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 KKRs sale of a 45% stake in Alliance Boots to Walgreens, and CVCs 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 Europes 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 UKs embedded practices. European companies will continue to seek out UK schemes of arrangement.
- In-house dont 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 EUs 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 dont 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.
- 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
- 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
- Theres no one-size-fits-all solution to competition compliance: programmes must be appropriate for the specific company
- 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