Diary news plus insights, commentary and appointments from the legal world

31 January 2025

Editorial contact: fennell.edward@yahoo.com

SHORT THOUGHT FOR THE WEEK: CORRIDORS OF POWER?

There was a profound sense of deja-vu this morning as sources close to the Government started to complain about the law and, more particularly government lawyers. Referring to the Attorney General, Lord Hermer, the source observed, “He seems to think — and has said as much — that international law is more important than national law, and that’s totally insane. It’s a massive misunderstanding of how the public see their government and the laws that are made in this country.”

So has there been a time slip somewhere and we are back to the Tories slagging off lawyers, the courts and the legal Establishment?

Of course lawyers and politicians should not cosy up too much – there should be a healthy, respectful tension between them. But instead we seem to have chronic, cross-party misapprehension and muddle between the two classes. One might have hoped that barrister Starmer could have brought some clarity to that. Apparently not. But with with an avalanche of planning controversies starting to loom it is high time that everyone should begin to understand the ground-rules.

The LegalDiarist

In this edition

+ LEGAL DIARY OF THE WEEK

Catching Up with White-Collar Crime

Hogan Lovells Hooks into Bribery

Lady Carr Counsels Mediation

Goading Gide

+ LEGAL COMMENT OF THE WEEK

on opening up the family courts to the media, going for growth between Oxford and Cambridge, investigating cloud service activities

+ APPOINTMENTS OF THE WEEK

at BCLP and Birketts

LEGAL DIARY OF THE WEEK

Catching Up with White-Collar Crime

White-collar criminals are increasingly in the cross-hairs of government agencies according to a new report from A&O Shearman just out this week. “This is a comprehensive look at a range of new and existing measures and challenges relating to white-collar crime including whistleblowing, compliance programs, cybersecurity, ESG and internal investigations,” explained Eve Giles, U.K head of investigations and white-collar crime. “As our report demonstrates, several jurisdictions have been tightening rules in the cybersecurity space: for example, Australia’s 2024 Cyber Security Act. Law and practice in this sphere is evolving rapidly and the expertise, global reach and depth of our practice is geared towards helping companies manage an agile response.”

The expansion of corporate criminal liability has been a marked feature of recent developments with many jurisdictions now introducing new offenses and expanding the scope of existing laws to hold companies accountable for a broader range of misconduct. Meanwhile in America it is almost anyone’s guess on what the Trump administration might introduce but the report suggests a possible significant shift in U.S. enforcement priorities. “National security interests will remain central to the U.S. enforcement regime, with the targets of those interests potentially shifting away from Russia and towards China and other jurisdictions,” says the firm.

Meanwhile in China itself, there are more encounters with the Communist Party of China’s (CPC) disciplinary arm in anti-corruption matters involving foreign entities or foreign investors in PRC. “China has also started to challenge publicly the trading decisions of foreign owned companies under its anti-sanctions laws, including its ‘unreliable entity’ mechanism. This can lead to a company being listed on the ‘unreliable entity list’ which can disrupt dealings in China.”

No wonder Eve Giles observed, “All told we are facing a situation of growing complexity globally.”

The  A&O Shearman Cross-border white collar crime and investigations review 2025 is here  https://www.aoshearman.com/en/insights/cross-border-white-collar-crime-and-investigations-review-2025?utm_source=pr-media&utm_medium=email&utm_campaign=white-collar-crime-2025 

Hogan Lovells Hooks into Bribery

On the same theme as the A&O Shearman report, Hogan Lovells launched this week its Bribery & Corruption Outlook for 2025, to examine global trends and enforcement priorities across the globe’s jurisdictions with the U.S., UK, and EU all introducing significant reforms and recalibration of enforcement strategies.“Political shifts could redefine the global enforcement landscape in ways we’ve not seen before,” said Liam Naidoo, Deputy Head of Investigations, White Collar and Fraud at Hogan Lovells.

Intriguingly the report posed the question whether 2025 will be ‘Year of the Whistleblower,’ driven by changes in EU law, an increased U.S. focus on disclosures, and calls for whistleblowing reforms in the UK. Companies are now under growing pressure to enhance internal reporting mechanisms to minimise the risk of external whistleblowing.

“Governments around the world are continuing to focus on anti-corruption regulation and enforcement, and we saw numerous legal developments across the United States, Europe, APAC and Latin America,” said Stephanie Yonekura, Head of Investigations, White Collar and Fraud. “ “It’s even more important today for companies to take a careful look at how their compliance programs align with the laws and regulations in every jurisdiction in which they operate.”

The other pressing issue is AI and technological advances in compliance with updated DOJ guidance emphasizing AI’s role in compliance programs and enterprise-wide data access. Companies will now need to integrate technological advances to drive efficiency and reduce costs. “The integration of AI in compliance processes offers a promising opportunity to streamline efforts and manage costs,” said Stephanie Yonekura. “However, companies are expected to assess risks associated with AI deployment and adjust their compliance programs to meet that risk.”

Access the full Bribery & Corruption Outlook 2025 here.

Lady Carr Counsels Mediation

Lady Carr, the Lady Chief Justice, was at the British Institute of International and Comparative Law earlier this week to deliver a lecture on the topic of Mediation after the Singapore Convention. As Lady Carr pointed out, mediation “Is likely to play an important role in promoting the rule of law, both domestically and internationally – as is happening with the promotion and development of international commercial courts.”

The United Kingdom became a signatory in 2023 but has not yet ratified the Convention. But Lady Carr observed that it was the commercial world which reinvented mediation when the growth, “almost a boom”, of international arbitration brought the problems that persistently trouble courts – cost and time. The pandemic added an additional factor: managing commercial contract disputes at times when the survival of the market-place became even more important than the enforcement of the rights of parties.

“It is wrong to fall back into “old and bad habits,” she said, “to view litigation, arbitration, mediation and other forms of consensual dispute resolution as standing in opposition to each other: as competitors, with the success of one harming or hindering the success and efficacy of the others. The better view is that the rise of mediation does not mean the fall of litigation. Quite the contrary: mediation can only exist so long as litigation leading to judicial decision-making flourishes.”

Highlighting the need for a “a holistic approach to international mediation, arbitration and litigation” Lady Carr asked whether there was a need for the establishment of a London Dispute Resolution Committee to make recommendations on how best to provide for the success of the system as a whole. The introduction of similar initiatives could also support England and Wales becoming a leading international mediation centre.

Spyros Maniatis, Director of the Institute said, “The Lady Chief Justice offered our audience and the government a pathway that could follow ratification by the UK of the Singapore Convention and strengthen even further the position of London as both an applied and intellectual mediation hub. The Institute will be there to support such a promising initiative.”

Goading Gide

In another deja-vu moment this week – or maybe deja-vue in this case – Gide made a big deal about its newly launched visual identity and a new website. The claim is that the new image will “cement its market-leading position.”

Quite how that happens is not clear – cementing seems to suggest getting stuck without any flexibility or litheness. In any case, the whole idea of a law firm talking about its new logo seems so, shall we say, 1980s.

Anyway, this is what the promotional spiel goes on to say:

“Refreshed and reimagined: a new visual identity underscoring Gide’s position as a top-tier law firm

Contemporary and elegant, these fresh graphic elements capture the change face of a firm dedicated to putting its clients first and nurturing its talent. With the emphasis on “Gide”, the new, more memorable logo symbolises what makes what sets the firm apart.”

Aside from the dodgy grammar in that final sentence, the LegalDiary’s instinct is that visual imagery should speak for itself – once you start to gloss it you confuse the issue. Strong visual images need no interpretation – even from the French.

+ LEGAL COMMENT OF THE WEEK

TOPIC: The ‘Watershed Moment’ of Transparency for the family courts

COMMENT BY: Rachel Fisher, Partner at Stowe Family Law

 “The long-awaited day arrived this week, heralding a new era of transparency in the Family Justice System.

From the 27th January 2025, journalists and accredited legal bloggers were able to report on private and public family law cases, in all courts after requesting a transparency order (which will include privacy clauses) from the sitting Judge. The rollout is being staggered after a successful pilot.

Since the pilot was initially launched in January 2023, there has been significant progress and multiple expansions. This ‘watershed’ moment, as described by Andrew McFarlane, has been welcomed by professionals, particularly as family law lags behind other areas of law when it comes to transparency. Coverage has included a number of important cases, such as those involving removing parental rights for convicted sex offenders.

For those victims of domestic abuse and other vulnerable adults who have experience of the Family Court, an expansion of the Transparency project is welcomed given that the anonymised reporting will help spread awareness of these issues that the Family Court deals with.

However, there is still a degree of uncertainty. Allowing journalists to report on some of the most painful of life’s experiences, does not come without its risks. Some professionals have argued there are opportunities for minor children to be indirectly identified. Nevertheless, there is a presumption that a transparency order will be granted to protect the anonymity of the children and families involved in these cases which should provide reassurance to those concerned in that regard, as significant effort will be made by Judges to ensure anonymity. It is understood that there have not been any breaches of anonymity under the pilot so far which is positive.

Our priority is the wellbeing and safety of clients, who are working through hugely difficult life events. I believe that a more transparent Family Justice System will mean more accountability, prioritising the needs of those within it along with providing knowledge and understanding to the wider public of the work of the Family Court, which can only be a positive step.”

TOPIC: The Government’s new resolution to drive for growth including the Oxford-Cambridge arc (regardless of bats)

COMMENT BY: Alison Ogley, Planning Law Partner, Freeths

“The continued commitment from the Chancellor in support of major infrastructure projects is to be welcomed. It will be imperative now to ensure that DEFRA and Steve Read are able to swiftly progress with the proposed amendments to the environmental impact assessment which have been awaited for some time, dating back to the previous Government. 

“The Chancellor clearly understands the pressing and critical demand for investment in the UK’s infrastructure and, should the Governments proposals for reform to the national infrastructure planning system be quickly progressed, this will support the realisation of these ambitions. It is useful that the Government appears to understand that development and environmental protections are capable of being mutually consistent. However, much more work is required to ensure that the planning system is geared towards achieving these objectives rather than the present position where increased litigation based on environmental issues is used to delay and frustrate development often inadvertently holding back schemes which could in fact deliver environmental improvements.”

COMMENT BY: Charlotte Harpin, Partner in the health and life sciences team, Browne Jacobson

“Ambitious moves to position the UK as a global leader in AI and life sciences will always be welcomed and, if the government’s plans to breathe new life into the Oxford-Cambridge arc are executed effectively, this can help to unlock economic growth while moving us to move from a curative to preventative healthcare system characterised by early interventions.

“However, there’s no escaping the fact that while Silicon Valley has set the global standard for technology over the past two decades, the advent of DeepSeek in China shows there is increased competition in the tech space.

“The rampant success of this small company at a comparatively small development cost may well be a catalyst for firms in Europe and the US to re-evaluate their business models and pricing structures. This indicates why it’s important the UK government keeps up with the immense speed at which AI can move if it is to fully grasp the opportunities it presents.

“A successful AI strategy must also be underpinned by an enabling visa system that brings the most talented people working in AI and life sciences to the UK. As data centres and other systems associated with AI are huge energy users, careful consideration is also needed of how we marry up the accelerated rollout of emerging technologies with the UK’s commitment to reducing carbon emissions by providing dedicated green energy infrastructure.

“From a legal perspective, investment in AI and life sciences must be complemented by a regulatory ecosystem that enables safe innovation and the secure exchange of personal data across borders in order to inform joint research projects and clinical trials for AI to learn effectively.”

TOPIC: The recommendation by the CMA, using its new digital markets powers, to investigate AWS and Microsoft’s cloud service activities

COMMENT BY: Alex Haffner, a competition partner, Fladgate

“What is most interesting about the provisional decision is that, rather than looking to impose remedies on AWS and Microsoft through the market investigation process, CMA is instead advocating the use of its (broader) powers under the new legislative Digital Markets regime to designate the parties as having Strategic Market Status (SMS) which needs to be regulated. In some ways, this is a regulatory version of kicking the can down the road since it will involve a new set of investigations to be carried out. However, assuming such SMS is found, the CMA will argue it will have more arsenal at its disposal to use in order to keep the parties in check and in keeping with the way it is looking to deal with Big Tech more generally, as evidenced by recent SMS investigations being opened into Google and Apple.”

+ APPOINTMENTS OF THE WEEK

BCLP

Damien Luqué (above centre) and his financial regulation and asset management team are joining BCLP. Formerly with Allen & Overy (2008-2014) in the Capital Markets team, Luqué extensive experience when he was seconded to AXA REIM SGP and the equity team at Goldman Sachs Paris. He also practised in the Financial Services team at CMS-Francis Lefebvre (2014-2017) before joining Lacourte Raquin Tatar in 2018 as a partner.

With a core practice focused on asset management and financial regulation he has worked with a wide range of clients across credit institutions, asset managers, and institutional investors. He has deep experience advising clients on investment vehicles structures, including alternative investment funds, UCITS, private equity funds, debt funds, ELTIF II funds and other collective investments.

“Damien’s proficiency, along with that of his team’s, aligns seamlessly with our existing work,” commented Olivier Mesmin, Co-managing partner at BCLP Paris, “Their combined experience will further enhance our corporate, tax, finance and real estate offering.”

 Luqué added, “ We’re excited to grow our business at BCLP to offer an integrated international dimension that meets the expectations of both French and international clients.”

BIRKETTS

John England (left) is joining Birketts as a Partner in its Commercial Real Estate Team in London. Previously with Mishcon de Reya, where was a partner for over 15 years, England has a strong international following with a particular focus on investors from, or with connections to, Asia who are investing in commercial and residential real estate in the UK. He boasts more than 20 years’ experience in all aspects of real estate transactions, including corporate real estate acquisitions and disposals, pre-lets and development agreements, as well as the real estate aspects of investment and development finance.

It is great to be joining Birketts and to be part of its continued growth,” commented England. “Both its culture and fantastic real estate team that has extensive experience across the sectors into which my clients are currently investing provide a natural fit and an opportunity to expand Birketts’ UK and international reach.”

Grace Kerr, Head of Real Estate at Birketts, said: “Our London presence is growing and that includes the Commercial Real Estate team. John’s arrival will add to the team’s experience and give added weight to Birketts’ ambitions in the capital.”

We hope that you’ve been interested or amused by something in this week’s LEGAL DIARY. If so do send on to colleagues.

And please continue sending your ‘Diary-type’ stories, insights legal comment and appointments to

fennell.edward@yahoo.com