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BTI Consulting Group Recognises Eversheds for Superior Client Service

Eversheds Sutherland is pleased to announce that it has been named to the elite 2021 BTI Client Service 30, a list of law firms recognised for delivering superior client service. The rankings are based on unprompted client feedback from general counsel at some of the world’s largest organisations.

The BTI Client Service 30 is a subset of the organisation’s larger client survey, The BTI Client Service A-Team 2021: The Survey of Law Firm Client Service Performance, which evaluates individual law firm performance through thousands of client interviews conducted over the span of 20 years.

This year’s analysis is a result of 350 independent, candid, one-on-one interviews with corporate counsel; firms cannot lobby or self-nominate to be added to the list. Of the 282 law firms recognised in The BTI Client Service A-Team 2021, Eversheds Sutherland ranked among the top 30.

Additionally, Eversheds Sutherland was recognised as a “Leader” in unprompted communication, anticipating client needs, commitment to help, client focus, understanding business, value for the dollar and quality products. The firm also achieved recognition in all three of BTI’s newest categories in the 2021 report: mobilising resources, fielding the absolute best team and quickly assessing the client’s situation.

“We greatly appreciate the confidence of our clients and peers, and are very grateful that they continuously entrust us with some of their most important matters and objectives,” said Eversheds Sutherland Co-CEO Mark D. Wasserman. “We take great pride in meeting the highest standards of service, and it is extremely rewarding to be singled out for this honour.”

About BTI Consulting Group

The Boston-based consulting group is the leading provider of strategic market research to law firms and professional services firms. BTI conducts the only continuous benchmarking market study in the legal services industry based on independent interviews with general counsel and key decision makers who hire law firms.

About Eversheds Sutherland

As a global top 10 law practice, Eversheds Sutherland provides legal services to a global client base ranging from small and mid-sized businesses to the largest multinationals, acting for 70 of the Fortune 100, 61 of the FTSE 100 and 128 of the Fortune 200.

With more than 3,000 lawyers, Eversheds Sutherland operates in 69 offices in 32 jurisdictions across Africa, Asia, Europe, the Middle East and the United States. In addition, a network of more than 200 related law firms, including formalised alliances in Latin America, Asia Pacific and Africa, provide support around the globe.

Eversheds Sutherland provides the full range of legal services, including corporate and M&A; dispute resolution and litigation; energy and infrastructure; finance; human capital and labour law; intellectual property; real estate and construction; and tax.

Eversheds Sutherland comprises two separate legal entities: Eversheds Sutherland (International) LLP (headquartered in the UK) and Eversheds Sutherland (US) LLP (headquartered in the US), and their respective controlled, managed, affiliated and member firms.

Chambers Global 2021 highlights our cross-border strengths

Norton Rose Fulbright ranked first among all law firms with 18 ranked lawyers in the Chambers Global 2021 global-wide practice rankings, as well as standing in the top 10 for total number of global-wide departmental practice rankings, practice rankings across all categories and lawyers ranked overall.

The firm earned 22 global-wide practice rankings, and was ranked in 185 practice areas across all categories, including global-wide and country-specific. The 185 practice area rankings include 16 top tier rankings in China, Greece, Malaysia, Morocco, Myanmar, the United Kingdom, the United Arab Emirates and the United States.

A total of 234 Norton Rose Fulbright lawyers were individually ranked as leaders in their field. The firm also picked up six new departmental rankings in Africa, Latin America, Russia, the United Kingdom and United States.

In its analysis, Chambers cited clients who provided feedback on the firm’s work, praising its extensive global reach.

“The (Norton Rose Fulbright) international network has become an increasingly important component of their service delivery as cross-border business grows,” one client told Chambers. Another praised the firm’s “ability to function seamlessly with team members in different offices and across time zones.”

A full list of our rankings is available online.

Veronica Relea Named Among Top 100 Female Lawyers in Latin America

Latinvex has named New York partner Veronica Relea to its Latin America’s Top Female Lawyers list for the fourth year in a row. The annual list recognises the top 100 female lawyers from international law firms who are doing business in the region. Latinvex’s selection criteria includes recent track record on major deals and business, prominence of the firm in Latin America, and rankings.

Relea, a member of Latham’s market-leading Project Development & Finance and Latin America Practices, has developed a robust Latin America practice advising clients on a range of complex finance transactions. She represents commercial and investment banks, sponsors, developers, and private equity firms in connection with the development, construction, operation, and financing of energy, oil and gas, and infrastructure projects. Relea also has extensive experience in leveraged finance transactions, including acquisition financings and asset-based facilities.

A native of San Juan, Puerto Rico, Relea is also recognised for her work by The Legal 500 Latin America and The Legal 500 US.

It is never too soon to deal with privacy by design under Brazilian LGPD

Data protection has definitively remarked the discussions during the last years. The European experience in its General Data Protection Regulation (GDPR) spread over many countries and has inspired legislation regarding such matter.

Brazilian General Data Protection Law (LGPD) passed in 2018 will enter into force soon, after a postponement caused by the current pandemic. It is expected that the law will bring more security for data subjects under the Brazilian legal framework.

Although LGPD will take effect only next year, both business and organisation need to prepare their data management and processes since now to avoid fines and, a little worst, loss of consumer trust.

Regarding measures to start the compliance program, the Privacy by Design (PbD) principles are likely a good way to ensure end-to-end privacy during data processing. The concept of PbD was developed in the 90’s by the former information and privacy commissioner of Ontario, Canada, Ann Cavoukian.

Several studies in such field aims to prove that Cavoukian’s 7 foundational principles are paramount to protect privacy, from IT systems and physical design to business practices. Both GDPR and LGPD have similarities, which may make it easier to develop PbD.

Cavoukian’s principles such as privacy as something proactive and preventive, transparent, and that is developed to guarantee end-to-end security (i.e. during the full data lifecycle) match some of the LGPD articles and provisions, although in an unexpressed manner.

On the other hand, GDPR has adopted the “data protection by design and by default” in its article 25, with reference to technical and organisational measures to implement data protection principles. It ensures privacy requirement from the very first moment of data collect until the erasure of the information.

Therefore, PbD deals with privacy and respect for the user from “cradle to grave”, in Ann Cavoukian’s words. However, that does not mean that business and organisation’s reputation and credibility need to follow the same way. Data protection legislation are not just a framework to comply with. Instead, if the business does not respect its user’s privacy, more than receiving fines, it will bury its image before the activity sector.

To sum up, the 90’s bring to us many technological and legal advances, such as the World Wide Web, Directive 95/46/EC of the European Parliament and of the Council and, of course, the PbD. But what it really teaches us is that it is never too soon to discuss and implement privacy as an organisational default.

The next 90’s lesson is still unclear, but for now we are more than experts to start seeing privacy as benefit, not as an issue.

Post-Covid changes are permanent and there are more to come

The need for business leaders and policy makers to fundamentally rethink the way they plan, invest and operate in the future is underlined in a new survey of 699 global CEOs released by PwC.

The survey shows the majority of CEOs believe that COVID-19 pandemic driven shifts towards remote collaboration (78%), automation (76%) and fewer people working from offices (61%), are here to stay. Overall, 61% say their business model will be more digital in the future – a change accelerated by the pandemic.

Responses show digital infrastructure, flexible working and employee well-being will top their boardroom agendas as they reconfigure business operations to secure growth in the next 12 months and beyond. Fifty-eight percent of CEOs say ensuring supply chain safety will remain a focus, driving technology investments to enable tracking of products from production to delivery, and to ensure their suppliers and partners are resilient during crises.

“Business leaders need to simultaneously keep their company running today and fundamentally rethink their strategy for tomorrow, so they come out of the pandemic ready to reconfigure their business to thrive in a very different world. And they need to do that, thinking not just about the COVID-19 acceleration of change in society and the rising expectations of their broader stakeholders, but also the other issues that are going to fundamentally reshape the future of business – from climate change to populism,” says Bob Moritz, Global Chairman, PricewaterhouseCoopers International Limited.

In a challenge to decades of increased globalisation, almost two in five (39%) of CEOs believe there will be a permanent shift towards onshoring and insourcing, and a similar share expect an enduring increase in nationalism.

Kristin Rivera, Global Leader, Forensics & Crisis, PwC US, comments: “The COVID-19 pandemic has reminded CEOs of the importance of building resilience into their operating model. Firms that were able to quickly adopt digital working practices or switch their supply chains were better able to withstand the shock. CEOs now need to simultaneously contend with the unfolding pandemic and to rethink how they operate in the future. Not every innovation developed in a crisis is right for the long term, but there is much to learn.”

CEOs are naturally cautious on their own revenue growth prospects in the year ahead (45% somewhat confident, 15% very confident). 65% are predicting a decline in global growth. Concern about the global economy is highest in Africa, Central & Eastern Europe, Asia and Latin America.

Business leaders also believe the pandemic increased the importance of responding to a wider range of stakeholder issues, particularly employees. Employee support measures included health and safety (92%), well-being (61%) and financial support (24%). Forty-two percent made contributions to community organisations and almost a third (32%) of business leaders reduced their own pay. Those CEOs who maximised retention (36%) and protected employee health and safety (92%) believe it will have a positive impact on their organisation’s long-term reputation.

Bhushan Sethi, Joint Global Leader, People and Organisation, PwC US, comments: “The accelerated shift to flexible working has been valuable for many companies. Whatever new models emerge, it’s clear that employee-oriented policies that invest in safety, protection and well-being could become the new differentiator for recruitment, retention and company reputation.”

The changes driven by COVID-19 add significantly to an already full agenda for CEOs. Climate change remains an influential trend for consumers and businesses alike. When asked if the shift to climate change mitigation would endure, the majority of business leaders (47%) said it would. Business leaders believe short term increases in disposables (including sanitisers, masks) and decreases in the use of the sharing economy would only be temporary.

Limited retreat from cities

While the majority of CEOs (61%) believe that there will be lower workplace density than before, they remain divided about what role cities will play in the future: 34% believe the shift towards de-urbanisation will continue; 38% believing it is temporary.

Divided about the role of government

Business leaders are not expecting extended government support, with the majority (57%) believing state intervention to be a temporary feature, despite the potential for governments to use the support to influence COVID-19 recovery and policies impacting business. Less than one in three (30%) believe government support will be sustained, despite a gloomy outlook for global and organisational growth prospects in the next 12 months. One in five respondents say they declined government backed support for their business during the pandemic.

Bob Moritz comments: “Some CEOs may feel like they’ve passed a critical test. What’s critical now is that they use the important knowledge they’ve gained about their organisations effectively for business and society. The most enduring shift in this pandemic is the reality that it can no longer be a choice between the long and the short term. We need to address both.”

Brazil – Retention of title in international business

We commonly find, in contracts for the purchase and sale of movable property, and even in more generic documents (for example in General Conditions of Sale), the existence of the so-called “retention of title” (reserva de domínio) clause, the purpose of which is to ensure that the seller continues as owner of the goods sold until the price for the said goods has been paid in full by the purchaser.

Although the insertion of such a clause in credit sales is a common practice and is even to be recommended, it is important to emphasise that the contractual provision of a retention of title clause does not by itself guarantee the protection desired, and may not produce the practical effect expected.

Brazilian law contains certain rules that must be complied with in order for the title retention clause to be effective, but many international contracts do not in fact observe such rules, which can cause disagreeable surprises for the seller when it tries to exercise its rights in relation to the retention of title.

In most cases, this occurs because foreign sellers simply enter into contracts and/or establish general conditions of sale based on their own laws, and choose to submit any disputes to the jurisdiction of their own country.

It is understandable that the foreign seller may often prefer to choose the law and jurisdiction of its own country in order to govern its contracts, on the assumption that such choice offers it more facilities and security. However, in matters involving international business, this may prove to be a serious problem if the seller is not aware of the legal rules that exist in the country of the purchaser.

In this respect, it should be pointed out that, in certain cases, the simple choice of foreign law and jurisdiction may not be the best option, even though foreign companies may have the false impression that such option will always be the one that best meets their interests. It must be remembered that, taking as an example a retention of title clause, any legal action to recover possession of the goods in the event of the purchaser’s default, will take place in the country of the purchaser, and for this reason it is essential to know whether such action is likely to cause conflict with the laws of that country.

In Brazil, the choice of law in itself is frequently the subject of controversy and must be considered on a case-by-case basis, since Brazilian law imposes certain restrictions on the parties’ freedom of choice on this topic. There are cases where there exists an imposition of the law of the country of the offeror, while in others there are special Brazilian laws regarded as being rules of public policy.

The choice of forum must also be considered very carefully, because even if it is possible to take advantage of a foreign jurisdiction, it must be remembered that any foreign decision needs to undergo a process of validation by the Brazilian Superior Court of Justice in order to be recognised and be enforceable in Brazil, which could lengthen the procedure.

With specific reference to the retention of title, Brazilian law establishes, among other requirements, that the contract containing such clause must be registered at a notary’s office (Deeds and Documents Registry) of the purchaser’s domicile, within a period of 20 days as from its signature. Late registration does not invalidate the contract, but retention of title is only effective as from such registration.

If the contract is written in a foreign language, it is also necessary to have the document officially translated into Portuguese by a sworn public translator before applying for registration.

Absence of registration of the contract at a notary’s office does not guarantee protection to the seller, whether vis-à-vis the purchaser or third parties. Thus, the seller cannot claim the property if the purchaser has sold it to a third party, or pledged it to a third party as security, or if the seller becomes insolvent, as in cases of judicial restructuring, where the clause will not be effective against other creditors, and the seller may end up as an unsecured creditor.

Apart from the need to register the contract at a notary’s office, it is also essential to put the debtor officially in default, by notification or protest of the “security”, as only then will the seller be able to claim recovery of the property. Here too there is another peculiarity of Brazilian law, since the exercise of the right to repossess goods sold subject to retention of title presupposes the existence of a debt represented by an enforceable instrument (for example, a promissory note, bill of exchange or even a contract containing characteristics of an enforceable instrument under Brazilian law).

In addition, Brazilian law now allows contracts to establish the rules relating to procedural matters that may arise between the parties and, in this respect, it is recommended that contracts containing a title retention clause provide, for example, for the possibility of search and seizure of the goods in the event of non-payment, the manner of appraising the goods for the purpose of calculating a debit balance, who will be responsible for the cost of such appraisal, the possibility of sale or assignment of the goods to a third party to avoid the risk of deterioration, among others.

Apart from the measures referred to above, special care must be taken when General Conditions of Sale are concerned. This is because such documents have a generic characteristic and, unlike specific contracts of purchase and sale, do not contain a description of the merchandise, which is essential for the effectiveness of the retention of title, because the Brazilian Civil Code stipulates that “An object that cannot be described perfectly cannot be the subject-matter of a sale with retention of title”. In principle, there exist means of complying with the legal requirements even in cases of retention of title in General Conditions of Sale (for example, registration of the said general conditions together with the invoice containing a description of the merchandise sold, inclusion of an express reference to the general conditions in the invoice itself, among others), but this must be evaluated in each specific case.

These brief comments make it clear that protection of the seller’s rights as regards title to the goods requires more careful consideration than the mere inclusion of a retention of title clause. A wider examination of the issue is always to be recommended, taking into consideration the peculiarities of the laws of the country of the purchaser, in order to ensure maximum legal protection for the seller.

Frederico Amaral Filho and Charles Wowk

Associate lawyer and Partner in the Civil Area – São Paulo

[email protected] and [email protected]