IFLR European In-House Counsel Summit 2013 - Overview

January 24, 2013 - The Waldorf Hotel, London

Over 200 lawyers from corporates and banks gathered at the Waldorf Hotel in London for the inaugural IFLR European In-house Counsel Summit on January 2013.

"Well smooth run operation" - Douglas Coster, senior in-house legal counsel, Portigon
"High quality of speakers on a broad range of relevant topics" - Delegate

The programme was developed in conjunction with general counsel and delivered an update on a range of legal and commercial issues that in-house counsel face on a daily basis.

There was a special focus on matters relating to financial law, including M&A, capital markets and competition. There were also panel discussions on liability management, dispute resolution, corporate governance, employment and intellectual property.

Please scroll down for the 
KEY TAKEAWAYS from each session:

M&A and private equity issues

  • Expect more partial private equity exits, similar to KKR’s sale of a 45% stake in Alliance Boots to Walgreens, and CVC’s share reduction in Formula 1 prior to its IPO
  • Dual-tracks will continue as sellers look to retain flexibility. They may, however, be wary of the expense involved in a triple track
  • For success in emerging market M&A, get local lawyers and regulators on board early
  • Even in Europe’s depressed M&A market, there is no significant shift to buyer protections
  • This year there will see less emphasis on market Macs, especially those referencing the Eurozone breakup possibilities

Restructuring: techniques for managing your liability

  • A primary consideration for banks, when structuring their own deals, is the risk provisioning against the transaction. This will become even more important as capital and liquidity rules take effect.
  • A key lesson from financial crisis was no cookie-cutter deals. Even boilerplate provisions are being scrutinised before being included in documentation.
  • Proposed changes to EU cross-border insolvency laws will have limited impact on the UK’s embedded practices. European companies will continue to seek out UK schemes of arrangement.
  • In-house don’t want external lawyers in ivory towers. They should work themselves into the business as if they are a part of it; they need to be “in your face”.
  • In-house there is increasing teamwork (especially with compliance) and greater demands on legal teams to be proactive in finding alternatives and solutions.
  • When choosing panels, corporates are looking for firms that excel in particular areas, rather than those with broader experience.

Capital markets: debt and equity developments

  • European regulations have failed to open regional debt and equity markets. Much greater coordination between national regulators is needed for this to change.
  • The EU’s Prospectus Directive has complicated documentation requirements for retail debt issuances in particular. It is expected to encourage unregulated market listings and foster use of more manageable product-specialised base prospectuses
  • Pharmaceutical, biotech and IT companies should take advantage of the US Jobs Act to list in the same market as their peers. But don’t expect a big rush – many banks and companies remain unwilling to expose themselves to the litigation risk profile of the US
  • Recent FSA enforcement actions have pushed the bar lower regarding what constitutes insider information. As a result, any pre-deal conversations with buy side must be wall-crossed on taped lines so you can evidence what was said, and a sensible process should be established regarding the cleansing of buy side.
  • More retail high yield bond issuances are expected in 2013 but this has created increased reputational and litigation risk at least for non-investment grade issuers.

Corporate governance

  • Anti-bribery compliance procedures must still remain at the centre of the business agenda post UK Bribery Act
  • Companies need to install a set of procedures that work for employees on a day-to-day basis
  • Companies in emerging markets can find it particularly challenging to comply with often-conflicting anti-bribery regimes, as well as local laws
  • Gender diversity initiatives in the workplace can risk encouraging a tick-box mentality

Disputes: alternatives for the UK courts

  • The key advantage of using the English courts is the premium judges place on getting to the right answer. The major disadvantage is the high cost
  • In contrast, the alternative dispute resolution route can be cost and time efficient, with agreements usually reached within two months
  • Exploring different ways to fund litigation is one of the key trends in the UK litigation system
  • Big corporates should think about commercial litigation funding arrangements as a way of controlling risk

Competition issues

  • Fees are becoming higher in merger control, with more intrusive powers in the case of completed mergers that have not been notified
  • The removal of the dishonesty requirement from the UK criminal cartel offence may not prevent a jury from continuing to look for evidence of mens rea
  • The Competition Commission can impose a wide range of remedies, even though companies are not breaking the law
  • There’s no one-size-fits-all solution to competition compliance: programmes must be appropriate for the specific company

Employment responsibilities

  • Statutory and regulatory changes in the US not only protects, but also incentivises whistleblowers
  • There is a lot more the government can do to free up the labour market and make it easier for companies
  • There is more willingness to look at alternative means to save jobs
  • Companies struggle to come up with golden handcuffs to keep people in place

Intellectual property: protecting your brand and profiting from it

  • Corporate use of social media is inclined towards advertising and there are legislative and self-regulatory frameworks to consider
  • If the public identifies a colour and sees it as representative of a product then businesses may even protect colour as a trade mark
  • Publicly provided data can be protected by database rights which protect the gathering and presentation of data but not its creation
  • Patent Box legislation is a 10% corporation tax (reduced from 23%) on profits attributable to patented innovation and the scope of this is extremely wide

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