Edward Fennell’s Legal Diary – Edition 89

Friday 21 January 2022 

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

SHORT THOUGHT FOR THE WEEK – TROUBLE AT THE TOP

Something definitely seem to be going awry at the top end of British society – in the law, in education and, of course, in government. In short, is the country rotting from the top?

In the legal sector we see it this week at Mishcon de Reya which, for the second time in a month, has been in trouble with the authorities for breaking well-established rules over banking facilities, due diligence and anti-laundering measures. Meanwhile in education the reputation of Oxford University worldwide is being put at risk by the antics of the dons at Christ Church (founded by Cardinal Wolsey and maybe the university’s most prestigious college) which are having a ‘deleterious impact’ on the rest of the institution according to Vice Chancellor Louise Richardson. And among politicians and members of the royal family…well you don’t need to be reminded.

These flaws and failures (and the time consumed in addressing them) are symptomatic of the decay in direction highlighted by Sir Tony Blair this week. Leadership is not bumptious bluster and bombast. Maybe all of our leading institutions and prestigious bodies need to ‘check their privilege’.

The Legal Diarist

In this week’s edition

+ THE LEGAL DIARY OF THE WEEK

 – First Ever ‘Arbitration Team of the Year’ Awards

– Hogan Lovells secures landmark win in human trafficking case

– Catching Up with Bribery and Corruption

– Supporting social enterprise through the law

– City of Light (on in the office)

– Roll-On-Frodo readers rate Burges Salmon

+ LEGAL COMMENT OF THE WEEK on cryptocurrency, Russia, data protection rights, magistrates’ sentencing powers

+ CONTRIBUTED ARTICLE

Keeping divorce out of court: the increasing popularity of mediation by Joanna Pratt

+ APPOINTMENTS OF THE WEEK at Payne Hicks Beach and Beyond Corporate Law

LEGAL DIARY OF THE WEEK

First Ever ‘Arbitration Team of the Year’ Awards

Is there room for yet another set of legal awards? The legal industry already has a profusion of them accompanied by lavish awards events (or at least pre-Covid they did) to showcase them. But one must not be curmudgeonly about these things. The world, technology and the law moves on which probably justifies the creation by French legal tech businessJus Mundiof The Arbitration Team of the Year Awards based on data from its AI-driven search engine (which covers arbitrations in the international business, sports, and environmental sectors). “Like most of my colleagues at Jus Mundi, I am a former lawyer, so we know how hard all legal teams work. It is rewarding to recognise those arbitration teams who have had an outstanding year and made a real positive impact,” said Jean Remi, Founder and CEO of Jus Mundi.

So the winners of these inaugural awards (for 2021) are:

Commercial Arbitration Activity Award – Baker & McKenzie

According to the assessment of Jus Mundi experts Baker & McKenzie has been involved in at least 117 international cases (67 Commercial Arbitrations, 39 Investor-States, 6 Sports Arbitrations, 5 Iran-US Claims) in a variety of sectors.

 Female Empowerment Award – Medici

Medici is an Paris-based all-female-led law firm which focuses on empowering other women. It has created the Medici for Equality Endowment Fund, to which they donate 10% of the fees received from their clients and which supports and promotes gender equality and the fight against all forms of discrimination.

Transparency Award – Debevoise & Plimpton LLP; Ferro, Castro Neves, Daltro & Gomide Advogados; and Hughes Hubbard & Reed.(joint winners)

The International Bar Association (IBA) in conjunction with the Jus Mundi Partnership has made this award to these three firms for their work in collecting non-confidential information on commercial arbitration awards and making them easily accessible to the global legal community.

Jus Mundi aims to democratises access to global legal information via its search engine which combines international legal expertise with artificial intelligence.  Based in Paris and NYC, 30% of its turnover comes from from the UK.

Hogan Lovells secures landmark win in Essex lorry human trafficking case

It is rare for the Legal Diary to report on individual cases but Hogan Locells’ success for its client the Pacific Links Foundation, which represents families of the trafficked and murdered “Essex 39” Vietnamese in October 2019, is an exception.

In a landmark judgment earlier this week the Bruges Court of First Instance ruled that a damages award should be made in favour of a number of the victims. This is a ground-breaking decision, which recognises that victims of human trafficking are entitled to compensation. Funds have been confiscated from the traffickers and will be distributed to families of those affected.  “We have been advocating for victims to receive compensation from confiscated funds for some time,” said Yasmin Waljee, the Hogan Lovells International Pro Bono partner. ”This landmark judgment strengthens the case for the use of existing international and national legal frameworks to fund damages for victims of human trafficking and other abuses.”

Hogan Lovells had been instructed by Pacific Links Foundation to ensure that asset confiscation and payment of reparations would be central to the criminal justice process in this case.

Catching Up with Bribery and Corruption

Also notable from Hogan Lovells this week is the publication of its annual report Global Bribery and Corruption Outlook, which forecasts an increased compliance burden on corporations and individuals – particularly as a result of heightened environmental, social and governance (ESG) expectations.

“We expect to see the continued increase in cross-border cooperation among nations that are committed enforcers, such as the UK and U.S., alongside increased activity from other countries that are building up their anti-bribery and corruption efforts,” said Stephanie Yonekura, Global Head of Investigations, White Collar and Fraud at the firm. “Businesses would do well to review their existing compliance programs to ensure they are prepared for these emerging risks.”

The Global Bribery and Corruption Outlook 2022 report is available here.

Supporting social enterprise through the law

Just published by the Lex Mundi Pro Bono Foundation  in collaboration with Lex Mundi member firms and Morrison & Foerster LLP, is ‘Legal reform as a catalyst for social enterprise: an international social enterprise law & policy report.’

Commissioned by Catalyst 2030, a global movement which brings together social entrepreneurs and social innovators from all sectors to attain the ‘Sustainable Development Goals’ by 2030, the report is an unprecedented look at legal policies that affect social enterprise across 83 jurisdictions. Sourced by insights from hundreds of local lawyers it offers a comparative analysis of how different countries support and enable the development of social ventures.

As part of its recommendations, the report identifies six pillars in a successful strategy to better support the growth of social enterprise:

• clearly defining social enterprise
• enabling fiduciaries to consider stakeholders other than business owners
• providing tax benefits to social enterprises and their investors
• implementing easier investment vehicles for social enterprises
• guarding against corruption and “greenwashing”;
• and maintaining flexibility to allow for scaled application of rules and “opt-in” features.

“Across the world there has been growing concern about inequality, unsustainability and climate change for decades,” said Isis Bous, the Lex Mundi Pro Bono Foundation’s Managing Director. “This report offers a definitive guide on how governments can help social enterprises achieve greater impact. The COVID-19 pandemic brought sharply into focus the need for businesses to contribute to meaningful change. Social enterprise has an absolutely critical role to play in this.”

‘Legal reform as a catalyst for social enterprise: an international social enterprise law and policy report’ is available here.

City of Light (on in the office)

In recent months the Legal Diary has run several stories about law firms moving to new offices in London and the regions. In every case much has been made of how the new facility has been designed to meet the ‘new normal’ of hybrid working and a presumption that staff will be operating remotely for much of the time. 

Not so, however, at BCLP in Paris which has just consolidated its staff into a new purpose-designed office in the Liberty building at 36, rue La Fayette in the 9th arrondissement of Paris in the heart of the city’s new business district.

No remote working is envisaged here by the sound of it. Au contraire!

“With this new space, we are providing our teams and clients with optimal conditions for working on site in terms of quality, accessibility and collaboration. The offices and reception areas have been designed to encourage conviviality, teamwork and knowledge sharing,” said Constantin Achillas, co-office managing partner.

Conviviality! Now that’s a new word in the lexicon of legal jargon. Can’t see it catching on – not on this side of La Manche anyway.

AND FINALLY …ROLL-ON-FRODO READERS RATE BURGES SALMON

 
Just announced this morning, Burges Salmon has been named the RollOnFriday ‘Best Law Firm to Work at 2022’.

 “This award is unique as it’s based on our people’s individual views of the firm,” says  Burges Salmon’s Managing Partner, Roger Bull. “Over the past two years, we have focused on building strength and resilience that comes from our culture of working together and supporting each other.  It is this culture that has helped us meet the challenges we have all faced together. 

“At Burges Salmon, we are proud to have the courage to care – for our people, our clients and for the wider communities around us.  Everyone in the firm makes Burges Salmon what it is.  That’s why there’s genuine pride in the firm; it’s therefore especially humbling to receive this fantastic accolade.”

Well done BS!

LEGAL COMMENT OF THE WEEK

TOPIC:  The class-action lawsuit in the U.S. from a group of cryptocurrency investors against Kim Kardashian and Floyd Mayweather

COMMENTARY BY:Mark Kenkre

“Action is needed to prevent endorsements of cryptocurrency quick riches, a delusion that has become increasingly popular for celebrities to promote on social media. These high-profile individuals are idolised by the younger generation who are likely to take their advice as influencers.

The FCA should play a greater role to ensure that the high-risk nature of cryptocurrency is properly communicated to potential investors in such endorsements. This is of particular importance when coins such as EthereumMax rely so heavily on influencer marketing to dupe investors into trusting the financial opportunities.

It is also arguable that these celebrities should be held personally liable to complete adequate due diligence into the products before making any endorsement. This will encourage celebrities to consider the implications of their endorsements and to consult with suitably trained individuals who can highlight the risks involved with the relevant financial products.”

 Mark Kenkreis a  Partner at Keller Lenkner UK

TOPIC: Russia’s central bank proposal to outlaw all cryptocurrency operations in the country.

COMMENTARY BY: Ed Anderson

 “Russia’s proposal to ban cryptocurrency operations will be a concern to providers and investors worldwide.  However, as seen following a similar decision by China last year, the crypto market has proved so far to have been remarkably resilient in the face of prohibitions in various countries, increased regulation in others or controversy about its ESG credentials. Whether this continues remains to be seen.   

 For now, as seen by the recent announcement regarding FCA regulation of crypto advertising, the UK is taking a more measured approach to the undoubted risks posed.  As long as that approach continues in the UK and other major global markets then it is perhaps unlikely that the latest announcement will have any significant affect on consumer appetite in the short to medium term.”

Ed Anderson is a partner at Browne Jacobson

COMMENTARY BY: Nigel Brahams

 “Given that the ban doesn’t prevent Russian investors from holding cryptocurrencies abroad, this may not have quite the impact that some might fear on the price of crypto. Of course, if there is a domino effect and other countries follow suit this could narrow the options for investors and could result in a squeeze.

 In terms of domestic impact in this country, the only likely impact might be the export of crypto from Russia to other more crypto friendly jurisdictions, potentially including the UK.

 In other words it’s probably not such a big issue as it sounds at first sight. The Chinese ban had no long term impact on the price of bitcoin.”

Nigel Brahams is a financial services partner at Collyer Bristow 

TOPIC: The publication by the ICO of an enforcement order  requiring the Ministry of Justice to respond to nearly 8,000 outstanding data subject access requests by the end of 2022.  In case

COMMENTARY BY: Edward Machin

“This enforcement notice underscores the importance of replying to individuals’ rights requests promptly and in full, rather than hoping that a partial response will satisfy requesters who are increasing aware of their data protection rights. Whilst responding to a large volume of requests can be time consuming and costly, a backlog of unresolved cases creates a time bomb that is liable to detonate at any point.”

“Much has been made of the GDPR’s significant fining regime, but a notice to take specific compliance steps within a defined period of time can often be more painful for organisations, which have to address specific failings with the threat of a fine hanging over their heads if they don’t do so.”

“In the early days of the pandemic the ICO acknowledged that organisations were fighting fires on multiple fronts and made clear that it would take a flexible approach to enforcement of data protection laws. But that leniency isn’t a get out of jail free card, particularly where long-running compliance issues haven’t subsequently been addressed.”

Edward Machin is a lawyer in Ropes & Gray’s Privacy, Data Protection and Cybersecurity team.

TOPIC: The Government’s decision to raise Magistrates’ sentencing powers to 12 months for ‘either way’ offences in order to bring down the Crown Court backlog

COMMENTARY BY: Daniel Martin

 “The current proposals are radical and may cut the numbers of cases proceeding to the Crown Court initially. However, defendants in the lower court have a right to a de novo appeal in the Crown Court, meaning that it is automatic and that the legal test whereby appellants must obtain permission from a single judge in the appeal courts does not apply. Therefore, serious thought will need to go into streamlining the appeals process in the Crown Courts otherwise the effect of the new measures will be offset by an increase in appeals, as many others have predicted.

“The government have tried to suggest that this appalling state of affairs is to do with Covid-19, but it is in fact the direct result of decades of underfunding the Criminal Justice System. HMCTS, criminal legal aid, the CPS, the Probation Service and the Police all require targeted investment to bring our criminal justice system back to where it should be and once was, a world leading system based on fairness to both victims and defendants.

“The most radical step the government could actually take would be to properly fund the whole system, which would massively benefit society as whole. However, the criminal justice system has a reputation for not being a ‘vote winner’, except when governments arbitrarily increase sentences for certain offences following a headline grabbing case.”

Daniel Martin is a Partner at JMW Solicitors

CONTRIBUTED ARTICLES

Keeping divorce out of court: the increasing popularity of mediation by Joanna Pratt

Over recent years, family mediation has become an ever more popular forum for couples to resolve issues following the breakdown of relationships.

Mediation is a process whereby individuals openly discuss issues and disagreements with the guidance and assistance of a trained mediator. The role of the mediator is to act impartially, and to facilitate a dialogue between the individuals, and assist them in reaching a consensus. Mediation is not marriage guidance or couples counselling.

Resolving family disputes through the court system has become more and more challenging over recent years. Many courts have been closed. The court service largely operates centralised telephone systems, and it is increasingly hard to speak to a member of the court service if there are queries with regard to a court case.

The pandemic has exacerbated the delays which were already being experienced within the court system. Judges are working as hard, if not harder, than ever, but there are simply not enough courts and judges to progress all cases as proactively as they should be.

Another advantage of mediation is that if couples are able to reach their own agreement with regard to financial issues and the arrangements for any children, it can only help their longer term, ongoing relationship – particularly if they are co-parenting their children.

Mediation is increasingly the preferred forum to resolve issues.

Most separating couples who have children recognise that as co-parents, they are the best people to make decisions about their children’s future lives. As well as conventional mediation, some mediators are qualified to meet the children themselves. Having had an initial meeting with the parents, the mediator will then have a meeting with the children without either parent being present.

After meeting with the children, the mediator will report back to the parents any points which the children have been specifically agreed can be relayed to their parents. The children are not asked to decide what will happen, but are simply told that their parents want to know how the children feel about the current situation, and any suggestions the children have with regard to future arrangements.

Since there are no immediate signs of the delays in the court system improving, it seems likely that the popularity of mediation, and other alternative dispute resolution forums such as collaborative law, will continue to increase.

Joanna Pratt is Head of Family Law at Thomson Snell & Passmore

APPOINTMENTS OF THE WEEK

CHARLOTTE SKEA-STRACHAN has been promoted to the post of Legal Director at Payne Hicks Beach. Previously a Senior Associate at the firm she has extensive expertise in pre- and mid-nuptial agreements, divorce, co-habitation and complex financial disputes. She is also an expert in private children matters, including advising on with whom children should live and spend their time, and applications for leave for children to move to a different country.

Skea-Strachan is ranked as a “Rising Star” by Legal 500 and has been involved in a number of high-profile cases. These include most notably Owens v Owens which led to the introduction of the Divorce, Dissolution and Separation Act 2020 which is due to come into force in the Spring and permit ‘no fault’ divorce in England and Wales.

“I am delighted to be promoted to Legal Director,” said Skea-Strachan. “I have been privileged to work alongside the best family solicitors in the country, as well as developing my own legal practice, over the last 15 years. As our firm goes from strength to strength, I am excited to continue my journey.”

HANNAH AL-SHAGHANA has been appointed as partner at Beyond Corporate Law, a leading practice in the North-West, to support the growth of its real estate team. 

Al-Shaghana has worked in the real estate sector for over 14 years, across a variety of commercial property work including acquisitions and disposals, secured lending and all landlord and tenant transactions. She has received several accolades throughout her career but most recently has been recognised as a “Next Generation Partner” in the Legal 500 in both 2019/2020 and 2020/2021.

Beyond Law Group is a ‘disruptive’ legal business which aims to create, build and manage specialist legal practices under a single modern business structure. “We are thrilled to have Hannah join the Beyond Law Group,” said Matt Fleetwood, the Group’s founder. “The valuable knowledge and diverse expertise delivered by Hannah will bring a great sense of strength and depth to the real estate team and will help to guide us through our fastest period of growth and success.”

E-VENTS

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Legal Leaders Programme – A lawyer at the table: being influential in your organisation In collaboration with Thomson Reuters, we are delighted to bring you the first in a series of four webinars. Date: 23 February 2022    Time: 2.00pm -3.15pm (GMT) In this event we will explore how the in-house lawyer can ensure that they are involved in the most legally significant areas of their organisation’s business and ensure that they are involved at a time when they can influence outcomes rather than being seen as a legal ‘rubber stamp’ on decisions already taken.  The session will consider important challenges for in-house lawyers around: influence and persuasion;how to develop relationships; and trust and the contribution of the in-house lawyer to the leadership of the organisation.   Please click the Accept button to register for this webinar. Once you have registered you will be sent a confirmation email with full details. If you have any questions, queries or comments, please contact us at admin@legalleadership.co.uk  ACCEPT

We hope to be back next week so please send your legal diary stories, news and comment to

fennell.edward@yahoo.com

And who knows – maybe by this time next week we’ll be out by One PM.