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To the future of clerking

By the time you read this, I will recently have completed my three year term as chair of the Institute of Barristers’ Clerks (IBC). It comes with a mixture of emotion. Any relief I may have at not having to give another after dinner speech is more than outweighed by the sense of sadness that my term has come to an end. I have thoroughly enjoyed my time as chair; it has been a mixture of hard work on the various projects, reward at seeing projects come to fruition and developing friendships as I worked with clerking colleagues, old and new.

At the outset of my term, I had four aims of office, all of which had to do with improving communication: communication among clerks, between clerks and barristers, between our profession and wider society and, finally, recognising the need for all of us to keep in touch with our own thoughts and feelings.

Communication, education, and engagement

The starting point for improving communication among clerks was to engage better with IBC members, to update them and showcase all that we do. In November 2016, we launched our redesigned IBC image and website, which is now an up-to-date and user friendly resource. We have followed that up with social media accounts, regular bulletins, and a report at the end of each term, which is always a pleasure to put together and I’ve been consistently impressed by the weekly bulletin which shows the impressive range of events and offerings to the membership.

Education continues to be a focus, and we now have specific courses at ILM level 3 and level 5, and we are developing a degree programme and throughout the year we also offer various ‘hot topic’ seminars covering issues like GDPR, appraisals, and financial planning. The flagship education event each year is the IBC conference and I would encourage all clerks to attend this year’s conference in London.

My second aim as IBC chair was better engagement with the Bar Council, and this has been particularly successful. At the invitation of Chantal-Aimée Doerries QC, I was co-opted to the Bar Council’s General Management Committee in 2016, and am delighted to have been invited to remain on that committee by all three subsequent Bar chairs. I feel the IBC and Bar Council secretariat have built a strong and fruitful relationship, liaising well on matters such as consultations and communication to members of the Bar through the IBC network.

Diversity and inclusivity

My third aim was to see the IBC develop its equality and diversity credentials. This has also been a real success but there is still work to be done to ensure the profession fully reflects the society within which it operates (see boxout). We’re now working with the Stephen Lawrence Trust to improve education in schools about the clerking profession and the opportunities it offers. I am delighted that six chambers have offered work experience to year 11-13 students who otherwise would not have such an opportunity.

Also of particular note in this vein is the work done by IBC vice-chair, Lucy Barbet, and her committee around the launch of COCo, which stands for Clerks in Open Conversation. COCo arranges informal gatherings for clerks, and especially female clerks, to meet colleagues and discuss relevant issues – including advice and guidance for junior clerks across the profession in matters such as parental leave, harassment, and bullying in the work place – with the aim of supporting them throughout their career and improving retention. In November, we launched the IBC mentoring system to pair younger clerks with experienced colleagues willing to coach them.

Each of these initiatives continues to grow in both activity and attendance by members; and each committee is committed to finding new ways to reach out, not only to all members of the current clerking community but also to all and any potential entrants to the profession.

Wellbeing at the Bar

My fourth aim as chair is the one I’m probably best known for, and indeed the one of which I am most proud. If you’ve come across my name before you will probably know how strongly I feel about improving the profession’s mental health and wellbeing. I believe that effective communication with others begins with a healthy understanding of oneself.

When I joined the Wellbeing at the Bar working group in 2014, there were just six of us, and mental health was something that was just not spoken about. Thanks to the work of that group that culture has changed out of all recognition. In the past five years, I have spoken numerous times at events in the wellbeing field, authored a wellbeing chapter in a book about management at the Bar and co-authored the Chancery Bar Association wellbeing policy, which is freely available to any set.

How well do you know your clerks?

  • The majority of clerks are aged between 25-34 (29%) and 35-44 (25%);
  • In the 25-34 group, 69 out of 115 are male;
  • In the 35-44 bracket, 34 out of 102 are female;
  • Male clerks make up 67% of the profession;
  • Out of 134 members who are senior clerks, 114 are male;
  • Out of 162 junior clerks, 62 are female;
  • One in ten IBC members have a disability;
  • The largest ethnic group is white British (89.9%), followed by Irish (1.5%), and Indian (1%);
  • An equal number of clerks are Christian as have no religious belief (46% each);
  • The next largest religious denominations are Hindu (1%), Muslim (0.76%), and Buddhist (0.76%);
  • Some 97% of clerks are heterosexual, compared to 3% who are LGBT;
  • 90% of clerks attended a state school and 70% did not attend university;
  • Of those who did attend higher education, 15% were the first members of their family to do so;
  • 17% of clerks are the primary care giver to a child under 18 years of age.
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Success off map

New Zealand is a country that has a long history of being left off the world map, including on wall maps sold by Ikea and displayed at the Smithsonian Museum in Washington DC. Producers of A-level geography books and board games are also guilty of the omission.

Are New Zealanders offended? Not quite. They respond in typical Kiwi fashion: The government’s ‘404 page not found’ screen displays a map without the country on it (‘Something is missing’), and prime minister Jacinda Ardern teamed up with comic Rhys Darby to produce a video called ‘Off the map’.

Truth be told, New Zealanders know that life in their far flung corner of the world is pretty good – and that not everyone needs to be made aware of it. In many ways, Kiwis enjoy flying under the radar. Looking at the country’s legal market, lawyers consistently point out that international firms are not interested because ‘we are too small, too far away – even further away than Australia!’ Apparently, something beyond the imagination of many.

The only truly global firm with operations in New Zealand remains DLA Piper, which services the country out of Auckland and Wellington with a 25-partner strong team. It entered the market relatively recently, first forming an alliance with Phillips Fox in 2006, before becoming DLA Piper New Zealand in 2015. Asked if there is anyone else, lawyers just shrug their shoulders and point to Australian firm MinterEllisonRuddWatts.

Local firms know this is not necessarily a bad thing. Being a small market, lawyers don’t handle multibillion-dollar deals on a weekly basis, but for the most part enjoy a steady stream of work generated domestically and, to some extent, overseas. And it is often overseas work that draws lawyers away from New Zealand.

The main source of lamentation is the shortage, or sheer absence, of senior associates who flock to legal hubs, such as London or Singapore, to spread their wings. It is telling, however, that there is no lack of highly qualified partners – virtually all junior lawyers feel the pull towards home after some years spent abroad.

New Zealand enjoys a healthy economy powered by a few key industries, with dairy being the one to note (it is among the world’s top five dairy exporters), alongside agriculture, forestry, mining, and fishing; tourism and hi-tech, while relatively small, have seen continued growth over recent years. This means changes in key industries, such as the recent drop in dairy prices, are keenly felt.

However, firms have benefitted from uncertainty arising out of a host of regulatory changes introduced by Ardern’s new Labour government, and lawyers focused on the insurance sector remain busy handling claims related to the 2010 and 2011 Canterbury earthquakes.

In terms of local heavyweights, Bell Gully, Chapman Tripp, Simpson Grierson, Buddle Findlay, Russell McVeagh, Lowndes, Kensington Swan, and Anthony Harper are the major domestic firms that dominate The Legal 500’s coverage. Boutique firms continue to flourish in some parts of the market, notably Gilbert Walker in dispute resolution, Fee Langstone and Robertsons in insurance, and SBM Legal in employment.

Our historical data reveals that the top end of the market has become more competitive over the years. While Bell Gully enjoyed the pole position with a total recommendation count of ten for all practice areas back in 2014, this rank is now shared between Bell Gully, Chapman Tripp, and Russell McVeagh, all of which feature in every single practice area (14) covered by The Legal 500 in 2019.

Remarkably, Chapman Tripp achieved 13 top tier rankings in 2019, with labour and employment its only practice to fall short of the top spot. Unsurprisingly, the firm also achieved the best ratio of total recommendations (69) to top tier recommendations (56) between 2014 and 2019.

Bell Gully leads the pack in terms of leading individual rankings, with 145 lawyers highlighted between 2014 and 2019, while DLA Piper’s had 37 leading individuals listed and six top tier recommendations for the same period, the best ratio in the market. In terms of development, Buddle Findlay made the biggest jump, from one top tier ranking in 2014, to six in 2019.

Overall, many firms have added top tier rankings over the years, partly due to The Legal 500’s expanded coverage of the market. Insurance law was the major addition to the 2016 guide and in 2018 we introduced tables covering competition law, investment funds, TMT and transport (rail, road, air, and sea).

Further areas of growth are on the horizon, mostly due to increased regulatory oversight, cyber security concerns, infrastructure projects, and the overseas investment regime. Looking at the available work, New Zealand is definitely a good place to be, even though it can’t be found on every map.

Diversifying practices

Haydn Wong, managing partner of Bell Gully

How are client demands in New Zealand changing?

Our clients are always keen to discuss more innovative ways that we can deliver our advice and support to them. Certainly, technology continues to play an important role in reshaping service delivery, including requiring the ability to analyse and re-package large amounts of data in advising our clients.

As we see the role of general counsel evolve to include: protecting and enhancing their company’s reputation with a range of stakeholders, compliance and risk management, and managing the regulatory environment, our advice and support needs to be cognisant of the interplay of these broader factors with the legal context.

However, the core components of what our clients demand from us has not changed: deep understanding of their environments, timely, relevant and expert advice and support, a real determination to achieving their commercial outcomes, and meeting their value expectations.

How are you adapting to these changes?

We have further diversified our areas of expertise, with our partners and staff taking market leading positions in new or developing areas of law such as fintech, cybersecurity, defamation and privacy, and data protection. Developing dedicated and tailored experience allows us to build stronger relationships with our clients and opens up new markets for us.

Although our fundamental role has not changed, our teams must be adaptable. Where there are different approaches or platforms that provide better outputs for our clients or provide enhanced management of their costs or risks, we will support these.

We are also aware of how creating a diverse and inclusive environment for our people will improve the service we provide, so we are actively pursuing a number of initiatives focused on maintaining and enhancing the diversity of our workplace.

Where are you seeing growth?

We are seeing significant growth across the board in New Zealand, with very solid transactional volumes for our M&A, property and finance groups, and our disputes and tax teams being very active.

The continued growth and focus of regulatory oversight, partly in response to Australian initiatives, has generated the need not only for specific advice and support but also restructuring and M&A transactions as clients respond to the environmental changes.

Infrastructure projects across New Zealand are a major growth area for us. Our projects and development team, which brings together our development, construction, resource management and finance experts, has had leading roles in most of the nationally important road and transport projects. We are also seeing new demand in domestic growth areas such as aged-care and securitisation, where we are enhancing our market positioning.

Fintech and cybersecurity are getting a lot of attention domestically. This includes understanding upcoming reform of New Zealand’s Privacy Act as well as compliance with international standards such as EU General Data Protection Regulation. We have also been following the Cryptopia hack closely as these types of events will become more common in the future.

Energy and climate change has been a major area for the firm over the last 12 months as well. Recently the Independent Expert Advisory Panel for the Electricity Price Review released its options paper which could have significant implications for the electricity sector.

Climate change remains an issue for all New Zealand businesses, especially if the Zero Carbon Bill passes into legislation. Business leaders are starting to position themselves for a reduced emissions economy and shifting their internal agenda accordingly.

Our international clients are often focused on our overseas investment regime and the legislation and government policy applicable to this area. We have a dedicated overseas investment team, who are constantly advising and updating clients on Overseas Investment Office matters.

How do you set yourself apart from the competition?

Our outstanding client base continues to trust us with their most important and strategic legal work, which leads to roles on many of New Zealand’s most significant transactions and disputes.

For us, this starts with building and maintaining longstanding relationships with our clients, and knowing their business and strategic goals. This enable us to provide strong contributions to the achievement of their goals. These elements are core to the Bell Gully offering.

Advice by war story

Martin Wiseman, country managing partner of DLA Piper

How are client demands in New Zealand changing?

Senior in-house counsel increasingly want ‘advice by war story’ from experienced lawyers who are in the stream of things and can provide commercial, insightful, strategic advice on market practice, options and how a court or regulator will view something according to the prevailing conditions which are under continuous change.

In short, they want value, not cost, and are less inclined to support a leveraged model. I think clients are increasingly able to differentiate between the qualities of different firms and will choose horses for courses from their legal panels.

Legal panels are being shrunk and a lot of thought is going into their structure with the intention of the client investing in the firms and the firms investing in the client.

Finally, clients are increasingly wanting the support of a client-relationship partner who may not do any legal work for them but is absolutely attentive to sourcing their evolving legal needs.

How are you adapting to these changes?

By having the right client-relationship partners in place. By client listening. By having post-tender debriefs. By having more work done at senior level with less reliance on the leveraged model. By the application of global firm resources to cut operating costs and provide additional, perhaps non-legal, resources to clients.

How do you set yourself apart from the competition?

As part of DLA Piper our access to global resources, infrastructure, IP and expertise is simply unrivalled by any other law firm in New Zealand. Global resources and buying power are reducing our operating costs.

At the same time global IP and expertise is adding to the value we offer clients. Clients are seeing that very clearly now and seeking us out. Especially NZ clients with overseas operations and overseas clients with NZ operations or investment plans.

We’ve long regarded pro bono as an important aspect of our lawyers’ professional responsibility and development. Our global pro bono initiative, New Perimeter, provides long-term pro bono legal assistance in under-served regions around the world and our New Zealand lawyers are actively involved.

Locally we have a 26-year pro bono legal relationship with the Starship Foundation. This is something we’re immensely proud of. As a further commitment to access to justice and the rule of law we have recently appointed special counsel Melissa Johnston as pro bono director for New Zealand.

The ability to bring our authentic selves to work, every single day, is fundamental to our values at DLA Piper. In New Zealand, our commitment to diversity and inclusion (D&I) has led to the creation of several sub-committees – promoting an inclusive work environment for all colleagues regardless of age, gender, cultural identity, or sexual preference.

A third of DLA Piper New Zealand’s people are members of a D&I committee. However, it is not a set and forget exercise. It’s about real people in an ever-changing world. Our commitment to creating an environment where people bring their whole selves to work is a journey that will continue well into 2019 and beyond.

Where are you seeing growth?

Starting with overseas clients, we lead in cross border M&A into NZ. We are seeing deals in FMCG, primary produce, tech start-ups, and agricultural robotics. We’re also continuously doing the NZ end of global restructures and M&A for multinationals.

Locally everything has an IPT angle, that’s the real growth area. Compliance across privacy, health & safety, financial services regulation – you name it – is huge. And locally, in M&A, we’re seeing baby boomers sell out, often to PE, and vertical integration as businesses all over attempt to take costs out of supply chains, which is being driven by end user consumers. In government, and local government, projects are going to be big.

Finally, I think litigation funding will continue to grow especially once the Law Commission finalises its views on any regulatory settings.

Accountability and value for money

Nick Wells, chief executive partner at Chapman Tripp

How are client demands in New Zealand changing?

Demands are changing as clients are reacting and adapting to New Zealand’s business and economic landscape. In turn, it is changing fast in New Zealand: for the moment the country’s outlook is reasonably positive with the economy expected to grow at an annual rate of 2.7% to 3%. The New Zealand government accepts, however, that could change quickly in an uncertain international environment.

At the same time, the government is focused on introducing a wellbeing programme and measurement that will sit alongside New Zealand’s traditional annual budgetary processes; dairy prices are starting to slowly recover.

The most immediate impacts of a relatively high level of global uncertainty include: more European investments to New Zealand perhaps linked to the uncertainties of Brexit; slower rate of investment and economic activity from China, given the issues around Huawei, and in common with other countries in the Five Eyes, such as Canada and the US, the New Zealand – China relationship is under some pressure; and we do expect a decline in New Zealand’s major trading partners as on average (other than China) their rate of economic growth slows to 2% and in some cases lower.

In addition, the current regulatory developments will have direct interest to business, from the Reserve Bank of New Zealand (RBNZ) Bank Capital Review, to Financial Sector culture and conduct and Privacy Law. In reaction to such a busy environment and based on environmental and social components:

  • the digital transformation with the impact of technology also driving innovation in the legal sector;
  • data analytics and smart contracting also on the rise;
  • inter-generational expectations, wellbeing, and talent attraction and retention; and
  • more choices of legal firms and service offerings that drive a stronger need and focus on trusted relationships with law firms and individual lawyers, as well as a value for money that require clients’ to be accountable their legal spend.

Another change to note as a flow on effect around accountability and value for money is the rise of the procurement function. Procurement teams tend to drive the purchasing process through a balanced approach to buying services, which tends to eliminate the influence of strong relationships.

In the face of this changing environment, Chapman Tripp continues to work hard to remain New Zealand’s leading law firm, by keeping abreast of these developments so that our clients can both exploit new opportunities and mitigate against uncertainties.

How are you adapting to these changes?

We need to continue to listen to our clients and work in a way that best services their needs, it is as straight forward as that.

The legal world is becoming more fast-paced and we regularly work alongside our clients to deliver a service that is fit-for-purpose and value for money. For example, we identified early the need for our clients to embed technology into their day-to-day activities and launched our technology and innovation business, Zeren, in 2017. By using technology to deliver legal documentation and advice in new ways, we are saving our clients time and money, and enabling them to serve their own clients.

Our clients and people are at the heart of everything we do. As Chapman Tripp’s chief executive partner, I believe I have a part to play for New Zealand and make a difference.

With our people, we have ensured that our values and policies support their needs and expectations: our wellbeing programme is an example of ensuring we attract, retain, and grow them. We also take pride in working pro-bono and community focused initiatives: our corporate social responsibility programme focuses on supporting NZ Inc., youth and education, and the arts.

How do you set yourself apart from the competition?

In addition to being the New Zealand leading firm, I believe we set ourselves apart with our people: we attract and retain the best in the field, and we provide a meaningfulness of work – from having strong values, to feeling values and working in a transparent environment.

I believe by nurturing and growing our people, they will in turn give back to you creating a strong environment for New Zealand, one that balances the needs of our people, our community, and commercial interests.

We want our clients to have the best in market client experience, centred around them, fostering the co-creation of solutions together – we put our clients at the centre of everything we do. We are continually improving the way we work with our clients so that we are easier to work with.

Where are you seeing growth?

Our recent key trends and insights publications (i.e. What next for infrastructure, New Zealand Equity Capital Markets, New Zealand Mergers & Acquisitions, Te Wake Ture’s Tikanga Māori in the law and the Māori-Crown relationship and Impact Investment) have predicted where we expect growth and where there is likely to be less activity. These include:

  • further changes in investment patterns with healthier capital markets, in the form of increased IPO activity (although we expect a further decline in the number of issuers on the NZX Main Board);
  • the prospect of a downturn in mergers and acquisitions volumes and values, with the dive in business confidence, change in consumer confidence, a softening housing market, and of course, the escalating trade tensions. We have noticed more European investments in New Zealand with the uncertainties of Brexit, combined with a fall in Chinese investment, no doubt due to the strained New Zealand-China relationship;
  • New Zealand is often admired for the efforts put in by successive governments over the last 23 year to reconcile grievances with Māori, as the indigenous people of New Zealand. Those efforts continue and we remain at the forefront of negotiations and legal developments aimed at that reconciliation;
  • fast-growing demand for green bonds, in line with Australia; and
  • bold action by the government to address the country’s infrastructure problems – from investment and funding to capabilities and innovation solutions, climate change, and construction capacity as New Zealand’s population and needs continues to grow.

The senior lawyer demand

Paul Beverley, National Chair at Buddle Findlay

How are client demands in New Zealand changing?

Client expectations are evolving but I don’t think they have changed fundamentally. Clients expect high quality, focused, and responsive service and that has consistently been the case for some time.

The primary focus for many of our clients is the level of expertise. Clients still look to us for legal expertise, but they are increasingly looking for knowledge of their business, their industry sector and their market. They are looking for advice but also for commercially-savvy problem solving.

Increasingly, when clients need our input, they want to talk to a partner or senior level lawyer. That can be challenging for our younger lawyers who are very capable and need to learn about developing and managing client relationships. That’s a challenge we have to meet in terms of helping them to manage their careers and aspirations. It’s also tough on partners and senior lawyers, who are in high demand.

Clients increasingly expect responses now, so we have to be able to deal with client requests anytime, anywhere. It’s important to have that personal contact with our clients, so those of us who lead client relationships are frequently finding innovative ways to be able to respond quickly.

Legal spend is always under the spotlight and clients are increasingly interested in innovative fee arrangements and pricing certainty.

Clients continue to do a lot of legal work in-house, and in-house teams in New Zealand are generally very sophisticated buyers of targeted external legal support. They tend to strike a careful balance between what work they do themselves, what they brief and to whom.

As external providers, we need to work alongside and complement those in-house teams. That means building strong relationships with corporate legal teams and becoming a natural extension to them. It’s an opportunity to build fit for purpose and market facing legal teams.

How are you adapting to these changes?

We are constantly seeking to evolve to meet evolving client needs. We are designing our offering and teams to meet the market expectations around access to senior lawyers and responsiveness.

We work alongside our clients, and often with their other external advisers. Our clients expect a collaborative approach to those situations. It’s important to establish good relationships with our clients’ other advisers and focus, with them, on the desired results.

We have to be cost effective and always strive to add value by tailoring our initiatives to clients’ needs. It’s all about a clear focus on how we can add value. That’s a different place compared to 15 years ago. Often, external firms were, in effect, the in-house teams for large corporates. On the whole, in-house teams were not particularly large. The in-house teams are sophisticated buyers of legal services and have a very clear picture of what quality service and value for money look like.

We actively seek feedback from our clients. We encourage open and honest feedback on the quality, timeliness and value of our work, and ask for it on a regular basis.

How do you set yourself apart from the competition?

There are a number of really strong firms in the New Zealand market, each with their own strengths. We believe Buddle Findlay’s strengths are our culture, our very strong emphasis on an exceptional client experience, and our value proposition.

Put simply we put our people first, and we have a fantastic group of lawyers who relate well to our clients and provide pragmatic and solution-focused advice. It’s a strong foundation that we are working hard to maintain and build on.

Where are you seeing growth?

The global economy is a little weaker this year, influenced by US/China trade relations and Brexit uncertainty. The local economy reflects that uncertainty as well and there may be a slowdown in foreign investment in New Zealand this year.

There’s a lot to be positive about. Our corporate/commercial team is being kept busy in a competitive environment. There is still interest in investment in good New Zealand businesses, particularly from China, and we have a dedicated and busy Asia-focused business practice.
The central and local government sectors are both active and busy areas of the firm.

There are a number of very large infrastructure projects in place that will continue including in Auckland and Wellington and we continue to be busy in the infrastructure area.

Being top heavy

Mark Lowndes, managing director of Lowndes

How are client demands in New Zealand changing?

Our experience is that clients expect more clarity over costs, they decide how much legal input they want to buy for a matter, they have a low tolerance for high priced junior lawyers, and timeframes are getting shorter.

Clients often know the basics of the legal issues and are looking more for advice that comes from experience and specialisation. They are less likely to brief us on the more administrative areas of practice.

All this is occurring in the context of growing in-house teams in larger companies.

Despite all the changes, there remains a strong demand for the experienced trust advisor role.

How are you adapting to these changes?

Where possible we have moved towards offering cost estimates and fixed costs in place of open-ended hourly rate charging. We take more time to discuss with the client the scope of what they want, the timing and how they want our work product presented so it is tailored for how they will use our work.

We are increasingly focused on work being done by senior, experienced lawyers.

We continue to invest heavily in technology to keep driving efficiency including with mobile working.

We continue to recruit lawyers who have business degrees and commercial experience so our advice is genuinely commercially focussed.

How do you set yourself apart from the competition?

Our firm has always been deliberately ‘top heavy’. We have built the firm by recruiting senior lawyers from major firms, who at our firm can enjoy advising and working directly with the clients and being freed from committees and supervising teams of lawyers. Our clients like dealing with those senior lawyers directly. Our clients value their experience as well as the technical knowledge.

We have a large international footprint through our many multinational clients, associations with international law firms, a range of law firm networks, involvement with international bar associations, and a focus on international business and investment. About a third of our turnover comes from overseas clients. This also means we can provide our clients with trusted legal advice from any commercial centre in the world.

Our management and remuneration model is modern and flexible. The firm was founded 22 years ago, however, it embodies many of the ‘New Law’ concepts which is attractive to those lawyers who join us from ‘Big Law’ and in our view has set us up well to respond and adapt to clients’ changing demands.

Where are you seeing growth?

Transactional work is busy at the moment as is litigation, intellectual property, banking and finance, and property. Also there is a little more insolvency work coming in. There is a fair amount of private equity activity. We are seeing continuing interest in New Zealand from Australia, Asia, and the US, and some from Latin America.

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For BAME students, the struggle to get into law is very real

At 34-years old, I have six-and-a-half years post qualification experience (PQE), am married with two children under the age of four, and am a department head of a Legal 500-recognised law firm. Sounds like life is pretty plain sailing. Yes, life is pretty good, but the struggle to get to where I am now started almost two decades ago.

My name is Umar Kankiya and I am a senior associate and head of the mental health department at Sternberg Reed Solicitors. I am also a committee member of the Ethnic Minority Lawyers Division (EMLD) at The Law Society of England and Wales. My journey into law started 18 years ago when, on enrolment day at Sir George Monoux College in 2001, I made the decision to switch A Levels from business studies to law. The change was simply because I had got a D at GCSE level and felt it best to do something I would get more enjoyment out of.

My interest in justice and representing the most vulnerable in society was piqued and led to me undertaking an LLB law degree at De Montfort University in Leicester. Between 2003 to 2006 I learnt a great deal, became president of the student law society, but missed out on a 2:1 by just 1%. This was devastating to me and meant that when the time came to apply for training contracts and vacation schemes I received rejection letter after rejection letter. A young black Muslim male trying to break into law with a 2:2 degree was not appealing to most law firms and after completing the compulsory legal practice course (LPC) I ended up parking my legal career for three and a half years.

Before university I was involved with my local, then national Youth Parliament which gave me a great exposure to the world of local and national politics and youth participation. The skills and experiences I gained from this helped to shape who I am today. In 2009 I was finally able to break through with my legal career with a two-week work placement which turned into a paralegal role two months later. Some ten months later I achieved my dream of getting a training contract and on 15 August 2012 I was finally admitted onto the roll of solicitors – up to that point the biggest achievement in my life.

The struggle to get into law was very real. My degree and, to an extent, my ethnicity was a real barrier to achieving my dream. I knew if someone gave me a chance I would be able to show that I am more than a capable addition to the legal profession. This had a huge impact on me mentally. There were times when I seriously considered giving up on entering the profession because no one wanted to give me a chance. What got me through was the support of family and self belief that I could make it.

As a mental health solicitor my role is to represent those who have been detained under the Mental Health Act and my daily work involves looking at challenging the validity of their detention and looking at how best to ensure my clients get the best support possible when they are discharged from hospital. I get a great satisfaction knowing the work I do has a huge difference on someone else’s life; it is something I don’t take lightly.

Being a member of the EMLD and knowing the struggles I went through early in my career, I want to ensure I do everything I can to improve the representation of BAME lawyers in the profession. That involves giving back to the next generation of lawyers, whether that is going back to my old sixth form or university to give talks, offer work experience, or just make myself available to assist with CVs and applications. And with my work around mental health I am keen to ensure we continue to have conversations around wellbeing and create safe open spaces for lawyers to be able to discuss their mental health.

So, yes, life is treating me well, but under my happiness are the true struggles I faced to get to the position now.

How to be more diverse and inclusive

Ethnicity

  1. Offer more work experience programmes specifically for budding BAME lawyers;
  2. Increase the number of BAME judges in the senior courts;
  3. More BAME partners should serve as role models to the next generation;
  4. Firms should have an open and honest conversation about why there is a lack of diversity in the profession and how best to address it; and
  5. Firms should look to engage in more local community work. Speak with young people, especially in diverse areas about being a BAME lawyer.

Mental health

  1. Create an open environment by recognising that in the work place people may be suffering from mental health problems and need support;
  2. Ensure that there is mental health training for all senior staff;
  3. Promote the use of mental health champions in the work place;
  4. Provide mental health days (in lieu of sick leave) and put services in place to assist those who require it; and
  5. Build in staff away days where possible to bring everyone closer together.

Does Big Law have a problem with ethnic diversity?

  • One in five solicitors in England and Wales are from a black, Asian, and minority ethnic (BAME) background. This is up 7% over three years, from 14% in 2014 to 21% in 2017.
  • This increase is largely due to the rise in Asian lawyers, up from 9% in 2014 to 14% in 2017. Black lawyers make up 3% of the profession, an increase of 1% since 2014.
  • Larger firms (50 plus partners) have a lower proportion of BAME partners (8%) compared to those in sole practice, where more than a third (34%) of partners are BAME.
  • Firms practising in private client or criminal law have a higher percentage of BAME lawyers (33% and 37% respectively).
  • Firms which undertake mainly corporate work have the lowest proportion of BAME lawyers at just 19%.
  • Christians form the largest proportion of all solicitors at 51%. Those who had no religion or belief form the second largest group at 30%.
  • The next largest faith group is Muslim up from 5% in 2014 to 8% in 2017.
  • The remaining faith groups are 3% for Jewish and Hindu groups, 2% for Sikh, and 1% for Buddhist.
  • 17% of lawyers in one partner firms are Muslim, compared to 2% of lawyers in the largest firms of 50 plus partners.
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Arbitrating in India? You may be better off elsewhere

With almost 30 million cases – no that is not a typo! – currently pending before the courts, and some commercial claims taking up to 15 years or more before judgment is given, it is no surprise there is an increasing appetite for arbitration in India.

However, the ad hoc nature of India-seated arbitrations, whereby a retired judge sits after court hours, but without an arbitral institution (such as the ICC and LCIA), leaves much to be desired. For example, disagreements over the selection of arbitrators requires resolution from the courts, further lengthening a dispute.

Keen to change investor perception and boost confidence in respect of contractual enforcement, the Indian government wants to make the nation a ‘leading hub’ for arbitration in Asia. However, that goal may not be realised if a controversial bill passes into law.

‘Having pushed the Sisyphean rock of Indian arbitration painfully step by step up the steep slope of international acceptability it will release that boulder to plummet in free fall back down again,’ said Lord Goldsmith QC when describing India’s Arbitration and Conciliation (Amendment) Bill 2018 earlier this year.

Speaking at the 11th Annual International Arbitration Conclave in New Delhi in February, Lord Goldsmith said the amendment act could ‘set back the cause of Indian arbitration by perhaps a generation’ as it ‘prohibit[s] the appointment of foreign lawyers as arbitrators in Indian-seated arbitrations’.

Passed by the Lok Sabha (Lower House), but yet to be considered by the Rajya Sabha (Upper House) or receive the president’s assent, the amendment bill states: A person shall not be qualified to be an arbitrator unless—(i) is an advocate within the meaning of the Advocates Act, 1961 having [ten] years of practice experience as an advocate…, leading the former Bar Council chair to conclude arbitrators ‘would have to be an Indian advocate to qualify’.

Although the chair of Asian and European Litigation at Debevoise & Plimpton accepted there would be some exceptions for other qualifications – Indian chartered accountants, for example – it would nevertheless ‘prohibit the appointment of many experienced and able arbitrators’ including experienced ships masters, architects, and doctors. This is a problem for India.

Leading lawyers contacted by fivehundred agree with Lord Goldsmith’s interpretation and consequences of the bill. Sanjeev Kapoor, a partner in Khaitan & Co.’s Tier 1 disputes practice, says the draft legislation creates ‘an innate bias’ towards the appointment of Indian practitioners as arbitrators.

‘Given the more developed arbitration bars in other jurisdictions,’ says Kapoor, ‘it would be beneficial, solely from a knowledge sharing perspective, for foreign lawyers to be appointed as sitting arbitrators even in domestic arbitrations in India.’

In agreement, former solicitor general and associate member of 3 Verulam Buildings in London Gopal Subramanium says the bill’s restrictions may also be a barrier for companies based outside India to agree to designating the arbitral seat in India.

‘Indian arbitrations will certainly benefit from the experience of counsel from jurisdictions that have mastered, if not perfected, the practice of arbitration,’ he continues. ‘This experience would range from the professionalism with which one approaches a case to specialist knowledge of legal fields.’

Autonomous arbitration

In his speech, Lord Goldsmith also took aim at another ‘pernicious’ element of the bill, namely a proposal to have the Arbitration Council of India (ACI) act as regulator. ‘The idea that a government appointed body should regulate arbitration and arbitrators is anathema to the idea of free and autonomous arbitration,’ said the former UK attorney general.

With ACI members appointed, and their salaries approved, by the government, Kapoor is likewise wary of the bill’s proposals. ‘Such factors definitely cast a shadow of doubt over the independence of ACI and prejudicially affect the idea of a fair, unbiased, and autonomous regulator especially when government and public sector institutions are one of the biggest consumers of Indian arbitrations,’ he says.

‘Further, given that the ACI is proposed to be the repository of all arbitral awards, and the fact that in India, a large number of arbitrations involve public sector undertakings, there is no clarity on how confidentiality would be maintained.’

Assuming foreign-qualified lawyers can be arbitrators in India-seated arbitrations, the idea of government regulation would pose a threat to the idea of arbitration as we understand it, says Subramanium, former Bar Council of India chair.

‘In a single stroke, the Eighth Schedule [of the bill] takes away the liberty of an arbitral institution to choose the arbitrators on its panel. Institutions must now choose arbitrators that meet the criteria, effectively prohibiting an institution from creating a specialist panel tailored to its own specific needs.

‘Further, while state regulation may provide some transparency to the functioning of arbitral institutions, state-accreditation of arbitrators may prove to hamper their independence and impartiality.’

Asked to comment on whether the bill would negatively impact Indian arbitration, Percival Billimoria, formerly a partner at Cyril Amarchand Mangaldas but now independent counsel and door tenant at Outer Temple Chambers in London, says: ‘It’s not about capabilities but availability. Indian arbitrators who are good are equally capable [as foreign arbitrators] but they are quite few in number. ‘There are a lot of high-value arbitrations which are India seated and very few good arbitrators. Therefore, allowing foreign lawyers to be arbitrators in India-seated arbitrations is essential. So yes, to that extent if it is enacted in its present form this provision will be counterproductive.’

Kapoor, however, suggests the bill does contain positive elements that would help grow commercial arbitration in India. The New Delhi-based partner says the bill is ‘essentially geared towards expediting the appointment of arbitrators; reducing court interference in the process at all stages; encouraging institutional arbitration; and development of a strong arbitration bar with requisite legal, contractual, and commercial expertise capable of giving reasoned and enforceable awards’.

Liberalism needed

It seems odd, to say the least, that while there is increasing desire in politics – and elements of the legal profession – for an open legal market in India (see fivehundred, issue 01), we are also seeing the passage of a conservative bill likely to undermine the nation’s hope of establishing itself as an arbitration hub.

As Kapoor explains, given the rapid growth of investments in India, commercial contracts entered into between Indian and foreign parties may contain foreign governing law, making the ability to appoint an expert familiar with said law crucial.

‘If foreign lawyers are prevented from being appointed as arbitrators in India-seated arbitrations, then parties may consciously start choosing alternative seats, such as Singapore, Hong Kong, or London for their cross-border contracts involving Indian parties,’ he opines.

When asked what the benefits to parties arbitrating in India are, Billimoria replies: ‘Cost is one huge factor. However, if you have a substantial matter you may be better off with foreign-seated arbitration, the way things stand right now.’

‘For businesses, India offers the advantages of an English-speaking population and a legal system based on common law,’ says Subramanium. ‘These traits though aren’t unique to India, with Singapore being the most notable jurisdiction to share them.’

India could learn from its neighbours to the south east. The Singapore government’s positioning of the city-state as a dispute resolution hub continues to prove successful: the Singapore International Arbitration Centre received 452 new cases in 2017, a 32% increase on 2016 and a 67% increase from 2015.

‘In terms of professionalism and experience, India has the ability to catch up with Singapore or Hong Kong,’ adds Subramanium. ‘Indian companies themselves often choose Singapore as the seat for their arbitration. For many companies, one benefit of arbitrating in India would be the lower costs incurred.

‘In view of the fact that Singapore, Hong Kong, London, Sydney, and New York are well-known centres of arbitration, and in the light of growing business and free flow of expertise, a liberal arbitration regime is needed for encouraging both investment and professional arbitration in India.’

While the amendment bill is, some respects, an improvement, it’s not a panacea. If the draft legislation continues in its current state, then it seems unlikely the nation of over 1 million lawyers will ever challenge its near neighbours as a premier arbitration venue.

Reasons to hope for arbitration in India

Sanjeev Kapoor, disputes partner at Khaitan & Co, explains the benefits to arbitrating in India as opposed to other jurisdictions across Asia 

Why should clients consider choosing India as their arbitration seat?

  • Certainty of proceedings: Only the higher judiciary in India (i.e. the High Courts and Supreme Court) are able to exercise supervisory jurisdiction over international commercial arbitrations, rendering greater certainty to proceedings;
  • IBA Rules on Conflict of interest in International arbitrations: The Arbitration and Conciliation Act, 1996, has incorporated the IBA Rules on conflict of interest in international arbitrations which provides for declaration by the arbitrators of their relationship with
    the parties and counsels.

These provisions ensure independence and impartiality of arbitrators;

  • Limited Scope of challenge: Challenge to enforcement of arbitral awards on the grounds of public policy is limited by stipulating that both in case of domestic and foreign awards, there cannot be a review of the award on merits for determining whether there has been a contravention of the fundamental public policy of Indian law;
  • Availability of International Arbitral Institutions: India permits parties to have their arbitration proceedings administered through foreign arbitral institutions, including SIAC (Singapore International Arbitration Centre), ICC (International Chamber of Commerce), HKIAC (Hong Kong International Arbitration Centre), LCIA (London Court of International Arbitration), etc.;
  • Fast track Arbitrations: Parties to an India-seated arbitration, while entering into a contract, have the freedom to opt for an expedited arbitration procedure. In the event of such an option being exercised by the parties, the arbitration has to be completed within six months from the date of appointment of the arbitrator;
  • A good, talented pool of lawyers experienced in complex commercial disputes available; and
  • Easy geographical access and connectivity.

What elements of The Arbitration and Conciliation (Amendment) Bill 2018 will help grow international commercial arbitration in India?

  • Amendments to ensure lesser interference of courts in the appointment process of arbitrators which would bring with it time and cost efficiencies. In the event the ACI could be made an autonomous body outside the sphere of influence of the Government of India, this would be an extremely effective measure;
  • Given the 12 month timeline for completion of all arbitral references was unrealistic for complex commercial arbitrations, the Amendment Bill has made a two-fold change: (a) in case of domestic arbitrations, the 12-month time limit prescribed for completion of the arbitration proceedings will commence after exchange of pleadings is complete (for which a new time limit of six months has been introduced). This provides a comfortable time frame to arbitrators and parties to ensure completion of arbitrations within the statutory timelines without seeking extensions thereto, bringing with it time and cost efficiencies; and (b) the applicability of the timeline has been done away with for international commercial arbitrations. The rationale appears to be that there is an innate assumption that such arbitrations are typically more complex and it may be impractical to have them adhere to such a stringent timeline. Whether this would result in advantages in terms of cost savings in approaching the Indian courts for repeated extensions or cause avoidable delays in completion of proceedings is a matter to be assessed empirically later.
  • Parties, in an application for setting aside a domestic arbitral award, are restricted to proving their case by reference to documents produced in arbitration. This curtails the scope of challenging arbitral awards and will promote finality of awards and greater respect for the arbitral process; and
  • An obligation of confidentiality has been imposed upon parties in terms of arbitral proceedings, thereby brining it at part with international norms in this regard.
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In the eye of the storm

In the autumn of 2017, Hurricane Irma, a 650-mile wide Category 5 storm, made landfall on the British Virgin Islands (BVI). In the early afternoon of 6 September, the storm’s eye travelled over Virgin Gorda, Tortola, and Jost Van Dyke, three of the major islands in the group. Irma’s direct hit left a devastated BVI, with four dead, hundreds left homeless, and more than 4,000 homes damaged or destroyed.

‘The hurricane destroyed buildings, homes, schools, vegetation, beaches, and basically everything in its path,’ recalls Vanessa King, managing partner at Tortola-based O’Neal Webster. ‘Winds roared, rain poured, and debris crashed making the whole event very frightening. While some people were able to evacuate, a majority remained and hunkered down.’

With winds reaching over 200mph, Ben Mays, litigation partner at Carey Olsen, was one of those who sought refuge with family and friends. ‘As the storm worsened we all gradually retreated to the most secure interior part of the building, which was a walk-in wardrobe. We spent the worst hours of the storm huddled in that wardrobe – five adults, three terrified children, and a dog crammed in each other’s laps. It was pitch black other than torch light, hot and humid, and water was being driven into the building at every angle, so we were two inches deep in water despite being on the first floor.

‘The noise of the hurricane passing over was indescribable, and the bigger gusts were accompanied by huge waves of pressure fluctuation which felt like dropping floors in an elevator. The whole fabric of the house was groaning and splintering around us, and there were occasional huge crashes as windows, doors, and bits of the roof gave way. Fortunately the roof did not fail completely. Others were not so lucky.’

‘Homes were ripped apart, vehicles and boats tossed around and dispersed, and the landscape erased of any vegetation,’ adds Jeffrey Kirk, managing partner of Appleby’s BVI office. ‘People feared for their lives as they were forced to find any shelter they could to protect themselves and their families. Power had been lost from earlier that day and all telecommunications went down around 11am rendering people cut off from each other locally and from their friends and families overseas.

The aftermath

In the storm’s immediate aftermath, the reality of the situation began to set in for those on the islands. The damage was far greater than anyone had anticipated: the entire telecoms network had been knocked out, making communication almost impossible; fallen trees, electricity poles, and various other debris made roads impassable; and then there was the loss of life and injury, some of which was not physical.

‘People managed the psychological impact of the storm in different ways, and some had harder times than others, but it had a significant impact on everyone,’ recalls Mays. ‘The 48 hours after the hurricane seem, in my memory, to be more like two weeks given the intensity of the situation, both mentally and physically. It was a minute to minute existence for the first couple of days. The following days and weeks were extremely challenging given the damage and the lack of basic amenities. We had no electricity and running water in our house for over three months.’

O’Neal Webster’s ‘Survivor Squad’ was deployed to clear debris from the firm’s destroyed Road Town offices. ‘A Category 5 hurricane is a traumatic event. Personally, I wasn’t prepared for the physical and psychological impact,’ says Naiyada Henry-Callwood, firm COO. ‘The aftermath was beyond exhausting.

‘Seeing the damage and destruction everywhere took a toll on our hearts and minds… the entire island grappled with insurmountable loss and banded together, BVI strong.

We could only hope, and work to recover what was just earlier that month our tranquil, natural, beautiful islands and communities.’

‘Our first concern was for our staff and their loved ones who did not evacuate,’ adds King. ‘It took a few days to account for all staff members as many were in areas that were inaccessible and had no communication. Fortunately, we were able to evacuate many staff members before Category 5 Maria hit a few days later and send our server out of the BVI. However, for those who stayed on the island, trying to find available space was a challenge, and still remains so.’

Kirk was one of those who relocated to the Cayman Islands. ‘Appleby rallied very quickly once we had confirmed all of our staff members were safe, and we had relocated most of our staff to other offices by the following week, ensuring firstly their personal safety and secondly that we were able to continue service to our clients.’

The long-term impact on the BVI is significant. Alongside the personal loss and devastation, damage estimates are as high as $2.3bn, the estimated public sector repair bill totals roughly $750m, tourism to the region has almost halved, and the general population of the territory has dropped by around 11%. Considering the BVI has fewer than 30,000 residents, those are some large mountains of recovery to climb.

The hurricane has already led to substantial changes in BVI legislation and the government’s approach to disaster planning. Most notable is the passing of the Virgin Islands Recovery and Development Agency Act in 2018, which proposes a review and update of the BVI building codes, and led to the establishment of the Recovery and Development Agency, which will lead the recovery and redevelopment of the BVI’s key infrastructure. But what about law firms; what lessons have they learned?

Preparing for the worst

Whether the threat is from hurricanes, earthquakes, tsunamis, or wildfires, many law firms across the world have business continuity and disaster recovery strategies in place to mitigate against the loss of a natural disaster.

However, even a well-thought-out plan can go out the window when disaster strikes.

‘I think anyone who says they were prepared for the scale of this disaster is lying,’ offers Mays. ‘It was really impossible to fully appreciate the difficulties a disaster like this creates, until they actually happen, and in this day and age to be completely unable to communicate with people who are only several miles away from you is an extraordinary experience.’

Unlike others in the BVI, Carey Olsen’s premises avoided catastrophic damage. ‘There were a few days where we were spinning the plates like mad trying to maintain normal service, despite the mayhem, but once we managed to airlift most of our staff out to the Cayman Islands and elsewhere, we were able to work pretty much as normal,’ says Mays. ‘For firms like ours with an international presence it was also easier because we have BVI lawyers in other offices who were able to plug gaps in the short term.’

‘Preparing for a hurricane is difficult, particularly because you don’t know exactly when and where it will hit and at what intensity,’ adds King. ‘Everything can change quickly, as it did in Irma, making preparing for a Category 5 storm nearly impossible.’

For O’Neal Webster, pre-hurricane preparations began the weekend before the hurricane was predicted to make landfall, with partners clearing desks and ensuring all important documents had been placed in fire and waterproof safes. Many staff were evacuated in advance to allow for work to continue with as little downtime as possible, and the firm set up a WhatsApp group allowing staff to remain in contact during and after the hurricanes hit. The firm also benefitted from its previous move to a paperless system, a project initially enacted to reduce its carbon footprint.

At Appleby, key staff in other Caribbean and international offices were tracking the storm and were prepared to trigger the firm’s evacuation procedures if and when necessary, and all fee earners were provided with equipment to connect remotely to the firm’s systems.

Appleby’s disaster plan tries to consider all possible eventualities and stresses the importance of communicating regularly to staff. The firm has also now introduced additional procedures including utilising GPS tracking to locate staff post-disaster. Both Appleby and Carey Olsen have also increased numbers of satellite phones on offer so that staff can communicate more easily.

The main takeaways for all firms, however, is that communication is key and that you must have a plan in place mitigating business disruption to clients. ‘The key to achieving this successfully is ensuring that everyone knows what role they play in achieving that, in particular having very clear lines of responsibility and communication,’ says Mays.

‘For example, you obviously need one or more people on the ground dealing with the first issue, whereas the second will often be better managed from another location not experiencing the direct impact of the event. Our response to Hurricane Irma had me leading the remaining team locally on the first point, with a business continuity committee in our Jersey and Guernsey offices leading on the wider business continuity front.’

The devastation of a natural disaster can be felt long after the winds have subsided and the waters retreated, but, as with everything, it is how people and businesses respond that informs how communities will recover. The BVI’s efforts to rebuild are still in full force and cruise-based tourism is starting to return to the islands, though a lot remains to be done. But despite the threat of future storms, BVI-based lawyers are going nowhere.

‘Natural disasters are a reality for law firms operating in many regions around the world,’ adds Kirk. ‘These disasters should not and will not deter firms operating in these areas.’ In relation to the BVI, Mays adds: ‘The Recovery and Development Agency’s tagline is ‘Smarter, Greener, Better’ so the aim is very much to make the BVI more resilient, and to use the recovery as an opportunity to develop more sustainably and be better equipped to deal with any future hurricanes.’

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Investment in Latin America

On 14 February, The Legal 500 held its Private Equity in Latin America Summit at the prestigious Institute of Directors in London. Moderated by deputy editor and veteran investment funds researcher Will Tolcher, and sponsored by Brazilian firm Demarest, the event brought together an expert panel with a diverse range of knowledge from across the private equity space.

After the event, Will caught up with panel members John Adams (investment funds partnerat Shearman & Sterling), Andres Abadia (senior international economist at Pantheon Macroeconomics), and Carlos Caicedo (senior principal analyst, country risk at IHS Markit), for their thoughts on the Latin America market.

Will Tolcher: What will the election of fresh governments in Mexico and Brazil, each with very different ideas, mean for investment in Latin America?

Carlos Caicedo: In Brazil, Bolsonaro is pushing forward with an ambitious economic liberalisation agenda, which will include privatisation and fiscal reform. This has been reflected in regained market confidence, however, without pension reform this would disappear rapidly.

Mexico, on the other hand, is moving towards a left-wing nationalist agenda under Andrés Manuel López Obrador (AMLO), and the suspension of auctions for oil and gas projects and the cancellation of the Mexico City Airport have scared the markets. AMLO has sought to reassure the private sector, however, he appears quite unpredictable and this will impact negatively on Mexico’s business environment.

WT: Mauricio Macri is running for a second term, against a backdrop of very high inflation and a low currency, which has historically been a challenge in Argentinian elections. What might Argentina’s election have in store?

CC: Argentina will go on a real rollercoaster ride before its election, mostly because the re-election of President Macri is in jeopardy. The other contender is former president Cristina Fernández de Kirchner (CFK); despite the ongoing recession, Macri would be expected to beat her because of her history of alleged corruption.

However, if the ‘moderate Peronists’ get together and choose a credible candidate, they are likely to win: a manageable setback if the Peronists try to keep the austerity programme on track. A CFK victory would seriously undermine the business environment.

WT: With growing international trade tensions between the US and China, how do you see Latin America’s role: what are the opportunities and threats?

CC: A full trade war between the US and China would be highly counterproductive for Latin America. A global recession would severely cut demand for Latin American commodities and diminish foreign investment into the region.

A US recession would be highly negative for Mexico, Central America, and Colombia, but less so for the Southern Cone, which has more
diversified exports.

That said, Brazil and Argentina may win briefly from a US-China trade war; notably Brazilian exports to China in recent months have increased sharply as its exporters replace US grain.

WT: What do you see as the key challenges for fund formation lawyers working with Latin American funds?

John Adams: Structuring can be complicated due to the changing tax regimes. For example, in Brazil if investments are to be made through a local law FIP, then there are hoops to jump through when establishing feeders outside Brazil for non-Brazilian investors. There can be penalties for investing through jurisdictions such as the Cayman Islands, which can lead a fund manager to consider alternatives like Ontario, England, or Luxembourg.

WT: Do you see a growing role for family office investments in the region – are they a growing source of capital in the region?

JA: A growing role, yes. Large family offices often compete with funds for deals. Other family offices have been moving into management of third-party capital – in effect, moving into blind-pool fund management.

WT: Middle Eastern and Chinese investment are obviously key sources of capital for private equity investment. Are there any particular obstacles to them investing in Latin America?

JA: No. For some, there is unfamiliarity with the rules in particular countries which can be a real learning curve. There may be sensitivities over political stability in particular Latin American countries.

Large Middle Eastern and Chinese investors are very sophisticated and often are interested in co-investments, or even direct deals where they are competing directly with fund managers.

WT: Latin America has two key trade blocs – Mercosur and the Pacific Alliance. How do you see their role changing, both within each and for any potential for alignment between the two?

Andres Abadia: Their role is gradually changing, with new business-friendly governments betting on further integration. The ascent of business-friendly leaders, including Macri, Bolsonaro, Piñera, and Duque – who favour free trade – opens space for real integration ahead. The meetings among the leaders in recent months point to a revitalisation of these blocs. The likelihood of further alignment between them and other global players has increased significantly over the last year.

WT: How has the Trump administration’s attitude to the US’s neighbours affected investment? Where will alternative investment come from?

AA: Investment from the US to LatAm has slowed in recent years due to Trump’s policy towards the region but also due to intrinsic factors, including domestic political uncertainty. If investment continues to dry up from the US, LatAm is likely to see a marginal increase from the EU – we expect, no miracles, though.

Total trade between China and LatAm has gone from $10bn in 2000 to nearly $300bn in 2017 and China’s lending now surpasses the Inter-American Development Bank and the World Bank combined. Latin American governments might be wary of being too close to China but in the end, money talks.

WT: Much conversation on Latin America centres on its more populous nations. Are there any that are being left out the conversation that present opportunities?

AA: We see potential opportunities in Peru and Chile, which have solid fundamentals, including low interest rates, low inflation, and political risk under control. Investment is improving and private consumption remains solid.

Moreover, we expect growth-enhancing reforms from the Piñera and Vizcarra administration this year and next. The main risk is that these economies rely considerably on mining, so they remain vulnerable to a global slowdown.

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Andrey Goltsblat

What has been your greatest achievement, in a professional and personal capability?

The greatest achievement is my team and where we are now. Previously a leading national team, in 2009, after joining forces with the major UK law firm Berwin Leighton Paisner (BLP) and creating Goltsblat BLP, we began offering the market a totally new and unique legal capability. It proved to be a success from the very beginning and, over recent years, has become a top-tier international law firm in Russia. Out team has won Law Firm of the Year in Russia five times since 2009.

What do you do differently from your peers in the industry?

We are local international counsel for our clients, this making us different from others. As one of the first companies to provide comprehensive legal support to multinational clients in Russia, we have accumulated unique practical experience based on a profound understanding of all the nuances of Russia’s legal, fiscal, business and political reality.

Over the last 20 years, we have assisted multinational companies with projects in different Russian regions. We are proud that we are continuing to provide most of those clients with day-to-day legal support.

Our enthusiasm, resources, practical experience, client-orientated approach, knowledge of Russian laws, regional specifics, local culture and investor mentality, authorities’ expectations, social, economic and political processes are a massive advantage over the competition and a completely different offering.

What advice would you give to your younger self?

If you start something, strive to be the best in the field – that is my principle in life. Following this principle, no matter what I have undertaken, I have always endeavoured to do it well and professionally. Generally, I believe anyone can be successful and gain recognition in any profession. You just need to work hard.

Can you give me a practical example of how you helped a client add value to the business?

My career as a commercial lawyer began in 1993, after I quit my job as Head of Staff of the Constitutional Commission, when Boris Yeltsin (Russia’s first President) dismissed the Russian Parliament. That year, bold foreign investors were seeking legal support in Russia. One of them was Mars, Inc., which desperately needed support for constructing a confectionery plant. I was introduced to them by their UK lawyers and tasked with making a land deal with the local Mayor for building the plant. They had been negotiating six months without achieving any visible progress, so I stepped in. The UK law-governed lease they were negotiating was poorly translated into Russian and made no sense to the Mayor, so they had got stuck. This was my first experience as a commercial lawyer and I didn’t have a clue about land leases, but I delved into Russia’s Land Code and drafted a six-page lease; in two weeks, the deal was done. I realised I could become a commercial lawyer, as this was a huge success for my client. The venture was launched and brought me to where I am today. Mars is still a major client of ours and it eventually purchased that land and now holds the title to it .

Within your sector, what do you think will be the biggest challenge for clients over the next 12 months?

Among the biggest challenges I would mention: the unpredictable political and economic situation, the second wave of sanctions and drop in investment activity. Even so, we are both pragmatic and calm in our approach to all the changes and always seek any new opportunities they might offer.

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A moment to make real change

Speaking to employment law specialists in Sweden during the 2019 EMEA research, one thing struck me as particularly interesting: all noted a ‘wave’ or ‘explosion’ of discrimination and harassment lawsuits, as well as numerous large internal investigations, at the beginning of 2018 just as the #MeToo movement was getting into its stride. However, by the autumn, that same work stream had slowed significantly.

I was intrigued; the hashtag was still ubiquitous in newspapers and social media outlets so I asked US editor Seth Singh Jennings if I could cover parts of the labour and employment section of the 2019 US guide as I could not imagine #MeToo’s country of origin already being done with the movement. It quickly became apparent that this was far from the case.

For those who might have been living under a rock these past 18 months: in October 2017, allegations of multiple incidents of rape, sexual assault, and abuse against Hollywood producer Harvey Weinstein were made public. American actress Alyssa Milano use of #MeToo in a tweet is largely credited with sending the movement viral. According to The Guardian, the hashtag was tweeted more than 1 million times worldwide within days, while CBS News reported Facebook had more than 12 million posts, comments, and reactions in less than 24 hours.

Now more than a year on, the question is what impact the movement has had for the US’s employment lawyers and their clients? In 2017, the Equal Employment Opportunity Commission (EEOC) received 12,428 reports alleging sex-based harassment; this number rose to 13,055 in 2018, the highest in eight years. While this might not seem a dramatic increase, keep in mind these figures do not include charges filed with state or local fair employment practices agencies. Furthermore, it is crucial to note that the figures for charges alleging sexual harassment saw a $10m rise in ‘monetary benefits’, excluding ones obtained during litigation, which shows this is now a high stakes arena for corporates.

However, it is not only the money that has the potential to hurt companies; the damage to reputation is also of particular worry to international businesses. While allegations used to be settled quietly, a May 2018 Forbes article stated that in the last year almost 300 high-profile executives have been subsequently also let go following claims of sexual harassment. Chai R. Feldblum, who served as a commissioner for the EEOC under the Obama administration and recently joined Morgan, Lewis & Bockius’ Washington DC office, notes: ‘The media and societal support for those people sharing their stories has gotten the world to pay attention to the need to change working environments to create a safe and inclusive place for all.’

On the legislative side, this change happened slowly but then all at once. While the moderate expectations of the Trump administration turned out be accurate – with not much legal development on a federal level as well as the EEOC having four vacant spots – state and city legislatures have stepped up to the plate. California and New York, often considered the leaders on new employment initiatives, made sexual harassment prevention training a mandatory obligation for employers.

In addition, following initiatives from Microsoft, Uber, and Lyft, bills have been passed prohibiting private arbitration of sexual harassment claims or notes aiming to outlaw confidentiality provisions in settlement agreements addressing sexual harassment claims. Of course, there are still states which have yet to read the memo, but national employers often apply the laws of the strictest jurisdiction in which they operate in order to be compliant on a national level.

As all these developments happened in a fairly short time frame, the fallout from #MeToo posed new challenges not only for employers but also their legal counsels. According to experts, transparency, flexibility, and proactivity are key.

‘I see a renewed focus on behalf of enlightened employers to listen to employees, revamp policies, develop training, and try new approaches to engagement,’ says Lisa Damon, immediate past chair of Seyfarth Shaw’s labour and employment team. ‘Transparency from management has become more important and many seem interested in lasting change.

‘Employees who had not found their voices before #MeToo are now starting to feel more comfortable raising issues in a way that can be productive if employers are open to considering new ways of managing, leading, engaging, and listening to employees.’

And as Feldblum explains, what would once have been kept strictly confidential is now open to public examination: ‘The techniques used to achieve a safe, respectful, and inclusive workplace vary in each instance. We learn from senior leadership what policies they currently have in place; we do a workplace culture assessment using a range of techniques; and we develop and help implement a strategic plan that includes ideas for leadership, accountability, policies, procedures, and training.

‘We have found that many employers want to publicly share what we find and the changes they make, so work that previously would have been kept confidential by a client is now being made public to increase trust and transparency.’

Although the #MeToo phenomena began in the entertainment and media industry, it has since spread to practically every other industry and profession. Small, local companies and start-ups, which often don’t have the resources for an extensive and experienced HR department, seem likely to be the next battleground. Indeed, Feldblum believes ‘no industry or company is completely immune to workplace harassment so we’re seeing demand from proactive leaders across the board’.

‘We are seeing #MeToo issues across all industries on a regular basis,’ adds Damon. ‘As we look forward, however, we are anticipating more demand from several specific industries. Healthcare has seen a fair amount of activity recently as medical providers are reading and hearing more about #MeToo. Additionally, we are seeing more claims from the tech industry and manufacturing.’

As most social issues do, the movement has divided opinion, both along gender and political lines, as was demonstrated during Justice Kavanaugh’s Supreme Court nomination hearing. Several studies (NPR; Pew Research Center) show a great difference between democratic and republican views on how sexual assault allegations in the workplace should be treated, with only a small number of the latter seeing a lack of punishment for perpetrators and victims not being believed a major problem.

These issues, however, must be overridden by objective and proactive leaders, as Feldblum notes: ‘Our expectation is that there will be a significant interest from companies and organisations which want to get ahead of the curve during this moment of #MeToo, which is far from over. We believe this is the moment to help employers create workplaces that are safe, respectful, and inclusive. This is the moment to make real change.’

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Remediating, mitigating, and managing a crisis

An issue for businesses that has skyrocketed in importance in recent years is sexual abuse in the workplace, which of course is largely due to the success of the #MeToo movement.

The origins of ‘Me Too’ in the context of sexual harassment and assault stretches back to 2006, but the movement, as we now understand it, was sparked to life on social media following the October 2017 viral tweet by actress and activist Alyssa Milano.

The point of the tweet was to bring attention to the scale of the problem by demonstrating just how many women have their own stories of sexual harassment or assault. As we now know, this fairly modest call to action via Twitter could hardly have been more effective. Brought to life by the many vivid and personal accounts – including those of numerous high-profile actors and media personalities – the campaign has dragged the issue firmly into the public discourse.

One of the overriding themes of these personal stories has been how, in many cases, these incidents of misconduct have been enabled by workplace culture and a lack of proper safeguarding. This, rightly, has put businesses in the spotlight too.

Given the reputational damage such allegations can bring, there is now a
huge amount at stake for owners, managers, and directors if they fail to
take the issue seriously and put measures in place to protect their staff.

It’s in this context we spoke with Lauren Casazza and Kim Nemirow. Casazza, a litigation partner in Kirkland’s New York office, heads up the crisis response practice group at Kirkland & Ellis, counselling clients on internal and external communications in high-profile litigation, investigations and crisis situations.

Nemirow, a partner in the government and internal investigations team in Chicago, has a broad range of experience advising clients on government investigations, internal investigations, and compliance matters, and has particular expertise handling highly sensitive workplace misconduct and compliance matters.

How did this team come together?

At Kirkland, we are always trying to find ways to leverage our diverse expertise in ways to support our clients’ needs. Our collaboration was driven by the growing demand from our clients for assistance in all aspects of the #MeToo movement, whether it is installing a best practices workplace compliance programme, investigating thorny allegations against senior executives, or helping manage and communicate about emerging crises in this space.

How big an impact has the movement had on the business world?

It’s been significant. Frankly, this is front and centre for every company. The companies that have battled media attention on these issues are clearly focused on remediating, mitigating, and managing what typically has been a huge reputational hit.

But, more systemically, every company in the world is trying or should be trying to find ways to make sure they can avoid having issues in the first place and/or mismanaging allegations as they emerge.

Even investors should be considering how potential reputational and legal risks around #MeToo – which are very difficult to quantify – impact potential deals and investment value.

In what specifics ways have corporations been impacted?

What we’re seeing is that companies are being more proactive from a compliance and investigations perspective than they were even two years ago.

Companies are hyper-aware that mere allegations lodged publicly, particularly against senior executives or a company’s overall culture, can
create a corporate crisis within minutes, and we are helping our clients with key steps to prevent, deter, and detect these issues so that they can be in the best position legally and reputationally when, and
if, an unpredicted crisis occurs.

What are the key points you convey to your clients?

We convey that risks surrounding the #MeToo movement must be taken seriously, and that thoughtful, proactive compliance and crisis strategies not only help a company manage through a crisis, but can really serve to mitigate these unfortunate behaviours from occurring in the first place.

A key component of any strategy
should be focusing on whether the company maintains the right ‘tone at the top’, which is an essential foundation for a strong corporate culture.

What other advice would you give to lawyers who are talking to their clients about this topic?

We would tell them to advise their clients not to underestimate how quickly a #MeToo issue can become catastrophic for a company. Time and investment in proactive efforts to mitigate and manage these issues is well worth it, and in the long run companies and their hardworking employees will be better off for it.

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#MeTooLaw: when firms do the right thing

It is a year since Paul Philip, chief executive of the Solicitors Regulation Authority (SRA), appeared before the Women & Equalities Select Committee to account for the legal sector’s record on addressing sexual harassment at work. That somewhat testing experience for Mr Philip at the hands of MPs, led to an immediate sharpening of the SRA’s focus on how law firms respond to allegations of sexual harassment within their own businesses, as well as within those of their clients.

Up to that point, very few law
firm employees would have felt empowered to speak up about the sexual harassment they experienced, fearing they would not be believed and would face retaliation, potentially jeopardising their careers.

Even fewer would intervene or raise concerns about any sexual harassment they observed; some unsure about the dynamics of the scene playing out in front of them, others perhaps assuming it was just not their responsibility to deal with it.

Law firm HR professionals were frequently in the unenviable position of being told about an incident but being sworn to secrecy (and inaction) by the victim, who would threaten to resign and deny all knowledge. Consequently, many firms were oblivious to sexual harassment problems in their businesses, or where they were aware of particular instances, they had little legal or commercial incentive to address the issue in a truly meaningful or systematic way.

That has now all changed. The constant press attention following Weinstein and the Presidents’ Club, and the ceaseless efforts of the legal press to persuade sexual harassment victims in law firms to come forward with their stories, mean firms are far more aware of the reputational damage of mishandling sexual harassment allegations.

The stakes are raised even further by the new SRA enforcement strategy which (finally) puts sexual misconduct at a high level of seriousness, treating it on a par with other forms of serious misconduct, such as taking unfair advantage of clients, misuse of client money, dishonesty, and other criminal behaviour.

The SRA recently stated that it is investigating over 50 active cases of sexual misconduct in firms and has estimated it would be sending around 25 cases of sexual misconduct to the Solicitors Disciplinary Tribunal.

Assessing risk

Most firms have acted quickly to #MeTooLaw and have responded by updating their sexual harassment policy and complaints procedures. They have implemented firmwide information campaigns and tailored HR, partner and staff training to ensure that all understand the types of behaviour that can be regarded as sexual harassment, the consequences of engaging in such behaviours, and how the firm will normally respond.

They are putting in place rigorous controls to ensure anyone who raises a complaint about sexual harassment will not be victimised in any way.
Bystanders are being trained to call out and intervene to stop unacceptable behaviours, to distract and divert the alleged harasser from the behaviour where necessary, and to understand their responsibility to report incidents to ensure the burden is not placed on the victim to deal with the problem.

Some firms are undertaking specific risk assessments to identify and address common situations where sexual harassment is typically more likely to be alleged to have occurred – after work events, deal closing celebrations, and overseas conferences. Others are introducing policies to ensure that where a consensual relationship develops between a partner and a junior member of staff, the partner is not left in a position of power and influence over that person and their career.

A very small number have either banned or strictly controlled the use of alcohol during working hours or events, to remove one of the biggest factors in sexual harassment cases. Few have effectively addressed the long work hours culture in law firms that can be a significant contributory factor in these situations.

Questionable commentators

Many commentators say that things are different now: that behaviours which were regarded as minor and unproblematic until recently, are now deemed to be unlawful sexual harassment, potentially amounting to gross misconduct; they often find that troubling and confusing. This is questionable.

Historic cases of sexual harassment which are emerging, reveal that the complainant in those incidents always felt the conduct to which they were subjected at work, was unacceptable and unwanted; they just did not have either the language or the voice to be able to express that view safely, until now.

Firms are now investigating those current and historic allegations, instead of settling them out quietly and rehabilitating the partner with training. They are taking advice on the potential discrimination, partnership, regulatory, and criminal aspects of the allegations.
They are also becoming extremely mindful of ensuring due process and proper support for the alleged harasser, whose career, family life, mental health, and indeed liberty can be devastated by allegations of sexual harassment, whether or not they are well founded.

These situations often come down to one person’s word against another: it is important for both the victim and the alleged harasser to be heard, taken seriously, and supported throughout. Public shamings in the press make for good headlines and potentially mitigating PR for firms, but they also destroy lives, and are, in our view, rarely warranted, especially in cases with conflicting factual accounts.

And what of HR professionals in law firms? In the past they have not necessarily understood that they are personally subject to the SRA regulatory regime, including SRA notification requirements, despite
not being solicitors themselves.
But HR awareness on this issue is changing, so that HR professionals in law firms now feel fully empowered by the knowledge of the regulatory as well as the PR and criminal risks, to escalate sexual harassment concerns to senior management for effective action.

It is important for firms to recognise that what used to be seen as an HR issue, is now also a regulatory issue, so there needs to be open communications between law firm HR and GC teams, to ensure that matters that are reportable are actioned, and that prompt and effective steps are taken to address the immediate issue and ensure
long-term institutional change to eradicate sexual harassment at
work.