What are the most significant cases or transactions that you have been involved in over the past year?

The biggest achievement of the legal department over the past two years has been the transition from the construction to the operational phase of the project. This encompasses the legal support in determining the best strategy to issue the Provisional Acceptance Certificates for the fourteen packages of the project. To that extent, we have been required to provide claims strategies to the management and directors of the company, including advising on encashing performance bonds and preparing our defence against injunction applications. Most of the time, we have participated in several negotiations with different contractors to find amicable settlements. However, when this was not possible, we have supported arbitration strategies, which included assisting witnesses with their statements, reviewing expert reports with external counsels, attending hearings, and drafting Calderbank offers while keeping our Directors updated. Once the last Provisional Acceptance Certificate has been issued, the company has been able to declare the Commercial Operation Date, which is crucial for triggering the full enforcement of the Offtake Agreements. This is a significant milestone for the company, as it will start generating revenue, allowing shareholders to recoup their investments.

Furthermore, we have been working on centralising the compliance function to bring coherence, strength, and agility to our compliance strategy. We have designed and implemented a compliance module that enables the creation of a legal register encompassing legislations, regulations, licenses, and permits, as well as establishing a system under which each department remains accountable for identifying and reporting any non-compliance. Centralising the compliance function under the legal department has allowed the company to strengthen compliance by improving consistency, ensuring uniform application of policies and procedures across the entire organisation, and reducing the risk of inconsistencies and non-compliances. It has also enhanced efficiency by streamlining compliance efforts in one place, leading to better resource utilisation, avoiding duplication of efforts, and saving time. Moreover, consolidating expertise in one unit allows for more specialised knowledge and skills, improving the overall quality of compliance management. Additionally, we have improved risk management by identifying, assessing, and managing risks across the organisation, enhancing overall risk mitigation. Establishing and maintaining clear lines of responsibility and accountability has provided more visibility on the company’s compliance maturity to its management and directors. Finally, it has fostered better communication and coordination of compliance activities, ensuring that everyone is on the same page and enabling quick adaptation to regulatory changes to ensure the organisation remains compliant.

Based on your experience, what is the key to collaborating successfully with business partners? 

The key is to build relationships based on mutual trust and understanding, which requires several important attributes. Communication must be clear, open, and honest, ensuring that partners are kept informed about relevant legal issues. In-house counsels should also demonstrate a genuine interest in the business and goals of the company they represent, as this helps in providing tailored legal advice that aligns with business objectives. This is a key distinction from external counsels, who tend to provide legal opinions based solely on the law, often without considering the business needs of their clients.

Moreover, the most senior in-house counsels must anticipate potential legal issues and address them before they escalate. This proactive approach is particularly appreciated by business partners, as it provides them with the flexibility and time needed to adjust their strategies, thereby avoiding costly and time-consuming corrective measures. It is essential to adopt a problem-solving mindset, focusing on finding solutions that benefit all parties involved rather than simply pointing out obstacles. There is nothing more frustrating for a business partner than an in-house counsel highlighting a problem with a business strategy they are trying to implement without suggesting a solution. I always remind my team that identifying a problem is only half the job; they must come to their business partners with a solution.

Relationship building is also crucial; both in-house counsels and business partners should invest time in understanding each other’s personalities and working styles. While this may take some time, building a personal rapport can significantly enhance collaboration. Ultimately, the most important aspect is to be seen as a partner rather than a gatekeeper. Once you establish yourself as a partner, you will be involved more and earlier, enabling you to be more efficient in advising and supporting your business partner.

Which political, economic or regulatory changes have impacted your work the most in the past year?

In 2023, as General Counsel of an oil and gas company, my role has been significantly impacted by several changes.

Geopolitical tensions have created ongoing conflicts, notably in Ukraine and the Western sanctions against Russia, as well as unrest in the Middle East, which have led to supply disruptions and price volatility. I have had to navigate complex legal, compliance, and insurance issues arising from these geopolitical dynamics, particularly when reviewing the consequences of such conflicts on the Crude Oil Supply Agreements.

Energy transition policies have also played a crucial role, as governments worldwide continue to push for cleaner energy sources. This has resulted in new regulations and policies aimed at reducing carbon emissions. Malaysia is no exception, with the National Energy Transition Roadmap (NETR) launched by Prime Minister Datuk Seri Anwar Ibrahim. I must ensure compliance with these regulations while supporting management in identifying their long-term impact on the company’s business strategy and objectives. As PRefChem is committed to sustainability, we have integrated environmental requirements into contracts with key suppliers to ensure that our environmental objectives are met.

Lastly, the volatility of energy and commodity prices has continued to affect oil and gas operations, along with chemical feedstock costs, construction projects, and manufacturing inputs. As the General Counsel of the largest integrated refinery and petrochemical complex in Malaysia, I have had to manage the legal risks associated with these economic uncertainties and advise on strategic decisions. To that end, we have been supporting the Commercial team in mitigating the financial impact of such volatility.

 What is a cause, business-related or otherwise, that you are passionate about, and why?

As an empanelled Arbitrator and Fellow of the Chartered Institute of Arbitrators, I have developed a genuine interest in Alternative Dispute Resolution and Arbitration over the years. These methods offer efficient and cost-effective solutions, providing a dynamic and engaging way to resolve conflicts outside the traditional court system while ensuring flexibility and confidentiality for the parties involved. With nearly 20 years of post-qualification experience, I have had the opportunity to participate in several arbitrations and adjudications. However, I have observed that very few arbitrators come from an in-house background, which I find regrettable. In-house counsels can make excellent arbitrators, adjudicators, or mediators for several key reasons.

First, their industry expertise equips them with a deep understanding of specific industries and the business context behind disputes. Additionally, they possess practical problem-solving skills, allowing them to balance legal and commercial considerations effectively in order to find pragmatic solutions. Their ability to communicate and negotiate with various stakeholders demonstrates their agility in complex situations. Moreover, in-house counsels frequently handle intricate legal issues, bringing valuable experience to arbitration or alternative dispute resolution (ADR) processes. Finally, their roles often necessitate impartiality and fairness, which are essential traits for any arbitrator, adjudicator, or mediator.

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Bergerat was also on the 2022 GC Powerlist Southeast Asia for his contribution as general counsel of Nghi Son Refinery and Petrochemical in Vietnam.