Legal Business

Sponsored briefing: Redefining dispute resolution – challenging orthodoxy

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Disputes Yearbook 2018 Herbert Smith Freehills

Herbert Smith Freehills reports on evidence that technology and collaboration should drive a new approach to dispute resolution

Herbert Smith Freehills (HSF) has co-led an ambitious project spanning two years, working with the International Mediation Institute (IMI), PwC, and other global corporates and institutions. The Global Pound Conference (GPC) has reviewed how dispute resolution can be improved to respond to the needs and expectations of commercial parties (users).

Unique in terms of scale and format, the research canvassed the views of over 3,000 delegates at 28 conferences in 24 countries worldwide, plus hundreds more who contributed online. Each conference was run around four interactive sessions looking at both the demand and supply sides of the dispute resolution market.

A report published in May 2018 by HSF, PwC and IMI summarises the results of the first analysis of the global data, identifying four key global themes.

1. Efficiency is the key priority in choice of dispute resolution process

Most dispute resolution still has as its frame of reference an adversarial process (litigation or arbitration) based on asserted legal rights. Yet two thirds of users canvassed at GPC events said they require more efficiency in dispute resolution. This questions whether traditional dispute resolution processes meet the needs of users.

Finding the efficient way to resolve a dispute may not always be the fastest or cheapest, but it requires thought and engagement to bring appropriate resolution in acceptable timeframes and at realistic costs. Users may need to communicate their priorities, expectations and underlying interests to lawyers more clearly. In turn, lawyers must challenge themselves to focus relentlessly on their client’s interests, being prepared to initiate or facilitate non-traditional dispute resolution methods.

2. Users expect greater collaboration from advisers

Around two thirds of users also said they need to see more collaboration from advisers. This applies both when lawyers are interacting with clients and opponents. This questions traditional notions of how lawyers should represent clients. Is the zealous advocate, fighting their client’s corner tenaciously, still required? Interestingly, two thirds of advisers said they still saw their role as advocates for their clients.

With the lawyers of Generation Y, Millennials and Generation Z growing into positions of influence within corporates and throughout the dispute resolution community, the concept of collaboration in a way that would have been unthinkable to the litigators of a generation ago may already be an accessible reality to a community that has grown up on crowd-funded solutions and sharing through social media.

The 21st century lawyer needs to deliver dispute resolution process design, collaboration to secure efficient results, as well as traditional tough representation when called for. Greater emphasis on collaboration between in-house and external lawyers, and between disputing parties, will lead the way for more efficient resolution of commercial disputes.

Alexander Oddy, global head of alternative dispute resolution (ADR) at HSF and the driving force at the firm behind the project, said: ‘An early case assessment is a good example of how closer collaboration can increase efficiency with in-house counsel and external lawyers working together to review the wider interests and risks. The results can in turn help inform a more resolution-focused approach with counterparties.’

Whether these differences reflect different experiences between users and advisers, there is a clear challenge to the legal community to listen to clients. They must discuss whether collaboration is wanted and what that means in a given situation (particularly when disputes are acrimonious or thought to be unmeritorious).

3. Global interest in the use of pre-dispute protocols and mixed-mode dispute resolution

With the data pointing towards more collaborative and efficient processes like mediation, delegates unsurprisingly highlighted a near universal recognition that disputing parties should be encouraged to consider processes like mediation before they commence adjudicative dispute proceedings. Interestingly, the data showed a growing desire by users to see non-adjudicative processes like mediation undertaken in parallel with litigation or arbitration.

Anita Phillips, a professional support consultant in the firm’s Hong Kong office, who led much of the GPC initiative across Asia, commented: ‘The data is timely, particularly in Asia. As China’s ambitious Belt and Road Initiative gathers pace, corporates from a broad range of sectors are vying for large international projects and disputes are inevitable. One proposal under consideration by the Chinese government is for Belt and Road disputes to be resolved through mediation, and only failing resolution should parties proceed to arbitration. I expect to see more use of mixed-mode processes like mediation with arbitration or mediation with litigation in the years to come. The GPC data reinforces this direction of travel.’

4. The role of lawyers

The GPC data flagged some uncomfortable truths for lawyers, whether in-house or private practice.

In-house counsel are the agents to facilitate organisational change

The results showed a broad consensus that in-house counsel are change enablers and should encourage their organisations (and, if necessary, their external lawyers) to consider dispute resolution options more carefully, including using processes like mediation. ‘Based on our earlier market research, reinforced by GPC, we’re working with in-house counsel to maximise their value,’ said Justin D’Agostino, global head of disputes at the firm. ‘Disputes are always unwelcome, but speedy resolution and settlement paint in-house legal teams in a far more positive light. Improving internal systems and taking a more strategic approach to dispute avoidance and resolution can help businesses achieve important time and cost savings.’

External lawyers are the primary obstacles to change

70% of global delegates said private practice lawyers are the primary obstacles to change in commercial dispute resolution. This is blocking progress and leading to a perpetuation of the ‘same old processes’: litigation or arbitration. The conferences explored whether advisers might be making recommendations for dispute resolution based on the potential to earn fees. But the voting data suggested that this was not a major factor, or at least it was less significant than factors like the type of outcome required or familiarity with a dispute resolution process.

Rather than rehearsing tired arguments about lawyers not promoting ADR for fear of its impact on their revenues, the data suggests the underlying issue is more closely linked to something beyond training and education – familiarity. This calls into question how we are equipping tomorrow’s lawyers to best advise their clients in disputes. Putting processes like mediation on an equal footing with litigation and arbitration in law schools and on vocational courses may be necessary.

How does the UK stack up?

Lord Woolf’s ground-breaking reforms to the civil justice system in England and Wales in the late 1990s embedded the role of ADR in the case management of civil litigation. Nearly 20 years on, the data from the London GPC Series finale reveals well-informed in-house counsel familiar with dispute resolution processes, focused on collaboration and efficient dispute resolution using non-adjudicative processes in pre-action protocols and mixed-mode dispute resolution.

Delegates in London were by far the clearest in identifying that the parties to commercial disputes typically want lawyers to work collaboratively to navigate the dispute resolution process. In other regions delegates viewed the role of lawyers as advocates as being of broadly equivalent significance, except for North America where the tradition of zealous advocacy on behalf of clients was readily apparent in the preference for lawyers advocating on behalf of their clients.

When delegates in London were asked about the main obstacles parties face when seeking to resolve commercial disputes, insufficient knowledge of the options available was far lower than in other regions.

While the Woolf reforms have been widely celebrated as an enlightened step forward in the administration of civil justice, it seems the GPC data may be providing some real evidence of how changes in civil procedure to promote ADR can bring about progressive attitudes among a generation of users.

Alex Oddy, partner, and Anita Phillips, professional support consultant, Herbert Smith Freehills

What role will technology play?

The GPC data also highlights the important role technology has to play in realising much sought after efficiencies and collaboration. This is not limited to electronic discovery and filing. Dispute management tools and online dispute resolution also have the capacity to change radically the way disputes are resolved over the next decade. Advancement in data analysis enables advisers and legal teams to review and investigate large amounts of data quickly, and assess risk in ever more sophisticated ways. Social tools and online platforms are making it easier for lawyers to work more closely with each other and with their clients. Alexander Oddy commented: ‘Disruptive technology will force greater efficiency and collaboration in dispute resolution. But in many quarters, a mindset shift is required to appreciate that up-front costs in technology can lead to long-term savings.’

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Legal Business

‘Common sense’: Herbert Smith follows Linklaters’ lead in personal relationship disclosure and whistleblowing network

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Herbert Smith Freehills

Herbert Smith Freehills (HSF) has become the second leading law firm to instruct partners and staff to disclose personal relationships with colleagues, while also introducing a third-party whistleblowing platform.

As part of a shake-up of its global policies and guidelines, HSF has introduced a new policy entitled ‘Personal Relationships in the Workplace.’ The firm stated that it is intended to ‘provide a framework to deal sensitively, consistently and fairly with personal relationships which may affect the business.’

However an HSF statement insisted: ‘it is not intended to prohibit partners or staff from having a personal relationship with a work colleague, client or supplier.’ Notably, the guideline also asserts: ‘all partners and staff are asked to use common sense in assessing whether or not this policy is relevant to their circumstances.’

Such initiatives can be seen as a response to the #MeToo movement – from which the legal industry has been far from exempt – and the firm’s decision to introduce a third-party whistleblowing service compounds that.

The service, called Faircall, is independently monitored by Big Four accountancy firm KPMG and is able to be contacted by phone or email to report professional wrongdoing, harassment or other misconduct.

HSF will be eager to be seen cracking down on harassment and misconduct, after an Australian partner was suspended in March following claims of sexual harassment.

HSF chief executive Mark Rigotti told Legal Business however that plans to make such policy changes had been in place since before Christmas. On the Australian incident, Rigotti said: ‘It’s not a reaction to that circumstance but that situation certainly sped things up a bit.’

Rigotti added: ‘There’s no doubt there’s a focus on the themes represented in the #MeToo movement at the moment. What it has done is make us think about what best practice is everywhere. People should feel comfortable coming forward and speaking up and seeking help, whether that’s in the UK, Australia or anywhere.’

It is too early to say whether such procedural revamps are the start of a trend, but HSF has followed closely in Linklaters’ footsteps. The Magic Circle firm announced earlier this month that it was to introduce similar rules on personal relationships, and also ushered in an independent whistleblowing service called SpeakUp.

Just last week, disputes leader Quinn Emanuel Urquhart & Sullivan became the latest firm to sack a partner after what the firm described as ‘inappropriate behaviour.’

tom.baker@legalease.co.uk

Legal Business

Revolving Doors: Herbert Smith Freehills raids Watson Farley as firms strengthen in the City and abroad

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Strategic recruitment Herbert Smith FreehillsWatson Farley and Williams

Four Watson Farley & Williams (WFW) partners have decamped to Herbert Smith Freehills (HSF) – including aviation specialist Rex Rosales – while lateral hires in the City and abroad continue.

The four-partner hire for HSF sees two moves to London and Singapore respectively. WFW’s aviation sector head Rosales will be joined by asset finance group specialist Jahnavi Ramachandran in London, while finance expert Siva Subramaniam and aviation partner Samuel Kolehmainen leave WFW to join HSF’s Singapore office.

In a statement, HSF global head of finance, real estates and projects Jason Ricketts said: ‘With unprecedented investment levels in aviation and other transport, infrastructure and projects across the globe, strengthening our asset finance practice makes good business sense’.

Meanwhile Hogan Lovells has launched a trade practice in London with a partner hire from Squire Patton Boggs. Aline Doussin will be the firm’s first dedicated trade partner in the City. She had been a partner at Squire Patton Boggs since 2014.

Global head of Hogan Lovells government regulatory practice Alice Valder said: ‘Hiring additional experienced trade partners in Europe has been a strategic priority for us.’.’

Elsewhere in the City, Stephenson Harwood has hired Catriona Berman to the firm’s real estate group. Berman joins from Goodwin Procter, which she joined in 2015.

Arnold & Porter also strengthened in London, with the hire of Jane Wessel from Crowell & Moring. Wessel holds experience in competition damages litigation and will enhance Arnold & Porter’s antitrust litigation practice.

John Schmidt, who leads Arnold & Porter’s London competition team, said: ‘Jane brings broad experience to our firm, enhancing our existing multijurisdictional and multilingual London team, and further bolstering our ability to serve clients globally’.

International hires last week included the arrivals of Jacques-Philippe Gunther and Adrien Giraud at Latham & Watkins in Paris and Brussels from Willkie Farr & Gallagher as the firm strengthened its antitrust practice on the continent.

Gunther brings experience advising clients on complex disputes before the European and French competition authorities, the European Court of Justice and the French courts. Giraud has experience practising in New York, Paris and Brussels, advising on an array of competition matters.

In Spain, Pinsent Masons further expanded with the appointment of public law specialist Pablo Dorronsoro. Joining from Baker Mackenzie, where he spearheaded the public law and infrastructure department, Dorronsoro will head up Pinsents public law office in Madrid.

Further afield, the standout hire in the US was Kirkland & Ellis bringing over experienced litigation partner Sandra Goldstein to its New York office from Cravath, Swaine & Moore.

DAC Beachcroft has also appointed a partner to its disputes group. Pedro Claros will co-head the department’s international arbitration practicee and joins from leading Spanish independent Cuatrecasas. DAC completed two senior partner hires in the same week, also adding Graeme Bell from the London office of Irish heavyweight Mason Hayes & Curran.

In the Asia Pacific, Clyde & Co appointed insurance and cybersecurity practitioner John Moran to its Sydney office. Moran joins from Norton Rose Fulbright, and his addition will deepen Clyde & Co’s insurance footprint in Australia.

Clyde & Co senior partner, Simon Konsta said: ‘John has a standout reputation in the insurance industry and a practice that runs across the core of our insurance business in Australia.’

thomas.alan@legalbusiness.co.uk

Legal Business

Corporate trumps disputes again as Palmer wins second term as HSF senior partner

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Leadership Herbert Smith Freehills

Herbert Smith Freehills (HSF) lifer and incumbent James Palmer has seen off a challenge from disputes partner Mark Shillito to be re-elected as senior partner and chair of the firm.

After successfully winning approval from over 50% of the partnership  – although the firm could not confirm how many votes he received – Palmer will begin his second term of three years on 1 May. 

Palmer said: ‘I am delighted and greatly honoured to be taking on a second term as senior partner…I look forward to working with all our colleagues and our leadership team in pursuing our strategy and ambitions. The firm continues to perform well in our markets globally and remains superbly placed to strengthen still further.’

The result will come as little surprise after both internal and external observers roundly backed Palmer as the safe bet. One HSF partner told Legal Business when the nominees were announced: ‘our current senior partner is a very good person to be in the role.’

Shillito was billed as a symbolic challenger when news that he was running for leadership came last month. As head of disputes, his standing against corporate partner Palmer further fanned the flames of a persistent and long-running rift between HSF’s heavyweight transactional and contentious branches.

Palmer has been with HSF since joining as a trainee in 1986. After being made partner in 1994, he acted as the firm’s global head of corporate between 2010 and 2012.

In November 2014, Palmer triumphed over Sydney-based partner Mark Crean, London litigation head Tim Parkes and EMEA managing partner Allen Hanen to win the senior partner role.

Going forward, Palmer will continue fee-earning. Major clients on his books include BP, BAT, National Grid and the Weir Group.

HSF chief executive Mark Rigotti said: ‘The re-election of James will bring a degree of stability and continuity to the implementation of our strategy.’

tom.baker@legalease.co.uk

 

Legal Business

#MeToo: HSF latest firm to axe partner after sexual harassment allegations

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Herbert Smith Freehills

The string of sexual harassment scandals that are blighting the legal profession shows no sign of stopping, with Herbert Smith Freehills (HSF) becoming the latest firm to fire a partner following claims of workplace misconduct.

An unnamed male partner based in Australia was suspended from the partnership on 9 March, after an internal investigation discovered evidence of misconduct. The investigation came after a number of female employees of the firm made claims of sexual harassment. HSF will remove the partner from the partnership on 23 March.

HSF said in a statement: ‘In the past two weeks several people have come forward to make a number of allegations about the partner’s behaviour. Herbert Smith Freehills is taking them very seriously and has acted promptly. The misconduct is behaviour for which Herbert Smith Freehills has no tolerance.’

Mark Rigotti, HSF chief executive, commented: ‘We will not accept behaviour that violates a person’s dignity or erodes their self-respect. As custodians of the business, the partnership in particular must live and breathe our values and do all they can to ensure that all our team members enjoy an open, inclusive and supportive working environment that encourages them to thrive and enables them to be their whole, true selves at work and outside work.

‘On a personal level, I am deeply disappointed to hear how the behaviour of this person has impacted others at our firm. Every one of our people deserves to be treated with respect and dignity and the action we are taking should highlight the importance of this.’

The news comes in the same week as the Solicitors Regulation Authority (SRA) issued a warning to firms to combat the misuse of non-disclosure agreements (NDAs). The SRA stipulated that NDAs are improperly used if they seek to prevent a person from reporting misconduct to the police or other prosecution or regulatory body.

In recent months, multiple firms have been caught up in sexual harassment controversies. Baker McKenzie last month issued a review of complaints handling, following a historic allegation of sexual assault against a high-ranking partner at the firm. In Germany, former Linklaters partner Thomas Elser was sentenced to three years and three months in prison by a court in Munich for assaulting a student at a firm party several years ago. While a former Scottish partner left Dentons in February after the firm launched an internal investigation into allegations of past inappropriate sexual behaviour.

Tom.baker@legalbusiness.co.uk

Nathalie.tidman@legalbusiness.co.uk

Legal Business

Corporate v litigation: Palmer to contest HSF senior partner election against disputes head Shillito

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Leadership Herbert Smith Freehills

In an announcement that will do little to bridge the long-running divide between the firm’s transactional and contentious branches, Herbert Smith Freehills’ (HSF) senior partner election will see incumbent corporate partner James Palmer go head to head against dispute resolution chief Mark Shillito.

Nominations for the election closed today (23 February), with the vote slated to take place during the second week of March. There will be just one round of voting as there are just two candidates, with the winner requiring over 50% of the vote to be successful.

The safe money is on Palmer (pictured) to be re-elected who, despite ruffling a few feathers internally, carries significant respect both within and outside the firm. One external peer described Palmer as ‘a good leader, a nice chap and he speaks well. He’s outward-looking and collegiate, he’s supportive of those around him.’ A HSF partner added: ‘our current senior partner is a very good person to be in the role.’

Palmer also has experience on his side. He saw off three other contenders for the HSF senior partner role in 2014, with London litigation head Tim Parkes, EMEA managing partner Allen Hanen and Sydney-based M&A partner Mark Crean losing out. According to Palmer at the time, the partnership did not vote along geographic lines and he had ‘a lot of support in Australia.’

Shillito has pedigree, having been with HSF since he was a trainee, becoming a partner in 1996. He became head of disputes for the UK & US when legacy Herbert Smith merged with Freehills in 2012, and has overseen high-value disputes in sectors such as life sciences, media and telecoms.

But one former partner is doubtful that Shillito has what it takes: ‘I can see that the litigation side of the practice might be flexing its muscles but I don’t really think that Mark is likely to cause any change in the strategy of the firm. It needs someone who is going to improve the transactional side – someone with clear thinking and with the courage and leadership to make changes.’

There had been speculation that widely respected arbitration head Paul Hodges QC would also be in the running for senior partner and, as one HSF insider insisted: ‘If Paula Hodges were to put herself forward she would win.’

Shillito’s decision to stand provides clarity to this week’s revelation that he was stepping aside from his role as head of disputes. As of 1 May, much-touted banking litigator Damien Byrne Hill will assume Shillito’s old role .

Rather than the geographic focus of HSF’s last senior partner election, this election will be defined by the ongoing turf war between the firm’s pre-eminent disputes arm and its comparatively weaker corporate division. One ex-partner commented: ‘For many years there was a tension between corporate and litigation with litigation being the stronger part of the firm. But the firm’s strategy has been built on the demands of the corporate side of the practice.  It would take a very strong leader to change that.’

HSF declined to comment.

tom.baker@legalease.co.uk

(£) For more on HSF, read this month’s interview with the firm’s chief executive Mark Rigotti.

Legal Business

‘There’s scope for growth’: Damien Byrne Hill on taking over HSF’s disputes team

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Interview Herbert Smith Freehills

Herbert Smith Freehills (HSF) today (21 February) announced that much-touted banking litigator Damien Byrne Hill will be replacing Mark Shillito as head of disputes for the UK and US on 1 May.

Unsurprisingly as one of the key names in what remains the City’s bellwether ComLit shop, Byrne Hill has acted on a string of marquee matters in his 27 years at HSF (by way of legacy Herbert Smith), including defending Goldman Sachs in a $1.2bn claim brought by the Libyan Investment Authority. Shillito, who had run the practice for ten years, including steering it through a turbulent period in the wake of its 2012 union with Australian leader Freehills, returns to full time fee earning.

Legal Business caught up with Byrne Hill to discuss his new role:

LB: How does it feel as a HSF-lifer to become head of disputes?

Truthfully it is not what I had ever planned to do. But now that I’ve agreed to do it I am genuinely excited about what I can bring to the role and continue the things that have started under Mark.

LB: How would you describe the job your predecessor has done?

I hadn’t realised that he had done it for so long. He’s a very level-headed partner who fully understands the value of the thing he is charged with looking after. He listens fairly to new ideas and it’s enabled us to respond to change over time.

LB: Do you think you’ve just taken over the most difficult job at the firm? Disputes remains the core brand for HSF.

Managing a practice that is very successful has challenges, but it’s not as difficult as trying to build a new practice or run a practice that needs to be transformed. There’s scope for growth and development, but against the backdrop of a very successful practice.

LB: What are your ambitions for the US disputes practice?

I don’t take over until 1 May so my view is currently parochial rather than the one I’ll develop over time. That said, we need to build in relation to the areas which we originally set the offices up to do: arbitration, corporate crime and investigations and the US aspect of international litigation.

LB: How does this appointment compare to some of the other highlights of your career?

The closest comparison is being made a partner in 2000. That marks the recognition of one’s partners, which is difficult to beat.

LB: What attracted you to HSF in the first place then?

One was disputes, which I knew I wanted to do. The other was shipping, which I thought I wanted to do. As it turned out, I never did any shipping. When studying law, shipping had some of the most interesting disputes so I thought it was the pinnacle of litigation. I’m not sure it is now.

tom.baker@legalease.co.uk

(£) For more on HSF, read this month’s interview with the firm’s chief executive Mark Rigotti.

Legal Business

LLP accounts: HSF records ‘exceptional’ revenue growth in Europe as profit holds steady

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Financial results 2016/17 Herbert Smith Freehills

A standout performance in Europe helped Herbert Smith Freehills (HSF) boost global revenues by 11% in 2016/17, according to the firm’s latest filings with Companies House, although increased overhead saw operating profit barely move.

Global revenues rose from £832.2m to £920.8m, with the firm claiming that its EMEA region ‘generated exceptional revenue growth’. The accounts cited in particular ‘excellent performances in Paris, Moscow and Madrid’ as well as a robust showing from its Asia practices. Mark Rigotti (pictured), chief executive of HSF, commented: ‘It is very encouraging to see another year of growth as our brand continues to strengthen across markets and regions.’

While often overshadowed by its disputes practice, the accounts also highlighted the performance of HSF’s corporate arm. The firm reportedly advised on over 120 cross-border deals throughout the financial year, with a combined value of around $160bn. Among the major mandates was advising Sky on its proposed £18bn buyout by 21st Century Fox.

At the end of last year HSF shook-up its remuneration system, hiking plateau equity shares from 100 to 130 points. The move, which came weeks after Freshfields Bruckhaus Deringer pushed through similar reforms, has given HSF the freedom to extend its core pay ladder and allow top earners to take home well over £1.5m.

But the changes have not come into play in time to affect the most-recent accounts, with the firm’s highest-earning partner receiving the exact amount as in the previous financial year: £1.6m. The number of partners at the firm was essentially static, increasing from 373 to 374. The number of fee-earners at the firm rose 5% from 2,317 to 2,444, with overall headcount numbers increasing from 4,073 to 4,248.

HSF’s key management personnel, which consists of members of the firm’s global executive committee, took home a smaller share of profits in 2016/17. In 2015/16, the group took home a total of £8.7m, compared to £8.5m this year.

The muted payouts most likely reflect the fact that HSF’s operating profit also barely grew, rising less than 1% from £245.7m to £247.9m. The accounts also detailed payments made out to former members, totalling £3.9m, compared to £1.1m the year previous. The firm said the figure represents payment of profit entitlements to partners after they retired.

tom.baker@legalease.co.uk

Legal Business

Being great at one thing is not enough – remaking a City leader for the times

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Leadership Herbert Smith Freehills

LB: What have been the big wins for Herbert Smith Freehills [HSF] over the last two years?

Mark Rigotti (MR): It has been the shift from integration. That’s by definition backwards-looking so it’s good to move on. We’ve been strengthening some of the smaller offices. We’re different from the Magic Circle that have long-established European practices. We’ve grown about 50% in five years in mainland Europe. The German, Madrid and Paris offices are all significantly bigger. There are more European clients and more leadership positions going to Europeans. That’s a big cultural shift.

Legal Business

The edge of the cliff – Brexit response for worried GCs

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Brexit Herbert Smith Freehills

For UK business, 2018 will be dominated by one question: when do we push the button on Brexit? Months of scenario planning have given a sense of the possible outcomes, but there is little confidence that a decision will be taken in full possession of the facts.

‘We are 500 or so days on from the referendum, and it is still not clear what the arrangements between the UK and the EU will be,’ notes Kirsty Cooper, group general counsel (GC) and company secretary at Aviva. ‘As GCs we are being asked to give our best guess, but the scale of the conjecture with Brexit is unusual.’