Mark Kelly: Our culture sets us apart

How would you define your firm’s culture? How important is firm culture to you?

Culture is vitally important to our Firm and to me personally. We often talk about the V&E Family, which I believe is real. Our lawyers and administrative staff become part of that family when they join the firm. We have a huge alumni base that we communicate with on a regular basis. We also host an event where we invite all of our former lawyers to reunite with their colleagues. The atmosphere is electric as you witness dear friends, who started their careers together, reminiscing about their days at V&E.

I would venture to guess that few firms have that. My belief is that, in an era where the legal market is increasingly competitive for talent, our culture, which focuses on collaboration, working in teams, mentoring younger lawyers, and embracing diversity and inclusion efforts, make a huge difference in our ability to attract and retain our people.

What’s the main change you’ve made in the firm in the past few years that will benefit clients?

We have focused on ensuring that we have consistent excellence in all the areas that we choose to pursue. We have eliminated certain practice specialties that we thought were becoming commoditized or where we didn’t see opportunities for growth. We have spent an enormous amount of effort on communication across the firm to ensure we are aligned in our goals to be an elite global firm. This has required us, at times, to make hard decisions in where we invest our resources. In the last several years, we have strengthened our ranks and attracted quality laterals in key areas of growth for us, such as private equity and finance in London and New York and white collar and government investigations in Washington. If financial performance is any judge, we have been able to achieve record profitability the last two years and are on a path to have another record year in 2018.

What are the biggest misconception of Vinson & Elkins – do you find yourself pigeon-holed by historical reputations?

We have always been perceived as one of the premier energy firms in the world. While that is a core strength that we want to maintain, we actually are much broader in the overall practice areas we serve and compete in. Four years ago, we added a REIT practice to complement our leading capital markets practice. We represent the Panama Canal Authority on one of the largest construction disputes in the world. In fact, we have been involved in three of the four largest construction disputes around the globe. Our white collar, government investigations and IP work is largely non-energy. We are expanding our significant private equity practice in areas outside of energy. Our work in London involves clients in the telecom space, high-yield,
special situations, construction disputes and non-energy acquisitions. I believe that we will always dominate the energy space and that great work will continue to help us expand and grow across industries needing sophisticated legal work.

Differentiation is critical to buyers of legal services – how do you stand apart from the rest of the market?

Differentiation from your competition is critical to success. Clients today are much more sophisticated in hiring law firms. Many companies want to ensure your commitment to their needs and talk about “partnering with their outside law firms.” This requires that you develop a strong relationship, really listen to them, and understand their issues and needs. One way we stand apart is that our compensation system does not have formulaic origination credit. Those sorts of systems can incentivize lawyers to not work collaboratively, which can have negative repercussions for clients. We work hard at collaboration to assemble the best team for the particular assignment. We also have a very deep bench, which allows us to allocate substantial resources to meet our client needs in a cost-efficient way.

What do you think are the top three things most clients want and why?

Clients, above all, want an excellent legal team committed to their matters. We pride ourselves on making sure that we get to know our clients’ business and work tirelessly for them.

Clients also want practical and creative solutions. You need to not only identify the risks, but come up with suggestions about how to tackle the issues. Relationships in the legal business are key to building trust and delivering good advice. Many of the issues our clients face are difficult, and it is important to partner with them and help resolve those issues together. Having great judgment and an ability to communicate positions well are essential.

Clients don’t like surprises, and so we focus intently on staying ahead of them on the issues, making sure the value proposition is there and that we are viewed as delivering excellent results that are viewed as value-add by the client.

What have you found is the best way to retain talent – both at partner and associate levels?

Our lawyers are called everyday by other firms trying to entice them away. Fortunately, most have elected to remain, and I believe it is because of our culture, where we care about each other and we truly like working together. It is critical to have a compensation system that is competitive in the market for both associates and partners. Lawyers enjoy working on very sophisticated, high-profile transactions and cases.

People want to feel that they are a part of something special. It is our commitment to our lawyers that we offer great work, in an environment that fosters their ability to grow and excel in their field of expertise while developing close professional relationships. I like to think that although we are very serious about the legal work we do, we don’t take ourselves too seriously, and we enjoy practicing together and have a lot of fun doing it.

Recently, I have been pleased that we experienced the ‘boomerang effect’, where lawyers who left the firm return to rejoin our ranks, and they become the biggest advocates of how our culture really is truly special.

Since becoming chairman, what has surprised you most, either internally or externally?

We have spent a lot of time educating our lawyers about the economics of practicing law. I was surprised to see how eager our partners were to embrace the changing legal landscape. Competition is intense, and the way we practice has to change with it. Clients are more cost-conscious, and we must be able to still deliver excellent client service while we continue to train and grow the next generation of outstanding lawyers, and we must field more diverse teams in order to obtain outstanding solutions for our clients. We must embrace technology and invest in it becoming more efficient in how we deliver legal services today and in the future.

I’m not sure I fully appreciated the time and energy it has taken to maintain an active legal practice while leading the firm. Fortunately for me, I work alongside Scott Wulfe, our managing partner, and we operate extremely well together with the deep level of trust necessary to run a global law firm in today’s complicated world.

Rich Gold: every administration brings to Washington its own style and cadence

Rich Gold featured image

The notion of government work has risen in recent years, with general counsel realizing how critical it is – do you see this trend continuing?

Yes, we do. Our country has weathered the Great Recession and now has fully emerged from those historically tough economic times. Even so, our national focus continues to be on preventing another recession, and from that perspective, we see the cost of overregulation in trying to avoid a repeat scenario. In some ways, the economic center of the country has moved from New York to Washington. So it’s natural for the C-Suite occupants of major companies and nonprofit groups, as well as mayors of our cities and county executives, to feel like they need to have a presence in Washington, given the risks of another economic maelstrom that could impact them if they aren’t there to give their input. Lobbying and the law – how do you work with both sides for the benefit of clients?

Consider the many pressing issues facing Washington today. They range from tax reform implementation and the regulation of the financial services industries, to the regulation of emerging technologies in the energy and transportation sectors. All of this plays into the sweet spots of those law firms that have regulatory capability along with sophisticated lobbying practices. In some ways, where we find ourselves as a country and an economy right now requires both skill sets to solve the major issues confronting companies and industry sectors. This paradigm shift has prompted Holland & Knight to establish a major practice in this area by combining our legal experience with a roster of top talent that includes senior professionals without law degrees. By doing so, we have created a policy group that operates much more like a business consultancy rather than a traditional law firm. For example, our office space looks more like Google than a law firm. We don’t track or bill time for our policy matters, and we work on fixed fees in order to put the right team at the table. Our clients have responded positively to these innovations.

What have been some of the key success stories for the practice in the past 12 months?

There have been several for Holland & Knight in the past few months. Here are just a few:

a) Holland & Knight delivered a bet-the-industry victory on behalf of the Biosimilars Forum, the first coalition of drug manufacturers that make medicines that are similar to biologic drugs, which are created from living cells or organisms. We ran a campaign that resulted in changes to government health care reimbursement policies that will create substantial savings and treatment options for consumers while boosting an important segment of the life sciences industry.

b) Seeing an absence of a national partnership between local leaders, businesses and the federal government to address homelessness, in 2017 Holland & Knight created a coalition: the Mayors and CEOs for U.S. Housing Investment. The coalition includes 18 mayors from large cities such as Atlanta, Los Angeles, San Francisco and Washington, D.C., and major businesses such as Kaiser Permanente, which recently supported the coalition’s mission with a $200 million commitment to create housing through a partnership between the public and private sectors.

c) Holland & Knight represents the leading autonomous vehicle company in the U.S. as its sole federal lobbyist and is helping its client shape federal policy on this emerging technology as it comes before Congress, the Department of Transportation and the White House.

As much as you can or are prepared to say, what are the biggest issues clients need to understand with the current administration?

Every administration brings to Washington its own style and cadence, and the Trump Administration is no different. Advocating before it has similarities to the Obama Administration, but obviously there are significant differences as well. Our job in essence is to be able to read a person, an agency or a situation in seven seconds and determine the advocacy tools that will convince a government decision maker to accept our client’s position. That is our job; it doesn’t change. However, you need strong contacts within the White House
and the Cabinet in this Administration. You need to communicate an issue from the perspective of the President’s voter base. Additionally, you need to create an environment around an issue you are advocating for that will be persuasive to the White House so it will adopt that position.

Do you expect that to change in November with the mid-terms, and what’s on the horizon for 2019?

Should Democrats take one or both of the houses, obviously Washington will be a different environment in 2019. To the extent that Republicans maintain control in both houses, we wouldn’t expect things to change. In either case, presidents come into their own in the third year of their administration. They may have success in the first Congress, but they are really getting a feel for the job by the time they get to year three. While the president may be faced with more significant challenges if there is a Democratic majority in one or both houses of Congress, expect him to have a better grasp of the art of what is doable in Washington and how to move his agenda forward. In fact,
we’re already seeing that to a certain extent. Clearly, a Congress controlled by the Democrats will have a strong focus on investigations, administrative policy and ethics issues. However, at the same time, issues like infrastructure legislation and a continued focus on tax reform provide the opportunity for bipartisan compromise.

Investigations work has been growing across all areas – where do you see the trend heading with government investigations work?

If Democrats are successful in taking control of the U.S. House, Senate or both in November, we would expect in 2019 a significant spike in investigations work, focused not only on the administration but also on major business sectors. While the era of U.S. Reps. John Dingell and Henry Waxman, two of the greatest congressional investigators in our lifetimes, may have passed, the Democrats, who would take the helm of the Energy and Commerce Committee and the Oversight and Government Reform Committee, would be quite capable of providing strong leadership. Holland & Knight lawyers, such as John Brownlee, former Democratic House members, such as Gerry Sikorski, Jim Davis and Ron Klein, and our High Stakes Communications Team, which handles crisis management situations, will be uniquely positioned to help clients.

Malcolm Simpson: Misconceptions don’t hold us back

How would you define your Walker Morris’ culture? How important is firm culture to you?

If I had to summarise our culture in one word it would be collaboration. By that I mean not only collaboration internally and with clients, but also with other professionals, including from other law firms.

Having all our employees based in one location and working with each other on a day-to-day basis engenders a very special culture. It encourages seamless, collaborative team working and also means the board and I are very visible. We have a fairly flat structure anyway, but it helps us to be more accessible.

Collaboration is also at the heart of our relationships with clients. We like to empower our lawyers to give them the freedom to grow and develop their practices by having the time to really understand our clients’ businesses and collaborate with them to develop creative solutions. Daniel O’Gorman, one of our corporate partners, is a good example of that. When he joined a couple of years ago we gave him the space and time to develop his strong private equity connections overseas – which he has done with great success.

We’re able to support him with a very strong capability from our office in Leeds, often while he is overseas, to create a cohesive service for his US-based clients.

Finally, collaboration with other lawyers is a key part of our culture. Being a fiercely independent firm, our strong network of independent, overseas law firms is important to us. We work collaboratively with them, both in terms of work and shared marketing events. We have a long and successful track record of working with US and Magic Circle firms, providing specialist support – such as pensions, labour law and real estate – on transactions where they do not have full service capability. There might also be opportunities for working with other independent firms, for example, in developing artificial intelligence capabilities – something we are currently exploring.


What’s the main change you’ve made in the firm that will benefit clients?

Having only started the role on 1 May this year it is still very early days. I want to ensure my efforts are predominantly outward facing and client focused. I am working my way around our key clients and we are re-invigorating our key client programme as part of our strategy renewal. As part of that we plan to extend the range of specialist services we offer within our core markets. We
will provide these additional services in response to identified needs of existing and prospective clients, both in the US and UK.

The other major project we’re working on is our move to a new building. It will be the largest professional services relocation in Leeds for almost 15 years, so it’s a big undertaking for everyone in the firm. The move is more than just moving to a new building. We’re using it as a springboard to radically change the way we work. So it is one, albeit key, element of a programme of major infrastructure investments we’re making to give our lawyers the freedom to manage their time differently and the flexibility to work more efficiently from any location, be that in the office, remotely from home, with clients, or on the move. Investments include new document and case management systems, a practice management system, improved remote working capability and the difficult, but important, shift to a paper light environment. We’re also trialling AI systems as we speak, which is very exciting.


What are the biggest misconceptions of firms such as Walker Morris – do you find yourself pigeonholed by historical reputations?

People sometimes fail to understand our business model as we don’t fit neatly into the pigeonholes of a regional, national or international firm. But whatever misconceptions there may be, they don’t hold us back. With the largest headcount in Leeds we are (unsurprisingly) dominant in our regional market, but what many people don’t realise is that over 70 per cent of our work is from outside of the region with around 20 per cent of it from international clients.

Our international clients really value our City-quality offering without the overhead. Relationships are critical so we invest heavily in our clients; we visit them often, whether they are in London, Leeds or Milwaukee, These factors plus great tech make a compelling proposition so that, frankly, our clients don’t mind where their work is being handled.


Differentiation is critical to buyers of legal services – how do you stand apart from the rest of the market?

We differentiate ourselves in a number of ways. We have a deep understanding of our clients’ needs in key sectors, mostly in the real economy. We aim to give a genuinely full-commercial service to those clients, which means continual adaption so we can deal with a plethora of emerging issues, such as clean energy, technology/data, competition and the impact of sanctions.

We are also aiming to give our lawyers a real competitive edge through technology. We’ve already started with the basics, investing in infrastructure and systems security. Clients tell us how vital it is that the integrity and security of their data is protected. Indeed, we see in the media all too often the far reaching consequences for companies who face security breaches. We’re pleased with the progress we’ve made in this area. In fact, in a study by cloud intelligence company OnDMARC we were the only top 100 law firm to pass its security tests. We are now looking at ways we can use technology to streamline service delivery and free up the time of our talented
lawyers so they can spend their time on the ‘rocket science’.

Finally, we’ve also differentiated ourselves in our international approach to service our clients’ international needs. To that end we’ve invested in developing strong connections with other leading independent firms worldwide so we can identify the local firm that is best able to fit our clients’ specific requirements in other jurisdictions. This ‘best-of-breed’ approach has found favour with many of our international clients, particularly in Europe, the US and Asia who appreciate our knowledge of the legal marketplace in the European jurisdictions they wish to do business in.


What do you think are the top three things most clients want and why?

Outstanding quality of work and service levels are hygiene factors in the competitive world of commercial law. They are a given. Clients want advisers they know and trust – relationships are vital. We take the time to travel and see our clients, wherever in the world they are. Understanding your client’s market and business is key in helping them to manage risk, which is top of the list of all the general counsels we speak to. GCs are coming under increasing pressure to demonstrate value and manage tighter budgets. Helping them to deliver more for less is important and working with them to identify the costs savings really helps win friends. That might be achieved through technology and process for example of being innovative on fees or shared risk.


What have you found is the best way to retain talent – both at partner and associate levels?

The workplace is changing quickly and responding to those changes is vital in the battle to win and retain the best people. Allowing greater flexibility through agile working definitely, for example, helps. Offering greater flexibility in career choices and paths is also important. People have different needs at different times in their working lives; firms need to find ways of keeping their staff through these different stages.

We already have a great training programme for our lawyers. We now plan to roll out a leadership programme open to our lawyers and business services staff, giving us a pool of talent from which we can draw future generations of leaders. We’ve been investing heavily in our learning and development programme. For example, our mentoring programme has increased by 70 per cent in the last year and we also launched an online training academy to provide bite-sized content from leading experts.


Since becoming managing partner what’s surprised you most, either internally or externally?

How fantastically supportive the partners and all of our staff have been. I am very lucky to work with such great people.

Malcolm Simpson became managing partner of Walker Morris on 1 May 2018. He has 17 years of experience as a partner in the commercial disputes team and, as IT partner, oversaw a multi-million pound investment in the firm’s IT systems and infrastructure.

Bridging the gap between independence and management

How would you define your Luther’s culture? How important is firm culture to you?

At Luther, we are living an open, teamwork-oriented, and business-driven culture with a clear focus on the needs of our clients. We also encourage an environment of continuous learning. The firm culture is very important since it holds us together and sets the basis for our joint approach. It is also reflected in the Luther brand: ‘Hits the mark’. Luther stands for expertise and commitment. With enthusiasm for our profession and the matter; we work out precise answers. We strongly believe we can achieve more by bringing together experts with a broad range of knowledge and perspectives.


What’s the main change you’ve made in the firm that will benefit clients?

In recent years we have increasingly concentrated on anticipating new developments in our clients’ industries and working together in interdisciplinary teams. We are always available for our clients, not just when problems arise. This kind of tailor-made approach is highly appreciated by our clients, as we are not only pure problem solvers but we also think about future obstacles in times of rapid change.


What are the biggest challenges facing firms of your size in Germany?

The handling of mass litigation is a big challenge. You need people, but you also need the tools and infrastructure to handle many lawsuits effectively. Besides, it is not easy to keep the balance between local and
organisation-wide commitment.

Our locations in Germany traditionally have strong roots in their respective regions. You have to remain faithful to these roots and at the same time integrate these structures into a growing organisation that operates on a national and international level.

One of the biggest challenges facing law firms in Germany is the recruitment of talent. The demand for legal advice is very high, but the talent market is sparse.


What are the best ways to retain talent – both at partner and associate levels?

To inspire candidates to work for Luther at the associate level, we maintain contact with universities and host events for promising candidates. A few weeks ago, for example, we invited former, active and future trainees to a joint evening in Cologne.

At partner level, we continuously offer new perspectives and support business development. This approach provides incentives for both, existing and new partners. At the beginning of the new financial year, we have, for example, appointed five new partners. The promotion of young talent is supported by our partner development programme, which we have been running since 2014. Senior associates with partner ambitions, and who have potentially great skill sets, receive support in developing their own business case for partnership. In cases where we would like to further expand specific areas, we naturally also make use of lateral hires.


What do you think are the top three things most clients want and why?

Competence, trust and a deep understanding of the industry are the cornerstones of a good client relationship. I am convinced clients want top-notch advisers they can trust, who think ahead and who have access to all necessary resources for handling complex situations. This is what we understand as full service: interdisciplinary teams that can be expanded or reshaped when needed. I also believe that the role of legal advisors is shifting towards more of a general consultant when it comes to new areas in which legal conditions are still developing.


Since becoming managing partner, what’s surprised you most about running a firm?

The most interesting experience for me was to be confronted with the idea of leadership in a new way. On the one hand, lawyers act very independently; we have a very strong entrepreneurial approach among our ranks. On the other hand, however, many are also seeking leadership and guidance. So, working together on large projects, between these two ideals, can lead to rather difficult situations. The challenge is to bridge the gap between independence and a managed law firm. Both can coexist.

Think Outside-in

This spring, together with a couple thousand others, I had the opportunity to attend the CLOC conference in Las Vegas. The conference was all about expectations around service delivery and the changing needs of the legal operations profession. Seems pretty on point in a profession undergoing change.

A couple of things struck me, however. First, there were relatively few lawyers from private practice in attendance and, second, a number of those who were there seemed mystified by the event. In considering this phenomenon – which is not the only time – it seems to me that this reflects a broader issue: how we relate to clients and how we deliver our services in a way that meets their needs.

Survey after survey will tell you that corporate legal buyers are dissatisfied in many ways with their law firms. Certainly, these concerns were not far below the surface at CLOC. In many ways, those of us in private practice often suffer from a failure to perceive circumstances from the perspective of the client. The reality is that we can gain and deliver more value with our clients if we think from the outside-in.

Put the client, not the firm, at the center of your thinking

If you are going to design a service delivery model that meets the needs of your client, then truly understanding those needs is a
base-line requirement. This is no flash of insight: client-centricity is hardly a new idea in business. Business-to-consumer businesses, particularly those focused on product design, have long been focused on the client/user experience. Translating that focus on the customer is trickier in business-to-business settings and even more complex in professional service environments. In professional services, we need to learn to elicit insights from the ultimate consumer of services, so we can start with the correct service requirements, design the solution set and then continuously improve upon service quality.

If you are a partner in a law firm, you may be thinking “we are all about understanding our client.” The reality, however, is that there is a huge gap between even great client service and a commitment to true client-centricity.

What is required for the latter is a whole different level of transparency and a willingness on all sides to embrace a true dialogue. At its most powerful, that dialogue can result in the co-creation of a wholly different service delivery paradigm. When it works best, thinking outside-in results in a structured discussion about how the two businesses (law firm and law department) work in tandem to deliver top-level services to the end-buyer of services – the law department’s internal clients. It requires a level of process transparency and financial transparency to which most firms and legal departments are unaccustomed and, oftentimes, find scary. It requires a willingness to have an honest discussion as to which organization is best equipped to handle certain parts of the work – and a recognition that the answer might be neither.

So, let’s just do some of that!

Outside-in thinking means designing and delivering services from the client’s point of view — considering the client’s service journey and the client’s end-to-end experience. This is much harder than it sounds, because everyone is hardwired to look at the world from his or her own point of view. Understanding other perspectives is an uncommon skill to begin with – and most organizations don’t take the time and effort to cultivate this critical competency in its client-facing personnel. This is particularly true with lawyers. By nature, we are siloed creatures.

In addition, the organizational structure of most law firms, and most legal departments, is often a silent barrier to client-centricity. In the vast majority of organizations, the structure reflects the composition, specialization, or area of focus of the people who work there, rather than the people who are buying the services. In this environment, each team member is the owner of a small piece of the client experience. Each team member’s perspective is limited by boundaries that are difficult to conceptualize. In this environment, seeing the whole field is difficult. If all you have is a hammer, everything looks like a nail. In other words, we are predisposed to tackle problems with our own toolset, with our own repertoire of skills and knowledge. Navigating our own organizations to challenge and stress-test those assumptions can create perceived personal risk. Going back to the drawing board and asking what the best solution
might be, and identifying an optimal toolset for this particular problem, can be scary.

As if this weren’t enough, there are three other factors that make the outside-in approach very difficult:

The artisan lawyer

Most lawyers are simply unaccustomed to having a discussion about how they deliver legal services. They are stuck in an artisan mindset – fitting for the legal services market of the past but a barrier to solution design now. This artisan mindset goes to the heart of lawyers’ perceptions of themselves – credentialed professionals with very specialized expertise. There is a level of protectiveness around the delivery of services much like a covert operative would view tradecraft. In our industry, getting lawyers to recognize that this level of dialogue and transparency only enhances their value involves a significant change process.

The client is speaking, but who is listening?

Creating a dialogue implies that someone needs to be talking and someone needs to be listening. This sounds obvious, but truly thinking outside-in requires us not just to listen, but to listen with the intent to understand, rather than the intent to respond. The root cause of a client’s pain points isn’t always known to the clients themselves. Lawyers must resist the temptation to provide an answer before the problem is fully articulated; in most cases, this undermines the fundamental point of the voice of the client.

Change is hard – for everyone involved

The required solution sets sometimes (okay, rather often) require change from all parties. Change is hard, and in some cases, it is too hard for some organizations and some people. It is simply easier to buy a piece of technology or to whittle at the edges than it is to get people to actually change they way they operate. Whether it is a large event like CLOC or a one-on-one conversation with a client, there are multiple opportunities to think outside-in and then apply what we learn to raise our value to clients. It is not easy but competition in our industry only continues to intensify and this provides a way to differentiate ourselves and prove our value.

Listing rules boost to Hong Kong M&A

Hong Kong skyline

Please give us an overview of the current legal market in Hong Kong and how any recent developments have impacted your practice?

The recent changes to the Hong Kong Listing Rules allow biotech issuers who do not meet the financial eligibility tests to be listed, and permit the listing of companies with “weighted voting right” structures, whereas previously mainland Chinese businesses such as Alibaba may have chosen to list in the United States given the dual listing availability there. This change is likely to make Hong Kong a more attractive listing venue to such issuers.

As a result of this recent change, we expect to see an increase in technology companies and Chinese corporate groups with complex governance structures utilising Cayman Islands and other offshore listing vehicles in order to effect a listing on the Stock Exchange of Hong Kong.

 

What significant trends exist in the M&A market presently? Are you seeing these just domestically or internationally as well?

M&A activity in Hong Kong is directly linked to outbound M&A activity from mainland China. In early 2017, the markets globally witnessed a general decline in volume and deal flow and China’s outbound investment fell due to tighter capital outflow. However, we expect that deals involving Chinese buyers in 2018 will increase compared to 2017 and one of the key drivers of this uptick will undoubtedly be the ‘One Belt, One Road’ initiative of the Chinese government.

The search for advanced technologies and established brands would mean that developed markets in the United States and Europe, together with some parts of Asia, are the most popular destinations for Chinese buyers. However, Hong Kong continues to retain its appeal in connection with inbound and outbound M&A activities. One of the significant trends we are seeing in M&A activities involves mainland Chinese companies buying listed companies in Hong Kong, and subsequently using that listed status as a platform for further fundraising.

The top sectors for Hong Kong M&A targets in 2017 and the first half of 2018 included:

  • Real estate and construction/building;
  • Technology;
  • Industry;
  • Insurance; and
  • Financial services.

 

What are the three biggest challenges to practising M&A in Hong Kong at the moment?

It has become more difficult for Chinese and other regional businesses which are active in the technological advancement and other deemed-sensitive industries to acquire assets in the United States that are subject to review and approval by the Committee on Foreign Investment in the United States (CFIUS). Similar concerns arise in the European Union and Japan, among other major economies.

In addition, there has been continuing uncertainty regarding the application by the relevant authorities of capital controls in China and other regulatory procedures to outbound transactions.

Last but not least, the size and scope of the Chinese market together with rapid technological advancement would require offshore law practitioners resident in Asia to account for their clients’ language preferences, location and preferred communication methods with advisers (including using social media channels if and where appropriate) in designing legal services offerings relevant to an increasingly diverse Chinese client base that uses Hong Kong, and offshore vehicles in particular, to access the global M&A markets.

 

What advice would you give to the next generation of M&A lawyers?

Drafting and negotiating documents are integral parts of the M&A practice. Junior lawyers and trainees intending to practise as M&A lawyers should develop their written and negotiation skills, in particular the skills needed to express their points persuasively. In addition to developing technical legal expertise, an effective M&A practitioner must also have an in-depth understanding of the business world, and the sectors and jurisdictions in which key clients operate, in order to provide strategic legal advice. As such, keeping up to date with financial, economic and business developments is crucial. Finally, in order to effectively deliver an M&A transaction from a legal perspective, project management skills – and in particular the ability to coordinate multiple advisers and often regulatory and other approval processes in a variety of jurisdictions – are key. All of these are required as much to practise as an offshore lawyer as compared to a locally qualified lawyer in Hong Kong.

 

What are your predictions for M&A in Hong Kong over the next five years?

With the recent changes to the Hong Kong Listing Rules, we expect to see a surge of mega-size, secondary and dual-class listings involving offshore vehicles. This would mean more pre-IPO investment activities, and those issuers which successfully raise large sums of funds are likely to seek large investment opportunities. M&A activities in Hong Kong should therefore remain strong over the next five years.

Why India’s ‘fly-in, fly-out’ judgment leaves much to be desired

Why is this latest Supreme Court ruling so important for the legal market?

Globalisation has necessitated cross-border transactions with diverse commercial objectives. Multinational commerce requires private parties to deliberate on cross-jurisdictional legal issues which in turn require reliance on legal service providers from across the world. As a result, many foreign as well as Indian parties have time and again sought counsel from foreign lawyers in relation to legal issues pertaining to foreign and Indian law (and overlapping aspects thereof). Whilst this arrangement, on the face of it, seems perfectly reasonable, limitations emanating from Indian statutes (governing the practice of law) place certain limitations on such cross border dispensation of services.

Much has been said about section 29 of the Advocates Act 1961? What is it and why is it often described as ‘sacrosanct’?

Section 29 prohibits any person other than an ‘advocate’ from engaging in the ‘practise of the profession of law’. An advocate as defined under the said law means any person who has been enrolled with the State Bar Council or the Bar Council of India. Enrolment necessitates that the advocate has met certain criteria including Indian citizenship and educational qualifications, e.g. completing legal academics from an Indian institution. While this provision per se does not prohibit the invocation of services of a foreign lawyer/firm, its obvious consequences (exclusion of foreign lawyers) have been the subject matter of public debate and consequent judicial scrutiny for a considerable amount of time.

What did the first High Court decision say?

The first decision in this context was pronounced by the Bombay High Court in Lawyers Collective v Bar Council of India in 2010, wherein the court interpreted Section 29 to mean that it was the intent of lawmakers to prohibit foreign lawyers and law firms from engaging in both litigious and non-litigious matters. In a nutshell, the court interpreted the ‘practice of the profession of law’ to include both litigious and non-litigious matters insofar as foreign lawyers/firms were not ‘advocates’ as per the Act (Indian citizens with Indian legal degrees).

Many international law firms with interest in the Indian market were of the belief that while arriving at the aforesaid decision, the Bombay High Court had failed to take cognisance of the apparent needs of the industry. But that wasn’t the end of the matter. There were still unresolved issues that were considered by the High Court of Madras.

The fact that foreign lawyers often advised Indian clients on matters relating to foreign law while following a ‘fly-in, fly-out’ model (i.e. coming to India on a visitor’s visa and rendering advice on matters) was not yet adjudicated. Representation in international commercial arbitration matters was in a flux too. Furthermore, with several foreign legal process outsourcing (LPO) firms having set up offices in India, the need for interpretation was imminent. In A. K. Balaji v Government of India, a writ petition (constitutional challenge) was filed by a local attorney before the High Court of Madras seeking to prevent foreign players from rendering legal services in India. Herein, the Madras High Court – partially – held in favour of the respondents (foreign law firms) and stated that there was no bar to the ‘fly-in, fly-out’ practice or the engagement of foreign lawyers as counsels in international commercial arbitrations with respect to matters pertaining to foreign law. Many believe that the court’s observations re the issue of assistance in arbitration matters was a direct consequence of India Inc.’s commitment to project itself as a hub for international arbitration.

First, the court made no new/path-breaking observations regarding representation by foreign legal practitioners in the realm of Indian law. Second, the court also did not examine the issue of LPO. This was for the reason that the firms in question represented themselves as business process outsourcing (BPO) firms involved in activities limited to non-legal matters, such as secretarial services, proof reading, and word processing. Inasmuch as domestic lawyers silently disagreed to the stance taken (and alleged impropriety/concealment of information), observations made by the High Court merely stated that BPO firms were not bound by the provisions of the Advocates Act. Needless to say, this aspect of the judgement failed to appropriately address the legality of LPO firms in India.

Largely perceived as decisions (both, Bombay and Madras High Court) favouring foreign law firms, appeals were filed before the Supreme Court. Hearing thereon was clubbed due to the overlapping nature of issues and a consolidated judgement was passed by the Supreme Court a month ago.

So, after much anticipation, we finally reach the Supreme Court. What happened?

The Supreme Court in an attempt to further clarify the legal position in relation to the operation of foreign law firms/lawyers in India adjudicated on the aforesaid issues.

While considering the previous two decisions from the high courts and rival submissions, on the issue of ‘fly-in, fly-out’ arrangements, the Supreme Court deviated from the view adopted by the Madras High Court. Here it was observed that ‘fly-in, fly-out’ was not an absolute right of the foreign lawyers. The Apex Court expressly stated that only causal visits would be permissible as opposed to regular occurrences. The court refused to formulate a strait jacket formula to determine when a series of casual visits may be deemed regular and consequently, impermissible.

The issue of international commercial arbitration was also considered, right?

Since foreign lawyers do not owe allegiance to India’s regulations governing ethical conduct of legal practitioners, their work in India (in arbitration matters) is likely to remain unregulated, putting Indian parties at the risk of professional impropriety. Keeping this submission in mind, the Supreme Court further bridled the freedom of foreign lawyers to act as counsels in matters of international commercial arbitration. This limitation has been placed so that all lawyers practicing in India are bound by uniform ethical standards/code of conduct (which prohibit advertising, solicitation, contingency fees, etc.).

And what about BPOs and LPO?

The court abstained from giving any blanket indemnity to foreign outsourcing outfits (notwithstanding the nomenclature used to define them). It was decided each such foreign outsourcing processes/businesses will have to be evaluated on merits and if the same in pith and substance amount to an outfit rendering legal services in India, the same shall be impermissible. In a way, the Supreme Court placed fetters on the unlimited approval accorded to BPOs vide the Madras High Court decision.

But while the Supreme Court’s decision is binding, it’s not exactly conclusive, is it?

Unfortunately, the Supreme Court’s decision is neither pragmatic nor lays down clear cut limits on the activities that are impermissible within the present legislative framework. The decision is merely a reiteration of statutory and judicial benchmarks already known to the public. Though the language is unambiguous and leaves little room for misinterpretation, several cardinal issues were not examined, such as what happens when collaborative teams (that include Indian advocates) work on cross-jurisdictional legal issues, or where Indian law-related international commercial arbitrations are being conducted. Thus the decision leaves much to be desired.

Taking advantage of uncertain times

Please give us an overview of the current legal market in Ireland and how any recent developments have impacted your practice?

M&A activity in Ireland has been strong and both domestic and international buyers have been active with a number of inbound and outbound strategic acquisitions being made, including by Allergan, CRH, Eir, and Mallinckrodt.
Mid-market deals across a range of sectors have accounted for the large majority of deals. As Ireland continues to be an attractive destination for foreign buyers, both private equity and trade buyers have been very active.

 

What significant trends exist in the M&A market presently? Are you seeing these just domestically or internationally as well?

There has been an increase in partial rather than full acquisitions in the Irish market recently, which has largely been driven by private equity firms looking to enter the Irish market in partnership with established businesses in a wide variety of sectors.

This trend also reflects the international market with the increased availability of funding. Buyers have taken a more proactive approach despite global market uncertainty. Warranty and indemnity insurance has become more prevalent, particularly in private transactions where the private equity seller is not willing to provide warranty protection to the buyer or where the sellers are
individuals.

 

What are the three biggest challenges to practising M&A in Ireland at the moment?

Economic uncertainty with Brexit and international political developments, particularly in the United States, has made the market more difficult to predict,
albeit M&A activity has remained strong.

The market has recently been a competitive, sellers’ market, which has made deals more challenging for buyers seeking to buy assets on favourable terms.

While share purchase structures continue to be most common for M&A deals,
business and asset sales have required more careful restructuring since the rate of stamp duty increased from 2% to 6% in October 2017.

 

How does M&A fit into the firm as a whole? Is it easy to collaborate with
other teams?

Our M&A department is the largest team in the firm and M&A deals play a large part in bringing our network of practice areas together. As transactions have become increasingly complex over the years with various areas of legal expertise required, we have maintained excellent relationships with our specialist teams and have found that seamless collaboration among our specialists in conducting due diligence, communicating with clients, and negotiating deal documentation is crucial.

 

What advice would you give to the next generation of M&A lawyers?

Gain an understanding of your client’s business and learn about the strategy behind a proposed deal. Keep up to date with developments in the M&A market and current affairs, both domestically and internationally. Keep track of the development of technology and the potential for the use of artificial intelligence and the role it might play in the future of M&A in key areas, such as due diligence and the preparation of transaction documentation.

 

What are your predictions for M&A in Ireland over the next five years?

For such time as there is uncertainty surrounding Brexit and the position on
US/EU trade, the M&A outlook is difficult to predict. Brexit may encourage dealmakers to seek targets in Ireland and increased migration of capital from the UK to Ireland is likely. Despite this uncertainty, the Irish economy continues to expand at one of the fastest rates in Europe and we expect that this will encourage domestic and foreign businesses to continue to expand by way of acquisition over the next five years.

What does the future hold for Japan’s M&A market?

Please give us an overview of the current legal market in Japan and how any recent developments have impacted your practice?

The Japanese legal market remains very business and investment friendly. One of the most significant changes in the past was the introduction of 2015’s Corporate Governance Code, with the goal of promoting sustainable corporate growth and increasing corporate value by securing rights and equal treatment of shareholders. As a consequence, Japanese companies are now under closer scrutiny of their shareholders who request better return rates, forcing companies to look for attractive investments. At the same time, the June 2018 update of the code urges companies to reduce strategic cross-shareholdings which may also lead to more movement in the market.

On an international level, the recent execution of the EU-Japanese Economic Partnership Agreement set a positive signal for the cross-border M&A market. Although hurdles for foreign investments in the EU and Japan have already been very low, the envisaged cut of almost all import taxes and other
trade barriers will foster import and export which usually also has a positive effect on cross-border investments.

 

What significant trends exist in the M&A market presently? Are you seeing these just domestically or internationally?

The number of M&A transactions by Japanese companies hit a record high in 2017. Nevertheless, many Japanese companies still have a significant amount of cash and continue looking for attractive targets. As the Japanese market is shrinking, outbound transactions will remain the main driver for the Japanese M&A market. While Japanese companies have traditionally focused on the US, the number of acquisitions in the EU and South-East Asia has increased in recent years and we expect this trend to continue.

At the same time, we see global private equity funds getting much more active in Japan to diversify their portfolios in times of a relatively strong global economy.

Looking at transaction specifics, we see more and more Japanese companies showing interest in W&I insurance, which has not been common until recently. We expect a growth of the Japanese W&I insurance market in the upcoming years.

 

What are the three biggest challenges to practising M&A in Japan at the moment?

Main challenges in particular in cross-border transactions are cultural differences, a lack of M&A experience of Japanese companies, and the language barrier (many Japanese still have difficulties with the English language). For example, the traditionally complex decision-making process of Japanese companies oftentimes confuses foreign business partners and can lead to misunderstandings or hick-ups in the transaction process if not properly managed. It is, therefore, one of the most important tasks of a good M&A counsel to bridge these cultural differences as intermediator to ensure a smooth transaction.

 

How does M&A fit into the firm as a whole? Is it easy to collaborate with other teams?

Although Nagashima Ohno & Tsunematsu is a full-service law firm covering all relevant areas of business law, M&A has always been one of our strongest pillars. On each transaction we work with a customised team of lawyers to offer seamless service across all relevant areas of law. We believe that close communication and collaboration among all advisor teams is a key to a successful transaction.

 

What advice would you give to the next generation of M&A lawyers?

Apart from a solid and broad legal education, lawyers who are interested in doing M&A should also work on their soft skills. Considering the increase of outbound transactions, being fluent in English is crucial. In addition, obtaining a good understanding of business and the economy is important to quickly grasp and effectively protect and enforce our clients’ interests. A good M&A counsel should have a hands-on mentality and always keep an eye on trends and developments in the market, not only in Japan but also around the rest of the world.

 

What are your predictions for M&A in Japan over the next five years?

M&A will remain one of the most important drivers for Japan’s economy, not least due to the corporate governance reforms putting pressure on companies to improve their performance. Outbound transactions will continue to increase due to the shrinking domestic market. We also expect a certain (but less significant) increase in inbound transactions, mainly by financial investors.

Restructuring is key for Jersey firms

Please give us an overview of the current legal market in Jersey and how any recent developments have impacted your practice?

2017 was a relatively busy year for Jersey M&A activity, reflecting the global market. Despite the current global geopolitical and regulatory concerns, the high number of deals seen in the last three years is looking to continue throughout 2018.

There have been no material legal developments in the M&A space in Jersey. However, a new demerger regime for Jersey companies will come into force on 1 September 2018 (pursuant to the Companies (Demerger) (Jersey) Regulations 2018), which may provide an alternative to a court-sanctioned scheme of arrangement. As these regulations should result in significant cost and time savings for those looking to divide the undertaking, property, rights and/or liabilities of a Jersey company, we may see a rise in the number of restructurings of Jersey companies. We note that certain Jersey companies will not be able to utilize these new regulations, including companies registered to carry out banking business in or from within Jersey and companies holding a permit to carry out insurance business in or from within Jersey.

New limited liability partnerships legislation is also expected to come into force in the second half of 2018, which will also modernise Jersey’s limited liability partnership laws and aims to make Jersey LLPs more competitive for use as a vehicle of choice.


What significant trends exist in the M&A market presently? Are you seeing these just domestically or internationally as well?

We are seeing continued consolidation between fiduciary and fund services providers on the Island. There is also a large amount of insurance restructuring and consolidation taking place, which reflects the position in the UK surrounding Brexit. Jersey is also working to establish itself as a leading FinTech and cryptocurrency hub (with a number of ICOs having occurred on the Island in the first half of 2018), which may open new opportunities for watchful buyers.


What advice would you give to the next generation of M&A lawyers?

When encountering issues on transactions, be practical and commercial – clients generally only want to hear about an issue once you’ve found a suitable workaround solution. In addition, stay informed on the current trends in the market and keep on top of what the big players in the various sectors are doing (reading the Financial Times is useful).