The pandemic has made it a uniquely challenging year. Its aftermath is likely to heavily impact capital markets and government policy decisions in the coming years. It has impeded our ability to network and socialize with clients and colleagues. Hopefully this holiday season will bring optimism. A vaccine is being rolled out across the world. 2021 should see renewed business activity. I hope you find something to be thankful for this holiday season. Scientists have found that giving thanks allows us to feel more well-rested and have higher self-esteem. So, intentional appreciation is more than minding our manners — it’s good for our mental health! In the vein of mental well-being, this edition of ABL Insights features an article on how short relaxation techniques reduce mental and physical stress. This issue also features an article from Pat McCarty, a Washington, DC government affairs specialist, on the possible impact of the 2020 U.S. presidential elections. Jennifer Mackovjack of the private investigative firm 221B Partners writes about “The Boons of Being a Generalist” in the realm of investigations. And, last but not least, we have information on new ABL firms, an upcoming webinar and In Other News. Enjoy the holiday season ahead, and I wish you a happy and healthy New Year!
CONTENTS Highlights of This Issue Webinars 2020 U.S. Election Summary Welcome to Harneys Welcome to DMF Legal The Boons of Being a Generalist Small Moments, Big Impact In Other News News & Notes
vol. 2, issue 2 - december, 2020
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FROM THE PRESIDENT Highlights of This Issue Mark E. Ruddy
ABL INSIGHTS
Blaise Krähenbühl is an attorney with DGM Avocats in Geneva. He specializes mainly in contractual and commercial litigation. During his practice, he has advised private and corporate clients, among others, in relationship with distribution agreements, IP and trademark protection, antitrust and competition law, as well as Swiss and international tax matters.
Neil Pfister is a specialist Commercial, IT & IP Partner in the Corporate and Commercial Department of Druces LLP, London. Neil brings his real-life experience at the sharp-end of the IT world to the advice he gives in his core specialism of Commercial Law – in particular the Telecoms, Media and Technology sectors, on matters such as IT and Internet, start-ups as well as Intellectual Property-related issues.
Steve Lincoln is an attorney with Brown, Gee & Wenger LLP in San Francisco. He has practiced law in the Bay Area for more than 30 years, assisting clients in the technology and life science sectors, as well as small businesses. His practice emphasizes all aspects of the drug development and promotion pathway for biopharmaceutical companies, with particular emphasis on clinical trials and on the in-licensing and out-licensing of drug candidates.
ABL is hosting a free webinar on “E-Commerce: How to Start an Online Business”. Online shopping has ramped up since the pandemic hit and surveys show that many people intend to carry on these habits rather than go back to shops. This forces businesses to focus on alternative solutions, such as E-Commerce. In this webinar we will highlight some of the most important legal aspects that companies shall take into account when starting an online business.
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How to Start an E-Commerce Business? Wednesday, December 16th, 2020 17:00 PM - 18:00 PM (CET)
The dust – and litigation – surrounding the November 3rd US Presidential Election has now settled for the most part. Some things are clear: Democrat Joe Biden beat Republican President Trump and will be the next US President. Democrats will continue to control the US House of Representatives – but by a much smaller majority. Other things are not so clear: Republicans appear – but it’s not 100% - to control of the US Senate but we won’t know until January 5th with 2 Runoff elections in Georgia. The forecast of a Blue Wave, which would have given Democrats control of House, Senate and Presidency, did not occur. Apparently no “mandate” for Bernie Sanders/Elizabeth Warren Democratic Progressive agenda. The Biden Administration will have to take a moderate approach and work with the Republican US Senate to get things done legislatively. The new Biden Administration will, however, control US Departments and Agencies (Treasury, SEC, EPA, etc) and will implement policy changes through new regulations and administrative policies. 2020 ELECTION DETAILS The 2020 US Presidential Election saw the most votes in US History - 155 Million. Biden won the popular vote with 80 million votes - the most votes ever cast for a US Presidential candidate. Trump got 74 million votes – second most votes ever. While the Press likes to focus on the popular vote, the US President is determined under the US Constitution by the electoral college vote. Biden beat Trump in the electoral college 306 to 232, with 270 votes necessary to win. Biden won by narrowly beating Trump in the swing states of Georgia (12.8k), Pennsylvania (80k), Michigan (150k), Arizona (10.5k) and Wisconsin (20k). Biden to be inaugurated as President on January 20, 2021. While the Presidency flipped from Republican (Trump) to Democrat (Biden), the 2 Houses of Congress remain split. The Democrats, and Speaker Nancy Pelosi, retained control of the US House of Representatives. Despite pre election polls showing a possible Democratic wave, Republicans shockingly picked up roughly 10 net seats and cut the House Democratic Majority to a razor thin amount (223 D to 212 R). Similarly, Republicans appear to have retained control of the US Senate. Currently Republicans hold a 2 Seat advantage (50 to 48).
2020 U.S. ELECTION SUMMARY
The final 2 Senate seats will be determined on January 5th in runoff elections in Georgia. Biden narrowly won Georgia but both seats are currently held by Republican incumbents. Democrats need to win both Georgia seats to “control” the Senate, which is viewed as highly unlikely. BUSINESS OUTLOOK FOR 2021 What does the US Election mean for businesses – both foreign and domestic? What will the Biden Administration do on climate change, trade policy, corporate taxes, immigration and regulation? The Biden approach will be, for the most part, the exact opposite of the Trump Administration on most issues. Climate Change. On climate change, the US will rejoin the Paris Climate Accords. Biden has already appointed former Senator and Secretary of State John Kerry as Ambassador for Climate Change. While the proposed Progressives Green New Deal could pass the US House of Representatives, it is highly unlikely to pass a Republican controlled Senate. One should expect, however, that Federal Agencies like EPA, Interior and DOE under a Biden Administration to “push” a strong climate change related agenda. Trade. On trade policy, the Trump Administration “go it alone” approach will be replaced with a more “collaborative” approach. China trade issues will continue to be very important but Biden Administration will work with EU, Asian and African partners to blunt the rise of Chinese controlled trade. The Biden Administration will probably abandon the widespread use of tariffs in trade fights, especially against long time friends and allies like Canada and the EU. It is highly unlikely that the Trump USMCA trade deal, which replaced NAFTA, will be repealed or amended. Corporate Taxes. I expect the Biden Administration to support a tax increase on US corporations. The Democratic controlled US House could very well pass a tax bill raising both individual and US corporate tax rates but it is highly unlikely that a Republican controlled Senate will agree. Most likely result is no change to the Trump 2018 Tax law. Lowering US corporate tax rates to make them more competitive with foreign jurisdictions was a signature accomplishment for the Trump Administration. Immigration. The Biden Administration will probably revert to the Obama Administration approach on immigration. This means expanding HB-1 visa program which corporate America supports strongly. It also means a return to the “catch and release” of illegal immigrants who are caught by ICE Agents at the US border. No more funding of the Trump Wall at the Southern Border. The Biden Administration will approve of, and try to extend, the US resident status of Dreamers under DACA. It is unclear whether the Biden Administration will push for new immigration legislation to be considered in the US Congress as such would be unlikely to find support in the
By Pat McCarty Pat McCarty is Of Counsel to Ruddy Gregory, PLLC. is a 30 year veteran of the Washington, DC legislative and regulatory mine field as well as a registered lobbyist. Please feel free to contact Pat at pmccarty@ruddylaw.com if you or your company need assistance with navigating the new Administration or the new US Congress.
Republican controlled Senate. It would not be surprising to see the Biden Administration cut funding for ICE and DHS due to Progressive demands. Regulation. The Trump deregulation era is coming to a close quickly. One should expect the Biden Administration to “undo” many of the Trump Administration deregulation efforts. The financial services sector should expect to see renewed emphasis on consumer protection and regulation of large banks. The Biden Administration will probably continue the Trump Administration’s assault on the Big Tech, especially in the area of privacy. Not clear whether the Biden Administration will go so far as to bring anti trust suits against Facebook, Google, Amazon and other major tech firms. The Biden Administration probably will side with the Trump Administration in opposing EU country (France) efforts to impose a digital tax on major US tech companies. Conclusion: 2021 will see the start of the Biden Administration and a new, and probably divided, Congress. It is highly unlikely that there will be significant legislative activity on climate change, trade, taxes, immigration or regulation due to the Congress being divided. One should look for most of the policy changes/activity from the regulators. While we expect the Biden Administration to issue Executive Orders on some hot button issues shortly after taking office, it will take time for Biden’s nominees to be confirmed by the US Senate and new management installed. One should look for the Biden Administration regulators to start proposing new rules and policies starting in Q3 of 2021.
Harneys is extremely happy to announce that it has formed a strategic alliance with ABL. The collaboration will provide a perfect platform for ABL to expand its global footprint and presence in the Caribbean region, as well as other important locations, and will strengthen the Harneys network.
KEY LOCATIONS Harneys network is one of the largest among offshore law firms with offices in the BVI, Cayman, Cyprus, Luxembourg, Hong Kong, London, Montevideo, São Paulo, Shanghai, Singapore and Vancouver. The firm’s vast network allows it to provide a reliable and timely service on even the most complex cross-border transactions and disputes.
HARNEYS AND ABL FORM ALLIANCE TO DELIVER OFFSHORE LEGAL AND FIDUCIARY SERVICES TO THE ABL NETWORK
ABOUT HARNEYS Harneys is a global offshore law firm which provides expert advice on British Virgin Islands, Cayman Islands, Cyprus, Luxembourg, Bermuda* and Anguilla law. Established in 1960, Harneys was the first legal practice in the BVI and continues to be the jurisdiction’s largest and oldest established law firm. The firm’s full service offering spans all major transactional, contentious, and private client disciplines. In particular, the firm specialises in the areas of Banking & Finance, Corporate, Investment Funds, Litigation & Insolvency, Restructuring, Private Wealth, and Regulatory & Tax. In addition, Harneys’ lawyers often work alongside Harneys Fiduciary, the firm’s associated corporate and fiduciary services arm, to provide integrated business solutions to its clients with consistent quality across the board. *Bermuda law advice is provided by Zuill & Co., an independent Bermuda law firm operating in exclusive association with Harney For more on Harneys’ law firm, visit: harneys.com
HARNEYS FIDUCIARY Harneys Fiduciary, is an independent provider of specialised corporate, trust and fiduciary services operating from key offshore and onshore locations around the world. The fiduciary team provides a personalised end-to-end services, managing all-encompassing global, cross-border business solutions. They are specialists in Corporate Services, Fund Services, Private Wealth, Compliance Solutions and Economic Substance across six legal jurisdictions, namely the BVI, Cayman, Cyprus, Bermuda, Hong Kong and Singapore. For more on Harneys’ fiduciary services, visit: harneysfiduciary.com
ISTANBUL Tanyeli Aykutalp ARICI Tel: +90 212 258 64 04 E: aykutalp.arici@dmflegal.com.tr
DMF Legal, founded in 2011, is a full-service law firm, which aims to provide the highest quality legal service to its clients with a strong focus on both local and international legal disputes. DMF Legal' success is primarily based on its unique structure, consisting of a harmonized co-operation between academics with a great reputation in their fields (mostly Professors and Associate Professors), and experienced practitioners. In 2015, for the first time in the legal industry in Turkey, DMF Legal signed an institutional cooperation agreement with one of the leading and successful universities in Turkey. Within this context, academic and practical knowledge and experience of the firm allow to provide comprehensive legal services. DMF Legal provides legal services to clients in various fields, including administrative, corporate, capital market, tax, labor and social security, banking and financial, emigration and immigration, citizenship, competition, criminal, environmental, bankruptcy, family and inheritance, insurance, intellectual property rights, maritime, logistics and transportation, real estate law and legal training. Our clients are domestic and international legal entities and persons from both inside and outside of Turkey, who are actively carrying on business in various industries, such as financial services, investments, renewable energy, capital markets, food, banking, environment, insurance, intellectual property, human rights, logistics, and transportation. The DMF Legal team is extremely delighted to have been admitted as a new member of ABL. We look forward to our continued relationship and to working on cross-border projects together with all members of the ABL family. For more info on DMF Legal, visit: www.dmflegal.com.tr
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In his 2019 book Range, journalist and author David Epstein makes the case for generalists in a world dominated by specialists. Epstein, a sports journalist, contrasts the upbringings and backgrounds of the generationally dominant figures in golf and tennis: Tiger Woods, who was groomed for greatness, and Roger Federer, who played many youth sports and even resisted advancement in tennis so he could stay in a group with his friends. The successful practice of investigative research is in much the same way predicated on a diverse, generalist skill set and profile and positions practitioners to better serve their clients by bringing a broader array of abilities to the task of answering their questions and solving [or mitigating] their problem. There will still be plenty of times a subject-matter expert (such as in the fields of forensic accounting, anti-money laundering, cryptocurrency or digital forensics and data recovery) will be absolutely necessary in an investigation, but the generalist will know if, when and what type of expert is needed. Here are a few examples from 2020 that many business lawyers and other practitioners likely can relate to or learn from. They illustrate how being a generalist can get the case on the right track from the outset. “I need a cyber expert,” said one client. As any business lawyer can relate, the approach to your client’s case depends in large part not only on the information the client provides at the onset, but the details you are able to draw out during an initial intake call. What clients “think” they need often isn’t what they really need. Generalists who are highly skilled and seasoned are quickly able to ascertain the client’s real need. Inquiring about a “cyber expert” is like saying one needs “a lawyer.” Each of these professions has many specialty areas. After listening to our client, it turned out she didn’t need a cyber expert, but was instead in need of assistance in 1) identifying the sender of an anonymous – and threatening – email; and, 2) conducting a threat assessment to learn more about the sender’s personal and professional background, past behaviors, life situation and “red flag” issues. “We need to conduct an internal investigation and interview employees and other stakeholders in-person,” said a corporate client recently. In any other year, an investigative team would hop in a car or get on a plane and head to the client site. But, this is 2020. Delaying an investigation comes with a slew of drawbacks and downsides, so this case required much more in the way of planning, staffing, and logistics for the health and safety of all involved. The most crucial decision was to determine which interviews were necessary to conduct in person, and which could be done remotely. Of the remote interviews, who can we talk to by phone and whom should we schedule on video. And, how do we as interviewers assess a witness’ or suspect’s credibility if he or she is wearing a mask and sitting six or more feet away? These are the considerations du jour, while an in-person interview is preferable and often the best way to obtain information, there are often subjects who are providing less critical or important information who can be interviewed in a remote context.
the boons of being a generalist Especially When Conducting Investigations During a Pandemic
Article by Jennifer Mackovjak of 221B Partners. Co-founders Jennifer Mackovjak and Andrew Keith have a combined 50 years’ investigative and research experience. They recently left corporate America and the larger consultancies to form 221B Partners as a boutique firm headquartered in Chicago with a reach around the globe. You can learn more about 221B Partners here: https://www.221bpartners.com/
years of professional experience and expertise, with a broad reaching yet deep skillset across a variety of areas. What you get with a generalist is someone who has the foresight on how to handle a situation, who can predict the next obstacle and who is equally at ease talking to a CEO or the tax assessor in a tiny town. She can also conduct an investigation and source interviews across multiple countries, find and forensically capture social media posts of interest, weed out dozens of civil litigation namesake matches (of, say, Michael Smith in Chicago), run a surveillance operation, and cogently summarize press findings on some esoteric topic like fracking. And, these days she can take receipt of copy of an order of protection from a court clerk giving second life to the fax as a communications tool. And, if she can’t do those things, she knows who can.
“Our legal team needs a copy of [a police report, a vehicle title, court filing] ASAP to use in a court proceeding,” said numerous clients. These days, not much is happening ASAP, especially when it comes to getting copies of records when they aren’t available online and the agency that has the record is closed to the public. A generalist understands both the array of public records available, and where they are housed and will know how to get them as quickly as possible by not simply accepting the agency is closed to the public but trying one or more ways simultaneously to see what might work the quickest. While email has displaced the phone for so much business communication, 2020 ought to remind us what an invaluable instrument for every investigator the telephone is. A polite call to a court clerk accompanied by a bit of persistence can yield – yes! – a faxed copy of a record which otherwise can’t be emailed. The generalist might also know that the information could come from either the tax assessor or the county recorder. Maybe someone already posted a copy of the court filing online on her social media feed? Or, perhaps submitting a FOIA request to a police department might get you a copy of the police report quicker than the one in the criminal court file gathering dust in the closed courthouse. There are myriad examples why being a generalist in investigations – and many fields – is beneficial. A generalist is not an inexperienced newbie but instead one with ears
small moments, big impact
With meetings moving to a virtual format, now is the perfect time to brush up on your video conference skills. Here are some quick tips that will help you look your best on Zoom, when presenting on a panel or attending a virtual meeting.
New Study Shows Short Relaxation Techniques Reduce Mental and Pysical Stress We’ve always known that downtime is important to reduce job stress and recharge your batteries so you’re on top of your game at work. Now neuroscientists have gotten in on the act with a new study inScientific Reportsthat shows short, easy-to-apply relaxation techniques can activate your body's regenerative system (parasympathetic nervous system or the rest and digest response) for offsetting stress (your sympathetic nervous system or stress response)—offering a new perspective on how we can treat stress-related disease. Small Moments, Big Impact Scientists have known for years that stress has debilitating physical and mental consequences, but until now haven’t studied brief bouts of relaxation. Research by psychologists at the University of Konstanz observed higher levels of psychological and physiological relaxation in people after only 10 minutes of receiving a massage. Even 10 minutes of simple rest increased relaxation, albeit to a lesser degree than massage. The researchers applied two different 10-minute massages on participants in the laboratory to test: A head-and-neck massage was designed to actively stimulate the PNS by applying moderate pressure on the vagal
nerve, which is the largest nerve running to the PNS. Then a neck-and-shoulder massage with soft stroking movements was designed to examine whether just touch can also be relaxing. A control group of participants sitting quietly at a table was tested for the effect of rest without tactile stimulation. Physiological relaxation was gauged by monitoring the heart rate of participants and measuring heart rate variability, which indicates how flexibly the PNS can respond to changes in the environment. The higher the heart rate variability, the more the body is relaxed. Psychological relaxation was gauged by asking participants to describe how relaxed or stressed they felt. As little as 10 minutes of resting or receiving massage resulted in psychological and physiological reduction in stress. All participants reported that they felt more relaxed, and less stressed, compared with before the treatments. Plus, all participants showed significant increases in heart rate variability, which demonstrates that the PNS was activated and the body physiologically relaxed just by resting alone. The physiological effect was more pronounced when participants received a massage. It was, however, not important whether the massage was soft or moderate—tactile contact in general seemed to improve the relaxation of the body. According to Maria Meier, lead author of the study in the lab of Neuropsychology, "You don't need a professional treatment in order to relax. Having somebody gently stroke your shoulders, or even just resting your head on the table for 10 minutes, is an effective way to boost your body's physiological engine of relaxation." This the first scientific evidence that short-term treatments such as massage can robustly reduce stress on a psychological and physiological level by boosting the parasympathetic nervous system (PNS). The discovery that massage is effective on the level of both psychology and physiology via the PNS will pave the way for future studies on understanding the role of relaxation on stress. Source: Forbes.com Reference: Meier, M. et al. (2020). Standardized massage interventions as protocols for the induction of psychophysiological relaxation in the laboratory: a block randomized, controlled trial. Scientific Reports, 10(1) DOI: 10.1038/s41598-020-71173-w
in other news
The killing of Iranian nuclear scientist Mohsen Fakhrizadeh has prompted Iran to disavow any rapprochement with its “enemies” – including the U.S. – but President-elect Joe Biden’s inauguration early next year could nonetheless be the catalyst for a return to the negotiating table. Press reports are near unanimous in attributing Fakhrizadeh’s killing to Israel. President-elect Biden has signaled his intention to revisit a rapprochement with Iran when he takes office, which will prove more complicated in the aftermath of Fakhrizadeh’s death. Iranian Ayatollah Ali Khamenei said dialogue and negotiations were “not possible, because our enemies oppose the nature of the Islamic Republic establishment”. However, Iran is under tremendous stress on the public health front – due to Covid-19 – and the economic front, owing to the reimposition of strict sanctions following the U.S. pull-out from the 2015 multilateral nuclear deal. Iranian moderates may look to the Biden administration as a possible avenue for relief, but Iran will have to walk a thin line in any overtures it makes to the U.S. to return to talks. Hardliners in both countries will object to any indication that their public officials are too trusting of the other side’s intentions, meaning that each step of the process must be carefully calibrated so that neither side appears to be ceding too much ground.
"In Other News" is provided by Jack Devine, former chief of worldwide operations for the Central Intelligence Agency and co-founder of The Arkin Group, a New York based international risk consulting and intelligence firm. More information on The Arkin Group may be found at https://thearkingroup.com
The U.S. State Department has initiated a system of monetary rewards – up to $5 million – for tips on trade activity that seeks to evade sanctions on North Korea and facilitates further development of the country’s nuclear program. Trade transactions in question include money laundering, exports of luxury goods, and cyber activities. The initiative is expected to turn up information on China, which has long been suspected of providing assistance to North Korea in contravention of U.S. sanctions. In its final weeks, the Trump administration has been ratcheting up pressure on a number of foreign adversaries like Iran and China via sanctions and other punitive actions, and North Korea is no exception. The US is expected to levy further sanctions on Pyongyang and its collaborators before the transfer of power on January 20, which will include sanctions on Chinese individuals and entities involved in illicit trade with Kim Jong-Un’s regime. This initiative and other U.S. pressure campaigns will likely complicate any efforts on the part of the Biden administration to dial down tensions with adversarial regimes and force a more confrontational foreign policy posture than under the last Democratic administration. The UK has announced the largest increase in defense spending in three decades, allocating an additional $21 billion over four years to develop its military’s cyber, space, and artificial intelligence capabilities. The plan would include measures designed to enhance the country’s nuclear deterrent capabilities and protect shipping lanes essential to supplying the country, as well as creating 40,000 new jobs. The move to bolster defense spending comes just months after the public release of a report by the UK’s Intelligence and Security Committee detailing years of Russian cyber campaigns targeting various facets of the UK government, including its Foreign and Commonwealth Office and Defense Science and Technology Laboratory, as well as links between the Russian government and organized crime groups operating in the UK and what are believed to be extra-territorial assassinations carried out at the Kremlin’s behest on UK soil. The shift in defense posture also comes amid what appears to be a global recalibration of the threat posed by China in the cyber and military arenas.
news and notes
R. Amaral Advogados (Fortaleza) was acknowledged by the renowned Latin Lawyer publication. Singh & Associates (New Delhi) has been recognised in the 2020 Merger & Acquisitions rankings by Asian Legal Business. The firm has been distinguished as 'Recommended Law Firm 2020' by the 2020 Guide of IFLR1000 and ranked by AsiaLaw Profiles 2021. Druces LLP (London) has been crowned 'International Legal & Fiduciary Team' at the 8th Annual Wealth Briefing European Awards. It's Equity Capital Markets, Restructuring and Insolvency and Private Client teams were recognised by Legal 500. The Legal 500 has recognised Claudia D. Riedel of DDSA Law (São Paulo) as Recommended Tax Lawyer 2021. Two other firm partners, João Claudio de Luca and Guilherme Filardi, have been named as 'highly regarded leading lawyers' by IFLR, one of the most important reference publications for law firms focused on corporate and M&A law. Ana Luisa Derenusson was recognised by Best Lawyers for Aviation Law. Warners Solicitors' (Kent) Agriculture and Estates and Court of Protection teams have been ranked in the Legal 500 directory. The firm has achieved top rankings in the 2020 edition of the Chambers High Net Worth guide. Rasco Klock Perez & Nieto (Miami)/New York) has launched the "Rasco Klock Mediation Group". Click here to see the profiles of the attorneys involved in the Mediation Group. The firm is also proud to announce the Global Sports Law Group (GSLG) initiative, an international partnership that seeks to offer athletes and sports organizations an all-encompassing legal service group, that can address the clients' specific Sports Law needs across areas of expertise and jurisdictions.
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DISCLAIMER: ABL offers this newsletter for educational purposes only as a service to clients and others. Because of the generality of the information it may not be applicable in all situations and should not be construed or relied upon as legal advice or to create an attorney-client relationship. © 2020 Alliance of Business Lawyers