Behind the case - December 2013

Opinion
To mediate
or not
to mediate
15
And
much
more
The Litigation and Risk Management Magazine of De Brauw Blackstone Westbroek // Issue 1 - December 2013
Duo interview
Ruud Hermans and
Esther Albers about
Project Management
& Budget Control tool 20
Global view
A view on working
in Asia with
Jolbert Smilde
17
Client interview
Obbe Siderius and
Daan Beenders about
global purchasing
at Heineken 8
Client interview
GLOBAL PURCHASING
AT HEINEKEN
A duo interview with Heineken’s Obbe
Siderius and De Brauw’s Daan Beenders
Partner interview
MODERN CLIENT FOCUS
MEETS OLD SCHOOL
LEGAL ANALYSIS
An interview with Dennis Horeman
Opinion
TO MEDIATE OR
NOT TO MEDIATE
Global view
working in one of Asia’s
key legal markets
Jolbert Smilde on working
in Singapore
Duo interview
Transparency , control ,
efficiency, predictability
An interview with Esther
Albers and Ruud Hermans
Editorial letter
Column
Maximising business
value with
legal strategy
Media coverage
DE BRAUW
IN THE MEDIA
Digital
HOW THE COOKIE
CRUMBLES
THE 10
CALENDAR
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We stand beside our clients wherever they operate globally. Since 1871 this is the keystone of our focus.
Whether in the Netherlands or abroad, we deliver a powerful corporate and finance practice, a centre of
excellence in litigation and arbitration, and an unparalleled team of compliance experts.
Our role of trusted advisor is rooted in our history as a firm, and is integral to who we are today. From our
home office in Amsterdam, we advise more than 70 per cent of the largest companies headquartered in
the Netherlands. And we also stand beside our clients in their international transactions, litigation and
compliance work. This is why we have offices in strategic locations like Beijing, Brussels, London, New York
and Singapore and why we work closely together with top-tier local counsel in all jurisdictions.
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including the client contacts,
for their enthusiastic support
and time. Also, we thank the
team that made this publication
possible.
We hope you will enjoy the read.
The editors
Tobias Cohen Jehoram
E [email protected]
Edward van Geuns
E [email protected]
Amanda Kemshaw
E [email protected]
Diane Živkovicć
E [email protected]
Paul Tjiam
E [email protected]
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Letter from the editors
WELCOME TO
THE FIRST EDITION OF
BEHIND THE CASE
This is De Brauw Blackstone
Westbroek’s electronic
magazine on the background
of and developments in the
field of dispute resolution and
management. The magazine
will be distributed three times
a year, and will also be
available on our website.
Behind the Case aims to provide
insight into the many different
aspects of dispute resolution
and the management of risks
associated with litigation.
We have tried to provide views
from different angles (in-house
counsel, outside consultants
and attorneys-at-law) on
relevant strategies, useful tools,
optimising cooperation,
relevant legal and practical
developments, while at the
same time introducing some
of De Brauw’s people and
practices. After all, lawyering is
a people’s business. By offering
a look behind the scenes –
or in the machinery if you will –
we hope to provide a feel for how
we work with in-house counsel to
obtain the best results in dispute
resolution, or better still: to avoid
disputes.
We do realise that, by stepping
outside of the realm of legal
developments as such, we are
doing something new, and for
the first time. So probably,
we did not get everything right
this first time. Therefore, any
comments and suggestions you
may have are warmly welcomed.
The same goes for any
suggestions you may have
for future topics or features.
We would like to extend a special
thanks to the people featuring in
this first issue, of course
management. That actually
means that, as long as noncompliance
fines are limited
and the brand reputation can be
protected by well-prepared crisis
management, we might in the low
priority countries opt for a quick
generic roll-out with “decent
but not perfect” legal coverage
based on a comparable reference
country. And rely on our incident
management for the temporary
imperfections.
This last strategy will definitely
make a good portion of legal
professionals cringe: accepting
less than perfect preventive
action and counting on defensive
action. But as long as all stakeholders
are served fairly and the
business value is optimal it is a
viable and perhaps even better
strategy. And a good example that
the best business value might be
delivered by a surprising legal
strategy.
4
Column // Harm Cammel >> partner at Baskerville
Maximising
business value with
legal strategy
Simple questions, but answering
them requires some analysis.
To define business value we
need to go beyond the technical
quality of legal services. We need
to truly understand a client’s
business and objectives. We
need to fully grasp the business
strategies selected to achieve
these objectives. We need to
comprehend all legal implications.
And we need to keep in mind that
the best business value might not
come from the technically best
legal strategy.
Let me give an example. Imagine
a consumer brand. eCommerce
increases loyalty and yields higher
margin per sale than retail, so
a key business objective is to
increase web interaction with
clients. For legal that means
defining adequacy on all related
laws & regulations in all relevant
countries. And implementing a
solid awareness, support and
control structure to help all
employees comply. For a global
company this will be a timeintensive
project. A regular
strategy would be to start with
the key markets and roll out in
other countries at a later stage.
But every quarter gained means
additional margin made, so there
actually is a business case
to invest in additional legal
resources to speed up the rollout.
As long as the gains in
margin exceed the additional
legal cost, it’s the strategy with
the better business value.
Sounds good, but there’s a third
strategy that might deliver even
better business value. No matter
how good the legal preparations,
there will always be incidents.
Because of mistakes and the
inevitable small percentage of
people who are willing to play the
system. So we will always have to
prepare for good incident
High quality legal is not an objective in itself. It’s a means to an
end. Both for in-house teams and law firms, at the end of the day
it all boils down to one simple question: does our work have the
best possible impact on the objectives of the organisation we work
for? That may sound obvious but under our daily pressures we
sometimes lose sight of why we do what we do. With the risk of
missing out on valuable alternatives. So it’s good to frequently take
a step back and ask ourselves: what really is the business value of
our work? And what can we do to further increase that value?
them. De Brauw Shanghai will
be headed by M&A partner
Gaby Smeenk.
De Brauw wins
battle in capsule war
The Board of Appeal of the
European Patent Office in
Munich, on 10 October 2013,
orally revoked Nestlé’s most
important patent that relates
to the Nespresso machine.
The decision is final, which
means that Nestlé has lost this
patent forever.
Since the introduction of D.E
MASTER BLENDERS’ capsules
on the market, both parties have
been involved in a fierce battle
that, besides the European Patent
Office, is being waged before
national courts in four countries,
including the Netherlands. De
Brauw continues to fulfil a key
role as lead counsel in these
proceedings. Both parties are
considering the next steps in
these on-going proceedings.
Global Arbitration Review:
De Brauw among elite arbitration
firms worldwide
De Brauw has entered GAR’s
annual ranking of the 30 leading
international arbitration practices
in the world. Global Arbitration
Review’s in-depth analysis is
based on up-to-date, independent
and objective data and research,
as well as on client feedback.
The criteria for De Brauw’s
entering the list of leading international
arbitration practices
include 17 hearings in international
arbitration conducted in 2011
and 2012, its current caseload
of around 30 cases as counsel,
and USD 6.5 billion as total value
of counsel work.
Stefan Sagel advises
Dutch parliament on revision
of Dutch law governing dismissal
The law governing dismissal
should become simpler and
unambiguous. This is why the
social partners came up with
a new system: an employer that
dismisses an employee for
economic reasons will always
end up at the UWV, the Dutch
Governmental Employment
Agency, where the employer
must obtain a permit to give
notice. An employer that wants
to terminate employment for
unsatisfactory performance will,
however, have to go to court
to request dissolution of the
contract.
De Brauw launches
smart website
De Brauw has launched a new
website developed and based on
interviews with clients. The result
is a website where the content
via the use of cookies is tuned
to each individual visitor. News,
events, matters and contacts are
visible in one dashboard derived
from how the visitor searches
the website.
DE BRAUW
IN THE MEDIA
FT Innovative lawyers:
De Brauw second most innovative
firm in corporate law
De Brauw has been named
second most innovative law
firm in corporate law by FT
Innovative Lawyers, based on the
ASML customer co-investment
programme with Intel as first
participant customer. According
to the jury, the challenge for the
company and for De Brauw was
to create a structure that would
allow Intel, Samsung and Taiwan
Semiconductor Manufacturing
Company (TSMC) to invest in
ASML and receive a shareholding
to reflect their investment
– without crucially diluting
existing investors or dominating
shareholder voting’. The FT
Innovative Lawyers Award is an
initiative of the Financial Times.
De Brauw to open
an office in Shanghai
De Brauw will open its sixth
office abroad next year, this time
in Shanghai. We have been
handling a growing number of
matters for Dutch companies
in Asia over the past few years.
More and more clients are
looking for legal assistance in the
region, specifically in takeovers,
joint ventures and arbitrations.
Our clients are extending their
business activities to growth
markets in Asia. And we, of
course, want to be there with
5
Media coverage
Cookies. You come across them daily. And then not necessarily in a cookbook
or pastry shop. Cookies are small files that websites place on and subsequently
read from your computer. They allow websites to monitor your use of the website.
Because of this monitoring, (privacy) regulators have set strict rules for the use
of cookies. Most European websites will now first show you a banner, pop up,
splash screen or info bar on their websites mentioning cookies before allowing
you to proceed. But where did this come from?
6
Tech // Alex van der Wolk
How the cookie
crumbles
There are exemptions
There are exemptions to the
cookie rules. Certain types of
cookies are exempt from the
notice and consent requirement.
These are cookies that either are
required to bring a requested
functionality by the user (such
as the shopping basket at web
stores) or without which the webpage
would not be able to load.
The threshold for exemptions is
quite high. Note that “functional”
cookies are not exempt per se.
In 2009, the ePrivacy Directive
was adopted mandating all
website operators to first inform
visitors about – and obtain their
consent for – placing cookies.
Incidentally, the ePrivacy Directive
has been written technology
neutral, and applies to all
technology that places information
on, or reads information from,
a user’s computer (and yes,
a mobile phone, tablet or even
TV fall under the definition of
computer). Many EU countries
have by now implemented the
ePrivacy Directive in their national
legislation. But instead of having
led to harmonised legislation on
this topic throughout the EU,
the ePrivacy Directive has
instead produced heated debate,
concerned website owners and
disgruntled website users. Here
are five things you should know
about the cookie legislation.
Consent needs
to be unambiguous
Valid consent requires an active
indication of the user’s wishes. It
is undisputed that prior consent
is required before cookies may be
placed. Unfortunately (or perhaps
fortunately), the regulators have
not specifically prescribed how
consent should be obtained.
Of course, buttons marked “yes”
or “no” quite clearly facilitate
consent. But the UK regulator
has indicated that consent may
also be ‘deemed implied’ if a user
is made aware of cookies but
consistently continues to visit and
make use of the website. Also in
the Netherlands, the Dutch
Minister of Security and Justice
is currently investigating whether
a system of implied consent
could work. Be warned though,
this is currently not the law yet.
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>>
The ePrivacy
Directive has produced
heated debate,
concerned website
owners and disgruntled
website users
Legislators still seem to take a ‘wait and see’ approach
and very much leave it to the market to come up
with fresh and creative ideas on how the rules can be
practically complied with
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Changes may still be afoot
The cookie rules are still very
much in flux. Legislators and
regulators have started to see
that the cookie rules have been
implemented often to the
detriment of usability and userfriendliness.
Where the cookie
rules can be made more flexible to
cater for a better user experience
is being considered and
discussed. However, legislators
still seem to take a ‘wait and see’
approach and very much leave
it to the market to come up with
fresh and creative ideas on how
the rules can be practically
complied with. Until then, the
rules are still in effect, and still
apply to many of the cookies
that most websites use. And all
discussion and consideration
notwithstanding, it is clear that
having no policy or information
statement about cookies at all
(while using them) will not be
accepted by the regulators.
Cookies may trigger
data protection law
In the Netherlands, the use
of cookies may trigger data
protection laws. The Dutch
implementation of the ePrivacy
Directive has – as only country
in the entire EU – a legal presumption
that cookies that are
able to track your movements over
multiple websites and webpages
process personal information to
which the Dutch privacy rules
apply. This means you not only
need to meet the notice and consent
requirement, but also comply
with other obligations such
as having a legal ground, ensure
the use of the information is
proportional, and agree on
specific obligations with your
website service providers.
There is enforcement already
There has been enforcement
on the use of cookies in the
Netherlands, in particular by the
Dutch data protection authority.
As indicated above, cookies may
also trigger data protection laws.
And it was exactly for that reason
that the Dutch data protection
authority found a manufacturer
of Smart TVs (TVs that can be
connected to the internet for
interactive services) in violation
of the Dutch data protection
act. Users could be served with
personalised ads and
recommendations based on their
viewing behaviour. For that the
manufacturer placed and read
cookies from the TVs. However,
the manufacturer had omitted
to secure a valid legal basis for
processing the cookies and
had furthermore not sufficiently
informed users about what the
cookies were used for. Also,
the manufacturer was unable
to demonstrate adequate
agreements with service providers
such as Google Analytics.
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Profile // Alex van der Wolk,
Senior Associate at De Brauw Blackstone Westbroek
T +31 20 577 17 45
E [email protected]
Click here to view Alex’s profile
Tech
<<
Client Interview 8
>>
GLOBAL
PURCHASING AT
HEINEKEN
When Heineken decided to centralise its global
purchasing and sourcing, obviously all the legal
matters in relation to the project played a significant
role. However, the responsible legal leader
Obbe Siderius was convinced from the start that
what would make or break the project from a legal
perspective was how effectively he could ensure that
the agenda was driven by business priorities.
The driver of the
project to centralise
global purchasing
has never been law.
It was always the
business
9
In the end, it’s
not about which force
majeure clause you use.
The contract must work
for the business, and
involvement of business
people is 70-80% of
a project like this
Client Interview
>>
together with senior associate
René van Tricht – formed the
firm’s core team on the legal and
contractual side of the Heineken
legal team. “When Obbe made a
presentation to our client working
group on sale and purchase it
generated a lot of interest. This
is a hot topic right now.”
Business driver
“A project like this is also
about issues such as security of
supply and standardisation of
specifications,” says Obbe,
“and these governance and
supply chain aspects of course
have significant legal and
contractual implications.
Nevertheless, the driver of the
Heineken has moved to global
purchasing and sourcing to get
an even tighter grip on volume,
prices and total procurement
spend. “We already had a centreled
purchasing organisation,”
explains Obbe, Senior Legal
Counsel at Heineken, “but since
2003 we’d been growing
tremendously through a number
of major acquisitions. Following
the purchase of the beer
business of FEMSA in Mexico,
Heineken decided it was time
to accelerate the project.”
Heineken was one of the first of
De Brauw’s clients to centralise
their global purchasing, says
partner Daan Beenders, who –
project has never been law. It
was always the business.”
So how as legal counsel do
you ensure that the legal team
focuses on the right business
priorities? Obbe comments:
“First, get involved at the
inception, or at least as early as
possible. I was in discussions
back in 2008 with the senior
procurement director, who now
leads the project from the business
side. Long before design, or even
the formal decision in 2011 to
launch the global procurement
company. This meant that I was
familiar beforehand with the
business needs that were driving
the project.”
10
Then in the project’s initial phase,
Obbe set up a working group
made up of senior buyers from
the business, two of his legal
colleagues and a small team from
De Brauw to design a new
standard agreement for goods
in one category (cans). This
framework agreement, based on
business input, was used as a
template for the agreements in
the other 15-20 categories that
followed (bottles, hops, barley,
etc.) “This was the purpose of
the initial phase,” explains Obbe,
“and we have already seen
that it has really worked as an
approach.”
Working contract
Daan and Obbe feel this
approach not only meant that
the legal team was aligned with
the business from the outset;
it also facilitated good
communication between the legal
team and commercial colleagues.
“This was important” explains
Obbe. “We needed to
communicate to business
colleagues our internal and
external legal agenda so they
would understand the project’s
legal constraints.”
“The contract has become a
sort of roadmap for the business
people working with it,” says
Daan. “And if you don’t
communicate with and involve
commercial people, you don’t get
documentation that aligns with
the business.”
“The contract also needed to be
fit for our systems,” argues Obbe,
“because a global procurement
company is more than just a
unified way of working. It also
touches on a lot of other areas,
such as IT systems; and the
design of your contract can help
here as well. So we also described,
for instance, purchase order
forms, invoicing instructions and
similar documents.”
Building blocks
In fact the legal team’s scope
went far beyond new agreements.
“Actually the entire set of
documentation including was
revamped, for example, a
complete modification of
the general purchasing terms &
conditions, and a sanity check on
our standards and specifications.
The contracts are all framework
agreements and cover the entire
system. But in the end, it’s not
about which force majeure clause
you have or other technical legal
aspects. The contract must work
for the business, and involvement
of business people is 70-80% of
a project like this. Get that right
and things will flow smoothly.
Basically, you’re developing
building blocks that the business
can use as a tool.”
“Fortunately,” says Daan
“Heineken really stands out
when it comes to including their
commercial colleagues.”
Clarify, not simplify
So what does make a contract
an effective business tool? “What
the procurement community
wants is a clear contract that both
reflects the business deal and
is as short as possible” argues
Obbe. “It must also be resilient,
of course; but essentially we
share procurement’s view of the
ideal contract and have applied
that principle during design. So
During his first
presentation, Obbe
didn’t discuss the
legal process at all
Client Interview
>>
11
Profile // Daan Beenders,
Partner at De Brauw Blackstone Westbroek
T +31 20 577 1656
E [email protected]
Click here to view Daan’s profile
Client Interview
<<
Big picture
Daan feels that Obbe’s broader
perspective on things has also
helped enormously. “These
are commercial documents, so
Obbe’s being knowledgeable of
the background and context is
highly relevant when it comes to
ensuring you capture the standpoint
and wishes of the company
in documents. It’s also important
to think more strategically than
just the legal aspects. It’s no
coincidence that during his first
presentation to the De Brauw
and Heineken legal teams, Obbe
didn’t discuss the legal process
at all. He focused purely on the
business objectives.”
Getting the right result
with the right team
“Legal counsel needs to think
carefully about the law firm it
chooses,” says Obbe. “Preferably
you want a firm that has gone
through this process before.
But more importantly, one that’s
open to a business approach and
advice from the business itself.
In the beginning, for my team
and for De Brauw, this project
was a listening exercise. We were
sponges, asking the business
‘What do you want?’, ‘What are
your objectives?’ As a result we
knew the priorities: what was
important and what less so; what
was urgent and what less so.”
Obbe is largely satisfied with the
outcomes to date. “We’re on the
way. It’s still work in progress, but
the benefits are already there to
see. Negotiations with suppliers
show that the new contracts are
reasonably balanced and deliver
a relatively quick deal without
endless negotiations about the
wording, which is of course what
you want.”
Asked what his final piece of
advice would be to readers
embarking on this process,
Obbe laughs. “I always say
procurement is a service
organisation and legal is a service
organisation to a service
organisation. Maybe that’s
overstating it, but it’s not a bad
starting point for a project like
this one.”
for example, what’s covered by
general law needn’t be explicitly
mentioned in the contract.”
“Another of our intentions was
to incorporate practice into the
contracts,” says Daan. “This
requires drafting the contract
not from a legal but a business
perspective. Trying to
incorporate commercial issues,
rather than pushing legal issues
simply because that gives you
a sense of security as a lawyer.”
Those Who Dare, Win
“Has the legal team met
resistance from the business?”
ponders Obbe, repeating the
question. “No, not at all, in fact
colleagues seem to value our
involvement and continue to
assist us by providing their
viewpoint.”
“Perhaps this is partly due to
the culture at Heineken,”
Daan thinks. “Obbe has always
worked regularly with commercial
colleagues.”
Obbe feels that style and attitude
are also critical here. “Legal
counsel must not be perceived as
the department that says no,
that is always destructive or that
generally makes life difficult for
the business. If you are, this
process will not work. Instead you
must dare to facilitate and act as
a catalyst.”
Partner Interview 12
>>
Last year, Dennis Horeman became the youngest
partner at De Brauw Blackstone Westbroek. Here
he introduces himself and discusses his specialisms
within the firm and how he sees the changing
relationship between law firms and their clients.
MODERN CLIENT
FOCUS MEETS
OLD SCHOOL
LEGAL ANALYSIS
Dennis Horeman //
Partner: since 2012
Specialism: insurance law, liability
of financial institutions
Lives: Sassenheim, the Netherlands
Married to Jacomijne,
high school Economics teacher
Children: Carlijn (4) and David (2)
13
Can you give a quick
recap of your career to date?
I graduated from Leiden
University in 2003 and, after
studying at Columbia University
in New York for a year, began
practising law at De Brauw in
2004. I started in the litigation
practice, which was then located
in The Hague. My mentor at
the time practised insurance law
and asked me on my first day
what I knew about insurance
law. “Nothing” I said honestly.
To which she replied, “Well as of
today, you’re going to learn a lot”.
She was right.
After a period at AKD practising
shipping law and insurance, I
returned to De Brauw in 2008 to
specialise once again in litigation
and insurance, and in 2012 was
elected partner.
My other specialism as partner
is liability of financial institutions,
representing both investors and
banks. I also like picking up those
cases that don’t fall in any other
box, of which there are more
than you might think.
And how would you
describe who you are apart
from the work at the firm?
Family life is very important to
me. I have two small children,
Carlijn and David. They and my
wife Jacomijne, who is a high
school teacher, remind me that
there is more to life than the firm
and the law. One of the greatest
joys, to me, is helping my kids
to discover the world, and
nature in particular. I come from
a small family which is quite
close, and for example, the men
in my family visit the 24-hour race
in Le Mans every year. If there is
time left between my work at
the firm and family life, I enjoy
reading theology.
Tell us a little bit about
the insurance practice at
De Brauw
Another partner, Eelco Meerdink,
and I lead a team that mainly acts
in corporate insurance cases for
multinationals who have taken
out insurance, mostly litigating
coverage disputes.
The main three case streams are,
first, acting for companies in D&O
(Director & Officers) disputes,
where it’s increasingly common
for a company and its directors to
be sued, for example for misleading
investors. Secondly, general
liability policies. For example, we
might represent a manufacturer
that’s being sued over a product,
against which action they’re
insured. And thirdly, crime or
fraud policies where money or
property has been stolen from a
company that is insured against
this. In addition to the practice for
corporate insureds, I also work for
insurers but mainly on issues
other than policy disputes,
e.g., advising on retail insurance
products and projects in
collaboration with the M&A and
Regulatory practices of our firm.
How else do you support clients,
outside litigation?
We advise companies on the
policy programmes they have in
place before they sign or renew
their policies. Apart from our
specialist technical expertise in
this area, we also see a lot of
companies’ policies across many
sectors, and have therefore
developed considerable
knowledge and awareness of
best practice that we can then
implement in the policies of our
clients.
We also know what’s happening
in the market. For example,
policies are often based on Anglo-
US law nowadays, which doesn’t
always fit very well with the Dutch
legal system. And because we
deal with coverage disputes on
behalf of corporate clients, we
get to see the ‘law in action’, as
it were, which I think is another
important aspect of how we add
value for our clients.
Basically, it always
comes back to putting
yourself in the client’s
shoes and trying to
see things from their
perspective
Partner Interview
>>
14
Another thing that perhaps
makes us interesting to clients is
that in coverage disputes we tend
to represent the insured, whereas
many other large firms in the
Netherlands tend to act for the
insurers.
How do you see
the lawyer-client relationship?
To sketch a caricature a little,
typically in the past a lawyer
waited at his desk until a case
arrived, then analysed it, gave
his advice and... that was it.
Nowadays we work hard to know
the client. So our colleagues, for
example from M&A, can give us
greater insight into the client as
a whole. The focus is now on the
clients themselves, not just the
cases they bring in.
Another trend is that clients are
said to be looking increasingly
for short, practical advice. But in
this respect, I’m afraid I’m more
‘old school’. I think if you go too
far down that path you lose the
nuance, and that’s the very thing
we’re good at: sharp, precise
analysis. On the basis of which
you can help clients establish
what course they’re going to
follow. And there’s no modern
way round that. Of course, you
should write the analysis in an
accessible way, but you still
have to do the analysis.
On a personal level, I try to
develop a very informal
relationship with clients. It’s
very important that we both
feel comfortable when openly
discussing our concerns.
And finally, clients are
understandably often impatient
for action now rather than
thinking longer term. It’s part of
our job to step back occasionally
and see how this proposed shortterm
solution fits with the client’s
wider strategy. Basically, it always
comes back to putting yourself
in the client’s shoes and trying to
see things from their perspective.
One of the greatest
joys, to me, is helping
my kids to discover
the world, and nature
in particular
Profile // Dennis Horeman,
Partner at De Brauw Blackstone Westbroek
T +31 20 577 19 47
E [email protected]
Click here to view Dennis’ profile
<<
Partner Interview
15
may bring parties closer. A good
mediator may get the right focus
on interest-based discussions,
where previous negotiations were
more strongly focused on
positions. Various mediation
techniques can prove useful,
of which caucusing (i.e., the
mediator having separate sessions
with each party) is probably the
most well known. Mediation may
also prove useful to overcome
incompatibilité d’humeur between
persons involved in the
negotiations. But also where no
such conflicts exist, getting the
individuals together that ‘own’
the dispute within the respective
companies often creates much
needed understanding for the
other parties’ interests and
motives, and creates trust.
Why should mediation
always be considered?
Quite simply: because it often
resolves disputes that would
otherwise end up in court or
before arbitrators. If mediation
is successful, considerable time
and costs involved with litigation
and arbitration are avoided.
And there are other benefits
to mediation. Relations are
preserved and sometimes even
strengthened. Also, even though
the parties are assisted by a
mediator, they keep control over
the process and outcome.
Mediation tends to create a
buy-in to faithfully execute a
settlement agreement reached
during the mediation.
There may be different reasons
why mediation regularly proves
successful, where parties
previously could not settle.
The structure and dynamics of
mediation are different from
negotiations and that in itself
Mediation – the structured process in which a third party is
asked to help parties reach agreement – is well established as one
of the standard forms of alternative dispute resolution. Although
mediation as a means to resolve disputes is known to most lawyers
- both to in-house and external counsel - it is very often not
considered. Negotiations are habitually conducted with
one of the parties having already threatened to litigate or start
arbitration should negotiations fail. And when negotiations indeed
turn sour, it is only logical to file the writ of summons or request
arbitration. However, when devising a dispute resolution strategy,
it is best practice to always consider mediation, especially if
the parties have on-going relations.
TO
MEDIATE
OR NOT
TO
MEDIATE?
Opinion // Eelco Meerdink
Proposing
mediation is not a sign
of weakness. It often
resolves disputes
that otherwise end up
in court or before
arbitrators. If mediation
is successful,
considerable time and
costs are avoided.
>>
It goes beyond the scope of
this short opinion to discuss
how to choose a mediator, how
to prepare for mediation and
how to conduct the mediation
process. The point being made
here is that any legal counsel,
at any early stage of a dispute,
should consider whether
mediation should be tried.
16
Should mediation always be
an intermediate step in the dispute
resolution process?
No. The positions may just be
too far apart, or for one of the
parties litigation in itself may serve
a purpose. Also, in some cases,
a principled court decision is
needed. Trying mediation in those
instances may only lead to extra
time and money being spent.
And if immediate relief is
required, there may not be time
to try mediation first. However:
one should be wary not to
dismiss the possibility of resolving
a dispute through mediation too
quickly.
When and how
should mediation be proposed?
Proposing mediation is not a
sign of weakness. Yet it may
sometimes seem odd to suggest
mediation after long and
unfruitful negotiations. If
mediation is generally supported
as one of the means to resolve
business disputes, it is important
to integrate it into the company’s
dispute resolution policy.
Mentioning that policy at a very
early stage to the opposing side
avoids the difficulty often felt
when later on raising the option
to mediate the dispute. A simple
statement at the early stages of
negotiations may be sufficient,
for instance: “our policy is to
negotiate first, and if our
negotiations get stuck, our
company has a policy that
encourages mediation.” In fact
many large corporations already
have signed on to this policy.
The most successful global
initiative to encourage
alternative dispute resolution,
including mediation, has been
promulgated by the International
Institute for Conflict Prevention
and Resolution (CPR). More
than 4,000 of the world’s largest
corporations have subscribed
to the CPR Pledge, which reads:
“Our company pledges to
commit its resources to manage
and resolve disputes through
negotiation, mediation and other
ADR processes when appropriate,
with a view to establishing and
practicing global, sustainable
dispute management and
resolution processes.” By
conveying a message that a
company – including its global
subsidiaries – will routinely
consider mediation where
appropriate, the Pledge makes
it clear that choosing mediation
reflects company policy and
not a lack of confidence in the
company’s bargaining position.
Should mediation
rules be chosen?
If parties opt for mediation, they
have a wide range of options.
The most important observation
here is that opting for a set of
predetermined rules is preferable
to having to negotiate mediation
terms on an ad hoc basis.
Besides, tailor-made additions
invariably can be made to the
standard forms. Which particular
set of rules is chosen is in our
experience not directly relevant to
the success of the mediation. Far
more important for the success
of mediation is the quality of the
mediator.
Opinion
Profile // Eelco Meerdink,
Partner at De Brauw Blackstone Westbroek
T +31 20 577 17 79
E [email protected]
Click here to view Eelco’s profile
Mediation may also
prove useful to overcome
incompatibilité d’humeur
between persons involved
in the negotiations
<<
Global view 17
>>
Jolbert Smilde, senior associate in De Brauw’s
litigation practice, returned in June of this year from
a five-month secondment to Allen & Gledhill, one of
Singapore’s most eminent law firms. Here he looks
back on his time there, and discusses the benefits
of this secondment for his professional development
and, more importantly, his clients.
WORKING IN ONE
OF ASIA’S
KEY LEGAL MARKETS Singapore is
increasingly becoming
the legal hub in
the region
18
Pivotal role
Jolbert sees several reasons why
his time in Singapore is beneficial
to De Brauw’s clients, and himself.
Firstly, Jolbert points to the
continuing shift in global business
towards Asia, including for many
of De Brauw’s clients. “Singapore’s
role here is pivotal: it acts as a
business hub in South East Asia;
but with its highly developed
economy, infrastructure and legal
system, it’s increasingly becoming
the legal hub in the region, too.”
Many companies now include a
clause in contracts saying that,
if there is a dispute in the region,
it will be resolved in Singapore.
“This is, of course, one of the
reasons why De Brauw now
has an office in Singapore: we
can better serve our clients in
South East Asia and the Pacific
if we have regional presence
and experience.”
Experience with how the local
system works is important,
because it allows De Brauw to
provide strategic advice to
clients on what choices to
make. Singapore, for instance,
operates under a common law
system, which is different from
the civil law system used in the
Netherlands. “It’s good to have
lawyers here in Amsterdam with
a certain level of experience and
knowledge of how a common law
system, and particularly the
Singapore system, works. After
all, it impacts on so many aspects
of a case. From retention of
documents, which is generally
more important in common law
with full pre-trial discovery of
documents, to taking into
account the costs of a case. For
instance, trials before the courts
in Singapore can be very lengthy,
compared to the Netherlands.
Trials that last several weeks are
no exception. This, combined
with the pre-trial discovery of
documents and other pre-trial
applications, has a big impact
on costs.”
Jolbert spent his time working in
the litigation department, acting
as counsel mainly in arbitration
matters, as arbitration tends to
be more international in nature
and being a Dutch lawyer
Jolbert is not qualified to practise
Singapore law. When asked about
any culture shock, he says he
actually saw more similarities
than differences in the two legal
cultures. “Both at De Brauw and
Allen & Gledhill we’re trying to
build partnerships with our
clients, and of course in Asia
personal relationships are even
more important than in the
Netherlands.” But there are
differences too. “On a personal
level, I also noticed how, even
when trying to be circumspect,
people still found me rather frank.
Though I suspect that the
exception here is not so much
the Singaporeans as the Dutch,
with our infamous bluntness.”
Singapore has
a pivotal role in
the global shift
towards Asia
Global view
>>
19
“As a law firm, this is just the
sort of thing we need to be
contemplating with clients who
are considering what their most
appropriate dispute resolution
mechanism should look like. For
some companies, adopting SIAC
for South East Asian regional
disputes is a viable alternative to
ICC arbitration, which is still the
generally preferred institute when
it comes to international disputes.
But it is also worth considering at
an early stage, preferably when
entering into contracts, some of
the particulars of any prospective
litigation or arbitration. This could
save clients considerably on costs
and resources when a dispute
does arise, which might be a
pretty astute business decision.
I think that this is one of the areas
where we can add value for our
clients.”
To learn more about SIAC,
including its potential for your
business as a dispute
resolution mechanism, please
contact Bommel van der Bend,
partner at De Brauw Blackstone
Westbroek and member of
SIAC’s panel of arbitrators.
Spending time in a Singapore
law firm was of course also a
great opportunity for Jolbert
personally: “With more and more
legal cases taking place over
several jurisdictions nowadays,
it is hugely beneficial for young
lawyers to get international
experience, broaden their
horizons and see how things are
done in other countries.”
Strategic move
Jolbert feels that as part of
De Brauw’s responsibility to think
strategically with its clients, it
should be making them aware
of Singapore’s growing role in
international law.
“Compared with neighbouring
countries, Singapore has an
excellent and relatively easy legal
system. But it’s not a regional
legal hub simply because the
courts are effective. The country
is also actively promoting itself
as a hub for litigation and
especially arbitration.” Jolbert
points to the Singapore International
Arbitration Centre (SIAC),
with a case load that is not only
growing rapidly but also gradually
moving from being a more
common law based institute to
one that is truly international, with
a genuine blend of common and
civil law experts on its panel of
arbitrators. The Singapore courts
are also very arbitration friendly.
Profile // Jolbert Smilde,
Senior Associate at
De Brauw Blackstone Westbroek
T +31 20 577 10 88
E [email protected]
Click here to view Jolbert’s profile
Profile // Bommel van der Bend,
Partner at
De Brauw Blackstone Westbroek
T +31 20 577 16 58
E [email protected]
Click here to view Bommel’s profile
Compared with
neighbouring countries,
Singapore has an
excellent and relatively
easy legal system
Global view
<<
Partner interview 20
>>
De Brauw has recently upgraded its Project
Management & Budget Control tool. Since its
introduction, the tool has proved an indispensable
weapon in the modern law firm’s administrative
armoury, providing useful insights for clients and
lawyers alike.
By dividing
a project into
workstreams, the tool
forces you to plan
as efficiently as
possible every single
aspect of the project
21
The Project Management &
Budget Control tool which is now
used for every substantial new
project which De Brauw embarks
on is designed to allow you to
anticipate work overloads, delays
and other pressure points, and
to spot where the project is in
danger of going over budget. The
tool is part of our new approach
to legal project management.
It aids progressing substantial
projects, where various workstreams
are involved, the number
of lawyers working on the project
is substantial and the expected
duration is > 2 months.
The process starts even before
the launch of the project, when
the responsible partner, the
relevant fee earners and the
client meet to divide the project
into logical workstreams. Each
workstream is then monitored
on a weekly or two-weekly basis
to see how it is developing in
terms of scope, workload, pricing
and hours. The client receives
an update report showing these
developments at regular intervals,
normally every two to four weeks,
depending on the complexity of
the project and the client’s own
preferences.
“Basically, it means we can
steer the project better,” explains
Esther Albers, Head of Legal
Support Services at De Brauw,
who oversees the tool’s
management and development.
“Because the tool not only lets
us and the client monitor costs
and progress more effectively but
also, importantly, allows the client
to take timely action and steer
within the project when needed.”
For example, the tool will show
any discrepancy within a workstream
between the percentages
of allocated budget spent and
work completed. The fee earner
will then explain the scale of and
reasons for any potential overspend
so that the project leader
and client can then discuss the
client’s options, such as limiting
the scope of that aspect of the
project, doing some of the legal
work in-house or increasing that
budget head.
Forcing efficiency
Partner Ruud Hermans, who
recently led a high level, high
impact investigation, sees the tool
as the ideal basis for project
discussions with the client.
“Actually the benefits begin even
earlier. By dividing the project into
workstreams, the tool forces you
to plan every single aspect of the
project as efficiently as possible.
For example, how you allocate
different elements of the project
or how you source work. In short,
it forces us to project manage.”
“Transparency, control, efficiency
and predictability” is how Esther
would summarise the tool’s
benefits. Using input from fee
earners, the project staff develops
reports that give at-a-glance
overviews of cashflow projections
and risk indications, have tables
showing completion and forecast
percentages, provide Gantt charts
of project timelines, and much
more. As required, you can zoom
in to see certain aspects of the
project in greater granularity, such
as detailed overviews of each
sub-contractor’s work: pie charts
breaking down variations per fee
range or function, and so on.
As the tool is partly there to
increase efficiency, it is important
that it doesn’t itself become a
bureaucratic burden. “As project
leader, it takes me just 30
minutes a week to update,” says
Ruud. He smiles, “One of my
clients recently said of the reports
they receive that they’d never
seen anything like it from any
law firm.”
Partner interview
>>
22
To avoid reinventing the wheel
every time, Esther’s team have
also developed templates for
types of projects, such as M&A,
arbitration and litigation, which
project leaders can then quickly
tailor to their specific case.
Client benefits
Ruud stresses how the tool is
primarily there to benefit the client.
“Apart from giving them greater
project control and insight, in my
experience the reports also help
general counsel explain their
project internally. So rather than
unpleasant surprises in the form
of unexpectedly large invoices,
they can now predict costs.
Moreover, when legal departments
face tighter budgets the tool
enables general counsel to discuss
costs with procurement and
finance colleagues on an on-going
and informed basis. And to show
their CEO why the budget is
necessary and exactly what the
company is getting for its money.
This alone makes this
tool critically important.”
Coping with complexity
The investigation Ruud worked
on is a good example of how even
the most efficient project leader
can benefit from a tool that
allows him or her to stay abreast
of developments, as the project’s
scope could not be definitively laid
out at the outset, but continued
to widen as external auditors
uncovered more problems.
The tool helped Ruud and
colleagues create order. “For
example, we had some 20 subcontractors
in different countries.
We asked them all to provide
budgets in the same format for
the coming weeks, which we
could then enter in the tool
and present in one integrated
overview. It did take a while for all
the sub-contractors to become
aligned, but it has more than paid
off for the client in the long-run.”
Competitive edge
And now? “Now”, says Esther,
“there is a broad awareness
amongst our partners and feeearners
that a firm like De Brauw
needs a tool like this.”
Ruud nods in agreement. “We live
in an environment where clients
are under increasing cost
pressures. To get new assignments
we must convince people not
only that we’re the best lawyers
for the job, but that we’re also
efficient. I’m sure that being
one of the first firms in the
Netherlands to introduce this tool
gives us a competitive advantage.”
Esther sums it up like this.
“We want to be a business
partner to clients. To convince
them that we understand their
situation and can develop
solutions that meet their internal
standards and expectations. A
tool like this shows that we aren’t
just saying this. It’s evidence
of our commitment.”
Profile // Esther Albers,
Head of Legal Support Services at
De Brauw Blackstone Westbroek
T +31 20 577 18 81
E [email protected]
Click here to view Esther’s profile
Profile // Ruud Hermans,
Partner at
De Brauw Blackstone Westbroek
T +31 20 577 19 47
E [email protected]
Click here to view Ruud’s profile
Apart from giving greater
project insight and cost control,
in my experience the reports also
help General Counsel explain their
project internally
Partner interview
<<
in the 40 countries party to the
OECD Anti-Bribery Convention.
It contains many concrete
investigations and court cases.
New ICC guide to drafting
and negotiating international
commercial contracts - LINK
The ICC has published a new ICC
guide to drafting and negotiating
international commercial contracts.
Aim is to help lawyers and
business people worldwide to
avoid the most common pitfalls
of cross-border deals.
European report on intellectual
property intensive industries - LINK
The Office for Harmonisation
in the Internal Market and the
European Patent Office have
carried out the first EU-wide study
on the overall contribution made
by intellectual property intensive
industries to the EU economy.
The report reveals that these
industries generate almost 40% of
total economic activity (GDP) and
create 26% of all jobs in the EU.
Establishment of
Unified Patent Court - LINK
25 member states signed an
agreement on a Unified Patent
Court, which court will have
exclusive jurisdiction for litigation
relating to European patents and
unitary patents. The agreement
will enter into force upon
ratification by (at least) 13 member
states, including France, Germany
and the UK.
THE 10
This is a selection of ten interesting
recent developments or news items
in international and national law
randomly chosen by the editorial
board.
Recast of the Community
Trademark Regulation and
the Trademark Directive - LINK
The package of initiatives aims
at upgrading, streamlining and
modernising current legislation
in order to make the trade mark
registration systems all over
the Union more accessible and
efficient for businesses in terms
of lower costs and complexity,
increased speed, greater
predictability and legal security.
ICC International
Court of Arbitration establishes
presence in NYC - LINK
From November 2013 onwards,
the new ICC office in New York
will administer existing North
American cases and register
new requests for arbitration.
Richard Susskind:
Tomorrow’s Lawyers - LINK
In his latest book, Richard
Susskind claims that lawyers are
poised to change more radically
over the next two decades than
they have over the last two
centuries. According to Susskind,
the future of legal service will
be a world of virtual courts,
internet-based global legal
businesses, online document
production, legal process outsourcing
and web-based
simulated practice. Tomorrow’s
Lawyers aims to offer lawyers
a practical guide to this future
and new legal terrain.
ICC to unveil
new Rules of Mediation - LINK
The ICC has adapted new
Mediation Rules to keep pace
with today’s business needs.
The Rules are set to come into
effect on 1 January 2014.
Tougher rules and stricter
penalties for market abuse - LINK
The European Parliament recently
voted in favour of tougher rules
to prevent, detect and punish
market abuse (the new Market
Abuse Regulation). Supervisors
are granted more investigative
and sanctioning powers and
stricter penalties are introduced
up to 15% of their annual
turnover or EUR 15 million.
International Arbitration
Survey: corporate choice – trend
towards arbitration - LINK
In a survey conducted by PwC,
focusing exclusively on the views
of in-house counsel, it was found
that major corporations across
different industry sectors continue
to show a preference for using
arbitration over litigation for transnational
disputes.
Exporting corruption –
progress report on foreign
bribery enforcement - LINK
Transparency International has
just released its 2013 Exporting
Corruption Report. The report
gives an overview of the status
of foreign bribery enforcement
23
Developments
1
4
3
5
6
7
8
9
10
2
DE
BRAUW
CALENDAR
28 & 29 November 2013
Revisited: records management
& Bring Your Own Device (BYOD)
Lokke Moerel and
Wanne Pemmelaar
5 & 6 December 2013
Contracting with suppliers
and competition law
Jolling de Pree and Bart de Rijke
12 & 13 December 2013
Protecting technical innovations
Gertjan Kuipers and
Tjibbe Douma
19 & 20 December 2013
The enforcement of IP rights
Thomas Conijn
and Oscar Lamme
13 February 2014
E-commerce
Lokke Moerel
6 February 2014
Direct Dutch taxes and
the effect of European law
Frank Pötgens
Editors // Tobias Cohen Jehoram,
Edward van Geuns, Amanda Kemshaw,
Diane Živkovic and Paul Tjiam
Concept and graphic design // CSblue
Photography // Heijdendael & Annegarn,
Arjan Doevendans
www.debrauw.com
Amsterdam
Beijing
Brussels
London
New York
Singapore
Please contact Stephanie
Versteeg for more information
about these events.
E [email protected]
These events will be in Dutch
Calendar Contributors
<<
24