HONG KONG HK

Slaughters adds Hong Kong partner in third-ever lateral hire

Slaughter and May has made its second-ever external partner hire in Hong Kong, and its third-ever globally, as investigations and litigation lawyer Wynne Mok joins as a partner.

Mok arrives from the Hong Kong Securities and Futures Commission–the equivalent of the Securities and Exchange Commission in the Chinese territory–where she was a director of enforcement. In that role, she managed complex litigation and helped shape the commission’s regulatory policy.

Before taking on a role with law enforcement in 2016, Mok was a disputes partner with Norton Rose Fulbright where she handled SFC and Hong Kong Stock Exchange-related litigation and investigations for Hong Kong-listed Chinese companies. Earlier in her career, she practiced with Hong Kong firm Deacons and legacy Barlow Lyde & Gilbert (which merged with Clyde & Co in 2011).

At Slaughters, Mok will focus on regulatory inquiries and investigations and work with the firm’s London, Beijing and Brussels offices on multi-jurisdictional investigations.

Slaughters Hong Kong senior partner Peter Brien said: “Wynne Mok is a highly respected practitioner who brings a combination of regulatory experience at the highest level and an outstanding track record of advising clients on complex litigation and investigations.  She will play a key role in continuing to build our long-established Asian practice.”

Mok is the second lateral partner hire Slaughters has made in Hong Kong after taking on US securities law partner John Moore in 2014 from Morrison & Foerster. Moore had previously worked for the Hong Kong Stock Exchange, Goldman Sachs and Herbert Smith Freehills (HSF).

Emmanuel PHOTO

Damages For Unlawful Termination Of Employment In Nigeria

All employment has its terms. The terms may be written in a single contract, several documents, custom and usage or inferred from the conduct of the employee and his employer. The terms of employment usually stipulates the procedure, notice and termination package in which the employer would pay to the employee upon termination of the employee’s employment.

It therefore behooves of the employer to terminate the employee’s employment in line with the provisions of the employee’s terms of employment. Consequently, termination of the employee’s employment is said to be unlawful, if the employer fails to terminate the employee’s employment in line with the provisions of the employee’s terms of employment. What then are the damages which will accrue to the employee for unlawful termination of his employment by the employer?

Employment with statutory flavor

An employment with statutory flavor is an employment which is provided by an extant statute. Civil servants fall under this category. The law is settled that where the employment of an employee with statutory flavor is terminated without recourse to the laid procedure in the relevant statute or statutes as the case may be, the court would order that the employee be reinstated. The employer in such a case is liable to pay the employee all outstanding salaries and allowances during the entire period which his employment was unlawfully terminated.

Employment by contract

Unlike an employment with statutory flavor, where the employment of an employee by contract is unlawfully terminated, the employer is liable to pay only what he would have paid had the employment of the employee been properly terminated. The employee is not entitled to reinstatement because the court cannot force an employee on an unwilling employer and vice versa. This means if for instance the employee’s terms of employment stipulates that the employee is entitled to pension, gratuity and 3 months’ notice for termination of his employment, upon the court arriving at a decision that the termination of the employee’s employment is unlawful, it can only order the employer to pay the employee his pension, gratuity and 3 months’ salary in lieu of notice and nothing else.

Employment at will

An employer under common law has the right to hire and fire. An employee at the will of the employer can be summarily dismissed with or without reason. However, if an employee’s employment is terminated on allegation of crime, a competent court must hold the employee guilty of the crime; otherwise the termination of the employee’s employment on allegation of crime is unlawful.

Can a Nigerian court grant damages for psychological, emotional pain and distress claims for unlawful termination of contract of employment?

Unlike in the UK and other commonwealth jurisdictions, a Nigerian court would not grant damages for psychological, emotional pain and distress claims of an employee for unlawful termination of his contract of employment by the employer.

Takeover

Slaughters and Linklaters lead on Takeda’s £43bn takeover

Slaughter and May and Linklaters are advising as Japan’s Takeda ups its bid for Irish drug company Shire, with an offer valuing the company at around £43bn.

Takeda presented Shire with a new offer worth about £47 per share, after its third attempt – worth £46.50 per share – was rejected on 19 April, when Shire said the bid undervalued its growth prospects.

Linklaters is advising Takeda on its attempt to takeover the company, with a team led by global corporate chair Matthew Middleditch in London, alongside corporate partners James Inglis, Aisling Zarraga and Sarah Flaherty. Global head of US, Tom Shropshire, and Japan corporate partner Hiroya Yamazaki are also advising.

Slaughters is acting for regular client Shire, with City corporate partners Martin Hattrell and Christian Boney at the helm.

The firm previously took the lead for Shire alongside Ropes & Gray when it made an unsolicited $30bn (£19.2bn) approach for rival drug company Baxalta in 2015. The companies went on to complete a $32bn merger the following year. Hattrell also advised on that deal, working alongside fellow corporate partner Adam Eastell, who joined tech company Eigen as GC last year.

Hattrell previously represented Shire in its 2015 acquisition of US company NPS Pharmaceuticals for $5.2bn (£3.34bn) and in 2014, when it was the subject of an attempted takeover by US drugmaker AbbVie in June 2014.

Takeda has previously used firms including Cleary Gottlieb Steen & Hamilton in addition to Linklaters. Last year, Cleary advised the pharmaceutical company on its $5.2bn acquisition of US-based rare cancer drugmaker Ariad Pharmaceuticals. Ariad was represented by Paul Weiss Rifkind Wharton & Garrison.

Eye

Slaughters gets the call on Ultra Electronics corruption probe

Slaughter and May is acting as principal adviser for defence and technology group Ultra Electronics as it faces a criminal investigation by the Serious Fraud Office (SFO).


 

A&O, CC, CMHM star in $1 bln Laos hydropower project

Allen & Overy has advised Laos’ Phonesack Group and Thailand’s Electricity Generating Public Company Limited (EGCO) as sponsors of the $1 billion Nam Theun 1 hydroelectric power project, with Clifford Chance and Thai law firm Chandler MHM (CMHM) advising the lenders. DFDL advised the sponsors as Laos counsel.

The 670-MW Nam Theun 1 hydroelectric plant will be located on the Nam Kading River, about 33 km upstream from its confluence with the Mekong River in Laos’ Borikhamxai province.  The lenders included Bangkok Bank, Export-Import Bank of Thailand, Siam Commercial Bank and TISCO Bank. Partner Fergus Evans led the transaction for Clifford Chance, while the CMHM team was led by partner Joseph Tisuthiwongse.

CMHM previously represented the lenders on the development of the Nam Theun 2 hydroelectric power project in Laos, which commenced operation in 2010. The Nam Theun 1 project has entered into power purchase agreements with the Electricity Generating Authority of Thailand and Electricité Du Laos to supply 514.3 MW of power to EGAT, and 130 MW to EDL for 27 years, starting from 2022.

handshake deal

McDermott recruits four-strong team from Dechert

Dechert life sciences exits continue as Frankfurt team leaves for McDermott.

McDermott Will & Emery has sealed the hire of a four-lawyer Frankfurt team from Dechert’s life sciences practice.

Freshfields Paris office head exits for Jones Day

Elie Kleiman is reunited with Freshfields’ former French real estate team who joined the US firm last year.

Freshfields Bruckhaus Deringer Paris head Elie Kleiman has joined Jones Day in the French capital.

 

Merger talks begin between Allen & Overy & US firm O’Melveny

Allen & Overy (A&O) has entered merger talks with US firm O’Melveny & Myers which could create a £2bn global law firm, Leaders in Law understands.

The magic circle firm has long desired a US merger and talks are thought to have been progressing for a number of months with senior partner Wim Dejonghe and managing partner Andrew Ballheimer thought to be running the talks.

A&O has made several overtures towards the US in recent years, breaking its lockstep for the first time to bring in several US partners nearly two years ago.

Since then, rumours of need to expand in the US had circulated with O’Melveny frequently mentioned as a merger candidate for the magic circle firm.

A spokesperson for A&O said: “While we have said for several years that we are open to considering a merger with the right partner in the US, we talk to many law firms in many countries all of the time and we do not comment on market speculation and rumours regarding any particular firm.”

A&O has hired from O’Melveny in the past, bringing in Barbara Stettner, Chris Salter and Charles Borden as partners in July 2011 to open the firm’s Washington DC office. Five years earlier, A&O turned to O’Melveny when hiring banking partner Elizabeth Leckie to bolster its New York office.

One West Coast-based partner at a rival firm told The Lawyer:  “Everyone knows it’s been A&O’s strategy for a while to expand their global footprint. They need to do something, A&O hasn’t got the US presence that it would ideally like.”

“Does it surprise me?” added the partner. “No.”

While rumour has circulated for several years over A&O’s US expansion plans, the firm was thought to have been cool on the idea of merger.

Market sources indicated that Shearman & Sterling was being touted for a potential major US tie-up, though Ropes & Gray and Fried Frank had also been mentioned in the same vein.

Of its existing US relationships, A&O is thought to work frequently with Fenwick & West, primarily on intellectual property matters.

A spokesperson for O’Melveny said: “We have no plans to merge and never have.”

 

Emmanuel PHOTO

Procedure For Recognition And Enforcement Of Foreign Judgments In Nigeria

a. Enforcement by registration

This is the common method of enforcing foreign judgments in Nigeria. The judgment must be a judgment of a superior court of the foreign country with reciprocal treatment with Nigeria. The judgment must also be a monetary judgment, final and conclusive between the parties. Under the Reciprocal Enforcement of Judgments Rules 1922, a judgment creditor shall by an exparte application, apply for leave to register a foreign judgment within 12 months from the date the foreign court delivered the judgment.

Nevertheless, the court may direct that the judgment debtor should be put on notice. The Rules suggests that a Nigerian court can extend time within which a judgment creditor may apply to register a judgment. Generally, an application for extension of time within which to register a judgment outside the statutory period shall involve the exercise of the judge’s discretionary power which is exercised judicially and judiciously with regard to the circumstance of the case.

The application shall be by originating motion or petition brought pursuant to the Reciprocal Enforcement of Judgment Ordinance, 1958 (“the Ordinance”) and praying the court for leave to register the foreign judgment. The application shall be accompanied by an affidavit which shall state that the judgment does not fall within the cases in which it may be set aside under Section 3 (2) of the Ordinance. The affidavit shall also give the full name, title, trade or business and usual or last known place of abode or business of the judgment creditor and judgment debtor. A certified true copy of the judgment shall be exhibited. The application and affidavit shall be titled “In the Matter of the Reciprocal Enforcement of Judgments Ordinance and in the matter of a judgment of the …. (describe the court) obtained in … (describe the cause of matter) and dated the …day of ….20….”

If the court orders that the judgment debtor should be put on notice, the application shall be served on the judgment debtor in the same manner as a writ of summons. The judgment debtor shall not be required to enter any appearance at this stage. Where the court grants leave to the judgment creditor to register the judgment, the court’s order shall state the time within which the judgment debtor shall apply to set aside the registration. Such time shall be 14 days if the judgment debtor is resident within the jurisdiction of the court and when the judgment debtor is resident outside the jurisdiction of court, the time to be given to the judgment debtor to apply to set aside the registration shall be determine by the distance between the judgment debtor’s residence and the jurisdiction of the court. The register of judgments registered under the Ordinance shall be kept in the High Court Registry under the direction of the Chief Registrar.

b. Enforcement by an action at common law

If for any reason, the judgment debtor cannot register the judgment, he may do so by commencing an action upon the judgment. This also applies to judgments from countries without reciprocal treatment with Nigeria. The foreign judgment constitutes a cause of action upon which the judgment creditor will commence a summary judgment proceeding to recover the judgment debt thus avoiding the process of adducing evidence and calling witnesses to prove its case. This is because the judgment debt constitutes a liquidated sum and ordinarily the judgment debtor does not have a defence on the merit against it.

c. By operation of Section 10 (a) of Foreign Judgments (Reciprocal Enforcement) Act, CAP F 35, LFN, 1990

Section 10 (a) of the 1990 Act provides that;

“Notwithstanding any other provision of this Act—

a. a judgment given before the commencement of an order under section 3 of this Act applying Part I of this Act to the foreign country where the judgment was given may be registered within twelve months from the date of the judgment or such longer period as may be allowed by a superior court in Nigeria”.

In Teleglobe America Inc v Century Technologies Ltd (2009) CLRN 9, 32, the Court of Appeal, per Regina Obiageli Nwodo JCA who read the lead judgment found that;

” The Learned Trial Judge in his ruling found that there is nothing before the court to show that the Minister of Justice has exercised his powers under S3 of the Foreign Judgment Act in favour of the United States of America and proceeded to rely on S10(a) of the Foreign Judgment (Reciprocal Enforcement) Act. The Learned Trial Judge interpreting the provision and relying on the case of Andrew Mark Macaulay v. R. Z. B. Austria (2003) 18 NWLR (Pt. 18) 282 at 298 rightly made the following pronouncement:

“There is nothing placed by this court to show that there is an Order by the Minister of Justice extending the provision of part 1 of the Reciprocal Act to Judgments given in United States. The applicant therefore has twelve months from the date of the Judgment within which to register it in Nigeria”.

The lower court rightly found that S10 of the Foreign Judgment Act was relevant in the determination of when an application can be made once the Minister has not made an Order. S10 stipulates as follows:

10(a): a judgment given before the commencement of an order under section 3 of this Act applying Part I of this Act to the foreign country where the judgment was given, may be registered within twelve months from the date of the judgment or such longer period as may be allowed by a superior court in Nigeria”.

It is undisputable that the application for registration was filed within 12 months which period is covered under S10 (1) of the Foreign Judgment Act in the absence of a Minister’s Order. The Learned Trial Judge on his judgment as reflected on page 103 of the record of appeal held:

“It has been shown that final judgment was entered in favour of the Applicant by the CIRCUIT COURT OF FAIRFAX COUNTY, VIRGINIA on 2nd December 2004. This ORIGINATING MOTION was filed in this court on 25th October, 2005. The originating motion was therefore filed within twelve months from the date of the Judgment. The question is whether the judgment of the said CIRCUIT COURT should be registered by this court. Under Section 4 of the Reciprocal Act, such a judgment is registerable subject to proof of the prescribed matters and to other provisions of the Act provided at the date of the application the judgment has not been wholly satisfied or it could not be enforced by execution in the country of the original court. It is averred in the Supporting Affidavit that the Judgment has not been satisfied in whole or in part. This fact has not been controverted. The position of the Respondent however is that it was not served with the originating processes of the aforesaid CIRCUIT COURT OF FAIR FAX COUNTY, VIRGINIA in accordance with the applicable Nigerian Law. The issue therefore turns on whether service of the originating processes of the aforesaid CIRCUIT court on the Respondent which is a company incorporated under the Laws of the Federal Republic of Nigeria carrying on business within the jurisdiction of this court, was to be effected in accordance with the Law of Virginia or in accordance with Nigerian Law”.

From the Learned Trial Judge’s findings above, one would have expected the court below to proceed and register the foreign Judgment since the prerequisites for registration were present. Unfortunately the Learned Trial Judge did not fail to realize that the issue of service of process having been considered and determined by the foreign court cannot be relitigated again except by way of appeal. Clearly the issue of service was responsible for the lower court derailing from the right track and delving into the merits of the Judgment” (Emphasis supplied).

This means foreign judgments from countries which are not listed in the 1958 Ordinance and cannot be recognized under the Ordinance may be recognized under Section 10 (a) of the 1990 Act as long as the application for recognition and registration of the judgment is brought within 12 months from the date in which the foreign court delivered the judgment. This opens the door wide open for Nigeria’s recognition of the judgments of superior courts of all countries of the world.

Willkie Farr hikes London revenues by almost 50%

Willkie Farr & Gallagher boosted London revenues by almost 50% during 2017, a year in which the US firm posted record results across all key financial metrics.

The City office generated $53m (£38m) in revenue over the calendar year, up 47% from $36m (£26m) in 2016, the firm said. The London base has more than 50 lawyers focused on compliance and enforcement, insurance, asset management, restructuring, private equity and competition.

Recent high-profile mandates have included advising Barclays on fraud charges brought by the Serious Fraud Office relating to the bank’s capital raising arrangements with Qatari investors during the 2008 financial crisis.

The firm also recently bolstered its London partnership ranks with the hire of Slaughter and May associate Simon Osborn-King, who is joining as a partner after more than 10 years at the magic circle firm.

Firmwide revenues rose nearly 12% to $772m (£548m) during 2017, while profit per equity partner rose 13% to $2.97m (£2.1m) and revenue per lawyer (RPL) rose 5% to $1.2m (£852,000), according to preliminary ALM reporting.

The firm increased its profitability even as it boosted its size, with total lawyer headcount rising 6% to 644 lawyers. The firm’s equity partnership ranks increased by three to 145.

Gartner said private equity and M&A work were key drivers of the growth, but litigation, restructuring and asset management were also “big contributors.” As well as London, he said there was substantial contributions from the firm’s Frankfurt and Paris offices.

Fresh off the record results, Willkie Farr has added a string of partners in the first quarter of 2017.