Ushwin Khanna

BACKGROUND

Ushwin Khanna is a Consultant with Anjarwalla & Khanna. His practice focuses mainly on civil and commercial litigation, admiralty and maritime law, appellate practice, commissions of inquiry and alternative dispute resolution. He has been a member of a task force appointed by the Attorney General to review all maritime laws in Kenya.

Ushwin obtained his LL.B from the University of Nairobi and a postgraduate diploma from the Kenya School of Law.  He is a member of the Law Society of Kenya.

Ushwin is also a Certified Professional Mediator (PM) having completed a course with Mediation Training Institute (MTI).


MEMBERSHIP IN PROFESSIONAL SOCIETIES

  • Law Society of Kenya
  • International Bar Association (IBA)

PROFESSIONAL QUALIFICATIONS

1973: Kenya School of Law, Postgraduate Diploma, Kenya

1972: University of Nairobi, Bachelor of Law, LL.B,


CAREER SUMMARY

2016 – Date: Consultant, Anjarwalla & Khanna

2000 – 2016: Partner, Anjarwalla & Khanna

1996 – 1999: Partner, Anjarwalla Abdulhusein & Co Advocates

1986 – 1993: Partner, Bryson Inamdar & Bowyer Advocates

1982- 1986: Partner, Hamilton Harrison & Mathews (Merger between Bryson Inamdar & Bowyer Advocates)

1974 – 1978: Partner, Veljee Devshi & Bakrania


AWARDS AND ACCOLADES

  • Ushwin was recognised by Chambers Global 2016 as ‘appears as notable practitioner’.
  • Voted as winner in the category of  Litigation & dispute resolution – Kenya  by Lawyer Monthly Legal Awards 2015.
  • Voted one of the best litigation and maritime Lawyers in Kenya – Best Lawyers International 2014

AREAS OF EXPERTISE

  • Admiralty Maritime & Shipping
  • Litigation and Dispute Resolution

LANGUAGES

  • English
  • Kiswahili

LOCATION

  • Mombasa

TOP MATTERS

  • Acting for Geyser, a BVI registered company that owns a parcel of valuable land in Miritini near the Mombasa port. The land was intended for the expansion of the Global Tea factory, the second largest user of the port and the maker of world famous tea brands such as Kericho Gold and Typhoo. The land is subject to compulsory acquisition by the National Land Commission (NLC) on behalf of Kenya Railways for the Standard Gauge Railway (SGR), a Vision 2030 project. A&K was involved in drafting submissions for the compensation hearing, attending the hearing and making oral representations. The Mombasa County government subsequently objected to the validity of our title and the NLC initiated a separate review of the same, where we attended the review hearing and made oral submissions as to the validity of title. We filed a constitutional petition for breach of the right to property as no award had been made and there has been unreasonable delay. We obtained an interim injunction from the Mombasa High Court preventing entry onto the land pending trial. China Road and Bridge Co (CRBC), the main contractor for the SGR, trespassed onto our client’s land after the injunction and we have filed contempt proceedings against the MD of CRBC, the MD of Kenya Railways and the chairman of the NLC. Since that time, the NLC has made a formal award for our client’s land and compensation for the damaged boundary wall, which we have accepted. However, the contempt proceedings are ongoing. The NLC has also gazetted a fresh notice to acquire more of our remaining land and we await notice of the compensation hearing for the same. We have not received payment under the first award and intend to proceed to Court if the same is not paid shortly.
  • Acting for the Petitioner in this case, that has built 73 holiday apartments along the beach and is being denied access to the beach by the respondents who have acquired two plots over riparian land and which titles the Petitioner seeks to have nullified. In a Constitutional Petition filed in the High Court at Mombasa the Petitioner claimed that a right in the Bill of Rights had been denied and infringed by the Respondents and it sought several remedies under Article 23 of the Constitution of Kenya, including various declarations, permanent and mandatory injunctions and orders of judicial review. The Respondents opposed the Petition on a number of grounds, including locus standi and time bar. The High Court allowed the Petition, granted the declarations, injunctions, judicial review orders and costs. The Respondents however successfully appealed the decision before the Court of Appeal on several grounds, inter alia, that the High Court Judge was wrong to judicially review administrative actions which occurred over 20 years ago, thereby applying Article 47 of the Constitution, relating to fair administrative actions, retrospectively. The Court of Appeal held that the entire Petition was anchored on the provisions of Article 47, and that the said Article was not retrospective in nature. The Petitioner has now appealed to the Supreme Court by way of a Petition for interpretation of Article 47 and for the Court to decide whether or not, in the circumstances and facts of the Petition, the Article can operate retrospectively. A&K has been active throughout the proceedings from the inception and the matter is important as it involves several issues of Constitutional law including the interpretation of the provisions of the Constitution by the Supreme Court. A&K is acting for the Petitioners in the High Court, the 1st and 2nd Respondents in the Court of Appeal and now for the 1st and 2nd Appellants in the Supreme Court.
  • Reviewing the maritime laws including the Carriage of Goods by Sea Act Cap. 392, The Merchant Shipping Act, 2009, The Admiralty Jurisdiction Bill, Kenya Ports Authority Act (Cap 391); Maritime Zones Act (Cap 371); the Marine Insurance Act (Cap 390) the Lakes and Rivers Act (Cap 409); the Ferries Act (Cap 410) and making recommendations for appropriate legislation to replace or amend various provisions of the maritime law statutes.
  • Examining and reviewing the relevant pollution prevention conventions and existing environmental legislation with a view to establishing a co-ordinated and comprehensive marine pollution regulatory regime.
  • Examining and reviewing the current legislative framework governing the admiralty jurisdiction of the Kenya High Court in respect of matters arising on the high seas or in territorial waters in Kenya with a view of safeguarding Kenya’s international interests.
  • Making recommendations on proposed legislation to consolidate admiralty jurisdiction within Kenya and drafting a proposed Admiralty (High Court Jurisdiction) Bill for consideration and future enactment.
  • Making recommendations on proposals for reform or amendment of maritime laws and their implementation in line with international conventions and recommendations of International Maritime Organization (IMO) and other treaty instruments and protocols to which Kenya is a party.
  • Represented a company for recovery of salvage claims where the Court was asked to consider whether it had admiralty jurisdiction to entertain the claim and whether the claim was one of towage where no maritime lien arose.
  • Representing a large company on its tax dispute with the Kenya Revenue Authority in a local committee tribunal and subsequent appeal to the High Court.
  • Handled various matters relating to Multimodal and Transport litigation including claims or defences filed in respect of short landing or damage to clients’ goods being transported by road and claims for demurrage charges for delays in discharging containerized goods from vessels or return of containers under the terms of contract.
  • Advising on claims or defences relating to cargo claims arising from Bills of lading in respect of loss, damage or short delivery of goods by sea where the Hague/Visby Rules apply.
  • Reference to arbitration in respect of disputes arising under contract for delivery of goods to the consignee.
  • Advising on Charterparty Agreements.
  • Advising on clearing and forwarding of goods from the port in the event of disputes and claims arising therefrom.
  • Advising on bailment and warehousing agreements and disputes arising therefrom.
  • Undertaking a due diligence on the litigation portfolio in connection with an acquisition of one of the largest horticultural and floricultural companies in Kenya.
  • Advising various clients on risk mitigation processes and procedures concerning litigation management including advising on suitable reporting structures, procedures for appointment of advocates and the preparation of litigation monitoring templates.
  • Representing the Speaker of the National Assembly and the Parliamentary Select Committee appointed by the House before a Constitutional Court on issues relating to Parliamentary Privilege and Separation of Powers.
  • Advising on and defending a claim brought by cargo interests on behalf of owners of a vessel which had been highjacked by pirates and eventually released on a large ransom payment whereupon general average was declared.
  • Arresting bunkers on board a vessel and for delivery up of bunkers which were taken on board due to default of payment by the Charterers following a dispute between the vessel owners and Time Charterers.
  • Arresting a vessel for security in respect of a dispute referred to a London Arbitration and thereafter arranging for a judicial sale and determination of the creditors’ claims on priorities.
  • Defending an Admiralty Claim and obtaining release from arrest a vessel under demise charter in respect of cargo damage caused by an explosion on board.
  • Advising and representing several International Ship Owners and Shipping Line Agents in a Constitutional Petition to declare some sections and regulations of the Merchant Shipping Act, 2009 Cap. 389 Laws of Kenya (Act) as unconstitutional. The Petition has been successfully determined in favour of the Petitioner by the Constitutional Court, which has declared the various sections and the regulations of the Act as unconstitutional.
  • Advising and defending a limitation claim brought by a dredger which damaged a submarine fibre optic cable and disputing the limitation fund constituted by the Plaintiff under the provisions of the Merchant Shipping Act, 2009, 389, Laws of Kenya.
  • Acting for ship owners in disputing the Admiralty Court’s jurisdiction to hear and determine an action in rem on the grounds that the Admiralty Jurisdiction had not been invoked nor had the mandatory practice directions been complied with following the arrest of their vessel.

 

Edith Nordmann

Edith Nordmann is Managing Partner at ACG International in Amsterdam where she also heads the commercial litigation and employment law departments. 

She is a highly experienced corporate and commercial litigator, with an expert qualification in employment  law, who has been representing both companies and private individuals in highly complex matters. 

Prior to becoming Managing Partner at ACG International, Edith was working as an attorney and, consequently, as a partner in a two specialized boutique law firms, with a strong focus on cross-border cases. Edith has a vast expertise in cross-border business transactions, contract disputes, and national and international litigation. In addition, Edith is a certified mediator, who assists her clients in finding amicable resolution of their disputes.

For more than fifteen years Edith has been working with international clients from all over the world. Being fluent in German (native speaker), English, Dutch, French and Italian, Edith is not only able to communicate with many of her international clients in their mother tongue, but also to understand the difference in mentality, culture and legal systems. Through her deep-seated local knowledge and international networks across practice areas and borders, Edith uses her business minded strategic approach to assists her clients in getting deals done and finding solutions that achieve the best results for their actual needs. 

Next to her professional career Edith engages in many charitable and social organizations using her professional expertise, not only helping others but also empowering them in their endeavors. 

As a public speaker she has shared her knowledge on various international conferences. Recently, Edith was invited to give a presentation about the Netherlands Commercial Court in New York International Arbitration Centre to educated New York attorneys about the new international venue. 

Edith was awarded “Women of the Decade in Law & Social change” by the Women Economic Forum in 2017. 

You can read an interview with Edith here: https://acginter.com/pages/EN/interview-managing-director-edith-nordmann

Admissions: 

Dutch Bar Association 

Certified Mediator in Mediators Federation in the Netherlands

Professional affiliations: 

Chairman of the Netherlands India Chamber of Commerce and Trade

Vice Chairman Supervisory Board of Rochdale 

Member of the European American Lawyers Group

Member of ADAM Global 

About the law firm:

Attorney Consulting Group International (ACG International) is a full-service law firm focused on companies that are engaged in international trade and innovation. ACG International is based in Amsterdam, and is active around the globe. ACG’s Dutch and international attorneys and lawyers are known for being individual experts in their fields and for their ability to join forces across practice areas and borders, to get deals done and to find solutions that achieve the best results for our clients’ needs.

How we best serve your needs and get the results you want to achieve:

We believe that clients today are looking for a legal adviser who is quick, efficient, down to earth, proactive and cost-aware. Our team consists of such professionals. Each of the professionals that will support you is a highly qualified  with diverse legal background, experience in different jurisdictions and a strong client-oriented mindset. We use our professional and cultural differences to achieve one common goal, which is to serve our clients in achieving the most beneficial results. Our constant international exposure and expertise enabled us to create a worldwide network of professionals, which gives us access to have all the experience, knowledge and the people to resolve our clients’ most complicated challenges and legal disputes. 

We provide comprehensive legal support in commercial, corporate, employment, litigation, mediation, arbitration, data protection and privacy. Apart from the main focus areas, we are specialized in international trade and cross-border transactions, business in German-speaking countries, starting a project in Switzerland, entering a European market and other. 

Why ACG International?   

Our clients are our main priority. In our experience, the most beneficial results come from an open, transparent and collaborative relationships with our clients. For this reason, we heavily invest in understanding our clients’ values and needs, maintaining constant dialogue with them and always keeping them involved and updated on their cases. Such collaboration is fundamental to our success, as it helps us build long-term relationships with each of our clients based on trust and loyalty. 

Our diverse experience and cultural background allow us to speak your language. Even though English is a universal business language and we can communicate real time with our business partners around the globe, cultural differences are often crucial in the outcome of negotiations and the success of your cross-border business relations. Our attorneys come from the most culturally diverse countries with different mentalities and sets of values. Combining our in-depth legal insights with innate knowledge of foreign cultures and their expectations, allows us to guide you through your cross-border business relations in the most effective, cautious and favorable way. In addition, we speak English, Dutch, German, French, Italian, Russian, Ukrainian, and Croatian.

Our broad international network provides global legal support. ACG International goes beyond a conventional team of attorneys. While our law firm consists of highly experienced practitioners, ACG International also provides each of our clients with a unique access to a broader network of professionals. We work side-by-side with attorneys from across the world, specialized in different jurisdictions, legal systems and areas of law, which allows us to assist our clients in the most profound way.

US lateral hires: Asda shows a payoff for Gibson Dunn’s competition push

A cursory exploration of the hiring strategies of American firms in 2017 leads straight to Kirkland or Latham. Yet The Lawyer’s Top 50 US firms in London report shows the brouhaha around David Higgins eclipses other, equally targeted talent acquisitions. And arguably one of the most significant hires in the last few years has been not in private equity or leveraged finance, but in competition: namely, Ali Nikpay.

Catrin Griffiths

Nikpay joined Gibson Dunn in 2013, having built his career at DG Comp and then the OFT. This week he was named as the lead competition partner for Asda, working aside Slaughter and May partners Sally Wokes, Victoria MacDuff and Nigel Boardman on the megadeal with Sainsbury’s. Linklaters was on the other side, with partners Nicole Kar and Simon Pritchard leading on competition.

As co-counsel mandates go, it’s a plum job. And a US firm displacing the mighty competition department at Slaughter and May, no less, has not gone unremarked by City competition partners. “They’ll be bloody livid,” speculates one, with just the tiniest shade of glee.  Despite the fact that Slaughters’ Bertrand Louveaux had advised Asda on the Competition Commission’s market investigation into the supply of groceries in the UK and on the OFT’s investigation into dairy products – including representing Asda before the Competition Appeals Tribunal – Gibson’s Nikpay nevertheless managed to get the call.

US firms’ cheerleaders in certain sections of the press will no doubt heap yet more doom upon magic circle firms, but Nikpay’s success in getting through Asda’s door is down to a combination of specific circumstances. First – and this is where the network effect is a structural advantage – Gibson has a significant client relationship with Walmart. Washington DC partner Adam Vincenzo was lead antitrust counsel on Walmart’s $3bn acquisition of internet retailer Jet.com (cleared by the Federal Trade Commission in 2016) and on its 2017 acquisition of online retailer Bonobos. Nevertheless, what is more important is the specifics. As a deal precipitated by the threat of online retail, and in particular the faint rumble of Jeff Bezos’s tanks on the lawn, the competition elements of the Sainbury’s-Asda deal have attracted considerable notice from commentators.

Nikpay’s success on a superficially different but nevertheless related retail sector is significant here; namely, the 2016 merger between Gala Coral and Ladbrokes, a transaction that had been on and off the table for years. That deal, between the then-second and third largest bookmakers in the UK, was hugely dependent on regulatory approval, with Nikpay’s arguments that the deal should be analysed on a local not a national angle, and also through the lens of online competition, winning the day. Plaudits abounded. Several partners note Nikpay’s can-do attitude: “Ali is Mr Positive,” says one.

Nikpay’s background at the regulator – and his training as an economist – was a crucial selling point for Asda, and has been Gibson Dunn’s entry point into a number of UK corporates. “Antitrust undeniably raises political issues as well as technical issues,” says a City competition partner. “Ali has relationships and insights that the Slaughters team, brilliant though they are, don’t quite have in equal measure.”

It won’t be a one-off. What is more than ever at stake is understanding the regulator’s outlook in a landscape where digital has changed the game, and in a world where after March 2019 the CMA will have a considerably extended remit, including ruling on state aid.

Any hires from the regulator are all about getting insight into thinking; just look at the scramble for recruits from the enforcement agencies, the most recent being ex-DPP Alison Saunders to Linklaters. “The way the CMA and Commission look at markets doesn’t stand still,’ says one competition partner. ‘Some firms tend to go back to old cases to apply an existing methodology, but the CMA is constantly evolving its ideas.” The traffic between private practice and competition regulator is not high, but it has produced some quality catches, largely for magic circle firms: Nelson Jung at Clifford Chance, Simon Priddis at Freshfields and Linklaters’ Simon Pritchard, who is currently on for Sainsbury’s on the Asda deal. Nikpay aside, the only US firm hire of recent times was Jonathan Parker, who joined Latham as a partner after a stint as director of mergers at the CMA – prior to that he was a senior associate at A&O.

Private practitioners predict less traffic between private practice and the regulator in the near term, citing the internal restructure at the CMA that means that responsibilities are spread out between a larger number of team leaders, a move that is seen as partly defensive. “The CMA didn’t like one or two indiviudals having a huge amount of influence or being better known,” says one partner.

Still, now is the perfect time to join the regulator and make your name. The CMA has vacancies for a senior director in mergers and senior legal director in mergers, markets and sector regulation. The new technology team at the CMA, which will include the new post of chief data and technology insights officer, underlines the extent to which digital and online market disruption will dominate competition policy over the next few years. “It’ll be the most interesting time for them,” says one partner. “The big question is, are they going to have the cojones to take on someone like Google, going forward?”

But back to Sainsbury’s. Once Slaughters partners have recovered from their internal lament at missing the deal of the year, they will have some work to do to make sure no further ground is lost to the US. Once is unlucky, but twice would be a trend.

As GDPR looms, law firms do double duty on compliance

With just three weeks until the 25 May deadline, global firms are still grappling with the challenges presented by the new General Data Protection Regulation

For privacy and data security lawyers at global law firms, there’s never been a busier time.

BBC Broadcasting House

Pinsent Masons advises BBC over ‘Paradise Papers’ leaks

Pinsent Masons is advising the BBC as the broadcaster and the Guardian newspaper reach a settlement with offshore law firm Appleby over the ‘Paradise Papers’ data hack.

The litigation, which was settled Friday afternoon (4 May), comes after Appleby took legal action against both news outlets, citing breach of confidence following the data hack in May 2016.

In an agreed statement, the parties announced they had “resolved their differences”.

The statement continues: “Without compromising their journalistic integrity or ability to continue to do public interest journalism, the Guardian and the BBC have assisted Appleby by explaining which of the company’s documents may have been used to underpin their journalism. This will allow Appleby to initiate meaningful discussions with its clients, colleagues and regulators.”

The offshore firm had alleged that information leaked to German newspaper Sueddeutsche Zeitung (SZ) and subsequently passed on to the Guardian and BBC was “obtained unlawfully” in circumstances “likely to have amounted to the commission of a criminal offence or cyber-hack”.

Appleby said the leak coverered 6.8 million documents dating back to the 1950s, including loan agreements, financial statements, records of approaches from potential clients and records of legal advice, among other information.

The particulars of claim alleged that the Guardian and BBC should have known the information they had access to was confidential and subject to legal privilege, and that the publication of the documents did not meet the public interest test as “there was no ground to suspect that the confidential information disclosed illegal conduct” either by Appleby or its clients.

The offshore firm was seeking the delivery, destruction or deletion of the information, as well as financial damages covering the costs of dealing with “regulatory entities, clients, employees and agents”.

In their defence, both the BBC and the Guardian argued that there was a strong public interest in the publication of the information from the leak, while the BBC’s defence states that there were grounds for suspecting that the data contained evidence of unlawful activity by Appleby or its clients.

Both the BBC and the Guardian stated that they were unaware of the source that passed the leaked documents to SZ, and argued that they acquired the information lawfully.

A BBC spokesperson said: “We will continue to defend our journalism robustly.”

Pinsents technology, media and telecoms disputes partner David Barker acted for the BBC, with Catrin Evans QC of Matrix Chambers and Jonathan Scherbel-Ball of One Brick Court instructed as counsel.

ASHURST

Ashurst carries out secretarial review with 80 jobs at risk

Ashurst is carrying out a review of its business services function, scrapping the position of executive assistants to bringing in a new business services role of “practice executive”.

This move puts 80 secretarial roles in London at risk.

There will be 35 practice executives in London, covering a broader line of work than traditional secretaries such as business development and client relationships.

Alongside practice executives, the firm will also hire 31 team executives who will be based in London and Glasgow. An additional 12 team assistants will also be recruited to carry out the more routine secretarial and administrative tasks previously undertaken by EAs.