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The 2021 ICC Arbitration Rules: a further opening for Arb-Med-Arb, or business as usual?

The 2021 ICC Arbitration Rules: a further opening for Arb-Med-Arb, or business as usual?

JORGE ARTURO GONZÁLEZ | LEGAL JARGON WRITER I. Background With the recent entry into force of the Singapore Mediation Convention, many have anticipated a greater role of mediation in international commercial disputes. This may provide some momentum toward resuming a long-held discussion on the combination of different methods of dispute settlement under the same neutral, e.g. holding a “mediation window” in the middle of arbitration proceedings, with the arbitrator transitioning to act as mediator, and then back to arbitrator if required. In many jurisdictions, this discussion has so far remained largely academic, as the aforementioned practice —also known as “Arb-Med-Arb”— is by no means commonplace. And while it may be even desirable that parties attempt to reach an amicable settlement while already litigating, relying on the same neutral for these multiple purposes entails unique risks. These risks should not be overlooked, notwithstanding the benefits (mainly, saving time and costs) that Arb-Med-Arb and similar schemes bring. For instance, the impartiality of the arbitrator may be endangered after participating in a mediation hearing and expressing his substantive views on a case.[1] This may be a concern in the event that mediation is unfruitful, and he is called upon to arbitrate once again. The parties may even be uncomfortable to resume arbitration with the same tribunal, once they shared sensitive information that was not part of the casefile. A controversial case in Hong Kong involved the arbitrator-turned-mediator attending a private dinner with a person related to one of the parties to encourage a settlement.[2] The extent to which the arbitrator participates in facilitating the settlement during these schemes plays a significant role in the discussion. While simply suggesting the parties to consider settling the dispute amicably is probably unproblematic, outright mediating an agreement may exacerbate the risks described above. II. The 2021 ICC Rules Arbitration Rules Apart from the threats to impartiality and, in turn, due process, another obstacle to engaging in Arb-Med-Arb is the question of its legal basis under the applicable arbitration rules. Most of the rules of the leading arbitration centers envisage the possibility that the parties reach a settlement once arbitration has initiated.[3] However, the rules are generally silent on the tribunal’s role in reaching the settlement. A notable exception may be found in the DIS Arbitration Rules, which devote a stand-alone provision (Article 26) to the encouragement of amicable settlements, stating: “Unless any party objects thereto, the arbitral tribunal shall, at every stage of the arbitration, seek to encourage an amicable settlement of the dispute or of individual disputed issues.” On the other hand, the black letter of the ICC Rules of Arbitration (including both the 2021 and 2017 editions) is silent on the matter. Article 33, which did not suffer any changes from one version to the other, merely states the following: If the parties reach a settlement after the file has been transmitted to the arbitral tribunal in accordance with Article 16, the settlement shall be recorded in the form of an award made by consent of the parties, if so requested by the parties and if the arbitral tribunal agrees to do so. However, the “Case Management Techniques” —found in Appendix IV to both versions of the Rules— delve deeper into the role of the tribunal. The 2017 version described the following techniques regarding settlement during arbitration: (i) informing the parties that they are free to settle all or part of the dispute either by negotiation or through any form of amicable dispute resolution methods such as, for example, mediation under the ICC Mediation Rules; (ii) where agreed between the parties and the arbitral tribunal, the arbitral tribunal may take steps to facilitate settlement of the dispute, provided that every effort is made to ensure that any subsequent award is enforceable at law. These provisions already provided an opening for Arb-Med-Arb, so long as the listed requirements were met. However, the 2021 revision of the Rules brought about a minor but potentially significant innovation. While subsection (ii) above remained unchanged, the wording of subsection (i) currently refers to “encouraging the parties to consider settlement of all or part of the dispute either by negotiation or through any form of amicable dispute resolution methods…” Now, rather than merely informing the parties of the possibility of reaching a settlement, tribunals may more actively “encourage” this behavior. This subtle amendment may be important, as it reflects a greater acceptance toward arbitration tribunals being more involved in facilitating amicable settlements. On the contrary, the argument could be made that the amendment is immaterial for our purposes, considering that subsection (ii) above, which is the one referring to Arb-Med-Arb more directly, remained unchanged. Notably, the provision still requires that the parties agree on the combination of roles by the tribunal, and that the tribunal undertakes every effort to ensure the enforceability of the award. Therefore, ICC tribunals are far from enjoying unlimited discretion in this field. Furthermore, the permissibility of Arb-Med-Arb in the past does not appear to have resulted in its general application by ICC tribunals. However, at the risk of stating the obvious, a final observation may be made that the ICC had some kind of intent in drafting the amendment in question. It remains to be seen whether ICC tribunals will take note of the modification, and whether it will impact their approach to case management. In practice, ICC tribunals frequently defer to the guidance of the ICC, as evidenced by the widespread use of the ICC Guidance Note on Possible Measures Aimed at Mitigating the Effects of the COVID-19 Pandemic. Therefore, this revision of the Case Management Techniques should not be disregarded so fast. III. Conclusions The practical application of Arb-Med-Arb does not solely depend on the arbitration rules, but rather, also on the consent of the parties involved, and perhaps more importantly, on the applicable mandatory legal provisions. Precisely, the Case Management Techniques place the latter at the forefront, mandating tribunals to go to great lengths to protect the enforceability of the award. With the anticipated emergence of international mediation, and the question of arbitrator impartiality being more critical than ever, the discussion at hand promises to be an interesting one for the future. [1] Rosoff, J. (2009). Hybrid Efficiency in Arbitration: Waiving Potential Conflicts for Dual Role Arbitrators in Med-Arb and Arb-Med Proceedings. Journal of International Arbitration, 26(1), 90
[2] Gao Haiyan v Keeneye Holdings Ltd [2011] HKEC 514
[3] Article 26.9, LCIA Arbitration Rules; Article 10.8, CAM-CCBC Arbitration Rules; Article 45, SCC Arbitration Rules Jorge Arturo González Jorge Arturo is a trainee lawyer at a Latin American law firm, having graduated from Universidad de Costa Rica. During his studies, he completed an exchange program in Utrecht University (Netherlands), participated in international moot competitions, and interned in corporate law firms, a start-up incubator and the Costa Rican Congress. He is interested in tech law, international business law and dispute resolution. Feel free to connect @ https://www.linkedin.com/in/jorgegonzalez12/ 👨‍💻Want to share feedback? Did we miss something important? Let us know! We would love to hear from you at info@legaljargon.net or simply just comment below!

Resources for Commercial Awareness

Resources for Commercial Awareness

CASSANDRA ACQUAH | LEGAL JARGON WRITER We’re into the season of assessment centres with firms offering applicants a place on these final stages of a very competitive application process- good luck if you’ve been invited to one and good luck if you’re still waiting to hear back! That being said, it’s important to develop your commercial awareness throughout the process as this will stand you in good stead when you do get invited to that interview or assessment centre. Law firms increasingly want to ensure applicants are able to demonstrate commercial awareness and also, a genuine commercial interest. This means having an awareness of and interest into business environments, making links about how the stories being read affect different industries, being curious and asking questions about what you are reading and also, having your own opinions about the story and any future impacts it could have. Assessment centres can involve a range of activities from group and written exercises to case study interviews and being able to demonstrate your commercial interest where applicable will only add to your impressiveness as a candidate. There are many resources out there to help develop your commercial awareness so it’s important to find the ones that work best for you and that you enjoy as this will help you establish a daily routine for yourself. You should also ensure that you draw on a range of resources to gain an overview and understanding of the story/ topic being researched. Some resources to check out: Legal Jargon News Summaries and Blogs Commercial Law Handbook by Jake Schogger Commercial Law Assessment Centre Guide by Mindfull Learning The Tazil Foundation Commercial Awareness Specification Wake up to Money on BBC Radio 5 Live (available on Spotify and Apple Po dcasts) Financial Times Daily News Briefing (available on Spotify and Apple Podcasts) The Economist Morning Briefing (available on Spotify and Apple Podcasts) Commercial Awareness with Watson’s Daily Business and Financial News (available on Spotify and Apple Podcasts) Commercial Law School (on YouTube) BBC News (the Business tab on their website or app) The Financial Times Law firm websites- it is also important to understand how a firm works as a business as part of your commercial awareness. Think about what the firm’s business model is, where its offices are located, if it has recently made lateral hires and if so, into which areas, if it has a sector-focused approach, the strategies it employs to maintain its clients etc. Questions to ask yourself when reading a story: It’s important that you analyse the stories being read and consider the implications it could have in other areas. This will provide you with a greater level of understanding of what’s going on which in turn, will make it much easier for you to talk about if prompted during an interview. When you’re listening to/ reading about a story try and ask yourself these questions: Who are the main parties involved? What sector/s does this impact? Does this link to a wider trend that has been developing recently ? Does this link to something else I’ve read recently? Do I anticipate any risks that could arise from this? How could a law firm get involved here? We hope you found this short guide helpful- the resources provided here are by no means the only ones out there so please feel free to share any further resources you find useful too! CASSANDRA ACQUAH Cassandra is an aspiring solicitor with interests in retail and media, as well as the steps being taken to increase diversity at all levels within the legal sector. 👨‍💻Want to share feedback? Did we miss something important? Let us know! We would love to hear from you at info@legaljargon.net or simply just comment below!

Three antitrust cases against Google

Three antitrust cases against Google

FEON WONG | LEGAL JARGON WRITER First (October) Following the House’s report that deemed big tech companies as having ‘too much power’, the US Justice Department is bringing Google to court, alleging that the tech behemoth harmed competition through distribution agreement. This essentially means that Google pays other companies to prioritise its search engines, thereby locking out competition. Second (December) This lawsuit is centred on the online advertising market where Google is being accused of utilising its vertical integration to win advertising auctions and engage in bid rigging to block competition in the online advertisement market. As the technology provider, Google was said to have gained unfair advantages for its real-time advertising auctions as it is essentially ‘trading on insider information’. According to Dina Srinivasan, a researcher at Yale, this amounts to conflict of interests, akin to those in financial markets, that should be minimised and not tolerated. Google had also engaged in bid rigging when it granted Facebook advantages in auctions in return for Facebook discarding its new online-advertising bidding system that would pose a threat to Google’s business. Third (December) This accusation concerning Google’s anticompetitive behaviour was initiated by Colorado alongside New York, North Carolina, Arizona, Iowa, Nebraska, Tennessee and Utah. The accusation focuses on search engines and claims that Google has prevented competition by using its financial resources to dominate the market. An example that illustrates this, not yet denied Apple, is the billion dollars deal struck with Apple to make Google the default search engine on IOS devices. In addition to that, Google was also criticised for its ability to collect vast amounts of data as this ensures the company an unfair edge against its competitors. This is seen in the voice assistance market where Google excludes competitors’ virtual assistant technology from devices that adopt Google Assistant. Conclusion It was no surprise that Google refuted the aforementioned claims, citing them as ‘deeply flawed’ and arguing that the competition in the market is fierce. It also maintained that its operation harms no customers and that customers are free to use any alternatives provided by its competitors. Nonetheless, it seemed that the rationale behind antitrust case is shifting from consumers’ benefit to market fairness. This translates into the understanding that merely causing no harm to consumer welfare is insufficient; rather, how the company maintains its dominating market positions and whether by doing so it hurts upstart competitors, have become the main questions. FEON WONG LLB student at The London School of Economics | Communication Officer at Japan Society at LSE 👨‍💻Want to share feedback? Did we miss something important? Let us know! We would love to hear from you at info@legaljargon.net or simply just comment below!

Climate Ambition 2020

Climate Ambition 2020

FEON WONG | LEGAL JARGON WRITER Following the Paris Agreement, countries have pledged their ambitious goal of keeping the increase of global temperature below the 1.5C above the pre-industrial level by 2100. It has now come to the five-year checkpoint where nations must update their commitments in tackling climate change. It was alerted by the UN Secretary-General that although progress has been made, it is insufficient to fully realise the goal. Therefore, countries will need to put forth an improvised plan named Nationality Determined Contribution (NDCs) to further reduce emissions by 2030. With at least 38 countries declaring a climate emergency, many countries have apparently resonated and decided to take further action. For example, the UK intends to stop its support for overseas fossil fuels projects and double its International Climate Finance (ICF) contribution to £ 11.6 bn. The EU pledged a 55% cut in emissions, whereas China, deemed the game changer in relation to climate change, announced that it will reduce 65% emissions per unit of GDP while boosting wind and solar capacity. On the other side, India announced that it was on track to achieve its goal. Corporations, such as Apple, have followed suit of the countries to realise this aspiration. Tim Cook, CEO of Apple, delivered the company’s goal at the Summit: to be 100% carbon neutral for its entire supply chain by 2030. Oil giants, such as Shell and BP, have also joined the squad to accelerate the transformation as they, too, pledge to be net-zero carbon companies by 2050. It should be mentioned that the positive effect brought about by the pandemic on carbon emissions is significant. With people being kept at home, the daily CO2 emissions reduced drastically by around 17%. Nonetheless, a surge in carbon emissions is foreseeable once the lockdown is over as people will be going back to their offices and airlines, the worst-hit industry amidst the spread of Covid-19, will run again. Therefore, it remains to be seen how different countries will execute their ideas so as to allow the goal of the Paris Agreement to bear fruit. FEON WONG LLB student at The London School of Economics | Communication Officer at Japan Society at LSE 👨‍💻Want to share feedback? Did we miss something important? Let us know! We would love to hear from you at info@legaljargon.net or simply just comment below!

Amazon Prime Video launches on Sky in major European deal

Amazon Prime Video launches on Sky in major European deal

CASSANDRA ACQUAH | LEGAL JARGON WRITER Sky has agreed a deal with Amazon, which will see its customers able to watch Amazon Prime Video on Sky and Sky’s Now TV service on Amazon Fire TV devices, providing a much wider range of content. The multi-year European deal will make Amazon Prime Video much more easily available to Sky customers over the next few months in the UK, Ireland, Germany, Austria and Italy. This move will see the Prime Video app, launching on the set-top box service Sky Q. This makes Amazon Prime Video the third major streaming provider after Netflix and Disney Plus, to strike a partnership with Sky, whose apps are also currently available on Sky Q. The deal with Disney Plus was agreed in March of this year, just before its announcement of reaching 50 million worldwide subscribers in its first five months, after launching in November. The deal also eases the accessibility of the mentioned services for customers, given that their apps can all be found in one place. Additionally, the timing of this deal is especially significant for the sports industry, as UK customers will be able to watch live Premier League matches on Sky Sports, Prime Video and BT Sport without having to switch devices. With customers increasingly expecting to be able to access a huge range of content in one place, this deal is a prime example of major media and entertainment companies like Sky adapting their commercial strategy to expand their content in an effort to rival competitors. Commercial considerations; The insight into Sky’s commercial strategy shows how companies are adapting their methods in an increasingly competitive industry. The relationship between TV providers and streaming services have had a tendency to be quite divided so it will be interesting to monitor the future results of this collaborative move on both companies’ businesses. With Christmas fast-approaching and areas in England being moved up to Tier 3, restricting people’s movement, the timing of this deal is very convenient and will likely see an increase in usage from customers. Integrating these streaming services on Sky has provided more convenience for customers however, these subscriptions are still an expense, although decreased in price through these bundle deals. Therefore, it poses the question of whether having these deals will definitely ensure long-lasting survival for companies like Sky or if the streaming services industry will still take over the market. Legal considerations; A major contribution to the success of services like Disney Plus is the fact that it has been able to leverage its IP rights and enforce exclusivity for a lot of its content. Increasing the ease of accessibility for customers without hindering this exclusivity is good for the success of the business. CASSANDRA ACQUAH Cassandra is an aspiring solicitor with interests in retail and media, as well as the steps being taken to increase diversity at all levels within the legal sector. 👨‍💻Want to share feedback? Did we miss something important? Let us know! We would love to hear from you at info@legaljargon.net or simply just comment below!

Amazon Pharmacy

Amazon Pharmacy

FEON WONG | LEGAL JARGON WRITER With the increase of Covid-19 that has resulted in more hospital patients, one exciting news that can cheer people up is that Amazon has launched the Amazon Pharmacy. This division allows Amazon Prime members to order prescription drugs online with discounts up to 80% on generic drugs and 40% on branded drugs, as well as a free two-day delivery. With hindsight, perhaps the acquisition of PillPack back in 2018 signalled Amazon’s strong will to challenge the traditional pharmaceutical industry worth over $300 bln. Presently, only 45 states in the USA will have access to this service – though Amazon is definitely planning to expand on its offering. In order to use Amazon Pharmacy, customers over the age of 18 will need to answer questions like the date of birth, gender and other personal questions required by law. Doctors will then be able to send the prescriptions to Amazon Pharmacy to complete the delivery part. It was no surprise that the competitors’ shares fell after the announcement. In particular, both Walgreens Boots Alliance’s and CVS Health’s shares dropped by 9%. However, this does not mean that Amazon can lay back and relax now. This is because the compliance on storing and shipping of drugs will be closely monitored by regulatory bodies. As Amazon Pharmacy disrupts the traditional pharmaceutical industry, this will attract more attention and scrutinisation. On the other hand, shoppers tend to be loyal to local pharmacists. This could be demonstrated by a set of statistics: 88% of prescriptions were purchased at physical stores. A potential reason for this may be the off-putting inconvenience and time delay in purchasing and receiving the prescription from the online store. As a matter of fact, there are also some opportunities to better serve, and hence attract customers. For example, customers are likely to consult doctors for cheaper medicine alternatives or make further enquiries into the drugs. This has resulted in 900m calls a year according to the US Department of Health and Human Services. Amazon is evidently tackling this issue by developing a software to allow for seamless communications between customers, doctors, and pharmacists. If a customer is taking multiple prescriptions at once, Amazon will also examine the problematic drug interactions of the prescriptions. The strong side of Amazon’s business model, advertisement, is hard to be incorporated into Amazon Pharmacy. Comparing it to receiving ads on clothing and accessories, an advertisement on drugs simply does not sound right. Nonetheless, even as a standalone business, Amazon Pharmacy is expected to capitalise on this big yet untapped market. FEON WONG

LLB student at The London School of Economics | Communication Officer at Japan Society at LSE 👨‍💻Want to share feedback? Did we miss something important? Let us know! We would love to hear from you at info@legaljargon.net or simply just comment below!

New Arbitration Rules for a Post-Pandemic World

New Arbitration Rules for a Post-Pandemic World

JORGE ARTURO GONZÁLEZ | LEGAL JARGON WRITER The COVID-19 pandemic impacted international arbitration in many ways. As a starting point, travel restrictions and “social distancing” rules challenged the standard of holding in-person hearings. In this context, two leading arbitration institutions —the London Court of International Arbitration (“LCIA”) and the International Court of Arbitration of the International Chamber of Commerce (“ICC”)— recently amended their respective arbitration rules. Although many of the amendments to the rules concern issues not related to COVID-19, others provide some helpful clarifications regarding the latter. 2020 LCIA Arbitration Rules The 2020 LCIA Arbitration Rules have been in force since 1 October 2020. Regarding remote hearings, article 19.2 (“Conduct of Proceedings”) of the Rules provides the following: The Arbitral Tribunal shall organise the conduct of any hearing in advance, in consultation with the parties. The Arbitral Tribunal shall have the fullest authority under the Arbitration Agreement to establish the conduct of a hearing, including its date, duration, form, content, procedure, time-limits and geographical place (if applicable). As to form, a hearing may take place in person, or virtually by conference call, videoconference or using other communications technology with participants in one or more geographical places (or in a combined form). The references to conference calls and videoconferences are a welcome clarification, although not game-changers on their own. The authority of an arbitral tribunal to conduct proceedings as it deems fit, which includes the possibility to order hearings to be remote, has been consistently recognised across different jurisdictions for a long time. A very relevant, but different, question is whether a tribunal should order a hearing to take place remotely, when one of the parties insists on the hearing being held in person. In such cases, a tribunal must balance different concerns (e.g. the efficiency of proceedings, and the feasibility of presenting evidence remotely). Considering other changes fostered by the pandemic, one field in which the new LCIA Arbitration Rules are at the forefront is the e-signing of awards. Article 26.2 (“Award(s)”) states: The Arbitral Tribunal shall make any award in writing and, unless all parties agree in writing otherwise, shall state the reasons upon which such award is based. The award shall also state the date when the award is made and the seat of the arbitration; and it shall be signed by the Arbitral Tribunal or those of its members assenting to it. Unless the parties agree otherwise, or the Arbitral Tribunal or LCIA Court directs otherwise, any award may be signed electronically and/or in counterparts and assembled into a single instrument. The above provision expressly enables e-signing an award. In contrast, other arbitration rules frequently refer to signing the award in wet ink, and sending the signed award to the institution administering the proceedings. From the author’s viewpoint, it is somewhat surprising that e-signing an award could even be an issue, when the rest of the world is increasingly relying on digital means for signing contracts and other legal documents. The reasons behind this technological conservatism relate mostly to the procedure for the enforcement and recognition of international awards, which requires the prevailing party to provide the court at the place of recognition and enforcement with the “duly authenticated original award or a duly certified copy thereof”, according to article IV(1)(a) of the NY Convention. Hopefully, the widespread adoption of e-signing software will prompt State courts to recognise awards signed exclusively through electronic means. 2021 ICC Rules of Arbitration The new ICC Rules of Arbitration will enter into force on 1 January 2021. Regarding remote hearings, article 26(1) provides the following: The arbitral tribunal may decide, after consulting the parties, and on the basis of the relevant facts and circumstances of the case, that any hearing will be conducted by physical attendance or remotely by videoconference, telephone or other appropriate means of communication. Again, this is a welcome clarification regarding remote hearings. In the case of these rules, however, there are no provisions expressly enabling the e-signing of awards. Relevance for companies As the users of international arbitration, companies have witnessed first-hand the “COVID-19 revolution”. [1] Although many COVID-19 restrictions have been gradually lifted, in some cases the preference for remote hearings may remain. When shopping for counsel, companies may conclude that having offices in the main arbitration hubs probably does not add as much value to a law firm as it once did. Global competition between arbitration practices may increase, and fully remote settings may represent an opportunity for newcomers. [1] International Arbitration and the COVID-19 Revolution (Edited by Maxi Scherer, Niuscha Bassiri, Mohamed S. Abdel Wahab) Jorge Arturo González Jorge Arturo is a trainee lawyer at a Latin American law firm, having graduated from Universidad de Costa Rica. During his studies, he completed an exchange program in Utrecht University (Netherlands), participated in international moot competitions, and interned in corporate law firms, a startup incubator and the Costa Rican Congress. He is interested in tech law, international business law and dispute resolution. Feel free to connect @ https://www.linkedin.com/in/jorgegonzalez12/ 👨‍💻Want to share feedback? Did we miss something important? Let us know! We would love to hear from you at info@legaljargon.net or simply just comment below!

The Biggest Trade Agreements in History - Article 16

The Biggest Trade Agreements in History - Article 16

FEON WONG | LEGAL JARGON WRITER After eight years of hard work, one of the biggest trade agreements in history, involving 15 Asia-Pacific countries such as Japan, New Zealand, China, Malaysia and others, was finally signed. Named as the “Regional Comprehensive Economic Partnership” (RECP), the trade deal will reduce tariffs among its member countries, allowing an increase of $200 billion a year to the global economy. Had India relaxed its concern about China dominating the production of goods, or the US remaining in the Trans-Pacific Partnership(TPP) in 2017, the trade agreements could have been bigger by adding the stake of another two big nations. Usually, no country would be allowed to join the deal after a certain period of time, however, an exception was made to India – it is free to re-join the agreement at a later date. Tariffs previously imposed on areas such as intellectual property, telecommunications and financial services will no longer exist. Perhaps what can be said to be the biggest impact brought about by RECP is the new “rule of origins” that aims to standardise the tariffs imposed. In the past, countries involved in the Free Trade Agreement (FTA) did not necessarily enjoy the full benefit of the agreement. This is because products containing components produced in other countries (rather than from the countries involved) had to be taxed accordingly. Under the current trade agreement, the product will be treated as being produced by the member nation locally, thereby freeing the multinational companies from the incurrence of tax. Some might say that the RECP is not as ambitious as the TPP as it only eliminates 90 per cent of tariffs instead of 100 per cent in TPP. Others expressed their regrets on the e-commerce industry as no consensus could be reached amongst the countries. Notwithstanding these critics, the trade deal is said to have achieved a great milestone given the differences in size, wealth and characteristics of the member countries. Due to the enormous size of the deal, it is also one that can double the annual trade value and combined gross domestic product as compared to TPP. The agreement has driven Asian stocks to increase to almost its highest record levels. This has demonstrated the investors’ confidence and optimism, as well as a sign of deviation, from the sit-and-wait approach taken during the pandemic. With the 15 Asia-Pacific countries intending to rescue their respective countries from the battering of the pandemic, the RECP would serve as a great opportunity for them to achieve their goals. This, coupled with the successful production of vaccines by Pfizer and Moderna, will pave the way to the new world. FEON WONG LLB student at The London School of Economics | Communication Officer at Japan Society at LSE 👨‍💻Want to share feedback? Did we miss something important? Let us know! We would love to hear from you at info@legaljargon.net or simply just comment below!

Frasers Group increases its stake in Mulberry

Frasers Group increases its stake in Mulberry

CASSANDRA ACQUAH | LEGAL JARGON WRITER Mike Ashley’s Frasers Group, formerly known as Sports Direct, has increased its stake in luxury British handbag company Mulberry. After buying a 12.5% stake in February of this year, it has now risen to 37%. This signals Ashley’s desire to move his retail empire more upmarket after also investing in German luxury goods group Hugo Boss earlier this year and acquiring the brand Flannels in 2017. The coronavirus pandemic and its resulting lockdowns has significantly impacted Mulberry causing it to cut its workforce and see its share prices decrease. The lockdowns have seen the forced closures of its stores and department stores where its products are sold, reducing in store sales. Significantly for Mulberry, these lockdowns also prevented purchases being made by high-spending tourists as these make up about 10% of the company’s sales. Its digital sales, however, rose by 69% between March and September, with chief executive Thierry Andretta stating that Mulberry’s online strategy was ahead of its rivals in the luxury market. In a stock exchange update, Frasers revealed that the Takeover Panel waived the usual requirement to make a bid for the entire company when a stake exceeding 30% was acquired. This was because the biggest shareholder, Challice, had a 56% stake. However, Frasers expressed that it was still considering this move saying it was “reserving its right to make a voluntary offer for the company”. Under the panel’s rules, Frasers Group has until 17th December to announce a formal intention to make an offer for the company. Commercial considerations: The struggles facing many companies and their decreasing share prices, makes them attractive investments - particularly for figures like Mike Ashley who has continuously been focused on expanding his retail empire. As mentioned, Mulberry has a successful online presence through which sales have increased. Particularly in the current midst of national lockdowns where physical shopping is restricted, this is something retailers will have to focus on to encourage sales. Legal considerations: We have seen a few M&A deals during this time, for example VF Corp’s planned £1.5 billion acquisition of streetwear brand and retailer Supreme, which should be complete by the end of 2020. It will be interesting to see whether Frasers Group formally announces a desire to make an offer to acquire Mulberry by 17th December and continue this trend in retail M&A activity. CASSANDRA ACQUAH Cassandra is an aspiring solicitor with interests in retail and media, as well as the steps being taken to increase diversity at all levels within the legal sector. 👨‍💻Want to share feedback? Did we miss something important? Let us know! We would love to hear from you at info@legaljargon.net or simply just comment below!

Deloitte acquires technology-specialist law firm Kemp Little

Deloitte acquires technology-specialist law firm Kemp Little

CASSANDRA ACQUAH | LEGAL JARGON WRITER Earlier in November, Deloitte’s acquisition of law firm Kemp Little was announced, doubling the size of its UK legal practice from approximately 85 lawyers to more than 170. This will involve the addition of 29 partners and 57 lawyers. Kemp Little is a leading technology and digital media law firm and is highly-regarded for developing award-winning LegalTech products, including Dupe Killer, an AI-powered IP protection tool and 4Corners, a contract analysis system. This provides significant insight into Deloitte Legal’s strategy regarding the expansion of its technology capabilities, allowing them to offer a broader range of expertise to clients. This move also demonstrates how Deloitte is acting according to client need following the increasing demand from its consultancy clients for an “end-to-end service” where they can also receive expert legal advice as stated by Deloitte Legal’s managing partner in the UK, Michael Castle. Although Deloitte was the last of the Big Four accounting firms (PwC, KPMG, EY and Deloitte) to establish a legal practice, launching an alternative business structure in June 2018, its tax and legal division made £910 million in revenue in the twelve months up to May 2020 which makes it the UK firm’s largest division ahead of its audit and consulting divisions. This expansion plan has reignited the topic surrounding the impact of the Big Four’s presence in the legal sector, on traditional law firms. If considering the lawyer headcount, all four companies employ more lawyers worldwide than most law firms with PwC boasting a huge 3,500 lawyers whilst Deloitte has 2,500. A 2015 report by the Royal Bank of Scotland warned that accountancy firms were “quietly” starting to take market share from the established mid-market law firms. Whilst some agree with this stance, others oppose it and believe that the demand for traditional law firms will always remain high, due to their long-standing reputation with clients and expertise in the market.

Commercial considerations; This provides an interesting insight into companies and what they are increasingly requiring from professional service firms. The demand for a more “end-to-end service” suggests they are wanting more value for the price they are paying- rather than receiving one service from different sources, they would prefer to go to one source and receive as much as possible. As a client-driven industry, it is important for law firms to shape their businesses according to client need so it will be interesting to follow the development of this. Legal considerations; Consider the impact this will have on traditional law firms. Something significant that these accountancy firms can offer is large-scale, up to date developments in technology, which helps improve the efficiency of their work and therefore reduce costs for clients. This may spur more investment into technology from these mid-market law firms that the Royal Bank of Scotland identified. However, some of these law firms are not able to invest in such large-scale technology- this poses a great threat. The fact that Kemp Little specialises in technology and digital media and is a known innovator, also indicates Deloitte’s strategy in wanting to expand its technology capabilities, particularly in this time where reliance on technology is becoming more prevalent. CASSANDRA ACQUAH Cassandra is an aspiring solicitor with interests in retail and media, as well as the steps being taken to increase diversity at all levels within the legal sector. 👨‍💻Want to share feedback? Did we miss something important? Let us know! We would love to hear from you at info@legaljargon.net or simply just comment below!

The UK’s furlough scheme has been extended, but is this a wise decision?

The UK’s furlough scheme has been extended, but is this a wise decision?

IQRA ALI | LEGAL JARGON WRITER Announced on the 5th November 2020, workers across the UK will now continue to benefit from income support, with the government allowing a 4-month extension of the furlough scheme. Will anything change? The extension will be quite similar to the previous job retention scheme: employers will be able to furlough workers and the government will pay 80% of wages (capped at £2,500), saving millions of jobs. Where employers were cutting jobs before, they are now turning to furlough instead – Rolls-Royce is a recent example of this. Self-employed people can also claim a further grant worth 80% of their business profits (capped at £7,500), helping with cash flow pressure during winter. But this decision hasn’t come without its criticisms. The furlough scheme will be expensive. The cost to pay 80% of wages will be £6.2bn while it will cost a further £7.3bn to support the self-employed. Critics have said that the extra spending will be a huge waste of money and doesn’t necessarily promise to help the most vulnerable. I think that’s right. Research has shown that employers took advantage of the furlough scheme in September even where they were unaffected by the social distancing rules. Those who claimed the self-employed grant did so even though they did not suffer a huge financial loss. Yet so many self-employed individuals lost all their income but were not eligible for the 80% support. What are the implications? The hospitality and retail sectors will benefit from this extension. Although they have not been forced to shut down, they have still faced a huge drop in demand. To me, those sectors seem like they deserve financial support. Social distancing has significantly impacted the way we shop, holiday and eat. Let’s break it down: Retail: Social distancing led to less people shopping in store. Queuing up and having to wait outside detracted a lot of customers which obviously reduced the revenue that those stores would have been generating otherwise. Retail was one of the worst hit sectors in this chaotic pandemic and if we want the high street to survive, we have to ensure stores are able to afford their rents, buy stock and pay wages to staff. We cannot easily move to e-shopping and abandon stores; some of us like looking at items before buying. We need shops to stay. Hospitality: This sector has indeed been stuck in this pandemic for quite a while, facing a loss every day. Restaurants and pubs closing during lockdown meant no more dinners and drinks. Children lost out on their trips to theme parks and zoos in the summer and so owners lost out on money that they had been hoping to enjoy. Museums are simply not the same, even if some of them have since added digital content. These are businesses and therefore require cash to keep rolling. No cash means no business. Let’s get back to commercial law So many sectors in the legal industry were adversely impacted and those who have been avidly following commercial law will be aware that litigation and employment attracted work while M&A suffered a downfall. M&A is the bread and butter for so many law firms and so the adversity led to economic losses, as a result of which firms chased to cut costs. The furlough scheme extension will not only allow law firms themselves to take advantage of this for their own employees but it may also prepare them for their sectors and services. Which sectors will be affected by a downfall of business, is something that I think we’ve already briefly explored. But what’s more important is how firms will adopt a change in their approach to ensure their bread and butter doesn’t simply rest on M&A – an area that is so volatile. Iqra Ali Iqra is an aspiring commercial lawyer and completed her LPC at the end of August 2020. 👨‍💻Want to share feedback? Did we miss something important? Let us know! We would love to hear from you at info@legaljargon.net or simply just comment below!

Why securing debt forgiveness for poor countries is so hard

Why securing debt forgiveness for poor countries is so hard

FEON WONG | LEGAL JARGON WRITER To pay the creditors or to support its people who suffered from the pandemic – that is the challenging question for governments in many poor countries. It was a great relief for them when the G20 group agreed to prolong the Debt Service Suspension Initiative (DSSI) in which the debt-service payments were halted until July 2021. This will allow them to stay focused on wrestling with Covid-19 and the economic impact brought by it. According to the International Monetary Fund (IMF), public debts in those countries rocketed from 29% of GDP to 43% last year and were expected to further increase to 49% this year. With taxpayers themselves struggling to make ends meet, the governments are facing difficulties in terms of collecting tax revenues, which in turn jeopardises their ability to repay the foreign investors. This is evident as a third of DSSI-eligible countries are either drowning in debt distress, or are on their way to it, according to the World Bank. In fact, 73 countries such as Ethiopia, Mozambique and Zambia, are expected to repay over $31bn debt by December. Albeit the central banks’ lower-than-ever interest rate and the international financial institutions’ generous fund have come to the rescue; this is not a long-term solution to the desperate countries. Suspension of debts is, by all means, different from writing off the debt. The true solution lies in debt restructuring where massive defaults can be avoided. However, it is apparent that borrowers’ concern of their worsening financial position put them off from signing up to it. This could be seen when the G20’s encouragement for private creditors to collaborate failed to improve the situation as it is the poor countries which were reluctant to cooperate. The underlying reasons stemming from the worry of downgrading credit has led to the strong resistance to approach rating agencies. As if this was not bad enough, the lenders’ side is experiencing issues as well. The “Paris Club”, once deemed as having mostly rich countries’ governments as its members, was once the one capable of calling for any restructuring. This is no longer true. Around 33 countries owed a quarter of their debts to China; although the black horse of the 21stcenturies insisted that it should be excluded from the scheme as it was not an official lender. It may be a relieve to learn that G20 has reached consensus in promoting a “common framework” for debt restructuring. This means that G20 creditors and private sector will be treated alike in the undertaking of the restructuring. It would be even more of a relieve if China can coordinate its lending agencies to join the scheme. Nonetheless, we will only know more about the details in November after the summit is held. FEON WONG LLB student at The London School of Economics | Communication Officer at Japan Society at LSE 👨‍💻Want to share feedback? Did we miss something important? Let us know! We would love to hear from you at info@legaljargon.net or simply just comment below!