Eversheds supports call for Georgia hate crime legislation

Eversheds Sutherland has signed a letter by the Metro Atlanta Chamber and the Georgia Chamber of Commerce urging the Georgia General Assembly to pass a comprehensive, specific and clear bill against hate crimes in the state of Georgia. Currently, Georgia is one of the few states that does not have such a law in place.

“Our firm values stand against bigotry, hatred and inequality, and we believe the state of Georgia should send the same message by passing a law against hate crimes that protects diverse Georgians – our employees, our clients, and their families,” said Mark D. Wasserman, Co-CEO of Eversheds Sutherland. “Being part of the Georgia business community, we believe in advancing policies that support positive change and are proud to be part of a solution that fights for racial justice and equality.”

Eversheds Sutherland has joined the Metro Atlanta Chamber, the Georgia Chamber of Commerce and more than 60 corporations in support of comprehensive hate crime legislation. Companies interested in joining the growing group should go to www.passhatecrimesga.com where they will find instructions how to join and contact elected officials.

Eversheds Sutherland strengthen projects offering in the Middle East

Eversheds Sutherland has appointed project finance lawyer, Ashley Halewood, as a partner in its Projects team in Dubai. Ashley joins the firm from Linklaters’ Energy & Infrastructure team in Dubai.

With nine years’ experience working in the Middle East, Ashley has advised on a number of high profile transactions in the infrastructure, renewables, oil & gas, petrochemicals and power and water (IWP, IWPP and ISTP) sectors across the MENA region.

He has represented sponsors, developers, commercial lenders, Islamic finance institutions, ECAs and multilateral agencies, in all aspects of project financing, including bids, acquisitions and disposals.

Ashley is named as a ‘Rising Star’ by The Legal 500 in the Infrastructure and Projects (including Project Finance) sector.

Keri Rees, Co-Head of Global Company Commercial, Eversheds Sutherland said: “We’re thrilled to welcome Ashley. His appointment builds on our existing offering in the Middle East, enhancing the capability we already offer to our clients through the technical excellence and wealth of experience that he brings. Whilst Middle East focused, Ashley is part of a global team and it’s great to see this develop with Ashley already connected with colleagues in London, Paris, Germany and Asia in particular. Despite these challenging times, having Ashley on board reaffirms our ongoing long term commitment to meeting the needs of our clients and the increasing demand for service excellence.”

Nadim Kayyali, Regional Head of Eversheds Sutherland’s Corporate and Commercial team in the Middle East commented: “Ashley is a superb lawyer, with a proven track record in the region and his appointment reflects the investment in talent that the firm has made in the Middle East over the past couple of years. He brings with him a wealth of technical experience and client relationships which will develop further our existing projects teams in Dubai and across the region in Tunisia, Qatar, Jordan, UAE and KSA. We are committed to the growth of our practice in the Middle East, and supporting the strategic growth and strength of our global projects offering, and it is my pleasure to welcome Ashley to our team.”

Ashley Halewood commented: “I am delighted to be joining such a highly reputable team, building on what is already a strong offering in the Middle East, and a great platform from which to grow and strengthen my relationships with clients. It’s an interesting time to be joining Eversheds Sutherland amid our clients’ obvious concerns around COVID-19 and its impact on, amongst other things, the energy and infrastructure sectors. I look forward to working as part of the team to help find innovative solutions to our clients’ challenges and opportunities.”

Dentons launches combination with Rattagan Macchiavello Arocena

Dentons has launched its combination with Rattagan Macchiavello Arocena, a leader in the Argentine legal market, positioning Dentons as the largest global law firm in the country. In Argentina, the office will be branded as Dentons Rattagan Macchiavello Arocena. Dentons now has more offices in all of Latin America and the Caribbean than any other law firm, making it the first truly Pan-Latin American and the Caribbean law firm.

“Dentons’ launch in Argentina enables us to meet client needs in another priority market for our clients,” said Elliott Portnoy, Global CEO of Dentons. “We can now connect our clients to our leading talent at Dentons Rattagan Macchiavello Arocena as well to our 19,000+ people in 183 locations and 75 countries around the globe.”

“Dentons’ polycentric strategy has seen the Firm scale its presence to 24 countries across the Latin America and the Caribbean region,” said Joe Andrew, Global Chairman of Dentons. “Despite the current challenges created by Covid-19, Dentons continues to execute its strategy to scale the firm through virtual combinations with leading law firms like Rattagan Macchiavello Arocena and is now present in virtually all of Latin America and the Caribbean.”

“Since entering the region in 2016, Dentons has combined with elite firms across Latin America and the Caribbean,” said Jorge Alers, Latin America and the Caribbean Region CEO of Dentons. “Argentina has a number of exceptional legal service providers, but Rattagan Macchiavello Arocena stood out for its leadership and innovative and forward-looking thinking. This new launch means we can now connect clients to market-leading talent in Argentina and the whole of the Americas.”

Less than 15 years since its foundation, Rattagan Macchiavello Arocena became a highly recognised leader in practice areas such as Corporate and M&A, Energy, Environment and Natural Resources, Banking and Finance, Compliance and Anticorruption, Government Relations, Infrastructure, Labour Law, Litigation and Dispute Resolution, Pharmaceuticals and Tax.

“We are very proud and terribly excited with this distinction. As part of Dentons, our Buenos Aires office will now have at hand’s reach all of the knowledge, talent, best practices and state-of-the-art technology to better support our clients, allowing them to do business throughout Latin America and the Caribbean and, quite literally, in any other place of the world,” said Michael R. Rattagan, who in 2005 co-founded Rattagan Macchiavello Arocena.

So far in 2020, Dentons has launched Dentons Bingham Greenebaum and Dentons Cohen & Grigsby, the first step in forming a truly national law firm in the United States as part of Dentons’ “Project Golden Spike,” Dentons Kensington Swan in New Zealand, Dentons Lee in South Korea and Dentons Jiménez de Aréchaga in Uruguay, and opened an office in St. Lucia.

Rights and Liberties, Liability of the French State and Judicial Review

On 24 December 2019 the Conseil d’Etat ruled that indemnification can be granted under French law on the ground of a prejudice suffered due to the application of a law ruled contrary to the Constitution by the Conseil Constitutionnel.

The Conseil d’Etat now leaves the door open to a new possibility for indemnification, within the framework of a QPC examination (Question Prioritaire de Constitutionnalité) or by application of Article 61 of the Constitution (subject to conditions). Based on the hierarchy of norms, this new kind of liability of the State is stated in three decisions dated 24 December 2019 (req. N°425981, N° 425983 and N°428162).

This new regime lives now next to the already existing liability due to the application of the law (responsabilité du fait des lois) based on equal treatment before public burdens (principe d’égalité des usagers devant les charges publiques).

A QPC is a question raised by a tribunal or a court aiming at determining the conformity of a law to the Constitution. Article 61-1 of the French Constitution states in this respect that during an instance before a tribunal or a court (private or public), a plaintiff can support the view that a law contravenes rights and liberties guaranteed by the French Constitution. In such a situation, the Conseil Constitutionnel can be seized after remand of the case by the Conseil d’Etat or the Cour de Cassation.

The general principle under French administrative law is that the French State can be sued simply because of the application of a law, provided that (i) the plaintiff has suffered a prejudice qualifying as important and specific (grave et special) and (ii) the law in question does not exclude the possibility for a plaintiff to be indemnified. This type of liability is applicable even if the French State is not considered as being in default with the application of the law and is named liability without misconduct (responsabilité sans faute de l’administration).

This possibility started in France at the beginning of the 20th century (Conseil d’Etat, case Couitéas – 1923), with the admission of liability without misconduct of the French State due to an administrative decision of non-enforcement of judicial decisions. In such a case, in the general interest, the French State may decide not to enforce a judicial decision, but in turn, has to indemnify the plaintiff. The ground for indemnification is the breach of equal treatment before public burdens principle (principe d’égalité des usagers devant les charges publiques). This principle is taken from the French 1789 declaration of the human rights and the citizen: each member of the community has to bear a certain amount of public burdens, but equal treatment shall prevail.

This principle has expanded thereafter with the admission of such a claim against a law (and not against an administrative decision only) by the Conseil d’Etat in 1938 (Conseil d’Etat, case Société la Fleurette – 1938). Such a case establishes that, in the silence of the said law, a plaintiff shall not bear a charge created by a law that he/she would not normally lie with, it being specified that, in the event of silence of the said law, such law shall not be considered as excluding the liability of the French State (Conseil d’Etat case Coopérative Agricole Ax’ion – 2005).

The liability of the French State can also be triggered due to its obligations to ensure the application of its international conventions, to indemnify all the prejudices resulting from the application of a law passed illegally because contrary to an international convention (e.g. ECHR) (Conseil d’Etat, case Gardelieu – 2007).

Now, according to the new decisions of the French Conseil d’Etat dated 24 December 2019, the other grounds for indemnification are (1) that the decision of the Conseil Constitutionnel does not decide that no indemnification shall be granted either (i) by excluding it expressly or (ii) by letting alive all or only a part of pecuniary effects caused by the law, that an indemnification would challenge, (2) the existence of a prejudice and (3) the link between the prejudice and the unconstitutional application of the law.

As a consequence, a plaintiff may be indemnified in the following conditions : (i) no express exclusion of indemnification by the Conseil Constitutionnel (ii) no all or part of pecuniary effects left alive by the Conseil Constitutionnel that an indemnification would challenge (iii) and (iv) a link between the prejudice and the unconstitutional application of the law.

According to the decision of the Conseil d’Etat, certain pecuniary effects of the law declared unconstitutional may prevail upon an indemnification. In this respect, it is reasonable to think that an administrative judge would apply an economic balance check between the necessity of indemnifying the plaintiff and the profit of letting alive all or only a part of pecuniary effects caused by the unconstitutional law. An economic balance check is already applied in other circumstances (expropriation with the application of the théorie du bilan coûts / avantages), by the Conseil d’Etat (Conseil d’Etat case Ville Nouvelle Est – 1971).

In this perspective, it is reasonable to think that the application of an unconstitutional law may survive if it is more interesting from an economic point of view. This mentioned carve out is quite important as it gives the possibility to the Conseil Constitutionnel to let alive, even if the law is declared unconstitutional, and then cancelled, parts of its pecuniary effects.

In addition to the breach of equal treatment before public burdens principle (principe d’égalité des usagers devant les charges publiques), it can be suggested that other principles may underpin this kind of liability: preservation of legal safety (sécurité juridique) and /or granted rights (préservation des droits acquis), and / or economic balance check, to take into account all the adverse financial effects that an indemnification would cause.

The claim for indemnification can obviously be barred by effluxion of time, it being specified that the 4 (four) years period during which such a claim can be brought only starts if the prejudice resulting from the application of the law may be known in its reality and its scope by the plaintiff, without the possibility for him or her to be regarded as ignoring the existence of his / her right to claim until the declaration of unconstitutionality.

The indemnification request has to be brought before the administrative judge (Tribunal Administratif). It remains however to be seen whether legal practitioners will try to use these decisions of the Conseil d’Etat to sue the French State before the judicial order (ordre judiciaire). Under French law, the French Conseil d’Etat is the highest court entitled to address administrative cases and is part of the administrative order (ordre administratif) whereas the judicial order (ordre judiciaire) is composed of judiciary tribunal and courts (jurisdictions judiciaires) and is competent for private matters. How dealing with the fact that a tribunal or a court may apply deliberately after the declaration of unconstitutionality a law previously declared unconstitutional outside the scope of the carve out of the ratio decidendi of the Conseil d’Etat? Would Article 141-1 of the Code de l’organisation judiciaire, which gives competence to the judicial order in the event of indemnification of a prejudice due to malfunction of judicial public service, apply? It is reasonable to think that such indemnification would not be allowed even if legal practitioners may wish to test it, and may be, open this possibility, for the residual adverse effects on the plaintiff of the law declared unconstitutional.

A lack of indemnification by the French State may also give rise to a lawsuit before the ECHR (European Convention on Human Rights), a plaintiff would still have in fine, the right to be indemnified on the basis of the application of a law declared unconstitutional. From a theoretical point of view, and on the basis of the hierarchy of norms, letting a country member of the European Council apply a law declared unconstitutional could raise issues.

Up to date 24 December 2019

Hogan Lovells advises Timberland Investment Resources Europe

Hogan Lovells has assisted Timberland Investment Resources Europe (TIR) in setting up its second investment vehicle in Luxembourg.

The firm helped TIR, one of the few private investment management firms that offers investment solutions in the forestry sector, to set up a Reserved Alternative Investment Fund (RAIF). The Hogan Lovells team advised on the initial structuring of the fund, including tax, through to the first closing of the fund, which occurred in January 2020 for circa EUR 75 million. The current target is to double this amount by the end of the year.

This fund is one of a few on both sides of the Atlantic investing in timberland and forestry assets.

This work shows the client’s continuous trust in Hogan Lovells. The firm previously advised TIR on the launch of their first Luxembourg fund (TIR Europe Forestry Fund) in 2016.

The Hogan Lovells Luxembourg team was led by Pierre Reuter (partner) and included Simon Recher (associate), Mathilde Soetens (trainee), with support from the London team led by Erik Jamieson (partner) and Ollie Phillips (associate). On the tax side, the team included Gérard Neiens (partner), Jean-Philippe Monmousseau (counsel), Pierre-Luc Wolff (senior associate), and Grâce Mfuakiadi (associate).

Steve Ryan Comments on Minneapolis Legal Market Growth

Steve Ryan was interviewed in a September 2019 Law.com article on trends in the Minneapolis legal market, in which he discussed the aspects that make Minneapolis an appealing location for firms to open new offices in.

Ryan cites access to a strong pool of talent and thriving business community as major draws for out-of-town firms.

“It’s a really underappreciated market when it comes to the economic dynamism of the geography,” said Steve Ryan. “It’s an incredible place for businesses to thrive. There’s incredible access to talent.”

Read the full article here.