Category: In-house

  • Face-to-Face: Matjaz Jan and Miha Ursic

    Face-to-Face: Matjaz Jan and Miha Ursic

    ODI Law Firm Partner Matjaz Jan interviews Miha Ursic, the General Counsel of HIT d.d. in Slovenia for CEE Legal Matters’ Face-to-Face.

    M.J.: Please describe your path to become a general counsel? Which skills and attributes do you think were useful in becoming one? 

    M.U.: I have been with the casino and entertainment company HIT since the start of my 11-year-long professional legal career. I started as a trainee, gradually grew to the position of a legal counsellor, and was appointed General Counsel four years ago. The most important special skills required to be successful as a General Counsel is a deep knowledge of the internal processes of the company, as well as special substantive laws and regulations. The most important attributes are loyalty, dedication, and honesty, all of which are required to stay with a company for the long term and reach the top.

    M.J.: Where do you see the biggest differences between a General Counsel and other lawyers?

    M.U.: A General Counsel must not only focus on the legal aspect of his or her decisions, but must always take into account what exactly each decision would mean for the company. Therefore, the general counsel must make a decision which should bring the best benefits to the company while keeping any risk as low as possible.

    M.J.: Do you think that General Counsels have to form themselves as lawyers first, whichever industry they may work in, or should they start in their target industries as soon as feasible?

    M.U.: The important thing is that a person gets as much work experience in a company as possible – even better if it is in the target industry. It is distinctly different than working in a law firm or at a government agency. You gain knowledge of how a company and its employees (most of which are not lawyers) work and breathe together. The opportunity to know how things would work at the ground level in each individual company is invaluable. 

    M.J.: A General Counsel must also be a good leader. How do you inspire your other team members to be part of your vision? Do you prefer a more high-level or hands-on approach when managing people?

    M.U.: Team management is one of the main pillars of my work. How you approach things should first and foremost be focused on the team itself and not on the person leading. If you work with a small group of people, which is the case at our company, a hands-on approach is possible. We have managed to build honest and direct relationships and everyone knows what my thoughts, goals and values are due to our daily discussions and brainstorming sessions. Once the general course of the group is set, you need to trust the employees to implement your vision and execute it however they may see fit.

    M.J.: Which challenges and responsibilities of leading an entire legal department do you deem most important?

    M.U.: The gambling industry is one of the most regulated industries there are, so it is very challenging to find a quick, economical, and at the same time legally compliant solution to every problem. You need to know the regulatory practice and landscape, the market trends and your competitors, and your company itself, and fuse all this knowledge when deciding how to proceed.

    M.J.: How do you determine the size and levels of expertise of the team members in your legal department?

    M.U.: This is mostly a trial and error process. When deciding how many skilled   people to hire, you try to plan for future needs and then see how things end up and adjust accordingly. It is quite difficult to know what is going to happen until it does, and positive and negative surprises are common. You can only learn from past experience and trust your instinct. And through this process we have been able to assemble a very skillful legal team – which I consider the strongest in the Slovenian gambling industry.

    M.J.: A General Counsel also manages external resources. How do you decide to outsource a legal case or project and how do you manage both and in-house teams? 

    M.U.: We ask our external lawyers for help when we deal with a specific legal matter which can be separated from the rest of the processes, when we face a big court case or strategic decision with a lot on the line and where special legal knowledge – or at least a second outside opinion – is required. At the end of the day, however, each case is by its nature embedded in the work process of the company and both teams need to work together to exchange knowledge and experience and achieve the optimal solution.

    M.J.: How do you decide when choosing your external counsel? Which criteria determine an external counsel’s successful pitch (for example, price, references, field expertise, length of cooperation)?

    M.U.: My most important criterion is whether I completely trust the counsel to do the right thing. This trust is primarily built through working together for many years, therefore the length of successful cooperation is considered very important. You can always look into referrals from other people, but you cannot really know who you are working with until you actually work with them for an extended period of time. This also brings to light the real level of their expertise and their real value. Only then can you really compare it with the price you pay for their services. This is also why I do not really take into account the counsel’s reputation and rankings when making my decision.

    M.J.: For matters outside your home jurisdiction, what is the type of cooperation that you prefer? Do you prefer to utilize the services of a foreign office of your go-to law firm, their foreign contacts from past projects, their foreign contacts from various international law firm networks, or an entirely new firm?

    M.U.: We have experienced different types of collaboration and it all depends on what kind of services we specifically need. As a general rule, a higher degree of international cooperation and seamless coordination between foreign lawyers and ourselves or our external counsel, especially if it is for a longer period of time, is always welcome. But in any case, the physical presence of the lawyer in the city or country where you are doing business or having a dispute is obligatory.

    M.J.: Why did you choose ODI as your external counsel?

    M.U.: I have great trust and confidence in your work. I like your professionalism and fast responsiveness.

    M.J.: Regarding your work with external counsel, where do you see the most room for improvement?

    M.U.: Nowadays, regulation has become so developed and specific for each sector of the economy that a high degree of specialization is a must, even for an external counsel. I am also a supporter of closer relationships and regular contacts and discussion. Therefore I would like to see non-billable meetings as a core offering of all external counsels. This should not be viewed as a free service but as an investment in the relationship between the client and the counsel, of which both parties can gain value.

    M.J.: How do you follow amendments of legislation and stay up-to-date with the newest legal developments? Which legal market trends do you anticipate in the forthcoming years?

    M.U.: We follow amendments of legislation by following special Internet pages designed for this purpose. We also have weekly internal meetings where one lawyer reports on the newest developments. Regarding the trends, I would like to stress that bigger is not always better. The best lawyer is the one who is above else focused on your problem and involved in resolving it and who can reach into extensive knowledge about the client as well as the law when searching for the best solution.

  • Deal 5: Operating Partner at EMPower Capital Stanislav Nikolaev on Acquisition in Bulgaria

    Deal 5: Operating Partner at EMPower Capital Stanislav Nikolaev on Acquisition in Bulgaria

    On May 3, 2017, CEE Legal Matters reported that facility management company Mundus Services – a joint venture of EMPower Capital and KJK Capital – had acquired engineering solutions and services company VM Automation from VM Finance Group in Bulgaria. Stanislav Nikolaev, Operating Partner for EMPower Capital, agreed to answer our questions about the deal.

    CEELM: Mundus Services is a JV of Empower Capital and KJK Capital. Was KJK Capital involved in the acquisition and what was their role in the process?

    S.N: Just to clarify, KJK (42.5%) and Empower Capital (42.5%) are partners in Mundus Services along with Mr. Lachezar Petrov (15%) – founder of Viki Comfort, one of the companies initially acquired by the JV. The two funds have two representatives each on the Board of Directors and we are all equally involved in the strategic management of Mundus Services, including in the process of acquiring VM Automation: Negotiations, valuation, due diligence, etc.

    CEELM: According to a DGKV press release, “the acquisition of VM Automation will add technical capabilities to Mundus’s portfolio.” Can you describe what those technical capabilities are, exactly?

    S.N: VM Automation is a leader in providing engineering solutions and services for energy efficiency and automation for enterprises and office buildings in the fields of industrial and domestic air conditioning, heating and ventilation, refrigeration equipment, backup and uninterruptible power supply (UPS and diesel / gas generators), and precision air conditioning technology for data centers, clean rooms, and infrared heating. The company offers complete engineering including investment consulting, technical management, design, supply and installation of complex solutions, and commissioning, warranty and post warranty maintenance of equipment. VM Automation delivers a wide range of maintenance & repair services for all types of equipment, as well as the supply of genuine spare parts, which minimizes the risk of breakdowns and equipment failure. The company is the official service center in Bulgaria of Johnson Controls, YORK, EATON, Systemair, Sital Klima, Riello UPS, SDMO, Alimar, SABROE, VIVAX, among others.

    CEELM: How did you decide to work with DGKV on this acquisition?

    SN: Based on our experience DGKV is our preferred and most reliable partner for legal due diligence, legal advisory, and documentation preparation. Mundus Services was creation originally from the acquisition of two companies, and subsequently expanded with two more acquisitions. DGKV were involved with Mundus from the initial stages of due diligence and of the establishment of Mundus Services. In this particular case we started working with DGKV since the setup of the JV and the natural choice was to continue this cooperation on the acquisition of VM Automation. We are convinced that DGKV are the go-to legal firm for complex transactions like this.

    CEELM: DGKV assisted you in the negotiation process. What exactly was the firm’s role? Did it lead the negotiations, or focus more on the drafting and documentation while you led the actual negotiations?

    S.N: We, the two funds, were leading the negotiations, while DGKV assisted us during the process and of course they took care of drafting all the necessary documentation.

    CEELM: Do you intend to establish an in-house legal function for the company in the near future? Is there any advantage when CEOs/COOs manage the external counsel directly over the in-house lawyer?

    S.N: No, at this stage we do not consider the option to establish an in-house legal function, because we don’t need it. The question about the advantage when CEO/COO manage the external counsel seems too broad to me, because it all depends on the nature and the size of the business. For daily, routine legal issues we can indeed rely on an in-house lawyer, but when it comes to more complicated and serious problems like preparing transaction documentation, court cases or negotiations, we consider it appropriate and less time-consuming for the decision making process if the CEO/COO liaise directly or work closely with the external counsel.

  • Deal 5: AS Inbank General Counsel Ivar Kurvits on Eesti Energia Bond Issuance

    Deal 5: AS Inbank General Counsel Ivar Kurvits on Eesti Energia Bond Issuance

    On November 18, 2016, CEE Legal Matters reported that Eesti Energia AS had issued EUR 500 million bonds, which were listed on London Stock Exchange. We reached out to Ivar Kurvits, who acted as the General Counsel at Eesti Energia at the time of the transaction (he is currently General Counsel at AS Inbank), to comment on the deal.

    CEELM: This EUR 500 million bond issuance was reported to be the largest in Eesti Energia’s history. What concrete plans was this bond issuance made for?

    I.K: The main aim of such a large bond issuance for Eesti Energia AS was to use the favorable interest rates that were offered by the market at that time and to reduce the cost of financing for Eesti Energia AS by refinancing the previous bond issuances which carried a higher interest rate. Also the MEUR 500 bond issuance allowed us to reduce the risk related to the number of refinancing events scheduled to take place within the next five years.

    CEELM: Where there any particular challenges that arose due to the value that you haven’t faced before?

    I.K: I don’t believe that there were any particular challenges related to the legal work due to the size of the issuance itself. The truth of the matter is that it really doesn’t matter whether it is a MEUR 100 or a MEUR 500 bond issuance from the legal perspective as the rules and requirements which have to be fulfilled and ticked are essentially the same.

    However from the commercial perspective there is a big difference whether you do a MEUR 100, MEUR 200, or a MEUR 500 issuance. The MEUR 500 issuance requires the banks to be able to find a much larger pool of interested parties to participate in the issuance. This also limits the number of regional banks (in addition to international book runners) which have the ability to take part in the transactions. Also combing the new issuance of MEUR 500 with the simultaneous buyback of already existing bonds requires good relationships with the current bondholders, [so one can] explain the rationale behind such offers in order to make it all happen and run as smoothly as possible when the morning brakes.

    CEELM: According to Ellex, “concurrently with the issuing of the new notes Eesti Energia AS bought back EUR 248 million worth of bonds with a maturity date in 2018 and EUR 193.7 million worth of bonds with a maturity date in 2023.” Did Ellex advise on that earlier issuance as well? Why did you choose to work with them?

    I.K: Before going ahead with the preparation of the MEUR 500 issuance we discussed internally the possible ways of including alternative external legal counsels for these transactions. However, we quickly realized that in order to have a smooth process, it would be logical and cost efficient to have the same external legal counsels advising us on both transactions. The whole MEUR 500 bond issue was so connected with both of these transactions that it made a lot of sense to use the same external legal counsel.

    CEELM: What were the considerations for which you led you to list the bonds on the Regulated Market of the London Stock Exchange?

    I.K: Ultimately there were two options for the location of the listing of the bonds. Either list some of the bonds also on the NASDAQ OMX Tallinn Stock Exchange or continue with previous practice and go ahead with the full listing at the London Stock Exchange. The choice fell for the full listing at the London Stock Exchange mainly for two reasons: The depth of the market required for a MEUR 500 bond issuance and the lower fees related to the issuance.

    CEELM: How did you split the legal work between your in-house team and your external counsel on this matter?

    I.K: When it came to the division of work between our in-house team and the external legal counsels then we opted to use a similar approach to that we had used in previous cases. As the agreements were governed by English law our international legal counsel held the pen when negotiating these agreements with the arranging banks and other institutions. The local external counsel was in charge of reviewing the agreements with respect to local legislative requirements. The main focus of the in-house legal team was on the Prospectus — namely drafting various parts of it in cooperation with the internal business and finance team which provided commercial input for the whole document. I believe that such a division of responsibilities between internal and external legal counsel provides a good balance. There are always issues which have to be taken care of by the external international legal counsel already because of the governing legislation. Then again, the real essence of the business is best known and understood by the people working for the issuer itself. That part is reflected in the Prospectus itself.

  • The Future is Almost Here: Are We Ready?

    The Future is Almost Here: Are We Ready?

    Even though we have not yet reached the speed of light, the future is almost here.

    The future comes to different parts of the globe unevenly. But we can already see its shape. What challenges do we, lawyers, have on the horizon? What can already be foreseen? Which legal questions may arise? How can we answer them? Let us consider.

    Legal Tech

    A number of new technologies are already beginning to change the legal landscape.

    Smart Contracts are special types of contracts, in electronic form, that are either fully or partially self-executing. For instance, when a cargo ship reaches the port of destination, a GPS device can inform the smart contract that its shipment has been delivered, and the contract can automatically give a command to wire money to the Seller. 

    Legal Bots use software to fill in templates of claims, requests, etc. It’s not rocket science, but it saves time. For instance, there is a bot in the UK to fill in challenges to parking or speeding tickets, complaints about flight delays, etc. 

    Computer-Assisted Document Review can help locate particular clauses in different parts of contracts, obvious contradictions, etc.

    Decision Prediction Software analyzes the court decisions of a particular judge, and forecasts the likelihood of a particular result. 

    Ghost legal firms consist of lawyers working from home, communicating and cooperating with one another via computer. Traditional legal firms are already feeling pressure from such firms because, as they have no offices, and thus no leasing and utilities costs, they are able to offer much lower prices.

    E-Justice may soon exist, consisting of autonomous, AI-driven virtual courts able to hear and resolve disputes quickly and cheaply. Imagine a judge who does not eat, does not sleep, is not prejudiced, does not get tired, and cannot be influenced by a third party. The only thing important for him or her is the law. But please forget about your psychological tricks to generate sympathy from the Court. They will not work with an e-judge.

    New Blockchain Currencies

    Bitcoin, lightcoin, and other electronic means of payment, all based on blockchain technology, are growing in popularity. The question remains, however, whether and to what extent governments will allow such currencies to coexist with their national ones. For now, authorities are very cautious in this matter, and blockchain-based currencies are prohibited in many jurisdictions. One thing we know for sure – allowing such currencies to circulate is indeed a threat to government’s currency monopoly.

    Robots 

    In the middle of the last century famous science-fiction writer Isaac Asimov proposed laws for robots, now known as Asimov’s Three Laws of Robotics:

    • A robot may not harm a human being or, through inaction, allow a human being to come to harm.
    • A robot must obey orders given to it by human beings except where such orders would conflict with the First Law.
    • A robot must protect its own existence as long as such protection does not conflict with the First or Second Laws.

    Legislators in many countries (including the EU and in Russia) have started to draft specific laws for robots. According to a recent EU draft law smart autonomous robots (i.e., not all robots) can be defined by taking into consideration the following characteristics of an intelligent robot: 

    • acquires autonomy through sensors and/or by exchanging data with its environment (inter-connectivity) and trades and analyzes data
    • is self-learning (an optional criterion)
    • has physical support
    • adapts its behavior and actions to its environment

    Can and should autonomous robots have rights, obligations, and liabilities, just as individuals and legal entities do? Should a robot have a set of basic rights? At the moment, a robot, like a car, is just the property of an owner, who is fully responsible for any damage the robot causes.

    Do we need to create a new fiction for smart robots (as we have for legal entities) providing them with legal capacity? But if  a robot is to be legally liable for something, should we then start paying it a salary, or providing it with the right to live – i.e., not to be switched off?

    In my opinion we should apply Occam’s Razor and work with the legal tools we already have: Insurance against damage to 3rd parties caused by robots; special funds, run by owners of robots, for the same purpose; programmers, designers, or producers liability for damage caused by a smart robot; and in some cases, taxes on robot labor. There is no need to provide legal capacity to robots – to complicate things without reason.

    Another related issue is the transfer of human brain function into machines (for those whose bodies fail because of age or sickness, among other reasons). Questions that will undoubtedly arise include: Is this the same person or a copy? Does the transfer of personality mean the transfer of legal rights, obligations, and property to the new being –  and how should that be apportioned for copies? Will the heritage legal mechanism be applicable here? Will an electronic person have the right to shut him or herself down, since he/she will not be limited by biological age?

    Artificial Intelligence

    Some scientists are expecting human-level artificial intelligence or even higher (so-called “superintelligence”) to appear in this century. The problems with the coming AI are more philosophical than legal: How to build this superintelligence such that no one group of people obtains an advantage over others, does not turn against humanity, and is instead used for the benefit of all people, everywhere. Several NGOs, including the OpenAI project that is sponsored by Elon Musk, are already working on this issue.

    Internet of Things

    The Internet of things is another area of fast development. Your refrigerator makes an order through the Internet and the parcel is delivered to your apartment by a drone. In turn, your apartment is a Smart House, saving electricity, using solar panels and geothermal energy, etc. Sounds good – but there are potential risks:

    • Your provider may be able to obtain control of your property against your will
    • Subscription means you pay constantly, not one-off
    • Monopoly of the provider on the related markets
    • Your property expenses increase
    • The provider can collect data from your property for unauthorized use
    Cosmos

    According to the United Nations’ Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space: 

    • The exploration and use of outer space shall be carried out for the benefit and in the interests of all countries and shall be the province of all mankind
    • Outer space shall be free for exploration and use by all States
    • Outer space is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means
    • States shall not place nuclear weapons or other weapons of mass destruction in orbit or on celestial bodies or station them in outer space in any other manner
    • The Moon and other celestial bodies shall be used exclusively for peaceful purposes
    • Astronauts shall be regarded as the envoys of mankind
    • States shall be responsible for national space activities whether carried out by governmental or non-governmental entities
    • States shall be liable for damage caused by their space objects 
    • States shall avoid harmful contamination of space and celestial bodies.

    But what should we do with the mining of asteroids (which are very rich in metals) and/or bringing them to Earth orbit to use for settlements, which may be started by private companies as soon as the 2020s? As space bodies belong to everybody, who can authorize or license such activities? Who will be granted ownership of metals from asteroid depths? How can one lease a space elevator or a space hook?

    Human colonies on Moon, Mars, and satellites of Jupiter and Saturn may also come fairly soon, requiring the creation of local law. We should start drafting it now.

    And how about a contract with Extraterrestrials? Imagine you’ve got a request from your client to think it over. The client says, “look, we need a supply contract with these ET-guys from the news ASAP.” Do they have the legal capacity to sign contracts? And how about Global Earth Customs and export/import operations through it?

    Fusion (Thermo-Nuclear Energy)

    ITER (which means “the way” in Latin), which is currently under construction in Southern France, is a magnetic fusion device designed to prove the feasibility of fusion as a large-scale and carbon-free source of energy. It is based on the same principle that powers our Sun and stars. The experimental campaign that will be carried out at ITER is crucial to advancing fusion science and preparing the way for the fusion power plants of tomorrow. ITER will be the first fusion device to produce net energy, maintain fusion for long periods of time, and test the integrated technologies, materials, and physics regimes necessary for the commercial production of fusion-based electricity. No doubt, it will change the global energy balance. But, oil and gas tycoons, you can relax till the mid of 2030s – ITER is not expected to be up and running earlier.

    Medicine and Genetics

    New medicines, including ones personally designed based on an individual’s particular DNA, are on their way. Questions to be on our table soon include those related to three or more parents of a baby and their legal status, the legal status of genetically and technically modified (augmented) people, and the legal and ethical issues of genetic experiments over humans.

    New Balance in the Intellectual Property Area

    There is a growing demand for new balance in intellectual property law, including digital rights management. Growth of the Internet and global communications requires a review of legal regulation in IP rights, since the present model, created centuries ago, is outdated in the modern information society, where people spend much more time on creative activities than they did before. The present model is not flexible enough (think how much is required to register a Trade Mark, for instance) and belongs to industrial society, seriously limiting the rights of third parties to modify somebody else’s creations for their own use, for instance. New trends in the intellectual property area include crowdfunding, free-will donations to a creator instead of usage fees, fair-use doctrine development, liability of Internet-providers and hosting service providers for violation of IP rights, among others.

    Big Data and Personal Data protection

    Banks, state agencies, retailers, advertisers, payment systems, NGOs: it seems that everybody collects personal data. They know everything about you: Where you shop, where you work, where you live, what you like, what are you up to.

    There is a growing demand from individuals for personal data protection, to maintain a legal right to exclude private info from the public space – the right to be forgotten. The right to be forgotten is a concept put into practice in the European Union in the beginning of the 21st century, arising from the desire of individuals to determine the development of their life in an autonomous way, without being perpetually or periodically stigmatized as a consequence of a specific action performed in the past.

    So, make a solicitation to be forgotten right now. Leave your laptop, tablet, cell phone and other gadgets home. Come alone. Write by pen on paper. Big Brother is watching you.

    ***

    As you see, the questions from science fiction books are already on the table. The sooner we start dealing with them, the better for us. Better to do our homework in time than to react when the issue is already here and burning.

    This Article was originally published in Issue 4.4 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

  • Sailing Through a Rough Economy: An Opportunity to Shape the Future of Legal Services

    Sailing Through a Rough Economy: An Opportunity to Shape the Future of Legal Services

    In a challenging economy, in-house lawyers face higher expectations from their clients. On one hand, legal costs are usually seen by businesses as a strong candidate for potential savings. With that in mind, in-house counsels must navigate budget limitations through different measures, including curbing external spend.

    In this article, I aim to outline how, from an in-house counsel’s point of view, law firms can provide stronger support to in-house teams. I will also briefly tackle the increasing and changing demands of internal clients and my thoughts on how in-house counsels can continue to meet, or even exceed, client expectations.

    From discussions with external counsels in different countries, I see the majority are already looking into ways to align their business models with the new expectations of in-house counsels, influenced as they are by the demands of their internal clients. In-house counsel candidly sharing their ideas, expectations, and needs could further assist law firms in accomplishing this business model change.

    The challenge with external spend is not only saving but also accurate budgeting. Compromising on service quality is not an option. Finance departments now insist more than ever on accurate forecasting of external legal spends. It is fair to say that many companies have been successful at navigating the difficulty of forecasting legal spends pertaining to emergencies, dispute resolution, and special projects. Nevertheless, a large portion of legal spend still goes to other types of external instructions that, from a Finance department standpoint, can be anticipated.

    Law firms can, in my view, be of great assistance to in-house counsel in that respect by finding innovative, flexible, and transparent ways to reach a win-win solution. For example, an in-house counsel who is responsible for multiple jurisdictions may prefer working with a law firm that can offer quality legal advice in more than one jurisdiction for an all-in annually-revisable fee cap covering a mutually-agreed and clearly-defined scope of legal services.

    In addition to receiving legal advice that is professional, practical, and provided with a great sense of urgency, most in-house counsels will appreciate a law firm’s proposition that offers value-added services, which may include one or more of the following:

    • A tool to provide up-to-date information on local law and legislative/regulatory developments
    • Contributing to orientation of new in-house lawyers
    • Designing and hosting a database of legal opinions provided to the client free of charge
    • Reasonably-priced contingent legal support during the process of replacing departed in-house counsels
    • Low Cost Centers for handling routine and relatively low value matters

    On the other hand, the demands of internal clients for in-house lawyers to act as “partners” have been on the rise. Internal clients now tend to look beyond our statements that we understand the business’s strategic goals, plans, needs, and challenges, into our actions and sometimes even the way we address them (as clients or as colleagues/partners).

    The key solution to meet those expectations is to, simply, to walk the talk. To listen to our clients and then make our actions a true reflection of what they expect – and not what we believe they expect. To build trust and personal rapport with our clients by showing that we truly understand the challenges they face and genuinely care for the business. To belong to the organization and not work in silos. To participate and share valuable input on general business matters and not only confine our contributions to the legal scope. To make ourselves accessible and available.

    Obviously, these suggestions may not be feasible for all. The key takeaway, in my opinion, is the importance of open discussion between in-house and external lawyers as well as between in-house lawyers and their internal clients. A discussion that aims at providing an understanding of the realities of the current environment and finding ways to overcome the challenges it poses. Through that discussion, we can seize this opportunity together to modernize the way we serve our clients and ensure continued appreciation of the pivotal role that lawyers have long played in international business.

    This Article was originally published in Issue 4.4 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

  • Being a General Counsel During a State of Emergency

    Being a General Counsel During a State of Emergency

    After the failed military coup in Turkey on July 15th, 2016, The Council of Ministers of Turkey declared a State of Emergency (SoE) in the country. This article focuses on the position of a GC when suddenly confronted with a SoE, needing to ensure the transformation of the company to ensure compliance with the SoE regime. 

    After the Declaration: Day 1

    By their nature, legal functions always monitor legal developments in relevant areas, and thus are often first to hear of sudden and unexpected developments. The first task is to make sure the General Counsel (GC) is informed immediately after the SoE declaration, and it is extremely valuable for the team to provide the GC with a summary of information about the SoE regime.

    The GC should then take the following actions with his/her team immediately; 

    • Check: The GC should check to ensure that the CEO, the Board of Directors, Senior Executives, and Legal Function members are safe and accessible, while seeing that HR departments are doing the same thing for employees.
    • Review: The SoE regime, including international law considerations, should be reviewed by the in-house team (with the help of external legal advisors, if necessary).
    • SoE Team: A SoE team should be created and made responsible for dealing with SoE-related issues, questions, informative tasks, trainings, and so on. This team may consist of lawyers, paralegals, and members of the finance, risk, compliance, AML department teams, along with other officers as necessary.
    • Assessment Meeting: The GC should schedule a meeting with available Senior Executives to inform them about SoE and assess the SoE’s effects on the business – if possible with the contribution of external legal advisers. 
    • Informing Employees: The legal function should prepare a summary regarding the SoE and its significance to the company and distribute it to all employees of the company. The note should include: 
      • The reason for and expected duration of the SoE
      • Things/actions to take into account under the SoE regime
      • Announcing the formation of the SoE Team
      • Any elimination or limitation of fundamental, personal, and/or social and economic rights and freedoms that may be effected by the SoE 

    A Week After the SoE Declaration

    After seven days of SoE the company should be somewhat accustomed to the SoE regime, and the following items should be completed:

    • SoE Committee: Establish a committee to monitor and manage SoE related activities, potentially chaired by the GC, receiving regular updates from the SoE team.
    • Plan of Action: The GC should ensure that Senior Executives have assessed the situation and should ensure that a resulting plan of action is submitted to the Board of Directors. This plan should, at the very least, consist of:
      • Information about the SoE regime
      • A list of responsible persons in the company related to the SoE, including emergency contacts 
      • Information about the roles and responsibilities of the SoE Committee 
      • Information about which forms of business as usual need to change, and how – especially of course those involving money 
      • Potential emergency scenarios and responses (including, potentially, a stress test).
    • Reviewing Contracts: Almost all contracts have Force Majeure clauses, and as a SoE is generally accepted as a legitimate triggering event justifying the right to terminate contracts, the legal function should review all contracts with third parties accordingly.
    • Supplier Check: The GC – with the help of the Procurement Department – should check suppliers’ contracts and their positions under Governmental Decisions, Court Decisions, and a SoE regime. (In Turkey, for instance, thousands of entities closed following the SoE Declaration and their assets forfeited to the Government).
    • Cash Out-Flows: The GC should instruct the Finance Department to be sensitive about payments to third parties or customers, and anti-money laundering programs and prevention of financing of terrorism measures should be followed scrupulously.
    • Customer Communication: The Marketing Department – with the help of the GC – should inform customers regularly about developments in the SoE and the legal position of their assets. 
    Final Tips to General Counsel

    The GC’s role in furnishing legal advice to the Board of Directors, CEO, and other senior executives is even more important under a SoE. Therefore the GC should be assisted by external legal advisers in making and communicating critical decisions. My experience is uncertainty in legislation is not unusual in a SoE, therefore the following steps may help GC in this process:

    •   Obtain the view of external counsels
    •   Communication with the regulator is key, and requesting clarification in regulations is always an acceptable approach
    •   Use associations and lobbying channels to request additional clarification of legislation
    •   Check other States’ experience in States of Emergency

    GCs are powerful persons and companies from time to time rely on their opinions or personal interpretation in business because of lack of clarity in legislation or uncertain regulations. However, making an important business or legal decision based on a personal understanding or assumption may not be as advisable in a SoE. 

    In Conclusion

    States of Emergency are, by their nature, temporary in duration but intense in their consequences, and GCs should even more proactive than normal in such periods. GC’s support to other departments during SoEs is vital, and GC should ensure that senior executives are aware of the need to consult with them before making any critical business decisions which may have a link with SoE regime. This helps GC to intervene in problematic decisions early, and protect companies against potentially negative consequences.

    This Article was originally published in Issue 4.4 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

  • How to Prepare Yourself as the Head of a Legal Department for the Rapidly Changing World

    How to Prepare Yourself as the Head of a Legal Department for the Rapidly Changing World

    Changes: Politics and Economy

    Our world is changing in front of our eyes. The political situation seems to those of us living in developed countries as experiencing the most rapid changes since the fall of communism.

    Who could have imagined five years ago that a billionaire and a media star would become the 45th President of the United States of America, the people of the United Kingdom would have opted for Brexit, and a populist leader of the Front National in France would be one of the front-runners for the French Presidency? The world economy is still recovering from the 2007 crisis – it took Dow Jones almost six years to surpass its October 11, 2007 peak when it traded at an intra-day level high of 14,198.10. Economic growth in most European countries is still weak compared to pre-2007 times and lags far behind China, India, Korea, and Singapore. This, in turn, has a significant impact on our social environment. For the last several generations, starting from the post Second World War era, we have become accustomed to the idea that the next generation would have a better and easier life. This dream was shattered by the 2007 crisis and made only worse by the instability following the swift development of ISIS, the Russian annexation of Crimea and instability in Eastern Ukraine, the immigrant crisis of 2015, and the growth of terrorist organizations eroding the core feeling of safety in Western European societies, which was one of the cornerstones of the European development to which the young democracies of Central and Eastern Europe aspired after 1989.

    Ok. You can ask: Why on Earth is this guy dwelling on the obvious things we can see on everyday news bulletins? My intention is to show you the wider context of our work as general counsel, heads of legal, or legal directors in modern European companies. Regardless whether you sit on the management team in the head office or you work as in-house lawyer in a remote location you are affected by the rapidly changing world.

    Change: Security 

    On the subject of the changing nature of security, let me start with a very down-to-earth example: travelling in Europe in these traumatic ISIS-affected times. A couple of years ago you could easily jump on a plane, train, or car and travel from Warsaw to Paris or Rome not thinking about anything but a driving licence – but today you can be stopped and search at almost any intra-European border. 

    Another example involves airport or train station safety. If you lived within the Schengen area two or three years ago you could travel without even being asked for a ID or a passport. You could arrive late without risking a long queue at the security/passport/ID control. But now you need to take into account the longer time expected for security clearance, so you need to be at the airport earlier – requiring you to exit your meetings earlier. The same will happen with train stations – following the tragic bombing at the Madrid train station in 2004 special security measures were introduced Spanish train stations, meaning your luggage now is required to go through security scrutiny similar to that at the Barajas Airport. Once again you need more time and patience.

    Another issue related with security at public places: Would you be worried about being at airports, shopping centers, promenades, or stadiums a couple of years ago? Probably not. But after the terrorist blasts at the Brussels Zaventem airport in 2016, Nice’s promenade truck rampage in July 2016, and the Christmas 2016 assault on the holiday-shoppers in Berlin, one wonders whether public places are safe anymore. What about our offices, production facilities, or nuclear plants: Are they still safe? 

    Europe – especially in the Western part of the continent – has been in a “safe” bubble since the end of the IRA/Red Army Faction/ETA bombings. But now you remain under a permanent security threat in any major city of Europe.

    Change: Technology

    Let’s consider another aspect impacting our lives: technological development.

    In terms of social media, twenty years ago Facebook, Twitter, and LinkedIn did not exist. Indeed, most of the world did not even have access to the Internet, and instead gained information mainly from TV/radio news and paper newspapers. Dissemination of news and ideas was very slow even in late 90s. Today, a piece of news goes around the world in a blink of an eye. And our private lives were different as well: In the past you would have to be a VIP/celebrity and be followed by paparazzi to have your life under permanent surveillance, while today you can be photographed at any place at any time and your picture can circle the world in a few moments. 

    So how can we face those challenges and confront them successfully? 

    First, as a team leader you need to change your frame of mind. You can no longer be “happy and fat,” content with your environment and hoping that it will not change in your lifetime. I remember my parents working for the same employer and almost in the same place for almost 40 years. That stability is no longer available to us. If you work for a state-owned company, there may be a young pretender seeking your position; if you work for a foreign investor your job may be gone due to the re-polonistion of certain branches of industries or simply because your position is obsolete and the position is to be transferred east. 

    I learned a nice abbreviation recently: VUCA. VUCA stands for the “volatility, uncertainty, complexity, and ambiguity” of general conditions and situations. Exactly like our modern world. You need to face the VUCA and come out of that conflict successfully. You need your internal strength in order to face challenges and to support your team.

    Second, stand up to the world and lead your team in difficult and uncertain times. Explain to them the VUCA world and lead by example – enhance and stimulate personal development, promote rotation, and if needed protect them against internal and external evils. Adjust your treatment of your employees to their different needs. Young and unexperienced employees need more guidance – you need to be more like a father to them – do not let them lose their way and get demotivated by daily failures and a lack of visible success. For those more experienced, be a guide: Show them the direction and coach them to be successful.

    Third, do not forget about the well-being of your team. This includes both a proper work-life balance but also a healthy working environment, including a well-designed space, well-balanced nutritious food in your canteen, and accessible sport/work-out options. You could say that this was the case in the past when the employer took care of many needs of the employees, but in my humble opinion it is necessary now as well two main reasons: Primarily to allow your team to have a healthy springboard from what can be a monotonous workload and second to keep them motivated and loyal to your company. If you keep employees happy and motivated – especially younger employees, who are representatives of Generations Y&Z (and who according to surveys are not so much linked to the jobs but rather to exciting professional challenges) – they will stay with you. If you fail to do so then you will need to look for new trainees and employees. 

    You could say “but it does not concern me – I’m the GC or Head of Legal – why should I behave like an ordinary manager?” The truth is you are no different, no better or worse, from other managers and leaders in your organization. I would even say that you should do better than any other manager due to the tradition of our profession and its high ethical standards. 

    Finally, what if you fail and your team starts to disintegrate or your employees develop apathy and a culture of low-performance develops? If you have tried and failed, my recommendation is that you go and seek support in your organization. Do not be afraid to show weakness and accept failure. I am convinced that you will find a helping hand – you can always use the common lawyer’s excuse: “I was not trained in HR and soft skills” – and I’m sure you can do better. I will have no sympathy for you if you did not try and fix your team – then you should not be a GC or the head of the legal department – and you do not deserve any compassion and should seriously consider another job. 

    In summing up I would like to use wise words I recently found on Twitter: “Sometimes there are things in life that aren’t meant to stay. Sometimes change may not be what we want. Sometimes change is what we need.”

    This Article was originally published in Issue 4.4 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

  • The Nightmare of In-house Counsel: Cost Cutting

    The Nightmare of In-house Counsel: Cost Cutting

    Regulating an effective budget for a legal department is a major strategic decision that must be considered by companies and their legal counsel.

    External legal support is one of the most essential elements for a company, but it can also be a major cost.  Before embarking on a cost-cutting exercise, one should consider what type of internal legal counsel would most effectively serve the needs of the company. For example, does the company hire a significantly experienced person, able to oversee almost every legal issue that may arise, or should the company consider a more junior lawyer that can lighten the daily workload and handle critical issues with the participation of external support? After the company elects the appropriate in-house counsel, the department should consider the following:

    1. Use In-House Advantages: 

    When legal service is provided by an internal counsel the advice will be in line with business objectives and corporate strategy, where an external counsel would not be aware of such considerations. Therefore, in-house legal counsel can be a valuable partner in advancing the strategic mission of the company. 

    2. Determine Legal Needs and Hire External Lawyers Accordingly: 

    The external law firm you hire does not need to be the “number one” firm in your jurisdiction. Depending on business needs, it could be a well-known international law firm or, alternately, a very basic local firm with relevant experience in the relevant field. The question comes down, simply, to the particular needs of your company. In other words, only hire a law firm after determining your company’s needs. 

    To ensure you select the right law firm, be prepared to meet with several prospective firms. Bring all relevant documents, emails, and other materials to the initial session to avoid the need for further calls or meetings. Don’t hesitate to hire the most expensive lawyer if it is necessary, especially if the work involves contracts, corporate matters, or important cases. The outcome of selecting unqualified counsel can be disastrous. Don’t forget that sometimes a very experienced lawyer will be more efficient and cost-effective; furthermore, you won’t have to educate him on your specific needs.

    3. Distribute Standard Functions to Low Level Team Members or Different Departments in Your Company: 

    Allowing trainee or junior lawyers to complete standard corporate registrations, trademark renewals, filings, and other similar processes will have a huge impact on your budget. You should not pay outside counsel to complete very basic transactions, as these tasks are time-consuming and costly. If you need to use external counsel for these duties, try to hire a cost-effective option.

    4. Be Open to Hiring Different Lawyers: 

    Remember, once you select a law firm, you are not married to that firm. If you think the external counsel you are working with is not a good fit for the job, or if that firm provides incorrect information, or delivers its product late, don’t hesitate to find an alternative. The legal market is continuously evolving; legal fees change frequently, and a lawyer that knows your company won’t hesitate to move to another firm. 

    5. Pay Only for the Work Done and for the Time it Took to Do It: 

    To control costs, it is important to make sure you give the law firm you’re working with clear and specific directions regarding due dates and follow the status of their work closely by requiring regular status reports. You should also try to reach your external counsel during normal business hours and avoid making the lawyers work overtime. Without guidance and instructions, your external counsel cannot be efficient, which will result in higher fees. If possible, make fee arrangements on a case by case basis. For example, in a litigation case payment might be based on a mixture of fixed and success fees, where for a contract review a capped or flat fee may be more appropriate. Review your legal bills closely and do not hesitate to question a statement or expense report if you think it is incorrect. Establishing a budget and ensuring compliance with that budget are key components in controlling costs as an in-house counsel.

    This Article was originally published in Issue 4.4 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

  • A Better Way to Cut Legal Costs

    A Better Way to Cut Legal Costs

    Legal fees are a necessary business expense in every company. The eternal feud between the legal and the financial departments in regard to the “unnecessary” external legal expenses seems to be the daily bread of every general counsel. The fragile beauty of all legal issues is that they parade as “unimportant and deferable” at first sight and to the untrained eye; but the reality of all parties and state authorities involved may be completely different. 

    Based on my experience, a properly working in-house legal team can cut down on legal expenses quite significantly. On the other hand, having an in-house legal department is never a cheap option, but every wise shareholder/manager should see it as an invaluable investment, and one which will prevent further costs.

    Only a properly working legal team can determine and evaluate the risks involved in any issue and estimate which measures need to be taken to reasonably mitigate them based on the operational needs of the company. We are not living in a fairy tale world with an unlimited legal budget, where you can outsource everything and let the external lawyers be responsible. Also, most of us General Counsels have experience in private practice, and therefore we know that, from a firm’s perspective, the best client is someone without any legal experience and without an accurate assessment of things which have to be done (and billed).  

    Our approach at Invia is to consider if we have enough time and in some cases even experience to solve a given matter internally, and if not, how to approach an external law firm. In an ideal constellation, if there is time, we always aim for a mini tender where we inform our partners of the desired outcome /business need and our expectation of expenses. We are quite lucky with contracting legal services since our main market, which is at the moment the Czech Republic, has a new generation of small law firms or even solo practitioners who are willing to offer fee caps for a complete project. With some projects – mostly small-claims litigation – there is even an option for a contingency fee. 

    Of course, there are transactions where you do not have time to look for the best price/value ratio or which are simply too big to be handled by someone without proper expertise. I have been lucky to have met some exceptional lawyers from prominent law firms who are willing to take that extra step and, despite the time constraints, provide exceptional services for reasonable prices. Unfortunately, these cases never involved capped fees, but an educated estimate.  

    We have our inner circle of trusted law firms and solo practitioners and in my opinion the best cost saving strategy is to choose a proper one for a specific matter to be solved. It is always easier and time saving – therefore cost saving –  when you don’t have to explain the details of your business and internal standards.

    Long story short, I believe there is no magical “cost cutting” strategy, it is a simply choosing a proper lawyer, either in-house or external, for each issue. There is no sense in squeezing your business partner for too much as you can win once, but this is not feasible on a long-term basis. In the end, we need each other and this relationship is very private and based on trust. 

    Anyway, who can you trust if not your lawyer? 

    This Article was originally published in Issue 4.4 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.

  • Cost Cutting Strategies

    Cost Cutting Strategies

    Reflecting upon my career, I cannot remember a single employer who did not propose “let’s increase income and cut down expenses.” Yeah! And that always reminds me of the joke when the Bear complained to the Fox, a Consultant, about the problems caused by his size: He was difficult to feed, in need of a big house, and in constant danger as everyone wanted his fur. The Fox told him: “You should become a mouse. They eat little, can live in any hole, and have very few enemies.” The Bear was happy, but puzzled: “How do I become a Mouse?” And the Fox replied: “I am a Consultant. I can tell you what you need to do, not how to get there.” 

    My focus in this article is on cost-cutting strategies for General Counsel. I am not interested, here, in costs such as utilities, instruments of labor, etc. Instead, I want to focus on cost-cutting related to the activities of the in-house legal department as they involve questions of the balance between in-house and out-of-house solutions, whether to concentrate on one or several law firms, and whether or not to use big brands as oppose to lesser-known or less busy lawyers.

    The Purely In-House Solution

    After finishing attorney apprenticeships and passing a bar exam, I was given the opportunity to become Head of Legal for two Bosnia and Herzegovina-based affiliates of the Slovenia’s Merkur company. In reality, I was a one-man show for everything related to the legal function, from negotiations of deals and drafting and terminating contracts, through suing and representing the company at court, to all other common in-house legal department activities: ensuring compliance with statutory changes, providing legal advice, and managing HR administration.

    Needless to say, it is very difficult to have one person acting as an expert in all fields, when one usually needs the help of a separate expert for each separate field. But this was not the case for me. As Merkur was facing bankruptcy and thus in survival mode, the company had no choice but to replace two full time employees – the HR and legal function – as well as one external counsel, with one in-house person. Two salaries were cut to one and, more importantly, the external counsel fee, which included a success fee five or six times higher than my salary, was cut.

    I am glad to note that service did not suffer, because our 300 litigation cases were on the active side, in our collection cases debtors were merely buying time, and we had only a dozen of complex cases with no significant value. So, I compensated for my lack of knowledge and experience with a focused determination that I would not fail. Eventually, this focus became business as usual.

    This was an extreme example, of course, and a “one-man show” has many challenges, including an overexposure to all sorts of risks – the biggest two being the potential departure of this one person, which would leave the company without any continuity in a very important function, and the inability of one person to address all the company’s needs, leasing to an unacceptable bottleneck. 

    Do Not be Afraid to Give a Chance to a Junior Lawyer and Become a Mentor

    After Merkur, I became the Head of Legal at Hypo Alpe-Adria-Bank d.d. Mostar, where I was given a budget and instructed to transform an administrative legal department into a provider of full legal support to all the banking functions.

    I inherited a team of four lawyers which, while strong, lacked team coherence, initiative, and proactivity. Six months after, only one of them remained. The team soon increased to five – with a combined salary lower than just one of the four previous lawyers. We achieved this by hiring two juniors who were assigned to two well-experienced lawyers and we relied upon talents in other departments. 

    What happened? The juniors were so keen to prove themselves that their initiative infected the entire team. Their eagerness to learn also helped the senior lawyers to find a sense of higher purpose in being able to mentor someone – so this somehow created a good team spirit while saving money.

    Of course, the risk of this strategy is that you may not find adequate candidates, but the only legitimate answer to this is: Do not be afraid of change.

    Concentrate on One or Just a Few External Service Providers

    In the complex environment that is common in sophisticated and dynamic businesses, it is impossible to rely only on an in-house legal solution. At times, a company can simply not hire additional employees. However, at times it comes down to an issue of purposefulness: you cannot hire experts to work within your team to cover all current and future needs. There are situations when you have to fork out and hire an external service provider.

    When hiring an attorney or a consultant, you have to take into consideration the basic principle for every business: You get a bigger discount if you increase turnover.

    Apart from getting more favorable conditions when focusing on one supplier, you tend to form a sort of symbiosis, meaning that you as a GC do not have to spend as much time explaining your issues and your expectations to the external service provider as you would with someone you work with less regularly. In addition, by securing external counsel able to obtain knowledge of and understanding for your needs, you get a fully attentive partner able to provide free tips and/or information to keep you from getting into an off-side situation and helps you improve your business. 

    Choosing a Brand Name Attorney vs. a Less-Known or Less Busy Attorney

    One sentence remains carved in my memory from the 2016 GC Summit in Istanbul: “You do not pull out a tank to kill a fly.”

    In essence, the meaning of this sentence is that you have to weigh your situation: How complex is the issue you are hiring external service for, what is the value of the issue (in terms of money, reputation, political-wise, etc.), what legal tools is your opponent utilizing, and how influential an attorney (by reputation) do you need?

    From my personal experience, the hourly rate of a brand-name law firm (i.e., one with a regional presence, at least) is up to eight times higher than that of a solid local individual attorney (for instance, in Bosnia & Herzegovina, 240 EUR vs. 30 EUR per hour). In very simply terms, the price of one case handled by a big brand law firm equals eight handled by a solid but less known or less busy attorney or even a local law firm.

    However, there are instances when your case does require a big brand behind it. These are specific projects or cases with higher risk where the company simply needs to be in a position to prove it did its utmost to protect its interests.

    In my current position, we are trying, as much as possible, to co-operate with one big brand and one local law firm, to affect a concentration of service and allow us to be able to decide whose service is more useful for a specific case. 

    Big Brands are Also Becoming More Affordable

    Speaking from my own experience and that of my GC colleagues from other financial institutions, big brand law firms are becoming more affordable compared to the last three or four years.

    There are two main reasons for this: First, there is fierce competition, as many local attorneys are giving up individual practices and forming law firms which align with other law firms from the region and thus increase their competitiveness with the regular regionally-present law firms. These local firms do not have a shareholder abroad and are thus able to be profitable despite applying much lower fees than their regional counterparts, thus forcing the latter to decrease their prices.

    The second reason is that mother companies do not engage in negotiations with local law firms, but rather do this via local affiliates. When a mother company from Western Europe negotiates a service, it often agrees on a fee applicable in its native country, which is usually much higher than the one local affiliates can negotiate.

    Hence, good negotiation skills and a periodical revision of conditions are also important.

    But, in the end, it is important to know that cost-cutting can only have positive effect to a certain degree, while pushing it too far can seriously damage your business activity by putting too much pressure on employees who start making mistakes or simply leave, or by creating discontent with service provider, and so on.

    Thus, for the very end, I would like to reiterate another 2016 Istanbul GC Summit statement: “If you pay with peanuts you will end up playing with monkeys.”

    This Article was originally published in Issue 4.4 of the CEE Legal Matters Magazine. If you would like to receive a hard copy of the magazine, you can subscribe here.