue growth of 36 per cent for last year.

The annual media feeding frenzy over english law firm financials has seen some wide variations among the top firms releasing figures so far. The Law gazette reports that, overall, the results suggest that annual growth at the top-ranking firms sees profit-per-partner (PeP) figures up by 8 per cent.

allen & overy and clifford chance were the first magic circle firms out of the reporting blocks with linklaters following (see Global Legal Post, 6 July 2012, p17).

clyde’s revenue figure was significantly boosted by its merger last november with fellow london firm Barlow lyde & gilbert. But the firm’s management maintained that it would still have posted strong turnover numbers if the merger income had been excluded, reckoning its growth would have been 17 per cent.

other big names on the financial figures treadmill were global franchise firm eversheds, which announced a 3 per cent increase in revenue and a 10 per cent rise in net profit. another recently merged practice – Dac Beachcroft – reported a revenue increase of 22 per cent, while its PeP figure slumped by 4 per cent.

according to the Law Gazette, the biggest winner in the PeP department was the english arm of anglo-us firm snr Denton, which saw that number leap by 48 per cent. Big PeP losers, according to the publication, are Field Fisher Waterhouse (down 20 per cent), gateley (down 11 per cent) and global player herbert smith, which saw its PeP figure slump by 6 per cent.

Patent trolls take $29 billion global tollPatent assertions by non-practising entities – so called trolls – are costing global companies some $29 billion annually, with as much as a third of that bill being picked up by small- and medium-sized businesses.

That grave analysis comes from two Boston university law school professors, according to the publication corporate counsel. The report said the $29 billion figure does not take account of indirect costs to business, ‘such as diversion of resources, delays in new products, and loss of market share’.

according to the researchers, non-practising entities own patents that they don’t use to produce goods or services, and then sue companies that do produce those goods and services.

The corporate counsel report also points to the escalating levels of troll-triggered litigation – last year businesses of all sizes were forced to defend more than 5,800 claims by non-practising entities, compared to defending some 4,445 claims the previous year, and only about 1,400 in 2005.

Jacoby and Macey unite in America’s ‘most significant merger’

america’s largest full-service consumer firm – Jacoby & Meyers – has merged with Macey Bankruptcy law, the nation’s largest consumer bankruptcy practice, in what has been called the most significant merger for consumer law in us history.

The move will create a firm of 310 lawyers in more than 135 offices, reports The aBa Journal. The bankruptcy practice is to be called Jacoby & Meyers Bankruptcy.

in a statement, the merged business said it would seek ‘to separate itself from other consumer law firms in the us by making its legal footprint across the us more than four times the size of its closest law firm competitor’.

recession-related litigation on the increaserecession-related litigation is rocketing, with the number of contract claims in the uk’s high court increasing by nearly 50 per cent last year, recently released government figures show.

according to the chancery Division, in 2011, 982 claims were issued, compared to 683 the year before – representing a rise of 44 per cent. Breach of contract and debt were the main causes of action.

The annual court statistics – published by Britain’s Ministry of Justice – revealed similar trends across other courts. There was a 44 per cent increase in contract claims in the Queen’s Bench Division and a 49 per cent rise in contract, agreement and debt claims in the commercial court.

firms win court ruling to advise bankrupt Deweya Manhattan bankruptcy court has approved a raft of professional firms hoping to advise the estate of defunct new York law firm Dewey & leBouef, while only legal practice Proskauer rose has been denied.

according to The am Law Daily, last week Judge Martin glenn grilled the firms over their applications, but only Proskauer – which has worked for Dewey and its predecessors for 14 years – was thrown out.

The court ruled Proskauer – which the Dewey estate hoped to retain for employment matters – had been coloured by the recruitment of 63 partners, associates, and staff from the bust firm in the weeks before its demise. (See p5).

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Bob Diamond: Norton Rose to advise


from the editor

‘Merchant banker’ has a rather fruity meaning in modern cockney rhyming slang – for those unfamiliar with contemporary english argot, a brief visit to any of the major internet search engines should assist.

The phrase well pre-dates the onset of the global financial crisis, the ensuing row in the uk over banker bonuses, and is certainly older than the current debacle around the rigging of the london interbank offered rate.

But for many, the term has never been more apposite. The revelation that Barclays rigged the rate – and the likelihood that other big name banks will soon be in dock over playing fast and loose with the rules – has solidified in many minds the image of the banker as a bloated fat cat living in a moral vacuum.

The local branch bank manager, who, with almost paternal care, guided individuals and businesses through life’s financial maze is now long gone, along with the friendly but firm policeman on the beat, the chirpy milkman, gruff butcher, baker and candlestick maker.

Buccaneering capitalismToday’s bankers are at the cutting edge of buccaneering capitalism – an environment where the sole purpose is to make luminescent numbers on ranks of wafer-thin electronic screens get bigger and bigger. inhabitants of the post-industrial, post-technological revolution economies are told – primarily by bankers themselves, but also by politicians and other inhabitants of the great-and-the-good tower – that we can’t live without them. That, indeed, water would cease to flow, the air would turn putrid with poison, the very earth would crack and swallow us all, if bankers and the mystifying world of high-finance were not allowed to get on with what they do almost totally unencumbered by regulation.

as our commentator points out this week, that approach may have shuddered to an undignified grinding halt with the resignation of Barclays’ chief executive, Bob Diamond.

The appropriately named banking boss tried his best to charm a uk parliamentary committee with a performance straight out of the top drawer of any media training charlatan’s day-one session. But this time bankers are their least impermeable since the days before the beginning of the reign of reagan-Thatcher-Freedman free market economics. it may not be the case, but the perception is that rigging the libor rate could have caused real people real grief.

Old-fashioned fraudrecent financial services legislation might not see bankers sent down, but the good old-fashioned crime of fraud may well do the trick. and when small-time shop-lifters are increasingly pursued by major British high street brands – who insist the perpetrators either cough up hugely disproportionate fines or actually do prison time – the public mood is increasingly likely to accept the idea of white-collared, pin-striped bankers going behind bars. For many, justice will demand it.

Justice is also preying on the minds of the russian authorities. They are fed up with sanctimonious voices preaching that their commercial courts are little more than corrupt arms of the rich and powerful, and with their oligarch litigants rushing to london to settle disputes. But, write another set of commentators this week, concerned russian prospective litigants can take measures to ensure that they don’t have to settle disagreements in the lottery of that country’s domestic courts.

Banking on it

Jonathan Ames, editor-in-chief

Et cetera

ajaz ahmed – founder of Freeserve and co-founder of Legal365 – asks whether customers are truly happy with the service their law firms provide during a speech at Lawtech, reported in London-based weekly, The Lawyer.‘let’s face it; it’s just not going to happen in this industry. if you’re pumping someone with corporate hospitality and they’re not the ones paying the bills from their own pocket, they might just tell you that they’re happy with the service you provide. But ask the average guy on the street or the average business owner – the customer, the person that pays the bills from their own pocket that allows us to employ our staff and keep our doors open.

ask them – what do you think? and they’ll tell you that they hate lawyers. We have to wake up to the fact that customers – and yes, they are customers, not clients – hate lawyers. and we have to face the fact that we haven’t done a good job of making it easy for our customers to engage and do business with us.’

Jonathan Lee, a former London lawyer, wonders ‘is your office making you ill?’ in his blog on the Huffington Post website‘i was one of two thousand employees, and we had every workplace perk we could ever want. But in some way, every day, the office was making us ill… i felt lucky to be well-paid, and i’d always associated workplace illness with jobs that were badly paid, where staff were not “looked after” in any traditional sense… But it did interest me, the more i thought about it, that a portion of my salary consisted of a kind of “risk money”.

‘all of us in the office were putting ourselves at risk; we were risking our physical health, our mental health. We were frequently wandering into work in a daze, exhausted and fractious, bug-eyed on two hours’ sleep, hoping that we’d get the next weekend off, and in the meantime popping pills to address our various ailments.’

Legal blogger John Flood discusses England’s Legal Services act and the alternatively structured branch of London law firm Berwin Leighton Paisner, Lawyers on Demand, in a post on his Random academic Thoughts website‘lawyers on Demand has matured and become an entity in its own right. But more than this, loD is emblematic of a drive in legal services to create ways of delivering service and professionalism to clients which are transparent and simple. it takes law out of the black box and sheds light.

‘in part the success of conventional law practice has been lure of information asymmetry: “We know what you need better than you do.” Whereas professions are supposed to put their clients’ interests first, over the years that has faded. new ventures liberated by the legal services act are creating businesses that embody professionalism yet are run profitably and responsibly.’

Laurence Kaye, a lawyer specialising in digital media copyright, considers proposed reforms to UK copyright law on his blog‘There have been many false dawns on updating copyright law, including the gowers review in 2006. But now the government appears to mean business. Part 6 of the bill, unpromisingly headed “Miscellaneous and general”, inserts a new s28Za into the copyright, Designs and patents act 1988, which would empower the secretary of state to amend the copyright exceptions in the act by secondary legislation.

‘how important is this stage? We are approaching a seminal moment in the history of uk copyright law. The creative industries are built on copyright and everyone who is a part of those industries, and who enjoys their output, has a stake or interest in the outcome of these proposed changes to copyright law. lawyers who advise clients in these industries should pay close attention to developments.’

the best of opinion and comments from around the world’s legal media


LOD allows you to flex the size of your legal team just when you need to

LAW IS CHANGING

Global view: the Americas

Canada – legal profession

Ethnic diversity gap exposed in BC legal sectorethnic minorities continue to be severely under-represented in British columbia’s legal profession, an influential report released last week has found.

according to The Vancouver Sun newspaper, figures from the law society of British columbia show that while ethnic minorities constitute more than 25 per cent of the province’s overall population, they account for only about 14.5 per cent of the legal profession.

indeed, the picture was even more skewed in the province’s largest city, Vancouver, where 42 per cent of the general population comes from ethnic minority communities, but only 18 per cent of lawyers are from ethnic minorities.

Thelma o’grady, chairwoman of equity and diversity at the law society, told the newspaper ‘there are systemic barriers in the profession. lawyers tend to recruit young lawyers that remind them of themselves’.

David namkung, vice-president of the local chapter of the Federation of asian canadian lawyers, told The sun: ‘a lot of us are first-generation immigrants with english being a second language, and with the law putting a premium on language abilities, it’s clearly an upward battle for us.’

New York – global law firms

Ex-Dewey partners receive $103m chapter 11 billFormer partners of bankrupt new York law firm Dewey & leBoeuf are being asked to pay the estate between $25,000 and $3 million each to build a proposed ‘settlement plan’ totalling $103.6 million.

The strategy was laid down by the leadership team overseeing the remnants of the bust firm last week, according to The am Law Daily website.

The team told the ex-partners – around 150 of the 709 were present – that they should either agree to the terms by 24 July or face the threat of legal action which will seek larger sums of money, if a trustee takes control of the bankruptcy.

The plan – which the leadership team acknowledged will be unpopular – would be the first of its kind in a law firm bankruptcy and significantly hasten the chapter 11 bankruptcy process.

‘You’re all going to look at this and not like what you see,’ Dewey’s chief restructuring officer, Joff Mitchell, of international corporate advisory firm Zolfo cooper, said introducing the plan. ‘This settlement is not about assigning blame for what happened.’

The meeting – described as a ‘sombre class reunion’ – also heard Mr Mitchell suggest that any partners unable to pay the total settlement amount upfront could participate in a loan programme that would allow payments to be spread over the next three years at an interest rate of 9 per cent.

California – class actions

Multi-party rights bill blocked The california assembly Judiciary committee has voted to block a lawyer-backed bill seeking to improve the class-action prospects of consumers.

The bill followed the 2011 us supreme court ruling in aT&T Mobility v concepcion, which upheld contract provisions requiring consumers to take legal action individually rather than as a group. senate Bill 491 would have prohibited contracts of this sort.

niall Mccarthy, president of consumer attorneys of california told The Recorder newspaper: ‘This is a bad decision for consumers and a sweetheart deal for corporations that have engaged in unscrupulous behaviour.’

it has also been suggested that the ruling will make it difficult for consumers to take legal action since individual representation is often economically impossible. >

The number of us law firm mergers and acquisitions announced in the second quarter of this year dipped below the average deal flow for the past two years, with experts citing

the demise of new York’s Dewey & leBoeuf as a key cause for the decline.

according to altman Weil Mergerline – a management consultancy that monitors law firm activity – there were 11 mergers in the second quarter of 2012, which is down on the average of 15 per quarter between october 2010 and March 2012.

altman Weil principal Ward Bower commented: ‘The decline in law firm mergers and acquisitions in the second quarter can be

attributed to what we’re calling the Dewey effect. The demise of Dewey & leBoeuf this spring put over a thousand lawyers and hundreds of millions of dollars of business into play, shifting the short-term focus of many law firms to those opportunities.’

of the 11 mergers completed, only one involved a law firm with more than 10 lawyers on its books.

Two large law firms made acquisitions in the second quarter of 2012. Pittsburgh-based Buchanan ingersoll & rooney, a 415-lawyer firm, acquired seven-lawyer Pittsburgh litigation boutique Manion

McDonough & lucas. and Frost Brown Todd, a 440-lawyer firm based in cincinnati, acquired MglaW.

US – law firms

Mergers activity slows as ‘Dewey effect’ kicks in

Pittsburgh: mergers hotspot

http://www.lod.co.uk


Global view: the Americas

The bill was blocked by the republican minority alongside Democrats Toni atkins and alyson huber, who claimed that it would create a mess of litigation. The newspaper speculates that the proposal is unlikely to be revived.

Canada – legal profession

Recently qualified lawyers take salary hit canadian lawyers who take up new private practice or in-house roles are likely to be on far lower salaries than those who took similar positions last year, according to a recent survey.

The Canadian Lawyer’s 2012 research into domestic remuneration levels revealed that the median salary of a first-year associate is can$72,500 ($71,000), down by approximately can$3,500 from last year. Meanwhile, newly recruited in-house counsel are receiving a median salary of $77,500, a steep decline of $7,500 from last year.

The unpredictable state of the legal profession is highlighted in other areas of the survey, with 77 per cent of corporate legal departments responding that they are planning to increase salaries in 2013, while only 45 per cent of law firms plan to do the same for their associates.

The survey – which involved 161 managing partners and sole practitioners as well as 74 chief legal officers and corporate legal department heads from across canada sharing information – also showed that 45 per cent of firms are planning to hire more lawyers in the next year, with 53 per cent aiming to keep numbers steady and only 2 per cent planning to reduce numbers.

Trinidad – legal profession

Law society to elect fresh team following debacle The law society of Trinidad and Tobago is on the brink of electing a new president following the resignation of all former members in connection with the loss of more than a quarter of a million dollars in

association funds.The society’s former president, Dana seetahal, resigned on 7 May

after the revelation in March that $284,000 had gone missing from the association’s accounts, reports The Trinidad guardian.

stanley Marcus, seenath Jairman and israel khan – all senior counsel – are bidding for the top job. Patricia Dindyal and neal Bisnath are standing for the vice-president post, while lydia Mendonca, andrew rahaman and haran ramkaransingh are contesting for treasurer.

New York – social media

Twitter storm rages over Wall Street protestera Manhattan judge has ordered Twitter to produce the tweets and user information of an ‘occupy Wall street’ protestor, throwing out objections from the social media website.

The New York Law Journal reports that in making his ruling, criminal court Judge Matthew sciarrino told Malcolm harris: ‘The constitution gives you the right to post, but as numerous people have learned, there are still consequences for your public posts. What you give to the public belongs to the public. What you keep to yourself belongs only to you.’

The information requested covers a three-month period in which Mr harris posted material connected to an occupy Wall street protest march across the Brooklyn Bridge on 1 october 2011. The data is wanted by the Manhattan District attorney’s office for its prosecution of a disorderly conduct charge against Mr harris.

Twitter applied on 7 May to quash the subpoena, while civil liberties groups also filed as amicus curiae in support of Mr harris, calling the 20 april decision by Judge sciarrino to throw out Mr harris’ own attempts to challenge the subpoena contrary to case law and in violation of his constitutional rights.

Judge sciarrino rejected the claims, stating: ‘if you post a tweet, just like if you scream it out the window, there is no reasonable expectation of privacy.’

US – regulation

Calls for prosecution after glaxo fined $3bnMultinational pharmaceutical company glaxosmithkline is facing calls for prosecution in the uk following its admission of healthcare fraud in the us.

glaxo has been fined $3 billion for the marketing of unapproved drugs, among which were antidepressant Paxil, which glaxo recommended for children despite its only having been approved for patients older than 18, and Wellbutrin, which was marketed for conditions including weight loss, sexual dysfunction, substance addictions and attention deficit hyperactivity disorder, although it had only been cleared for depression.

The company has additionally admitted bribing doctors with expensive holidays, and publishing misleading journal articles to increase sales.

British MP Paul Flynn has suggested that glaxo should also be punished in the uk, where it has allegedly engaged in the same mis-selling. commenting in The Independent newspaper, columnist andreas Whittam smith supported that view. he also observed similarities between the recent Barclays Bank scandal and the behaviour of gsk, suggesting that, ‘it is the culture of contemporary business that is the problem’.

against that onslaught, the drugs sector attempted to defend itself. stephen Whitehead, chief executive of the association of the British Pharmaceutical industry told the BBc that the culture of gsk has ‘dramatically changed’ since the time of the mis-sellings, which date back more than a decade, and that the industry now has ‘the highest standards’ of marketing practices and transparency.

Canada – fraud

Former lawyer accused of theft over home sale a former lawyer has been arrested in Toronto after allegedly pocketing more than can$2 million from the sale of a retirement home.

Michael ingram, 69 – a former partner at Toronto corporate law firm coutts crane – also once served as the director of the laughlen centre Foundation, a long-term care facility for pensioners, according to a report in Toronto’s The Star newspaper.

The foundation closed in 2004 and was sold for $2.5 million in March 2006. it is alleged that Mr ingram, who was involved in the sale, deposited the proceeds into a trust account at his law firm. The balance of $2.3m was intended for various charities, but Mr ingram took the money for his personal benefit, police say.

US – family law

Tom Cruise and Katie Holmes settle divorceone-time hollywood lovebirds Tom cruise and katie holmes have quickly reached an agreement in their divorce, represented by two of new York’s leading matrimonial law firms.

The settlement was announced only a day after Ms holmes had instructed attack-dog new York lawyers in a move the media billed as indicating she was prepared to fight hard over a custody and maintenance settlement for the couple’s only child, daughter suri.

There has also been wide speculation that Mr cruise was keen to avoid court hearings that could shine a light on his membership of the church of scientology, which describes itself as a religion, but which others allege is more akin to a cult.

The Top Gun and Valkyrie star also wheeled out an impressive counter attack. Marilyn chinitz, sheila riesal and Dylan Mitchell of Blank rome’s Manhattan office led the team acting for the 50-year-old Mr cruise. The law firm is renowned as a leading us family law practice, having acted in many high-profile divorces.

according to The am Law Daily website, Mr cruise was also represented by los angeles lawyer Dennis Wasser, who previously acted in his divorces from actresses Mimi rogers and nicole kidman, as well as Bert Fields, a named partner at fellow la firm greenberg glusker Fields claman & Machtinger.


Global view: Europe

EU – intellectual propertyPatent court deal – compromise, but no clarity

european officials finally hammered out a compromise deal on the future of the proposed eu Patent court last week – with power to be split between london, Paris and Munich – but leading

specialist lawyers remain concerned over a lack of structural clarity.richard Willoughby, an intellectual property specialist and patent

litigation partner at london law firm rouse, said questions remain over how the court will operate in practice, as well as there being issues over resources and funding. ‘how much it will actually cost to run and use is completely unclear. The figures being quoted – even if accurate – are for getting unitary patents, not enforcing them. under this proposal, there are now in effect three central divisions requiring judges, logistical support, facilities, rather than one. This can only add to the expense and complexity.’

simon cohen, the partner in charge of the uk patents team at global law firm Taylor Wessing, commented: ‘although an unusual compromise appears to have been reached on the court’s location, the patent profession will at least be relieved to see a balanced approach has been arrived at and avoided the temptation to concentrate power in one location.’

keith hodkinson, partner and chairman of uk patent and trademark attorneys Marks & clerk international, said the european council announcement ‘does not represent a final agreement on the unitary Patent court or a victory for the uk government.

‘While the location the court is certainly of economic significance, and the decision to locate at least certain specialist work in london is welcome, the chief concern for the professions and industry has always been the fundamental flaws in the regime, rather than the issue of where cases are heard.’

England – legal profession

Ethnic minority lawyers slam tribunalengland’s solicitors Disciplinary Tribunal is ‘not fit for purpose’ and ‘falls far behind the quality and consistency of other regulatory tribunals’, a leading ethnic minority lawyers’ group has claimed.

The london-based Law gazette reported on a letter to master of the rolls lord neuberger form Peter herbert, chairman of the society of Black lawyers that expressed the need for ‘wholesale reform’ to the tribunal, because of its alleged prejudice against ethnic minority lawyers.

in the correspondence, Mr herbert wrote that ‘that several cases exist which demonstrate a clear lack of independence, impartiality and transparency at the sDT.’ he appealed to the master of the rolls – who, under the solicitors act 1974 is responsible for appointments

to the tribunal – to ensure that the diversity of tribunal members reflects the diversity of those who appear before it.

Mr herbert also referred to a need for cultural reform to the sDT, reviewing not only its decisions, but adopting procedures to provide all appointees with thorough diversity training and monitoring, and to put appropriate sanctions into place for when the system falls short.

a spokesperson for the sDT defended the tribunal’s operation as ‘an independent, impartial decision-making body’, pointing to the possibility of appeal to the high court if a verdict is thought to be incorrect or unfair.

Ireland – legal profession

Partial climb-down on reform planamendments to ireland’s highly controversial package of proposed legal profession reforms were signalled at the end of last week, as the Dublin minister responsible showed signs of buckling under the heat

of growing criticism.Justice Minister alan shatter announced that measures would be

incorporated into the bill to ensure the independent appointment of members of the legal profession disciplinary bodies created by the legislation.

according to a report in The Irish Times, Mr shatter said the government will ‘include changes to the ministerial consents and method of appointment to the legal services regulatory authority ... as well as putting the disciplinary architecture beyond any perception of undue influence by minister or government’.

There has been widespread concern among irish lawyers and civil liberties campaigners that the proposed legal services regulation Bill is a thinly-veiled attack on the legal profession, attempting to impose greater government control over solicitors and barristers.

EU – financial services

Brussels publishes landmark directive europe’s long-awaited legislation on investment products was published last week with the proposal setting out a regime for structured and insurance products, as well as collective investment in

transferable securities funds sold to retail investors.commenting on the Directive on Packaged retail investment

Products, Penny Miller, a managing associate at international law firm simmons & simmons, said: ‘The proposal is core for the structured products industry and will directly affect regulation. it is aimed at providing consumers with a better understanding of the risk involved with investment decisions and when comparing different investment products across europe.

‘The challenge will be to come up with a regulatory framework >

clifford chance is at the front of the london magic circle law firm pack as the leading firms joust for slices of the uk mergers & acquisitions pie, according to figures released this week.

The overview of the first half of 2012 from analysts Mergermarket – part of the Financial Times group – showed that the canary Wharf-based firm climbed from ninth place to take the number one spot in the legal advisor league table by deal value.

advising on deals totalling £26,194 million, cc easily overtook nearest competitor Freshfields, with the anglo-german firm on £18,723m, allen & overy on £15,685m and linklaters £15,073m.

Despite being fourth on the list for deal value, linklaters remained top of the table for total deals with 45. clifford chance came second, jumping from seventh on the list after its involvement in 37 deals. Freshfields was next with 34, with international firm Pinsent Masons following on 33.

although uk M&a activity totalled £44.4 billion in the first half of 2012 – a 17 per cent increase compared with the first half of 2011 – several big-name firms lost ground in terms of deal value. For example, despite ranking high in deals done, Freshfields was down by nearly 28 per cent in value, a&o dropped by about 43 per cent and linklaters by 55.5 per cent. The big winners were clifford chance with a 271 per cent gain and the london office of new York firm skadden, which leapt from 48th in the table to ninth, with a value change of 523 per cent.

energy, mining and utilities formed the most active sector, valued at £14.3 billion over 26 deals.

The biggest deal of 2012 so far involved French electric utility company gDF suez bidding for a 30.23 per cent stake in london electricity generator international Power, which was valued at £6,840m. linklaters and new York-based firm Weil gotshal & Manges advised the buyers, while cc acted for the seller.

UK – deals

Mixed picture for magic circle M&A figures

Clifford Chance tops the list


Global view: Europe

which can be flexible enough to deal with the wide range of investment products caught within its net. lessons learnt from the uciTs iV requirement to produce kiiDs (key investment information documents) must be considered.’

The proposal is likely to be considered over the summer and, if approved, would apply to member states in two years.

England – property

London law firms profit from overseas surgelondon received more international property investment in 2011 than any other european city, according to a report released last week.

in the global cities report from the investment Property Databank (iPD), Michael stancombe, co-chairman of global real estate at anglo-us firm hogan lovells, said that investors from outside the uk are driving instructions around the purchasing of prime property.

‘i don’t see any real growth in office take up from the legal sector in the global cities in which the truly international firms operate. We are likely to see quite a prolonged period of stability,’ said Mr stancombe.

‘obviously some firms will have to relocate as a result of combinations or outdated/poorly configured space, but i believe that most firms will look at doing deals on existing space rather than incurring the capital costs associated with relocation.

‘in terms of deal flow, we have seen huge levels of interest from global investors looking to invest capital in central london offices. The main driver appears to be preservation of capital combined with london’s safe haven jurisdiction.’

EU – technology

Ruling allows second-hand download salesMusic, films, books and games downloaded from computer programs are to be more freely transferable, following a groundbreaking ruling by europe’s top court.

Judgment from europe’s court of Justice in the usedsoft case last week found that a licensor’s rights to a program cease to apply following its first sale. The case concerned the unequal sales rules between content contained on cDroms and downloads.

according to expert lawyers, the ruling will shake-up the current system, where downloaded content is merely licensed to an individual user, allowing only that individual to access it and forbidding any future sales of the program. currently, any sharing of downloaded files constitutes copyright infringement.

England – legal profession

Naming-and-shaming plans delayeda controversial naming-and-shaming policy for errant lawyers in england has been put on hold after the watchdog responsible said the process required ‘refining’.

The legal ombudsman for england and Wales had planned to launch a programme of publishing the names of law firms with complaints made against them. But, according to a report in london-based weekly, the Law gazette, the scheme has been postponed for an unspecified amount of time.

The move, by legal ombudsman adam sampson, triggered speculation that his office has bowed to pressure from solicitors, many of whom have been angered by the plans to publish complaints details.

The proposals were announced last november, and, as the gazette points out, particularly controversial are plans to publish quarterly summaries of the number of complaints each law firm has generated, the area of law involved and the outcome of the matters.

a spokesman for the ombudsman’s office told the newspaper that ‘we’ve been refining the process for publishing this information as we want to make sure it’s fair and accurate and unfortunately it’s taking longer than we had originally anticipated’.

EU – litigationSurge in commercial disputes at top court

The number of commercial disputes brought before the european court of Justice increased dramatically in 2011, according to figures released last week.

The information compiled by legal data provider sweet & Maxwell reveals that as the escalation of the economic crises continued throughout 2011, businesses fought harder to save their market share and protect profitability.

The most significant surge came in competition cases, which rose to 60 in 2011 from 20 in 2010. Taxation and intellectual property cases also increased substantially.

Professor Panos koutrakos, editor of sweet & Maxwell’s European Law Review, said: ‘The surge in competition-related cases shows how the eu institutions are spending considerable time fighting to maintain the integrity of the internal market. This is noteworthy as, in the light of the economic situation in europe, national governments may find it difficult to resist the temptation to succumb to protectionism.’

France – legal education

London University launches Paris law coursea leading British law school is to risk the wrath of French traditionalists by launching an english language post-graduate course in Paris.

Queen Mary, university of london has confirmed it is to offer an llM degree programme for students in the French capital. The course has been developed by the university’s centre for commercial law studies, with law school officials saying the Paris venture builds on the success of the london-based programme already on offer. The llM begins next January with courses taught in english by Queen Mary academics and visiting lecturers from leading French law firms.

UK – white collar crime

Ex-judge takes key post in fraud agency shake-upa leading criminal law judge is to take a crucial role in Britain’s fraud busting agency as the serious Fraud office faces the most profound shake-up in its 25-year history.

geoffrey rivlin Qc – who retired last year as the senior resident judge at southwark crown court – will be given a key role as part of a reform at the agency. The Times newspaper reports that the retired judge will advise sFo’s new director, David green, on presentation, overseeing cases from charge to trial.

Mr green told The Times: ‘This is the first time a retired judge has worked with a prosecution agency. he has unrivalled respect and expertise in relation to the criminal litigation of fraud and i am hugely pleased that he has agreed to come.’

The restructuring – which also involves alun Milford being appointed as general counsel – is largely a response to criticism the sFo has faced over its bungling investigation into the Tchenguiz brothers, in which it admitted a series of mistakes.

Gibraltar – legal profession

Leading lawyer and politician diesTributes were paid earlier this week to two leading gibraltar lawyers who died recently, including one of the British colony’s political elder statesmen.

sir alfred Vasquez Qc served for two decades as the territory’s speaker of parliament from the 1970s and into the early 1990s; he remains the longest-serving holder of that post and was 89 when he died. sir alfred was called to the london bar at inner Temple and the bar in gibraltar in 1950. he was a senior partner at local law firm Triay & Triay, following the merger of that practice and his, Vasquez Benady & co.

The firm was also hit last week by the death of sir alfred’s partner Je Triay Qc, who died aged 80.


Global view: Asia/Oceania

Malaysia – global law firmsTrowers breaks mould with Kuala Lumpur launch

london-based law firm Trowers & hamlins is to open a representative office in Malaysia – a landmark move marking the gradual liberalisation of practice restrictions in the country.

The firm announced last week that it has struck a deal with the Malaysia investment Development authority, allowing it to launch an office in the capital, kuala lumpur. Trowers will become the first foreign law firm authorised to practise in any format by the Malaysian authorities.

The regional office – which technically opened at the beginning of this month – is to be led by partner nick White, until recently the managing partner of the firm’s Dubai office. he will be supported in Malaysia by inward investment specialist partner nicholas edmondes, with the firm saying it will also allocate ‘a number of mobile partners and senior lawyers’ to travel regularly between london and kuala lumpur.

Mr edmondes said: ‘We have been visiting and working with clients in Malaysia and the region for many years. our experience ranges from power and water projects and corporate and commercial matters, through to construction and disputes in the Middle east and inbound investment into the uk by major Malaysian institutions.’

a bill liberalising restrictions that currently prevent wider-spread foreign law firm involvement in the jurisdiction is currently before the Malaysian parliament. if approved, it will allow foreign law firms to open offices in Malaysia, form joint ventures with Malaysian law firms and for foreign lawyers to be employed by Malaysian firms.

Hong Kong – global law firms

Ex-Herbies alliance partner opens local officeBenelux full-service law firm stibbe – a former alliance partner of london-based global practice herbert smith – is to launch a hong kong office to assist chinese clients with european investments.

The Lawyer newspaper reports that stibbe corporate specialist Jan Bogaert is to head the office with alexander de nerée, the founder and chairman of hong-kong based firm De nerée advocates.

The report suggests that De nerée advocates will change its name to stibbe hong kong in september, while the amsterdam law firm to which the firm was affiliated, DnTW lawyers, will enter into a partnership with another practice in asia at an unconfirmed date.

Mr de nerée said: ‘When i came to hong kong in 2005, advising foreign clients was still very much focused on the Western companies wanting to invest in china. now this has evolved and developed into advising chinese companies wanting to invest.’

Hong Kong – rule of lawTop minister attempts to soothe justice fears

hong kong’s top justice minister has attempted to reassure the residents of the former British colony that principles of open and fair trials are being upheld, 15 years after the territory was handed back to

the chinese. speaking at the opening of hong kong’s inaugural ‘prosecution

week’, secretary for Justice rimsky Yuen sc said his department ‘will continue to uphold its long-standing commitment in ensuring a fair and effective administration of the criminal justice system for the welfare and benefit of all the people of hong kong.’

The justice secretary continued by saying the prosecution division of his department had developed ‘the culture of promoting greater transparency in prosecutorial work and practice’.

Whether his diplomatically couched words will placate civil liberties and democracy activists in hong kong is another matter. The Economist magazine reported recently that hundreds of thousands of demonstrators flooded the island-city’s streets at the beginning of this month to protest against a visit by china’s president, hu Jintao.

levels of social freedom were protected for 50 years by the sino-British handover agreement, but campaigners are still worried that the communist party wants to encroach into hong kong. Demonstrators greeted the chinese president with placards stating: ‘Put an end to one-party dictatorship.’

Australia – legal practice

Cost of justice too high, says top judge chris kourakis, south australia’s recently appointed chief Justice, has singled out the cost of justice as the biggest problem with the jurisdiction’s legal system.

Mr kourakis – whose appointment was confirmed at a special sitting of the supreme court in adelaide – said the court’s resources and information technology systems are in desperate need of upgrading, according to aBc news australia.

‘We have to be innovative and we’ve got to implement changes,’ he said. ‘as far as i’m concerned there’s no procedure, no matter how old it is and how much we’ve stuck to it in the past, that shouldn’t be reviewed and looked at to achieve that aim of reducing the cost of justice.’

The appointment of Mr kourakis to the state’s highest judicial position has been welcomed by south australia’s attorney general John rau, who told radio australia: ‘it’s a real appointment on merit. i don’t think there is a single respectable person in the legal profession who would say that chris kourakis wasn’t an outstanding judge.’

india’s highest court has ruled that foreign law firms should not be allowed to open liaison offices in the country, in the latest major set-back for the asian aspirations of global legal

practices.The Times of India reports that a petition filed

by the Bar council of india to the country’s supreme court challenged a Madras high court order allowing foreign lawyers to operate in the country on a ‘fly-in fly-out’ basis to give legal advice to clients.

The council’s appeal, filed by ardhendumauli Prasad, claimed that the Madras high court decision ignored a previous Bombay high court ruling preventing the ‘fly-in fly-out’ scheme.

after hearing the bar council’s case, senior advocate M krishnamani said: ‘it is clarified that reserve Bank of india shall not grant any permission to foreign law firms to open liaison offices in india under section 29 of the Foreign exchange regulation act, 1973.’

The indian lawyer went on to claim that the ruling clarifies that the expression ‘to practise the profession of law’ as invoked in the country’s advocates act 1961 covers those involved in litigious as well as non-litigious matters.

Therefore, added Mr krishnamani, ‘to practise in non-litigious matters in india, the foreign law firms, by whatever name called or described, shall be bound to follow the provisions contained in the advocates act, 1961.’

Bar council chairman Manan kumar Mishra told the newspaper that the council opposed the

higher education and research Bill, which was tabled last year and aims to permit entry of foreign lawyers in india.

indeed, several days after the ruling, indian lawyers called a two-day strike, disrupting judicial activities at the high court as well as several lower courts, as they protested against proposed reforms to legal education in the country as well as issues around foreign lawyer regulations.

India – legal profession

Supreme court slams door on foreign lawyers

India: no place for liaison offices


Global view: Africa/Middle East

Swaziland – legal professionLawyers oppose probe into self-regulation

The body representing lawyers in swaziland is seeking a court order to block the country’s parliament from launching a probe into the affairs of its members and a study of self-regulation in the legal profession.

The move has invoked the wrath of a leading member of the swazi royal family and some politicians.

according to The Swazi Observer, the proposed probe is designed to investigate the effectiveness of the statutory scheme enabling the legal profession to self-regulate.

Prince guduza Dlamini – speaker of the swazi house of assembly and brother of the country’s king – and MP nonhlanhla Dlamini have attacked the law society of swaziland’s court action. Mr Dlamini, chairman of the parliamentary select committee overseeing mooted probe, has lashed out at alleged corruption in the legal profession, pointing to public complaints about dishonest lawyers as evidence that existing regulation is not working.

The MP maintains that some law society members have disregarded their statutory obligation to contribute financially to the profession’s fidelity fund, resulting in a shortfall of cash to compensate cheated members of the public.

The law society has opposed the probe on the grounds that the select committee is unconstitutional, and that appointments were made illegally.

Saudi Arabia – legislation

Riyadh launches finance law shake upsaudi arabia has launched a raft of law reforms that experts forecast will affect financial dealings in the country dramatically.

according to a leading Persian gulf law firm, ministers have tabled a package of five laws aimed at the regulation of mortgages, other property financing and the supervision of finance companies.

hesham al homoud, head of the corporate and commercial department at the riyadh office of law firm al Tamimi & company, said that despite the laws not having yet been published, his team had seen drafts. They indicate that the real estate Mortgage law provides ‘for the introduction of a system under which mortgages over saudi land could be registered in favour of financiers and the registered mortgagee would have priority rights against third parties’.

Kenya – human rights

Call for forces to prevent attacks on ChristiansThe kenyan military and police forces must be more effective in their gathering and analysis of intelligence relating to attacks on christian churches, a leading local lawyer has said.

James Mwamu – a resident scholar in the kenyan branch of the east african law society – scolded the government for not providing

a secure environment for its citizens following terrorist attacks on two churches by somalia’s al-Qaeda-linked terror cell al-shabaab.

according to a report on Examiner.com, the sneak attacks left 17 dead – including two police officers – and more than 40 wounded.

‘We are concerned about the security situation in kenya… we wish to condemn those attacks in the strongest terms possible, and the reason is that we cannot allow terrorists to be running around killing men, women and children; innocent civilians who have nothing to do with the war that is happening in somalia,’ said Mr Mwamu.

Nigeria – legal profession

Bar association’s validation role ‘unlawful’a lagos high court has ruled that the country’s leading legal profession body has no right or duty to regulate lawyers or validate the records of legal practitioners.

according to local website PM News, the judgment of the ikeja court follows a law suit by barrister oluwole kehinde, who challenged the power of the nigerian Bar association (nBa) to regulate the legal profession.

Mr kehinde cited section 2(1) of the legal Practitioner act – which states ‘a person is qualified to practise as a barrister and solicitor in nigeria if his name is on the roll of legal practitioners and by virtue of section 7(1), a person is entitled to be enrolled if he is called to the nigerian Bar by the body of benchers in pursuance of section 4(1) of the act and produces certificate of call to the bar to the chief registrar of the supreme court’.

as the section does not require applicants to submit themselves to any other body – including the nBa – Mr kehinde argued that the association does not have the right to charge lawyers a fee and submit their call-to-bar certificate for verification and validation, as is the current practice.

Justice opeyemi oke said in her judgment: ‘The nBa is an association of lawyers and its duties as outlined by its constitution do not include validation and verification of the record of legal practitioners in nigeria, neither does it entail the regulation of the legal profession in nigeria.

Liberia – legal education

University to open first independent law schoolThe united Methodist university (uMu) is to break the liberian government’s monopoly on legal education in the country, reports from africa suggest.

uMu recently announced plans to open a law school that will rival the country’s only other law school at the state-owned university of liberia.

The allafrica.com website reports that, at an event for potential donors, uMu president rev Dr emmanuel Fitzgerald Bailey encouraged investments in the new college.

The law school has yet to be officially announced, since it is still awaiting approval from the commission of higher education. however, rev Bailey is confident the school will be accredited.

london headquartered global law firm clyde & co is to open an office in Tripoli, the firm’s fifth in the Middle east and north africa region.

The office – opening on 1 august – will be led by libyan lawyer albudery shariha, who joins the firm from the country’s investment authority, where he was general counsel.

The firm – which only last week announced office openings in sydney and Perth for the autumn – will be recruiting both libyan and international lawyers in the coming months. The Tripoli-based team it to be supported by dedicated multilingual libya desks in london, abu Dhabi and Dubai.

The move comes about 11 months after the 32-year regime of colonel Muammar gaddafi came to a brutal end with his overthrow and death. earlier this month, the country held its first round of democratic elections since gaddafi was ousted, the votes of which are still being counted.

Mr shariha commented: ‘libya is embarking on an exciting new phase this month and there are significant opportunities as the country rebuilds. clyde & co, with its long

history of Middle east and african involvement and its energy and infrastructure expertise, is perfectly placed to advise clients looking to the libyan market.’

Libya – global law firms

clyde & co lines up tripoli office

Tripoli: Clyde & Co’s latest destination


www.winston.com

Winston & Strawn: Into Africa

Doing the deals

China: special bondlondon-based magic circle firm linklaters has advised china’s Ministry of Finance of on its rMB 23 billion ($3.65bn) sovereign bond offering in hong kong. The offering is by far the largest-ever offshore rMB bond transaction.

linklaters’ capital markets partner William liu, who led the team, commented: ‘This is the fourth offshore rMB sovereign bond transaction by [the] Ministry of Finance. This marks the first time arrangements were made for the special placement of the rMB sovereign bonds to foreign central banks, which serves as a showcase for issuing bonds to overseas investors in the future and is a step towards the internationalisation of the rMB.’

australia: going for goldinternational law firm norton rose advised Queensland-based gold producer allied gold Mining on its merger with domestic rival st Barbara. The deal sees the creation of a combined group with a market capitalisation of some au$1 billion. st Barbara will acquire the entire issued and to-be-issued ordinary share capital of allied gold for more than au$1bn in cash and 0.8 st Barbara shares for each allied gold share. The deal values allied gold at au$556 million and as it becomes a wholly owned subsidiary of st Barbara – with current st Barbara shareholders owning 67 per cent and allied gold shareholders owning 33 per cent of the new group.

The norton rose team was led by lawyers from the group’s london headquarters as well as its canada and australia offices. The london team was led by corporate partners raj karia and Paul Whitelock; the canadian team from Toronto was led by partner Pierre Dagenais and the australian team was led from Perth by partner liz allnutt.

France: sparkling acquisition Paris-based law firm gide loyrette nouel advised leading French wine producer castel Frères on the purchase of six companies from the Patriarche group, which are active in the production of still and sparkling wines.

The transaction followed an in-depth phase two investigation by the French competition authority, with the watchdog deeming that the deal was unlikely to affect the balance of power in the wine market.

gide loyrette nouel’s team comprised partner emmanuel reille. castel Frères instructed economic consulting firm Microeconomix.

Netherlands: chips all roundBenelux law firm nautaDutilh has assisted california-based microchip producer intel corporation in its research and development commitment and equity investment in Dutch photolithography systems supplier asMl holding, which is valued at €3.3 billion.

intel has announced that it entered into a series of agreements with asMl intended to accelerate the development of 450-millimeter wafer technology and extreme ultra violet lithography. The multi-party development programme includes a cash contribution by intel to fund relevant asMl research and development, as well as equity investments of intel up to 15 per cent of asMl’s issued shares in aggregate valued at €3.3 billion. corporate partners leo groothuis and gaike Dalenoord led the nautaDutilh team.

France: Sweet smell of successnew York-headquartered law firm skadden is representing leading French botanical beauty care brand Yves rocher group in connection with the sale by Paris-based pharmaceutical giant sanofi of a direct and indirect stake representing approximately

19 per cent of the Yves rocher group’s capital to a holding controlled by the rocher family.

The Paris-based skadden team includes armand grumberg, arash attar-rezvani, Damien catoir and alexandre Michel.

US: fuel feud endsk&l gates has secured a $840.5 million payment for its netherlands-based client astra oil Trading following four years of litigation against the north american arm of Brazil’s national oil company, Petrobras Brasiliero.

The payment marks the end of a series of disputes arising from a joint venture between the two companies involving a Texas, refinery.

The dispute began in 2008 when astra exercised its right to ‘put’ its 50 per cent interest in the refinery to Petrobras. Petrobras refused to accept the exercise of the ‘puts’, challenged the amount due for astra’s 50 per cent interest, and disputed whether it was obliged to indemnify astra for a $156 million payment it had made on behalf of a related trading partnership.

The Pittsburgh-based firm’s team was led by new York commercial disputes partner gerald novack, working with Dallas commercial disputes partner Beth Petronio.

Netherlands: good genesDutch law firm akD advised on the spin-off of cergentis – a utrecht-based genetic analysis technology developer.

cergentis – which is backed by several private and public investors – is derived from the hubrecht institute of the royal netherlands academy of arts and sciences (knaW) as well as the erasmus Mc.

akD partner Matthijs ingen-housz – a specialist in private equity and venture capital transactions – was involved in this project from an early stage. other members of the akD team were François koppenol, rosanne Vlasveld, remco Bosveld, nienke Bollen and Moniek Verblaauw.

The Big Deal

Saudi Arabia: flying higha trio of international law firm teams from the Middle east and london advised on the $1.2 billion expansion of saudi arabia’s Madinah airport, the first full public-private partnership project in the country.

The sponsors include TaV havalimanlari holding, saudi oger and al rajhi holdings (the TiBah consortium).

The deal is one of the largest infrastructure projects in the Middle east so far this year. The new airport will have capacity to accommodate 8 million passengers in the first phase, which will be ready by 2015 and the project’s total area will be spread over four million square metres.

global firm norton rose advised the sponsors, with its team led by partners Martin Preston and Mohammed Paracha in Dubai, chris Brown in london and alan Bainbridge in abu Dhabi.

london-based magic circle firm linklaters advised the lenders while new York’s White & case advised the general authority of civil aviation.

Saudi Arabia: public-private innovation

http://www.winston.com


Guru talk

an extraordinary wave of russian litigation has washed over london in the past few years, with the list of combatants reading like a Who’s Who of oligarchs and celebrities.

The influx has had a profound – and for english lawyers, profitable – effect.

it is estimated that, in london’s commercial and chancery courts alone, more than half of the cases involve russian or other eastern european parties. included have been big names such as Boris Berezovsky and roman abramovich – involved in last year’s battle that saw the former suing the latter for a reported £3.5 billion for his shares in russian oil firm, sibneft.

This month, Michael cherney began his fight in the high court against oleg Deripaska for a reported £730 million over a 13 per cent stake in rusal, the world’s biggest producer of aluminium.

and there is more to come. november will see the start of the trial in kazakhstan’s BTa Bank’s claim against its former chairman, Mukhtar ablyazov. he is accused of having embezzled a reported £3.2 billion of the bank’s assets.

Calling timeBut now it seems the russian authorities want to call time on the english litigation party. in an on-going dispute between sony ericsson communication rus v russian Telephone company, last month russia’s supreme commercial court Panel rejected the parties’ right to refer a matter to arbitration in london.

instead, the panel gave the Moscow commercial court jurisdiction to try the case. The panel concluded that the optional arbitration clause in the distribution agreement was not valid since it gave sony ericsson – but not russian Telephone – the right to submit the dispute either to arbitration or to a court of law. This, the panel said, was unfair and breached article 6 (the right to a fair trial) of the european convention on human rights.

in previous cases, the russian courts have not questioned the validity of optional arbitration clauses – so why the change?

The panel’s decision comes after anton ivanov, chairman of russia’s supreme commercial court, openly criticised foreign arbitration and litigation proceedings at the st Petersburg international legal Forum in May.

he said: ‘russia should guarantee its citizens and entities protection from the unfair competition of foreign judicial systems’.

Mr ivanov’s proposals include giving local judges the right to set aside foreign judgments or arbitration awards if they feel that russian parties are unfairly prejudiced in any way, and taking punitive measures against those who interfere with russian interests overseas. in extreme cases, this would include denying entry into russia and freezing assets in the country.

The senior judge also suggested that the kremlin should provide special insurance to russians who invest their money abroad. This would give the

government, as provider of the insurance, a political platform to take on states that ‘wrongfully’ seize russian assets.

Mr ivanov’s view is shared by Prime Minister Dmitry Medvedev, a lawyer himself, who at the same forum also condemned the ‘prejudiced competition of foreign legal systems’. he endorsed Mr ivanov’s plan and described it as a ‘civilised means of resolving issues’.

What has provoked this recent rhetoric? and what can be done about the russian authorities’ apparent sudden concern over where litigation is conducted and heard?

The ivanov response to the wave of litigation rushing up the Thames may in part be a reaction to the claims made before the english courts – such as in the cherney v Deripaska jurisdiction hearing – that some (or many) russian courts lack independence.

how determined the russian authorities are to overrule foreign judgments or arbitration awards and what tactics they will use, is not yet clear, but there are steps that contracting parties can take now to reduce the risk that a foreign judgment or award will not be enforced.

Parties should ensure clarity in the drafting of dispute resolution clauses. even where both are russian, they can agree that their contract is governed by english law and is subject to english court jurisdiction. russian courts will have little scope to assert that a party has been unfairly prejudiced or that russian assets have been wrongly seized if the underlying contract expressly demonstrates the russian party’s consent.

Parties should also consider whether arbitration – rather than litigation – is the better option to resolve disputes. russia is a signatory to the new York convention dealing with the recognition and enforcement of foreign arbitral awards, which requires the country to recognise and give effect to arbitration agreements and awards. There is no equivalent treaty with russia for english court judgments.

Procedural formalitiesDespite the sony ericsson decision, russian courts may be more reluctant to violate the new York convention by rejecting a compliant agreement or award. if parties choose arbitration, following sony ericsson, they should agree to exclusive (and not optional) arbitration clauses.

russian courts tend to reject foreign judgments or arbitration awards for public policy reasons or procedural violations. Parties enforcing foreign judgments or awards in russia should ensure their

contracts comply with mandatory russian laws. Parties should also pay attention to procedural formalities when entering into agreements and during proceedings to reduce the risk of a procedural annulment.

given the ready enforceability of english court judgments and arbitration awards in other eu states and worldwide, it seems likely that for now england will continue to be one of the popular jurisdictions for parties that want to enforce their claims against russian assets outside russia.

Bear bites backWealthy russian individuals and businesses have been rushing to London’s

commercial court to do battle, but now there is a backlash in Moscow. is this the beginning of the end? David Allen and Philippa charles assess the evidence

David Allen and Philippa Charles are partners in

the London litigation and dispute resolution group at global law firm Mayer

Brown International. Senior associate Julie Bowring also

contributed to this article

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Dmitry Medvedev: if he says it’s funny, you laugh

http://www.integreon.com


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the Voice

Back in the halcyon days of former British Prime Minister Margaret Thatcher, the likes of recently resigned Barclays Bank chief executive Bob Diamond and his subordinates would have been hailed as the financial enlightenment – in shakespearian terms a ‘brave new world… that hath such people in’t’.

Today, Mr Diamond and his ilk are more likely to be regarded, like caesar, as the ‘serpent’s egg’, a tyrant waiting to be hatched.

at the very least, the london interbank offered rate (libor) debacle has meant that the working practices of ‘traders’, ‘submitters’, and the intricacies of interest rate derivatives, have been reluctantly pushed into the sunlight, away from the narrow, shadowy and fog-filled alleys down which they normally travel.

libor and its eurozone equivalent, euribor, are benchmark reference rates that indicate the interest rate that banks charge when lending to each other. They are fundamental to the operation of both uk and international financial markets, including markets in interest rate derivatives contracts.

Spider’s webBut most people – many lawyers included – will not be interested in the detail of what has happened, or how it works, but rather take the holistic view that a bunch of crooks have yet again skewed the financial system in their own favour.

Many of those disinterested people may form part of a spider’s web of civil suits against those culpable, including shareholder actions and even suits from those individuals (in group actions or otherwise) whose personal circumstances have been damaged. Barclays’ breaches of Financial services agency requirements – for which the bank was fined £59.5 million – encompassed several issues, involving a significant number of employees and occurring over several years.

Barclays’ misconduct included making submissions that formed part of the libor and euribor setting process and that took into account requests from Barclays’ interest rate derivatives traders. These traders were motivated by profit and sought to benefit Barclays’ trading positions as well as to influence the submissions of other banks contributing to the rate setting process. The bank also reduced its submissions during the financial crisis as a result of senior management’s concerns over negative media comment.

The definitions for each of libor and euribor are different, but each requires submissions related to funding from the contributing banks and does not allow for consideration of factors unrelated to borrowing or lending in the interbank market. They are also used as benchmark rates for interest rate swaps, potentially affecting hundreds of trillions of dollars in swaps at any one time.

Barclay’s derivatives traders sought to influence these submissions by making requests for particular submissions, and evidence was available that the bank’s submitters had taken these requests into account. The Fsa case focused on breaches of its principles for businesses. no individuals were targeted, just the

corporate entity, despite evidence of email traffic between traders and submitters.

Meanwhile, the uk’s serious Fraud office has confirmed plans to investigate alleged libor manipulation by other banks. But manipulation of interbank rates has no specific criminal offences associated with it. The ‘offence’ of market abuse (under the Financial services and Markets act 2000) is a civil offence and in any event relates to ‘qualifying investments’, usually those on the equity markets. The criminal offence of insider dealing is not on the point at all.

The 2000 legislation contains several offences pertaining to misleading statements and practices, but these require an intention to induce another party to enter into a ‘relevant agreement’ or forego certain rights conferred by a ‘relevant investment’. The parameters are

straight jacketed and are simply not robust enough to cater for this rate-rigging scenario.

Therefore, the reported view of British chancellor of the exchequer george osborne – that the Fsa did not have the power to bring criminal prosecutions – is probably accurate. Mr osborne said he would look at strengthening the criminal sanctions available to the financial regulators and added the Financial services Bill could be amended.

For now, however, we are left with the sFo and fraud. good old fashioned fraud. The uk’s Fraud act 2006 makes it an offence to commit fraud by false representation requiring in essence: dishonesty, the intention of making a gain or causing loss or risk of loss to another, and a false representation.

Moral compassin this case, the prosecution would need to prove against the individual submitters (who would be need to be identified) – and possibly against the encouraging traders, who could be construed to have ‘conspired’ to commit the fraud – that they acted dishonesty, made false or deceptive submissions (or representations), with the intent to gain for themselves, or avoid loss for the bank. The burden of proof is on the prosecution to prove a case beyond a reasonable doubt, and not on the balance of probabilities. so what chances of a conviction, let alone a significant penalty?

how far has this virus spread beyond Barclays? are bankers nominally authorised by the Fsa as ‘fit and proper’ capable of operating within a moral compass, let alone a legal one?

it is not surprising that no senior banker or regulator has been jailed for their roles in the financial crisis. Bankers and regulators live in their own bubble, protected from the ordinary pressures and threats of criminal justice by the politics of economics and the

perception that at all costs chaos must not prevail. What politicians and regulators fear most – entirely

without justification – is a breakdown of public order if the economic edifice is seen to be collapsing. From the mouth of king lear: ‘That way madness lies; let me shun that; no more of that.’

hoist by their riggingDetails of the Libor scandal make most people’s heads spin – but one thing

is assumed: bankers as a breed are borderline crooks. Stephen Gilchrist looks at whether any will do time for massaging interest rates

Stephen Gilchrist is head of the regulatory law

department at London-based law firm Saunders

Law

http://www.srsearch.com


talking points

James caan is not the type of character generally associated with the still ultra-conservative provincial english legal profession. sure, he’s partial to a stripy suit, but of the sort of width and brightness of chalk – along with flamboyant open-necked shirt – that would normally have the rotary and golf club regulars muttering about ‘not being one of us’.

and it’s not just the clothes. Mr caan made his considerable fortune – estimated to be worth some £70 million – in the personnel business (what is now referred to as human resources and capital, by those who prefer to replace one word with three). in the mid-1980s he launched london recruitment company alexander Mann, and by 1993 he’d added executive head-hunting business humana international to the portfolio.

six years on, he first sold humana and in 2002 he flogged alexander Mann to take a break for studies; in 2003 he completed harvard Business school’s advanced management programme and then set up london-based private equity house hamilton Bradshaw.

as an outspoken, entertaining entrepreneurial firebrand, Mr caan has few equals, a point recognised by the BBc when it recruited him to sit on the panel of its Dragons’ Den,

with the firm for 35 years, partners who have been there for 40 years. it seems to be one of those firms that is very talented at keeping its people. and the people seem to be very loyal.

The business is also of a decent size for us – about 130 staff, with 23 partners. We also did quite a lot of due diligence on some of the customer base and were pleasantly surprised at how some of the clients had been with the firm for many years. reputation, quality, integrity, professionalism – the firm has all that. as an investor, what you need is a business that has a foundation that you can build on.

You’ve already spent time at Knights. What have you told the partners and wider staff about the future?The core message i delivered was the strategy is to introduce a way of working closer with clients. rather than a client using us as a transaction house, i want the firm to move to a situation where we have several of our lawyers based on the clients’ premises, becoming an almost in-house counsel and using the platform of knights to deliver the service.

currently, a lot of clients use the firm for specific matters. We are now saying, ‘let’s get closer.’ rather than having one-night stands, let’s develop a more deep and meaningful relationship with the clients. if that means allocating a lawyer to each of our clients to get to know them – actually spending some time based at their premises – then let’s do it.

once you understand the nature of a business, what it is trying to do and what its strategy is, the quality of the advice you give is greatly enhanced. By knowing the dynamics of a client’s business, lawyers will be able to provide better advice.

Can you be more specific about a business plan for the firm?in the first year, as we get to know the business and the customer base, one of the things that we’ve got to be very careful about is that we don’t change the culture, values and principles of the firm. You need to contain the fabric of the business to ensure that what has kept the firm going for nearly 250 years is retained.

But, ultimately, you want to develop and introduce strategies looking at new markets and opportunities and talent. The idea of identifying potential opportunities for us was

firm foundationsPrivate equity companies were eyeing up English law practices even before the legislation allowing them to

buy-in hit the statute books. Jonathan Ames talks to a prominent business angel boss who’s struck early

a television series designed to scout young, innovative talent.

if that all sounds like a story out of the script-writing department at an old hollywood studio, it will come as no surprise to learn that even his name has an element of fantasy about it. Born in Pakistan 51 years ago, he was originally nazim khan before officially changing his name in his twenties, having admired the work of the Rollerball and A Bridge Too Far star.

so not a typical member of the legal profession, but that is what he has become. several weeks ago, hamilton Bradshaw announced it would take advantage of recently implemented uk legislation that allows the creation of alternative business structures in the legal profession and, pending regulatory approval, invest in solicitors’ firm knights, a 23-partner, three office practice based in staffordshire.

Partnership meetings at knights will never be quite the same again.

at first glance, the legal profession might appear to be outside your comfort zone of standard business investment. What attracted you to the sector and to Knights specifically?From my perspective, this is one of the most exciting investments i’ve made this year – i feel i can bring a lot of value to the business.

law is interesting to me because i’ve primarily been investing in people-based businesses for the past 25 years. so it is a sector i understand very well.

When you invest in people-based businesses you have to be very aware of the challenges those businesses face – and it can be challenging getting over the culture of a company, which can be heavily dominated by personalities. unlike with a product, where you can change colour or design, it can be much harder to implement change in people-based businesses.

But this is something i understand. When i launched alexander Mann we started it from scratch and grew it to revenues of about £400 million a year, operating out of 50 countries.

knights has been established for nearly 250 years; it’s got a very strong following and brand – some of the customers have been with the firm for generations. When doing the due diligence, one of the things we found that was quite remarkable was that there were secretaries who had been

‘We are now saying, ”Let’s

get closer.” Rather than having one-night stands, let’s develop a

more deep and meaningful relationship

with the clients’

James Caan: ‘An exciting investment’


Trusted advisor to solicitors and in-house counsel, internationally.

www.LPALegal.com

talking points

quite exciting. The idea of scaling the business and identifying other niche areas where we can attract other firms of five to 10 partners that will benefit from a bigger scale. if we acquire those firms, we can leverage off the customer base of knights.

along with another provincial English law firm – Cripps Harries Hall – Knights has been involved in a unique outsourcing deal with global law firm Lovells, a deal that has survived that firm’s 2010 merger with US practice Hogan & Hartson. Did that innovative scheme – known as the ‘Mexican wave’ – factor into your thinking when looking at the firm?one of the key components around the firm that appealed to us was that they had done a fantastic deal with lovells, which essentially outsourced the processing of property legal work for Prudential.

When you win a contract of that type, if you can execute and deliver it successfully, what you want to do is replicate it.

When i was with alexander Mann we essentially did the same thing – we were a transaction business, in other words, a head-hunting business that evolved into an outsourcing business, where rather than taking individual assignments from clients, we were proposing to clients that they outsource the whole of that area to us. That approach revolutionised the business from being a straight-forward headhunting firm to what is now one of the largest outsourcing businesses in europe.

When we looked at knights we thought it had done that successfully and maintained that contract for nearly 10 years. so why not go out and look at other law firms? We’ve got a facility outside london, which means having a much lower cost base, our partners are charging £250 per hour, when a typical london firm will be charging £450 per hour.

We feel strongly that the market is under a lot of pressure in relation to margins and pricing, so if the large commercial law firms want to retain some of those bigger clients, they can keep the core london work, but outsource some of the easier work to a firm such as knights.

Britain’s Legal Services act 2007 – which reformed regulation of the profession and

created the concept of alternative business structures – has been highly controversial, both in England and abroad. Will the reforms ultimately be accepted by the profession?When you look at the changes that took place when Margaret Thatcher deregulated financial services and allowed foreign banks to operate out of the uk, a lot of people questioned whether that would work. But ultimately, as a consequence, those reforms built one of the biggest industries in this country and created thousands of jobs.

You can scale law businesses quite well – they can be developed and grown. There must be about 11,000 law firms in the uk, but around 8,500 have four partners or fewer. so it really is one of the most fragmented sectors of the economy.

Nonetheless, there remain harsh critics of external investment in law firms. Many would argue that bringing businesspeople and outside capital into the equation will move the practice of law away from its fundamental, independent rule-of-law and justice core to a purely profit-generating motive. Have you any sympathy with that view?When you’ve got external investment in a law firm, it shouldn’t and won’t change the nature of the service or the quality of the delivery. ultimately the work can only be delivered by lawyers.

Private equity firms such as ourselves will have no client contact – we are not delivering or executing. The idea is to give law firms a greater financial platform. historically, every year law firms more or less distribute all their profits out and there is little financial platform or balance sheet to speak of, because conventionally if you’ve got a group of partners that have made ‘x’ amount of money, generally that profit is shared among the partnership. Therefore their ability to raise capital to grow the firm is challenging.

i’m absolutely certain that there are certain firms that have already achieved the scale where they have the financial muscle and do not require capital. every firm has its own strategy and vision – and it’s perfectly ok for a firm to say ‘we’ve achieved a certain status in our market and we are self-sufficient’. But i expect that

would cover less than 10 per cent of the total number of english law firms.

Just because you’re a good lawyer, doesn’t mean that you are a good businessman. at the end of the day, these are commercial businesses – they employ people, they have overheads, they have costs. Therefore having people who have the expertise of running, managing and building businesses is a different skill than being a good lawyer.

That’s where the industry could benefit from alternative business structures – it will allow it to bring a level of expertise into the firm that it potentially lacked in the past. When you are running firms essentially by committee, decision-making can be paralysed.

We looked at a number of firms and one of the key things that we found was that it is quite difficult when you’ve got a firm that has 20 partners to make decisions.

something that a private company could decide on in a week, a law firm will take three months to deal with. essentially, lawyers are technicians – but, generally speaking, good technicians don’t make good entrepreneurs.

When one of your investments in the middle of the last decade – the Benjy’s sandwich shop chain – went bust, you reportedly said that you’d done just about everything wrong in relation to that business that you could have done. Did you learn lessons from that failure?Yes, absolutely. The key thing there was that i’m not a retailer. My background and my success have been in people-based service businesses – advertising, recruitment, headhunting, media – i understand them. retailing is a whole different ballgame. There you are dealing with product – and with the sandwich shop we were dealing with perishables – it was not my area.

With the law firm, i’m dealing with people who deliver a service for a fee and have a fixed costs base, which is no different from most of the other businesses i’ve dealt with. i certainly feel far more comfortable with this type of business.

A version of this interview originally appeared in The Times newspaper on 5 July 2012.

cVJames caanBased in London,

Mr Caan is the founder and chief

executive of private equity business

Hamilton Bradshaw, which specialises in buy-outs, venture

capital and real estate investments. In 1985 – at the age of 25 – he founded

the Alexander Mann Group recruitment

agency in the British capital. Eight years

on he launched headhunting business Humana International

and the private equity firm Hamilton

Bradshaw in 2003.

‘Essentially, lawyers are

technicians – but, generally speaking, good

technicians don’t

make good entrepreneurs’

http://www.lpalegal.com


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Law firms’ web efforts failing to catch attention of gCsDespite ploughing funds into marketing and business development on the internet, there is still a gap between what gcs want from an external law firm and what the firms are providing, according to recent research.

a report from industry experts hubbardone – which surveyed more than 40 in-house legal officers working in multinational companies across the us, uk and europe – suggested in-house lawyers look for customised methods of communication with external law firms, and the onus is on private practice lawyers to prove they are capable of providing a targeted, tailored service.

alM’s Corporate Counsel website reports that the survey focused on the methods used by firms to attract corporate clients, such as websites and social media. John simpson – senior director of interactive marketing at hubbard – told corporate counsel the ability of law firms to modify their services could be more important than pricing.

Yahoo gC resignssearch engine giant Yahoo has confirmed general counsel Michael callahan has resigned after more than 12 years with the californian firm. according to The Wall Street Journal, Mr callahan wrote the he intends to ‘move on to new opportunities’.

Yahoo interim chief executive ross levinsohn wrote in an internal email that Mr callahan ‘has been a leader and a great

partner to me and the entire executive team and we will miss his calm demeanour’. however, he did not provide any further reasons for the departure.

one of the most recent legal battles in which Mr callahan was involved was Yahoo’s lawsuit against Facebook for patent infringement. Facebook has since launched a countersuit, with both companies now reportedly seeking to negotiate a settlement.

The siren call of in-house rolesMore than 60 per cent of lawyers working in private practice would consider moving to an in-house position, according to a survey from uk legal recruiter laurence simons.

according to a report by the weekly Law gazette, the research also revealed that 53 per cent of the 114 legal departments surveyed had recruited lawyers in the first quarter of 2012. This represents an increase of 13 per cent on what the companies had forecast last year.

The increase in hiring was offset with a 13 per cent fall in external spending by legal departments over the last four years.

The survey – conducted by laurence simons and the association of corporate counsel – found that, as well as 61 per cent of the nearly 400 private practice lawyers considering a move in-house, the uk accounted for 30 per cent of in-house hires, with 24 per cent in germany and 20 per cent in France.

thyssenKrupp restructuring gathers pacearne Wittig is set to leave his chief legal officer role at Deutsche Bank to become general counsel at german steel and industrial conglomerate Thyssenkrupp.

The Lawyer newspaper reports that Thyssenkrupp is currently restructuring its legal department into separate divisions for legal matters and compliance.

Mr Wittig had been at the Frankfurt office of Deutsche Bank – with

responsibility for germany and central and eastern europe – since 2004, but will now oversee the new legal division at Thyssenkrupp when he takes charge from the beginning of october.

The compliance division will be led by newly appointed compliance officer cristoph klahold, who has been with the company since 2000 and has played a key role in developing its compliance programme.

http://www.winston.com


Partner environment

Competitive cultureDecision making

CultureExpertise

Principles

Governance

Partner Autonomy

Individualism

Scepticism

Integrity

Financial reward

LLP structure

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global lawyer.indd 1 12/03/2012 12:08

Management speak

advanced economy legal service sectors are in the late mature stage of life. Demand is in long-term decline, client purchasing power is in the ascendancy, many services are perceived as commoditised, labour costs still outpace annual fee increases and successful substitutes are emerging.

in the next decade, without re-invention, law firm profits will plunge. The question is: where does the global $200 billion-plus ‘big law’ sector turn?

innovation is the obvious answer. But for the law firms, word processing, email and a few internet applications are probably the greatest advances they’ve seen in decades – and those have merely boosted productivity rather than re-invented business models.

Beaten by disruptorsinnovation is starting to come from outside law firms themselves in the form of disruptors such as legal process outsourcing businesses and alternative business structures in england and australia – but these developments still represent less than 1 per cent of the current market.

There are two types of business innovation technologies: sustaining and disruptive. To succeed, a law firm must replace the former with the latter – or eventually be beaten by the disruptors. sustaining technologies improve current performance and are familiar because they improve well-established ways of delivering benefits to clients.

in law, word processing and email are such sustaining technologies. But they are generic, so the industry and its clients benefit, not a single firm. Most firms have been adept at turning these sustaining technologies into productivity gains, with even the laggards having now caught up.

The 1997 book, The Innovator’s Dilemma – written by harvard Professor clayton christensen, an authority on business innovation

however, disruptive technologies eventually surpass sustaining technologies in satisfying market demand with lower costs. and when this occurs it does so quickly; it’s game over in a decade or less. Those who did not invest in the disruptive technology sufficiently early are left to wither and fail. When to move, how fast to move, and how much to invest, according to Prof christensen, form the ‘innovator’s dilemma’.

clients are part of this equation as well, and they are also resistant to many changes. The best example of this is the agonisingly slow take-up of fixed or other alternative fee arrangements. For more than a decade, the demise of the billable hour has been forecast, and yet it has proved remarkably resilient.

Daunting taskin light of the grim innovator’s dilemma, can any law firm hope to succeed? The answer lies in being able to identify, develop and market emerging, potentially disruptive, technologies before they overtake sustaining delivery and product technologies. identification of these disruptive technologies is a daunting task because, as Prof christensen observes, ‘markets that do not exist cannot be analysed’.

one cannot predict what the market or probability of success will be for these emerging technologies. leaders need to engage in discovery-driven processes, in which they operate on the assumption that new markets cannot be analysed and instead use learning loops and an emergent approach to strategy and planning.

The key obstacles to success with this approach are the partnership structure of firms and inability to risk failure. in trying to solve the innovator’s dilemma, firms have to leave room for failure in planning and be willing to invest in what may be a potentially disruptive technology. is any chairman or managing partner willing, able and brave enough to lead the way?

Wrestling with the innovator’s dilemma Law firm profitability hangs on a precipice as disruptive technologies

threaten to wreak chaos on traditional models. George Beaton asks: will margins be large enough in the future for all to survive?

George Beaton is a partner at Australia and Hong Kong-based corporate advisory business Beaton Capital

– offers insight into the tough task facing law firms. lawyers have big problems dealing with disruptive technologies because these innovations will almost certainly ‘result in worse product performance… at least in the near term’, according to Prof christensen.

This feature of disruptive technology means the intrinsically conservative, risk averse, partnership-based legal profession – which focuses on today’s needs of its clients and its current duties to courts – isn’t even contemplating disruptive technology. in fact it is fighting, resisting, perhaps even obstructing it – witness the new York city Bar association’s recent reaction to the introduction of aBss in england and Wales.

Satisfying demandThe trouble for law firms is that while disruptive technologies occur less frequently, they cause the failure of highly successful practices that are only capable of using sustaining technologies.

Disruptive technologies are not embraced because they do not initially satisfy the demands of the sophisticated end of the market, typically where others look to for leadership. Because of this, large firms seem to be choosing to ignore –even discredit – disruptive technologies until they become more attractive in terms of profit.

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cases involving disputes over when and how predictive coding should be used have recently come before judges in the us, triggering a robust debate in legal circles on both sides of the atlantic.

a london panel discussion a few weeks ago brought together experts united in the view that the enormous increase in information – fuelled by the prolific use of email, mobile devices and social media – meant that traditional models of document review were increasingly ineffective from cost and practical perspectives.

There was also broad agreement that technology was the only means by which lawyers could cut through vast amounts of information quickly and efficiently.

lawyers and their clients are used to using keywords as a means of searching information, but this debate concentrated on whether – and how – parties should use next-generation technologies to achieve further efficiencies. The panellists recognised lawyers continued to be reluctant to adopt technology-assisted review and that reluctance is fuelled by several factors.

Creatures of precedentThe first of these is a lack of judicial approval. in the experience of Judge andrew Peck of the southern District of new York, lawyers are ‘creatures of precedent’, waiting for cases to establish judicial approval before taking the plunge to

director of cyber-forensics and investigations at Barclays Bank, said that while many companies are not yet using predictive coding, the functionality to do so is likely to be available in the disclosure systems they currently use. at Barclays, predictive coding is to be included in the next upgrade of its existing tool and the organisation intends to use it once the upgrade is tested and reviewers trained.

Box phobiaanother factor is the black box. lawyers are comfortable using all sorts of technology without understanding how they work – for example, google searches or Microsoft office. and yet they fear using predictive coding because they do not have a detailed understanding of how it operates.

Master Whitaker said he is interested only in the techniques adopted by the parties in training the software and how it is used. if good quality information is used, and effective quality control is deployed, good results will emerge from the exercise.

fear of codingExperts – and even senior judges – are telling lawyers to overcome concerns about

advanced e-disclosure techniques. But, asks Greg Wildisen, will they listen?

he added that, when considering predictive coding, litigants should ‘trust that it does what it says on the tin’, rather than requiring the investigation of complex algorithms. Parties need to be careful about setting accuracy levels and must understand that machines will not give perfection – but nor will human review. he concluded there must be an acceptable margin for error if one is adopting a pragmatic and proportionate process.

Judge Peck agreed that it would be sufficient, in his opinion, for the quality control statistics to show that parties were producing the right documents and that they had undertaken the appropriate sampling of non-relevant documents. Master Whitaker also stressed the importance of the parties’ agreeing on a protocol establishing how the software is to be trained, the level of input opponents have, and how disputes should be resolved.

Both judges agreed that, for predictive coding to be effective, the parties will need to agree that both sides will have an opportunity to consider the seed set of data to ensure the process of training the software is transparent and open. Doing so will ensure it is difficult for opponents to undermine the methodology adopted by a party at a later date.

Greg Wildisen is international managing director at e-disclosure specialists Epiq Systems.

use new methods. luckily, precedents are forthcoming. There have been two cases so far this year in the us where parties have received judicial approval for the use of predictive coding, and he predicts that an increase in such cases will prompt lawyers to use the technology more widely.

But, from the British perspective, senior Master steven Whitaker made the point that lawyers in the uk are less likely to be waiting for precedent and more likely to be reluctant to use predictive coding because of a lack of understanding of how the technology works.

The second factor is fear of cost. Master Whitaker’s experience is that lawyers try to avoid employing complex technologies because of the expense involved. however, in his view, they fail to take into account that those costs are part of the end process. if the parties are able to locate the most relevant documents more quickly they will, for example, be able to consider whether settlement is appropriate at an earlier stage.

robert lewis, the global

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new York-headquartered global law firm Proskauer rose has continued to build its global capital markets capabilities with the addition of three partners and a senior counsel to the firm’s london office.

Partners Peter castellon, katherine Mulhern and roberto Bruno and senior counsel Maximilian kirchner will join in september.

Mr castellon joins from citigroup in london where he is deputy general counsel in the banking and capital markets department. Ms Mulhern joins from new York-based firm kaye scholer, where she is a partner in the london office. Mr Bruno will join from the london office of fellow us law firm cravath swaine & Moore, where he is currently a senior lawyer in the corporate department.

Mr kirchner will join from the new York office of latham & Watkins. he represents financial institutions and private equity sponsors in leveraged finance and equity capital markets transactions.

Global people

uKlondon-based commercial law firm Berwin leighton Paisner has boosted the ranks of its funds team with the poaching of Justin cornelius from fellow english firm nabarro.

Mr cornelius – currently a partner at nabarro – will join BlP’s corporate practice in london as a partner. he has more than 10 years’ experience as a funds practitioner, specialising in investment and complex joint ventures in the real estate sector as well as advising on structuring and equity raisings for private equity real estate funds.

atlanta-headquartered law firm king & spalding has accelerated its european growth with the recruitment of William charnley as partner in its london office.

a leading transactional lawyer, Mr charnley deals with M&a, private equity, hedge funds, corporate finance and capital markets. he joins from chicago’s Mayer Brown.

London king & spalding is also set to launch a london real estate department after the addition of nigel heilpern, who arrives from Fried Frank harris shriver & Jacobson.

Mr heilpern will join king & spalding’s capital transactions and real estate practice group as a partner. he specialises in premium real estate matters, covering equity investments, banking and finance, private equity, fund formations, sales and leasebacks and general development finance.

AsiaMagic circle firm linklaters has announced the appointment of senior competition lawyer Fay Zhou as a counsel, and nancy chang as an associate, in its competition practice in Beijing.

The london-based firm bagged Ms Fay for its china competition team from us firm o’Melveny & Myers where she has been an associate since 2008. Ms chang joins from chicago-based Mayer Brown.

http://www.globallegalpost.com/jobs


With highly experienced specialist in-house legal recruiters around the world we are perfectly placed to help you recruit your next in-house counsel. We have been in this space for over 20 years and have a serious international network of more than 90,000 lawyers. If you are looking to hire a new lawyer, from junior through to global counsel, please contact Nick Root in the first instance on +44 (0)20 7415 2828 or email [email protected]. Alternatively, visit taylorroot.com

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Global people

EuropeFrench firm sBkg has strengthened its tax department with the recruitment of caroline couzineau, who joins from Pierre & Vacances where she was tax director.

Prior to Pierre & Vacances, Ms couzineau built more than a decade’s experience at landwell, the law firm affiliated to big four accountancy practice Pricewaterhousecoopers.

gabrielle Williamson is to join the Brussels and Düsseldorf offices of german law firm luther. having previously headed the Brussels office of fellow german law firm heuking kühn lüer Wojtek, Ms Williamson will bring experience in environmental and health law, World Trade organisation-related work, and german and at eu commercial and competition law.

Pittsburgh-based global law firm k&l gates has added to its Brussels office with the

appointment of food law partner sebastián romero Melchor. Mr Melchor joins k&l from Food law consultants, a Brussels-based boutique legal practice that is focused on eu food and nutrition law, where he was founder and managing partner. Mr Melchor has experience in dealing with the european commission and has represented a variety of multinational firms and food and drink trade associations on matters such as eu regulatory law and policy, food labelling and advertising, product registration, and product liability.

French business law firm lefèvre Pelletier & associés has recruited Xavier Pican to its partnership. Mr Pican – who will join the firm’s intellectual property and information technologies department – has more than a dozen years’ experience in various national and international technology companies. since 2010, he has been a partner in charge of

the intellectual property and technology practice at Paris-based ginestié Magellan Paley-Vincent.

Middle Eastlondon law firm addleshaw goddard has announced that international construction and engineering expert andrew greaves will be joining the firm to head its new Dubai office, which is set to open at the beginning of september. The Dubai outpost represents addleshaw’s second international foray following the opening of a singapore branch in May. Mr greaves will join the firm’s engineering, projects and construction group from Trowers & hamlin’s office in Dubai where he was regional head of construction.

north Americaoffshore law firm conyers Dill & Pearman has promoted three lawyers to its partnership:

karen corless and Jason Piney of conyer’s Bermuda-based corporate and private clients teams have been promoted to director status, while Bernadette chen of conyers’ hong kong

corporate team has been promoted to partner.Philippe Mcauliffe has joined new York-based law firm Perella Weinberg as a partner. Mr Mcauliffe will focus on advising on a wide range of healthcare sector matters. in addition, the firm announced that nick Johnston will join the firm’s london office as a managing director, also focusing on healthcare sector clients.

Andrew Greaves

http://www.taylorroot.com


Blagging the blogs

Lawyers versus bankersBarclays, and other major banks, should press the reset button and appoint lawyers to their top jobs instead of identikit chief executive officers, says eduardo reyes in his blog for london-based weekly, the Law gazette.

a lot can be said of the ‘culture’ that seems to have weaved its way into higher echelons of the banking system, with risk-taking seemingly much higher on the list than ethical procedures.

however, Mr reyes may have the answer: ‘it may sound naïve to say that lawyers in their environment remain bound by their professional rules and ethics. But i believe it is largely true – not least a lawyer’s career is ended by a whiff of regulatory trouble, whereas for straight bankers there is a tolerance for a certain amount of trouble.

‘so why not give the lawyers, whose careers have been built around managing risk, for whom any loss of reputation is vocationally fatal, the top jobs? such a step would instantly send the signal that a new set of values are now rewarded – and as we are always being told, people who work in banking respond chiefly to the substantial rewards on offer.’

Social media: times changeThe law society of scotland recently released a guide for law firms that use linkedin, Twitter and Facebook, which covers media policy, data and legal implications, risk and ethical and security considerations.

But, says Johnny Mone from inbound marketing specialists Brightfire, the guide may have missed one crucial area – the advantages to the legal profession of aligning social media policy and business objectives.

Blogging on the Business2Community website, Mr Mone says the ‘social Media – advice and information for the legal Profession’ guide highlights where law firms need to be aware of potential risks, but it fails to grasp the power of on-line engagement.

‘Many law firms still view their website and online activity as peripheral to their success and this is reflected in the plethora of brochure websites that are all about the firm and neither speak to their clients’ issues nor provide for online engagement,’ says Mr Mone. ‘however, the market for buying legal services has changed. The customer journey to spending on legal fees increasingly is beginning online.

They initiate multiple sessions across diverse media influenced by multiple marketing channels.‘

The numbers game‘in england, the accountants rule. But it’s the lawyers who are dominant in business in the united states,’ says Brett Farrell, in a blog on The Lawyer newspaper’s website.

Mr Farrell – general counsel at london-headquartered online financial services company Media ingenuity – claims english lawyers need to do more than understand the numbers. he says lawyers, and in-house counsel in particular must cultivate closer ties with chief financial officers.

The abilities and strategies that the latter have learnt and developed could be extremely valuable to in-house lawyers as these skills are not generally taught at general counsel school.

Mr Farrel explains: ‘a lawyer understands obligations that a board must comply with. The cFo understands how those obligations are applied. a lawyer knows that a contract needs payment obligations. The cFo understands the mechanics and timings of how to implement the clause… a good cFo understands risk and when to take some.

‘lawyers naturally feed into the business strategy as well, but from what i see are more removed from the business core – aloof even – proffering frameworks that are legal but lack nuanced understanding of what the board should do with the legal information. lawyers will naturally try to run a risk-elimination strategy – great for law, not always that beneficial for the business.’

To tweet or not to tweet?can you judge someone by their Twitter followers? That is the question put by Trevor Pott on the blog page of uk technology website, The Register.

it’s a tough question, as a ‘follow’ could mean an individual, a group or a corporate account. if you’re following a company that has been involved in some immoral activity, have you endorsed that company – and its actions?

Mr Pott writes: ‘Where does the balance lie between asking a staff member to relinquish their freedom of expression and trying to maintain a corporate image that clients will accept? The law on this is different all around the world, and social customs are often more restrictive still.’

the Barometer in association witha Berwin Leighton Paisner innovation

To which jurisdictions would you feel most comfortable outsourcing legal work?

The outsourcing of legal processes – and potentially higher-end services – elicits much emotion; the terminology also generates significant confusion. on the emotional side, outsourcing could profoundly change the traditional structure of Western law firms as work that trainee and younger lawyers traditionally cut their teeth on disappears to cheaper overseas jurisdictions. confusion reigns as lawyers often immediately equate outsourcing with ‘off-shoring’, in other words, sending legal work to those cheaper overseas jurisdictions. But, as our survey of leading global in-house lawyers suggests, so far, at least, the temptation is not to stray too far from home.

A wander through the global legal profession’s blogosphere

What type of social media do you use for your job?

actors use it, footballers and other sportsmen use it, even educated dustmen use it. Yes, everybody’s mad for social media. Well not quite everyone – lawyers, according to our survey of senior practitioners at major law firms, are not as smitten with the joys of being able to broadcast one’s breakfast cereal of choice, or the fact that one requires the lavatory (see a recent tweet from a us athlete arriving at heathrow for the 2012 olympics), as the wider global population. a full quarter of respondents said they couldn’t be bothered; for those who could, the business network linkedin is the clear winner.

73% Onshore in your own country

52%

15% Offshore in india/Asia

Onshore in a continental European country

59% Linkedin

17.5% facebook

15% twitter

25% none of the above

http://www.lod.co.uk


hot gossip

Devil in the detail for Colorado Satanistsa couple from colorado has criticised local authorities for treating the theft of a ‘Vote satan’ banner as burglary rather than a hate crime.

Broadcaster CBS4 in Denver reports that luigi and angie Bellaviste displayed the sign on their front porch. The couple describe themselves as satanists who belong to the church of satan, an organisation ‘dedicated to the acceptance of man’s true nature – that of a carnal beast’.

The couple claim that the sign was torn down in an attack on their religious beliefs. Mr Bellaviste said ‘i feel like we’re being treated unfairly because it’s not a so-called mainstream religion.’ Ms Bellaviste added: ‘i know of people that have the Virgin Mary in their yard and tons of Jesus, love Jesus, i love Jesus. What’s the difference?’

Police have stated their view that religious belief had nothing to do with the attack and the crime is being treated as simple theft, adding that they have no suspects so far.

You better Belieber itin a story that will chime with many music lovers, teenage pop star Justin Bieber is facing a $9.2 million lawsuit after a fan allegedly suffered hearing loss and severe tinnitus after attending one of his concerts in July 2010.

E! Entertainment Online reports that oregonian stacey Wilson Betts claims in court documents that Mr Bieber ‘climbed into a heart shaped gondola and was pulled out over the crowd,’ creating a ‘wave like effect of screaming’ that ‘enticed the crowd into a frenzy of screams by… waving his arms in a quick and upward motion.’

The complaint continues to say that owing to the ‘negligence of Justin Bieber’ as well as that of the promoters and sound engineers responsible for maintaining ‘safe decibels at

all times during their events’, the steel gondola acted as ‘a sound conductor’, creating a ‘sound blast’ that permanently damaged both of Ms Betts’ ears.

Ms Betts can potentially look forward to a Twitter backlash from the teenage crooner, who boasts almost 25m followers on the social media site.

But as far as the singer, his team and the concert organisers are concerned, silence reigns.

Barclays digs inDespite losing its chief executive and being fined nearly £300 million by us and uk regulators for rigging interbank lending rates, Barclays Bank has decided to take on Mother nature and offer help to customers affected by the sodden British summer.

according to a recent statement, Barclays business managers will work closely with individual businesses to understand their ‘particular needs’ and help them get through any difficulties, such as flooding.

With the bank recently confirming that recently resigned chief executive Bob Diamond will ‘forego’ almost £20m in bonuses and shares, customers will be hoping that the ‘package of assistance’ offered to those affected by the bad weather will be more substantial than a few sandbags.

Barclays also suggests keeping important personal documents

in ‘sealed plastic bags’, but assured holders of its home insurance policies that they are covered for standard damage caused by storms or floods.

Florida strip club sues ‘Octomom’ for no-showa club in Florida’s West Palm Beach is looking to launch legal proceedings against nadya suleman – better known as ‘octomom’ after she gave birth to octuplets in 2009.

The 37-year-old had agreed to dance topless in eight shows, but then decided to cancel after allegedly hearing a barman at T’s lounge describe her as ‘crazy’, according to the Daily News america website.

The club is also reportedly seeking an injunction against ‘octomom’ to prevent her from appearing at a rival Florida club.

T’s lounge is suing for an amount in excess of $15,000, claiming the exact damages stemming from Ms suleman’s cancellation are ‘unascertainable’ and that she caused ‘irreparable harm’.

With a legal storm brewing over a purported appearance of ‘octomom’ at a rival club – allegedly breaching another clause in her contract with T’s lounge – Palm Beach Post columnist Frank cerabino has chivalrously characterised the situation as ‘a fight between

neighbouring south Florida counties for bragging rights – or maybe it’s sagging rights’.

eBay soul crackdowna cash-strapped freelance writer from albuquerque in new Mexico has been thwarted in her attempts to make some cash buy selling her soul on auction web site eBay.

Before being taken down by the powers at eBay, the woman – known as lori n – had set a starting price of $2,000 on the ‘slightly used soul’.

according to The Huffington Post, lori was in a serious car accident in 2007 and suffered multiple injuries.

after learning that eBay had removed her listing, she told us television station KOB: ‘i’m tired... i don’t feel good. i’m near the end of my rope. i really am.’

eBay maintains a strict policy on selling human remains, but it’s policy on selling souls remained somewhat ambiguous until lori’s experience.

Terry’s slip of the tonguechelsea Football club captain John Terry may have been found not guilty over a charge of a racially aggravated public order offence in relation to an on-pitch incident involving Queen’s Park rangers defender anton Ferdinand, but the ex-england skipper had some rough moments during the week-long trial.

according to The Daily Telegraph newspaper, Mr Terry had been asked how many times he had received red cards during his career. he replied by saying he had been sent off four times. however, he was asked to repeat his answer, so that the court could hear him.

‘can you say, please, four times?’ asked his Qc, george carter-stephenson. ‘Please, please, please, please,’ Mr Terry responded.

Mr Terry then reportedly looked on in bemusement, as chuckles broke out around the courtroom.

Signs of the Evil One; Bieber concert noise controversy; advice you can trust from Barclays; Octomom sparks strip club furore; selling your soul on eBay; and John terry gets the wrong end of the stick

The Devil: losing his religion?


Bookshelf

Injustice: Life and Death in the Courtrooms of AmericaPublished by: Harvill SeckerAuthor: Clive Stafford Smith July 2012 H/B £20.00 ISBN: 978-1846556258Injustice, by english lawyer clive stafford smith, has all the features of a bestselling thriller or hollywood crime drama: an apparently innocent man framed for a double-murder involving money laundering and a drug cartel, and a court case presided over by a corrupt judge and defended by a inept lawyer.

however, far from fiction, the book provides an in-depth dissection of the us death penalty and its regulation, through the true case of krishna Maharaj.

British businessman Mr Maharaj was sentenced to death in Miami for the murder of two business associates in 1987. his initial trial proved

an open-and-shut case. Yet, despite damning evidence, Mr Maharaj continued to protest his innocence.

When Mr stafford smith – a young lawyer working for nothing – took on the case, the credibility of the initial trial was brought into question. The original judge was arrested mid-trial for accepting bribes in an earlier case. Witnesses placing Mr Maharaj 30 miles from the crime had been refused the opportunity to testify. subsequent investigations also revealed that the victims were involved in money laundering, and implicated a colombian drug cartel in their deaths.

in Injustice, Mr stafford smith describes his unsuccessful battle to secure Mr Maharaj’s freedom. although in 2002 he was resentenced to life imprisonment, Mr Maharaj has been denied a retrial. From this starting point, and alongside personal

anecdotes, the author goes on to explore the bureaucracy and corruption of the us legal system, where the death penalty is inextricably bound to the wealth of the defendant. The book provides a study of how innocence and guilt, and life and death, can be overshadowed by regulations, public opinion and financial concerns.

Cyber Warfare and the Laws of WarPublished by: Cambridge University PressAuthor: Heather Harrison Dinniss July 2012 H/B £65.00 ISBN: 978-1107011083For better or worse, technology is making our world a much smaller place. The positives are substantial; social media has made it easier to connect with friends and family all over the planet, sharing photographs and video footage can now be achieved with the click of a

button, news can be instantly zapped to your favourite mobile device – and this can all be achieved wirelessly.

however, a much murkier side of the information revolution has always been lurking in the shadows, and heather harrison Dinniss – a post-

doctoral research fellow at the international law centre of the swedish national Defence college – is keen to explore this crucial area as she dives into the depths of cyber warfare in this offering.

Cyber Warfare and the Laws of War analyses the status of computer network attacks in international law and examines their treatment under the laws of armed conflict. looking at the responses to such assaults, and discussing the law relating to computer network attacks, Ms Dinniss addresses the issues associated with cyber warfare methods in terms of the current law and explores the underlying debates shaping the modern legislation.

Events

AustraliaInvestigation in eDiscovery: Practical skills for effective eDiscovery on the frontier of technological advancement – 9-10 august, Sydneyharnessing the power of the information technology explosion is vital in today’s fast-paced world, and there is no better example than all the noise around e-discovery.

knowledge is always king, but being able to manage the devices holding that knowledge is equally – if not more – important.

The management of documents held on electronic devices is hitting companies where it hurts as it takes time and money to store – and then be able to produce – information that they are legally obliged to supply.

as a result, many companies are woefully underprepared to respond to e-discovery requests.

This one-day forum will involve practical case studies from professionals across the industry, with a panel of speakers set to include representatives from us global law firm Baker & Mckenzie, leading local legal practice Freehills and big four accountancy practice PriceWaterhousecoopers.

Workshops will also be arranged to explore various strategies and develop skills to overcome technological challenges.Details: held at the Sebel Surry Hills, Sydney; contact [email protected]; web: www.arkgroupaustralia.com.au

USThe 24th annual Texas Environmental Superconference – 2-3 august, Texas They say that everything is bigger in Texas, and apparently that applies to law conferences as well.

This super-sized ‘superconference’, served with a metaphorical large fries and litre of cola, boasts two days’ worth of all-you-can-eat environmental information.

shrewdly named The Good, the Bad and the Ugly – perhaps a step

up from 2010s Superconferencaustintexasexpialidocious – this year’s offering will be held at the Four seasons hotel in austin and include speakers from local Texas firms haynes and Boone, Brown Mccarroll, Thompson & knight and Blackburn & carter.

The programme is pitched at environmental and natural resources lawyers, and may bring a smile to the face to any Western film buffs with seminars held including ‘Bite the Bullet’, ‘For a Few Dollars More’ and ‘urban cowboy’.Details: held at the Four Season’s Hotel, Austin; contact [email protected]; web: www.texenrls.org

GlobalBudgeting for eDisclosure in Litigation: skilling up for the new rules on cost management – 26 July, webinarWith the target introduction date for a new costs management regime looming in england (1 april 2013), london-based legal technologies group kroll ontrack has arranged a webinar to discuss practical tips on how to prepare for the change and budget with e-disclosure in mind.

The group is keen to stress the immediate impact of the new rules on litigators – for example, parties will need to file and exchange cost estimates for approval before the first case management conference and costs will be actively managed by the court.

Topics included in the hour-long session will cover: what the new costs management process will entail in practice; what lawyers can do to prepare for the change; working with precedent h – the new form for cost estimates; designing defensible and proportionate approaches to e-disclosure and scoping a project; presenting budgets for agreement and approval; and new technologies that can help assess costs and keep them under control.Details: webinar held at 12.30pm – 1.30pm BST; contact [email protected]; web: www.krollontrack.co.uk/webinar/budgeting-for-edisclosure-in-litigation

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