Posted on

Islamic Republic of Iran

A country mired in political football, Iran is still finding its feet again following years of tumult. With investors collectively holding their breath as the latest skirmish between the USA and Iran plays out, the country’s prospects for economic development are in a holding pattern. But behind the political theatre lies a country well placed to carve its own path to prosperity thanks to an enormous and highly educated population, robust economic and legal infrastructure, and a wealth of natural resources – all factors which, in the absence of political uncertainty, should be more than enticing to investors around the world.

Sanctions

Iran counts itself among a number of countries hit with targeted sanctions from the United States. At the heart of the current slate of sanctions is Iran’s insistence on pursuing a uranium enrichment programme, a move that some in the international community fear is serving as a precursor to the development of nuclear weapons. Negotiations between Iran, the US and the UN led to the limiting of Iran’s nuclear programme in exchange for reduced sanctions. But the so-called US-Iranian nuclear deal was famously collapsed by Donald Trump withdrawal of the United States from said deal and the reimposition of sanctions. The sanctions affect Iran’s automobile, gold and steel industries, as well as (most importantly) its oil industry.

While the sanctions, at least in the US, have been hailed as a political success and devastating to Iran’s economic capabilities, the reality is more nuanced. The chief effect of the sanctions it that the country’s oil output has declined, which has reduced the government’s revenues and, by extension, its ability to invest in much-needed infrastructure. Long touted as a ‘resistance economy’, Iran is undoubtedly feeling the pressure, though one only has to look as far as the other targets of the United States’ financial wrath – the likes of Venezuela – to see how much worse things could be. Still, the World Bank has ranked Iran towards the bottom of its projected economic growth rankings for 2019 – only being saved from the very bottom by Nicaragua – and the price of basic items has, in some cases, tripled in the past year, providing further cause for investor anxiety, as social discord can only increase under such conditions.

The effect of the older sanctions has been to stymie the overall development of Iran, at a time when other emerging markets have been able to pull ahead and enter a class of their own. Majid Sadjadi Nejad, founder and CEO of Iran investment firm Rostam Capital, compares Iran to another one-time emerging market: ‘China is celebrating its 70th year now, but until 20 years ago they were way behind the Iranian economy if you look at it as an investment destination. For Iran, it’s just a question of getting it done and accelerating it.’

The degree to which these latest sanctions have affected the Iranian economy depends on who is asked, but the indefinite nature of the sanctions and an apparent diplomatic stalemate between Iran and the US has investors holding their breath, awaiting some signs that the country is past the threat of further instability or worse, war.

‘Clearly, it’s a difficult market,’ says Richard Adley, CEO of First Frontier Capital. ‘There’s no way of getting around it – the sanctions aren’t making things any easier and yes people are turning away, but equally, that doesn’t mean there aren’t opportunities – companies still need financing, and the economy still goes on. Yes the currency is devalued, but the reality is it has stabilised and, for the moment, it isn’t getting worse. And it’s probably not going to get worse – it’s just a matter of how quickly it’s going to get better.’

Not like other economies

Like many economies in the region, Iran’s is largely built on oil and gas production – but the specifics of its construction mean that Iran may be better positioned than its close neighbours to take advantage when the doors to foreign investment finally open fully.

‘People always think of the country as oil-dependent, but around 70% of the GDP is non-hydrocarbon,’ explains Sadjadi. ‘The majority of the government revenues are hydrocarbon, so there’s always confusion. But it is a different economy to many of the others in the region – hydrocarbon is a minority part of it.’

It is this economic fact that has saved Iran from the fate of Venezuela, which is crumbling under US sanctions on oil due to the government’s reliance on oil exports for revenue.

Another factor that distinguishes Iran from past examples of emerging markets in the region, or current examples of emerging markets around the world, is that the country enjoyed a bustling economy long before the scandal and political animosity that has been present from the 70s onwards. Unlike others, there are decades of pre-established processes and infrastructure – physical and otherwise – to lean on.

‘Iran isn’t an emerging market – it’s a re-emerging market,’ says Sadjadi. ‘When we worked China, or countries in the former Soviet Bloc, you had to wait for industrial and economic infrastructure to be developed before you could do much. All of those exist in Iran – they just need to be brought up to international standards.’

‘You have foreign investor protections – legally, you’re very well protected,’ adds Adley. ‘It’s an economy and a country that is re-emerging, rather than emerging. It has had previous good relationships and development that has gone on, they have still maintained good relationships with parts of Asia and Russia.’

‘Some of the technology and technical infrastructure may be creaking at the seams or underinvested, but that’s more of a bandwidth problem rather than a functional, basic operational capacity.’

‘There are many enablers for the Iranian economy,’ argues Sadjadi. ‘It has 10% of the world’s crude oil reserves, along with gold, platinum, LNG – and all of this needs to be extracted efficiently. Iran had state-of-the-art technology 30 years ago, but very little new investment has been able to go into it because of the sanctions.’

It’s the holding pattern, imposed by the aforementioned sanctions and general uncertainty, which functions, in large part, as the true ceiling to Iran’s development in the coming years. While the UAE and Saudi Arabia are thinking about large-scale economic diversification and modernisation initiatives, Iran is still waiting to see how its complex diplomatic problems shake out before uniting behind a comprehensive vision for the future.

‘It’s very hard for them to have a long-term vision because they don’t even know where they are day-to-day or week-to-week. So you don’t have that big clear picture,’ says Adley.

Human capital

This uncertainty has meant that Iran has not enjoyed the influx of wealth and human capital into the economy that other Middle Eastern nations have; a factor that is economically limiting in and of itself. But, unlike certain other economies, Iran has a population of over 80 million, many of whom are highly educated – so there is already plenty for business to leverage off.

‘It’s a real economy,’ explains Adley. ‘80 million people with real domestic people – that 80 million is not like the UAE or Qatar, where it’s made up of expats. It’s a real, domestic, functioning economy. So there’s less of that need to follow the Saudiisation or Emiratisation that’s going on, because the nature of the demographics isn’t the same… it’s a real economy that functions and it has real exports and real production other than the hydrocarbon.’

‘The country needs to preserve its human capital,’ says Sadjadi. ‘It is one of the highest educated rates in the world, and much of that is in the science and tech areas. Ordinarily, you would need to wait a generation to produce that in a newly emerging economy, as opposed to Iran, which is a re-emerging one.’

Local human capital notwithstanding, there are things to be said for fostering a multicultural, international workforce.

‘The whole international business environment, it brings a lot of new learning,’ explains Mozhdeh Pourmand, managing partner at Andisheh Consultancy Firm in Tehran. ‘It’s not only technology – it’s the know-how: how to work, how to improve, how to develop. I have seen the difference – especially now I’m working with a state-owned holding and at the same time working with multinational companies – and I can see the difference in every inch of the business they are doing: the efficiency, the integrity, the transparency of the work. So as a personal wish, I think that would be a door for improving the whole country’s economy.’

Under sanction

In Iran, having a permanent in-house counsel isn’t common. Outside of the large, state-owned enterprises, many businesses choose to rely solely on external advice, or even make use of external in-house specialised advisory services. Mozhdeh Pourmand is the managing director at Andisheh Consultancy Firm, which provides external, in-house legal services.

‘In most companies, they do not have very much in the way of a legal department. The contract is usually handled by the procurement department, so unless they face really big issues, they do not have that intention to go to a lawyer. But, there is an exception – the state-owned companies, they do have an in-house department, all of them,’ she says.

‘I think it is because of the size of the businesses and the nature of the work they are handling. They’ve got the budget from the state and there are a lot of internal audits that come with that – one of the requirements for them is to have a legal department to be able to respond and cooperate with the auditing.’

Given the kinds of issues likely to be faced by companies operating in Iran, this may be surprising – especially given the increasing extra-territorial reach of anti-corruption, anti-bribery and data protection regulations, as well as the much-needed modernisation of legal infrastructure that is somewhat underway, but expected to boom if sanctions are lifted and Iran’s economy begins to improve.

‘There are increasing regulations in each sector, but that has a cost – so you have to see an economic benefit to that cost,’ says Sadjadi.

‘That’s what is being held up. Everyone knows it has to be done – the regulatory infrastructure has been out of touch for the past 30 years compared with international ones – so there’s a lot of catching up to do on the legal structures enabling trade, foreign ownership, and various things like protection of foreign investments.’

Given all of this, an underdeveloped in-house ecosystem is not ideal. Pourmand sees a shift on the horizon, however, one which she hopes will see increasingly educated and innovative law graduates push the profession in Iran forward.

‘One thing that comes first to my attention is the change in the fresh graduates becoming junior lawyers. In contrast with my time, many fresh graduates know English, so they try to use English and Arabic together with use of technology to access new concepts of law and, usually, these new legal concepts are linked to the business,’ she says.

‘What I am hoping and what I am seeing is that, maybe in the next ten years, we have more attorneys whose state of mind is more similar to the European lawyers or even others around our region – not that old-fashioned litigator working solo and not pursuing any self-improvement.’

Still, as with much of the business world in Iran, such change is stymied by the same factors: lack of maturity in the business environment, together with geopolitical uncertainties.

When to strike

While sanctions on Iran damaged the economic outlook for the country (the World Bank’s forecasted growth for Iran was revised down to -4.5% after the US reimposed sanctions), there is a sense that these will not last forever. If the pre-sanctions growth estimates are any indication, when the day comes that the sanctions are lifted, there are blue skies ahead for the country. Because of this, optimism is easy to find.

‘Firms who are already into Iran and that wanted to disengage, generally have disengaged a long time ago, and it was almost a knee-jerk decision. We certainly see that the rate of attrition is slowing down now, so it’s down now to a trickle of people leaving rather than a flood and, at the same time, people are now more receptive to the idea of business. So the mood has switched from negative to neutral, going toward the more positive end of neutral,’ says Adley.

‘Emerging markets, by their nature, are volatile. Historically, in emerging markets there was a continuous revolution or political changes and what you’re seeing is a certain stability, even if it’s autocratic rule, but at least the stability you’re getting. Whilst it may not be attractive to us in the West or what developed markets would call an ideal scenario, at least some of these markets have stability. And, with stability, you have a clear investment horizon.’ n

Posted on

Dr Saleh Al-Oufi, TAQNIA

The Saudi Technology Development and Investment Company (TAQNIA) was established in June 2011 by Royal Decree to localise technology in Saudi Arabia and commercialise outputs of R&D centers. TAQNIA invests in technology that contributes towards Saudi Arabia’s economic diversification. TAQNIA is owned by the Public Investment Fund (PIF), which drives strategic and sustainable diversification enabling growth in different industries in Saudi Arabia. TAQNIA exerts all of its efforts to be fully aligned with Saudi Vision 2030.

My role as a general counsel is guiding and monitoring the legal affairs activities in TAQNIA Holding and its subsidiaries. As a general counsel for more than 17 years, our legal department work relates to guiding the company to its objectives. To be more illustrative, in recent years the role of our department has broadened far beyond narrowly defined legal matters to encompass such things as risk, compliance, finance, regulation, human resources, and business issues. Our department is becoming increasingly involved in matters that are not strictly legal, such as risk management and business strategy, especially in the area of risk management.

Saudi Arabia has initiated the 5 years development plan since 1975, so that the recent 2030 vision plan of modernisation is built on the progress of its antecedents as each generation benefits from the progress of past. Nevertheless, a new generation of the leaders brings with them new challenges and impetus for development, such as the Crown Prince unveiling of Vision 2030, an ambitious programme of development for the Kingdom. The Crown Prince noted that “Our Vision is a strong, thriving, and stable Saudi Arabia that provides opportunity for all”. Accordingly, I see my role and the role of every legal professionals is increasing as the Vision 2030 outlines economic development among several specific goals and initiative for the Kingdom to achieve. In the economic sector, regulations have been streamlined to encourage foreign investment, and that will lead to the emergence of key opportunities for partnership in a number of industries such as manufacturing, and technology transfer. These efforts will provide opportunity will provide all Saudi legal professional better opportunities to participate in the execution of the 2030 Vision of the Kingdom of Saudi Arabia.

For my role – or for that of any legal professional – it will make for a better environment to work with the changes that have been made and improvement to laws and regulations in the Kingdom. TAQNIA will have more opportunities for business as the 2030 Vision mandates localisation of any government-made contract which may reach 45% of the contract value and thats excellent for those companies that are well established in technology development like TAQNIA.

In general, Saudi Arabia will become a more open society, with more modern education and healthcare, which are the fundamentals of any society. In addition, employment opportunities for both male and female will expand, as society will become more open and accepting of a working environment in which females and males work side by side. n

Posted on

Mozhdeh Pourmand, Andisheh Consultancy

I’m one of the shareholders and partners at Andisheh Consultancy, a consultancy firm giving advice to both Iranian and multinational companies that are working in Iran. I work with companies that usually don’t have an in-house legal function, so we fill the role of in-house but on an external contract, doing the day-to-day business, general legal advisory, contract review, corporate restructuring – everything that an in-house lawyer would do for them.

In Iran, it’s not common for companies to have an in-house legal function – even for the big companies. Contracts are usually handled by the procurement department, so unless they face really big issues, they do not have that intention to go to a lawyer. But, there is an exception: the state-owned companies – they all have an in-house legal function. Because of the size of them, as well as the nature of the business they are handling, they are an exception. They receive the budget from the state to do so, but they also have to deal with internal audits by the government and it is a requirement that they have a legal department to be able to respond and cooperate with this.

When you are in-house, you become an employee, so there are other aspects of an employee-employer relationship – whereas working as I do, in my opinion, has a mutual benefit for both sides. The company does not have to have the financial burden and the overhead for having a full-time employee, so they will not have to deal with the employment contracts, social security obligations and so on, but at the same time, they are receiving an adviser. I think the best terminology for what we are trying to present to the clients, would be like an externalised or a shared service centre.

We are trying to match the culture in our country to the standards that the FCPA or the UK Bribery Act set out. That does tend to require a huge effort and time investment, in terms of training and investigating, to build up that culture.

I think I can say, in a very general way, attitudes do come from the culture of the region rather than the company. So I have experienced the ‘senior’ approach from companies based in Europe towards using in-house counsel, and their approach to any issue in disputes is more or less the same. Compared to our neighbouring countries, you see that the business culture is very much linked to the region they are coming from.

Arbitration is a new concept in Iran. I myself try to advocate that, and I try to promote it in the contracts. Arbitration is especially easier when one of the parties is not Iranian because, for them, it has a very significant privilege: they can choose their own arbitration rules and their own place of sitting, so for them it’s already very much accepted. But, for the local companies, the Iranians, we try to point out different reasons why the arbitration can be a better replacement for litigation.

For litigation, companies really try and see if there is any other settlement option, because it is time consuming, it’s expensive, and you can never predict the results – especially if the case is blurry; you cannot give clear advice on that. So they will try to make a settlement; if there is a debt collection, they will prefer to agree to receive it partially in cash rather than going through court procedure, even if it means they might receive it in four or five years. n

Posted on

United Arab Emirates

Internationally, the Middle East is often seen – at least in a commercial sense – to revolve around the United Arab Emirates. In many ways, it does. For a combination of reasons – mostly financial – the country’s business environment has matured at a speed far beyond its neighbours. That the UAE largely shares a legal history with the rest of the Middle East makes the country a fascinating case study: why has the UAE managed to position itself as a hub for international commerce, when many of its neighbours have not?

Big brother UAE

‘As in-house counsel for this region, you’re operating in an environment which Transparency International will tell you is some of the most challenging,’ describes Bruce McAlister, general counsel for GE’s Global Growth Organization. ‘The UAE, obviously not. The UAE is far more mature and the ease of doing business, and business conduct, is very good.’

It’s this maturity that has allowed the UAE to become the region’s business paragon, with the commercial certainty that follows. For a company looking to invest capital in the region, a jurisdiction in which avenues of dispute resolution are clear and plentiful, and in which the legal system is accessible and, above all, fair – is critical.

‘For the region, it is very much on a jurisdictional basis. In the UAE, you have a good judiciary here. You’ve got a good, competent judiciary, and you’ve got good arbitration and mediation forums. So you have the ability to predict the outcome,’ says McAlister.

‘The UAE obviously have spent a lot of time training up their judiciary and spending a lot of money and resources on it.’

This maturity isn’t by accident, and it extends to nearly all facets of business life in the UAE. Seeing the opportunity and knowing what a barrier uncertainty can be, the UAE has made a concerted effort to develop its business and legal infrastructure to encourage businesses, both local and international, to set up in the country – and stay there. While vestiges of older times still exist in this respect, the UAE has moved fast – and continues to do so – to achieve its goals.

‘The UAE is highly regulated,’ continues McAlister. ‘It has looked to best practices around the world in terms of regulation. So for example, for nuclear, the regulations of creating a nuclear authority and nuclear regulatory bodies were all taken from best practice and from regulations that have been permeating throughout the world.’

For instance, the bones of UAE’s labour laws have been in place since 1980 – a time vastly different from the current era of towering skyscrapers and hundred-million dollar super yachts. It is no surprise then that these have been a priority for the governments in UAE, and this year. The last 24 months have seen a slew of proposed and enacted regulations, as well as decrees to flesh out the underlying law – bringing in concepts such as multiculturalism and anti-discrimination. This is part of a wider push by the government to sell the country as a tolerant one – in fact, 2019 has been designated by the government as the ‘Year of Tolerance’. This interplay between the definition of a goal and the willingness by the arms of government to enact meaningful change in order to achieve it has been characteristic of the UAE, and goes a long way towards explaining the country’s meteoric rise on the world business stage.

Paved without gold

Today, the UAE’s reputation precedes it. However, the legal infrastructure supporting the country and its towering skylines began life further afield in Egypt. This, say general counsel, has informed the legal development of the Emirates and Dubai in particular – and still colours business today, as the country sources best practice from all over the world to build a haven most compatible with international investment.

‘The Gulf Cooperation Council (GCC) legal systems are mostly based on Egyptian systems,’ explains Fady Zedan, senior counsel at Kuehne + Nagel. ‘When the Gulf was coming up, they hired Egyptian law professors to put the constitutions, the legal systems in place. Some countries actually developed to the point that they ran faster than Egypt – for instance, Dubai – and some stayed in the same position they were in 40 years ago.’

“The last 24 months have seen a slew of proposed and enacted regulations, as well as decrees to flesh out the underlying law.”

Because of this quirk of history, the UAE’s constitution prescribes a civil law jurisdiction, and distinguishes between two sources of law – those at the local level (passed by the individual emirates that make up the UAE) and those at the federal one (passed by the federal government and applicable across the Emirates). As in other civil law jurisdictions, the legal principles on which the country is governed are codified as opposed to sourced eclectically as in common law. When the UAE constitution was enacted in 1971, it was inheriting the civil code of Egypt, which itself was largely built even earlier, at the start of the 20th century.

‘If you look at this civil law for example, they have a civil procedural law, which talks about procedure. And you have the civil law itself, which talks about the rules and the substance of the law. Now, for the whole of the GCC – let’s say Qatar, Saudi, Kuwait, the UAE – take the Egyptian law, and you’ll find the exact same article but with a different number,’ Zedan explains.

‘If you compare the dates, you’ll find that the Egyptian law was put in when the British were in Egypt in the 20s and 30s. Here, it’s the 70s, but it’s pretty much the same thing. Whenever I am faced with a legal issue in the Middle East, I know that whatever I know in one country will be reflected in the law of another country, but under a different article.’

This combination of the rigidity of civil law and the inheritance of Egypt’s ageing legislation is not conducive to a bustling destination for international business. But, despite similar beginnings, experiences of these legal systems differ greatly between each country in the Gulf. This, Zedan says, is because of innovation and, in particular, the UAE’s willingness to modernise.

‘Take Kuwait, for example. If you go to Kuwait, you will find that the legal system and the government regulatory environment is similar to Egypt – it’s like a photocopy. Here in the UAE, it started like this, but then they developed. I think innovation plays a big part in this – the e-courts, the e-filing systems – these help a lot in terms of efficiency,’ he says.

‘In Egypt, you can have a labour case go up to seven years, and then you get a final verdict. Here in the UAE, you can get it in a year, maximum.’

The efficiency comes at a cost – quite literally. Whereas filing a dispute with courts in Egypt will cost very little, in the UAE, things are more expensive. This may deter would-be litigants to a degree, but the efficiencies that courts in the UAE have been able to achieve have changed the perception of dispute resolution when compared to Egypt, where the threat of a multi-year court battle is real, and enough to make parties consider other, more amicable resolutions.

‘Dubai made a more efficient system – how the cases get assigned to the judges, how the judges manage their time. Yes, some people still complain about how slow the justice system is in Dubai and in the UAE. But, in the UAE especially, I think compared to the rest of the region, it’s very developed.’

Position of general counsel

What results from all of the legal history, rapidly expanding infrastructure and ferocious desire by government to be seen as a suitable business destination, is an environment in which in-house counsel are critical – and one in which the top stakeholders recognise their value.

‘I would say there has been some maturity and understanding of legal’s role,’ explains Zedan. ‘You see this in companies which were outsourcing everything to the law firms – now they are hiring general counsel.’

Like the rest of the Gulf, the UAE suffered during the global financial crisis. As a newly developed nation, the tumult of that time forced business to confront issues it had largely managed to avoid during its prosperity.

‘There were lots of disputes about collections – companies not paying each other. And at this point, I think they realised the problem – you know, are contracts in place? What safeguards do we have? It wasn’t like the good old days where the money was flowing all around the GCC and everyone was happy, and everyone was being paid on time,’ explains McAlister.

‘I think that from [the UK], there was clearly a push by the in-house legal team to get recognition, to get onto the board. Here, it’s a pull. The board, having to deal with the types of issues [that you deal with in this region], have pulled the general counsel onto the board, pulled to place senior counsel into leadership positions and realised very quickly that they needed competent lawyers to be able to handle it.’

Local hospitality

The history of the UAE – and the same is true of much of the wider region – is such that, regardless of the dispute resolution infrastructure in place, business tends to lean away from disputes. While this was easier pre-financial crisis, a culture of relationship preservation has remained.

“The DIFC is an answer to those wanting to do business in the region, but are unable or unwilling to submit to the civil system, with its rigid and often outdated laws.”

‘When I look back in terms of our major disputes in the region, it’s always none – I mean, there’s very few. I don’t know if that’s just a reflection of the folks that we deal with or the nature of the specific industry we’re in,’ says Dzul Bakar, vice president and general counsel at Shelf Drilling.

‘In our business, I think there is this view, from a service contractor point of view, that we are interested in long-term work with the client. Invariably, there will be some disputes, but we try and resolve it as amicably as possible. No doubt, sometimes, from a contractual point of view, you feel strongly that you are entitled to something, but in the interests of future work, you compromise.’

International hospitality

The UAE and, in particular, Dubai, have never seen the need to eschew their local jurisdiction entirely in order to attract foreign investment. It has shown there that the two are not mutually exclusive. An often negotiated point in any cross- border deal is choice of jurisdiction and law, and Dubai has recognised this and created a way to make life easier for those doing business within its borders. The city of Dubai built the Dubai International Financial Centre in 2004 as a special economic zone. Operating as an independent jurisdiction, the DIFC has its own civil and commercial laws, which are codified in English and default to English law in the case of any uncertainty.

‘This is where Dubai played it smart, because they made the DIFC. If you are coming from the UK, or coming from another common law jurisdiction and you’re establishing a company, you might be hesitant to go through the local legal system; you still have the choice to use common law. You don’t have to be based in the DIFC to submit to the law of England and Wales,’ explains Zedan.

The DIFC is an answer to those wanting to do business in the region, but who are unable or unwilling to submit to the civil system, with its rigid and often outdated (having been inherited from the Egyptian system) laws. It is being used to great effect too, growing in popularity each year. In 2018, the DIFC reported a record-high 437 new company registrations, a 15% increase in active registered companies to 2,137, a 15% increase in financial-related firms registering with the DIFC to 625 (including over 80 registered fintech companies), and an increase in net profit of 11%, raising the profit to USD$88m. These numbers put the DIFC squarely on track to meet its ambitious goal to triple in size by 2024. The global appeal of a zone such as the DIFC is also apparent in the diversity of the businesses it houses: the Centre reported that at the end of 2018, the DIFC’s resident companies are 36% Middle Eastern, 33% European, 11% from Asia and 10% American, with the remaining 10% from other countries.

GC abroad

Despite the lengths to which the Emirates has gone to ensure a comfortable business environment, it’s still an adjustment for the flock of legal personnel that find themselves serving in the UAE. The differences are still there. But, after all, it isn’t homogeneity with the rest of the world that draws expat general counsel to Dubai and the UAE. It is the challenge of difference.

‘One of the reasons why I wanted to move was that I was very much a Swiss product, and I knew that at some point people would potentially challenge me in my ability to adapt,’ explains Joanne Fischlin, head of corporate, external and legal affairs for Microsoft’s Gulf operations. After spending the first years of her in-house career in various Swiss companies, she made the move to Dubai as the senior legal counsel for Firmenich in 2013.

‘You know, as a female, if you go to the Middle East and you’re successful, it pretty much clears that question out of any line of questions in your future career.’

‘I think the big difference when I moved to Dubai is more the cultural sensitivity; understanding the codes and things like not taking offense if you have to get out of the room for the males to make the compromise because they just won’t do it in front of a female. You have to understand that sometimes you’ll be confronted with situations where you’re just going to have to accept that it’s not the way it’s done In your country, and it’s nothing against you, it’s just culturally different.’ n

Posted on

Majid Sadjadi Nejad, Rostam Capital

When starting Rostam Capital, what we saw was a gap between the markets in the Middle East – essentially the Silk Road countries – and the international capital markets. They’ve been out of touch or have never been part of the recent evolution of the market, so that in itself makes transactions and investment more expensive. We had access to the people who were on the ground in the region, and people who have been active in global capital markets for a long time, so by combining those too, we thought that we would be able to accelerate the economic development and make it easier for both FDI and exports.

Iran has always been a part of Rostam’s portfolio. There’s a population of more than 80 million people but, internationally, there is very little known about the economy – whether that’s the country’s fault or not.

Part of the struggle for Iran is that although they have highly educated people there, they don’t have the international hands-on experience. The textbook approaches they have may be wrong, or at least not up to date with the latest techniques. As a country, they have been out of touch with the global community because of the sanctions that were introduced over the past decade – and when you think about the huge evolution that took place in capital markets after 2008, they missed out on being part of that evolution.

Iran is a different economy to many of the other ones in the region – hydrocarbon is a minority part of it. That message is one that the country has not got across, so they have more than 80 million people going about needing all of the basic consumer things, finance, retail, everything – that brings a whole massive economic ecosystem in itself. Because of the sanctions, they’ve had to pretty much be self-sufficient on much of that, which in turn means you don’t have the economies of scale of being part of the global market.

It is inevitable that Iran will be an economic powerhouse, whether it’s during my lifetime or not. It is one of the largest domestic economies: almost everything you invest in or set up – be it production, basics, technology, engineering, anything really – you’re already hitting with a large domestic market.

Tech transfer is what is needed to upgrade the economy and industrial base. What’s unusual is that, when we consider the rest of the Silk Road, Iran is the only one that is not an emerging market. It’s a re-merging market. When we worked in China or the former Soviet Bloc, you had to wait for industrial and economic infrastructure to be developed before you could do much, but all of those exist in Iran – they just need to be brought up to international standards. In theory that’s a much quicker route, but to do that well, you of course need foreign partners and access to the latest thinking.

Every investor that has asked to be shown around the country has, within a few days, said ‘This is not what I was expecting at all, this is a real economy with real people – it’s very safe and welcoming.’ Once people get there, people realise that the perceived image internationally is very different to the reality on the ground. But, of course, you have to get people there. n

Posted on

Bruce McAlister, GE Global Growth Organization

I’ve been with GE just over 20 years. In that time, 14 have been in the UK and now over five have been in the Middle East.

I think the challenge of being able to operate here from a multinational corporation is with distance from headquarters; as soon you have distance from headquarters, it slows down the ability to react, while at the same time your commercial deals progress quicker. You want fully empowered, competent, experienced legal counsel being able to do some of your deals. The size of the deal, in this region, especially the type of infrastructure projects that we get involved with (which are in the health, power, aviation, and removal sectors) are large. They can run from hundreds of millions to billions of dollars.

I think the role of the general counsel in this region is multi-faceted. You are having to tackle a lot of issues, and there is scarcity of resources. So when you have to build up a team that is competent and qualified, you are fighting for resources and I think the key thing is, it will be resources from the region. My experience has been that being able to have an Arabic speaker is important – someone that can understand the laws in these countries. Most of [the laws] are codified, but you need someone that can understand Arabic and deals with the customers, but also deals with the laws. Because you are contracting out of the local office and you’re working with the government, you’re contracting under the local laws.

There’s a requirement for steady hands – someone that has had the experience to be able to sift the business leadership – so the business leadership was constantly looking for that trusted adviser to drive strategy, be that commercial strategy adviser, fill that stewardship role of being able to protect the brand and reputation. You’re operating in a region which Transparency International will tell you is one of the most challenging – but, within that, the UAE obviously not. The UAE is far more mature in terms of ease of doing business and business conduct – it is very good. But you leave the UAE and it becomes very challenging. If you look at the likes of Iraq, Egypt, Tunisia and Pakistan – those are difficult jurisdictions to operate in.

In terms of the stewardship role, there’s a lot of challenging work that you’re undertaking when you’re dealing with large engineering deals, B2B-type arrangements and large consortium agreements. We’re always dealing with partners, and you’ve got to be very careful about who you select as a partner, because you know we all are subject to the extraterritorial reach of the Bribery Act and the Foreign Corrupt Practices Act.

We know that obviously there is a legal side to this, but your brand can be impacted so badly by choosing the wrong kind of a partner to go into a major transaction with. It’s quite a role to try and do here in the Middle East. It’s work keeping your company and its resources safe. If you’re operating in some of these countries, you’ve got to make sure you’ve got a safe environment for your employees, that you know your employees that are coming into that country, and you’ve considered all the measures that are required to protect them when they come in. n

Posted on

Hashemite Kingdom of Jordan

Since 2009, Jordan has faced a raft of challenges: the global financial crisis, the Arab Spring, border closures with Iraq and Syria, as well as a massive refugee influx. These events have placed immense pressure on Jordan’s economic and political prospects. Yet, despite this, Jordan has retained its status as an important commercial hub within the Middle East.

Jordan is proudly described as the business capital of the Levant. Despite lacking valuable oil and gas reserves, it has managed to build a strong economic base around its manufacturing, finance and banking sectors.

‘The business environment in Jordan is safe, stable and secure, especially when compared to the countries that surround it. This is a big advantage for Jordan,’ explains Abdelrazzaq Al Shurbaji, assistant vice president and legal counsel at Citibank.

‘A lot of countries situated around Jordan are experiencing challenges. In comparison, Jordan has become quite a secure environment. It has become an attractive place in the Middle East to work and to invest.’

Jordan is located at the crossroads between Asia, Africa and Europe. Linah Yazbak, legal and compliance manager at Ferring Pharmaceuticals, says Jordan’s location makes it an ideal base for large multinational companies.

‘Jordan is well placed – it acts as a hub for international companies operating there due to its strong relationships with a number of global markets. Luckily, it is one of the most secure and stable countries in the Middle East,’ she says.

Only the beginning

Jordan’s reputation as a stable and secure business environment has made the country a desirable location for in-house counsel within the Middle East.

‘Jordan’s stability and strategic location have been reinforced with sound economic policies and a vision to ensure that Jordan will become a key market in the MENA region,’ says Dr Wadah Hajjat, legal adviser at the Jordan Investment Commission.

‘Jordan stands to be an active partner in the reconstruction and development of neighbouring markets, too. All of these factors have made Jordan a unique place to be an in-house counsel.’

Despite lacking oil and gas reserves, the country has managed to build a strong economic and commercial framework. Its business activities are varied: from the exportation of manufactured goods such as pharmaceuticals, to building a robust financial sector and promoting foreign investment in initiatives such as renewable energy.

‘The investment atmosphere in Jordan makes it easier for investors to come and establish their businesses here,’ says Dr Kamal Jamal Alawamleh, legal counsel at Arab Telemedia Group.

‘Overall, the legislation itself, the legislator and the close relationships which we have here in Jordan have made the country an attractive destination for investment.’

Despite an overall positive environment, legal ambiguities have made doing business in Jordan problematic at times. Combined with the introduction of a host of new laws and regulations, in-house counsel have had to ensure they remain at the forefront of what can seem like a constant stream of new developments. And, as Jordan continues to develop its legal frameworks, in-house counsel in the region will be exposed to a wider selection of business opportunities. As the push towards boosting investment and strengthening Jordan’s economy continues, the need for well-trained and in-house counsel stands to become even more essential.

A hard pill to swallow

In particular, the stability of the business environment in Jordan has been favourable in helping develop its export industry. Its main exports include textiles, potassium, phosphates, fertilisers and pharmaceutical products. Its main export partners include the United States, India and Saudi Arabia.

‘Jordan is a vital country in the Middle East. Although parts of the region have been hit by political instability in recent years, continued economic and population growth have continued to present some strong export opportunities,’ explains Yazbak.

One area where companies are capitalising on the strong export opportunities available in Jordan is the pharmaceuticals industry. Jordan is a leading pharmaceuticals manufacturer in the MENA region. A major international player in the industry is Swiss multinational company Ferring Pharmaceuticals – which bases its Middle East headquarters out of Amman.

‘Ferring decided to have their regional offices for the Middle East and Africa region based in Jordan over 20 years ago. We are based here for taxation purposes, marketing issues and for manufacturing reasons,’ says Yazbak.

In-house lawyers working in Jordan’s pharmaceutical sector are regulated by the Ministry of Health. The industry is also under the close supervision of the Jordan Food and Drug Administration. Having worked at Ferring for the last four years, Yazbak has overseen a range of legal and compliance matters.

‘I have been managing the compliance team for the whole Middle East area, which includes the Levant, Turkey, and Africa. My role is split into two parts: legal and compliance. On the legal side, I provide advice, guidance and legal interpretation to clients within our organisation,’ she says.

‘I also manage compliance across the region. One area where we need to provide specific advice is in relation to the “Sunshine Act” from the European Union.’

The legislation that Yazbak refers to strengthens the transparency obligations between pharmaceutical companies and healthcare professionals. The government of Jordan considers the pharmaceutical sector a crucial part of the economy. Ensuring the industry adheres to both local and international standards is fundamental in maintaining its status as a pioneer within the industry.

Cashing in

The Jordanian economy is highly dependent on its banking and finance sector. It plays an important role in fostering stability and boosting economic growth. One of the leading financial providers in Jordan is Citibank.

Al Shurbaji has been running legal operations at Citibank for the last four years, and has overseen a large portfolio of legal work.

‘My main responsibility is to provide local and cross-border assistance for legal. This means providing proactive, timely and accurate support to all of the departments and regional lines,’ he says.

‘Living in Jordan and working as in-house legal counsel can be a challenge, because you need to find a balance between building revenue within ongoing projects and protecting the entity at all times.’

Although this is a common challenge faced by in-house counsel, ambiguities within the Jordanian legal framework can make overcoming this more difficult.

‘Sometimes there is a lack of laws and regulations governing specific transactions, so you have to study the transaction very well and you have to advise in terms of your interpretation of the law or regulation. This is very challenging for legal counsel here in Jordan,’ says Al Shurbaji.

The government of Jordan has tried to combat legal ambiguities by introducing new laws and regulations. Over the last five years, in-house counsel working in the banking and finance sector have been at the forefront of major regulatory reform.

Al Shurbaji has overseen the implementation of new laws in areas including insolvency, bankruptcy and property law. With more regulatory changes expected in the future, in-house counsel working in the banking and finance sector require a sound understanding of what new laws mean in relation to the current legal framework.

‘The government is working on new laws and regulations which support the financial market here in Jordan,’ says Al Shurbaji.

‘When new laws are introduced or implemented in Jordan, you still need a solid understanding of what exactly the consequences of these new laws are – this is a real challenge we face here in Jordan.’

Investing in the future

The Jordanian government has also introduced new regulations supporting investment initiatives by local and national enterprises. Hajjat says the aim of the Jordan Investment Commission is to be a strategic partner to help facilitate international investment.

‘Jordan aims to attract, encourage and promote domestic and foreign investment to all sectors which are covered by investment law, which include industrial, agricultural, tourism, media, vocational and services industries,’ says Hajjat.

‘I work in the legal and policy studies department. With my colleagues, I work to develop a more attractive framework for investment. I review comparative studies among various investment laws and make recommendations aimed at improving Jordanian investment law.’

Legal advisers such as Hajjat are at the centre of improving regulations for prospective investors in Jordan. The Commission was formed in 2014 in an effort to stave off the prospect of corruption facing potential foreign investors, unifying what had previously been a disparate set of agencies.

‘It is important to ensure that we promote a sustainable and attractive investment climate, activate economic movements, enhance confidence, develop and organise the investment environment, as well as increase exports,’ he says.

‘Accordingly, all sectors were given the same incentives – with some extra incentives to the information and communication technology sector.’

The push towards boosting foreign investment has been particularly prominent with regards to sustainable and renewable sources of energy, with an aim to have 10% of all energy in Jordan sourced from renewables by 2020, as outlined in the 10-year National Energy Strategy.

‘We do not have an abundance of natural resources here in Jordan. I think one of the things that support Jordan’s economy is investment opportunities. We have a lot of projects related to solar and other renewable energy. These projects are supporting the industry here in Jordan,’ says Al Shurbaji.

Jordan’s renewable energy sector is developing quickly. According to the BloombergNEF Climatescope 2018 Index, Jordan is ranked as the third most attractive investment destination for renewable energy. Placing third out of 103 countries is a huge achievement for Jordan, explains Shurbaji.

‘I believe that new legislation, and continuous legislative developments in Jordan have played a fundamental role in this achievement,’ he says.

‘For in-house counsel in the region, this presents an opportunity to gain more exposure and work on different transactions. This is a very important point for in-house counsel, as more investment presents more opportunity within the Jordanian legal market.’

It's showtime

One area where new investment opportunities might come as slightly more of a surprise, is within the film and television industry in Jordan.

‘Economically, Jordan does not have oil or gas reserves. The only source of revenue it does have derives from within the Jordanian people and their efforts to improve,’ says Alawamleh.

Arab Telemedia Group is one of the most popular production companies in the Middle East. Established in 1983, the group is known for producing award-winning Arabic TV series and films. One of the main legal responsibilities as legal adviser of Arab Telemedia group is overseeing the registration of new scripts, says Alawamleh.

‘We protect against copyright by registering scripts with the relevant authorities. We buy scripts for different TV shows. As a result, we have to register these scripts with the National Library here in Jordan,’ he says.

With Jordan’s location in the heart of the Middle East, Alawamleh says that there are opportunities apparent in utilising the varied talent that ends up residing in Jordan, as well as catering for the tastes of an increasingly diverse population.

‘We have a lot of people who migrate and reside in Jordan, because we are on the border with a lot of countries that have a lot of problems,’ he says.

‘But, that means that different actors, contractors and producers now reside here in Jordan. Because they have been given residence here, they try to protect the way of life they have here and work to improve our industries. For our industry, this will eventually bring us different productions, new TV series, different techniques. The only way is up.’ n

Posted on

Joanne Fischlin, Microsoft

I was born and bred in Switzerland. I qualified in Geneva, then spent a couple of years in private practice before finding it wasn’t really my cup of tea. I moved to Ralph Lauren and spent close to four years at their EMEA headquarters.

The plan was to go abroad and work for Bulgari in Rome. That was my dream job. That didn’t happen, because I literally ended up on the road from Ralph Lauren in a fragrance and flavour company. I moved to Dubai with them as their EMEA general counsel, and between 2008 and 2012, the economic turmoil in Europe was terrible. I was spending more time with HR closing down plants than I did with the business. So, at some point, I said to my general counsel, ‘Please allow me to go and sit where business still actually thrives’. That’s what triggered the move to Dubai six years ago. I initially had a three-to-five year assignment, but then after one year, my group general counsel asked me to come back to Switzerland.

My husband and I were happy in Dubai and just one year of expatriation is not something that would have made sense in terms of career development either, so I moved to NASDAQ Dubai, then back to private practice to set up my business – high level in-house secondment. Around this time I also seconded for Microsoft, and then the person I was seconding for resigned and put my name forward, and I ended up getting the job.

I think the challenge in the tech industry is that the technology goes at a way faster pace than the regulation. What we see mostly is that governments are struggling to keep up. Sometimes they come up with what they think is fancy regulation but actually it just doesn’t meet the purpose, or it stifles innovation, or it just misses its target. So I think that the beauty of being in such a large organisation like Microsoft is that you’re actually spending this time on the advisory part, and you’re going to sit with governments to help them understand what type of regulation they should put in place, discussing how they should start thinking about those major disruptions that are going to come with the adoption of technology.

I think that what’s starting now – and will take a couple of years – is ethics in artificial intelligence, particularly responsible adoption of artificial intelligence. Because again, as one of the massive, hyper-scale cloud service providers and obviously key generators of artificial intelligence – powered tools, we have a massive responsibility to make sure that we sell that stuff to the right people, that we understand how the technology can be misused, and how it can put people out of jobs. Because all of those questions are driven out of the legal function at Microsoft, we have a huge role to play in terms of making sure that our customers are looked after, because every business is becoming a digital business.

I think that what one needs to understand is that you can’t be arrogant and think that you’ve figured it out. Nobody has, and it will take the brainpower of a lot of different people in a lot of different areas to actually get that right. So, we do rely on a lot of external resources, but we also, I think, try to put our neck out there and put forward solutions where we think that is the best approach to make sure that the technology doesn’t go south. n

Posted on

The imagination gap

‘… the more human activities disrupt the climate, the greater the risks of severe, pervasive and irreversible impacts for people and ecosystems, and long-lasting changes in all components of the climate system.

… we have the means to limit climate change and its risks, with many solutions that allow for continued economic and human development. However, stabilizing temperature increase to below 2°C relative to pre-industrial levels will require an urgent and fundamental departure from business as usual. Moreover, the longer we wait to take action, the more it will cost and the greater the technological, economic, social and institutional challenges we will face.’*

*IPCC [Intergovernmental Panel on Climate Change] 2014: Climate Change 2014: Synthesis Report. Contribution of Working Groups I, II and III to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Core Writing Team, R.K. Pachauri and L.A. Meyer (eds.)]. IPCC, Geneva, Switzerland, 151 pp.

Rising temperatures and sea levels, shrinking ice sheets and sea ice, extreme weather events. They’re all mainstays of today’s news cycles with a worrying – and intensifying – frequency.

‘The more you read about the shape of our planet and the state of our biodiversity, it’s inevitable that you become concerned, it’s inevitable that you want to do something. The only way I think you can exist nowadays in an unengaged way, as a non-activist if you will, is by shutting yourself off completely from all this information,’ says Jasper Teulings, general counsel of Greenpeace International.

But concern no longer lies solely with environmental organisations. Hand in hand with alarming predictions for food and water supply, health and the survival of masses of animal and plant species constitute a range of potential – and in some cases, current – shocks to the global economy, financial systems and corporate world.

In September 2015, Mark Carney, governor of the Bank of England, gave a landmark speech to Lloyd’s of London in which he detailed the ‘mega risk’ to financial stability that climate change poses. Carney laid out what he called ‘the tragedy of the horizon’ – the implications for carbon emitters and extractors, insurers, investors and other actors of failing to take a longer-term view:

‘The horizon for monetary policy extends out to two-three years. For financial stability it is a bit longer, but typically only to the outer boundaries of the credit cycle – about a decade. In other words, once climate change becomes a defining issue for financial stability, it may already be too late.’

He identified three ways in which climate change could disturb financial stability:

‘First, physical risks: the impacts today on insurance liabilities and the value of financial assets that arise from climate- and weather-related events, such as floods and storms that damage property or disrupt trade;

‘Second, liability risks: the impacts that could arise tomorrow if parties who have suffered loss or damage from the effects of climate change seek compensation from those they hold responsible. Such claims could come decades in the future, but have the potential to hit carbon extractors and emitters – and, if they have liability cover, their insurers – the hardest;

‘Finally, transition risks: the financial risks which could result from the process of adjustment towards a lower-carbon economy. Changes in policy, technology and physical risks could prompt a reassessment of the value of a large range of assets as costs and opportunities become apparent.’

When facing down the physical, investment, regulatory and transition risks inherent as the world adjusts to the reality of a changing environment, lawyers are situated at the heart of corporate, government and regulatory life, and are therefore uniquely situated to support and deliver the systemic change likely to occur.

Teulings is clear about the value lawyers can bring to the climate change table:

‘What is required for us to effectively combat climate change is a systemic change, and a lot of lawyers are in very influential positions in very influential companies, and in government positions – and that’s where they can contribute to the systemic change that we need,’ he says.

‘In terms of government roles, it means supporting regulation that reduces our emissions and supporting any form of regulation that speeds up the energy transition that is needed. Also, I think it’s about shifting money that is currently still in a disproportionate amount invested in fossil fuel infrastructure or exploration and development. There are still more subsidies going into fossil fuels at the global level than into renewable energy. That’s bizarre.’

James Thornton, CEO of ClientEarth – a charity composed of lawyers and environmental experts who use the law to hold governments and other organisations accountable over climate change, nature loss and pollution – is also passionate about the importance of legal professionals, especially those in-house.

‘General counsel are among the most important actors in the whole financial system in moving society towards proper action about climate change,’ he says.

‘Because of their trusted position as advisers to senior management and boards, they are in a remarkable position to say, “I’ve understood the legal implications of the financial risk of climate change, and here’s how we need to manage for them”. They can either be enablers or blockers.’

But work remains to be done to translate an awareness of climate change risk into readiness for it. Earlier in 2019, the Dutch Association of In-House Counsel (NGB), in conjunction with Dutch law firm Houthoff, approached nearly 3,500 in-house counsel. Despite nearly half of respondents claiming to see climate change risks, only around 15% said they were ‘prepared’ or ‘very well prepared’ for them. In addition, only 7% of them saw themselves as a ‘pioneer’ within their organisation in this area (figures taken from Climate Change and the Role of the In-house Counsel, Houthoff).

Some corporate counsel find themselves in a different set of circumstances, however. For those lawyers, climate change is such an inexorable fact that their organisations have made a mission statement out of avoiding it, building the company around products or services that aim to fight it.

Bills into mills

Ecotricity is one such enterprise. Founded in 1996, it was the world’s first green energy company, and it generates a substantial amount of its supply of green energy rather than buying it on the market. The company builds its own generation assets, like wind turbines and solar parks, supplying electricity and gas to around 200,000 domestic and business customers.

Ecotricity has irons in many (fossil-free) fires, including a wind turbine manufacturing and maintenance company called Britwind, and Ecotalk, a green mobile deal that uses customers’ bills to buy land previously used for intensive farming and turn it into havens for nature. Last year it launched a vegan food company, Devil’s Kitchen, which supplies plant-based food to schools and colleges around the UK. Ecotricity also established and now runs one of the UK’s largest electric car charger networks.

‘That’s part of our ethos,’ says head of legal, Elspeth Vincent. ‘Bills into mills: whatever we receive by way of income, it’s ploughed straight back into all kinds of green initiatives, including building and maintaining renewable assets in order to power green electricity into the grid.’

‘We’re taking the plants directly and turning them into meat.’

Unusually, the company also has its own professional football club: Forest Green Rovers. The club has electric car chargers, solar panels and even a solar-powered robot lawnmower. In 2018, it was presented with a ‘Climate Neutral Now’ award by the UN.

‘There are three principles that we hold as core to our business as being as green as we can be – food, transport and energy, and the football club has those aims at its heart as well. The pitch is organic, and the food is all vegan, which can be quite contentious sometimes for your average football fan that comes travelling here,’ says Vincent.

Outside of sporting greatness, Ecotricity’s goal is to find new ways to bring the green agenda to business and commerce. But cuts to renewable subsidies in the UK pose a challenge to the company’s asset-building model, because despite falling costs for producing wind and solar power, the scale at which viable projects need to be built can be prohibitive for operators, amounting to what Vincent terms a ‘harsh renewable landscape’.

Every little bit helps

Corporate counsel supporting companies with a green mission have an obvious role to play in battling climate change, and for those who want to contribute to environmental sustainability in the most direct way, the time is nigh, as many companies are innovating solutions in a wide range of sectors.

‘There are increasingly a lot of interesting companies out there that are attracting investment and having success with building more sustainable ways for us to conduct ourselves as a civilisation – whether that’s our dietary practices, our energy sources, our transit systems – that need good lawyers to help them succeed. Of course, companies don’t have a monopoly – there are regulatory organisations and non-profits – and if you’re interested in working in this field it is probably the best time in recent memory to go out and find an interesting opportunity,’ says Wagner.

But even for legal departments in companies without a direct green mandate or involvement in regulating those that do, there is scope for making changes to reduce adverse climate impact. Reducing paper use, rethinking policies for corporate travel, investment in technology and providing pro bono advice to NGOs or non-profits can all have an impact, as can ensuring that the company is aligned with the UN’s Paris Agreement on climate change.

At Ecotricity, Vincent raises the idea that companies could use their buying power to encourage external providers of legal services to take a supply of green energy – in much the same way as corporates often use the power of the purse to encourage diversity among panel firms.

‘I actually heard this from another GC at a conference, and it really made me think. It was a much bigger company than Ecotricity, with a far greater panel of law firms, and therefore the ability to choose competitively was at their fingertips a little bit more,’ she recalls.

‘But when they were asking law firms to provide a proposal, one of the deciding criteria for whether or not they would get the job was whether they procured a supply of green energy for their building.’

‘If we are continuing to be a renewable developer – a company that invests in a green economy – then that comes with a degree of innovation. As a legal team, we have to be live to that – we have to be able to understand difficult technical concepts and difficult commercial prospects that haven’t necessarily been done before,’ she explains.

‘That comes with a very novel approach to commercial contracts or to understanding long-held legal principles, and then bringing them into a new framework for a different kind of technology or a supply of electricity. You have to be fleet of foot.’

The legal team supports the company in putting its mouth where its money is, lobbying on climate issues and partnering with organisations like Extinction Rebellion and anti-fracking campaigners. Most recently, evidencing concerns about the climate risks of a no-deal Brexit, the company’s owner and founder, ‘Dale Vince’, was seen in the Scottish courts alongside others seeking to compel the UK Prime Minister, Boris Johnson, to comply with the Benn Act and send a letter to the European Council requesting an extension to the Brexit date or to authorise an official of the court to do so.

Scaling the impossible

In the US, California-based Impossible Foods is trying to solve the climate conundrum from a different perspective. Pat Brown, a Stanford biochemist, set himself the challenge of finding the most important problem facing the world that he could solve with science. He came up with climate change – and took a novel approach. Brown recognised the impact that human appetite for meat was having on resource consumption, fresh water use and greenhouse gas emissions, but that climate change alone was not convincing large enough numbers of people to switch to a plant-based diet. He set about using his skills to create ‘meat’ made from entirely plant-based ingredients. The company’s ground beef analogue and its ‘Impossible Burger’ have been available in restaurants since 2016 – counting the likes of Burger King among its customers – and recently went on sale in retail outlets. The company eventually aims to launch plant-based versions of a full range of meat, poultry, fish and dairy.

‘It is an animal-free product, but it is meat chemically and in terms of its content, just instead of feeding plants to a cow and having it break them down, we’re taking the plants directly and turning them into meat,’ says chief legal officer, Dana Wagner.

‘We wanted to create food from plants that satisfies people’s existing tastes rather than asking them to change their tastes.’

As such, Impossible Foods has set itself a substantial task – persuading meat-lovers that a plant-based product can be as satisfying as an animal one in terms of flavour, texture, and nutritional content. But Wagner believes that, despite the ongoing R&D challenges, the potential for iterating its products to improve on nutritional content is a big advantage in the long term over animal-based foods.

‘The cow doesn’t really change very much and its product hasn’t really changed for thousands of years. Earlier this year we released the second-generation version of our burger product and we were able to the reduce levels of saturated fat and sodium and increase the protein. We can optimise and use science and technology to make an even better item of food,’ explains Wagner.

But tinkering with one US cultural icon – the hamburger – has led to a confrontation with another: the cowboy.

‘Last year there were a number of initiatives at the state level in the United States led by various cattlemen organisations to restrict how plant-based foods may label and market themselves to consumers – they were trying to restrict, among other things, the use of the word “meat”,’ says Wagner.

‘We certainly think that definition was at odds with the English language and the idea that people would be confused into thinking a plant-based meat came from an animal are very low – companies like ours are loud and proud about the fact that no animals are involved; that’s our selling point to consumers, actually.’

On the regulatory side, thus far, things have been smoother. As developers of entirely plant-based foods, the company sits comfortably within existing food regulatory frameworks, unlike cell-based lab-grown ‘clean meat’, which has faced more regulatory uncertainty.

The armour, the sword and the shield

But some organisations are involving their legal teams in a targeted way, weaponising the law in the fight against climate change. One such entity is Greenpeace, an NGO well known for direct action on environmental issues, as well as its lobbying and investigative work. Greenpeace International is the global governing body for the organisation’s 26 national and regional organisations, and has an 11-strong legal team of barristers offering support to their local activities, led from Amsterdam.

As with any organisation, the legal team acts as Greenpeace’s ‘armour’. This means ensuring compliance with local regulations in areas such as charities law, tax, IP, governance and labour law.

‘We can optimise and use science and technology to make an even better item of food.’

‘In order for us to be the risk-taking organisation that we like to be, we need to ensure that we’re compliant, because that’s an expression of our core values,’ says Teulings.

‘But it is also necessary because we know that as a campaigning organisation, we’re often subjected to additional scrutiny.’

In addition, the team functions as the organisation’s ‘shield’, dealing with reactions to Greenpeace campaigns.

‘All of those actions are covered by fundamental freedoms such as free speech and freedom of association and assembly, but sometimes they trigger responses from either governments or corporations in the form of disproportionate penalties and sanctions imposed on activists and activism, such as “SLAPP” suits – strategic litigation against public participation,’ Teulings explains.

An example of the ‘shield’ in action is the case of the Arctic 30: 28 Greenpeace activists and two journalists who sailed through Arctic waters in 2013 to protest against a drilling platform operated by Gazprom. Russian authorities boarded Greenpeace vessel ‘The Arctic Sunrise’, detained those onboard and transported them to Russia, where they were remanded in custody and charged with piracy, later converted to hooliganism, before being freed two months later. The Dutch government successfully sought an order from an international tribunal arguing that the matter was a violation of the international Law of the Sea, and a declaratory judgment that the Russian authorities had violated international law.

‘We collaborated intensively with the Dutch government and provided full information at a very detailed level on what happened, and we made our own submissions in those proceedings,’ says Teulings.

‘As a result of that, the right to peaceful protest at sea in those two rulings was recognised, advanced and secured in international law. That’s a way you could say that a strategic defence to a disproportionate response to our campaign activities can actually be used to advance fundamental rights – and that’s exactly what the shield is about.’

‘Strategic litigation can have an impact that goes well beyond national borders.’

The ‘sword’ refers to supporting strategic litigation to further the organisation’s activism on climate change and biodiversity. Greenpeace commissions scientific research, at times using it to bring litigation – often in partnership with academics or other NGOs – such as People vs Arctic Oil. In this case, Greenpeace Nordic and Nature and Youth, another NGO, brought a constitutional challenge against the Norwegian government arguing that the licences it had granted for further oil and gas exploration in Arctic waters violated not only Norway’s own constitution, but also its obligations under the UN’s Paris Agreement on climate change.

‘In the first instance, the Oslo District Court ruled in favour of the Norwegian government – it did recognise for the first time that the right to a healthy environment is a claimable right with teeth, but it found that the government had not violated this right. The case has been appealed and the appeal will be dealt with this Autumn, so that’s clearly a priority for us,’ says Teulings.

Another example is the matter brought by Greenpeace Philippines and local organisations before the Philippines Commission on Human Rights, following loss of life during Typhoon Haiyan in 2013. The Commission was asked to investigate the responsibility of fossil fuel companies in contributing to the devastation. The investigation has been completed and a report is awaited.

‘Strategic litigation can have an impact that goes well beyond national borders, and I think this case is expected to have a similar impact,’ says Teulings.

‘Even though it won’t lead to an enforceable claim for damages against these companies, it will hopefully constitute a key building block in the further building of creating climate accountability at the global level.’

Strategic cases like these, he explains, ‘inspire other organisations, they inspire judicial audacity – and that’s the level of audacity that’s needed to tackle this global problem.’

Wielding the sword

Perhaps no one knows more about strategic litigation than ClientEarth – and founder James Thornton (himself a lawyer) is passionate about the potency of pursuing legal avenues in climate issues. He first came across environmental lawyers when editing the Law Review at NYU School of Law.

‘In my third year, one of my colleagues came in and said, “James, I’ve just done a clinical programme with this group of environmental lawyers, NRDC [Natural Resources Defense Council, a US-based non-profit].” So then I did a clinical programme with them, and I saw that they were working to the highest legal standards and that this was a new idea – to have lawyers use their skills to protect the environment.’

After qualifying, Thornton worked on Wall Street for a while, before working for NRDC full time. But nowadays, his organisation has only one client, the Earth.

‘Lawyers have an absolutely pivotal role to play in the climate fight. Law is the first language of governments and business. Campaigning and mobilising public opinion is key to persuading the courts of the public mandate to act,’ he says.

‘But, ultimately, it is the patient, painstaking work of lawyers that identifies wrongdoing, finds the right legal lever, and brings about positive change by compelling compliance in court.’

ClientEarth uses scientific research to develop policy, and then lobbies institutions like the UK, Polish and European parliaments to turn policy into law, battling subsidies to fossil fuel industries and working towards legislation that gives incentives to renewable energies. Crucially, it mobilises its repository of legal experience to help enforce that legislation.

‘Litigation is very important because it’s a way of sending powerful signals to vested interests who have never been challenged before successfully. It’s also a very powerful way of getting governments to comply with their own laws,’ says Thornton.

In 2018, for example, the UK’s High Court found against the UK government in litigation over air quality in 33 towns and cities, ordering the government to force these local authorities to deal with illegal pollution levels.

‘In a real way [the UK government] are doing it – too slowly – the steps that will lead to cleaner air, which they clearly never would have done without the order. And we’re doing this in more than ten countries across Europe, so we’re holding the governments across Europe to their own commitments, their own legal duties,’ says Thornton.

Outside Europe, Thornton has advised members of the Chinese Supreme Court, congress, legislature and the Ministry of Ecology and Environment in connection with the development of a pioneering law allowing Chinese environmental NGOs to sue polluting companies, and training of environmental court judges and prosecutors.

For Thornton, it’s all about using lawyers to make, enforce and change the rules if necessary – sometimes in creative ways. In its case against Enea, co-owner of a project to build a new coal-fired power station in Poland, ClientEarth bought shares in the company and commissioned financial analysis used to present concerns at a shareholders meeting, demonstrating that the investment was flawed. When the project proceeded anyway, the organisation brought a successful shareholders suit.

‘When it comes to climate change, or environment more broadly, for general counsel, the questions are: what should I tell my CEO? What should I tell my board of directors? What sort of duties do we have? People have been saying we should do the right thing, but nobody has been saying this is actually a fiduciary duty and if you make the wrong decision, you’ll be liable for it. We think this should become the turning point, when general counsel are able to say, look, climate change equals financial risk, which equals fiduciary duty, which requires you to manage for the risk. And if you start managing for climate change risk, you think about it in a very different way,’ says Thornton.

Thornton believes that the next challenge for in-house counsel is to bridge what he calls the ‘imagination gap’:

‘It is one thing to accept the proposition that climate change risk triggers fiduciary duties. But what does that mean for you when you go to work on Monday morning? What does it mean when you advise the directors on a Thursday afternoon? How do you move down from the abstract principle to the detailed advice?’

Translating the abstract into the concrete is the very raison d’etre of lawyers. And if more of them, be they in organisations with a mission to combat climate change or not, begin to apply this skill – the results could be world-changing.

Posted on

Getting a work out: agile in in-house teams

Business is full of buzzwords, and among the buzziest of the last few years is ‘agile’.

The traditional project management approach is ‘waterfall’. But, in contrast to the dynamism of the term, the waterfall process can actually be quite rigid. After a long period of requirement gathering and planning, the project is developed in a linear way, journeying through multiple phases and functional silos. A final product is delivered after an often lengthy process, perhaps measured in months or years, but with little opportunity for adaptation once the process has begun.

‘It is difficult to adjust and change anything mid-course, it is very difficult to adapt if customer needs change, for instance,’ explains Carine Simon, senior lecturer in operations research and statistics at MIT Sloan School of Management.

Enter agile – an alternative approach to project management that was crystallised in 2001, when a group of software developers agreed upon the Agile Manifesto. It strives to build in flexibility as customer requirements evolve, and provide more opportunity for managing expectations.

‘It’s taking large, complex problems, breaking them down into smaller increments, then prioritising those increments based on relative value. As they’re completing pieces of work, agile teams are soliciting customer and stakeholder feedback along the way, so they can adapt accordingly,’ explains Will Poindexter, leader of Bain & Company’s technology and agile innovation practices in the Americas.

Agile works in iterations – or ‘sprints’ – in which teams undertake short, focused bursts of activity – perhaps as little as a day or as long as a month – each resulting in a new version of the product. This ‘minimum viable product’ can be tested and reviewed by the client on a regular basis, and adjustments easily made without wasted work.

The team assigned to a sprint is often called a ‘Scrum team’, led by a product manager or owner and, crucially, it is cross-functional – in contrast to the waterfall process, in which working sequentially through separate departments can make communication a challenge.

Working in this way, says Poindexter, not only increases the likelihood of the project’s success by as much as four to six times, it speeds up the process of getting a product to market, and instils more motivation, engagement and satisfaction into team members.

‘There’s much more ownership given to the team, and the fact that it’s cross-functional means that communication and knowledge barriers are broken down,’ says Simon.

To be agile, or not to be agile?

Over the past five years, agile has moved out of the realms of IT, with partial or even wholesale adoption in fields and functions as diverse as marketing, construction and manufacturing.

Having seen agile working first-hand during her time in the corporate strategy team at Liberty Mutual, Carine Simon believes there are no obvious drawbacks to the approach other than the necessity to get buy-in and to train people on how to work in an agile mode. But that doesn’t mean it’s for everyone. If a task doesn’t typically see a lot of waste – for example, if work does not need to be repeatedly tested or redone, client feedback is not an important component, or if changes to the deliverable are easily made – then the iterative components of agile might not add much value. Also less prime for agile disruption, Simon says, are heavily regulated areas where the opportunity for rethinking might be stymied by the necessity of baking in non-negotiable elements of compliance.

‘Agile is not a Swiss Army Knife; it should be a tool in your toolbox versus the tool that you apply to every single problem,’ says Poindexter.

Agile teams are soliciting customer and stakeholder feedback along the way, so they can adapt accordingly.

He has found it best suited to highly innovative, customer-centric organisations where speed to market is paramount; organisations looking to break out of creeping bureaucracy; or those looking to ‘change-the-business’ functions – such as technology, product development or marketing – rather than ‘run-the-business’ ones, like legal. But if businesses adopt agile in a partial way without at least fostering an awareness among the latter functions, bottlenecks can arise. For this reason, during an agile roll-out, Poindexter often works with legal teams to build an understanding of agile and identify opportunities to harmonise across the different delivery methods.

‘One example in legal would be: can I create guardrails that we can work within from a legal perspective, and when things start to bump up against those guardrails, that’s where agile teams need to pull someone in from the legal team to help advise. It allows them a certain level of autonomy within the guardrails, without having to slow them down so that every time there’s something from a legal standpoint they have to go and look for help. That’s one way we work with “support and control” functions to help them adopt an agile mindset, even though the legal team may not be running sprints and fully shifting to an agile model,’ he explains.

But Simon sees some potential for direct agile application in legal teams:

‘If there would be a benefit to having the customer see multiple early versions or drafts of the contract and give feedback in an iterative fashion, if there’s a lot of interdependencies between different parts of the contract, such as changing one thing at the end would cascade to changing multiple parts of the document, then that would be an area where having an iterative agile process might help,’ she says.

And some corporate legal teams are seeing for themselves just how using agile methods can transform service delivery.

Sprinting to the finish

At pharmaceutical and medical device company B. Braun group, the legal team has reorganised into task-based teams, utilising Scrum, digital Kanban boards – charts that help teams to visualise and maintain workflow in terms of tasks to be done – and other collaboration-enabling software.

‘Before, each person was responsible for their areas of responsibility and, although there was interaction between each other regarding different topics, everyone was more working individually. Now, we are working more and more in teams, solving problems together,’ says junior legal counsel Vanessa Weis.

At B. Braun, a Scrum team might be composed of people with knowledge of a topic, and another who is a complete outsider, bringing a level of neutrality and objectivity to a sprint.

‘This person sometimes has the best ideas. It’s like the saying “You cannot see the wood for the trees” – sometimes that’s really true. I think we have got more open-minded on topics, and share more thoughts, even if it’s not our responsibility. We are sharing topics and responsibilities we have,’ Weis adds.

The Agile Manifesto

We are uncovering better ways of developing software by doing it and helping others do it. Through this work we have come to value:

  1. Individuals and interactions over processes and tools
  2. Working software over comprehensive documentation
  3. Customer collaboration over contract negotiation
  4. Responding to change over following a plan

That is, while there is value in the items on the right, we value the items on the left more.

© 2001-2019 Agile Manifesto Authors

The team’s sprint approach has brought efficiency to the process of problem-solving by concentrating the efforts of the Scrum team into focused sessions – stripped of distractions such as phones or other meetings – that might last two or three hours, or even days depending on the size of the task.

‘We want to solve that problem during these hours or these days, and not work on it for weeks or for months, never getting things ready. In the past, someone would start a project and then you would be working in weekly or monthly project meetings,’ says Weis.

Opening minds

Gerd Pleuhs, general counsel of multinational snack company Mondelēz International, has organised his legal team into ‘centres of excellence’, which operate on a global basis. When local issues arise, these teams can quickly organise to collaborate with local business units, providing advice and training without the need for legal resources deployed permanently in each jurisdiction.

‘I think it creates a very trustful relationship with the finance side of the business, because they can see that it is a very efficient way of how you organise yourself and how you lower the cost of the service delivery while actually improving the quality,’ says Pleuhs.

The Mondelēz legal centres of excellence are grouped around subject areas – marketing, social media, data privacy and corporate governance – and so are perhaps not cross-functional in the strictest sense. But Pleuhs has found that the challenge of working flexibly across a full range of geographical jurisdictions exposes team members to cross-curricular problem-solving.

‘If you look at the traditional career development, you’re growing up in a department in your area of expertise over time. Now, with agile teams, what changes dramatically is the scope of work that you’re exposed to. You can have experiences which are completely different compared to the on-the-job experiences you have if you only focus on one geographical area or one subject,’ he says.

‘It changes the work for the individual involved and it becomes by far more interesting and colourful. If you are working in an agile team on resolving project X, once it’s done and you move on to the next one, it’s completely opened up a new chapter of your professional life. You’re building your own career and capabilities. You get more and more qualifications that then qualify you to become a more and more trusted and valued adviser within the company.’

Just add liquid

Global digital solutions provider Avanade, a joint venture of Microsoft and Accenture, has applied agile methods since 2011 and claims to employ more scrum masters than any other organisation in the world. The legal team has been no exception, plugging in and creating what general counsel David Oskandy calls a ‘liquid workforce’. Team members have a specific set of skills, often in core areas such as commercial and intellectual property law but, by virtue of working in an agile way, many have developed a sub-level of expertise.

For Avanade, the liquid workforce translates to a team of 60 lawyers working globally, enabled by a digital platform where team members can request assistance or pick up work, easing handover and communication across time zones. Some proponents of agile, like Poindexter, have found that co-location is important to productivity, but recognise the reality that this isn’t always feasible given globally dispersed teams, and that technology such as video conferencing can help bridge the gap. And, as cutting-edge technology shrinks distances, Oskandy believes that both skills and collegial bonds can flourish across borders.

‘Roughly speaking, 50% of our lawyers are playing a cross-border or global role. They can become really familiar with a new legal system, with perhaps a different area of law than they’re used to practising, and this is something that my team members tell me is life-changing for them, because [in the past] so many lawyers have been confined to or pigeonholed to the role they were hired in,’ says Oskandy.

Avanade’s legal team also creates thought-leadership taskforces – to prepare for GDPR, for example.

‘The task forces are visibly expanding the roles and responsibilities of many, if not most, of our lawyers. They’re building themselves into bigger profiles, both substantively and in terms of leadership. They’re getting more visibility within the company because they’re able to advise on areas that previously they felt were off limits to them. It enhances their career within the company and within the industry overall,’ says Oskandy.

The liquid workforce: Avanade’s application of agile methodology

‘The liquid workforce has allowed us to handle a 26% increase in master service agreements – the basic kind of operating arrangement with our clients – as well as developing new offerings, new alliances and enhancing our ability to keep up with new laws and trends. This last aspect is really important in our space, with greater rigour over data privacy and data protection laws as the legal field catches up to technology in terms of the requirements of complying with industry.

It has allowed us to lead the company as well. The best example is that we were at the forefront of developing our position on digital ethics. We set up a framework, put together a cross-functional taskforce and we’ve developed a point of view on digital ethics. Thought leadership is a really critical component in our company and I think this is pervasive in the tech industry. Technology changes so very fast – we notice big changes once every three months. You’ve got to be as swift as those changes to stay ahead of them, and this model encourages our lawyers to do that.

A knock-on effect of the liquid workforce is that we’re more readily leveraging offshore resources, contractors, interns and bots. That set of resources for lower-risk work has enabled us to purify our time and maximise our focus on the highest risk and highest potential.

The liquid workforce makes us congruent with the day-to-day culture of the business. Because we understand and operate with agile as a legal team, we speak the same language and we have the same muscle memory as the business, which I think is really important in terms of keeping up with them and maintaining credibility with them. We’re well integrated with the business team, we’ve got a bigger voice, and this allows us to participate in developing strategy, which is a bigger role for a lawyer than simply acting as the problem solver or the risk manager.

The feedback that I’ve gotten back from the CEO and the rest of the business is “highly efficient” and “productive”. They recognise that we have really transformed ourselves into the highest value-add team that we possibly could create.’

But an organisational style that invites frequent changes of scenery – be it changes of project or jurisdiction – requires a certain flexibility in the mindset of recruits.

‘What we are looking for is people who are more willing to be a generalist than a specialist. You still need the specialists and subject matter experts. But in dealing with the general kind of work that a company of ours has to manage on a daily basis, you want to have people who are curious, who want to learn, who want to build a career on making an experience in different parts of the law in order to become a more rounded lawyer,’ says Pleuhs.

Are you a believer?

There is no doubt that deciding to implement agile requires full commitment from the top to the bottom in order to make a success of what is, unavoidably, a substantial change management effort.

‘To really bring people with you in this effort, to convince others and sustain your own energy in the persistence and insistence you need to make this happen, you’ve got to be a true believer,’ says Oskandy.

‘With agile teams, what changes dramatically is the scope of work that you’re exposed to.’

At this point, many readers might look away, thanks to the received wisdom that the legal mindset is not always best adapted to changes of process.

‘In the beginning, I really struggled with how much time it took to convince people and how much investment you have to make in the process to convince folks to join you on that journey. There’s a fear coming with it because you have to give up certain things and invest in certain other stuff,’ says Pleuhs.

‘If I give my knowledge to an agile working group, I have to be willing to not spend time on stuff that I used to do and rely on my colleagues to help me get those things done. And that is a little bit of a learning curve – you have to let the trust build in the system and that it works.’

Being agile about being agile

As with other organisational change management projects, a good way to create buy-in can be to do a ‘proof of concept’ – identify suitable teams or functions for a pilot, and then use success to develop advocates who can sell the idea elsewhere.

‘It might be a little meta, but have an agile way of implementing agile, so it’s not all areas of the company at once, it’s iteratively starting where it makes more sense,’ says Simon.

‘We have seen some organisations that have tried a “big bang roll-out”, and they are big and flashy and they make headlines. But the results really tell a different story. What you find is it creates a lot of disruption and a lot of churn,’ adds Poindexter.

On the functional level, a gradual approach can be a good rule of thumb, too. Oskandy’s legal team, for example, deployed agile initially in the Nordic region, then extended across the globe following a successful transition.

Being iterative might also mean listening carefully to the experiences of those on the frontline.

And being iterative might also mean listening carefully to the experiences of those on the frontline – even if they’re not customers.

‘When we started to use the different agile methods, a lot of people were sceptical. But [B. Braun general counsel] Dr Daum said, “If it’s not working, then that’s also fine. But let’s try this.” That was a really good beginning, because all the time we had the feeling we could say “It’s not good for us, it’s not helping, it’s time-consuming,” recalls Weis.

This reassurance was instrumental in winning over doubters, in part because it allowed for no-strings experimentation, which then revealed the methods most likely to enjoy greatest longevity in the department.

‘At the beginning we did a lot of sprints, because we wanted to try that out, and maybe we will decrease the amount of sprints in the future. In any case, we will keep using sprint, Scrum, the Kanban board, as we learned that we can organise our work efficiently using these methods. That’s a very good outcome, because at the beginning a lot of people were doubting that this could be a good approach. Now more and more people are convinced,’ she says.

The Mondelēz team took a similarly democratic approach to developing the vision for its future legal function.

‘What normally happens in an organisation with a more traditional mindset is you take the leadership teams and maybe their direct reports, and then you have a conference. We’ve been embarking on a different journey. We bring together teams from across the globe at different levels of hierarchy – so it’s not only the leaders, we have highly talented people who are somewhere else in the department, very junior people assigned to certain jobs. We get together in a facilitated environment for three days and try to hammer out a plan, which then we will present and implement to the entire department,’ Pleuhs explains.

‘Rather than “leaders are imposing it on me”, we have people who are “one of us” working on it – and they are wonderful ambassadors to implement what they have helped to design. I believe it is one way to really motivate a small group for the benefit of the entire department.’

Selling the value proposition

None of this is to say that the role of the leader should vanish in a fog of self-organisation – although those with very top-down, detail-oriented leadership styles might perceive team empowerment as loss of control.

‘We’ve seen a number of agile efforts that have not reached full potential because the leadership didn’t change their behaviours. I think it’s important to get the leadership on the same page with the actual team in terms of what are we trying to accomplish, what do we need to change?’ says Poindexter.

‘I think agile allows leaders to actually focus on what they should be doing, which is setting strategic direction, freeing up resources to actually work on the highest priority things, and removing impediments so that their teams can be productive.’

Oskandy agrees that the leadership is fundamental in supporting cultural change.

‘The value proposition has got to be right in order for people to really buy into it. But that’s a big learning – you’ve got to have that growth and mindset firmly in mind to encourage people to take steps beyond their core role, which they are very comfortable in. You’re requiring more time from them, more effort, more thought, more bandwidth,’ he explains.

Avanade works with Scrum.org, founded by software developer and consultant Ken Schwaber – one of the original Agile Manifesto authors – and has access to 2,000 trained Scrum professionals plus 60 agile coaches. It also conducts training on a continuous basis, often with immediate practical application baked into the process.

‘The lead on a task force will also be the lead for the agile-based training and it’s a very interactive methodology. They’ll set aside a specific time, ideally in person but quite often virtually, and create space for people to go through that process together. The training embeds itself so much more effectively when you’ve got people engaged not only in learning something really substantive, but also how we are going to deploy this,’ explains Oskandy.

‘You’re incorporating planning and giving people the opportunity to become part of that process, so they’re learning something new substantively, but they’re also contributing as they’re learning to how do we set this up for the company, how do we train others, what is it that other people need to know, and how do we communicate this? It’s all part of one effort.’

Carine Simon believes that getting team buy-in for agile methodology outside of the software development sphere might soon be a problem of the past, as new graduates without preconceived project management ideas enter the job market.

‘Then it becomes a much more natural way of doing work – it’s not like a big change where people switch from one mode of functioning that they’ve done for the past 20 years to a new mode. I think agile may become the new project management technique that is part of the standard toolbox of graduate students,’ she says.

Agile might not be for everyone, but some legal teams are deciding that it is – and if other business units have already walked the same path, it could be a critical tool for establishing a common language, common ground – and credibility.