I believe the most important item for general counsel is to be a good role model and especially when protecting against white-collar crime. General counsel, many of whom advise at the board level, are seen as critical enablers to ensure that the company maintains and sustains its ethical behaviour.
Earlier this year nobody knew anything about Covid-19. This has significantly changed the whole business landscape in relation to how parties are conducting business, how people are contracting and how people are negotiating. The role of general counsel is a tough one because you need to protect the company, yet maintain that balance to ensure businesses can survive. We need to behave legally, ethically, morally and responsibly, especially when reputation is at stake. There is no price you can put, as general counsel, on a company’s reputation.
When we look at the risk profile of an organisation, firstly you need to define what risk profile means. In this case, it means what the management has recommended and the Board has approved. That involves a whole set of considerations: business economics, viability, business environment, future technology, to name just a few. Regardless, the risk profile for most organisations in the oil and gas industry has increased simply because earlier in the year, nobody knew about how this pandemic would pan out. Most organisations will have to be agile, and optimise their operations, because their overall risk profile has increased.
Focusing on the economic changes, an industry that has been clearly impacted is the travel industry. Aeroplanes are not flying and as a result are not going to be using as much fuel. As a consequence, oil and gas companies do not need to produce so much jet-fuel for the aeroplanes. It is a domino effect which will snowball and impact our revenue. If we need to shut down equipment, for instance, that will have a ripple effect and this will impact the whole eco-system, right down to the janitor who cleans that equipment.
In addition, as businesses and offices are being run remotely, we are turning to technology to ensure that compliance is being met. To a certain extent, even artificial intelligence in the legal field may become a new norm in the profession.
The risk to cyber security has also increased in recent times. The nature in which business is conducted has changed and now more than 50% of work is done at home. Everything is going digital and that poses a big risk.
When it comes to cyber security, we have several policies to ensure that all our employees are in strict compliance with our own cyber security guidelines and policies. We do many internal phishing campaigns and document who clicks on the links. We make a note, and this will impact their year-end performance. That is how extreme we go to ensure that all our employees abide by our guidelines. Nobody likes it, but it is very effective in driving the message of cyber security home.
These are unique and unprecedented times and Covid-19 has shown the world how the planet has been mistreated. I think because of this, the role of general counsel has expanded in that there is now a higher expectation for general counsel to ensure compliance regulations are adhered to. This is a moral obligation for GCs to do the right thing and use their moral compass.
As lawyers, we are trained to follow certain rules, so, in our legal department, we have created a legal and compliance procedure where there are several legal and compliance checklists. This can be used in relation to a legal dispute, a clarification or whenever someone comes to legal needing an answer. I will conduct a clarification session and ask them to fill in a legal action request form enclosing supporting documents and information. I rely on that to make my legal analysis and make decisions on matters. I have a very clear legal process and I encourage all legal counsel to have that so that we can track and measure our performance. I need to know all the information and be satisfied with the facts before I can pass judgement. The way I think about it is it’s like going to the doctor: Before you see the doctor you need to register yourself, your blood pressure is taken and your weight is checked. The doctor would then read your file and know what is going on before making a diagnosis.
That is the process I have put forward for legal and compliance, but when it comes to compliance, there is a bit more structure in terms of process. I will take the laws and legislation which effect oil and gas operations, and develop a compliance checklist to ensure everything is compliant with the law. The respective stakeholders will then have to complete their yearly sign-off to ensure compliance.
Also, anti-bribery and corruption is always an issue of concern for many fast-moving organisations. When you move fast, there will be people under pressure who are tempted to cut corners and take shortcuts. This is when the problems start. I think bribery and corruption is on the rise: I do not want to be negative, but this is just what I have seen having gone through two economic crises in the past. Whenever there is an economic crisis, there is always backlash and an increase in bribery and corruption. I do not know why, but this seems to always be the case. I have seen it so many times and it is something we do not like, but as general counsel we need to ensure the company has sufficient systems in place. This is particularly relevant to cyber security, which is an area that can be easily crippled in uncertain economic conditions.
In current times, businesses are going to be impacted any way you look at it. General counsel are going to be pressured. I believe a tsunami is coming that will affect economic conditions. The skies ahead are gloomy and there is going to be a storm; you need to have an umbrella, when you look at the future. In the end, general counsel will always aim to follow the spirit of the law. What is the spirit of the law? It is to be fair, that rule of law principle needs to be upheld by everyone.