You may ask yourself, how did I get here? Well, quite easily really; a flight to Inverness and then a three-hour drive through some of the most magnificent scenery I have ever seen.

Like all of the proverbial best-laid, it didn’t go quite to plan. Booking The Three Chimneys on the strength of its reputation as a culinary hot-spot I tried not to be too downhearted when C pointed out that they had lost their star chef. I hadn’t realised, possibly because some Google searches still refer to it as Michelin-starred.

Michael Smith, the chef who won it for them, left to set up his own restaurant, which opened in March this year. Late to the party, as so often, my dinner-antennae had failed miserably.

And whilst the hotel, or restaurant with rooms, as it prefers to be known, is stylish and charming and the staff incredibly helpful, considerate and down to earth, it seems to me that the kitchen hasn’t quite managed to recover from the loss of Mr Smith. The menu has ambition not quite realised in the execution. It’s that busy, cluttered style of cooking that so few do properly. I wish they would just simplify it, use the glorious local produce on offer and not try quite so hard to do the Michelin thing.

A sharp-eyed friend noticed that the former chef had decamped to Loch Bay restaurant, in the tiny village of Stein, not half an hour away from the hotel. A website not quite past the “under construction” stage and a dodgy internet signal meant that I needed to take direct action. I drive there.

“Is there any way you can squeeze us in?” I say, in that slightly wheedling voice I associate with my mother. “No, we are completely full,” he says. Sensing my crushing disappointment, he looks again and as if by magic, there is a table available for that evening, at 6.15, to be vacated by 8.15.

You will all know by now that this is my ideal dining slot and short of delay disaster on the part of the kitchen, eating my meal is not going to take two hours.

Loch Bay has, at a squeeze, 18 covers, with a couple of tables outside you could have a drink at before your meal on a rare sunny day. It’s a cosy, dark, wood-panelled space, in what would formerly have been a cottage, overlooking the bay in the little village of Stein.

There are two menus, a seafood tasting at £55, and a set three-course at £37.50.

Because I do not know when we might be coming back and I want to get as much of this as I can, I choose the tasting menu. C is pulling a face but then, that’s not news.

Crunchy-coated salt herrings and mussels come in a small dish, to dip into homemade mayonnaise. The coating has hints of nuttiness. There is nothing not to like, unless you are C and you don’t like salt herrings. Opportunity knocks and I finish them.

We can’t wait for the soup before demolishing the homemade bread but it doesn’t matter. A soup filled with fat springy mussels, squid, garlic, haricot beans tomatoes and basil, this is like a Scottish soupe au Pistou, fresh with vibrant flavours and a clear, flavourful stock. We look at each other and nod. There is no mistaking the sure hand in the kitchen. It may not be what you think of as Michelin style (no fuss, no over-complicating on the plate, no bits and pieces that you don’t really need) but it is Michelin quality, to the extent that means something.

A brown crab risotto with razor clam, fennel and chilli comes simply presented, the razor clam bridging the plate. I taste the risotto first and it is a perfect example of that combination of simple ingredients turning into the sublime. The crab is almost melted into the buttery squidginess of the rice, which is studded with crunchy bits of fennel. On its own, the risotto would be a great dish. I tip a little of the razor clam onto the rice. Perfectly fresh, delicate clam chunks, olive oil, chilli and fennel fronds are a perfect partner to the rich rice. It’s a combination of genius, without doubt one of the best dishes I’ve had all year.

The large bowl of bourride is such a success I have it the next day for lunch as well. The tasting menu sees it pimped-up from the standard menu version by way of added lobster and a fat cooked oyster. A local crayfish sits on a mound of paper-thin fennel slices, a fat hunk of firm white fish (no, I’m not sure), more mussels, creamy saffron-infused mashed potato and a rich tomato-based stock. It is a meal in itself, despite being only one of six courses.

Dessert brings a choice. A three-in-one of lemon syllabub, chocolate slab and an almond tart with some strawberries on the side, or clootie dumpling, with whisky cream and custard. You know where this is going. The steamed dumpling is a sort of lighter version of Christmas pudding, wrapped in a cloth, the “clootie”. I am partial to a steamed pudding, I can’t lie.

“You’re not going to finish that are you?” says C, as I demolish half of the dumpling.

“No, of course not,” I say, in a rare moment of seeing myself for the pig that I am. I could easily have eaten all of it and also the remainder of his dessert, left partly uneaten, because he is “full”, he tells me. Pah. He doesn’t know what full is.

I have the trio the next day and C has a massive chocolate brownie with proper chocolate sauce that I eat from the jug by pouring it directly onto my spoon. I’m not proud. Also: they brought me sea salted chips, on the house, because they saw me ask C if he wanted them with his beef and sensed my sadness when he said declined. Restaurants that read your mind, what could be better?

And because you need to know, we also had very good coffee and cake at the Red Roof Inn, in Glendale. Their coffee comes from my favourite producer, Workshop coffee, and the cakes are homemade.  Some are even gluten-free but I forgive them for that.

Lobster-a plenty and oysters shucked in front of you are also to be had at The Oyster Shed, where afterwards you will need to go on the Talisker Tasting tour. A whole lobster and chips for £16.50. Worth a detour.

I expect it helped that the sun shone every day we were there and that is clearly an aberration, but Skye is the sort of place where you’ll be made very welcome in the inevitable storm and with a little hunting around there is good food to be had in some of the most unlikely locations.

Letting the days go by, in Skye, scenery to take your breath away, food to feed your soul or should that be the other way round?  Both work.

Secretary of State for Communities and Local Government v BDW [2016] EWCA Civ 493 is a case about the application of the cornerstone of development management decisions: s38(6) Planning and Compulsory Purchase Act 2004.  It is of some practical importance to practitioners, given its subject matter, and because Lord Justice Lindblom does two things in the judgment.  Firstly, he re-emphasises that the approach to planning decisions is not rigid.  The decision maker has some latitude in how to approach the policy position.  Secondly, he very helpfully and succinctly summarises the law.  He said this:

“Without seeking to be exhaustive, I think there are five things one can fairly say in the light of the authorities.

“First, the section 38(6) duty is a duty to make a decision (or “determination”) by giving the development plan priority, but weighing all other material considerations in the balance to establish whether the decision should be made, as the statute presumes, in accordance with the plan.  Secondly, therefore, the decision-maker must understand the relevant provisions of the plan, recognising that they may sometimes pull in different directions.  Thirdly, section 38(6) does not prescribe the way in which the decision-maker is to go about discharging the duty. It does not specify, for all cases, a two-stage exercise, in which, first, the decision-maker decides “whether the development plan should or should not be accorded its statutory priority”, and secondly, “if he decides that it should not be given that priority it should be put aside and attention concentrated upon the material factors which remain for consideration”. Fourthly, however, the duty can only be properly performed if the decision-maker, in the course of making the decision, establishes whether or not the proposal accords with the development plan as a whole. And fifthly, the duty under section 38(6) is not displaced or modified by government policy in the NPPF. Such policy does not have the force of statute. Nor does it have the same status in the statutory scheme as the development plan. Under section 70(2) of the 1990 Act and section 38(6) of the 2004 Act, its relevance to a planning decision is as one of the other material considerations to be weighed in the balance.”

 Richard Kimblin QC appeared for the Secretary of State.

Hugh Richards appeared for BDW.

A woman who used bleach to poison colleagues at a care home has been given a life sentence.

It was heard that Melissa Swift attempted to murder three colleagues at Goldfield Court in West Bromwich in July 2014 by adding bottles of bleach to water jugs in a fridge.

Swift, from West Bromwich, was arrested in August 2014 after the police had been informed that several people from the West Bromwich home has been taken ill with food poisoning type symptoms.

At Birmingham Crown Court Swift was handed a life sentence on May 27 2016, and will serve a minimum of eight years.

This article was reported by the Birmingham Mail, BBC News and Daily Mail.

Adrian Keeling QC and Matthew Brook prosecuted in this case. Both Adrian and Matthew are part of the Criminal Law Group at No5 Chambers.

Tameka Davis was named a director of the British Virgin Islands’ Women’s Offshore Network (“WON”).

WON launched in 2014 as a networking organisation for women in BVI’s financial services sector. The organisation hosts events and other seminars, providing ways for women to stay connected and build relationships in the local business community as well as encourage bespoke professional development and networking resources.

Clio is inviting exceptional industry leaders, entrepreneurs, and innovators to speak at the Clio Cloud Conference who will provide a learning experience covering a great range of topics that are essential to help grow and simplify your practice.

The first round of keynote and session speakers for 2016 are:

Jack Newton
CEO at Clio

Jack Newton is the founder of Clio and a pioneer of cloud-based practice management. Jack has spearheaded efforts to educate the legal community on the security­­, ethics­­, and privacy­­ related issues surrounding cloud computing, and has become a nationally recognized writer and speaker on these topics. Jack also co­­founded and is acting President of the Legal Cloud
Computing Association (LCCA), a consortium of leading online legal service providers with a mandate to help accelerate the adoption of cloud technology in the legal industry.

Ken Adams
Attorney & Author of A Manual of Style for Contract Drafting

Ken Adams isn’t a leading authority on the building blocks of contract language, he is theauthority. Besides being a deal lawyer, Ken is a writerly sort with a serious aversion to inefficiency in public affairs. He has spent the past twenty years wrestling with the nuances of indemnify and hold harmless and the like, a task evidently of limited appeal to others. Ken is the author of the groundbreaking book A Manual of Style for Contract Drafting (3d ed. 2013). He gives seminars worldwide and helps companies improve their contracts.

Darth Vaughn
Attorney & Principal with Procertas

Darth Vaughn is a principal with Procertas (Professional Certifications and Technology Assessments) and a trial attorney in Southern California. As a former business technology consultant, Darth is passionate about keeping companies growing and prospering. To that end, he promotes improving the quality and efficiency of legal professionals through the proper use of basic technology tools. Darth was honored in 2014 by the National Bar Association with the Ronda F. Williams Emerging Leader Award and was selected as a Super Lawyers Rising Star in both 2015 and 2016.

George Psiharis
VP Business Development at Clio

George Psiharis is the Vice President of Business Development at Clio. Specializing in customer development and data operations, George has worked extensively with law schools, bar associations, and other legal professionals to help make information on cloud computing and law firm economics increasingly accessible.

Sarah Glassmeyer
Attorney & Librarian

Sarah Glassmeyer is a lawyer and librarian currently working as a research fellow in the Harvard Library Innovation Lab. She is a passionate believer in the idea that access to information is access to justice. Sarah’s research covers the accessibility and openness of law on the Internet and seeks to find ways to make it more useable to the average citizen.

David Leary
Small Business Ecosystem Evangelist at Intuit

David Leary is a Small Business Ecosystem Evangelist at Intuit and innovative force in the small business accounting world. His business sense, vast technical knowledge, and domain expertise have helped bridge the gap between developers, small business owners, and accountants. In his current role, David focuses on bringing third-party SaaS solutions that work with QuickBooks Online to Apps.com. In 2015, David was named by Accounting Today as a “One to Watch” in their Top 100 Most Influential People issue.

Samantha Collier
Consultant & Author of Social Media for Law Firms blog

Samantha Collier is a top Social Media and Content Marketing Specialist. Experienced in all aspects of the digital marketing world, Samantha has a keen understanding of social media content management as it applies to law firms. Leveraging her background in legal business development, Samantha is the author the of award-winning blog Social Media for Law Firms.  Today, Samantha works with lawyers across North America and focuses on how to use social media to improve your firm’s bottom line.

A legal conference unlike any other

The Clio Cloud Conference delivers unique and valuable content for every area within the practice of law. Each day, you’ll choose between four exceptional educational tracks that will teach you about legal technology, running a business, and so much more.  Take a look at our2015 highlights for a taste of what you can expect at this year’s Clio Cloud Conference.

This year you will learn from the nation’s best and brightest minds from the legal, business, and technology worlds.Plus, you’ll enjoy incredible networking events, earn CLE credit, and learn how to balance your career and personal life.Tickets are selling fast, get yours today!

Khaitan & Co advised Tata Communications Limited in relation to the sale of its 74% stake in Tata Communication’s data centre business in India and Singapore to Singapore Technologies Telemedia, Singapore for approximately $640m.

Sharad Abhyankar, Partner and Mehul Shah, Partner led the transaction and advised on the Corporate aspects with assistance from Abhishek Sharma, Partner on the Real Estate aspects; Adheesh Nargolkar, Partner and Shailendra Bhandara, Counsel on the Intellectual property aspects and Joy Jacob, Partner on Infrastructure Laws.

Khaitan & Co advised Sun Pharma Advanced Research Company Limited in relation to its $38.46m Rights issue. Sun Pharma Advanced Research Company Limited is a pharma research and drug discovery company and part of the leading speciality pharma company, Sun Pharmaceutical Industries Ltd.

Nikhilesh Panchal, Partner and Madhur Kohli, Associate Partner represented the client on the transaction.

In the week that retailer BHS finally folded, after administrators failed to find a buyer, our top story was the news that MPs had ordered Olswang to reveal details of the fees it was paid for working on the company’s sale in 2015.

The story topped a varied list of news. The second most-popular story this week was the revelation that Linklaters is looking to rebuild its private client team, several years after running the group down.

Our cover feature on 30 May featured Deutsche Bank’s head of strategy Emma Slatter, who also announced her departure from the bank this week after only six months in the role.

There were several major lateral hires in the course of the week. Notably Norton Rose Fulbright took Sidley Austin Brown & Wood’s entire US public finance team, using the hires as an opportunity to launch in San Francisco.

Meanwhile Latham & Watkins has recruited Sophie Lamb from Debevoise & Plimpton to head up its London arbitration group, and Addleshaw Goddard is on the hunt for a chief operating officer to help guide it through its next stage of evolution.

Ashurst is also evolving, appointing corporate head Simon Beddow as its first-ever London managing partner in an overhaul of its structure.

Further north Manchester firm Linder Myers went into pre-pack administration last week, two years after narrowly avoiding collapse through a rescue sale.

Finally Slaughter and May was mourning its respected former corporate head Frances Murphy, who died after a long illness.

A roundtable event organised by BLP in conjunction with The Lawyer at the General Counsel Strategy Summit in Portugal, investigated why firms seek to innovate and how they go about implementing change. A panel of counsel was asked how their firms overcome inertia or obstacles that might exist either within the department or in the wider business environment, and how they went about measuring the success of their innovation programmes and the key performance indicators of their progress.

Neville Eisenberg, senior partner, BLP: Let’s start off by hearing where you’re coming from.

Mollie Stoker, general counsel, Lucozade Ribena Suntory: We’re a new company, about two and a half years’ old, which came about when Suntory bought Ribena and Lucozade from GSK. We’ve had to build every bit of business process and structure from scratch so I’m interested in hearing other people’s experiences.

“I know everyone is very down on procurement teams but they’re helpful in finding good suppliers, running a proper process, and getting the right tests done”

Mollie Stoker

Emma Park, general counsel, GC Aesthetics: I joined our company a year ago. It’s growing fast, having bought two established manufacturers. It’s an enthusiastic company trying to do a lot very quickly but the processes were not in place so I’ve spent the past year trying to build them.

Lauren Ekon, general counsel, Investec Bank: The biggest challenge for me is the senior manager regime. I’m accountable for the entire legal team and I have 50 to 60 people reporting to me. However, I would still like to work on transactions, so I’m looking at partnering with law firms and other third parties to help me work out how to carry out my responsibilities without
micro-managing 50-odd people.

Kathryn Higgs, senior counsel, ethics and compliance, Tesco: I’ve been at Tesco for three months. I’m responsible for the roll-out of a
preventative risk and ethics function. I’m looking at ways to incorporate technology.

Chris Fowler, general counsel, UK commercial and legal services, BT: I’m always interested in understanding how to do things differently and to understand what works and what doesn’t work. But most of all it’s about learning not to be frightened of failing.

“Procurement wanted to analyse my legal spend but I said there was no way they were going anywhere near that”

Lauren Ekon

Neville Eisenberg, BLP: Where does the pressure to change come from – the business or the legal department?

Jagjit Singh Nazran, head of legal and company secretary, Santander Asset Management UK: In our view there was no choice but to innovate against the cost structure we confronted. We’re not going to increase headcount. The major M&A transaction I worked on lasted longer than we thought so we were forced to be creative, thinking up ways of being efficient and building up templates from a variety of sources.

Lauren Ekon, Investec Bank: The pressure has largely come from the regulatory environment, so we haven’t had a choice. Whether it’s competition laws or the Bribery Act, the onus is on the institution. So we’re working with KPMG and BLP to adapt to that regulatory environment. It’s basically about asking how to keep out of jail. You still have to mitigate risk and spend a lot more money on having the systems in place, such as contract management tools, procurement and so on, which we didn’t have.

Kathryn Higgs, Tesco: The rise of the regulators is driving this. They’re focused on data and evidence. Audit findings are a very helpful motivator because you can see how well programmes are being implemented around the world. And there’s pressure from the business as well. Of course, businesses have finite resources, so you have to look for data ideas and technical solutions.

Neville Eisenberg, BLP: With all the pressure that exists in the business for change and improvement in your area, how do you go about selecting the products that you might deploy? Do you go direct to suppliers or talk to other in-house legal departments?

Kathryn Higgs, Tesco: I’m looking into launching a due diligence platform globally across the business covering all reputational issues – not just bribery and corruption, but modern slavery issues as well. How do I do it? I ask around and find out who people use. We’ve met potential suppliers and we’re getting demonstrations of systems. The next stage is a lot of engagement with the stakeholders to make sure that the solution we’re going with is going to work.

The due diligence you have to get done if you want to buy goods is very different from what you would look at if you want them to interact with a minister, and figuring out how to integrate it with the business involves talking to support functions in all the overseas operations that constitute the business.

“We had a review by KPMG on our contracts to investigate [our compliance] process so now we do have some structure and process”

Vivienne Vuckovic

Neville Eisenberg, BLP: Does anyone else have experiences along this line?

Mollie Stoker, Lucozade Ribena Suntory: I’d probably use my procurement team. I know everyone is very down on procurement teams but they’re helpful in finding good suppliers, running a proper process, and getting the right tests done. We’re also instituting a due diligence platform.

Neville Eisenberg, BLP: Law firms have a lot to learn about what role procurement has in modern companies and could do with some help from in-house departments in order to navigate a world in which procurement is important.

Lauren Ekon, Investec Bank: Procurement wanted to analyse my legal spend but I said there was no way they were going anywhere near that because they don’t necessarily understand what’s involved. Say, for example, it was a massive bill from Linklaters, they might recommend using such and such a firm in the Midlands instead, which might not be the most appropriate solution. We’ve got a repository where our own lawyers fill in details about firms and any problems they might have, so that I can see what is going on.

Iain MacDonald, general counsel, GE Grid Solutions: On the subject of innovation in legal departments, taking a macro view depends on the culture of the business.

I’ve just gone from a French environment to an American one and it’s like going from one extreme to the other. Everything I’d been trying to do for the past 13 years with regard to training, broadening and innovating with colleagues in the management team now comes as second nature to the new management team. At GE you’re given authority to make changes.

Emma Park, GC Aesthetics: When I joined GC Aesthetics, I brought processes over into a smaller environment, and scaled it down. I had to think about driving value and controlling costs. It doesn’t matter what size the model is. There was no contract database in existence so I undertook an immediate due diligence exercise on our distribution contacts.

The next step is to introduce technology to drive efficiency. We now have legal purchase orders. Instead of having engagement letters for every matter, there’s a page template. You have to fill in the details, ask firms to scope the matter and give fixed or capped quotes – that’s mandatory. There’s scope for agreeing assumptions but it’s about driving some rigour. I’ve now got a record of all my spread of legal work and quotes. Non-disclosure agreements were first on the hit list. I don’t want my desk full of them. I refreshed all the templates and they are going on a shared server with guidance notes. It’s like insourcing commoditised work.

We work in 75 countries, often with two distributors or more in each jurisdiction. All that needs a contract management programme. It’s being able to have quick visibility over legal matters, taking things off desks and allowing me to work on strategic stuff. It’s about redefining the role of the legal function.

Neville Eisenberg, BLP: One of the biggest challenges these days is reducing costs while adding value. However, adding value has become a much more sophisticated and complex topic than it used to be when it was pretty much limited to secondments and discounts. These days it could be a whole range of propositions of collaborating and developing ways to become more efficient.

Risk management is increasingly important and is now more about trying to implement preventative measures. There’s an insight piece too – this used to be limited to training programmes but increasingly our clients are looking for a range of different offerings. Data analytics are increasingly important because of the volumes of activity, and firms can develop insights that can be helpful to clients. There are opportunities to collaborate with external lawyers rather than the traditional outsourcing and supply relationships.

In terms of innovation, legal knowledge and advice, it’s about trying to find more effective ways of delivering advice. So, for example, a few years ago we tried to get our lawyers to present advice visually as well as in words, and that means using pictures, graphs and design so that legal advice could be far more intelligible to business people.

Chris Fowler, BT: The target we have year on year, as with all corporates, is to drive down costs by 5 per cent. So we’re always looking at how to do things differently and how we challenge established ways of working. What’s worked for us is doing it from the bottom up, and giving people  in the team the incentive to come up with ways of getting things done better. One guy on our team suggested we put all the governance approvals on Sharepoint. Previously we had done everything by exchange of emails. It was a really simple change. It was complicated and labour intensive in terms of the workflow, but now we can authorise actions much more quickly. The teams are happier because this was slowing them down and now our decision-making is quicker.

So innovation can come from the ground up. They have got great ideas because they’re living it. Any programme of change is like an election. You get your believers, your non-believers and the middle ground, and it’s the middle ground you have to spend time with. The biggest change we have had to make is managing the function rather than managing work, and that takes a lot of doing. You need top-down approval for that, otherwise the natural tendency is not to want to let go.

Lauren Ekon, Investec Bank: When you put in Sharepoint how did you deal with all the legacy stuff?

Chris Fowler, BT: We had to mandate certain things. We agreed on what we would use from a reporting perspective. We used to have a Heath Robinson system where everyone did it their own way, and everyone had their own Word template. We said, here are three or four things which from a systems perspective we are reporting and focusing on. We introduced time recording, not to log hours but to log what the team were working on. We were all a bit wary of it but when we pared it back we got a lot of feedback from the team saying, actually we quite like it because we use it as a tool to see who was overstretching themselves and who we maybe need to have a conversation with.

So I personally think the best stuff comes from people in the team if they feel encouraged to do it and if they have incentive to do it, because they often understand the business far better than someone managing them.

We’re more focused now on performance management. It used to be one of those things that everyone talked about but nobody actually did it. But we genuinely spend a lot of time now rewarding our top performers in terms of better annual bonuses and better annual pay. That, conversely, also means being tougher on our lower performers. It’s a horrible phrase but I do believe in healthy churn, bringing people in with fresh ideas, and moving people up and moving people out. That’s not easy because performance management for lawyers is like trench warfare.

Neville Eisenberg, BLP: Do law firms play any part in the processes you are running?

Lauren Ekon, Investec Bank: We do a lot with BLP regarding our policies and procedures. I’m not advertising, I’m just saying how it works in practice. They helped us on a competition programme that got a lot of traction and was rolled out into a great training programme. To be honest I could not have done that on my own.

Jagjit Singh Nazran, Santander Asset Management UK: When it comes to working and partnering with external lawyers, we don’t have much room for choice as our private equity [owners] dictate which law firms we must pick as preferred suppliers and we pick up the cost. Our job is to go back and renegotiate that fee.

Igor Tot, general counsel, Central and Eastern Europe and Russia, Dell: For us innovation should be about simplicity, which may sound contradictory because one might think that innovation is complex. However, we try to simplify as much as we can because business is already so complicated.

Nuno Bastos, general counsel and chief compliance officer, Zurich Insurance, Portugal: It’s easy to follow one standard procedure but there should also be an exception to each procedural process so that things can get customised locally. On the whole, I am in favour of a centralised perspective, which provides assurance and stability. However, local perspective and local insight are also important.

Vivienne Vuckovic, head of regulatory control, AXA Travel: I joined Axa Travel a year ago and I’ve had to restructure. I’ve been given the task of setting up a legal, compliance and risk team, so I’ve had to put in new processes. In a small team the big IT solutions aren’t going to work but it’s good to have certain processes in place in terms of the way things are done. KPMG reviewed our contracts to investigate that process, so now we do have some structure and process. I’ve also been looking at legal firms and more global reach and considering who I can use in different jurisdictions.

Mollie Stoker, Lucozade Ribena Suntory: My team’s personal objectives for the year are about improving workflows and they’re measured and given bonuses on this basis. Working with the sales team, we had some basic but very efficient solutions, such as frequently asked questions, using Sharepoint, and trying to deliver training in a more engaging way.

We are also looking at apps, particularly on
incident management and compliance training. We’ve created material that we want to develop as an app by the end of the year, so holding those documents but sharing them. One of our law firms is helping us with that. They’re doing it
gratis because we give them so much work.

Compliance training is also being developed on an app. We started by asking where we were going to keep all this information. What if it was in a paper folder and the office blew up, or what if it was on a laptop that got lost or stolen? Then we realised that what people carry around with them all the time is their phones. It’s about thinking through everything we do.

We’re looking at automatic templates and the best way for the team to access information. So instead of handouts from a training session that all end up in the bin, information such as competition dos and don’ts would be on the phone. We have a PSL on our team who reshapes everything we do so that it can be used more efficiently. Our sales team is on the road all the time rather than in the office so they need to access it.

But innovation is not all about technology. For me it is a way of thinking and doing things, and gaining visibility in the business. It’s also about how to give people the incentive to think that way and not be bound by the old ways. That’s the question we all need to ask.

Click to enlarge

The blockchain is fast becoming a symbol of the fourth industrial revolution. After steam, electricity and computing, this is the term coined by Davos founder Klaus Schwab for the deep digital transformation that Schwab says is now upon us. It is heralded as the next big disruptor, it’s got geeks and banks in a tizzy, but as yet there’s little mainstream evidence of major impact.

So what is the blockchain? The analogy is the finance director’s (FD) sales ledger. It’s a comprehensive, always up-to-date accounting record of who holds what or who transferred what to whom. The ‘what’ in the blockchain is pretty much anything that can be recorded – physical assets like diamonds (blockchain is used by Everledger to certify origination of 900,000 diamonds) and land (where blockchain will be a factor in the upcoming sale of the Land Registry) as well as intangibles like electronic cash (the rationale of Bitcoin, the blockchain’s orginator), transactions in securities, derivatives and other financial instruments and government interaction with citizens.

The clever bit is that it all works through cryptography – authenticating parties’ identities and creating immutable hashes (digests) of each ledger record, the current page of records (block) and the binding that links (chains) each block to the earlier ones. The really clever bit is that instead of the FD keeping one instance as ‘single version of the truth’, the blockchain ledger is distributed: a complete, current copy is held on the computers of each of the network participants (miners) who help keep it up to date. This is deliberate and serves to insulate the integrity of the ledger against cyberattack as any hacker would have to control more than half the network’s computing capacity to change any record in the block.

Hurdles to clear

But blockchain is in its infancy, and significant hurdles to commercial adoption remain. First, there’s a lot for regulators to get to grips with. Second, blockchain is fragmented. There are many different ecosystems, of which the best known are the bank-led R3, the exchange-led Post-Trade Distributed Ledger Working Group and China’s Zhong GuanCun Block Chain Industry Alliance. These will need to agree common standards to all work together. Progress is being made here and in April the ISO (International Organisation for Standardisation) received formal requests to set up a new field of technical activity (the precursor to ISO standard setting) on blockchain and electronic distributed ledger technologies.

“Blockchain will enable all supply-side listings for a given service to be recorded on the ledger for users to filter and buy according to their selected criteria”

The third hurdle is scalability. The blockchain is, deliberately, enormously power hungry. A 2014 report from the National University of Ireland Maynooth showed that the total energy consumption of Bitcoin mining was comparable with Ireland’s total electricity usage. So more efficient power usage will be key to bigger blockchains.

Centralised platforms beware

Remove these blockers and the blockchain evangelists start to get a bit wilder eyed, speaking of the disintermediators disintermediated, Uber outmanubered, Airbnb airbnbrushed out and TaskRabitt outrun by the blockchain bunny.  What they mean is that, just as these centralised internet platforms aggregated supply and demand to disrupt taxi companies, hotels and recruitment firms, so the blockchain will enable all supply-side listings and reviews for a given service to be recorded on the ledger for users to filter, display and buy according to their selected criteria. All this will be made possible by blockchain’s built-in technological integrity that enables transactions to be made not only securely but also ‘trustlessly’, without any need for any intermediation at all.

Going a step further, the blockchain paves the way for ‘smart contracts’, where the computer can make, verify and enforce an agreement. Next generation blockchain Ethereum, described by the Economist as ‘the most ambitious crypto-ledger project’, is looking to introduce functionality that is designed to verify a party’s contractual performance. And going further still, on 28 May, funding was reported to be closed having raised $150m in Ether, Ethereum’s electronic currency, for The DAO (short for Decentralised Autonomous Organisation), a new type of crowdsourced/venture capital-type fund existing entirely in software on the Ethereum blockchain and which will make all its decisions and commitments wholly through smart contracts.

The future here today or science fiction? Welcome to the revolution.

The Lawyer Awards’ Litigation Team of the Year is one of the most coveted prizes in the UK disputes market. In just a few short weeks a new team will be crowned champions, joining an impressive list of previous victors.

Clyde & Co triumphed last year for its work on the case of Philip Sebry v Companies House. The firm won £9m in damages for its client – the victim of a typo that forced his business into administration – and succeeded in setting a precedent to help prevent future errors by government.

This year our external panel of judges has narrowed the potential winners in this category down to seven nominations.

The shortlist comprises Clyde & Co, Freshfields Bruckhaus Deringer, Herbert Smith Freehills and Jones Day (in a joint submission), Hill Dickinson, Hogan Lovells, Irwin Mitchell and Olswang.

Clyde & Co

A landmark judgment for an NHS trust could save the cash-strapped health service hundreds of millions of pounds thanks to Clyde & Co’s defence of a clinical negligence claim last August.

The court dismissed a mother’s claim over the alleged failure by a trust in East Kent to detect a chromosomal abnormality in her pregnancy, ruling the abnormality was so rare and the risk so low that it was reasonable not to advise the mother of such theoretical risks.

With its client accused of causing great financial difficulty to a family by not allowing it the chance to abort their disabled child, Clydes had to deal with an extremely sensitive, high-profile dispute.

The case was one of the first consent cases to be tried following the much-publicised Supreme Court decision in Montgomery v Lanarkshire, which held that women have a right to information about “any material risk” in order to make decisions about how to give birth.

Following on from the East Kent decision it is now clear a patient cannot rely on Montgomery to demand an absolute right to know of all risks.

The Supreme Court decision threw a spanner in the works in the run-up to the trial, with Clydes partner Claire Petts having to significantly adapt her argument. The decision has already been relied upon by subsequent cases to limit the exposure of the NHS in similar cases.

Freshfields Bruckhaus Deringer

It has been nearly a decade since the financial crisis but the legal issues related to the world’s biggest ever insolvency are still rumbling on.

Freshfields has been nominated for its work on the vast and thorny Lehman Brothers administration dispute, which centres on the bank’s main trading entity, Lehman Brothers International Europe (LBIE). When the entity repaid its creditors in 2014 there was a surplus of around £8bn and complex litigation ensued to determine who should be paid from it.

Named Waterfall I and Waterfall II, the proceedings are continuing through this year and into next. The scale and financial significance of these cases keeps them on the list of ones to watch, but the dispute also breaks new ground as it is the only solvent administration dispute of this size with no provisions in the Insolvency Rules that apply. Lawyers are delving into case law from hundreds of years ago to find the answers to 21st century problems arising from the collapse of a global bank.

The work is also significant for Freshfields, which had no relationship with lead creditor Carval prior to the Lehman insolvency. While running a complex dispute with multiple law firms, Freshfields has set up a consultation process with firms including Morrison & Foerster and Ropes & Grey so creditors speak with a single voice during and in the run-up to court proceedings.

Herbert Smith Freehills and Jones Day

Herbert Smith Freehills (HSF) and Jones Day will forever hold the accolade of having acted on the UK’s first deferred prosecution agreement (DPA) after ICBC Standard Bank settled with the Serious Fraud Office (SFO).

The deal ended a year of speculation over which major corporate would be first to sign a plea agreement with the SFO after DPAs were introduced in the UK in 2014.

It also prevented the firms’ client from lengthy and costly prosecutions in the UK and US, resulted in no criminal findings against the client or disbarment from public contracts, and allowed business certainty.

HSF partner Rod Fletcher led for Standard Bank, while Jones Day partners Sion Richards and Adam Brown advised its parent group and subsidiaries in Africa.

ICBC Standard Bank is the UK subsidiary of South Africa’s largest banking group. It was fined £7.6m by the Financial Conduct Authority in January 2014 for failings related to its anti-money laundering policies.

Lord Justice Leveson, who signed off on the deal, praised the actions of the bank and lawyers on both sides in coming to the agreement. He said lawyers’ “attention to detail and to ensuring that all sides of the argument are properly reflected should create the benchmark against which future such applications may fall to be assessed”.

SFO director David Green QC said the “landmark DPA will serve as a template for future agreements”.

Hill Dickinson

Hill Dickinson provided difficult advice in tragic circumstances, a high level of media interest, access to justice issues and being in the public spotlight during its representation of the late PC David Rathband.

Rathband was shot and blinded while on duty by Raoul Moat, who was on the run from police. It later emerged Moat had threatened to kill or injure officers in phone calls to police. Rathband claimed he was given no warning of such threats and sought damages from his former employer.

The case was a departure from Hill Dickinson’s usual roster, but it invoked significant arguments about the scope of the police’s obligations to its officers, run by lead partner Peter Southeran.

Rathband tragically committed suicide after commencing proceedings and Hill Dickinson continued the case by acting on behalf of his estate and dependants.

The much-publicised case focused on a period of less that 15 minutes – from a 999 call made by Moat to the shooting of Rathband – but involved 30 witnesses, reams of evidence and endless transcripts of phone calls and emails related to the incident.

As Rathband was unable to fund the litigation privately the firm worked on a conditional fee arrangement and also helped secure after-the-event (ATE) insurance.

Despite not winning the case, Hill Dickinson’s work is considered of great significant to the general public due to the large number of welfare-related issued involved.

Hogan Lovells

Hogan Lovells has secured a number of significant wins for its client the Russian Deposit Insurance Agency (DIA) in its three-year fight with ‘Putin’s banker’ Sergei Pugachev.

The DIA sought to take Pugachev to task for his role in the collapse of Mezhprombank, which went into liquidation in 2010 with a deficit of $2bn (£1.4bn).

Working flat out on of the biggest Russian disputes before the High Court the firm has been in court two or three times a week for nearly 18 months, securing around 40 judgments over the course of the case, including several Court of Appeal (CoA) decisions and a groundbreaking £1bn global freezing order.

Lead partner Michael Roberts has submitted more than 30 affidavits and witness statements, and even personally handed Pugachev a major injunction at a flower stand on the Fulham Road. He also successfully secured a High Court order for Pugachev to give up his Russian and French passports while the case continued.

The English court battle culminated in a ruling in February sentencing Pugachev to two years’ imprisonment for 12 counts of contempt of court, the maximum sentence permitted. The charges against him included lying under oath, selling assets in breach of a freezing junction and failing to disclose information on $150m of hidden assets.

Irwin Mitchell

Last year marked the first time in a generation that the Supreme Court heard cases on the issue of non-disclosure in divorce proceedings.

Irwin Mitchell head of Manchester family law Ros Bever led on two of those cases in 12 months, working tirelessly to achieve a victory for her clients, Mrs Sharland and Mrs Gohil, last October.

Both women had previously secured financial settlements on divorce based on fraudulent evidence and sought to have the orders overturned due to non-disclosure. In both cases the CoA had refused to set aside the orders on the basis the court would not have made substantially different rulings have the full pictures been known at the time.

Bever succeeded in getting both CoA decisions overturned and both cases have been remitted for retrials. The outcomes provided a landmark ruling on each party’s right to a fair trial with accurate disclosure in divorce proceedings.

In the Gohil case Bever was instructed at the 11th hour, when public funding was not extended to cover the Supreme Court appeal. Bever took the instruction while on holiday but still had the written appeal submitted within 10 days. The rulings are a unique and pioneering development for the family law market.

Olswang

Olswang led on a landmark test case against Google that marked the first time the internet giant has been threatened with group litigation, over its breach of UK users’ privacy relating to online advertising.

The dispute follows Google being fined $22.5m by US authorities in 2012 for breaching the default privacy settings of users with Apple devices. UK regulators estimate there could be 10 million affected Britons.

The Olswang team, led by partner Dan Tench, has already seen off a jurisdictional challenge by Google, which wanted the cases against it heard in California where it is headquartered.

The battle went all the way to the Supreme Court and Olswang’s victory marked a court ruling that misuse of private information is to be considered a tort for the purposes of serving a party abroad. This was the first time the English courts had recognised a new tort for more than 80 years.

The judgment has opened the floodgates to litigation for the millions of UK users who used the Safari web browser in 2011 and 2012, likely to be definitive in holding internet giants to account for privacy breaches.

Claimant Judith Vidal-Hall called the ruling a “David and Goliath” victory.

The Lawyer’s In-house Financial Services conference advisory panel weighs in on the key to a good relationship between legal and compliance, technology that in-house counsel should be using and how regulation is driving change in the market.

Q: What is the best practice regarding the relationship between legal and compliance? How is this relationship impacted by increased scrutiny from regulators?

Zoe Bucknell, former general counsel, OneSavingsBank: Increasingly, the trend in compliance is to split it into two different activities: the traditional assurance activities – monitoring, checking, reporting and reviews – and the advisory capacity where you advise on regulatory changes and how those impact across the business as well as horizon scanning for regulatory change.

I think the assurance piece should be kept as independent as possible and legal should have minimal interaction with it. Where I see a correlation is in the advisory piece, where you could create a regulatory affairs team within the legal function. Mixing compliance professionals who understand the practical implications of regulation with lawyers’ interpretative skills gives you a very strong proposition.

Regulators have a two-pronged attack. In Europe they are playing catch-up on the financial crisis. They have a host of restraints up their sleeve that they want to impose on the financial services industry. The onslaught probably won’t slacken until the economic environment stabilises more.

“The roles of compliance and legal shouldn’t become blurred – regulators need to see a clear and coherent responsibility structure”

In a way, imposing such a high level of regulatory change on an industry like financial services that is also trying to manage turbulent economic waters is counterproductive; the industry is overstretched. Regulators should take a step back and identify the key aspects that the industry needs to stabilise and strengthen to avoid another economic shock. Then you need to give them a break.

I made the changes in OneSavingsBank because that was the only way the business could organise its services in order to handle regulatory changed without being using too many resources. This should be happening elsewhere – businesses should leverage their legal teams more to guide the business through the regulatory change maelstrom. In bigger financial services businesses this has been the case for some time, but the smaller and mid-size financial firms have to catch up.

Solomon Osagie, lead counsel, Tsys: Traditionally legal and compliance functions have sat with the general counsel but a number of organisations have moved away from this model, or  have a model where there is a head of legal and a head of compliance reporting to a general counsel. I favour the latter approach. From a practical perspective, it is difficult to manage either function without huge input from the other. It is clear that each requires a specific skill set but the two need to interact regularly. Compliance must be integral to overall risk management and strategy; to effectively manage this requires some sort of co-ordinated approach.

The financial services industry, like most service operations, is becoming increasingly regulated and the common view is that this will continue. However, it is important the roles of compliance and legal don’t become blurred – regulators need to see a clear and coherent responsibility structure at a company. It will be interesting to see how companies structure their approach: does the legal strategy determine the compliance approach or should compliance dictate the approach to management of legal issues?

Leigh Murrin, chief legal operations counsel, GE Capital: Regarding best practice, the strongest legal and compliance departments have mutual respect and regular communication.

Mutual respect is needed because while there are adjacencies in legal and compliance, it’s important to understand the responsibilities of the other. I recommend in-house lawyers take the time to understand the regulatory responsibilities of compliance officers and the differences between the operational risks that legal and compliance teams are responsible for overseeing in a regulated business. Also helpful is mapping out who does what; in particular you should consider when legal should consult with compliance and vice versa, and share this as widely in your business as you feel necessary.

Regular communication is important: you have to establish relationships with each other and a regular rhythm of sharing what you are working on. In terms of regulators, I don’t think that the relationship is impacted at all: regulators have always expected these teams to work together. Our business leaders do as well.

Sanjay Bhandari, partner, EY: There is a  clear decision to be made when structuring a legal and compliance department. You can create a unified management structure with a single clear reporting line through to the board, or you can create separate reporting lines and management teams for both legal and compliance. Boards may take comfort in having two departments looking at different aspects of compliance risks, but this can be outweighed by potential gaps in responsibility that can lead to an enhanced legislative/regulatory risk.

Compliance teams are front of mind but do not necessarily have the detailed understanding of the legal and ethical frameworks that influence regulator thinking that is needed to pinpoint areas of extreme future legal risk. Ironically, because regulators prefer to liaise with non-legal staff, they push firms towards a dual reporting line, which potentially increases the chances of a legislative/regulatory breach.

Fergus Speight, general counsel, Royal London: It is essential to agree who is responsible for what, with no gaps or overlap. In order to do so effectively it is important to establish and document a comprehensive framework for dealing with changes in regulation and legislation.

In taking this view I am assuming that the business areas are already compliant with the regulatory rules and legislation that affects them. The components in the framework build the picture of who is responsible for what across the enterprise in terms of identifying and tracking changes in regulation and legislation.

The advisory part of the compliance function will undertake the majority of this work; they should be working with the compliance people in the business areas. This framework should be set out in a way that clearly shows the compliance function’s remit; its contents will detail the regulators it will watch and the regulations it will cover, which will likely include large impact pieces of legislation such as those with direct effect from Europe. The legal function’s remit will generally be much narrower and concentrate on the interpretation of the legislation to help the business better identify the impact on the arrangements the company has with customers or suppliers.

“It is important to establish and document a comprehensive framework for dealing with changes in regulation and legislation”

It is also important to agree on who will deal with any problems that arise. Often compliance  teams deal with issues while they are still being dealt with by the regulator’s supervision team, but should it escalate and go towards the enforcement team then legal should take the lead.

Lesley Wan, corporate real estate counsel, Lloyds Banking Group: It is becoming increasingly important for legal and compliance teams to be better aligned in the wake of the watchful eyes of the regulator. The teams should ensure regularly communicate about key issues and work as one team in order to be able to better identify and deal with key issues as they arise.

Q: How can in-house teams use technology to increase collaboration between compliance and legal?

Osagie: There has been a huge interest in legal technology in the areas of management of work-flows; discovery and disclosure; and corporate and company secretarial work. We have seen the emergence of legal tech firms with lawyers jettisoning legal practice for what they see as a growth area. Technology has its advantages: we are now able to communicate within the workplace via a multitude of formats (email, instant messaging, video calls, SharePoint sites, etc), and technology conferences can replace face-to-face meetings.

Encouraging collaboration is easy. The organisational challenge is now to ensure that these tools are effectively used and crucial information is not buried in with the mundane. Teams have to consider what is being shared and ensure the correct individuals are involved throughout the process. However, I have my doubts as to how much this industry can grow for the in-house community. The majority of organisations do not have the resources to invest in what is in truth huge capital, and this is what the main challenge is.

Murrin: Technology is important from the point of view of sharing know-how. When both teams are horizon scanning, any useful issues should be shared between them and technology can enable this.

It would be great if technology could take horizon scanning to the next level – it could not only tell us that a change in regulation and law has occurred, but it could be tailored intuitively to the specific geographical places where our businesses and customers operate, our product lines, corporate structures and regulatory footprint. Legal and compliance functions would really benefit from the time savings this would generate.

Speight: The framework document should set out the reports that the governance committee receives, and have simple technology solutions such as access to shared databases where there could be details of breaches, their impact and progress on remediation. The status and findings of compliance monitoring reports all go a long way to ensuring that there is one single view of the compliance environment.

Bhandari: Simple is best when it comes to in-house use of technology. Shared matter management systems, to enable cross-department collaboration on proactive compliance work, and current investigations, are a must. Shared document libraries and know-how systems enable members of each team to quickly understand issues, as do shared training programmes. But true collaboration comes from a shared sense of responsibility and a shared understanding of the crucial role each department plays in managing legal risk for the firm.

Wan: Intelligent ways to capture, record and share concerns regarding legal and compliance risk are only possible with the right level of technological support and infrastructure. Ideally, both legal risk and compliance risk (and credit risk) should be adopting similar shared technology portals to share and develop strategies on risk affecting a business.

Q: How much time do you believe the legal team should spend on horizon tracking?

Osagie: Putting a numerical figure on such a question is very difficult. Ideally you would have an individual or team dedicated to this task: if budget constraints do not allow for this it is crucial that legal teams are aware of future events and possible issues. The earlier changes and potential risks are identified the easier it is for an organisation to adapt. The US and other jurisdictions are ahead of the game here but we’re catching up.

Anticipatory engagement, getting involved in consultation processes, being part of the dialogue when new legislation and regulation is being considered is where it should start. For any organisation that has a strategic focus, prospective regulatory and compliance issues must be central. Sadly most organisations do not see this as a worthwhile investment but it will become more and more of an issue.

Bhandari: Horizon scanning and legislative and regulatory impact assessment are a core risk control function. Legal teams spend a huge amount of time already trying to stay on top of legislative and regulatory pipelines across multiple jurisdictions for a wide range of businesses, products and distribution channels that grow at a phenomenal rate.

Fragmentation of regulation, national tiering and international layering add complexity and make risk assessments time consuming and legally complex. One of legal and compliance teams’ biggest current needs is to create standard legislative and regulatory assessment models that enable them to take a consistent and proactive approach to risk analysis and compliance resource prioritisation.

Speight: The time spent should be limited; the majority should be done by the business themselves and the compliance team should be carrying out the bulk of it.

Bucknell: I split horizon tracking into different elements; mainly to align the way I split responsibility between compliance and legal. I had the compliance function looking at regulatory change from the FCA perspective. It was just the conduct regulation. I had legal responsible for non-regulatory legislative changes such as consumer contract changes and data protection.

I made the company secretary team responsible for corporate governance tracking. All three teams worked collaboratively on horizon scanning. It split the burden: there is a danger that a lot of the team ends up looking ahead, and you can spend too much time looking ahead and not enough on now. It was also collaborative: they had regular meetings that allowed them to discuss what would impact across the business. This was particularly the case with the implementation of the Senior Managers Regime in March this year.

Looking out for what is coming on the horizon is one thing and managing the regulatory change programme is another.  The legal team should spend 20 per cent of their time or less on this, not including the impact analysis.

Wan: Horizon tracking is now an established part of the role of a general counsel and his or her legal function. Legal teams add value by capturing and assessing legal risk; staying one step ahead of legal change and wider developments in the markets is fundamental, and increasingly a greater degree of time is and should be spent by legal teams on horizon tracking and sharing views on legal risk. That way the legal teams throughout the business are better informed and there will be consistency of approach.

Murrin: The answer will be different depending on the size of the legal department. If you are in a large business, lawyers will be more specialised, and it makes sense that some will spend more time than others on horizon scanning relative to their roles. For example, we have lawyers in our organisation who are required to do horizon scanning for changes in financial services regulations as part of their day job and communicate those changes to impacted colleagues. The same is true in other internal legal departments as well.

“Horizon tracking is now an established part of the role of a general counsel and his or her legal function”

If you’re in a smaller legal department, then the onus is on the individual to spend a greater amount of time on horizon scanning across a variety of topics. That is definitely harder and more time consuming. However, all lawyers have a responsibility to keep on top of changes in law and how it impacts your business and area of expertise  – that is part of the currency of who you are and where you bring value. Personally, I think spending one to two hours a week on general reading and know-how is good practice. The time spent may fluctuate depending on how law is changing at any given time and the extent to which it impacts your practice area or business lines.

Q: What are the main issues concerning the financial services industry and how do they impact future horizon tracking?

Murrin: Regulators and public opinion will hold individuals personally accountable for failures of corporate controls, processes and ethics. The idea that people can hide behind a cloak of corporate anonymity is long gone. Legal and compliance have a responsibility to be on top of impending changes and developments so that our businesses and colleagues do not inadvertently step outside the law or these external expectations. Horizon scanning cannot be de-prioritised in today’s world and legal and compliance functions have to find ways to manage it.

Bhandari: Legislative or regulatory complexity is a big issue, but added to that are the twin issues of digital disruption and data protection. Digital technology is changing the face of the industry, giving new access to services through digital distribution channels, new efficiencies in delivery, accelerated product development and augmented risk analytics.

Regulators are embracing digital, for example through the FCA sandbox, and are keen to show that regulation will not act as an insurmountable barrier to entry to the market. But there are risks associated with digitisation. In particular the driving need to protect customer data, and the burden that shifts in regulation will impose on incumbent providers of financial services. Future strategies firms take will need to be guided by predictions of how the legislative/regulatory landscape will shift to accommodate fintech, and the role of legal in assessing the future direction of legislation/regulation will be central to the success of the firm.

Bucknell: The main issues are the volume of regulatory change and the increased scrutiny of the regulator. It has changed from rules-based regulation that encouraged a tick-box approach to compliance to a principles-based regulation. Now there is outcomes based regulation, where it doesn’t matter if you followed the rules and the principles: if something at the end is detrimental to the customer then the regulators are going to come down on you.

I think that means that horizon scanning is a discipline that businesses must have. You can’t run a business without horizon scanning, but if you don’t have all the other bits – the gap analysis and the operational impact assessment and how they need to be implemented in an operational basis, if you don’t review your policies and frameworks – it is irrelevant.

It’s the double whammy: you have the volume and the complexity of the changes which go across your whole operational environment.

Then there is the increased proactivity of the regulators. The regulators almost become a political beast. They are out there to prove their worth and their teeth. It would be great to have best practice, leading market innovation, but the reality is you would probably not be operating a profitable business because you would have put everything in compliance. There has to be a balance. You have to run a business. There might be a tendency to not be the last person in the water when the sharks are coming after you. The cost of compliance is becoming a real issue.

I would strongly recommend that general counsel retain the advisory business of compliance, and not pass this onto risk or compliance functions if these are separate.

Osagie: I suspect that at this time of the year Brexit implications must be at the fore. There are others like the new Data Protection Regime, and how transfers are resolved with the US, and the application of MiFiD 2. The UK is considered to be the world’s leading fintech hub – the banks have now realised that there is competition from fintechs, and so a focus on the changing commercials models within retail banks is of acute interest. The tension between the need to promote trade and stimulate the growth of technology balanced against the need to protect consumer rights is huge and we are seeing this tension in  the lead-up to most of the new legislation.

What I suspect we can all agree on is that there is likely to be a constant stream of regulatory issues for which we all have to keep watch.

Horizon tracking should not be limited to legal issues: a wider review encompassing political issues, developments in technology and consumer behaviour must be taken into account in order to build a comprehensive view of the financial services industry. Lastly I suggest that we strive for an organisation-wide approach should this be given more prominence and support.

Speight: The sheer volume of change is one aspect. The uncertainty of what that change really looks like due to regulations being unclear contributes to that issue. There is also the issue of the timeframe in which we have to implement these changes, which, coupled to constraints in the IT systems and capacity of people to actually do the work while the business is trying to carry on as usual and provide a service to customers, causes anxiety!

Wan: Regulatory and political issues dominate the landscape for the banks. For example, fraud continues to be a key focus for financial institutions and we need to ensure we have the right tools to manage our risks, engage with the authorities and handle the regulatory issues related thereto particularly as FCA has begun to really focus on this as a key issue. Legal teams are already beginning to start to assess the impact of Brexit on their businesses and is a good example of legal teams partnering with external counsel to horizon scan.

Litigation funding experts discuss misconceptions around third-party litigation funding, and how funding is affecting the litigation market.

Q: What trends in the litigation market have affected third-party funding in the past 12 months?

Susan Dunn, head of litigation funding, Harbour Litigation: The past 12 months have seen further exponential growth in the use of litigation funding. This time it has been fuelled by large corporates and their representatives, both of which used not to consider that funding was for them.

The intense pressure on in-house legal budgets and the connected pressure on fee income for law firms has led both to engage with litigation funders to understand how they can use funding in their business in the same way they fund all other aspects of their business.

The chief financial officer is attracted to the ability to set the legal budget with greater confidence while making returns on good claims that otherwise would not be pursued because of the lack of guarantee of outcome.

Cartel follow on (competition) claims and shareholder non-disclosure class actions, which large corporates are typically claimants in, have driven the understanding of funding that led them to question why they are not using funding more. We now receive unsolicited contacts from large corporates for information about our business even before a claim materialises.

Our expectation would ultimately be that governmental bodies will consider funding for claims such as tax or asset recovery matters they could not otherwise afford to pursue because of the impact of austerity measures on legal budgets.

Dan Craddock, chairman, Vannin Capital: As various professional reports tell us, corporates around the world are subject to an increasing amount of litigation.

Awareness of litigation funding is undoubtedly rising in the legal profession, but that awareness is now also increasing in other professional fields, most notably among accountants and finance directors. The availability of funding means finance directors are able to pursue meritorious claims that would otherwise not have been pursued because the costs of running the case simply did not justify the risk of a loss. For a professional who deals in the ‘black and white’ of numbers, the inherent uncertainty of all litigation has often been hard to reconcile when evaluating the costs of running a case to conclusion.

Another change driving capital deployment is the funding of international arbitration. It was relatively unknown in 2012, whereas now it makes up roughly 50 per cent of our business and is the fastest growing area for our industry.

Leslie Perrin, chairman, Calunius Capital: There has been a huge increase in awareness of the potential for litigation funding. It’s a global international marketplace, covering large scale international litigation and all types of commercial arbitration where building initial credibility is hard, but results come at an accelerating rate once the breakthrough is made.

“We expect governmental bodies to consider funding for claims such as tax or asset recovery matters”

Litigation funders no longer simply fund the costs of individual cases. They also fund portfolios of cases for major businesses whose solvency is undoubted but who want to manage litigation risk in a commercially rational way. These can be: law firms who wish to able to offer clients fee structures that are contingent on success while maintaining their working capital requirement; the monetisation of existing litigation judgments and arbitration awards; the corporate overheads for businesses involved in what would otherwise be life-threatening disputes; adverse costs, security for costs and fortification of undertakings around injunctions; or assignments of claims in liquidations and in civil law jurisdictions.

Jeremy Marshall, chief investment officer, Bentham Europe: In relation to insolvency litigation the decision to end the insolvency profession’s exemption to the Jackson reforms as of April 2016, meaning that conditional fee arrangement -based success fees and after-the-event [ATE] insurance premiums will no longer be recoverable in proceedings brought by liquidators, administrators and trustees in bankruptcy, should, in theory, result in insolvency practitioners increasingly seeking to engage and enter into arrangements with third-party funders.

Historically, the third-party funding of insolvency claims has generally been limited to smaller value claims (ie damages sought of less that £1m). It is hoped, by third-party funders at least, that the end of the recoverability of success fees and ATE premiums will facilitate a greater level of engagement with the insolvency profession in regard to fundable litigation claims.

In the competition area the new class action regime introduced by the Consumer Rights Act 2015, which facilitates collective proceedings in the Competition Appeal Tribunal for breaches of competition law including opt-out class actions, has piqued certain funders’ interest, although it remains unclear whether the regime will actually move the needle.

From a regulatory perspective, enforcement actions relating to the alleged rigging of foreign exchange markets by various global banks, underway in the English and US courts, have been keenly followed by funders.

With US class actions against global banks well underway the appetite for collective litigation may be growing here in the UK, with further actions in London a distinct possibility. Aside from the potential of forex litigation, Libor-related disputes are playing out before the courts as well as large shareholder-led claims against RBS and Lloyds in the High Court.

Otherwise, funders continue to be approached to fund high-value, cross-border and typically complex commercial fraud cases in both the High Court and arbitration arenas.

Nick Rowles-Davies, managing director, Burford Capital: The most striking trend has been the shift from single-case funding to offering litigation finance across portfolios of claims for use by companies, individuals and law firms. Moreover, we are seeing litigation funding evolve into litigation finance and become a new form of corporate finance. Litigants are using their cases as collateral to secure financing to be used for pretty much any corporate purpose across their business, often unrelated to litigation. More than half of Burford’s commitments are now to portfolios and complex investments.

Q: How has rising awareness of litigation funding affected the market?

Dunn: It has led to more new funders seeking to enter the market. This is understandable, but the challenges of funding should not be underestimated. Raising funds to invest requires a record of success, and few have such a record.

Litigation and arbitration take a long time to conclude, so records take a long time to establish. And results are unpredictable – even good cases lose and the fact is that any claim is not in the hands of any given funder but instead in the hands of the claimant and their lawyers.

The cases we fund are complex and challenging and yet, interestingly, we are accused sometimes of only funding sure-fire winners. There are no such cases. Of the over 40 cases we are presented each month, only around 5 per cent are funded. Typically, cases fail to secure funding because of a clear strategy for enforcement or overestimation of the value of the claim versus the budget. Assessing whether a case will win or lose is possibly the easier part. Determining whether the case has the stated value or if will be run according to budget are the two most difficult matters to evaluate.

“The funding of international arbitration is the fastest growing area for our industry”

Funding is a long-term endeavour, not for the faint-hearted. It’s a high-risk endeavour. Results, especially at final hearings, whether in litigation or arbitration, remain unpredictable, even in apparently strong claims.

Marshall: It is assumed that there has been an increase in awareness on the part of the legal fraternity of third-party funding in recent years. Whether that has had an impact in terms of the number of single-party commercial claims that are funded, or the total number of such claims brought, is unknown.

There are no doubt a healthy number of lawyers and brokers in London seeking to secure funding for numerous single-party claims, but equally it is the lament of a number of funders that the quality of the funding proposals they receive is generally low. As time passes and funders are able to better articulate to law firms and others that broker these claims what they will and will not fund, it is hoped that the quality of the funding opportunities will rise.

In a group action context, it appears there has been a tangible increase in both the awareness of the benefits of litigation funding and the commensurate appetite to secure funding for these types of claims. In that sense it is likely that increased awareness of funding will lead to more claims of this type.

Craddock: The volume of capital deployed and the number of clients exploring funding has risen exponentially in the past four years.

As magic and silver circle firms have embraced funding there has been a global shift in profile of both the typical funded client and law firm.

No longer are clients confined to asset-rich or cash-poor entities. We’re now seeing, our typical clients being multinational corporates and sovereign states.

Similarly, we now deal almost exclusively with the magic circle, the largest US firms and similar quality law firms who are recommending their clients to Vannin or seeking portfolio solutions themselves. Funding is not limited to those firms who are acting solely on a contingency basis.

Perrin: There is more demand all round; more sophisticated approaches from law firms and their clients to the opportunities to use litigation funding. Ever larger cases are coming into the funding market.

Rowles-Davies: Increased awareness means litigation finance is no longer used out of pure economic necessity, but rather as a deliberate business-driven decision. This means claimants are opting to unlock the asset value of pending litigation and are therefore able to add cashflow to businesses. Claimants are also now better able to manage the risks of their litigation.

Q: What do you consider the biggest misconceptions about litigation funding? How can funders work to disprove them?

Dunn: That there are a lot of funders in the market. The fact is there are still only seven members of the Association of Litigation Funders, those being the funders who have both affirmed, by third-party verification, that they have the funds to fund the claims they are funding and have had their agreements independently verified by counsel to ensure they are compliant with the Code of Conduct of Litigation Funders.

No other funders have submitted to that and it is interesting to me to see how many lawyers and claimants opt to engage with those who are not members of the association. We know that a number of entities claiming they are funders do not in fact have funds but instead seek funds on a case-by-case basis from funders who are members of the association. This can end up making the engagement with a funder much more lengthy and ultimately unrewarding if funds cannot be secured. It remains the obligation of the claimant adviser to satisfy themselves that a funder is both in funds and funding in a way compliant with the code.

“Funders no longer simply fund the costs of individual cases. They also fund portfolios of cases for major businesses”

One misconception is that funders control the litigation. We don’t. If we were to do so we risk the accusation of infringing champerty and maintenance, and having our agreement declared void, having spent potentially several million pounds on a case. We would be reckless to do so. We rely on qualified lawyers and quality claimants when funding the claims in our portfolio.

Another misconception is that we insist on lawyers working at a discount. We don’t. We want the lawyers running the cases we fund to be properly remunerated. Indeed, when presented with budgets for matters we fund we often increase them where we think inadequate provision for inevitable challenges has been made. Running cases on a shoestring is counter-productive to the best chance of a case succeeding.

And some believe that we fund frivolous claims. We don’t. What would be the point? They will fail and we only stay in business if we fund successful cases.

Others may think that we are somehow funding so many cases, in particular arbitrations, that we control all arbitrators and there is inherent conflict as a result. The reality is that even a funder of our size (of around £410m in funds) only funds around 25-30 cases a year in 13 jurisdictions and a range of arbitral forums – our average budget nowadays is £4-5m and our minimum claim size is £10m – of which around 10 per cent are arbitrations at the moment. The numbers we fund are tiny relative to the total of litigation and arbitrations, and the idea of us being able to control all arbitrations is clearly not true statistically. In addition, if we fail to declare a conflict where, for example, an arbitrator has a connection to our fund, we again simply face the fact that any successful award would be overturned for conflict. It would be reckless.

Another misconception is that we only fund sure-fire winners. I wish! We have strict criteria about what we will fund based on 14 years’ experience, which we stick to. So yes, we are unapologetically rigorous about funding cases where we know we will get paid if we succeed, we believe will win, that have a clear minimum value and a robust budget. That’s how every case we fund is assessed, and still cases advised on by the leading practitioners in the world sometimes fail and we lose all the money we have invested.

The last big misconception is that we practice some kind of dark art when assessing claims. We don’t. As we say to any lawyer with a case looking for funding – if you believe you would invest in the case then we will probably agree with you, but you have to demonstrate it has value, that it will succeed based on what we know today and has a defendant who can pay if the case is successful with a budget which is around a tenth the size of the minimum claim value.

Perrin: The biggest misconception is that litigation funding is harmful, when it is both an essential element of access to justice and an indispensable part of the rational commercial management of litigation risk. That using litigation funding involves a loss of control for the lawyers and their clients and will make people think your business is insolvent.

Funders can work to disprove this by taking the story to the marketplace, continuing to invest in great opportunities and continuing to win cases.

Marshall: There is sometimes a misconception held by clients without experience of funding and perhaps fuelled by American anti-funding lobbyists that if the litigation isn’t going to plan a funder is likely to withdraw funding before judgment, leaving the previously funded client high and dry.

This belief fails to take into account a number of important issues. First, any funder worth its salt will have carried out significant due diligence on the matter before agreeing to fund the case.

Second, in large-scale litigation there are invariably a number of interlocutory skirmishes which may not go the way of the funded party, but which will have no bearing on the outcome of the case; for an experienced litigator, pulling the plug early would be naive.

“The interests of funder and funded institution are aligned”

Third, withdrawal is the nuclear option as far as the funder is concerned. Not only will the funder lose all the costs it has incurred up to that point, it also remains liable for the other side’s adverse costs (potentially on the indemnity basis) for the entire period it provided funding. This is particularly relevant in this jurisdiction where legal costs are some of the highest in the world. Fourth, the reputational damage and the damage to the funder’s business would be huge. Word would quickly spread around the legal market resulting in potential clients using alternative funders. Ironically, a funder losing a case and fulfilling its obligations may well give the market far more confidence in it, in the long term.

Funders need to educate parties who have not used, or seriously investigated, funding. There are a number of funded large-scale group litigation actions before the High Court coming to trial. It is likely that the media interest in those will greatly assist in this education at a general level.

More specifically, potential clients and their lawyers should satisfy themselves of the written safeguards that should exist between the funder and the funded party, in relation to the possibility of withdrawal. Further, where there is a dispute as to withdrawal by either party the matter should be referred to a jointly instructed QC or referred to arbitration, whose findings shall be binding on both funder and funded party. This preserves fairness and transparency in the arrangement.

Craddock: The two most oft-quoted criticisms of funding are: that it will give rise to vexatious or frivolous litigation; and that funders will attempt to control the course of litigation.

To the first point, this ignores the fact that professional funders have no interest in funding frivolous litigation because the business model precludes doing so. While there is an increasing amount of capital in the market, those that fund high-value commercial litigation and arbitration will not waste resource on frivolous litigation.

To the second point, as far as we are aware, this is nothing but scaremongering. A funder that has made a well-analysed investment decision will never – and those who are members of the Association of Litigation Funders cannot – interfere with the progress of a claim, and that includes any settlement that may be reached.

Disproving these misconceptions is not difficult. We are fortunate in that we deal with a rational, commercial audience and our challenge is ensuring we reach as much of that audience as possible.

Rowles-Davies: One of the biggest misconceptions is that funders exercise control of the funded proceedings. In fact, funders are ‘hands off’. While every funding agreement is different, funders are usually kept updated by claimants of significant case developments and strategy, but it goes no further than that.

Secondly, the market has misconceived funding as a tool only for the prosecution of claims. In fact, funding is available to assist with any piece of litigation, whether it be defence, declaratory, small or large when they are rolled into a portfolio of a corporate’s suite of cases.

Finally, there is a misunderstanding that engagement with a litigation funder and the provision of various documents to that funder exposes the claimant to the risk of waiving privilege that would ordinarily attach to key documents. This is misguided. There is case law that provides that privilege is not waived when disclosing key documents to a funder and that those documents still attract privilege.

Q: Numerous institutions are worried about loss of control and potential reputational damage if they go down the funding route. What is your response to this?

Marshall: Ironically, some clients feel the tunnel effect of the litigation process itself is the reason for the perception of loss of control. The starting point is that the interests of funder and funded institution are aligned. Champerty and maintenance rules mean that control of litigation remains with the client.

Is this in name only, on the basis that the funder is paying the bills? Not really because, ultimately, a lawyer has to act on the instructions of his client, not on the wishes of the funder, and a compliant funding agreement will always accept that the client’s wishes remain paramount. The fact is that many sophisticated clients value the input, experience, perspective and vested interest a funder provides.

There are often periods in a piece of litigation when a client and a funder are able to exert an influence that is beneficial for the case. Similarly, there are times when a lawyer and a funder can have such an impact.

“One of the biggest misconceptions is that funders exercise control over proceedings – in fact, funders are ‘hands off’”

The reality is that the tripartite arrangement can provide benefits to all. Funders do not simply bring their financial clout; they are able to assist the client in retaining control of its case.

Once this is clearly understood it is evident that concern as to potential reputational damage is overblown. The knee-jerk reaction that assumes a funder’s involvement equates to the impecunious nature of a client is now somewhat fallacious. There are reasons why a funder may be involved that having nothing to do with the provision of finance. It can enhance a client’s reputation to involve a professional who can apply a high level of objectivity over an investment decision in relation to a complex litigation.

A tension exists between lawyer and client – particularly when the lawyer is being invited to pitch for a piece of litigation. The funder can genuinely assist the client at all stages of the litigation journey, and so it can almost be said that a failure to involve a funder – and lose the benefit of the considerable experience that it can provide – is a management failure, rather than a management weakness.

Dunn: I have talked about control before. As to reputational damage, it is hard to understand what that is. We encourage all claimants we fund to tell their opponent they are funded by us as we believe it is a positive message to deliver to the opponent that a funder who only reviews and invests in disputes and has rigorous criteria, has committed to the case. As a defendant that should be a positive message to receive.

Craddock: Many of our clients can fund their own litigation but have opted to involve a funder because we’re experts in our field, we align ourselves with them and help ensure their dispute is as well-run as it can be. No-one is more adept at assessing, calculating and then managing the risk of dispute resolution than a third-party funder. This is our specialism.

Litigation is time-consuming regardless of who is paying for it and, at the end of the day, management are far better employed running their businesses than becoming embroiled in litigation.

An experienced funder will give clients access to the best lawyers and experts. This doesn’t change their approach to litigation necessarily but it does ensure they have the best chance of succeeding in what are, more often than not, complex and hard-fought disputes.

Perrin: If businesses are concerned about loss of control to funders they have clearly been working with the wrong funders.

Using litigation funding is now a sign of an in-house legal team with commercial awareness rather than a business approaching insolvency.

Rowles-Davies: Funders typically defer to the claimant and their advisers for the claimants’ litigation strategy. There are contractual checks and balances that limit any control by funders.

Some claimants see funding as an endorsement of their claim and are content to disclose. Finally, the optics of funding are demonstrative to corporates’ shareholders, and the market generally, of a proactive risk management strategy so funding could be a positive reputational development.

Most experienced funders are well aware that the decision to embark on a piece of litigation is not solely a financial one. In fact, reputational risk is possibly the biggest concern for our corporate clients. While being seen as a willing funded litigant is something that sits well with our US-based corporate clients it is now becoming more common in the UK.

Increasingly, the ability to lay off the financial burden of legal fees for litigation, with its damaging effect on earnings before interest, taxes, depreciation and amortisation, or ‘EBITDA’, means a funded solution is attractive. Moreover, the ability to bring litigation claims where previously they could not – for example, the budget may have been used up in paying for defence cases – means there is a significant net inflow of revenue to the business on the successful conclusion of a case.

Cyprus has one of the lowest rates of corporate tax in the EU at 12.5 per cent, putting it in the same league as the Republic of Ireland in terms of what it charges both onshore and offshore companies. But while Ireland’s low tax rate has hit the headlines with regard to inversions, the regime in Cyprus has stayed out of the limelight.

Last month, a delegation of members of the European Parliament visited Cyprus to look into its corporate tax practices. The MEPs met foreign minister Ioannis Kasoulides as well as Ministry of Finance head of tax policy George Panteli and tax commissioner Yannakis Tsangaris. There were also members of the Association of Cyprus Banks, Transparency International and the Cyprus Investment Promotion Agency present.

The visit was well-timed, coinciding as it did with the release of the Panama Papers by the International Consortium of Investigative Journalists. The leaked documents put tax right back at the top of the European Parliament’s agenda. It has already vowed to tackle tax evasion and limit legal loopholes.

Cyprus is clearly not an offshore tax haven and has made concerted efforts to assure both investors and regulators of its compliance with EU rules. But the combination of the Panama leak and the special delegation visit has led to increased media and supervisory scrutiny.

Q: What are the issues around corporate tax in Cyprus at the moment?

Elias Neocleous, corporate and commercial head, Andreas Neocleous & Co: The big issue for Cyprus, as for other financial centres, is defining its role in a climate of increasing scrutiny of companies’ and individuals’ financial arrangements, particularly those relating to taxation.

“Cyprus has sought to position itself as a reliable, secure jurisdiction”

Unlike some tax havens, which are used to illegally conceal assets and income for the purposes of tax evasion and other criminal activities, Cyprus has sought to position itself as a reliable, secure jurisdiction providing investors with protection of their investments and personal privacy. It aims to strike a balance between preventing abuse of the financial system on the one hand and maintaining investors’ right to privacy – and therefore personal safety – on the other.

Pavios Aristodemou, managing partner, Harneys Cyprus: Corporate tax is flat at 12.5 per cent, with 17 per cent withholding tax for Cyprus residents only. There are no particular issues surrounding corporate tax.

Q: What progress has been made?

Neocleous: Cyprus has a competitive tax and business environment aimed at attracting investment from overseas. It has an attractive ‘economic citizenship’ programme, with safeguards against abuse. It also has a ‘non-domiciled’ regime providing exemption of investment income from tax.

To prevent abuse of these and other benefits of the tax regime, Cyprus has implemented all international best practice in regulation, registration and information exchange. There are requirements to discourage ‘brass plate’ companies and ensure companies that are tax-resident in Cyprus have a real presence.

There is a robust regulatory system, with financial registers accessible to law enforcement and tax authorities, and full exchange of information with overseas tax authorities.

Aristodemou: Cyprus has made considerable progress and its economy has been upgraded by all ratings institutions, with a positive future. The country has become compliant with OECD requirements and the public and private sectors have attracted direct investment into the country.

Q: What are the obstacles to further ­progress?

Aristodemou: Further progress can be made with more privatisation and a tax and legal regime to put Cyprus among the jurisdictions of choice for set-up and administration of funds.

A solution to the Cyprus political problem would most likely give a boost to international trade and enhance the position of Cyprus as a jurisdiction that is friendly for doing international business.

“Like Caesar’s wife we must be above suspicion, not only in form but in substance too”

Neocleous: There are no substantial obstacles to progress as the main regulatory framework already exists. What is important now is rigorous implementation. Unscrupulous service providers and their prospective clients must be made to learn that they will be unable to operate in Cyprus, and that no exceptions will be made.

On the other hand, any regulation needs to be proportionate to risk and avoid an excess of bureaucratic intervention.

Finally, clients must be assured their investments are secure and their personal privacy is maintained within the context of the law.

Q: How do Cyprus’ corporate tax laws  compare with others in the Balkans?

Neocleous: Cyprus has a modern, simple tax system offering consistency, predictability and reliability so investors can predict the tax implications of their decisions with confidence. If desired, advance tax rulings can be obtained on proposed transactions or structures.

As befits a financial services centre, Cyprus’s tax system does not impose further taxation on financial transactions taking place through Cyprus. It has a wide network of double tax agreements covering 55 countries and, regardless of whether a double tax agreement is in force or not, imposes no withholding taxes on interest or dividends and no taxation of capital gains on financial securities.

Q: What has been the reaction to the Panama Papers leak?

Aristodemou: There has been some media coverage and relevant supervisory authorities are considering or preparing inquiries in cases where they believe some wrongdoing has been caused by Cypriot parties.

Neocleous: In our firm at least, the reaction has not been one of schadenfreude. Rather, the leak confirmed our view that everything we do should withstand scrutiny.

Like Caesar’s wife we must be above suspicion, not only in form but in substance too. I hope others in Cyprus share this view. As individuals, as firms and as a country our reputation for integrity is fundamental to our success – indeed, to our survival – as an international financial and business centre. We must treasure it and never put it at risk.

Places such as London and Singapore are still the main hubs for international arbitration but Nigeria has been attempting to raise its status in the past few years. This is in part because Nigerian businesses are increasingly seeing arbitration as a viable means of dispute resolution.

As part of this focus a court was launched in 2012 under the Lagos Court of Arbitration (LCA) Law. This seems an obvious attempt to give Lagos higher standing as a centre for arbitration despite the city already being home to a number of organisations such as the Chartered Institute of Arbitrators Nigeria.

While the LCA has established links with the Kigali International Arbitration Centre and the Mauritius International Arbitration Centre, Nigeria – and Africa in general – is yet to be seen as a top destination for arbitration.

Here, we ask some of Nigeria’s leading dispute resolution lawyers how the arbitration market is adapting as businesses flock to the region.

Q: Since the launch of the LCA has Nigeria’s status as a centre for arbitration increased?

Uzoma Azikiwe, head of litigation, arbitration and alternative dispute resolution, Udo Udoma & Belo-Osagie: There’s been an increase in contractual parties choosing Nigeria as a centre for arbitration for commercial disputes, but it may not be right to attribute the rise in the status of Nigeria as an arbitration centre to the launch of the LCA.

“Given the expansion of the value chain in the power sector there is likely to be increased arbitration activity there”

Before the LCA there were already various institutions in Nigeria offering arbitration services and facilities, such as the Lagos Regional Centre for International Commercial Arbitration; the ICC Arbitration Commission; the UK Chartered Institute of Arbitrators Nigeria Branch; the Chartered Institute of Arbitrators Nigeria; and the Maritime Arbitrators Association of Nigeria.

The LCA has hosted a number of knowledge workshops to promote alternative dispute resolution but the enhanced status of Nigeria as an arbitration centre is attributable to many factors including the fact that Nigerian courts are now more arbitration-friendly, more institutions can efficiently administer several forms of arbitrations, there is a large pool of competent and internationally exposed Nigerian arbitrators, and Nigerian businesses are unwilling to choose foreign seats for their disputes.

Oghogho Akpata, managing partner, Templars: Although the LCA was launched in 2012 its arbitration facilities were only commissioned in mid-2015. The LCA’s permanent site, the International Centre for Arbitration and Alternative Dispute Resolution, is the first purpose-built arbitration and alternative dispute resolution [ADR] institution in Africa.

With rules modelled on the London Court of International Arbitration and the UN Commission on International Trade Law, the LCA has the potential to enhance Nigeria’s status, but this will also require other measures in Nigeria such as improved security, a robust judicial support system and more hospitality and tourist attractions.

Q: How prevalent is the use of arbitration in Nigeria and how open to it are African businesses over other forms of dispute resolution?

Akpata: Arbitration is fast-becoming best practice for resolving commercial disputes. As businesses learn more about the advantages of it compared with court judgments – including the fact that arbitral awards can be enforced globally – they are gradually becoming more open to it.

“Investors and sophisticated Nigerian businesses prefer arbitration
to litigation”

This trend has been aided by the developing expertise of arbitrators in particular sectors of the economy and the incorporation of the arbitral process into some judicial systems, such as in Lagos through the state ‘multidoor courthouse’ law.

More frequently these days, we are consulted by foreign and local clients doing or looking to do business in Nigeria and seeking advice on the process and practice of arbitration.

Azikiwe: Arbitration as an alternative dispute resolution mechanism has gained widespread acceptance in Nigeria, largely due to increased commercial activity and the inflow of foreign direct investment.

Typically, investors and sophisticated Nigerian businesses prefer arbitration to litigation. This is not surprising because the litigation process in Nigeria is protracted and businesses are keen to avoid delays and the attendant costs.

African businesses have embraced arbitration over other dispute resolution mechanisms.

Q: Which sectors commonly arbitrate in Nigeria and do you expect any changes in the type of work being carried out?

Akpata: With the growth of businesses in many sectors quite a number have made significant progress in embracing arbitration. These sectors include maritime, oil and gas, power, investment, construction, real estate and telecoms.

Overall, the energy and construction sectors arguably present the most high-stakes arbitration in the Nigerian commercial space. In the past decade a number of oil and gas arbitrations, small and large, have taken place.

And given the expansion of the value chain in the power sector there is likely to be increased activity there too.

Azikiwe: We see a lot of arbitrations in the oil and gas, maritime and international sale of goods sectors. With the slump in oil prices and the resulting fall in the revenues of oil companies we’re already seeing them default in meeting their obligations to drilling and other service companies. In turn, we’ve seen service companies default in meeting obligations to their suppliers. This may lead to an uptick in arbitration in the oil and gas sector.

With the efforts of the government to diversify the economy and develop sectors such as agriculture and mining, investors in these areas are likely to opt for arbitration over litigation in their contracts and over time these sectors will generate a lot of arbitration work.

Q: How does Nigeria compete with other international arbitration centres?

Azikiwe: We’ve seen a rise in the number of international arbitrations conducted in Nigeria but most arbitrations involving foreign counterparties – and particularly where the transactions are large or complex – are still conducted in cities such as London and Singapore. These cities have better, more modern and more efficient infrastructures, and their arbitration laws and court systems are perceived to be more supportive of arbitration.

Akpata: Nigeria is not yet at a level to compete with centres such as London and Singapore. Most of the arbitrations centred in Nigeria are either domestic ones or international arbitrations arising out of Nigerian transactions or commercial arrangements. It’s rare to find arbitrations that have no direct connection to Nigeria being held in Nigeria.

However, as Nigeria strives to become the commercial hub of Africa it can be reasonably projected that it will become a desired centre for arbitrations out of a number of African countries.

Q: Does your firm plan to expand its arbitration practice and if so, how will this be carried out?

Azikiwe: We have a growing arbitration practice and have represented clients before various arbitration panels. The firm is expanding its practice and has sponsored members in training in the area of international commercial arbitration.

We will continue to be visible in domestic and international arbitration organisations and events. We also publish materials in arbitration journals and other publications.

Akpata: We have a vibrant arbitration team in our dispute resolution practice. Nevertheless, we are looking to expand.

Our goal is to have a standalone specialist international arbitration and ADR practice. We work towards this by the development and enhancement of members’ skills and experience both organically and through collaboration with our international partners in both commercial and investment treaty arbitration.

Jannan Crozier is a corporate lawyer at Baker & McKenzie. She was pregnant through the partnership application process, and went on maternity leave one month after being made up in 2015.

What’s your background? How did you come to law?

Growing up I wanted to be an astrophysicist with NASA. Unfortunately, maths was not my strong suit and I swiftly realised that you had to be a maths genus to work at NASA. My physics teacher saw me desperately rocking the white coat look trying to be an astrophysicist and took me one side and said, ‘You’re very good at talking and arguing – why don’t you have a career that focuses on that?’ I found a college that did A level law and absolutely loved it.

From there I went to Manchester Uni. I’m from a working class background in Manchester – I had no notion of business, of office etiquette or the deal making culture. It was a time when you didn’t need to read the newspapers and know about commercial pragmatism. The standard expected of people coming through now is so much higher.

But from going to lots of presentations I realised I that really wanted to be at firm with an international view of the world. I enjoyed travelling, I was passionate about different cultures, so I looked at firms with a very international focus to them. I had my interview at Bakers, and it instantly felt like home. I moved down to London, turned up on my first day in my new shoes and my suit from Next, and started out on my career.

What was your early career at the firm like?

I went to corporate in my second seat and discovered that it really suited my personality. At that point I became much more proactive about managing my career. I did my next seat in banking and finance, then spent six months in our Moscow office.

I qualified into the private equity and funds team of the corporate department. For the first two years I spent my time working my butt off and getting those foundation skills you need to be a good lawyer. Then I got given the opportunity to go to our Sydney office for 18 months, working with the global head of private equity.

My first day back in London was the day Lehmans went under. There were no private equity deals being done – it was a weird time for everybody, and what that taught me was the need to diversify your career.

I’d always held myself out as a private equity lawyer and you should definitely have a specialist skill in your toolbox; however, you do need other tools in order to weather the financial environment. So at that point I got involved in a big deal for GM. They were buying a business that was highly integrated into another business. They we trying to carve it out of the seller and make it into a standalone structure. That’s one of the other areas of my practice now. I spent over a year doing that, and it gave me a lot of business involvement.

In your career you have pivotal deal experiences, and that one gave me a huge amount of business experience. I became much more of a business-minded lawyer thanks to that deal.

Can you tell which are going to be the pivotal deals for your career when they come along?

Anyone who says they do either has a crystal ball or is lying. These opportunities will come your way, and a piece of advice is try and take every opportunity you can because you don’t know where it will take you. Often, it’s not until you get to the end that the significance of the lessons you’ve learned become apparent.

Did you always want to be a partner?

Yes. The first two weeks after joining Bakers as a trainee is the induction programme – about fundamentally understanding the nature and culture of the firm. One of those sessions was about how you saw your career developing. My answer was simple: I want to be a partner and help develop the culture of the firm.

That was my second day in the firm and somewhat single-mindedly that’s what I have strived to do.

Did I have a grand master plan? Absolutely not: some of it is luck, some of it is taking advantage of the opportunities you are given and maximising them to the fullest. But there was always in the back of my mind a clear understanding of where I wanted to go.

What were the useful things you did to progress your career?

For me, taking opportunities to go and work in different offices was definitely important, and that the transactions I have worked on have been big global deals. That meant I was working with big teams of people. Within that, I always tried to position myself as being helpful and available.

Don’t underestimate the importance of building networks for yourself the moment you arrive: without that you are not going to progress as easily as you might like.

You were pregnant when you eventually went up for partner – what was that like?

I found out in December 2014 that I was going to be up for the partnership process, roughly around the same time I discovered was pregnant. I was negotiating a deal in Sweden at the time, and trying not to vomit on the other side.

The day I needed to submit my partnership application form was the day of my 12-week scan, so on the day I put in my forms, I went to my head of corporate and told them.

I enjoy my job and for me it was never going to be an option that I would give it up, but in the same way I decided I wanted to be partner on my second day, I decided I wanted to be a good mother, and I didn’t want to have to choose between the two options.

I went to the partners, I told them I was pregnant, we had a conversation about when I would being looking to go off on maternity leave, but there was never a conversation about whether it would have an impact on the partnership process or whether I should defer. Externally, when I told people, they asked if that meant I was going to defer, but my response was, why should I? I’m ready to be a partner, my business case is strong, why should I?

I went through the process and was very honest that I would take maternity leave and then come back and that’s exactly what I did. I was made up with effect from 1 July and went on maternity leave exactly one month later to have Izabella, who’s the apple of my eye.

Was it tough being away from work immediately after being made up?

I thought I would be quite bored at home, but I didn’t find that. I completely switched off for seven months. After that, I decided the time was right to come back. There was no pressure on me, but after seven months I thought I would see what the new world was like in terms of juggling work and a baby.

How do you work it?

I came back three days a week originally, and I’m currently doing four. How it works is that I leave every single night at 5.30pm, go home do bath time and play time with Izabella. Then if I need to, I log on from 7.15pm to finish whatever needs to be finished.

I’ve been very clear with my internal team and very honest with my clients and they thankfully have been great. Today, I’ve got a call later on but I’ll take it at home: for me it’s not acceptable to miss bath time.

Do you still feel like you are in a minority doing this?

I do feel like one of only a few. I see it very positively in that we are the tipping point generation. In 10 years this won’t even be an issue. If you have people like me who do want to have both, that sends a positive message out to the younger associates in the firms so that it become the norm.

I am trying to show that you can come back and work in a client-facing role and be a damn good mum as well. If you want it you can have it. Baker & McKenzie can’t solve all my life problems; what they can give me is the flexibility to help with them.

Employers now need to be really flexible with people around this, it’s about recognising that you will have people working for you who are so much more engaged if you can be flexible about their home life. You can now have a choice, you can choose to do both. I get up at 5.15am to go to the gym to be ready for 7am, when I wake my daughter up and have an hour playing with her.

I’m not saying it’s easy. Some women – and men – will start a family and decide they don’t want to do that juggling act. But if organisations are able to be flexible and give people the choice, they will find people will stay on, and you will lose fewer women in senior leadership roles. One of the reasons I’ve been so vocal internally is because I don’t believe you should have to choose.

Do you have any advice for people who may be in a similar position in future?

Don’t be afraid of proactively managing your career. I can’t stress the importance of taking control of your own destiny. Don’t be afraid about coming forward and asking for things.

I think there’s a real energy across the City for employers to adapt these working styles to give people choices to find balance in their work and life. Women and men shouldn’t feel they have to choose: it isn’t either/or any more.

Don’t be afraid about talking to managers and people in senior roles about how you can make job work for your life.

It’s not about ‘having it all’, it’s about what’s important to you.

Ogier has advised First Names Group on matters of Jersey and BVI law relating to its agreement, subject to regulatory approval, to acquire Nautilus Trust Company.

The acquisition of the independent trust and corporate services provider will increase First Names Group’s headcount in Jersey to more than 300 and add to its private client offering in Hong Kong and London.

The Ogier team comprised of corporate partner Raulin Amy, senior associates Saraid Taylor and Wendy Walker (BVI law), and associate Rebekah Agyeman. Ogier worked alongside King & Wood Mallesons, who led the transaction and also advised on matters of Hong Kong law.

International law firm Gowling WLG has co-founded The Alliance Network, bringing together the LGBT networks of professional services firms in the Midlands area, including PwC, KPMG, Barclays, Mazars and DWF, to provide support and networking opportunities to other LGBT professionals. The network will also organise relevant thought leadership events, share best practice and provide a platform to promote LGBT equality in the workplace.

The inaugural event took place at Gowling WLG’s Birmingham office at Two Snowhill on Thursday 26 May. Rob Hudson, group finance director at St Modwen, and Sally Bourner, chief superintendent at West Midlands Police, ran a discussion panel on the topic of “Promoting the business case for LGBT equality in the workplace”.

Rob and Sally are both senior leaders in their respective organisations and have experience in promoting workplace equality for LGBT professionals.

More than fifty people attended the event, which took place just before Birmingham Pride weekend (28-29 May).

Paul Eaves-Seeley, the Chair of the Network from PwC in the Midlands, said after the launch, “I’m looking forward to sharing our plans for the future of The Alliance Network. The network will complement the range of established and newer LGBT networks in the Midlands, help promote inclusion in the workplace and provide support for individuals.”

As well as the steering group in attendance at the launch, there were guests from firms including EY, Royal Bank of Scotland, Deloitte, Birmingham City Council, the Solicitors’ Regulation Authority and Pinsent Masons.

Peter Bond, representing Gowling WLG in the network, said: “Launching the Alliance Network is a really important step for professional services firms in the Midlands, allowing us to come together and share best practice, as well as providing an inclusive network for LGBT professionals to network and forge business contacts.”

Following last month’s Scottish elections, the Scottish Food and Drink Federation (SFDF), together with leading UK law firm, Shepherd and Wedderburn and Public Relations Consultancy, Grayling, is holding a food policy seminar on Wednesday 8 June to explore how businesses in the food and drink sector might be affected by the direction taken by the new Scottish Parliament.

In this half-day event, speakers will look at the challenges facing the sector and what the emergent balance of power inside the Scottish Parliament might mean in terms of agenda-setting for Scotland’s food and drink operators.

East Anglian firm Birketts has announced its revenue has grown 10 per cent, from £35.1m in 2014/15 to £38.7m last year.

The record high turnover figure continues Birketts’ trend of continued growth. In 2014/15 the firm saw revenue increase by 9 per cent from £32.1m, while in 2013/14 Birketts’ turnover jumped 12 per cent from £28.65m.

At the same time as the firm announced its results Birketts also revealed that its senior partner Nigel Farthing has stepped down. Farthing has been senior partner for the last 10 years and played a major role in the expansion of the firm, which has offices in Cambridge, Chelmsford, Ipswich and Norwich.

In 2010 the firm became a top 100 firm after it merged with Chelmsford-based Wollastons. At the time Farthing described the deal as “the final piece of the jigsaw” as it allowed Birketts to fully cover the East Anglia region.

Corporate and commercial partner James Austin will replace Farthing as senior partner.

Austin said: “It’s an exciting time for the firm and we have a clear strategy in place to build upon the momentum of recent years. In Ipswich this includes plans for the move to a new office in Princes Street in 2017, which will enable us all to be under one roof for the first time in many years. With this and some great people lined up to join us the future of Birketts looks very positive.”

Farthing will continue to be a partner at Birketts. Following a sabbatical he will return in autumn to head up the firm’s rights of way practice.