Posts

CCWC and Hogan Lovells: Our Shared Vision

As part of our commitment to being a leader in diversity and inclusion, we are proud to announce the beginning of a partnership between Hogan Lovells and Corporate Counsel Women of Color (CCWC).

The nonprofit organization provides a support network to in-house women of color attorneys, promotes career advancement and success at all levels within corporations, and promotes all aspects of global diversity in the legal profession and workplace. We look forward to working with CCWC as part of our shared vision to support the leadership and professional development of women of color in the legal industry.

Please watch the video below to learn more about this partnership.

Insight into: Ajay Sahni & Associates

Ajay Sahni & Associates (ASA) is a boutique corporate law practice focused on intellectual property, innovation and technology. The firm was founded in 1983 with the objective of rendering creative, robust and effective strategic legal advice and representational services.

ASA is committed to delivering out-of-the-box, avant garde solutions to complex problems faced by its clients. The team strives to work with its clients as partners, helping them manage risk and navigate challenging legal and business landscapes.

ASA has a very strong disputes and enforcement practice with over 100 reported judgments in leading law journals and reports to its credit. The firm handles large IP portfolios for many Fortune 500 clients (both Indian and international) on the prosecution side. It has various awards and listings to its credit, such as the International Client Choice Award (Trademark), World Trademark Review (Leading firm and individual in enforcement & litigation as well as prosecution & strategy categories), Thomson Reuters Asian Legal Business IP Rankings (Tier 1 firm for Trademark and Copyright, Tier 2 firm for Patent) and Thomson Reuters Asian Legal Business India Rising Stars 2019, among others. Its members serve on various committees and expert groups in international associations, as well as government bodies.

ASA works with a sophisticated artificial intelligence and automation based in-house trademark portfolio management system to manage compliances, monitor threats and alerts for clients. It is also the first law firm in India to offer blockchain-based IP protection services.

ASA is led by its founder Ajay Sahni, who has been practising IP law since 1983 at the Supreme Court, high courts, district courts and tribunal levels across India. He has argued numerous landmark cases, many of which have been reported in leading law reports and journals. His dispute resolution experience covers a wide spectrum of industries, including pharmaceutical, retail, infrastructure, real estate, automotive, finance, fast-moving consumer goods, power, telecommunications, education, chemical and industrial products.

A strong founder

Mr Sahni’s experience is evident in the number of key positions he holds or has held:

  • former vice president at Intellectual Property Attorneys Association, New Delhi;
  • former vice president at Asian Patent Attorneys Association (India Chapter);
  • invited by the Rajya Sabha Secretariat (upper house of the Parliament of India) and examined as an expert witness by the Parliamentary Standing Committee on Commerce in relation to the Trademarks (Amendment) Bill 2007;
  • member on the Advisory Board of The Patents and Trademarks Cases, a leading monthly journal of IP case law in India;
  • regular speaker on IP laws at the Institute of Company Secretaries, the Institute of Chartered Accountants, the Haryana Police Academy and the Export Promotion Council of India; and
  • formerly appointed as a senior panel counsel in the High Court of Delhi for conducting central government cases.

In addition, Mr Sahni has written extensively on the subject of IP law, including as:

  • a revising author of Lal’s Commentary on the Indian Copyright Act, 1957; and
  • a co-author of seven volumes of the book titled Cases and Materials on Trademarks and Allied Laws.

Firm’s key service offerings

Litigation, enforcement and dispute resolution

  • Handling civil, criminal and regulatory cases on infringement of patent, trademark, copyright, design, trade secrets, unfair competition; commercial mediation and arbitration
  • IP dawn raids, enforcement cases and domain name disputes
  • Dispute strategy, risk assessment, drafting of submissions, preparation of documentation, evidence, witnesses

Prosecution, compliance and audit

  • IP prosecution
  • Entry assistance: clearance searches, landscape studies, freedom-to-operate searches
  • IP audits and health checks
  • IP compliance management services
  • Cutting-edge tools based on automation and AI for 360-degree IP monitoring, threat assessment and compliance management services

Transactional

  • Acquisition and commercialisation of IP assets
  • IP valuation
  • Technology transactions and licensing
  • Safeguarding IP assets in mergers, acquisitions and joint ventures Advisory and public policy

Advisory and public policy

  • Anti-counterfeit investigations, forensics and enforcement strategy
  • Customs border protection assistance and strategy
  • Branding, advertising, marketing, packaging and labelling strategies
  • Drug and pharma regulatory filings, representation and support
  • Data protection and privacy
  • Public policy advisory, advocacy and strategic litigation support

Law Firms Get Creative on London Rent Arrangements

Law firms across London are negotiating with their landlords about ways to ease the rent burden they face during the lockdown, according to several real estate agents.

Force Majeure and Coronavirus: Frequently Asked Questions

Part 1: Force Majeure and Suspension/Termination of Contracts

Coronavirus (COVID-19) is turning out to be a twin fold pandemic – that started with affecting public health and soon spread throughout the economy. Sudden global shutdown and travel restrictions have brought the economy to a screeching halt before most of us could even comprehend the real impact. Many businesses are still at a loss and are only doing guesswork regarding the magnitude of potential losses and recalibration needed for the businesses to survive this time, and remain viable.

Resultantly, certain harsh realities stare at us, and certain brutal questions are to be answered. With specific reference to Indian laws, we have attempted to answer some of these questions which businesses are asking concerning the possibility to suspend, extend or cancel their contractual obligations and their ability to reduce workforce and other recurring costs and liabilities.

You are reading Part 1 of our series on “Force Majeure and Covid-19: Frequently Asked Questions”. In the next part, to be published on March 20, 2020, we would discuss the possibility of reduction in workforce and wage bills.

Question:   What is a force majeure clause and how does it help the contracting parties?
Answer:      Force majeure is commonly defined as an unforeseen irresistible force, such as an act of God or war. Performance of a contract by a party facing a force majeure situation may be impossible. Recognising this, most contracts include a force majeure clause, which permits a party, when facing a force majeure situation, to temporarily suspend its performance under the contract.

A suspension under a contract, in accordance with its force majeure clause, entitles the party suspending it to be exempted from performing its obligations under the contract. Accordingly, during the period of suspension, such party is not held liable for breach of its contractual obligations. The contract springs back to life and operation once the force majeure situation subsides. The contracts usually also provide for the termination, if the force majeure situation continues beyond a specific number of days.

 

Question:Is the outbreak of COVID-19 a force majeure situation?
Answer:      Force majeure clauses are a contractual feature. Indian laws do not define “force majeure”, from the perspective of contract laws.

The answer, therefore, lies in answer to the question – what are the identified force majeure situations in your particular contract? Most contracts illustrate various situations as “force majeure events”. Some contracts use words like “epidemic”, “Government order” (of shutdown) and “any other situation making the conduct of business impossible” as examples of force majeure situations. COVID-19 would easily qualify as a force majeure event in such cases.

On the other hand, some contracts give a more restrictive definition of force majeure, limiting it to physical damage to the business premises or change in law or policy.

As force majeure clauses permit contractual non-performance, they are likely to be given a narrow interpretation by the courts, when scrutinized.

Accordingly, to answer, the outbreak of COVID-19 does not automatically become a force majeure situation, and its classification as such largely depends on the language of your specific contract(s).

Question:   If COVID-19 qualifies as a force majeure situation in my contract, am I exempt from its performance?
Answer:Your chances of performance exemption are good, but not automatic. Even if COVID-19 can comfortably be classified as a force majeure situation in your contract, you must remember that:

Your performance is not suspended automatically: You would most likely need to issue a written notice to the other party, as specified in your force majeure clause, invoking the clause and notifying suspension of your obligations. Some contracts also require a party giving a force majeure notice to give a plan to mitigate the loss caused to the other party. Therefore, read your contract and follow what it prescribes.

Force majeure should affect your performance: The performance is also not suspended just because a force majeure situation has arisen unless it significantly affects your performance capabilities. A party invoking a force majeure clause should, therefore, be prepared to demonstrate as to how the occurrence of a force majeure situation has made performance by such party “impossible”. The common legal understanding is that a mere occurrence of a force majeure situation, without a real impact on contractual performance capabilities of such party, would not entitle it to suspend its performance under the contract. As lawyers, we see that some of the parties would face this challenge if their counterparties decide to legally oppose the suspension.

Question:If COVID-19 cannot be a force majeure situation in my contract or if my contract does not have a force majeure clause, what recourse do I have?
Answer:  It is still not ending of the road for you. Indian Contract Act, 1872 enshrines the doctrine of frustration of contracts, which means that a contract would become void if its performance is rendered impossible or unlawful after the contract has been made. Void contracts are unenforceable, the result of which, in layman terms, is that such contracts cannot render a party liable for their non-performance.

Similar to force majeure, the frustration of a contract would also need a party claiming so to demonstrate as to how the occurrence of a situation (COVID-19, being the case in point) has made performance by such party “impossible” or “unlawful”.

Please however note that, unlike force majeure, the frustration of a contract renders it void with immediate effect, and the law does not provide for a suspension of such a contract. Of course, if one party claims “frustration of the contract”, and then both the parties are willing to suspend the contract, they can contractually agree to a suspension. In economic difficult times, new contracts are also hard to come by, so the suspension is a real business possibility following frustration. The suspension, however, cannot be enforced in absence of a contractual stipulation (e.g. force majeure) or with the consent of the contracting parties.

Question:   While invoking force majeure clause, can we propose reduced/alternative performance?
Answer:Indian contract law requires that a party shall do everything within its control to mitigate the loss to the other party. Therefore, a party can propose reduced/alternative performance during a force majeure period. Such reduced/alternative performance may however not be enforced upon the other party unless your force majeure clause so provides. If the other party does not agree to such reduced/alternative performance (consider cases where insufficient raw material supply would make the running of the plant itself commercially untenable), one can revert to full suspension of performance.

Each case should, however, be assessed carefully, before reduced/alternative performance is proposed. Force majeure, when available, is a contractually enforceable suspension right. A unilateral amendment is ordinarily never enforceable. In cases where the contractual relationships are complex, a party needs to assess whether a proposal for reduced/alternative performance would give an opportunity to the other party to deny the applicability of force majeure clause itself.

Conclusion:

Force majeure and frustration of contracts are contractually and legally viable tools that provide a real possibility to the businesses to deal with the current situation. Case to case assessment is however needed before implementation of these options.

UK’s approach to protecting and enforcing design rights

Global Head of IP David Stone speaks to Lexology Learn and discusses why protecting and enforcing design rights in the UK is becoming a lot more attractive, as well as new measures being introduced by the Intellectual Property Enterprise Court. He also looks at where there is room for improvement in the English courts.

Global trends in private M&A 2020

We have recently produced a client presentation on global trends in private M&A. Our findings draw on an in-depth analysis of more than 1,250 private M&A deals that A&O has advised on globally over the last eight years, looking at deal dynamics, execution risks and deal terms. This has given us exceptional insight into global and regional trends in market practice.

Global trends in private MA graphic

Key themes for 2019 include:

  • Megadeals and strategic domestic transactions dominate
  • Auction activity and competition starting to cool
  • Private equity waiting for price expectations to align
  • Regulatory landscape and economic uncertainty influence deal terms
  • W&I insurance gains traction outside of private equity exits
  • Shift in dynamics as buyers reclaim some lost ground
  • Marked differences in developed, emerging and frontier market M&A

Please speak to your usual Allen & Overy contact if you would like to schedule a briefing on these trends.

Megren Al-Shaalan Joins White & Case as a Partner

Global law firm White & Case LLP has boosted its Saudi practice capabilities with the addition of Megren Al-Shaalan as a partner.

“White & Case has long had a strong Saudi practice, and Megren’s arrival significantly enhances our capabilities in the Kingdom,” said White & Case partner Doug Peel, Head of the Middle East. “Megren has been deeply involved in the design and delivery of Saudi Arabia’s 2030 Vision initiatives, which are key to the Kingdom’s future development and transformation. His knowledge and experience will be a major asset to the Firm as we continue our work in the Kingdom.”

Al-Shaalan arrives from the Saudi Royal Court, where he was a Senior Legal Advisor. He advised a number of government offices and entities on prominent projects including NEOM, the Red Sea Project and Qiddiya, helping structure their legal frameworks and establish their legal departments. Al-Shaalan also provided legal counsel on the establishment of a number of other government entities and projects. He has significant experience in public policy and a variety of areas of law, including regulatory, governance, corporate transactions, finance and litigation.

Oliver Brettle, a member of White & Case’s global Executive Committee, said: “Investment in our Saudi practice is part of our strategic growth ambitions and the Middle East, including Saudi Arabia, is an important market for the Firm. The arrival of Megren, with his experience and strong reputation in Saudi Arabia, will not only add to our corporate capabilities in the Kingdom, but will support the further growth and development of our other key practices and industry groups there.”

White & Case practices in Saudi Arabia in cooperation with the Law Office of Megren M. Al-Shaalan.

Baker McKenzie Announces Record Global Revenues of $2.92 Billion

  • Revenues up 4.4% with growth in all regions

  • PPP up 3%

  • Major program to drive global digitization and optimal client service delivery

  • Leading the sector for our people through Diversity & Inclusion

Baker McKenzie, the leading global law firm, has announced record revenues for the fiscal year ended 30 June 2019 (FY19) of $2.92 billion. In terms of constant currency, Baker McKenzie’s revenues were up 4.4% compared to the previous year. In US dollar terms, the Firm’s reporting currency, this translates into growth of 1.2%, after the effect of adverse currency exchange.

Baker McKenzie remains the most geographically diverse global law firm and all of our regions recorded growth as follows: EMEA +5.2%, AP +2.1%, LA +9.0% and NA +4.0%

All of our key financial metrics improved over last year: revenue growth, net income, profit margin, Profits per Partner (PPP), Revenue per Partner and Profits per Lawyer. We are especially pleased to accomplish this amid a market with flat demand. PPP was up by 3% to $1.48 million in US dollars. Overall net income or profit rose by 2% to $1 billion. Over the last decade the Firm has grown by 40% in terms of revenue and 50% in terms of PPP, outperforming most of our competitors.

Among our standout markets, all with significant double-digit growth, include Bogota, Buenos Aires, London, Prague, Turkey and Warsaw.

Baker McKenzie Acting Chair Jaime Trujillo says, “Recording 4.4 percent growth in a market as challenging as this while maintaining our commitment to all of our offices and our full service offering is a good result. The investments the Firm continues to make in legal services, the centers of excellence we have opened in lower-cost locations, and more effective partnering with clients, supported by long-term investments in industry, practice and client programs have enabled us to show profitable growth.

“This is despite the distinct geopolitical head winds throughout the second half of the year, which prompted our clients to cancel or postpone projects. We are also one of the most geographically diverse professional services firms in the world, both one of our key strengths, and at times a challenge in markets impacted when the US dollar is so strong, as it was this past year.”

HONG KONG HK

Baker McKenzie Elects Milton Cheng as Next Chair

Leading global law firm Baker McKenzie is proud to announce that following a vote of its partnership, Milton Cheng has been elected as the next Chair of the Firm.

Based in Hong Kong, Milton is the Managing Partner of the Hong Kong office and concurrently the Chief Executive overseeing Baker McKenzie’s offices and businesses across eight countries in the Asia Pacific region.

Milton has considerable experience in mergers and acquisitions, real estate investment trusts, financial services regulation, corporate finance and corporate restructurings. He regularly advises clients — including REIT and other asset managers, financial institutions, multinationals and Hong Kong-listed groups — on a wide range of acquisition, REIT, restructuring, regulatory and corporate finance matters.

A graduate of King’s College London, Milton became a partner of Baker McKenzie in 1999 and is admitted to practice in Hong Kong and in England & Wales. He is the Firm’s first Asian Chair.

Milton Cheng, Chair-elect of Baker McKenzie said, “I am truly honored by the trust my fellow partners have placed in me. I look forward to working with all of them and my colleagues across the world to build on the great work of my predecessors to make Baker McKenzie the global law firm of choice.”

Milton, who will serve in the role for four years, takes up the position with effect from October 17, 2019 succeeding Jaime Trujillo, who has been Acting Global Chair since October 2018.

Jaime said, “We had a group of outstanding candidates for our next Chair and the partners had a difficult decision to make. In choosing Milton we have someone who can take this great Firm to the next level. I offer him my sincerest congratulations.”

A&O opens new Legal Services Centre in Johannesburg

Allen & Overy has announced that a new Legal Services Centre (LSC) will open in Johannesburg in the first half of 2020 as part of its expansion plans

Johannesburg city skyline

The LSC, launched in 2012, has quickly built a reputation for cost-effectively and efficiently resourcing transactions while guaranteeing the standard that clients expect from A&O. The team – comprising legal professionals, associate solicitors and science analysts – works alongside offices across the A&O network on a wide range of document-based matters, including due diligence, litigation reviews, drafting, negotiating and research tasks. The focus is on quality, supported by project management and legal technology. The LSC is part of Allen & Overy’s broader Advanced Delivery and Solutions (AD&S) offering, which includes Fuse, A&O Consulting, Peerpoint and A&O’s legal tech solutions.

Angela Clist, Head of LSC, said: “Johannesburg makes an ideal location for our new centre as it has a strong base of legal experts. Our Johannesburg office has been open for five years now, and we look forward to growing the LSC alongside the current team.

“All the work performed in the new centre will serve our clients directly as well as even more practice groups and offices across our global network. Having worked with over 450 partners across the firm and with a wide range of teams from banking regulation to US capital markets, the experience within the LSC is unrivalled.”

Andrew Trahair, Head of Advanced Delivery & Solutions, added: “This is an important step forward for our AD&S businesses. The LSC is an essential resource for A&O as we take on more larger and more complex projects for our clients. The team will support both our traditional practice groups and our AD&S businesses, for example the Markets Innovation Group and A&O Consulting.”

For further information, please contact Rajiv Pattni, Rajiv.Pattni@allenovery.com, on +44 (0)20 3088 1237.