The state of insolvency office holder (“IOH”) regulation worldwide is a matter of some concern to the international bodies active in the insolvency field. The European Bank of Reconstruction and Development held a conference on 7 November 2014 to disseminate the findings of a two-year project into the IOH regulatory environment in its client group, of which 27 out of 35 were the subject of an assessment. While the laws of many of these states have been the subject of domestic scrutiny with a view to reforms to insolvency practice frameworks, this assessment was apparently the first time that research had been undertaken into the structure of the IOH profession in many of these jurisdictions. As such, the holistic view enabled as a result of the work contains some interest for those keen on understanding how IOH regulation is performing worldwide, especially in the European Union, of whose members, some 10 were surveyed, most of which were drawn from the 13 countries acceding between 2004-2013 (the exceptions being Malta, Cyprus and the Czech Republic).
The most essential component of the project’s findings was the great diversity in terms of status, qualification and training of insolvency practitioners, and the framework for their registration, supervision and discipline. Nonetheless, some indications of cross-jurisdictional trends in these countries was possible, a notable example being that where a self-regulatory model or state-sponsored regulatory agency was used, there was a strong correlation with performance overall across the criteria being measured. While most states had a licencing regime in place, less performing countries tended to include those where Government directly exercised supervision over the profession or no regulatory framework existed at all. The tension between private and public control was evident in a number of the jurisdictions surveyed.
Overall, while minimum educational standards and professional entrance exams were often prescribed, the project revealed weak performance in areas such as continuing professional development and training needs. Similarly, lacunae also existed at the level of the development of professional associations and of ethical rules. In many places, however, even where regulatory regimes were sufficiently robust, issues with resources tended to restrict active supervision of IOHs to the context of individual proceedings with the effectiveness of such monitoring dependent on the courts’ own supervisory capacity. The role of the courts in the conduct of proceedings was also identified as an issue, particularly in the balance of control and supervision between creditors and the courts. Over-monitoring was stated as potentially a problem where it inhibited IOHs in the performance of their duties. Finally, the structure of the appointments system in cases, as well as remuneration, were felt to be insufficiently encouraging of competition in the market for IOH services. In summary, the terms of the report revealed that there was much to do in relation to improving the environment and framework for practice in almost all of these states.
Some of the issues reflected in the EBRD assessment had been anticipated in work carried out by the professional associations, including INSOL Europe, which as representative of the European insolvency community, has a watching brief on behalf of their membership over matters connected with reforms to insolvency law and practice. Although written in the context of the then anticipated review of the European Insolvency Regulation, INSOL Europe authored a report in April 2010 on the topic of harmonisation, titled: “Harmonisation of Insolvency Law at EU Level”). This report was presented to the European Parliament Committee on Legal Affairs and largely advocated consideration of substantive harmonisation in a number of areas of insolvency law.
With a consensus largely across the legal sector that Knowledge Management (KM) can now play a vital role in the success of a law firm, what are we able to do in relation to systems that help facilitate a knowledge-sharing culture?
It should be noted initially that when we talk about "KM systems" we are largely not speaking of an actual single system which provides access to a Comprehensive store of a firm's knowledge. Whether by knowledge (or know-how) we mean documents, matter information, billing information or anything else pertinent to a firm's success, it will be rare (though not impossible) to have an all-encompassing single system. Thus, the actual systems or sources of knowledge within a firm may be numerous, even if some sort of single search tool, index or portal is placed around the systems (in itself often referred to as a "KM System"). This may be a customised or a standard third party solution or some other application (I am largely thinking SharePoint).
Law firms of all sizes will now usually have at least some repository of knowledge, but as rich knowledge sources have grown exponentially, it is arguable whether access to knowledge has become easier or actually more difficult. Systems aimed at law firms are certainly plentiful and whilst many use a similar search solution or application, the architecture placed on an out of the box product may vary hugely (this in turn massively determines usefulness).
At the turn of the millennium, KM systems may have been limited to a file-share (or lever arch binder) containing a firm's core precedent documents – or the "crown jewels" as more than one Senior Partner would inform me over time (matter information could often be restricted to a spreadsheet of names and contact details). These were guarded enthusiastically, with a regime that would only allow new-joiners very limited access, mid-termers slightly greater access and only when you were fully committed to a firm for life were you allowed to see virtually all documents (there would always be the odd one or two that would get locked away in the safe). Thankfully, Practical Law came along and illustrated that such documents were not overly dissimilar after all and the need to secure these diminished somewhat. Security is much more prominent then it was back then and has moved on from simple yes/no access to flexible models able to incorporate ethical walls, sensitivities and personal preferences. Any KM system must allow such flexible security application.
SHELL’S DISPOSAL TO PRIVATE EQUITY:
BRIDGING VALUATION GAPS AND OTHER BARRIERS TO M&A IN THE UK NORTH SEA
Marc Hammerson, Partner
Sam Gill, Trainee solicitor
When things go wrong under a financing arrangement, there is a considerable body of legal, commercial and practical guidance out there for lenders. By contrast, corporate borrowers are not so well catered for.
Our short note is intended to fill this gap by providing borrower focused guidance in the unhappy event that a material breach has (or is alleged to have) occurred under a funding document, leading to a potential or actual event of default and enforcement action.
Commercial and other practical concerns:
2016 REVIEW: DEVELOPMENTS IN THE REGULATION OF THE UNITED KINGDOM CONTINENTAL SHELF
A significant development occurred in the UK’s oil & gas industry on 1 October 2016. The Oil & Gas Authority (OGA), the industry regulator, was converted from an executive agency of the government to a company with the Secretary of State for Business Energy and Industrial Strategy as its sole shareholder.
It marks the final step in the creation of an independent regulator. This change coincided with a number of OGA policy and strategy papers intended to promote efficient operating standards in the UK continental shelf (UKCS). The central theme of these papers, as well as the creation and existence of the OGA, is to keep the UKCS competitive and sustainable as a mature basin operating in a low oil price environment.
Shortly following the OGA’s incorporation, a number of additional strategy papers were published designed to encourage better behaviours among UK industry participants. This blog briefly describes the creation of the OGA and policies introduced since incorporation.
The Mindful Lawyer and Legal Profession
Dr Linda Spedding
Life’s pressures, pace and resilience
The life of the legal professional has changed hugely in recent years: indeed, life has speeded up in many respects through manifold pressures. Resilience is vital in order to enjoy a happy, healthy experience through the life cycle of the individual career, whether one opts for private practice, in-house work, academia, the voluntary or non-profit area or the public sector. The pace has major impacts on one’s health and ability to fulfil all of the requirements and timelines that are continuously driving the practitioner. In addition, the level and extent of client demands, regulatory requirements and administrative overload are often overwhelming. In order to withstand these, inner peace and strength are needed as a priority. An individual structure that honours and includes time to be, to think, to relax, to restore and to thrive is of considerable assistance.
Assets family firms can leverage to make successful acquisitions
In the 35 years that I have been advising family controlled companies, now, more than ever, these enterprises are growing by acquisition. Many corporate finance professionals, and the lawyers who advise them, view family firms as inventory for their deals, and low-hanging fruit at that. In my judgement, this view is both obsolete and dangerously myopic to private equity partners and business development executives as strategic players in the acquisition market.
In the first instance, most of the low-hanging [family business] fruit that did exist has been harvested by the ever-increasing tide of private equity firms. Fifteen years ago, in the US, there used to be hundreds of such firms; now there are thousands. But more significantly for the future of the private equity industry in its never-ending search for deal targets, what is left of the family business sector in the US is largely too small and too weak to be worth acquiring, or too strong and too sophisticated to be purchased at a bargain.
That is to say that family controlled companies that used to be targets for acquisition are now competitors of both financial and strategic buyers. And, most intriguing, is the entry into the acquisition business of single-family offices with both substantial liquidity and deep expertise in the world of family enterprise. Both family controlled operating companies and single-family offices bring to the business of acquisition assets that non-family controlled buyers can’t match.
The recast European Insolvency Regulation – impact on distressed debt investors
In 2002, the European Insolvency Regulation (EIR) introduced a regime governing the administration of insolvent corporates or individuals which operate in more than one member state of the European Union (EU). A "recast EIR" will apply to insolvency proceedings commenced on or after 26 June 2017.
Why are the EIRs important?
The EIRs ensure recognition, without further formality, of insolvency proceedings throughout the EU (except Denmark) and determine the law applicable to such proceedings. They apply only where the debtor's centre of main interests (COMI) is situated in a member state (other than Denmark) and do not apply to insolvency proceedings on foot in other jurisdictions. The EIRs are only binding on participating member states and so will be of limited practical use where assets are situated outside the EU. The EIRs envisage there being one set of main insolvency proceedings, with the possibility of multiple territorial (or secondary) insolvency proceedings.
Creating a Client Advantage - The Practice of Knowledge Management in Law Firms
Legal knowledge management is the driving force within law firms across the globe. The recent International Bar Association (IBA) conference in Washington DC attracted over 6000 legal professionals from around the world and Knowledge Management (KM) was prominently featured at the conference. In an article by Ron Friedmann of Fireman & Company in Bloomberg Law he indicates that legal knowledge management is on the rise as law firms realize that KM increases a lawyer’s productivity (Friedmann, 2016). This increase in productivity leads to delivering better value to clients. Ron Friedmann also indicates that The 2016 Citi-Hildebrandt client advisory expects “to see more focus on knowledge management” and The 2015 Altman Weil law firm report finds that 68% of firms with 250+ lawyers have incorporated KM initiatives to improve the firm’s efficiency (Friedmann, 2016).
In a Forbes 2014 article Micah Solomon indicates that creating true client loyalty is one of the most powerful and reliable ways to build a strategic, sustainable advantage for the law practice and that truly loyal clients are less price sensitive, and are less likely to be enticed by competitive entreaties from the firm across the street or across the continent (Solomon, 2014). Knowledge Management plays a key role in ensuring a high level of client support. KM staff operate smoothly between lawyers and a range of operational functions; ideally situated to increase intra-firm collaboration, communication, and understanding. Some KM programs have worked on operations for some time, but business conditions are now ripe for more extensive applications of KM to firm operations; arguably critical to keeping operational teams relevant and law firms profitable (Solomon, 2014).
Client support specifically focuses on dramatically improving the client experience. It is the expectation of all clients that legal professionals and law firms will provide high quality legal services and it’s that promise and demonstration of high quality legal services that are the intangibles that will set the firm apart. Some of the benefits KM has for legal professionals as it pertains to servicing clients are:
2016 represents a landmark year for Sandaire as we celebrate the 20th anniversary of our establishment, initially as a single family office (SFO), and later as a multi-family office (MFO). Having been one of the pioneers of the MFO model in the UK, we have seen the sector evolve significantly to establish itself as a well-defined niche in the ultra-high net worth (UHNW) space in its own right. We see many parallels between this early UK market of the late 1990’s, where the MFO model was poorly-defined and even less well understood by clients, and the current market in Asia, which remains dominated by private banks, with very few full-scale, independent and institutional-sized MFOs. It is clear that the whole UHNW market in Asia is changing rapidly and it was, for this reason, we decided to establish our first office outside the UK in Singapore in 2012.
Unlike in Europe and the US, where substantive industrial and economic expansion occurred during the 18th and 19th centuries, bringing with it previously unimagined riches for many, most families in Asia did not begin to accumulate their wealth until the rebuilding period after World War II. As of today, the ‘wealth creators’ (the first and second generations) still control a large proportion of the family capital in the region, meaning relatively fewer families in Asia have begun the process of establishing SFOs (or engaging with MFOs) for the specific purpose of capital preservation and generational succession, (which we believe are the primary objectives of a family office). This is clearly changing, however, and many families are searching for ways to defy the old Chinese aphorism, that “wealth does not pass three generations”. We believe MFOs are uniquely placed to help families in Asia achieve this. The current options for UHNW families can be loosely grouped into three areas:
Private banks are by far the most common solution that wealthy families have sought to manage their assets in Asia, and their success has relied upon several factors - namely, a broad range of proprietary products and services, deep resources and the provision of credit (for speculation or for corporate requirements). However, we believe the current practice for a family to hold accounts with multiple institutions, whether for diversification, secrecy, lack of trust, etc., to be inefficient and generally sub-optimal.
It is also not difficult to see that the interests of the client and those of the banker (who is incentivised to maximise revenue from the client) are misaligned. We believe our independence and transparent service offering are the crucial differentiators between family offices and private banks.
Looking for a Better Carrot
Compensation is a traditional “carrot” in the “carrot and stick” approach that many law firms use to motivate their partners’ financial performance. Increasingly, law firms are discovering that an “eat what you kill” (EWYK) compensation plan, in which a partner’s remuneration is determined entirely or predominantly one’s own fee production, is no more motivating than a cup of espresso coffee. It creates a buzz that lasts a little while and then quickly wears off.
This is why traditional “carrot and stick” thinking about partner compensation seldom produces long-term results in law firms. Some partners are not especially attracted by the taste of the carrot, and most of them learned long ago not to fear the stick.
“Eat what you kill” is not all bad
Have you ever had to give difficult feedback to a talented team member you want to motivate and inspire? Most people encounter that situation from time to time in their working lives. There are two possible risks: you soft-pedal the feedback, so the recipient doesn't really hear or understand it; or you crush the confidence of someone who has real potential to succeed. There is a third way, so here are some tips for turning bad news into a conversation that leaves the recipient motivated to improve, and your working relationship even stronger. There are many ways for this conversation to go wrong, but the more of the following you put into practice, the better the outcome is likely to be:
1 Make sure the recipient feels valued as a person. Feedback from associates tells us that they appreciate it when partners and senior lawyers take the time to get to know them as individuals, and to listen to and respect their opinion. If you have created a relationship of mutual respect and interest, you have a good foundation for helping people perform at their best. As part of the feedback conversation, make sure you mention something you appreciate about them – make it sincere, specific and succinct. It can be as simple as 'I really appreciate how hard you have been working' or 'I've noticed how willing you are to offer your help to others on the team'.
2 Let them know that you have some feedback you believe will help them improve their skills or performance. Feedback given with positive intent is always more effective than criticism that comes from a place of annoyance or lack of respect. Notice your own feelings and manage them well. Introduce the feedback as being intended to help them succeed.
3 Make your feedback succinct and crystal clear. Work out in advance how you're going to give the feedback and stick to it. Give the recipient time to digest what you've said. Make sure the feedback is about the action or behaviour that you want them to change, not about them as a person.
Political Lessons for Legal Risk Managers From the Brexit Vote
It would not be an understatement to say that the outcome of the Brexit vote surprised many legal risk managers worldwide.
1. Keep calm and carry on
Legal risk managers should not make any bold or brash decisions concerning operations or investment in the United Kingdom until things calm down and there is a clear political, economic and social understanding of what the true impact of Brexit will be for both the United Kingdom and the European Union as a whole.
2. It ain’t over til its over
There will be tough negotiations ahead between the United Kingdom and the European Union 27 remaining Member States to work out the divorce terms. This may take years to resolve. It is clear that the stumbling block is that there can be no access to the Single Market by the United Kingdom without freedom of movement for European Union workers. However, the cut from this hard and fast line will hurt French farmers and German automobile manufacturers as much as it does British bankers and airlines.
However, until Article 50 of the Treaty on the European Union (“TEU”) is triggered by the United Kingdom, the divorce is not a done deal. While the UK Government suggests that the Prime Minister has the authority to trigger Article 50 of TEU, it is clear that Parliament would have to pass an act repealing the European Communities Act 1972. The United Kingdom courts would then have to give effect to and follow such a major constitutional act. The question to be asked remains what aspects of European law will remain incorporated into United Kingdom law (England and Wales, Scotland and Northern Ireland) after a Brexit? Nobody knows.
European Union Trade Mark law: 10 key changes you should know about
On 23 March 2016 Regulation (EU) No. 2015/2424 entered into force, and with it the most significant changes to EUTM law since the unitary EU-wide trade mark system was introduced back in 1996.
Here we outline the 10 most important changes that all companies should be aware of:
1. Name Changes: the name of the unitary EU-wide trade mark has changed from the Community Trade Mark (CTM) to the European Union Trade mark (EUTM). In addition, the name of the EUTM Registry has changed from the Office of Harmonisation in the Internal Market (OHIM) to the European Intellectual Property Office (EUIPO).
Mitigation following a breach of contract – how far does the duty extend?
The rout in commodity prices continues to impact nations and stocks across the globe. Already this year the price of oil has dipped below US$30 a barrel, with a seemingly unrelenting oversupply of crude and markets preparing for the return of Iran post-sanctions. Sadly, falling prices often result in contract re-negotiations or default, leading to claims and innocent parties with goods on their hands and a difficult search for a willing buyer prepared to pay a reasonable price.
Following a breach of contract, the innocent party has a duty to mitigate the loss it has suffered. However, failure to mitigate loss may prevent that party from recovering damages for avoidable loss. A standard defence which the defaulting party often invokes to reduce the damages payable is that the innocent party has failed to act reasonably to mitigate its loss. The burden of proving a failure to mitigate falls, however, on the defaulting party.
As one might imagine, the courts are generally sympathetic to efforts made by an innocent party seeking to deal with a breach of contract. The requirement to take 'reasonable steps' to mitigate loss is not a particularly high standard. This so-called ‘duty’ requires reasonable steps to be taken to limit the losses that are incurred (and also to avoid incurring unnecessary expenditure in seeking to remedy the breach). An innocent party need not, however, take unusual steps that would be outside the normal course of its business, or even incur undue costs. Reasonable costs of mitigation incurred by the innocent party will generally be recoverable from the defaulting party.