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Law firms collaborate on industry first to accelerate tech adoption

DLA Piper is amongst six international law firms which have developed a Protocol to help deliver a globally consistent approach to the use of online case management platforms in international arbitration. It is anticipated that the Protocol will be of significant value to arbitration practitioners, parties to international arbitrations and to arbitrators as they adapt to the increasing use of technology in dispute resolution, a development which has been accelerated by the COVID-19 pandemic.

The Protocol, which is a product of collaboration between DLA Piper, Herbert Smith Freehills, Ashurst, CMS, Hogan Lovells and Latham & Watkins, has been in development since May 2019. It aims, amongst other things, to improve arbitral participants’ ability to meet their obligations relating to data handling and cybersecurity in a way which is both practical and cost effective. It is also intended to facilitate efficient and secure document sharing.

The initiative to produce the Protocol reflects a common need that had been identified by lawyers who are engaging directly with a changing legal landscape in which the use of technology and digitisation are assuming ever growing prominence. Particular features of that in international arbitration include the greater focus which Arbitral tribunals are having to give to cybersecurity and data protection, the recognition following the pandemic that much if not all of the arbitral process can be done virtually and the revisions which arbitral institutions are making to their procedures as, for example, they look at the ways in which they can operate through online data hosting platforms.

With this Protocol the six firms have worked together to produce guidance that will help to foster greater understanding of those and other issues, and assist the arbitration community to take a consistent approach. It is of global application, deliberately flexible in approach, and relevant to all forms of international arbitration. In addition to providing guidance to parties to an arbitration, their lawyers, tribunal members and arbitral institutions, it is hoped that it will also contribute to the way in which technology developers and providers tailor their legal tech offerings and develop new products.

Maria Scott, Senior Associate at DLA Piper, and member of the Protocol’s working group, commented: “DLA Piper is proud to be a part of this collaborative initiative, which aims to drive real and beneficial change in the way proceedings are managed around the world. This fits well with our firmwide radical change agenda which addresses the increasing role that technology and innovation is playing within the legal sector. It was, therefore, a natural step for us to work with other firms to develop this comprehensive and practical guidance to assist arbitral users in navigating the online case management options available to them when seeking to store, share and manage data securely.”

Charlie Morgan, Senior Associate and Digital Law Lead (UK) at Herbert Smith Freehills, who chairs the collaborative working group, added: “This protocol will help drive discussion and consensus within the arbitration community and with relevant technology providers about the need for and functionality of online platforms in arbitration. Given the fantastic input from various arbitral participants to date, this guidance will support more informed, streamlined and effective decision-making about the adoption and use of online platforms in international arbitration. It will also herald the development of more sophisticated platform options that continue to meet the evolving needs of arbitration users.”

James Carter, Partner at DLA Piper, also commented: “The guidance set out in the draft Protocol will help to drive the effective and consistent use of sophisticated new technologies in international arbitration in a way which not only delivers efficiency of process but contributes to the confidence which parties have in arbitration as a method of dispute resolution. If it is to remain such a popular method of dispute resolution, international arbitration must adapt and embrace new practices, particularly as regards the use of technology. This Protocol will materially contribute to that by providing valuable guidance to users of international arbitration around the world.”

Kirkland advises Travelodge and AllSaints on restructurings

Kirkland & Ellis is advising Travelodge, the UK’s largest independent hotel brand, on its company voluntary arrangement (CVA), which was approved by creditors on 19 June. The CVA involves Travelodge temporarily reducing rents and moving from quarterly to monthly payments on certain leases. Unlike most CVAs, there are no proposed hotel closures or permanent rent reductions.

The approval of Travelodge’s CVA follows the ground-breaking injunction to restrain a winding-up petition pending Travelodge’s restructuring and forthcoming legislation.

The successful vote will enable Travelodge to navigate the short-term challenges facing the business as a result of the COVID-19 pandemic. The process is now complete, subject to the usual challenge period.

Kirkland is also advising AllSaints, the global contemporary fashion brand, on the restructuring of its store portfolio through parallel CVAs of two English tenant companies. AllSaints successfully obtained recognition in the U.S. and Canada of one of the CVAs, which (if approved by creditors) will compromise the relevant company’s liabilities under leases in the U.S. and Canada. Recognition was obtained under Chapter 15 of the U.S. Bankruptcy Code and the Canadian equivalent (Part IV of the Companies’ Creditors Arrangement Act), on 17 June. If, and when, creditors approve the CVAs, follow-up recognition applications will be made to the U.S. and Canadian courts.

We believe AllSaints’ CVA represents a series of major firsts, including the first U.S. recognition of a landlord CVA, the first Canadian recognition of a CVA, and (if approved by creditors) the first compromise of U.S. and Canadian leases via a CVA.

The Kirkland team for Travelodge was led by restructuring partners Elaine Nolan and Kon Asimacopoulos and litigation partner Richard Boynton. Ian Wormleighton and Dan Butters, of Deloitte LLP, are the CVA supervisors. Tom Smith QC and Henry Phillips, barristers at 3-4 South Square, advised Travelodge on its CVA.

The Kirkland team for AllSaints was led by restructuring partners Elaine Nolan and Lisa Stevens in London, Joshua Sussberg and Neil Herman in New York, and David Seligman in Chicago. Richard Fleming and Mark Firmin, of Alvarez and Marsal, are the CVA nominees.

PwC appoints Carol Stubbings to lead Global Tax and Legal Services

PwC has appointed Carol Stubbings to be its Global Tax and Legal Services Leader from 1 July 2020. Carol has been a member of PwC’s Global Tax and Legal Leadership group for the past four years, most recently leading PwC’s People and Organisation practice.

Carol joined PwC UK in November 2003 and has been a partner for the last 15 years. Carol has lived and worked in Zambia, South Africa and the United States and her roles at PwC have included Global Mobility Leader for PwC UK and Client Experience Leader for PwC’s Global Tax practice. Carol has also over the last 12 months led PwC’s New World. New Skills. programme, which is focused on upskilling both PwC’s own people and developing and sharing technologies to support clients and communities.

“I am delighted to welcome Carol to PwC’s global leadership team to head up our Tax and Legal Services practice. Her experience leading multinational teams and working with clients to solve their most pressing strategic challenges will prove invaluable as we work through the ups and downs of work and life in a post COVID-19 world”, said Bob Moritz, Global Chairman of the PwC Network.

“It’s an honour to be asked to lead our 55,000 strong Tax and Legal Services practice across the world. As we navigate some very difficult times, our focus will be on helping our stakeholders to build and grow the businesses and organisations of tomorrow”, said Carol Stubbings, PwC’s Global Tax and Legal Services Leader.

Carol replaces Colm Kelly who will take on a new role as PwC’s Global Purpose and Corporate Responsibility Leader.

“I would like to thank Colm for his outstanding leadership of our Tax and Legal Services team over the last four years and I look forward to continuing our work together on Purpose”, added Bob Moritz.

Deloitte comments on ONS retail sales

In this press release references to “Deloitte” are references to one or more of Deloitte Touche Tohmatsu Limited (“DTTL”) a UK private company limited by guarantee, and its network of member firms, each of which is a legally separate and independent entity.

Commenting on today’s ONS retail sales figures, Ian Geddes, head of retail at Deloitte, said: “Retail sales continued to struggle in May, despite both values and volumes rising by 11.8% and 12% compared to April. In a month that saw two bank holiday weekends, some easing of outdoor social gatherings, and warmer weather for many, retailers may have been looking for the first green shoots of recovery to make up for lost ground in March and April.

“Overall food sales values were flat, at +0.3% month-on-month, but, whilst grocers may have hoped for stronger food sales in what is traditionally the start of barbecue season, online grocery sales remain strong, up by 21.1% compared to April and now accounting for 11.3% of all food sales. More encouragingly, non-food sales are up month-on-month in both value (+24.2%) and volume (+23.7%) for the first time since lockdown, which, for some, will mark the early signs of ‘normality’ for this time of year. However, 41.5% of non-food sales occurred online in May, up from 15.8% in February 2020 before lockdown.

“A wider disparity between online and in-store sales remains this month in spite of garden centre and hardware store re-openings. Total online sales stood at 33.4% this month, beating April’s record sales, though this is unlikely to have offset sales usually seen in-store over this period. In addition to household goods, purchases have also likely been driven by beauty products and, more notably, clothing items as many consumers continue to work from home, with an increased requirement for video conferencing and a more relaxed ‘work’ wardrobe.

“Looking ahead, as non-essential retailers begin to phase-in store reopening plans, some consumer anxiety will remain. During lockdown, consumers have pivoted to fewer but bigger food shops. Whether this trend will also translate into non-food remains to be seen. For retailers, there are two options: a difficult balancing act to between re-creating a familiar shopping experience whilst implementing and maintaining strict new hygiene practices, or innovating and re-inventing the shopping experience for a post-COVID-19 world. Deloitte data shows that 46% of UK consumers currently feel safe visiting a store, but building on this confidence will be key for drawing more shoppers back to the High Street over the coming months.”

Norton Rose Fulbright launches NRF Covid Resolve platform

Global law firm Norton Rose Fulbright has today launched NRF Covid Resolve, a new online legal framework and process for expedited dispute resolution.

COVID-19 has made it difficult for many companies to perform some of their contractual obligations, giving rise to a high number of corporate disputes, particularly relating to the application of force majeure and change in law provisions.

Commercial contracts usually prescribe formal, lengthy and costly modes of dispute resolution. In the current crisis, the overriding need in many cases is to ‘get back to business’ quickly in a way which is still fair to all parties. ADR is being actively encouraged to avoid a deluge of post-COVID-19 litigations.

At the same time, due to the wider financial impact of the pandemic – particularly in the energy sector with the oil price crash – many in-house legal departments are under pressure to conserve legal spend.

To tackle this challenge, a taskforce of energy and disputes lawyers at Norton Rose Fulbright worked with NRF Transform – the firm’s global change and innovation programme – to develop NRF Covid Resolve. It is a dispute resolution process supported through a single online platform, that aims to achieve an outcome for each dispute within four to six weeks. The process can be used for both disputes between companies, or for disputes between companies within the same group, operating in both civil law and common law jurisdictions. Its fixed price allows users to effectively plan and control their budgets.

Parties may opt for a mediation process only, a mediation process followed by documents only arbitration or an arbitration only. The mediators and arbitrators are selected from a pre-agreed panel of independent sector specialists available through the platform.

Anne Lapierre, Norton Rose Fulbright’s Global Head of Energy and developer of NRF Covid Resolve, commented: “The energy industry faces unprecedented challenges from COVID-19, compounded by the wider transformation of the sector as it undertakes the essential transition away from fossil fuels. As such, we feel it our duty to come up with practical solutions to help clients get back to what they do best as quickly as possible. Our unique solution to managing the influx of disputes will do exactly that. Taking this product from conception to launch in under two months is an achievement in which our energy and disputes lawyers should take great pride.”

Neil Q Miller, a London-based energy disputes partner, said: “Businesses, governments, judiciary and commentators have all emphasised the need for a different approach to resolve the volume of potential claims arising from COVID-19. Many such disputes are not suited to lengthy, procedurally burdensome and costly traditional dispute resolution methods, with businesses being damaged by the impasse created from managing many live disputes with no way of efficiently resolving them. NRF Covid Resolve allows clients through their legal departments to adopt a fast track process and effectively plan, manage and resolve these claims whilst controlling external legal spend, which is a priority now more than ever.”

David Carter, Chief Product Officer for Norton Rose Fulbright and global lead for NRF Transform, commented: “The impact of COVID-19 meant clients needed a solution rapidly or it would be too late to help. Our outstanding team of NRF Transform product managers, legal designers, business analysts, solutions architects and developers delivered a technical solution matching our lawyers’ vision. Simplicity was key; the intuitive platform is easy to access and navigate.”

The platform will be rolled out first to clients in the energy sector, with plans for the mediator and arbitrator panel to expand over the coming weeks so clients in all sectors can benefit.

Global Top 40 mining companies resilient in face of COVID-19

The global Top 40 mining companies are so far weathering the COVID-19 crisis but should take advantage of relative stability to adopt strategies to mitigate against further economic and social risks, according to PwC’s Mine 2020 report.

PwC’s forecast for 2020 suggests the big miners will take a modest hit to EBITDA (earnings before interest, tax, depreciation, amortisation & impairment) of approximately 6%. This follows a strong financial performance in 2019 – with revenue up 4% to US$692bn and market capitalisation up 19% to US$898bn (though since reduced to US$752bn on 30 April 2020). On this basis PwC believes the Top 40 are in a strong and resilient position to weather the economic uncertainty created by COVID-19.

Despite this positive outlook, the report cautions that mining companies will need to adapt to long-term impacts caused by COVID-19. Miners may need to think about de-risking critical supply chains and investing more in local communities. A shift towards localisation in supply chains and for smaller deals in local markets, as well as different forms of community engagement, may turn out to be enduring consequences of the pandemic.

Jock O’Callaghan, global leader for mining and metals at PwC, says: ‘In some respects, the mining sector is well-situated in the wake of COVID-19. Mining companies have strong finances and are mostly still operational, albeit with some level of increased precautionary and preventive control.

‘But the longer-term impacts remain uncertain, and ongoing disruption is likely. Top 40 miners should take advantage of their current position of financial stability to revisit their strategies. Doing so will ensure their businesses can enhance their resilience over the long term and meet the demands of the global economy – meeting their aspiration to resource the future.’

A changing outlook for investment & deals

Capital expenditure was up 11% to US$61bn in FY19, according to Mine 2020. PwC expects capital expenditure will slow in 2020, freeing up cash flows, and giving miners the capacity to pay dividends should they choose to do so.

PwC doesn’t expect many mega-deals to take place in 2020 due to increased economic uncertainty and practical constraints of site visits and inspections. However, the current conditions provide opportunities for the Top 40 to capitalise on smaller acquisitions in their local markets.

The enterprise value of mega gold deals totalled US$19.2bn in FY19. Gold deals are not likely to recur to the same size or quantum as in recent years.

Cybersecurity requires attention

Currently just 12% of mining and metals companies’ CEOs are extremely concerned about cyber (down from 21% in FY18 and 14% in FY19). Yet Mine 2020 notes that over a similar period the number of reported cyber breaches among mining companies increase fourfold.

Jock O’Callaghan says: ‘Cybersecurity should be an integral part of the Top 40’s safety and business strategies. Miners should take the opportunity, given their relative resilience, to leverage their strong safety cultures to embed the concept of ‘cyber safety’, which like other forms of safety, is non-negotiable.’

Growing expectations around ESG

Although Mine 2020 has found that most large miners are moving in the right direction on ESG disclosure, some are performing better than others. Only 11 of the Top 40 companies (28%) are setting public ESG commitments and targets, reporting consistently against them, and linking executive and management performance to achieving them.

No one commodity group is outperforming any other. But given rising stakeholder expectations, all Top 40 miners should have moved past the stage of general or variable commitments about ESG.

Jock O’Callaghan says: ‘How should mining come together to take collective ownership of ESG and accept the necessary accountability and transparency that will ensure they are taken seriously? It is time for miners to sit down and work towards a common global standard about what constitutes responsible mining and how companies will report their performance against it.’