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Guest post: Coronavirus tears up competition regimes for foreign investments as Europe struggles to shield reeling economies

COVID-19 continues to wreak havoc with the global economy, disrupting all manner of business throughout the world. Stock markets have plummeted and many companies are having to grapple with economic damage that seemed unimaginable at the start of the year.

This unprecedented environment could afford opportunistic buyers the chance to acquire or invest in companies that have been weakened by the crisis. In addition, creditors may unintentionally find themselves in a position where they acquire control over a business.

Before the crisis, the world was already de-globalising with rising national protectionism driving calls for stronger screening of foreign investment across the globe. Now, COVID-19 has prompted some countries to take an even more drastic approach. Some national governments, notably in Europe, are now taking steps to protect companies that have become vulnerable as their economies are struggling from being taken over by foreign investors.

The Spanish government has just introduced a new temporary requirement that ex-ante approval will be required for foreign (non-EU) direct investments in strategic sectors in Spain.

This affects investments in Spanish companies by non-EU/EFTA entities where the foreign investor would (i) hold a stake of 10% or more in the share capital of (ii) acquire the right to participate in the management of or (iii) acquire control of a Spanish company, and applies to a broad range of sectors, namely:

• energy, transport, water, health, communications, media, data processing or storage, aerospace, defence, electoral or financial infrastructure and sensitive facilities;

• critical technologies and dual-use items, including artificial intelligence, robotics, semiconductors, cyber-security, aerospace, defence, energy storage, quantum and nuclear technologies, as well as nanotechnologies and biotechnologies;

• supply of key inputs, in particular energy, raw materials and food security; and,

• sectors with access to sensitive information, in particular personal data, or with the ability to control such information.

The French Minister of Economy has stated that the government is ready to protect important French companies by recapitalising them, buying shares or even taking them over. The government has also stated that nationalisation of strategic companies will not be ruled out.

The Italian government, meanwhile, is considering qualifying all Italian companies listed on the Milan Stock Exchange as ‘strategic’ for the purposes of applying the existing Special Powers rules under the foreign investment review regime. This would mean that the Special Powers, which allow the Prime Minister to veto or impose conditions on certain transactions in the defence/homeland security, telecoms, energy, and transportation sectors, could be extended to foreign investment in all Italian-listed entities.

The Hungarian government is able to prevent acquisitions by non-EEA entities in certain strategic industries (eg, finance, telecommunications, energy, defence) for public reasons, including national safety, energy supply, and financial stability. COVID-19 has prompted the government to take control of 140 strategically-important companies in various sectors.

In summary, some countries are using foreign investment screening to protect wider economic and social concerns triggered by COVID-19. At present, this approach seems to be limited to Europe, which makes sense as this region has been declared, for now, as the ‘epicentre’ of the global pandemic. However, as the virus continues to spread, it is possible other countries could take a similar stance to protect their national interests and economies.

These developments highlight the need for investors to carefully consider foreign investment review risks at this highly-sensitive and volatile time both for deals currently underway and transactions being contemplated. Cross-border transactions in strategic sectors will likely encounter tougher scrutiny and face a prolonged approval process. Taking time to understand the rules and identify a regulatory strategy – including calibrated communication with the relevant governmental authorities and thinking about the impact on deal documentation – early in the bid process will minimize the risk of delays, last-minute changes to the deal structure, or failed transactions.

For potential bidders the basic message is that the environment for corporate transactions has already been transformed in Europe by this crisis, and perhaps soon the world. Never has it been more relevant for companies to keep in mind the age-old advice for acquirers: buyer beware.

Samantha Mobley is a partner in Baker McKenzie’s competition and trade practice in London.

This article first appeared on Legal Business.

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Coronavirus latest: Supreme Court goes virtual as junior lawyers plea against postponing exams

For the first time in its history, the Supreme Court conducted a case entirely through video conferencing this morning (24 March), after taking the decision to close its building to the public due to the spread of Covid-19.

The move saw the matter of Fowler (Respondent) v Commissioners for Her Majesty’s Revenue and Customs (Appellant) conducted virtually, with all cases and judgment hand-downs set to continue via video conferencing until further notice. The measures will see legal teams and counsel, as well as each of the justices, located separately.

The first judgment handed down under the new arrangements will be Elgizouli (Appellant) v Secretary of State for the Home Department (Respondent)  tomorrow morning, with the hand-down set to be streamed by the Supreme Court before becoming available through an on-demand service.

Though the new measures will remain for the foreseeable future, the Supreme Court has stated it will be keeping them under ongoing review. The move towards video conferencing comes after the Lord Chief Justice, Lord Burnett, was among those to intervene last week calling for courts to adapt amid the worsening crisis. On Monday, Lord Burnett also revealed that no new trials will start, and ongoing trials will be paused as arrangements are put in place to ensure they can continue safely.

Elsewhere, the Junior Lawyers Division (JLD) has written to the Solicitors Regulation Authority (SRA) raising concerns about the regulator’s response to the Covid-19 outbreak, in particular the decision to defer Legal Practice Course (LPC) exams until the autumn.

The letter read: ‘We understand the SRA’s need to maintain the integrity of exams. However, we are concerned about the implications of delaying LPC exams until autumn 2020, as was the SRA’s initial response. Importantly, there is no known timescale for this virus and its implications on society. It therefore seems unworkable to suggest a later timeframe to simply postpone exams until. An alternative solution needs to be found now.’

The JLD also raised concerns that further clarification was required for trainee solicitors on issues such as working from home, sick leave, access to supervision and the availability of newly qualified positions.

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Revolving doors: Orrick adds four-partner WFW projects team as Taylor Wessing invests in employment bench

After an eventful week and with many lawyers  working from home until further notice, City firms and US rivals continue to ramp up hires as Orrick, Herrington & Sutcliffe, Taylor Wessing and Pinsent Masons all made hires in London.  

Orrick appointed a four-partner team to its energy and infrastructure practice in London from Watson Farley & Williams. The team includes energy and infrastructure partners Evan Stergoulis, Simon Alsey and Ravinder Sandhu, as well as real estate partner Simon Folley. Stergoulis will co-head the firm’s global renewables practice. 

The team advises investors on mergers and acquisitions, project development and financings involving offshore wind, onshore renewable energy and gas and power projects in the UK, Europe and Asia.  

Orrick’s energy and infrastructure sector lead Blake Winburne told Legal Business: ‘London is an incredibly important market for our energy & infrastructure practice. Our strategy in London is to field a team of highly-collaborative, market-recognised practitioners that connect with our global platform. We have certainly achieved that objective with the team led by Evan Stergoulis and we will continue to invest in our global practice with that same strategic objective.’ 

Meanwhile, Taylor Wessing recruited employment partner Helen Farr to its London office. Farr joined from Fox Williams and advises on financial and professional services, private equity and FinTech with a focus on workplace discrimination, equal pay, team moves and boardroom disputes. 

Executive board member and partner James Goold told Legal Business: ‘Helen’s appointment enhances our employment offering by bringing together experience in the financial and professional services sectors. She is known for her advice on strategic matters, TUPE and boardroom disputes, and her expertise in FinTech also complements our sector focus on technology. The continued growth of our international employment capability is essential and Helen is an important part of our offering.’ 

Elsewhere, Pinsents added Totis Kotsonis from Eversheds Sutherland to lead the firm’s state aid and public procurement team within its competition, EU and trade group in London. Kotsonis acts on compliance and contentious matters, including litigation, in national courts and the Court of Justice of the EU. 

Head of competition, EU & trade Alan Davis told Legal Business: ‘Totis’ experience across the energy, TMT, infrastructure and transport markets aligns well with the firm’s sector expertise. His experience working across public procurement and state aid matters, both contentious and non-contentious, strengthens our capabilities and offering to clients.  

‘The demand for procurement and state aid advice in the UK will increase. Totis’ expertise will enable us to respond to the rapidly changing requirements of the government as it manages the existing procurement and state aid regimes and develops new policy and legislation in a post-Brexit era,’ Davis added. 

Pinsents also hired in Paris, appointing project finance partner Eran Chvika from Norton Rose Fulbright. Chvika advises banks, international financial institutions, sponsors, investment funds and developers on domestic and cross-border complex financing and acquisition transactions in France and Francophone Africa. 

Elsewhere, McDermott Will & Emery hired commercial litigation partners Josh Simon, Warren Haskel and Dmitriy Tishyevich to its healthcare litigation practice in New York.  

Global head of McDermott’s litigation practice group, David Rosenbloom, said: ‘Josh, Warren and Dmitriy are all precisely that kind of lawyer – they understand the ever-changing health law and regulatory landscape and are well equipped to respond to complex matters, even before they result in litigation. The foresight and synergy between the members of this group already exists, and we look forward to advancing that using the McDermott platform.’  

Finally, in an unusual departure for Slaughter and May, corporate partner Susannah Macknay left the firm’s London office to join the Sydney office of Australian firm Gilbert + Tobin. Macknay joined Slaughters in 2007 and became a partner in 2014. She acts for corporate and private equity clients on public and private M&A and equity capital market transactions.  

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This article first appeared on Legal Business.

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‘Under-funded and ill-served’ courts face pressure to adapt as coronavirus hits the justice system

Courts in England and Wales have made changes to their practices as the Lord Chief Justice joins those dismissing claims the courts can operate as normal as the spread of coronavirus widens.

The justice minister Chris Philip said this week courts would be ‘operating as normal’ despite guidance from the Prime Minister Boris Johnson warning people to avoid unnecessary journeys and to work from home where possible.

But in response, Lord Burnett of Maldon, the Lord Chief Justice, on Tuesday (17 March) said it was not realistic to suppose that it will be business as usual: ‘But it is of vital importance that the administration of justice does not grind to a halt.’

To avoid stasis at the courts, lawyers have called for the use of technology to allow remote hearings where possible, with the government currently drafting emergency legislation to broaden the use of such technology throughout the justice system.

‘The most sensible thing is the use of telephone and video hearings,’ Allen & Overy litigation partner Andrew Denny told Legal Business. ‘People will have invested a lot of funds and resources into cases, and there is the economic impact of that, courts have the same delicate balancing act to do as everyone else. The key mitigating factor is with telephone and video hearings. There are aspects of the justice system – particularly in criminal justice – which will just have to continue.’

One major change was revealed when the Lord Chief Justice confirmed that all trials set to last over three days listed before end of April are to be adjourned, with trials under three days set to continue. The measure comes after Amanda Pinto QC, chair of the Bar Council, gave a barbed statement, saying ‘being in a jury trial should not be a game of Russian roulette with the participants’ health.’

There are widespread concerns that criminal courts are likely to be impacted more heavily than their civil counterparts. One veteran litigator told Legal Business: ‘I don’t think the courts are equipped for it. The idea any half-complicated part of a case can be done over video is a dream. Criminal cases are over, the courts are so underfunded and ill-served by technology that this is the sort of crisis they can’t deal with.’

Elsewhere, the Legal Aid Agency (LAA) has set out its plans amid the coronavirus outbreak, with the main priority ensuring ‘legal aid services from solicitors, barristers and the not-for-profit sector remain available to the public.’ The LAA also stressed legal aid applications for clients are continuing in the usual way.

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Kirkland remains world’s highest-grossing law firm in becoming first to surpass $4bn

Kirkland & Ellis has added $390m to it top line to trounce Latham & Watkins once again as the world’s highest-grossing law firm, as global turnover surged to $4.15bn.

The Chicago-bred giant on 18 March revealed results for the 2019 financial year, revealing a 10% hike in revenue from $3.76bn last year. Profit per equity partner (PEP) reached $5.2m, up 3% on the $5.04m for 2018. Kirkland’s head count grew 13% in 2019 with revenue per lawyer dropping 2% to $1.6m from $1.63m the previous year.

The firm did not disclose regional breakdowns but London is believed to have slightly outpaced global growth at around 12%, growing revenue from around $380m to $425m.

The stellar year has been on the back of thrusting fund formation, restructuring and transactional private equity practices. Kirkland also last year unveiled its largest partner promotion round ever seen by a top legal practice, making up 141 partners, including 16 in the City. The move was an increase of 19 on the previous year’s eye-catching 122-strong round, with the hefty numbers of promotions a statement of intent that moving lawyers up the ranks internally remains a mainstay of the firm’s strategy.

Kirkland has an unusual model in that it makes up large ranks of salaried partners before considering promotions to its tightly-held equity. Operating a fast-track system, associates can make salaried partner six years after qualification – bucking the wider trend of pushing back promotions. Last year’s promotion round meant the firm had made up 531 partners in the last five years.

The Chicago-bred giant now has more than 350 lawyers in London and has forged something of a private equity powerhouse operating across Europe. It started 2019 on a high when it lured the much sought-after private equity partner Adrian Maguire from Freshfields Bruckhaus Deringer. The high-profile hire paid dividends last month when Maguire acted for long-standing client Cinven for the first time since making the move, along with Advent International and the RAG foundation, on their €17.2bn acquisition of Thyssenkrupp’s elevator business.

Kirkland’s success also comes on the back of a number of bumper lead mandates including on the $63bn acquisition of Allergan by US biopharmaceutical company AbbVie and the acquisition underpinning the $90bn merger between Bristol-Myers Squibb and Celgene.

Observers have grown accustomed to the two-horse race between Kirkland and Latham to attain the status as the world’s highest grossing law firm. Last month, Latham reported its second consecutive year of double-digit growth as its revenue surged to $3.77bn in 2019 while profit per equity partner (PEP) hit $3.78m.

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This article first appeared on Legal Business.

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Slaughters makes up seven in the City with bulked-up promotion round

City blueblood Slaughter and May has promoted seven partners in the City and one in Hong Kong following an increased promotion round, with corporate receiving the lion’s share.

The promotion round sees London land four additional corporate partners, with one apiece going to the firm’s infrastructure and natural resources, investigations and financing practices respectively. In Hong Kong the one promotion came in corporate.

The promotion round is a significant increase on last year when the firm only made up one associate, with finance lawyer Harry Bacon receiving the nod. However, his promotion was announced alongside a rare hire for the firm, with Jing Chen joining as a partner in Hong Kong from the listing division of Hong Kong Exchanges and Clearing.

Slaughters senior partner Steve Cooke commented: ‘Each of these talented individuals has already established a strong track record of providing excellent advice to our clients and will make an important contribution to the continuing growth of our business. The fact that we have promoted lawyers from a broad spread of practice areas in these uncertain times reflects the underlying strength of the firm.’

Meanwhile, all associates at Slaughters received a boost earlier this year, as the firm revealed a salary boost for associates with 2.5 years post-qualified experience or more, following a significant bump in newly-qualified pay last summer.

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Slaughter and May promotions in full

London

  • Tim Blanchard (investigations)
  • Oliver Moir (infrastructure, energy, natural resources)
  • Samay Shah (financing)
  • Alexander Dustan (corporate)
  • Natalie Cook (corporate)
  • Harry Hecht (corporate)
  • Claire Jackson (corporate)

Hong Kong

  • Ben Heron (corporate)

This article first appeared on Legal Business.

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‘Not ingredients for activity’: Treasury reveals fiscal stimulus to battle coronavirus slump

Amid growing economic uncertainty, the Treasury on 11 March announced a budget looking to reassure businesses as coronavirus fears continue to rise and law firm partners brace for a slowdown.

The budget comes as early optimism for 2020 has turned to anxiety among major law firms, with clients become increasingly impacted by the global outbreak of coronavirus. Chancellor Rishi Sunak unveiled a £30bn package to help tackle the virus, which included the abolition of business rates for small businesses and a £1bn government-backed loan scheme.

‘It’s too premature to make confident predictions but likely economic stagnation in some sectors combined with sliding equity valuations and market uncertainty are not helpful ingredients for M&A activity,’ Slaughter and May’s head of corporate Andy Ryde told Legal Business. ‘We’re therefore braced for a slower period, but would be optimistic for a quicker and higher bounce-back than we saw following the global financial crisis.’

Many in the market feel restructuring and insolvency lawyers will be in higher demand as coronavirus acts as a trigger for businesses already at risk, as seen in the recent collapse of UK airline Flybe. However, the government-backed loan scheme will be available only for businesses affected by the virus that are otherwise viable.

‘The main message from the government is “we’ll do whatever it takes,” but putting a number to the measures needed is difficult,’ Simmons & Simmons corporate partner Martin Shah told Legal Business. ‘It’s a confident message of saying the government will help businesses get through this with grants and loans as well as tax arrangements.’

A slew of law firms have been forced to respond to the virus, cancelling partner conferences and closing offices. Earlier this week, Quinn Emanuel Urquhart & Sullivan temporarily closed its New York office after a partner tested positive for COVID-1, while Baker McKenzie was the first major firm in London to be forced into a decision, briefly closing its 1,000-employee office after a member of staff was taken ill following a return from Northern Italy.

Also in a bid to support the economy, the Bank of England cut interest rates today in an emergency move. The monetary policy committee voted unanimously to slash the bank rate from 0.75% to 0.25%, in the hope of stemming fallout in the markets and supporting demand.

Meanwhile, the government also revealed consultation plans over the coming months for a possible levy to fund new action on money laundering. According to the budget report: ‘The government intends to introduce a levy to be paid by firms subject to the money laundering regulations to help fund new government action to tackle money laundering and ensure delivery of the reforms committed to in the Economic Crime Plan.’

Some in the legal profession believe the measures are not enough, however. Kingsley Napley criminal litigation partner Alun Milford commented: ‘The government needs also to ensure investment in extra prosecutors and a proper functioning court service to deal with money laundering and fraud cases effectively. Only with investment across the system will the authorities really be able to boast about a significant ramping up of the war on dirty money and financial crime and to meet the objectives set out in the Economic Crime Plan.’

The government also revealed a £14m backing of Companies House in an effort to ‘continue with vital capital projects to help its work tackling economic crime and anti-money laundering.’

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Are you aware that your law degree can help you to start a career in the boardroom?

Landing a training contract is not the only route into the legal sector. Company secretarial and governance roles give you the opportunity to use your legal knowledge and experience to get your foot into the boardroom. Being a Chartered governance professional immerses you in a broad career that provides exposure not only to law but business strategy, finance and support to the board of directors. The Chartered Governance Institute can help you gain experience if this is a career for you.

Good governance is vital to enabling the management of a board to effectively deal with the challenges of running an organisation and ensure that they operate legally, appropriately, ethically and fairly. Chartered governance professionals support, influence and advise the board regarding legal, regulatory and ethical matters to ensure that organisations keep all stakeholders in balance and execute well-informed decisions.

At the organisation’s core

Governance professionals possess highly strategic roles and hold positions of considerable influence. They work closely with the chair, CEO and directors to keep organisations true to their strategic purpose and ensure they operate successfully within regulation.

Transferable between sectors

As a law graduate, your degree opens the doors to a much wider career than conventional law. There is flexibility to move between public, corporate or not-for-profit sectors nationally and internationally. The role of a governance professional will differ from organisation to organisation, and no day will ever be the same. Governance professionals are in demand in across all sizes of organisations, and across a variety of sectors including charities and academy schools, as well as the National Health Service and sports organisations.

Interpersonal skills

Governance professionals need to keep-up-to date with regulatory changes, current issues and be wary of future developments.

In addition to technical knowledge, soft skills are essential to an organisation’s success and are just as crucial to business success as the more recognised ‘hard skills’.

A good governance professional should be able to effectively negotiate, communicate and form relationships. They need to have a non-partisan approach, informed decision making, ability to influence others, facilitation skills and at the same time be self-aware, independent, resilient and discreet, all while keeping a calm persona.

Do you want to know more?

Book a place at our Graduate Open Evening in London on 3 June 2020 and hear from governance professionals about what drew them into the role, how they qualified and their first-hand advice.

Alternatively, visit the Graduate Hub and register for an insight day, work shadowing opportunities, or sit in on an AGM session to gain rare insights into the plans and strategies of high-profile organisations within the UK.

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In-house: RPC and DWF among four new firms on Dixons Carphone’s expanded roster

Retailer Dixons Carphone has added four firms to a revised legal roster, with DWF, RPC, Bristows and Carson McDowell winning spots.

The panel will run for four years following the expiration of its previous arrangement in March, which was the result of a 2016 review. The new additions join ten firms Dixons Carphone has kept panel relationships with, including Addleshaw Goddard, Clyde & Co, DAC Beachcroft, DLA Piper, Doyle Clayton, Fieldfisher, Freshfields Bruckhaus Deringer, Pinsent Masons, Shoosmiths, and Worthingtons.

The 14 firms will work across commercial, corporate, employment, litigation, regulatory, property and IP work. General counsel Nigel Paterson, who featured in the GC Powerlist 2019, told Legal Business the winning firms were assessed against technical expertise, financial value, retail market understanding and their abilities to offer added-value services.

‘We have maintained existing relationships with the firms we’ve worked with for many years, while also bringing on board the expertise of four firms,’ he added.

Paterson has responsibility for 47 lawyers across employment, corporate and commercial legal teams in London, Athens and Oslo.  He joined Dixons Carphone a year after the £3.8bn merger between Dixons and Carphone Warehouse in 2014, which brought household names including Currys and PC World under one umbrella. A former senior lawyer at BT for over 14 years, he replaced interim joint-GC team of Helen Grantham and Tim Morris.

Dixons Carphone has been riding a turbulent couple of years of poor trading on the high street, and in 2018 announced the closure of 92 of its 700 stores.

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This article first appeared onLegal Business.

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Ashurst enters US West Coast with four-lawyer Santa Monica projects play

Ashurst has launched a four-lawyer transport and infrastructure-focused base in Santa Monica, its second US office after New York.

The firm announced today (25 February) that projects partner Anna Hermelin has relocated from the firm’s Tokyo office to become managing partner of the new West Coast operations in the Los Angeles County.

The new outpost, staffed by Hermelin and three California-qualified Ashurst associates, will focus on projects and project finance work in the transport and social infrastructure sectors. Ashurst aims to grow the team to between seven and ten lawyers within a year.

A spokesperson for Ashurst told Legal Business that the launch was a reflection of mandates on the West Coast having increased significantly and was ‘aligned to the firm’s ambitions in terms of its projects, project finance and infrastructure offering’.

California has gathered increasing attention from international law firms in the last few years, although interest has mainly been focused on the booming Bay Area tech scene rather than the Los Angeles surroundings.

Some point to a growing gap between the North and the South of the state, with fewer financial institutions and public companies based around Los Angeles compared to a decade ago and reverberations across the legal industry. New York royalty Skadden, Arps, Slate, Meagher & Flom, for example, has reduced its LA headcount in recent years and is planning to move to smaller premises when its current lease expires in 2021.

Others however point to the growing strength of the media and entertainment scene around LA’s Century City district, with Latham & Watkins launching locally in 2014 and Paul Hastings following suit in March 2018. The burgeoning tech scene around the area ambitiously dubbed Silicon Beach, between LA and Santa Monica, is also getting more attention from investors, with Boston-bred Goodwin launching in Santa Monica last year.

Other firms to open Southern California bases recently include Baker McKenzie in March 2018 and Clyde & Co in July 2017.

The launch of Ashurst’s second US base after New York follows the firm posting robust financials in 2018/19, with revenue rising 14% to £641m and profits per equity partner soaring 31% to £972,000. The firm has made considerable headway in New York in recent years having built out a generative government-side infrastructure advisory offering.

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This article first appeared on Legal Business.