When I moved in-house around 20 years ago I knew I wanted to work in the IT industry. The pace of change made it the most exciting place for a lawyer to work, and I have been in the front row ever since. While many of the business technologies we use on a daily basis have evolved rapidly, the technologies enabling support functions have been much slower to take off. Until now.
Onboarding legal tech used to be a matter of trial and error. The technologies on offer felt like a solution looking for a problem, and while there was a lot of interest surrounding legal tech it was difficult to make a concrete use-case for what was available. In the last few years, new systems for contract management and document discovery have appeared on the market and are now extremely helpful for in-house legal teams.
These improvements have little to do with technological development – after all, similar systems have been available to businesses for many years – they result from the growing recognition in-house counsel are a viable market for software vendors’ products services. With the growing economic significance of in-house lawyers as a consumer group, the market has finally moved to develop solutions that meet our needs, which are very different to those of law firms.
For in-house lawyers technology has to be easy to use. It needs to work with other systems and align with existing work workflows, and it has to give functionalities that are fit for purpose. All this needs to be backed up by high-levels of support in terms of training and other assistance. In short, in-house lawyers are not looking for off-the-shelf solutions, we are looking outcome-oriented vendors who are able to work collaboratively to meet our needs.
This collaboration needs to begin at the concept and design stage of a piece of software. Knowing the pain points GCs face, or what does and does not work within a typical company environment would help a great deal in making a system that is fit for purpose. For GCs, the price of a system is not just the cost of the license fee. It is also the time spent customising the software, the effort that goes into implementing the software, and the change management and project management requirements that come with it. We have gone through this cycle many times in the past, so we are extremely aware of it.
At all large businesses the legal team works in an ecosystem. This means when we are purchasing external legal tech, we are looking for products that can scale out. Contract management tools, for instance, can be used for other things. That makes a huge difference in terms of bang for your buck. We are really looking to leverage company-wide platforms.
The other big development I have seen in the legal tech space is a growing awareness among GCs that they need to take control of their team’s transformation. Legal tech is not always about finding external solutions. Often, it is just as important to look within. Currently we are looking at leveraging company-wide platforms as a set of collaborative tools that we can use, ideally with no need to integrate any foreign software or systems into our own ecosystem. We are also leveraging enterprise systems and customising them for our requirements. These systems may not have been designed to meet our needs, but they can nevertheless be extremely useful. It is all about being creative and experimenting with the technology you have available to you.
In the same vein, we have also developed tools within our own function. For example, my in-house legal team created a contract risk scoring tool three years ago. We use it to provide a numerical risk rating to contracts, assessed against our internal legal risk policy and tolerances. We have also built in a traffic-light feature based on the ratings. The tool has since been incorporated into the region’s enterprise deal assessment system, which takes into account assessments from other functions as well.
With all these developments, the next few years look set to a transformational period for legal teams. Legal tech will not just change how fast we work, but what we work on. As technology matures, routine and repetitive work can effectively be automated. This frees up bandwidth for internal lawyers to do more complex work that requires creativity. It will allow us to spend much more time on things like negotiations, strategic planning and resolving complex matters. That is cause for optimism. Perhaps technology will help solve the modern in-house counsel’s struggle for sufficient bandwidth.
For GCs, technology is very much a love-hate relationship. We love using technology and are increasingly reliant on it, even though we hate to admit it. The pressure every business has been under to work remotely is showing us how much we rely on technology to operate, which was a trend that started long ago.
Within the legal function we are now using technology for everything from e-discovery to data mapping and analytics. Even beyond front-end legal work, we are using technology to update our insurance certification or take care of our invoicing and billing. Really, we could not operate as a function without this technology. The question, then, is not whether legal technology will become important – it is already essential to the way we operate – but how it will change what we do, and whether it will replace certain tasks. As far as I can see technology will not replace lawyers, but it will open up new ways of working and allow us to see things that were previously invisible.
Working within a rather lean legal team means that each person has to draw on whatever resources are available to maximise his or her benefit to the business. I am a certified data protection officer and sit as the designated privacy representative for the Asia region. I’m also a certified enterprise risk advisor, a certified business continuity manager, and have just sat the anti-bribery exams. Having that broad-based training is one way of maximising the range of matters I can cover. The other is using technology effectively.
I estimate that our use of technology allows each lawyer to double their workload, so this is not an inconsiderable benefit to the team. The other big benefit technology brings to our legal work is that it allows us to take a more systematic, joined-up approach to risk. The ability to search documents quickly and reliable is one of the best ways to identify and mitigate risk patterns in litigations, investigations, complaints and a many other areas.
This is a fast-moving area of legal tech and one where we really need to keep our eyes open. For example, investigations require detailed knowledge of the underlying facts, and increasingly sophisticated software is being developed all the time. As lawyers, we have to be very open-minded to the possibilities this software will unlock. We almost have to forget that we are lawyers for a moment and think of it as a data mapping task rather than a legal task.
To use legal tech effectively you cannot be afraid to fail. You have to explore new technologies, launch new programmes and initiatives, and start working in different ways, but you also have to know when to abandon software and strategies that are not effective. This requires a fundamental shift in thinking for most lawyers.
Open yourself to new ideas, trial new software and ways of completing legal tasks, but don’t be afraid to admit that something isn’t right for you. You have to be very careful, because not every technology will suit your use case. Try and test as much as possible before determining whether you can actually implement it for use in the long-term.
When it comes to identifying and procuring new technology, we are fortunate to have a supportive IT function. New software is purchased by IT at group level, but every decision follows close discussions with the various business units and support functions to make sure a product will do or can adapt to what we need it to do. My experience is that IT are always eager to explore new tech and are happy to find things that will make your life easier. Building that relationship with your IT people is essential to getting the right tools. But of course, as GC I also need to be involved in the process because only the front-line legal staff can truly stress-test a system.
While there have been big changes in the market for legal tech, most law firms remain quite conservative here and tend to focus on legal skill sets at the expense of other ways of working. However, there are signs of change. New business models that offer on-demand legal staff or a mix of outsourcing and technology-based solutions at competitive price points are becoming more accepted. Ten years ago no one thought it would work, particularly in this market. Now they are threatening the traditional firms. The lesson here is clear. Both in-house and private practice lawyers must be more receptive to new ways of defining products, markets and clients. Technology itself will not leave us behind, but our inability to adapt to its consequences certainly will.
As everyone knows, life after COVID-19 will not simple return to normal. New working arrangements are here to stay, and that means technology will become an increasingly important aspect of working life.
The number one goal of innovation in our legal team, in an organisation manufacturing basic commodities, is to be able to do more with less – to consistently deliver high quality outputs at lower cost, so we are contributing to improving our organisation’s profit. There’s always pressure to keep costs to the minimum, but there is also a particular risk in needing to do more and more in terms of meeting increasing compliance requirements whilst containing costs.
The second goal is to increase reliability. There are more regulatory requirements to deal with and more things being asked of us, and to do that confidently and efficiently we need to make sure that the information and the processes we’ve got to be able to do that are robust and reliable – so I know that when the CEO wants a piece of information I can produce it reasonably quickly, and we are providing various stakeholders with confidence about our organisation’s governance.
We’re in the early stages of looking to see what new legal technology is available that can successfully meet our needs. I’ve been an in-house lawyer for over 20 years now and am probably one of the longest serving in-house lawyers in Australia. I use a basic, but robust and reliable system which has served us well.
We use a SQL Server relational database for recording and linking all the information we use every day, such as information about matters we are working on, agreements, property details, intellectual property, company details, and external lawyers’ fees, but we are looking to upgrade from this. We have been looking at what there is on the market, and there have been some quite interesting developments in terms of matter management. Overall, our organisation does not have a consistent process for information management, leaving it to particular teams to make their own arrangements.
Marcus Clayton
We have had a lot of growth over the time I’ve been here and we’re a much bigger company now, with more operations, more people, and more issues that need to be resolved every day. We are in a period of rapid change for our organisation. One aspect of this is the organisation is about to embark on a digital transformation project planned to unlock value, including a focus on the benefits from automation and smart analysis of our financial and operating systems and processes. We’re also looking at how that works for us in the legal team, to bring it all together over the next probably six months, against the objectives of robustness and reliability that I mentioned before.
We are currently looking at NetDocuments, iManage and a couple of other leading information management systems and are also looking around for matter management systems. What did surprise us was that there was not really one overall, out of the box, comprehensive package available for the typical needs of an in-house counsel team like ours.
We try to keep things as simple as we can, and we prefer just to go out and get something that is going to do what we want off the shelf. Our needs will be similar to many other companies’ needs. Given that we already have a good simple set up, we don’t want to have something new that is of a proprietary nature and forces you to go down a route in doing things their way, that may not align with our preferences, and could provide less functionality than we’ve got at the moment.
A couple of high-level IT leaders I have worked with recently, inside and outside our organisation, have confirmed a contemporary approach is to use out of the box wherever you can. They also reinforced a strong preference for a cloud-based approach, rather than on premises facilities.
We have quite a free rein in terms of what technology we can onboard within the team. Of course, if it doesn’t work or deliver value, I carry the can for that. To learn about the value of the technology which is now available, we went out and got anecdotal evidence, did research, and then followed up with a few of the aggregator providers about what they would recommend. That led us to talking to some people, getting some demonstrations and forming our views.
I was surprised at the low estimates for setting up this system and migrating our data. I feared from previous experience that the actual costs could be greater than the optimistic forecasts, so in the budget I’ve put in a more realistic amount than has been suggested for a migration (which of course we will manage carefully). I’ve also said we want to do it in incremental stages, which helps us manage the transition risks.
We’re a small department, who operate in a company that has traditionally run everything very lean. That’s the environment I’ve been working in for a long time with colleagues in the legal team. We evaluate our technology intuitively and based on how much it is actually helping us to achieve our objectives. Having said that, we are building KPIs into our assessment process at the moment as part of our structured evaluation procedure.
When staying abreast of what legal technology is available, organisations such as ALITA are useful and easy to access to corroborate what we’re finding in other places, and help us to test things anecdotally against promotional material or the stated capabilities of the tech.
I’ve followed what’s going on in artificial intelligence relevant to our responsibilities, and I can see where it will have application, but in our case we are a heavy manufacturing industrial company which doesn’t have a lot of low-value, high volume legal work. We leverage our internal expertise with carefully selected external advisors who we are confident will apply themselves creatively and deliver value for us, and while I currently don’t see a big role for AI in our legal team on a regular basis, we’re continuing to monitor its progress. We have used AI in certain cases, for instance during some major litigation, and I was really impressed with the quality that came back from applying AI to our discovery records. Automation, AI, and machine learning are opportunities we are planning to exploit for our heavy manufacturing business, with an expectation of significant benefits, so we are on the look out for where these sort of opportunities might be there for the legal function also.
COVID-19 and its effects have of course had an influence on the way we are working at the moment. From March to July, everyone was working from home, and in July we cautiously moved back to offices, following a contingency plan which for us had a ‘team A’ and ‘team B’ that were in the office on alternating weeks.
We are operating throughout Australia, so we have had experience with the different situations in the different states. We’ve had experience with all the video conferencing facilities, and have had a major rollout of hardware and software to people who weren’t using stuff in a mobile way to the same extent as others. In our legal function we’re all equipped with laptops and iPads, and because (pre-COVID-19) we’re often all around the country, it wasn’t a great change for us. The relational database that I mentioned before has given us a really solid framework for our essential information, so that even though the team’s been at home for some time over lockdown, we’ve been able to continue all of that essential stuff without any glitches whatsoever.
Going forward, I think that technology will change the roles of in-house lawyers in a more subtle way than many are predicting. Some tech that we use, such as hearings via video conferences, can be used tactically, and you need to consider that before being pushed down a certain path – should you agree to videoconference or not agree? Are you giving up some advantage if witnesses are not being cross examined in person, or if your representatives are interacting with the court in different ways? This shows that technology needs to be adopted in a measured way, because there are just too many side issues that come up.
Our Annual General Meeting (AGM) was in May, so we had to deal with how we were going to do this in the middle of the pandemic, with the restrictions on meetings. This quickly exposed us to virtual AGMs, but these are still not that straightforward. We did a hybrid AGM, which went well apart from the fact that a third-party tech provider played the CEO’s speech before the Chairman’s speech. It was simple human error, despite numerous rehearsals undertaken and the procedures we had in place. Most viewers would not notice, but it just highlighted that there are risks in new technology. Next year, I think we’ll probably still do a hybrid AGM, but we will have learned the lessons, I don’t think we’ll move to a fully virtual AGM.
Young lawyers who will have to drive the profession’s use of technology forward should be clear about what they are trying to achieve from legal tech. That’s cost efficiencies, delivering valued outcomes, avoiding surprises, and having reliable information and systems and tools to be able to do the task that you’re responsible for dependably. Everything comes back to that, and that’s what we’re trying to do in order to deliver value for our shareholders. You need to have a mindset that is going to let you understand how you can use the technology and the potential developments to further what the organisation is trying to achieve. You can’t be divorced from the underlying nature of the business.
Digital transformation is a hot topic right now and DXC Technology is an industry leader in this field. We leverage technological innovations to deliver better business outcomes by driving new levels of performance, competitiveness and lower prices. Put simply, we work hard to make sure other businesses stay ahead of the curve when it comes to technology.
The legal team has embraced this approach. As [DXC general counsel] Bill Deckelman said, the digital innovation tools that our department has had access to since 2017, [when DXC was formed through a merger of the recently spun-off Hewlett Packard Enterprise’s Enterprise Service segment and Computer Sciences Corporation (CSC)], represent a unique opportunity to position our legal team as global thought leaders in legal digital transformation.
From the very start of our journey we aimed to do something different, partnering with UnitedLex to help restructure the global legal team. At the time, this was the largest-ever managed services transaction in the legal space. By bringing in new technologies we have developed a far more agile way of working that enables us to cover more ground than ever before. We have created a digital platform housing legal research, templates and advice. This allows us to provide a lawyers on demand service for a range of matters, from documentation to compliance, from litigations to procurement. Supplementing this, AI-based legal tools and machine learning allow us to better predict risks, understand customers’ problems and improve performance.
This technology has undoubtedly improved our efficiency. It can streamline templates and playbooks, assist with negotiations, help with training and rationalise workflows. It also allows each team member to properly track their work in real time so the management team is constantly aware of the progress being made on a matter. This means management can identify gaps in our coverage and move to respond to potential issues faster than ever before.
Ivy Wu
It has also helped us show management the value our team brings to the company. We can track the value of each matter we are supporting, whether that is by managing litigation risk or contributing to new business. The feedback from business has been very positive. They are able to see that the cost saved or value added by the legal department far exceeds our budget.
Technology reduces the barriers to collaboration across functions. It can be a useful way of working with various business units to identify pain points, opportunities and solutions. In fact, the new ways of working we have developed have been so successful that we plan to make remote working, at least to some degree, a permanent feature of the way we operate. Technology will not replace lawyers, but it will require a re-imagining of resources, both technical and personal. Legal work will place much more emphasis on the ability to collect, analyse and process relevant data.
The push to introduce new legal technologies is to be welcomed, but there is still a long way to go. Many of the new tools that have come to market are very complex, do not allow for optimisation, and requires a big time commitment on the part of GCs to fully learn its functionalities. Of course, the more time you have to spend learning a new system, the less effective it is as a cost-saving tool. Team members may also need to repeatedly log in, complete registration forms, or provide other information.
International legal service providers should also consider customising their products to work in Mandarin, or tailoring them to fit local cultural usage. China is a very large market, and enhanced support for our lawyers would be beneficial to both domestic businesses and multinational companies.
There is no doubt that legal technology has helped everyone in the market improve their performance. Most interesting has been the impact it has had on the judicial system. The ability to file lawsuits electronically or attend virtual hearings has proved very successful in China. This is a very important development, especially for employees of multinational companies who are not able to be physically present during the course of a matter. Other developments are even more surprising. While previously it was very time consuming to notarise electronic evidence, we are now able to apply blockchain technologies to preserve electronic evidence.
There are a lot of changes taking place. Our mission in the DXC legal department is to understand these changes, learn as much as possible about the technologies powering them and, most importantly, to be at the forefront of any future change.
Arcadis may not compete (yet!) with Apple in the brand recognition stakes, but in the world of environmental engineering its right up there with the iPhone as the premier player in its space. For over 130 years, from its roots in the Netherlands, where it was an early pioneer in redevelopment of land, water and sea defence systems, the company has grown to become a leading global player in built asset and sustainability solutions, with a workforce of nearly 30,000 people spread over 72 countries.
In the Asia Pacific region, our consultants and engineers are regularly called upon to work on the types of projects that can make or break a country’s future, from protecting against coastal erosion to designing flooding protection systems to advising governments and stakeholders on master plans for smart city developments.
But, as with most global companies that have grown inorganically, there can be regional differences, and one has to be respectful of different ways of doing things. When I moved from my private practice in project finance to build an in-house legal team, I was very conscious that I might be seen as an outsider, someone who should be kept at arm’s length. Crucially, I needed to earn the trust of my new business management very quickly, and the easiest way to do that is to present yourself as someone who’s coming in to try to take their problems away. Going for the low-hanging fruit got me quick wins and showed I was someone who would make their lives easier.
To complicate matters, the Asian side of the business had little in the way of localised legal resource and so my first job was working out what talent we had within the organisation that I could leverage. There were nearly 4,000 people based across the Asian offices, and it seemed obvious that a fairly large number of them could be legal graduates who could find their way around a contract, even if they were not in my legal team.
Carl Watson
As a substitute for drafting new personnel into the team, I managed to borrow time from others around the business to help me build a new commercial contract review system – exactly the sort of quick win I was looking for. In the longer term, it was clear that technology was going to have to do a lot of the heavy lifting in the legal function.
As you can imagine, as a built asset consultancy we didn’t have much in the way of pure play legal tech, but like most organisations we have software licences for legally useful technologies. Even a ubiquitous office technology like the Microsoft O365 suite of products contains a large volume of very helpful stuff that can help GCs drive meaningful improvements and build momentum quickly. It may not be at the cutting edge, but it’s an incredibly effective way to build trust. Data visualisation platforms like Power BI can be linked into Excel and the other products in the Microsoft suite to produce clear dashboards. Even something as simple as that can add a lot of clarity and transparency and around what the function is doing to leadership. For example, we now generate automated utilisation reports that show the different client types we have served, the value of the contracts that we’re reviewing and the type of work we’re doing on those contracts. That means I am not only able to keep track of what the team is working on, but can show the business our return on investment or the savings we are making in terms of claims avoided. When you add those numbers together legal no longer looks like a cost.
GCs can fixate on having new systems without first understanding the tools they already have at their disposal. Knowing what you’ve already got is super important for any business leader, and that applies to both our talent management and technology. Ultimately, if you are going to ask the business for money to buy some legal tech it is your responsibility to check whether the same result can be obtained with a bit of research into the products you already own. This also demonstrates that you can use technology effectively to capture value.
When it comes to building trust, nothing is more important for a legal team than showing business colleagues it has their backs. Using technology to develop new and more robust ways of managing corporate governance is one of the best ways to do this. We have automated the approvals and governance processes for new work entirely by putting it all on a digitally-enabled system we coded ourselves in-house. Likewise, all of our governance and reporting records are now maintained through a digital platform that eliminates duplication of records and work streams, or the need to fill in multiple forms to do the same thing. Rather than using a number of operating systems globally that don’t talk to each other, we now have a much more joined up system.
It also helps generate real value to the business. For example, a project sold say in 2016 on the basis of a certain financial performance or risk profile may no longer be adhering to those assumptions five years later. If there’s a delta between the financial and risk performance then and now we can track that digitally through an automated project review process and take action. The upshot is that we’re not just reporting dry data. We’re looking at trends, we’re looking at root cause analysis through the types of claims that come into our business. That data is helping you learn lessons rather than perpetuate risks. That builds trust and confidence within the business and helps make them realise you are a reliable partner.
Everything in its right place
In its simplest form, Arcadis advises clients on their built assets, covering everything from services to manage their space to master planning and business case design. It also operates an architectural business, a landscaping business, a project and programme management business, a ‘pure play’ design engineering business, and a general business advisory and consulting practice that offers analysis, feasibility, delivery and implementation services to a range of built assets. With such a broad portfolio, developing and implementing a digitalisation strategy becomes hugely important.
The enlightened contractors we work with are shifting quickly into the use of technologies. We’re conscious of the pressure that places on us to evolve. We don’t just want to keep up with them, we want to be ahead of the game, selling digitally-enabled consultancy services that allow our clients to do more and better things with the information and analytics we can provide. Whether that involves using drone technology and advanced camera technology to provide remote access for site-owners or decision-makers sitting thousands of miles away, or offering our insight on asset performance through our Arcadis GEN brand, or through platform-led, subscription-based models where our clients can customise the expertise and experience they get from us, technology is going to be at the heart of our future and we have invested in the in-house capabilities and product development skills to deliver.
In short, repetitive tasks are being replaced by focused automated processes and platform solutions across the business, and the legal function should be no different. To maintain relevance in our digital future, we have to stay close to the business and keep our eyes open. But we need to have the bandwidth to keep our eyes open.
For example, it is just not efficient to have a senior in-house lawyer doing mundane contract work. I want my senior lawyers helping the business win big mandates, avoid big claims, navigate new legislative headwinds or develop digitally-enabled, client-facing services. Having them spend time on basic contract reviews is a problem, the solution to which can be using technology to do the same job, or it can be drawing on back-office support centres in markets that have a lower operating cost.
The real danger is using tech for tech’s sake. Digital tools are a big part of driving efficiency, but I’m a believer in a razor sharp focus on legal operations, you also need to look at the general optimisation of your cost and operating model via standardisation, automation and cost efficiency. If you can use technology to get where you need to be then that’s great, but it is a mistake to focus too narrowly on that. Your goal as GC is not having technology, it is ensuring the business gets quality, accessible advice that delivers value for money.
Most of our software is built in-house and customised for the legal team’s own use. Using home-grown software has two main advantages. It is obviously much cheaper, and developing our own in-house software means that we can hedge on business costs as opposed to getting them signed off for external technology.
Perhaps a bigger advantage is that internally developed technology can be customised to match systems we are already familiar with. That will ensure other business units can seamlessly work with the platform. Working with customised software is much more intuitive and user-friendly. When you take on technology from external sources there is always going to be a process of learning and testing.
Working with external providers also means the legal team loses some degree of control over the software. For example, a significant provider of due diligence software once decided to shut down its operations in Singapore. We lost access to the whole system and had to suddenly find an alternative provider. This was a major exercise, and it meant we had to get used to the intricacies of a new system at short notice. That is the disadvantage of external providers. You simply cannot pre-empt or control what they are going to do, and even things like maintenance or updates are out of your control.
In a previous role I worked at a public body in Singapore that concerned itself with science and technology, including in AI and other blue-sky technologies. Protecting intellectual property was a huge aspect of that work, and it has taught me that IP is critically important when it comes to developing legal tech. I believe that, especially for bigger companies, it is always good to own the IP on anything you use internally.
However, there are areas of technology where we cannot build our own systems. As you would expect, McDonald’s has a long list of compliance processes to go through. This process involves many people across a number of different teams. It must also synchronise with the compliance checks across the company, so for this type of exercise we are following the policies and systems of the global business.
For pretty much anything else we use our own technology. We have built a document tracking system that checks all our contracts for things like date of expiry and gives us a prompt so we understand where in the contract cycle a document sits. It is also useful in that it tells us which counterparties have we given any limitation or liabilities to.
For the most part, our forms tend to be pretty standard, so while the back end will be specific to each vendor that we are dealing with, the main boilerplates are very consistent. That means we can use software that focuses on tracking documents and sending us reminders. Some of my peers at other organisations are starting to use AI for more cookie cutter stuff such as NDAs, but for us it is still all done by the internal legal team, including paralegals.
Our process for implementing new technology starts with recognising the need for a particular piece of software. Whether that software is going to track contracts, bring in GDPR compliance or handle more complicated work, you need to identify the need within the organisation first of all. We then look at how this can be introduced in a useful and user-friendly manner, drawing up a customisation and implementation plan to help us understand what the software should look like. This latter stage will almost always involve conversations with the IT department.
This has served us well so far, but inevitably we will reach a point where our tech needs outstrip our capacity to produce solutions internally. For example, it will become increasingly important to have software that can supervise and track user data and user rights. These days, everyone wants to know what their data is being used for and to have the right to choose what parts of their data is logged. Having software to keep track of this helps to share that obligation or responsibility with the consumer.
Asia is a very impressive part of the world where people are generally more technologically driven. It is this drive that motivates companies to continuously innovate. Asians are generally early adopters of tech, and customers are very advanced when it comes to embracing new technology.
When I compare Asia to Europe everything is on a much larger scale. The pace of innovation is unprecedented. Technology is being embraced across Asia, but it is China that is leading the way in technological innovation and development. The pace of development in China is particularly interesting.
For example, when it comes to moneyless payments, China is the most advanced market in the world. I rarely need to carry a wallet anymore as everything can be paid for via a mobile phone. Beijing is one of the biggest startup hubs for tech companies and a leading place for AI technology, research and development. Generally, the consumer and enterprise markets are massive, and therefore the potential for developing and implementing tech is apparent.
Ericsson has an established presence in China, where it occupies nearly half the market for mobile systems. In recent times, Ericsson has strengthened its market share by winning 5G contracts with three major operators in China.
The importance of technological innovation has been cast into the spotlight in recent months. Legal teams across Asia have embraced standardised technology to remain connected. We are using Microsoft Teams and SharePoint products. These platforms provide a collaborative area, where teams across the region can work together, for example to review documents. We are considering introducing a new e-billing system when working with our external law firms. From a contract management perspective, we have various repositories for sales and sourcing agreements.
Today, there are contract databases where you can search for templates and find various clauses. The next step will be AI based search engines, where the platform is itself intelligent and an evolving algorithm informs the search results. It is quite amazing to think about the opportunities associated with AI when applied to legal work. We will eventually be able to predict problems before they arise; we will know if something may cause an issue in a contract before finalising a deal.
Despite all the advantages brought by legal tech, going completely digital this year has not always been an easy task. Technology cannot replace the atmosphere of a meeting room or the human connections shared between individuals. Working remotely also makes it more difficult to introduce new employees into an office. You learn a lot from seeing how members of a team behave and react to others.
Nevertheless, technology can also be used to bring legal teams together. Managing legal operations across five countries means video conferences and meetings are crucialPreviously, we spent a lot of time travelling to meet internal stakeholders, customers and suppliers. Travelling would take up a significant amount of time. But since the pandemic, people have adjusted. One positive is that meetings are typically condensed and well prepared. In this sense technology has driven efficiency, or at any rate it has led to people using their time more effectively.
As we look to the future, technology is expected to play a key role in improving legal services, and within the next five years artificial intelligence will play a significant role in transforming the legal profession. As thing stand, it is rarely used by legal teams, but the potential this technology has is revolutionary.
The Promised Energy and Infrastructure Investment Opportunities
In the early months of this year before COVID-19 became a global pandemic, all indications were that 2020 would be another record-setting year for investment in energy and infrastructure throughout Latin America. Significant institutional capital was being raised by debt and equity funds with an increasing appetite for and interest in Latin America. More and more global companies and strategic investors were lining up to pursue the development of renewable energy and infrastructure projects throughout the region. Renewable generation was increasingly cost-competitive with other generation without government subsidies, distributed generation was expanding rapidly, and commercial and industrial (C&I) businesses in Latin America were increasingly interested in direct contracting for renewable power. Governments were proposing new policies and reforms: advancing the evolution and diversification of Latin American energy markets, addressing climate change concerns through various investments, tackling urban congestion and pollution with public-private partnerships (P3s) to increase the electrification of public transportation, and structuring a pipeline of P3s to address other infrastructure gaps. Investment returns were better and opportunities more plentiful in Latin America than in most advanced economies. A growing roster of commercial banks and other lenders offering financing for those projects followed, also drawn, in part, by the better returns.
The Aftermath of the Pandemic
Then, the global pandemic spread to the Americas and led to a rapidly cascading shutdown of economic and human activity across the region resulting in an unprecedented deceleration of ongoing construction and an indefinite pause in new projects and investment. Quarantines resulted in a dramatic drop in electricity demand and substantially disrupted logistics for the construction and operation of projects. Government orders mandating uninterrupted supply of essential services coupled with suspensions of payment to private operators and the overall emergency have led to disruptions across value chains, including widespread force majeure claims, all of which have raised questions about the financial health of companies in these sectors despite mitigating efforts by countries like Brazil, Chile and Colombia. In short, the pandemic has set the region back economically, brought about a number of challenges for private and public sector plans for energy and infrastructure projects, and created uncertainty about the post-pandemic future.
It remains to be seen how these various dislocations will be resolved. Force majeure claims, in particular, have been asserted by parties across value chains and may raise a number of questions given the legal intricacies of the provisions that need to be interpreted, the economic consequences of contract milestones, term extensions, performance metrics and related payments, and the impact of these disputes on future contracts. The litigation generally arising from the pandemic, including claims for increased costs due to the pandemic and for the suspension of private operators’ rights to charge tolls or exercise remedies for nonpayment, will take time to be resolved and may produce outcomes that are inconsistent from project to project. Most importantly, investors will be watching the outcomes of these disputes, particularly those associated with government actions requiring private owners and operators to continue to provide services without compensation, in order to reassess political risks and the strength of investor rights under contracts in the different countries in the region.
The Opportunities Remain with Challenges
As the Inter-American Development Bank stressed in this year’s Development in the Americas report, Latin America and the Caribbean should ‘invest more and better’. Countries there/in the region have historically invested much less in energy and infrastructure than other developing regions and closing that gap will require greater and more effective public and private investment to produce better quality public services. The pandemic may shift aspects of how we live our lives and conduct business – and by extension whether we invest more in technology, media, and telecoms (TMT) and digitalization of services – but the need for investment in energy and infrastructure in Latin America has never been greater. Per IRENA’s Global Renewables Outlook, recovery measures that employ technologies consistent with long-term climate sustainability, like renewable generation, flexible power grids, efficiency solutions, electric vehicles, energy storage, and ‘green’ hydrogen, can help drive socio-economic development and create new private sector investment opportunities while addressing climate change goals.
Certain Latin American governments have already adopted policies designed to attract foreign investment in energy and infrastructure and make it a centerpiece of economic recovery efforts. Chile has introduced major initiatives on renewables, green hydrogen and electrification of public buses. Brazil has even reversed decades of prohibitions on the dollarization of contracts to increase the bankability of projects. Additionally, the United States has expressly made it a foreign policy goal to promote investment in energy and infrastructure in Latin America and the Caribbean in order to encourage a geographic shift in key suppliers to the United States from China and Asia to the Americas.
Further, the fundamental factors that promised opportunities prior to the pandemic – availability of capital, appetite for greater returns and need for investment – remain. There has been a reassessment of risk among investors and lenders and recent reports estimate that only a small percentage of newly raised capital is earmarked for Latin American investments. The International Energy Agency has cautioned that sponsors and investors will find that governments have focused their attention and resources on addressing the immediate impacts of the pandemic. As a result, government sponsorship of projects will be limited and public sector processes, including tenders, permitting and regulatory procedures, will be subject to delays. Moody’s predicted in July that future financing of energy and infrastructure will come from multilaterals and institutional investors given governments’ fiscal constraints and commercial banks’ focus on strengthening their balance sheets. Consequently, financing projects will be more difficult, particularly projects viewed as being riskier.
Nevertheless, from the perspective of Latin American companies, investments to ensure more reliable and affordable supply of electricity and infrastructure are essential to competitiveness and profitability and by extension economic growth. The pandemic has also underscored, if not accelerated, the public’s focus on climate change, ESG and sustainability concerns, including environmental and social costs, the importance of a diversified, reliable supply of energy, and the broad impacts of choices made with respect to infrastructure. As IRENA and OLADE stated in announcing their expanded collaboration this past July, ‘accelerating the development of sustainable energy’ as part of the economic recovery following the pandemic ‘could provide the Latin American region with a long-term strategy to address social inequality, energy access and energy security’. Companies seeking to encourage investment can support broad adoption of renewable generation or contract directly with developers and project owners seeking creditworthy buyers for their electricity. They can also partner with those developers as has happened in the United States to provide capital while mitigating political risks in this uncertain time. Consequently, we remain optimistic that there will be good investment opportunities in Latin America and that Latin American companies with access to industry expertise and seasoned counsel experienced in structuring and negotiating successful investments can play an active role in ensuring these positive changes continue.
Maria-Leticia Ossa Daza is a partner in the Corporate & Financial Services Department and head of the Latin America Practice at Willkie Farr & Gallagher LLP. Jorge Kamine is a partner and Matt Vitorla is an associate in the Corporate & Financial Services Department of Willkie Farr & Gallagher and both are members of the Latin America Practice focusing on the energy and infrastructure sector.
The COVID-19 pandemic hit Paraguay’s economy very hard and just when the country was recovering after a period of stagnation (-3% year-to-date in the first half of 2019). 2019 wasn’t a good year for employment either, the combined unemployment and underemployment rate reaching 14.5% in the first half of the year and retracting to 12.9% in the second half. This favorable path continued during the first two months of 2020 but with the beginning of COVID in March, began to slow down. Social distancing measures have most severely affected the service sector although informal labor was also badly affected.
The Government and the Paraguayan Central Bank (BCP) adopted a series of exceptional measures to address the economic and financial needs of both individuals and companies. In this regard it’s worth mentioning the BPC’s decision to reduce the policy interest rate by 175 basis points to 2.25% and the temporarily relaxed provisioning rules not to penalize credit restructurings and prolongations as well as the Government’s anti-crisis fiscal package approved by Parliament.
Another measure to alleviate the crisis has been low interest loans granted by the National Development Bank (BNF) to finance MSME’s payroll during the outbreak; in line with this it is worth mentioning that in June credits granted to the private sector grew by 4.1% YtD and loans granted to MSMEs reached USD$217m in July, while in May they totalled USD£130m.
Nevertheless, in 2021-22 growth is expected to return to 4% due inter alia to consistent macroeconomic policies, anchored in inflation targeting and a gradual return towards the FRL ceilings. Another key role in economic recovery will and is being played by public investments particularly in public works.
Legal Updates
The pandemic has represented an opportunity to introduce major and necessary changes that have helped modernize the local legal framework.
Corporate Law
The Executive Branch enacted Decree 3605/2020 allowing PLCs to hold their board and shareholders meetings through telematic means provided that a series of requirements are met such as, inter-alia:
a) Real time presence and participation of authorized participants is ensured;
b) Meetings are recorded and kept within corporate files for 5 years and;
c) Mechanisms for the accreditation of rights to participate are established.
This provision represents a breakthrough in Paraguayan corporate practice and a clear advantage for foreign investors and shareholders as they can now take part in company decisions avoiding delays and fines especially during the pandemic. This exceptional measure will remain in force until 31 December 2020 and we are confident it will become a definitive practice.
Another important provision enacted is the suspension until 15 September 2020 of the application of fines and sanctions for non-compliance with the mandatory requirement of converting bearer shares into nominative shares.
Labor Law
This may be the field that saw the biggest changes. These sought to help businesses and employees cope with the crisis and reduce the negative impact on employment. Some of the most important decisions adopted by the Government are:
a) Contributions to the Social Security Institute (SSI) may be refinanced without interest for up to 18 months.
b) During the pandemic and whenever the nature of their work allowed, employers are encouraged to implement home and teleworking so as to avoid the spread of the virus; this measure is provisional and will last until the 31 December, nevertheless a draft bill has been presented to Congress in order to make it definitive.
c) A new regulation aimed at simplifying the application process for requesting employees’ job suspension was enacted. The procedure will remain in force during the pandemic and will benefit MSMEs only.
Anti-Trust and Regulatory Law
As a consequence of the COVID-19 crisis a lot of effort was made by the Government as well as the media and citizens in general aimed at controlling the public expenditure and public bidding processes. As a result of this, the National Competition Commission (CONACOM) undertook a series of formal investigations under Paraguayan Competition Law.
a) One was aimed at determining if prohibited agreements practices had been performed; the investigation was focused on public bidding processes for the purchase of medicines and medical related goods.
b) In another, CONACOM’s Investigation Department initiated preliminary investigation proceedings in order to identify possible violations of the Competition Law in connection with the latest operation involving a concentration proceeding between the biggest meat processing company and one of its competitors.
This is the first time CONACOM has used its investigative powers and its power to initiate ex officio proceedings; we believe this will improve the level of transparency of our public system and, at the same time, will force local businesses to strengthen their compliance policies, in particular those businesses in a dominant position.
Tax Law
Along with labor, tax law was the other field to see the greatest number of significant changes. During the crisis the Government enacted a series of important tax relief measures such as, inter alia:
a) Tax Deferrals;
b) Exception of penalties for late filing;
c) Exception of import duties and VAT reductions on all goods qualified as of first need;
d) Deadline extensions for filing and payment of the Withholding Tax on Dividends, Corporate Income Tax, Income Tax on Individuals, Income Tax on Agricultural Activities and Income Tax on Commercial, Industrial and Service Activities.
Procedural Law
The Executive branch enacted the Law by which the Judiciary’s summer recess is suspended thus all judicial activities and deadlines remain.
Bankruptcy Law
A draft bill to modifying the bankruptcy law is being studied by the Legislative branch. The current law dates back to 1969 thus its modernization is seen as being key to improving the country’s business climate; the new law will allow companies at risk of insolvency to swiftly put their accounts in order and hence re-emerge more stably while also benefiting creditors. This law will be particularly important in the aftermath of the pandemic crisis.
Data Protection Law
Currently Paraguay does not have a general Data Protection Law, however, as a result of the increase in social and commercial activity on the internet due to social distancing measures it became apparent that the country could no longer remain without such an important provision; as a consequence a bill is currently being studied in Congress and is expected to be enacted by the end of 2020 or the beginning of 2021.
Conclusion
We cannot ignore the negative effects produced by COVID-19. However, we believe that Paraguay will re-emerge stronger wherever we can capitalize on the opportunities arising from the crisis aimed at accelerating the modernization process and increasing transparency of institutions.
So far, our country has taken adequate measures and has better coped with the crisis than some of the other countries in the region. In truth, the pandemic’s impact has been less harsh than in those countries whether in respect to fatalities and infections or in economic terms.
As for opportunities for the years ahead these will certainly come from the public sector particularly public works (civil and road) and from telecommunications as both sectors have shown a very dynamic performance over this period.
It’s no surprise that the COVID-19 pandemic has forced human coexistence to rethink, revalue and reinvent itself in all aspects. Indacochea Asociados (IA) attorneys were no exception.
During this time, the Bolivian National Government issued a series of regulations in order to mitigate the impacts on our country. Regulations were focused mainly on labor matters, financial and tax compliance extensions, economic reactivations programs, enforcement of technology driven commercial mechanisms and most importantly, regulations regarding public health.
Due to quarantine, commercial and economic activities were practically paralyzed at a general level, which generated major uncertainty in the labor force where, despite the quarantine, employers were forced to take on a social burden while being limited or unable to continue commerce or cover day-to-day expenses. Adding complexity to this situation of uncertainty, Bolivian legislation provides high regulatory protection and labor stability for employees, which was reinforced by new regulations issued during the strict quarantine. Law No. 1309 established the prohibition to dismiss employees during the quarantine, a prohibition that would be applicable for a period of two months after the state of emergency had been concluded.
However, as the quarantine was constantly extended, some activities and restrictions have been partly lifted by the government, allowing the development of essential activities on-site. These measures have been regulated by Supreme Decree No. 4218, which establish guidelines, obligations and conditions for the execution of home office practices at a national level – work practice that has been highly encouraged by well-established companies. The implementation of these measures certainly upgrades labor practices in Bolivia.
Likewise, and as encouragement to taxpayers, the National Government through its National Tax Service issued several regulations aiming to provide payment facilities and extension deadlines for applicable taxes levied over personal and company obligations. These policies were reflected in programs that allow flexibility in the fulfilment of tax obligations, thus avoiding potential applicable sanctions by the National Tax Service. Similarly, these regulations provided various incentives for those taxpayers who complied with tax obligations in a timely manner or who performed donations directed to COVID-19 pandemic relief.
The Bolivian Registry of Commerce has issued a new Manual of Commercial Procedures which intends to reduce bureaucracy in all commercial acts that must be registered before this authority. This manual recognizes the digital signature as a valid way of securing certain commerce acts required by the Bolivian commerce code. Moreover, through new commercial regulations, it is now legally accepted that shareholders meetings may be held via communication technologies (prior to COVID, all shareholders meetings required shareholders to be physically present in the legal domicile of the company). Alongside this, the Bolivian Financial System Authority allowed for certain banking procedures to be executed with digital signatures, thus avoiding the physical presence of the interested party at financial offices.
In regards to welfare programs, the Bolivian Government provided economic support and relief to the general Bolivian population through various bonds. These bonds have been aimed at those whose economic or employment situation has been severely affected by the pandemic.
Taking into account the extended duration of the quarantine applied in Bolivia (In accordance to Supreme Decree No. 4199 strict quarantine started on 19 March and flexible and dynamic quarantine was established starting 1 June), the country’s economy will surely be impacted; experts predict anything from a 3% to 9% contraction in 2020.
In order to reverse these mid-2020 economic growth projections, the Bolivian government, through Supreme Decree No. 4216, Ministerial Resolution No. 159 and Ministerial Resolution No. 160issued economic programs to support micro, small and medium enterprises, as well as programs to support employment and labor stability. These programs extended bank credits to micro, small and medium businesses bank credits in service of two main objectives: avoiding closure and maintaining jobs.
Additionally, and with the sole objective to reboost the national economy, a loan program was launched to promote the consumption and production of national goods and services. This loan has an historically low interest rate of 3% per year and intends to reactivate consumer buy-ins .
Despite the fact that economic support measures have become a reality, the current political scenario in Bolivia has made it difficult for them to materialize. A continuous struggle between the Executive Branch, which holds office, and the Legislative Branch, which holds a majority has seen the initiatives of one side opposed by obstacles from the other. This situation can be clearly identified with law projects in regards to international loans and sovereignty bonds proposed by the Executive Branch and blocked by Legislative Branch.
Although during the first months of the National Emergency the national economy was affected, as of June an increase in the labor market and in the generation of labor income could be witnessed, according to studies carried out by the National Institute of Statistics. Likewise, as a result of the implementation of virtual registries before the Trade Registry, there was an increase in the creation of small and medium enterprises, which implemented innovative business models and e-commerce in their offer of services and products. Also, because of the recently issued resolutions by the National Tax Service, tax incentive programs were created, implementing a system applicable to individual entrepreneurs and start-ups which offers access to a unique tax, as a replacement to traditional taxes applied to ordinary businesses.
We consider that despite the limitations COVID-19 brought to Bolivia and the world, it has given birth to what we call the Bolivian Legal System 2.0. This version comes with legal technology innovation, debureaucratization of public institutions’ procedures and new opportunities to reinvent business. It is necessary to adapt quickly to the new limitations and obstacles that are found in our reality, and to seek the effectiveness from the offer and customer satisfaction to provide the results that are sought.
The current situation has forced the state to adapt quickly, responding effectively with incentives that promote foreign investments likely to help the country’s continued economic growth. In this matter, new investments can count on a far higher level of legal protection than was offered by previous governments. The Government’s guidelines on new investments are certainly promising, and investors can have every confidence that legal protections are robust and will be enforced.
Thus, even though we are aware that much more needs to be done, COVID-19 certainly changed the rules of the game and government officials must continue to promote Bolivia as a promising emerging market, securing not only local but international investments. They must, they will.
