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International Litigation News Publication of the International Bar Association Legal Practice Division MAY 2020
IN THIS ISSUE Newsletter Editors
Sandrine Giroud Sara Chisholm-Batten
From the Co-Chairs 4 LALIVE, Geneva Michelmores, Exeter
sgiroud@lalive.law sara.chisholm-batten@
Editors’ note 5 michelmores.com
Committee Officers 6
Be inspired! 7
International Bar Association
4th Floor, 10 St Bride Street
What are you doing to promote diversity? 8 London EC4A 4AD, United Kingdom
Tel: +44 (0)20 7842 0090 Fax: +44 (0)20 7842 0091
IBA Litigation Committee rally: from Vienna to Seoul 13 www.ibanet.org
© International Bar Association 2020.
Committee conference session reports 15
All rights reserved. No part of this publication may be reproduced or transmitted
in any form or by any means, or stored in any retrieval system of any nature
IBA ANNUAL CONFERENCE, SEOUL, SEPTEMBER 2019 15 without the prior permission of the copyright holder. Application for permission
should be made to the Director of Content at the IBA address.
Global women litigator breakfast 15
Terms and Conditions for submission of articles
Meditation and responding with skill to the daily stress 1. Articles for inclusion in the newsletter should be sent to the Newsletter Editors.
of practising law 17 2. The article must be the original work of the author, must not have been previously published,
and must not currently be under consideration by another journal. If it contains material which is
someone else’s copyright, the unrestricted permission of the copyright owner must be obtained
Litigation crisis management 19 and evidence of this submitted with the article and the material should be clearly identified and
acknowledged within the text. The article shall not, to the best of the author’s knowledge, contain
Ways to cope in practice management 21 anything which is libellous, illegal, or infringes anyone’s copyright or other rights.
3. Copyright shall be assigned to the IBA and the IBA will have the exclusive right to first publication,
both to reproduce and/or distribute an article (including the abstract) ourselves throughout the
3rd IBA LITIGATION COMMITTEE CONFERENCE ON world in printed, electronic or any other medium, and to authorise others (including Reproduction
PRIVATE INTERNATIONAL LAW 22 Rights Organisations such as the Copyright Licensing Agency and the Copyright Clearance Center)
to do the same. Following first publication, such publishing rights shall be non-exclusive, except
that publication in another journal will require permission from and acknowledgment of the IBA.
The latest on Brexit, International Commercial Courts Such permission may be obtained from the Director of Content at editor@int-bar.org.
and Sanctions 22 4. The rights of the author will be respected, the name of the author will always be clearly
associated with the article and, except for necessary editorial changes, no substantial alteration
to the article will be made without consulting the author.
IBA INDIA LITIGATION SYMPOSIUM 2020: TAKING
REFORMS TO THE LAST MILE 25
This newsletter is intended to provide general information
Conference summary 25 regarding recent developments in international litigation.
The views expressed are not necessarily those of the
Features from our members 26 International Bar Association.
Structural issues in litigation funding documentation 26
Advertising
The law of anti-suit injunctions in India 29 Should you wish to advertise in the next issue of the
newsletter, please contact advertising@int-bar.org
Privilege and ethics in cross-border litigation 31
Class actions in Australia: recent developments 32 How to obtain section 1782 discovery: a step-by-step
guide 52
No black holes in the British Virgin Islands: the Black
Swan jurisdiction 36 Do acquired companies survive in merger transactions?
Sometimes it happens... 54
California court declines enforcement of choice of forum
and choice of law provisions, citing right to jury trial 38 Australasian class actions: funding arrangements 56
Damages for breach of choice-of-court agreement: a EU directives, legislative amendments and changes
landmark ruling by the German Federal Supreme Court 40 to the rules for registering ultimate beneficial owners
in Austria 58
A brave new world: enforcement of foreign judgments
in China 42 India’s changing litigation landscape 59
Champerty re-emerges: an overview of recent US Circuit UNCITRAL envisaging work on asset tracing and recovery 62
Court rulings on third-party funding 44
The treatment of foreign parties in Austrian Civil
Mind the third party in the gap: breach of contract, Procedure: security for procedural costs 64
third-party liability simplified by the Cour de Cassation 47
The truth, the whole truth, and nothing but the truth 65
The Singapore Convention on Mediation: could 2020
be the year of the ratification? 49 Yes we can: Remote Justice in England and Wales –
the new norm? LITIGATION NEWSLETTER MAY 2020
INTERNATIONAL 69
FROM THE CO-CHAIRS
Angelo Anglani
From the Co-Chairs and Tim Strong
angelo.anglani@nctm.it
t.strong@
D
ear friends, families at home with us and with such taylorwessing.com
This is not the usual message from limited opportunities to go outside and
the Co-Chairs, which at this time of the interact face-to-face with other people.
year very much looks forward to our Annual Some of us have also seen the closure
Litigation Forum. As you will now know, in of our courts, calling into question how
light of the completely unprecedented health we can even do our job. But against the
emergency facing the world, we had to take background of these severe challenges,
the decision to postpone that event. We wish to we have been heartened by efforts friends
take this opportunity to thank Rodrigo Garcia and colleagues have taken to stay in touch,
of Marval O’Farrell Mairal, and the rest of the look for opportunities to work together,
organising committee, for all their hard work and share relevant legal updates. There
in developing a superb programme of sessions are also opportunities for us as litigators
and social events for us. Whilst it is obviously to help clients facing disruption, and the
too early to know when we will be able to hold committee officers are discussing a number
our annual conference again, we are hopeful of possible initiatives on this front. Please
that their work will not go to waste and our watch your emails about this in due course.
committee will still be able to visit the beautiful 2020 promises to be a very challenging
city of Buenos Aires at a later date. year and we are here to show that litigators
For most of us, current circumstances love challenge and know how to navigate
mean huge changes to our lives. Some of stormy seas.
you will always have worked from home Finally, please stay safe and well, and we
from time-to-time, but the majority of us look forward to seeing you all soon, at the
did not do so regularly, let alone with our next IBA event we are able to hold.
4 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISION
FROM THE CO-EDITORS
Sandrine
Giroud and Sara
Chisholm-Batten From the Co-Editors
sgiroud@lalive.law
A
sara.chisholm-batten@ s your Co-Editors, we are pleased to reports on recent IBA litigation events from
michelmores.com share with you this new edition of the Seoul, to Milan, to India which is a tribute to
IBA Litigation newsletter. In these the dynamism of our Committee. This edition
challenging times, things cannot be taken continues our ‘Diversity series’ and some of
for granted. We will unfortunately miss our our members’ takes on what can be done to
traditional IBA Litigation forum (for now), promote diversity. It also features a new series,
which has always been a great way to catch ‘Be inspired’, which sees one of our members
up with friends and make new ones. It is why share what inspires him or her. This edition
this edition of the IBA Litigation Committee is also the occasion to highlight some of the
newsletter is particularly special as it allows adventures that the IBA Litigation Committee
us to stay in touch with fellow international offers and go on the road with our now
litigators, enjoy some of the memories of the traditional IBA Litigation Committee Rally.
IBA Committee’s life and keep abreast of In signing off, we would like to thank
international litigation developments. Jane Colston immensely for co-editing the
As with previous editions, we have received newsletter over the last two years. Thanks to
a great number of articles and it has been her inexhaustible energy and brilliant ideas,
enriching to review and edit them. Many we were able to take this newsletter to the
thanks to all the contributors. The topics next level. It has been an enormous pleasure
range from black letter law to new law across and an inspiration to work alongside her.
numerous jurisdictions. In addition to the Enjoy reading and please keep the
jurisdictional updates from our members contributions coming. Our focus is now on
worldwide, this edition includes several September’s edition.
INTERNATIONAL LITIGATION NEWSLETTER MAY 2020 5
COMMITTEE OFFICERS
Committee Officers
Co-Chairs Newsletter Editors
Angelo Anglani Sandrine Giroud
NCTM, Rome LALIVE, Geneva
angelo.anglani@nctm.it sgiroud@lalive.law
Tim Strong Sara Chisholm-Batten
Taylor Wessing, London Michelmores, Exeter
t.strong@taylorwessing.com sara.chisholm-batten@michelmores.com
Senior Vice-Chairs Website Officers
Frederick Acomb Sverker Bonde
Miller Canfield, Detroit Delphi, Stockholm
acomb@millercanfield.com sverker.bonde@delphi.se
Yvette Borrius Thera van Swaay de Marchi
Florent, Amsterdam Pinheiro Neto, São Paulo
yvette.borrius@florent.nl tdemarchi@pn.com.br
Vice-Chairs Scholarship Officer
Chris Helmer Feodor Viacheslavov
Miller Nash Graham & Dunn, Portland VLawyers, Moscow
chris.helmer@millernash.com fvyacheslavov@vlawyers.ru
Carlo Portadino Conference Quality Officer
Weigmann, Milan
Daan F Lunsingh Scheurleer
carlo.portadino@weigmann.it
NautaDutilh, Amsterdam
Secretary daan.lunsingh@nautadutilh.com
John P Bang Diversity and Inclusion Officer
Bae Kim & Lee
Jane Colston
john.bang@bkl.co.kr
Brown Rudnick
Treasurer jcolston@brownrudnick.com
Jacques Bouyssou Committee Liaison Officer
Alerion, Paris
Akima Paul Lambert
jbouyssou@alerionavocats.com
Debevoise & Plimpton, London
PPID Liaison Officer apaullambert@debevoise.com
Simon Hart Special Projects Officer
RPC, London
Marko Hentunen
simon.hart@rpc.co.uk
Castren & Snellman, Helsinki
Regional Representative Africa/Middle East marko.hentunen@castren.fi
Clément Dupoirier Membership and Communications Officers
Herbert Smith Freehills, Paris
Neerav Merchant
clement.dupoirier@hsf.com
Majmudar & Partners, Mumbai
Regional Representative Latin America nmerchant@majmudarindia.com
Rodrigo Fermin Garcia Peter Bert
Marval O’Farrell & Mairal, Buenos Aires Taylor Wessing, Frankfurt
rfg@marval.com p.bert@taylorwessing.com
Regional Representative Russian Federation Sponsorship Officer
Anna Grishchenkova Samaneh Hosseini
KIAP Digital & Smart, Moscow Stikeman Elliott, Toronto
ag@kiaplaw.ru shosseini@stikeman.com
Publications Officers
Jeff Galway
Blake Cassels & Graydon, Toronto
jeff.galway@blakes.com
Urs Hoffmann-Nowotny
Schellenberg Wittmer, Zurich
urs.hoffmann-nowotny@swlegal.ch
6 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISION
BE INSPIRED!
Jane Colston
Diversity and Inclusion
Officer, IBA Litigation Be inspired!
Committee
Brown Rudnick,
London What are the top three books a lawyer ‘We need to think now about the
jcolston@ should read in the course of his/her career? implications of making human lives subject
brownrudnick.com to these processes, for fear of the frog in hot
British scientist, James Lovelock’s, new book
water effect. We, like the frog, sit pleasantly
Novacene in which he thinks ‘Our supremacy
immersed in warm water with our lives
as the prime understanders of the cosmos is
made easier in various ways by information
rapidly coming to end. The understanders
technology. But the water imperceptibly gets
of the future will not be humans but what
hotter and hotter until we find we have gone
[he calls] “cyborgs” that will have designed
past a crisis point and our lives have changed
and built themselves.’
irrevocably, in ways outside our control and
Richard Susskind’s Future of the Legal
for the worse, without us even noticing. The
Profession. Start embracing technology fast as
water becomes boiling and the frog is dead.’
Susskind predicts a decade of legal change to
old ways of working.
Shoshana Zuboff’s The Age of Surveillance What do you hope to see in the next
Capitalism. As technology becomes increasingly Litigation newsletter?
sophisticated making every aspect of our lives
Sandrine Giroud and I as Co-Editors have
more streamlined the legal world is wrestling
started a Diversity series seeking to share
with how best to regulate it. Zuboff’s The Age of
inspiration about what our fellow litigators
Surveillance Capitalism talks about behavioural
were doing to promote diversity. The aim
surplus which is traded for profit. Zuboff
was to dismantle frontiers and help promote
argues that Google was unique in building
equity and inclusion at all levels within the
a sustained billion dollar business around
profession. I hope this series continues not
the insights into our future behaviour based
least I hope to gain inspiration for my new
on our past searches. The law is in danger
role as Brown Rudnick’s equity, inclusion
of being outrun and out spent by these tech
and diversity (EID) partner alongside with
giants. Lord Sales, Justice of the UK Supreme
my New York partner, Chelsea Mullarney. We
Court, while delivering the Sir Henry Brooke
take over this important role from our Boston
Lecture for BAILII, ‘Algorithms, Artificial
partner Sunni Beville as she has now been
Intelligence and the Law’ likened this dilemma
promoted to Managing Director of Dispute
to the ‘frog in hot water effect’ saying:
Resolution & Restructuring. The firm’s EID
initiatives include Social Mobility Fellowship
(open to law students who are the first in
their families to graduate from college),
‘On Ramp’ fellowship (which supports
experienced lawyers who are committed to
returning to work after a career break), and
Adoption Benefits.
Who was a great mentor to you?
My grandmother, Midge, who was hugely
energetic, rarely fazed by life’s challenges (and
she lived in London through two World Wars),
very independent and flexible in her thinking.
Midge was a super role model/mentor as to
how to live well. She lived until she was over
102 attributing her longevity to laughing a lot.
I attribute it in part to that but also to her ‘can
do’ spirit and her curiosity in life.
INTERNATIONAL LITIGATION NEWSLETTER MAY 2020 7
DIVERSITY SERIES: WHAT ARE YOU DOING TO PROMOTE DIVERSITY?
What do you say to people you mentor? If you had a spare half an hour in a city
what would you do first?
If at first you don’t succeed, try again. Be
persistent. Seize and create opportunities Enjoy a good coffee on the way to the city’s
rather than waiting to be given them. Work art gallery and/or a run (ideally with my IBA
with a business coach so you allocate time to run club buddies – see recent photo, above).
thinking about your career path and life plan.
Don’t let someone else write your narrative.
Jane Colston
Diversity series: What are you Brown Rudnick,
London
doing to promote diversity? jcolston@
brownrudnick.com
business relationships can be created and
opportunities realised.
Brown Rudnick’s London offices extend
across a townhouse on Clifford Street, in
Mayfair, built in 1720 for a wealthy landowner.
The building had been used as tailors’
premises for a large portion of its life. I was
therefore thrilled to kick off the series with
Kathryn Sargent who, in 2016, shattered one
of London’s most enduring glass ceilings
when she became the first woman to have her
name ‘above the door’ in the world famous
Savile Row’s 213-year history.
Our most recent speaker, Dame Jane
I
have recently been appointed Brown Dacre, President of the Royal College of
Rudnick’s equity, inclusion and diversity Physicians, spoke about not only succeeding
(EID) partner along with New York-based in what can be described as a male-dominated
partner, Chelsea Mullarney. We take over field, but also generally about the kind of
this role from Boston-based partner Sunni traits one must possess to be a good leader,
Beville as she has now been promoted to namely the five ‘C’s: capability, confidence,
Managing Director of the Dispute Resolution communication, creativity, and courage.
& Restructuring Department. To date, the Women in Business series has
As part to our commitment to breaking had the honour of welcoming a number of
down barriers, we will participate directly inspirational speakers: Amber Rudd (while
in conversations regarding recruitment, she was UK Home Secretary), Cressida Dick
integration, professional development, (Metropolitan Police Commissioner), Cath
elevation and compensation. Kidston MBE (English fashion designer), Inga
In this context, since December 2016, Beale (CEO, Lloyds of London) and, on 18
as part of our commitment to diversity April 2019, the 100th anniversary of Women
and inclusion, we have been hosting a in Law in England and Wales, Christina
Women in Business series in our London Blacklaws, the President of the Law Society.
office. By having inspirational women, On 24 March 2020, we will have the honour
leading in their various fields, come and of welcoming Mrs Justice Sue Carr to speak.
speak about their work and experiences, She will be sworn in as Lady Justice of Appeal
we hope to create a dynamic forum where in April 2020.
8 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISION
DIVERSITY SERIES: WHAT ARE YOU DOING TO PROMOTE DIVERSITY?
Ilona Karppinen to be at least partially related to the fact that
Castrén & Snellman, women took much longer parental leaves
Helsinki than men.
So what am I – as a member of the Bar, a
ilona.karppinen@
castren.fi
woman and a parent of two young children –
doing about this?
I have been proud to contribute to our
firm’s Bridge initiative, which is designed
particularly to support those members of
staff who are parents with young children.
The aim of the initiative is to encourage
these talented people to continue working
for the firm by helping them in the
transition where they return to work from
parental leave, and in the early years of
parenthood, when balancing a career and
family life can be most intense. The Bridge
D
iversity in law firms has received project group wanted to ensure that there is
increasing attention within the Finnish a culture of respect within the firm towards
legal profession, most recently as a parents, that work practices are designed to
result of a survey published by the Finnish Bar enable work-life balance (timing of internal
Association in January 2020.1 meetings within normal office hours,
The survey was based on a questionnaire flexible possibilities for remote work, readily
sent to all Bar members and associate lawyers available childcare for a sick child, etc), and
within their firms. Its aim was to evaluate the that mentorship programmes are available
position of women and parents working in to encourage parents of young children to
law firms. The results were keenly discussed advance in their careers.
at a half-day seminar at the Finnish Bar I have also tried to promote female
Association’s annual conference, and insights lawyers across firm borders through various
into this hot topic were actively shared on professional networks. One such informal
social media and even the national news. network is based on the idea that the selection
Overall, the results of the survey seemed of female arbitrators could be increased if
promising. About 60 per cent of all new counsel had better knowledge of the pool of
members accepted to the Finnish Bar potential female candidates. In addition to
Association are women, and equality was this underlying idea of promoting diversity in
generally perceived to be at a rather good arbitration, the network has brought me true
level within the profession. inspiration through the stories of relentless
Nonetheless, as in other countries, senior women that have reached great achievements
positions within Finnish law firms continue through hard work.
to be dominated by men. Moreover, one- Most importantly, however, I have strived
in-four of the female lawyers who answered to make a difference through my everyday
the questionnaire was actively considering a actions. Although on some days the struggle
change of profession. Although the overall between work deadlines and day-care hours
burden of work was the leading cause for is real, overall, I feel privileged to be able
considering career change for both men and to lead a meaningful career together with
women alike, women’s deliberations were a rewarding family life. My hope is that
more often also influenced by difficulties in by setting a positive example I may also
work-life balance, perceived lack of equality, encourage other women, parents and lawyers
and firm values. struggling with work-life balance to believe in
A quarter of all respondents reported their abilities to advance in their careers while
that they had experienced or witnessed pursuing their other passions in life.
undue favouritism at their workplace, and
14.1 per cent had experienced or witnessed
discrimination based on family or pregnancy. Note
The respondents’ greatest concern was that 1 The Finnish Bar Association, The position of women and
parents within the legal profession (Naisten ja perheellisten asema
men and women were not treated equally in asianajoalalla), 2019, available at: https://asianajajaliitto.
decisions relating to career advancement or fi/asianajajaliitto/organisaatio/viestinta/tutkittua-tietoa/,
partner elections. The results were estimated (in Finnish).
INTERNATIONAL LITIGATION NEWSLETTER MAY 2020 9
DIVERSITY SERIES: WHAT ARE YOU DOING TO PROMOTE DIVERSITY?
A
core value at Gowling WLG is that ‘we Tom Price
all bring something different’ and Gowling WLG, London
we invest time and resources to bring
tom.price@
this value to life, ensuring that we create
gowlingwlg.com
an inclusive environment which enables
everyone to thrive.
This approach is led from the top:
our chairman is the firm’s diversity and
inclusion champion and each of our board
members sponsors a different employee
resource group. Each of them has inclusion-
related objectives and has received reverse
mentoring from a colleague from the
demographic they are championing, which
has given them invaluable insights into
others’ ‘real life’ experiences.
Much of the work we do to engage with • A sponsorship programme for high
our colleagues comes through our employee potential female and BAME colleagues.
networks. We currently have five networks: • We have revolutionised our recruitment
OpenHouse (LGBT+); Thrive (Gender); processes to attract a more diverse talent
EmbRACE (ethnicity); Enable (disability and pool actively and accurately, designing
mental health and wellbeing) and Family out bias. Combining Artificial Intelligence
Matters (parents and carers). and innovative ‘gamification’ talent-
Our networks provide ‘lunch and learns’, selecting technologies, we can unearth
run events for colleagues and raise awareness big data-supported user personality
through powerful story-telling videos. Support profiles ensuring that selection is based
takes the form of mental health champions on suitability and fit, eliminating adverse
and domestic violence champions, who impact or bias.
provide listening and signposting services, • Maternity/paternity coaching is available
which are well used, as well as a confidential to all employees either one-to-one or
employee assistance programme. within a group setting. We are piloting an
Wellbeing is a huge theme running through emergency care provision for parents to
our work and we have lots of initiatives to source qualified childcare professionals
boost colleagues’ wellbeing – everything from at short notice paid for by the firm and
jigsaws and colouring books in break out introducing parenting cafes.
areas (hugely popular) to subsidised yoga and • A Family Leave Bridging policy has been
massage and visits from our ‘doggy destress’ introduced, recognising that in the lead
canine friends (the most popular of all!). up to and on returning to the workplace
Alongside all of our work to engage with from maternity/adoption/shared parental
and support our people, we recognise leave, colleagues benefit from reduced time
that we need to build inclusion into our recording targets.
processes if we are to achieve sustainable • We are now a number of years into our agile
change. Recent examples of process working practices – recognising that people
changes include: can work in different patterns and places
• An 18-month Inclusive Leadership whilst still meeting the needs of their teams
Programme for our partners and senior and clients. This has been hugely popular
leaders offering in-depth behavioural with benefits not just for those with caring
learning to positively impact both personal responsibilities but for everyone from a
and group decision making in key people wellbeing perspective.
processes such as recruitment and We are very much on a journey: we have done
performance review. a lot but there is still plenty to do.
10 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISION
DIVERSITY SERIES: WHAT ARE YOU DOING TO PROMOTE DIVERSITY?
Nicola Kömpf point of view, also a key issue in recruiting
Alerion, Paris future talent.
Diversity emerges as an important
nkompfale@
alerionavocats.com
management tool in law firms and we have
attempted to harness this evolution. Over the
last decade we have implemented different
measures built around five basic pillars:
• recruitment of lawyers with different
backgrounds, with typical and atypical CVs,
focusing on various experiences and strong
language skills;
• creating of an environment conductive to
wellbeing and allowing personal expression;
• career guidance;
• collective action to strengthen the spirit of
belonging to an attractive law firm;
• favouring cross-disciplinary teamwork.
These efforts have been well awarded, as
A
s a partner of Alerion, head of we have reached a good gender balance of
German Desk and recently designated 47:53 female/male lawyers. Women account
as board member in charge of for 27 per cent of our partners, a high score
communication and HR, I am currently compared to equivalent international law
contributing to support in our office young firms in France. And a decent percentage
lawyers and parents (both women and men) have become partners through internal
to manage their work-life balance to achieve promotion, ie, seven of the 18 partners are
their personal goals and to reach a higher former associates who climbed the corporate
degree of diversity. ladder including two women lawyers.
Alerion is a mid-sized French independent Three lawyers have also been admitted to a
full-service law firm based in Paris, which foreign bar and a great number have foreign
focuses on international business law. Our diplomas or additional education in addition
multidisciplinary team includes over 70 to their Paris Bar admission. I am myself, a
lawyers who are constantly combining their member of both the Paris and Berlin Bar,
talents to deliver high value added and the mother of three children (18, 16 and 11
practical solutions for our clients. years old), and a partner since 2000, a good
While the fight against discrimination example of what is possible.
was already enacted in the US by the 1964 Courage and determination are essential as
Civil Rights Act, pro-diversity activities well, in part, chance meeting the right people
only appeared in France in the early ’90s. at the right time to support the project.
Furthermore, people increasingly wish to Consequently, we have the benefit to develop
consume more ethically and responsibly. resourceful solutions adapted to our clients’
The same applies to services. A welcoming, needs with our flexible, highly qualified,
open-minded environment is, from my open-minded and diversified team.
INTERNATIONAL LITIGATION NEWSLETTER MAY 2020 11DIVERSITY SERIES: WHAT ARE YOU DOING TO PROMOTE DIVERSITY?
‘Equality is being invited into the room, Tim Richards
Diversity is getting a seat at the table. Inclusion Michelmores, London
is sharing your ideas and being heard.’ –
tim.richards@
Sweeney and Bothwick michelmores.com
A
s a firm, we are committed to creating
an inclusive working environment
where everyone has the opportunity to
reach their potential, while being themselves
at work. We believe that creating a culture of
inclusivity is important in helping us deliver
on our growth ambitions, while ensuring
we attract and retain talent from the widest
possible talent pool. around areas such as selection, promotion
We have an Inclusivity Working Party, and pay;
headed up by Carol McCormack (partner). • promoting our parental leave offering and
This group consists of a cross-section of the uptake of Shared Parental Leave (SPL).
colleagues from across our firm. The group We believe that if men and women share
is initially focusing on four key areas which family responsibilities, it will encourage
are gender inclusivity, social mobility, gender balance in the workplace;
raising awareness of unconscious bias • creating ‘lean-in circles’ for female colleagues,
(or unintentional bias), underpinned by providing opportunity to share insights;
looking at how we create a more inclusive • being transparent about the support
environment for all. we provide for maternity, parental and
During the last two years, the most energy adoption leave and pay on our recruitment
has been directed towards looking at how we website so that potential candidates have
can better support the progression of female access to this information without having to
talent across the firm. With this in mind, we ask at interview.
launched Women@Michelmores (W@M) in Other ideas we are currently actively
2017. Our stated aim is to have at least 30 per considering include:
cent (ideally higher!) female partners by 2022. • exploring how we can get men and women
The changes introduced have included: working together to change workplace
• promoting agile working, including the culture to be even more gender inclusive;
ability for all lawyers and senior support staff • introducing Inclusion Advocates who are
to work up to one day a week from home equipped to call out every day gender bias;
every week – this has been hugely popular. • providing one-to-one coaching for anyone
We also actively consider all new roles on who has an extended period of leave for
an agile basis, using flexible recruitment family responsibilities (maternity leave,
platforms such as Daisy Chain to promote parental leave, adoption leave or elder care).
this externally; We believe the source of excellence lies in
• providing unconscious bias training to our the differences between us as individuals. We
senior leadership team, and those who have encourage people to play to their individual
a key role in decisions affecting our people strengths, within a collaborative working
around selection, promotion and pay; environment, which is how we aim to build
• making simple process changes to help strong and diverse teams. We realise that
mitigate against unintentional gender bias while we have made some great progress,
as part of our decision making process there is still much to do!
12 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISIONIBA LITIGATION COMMITTEE RALLY: FROM VIENNA TO SEOUL
Keith Oliver
Peters & Peters, London
keoliver@
IBA Litigation Committee rally:
from Vienna to Seoul
petersandpeters.com
I
t started as a throwaway comment in of us who participated will never forget. For
September 2014. My Partner Michael the environmentalists among you, rest assured
O’Kane mused out loud to Matt Denney that the future of the earth was secured by
(who has since become a litigation funder) Ilya Nikiforov in his Tesla which purred all the
that it might be fun to drive to Vienna for way from St Petersburg to meet us and enjoy
the IBA Annual Conference a year later the pleasures of the IBA Litigation Committee
in September 2015. Little did we realise Italian Job, 2018 style.
the impetus that such a thought might The Half Year Berlin event produced
provoke. Cynics might impolitely describe a mini group who undertook a tour of
the pastime as Top Gear for lawyers but there what was formerly East Germany in a
is a serious point I suggest, namely a group demonstration of the German engineering
of great friends, colleagues, practitioners including a very slow Mercedes diesel
and internationalists to enjoy each other’s convertible encouraged by Graham Hain
company driving through wonderful and a less than impressive BMW Z4 driven
scenery on some of the best driving routes by yours truly that limped along behind the
in the world engaging in stimulating others with a very weak two litre engine.
intellectual discussion about the Rule of Law, Star of the show, however, was Professor
international enforcement of judgments – Wolfgang Spoerr who came along in one of
and the sound of their exhausts! his collection pieces – a stunningly beautiful
The Vienna trip in 2015 was soon followed Mercedes 450 in gold. Wolfgang will be ever
by the Pacific Highway from San Francisco known by his new nickname ‘Gold Member’.
to Los Angeles. A spectacular group of Ford Now all roads lead from Berlin not to
Mustangs (sadly only V6s) and the odd Rome, but of course to Seoul in South
Camaro punctuated by a convertible 911 Korea. Those of our group who previously
were gathered outside the Fairmont Hotel had driven from Amsterdam (Daan and
as the half-yearly litigation event concluded Jack Berk) faced the impossible challenge
but were completely upstaged by the 1960s of taking their own brace of Porsches to
Mustang secured by one Daan Scheurleer. Asia for this purpose and a splinter group
Daan’s pleasure shared by his co-pilot Yvette lead by Graham with a masterful route
Borrius was relatively short lived as his (eat undertook our own version of Top Gear in
your heart out Steve McQueen) ‘pony’ came reasonably priced Kias and Hyundais. The
to a stuttering halt at the world famous and pictures attached say it all, have you ever
incredibly tacky (trust me!) Madonna Inn seen such a fine group of international
in San Luis Obispo, but Daan was luckily lawyers looking, with respect to us all, like
able via the specialist provider to secure a Uber drivers. The three Kia Avantes and the
replacement for the rest of the drive to LA Hyundai Sonata (to misquote Henry Ford)
(a 289 cubic inches V8 no less!). Message to ‘you can have any colour you like as long
self: ’60s cars have poor braking and are truly as it is white’ undertook a spectacular drive
rotten going around corners, though they do to the demilitarised zone and miraculously
look mega cool. reached a top speed of 80 kilometres
The exuberance of the Pacific Highway per hour. Yes the cars in aggregate had a
drive was matched, indeed surpassed I collective BHP than less than either of the
respectively suggest, by the road trip to Rome aforementioned Ferraris but the drive was
in 2018. A fine collection of mainly Porsches littered – and you think that London roads
interspersed with Ferraris beautifully driven are bad – with speed cameras at almost every
and stylishly guiding our way courtesy of junction keeping speed down and obviously
John Reynolds and the aforementioned intended to serve as a motoring/criminal
Daan headed from Geneva with spectacular law impediment to Kim Jong Un should he
moments and memories of a kind that those ever plan to head south and see. Mercifully
INTERNATIONAL LITIGATION NEWSLETTER MAY 2020 13IBA LITIGATION COMMITTEE RALLY: FROM VIENNA TO SEOUL
all was quiet on the DMZ front and, joking by Daan were there in spirit and will very
aside, the impact of the border and of the soon be added into our next adventure which
museum and the stories that one read of the – and please each of the readers secure the
continuing suffering of the Korean people space in your diary – will be a round Florida
is something that will stay with all of us for trip – including the Keys immediately prior to
many years to come. this year’s IBA Annual Conference in Miami.
The intrepid group on the reasonably So ladies and gentlemen, charge your
priced DMZ drive were respectively Graham, batteries, rev those engines, secure a decent
Anthony Maton, Lesley Hannah, John supply of lithium batteries if you are green,
Bramhall, Alexander Troller, Gabriel Lansky, because the Litigation Committee tour of
Tomislav Sunjka and Mara Okmazic with Jack Florida 2020 will soon be starting at a kick-
sadly delayed by a boarding pass issue (not off point near you namely Miami, Tampa or
issued in fact) at Frankfurt. He and I had a Orlando (to be determined). All interested
mini group hug ‘a deux’ randomly on the please notify Daan, Graham or myself before
final day of the trip at a motorway junction the next summer solstice. And don’t give up
under a bridge! The other members of the on the pleasure of driving just yet. There’s still
Petrol Heads of Law Group so aptly named life in pistons and rocket fuel!
14 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISIONIBA ANNUAL CONFERENCE REPORT, SEOUL 2019
OFFICIAL CORPORATE
SUPPORTER
Annual Conference report
24 September 2019
Lucinda Orr
Enyo Law, London
lucinda.orr@
Global women litigator breakfast
enyolaw.com
N
ow in its third year, the Global women back at your desk. However, there was also
litigator breakfast, was held at 0800 on a cautionary note – tempting as it may be
Tuesday 24 September 2019, in the to treat physical activity in the same way as
COEX conference centre. On this occasion, we treat our busy lives and work out very
the topic for discussion was Wellbeing. intensely – on a stressed body and mind this
The event was kicked-off by a short can actually have a negative impact. If you are
presentation from Sam Hosseini, a Partner at experiencing symptoms of extreme fatigue,
Stikeman Elliott, Toronto and myself. I set the a hard bout of physical activity will put the
scene by exploring definitions of wellbeing body under too much strain. At such times,
and discussing so-called ‘drivers’ to wellbeing. the advice is to choose gentle stretching or
The five drivers focused on were: walking instead and respect the repair and
• staying connected; recovery that your body requires.
• being active; The third driver explored was on
• taking notice; taking notice. The evidence proves that
• constant learning; and our lives are indeed more full and the
• giving. demands greater on us than ever before;
On the first point, I discussed that research but similarly, research has been gathering
has shown that being lonely can be physically pace that unequivocally demonstrates the
harmful to health, as it carries with it value in becoming more aware, moment-
everything from stress and troubled sleep, by-moment. Tuning into and appreciating
to cardiovascular and immune problems. bird song for example while we are walking
Oxytocin, the hormone responsible for to court. When we are able to live more
affiliation protects us from cardiac ill-health in the present, we start to train our brains
and is released when we are in the presence to reduce rumination and worrying about
of people we care about. Interestingly, studies future states. This leads to increased positive
have shown that it needs to be physical mental states, self-regulated behaviour and
presence, so catching up with family and boosts self-knowledge and awareness.
loved ones via social media and emails sadly Being curious and continually learning
does not assist. throughout life has also been shown to
As for the second point, physical activity can drive personal wellbeing, and was the fourth
be marvellous because not only does it have driver discussed. Learning has many benefits
physical health benefits, but it also mental including raising self-esteem, confidence
health benefits. It increases the production and building a sense of purpose. Professor
of endorphins (those ‘feel good hormones’) Paul Dolan, a behavioural scientist at the
and causes a reduction in cortisol (‘the London School of Economics has found
stress hormone’). Memory and mood are that happiness is driven by having a sense of
boosted by getting sweaty, as is productivity meaning or purpose in our lives, balanced
INTERNATIONAL LITIGATION NEWSLETTER MAY 2020 15IBA ANNUAL CONFERENCE REPORT, SEOUL 2019
with enjoyment of one off, hedonistic kick boxing, or knitting. There was then a
pursuits. Curiosity is a phenomenon that we question of what, if anything, their law firms
see in children but outside our job roles, we or organisations were doing for wellbeing,
may find that as adults our lives have become with fruit baskets, flexible working, and yoga
more one dimensional. Positive psychology sessions all given as examples. Finally there
(the scientific study of what makes us flourish was a discussion on what more organisations
and thrive) demonstrates that being curious can do?
broadens our minds to more possibility in life. The table discussions were lively but
This has a direct correlation on our ability to inevitably each took their own tangent. It
cultivate more positive emotion. was fascinating to swap ideas on how to get
Lastly, I discussed the instinctiveness the best out of junior lawyers, for example,
goodness of giving to others. Professor Sonia and how best to cater for the different
Lyubomirsky of the University of California, generational working needs.
demonstrated that carrying out one simple One Partner from Buenos Aires explained
act of kindness per week over a six-week that the junior lawyers in their firm had
period increased wellbeing in participants been getting to work at 10am or later, and
when compared to a group that committed then staying late into the evenings. It turned
no acts of kindness. Giving can take many out that was because the associates could
forms: it may be a formal volunteering not predict what time they would be able to
exercise or perhaps a pro bono case or it leave in the evening, and so they had been
could be subtler that this. Interestingly, small doing their personal life administration prior
actions can have just as deep an impact on to coming to work. A radical decision was
wellbeing as the more obvious ones. It can therefore taken by the firm’s partnership, that
even be as simple as sharing a smile with a all lawyers had to be in the office by 9am, but
stranger on your commute to work. also that they must leave by 6pm. Apparently
Sam then explored the differences between this move actually worked exceptionally well,
‘pressure’ and ‘stress’ and the effects on the as the associates were now more focused in
human body. Those gathered were shown office hours and free in their evenings to
a TED talk clip from Kelly McGonigal, a enjoy themselves –and billable hours and
health psychologist and lecturer at Stanford productivity actually went up!
University, on how to reevaluate stress in our Different ideas discussed were the benefits
lives and how thinking that stress is bad can of flexible working and whether allowing
adversely affect peoples’ health and even lawyers or support staff to work from home
life expectancy. McGonigal now advocates also helped wellbeing. Some felt litigation
choosing to view our stress response as helpful in particular does not lend itself well to
and what actually makes us human. remote working and the importance of
Very kindly, Erin Valentine of Chaffetz bouncing ideas of colleagues could not be
Lindsey in New York; Lydia Danon of Cooke, underestimated. As ever, it was fascinating
Young & Keidan in London; Ursula Ben- to hear how different countries and cultures
Hammou of Rodrigo, Elias & Medrano were dealing with a topic that seems to be
in Santiago; Annalisa Reale of Chiomenti growing in global prominence.
in Milan; and Sara Chisholm-Batten from The Global women litigator breakfast is not
Michelmores in Exeter, had all agreed to be just for women – or even just for litigators!
moderators for the Breakfast. Following the And is fast becoming a highlight of the IBA
presentation, discussions were then thrown Annual Conference. So, if you find yourself
open to each of the tables, with a template set in Miami in November, do come along to this
of questions provided to the moderators to year’s Breakfast to meet and share ideas with
give the discussions some structure. your peers. As the first driver above states,
Those present at the Breakfast shared staying connected is good for your health
their experiences of how to spot stress in too, although you may then have to engage
themselves and others and also how they had with the second driver and partake in some
built in mechanisms for reducing it. Examples physical activity afterwards so that you can
ranged from box set binge watching, to work off all those lovely breakfast pastries!
16 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISIONIBA ANNUAL CONFERENCE REPORT, SEOUL 2019
Annual Conference report
24 September 2019
Frederick Acomb
Miller Canfield, Detroit
acomb@
Meditation and responding
millercanfield.com
with skill to the daily stress of
practising law
I
magine 30 lawyers from around the world Sometimes when we realise that we’ve
sitting together in their suits quietly been swept away by our emotions we might
meditating. That’s what happened this be tempted to force our minds back to the
last September fall at the IBA Annual sensations of the breath. The problem with
Conference in Seoul (see photo). During a this, however, is that it is a futile act. It’s like
panel discussion entitled ‘Ways to cope in trying to make a beach ball stay under water.
practice management’, I lead the attendees Through great exertion we might be able
in an eight-minute guided mediation. I talked to force the ball underneath, but only for
the participants through a simple meditation a moment. Despite our best efforts it will
that focused on the physical sensations of the eventually pop to the surface. So too with our
breath. When interrupted by thoughts, or thoughts and emotions. And by trying to do
emotions or sounds, or itches, or aches, or the impossible – trying to force our thoughts to
pains, or boredom, the instructions were to go away – all we really do is add to our anxiety.
simply notice those things, let them go, and Perhaps counterintuitively, when strong
start again: gently moving the focus back to emotions surface during meditation a good
the physical sensations of the breath. technique is to actually open up to them, and
Perhaps you’re wondering, ‘But what was to notice where we feel them in the body. For
the point?’ example, if it’s worry, is there a tightness in the
The answer is that by meditating we chest or the arms or stomach? If it’s anger, is
train our minds to be less reactive, as noted the heart beating faster? Does the face feel hot
meditation teacher Sharon Salzberg explains: or flushed? Whatever the physical sensations
‘The most important moment in the whole are, open up to them and watch what happens.
process is the moment you notice that What often happens is that the emotion
you’ve been distracted, after you’ve been lessens, and when the emotion lessens we can
lost or fallen asleep or whatever. That’s gently bring our attention back to the physical
when you have the chance to be truly sensations of the breath. Again, by doing this
different. Instead of judging and berating we train the mind to be less reactive.
yourself, you can practice letting go and My favourite meditation teacher, Joseph
beginning again. That’s the core teaching.’1 Goldstein, speaks eloquently about the great
But what if you’re confronted with power our thoughts have over us:
particularly strong emotions such as anger, ‘Normally, our thoughts have tremendous
sadness, or fear? Without even noticing it power in our lives. They are the dictators
most of us get swept away by strong emotions of our mind – “Go here, go there, do this,
such as these, and only later realise that we’ve do that”. We’re the slaves of our thoughts.
been hijacked by them. But the moment And yet when we are aware of them, when
we notice that we’ve been carried off is the we are mindful that we’re thinking, we
exact moment we have the opportunity to do see that a thought as a phenomenon is
something different, to begin again, and to go completely empty and fleeting. It’s little
back to feeling the sensations of the breath. more than nothing.’2
And each time we do this we train ourselves to In other words, through meditation we
be a bit less reactive. learn to notice our thoughts, and when we
INTERNATIONAL LITIGATION NEWSLETTER MAY 2020 17IBA ANNUAL CONFERENCE REPORT, SEOUL 2019
notice our thoughts we learn to notice that If you’re interested in trying mediation,
they come and go, and when we realise that there are a large number of apps that can
thoughts come and go, the power of our teach you how to do it. I’ve used a number
thoughts is diminished. This helps us to avoid of them, including Calm, Headspace, Waking
being hijacked and jerked around by them. Up, and Insight Timer. My current favourite
One might be forgiven for wondering what is 10% Happier. It has guided meditations
any of this has to do with the practice of law. from some of the best meditation teachers in
One way to answer the question is to call to the world, including Joseph Goldstein and
mind that lawyer. By that lawyer I mean the lawyer Sharon Salzberg.
who never fails to make you angry. When your I also recommend starting slowly. The
phone vibrates and you see that you’ve received first time I tried meditation I was shocked to
an email from him, perhaps you feel your chest discover how active my mind was. My mind was
tighten and your hands ball into fists. Maybe he whipping from one thought to another without
has a habit of attacking you personally. Perhaps a break. This was the first time I’d noticed
he lies. Worse, maybe he’s good at attacking and this. ‘No wonder I’m so stressed!’ I thought. I
lying: so good that you’re afraid that the judge couldn’t focus on my breathing for longer than
might believe him. The question is, how do you a second or two, let alone 30 minutes. There
relate to his emails, and to the emotions his was no way I could meditate for 30 minutes,
emails engender? Do you react to them? Does so I decided to try for ten minutes a day. I
your reaction serve the interests of your client, couldn’t manage ten minutes either, so I tried
or does it get you into an unnecessary fight for five minutes. But that was too much as well,
that incurs more fees? Alternatively, instead of so I finally decided to meditate for just one
showing your emotions, do you silently stuff minute a day. Because it was only one minute, I
your emotions down only to take things out was able to do it every day without fail. And by
on your family and colleagues later that day? doing it every day I made it a habit. Over time I
Through meditation we slowly learn to avoid was able to extend my meditation out to longer
reacting, and to avoid stuffing our emotions periods of time (once I got to 60 minutes!),
inside, and to instead notice our emotions, but even one minute helped. My wife started to
open up to them, and allow ourselves to notice that I was less reactive and more patient.
respond skilfully. So did my law partners. I noticed that I was
Meditation teacher Jon Kabat Zinn has better able to focus, and much more skilful
developed a technique designed to help bring in how I responded to the daily stress of the
the benefits of mediation into our daily lives. practice of law.
The technique is known as ‘STOP’. STOP is
an acronym that stands for the following:
(S)top and interrupt your thoughts.
(T)ake a breath (or two or three!)
(O)bserve what is happening around
you and inside you. What can I see, hear,
sense, smell, feel? What am I thinking?
(P)roceed and reconnect with your
surroundings and activity.3
In other words, when you get the email from
that lawyer who drives you nuts, stop, take a
breath, notice the sensations in your body, and
then respond. This will decrease the likelihood
that you will immediately react and find yourself
in a dispute, and will increase the chances that Notes
you’ll skilfully respond in a manner that best 1 ‘You Can’t Fail at Meditation’, Lion’s Roar, 19 January
serves the interests of your client. 2018, available at: https://www.lionsroar.com/cant-fail-
meditation, last accessed 1 March 2020.
In addition to possibly helping you become 2 Ibid.
a better lawyer, preliminary studies suggest 3 Anja Tanhane, ‘The Practice of STOP’, Mindfulness
that regular meditation may help to lower Meditation, 19 May 2013, available at: https://
stress levels, reduce anxiety, improve attention, mindfulnessmeditation.net.au/the-practice-of-stop, last
accessed 1 March 2020.
increase brain grey matter, improve sleep, 4 Suzanne Kane, ‘10 Surprising Health Benefits of Mindfulness
help prevent depression relapse, and matter Meditation’, PsychCentral, 5 July 2018, available at: https://
manage chronic pain.4 Interestingly, these psychcentral.com/blog/10-surprising-health-benefits-of-
things probably help us be better lawyers too. mindfulness-meditation, last accessed 1 March 2020.
18 INTERNATIONAL BAR ASSOCIATION LEGAL PRACTICE DIVISIONIBA ANNUAL CONFERENCE REPORT, SEOUL 2019
Annual Conference report
23 September 2019
Urs Feller
Prager Dreifuss, Zurich
urs.feller@prager-
Litigation crisis management
dreifuss.com
T
he session was chaired by Sverker According to Song-Yi Son, a company needs
Bonde (Advokatfirman Delphi, to set the narrative, and respond to the most
Stockholm) who had invited a relevant question, namely how to communicate
distinguished group of panellists to provide the crisis to shareholders, employees, the
insights and strategies for a company in a regulatory authority and to the wider public.
corporate crisis. Speakers were Ms Song-Yi The company urgently needs to mitigate the
Son, senior counsel for ABB Korea in Seoul, negative impact to survive.
and Giovanni Lombardi of illimity Bank in Peter Calamari suggested that the company
Milan as well as the private practitioners identified a single point of control where
Peter Calamari (Quinn Emanuel Urquhart all information was available and the vital
& Sullivan, New York) and Urs Hoffmann- decisions are taken. The company needed a
Nowotny (Schellenberg Wittmer, Zurich). consistent approach in order to re-establish
The panel addressed how to balance confidence in the market and with the public.
the necessity of transparent and quick Giovanni Lombardi, having experienced
communication to the public against the Parmalat demise, explained that a crisis
the different perspective required when committee with a clear chain of command was
defending the company against civil claims or required to avoid the onset of a crisis in the
dealing with regulatory or criminal inquiries. first place.
Hypothetical scenario Independent external investigation
required
The following hypothetical scenario was put
to the panellists. Your client, a listed company The hypothetical scenario was then further
in the IT sector, is subject to a massive data developed. The internal investigation showed
hacking attack involving the theft of private data that the company had failed to invest sufficiently
of millions of customers. The hackers threaten in data protection measures which may have
to sell the data to the highest bidder unless the facilitated the attack in the first place.
company pays a substantial sum to the hackers Urs Hoffmann-Nowotny explained the
in bitcoins. News reports are being aired on an challenges facing external counsel in such a
hourly basis, making the situation for the client situation. In a first step, the client’s expectation
increasingly difficult. How can general and and the set-up needed to be clarified. A simple
external counsel prepare in advance for the defence strategy might not be sufficient
possibility of such a challenging scenario? to restore public confidence. Even when
litigation was threatened or already pending,
the litigation risk assessment was not the
Preparation and priorities
decisive factor in the public communication.
Song-Yi Son explained that preparation was For a company in crisis, the client should try to
key in such a situation. If the company only shape the public opinion proactively.
sets up a crisis organisation when things There was a fine line drawn between
are at such a stage and are threatening to transparency and the unnecessary divulging
get out of hand, it’s too late. The company of confidential information. To get back
needs to know in advance who is in charge in on top of the situation, the communication
a corporate crisis, where the survival of the needed to focus on known facts. Any
company is the top priority. information that could be proved incorrect
INTERNATIONAL LITIGATION NEWSLETTER MAY 2020 19You can also read
