Australian Corporate Lawyer - Summer 2019 by Association of Corporate Counsel (ACC) Australia

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acla.acc.com SUMMER 2019, Volume 29 – Issue 4

The official publication of

THE CONSUMER DATA

RIGHT IS COMING LAWYERING AND LEADERSHIP WHAT DESIGN THINKING LOOKS LIKE IN-HOUSE LEGAL PROFESSIONAL PRIVILEGE, THE GLENCORE DECISION, AND ISSUES FOR IN-HOUSE LAWYERS1 VOLUME 29, ISSUE 4 – SUMMER 2019 |

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Volume Number 29 Issue Number 4

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ACC Australia ACN 003 186 767

REGULARS

Editorial Editor: Andrew McCallum T: (61) 3 9248 5548 E: a.mccallum@acc.com

PRESIDENT’S REPORT

LEGAL VOICES Sandie Angus

A DAY IN THE LIFE Peter Waldie

Journal Sponsorship and Advertising Are you interested in reaching 4,000 ACC members Australia-wide? Please contact: Andrew McCallum T: (61) 3 9248 5548 E: a.mccallum@acc.com If you are interested in other sponsorship opportunities with ACC Australia, please contact: Ingrid Segota T: (61) 3 9248 5511 E: i.segota@accglobal.com

LEGAL WELLNESS Jon Downes

ACC GLOBAL UPDATE

Letters to the Editor You are invited to submit letters to the editor by email: a.mccallum@acc.com Articles for Publication If you have an article you would like to submit for publication, please contact: Andrew McCallum T: (61) 3 9248 5548 E: a.mccallum@acc.com Contributions are included at ACC Australia’s discretion and may be edited.

F E AT U R E S 10

CONSUMER DATA RIGHT

LAWYERING AND LEADERSHIP

THE RISE AND RISE OF IMMIGRATION COMPLIANCE

MORE THAN AN IN-HOUSE LAWYER: BUILDING AN EXECUTIVE PRESENCE

BOILERPLATE BLUNDERS: 12 MISTAKES TO AVOID WHEN DRAFTING COMMERCIAL CONTRACTS

TURNING LEGAL LIABILITIES INTO ASSETS

General Enquiries T: (61) 3 9248 5500 E: ausmembership@acc.com W: acla.acc.com Publisher The Australian Corporate Lawyer is published by the Association of Corporate Counsel (ACC) Asia Pacific.

LEGAL DEPARTMENTS: THE BOTTOM-LINE AMPLIFIER

WHAT DESIGN THINKING LOOKS LIKE IN-HOUSE

LEGAL PROFESSIONAL PRIVILEGE, THE GLENCORE DECISION, AND ISSUES FOR IN-HOUSE LAWYERS

INTERVIEW: BOB SANTAMARIA

Disclaimer The opinions, advice and information contained in this publication may not be shared by ACC Australia. They are solely offered in pursuance of the object of ACC Australia to provide an information service to corporate lawyers.

The Association issues no invitation to any member or other person to act or rely upon such opinions, advice or information and it accepts no responsibility for any of them. It intends by this statement to exclude liability for any such opinions, advice or information. Readers should rely on their own enquiries in making any decisions which relate to the content here.

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PRESIDENT ’S R E P O R T ••

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Justin Coss National President

s we draw towards the end of 2019 and I put pen to paper to write my first report as President, it becomes clear to me that there is no shortage of things to write about and with over 900 new members joining ACC Australia, the level of activity has never been higher. Thanks to the tireless work of our amazing staff, ACC Australia members have continued to enjoy a fantastic diversity of resources, events and programming including: •• over 150 events — professional development programs servicing our members across the life cycle of their in-house career from student and new to in-house to the senior General Counsel/CLO level •• a stellar 2019 National Conference in Adelaide, with strong registrations, a fantastic program and a high level of sponsorship support •• the development of a graduate handbook, highlighting the in-house profession to Australian law students •• the piloting and launching of the ACC Australia Legal In-house Clerkship Program with an in-built intensive training component created by The Learned Crew •• establishing a Career Centre for members who are looking for a new job or are looking for new staff •• delivery in Sydney in August of the first ACC in-house Certification program in Australia, with a second course scheduled for Melbourne next year •• the publishing of four white papers: Bringing the team with you; The General Counsel as an influencer of culture; Getting a seat at the table: How General Counsel can win trust and influence people; and General Counsel as strategic advisers to leadership •• development of new local networks, including — new to In-house and Legal Leaders. In addition, ACC Australia has had a busy year in the advocacy space with several important pieces of work completed or underway including: •• The Glencore Case and Legal Professional Privilege — ACC Australia made submissions to intervene in these proceedings on an amicus curiae basis with respect to the application of legal professional privilege to

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documents obtained by the Australian Tax Office as part of the Paradise Papers leak Western Australia’s adoption of the Uniform Law from 1 July 2020 — ACC Australia is working with the West Australian ACC Committee to prepare a submission regarding transitional provisions to facilitate the planned changes to the Uniform Law in WA Scope of corporate practice — ACC Australia has been advocating for several years for a broader definition of ‘related entity’ under s. 6 of the Uniform Law, and ideally for ‘related entities’ to include related bodies corporate, as defined under s. 50 of the Corporations Act. Such a change would broaden the entities that in-house lawyers in Victoria and NSW (and soon WA) can advise and overcome some of the existing practising certificate constraints. Australian Law Reform Commission consultation on Corporate criminal Liability — ACC Australia is working with the members of the ACC Advocacy Committee on a submission to ensure that Australia’s legal framework has appropriate safeguards to prevent honest senior officers such as in-house counsel, who have appropriately discharged their duty of care and diligence, from being held liable for corporate crime.

ACC Australia has continued to be the principal representative body for the in-house legal profession in Australia and, thanks to the efforts of our voluntary board and committees, we continue to abide by our ethos of “by in-house counsel, for in-house ccounsel". Over recent months, after significant consultation, the ACC Australia board formed the view that a board of 16 was not consistent with good corporate governance and out of step with peer organisations. Accordingly, in order to improve the efficiency and quality of the Board, the Board of Directors proposed a motion at our recent Annual General Meeting to reduce the size of the Board to a maximum of 12 members. I would like to extend my heartfelt thanks to Karen Grumley on the successful completion of her two-year term as President. Karen has been an inspirational leader over these past two years and has worked effectively to represent our members’ interests during her term. I also want to highlight Gillian Wong, who has clocked up an amazing 10 years on the ACC Australia Board. Gillian has worked tirelessly during her time on the Board and both she and Karen have effectively juggled their duties representing ACC Australia, with busy in-house roles while raising young families. I am looking forward to the next two years as President and know I will be ably supported by our new Vice President, Mei Ramsay, our new Board, the ACC Australia staff and management and of course, you, our members. I wish everyone a safe and happy holiday season and hope to see as many of you as possible at our ACC events in 2020! a

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LEGAL V OICES

thought I loved Paper. I thought that Paper would help me in my quest for efficiency and neatness. But Paper just wanted to control me. Paper kept wanting more of my time and space. Paper didn’t want me to make new friends.

Sandie Angus As the President of the ACC Australia Queensland Division, Sandie is an experienced general counsel and company secretary. She has previously worked with Queensland Treasury Corporation and Energy Queensland and is a current Non-Executive Director with PCYC Queensland and Sporting Wheelies and Disabled Association.

LIFE WITHOUT PA P E R – F I N D I N G NEW FRIENDS Each month ACC Australia invites our in-house industry leaders to share their experiences and perspectives on areas of importance to the Australian in-house community.

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We started to drift apart. Eventually, I fell out of love with Paper. I met DMS (name withheld to protect the identity of the document management system) and thought that he might be the one. But he wasn’t quite enough. So, I looked to friends for help. I am now free of Paper. Here’s what I suggest if you want to be free of Paper too. First, defriend the false friends — this is hard but important. •• Notebook, Post-it Notes and Pen are dominating friends. While it is tempting to share the important moments with Notebook or ask Post-it Note to remind you to ring someone, they want to take over your life; constantly want more space, arrangement and attention. •• Handouts are needy friends. Handouts just turn up at meetings and want you to look after them. If Handouts have any relevance after the meeting, ask for an electronic copy. If that is not possible, use Scanner (a new friend — see below) to copy it and leave Handouts at the meeting. As we know from the James Hardie case, Handouts can lead you into trouble (Australian Securities and Investments Commission v Meredith Hellicar & Ors [2012 HCA 17). Next, make sure your friends have a great place to hang out. Phone and Laptop provide a nurturing and supportive atmosphere for your friends to hang out. If your employer does not provide a phone and laptop or allow you to BYO, write a business case for why this accommodation is necessary for your friends. Ideally, the laptop will have a touch screen and support a digital pen. The benefits outweigh the costs. Then, treasure old friends. Email and Electronic Calendar are enduring friends. Spend time nurturing them each day. Next make new friends — this is such fun! •• Electronic Meeting Notes is a lifechanging friend. I take my laptop (or phone) to all meetings and type, draw or even dictate (Microsoft Word and most apps have this capability now).

••

Notes App is a constant friend. It is there in the middle of the night, and at breakfast. It’s recently had a makeover with improved formatting and scanning. I use the Notes App for: - one (very long) “to do” list to record the tasks that occur to me on the go. Because it is just one list, to which I constantly add and delete, I don’t forget about it. - taking notes at seminars, which I then file into the Cloud (see below) or email. (The only downside is that people may assume you are texting and emailing.) Phone Scanner is a nerdy friend. When Paper tries to sneak back into my life, such as through receipts or handouts or notes, I use Phone Scanner to scan documents of any size (even the really big ones).On my phone, Phone Scanner lives with Notes App, under the camera icon. Drawing Apps and Tools are creative friends. I like to write notes, draw and highlight on long documents. Sometimes I need to draw a picture. I use various drawing apps that are now easily available, such as Windows Ink, “Draw” tab in Microsoft word, and the writing tools in Adobe Acrobat Reader and Preview (the Apple version of Acrobat Reader) and Drawboard. Most work with a mouse, but are fabulous with a touch screen using your finger or a digital pen. Earphones is a liberating friend. Using Earphones when you are on the phone gives you two hands to look after Electronic Meeting Notes. Cloud is a bighearted friend. Cloud takes anything you give it (subject to being a bit fussy about names of files) and has ingenious ways to be with you anywhere, anytime (letting you choose which documents live on your computer as well as living with Cloud). Electronic Signatures are cool friends. While it may be a longer-term initiative for your company to fully embrace electronic signing, small steps such as signing the routine forms with Drawing Apps (rather than printing out, signing and then scanning) will help keep Paper at bay. Power Cord, Phone Charger and Power Bank are energised friends. I try to keep them close at all times. Each friend has a twin that lives in my bag.

Finally, Rubbish Bin is a forgiving friend. When I fail and let Paper back in, Rubbish Bin is there to help me cast out Paper. Don’t let Paper hold you back. a VOLUME 29, ISSUE 4 – SUMMER 2019 |

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A DAY IN THE LIFE PETER WALDIE General Counsel, Movember Foundation

Peter Waldie As the General Counsel at Movember Foundation, Peter leads an international legal team that supports Movembers’ global efforts to improve men’s health. Prior to joining Movember, Peter spent eight years working with Museums Victoria. He initially completed his legal studies at Latrobe University and also holds degrees in Archaeology and Global Business Law.

6.00 am

A word on Movember: Movember is the leading charity tackling men’s health on a global scale across prostate cancer, testicular cancer, mental health and suicide prevention. Our fathers, brothers, partners, mates and sons are dying too young for largely preventable reasons. Your dough will save a bro. 6.30 am Donate now at Movember.com

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I’m not a morning person so early starts are not my favourite thing. But it is late October and the moustache-growing season is soon upon us with the imminent launch of the major Movember fundraising campaign for 2019. And so I have to get myself ready for a 6:30 meeting. Movember operates in 22 countries and has offices in 6. The legal team services these offices from London, Los Angeles and Melbourne, and 6:30 local time is the least inconvenient time for all of us to come together for our fortnightly team meetings. Global Legal team meeting. I video link in from home and we discuss all the preparations for the campaign, my recent trips to the US and UK offices, and several operational issues in our Programs space where we fund projects around the world.

7.30 am Following on from the team meeting, I review emails that came in overnight from other offices, particularly anything from the US that needs attention from me to action before the end of their day. I also check through our matter management system, Xakia, to see what legal work requests have been logged overnight and where the team is at with work in progress. 8.00 am

Commute to office. It’s an easy train ride into Richmond and then a short walk up the hill to our offices. Review emails from the UK/EU, Canada and US on the way in.

8.45 am

Arrive at work and grab a desk for the day. We have an office hot desk policy so if you don’t grab a decent desk early you can end up without many options. That said, it’s a terrific opportunity to sit with different teams and individuals.

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messages including work issues that get caught up in this channel. 10.15 am Review and finish draft Board paper on insurance renewals and 2019 update for end-ofmonth meeting. 11.00 am Meeting with marketing team about two upcoming campaign launch initiatives, a media stunt on the steps of the State Library Victoria and a shave down on the top of the Sydney Harbour Bridge (including the need for clippers that catch beard trimmings as a mandated OHS requirement). I’m also quizzed in some detail about the type of moustache I’m intending to grow this Movember.

Some of my most valuable conversations have started in this way or from an overheard conversation that reveals a project legal can and should add value to. I then grab a coffee and piece of toast from the kitchen. It’s a great way to catch people at the start of the day on items you need from them, but it cuts both ways and I’m also caught by a couple of people chasing me on things before I get back to my desk. 9.15 am

9.45 am

Jump on a video call with a team member in the US to confirm the last pieces of information for our US and UK insurance policy renewals. Then phone the broker, confirm, and email through instructions to bind the various policies. Review emails (now including Australian morning issues) and work out priorities for the day. Also check Slack for various

12.00 pm I grab lunch from the café downstairs (if there’s time I try to get out for a walk through Richmond, or even over the MCG and back, but that’s not possible today). Back at the office we have a guest speaker in for a monthly ‘Lunch and Learn’ session. This is for the Melbourne office and usually involves a team updating some recent achievement or topic of interest. But today, it’s one of our Community Ambassadors who is sharing his personal journey with mental health. Sometimes these sessions are pretty heavy, yet they serve as a salient reminder of why we are here, and the value and impact of what Movember does to help tackle these pressing men’s health issues around the world. 1.00 pm Brief check in with the two team members who support our global Programs team, which has funded or operated over 1250 men’s health programs and initiatives around the world. This includes programs that encompass global patient registries to report patient outcomes, funding biomedical research projects in testicular cancer and prostate cancer, and programs to tackle mental health and suicide prevention in men. On average, men die 6 years sooner that women. Globally, 75% of suicides are men. Men often struggle to talk about their health or find forums and tools that make it acceptable to do so. Movember funds a number of social-impact programs such as

our Social Innovators Challenge. Two of my favourites are the Young Hunters program, a Canadian project targeting mental health and youth suicide by promoting traditional skills and teaching within the local indigenous community, and the Men’s Pie Club in northern England, which teaches socially isolated men how to make pies and creates an environment to build new social relationships that will protect them when times get tough. 2.00 pm Tackle the to-do list, including drafting some amendments on a complex multi-party partnership agreement in North America and check that the tech team can deliver the dollarmatching logistics for the deal. A number of emails are responded to and a number of interruptions are had. We have ongoing IP and licensing issues around the world and there is some focus on chasing brand lock-up and logo design for potential new trademark applications in Australia and Canada. Review an internal planning document on new key initiatives from relevant business sections and field some questions on privacy implications for some communications on the upcoming campaign. 4.00 pm Review the evidence-of-use submission and examples in support of US trademark registration. 4.30 pm A quick chat with the Community Partnerships team about some upcoming events being run by the community to launch the Movember 2019 fundraising campaign. 5.00 pm Out the door at 5 — it’s not the norm but with an early start it’s the trade-off today. Review some more emails on the way home. 8.00 pm Regular catch-up with UK/Europe Country Director to check in and discuss any pressing issues or areas where my input or support is needed from Legal. We try to discuss Brexit, decide neither of us have any idea what’s going to happen, and I sign off for the night. a

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LEGAL WELLNESS

Jon Downes With over 20 years’ experience in the financial and services industry, gained across both major law firms and the corporate environment, Jon is a trusted advisor to businesses with a commercial and strategic focus. In his current role as Head of Legal, Australasia at Willis Towers Watson, Jon provides advice and support on a range of issues. Jon’s expertise includes managing legal and regulatory risk, insurance law, corporate governance, company secretarial and government relations.

T H E H A P P Y L AW Y E R

Imagine a 250 km endurance race across the Atacama Desert in Chile, navigating rocky terrain, sand dunes and wild rivers, a searing 45 degrees Celsius in the day dropping to just above freezing at night. It’s said to be one of the hardest races on the planet. Why would you do it? And what on earth has this got to do with being happy? Or with being a lawyer? Let’s wind things back a bit. I’ve been a lawyer for over 20 years. Over that time, I’ve dealt with my fair share of stress. I’ve moved countries, bought a house, experienced deep personal loss, had a severely sick child — all stressful events and all the while working as a lawyer: handling high-profile litigation; being involved in many M&A transactions; dealing with restructures and so on. I’ve learnt over time that happiness doesn’t just come to you, no matter how much you wish for it. What’s more, as research suggests, the legal profession is prone to anxiety and stress — not happiness. Unsurprisingly, a lot of lawyers I know have not reached their potential for being relaxed happy people. Many of them feel frustrated, exhausted and recognise that they’re not operating at their full potential. Why is this? There are many reasons. To name a few, lawyers spend a lot of time hunched over computers and smart phones, in a closed in, negative posture. We work in a profession that involves intense, deep analytical thinking, using the prefrontal cortex part of our brains a lot more than most other people do. We are more often than not stuck in thought, always contemplating, analysing and weighing up — quite often pre-occupied — never really present. The irony — research suggests that these are all factors that lend towards performing well as a lawyer! If we then take this and add a stressful work environment where we are under constant pressure to solve problems, it’s hardly surprising there isn’t a lot of happiness. But stress and anxiety are normal human responses that we should be able to handle, shouldn’t we? How we choose to mentally process stress and anxiety and the activities we participate in have a strong bearing on how we are impacted. It is all too easy to develop unhealthy coping strategies — drinking too much coffee and eating the wrong food whilst burning the midnight oil; not getting enough sleep or exercise; drinking too much alcohol to “unwind”. This can also trigger a chemical imbalance, increasing levels of cortisol and adrenalin, which, frankly, is not good for us. According

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to research, everything we do consistently for more than three days can become a habit. Developing bad habits does not lead to happiness. A few years ago, I had cause to pause and reflect. I wasn’t particularly happy — probably for a number of the reasons set out above. I took a step back and thought about this, helped by my amazing wife who is qualified in positive psychology. Through her business, Positively Thriving, she helps other people — but I didn’t need any help … or did I? I started listening to what she had been telling me. I realised that I lacked awareness about what were positive strategies and how they could help me. I’d developed a number of negative coping strategies as a child and, in a way, working in law had reaffirmed those strategies that were not contributing to a well-balanced life. I realised I had a choice — I could change the activities I was participating in and reinvent my habits or do nothing. I researched articles, read papers and books, attended courses and seminars — all on, essentially, how to become happy. I discovered that happy people show high levels of gratitude, have high emotional intelligence, are mindful and have a growth mindset. Gratitude can be learned through practice. Lawyers tend to leave empathy at the door of the office, but emotional intelligence (EI) is key to being a happier person and we can learn EI. The quickest way to becoming mindful is through mindful meditation — something I now practise daily. It’s all too easy to have a fixed mindset, but you can also change that. It’s really important to engage in the right activities to have meaning and purpose: time with friends and family; maintaining fitness positively; a good diet; having some level of spirituality and self-development. If you engage in them enough, they become habits. Once you have positive habits, you become happier — and, ironically, you become a better lawyer. You can wish for change all you like, but you have to put the effort in to actually change and sometimes that can seem like running across a desert, which brings us back to where we started. My beautiful daughter was doing a project at school on the Atacama Crossing earlier this year. “How cool would it be to do that!” she told me. “Well,” I responded, “if it makes you happy…”. I remembered that being outside and running always made me happy as a child. So I started running again. And the Atacama Crossing, well, why not? a

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Wednesday 4 March

Thursday 28 May

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Thursday 7 May

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CONSUMER DATA RIGHT Applying initially to the banking sector, with the energy and telecommunications sectors expected to follow, the Consumer Data Right (CDR) will allow customers to access data on their own consumption of goods and services. This will enable consumers to direct custodians to share their data with third-party entities. It’s anticipated that the implementation of the CDR will significantly increase competition between businesses and could potentially be applied economy-wide. The CDR regime imposes significant obligations with respect to privacy. In-house counsel working for businesses that hold consumer data should consider the impact of the new regime on their business operations and how they should prepare for the new data privacy landscape.

he Consumer Data Right (CDR) was established through amendments to the Competition and Consumer Act 2010 and the Privacy Act 1988 . 1 The Murray, Harper, Coleman, and Finkel inquiries all recommended that Australia develop a right and standards for consumers to access and transfer their information in a useable format. The 2017 Productivity Commission report, Data Availability and Use, made 41 recommendations, including for the creation of a new economy-wide Comprehensive Data Right. Subsequently, on 26 November 2017, the Australian Government announced the introduction of a CDR in Australia. The CDR legislation was passed in August 2019. The CDR operates under a multi-regulator model, comprising the Australian Competition and Consumer Commission (ACCC), the Office of the Australian Information Commissioner (OAIC) and a new Data Standards Body. 2 The CDR intends to improve the ability of consumers to compare and switch between products and services, while encouraging competition between service providers. 3 It will give consumers the right to safely access data about themselves held by businesses and be able to direct that this information be transferred to accredited and trusted third parties of their choice. 4 At its simplest, the CDR involves three parties — a consumer, a data holder (which holds the data about the consumer), and a data recipient (which is both trusted by the consumer and accredited to operate as a data recipient). By exercising the Consumer Data Right, the consumer directs the data holder to make the data held about them by that holder available to the data recipient. There is no obligation on the consumer to request a data transfer—it is an entirely voluntary process. Value is generated if the offer made by the data recipient to the consumer is accepted.

accredited data recipients with consumer consent under the CDR in February 2020. All other banks will follow suit in July 2020. The energy and telecommunications sectors are expected to follow suit in future. While the CDR presents a range of opportunities for consumers and businesses, it also presents a range of legal obligations and commercial opportunities for businesses. In-house legal departments will be required to play an increasingly proactive role in, firstly, mitigating those risks for their organisation and, secondly, ensuring they are positioned to prosper in the post-CDR landscape.

Implications for consumers A common challenge for consumers across a range of sectors is to have sufficient access to information that enables them to make informed decisions. Often the details of products and services can be difficult to understand and, to make the best decision for themselves, consumers rarely have either great visibility of their own historic spending and consuming behaviour, or the ability to interpret those patterns of behaviour. The CDR aims to give consumers control over information about themselves, initially in banking, energy and telecommunications, and enable the sharing of that information with trusted, accredited third parties. This could support the consumer in obtaining superior offers in terms of products, services or prices and also in comparing prices and benefits between different services, almost certainly to access lower priced offerings.

The main objectives of the CDR are that it is consumer-focussed, encourages competition, creates opportunities for businesses, and ensures the security and protection of consumer data.

Importantly, the CDR is supported by a set of rules and technical standards that support the content, access and interoperability of the data transfer systems. These rules (developed by the ACCC) and standards (developed by the Data Standards Body) ensure consumers are appropriately serviced and protected when exercising their Consumer Data Right.

In the first sector designated to implement the CDR, banking, the regime is referred to as “Open Banking” and initial product reference data, including interest rates, application fees, other fees (i.e. not consumer data) applying to all credit and debit cards, deposit and transaction accounts, were able to be accessed in July 2019 voluntarily by the big four banks. Banking consumer data, such as the customer’s own income and payment transaction data, are expected to be made accessible by

A major element of the Consumer Data Right regime is the requirement for the consumer to exercise an informed, explicit and complete consent to the data transfer. This is a significant aspect of the CDR reform and will improve the security of consumer data because it requires the consent of the consumer to the uses and transfers of their data. It will also require businesses to inform consumers about the disclosure of data to third parties. 5 The CDR establishes privacy safeguards, which will

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be enforced by the OAIC. These safeguards provide consumers with avenues to seek remedies for breaches of their privacy or confidentiality, and also establishes obligations to provide anonymity and pseudonymity to consumers and destroy or deidentify redundant data. 6

Implications for companies holding the data The primary rationale for this significant policy change is that currently the value of data is at a micro level, and businesses that hold these data, whether an individual’s energy company or financial institution, are monetising that data; hence, the value that is able to be derived from that information accrues to those various companies and institutions. 7 These companies currently monetise these data in various ways; they can sell it; they can use it for targeted advertising; and they can derive insights from the data that consumers are unable to access. 8 CDR will not only allow businesses to make superior offers to consumers in terms of price, value, and customisation but create new market opportunities arising from the data they will be sharing and receiving. For example, Budgeting and Personal Financial Management use cases will be offered. In addition, it is expected that some customers will be offered lower-cost loans and credit cards because of their specific transaction

data and what these data show about them. Once Energy and Telecommunications join Banking as designated sectors, offers that are based on specific consumer data from the three sectors are expected to form the basis of offers rarely seen by Australian consumers. An example here would be for a financed, solarpanel offer, which matched the customer’s energy use and their financial standing, to customise the capacity and price to the specific customer — using banking and electricity consumer data. The multi-sector offers are expected to become commonplace within 5–10 years and demonstrate the difference between an “Open Banking” implementation and an implementation of an economy-wide Consumer Data Right. Since privacy is a principal concern for both consumers and businesses, organisations must also consider their approach to ensuring compliance with the privacy requirements of the CDR regime. This approach includes deciding whether attempts will be made to segregate CDR data from other data, such as personal information to which the Privacy Act continues to apply, or whether to follow the more burdensome but risk-averse option of managing both CDR data and personal information in accordance with the higher standards prescribed by the Privacy Safeguards. 9 VOLUME 29, ISSUE 4 – SUMMER 2019 |

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What should in-house lawyers do to prepare their organisations for the CDR? As designated CDR ‘data holders’, Australian based banks will become the first organisations to become legally required to share customer data under the CDR. In-house teams within the banking sector will (or should) already be actively assisting in preparing their organisations for the CDR. In the case of my organisation, a non-major bank, a significant project is underway to ensure that we will be able to comply with a series of CDR related deadlines, with the first significant milestone being February 2021. By this date, we will need to have the systems and processes in place to be able to share our customers’ transaction account data with accredited persons in compliance with the Open Two Banking decades rules of labour transformation and market standards (the major banks will have had to have complied with this obligation by July 2020).

opportunities that the CDR may present to your organisation that the business should be alert to. For those organisations who decide to voluntarily seek to participate in the CDR regime, their lawyers should expect to be involved in assisting with an involved accreditation process.

The ACCC has already begun the process of consulting with the energy sector on CDR, so legal teams advising for energy companies - as well as lawyers for companies seeking to disrupt or profit from the data held by energy companies - should already be alive to advising their organisations on the potential obligations and opportunities that CDR presents. As the CDR will subsequently apply to the telecommunications sector, in-house counsel for potentially impacted companies will no doubt also be keeping a close watch on developments in the CDR.

While the CDR rules will vary from sector to sector, if the Open Banking experience is anything to go by (although the Government has seemingly chosen the hardest industry to begin its CDR experiment with) they will be complex and difficult at times to interpret. One of the key tasks of inhouse counsel at the outset of your organisation’s CDR implementation project will be to work closely with the project team to assist them to translate the relevant CDR Rules into a workable Business Requirement Document, which they will use to build the necessary systems, interfaces and security solutions to support CDR.

However, it’s important for in-house lawyers in all businesses to keep an eye on developments in this space (you can sign up to the ACCC’s consumer data right newsletter on their website to receive updates and to learn of any planned public consultations, and how your organisation can make submissions). The Federal Government expects that the CDR will lead to increased competition and innovation across the economy as a whole, and as such intends to eventually roll out the CDR across all sectors. Aside from the potential compliance implications, there may be new commercial

If, and when, it comes time for your organisation to begin preparing for the CDR, it’s important to realise that compliance with the CDR requirements will involve a complex and expensive implementation project. You should expect that at least 90% of the cost and effort of such a project will involve building the required IT systems. To ensure success, your organisation should build a strong project team, preferably with regulatory experience.

With the IT build underway, the legal focus will shift to uplifting other areas such as: updating product documentation, terms and conditions and other collateral; developing CDR specific complaint resolution procedures and advising on training requirements. Another key focus for lawyers will be on updating privacy related policies and procedures in order to comply with the OAIC’s Privacy Safeguard Guidelines for the CDR, which at the time of writing, has been issued in draft form for consultation by OAIC.

George Nguyen, Senior Legal Counsel at Rabobank 12

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Impact on in-house legal departments The introduction of the CDR will have a significant impact on in-house legal teams, initially within the banking, energy and telecommunication sectors and potentially others, as the CDR applies economy wide. At a fundamental level, businesses need to consider whether the CDR will affect their existing processes around the collection and use of customer data. While there is uncertainty and the rules of play are still being defined, by participating and innovating in a customercentric data sector, in-house counsel are able to generate growth and opportunity for their business. However, the challenge will be how this change is accepted and the implications will be in looking at what data are currently held and the degree to which consent has been sought to hold that data.10 Where consent cannot be informed or where a power balance exists, the changes will have a massive impact on in-house counsel to mitigate these risks for their business. If in-house were to check the data being held and the utilisation of that data, it will come to light that a few companies will not have received explicit consent for the use of that data. There are two approaches that in-house counsel can take: firstly, a “comply” mentality, which addresses the issue of identifying shortfalls in data security and application and identifies weaknesses or shortfalls in current practice;11 alternatively, in-house counsel can take a “compete” mentality and ask, what opportunities can we take advantage of here? Legal departments play an important role in risk mitigation against internal and external threats that will potentially divert the organisation from achieving its strategic and operational objectives. In relation to the CDR, clear data strategies should be implemented to mitigate risk, or else corporations can be at risk of non-compliance. The penalties are serious, being up to $10 million for businesses or 10% of the annual turnover of the organisation. This far exceeds the current penalties under the Privacy Act, which have an upper limit of $2.1 million. Corporations may also be penalised for misleading conduct relating to the transfer of CDR data or breaches of new Privacy Safeguards. Complying with legal requirements and adopting clear strategies to mitigate risk are instrumental in protecting a company’s reputation. There are five steps that can position in-house counsel to take advantage of the CDR regime:

Understand the legislation, rules and data standards and consider the implications for their organisation of their application in their sector/s.

Consider the nature of consumer data being held by their business and the nature of consents that have been obtained from consumers for the storage and use of that data.

Anticipate the impacts of the CDR in their sector and consider “early adoption” of advanced consent arrangements relating to the consumer data being held.

Work with the business to consider “use cases” and potential offers that could develop when the CDR is designated in their sector, and identify other sources of consumer data (in other businesses and other sectors) to enrich this work.

Work with the business on preparations to operate as an accredited data recipient (customer segments, channels, systems and organisational implications) to apply a compete mentality. Consider also the accreditation criteria and the business’s current ability to satisfy the requirements.12

Each form of data raises new challenges and, with the CDR taking shape, it is vital, now more than ever, to not only maintain consumers’ trust about the stewardship of data but ensure that the reputations of businesses are protected.

Conclusion CDR is the foundation of a formal, consumer-driven exchange of data throughout the economy. This private, secure and consented regime facilitates increased sharing and ensures enhanced privacy and security of consumer data. The Government is working towards ensuring consumers are prevented from unfair price discrimination and problematic targeting by marketers and advertisers using CDR-obtained data. In the meantime, in-house legal departments must be ready to play a proactive role in pursuing the opportunities and mitigating the risks that are likely to arise from the CDR regime. Many of these opportunities and risks will be commercial in nature. a

Footnotes 1. Australian Government, Consumer Data Right Overview, September 2019 <https:// treasury.gov.au/sites/default/files/2019-09/190904_cdr_booklet.pdf> p. 9. 2. Ibid. 3. Andrew Stevens, Danny Gillian, Jamie Twiss and Stephanie Gray, The Consumer Data Right. 4. Ibid, p. 1. 5. ACAN, Consumer Data Right — What Is It and What Does It Mean for Consumers? September 2018. 6. Coors Chambers Westgarth, Australia Builds Its Open Data Economy: Consumer Data Right Passes Parliament, August 2019. 7. Ibid. 8. Ibid. 9. David Benson and Sam Fiddian, Privacy Obligations Under the Consumer Data Right Regime: What's Changing, and What You'll Need to Consider, March 2019. 10. Above n 2, The Consumer Data Right. 11. Ibid. 12. Belinda Harvey, It’s Time to Act! Consumer Data Right in the Banking Sector is Looming, June 2019.

Andrew Stevens Previously the managing Director of IBM Australia and New Zealand, Andrew currently serves as the Chairman of Innovation and Science Australia and the Chair of the Data Standards Body for the implementation of the Consumer Data Right in Australia. He is also a Director of Stockland Group Limited, Thorn Group Limited, the Greater Western Sydney GIANTS and CEDA. He is a member of the Advisory Executive of the UNSW School of Business, and the Male Champions of Change, a group of CEOs and Directors working to make gender equality a reality.

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LAWYERING AND LEADERSHIP Teamwork and lawyering don’t usually go hand in hand, but they really need to. Lawyers are trained to work as lone wolves. We all remember our university days when it was all about studying hard and getting the best marks, sprink led with a few extracurricular activities, so we could land clerkships and graduate roles with the top firms. This hasn’t changed a great deal over the years; it is still the experience of many law students and graduates today. Sure, not all law students aspire to follow the private practice path, but it cer tainly is the most common and talked about road in those penultimate law-school years. Then, as graduates in reputable firms, you are in some sense pitted against each other, chasing one billable hour after another. All to move up the rungs on that challenging and sometimes elusive par tnership ladder.

hen you turn your mind to it, we can see that this foray into the working world inclines lawyers to continue focussing on individualised goals and success, a strategy that inherently neglects important capabilities such as fostering collaboration, teamwork or other leadership skills required to establish, manage, motivate or work together as an effective team. Why are those attributes important? Because if you want to grow a career as an in-house practitioner, they are the hallmarks of successful in-house lawyers and teams.

Why does teamwork matter? The industries we all work in today are affected in some way or another by the fourth industrial revolution: digitalisation. In every direction we turn we have abstract concepts like innovation, gigeconomy, tech and agile thrust in our faces, often leaving lawyers perplexed as to how to engage with these drivers of change that their organisations are grappling with. Consumer expectations of business are higher than ever before, which means there are greater complexities and demands for organisations to address. This is no truer than for the financial services industry at the moment, following the conclusion of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry. Our environments are all subject to challenging VUCA1 times and more than ever lawyers need to be better at delivering value and ensuring they can contribute meaningfully to the strategic objectives of their businesses. You can’t do this alone. The business issues of today are not solved by any one person. They need teams of great people to all play their part in devising ideas, planning, and implementing solutions; and legal teams are key players in those steps. It is vital that individuals are team players not only within their legal teams, but also with the rest of their organisation.

What does Google think about what makes effective teams? So, how do lawyers get better at lawyering as part of a pack? A fundamental shift in mindset is necessary. Google did a great job in its recent research and analysis of its own internal high-performing teams to understand what elements drive their success. The outputs of that research are useful, especially for lawyers who are turning their minds to understanding what skills they need to be focusing on in order to grow professionally. Perhaps not surprising was Google’s finding that, ‘Who is on a team matters less than how the team members 14

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interact, structure their work, and view their contributions’.2 That is, the effectiveness of a team is not determined by a group of individuals who are all capable and hyper-intelligent, but rather the presence of five key attributes:3

1 2 3 4 5

Psychological safety

Dependability

Structure & Clarity

Meaning of Work

Impact of Work

Worth highlighting in particular is that the number-one factor Google found to be core to those high-performing teams was the presence of psychological safety in the team environment. Put simply, this is the notion that each member of a team feels safe to put forward thoughts and ideas without fear of judgement or ridicule. And perhaps a safety in being vulnerable amongst team members. We can see how legal structures and the culture of the profession, typically hierarchical and conservative in nature, would indeed create fear of judgement, failure, and being incorrect. I won’t summarise the findings here, but I do highly recommend readers have a look at the Google research. It is indeed a fascinating read, especially when you apply it to the context of the legal industry.

Being better team lawyers Having regard to those five criteria identified in the Google research, the following are four basic behaviours and practices, which I have road-tested, that will go a long way to ensuring we all work better as tribes and achieve the fundamentals of Google’s effective highperforming teams.

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Valuing and recognising every person’s contribution We conceptually know this and talk about it all the time, but I think we should challenge ourselves to think about this deeper and consider it through a wider diversity and inclusion lens. I recently came across some research by Beyond Story focussed on the different behavioural work inclinations of individuals who identified as Australians versus Asian-Australians. When the researchers presented their findings, one of the outcomes that stood out was that certain clusters of tasks, skills and work preferences were favoured more by one group than another, which in turn manifests in the different roles individuals are more likely to fall into, not necessarily consciously or by design. For example, Asian-Australians are typically less inclined to voice their views in group environments, suggesting a cultural influence on behavioural inclinations such as absorbing and digesting information before forming an opinion and subsequently asserting that view. The recommendation from the research was for organisational leaders to recognise this and not penalise, whether consciously or unconsciously, that behaviour in assessing the contributions and value of those individuals. Or put differently: avoid looking for the extroverted behaviour that we might culturally be inclined to see as representative of an individual valuably contributing and instead identify and apply the different forms in which value and contribution can be measured. Now whilst this is a specific finding, it can practically apply in a much broader fashion to challenge unconscious biases we have in what we conceive to be valued attributes of a team member. As lawyers we have all had the technical training that shapes the way we might view or approach something, and with that comes a set of biases, similar to cultural upbringing, which does the same. It’s important to challenge those biases. Be conscious of giving people in your team the opportunity to speak, invite the views of those less inclined to be vocal, change the structure in which meetings are held to make different people comfortable, and break any patterns. These are all simple things we should be mindful of practising to foster healthy, collaborative and psychologically safe environments where everyone can be recognised for the value they personally bring, as opposed to recognising only attributes that come from biased perspectives. Adopting a growth mindset There has been a lot of research about growth mindsets in the context of leadership and managing people, most famously by Dr Carol Dweck. ‘Fixed’ and ‘growth’ mindsets describe the underlying beliefs people have about learning and intelligence. What is of particular relevance is how we adopt growth mindsets when interacting with our team members whether with managers, direct-reports or peers. Challenge yourself to rethink and question your view of members of your team and your conception of what they’re good or not good at. This again challenges the mould we might place ourselves or our colleagues in, moulds that can get in the way of effective teamwork if incorrect or, alternatively, make everyone complacent rather than continuously trying to improve and learn. Being clear as a team on what short-term and long-term objectives you’re targeting This is about ensuring a team strategy has clarity. Beyond the individual day-to-day tasks each person works on, it’s important for everyone to be on board with how those day-to-day tasks are contributing to a broader team objective. It goes without saying

that this level of collective team buy-in will drive a unified goal that gives individuals a sense of purpose in what they’re working on and a belief that the work they do is valued and matters. This is because it moves the focus away from a task-based achievement or objective to a broad-based strategic goal. If you work in a team where it seems unclear what the collective objectives of your work are, challenge the team or have a conversation with your manager about finding that common strategic objective. Establishing set rules of play I was in a board meeting once where a training session was spent discussing the expectations of directors and accepted practices. One board member immediately mentioned the training handbook everyone received when inducted onto the board, which as you might imagine detailed all the somewhat standard codes of conduct and duties a director has. What was missing and is rarely written down in those usual types of training material is an articulation of the culturally accepted practices of an organisation — things that aren’t written down (and probably shouldn’t/can’t be!) but make up the fabric of a team, boardroom or organisation. Yet these are the rules of play that can either foster or erode the health of team culture, so due attention to them must be paid. A very simple example is punctuality. We all have certain people in our businesses or teams that we know are notoriously always late to meetings. Left unspoken, that becomes an accepted behaviour and practice either for the team or (possibly worse) for that one person — which may be fine as long as you are okay with that acceptance establishing lateness as a cultural norm. Another good example is the ‘no triangles’ rule — a term coined by Rachael Robertson in the context of her leadership of her team to Antarctica. It describes her no-tolerance approach to ‘triangle’ conversations; i.e. talking about someone to another if there is an issue rather than talking to the person directly to resolve it. This behaviour builds distrust and so applying a no-triangles behavioural standard in teams helps to create a team environment of transparency and openness. It’s a lot to think about on top of the demands of business as usual; but team building and turning our minds to how we keep working on these soft skills is crucial to keeping up with the pace of change and being the best lawyers we can be. Again, you can’t do it alone. a Footnotes 1. Volatility, uncertainty, complexity, ambiguity 2. Julia Rozovsky, Analyst, Google People Operations 3. https://rework.withgoogle.com/blog/five-keys-to-a-successful-google-team/

Jorden Lam

In addition to her role as General Counsel & General Manager Commercial Affairs at Hesta Super Fund, Jorden regularly writes and speaks about professional development and the importance of lawyers embracing innovation and re-defining their value proposition. She has served as a non-executive director of various health service providers and has received numerous accolades for her achievements and thought leadership.

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THE RISE AND RISE OF IMMIGRATION COMPLIANCE Corporate compliance is often front of mind for in-house counsel. But immigration compliance is an area that still does not receive due recognition in many organisations. This is despite the fact that the legal consequences of non-compliance are serious for organisations and reputational impacts can be just as damaging.

orporate compliance and risk mitigation are front of mind for in-house counsel. Ensuring that the organisation can meet operational goals, while ticking regulatory checkboxes, without the negative consequences of government sanctions or reputational harm, is central to fulfilling the function. Compliance with occupational health and safety, terrorism and money laundering, workplace harassment, and discrimination regimes all feature heavily among the areas of concern for diligent counsel. But immigration compliance remains something of a sleeper for many Australian businesses. Do we know about it? Somewhat. Have we got a policy? Maybe. What are we doing about it? Not sure.

Two decades of labour market transformation One of the reasons immigration compliance has been a second-tier, or even a third-tier concern, for many organisations is historic. Until the last 20 or so years, Australia was largely a settler society, with the vast majority of people arriving as permanent residents. Issues relating to the employment of temporary migrants were not therefore particularly pressing. However, Australian society, and the local workforce, has dramatically transformed in this time. It is estimated that more than one million noncitizens are residing in Australia at any one time on some form of temporary visa. In the workforce, it is estimated that more than 1 in 20 is a temporary migrant. The phenomenon of temporary migration has reshaped the demographics of Australian society and created a profound shift in the way businesses need to address the visa status of employees. The amalgamation of the Australian Department of Citizenship into the Australian Border Force in July 2015 (both now exist under the ‘Home Affairs’ super portfolio) signalled a change in government approach to migration. Gone was the focus on migrants’ role in ‘nation building’; immigration policy has become increasingly punitive, focussing on identifying security risks, enforcement, Visa cancellation, and deportation. This change in focus has been demonstrated by a number of policy shifts, such as the rapid increase in character cancellations and deportations but also the Turnbull government’s abolition of the longstanding Subclass 457 Work Visa in favour of a trimmed-down and less generous Temporary Skill Shortage Subclass 482 Visa program.

The immigration compliance regime The current regulatory regime consists of three major areas of responsibility — ensuring employees have a valid visa, preventing organisations or individuals from improperly benefitting from the sponsorship system, and the Sponsorship Obligations that accompany the employer-sponsored visa programs, such as the TSS 482 Visa. All Australian employers must take steps to ensure that new hires hold a valid visa that permits them to work and that the employment offered is consistent with these work rights. This extends to contractors and other non-permanent staff, such as those engaged through labour hire. A second limb of this requirement is that organisations must ensure that all existing employees who hold temporary visas retain the right to work, through ongoing visa checks across the employee lifecycle. 16

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A lesser-known element of this requirement is the obligation to ensure all existing employees are citizens, permanent residents, or have a valid temporary visa with suitable work rights. This requirement can be confronting for organisations that find it disturbing to request evidence of status from longstanding employees; however, the regulations are clear and liability rests with the employer to verify employees’ status. The second set of regulatory prohibitions, referred to as the ‘Charging for a Migration Outcome’ provisions, requires organisations to ensure that there is no quid pro quo for visa sponsorship. The organisation, and its employees, must not ask for or receive any benefit in exchange for any employment outcome related to a visa. These provisions criminalise abuse of the visa sponsorship system whereby parties might improperly benefit from offering or obtaining a visa. This is a strict liability offence and requires the organisation and its executive officers to take ‘reasonable steps’ to ensure that the organisation and its employees do not breach these laws. Penalties are both civil and criminal, and executive officers can be prosecuted where they have failed to take all reasonable steps to prevent the breaches. Finally, organisations that access skilled labour through a sponsorship agreement with the Department of Home Affairs, such as the Business Sponsorship program for the TSS 482 Visa, have a suite of obligations relating to their role as sponsors. These include record keeping, notifications of certain events, ensuring sponsored staff receive market salary rates for the duration of their visa, and paying return travel costs to visa holders who wish to return home. Breaches of the Sponsorship Obligations can result in cancellation of the sponsorship, which prevents further use of the sponsored visas, as well as bars future use of the visa program. For many multinational organisations the loss of access to global mobility and intracompany transfers could be devastating.

Risks of reputational damage Beyond the immediate impact of civil and criminal penalties, the reputational harm of non-compliance with immigration laws can be profound. The Regulations now provide for publication on the department’s website of the names of sponsors who have been found in breach of their obligations. Serious breaches can easily become public and cause major harm to an organisation’s brand. Over the last decade there have been numerous examples of major organisations that have received unfavourable media and political attention for their failure to adhere to immigration obligations. The 2015 7-Eleven scandal demonstrated that immigration was not just sensitive but a potential powder keg. Dozens, if not hundreds, of articles were penned on the topic, and the story featured heavily in high-profile national current affairs programs. While the cost of the regulatory response is unknown, it is estimated that the business paid out $150 million in wages alone. And though the legal and financial fallout was clearly costly, the long-term brand damage to the business was very possibly greater.

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Knowing is half the battle The fact that there is a clear obligation on the business to ensure all staff have the right to work and understand the prohibition on benefitting from a sponsorship event is sufficient for in-house counsel to develop a business case to obtain buy-in from business stakeholders. An initial risk assessment, combined with frank advice to the executive on the civil and criminal risks to the organisation and themselves, is likely to generate support for rapid remedial action where required. When used appropriately, immigration can greatly support an organisation’s strategic goals — it is important not to lose sight of the benefits that the visa system can bring through access to high-level or proprietary knowledge and skills unavailable in the local market. It may be necessary to conduct a review of current usage and potential future usage to understand the appropriate triggers for when visas should be used to meet strategic goals. Once the in-house team has approval, there is need to map the regulatory requirements, assign responsibility, develop a policy, and provide oversight on compliance with a due diligence framework. A well-developed, flexible immigration policy can deliver significant benefits for organisations. The policy can support operational goals as well as mitigate organisational risk through appropriate compliance systems. Policies should be responsive and subject to review, preferably as immigration programs and internal requirements change. Policies should be supported by internal, and potentially external, audits of both visa-holder populations as well as the policy itself. In most local organisations, responsibility for immigration sits with Human Resources, with the legal team potentially providing oversight and support. It is important that in-house counsel remain across the policy and that there be ongoing communication between responsible teams, in particular if the organisation accesses immigration services directly rather than through external services. It is also important to remember that immigration obligations are likely to be cross functional and may involve amending procurement, supply-chain and labour-hire agreements to ensure the business and suppliers are compliant. If the business is a volume immigration user, establishing a separate team may be appropriate, but appointing internal subject matter experts and investing in regular staff training will be critical. Given that processes, policy and timeframes change so frequently, responsible staff should assist by engaging with policy updates and trends, potentially by reading content prepared by immigration providers. Ensuring that the responsible internal teams are sufficiently resourced and have a direct line of communications to escalate complex matters, internally or externally, is crucial. Obtaining high-quality external advice and assistance can be of great benefit. One of the biggest challenges of Australian immigration law is the constant change to law and policy. Engaging professional immigration lawyers and registered migration agents can save the organisation from reinventing the wheel and bring a depth of practical and policy experience not available internally.

Quality immigration providers will assist in managing visa case work on behalf of the organisation as well as provide training and compliance support, act as a guide to identifying risk, and support the business to optimise strategies for securing business-critical resources.

Conclusion Immigration legal obligations pose a real risk for many Australian organisations. Despite this, many organisations are not across all aspects of the law and have under-developed policies to deal with compliance. Given the seriousness of the legal, financial, and reputational consequences of non-compliance, it is no longer acceptable for organisations to delay addressing these legal obligations. The shift to naming and shaming organisations that fail to meet their obligations and the existence of personal penalties for the executive and board members demonstrate how serious these issues are being treated by government. All Australian organisations need to take proactive steps to ensure compliance. Awareness of the obligations is the first step. Given the presence of more than one million temporary residents in Australia, it is increasingly unlikely that organisations can limit exposure to visa holders completely. Risk can, however, be mitigated through a systematic and structured approach involving effective policies and processes, allocation of responsibilities, training, and oversight. While an organisation’s interaction with the immigration system poses risk, it is also a powerful potential benefit. For multinational organisations, the need to participate in the global business with offices around the world is non-negotiable. For local businesses, it is increasingly obvious that almost all organisations are competing globally. For the businesses that aren’t, they are still trying to access global skills to get the edge on local competition. Access to visas is increasingly important for Australian organisations but compliance with the legal system requires organisational commitment and resources. The risks incurred by failing to meet these obligations include regulatory action and the potential for serious reputational harm. Businesses would be well served by taking a proactive approach to this increasingly significant field of regulation. a Jackson Taylor Having practised exclusively in immigration for more than twelve years, Jackson Taylor delivers a range of advice to employers on Australian migration for business, including strategy, government advocacy, compliance, and visa assistance. He is particularly interested in the confluence of immigration and employment law, how visa status affects temporary migrant precariousness, and reform of business migration.

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LEGAL DEPARTMENTS: THE BOTTOM-LINE AMPLIFIER In a Susskindian more for less world, general counsels are under pressure to transform legal departments. The line of sight from legal department to company contributions are however, still obscure, making it a challenge for chief legal officers to tap into the budgets required to invest in LegalTech and LegalOps. If contracts are an organisation’s lifeblood, then measuring contracts is a way to build a picture of the health of an organisation’s circulatory system. Through contracts, the legal function’s contribution to the bottom line is clearer and makes it easier to build the business case for a technology enabled and workflow optimised legal department.

he same digital and efficiency trends that transformed the corporate world have, finally, settled their sights on legal departments as well. In-house lawyers are evolving from simple legal service conduits into strategic procurement experts whose decisions, as they battle to preserve their employer’s bottom lines, are increasingly data-driven (table 1).

Table 1: The eras that have shaped the legal industry Years

Period

Market drivers

Sellers of legal ser vices

1890s–1930s

Golden age of corporate counsel

• Industrialisation • Infrastructure projects • Economic integration

Sole general counsel

• Majority sole practitioners • Few large partnerships

1940s–1980s

Golden age of private practice

• Rise of diversified conglomerates

Sole general counsel

• National law firms • Some regionalising law firms

1980s

Rise of law as business strategy

• Leveraged takeovers • Takeover battles on Wall Street

General counsel with a small team of senior lawyers

• Regional law firms • Some expansion into other regions

1990s

Renaissance of corporate counsel

• Globalisation

General counsel with a small team of senior lawyers

• Foundation of global law firms • Entry of Big Five accounting firms

2000s

Growth of the legal departments

• Rise of multinational conglomerates • Legal process outsourcing • Deregulation

General counsel with a big team of senior lawyers

• Consolidation of global law firms • Foundation of legal process outsourcing companies

2010s

Emergence of NewLaw in a buyer’s market

• Global Financial Crisis • Digital Age

General counsel with a big team of junior lawyers, senior lawyers and paralegals

• Global law firms • Regional law firms • National law firms • Boutique law firms • Re-entry of Big Four accounting firms • NewLaw firms • LegalTech firms

To understand the structural changes in the practice of legal counsels, we need to rewind the clock back to the late 19th and early 20th centuries (1890s to 1930s), to a period known as the 'Golden Age of Corporate Counsel'.1 This was an era when corporate counsels were both business and legal advisers; powerful positions held in high repute that in post–Civil War America were filled by ex-judges. This prominent position began to erode somewhat from the 1940s with the golden age of private practice, as the corporate sphere came to be dominated 18

Buyers of legal ser vices

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by a new breed of MBA-holding marketers and financiers. During this period, we also saw the emergence of local inter-generational private practice firms that had successfully nationalised into national partnerships. It was in this golden age that law firms like Baker McKenzie began their globalisation efforts. Legal advice as a strategic tool reclaimed the limelight during the Wall Street takeover battles of the 1980s as ‘Mr Takeover’, Joe Flom of Skadden Arps Meagher & Flom, and ‘Mr Defense’, Martin Lipton of Wachtell Lipton Rosen & Katz, helped publicly listed companies navigate the leverage buyout boom of that decade.

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Globalisation and growth during the 1990s increased corporate participation in the global economy through cross-border mergers and acquisitions. This, in turn, made the legal department an increasingly complex function, as newly international organisations now had to ensure compliance with local regulations. The increase in compliance-related legal spend saw companies bringing legal expertise in-house as a means of controlling costs. The 2000s ushered in an era of multinational conglomerates that required still further growth of corporate legal departments. This kick-started the migration of lawyers from law firms to legal departments, with corporate counsels put in place to either control or replace outside legal spend. During this period we also saw the arrival of outsourcing, first as business process outsourcing but then to touch

all corporate functions. Soon thereafter, the first legal process outsourcing services and lawyer secondment firms started to emerge. By 2010 the legal industry had shifted to the market we know today: the buyer’s market. Procurement is now the practice du jour and its fixation on cost reduction has extended to legal departments. General counsels must apply the same buying principles adopted by the rest of their organisation. This means disaggregating legal services — both across and within matters — and rightsourcing each component to the most appropriate provider (cost is not the prime metric for all legal service components). We have also seen hit the market for the first time corporate legal-department-focused (LegalOps) and LegalTech firms, such as Brightflag, Lawcadia, LawVu, Plexus Legal, Xakia, and Yarris, to name a few.

The business case for legal departments In an increasingly complex and highly regulated corporate environment, chief legal officers are now more alive to the risks of data breaches, regulatory changes and information privacy (see table 2) than ever before. These risks are making general counsel input into business decisions a crucial contribution as the corporate sphere navigates a shifting and competitive macro-environment.

Table 2: The top three issues keeping Chief Legal Officers up at night2 Rank

2013

2014

2015

2016

2017

2018

2019

Ethics & compliance

Regulatory or governmental changes

Data breaches or protection of corporate data

Regulatory or governmental changes

Merger & acquisitions

Regulatory or governmental changes

Data breaches or protection of corporate data

Regulatory or governmental changes

Information privacy

Data breaches or protection of corporate data

Information privacy

The line of sight from legal department to company bottom line is, however, still obscured. This makes it difficult for chief legal officers to build the business case to invest in LegalTech and LegalOps, even though internal clients now expect better, faster and cheaper service and support. ACC Australia’s 2017 Benchmarks and Leading Practices Report3 revealed that legal departments were under-investing in technology and workflow because general counsels struggled to tap into internal budgets to fund those investments.

The role of legal departments:

To help organisations navigate the regulatory environment in a way that facilitates business outcomes.

So, how do we build that business case for corporate counsels? One place to start is by reviewing your organisation’s revenue and cost drivers. To do this, you will need to think broadly about the role of the legal department in your organisation. Our view is that the legal function’s role is to help organisations navigate the regulatory environment to facilitate business outcomes, and that this should as readily apply to increasing revenue as it does to minimising costs.

By broadening our view to include more than just cost containment, we begin to uncover that a legal department actually facilitates commercial outcomes for an organisation. In order to improve a legal department’s impact on an organisation’s bottom line, however, we need to first understand it, and the profit equation of an organisation is our starting point. An organisation’s profit is determined by its inflow of money (read: revenue) minus outflow of money (read: cost). Those inflows and outflows of money are executed in contracts. In essence, the lifeblood of a commercial organisation is in its contracts. If contracts are an organisation’s lifeblood, then measuring and reviewing these contracts builds a picture of the health of the organisation’s circulatory system. We have identified the following variables for legal departments to measure: •• proportion of contracts that contribute to revenue-generating activities •• proportion of contracts that contribute to the cost of running the business •• the internal and external stakeholders involved in creating those contracts •• the monetary value of those contracts. Footnotes 1.

Liggio Sr, C. D., 2002, A look at the role of corporate counsel: back to the future – or is it the past? Arizona Law Review, Fall/Winter, pp. 621–624. 2. Association of Corporate Counsel, 2013 2014 2015 2016 2017 2018 2019 ACC Chief Legal Officers Survey, Association of Corporate Counsel. 3. Association of Corporate Counsel Australia, 2017, Benchmarks and Leading Practices Report, Association of Corporate Counsel Australia [ONLINE] Available at: https://acla.acc.com/ resources/benchmarks-and-leading-practices-report [Accessed 20 October 2019]. VOLUME 29, ISSUE 4 – SUMMER 2019 |

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Figure 1: Building the business case for legal departments through contracts

High Risk Contracts relating to revenue

CONTRACT

Contracts relating to cost

CONTRACT

1 CONTRACT

CONTRACT

4 2

CONTRACT

5 Low Value

High Value CONTRACT

CONTRACT

3 Low Risk

Once we have traced and analysed an organisation’s contracts for the financial year, we can map them against the framework in figure 1. This creates a baseline understanding of the value that a legal department contributes to the overall business for both revenue-generating and cost-incurring activities. 20

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Measuring the value of legal departments This is a good start, but only a start. To maximise the strategic benefit that a legal department can deliver to a business, we next need to understand how the contributions of a legal department impact on revenue-generating and cost-incurring activities. We can start to unpack the following information to identify legal department contributions and opportunities for improvement: •• Terms within each contract that are negotiated •• Internal client input •• Terms within each contract that can be standardised •• Ratings on risk •• Iterations required to get contracts from creation to execution •• Ratings on strategic value to the organisation •• Time required to get contracts from creation to execution •• Duration of each contract •• Different workflows and processes for each revenue-generating •• Monetary value of each contract contract

Table 3: Framework for contract analytics to measure the value of legal departments Contracts relating to revenue Contracts

Contracts relating to cost 5

Terms that are negotiated Terms that can be standardised Number of iterations required to get to execution Time required to get to execution Internal clients involved Measure of success Ratings on risk Ratings on strategic value to the company Duration of the contract Monetar y value of the contract This analysis will help measure how legal departments contribute to the company’s bottom line and will also identify opportunities for no-tech, low-tech and high-tech solutions that the legal team can implement. Armed with this information, we can start to modify the way that a legal department provides legal services, and measure the impact of those changes.

Eric Chin As a strategy consultant, Eric works with law firms, listed law firms, LegalTech firms, NewLaw firms, and corporate legal departments on strategy, M&A, market analysis, innovation and Asia. His experience spans across the Asia-Pacific region with work completed for law firms and Big Four accounting firms. Eric’s work in the region has culminated in his induction as one of 30 people to watch in the business of law in Asia in 2015 by Asia Law Portal.

Measuring how the legal function defines success for each category of contract lets us refine the level of service provided. In some cases, a self-service tool for contracts in the low-value and low-risk quadrant will be sufficient. In other cases, a highly bespoke service from the legal department will be required for contracts that are high risk and high value.

Line of sight achieved Once we know how the legal department’s work impacts on the business units it serves, we can measure the impact that improved legal service delivery has on the business. For example, simplifying a contract is a worthy objective in its own right, but what is the impact of that work? It’s not something that gets pondered very often, or at least, not measured. What if your work to redesign the company’s standard sales contract brings time-to-close of your company’s main product down by 15%? What if it brings it down by 50%? Does the reduced cycle time impact on sales for the year? Almost certainly. Because you have measured a baseline, you are positioned to identify and claim the quicker sales cycle that is creating an increase in sales as your win! For revenue-generating activities, the goal is to reduce the iterations and time required from contract creation to execution. For cost-incurring activities, on the other hand, your goal is to reduce the risk and cost to the organisation. Return on investment for legal departments is measurable. When contemplating investments in people, process and technology, our framework will help you build a data-driven business case. a

Graeme Grovum A legal technologist with 15 years’ experience in legal and financial services industries, Graeme has worked with one of Australia’s top tier firms as Head of Innovation where he led the firm through a range of innovation and technology initiatives. Graeme’s work has been recognised in the 2017 Legal Innovation Index placing as a finalist, as well as by the Financial Times’ Asia-Pacific Innovative Lawyer Awards 2016, placing as ‘Highly Commended’ in the technology category. VOLUME 29, ISSUE 4 – SUMMER 2019 |

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MORE THAN AN IN-HOUSE LAWYER: BUILDING AN EXECUTIVE PRESENCE Lawyers who are committed to developing an executive presence will not only instil confidence in their clients, but will also be wellpositioned to achieve career success. For in-house counsel, executive presence is best described as creating a consistent long-lasting impression over time by the manner in which a lawyer expresses him or herself and engages others. While there is no broad consensus about the definition of executive presence, there are five characteristics common to lawyers who possess it.

hile some struggle to define executive presence, for the purpose of this article, an in-house lawyer with executive presence is one who demonstrates exceptional interpersonal communication skills, polished boardroom presence, and is persuasive and influential. In today’s ‘doing even more with less’ environment, lawyers must possess the right combination of hard work, expertise and focus. While these traits are commonly understood and need no explanation, they are not enough to succeed. Successful lawyers have an executive presence that, while challenging to describe, distinguishes competent lawyers from impactful business partners. It is an indefinable quality that enables a lawyer to stand out in the company and to effectively engage internal clients and stakeholders. Lawyers who are committed to developing an executive presence will not only instill confidence in their clients, but will also be wellpositioned to achieve career success. For in-house counsel, executive presence is best described as creating a consistent long-lasting impression over time by the manner in which a lawyer expresses his or herself and engages others. Although there is no single method to develop executive presence, there are a range of skills that a lawyer can master. A lawyer with executive presence exhibits five distinct but equally important traits. A framework for developing executive presence includes understanding, identifying and developing poise, confidence, influence, authenticity and connection.

Cultivating executive presence Exhibit poise The ability to handle an unexpected situation by reacting quickly and decisively describes a lawyer with poise. A lawyer exhibits poise by remaining calm, rational and in control in stressful situations. Simply stated, exhibiting poise means being able to control emotions when upsetting situations arise in the work place. Consistently maintaining composure is critical to an in-house lawyer’s career success. Poise enables a lawyer to disregard distracting emotions that diminish their ability to focus on creating solutions. It goes without saying that maintaining composure in a crisis is critical. It can be challenging to exhibit composure in high-stakes, high-pressure situations. A lawyer who controls unproductive emotions by taking a deep breath and committing to address these emotions later will be able to focus more effectively on productive thoughts. However, rather than controlling the emotions generated by stress, some lawyers embrace them to create an all-hands-on-deck mentality that fuels productive thought and inspires innovation. As lawyers are increasingly expected to be strategic thought-partners, rather than simply legal advisors, 22

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their ability to develop workable solutions will position them well as business people who have legal training, rather than lawyers who practice in a business setting. Poise is a behaviour that can be learned. To make poise a habit takes time and repeated exposure to challenging situations. Similar to building a muscle, the more a lawyer practices composure in difficult situations, the more likely it will become a reflexive action that grows stronger with use.

Project self-confidence

Self-confidence is an attitude or belief in one’s competencies. It is the ability to take control of a challenging, unpredictable situation, make tough decisions in a timely manner, and advocate a position to strong-willed and stressed members of the senior leadership team. How often are a successful lawyer’s innate intelligence, acquired skills and experiences magnified by his or her self-assured manner? Contrast this with a less confident lawyer who is unable to leverage their higher level of intelligence, greater skill set and richer experience. The interplay of abilities and confidence might look like this: The lawyer with strong abilities and high confidence will exhibit executive presence and is most likely to progress to the next level in their career path. It has been said that if a person does not believe in them self, others have no reason to do so. As an in-house counsel attempting to persuade and advise, the substantive message may be lost on clients and colleagues who may doubt the validity of the recommendations. The strength of one’s convictions will be an important catalyst to success in these interactions. For many lawyers, self-confidence is built on a foundation of preparation, comfort with a certain amount of ambiguity, and a history of successful business and legal outcomes. For others, self-confidence comes more naturally and engenders more of the same. As with athletes who envision success on the field, lawyers can learn to exude confidence even if they do not yet possess it.

Earn influence

The lawyer who is able to convince others of the wisdom of their strategies and tactics is seen as an influential leader. As a lawyer rises in the organisation, the ability to influence the actions of the people in their increasingly broad sphere of influence through inspiration, rather than direct positional authority, becomes more critical. Whereas a direct supervisor can request an action by a subordinate, an executive several levels above typically must rely on indirect influence or persuasion, which is more difficult to attain. Organisations reward leadership that impacts action. A successful lawyer partners with the client to achieve business goals by articulating alternate courses of action and the associated risks and benefits, identifying

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the recommended alternative, and building the rationale for that recommendation. Influence is a skill that can be developed with experience and with honest self-reflection. The lawyer can identify their influencer style. Does one collaborate to achieve buy-in? Do they base their influence on well- presented facts? Do they appeal to emotion? Do they inspire? While the office might be a convenient venue in which to develop influencer skills, consider volunteer work as another setting to create these skills. Volunteers typically cannot be required to act in specified ways, and so the ability to persuade can be an effective tool to achieve desired action. Committee, board and operational work for a not-for-profit organisation are proven ways to hone skills that can be used in other parts of a lawyer’s professional and personal life. Leading a committee of individuals from varied backgrounds and with a range of personal agendas can be an excellent way to not only develop these skills, but also to observe others in action.

Practise authenticity

A key factor for a lawyer interested in advancing their career and demonstrating executive presence is to be authentic in their interactions with others. A lawyer who practises authenticity exhibits a genuine self with the senior leadership team, the board, colleagues and others. Acting true to their values, personality and spirit results in a consistency that attempting to please others simply cannot. A lawyer whose words and actions are in sync develops a reputation for stability valued by clients. Authenticity is important, because clients and colleagues know when words and actions don’t align with values. A lawyer’s reputation is critical to his or her ability to develop the professional relationships and respect that enable them to shape the future by addressing the challenges that occur in the workplace in a direct and deliberate manner. Developing authenticity is a lifelong process that begins with a lawyer identifying any gaps between core values and actions taken in the workplace. Practice narrowing the gap by consistently aligning words and actions with values, and by determining a unique value proposition and how it benefits the client. Actively seek and respond to honest feedback from others, either informally by creating a peer team, or by retaining a coach who can identify the ‘brutal truths about any misalignment between core values, words and actions. A lawyer can practice integration by analysing whether they present themselves consistently across different situations and environments. Lawyers are not only held to a high standard of integrity and honesty, but are often also stereotyped as people lacking these traits. Clients who view their lawyers as inauthentic might disregard their advice as invalid, regardless of how soundly researched, logically developed and well communicated. Authenticity enables a lawyer to interact with clients and colleagues in a predictable manner that they value. It is the building block of the fifth trait: cultivating connections.

Cultivate connections

The days of a lawyer keeping their head down and working hard to attain the next level are over. While the appropriate skill set is a baseline for any lawyer working in an organisation’s legal department, it is no longer sufficient to come to the office and do a competent job. The successful lawyer must cultivate connections with other departments and the senior leadership team. These bonds build trust and inform constituents of the value one brings to the organisation. Time spent on developing these connections and marketing one’s “brand” is an investment in one’s career. Cultivation creates opportunities to interact with senior management and to take a leading role in the company. The days of going it alone, if they ever truly existed, are gone. Today, in-house counsel maintain visibility with the senior leadership team by creating opportunities for interaction. The lawyer who maintains strong working relationships with colleagues on the audit committee, senior management, contractors, outside counsels, insurers and the human resources committee, among others, will be ideally situated to contribute to the creation and implementation of the risk management plan. Offering to be on a cross-functional team is a proven way to expand professional connections and to demonstrate a skill set to others in the organisation. Volunteering for a high-profile assignment, such as making a presentation to the board or senior leadership team, will cultivate important connections. The successful lawyer has the right combination of attributes that will create a professional brand, a unique identifier for which the lawyer is known. Poise, confidence, influence, authenticity and cultivating connections are five attributes that can position both the organisation and the lawyer for success. a

Theo Kapodistrias Currently a lawyer at the University of Tasmania, Theo has been recognised extensively for his legal skills across a range of award programs. He has also been recognised for his community work being selected as a Finalist at the Tasmanian Young Achievers Award in 2019. As well as being the Tasmanian Divisional President and a Director of ACC Australia, he is an Ambassador for World Idea Day and a Tasmanian Ambassador and Industry Champion with Business Events Tasmania. VOLUME 29, ISSUE 4 – SUMMER 2019 |

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WHAT DESIGN THINKING LOOKS LIKE IN-HOUSE Earlier this year, the Hatch Australia-Asia legal team, together with their colaborator, LOD (formerly Lexvoco) were recognised as a a 2019 ACC Value Champion for their legal innovation project described by the judges as "... a visually pleasing self-service solution [which] is replicable [by]... law departments of any size." In this article, Kim Cavallaro, Hatch Regional Counsel and Company Secretary, shares some further insights into what design thinking looks like in practice.

n building a global legal knowledge-sharing platform, the Hatch legal team embraced design thinking to map corporate and legal resources to the same engagement lifecycle already used by Hatch’s 9000 employees to implement projects. For additional background about the project, read Using Design Thinking to Innovate Legal Practice.1 The success of the project, measured by over 46,000 site visits from nearly 2,500 unique viewers since launch, has solidified the confidence in the application of design thinking in their legal practice.

Design Thinking Recap “Design thinking is a methodology for creative problem solving.” 2 IDEO, the renowned Silicon Valley design firm widely accepted as bringing design thinking to the mainstream, further defines it as “… a humancentred approach to innovation that draws from the designer’s toolkit to integrate the needs of people, the possibilities of technology, and the requirements for business success.” 3 A quick Google search reveals that the design thinking toolkit is extensive. At Hatch, we take the approach to “… try to absorb what is useful, discard what is useless, and add what is essentially your own.” 4 IDEO teaches a six-step design thinking framework,5 which at Hatch, we apply to discrete projects like our legal knowledge-sharing platform. It is an iterative process allowing improvements to be made continuously. Each step is also instructive on its own and I set out some tangible examples of how they guide us.

Frame a Question Hatch is a global engineering consulting firm working predominantly in the metals, energy and infrastructure sectors. When working on projects, it is not unusual for Hatch to co-create the scope and schedule with our clients. This is aligned with Hatch’s corporate manifesto to create positive change by partnering with clients to develop better ideas. However, this collaborative relationship does not often flow through when we are negotiating the contract. Often, our respective lawyers and commercial managers negotiate in isolation and we end up in a 'take-it or leave-it' situation, divorced from the requirements of the project and the scope. Rather than facilitate project success, the contract becomes a document to be put away in a drawer and forgotten about until something goes wrong. To avoid this scenario, the Hatch legal team resists negotiating in a vacuum where possible. We encourage our project teams to engage in the negotiations—with their counterparts—so that we may jointly consider the question, “How might we (HMW) better align the interests of both Owner and Consultant to achieve project success?” Framing contract formation in this context elevates the negotiations above adversarial position-holding and allows for opportunities to align the interests of all project participants. Indeed, the misalignment of participants’ interests has been identified as the key cause of project 24

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underperformance.6 A recent McKinsey study has reported that unlocking the value in sub-optimal terms and conditions could equate to $2.5 trillion in value for Fortune Global 500 companies.7

Gather Inspiration The core aim of design thinking is to meet people’s needs. A way to identify needs is to look for patterns of behaviour and to observe without judgement. This is a design thinking exercise to foster empathy; and it takes practice. For example, our legal team regularly receives emails with a request to review an attached agreement with little or no context. It is all too easy to lament being an overpaid reading service and to judge the conscientiousness (or otherwise) of our colleagues. However, design thinking reminds us to be empathetic and to consider that internal colleagues may be stretched, under fee-earning pressures or just uncomfortable with contracts and fearful of doing the wrong thing. Viewed from this perspective, we believe we are on the right track to meet our colleagues’ needs by making contracts less confronting and more understandable. We are prioritising the simplification of legal templates and dedicating time and resources to internal training. Another pattern to look for is the taking of short-cuts or workarounds. If colleagues regularly take shortcuts to bypass approval processes or delegations, it is telling us that the process is mismatched to business needs. If we respond by being a road-block or turning a blind eye, we are entrenching the status quo and neither is satisfactory. Instead, design thinking encourages us to call out the mismatch and, where possible, pave the short-cut (not obstruct it).

Generate Ideas Design thinking inherently embraces diversity. The likelihood of coming up with innovative user-centred solutions is greatly enhanced when a diverse group (be it by gender, discipline, skills or experience) considers the problem. In our team, we recognise the value of non-legal skills and respect our colleagues with expertise in other disciplines, such as in communications and corporate services. We encourage the building of relationships with our internal colleagues (in business, project delivery, IT, HR and other shared services) so that we are knowledgeable about developments and can take advantage of opportunities to embed 'legal' into the 'business'. This way, compliance with corporate legal objectives can happen by default, rather than require additional effort. One way to inject a youthful perspective into our thinking is to participate in the company’s vacation student program. The program has always been open to engineering students, and it did not occur to us, until a couple of years ago, that a law student (with no legal firm experience) could contribute in a corporate environment. The experience has been so mutually beneficial that our team now participates in the program annually. We welcome being able to provide a learning opportunity for the student, at the same time as developing our mentoring skills. We reap the benefit of the student’s enthusiastic contributions and the connections the student makes to other vacation students. It has become another avenue to break down silos and keep us engaged in the business.

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Diagram: Design Thinking Steps Guide Legal Practice at Hatch

HMW better align the interests of both Owner and Consultant to achieve project success?

Have empathy.

Get involved in student programs

Notice shortcuts for possibilities.

Use non-text visuals, coloured text and invest in legal tech

Engage in Proactive contracting

With industry colleagues:

(*Adapted from IDEO Design Thinking Framework, www.ideou.com/pages/design-thinking)

Making Ideas Tangible As a shared services department, we see our role as enabling and empowering our internal Hatch colleagues to provide “… practical solutions that are safe, innovative & sustainable” 8 to our clients. To be effective, we focus on how we are communicating to encourage buy-in. Is a document really required? Will it achieve the purpose? For example, does a certification that an agreement has been reached after parties have been given an opportunity to negotiate really avoid an unconscionability claim? We think our role in that instance is to encourage the parties to actually negotiate, use the process to cultivate the relationship, and address any issues upfront. If writing is required, we consider how we communicate and take the time to make the information more visually appealing and user-friendly. In 2016, our Communications and Legal Services Co-ordinator (non-lawyer) interviewed colleagues across a variety of disciplines (engineering, legal, finance and HR) to identify reading preferences (screen versus print) and obstacles to their ability to engage with communications in the workplace.10 Her research paper was part of her external studies and we leveraged the findings to make improvements in the way our team worked. Design thinking has reinforced the importance of considering the effect on our audience and we now consciously make information more accessible by: •• the use of non-text visuals where appropriate, such as diagrams, tables and timelines (even in legal advice and letters); •• the use of colour—for example, the consistent use of red for deletions and blue for insertions; •• the renaming of hyperlinks in emails to make the text more concise; •• the establishment of a knowledge-sharing system across the organisation (our global legal information platform on SharePoint); and •• the adoption of technologies that leverage platforms already familiar to the user (prioritising Microsoft 365 offerings for legal tech solutions).

Test to Learn Contracts play a role in the perception of how easy an organisation is to work with, and Hatch is no exception. In the last decade, and especially during the mining downturn, it was not uncommon to receive feedback that Hatch had lost a job because we were “difficult to deal with”. Our internal colleagues would then look pointedly at us and say it was because of our position on Ts and Cs. Our response has invariably been that the contract presented was one-sided and allocated risks that were disproportionate to the reward. Whilst the problem of adversarial contracting is real (and increasingly being recognised), design thinking has caused us to reflect and consider our own reactive approach to negotiations. We are now redesigning our standard templates and negotiations process with a proactive approach in mind. We want to better reflect the sense of collaboration and trust that our technical teams have built because the contracting process should enhance the relationship, not damage it. ‘Proactive contracting’ means to stop drafting documents for lawyers and instead, draft them for the users—our colleagues—to facilitate successful delivery of services and projects. We are encouraging teams to focus on scope, and to describe their obligations more specifically, including reporting

requirements. Our insurers have recently told us that the main risk driver for claims in our industry is miscommunication (30%). This is consistent with other data which report that 40% of projects are impacted by claims arising from poor communications, unclear responsibilities and failure to update business requirements.10

Share the Story We are extremely grateful that the 2019 ACC Value Champ award has provided opportunities to share our story with colleagues within Hatch and in the broader industry. As an in-house legal team, we are uniquely placed to shape how we deliver legal services in this ever-changing and increasingly complex environment. Design thinking offers a replicable, structured framework to align the impact we want with our intention. Importantly, it is a mindset that steers our interaction with people to be a more positive one and ultimately enhances our enjoyment at work. a Footnotes 1. ‘2019 Value Champions Hatch & Lexvoco: Using Design Thinking to Innovate Legal Practice’, Association of Corporate Counsel (Web Page, 2019) <www.acc.com/2019-valuechampions-hatch-lexvoco#>. 2. ‘Get Started with Design Thinking: Overview’, Hasso Plattner Institute of Design at Stanford University (Web Page, 2019) < dschool.stanford.edu/resources/getting-started-withdesign-thinking>. 3. Tim Brown, ‘Design Thinking’ (Web Page, 2019) <www.ideou.com/pages/design-thinking>. 4. Bruce Lee, Wisdom for the Way (Black Belt Communications, 2009). 5. IDEO, ‘Design Thinking Approach’ (Web Page, 2019) <www.ideou.com/pages/designthinking>. 6. Owen Hayford, PWC, Collaborative Contracting (Report, March 2018) 1. 7. Roman Belotserkovskiy et al., ‘Contracting for performance: Unlocking additional value’ (March 2018) McKinsey & Company 1. 8. Hatch, ‘Our Manifesto’ (Web Page) <www.hatch.com/en/About-Us/About-the-Company/ Our-Manifesto>. 9. Caroline McPherson, ‘Teaching good writing is not enough: The tactics required for effective workplace communication in the 21st century’ (Research Paper, October 2016). 10. International Association for Contract & Commercial Management, Ten Pitfalls to Avoid in Contracting (Report, 2015) 5.

With thanks to editorial input from Hatch legal team members, Caroline McPherson and Joanne de Jesus.

Kim Cavallaro As Regional Legal Counsel and Company Secretary with global consulting engineering firm, Hatch, Kim provides legal and corporate governance oversight of Hatch’s business activities in the Australia-Asia region. In the last 18 months, Kim has led transformation of Hatch’s global in-house services by applying 'design thinking' principles that focus on the needs of Hatch colleagues and external clients. VOLUME 29, ISSUE 4 – SUMMER 2019 |

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BOILERPLATE BLUNDERS: 12 MISTAKES TO AVOID WHEN DRAFTING COMMERCIAL CONTRACTS Other than unannounced on-site regulatory visits, there are very few things that can derail an otherwise good day more than a material ambiguity or inconsistency in a commercial contract coming to light as a result of a contractual dispute. Sales, supply, and license agreements memorialise a company’s most vital nonemployee relationships. A dispute with a counterparty about the meaning or implications of a key provision can result in wasted resources (time and money) and jeopardise the stability of critical business relationships that have been years in the making. Accordingly, it is important for counsel and business partners to avoid costly drafting errors (or omissions) in material commercial contracts.

n the increasingly complex and fast-paced nature of business, general counsel and external counsel both suffer at the hands of the same nemesis; time. There is never enough of it. Technology allows lawyers to work more efficiently; however, client demands have outpaced the time savings, leaving little time for attorneys to devote to important matters while putting out fires on more pressing matters. Attention to 'standard' boilerplate provisions is among the first casualties when counsel are under the gun. Boilerplate provisions are often relegated to the 'miscellaneous' section at the very end of

contracts with little fanfare, despite the surprisingly significant impact that these provisions can have on the respective rights of the parties and the logistics of enforcing those rights. The traps for the unwary are many; however, awareness of 12 common mistakes can greatly decrease the risks associated with drafting boilerplate provisions in commercial contracts. In all cases, it is important to take inventory of what the company’s needs are and then develop a set of boilerplate provisions that will be easily accessible for counsel to add to, or replace, in a contract with little notice.

CHEAT SHEET

•• Boilerplate. Boilerplate provisions (those provisions that appear at the end of contracts and are too often overlooked) can help enforce commercial contracts and get your clients their desired benefits.

•• Create your own. Take inventory of what the company's contract needs are and develop a set of boilerplates that can easily replace sections or be added into a contract.

•• Check. Create boilerplate checklists that can be used to mark up provisions during a time crunch.

•• Back-up plan. If you are unable to make edits or wholesale changes to certain provisions, impress upon your clients the importance of conceding these points.

TIPS

Incorporation by reference

•• ••

Completely understand incorporated terms and conditions or exclude such terms. Include provisions that clarify that the 'base' contract prevails (to the extent that there are conflicts).

Many agreements incorporate other terms and conditions by reference. Sometimes these are attached as an exhibit or appendix, but you may also see terms and conditions applicable to one party only made available online or separately documented within vendor guidelines. It is important both to read and understand the substance of these provisions and also have a clear understanding in the contract as to which provisions prevail to the extent that there are conflicts or inconsistencies between the documents.

Business partners are often frustrated and surprised to learn that the general rule in the United States is that attorneys’ expenses incurred to enforce a contract are not recoverable, in the absence

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Expenses

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of statutory relief or an express clause to share or shift responsibility for such expenses. If it is important to business team members to shift this burden, then indemnity or prevailing party provisions should be included. If a prevailing party provision is included, then 'prevailing party' must be clearly defined. For example, should the burden be split between the parties based on culpability, or is a favourable disposition on a majority of claims sufficient to shift the entire burden for fees to the loser? Does the disposition need to be final and non-appealable? Do the expenses need to be 'reasonable'? Should the loser pay for torts (e.g. fraud) in addition to contractual claims? Note that in some states, such as Florida, Texas, and California, attorneys’ fees provisions are required to be interpreted as reciprocal by statute (Fla. Stat. Ann. §57.105; Tex. Rev. Civ. Stat., Art. 38.001; Cal. Civ. Code §1717) but only as to contractual claims.

some instances but, depending upon how and when such other contracts can be modified, such modifications may materially amend the terms of the primary contract in unknown or unknowable ways. If the agreement is being translated into multiple languages, which version governs when there is a translating inconsistency? Clarifying the intention of the parties in this situation is important. TIPS •• ••

TIPS •• •• ••

Include loser pays/prevailing party indemnity provisions in contracts where business partners require such protection. Clearly define what it means to prevail and when right to reimbursement is vested. Understand local laws that may require reciprocity.

Notices

It is important to identify how, when, where, to whom, and what type of communication must be delivered in the manner described. Often the effective date of notice determines when a breach has occurred, the timeframe one party has to cure a breach, and the consequence of a breach (e.g. termination rights, interest, or liquidated damages). Ambiguity or logistical constraints within these sections may delay or frustrate the intention of the parties. For example, if email is a permissible means of providing notice, what happens if email is diverted by a spam filter? Should notice of certain significant events require more formal notice? What happens if the designated contact person ceases to be employed by the receiving company? If one party fails to provide notice of a change of address, should there be a consequence to such party? Should there be different delivery methods for non-US parties? Many agreements permit service of process to be delivered in the means described in the notices section. If notice-delivery methods will also apply to service of process, then it is even more important that such methods mechanically work. TIPS •• •• ••

Include multiple means of delivering notices (e.g., national courier and email with confirmation of receipt). Consider including multiple recipients of notices to increase likelihood of receipt. Consider limiting proper notice to personal delivery or national courier service if service of process may be made by the method indicated in the notices provisions of the contract.

Interpretation

Often, agreements may include language that informs how the contract is to be construed. As is the case with all boilerplates, if a provision introduces ambiguity to the agreement, then the language should be excluded. For example, a contract may say that all references to other contracts or statutes are deemed to be such contracts or statutes as modified from time to time. This may be appropriate in

Avoid general interpretation principles that add ambiguity. If contracts are translated and versions in two languages are presented side by side, then include a clause that specifies which version prevails when there are translation-related inconsistencies between the versions.

Entire agreement (merger clause)

A well-crafted merger clause should clearly affirm that the contract supersedes all memoranda of understanding, term sheets, and letters of intent, as well as any prior oral discussions and emails. However, if the parties have other agreements that could reasonably be construed to relate to the same subject matter and are not intended to be superseded, then the other related agreements (e.g. guarantees, collateral documents, side letters, confidentiality agreements) should be expressly noted as exceptions to the merger clause. TIPS ••

Include a merger clause with specific exceptions for other existing and related agreements.

Anti-assignment

Generally, contract rights are freely assignable (although certain jurisdictions deviate from that rule and certain contracts are not freely assignable, e.g. personal service contracts and exclusive IP licences). It is therefore prudent to include anti-assignment clauses in most commercial contracts to avoid the risk of being subject to a contract with an undesirable counterparty. For particularly sensitive contracts, counsel may need to consider additional protections to avoid circumvention of the intent of antiassignment provisions. For example, prohibited assignments may be crafted to include assignments by operation of law, merger, consolidation, or changes of control. Counsel should also consider including a provision that any purported assignment in violation of the agreement is null and void to ensure that damages are not the only remedy for breach of the anti-assignment provision. Depending on business needs, certain exceptions to the anti-assignment clause may be necessary — for example, assignment to affiliates. TIPS •• ••

Include an anti-assignment clause with consent required for assignments by operation of law. Include language that states assignments without consent are null and void. VOLUME 29, ISSUE 4 – SUMMER 2019 |

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Third-party beneficiaries

Generally, unless a contract provides otherwise, a third party, despite not having originally been an active party to the contract, may have a right to enforce the contract if they are an intended beneficiary who relies on or assents to the relationship between the original parties to the contract. It is important to remove or tailor such clauses to avoid confusion when an agreement expressly contemplates benefits to third parties, such as indemnity provisions that include shareholders, officers, directors, etc. It is also important to remember that state law may override contractual provisions to the contrary. California has at least one case in which employees that were not party to an agreement were permitted to enforce certain post-closing benefits, despite an express no third-party beneficiary clause. TIPS ••

Avoid contradiction of clauses that specify that there are no third-party beneficiaries when the agreement specifically identifies rights running to third parties, such as officers and directors. Understand that local laws may override the express provisions of the agreement.

••

Amendment, modification, or waiver

Purchase orders, emails, and oral communications often deviate from the express terms of master agreements and may create 'battle of forms' concerns, parole evidence issues, questions about the course of dealing between the parties, and implied waivers. It is important to require certain formality and specificity (e.g. manually signed written amendments and signature of the person granting the waiver), to avoid inadvertent amendments or waivers. With multiparty agreements, the agreement should specifically address whether all parties need to execute amendments or waivers, or if some subset of parties can authorise such modifications. TIPS •• ••

Include provisions requiring that all amendments and waivers be in writing. Specifically identify which parties must authorise specific amendments or waivers of multi-party contracts.

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Governing law

Governing-law provisions are very important but are rarely deliberated at length during the preparation and negotiation of contracts. The differences in law among jurisdictions globally are substantial and no 50-US state survey or G7 country survey could ever adequately cover the multitude of statutory differences. Also, case law in many jurisdictions has rendered governing-law provisions moot, particularly when a reasonable nexus to the state or other jurisdiction has not been chosen. Many states have enabling statutes that specify criteria for what constitutes sufficient legal nexus for a particular contract to be governed by that state’s laws. Unless there is a strong advantage to utilising the governing law of a particular jurisdiction (e.g. New York’s long history and legal precedent in the banking and finance industry), the first-choice jurisdiction is often the jurisdiction of formation or the headquarters of the company. The company’s formation and/or registration to do business is likely to satisfy the nexus requirement of most states and the company should, hopefully, be more familiar with the rules of the road in its home venue. However, governing law may be a negotiated item, just like any other term of an agreement, and if the company does not have leverage to push for its preference, then it may have to compromise. Some states have requirements as to the actual text of a governing law clause. For example, Texas requires that a governing law clause be in all caps, bold face, or otherwise conspicuous text. It is also important to include language that states that the choice of law principles from the state are excepted from application of the local law, as this would have the effect of providing a court with the discretion to apply a different jurisdiction’s law. TIPS •• •• •• •• ••

Understand which countries or states have laws that are most favourable and push for the use of such governing law. When in doubt, try to push for the jurisdiction of formation or the headquarters of the company to be governing law. Use all caps and/or bold face for governing-law provisions. Include language that makes choice of law principles an exception from the chosen governing law. Understand that local laws may override the express provisions of the agreement.

Submission to jurisdiction

Similar to governing-law provisions, selecting the venue for disputes is also important and may be affected by case law on the appropriateness of the personal and subject matter jurisdiction of the mutually agreed upon court. The expense of litigating a dispute in a distant jurisdiction can increase costs and inconvenience and may mean less familiarity with the court system. It is important that the consent-to-jurisdiction provision match the governing-law provision when possible to avoid court in a jurisdiction that does not give effect to enabling statute provision from the selected jurisdiction. Parties should include language that explicitly waives forum non conveniens and other potential defenses or objections to the selected jurisdiction. It is also recommended that language is included that permits service of process in the manner described in the notices section,

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especially when a counterparty is based outside of the jurisdiction. Certain courts may have specific prerequisites, such as dollar amount prerequisites or, for US federal courts, either diversity or subject matter jurisdiction, that override the express terms of the agreement. Finally, if exclusive jurisdiction is intended, the contract should expressly so state, with the understanding that courts may not ultimately enforce such exclusive jurisdiction consent.

TIPS •• •• ••

Include details on the specifics of the arbitration and the procedures to be applied. State that the arbitration is binding. Describe how arbitration expenses will be paid.

TIPS

Conclusion

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Boilerplate provisions can have a meaningful impact on the enforceability of commercial contracts and determine whether or not your clients reap the benefits that they have so valiantly negotiated. As the expert, take inventory of what the company’s needs are for contracts in various aspects of the company’s business and then develop a set of boilerplate provisions for the various applications that will be easily accessible to add to, or replace, in a contract with little notice. It is also a good idea to develop boilerplate checklists that paralegals can use (with attorney supervision) to mark up provisions when one is under a time crunch. When circumstances dictate that you are unable to make edits or wholesale changes to certain provisions, make sure that your clients understand the importance of conceding on these points. a

•• •• ••

When possible, push for an exclusive forum that is convenient for the company. Include explicit waivers of challenges to the selected forum. Include language allowing service of process in the manner described for notices. Understand that local laws may override the express provisions of the agreement.

Waiver of jury trial

ACC EXTRAS ON. . . Commercial contracts

Waiver of a jury trial is particularly important for agreements dealing with complicated subjects or contracts where juries may be more likely to sympathise with one party or another, irrespective of whether the contract is clear on particular terms. As is the case with many boilerplate provisions, it is important to understand whether jury trial waivers are effective in the jurisdiction whose laws govern (or whose laws may apply because of a public policy exception). In many jurisdictions, there is a presumption against waiving the right to a jury trial. In all jurisdictions, the waiver must be knowing, intentional, and voluntary. In a few jurisdictions, such as Georgia, waivers of jury trials are not permitted at all.

ACC Docket •• Contracts Unleashed (June 2019). www.accdocket.com/ articles/contracts-unleashed.cfm •• Deploying Robust Default Rules: International Commercial Contracts Under UNIDROIT (March 2019). www.accdocket. com/articles/international-commercial-contracts-underunidroit.cfm •• Are You Quantifying Your Risks in Contracts? (Oct. 2018). www.accdocket.com/articles/are-you-quantifyingyour-risks-in-contracts.cfm •• Traps, Pitfalls, and “Gotcha” Moments to Avoid with Business Contracts (Oct. 2017). www.accdocket.com/articles/trapspitfalls-gotcha-moments-business-contracts.cfm

TIPS

ACC has more material on this subject on our website. Visit www. acc.com where you can browse our resources by practice area or search by keyword.

•• ••

Include explicit waiver of jury trial for complex contracts. Understand that local laws may override the express provisions of the agreement.

An original version of this article was published in the October 2019 issue of the Docket.

Richelle Burr Having been employed at Phototronics since 2010, Richelle currently serves as Vice President, General Counsel, and Secretary of the organisation. Photronics is a leading worldwide manufacturer of photomasks, a key element in the manufacture of semiconductors and flat panel displays. Richelle completed her legal studies at Quinnipiac University School of Law.

Arbitration

Arbitration of disputes can dramatically expedite and decrease the costs of dispute resolution. It is important that arbitration clauses are crystal clear on the specifics of the arbitration — who, what, where, how, and when. The agreement should clearly specify how many arbitrators there will be and how the arbitrators will be selected. In most cases, it is simplest to have one arbitrator selected by a reputable arbitration organisation, such as the American Arbitration Association (AAA). The contract should specify what procedures govern arbitration proceedings. Again, AAA procedures may be a natural choice. Most importantly, the arbitration clause must state that the arbitration will be binding on the parties. The contract should identify the location of the proceedings and how the process will be initiated. Finally, the contract should state how the expenses of the arbitration will be allocated between the parties.

Clyde Tinnen Now a partner and business lawyer with Foley & Lardner LLP, Clyde focuses on mergers and acquisitions, and debt and equity financing transactions. He is a member of the firm’s national transactions practice and previously was partner with Withersworldwide and worked inhouse role with the InterGroup Corporation. VOLUME 29, ISSUE 4 – SUMMER 2019 |

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LEGAL PROFESSIONAL PRIVILEGE, THE GLENCORE DECISION, AND ISSUES FOR IN-HOUSE LAWYERS Legal professional privilege, or LPP, is a fundamental common law right and is important to the administration of the Australian legal system. LPP protects from disclosure confidential communications between a lawyer and his or her client, provided that the communications are for the dominant purpose of preparing for actual or anticipated litigation, or seeking or providing legal advice.

n most cases, the question of disclosure arises when a regulator, such as the Commissioner of Taxation (Commissioner), is exercising statutory powers to compel the production of information and documents.

This article considers current issues arising from LPP claims being asserted as the basis upon which to withhold information and documents from the Australian Taxation Office (ATO) and other regulators, and the possible impact of the High Court decision in Glencore International AG v Commissioner of Taxation [2019] HCA 26 (Glencore v FCT), which concerns documents containing legal advice being leaked to the internet. It also considers the practical issues confronting in-house counsel and their wider businesses from unauthorised disclosure of privileged information, and how to ensure that LPP applies to communications and is not waived.

Relevant principles relating to the dominant purpose test were stated in Asahi Holdings (Australia) Pty Ltd v Pacific Equity Partners Pty Limited (No 4) [2014] FCA 796, and may be summarised as follows: a. The relevant time for ascertaining the dominant purpose is when the communication was made. b. The relevant purpose may be either that of the author or initiator of the communication, or the person at whose request or under whose authority the communication was created or made. c. Determining the dominant purpose of the communication involves an objective consideration of the client's or sender's purpose, and not merely the subjective purpose asserted by that person. d. It is not enough to show a substantial purpose, or that the privileged purpose is only one of two or more purposes of equal weighting; it must predominate.

LPP — overview and rationale

In-house lawyers

As stated by the High Court in Esso Australia Resources v Commissioner of Taxation (1999) 201 CLR 49: [LPP] exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers. In Baker v Campbell (1983) 153 CLR 52, the High Court recognised LPP as a substantive common law principle and not a mere rule of evidence. A majority of the court held that the doctrine of LPP is not confined to judicial and quasi-judicial proceedings, but will apply to withhold advice from disclosure in response to any form of compulsory seizure or production of documents unless expressly excluded by Parliament.

Elements of LPP — the legal test General LPP is dealt with under two separate regimes, the common law and statute. The Evidence Act 1995 (Cth), for example, provides that the law of evidence applies in Federal Court proceedings, and more specifically, to the adducing of evidence at trial. Common law LPP applies to the exercise of informationgathering powers by regulators (such as the Commissioner).

Confidentiality

The communication between the lawyer and client must occur in confidential circumstances. Waiver of LPP can occur and may be expressed or implied. Implied waiver occurs where the party claiming LPP acts inconsistently in maintaining the confidentiality of the communication: Mann v Carnell (1999) 201 CLR 1.

In Waterford v Commonwealth (1987) 163 CLR 54 (Waterford) the High Court considered whether advice provided by government in-house lawyers would attract LPP. A majority of the High Court found that the employment relationship between lawyer and client did not, of itself, deny the application of LPP to the advice, noting however, that the legal adviser must be competent and independent. In respect of in-house legal counsel, independence can be an issue, particularly where legal counsel is required to perform dual roles, for example as a company secretary or director in addition to legal counsel. Questions of independence can also arise if legal counsel is a shareholder or receives remuneration (e.g. bonuses) that are tied to certain commercial objectives.

Glencore v FCT — High Court decision In Glencore v FCT, documents that contained legal advice obtained by Glencore were accessed by the ATO under the Paradise Papers disclosures. Glencore sought an injunction restraining the Commissioner and his delegates from making any use of documents on the basis that those documents were subject to LPP, including an order requiring the delivery of the documents in the possession of the ATO.

Dominant purpose

On 14 August 2019, the High Court unanimously dismissed the proceedings brought by Glencore. The fact that the documents were subject to LPP was not in dispute; however, the issue was whether LPP was an immunity against compulsory production or gave rise to a cause of action.

The High Court held that LPP is not an actionable legal right capable of attracting relief; LPP provides an immunity from the exercise of powers that would otherwise compel the disclosure of privileged communications. However, LPP does not provide a positive right to claim a remedy (e.g. injunctive relief ).

The communication must be made for the dominant purpose of giving or receiving legal advice or for the dominant purpose of using existing or anticipated litigation. |

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Does Glencore v FCT create uncertainty around LPP? The High Court in Glencore v FCT reaffirmed the rationale and principles of LPP, as summarised previously. In considering the import of the case, it is significant that Glencore conceded in the High Court that confidentiality in the leaked documents had been lost and that, accordingly, an action based on breach of confidence was not available to it. However, while the High Court has determined that LPP is not an actionable legal right, the court did not address the issue of the use that the Commissioner could make of the leaked documents. In FCT v Donoghue (2015) 237 FCR 316, the Full Federal Court held that the Commissioner could (and should) use in the assessment process documents over which the taxpayer asserted LPP had been provided to the Commissioner without the taxpayerâ&#x20AC;&#x2122;s consent or authority. However, in that case the taxpayer did not pursue an action for breach of confidence. In Donoghue there was no disclosure to the world at large (and, in such circumstances, there may be an argument that confidentiality has not been lost). A question may arise in a future case as to whether the Commissioner, even if he can rely on such documents to undertake inquiries and assess the taxpayer, could or should have the documents admitted into evidence in any appeal or review by the taxpayer against the assessment. The Law Council of Australia and the ATO are currently developing a protocol dealing with LPP. The protocol will provide guidelines for

managing LPP claims made in response to document requests by the Commissioner, including what information should be provided to the ATO concerning the claim.

Practical implications for in-house lawyers and their wider businesses Following the Glencore v FCT decision and in light of the increasing scrutiny of LPP claims by the ATO, in-house lawyers should be aware of the principles governing LPP relevant to their roles, including their interaction with the wider business of their employer. For LPP to be available, there must be a professional relationship of an independent character. While LPP does extend to in-house lawyers, such lawyers must be acting independently and in a legal capacity, not in a nonlegal capacity (e.g. as a company secretary). Accordingly, in-house lawyers who have other roles within an organisation should be clear as to the role they are performing. When communicating to employees within an organisation, in-house lawyers should consider whether their communication is to be confidential and whether they are providing legal advice or providing general commercial advice. If legal advice is being given by, or sought from, the in-house lawyer, this should be clear on the face of the communication, although simply marking a communication as 'subject to legal professional privilege' (or similar) will not of itself be sufficient to substantiate a claim for LPP. What is critical is whether, in substance, the communication satisfies the relevant legal tests for LPP to apply. VOLUME 29, ISSUE 4 â&#x20AC;&#x201C; SUMMER 2019 | 31

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However, from a practical perspective, marking the communication as privileged informs recipients of the communication that it contains legal advice, and serves to remind recipients to maintain the confidentiality of the communication. This is particularly important following Glencore v FCT, given that communications that would otherwise be subject to LPP, if leaked, stolen or inadvertently disclosed, may no longer be able to be protected from use by a party such as the Commissioner without recourse to an action for breach of confidence.

The authors would like to acknowledge Peter Poulos, Partner of MinterEllison, for providing his comments and valuable contributions to the article.

Carmen McElwain In leading MinterEllison's Tax Controversy practice nationally, Carmen draws on her 25 years' experience in managing large and complex tax controversy matters at the risk review and audit stages and in the conduct of tax litigation. Carmen has a wealth of experience in legal professional privilege matters and has instructed in a number of landmark privilege cases.

Safeguards to prevent data breaches and cyber incidents The Paradise Papers leak and its predecessor, the Panama Papers, also serve as important reminders of the need for organisations to ensure they have robust cyber-security arrangements in place, particularly in relation to the most sensitive data they hold.

Glencore v FCT illustrates the ever-increasing sophistication of malicious actors in perpetrating cyberattacks, and the significant consequences for organisations — across the supply chain — that may flow from a cyber incident.

Paul Kallenbach As one of Australia’s foremost technology law specialists, Paul advises leading Australian and international clients on a wide range of technology-related issues. In 2015, Paul launched MinterEllison's annual cyber security report, Perspectives on Cyber Risk. Now in its fifth year, the publication has been extensively reported in leading national business media and trade publications.

At a practical level, a robust cyber-security program should take a multi-pronged approach, including at least the following measures:

Technology a range of technical security measures should be implemented, including encryption, network security, and access controls, to ensure data (particularly sensitive data) are accessible only by those who need it.

Stephen Chen A Special Counsel in the MinterEllison tax group, Stephen specialises in advising clients on tax disputes. He also advises on complex privilege issues and has recently instructed in Song v FCT [2018] FCA 840, concerning privilege claims made in relation to a set of documents.

Processes an organisation should identify and continually assess its level of cyber risk (including through its supply chain), and understand its regulatory and contractual obligations. Organisations should have documented cyber policies and procedures appropriate to the risk level, and regularly test and update these. Cyber security is not a “set and forget” exercise. Rebecca Clarke People

With over seven years’ experience advising on tax matters, Rebecca is a Senior Associate in MinterEllison's Tax Controversy team. She has acted on numerous tax-related litigation matters including Part IVC appeals in the High Court, Full Federal Court, Federal Court and Administrative Appeals Tribunal and debt recovery litigation.

staff and contractors should receive regular training and awareness about cyber-security procedures and threats. Organisations should also recognise insider threats, whether as a result of malicious acts, risky behaviour (e.g. clicking on links or attachments in suspicious emails) or accident. The US National Institute of Standards and Technology's Cyber Security Framework is a good starting point when reviewing a cyber-security program. It covers five core aspects: identifying risks; protecting against threats; detecting suspicious activity; responding to incidents; and recovery, including remediation. Cyber security is not just a legal or compliance issue, but is critical to protecting an organisation's reputation from the potentially farreaching consequences flowing from the unauthorised disclosure of confidential information — as exemplified by the Paradise Papers incident. a

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Susan Kantor A Senior Associate in MinterEllison's Technology and Data Protection team, Susan has more than ten years' experience advising a range of public, private and not-for-profit sector clients with privacy, data protection and related advice. She is also a co-author of MinterEllison's annual cyber security report, Perspectives on Cyber Risk.

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TURNING LEGAL LIABILITIES INTO ASSETS Virtually every business has used some form of finance, whether it be equity or debt. Typically, Chief Financial Officers (CFOs) play a critical role in determining optimal capital structure, looking at sources and uses of funds. Rarely, however, are opportunities presented to CFOs to turn a potentially costly liability into an asset. Litigation funding is, for many corporates, the innovation in corporate finance that will do just that.

any businesses have eschewed litigation to enforce their rights and recover damages due to the costs and risks associated with pursuing a claim. Most CFOs see litigation as the antithesis of profitable business activity, being costly, unpredictable and inefficient. Typically, businesses prefer investing in activities where a return can be reasonably well predicted and relative costs can be justified. In litigation, the amount of damages may be hard to quantify, the length of the proceedings can be difficult to predict, costs can run high, and the outcome can be uncertain. Furthermore, the loser in proceedings not only has to cover their own legal costs but often the other side’s costs as well, making it an expensive exercise. Unsurprisingly, many have traditionally seen litigation as a liability, pure and simple. Litigation funding can, however, alter the traditional view. The basis of such finance is to shift risk and cost from the business to the funder, taking the lability off-balance sheet and off the CFO’s mind. The funder pays for the lawyers, counsel, experts and disbursements. The funder also pays the insurance premium for litigation expense insurance to protect against adverse costs in the event of a loss. It is contingent finance, meaning if the case loses the funder is responsible for the costs, and there is normally no recourse to the claimant. At the very least, CFOs can see such finance as a risk management tool, and beyond this, potentially as something altogether more beneficial. When faced with unexpected litigation, in-house counsel often face difficult conversations with CFOs as to how to deal with the costs and risks. Litigation funding provides an elegant solution for in-house counsel to present to their CFO. If the claimant is successful, litigation can become an asset. A good proportion of damages won will be repaid to the business, improving cash flow. The funder will recover its investment in legal expenses and earn a commission from the damages recovered. While funding is typically more expensive than traditional corporate finance, repayment of the funded amount only occurs if there is a successful resolution in the case, thereby making this form of funding attractive to CFOs. The clear benefit from this finance is that it can result in cash flow from successful cases that may not have otherwise been pursued. And by not requiring capital to be diverted from core business activities, existing financial resources can remain focused on value-creating activities, rather than expensive legal disputes. Beyond the purely financial benefits that CFOs will typically value, litigation funding can also offer benefits around scaling up legal resources. Funders employ highly skilled litigation lawyers to carefully review the merits of a case and work closely with law firms to help determine the best strategy for pursuing a matter. They agree on a budget for the case and help project manage the matter as it proceeds. This skill and expertise complement a business’s inhouse legal team, who can rest assured that funders are aligned with them, in that both parties desire a positive case outcome, within a reasonable time and at a reasonable cost. And by offering finance for

cases that the in-house team may not have budgeted for, resources can be freed up for other, planned activities. In Australia, litigation funding has historically been associated with insolvencies and large cases such as class actions, even though it is equally suitable for commercial litigation claims. Many funders in other markets, such as the UK, predominantly fund business disputes where the claimants have substantial balance sheets and cash flow but recognise litigation funding as a helpful source of finance with the attraction of additional benefits around legal skill and risk management. Despite all the benefits, CFOs need to carefully select the right litigation funder for their needs and should seek to rely on recommendations from leading law firms who have thoroughly examined the market. For instance, leading law firms Pinsent Masons and Holan Fenwick Wilan have selected Augusta as their preferred supplier for corporate clients after a substantial amount of due diligence.1 Factors both firms describe as important when considering a funder are: •• The funder asks deep and perceptive questions, which help deepen appreciation of the strengths and weakness of the case. •• The funder’s approach is transparent, offering clear terms that the client can understand. •• The funder has a clear capital backing to fund the matters. All these points should be considered by CFOs in deciding when to seek litigation funding and whom to engage with. a Augusta is the largest litigation and dispute-funding institution in the UK by number of cases funded. With $270m of capital and a team of 70 in Sydney, Melbourne, London and Toronto, our scale enables us to make decisions in market-leading timeframes and fund cases of any size. Pinsent Masons’ web link on Augusta’s funding facility: https://www.pinsentmasons.com/about-us/announcements/pinsent-masonsagrees-25m-litigation-funding-facility-with-augusta

Neill Brennan As the co-founder of Augusta (Australia and UK) Neill oversees the claim diligence and monitoring functions of the business. He has over 30 years’ experience in finance markets and over seven years’ experience in litigation funding. Neill was previously a founding partner of Armajaro, a hedge fund manager and has held roles at HSBC and European Investment Managers.

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INTER VIE W BOB SANTAMARIA Retired Group General Counsel, ANZ Bank If not for the slightest shortfall in his final highschool marks, Bob Santamaria would have pursued a career in medicine. And… as he offers jokingly, “there are probably hundreds of Melbournians alive and well today because I didn’t get into medicine.” It’s a story that’s emblematic of Santamaria’s humility and self-depreciating humour that has remained consistent across a 40-year law career. The last 12 years spent as Group General Counsel at ANZ Bank, during a period that’s included the Global Financial Crisis, overseas expansion and the high-profile Hayne Royal Commission into the Banking, Superannuation and Financial Services Industry. Prior to his retirement, Santamaria spoke to ACC Australia to reflect on some of the skills and lessons that he’s applied managing a high-profile and complex legal department during one of the most disruptive decades in the global finance industry.

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BRINGING THE TEAM WITH YOU In coming into the role of Group General Counsel at ANZ, you had a constant flow of challenges from day one. Looking back, what skills or abilities could you call upon? I think there were four factors. First, I had spent 20 years as a corporate partner at Allens Arthur Robinson (now Allens) and that gave me the privilege and experience of being involved in numerous significant corporate episodes for clients. Navigating through those, keeping calm and trying to work out what’s the law, what’s the reputational impact, along with managing people under the stress of the competing issues, certainly helped me with what I was faced with here at ANZ. The second factor is that I had advised numerous CEOs, CFOs and boards on difficult governance issues, and on large corporate reconstruction projects, so I had that breadth of experience. Third, I was used to working under intense pressure and managing a whole range of stakeholders, especially when doing a big M&A transaction, which was my life. I also had to manage a large corporate department and had to engage with different parts of the firm on issues. When you have a whole range of stakeholders, you constantly need to pause and consider, how do I get everybody to come with me on this? The fourth factor was that, as the head of Corporate at Allens, I had been in charge of about 220 lawyers, including partners, and that experience helped me manage the Legal/ CSO (ANZ Legal and Company Secretary’s Office) team, which today numbers 230 people. So, when I came into the bank, I had the experience of working under pressure with a wide range of stakeholders. That’s what you have to do within a bank because you’ve got all different parts of the bank involved in various issues (the business, Finance, Risk, Communications, etc.) and you have to bring them together.

Can you describe your reporting structure at ANZ and how you’ve worked with the board of directors and the CEO? I report to both the CEO and to the board and I can only be removed with the approval of both, which I think is a very important arrangement for someone in my position. Because if the Group General Counsel is giving sound advice, which may not be welcomed by the CEO, the board needs to know that. I shouldn’t be able to be removed on the basis of providing unpopular advice to a CEO who is doing the wrong thing. Fortunately, it has never been an issue for me at ANZ. I should also add that, while I report directly to the CEO, I am not a formal member of the CEO’s Executive Committee. I attend all of their meetings and in many respects I’m treated as a de facto member. I actually like that I’m not a formal member because it helps me maintain that necessary distance or independence from management. Let me give you a little bit of background: I was counselled not to take this role unless I was going to be a member of the Executive Committee with a direct reporting line to the CEO. Yet when I was interviewed for the job, I learned that my predecessor reported to the CFO, not the CEO. When I put this to the CFO, he told me that the then ANZ CEO would not agree to my directly reporting to him and being on his Executive Committee as he had a large ExCo already. Now, the then CEO was to retire a month after I joined. Plus, the CFO, who was a completely decent, trustworthy person, assured me that I would have unfettered access to the CEO. So, I decided to accept on that basis, and I felt it was up to me to persuade the new CEO that it would be worth that person’s while having me on the ExCo (and that eventuated soon

“

So, when I came into the bank, I had the experience of working under pressure with a whole range of stakeholders. That’s what you have to do within a bank because you’ve got all different parts of the bank involved in various issues (the business, Finance, Risk, Communications, etc) and you have to bring them together.

after I started). So, I just backed myself to get a seat at the table. I also trusted the CFO when he said to me, “Bob, you’ll have unfettered access. Just tell me what you’re telling the CEO”. That’s all I needed to know and fortunately it fell into place for me. Would you have been able to do the job without that access? No. I haven’t worked at any other corporates, but banks are highly regulated animals and the legal and regulatory issues are often complex. You have to be able to have that direct reporting line because you don’t want someone else filtering your comments to the CEO. Equally, I want to hear directly from the CEO and convey my concerns in the event that I disagree with a position the CEO might take. Thankfully, that has happened rarely while I’ve been here, but I want to be able to hear the CEO’s take on issues.

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You have to be able to have that direct reporting line because you don’t want someone else filtering your comments to the CEO. Equally, I want to hear directly from the CEO and convey my concerns in the event that I disagree with a position they might take.

What advice would you give other chief legal officers about building relationships with people and other heads of department in the business? The advice I would give them is this: it’s crucial to the role to build relationships. You need to win their respect, for which I think three things are essential. First, you have to give them and all others respect. Second, you have to be commercial; you can’t be some ivory tower lawyer and expect to survive as a general counsel in a corporation. And third, you build respect by delivering results. You might be very respectful, you might be good company, but if you’re constantly making the wrong calls, no one’s really going to respect you for it. The other thing is, I think there’s a personal side to this. I love finding out about people, their backgrounds, their family, what things really interest them. So, I would say to others, ask these other people about themselves, their career, their concerns, and ensure you are showing interest in them. Here, in a big organisation like ours, people think the leaders and senior managers are highly accomplished and have an answer for everything. They don’t. And while 36

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they are at a top level, they have their own worries. One big plus for the CLO in building a relationship with the CEO, and with other senior executives, is that you don’t covet their role. It’s very rare that the CLO is going to be made the CEO. You need to be candid and not sycophantic in the way that you engage with them. I think it’s a plus the CEO knowing that, because you don’t covet their role, they should be able to rely on you to be a lot more forthright in the responses that you give to their questions. What is the role of the CLO in terms of establishing an ethical culture? You’re not just a lawyer earning an income. You’re also an officer of the court. You’re told that the day you’re admitted to practice by the Chief Justice and I’ve just never forgotten it. Of course, then the law talked of concepts such as unconscionability and fairness. Now, following the Royal Commission, there's also ‘community standards and expectations’. These are all just moving along the spectrum. It used to be just black letter law. Now there’s an overlay on unconscionability and fairness — there’s the expectation that the bank should engage with its customers in accordance with community standards and expectations. What does that even mean? And this is going to be one of the things that lawyers have to live out. So, my note here is this: you should not just talk about those concepts; you should live them out and role model them as far as you can. Of course, having said that, we should never forget that nobody’s perfect. What stands out in terms of achievements during your time at ANZ? I’m not sure I’ve achieved much at all, but if I have it was because the one talent I have is to spot great people, especially in my team, and surround myself with them. And in the case of the Royal Commission, I assembled a really outstanding group of people and built them into a team. Then I try to encourage team cohesion, to have some fun. The Royal Commission was pretty harrowing. It was pretty draining waiting for our own ‘AMP moment’, if we were to have one. But the team spirt within the bank was phenomenal and I wouldn’t have missed what was an extraordinary experience. I’d never been through a Royal

Commission before so I found out who among the people I respected knew about royal commissions. I learned from them, and then I built our team, having identified the sorts of skills that were needed and then brought the right people onto the team. And I think our team was brilliant through what was quite a harrowing experience. Another highlight was the opportunity to observe our extraordinary CEO at closer range than normal over a 15-month period. There are two other things of which I’m particularly proud. For two of the last three years, the CEO has given Legal/CSO the highest end-of-year rating of any unit in the bank. In the year we weren’t top, we were second. And it's a nice piece of recognition from the CEO. And that all has to be approved by the board. Lawyers are often viewed as people to get around and I was thrilled the team received that recognition for the work that they put in. Secondly, in a 180-degree leadership survey conducted in 2019, the leadership team (my direct reports) in Legal/CSO received the highest ranking of any unit in the bank. They’re things my team has delivered and I just feel really proud of them. Again, if I’m good at anything, it’s picking good people and developing them into a team, building, as much as possible, a happy team working environment. I know that when people show appreciation for my efforts it just makes me feel fantastic. So that’s what I try to do with my team. What skills did you have to develop in the role? I’ll tell you a funny anecdote. When I was appointed back in 2007, there was a small news item on the appointment. It said that as GGC, I would be supervising the bank’s litigation around the world. And I thought to myself, I’m not going to be doing much of that. I’ve actually done little else, so I had to become a bush litigator. I’ve had to develop some skill there, though I don't pretend to have much in the way of real litigation expertise. The other skill is to deal with the business much more closely than you do as an external lawyer. As an in-house lawyer, you’re brought inside the tent at a much earlier stage in matters. Your views are sought early and often when matters are still embryonic. You have to manage

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As an in-house lawyer, you’re brought inside the tent at a much earlier stage in matters. Your views are sought early and often when matters are still embryonic. You have to manage expectations, which is a skill in itself.

expectations, which is a skill in itself. You are often put on the spot and asked for your view on a complex issue. You can give an instinctive view, but as most matters are complex, it's important to say that the issue needs further thought and you will return with a more considered response. Then you need to ensure you are reliable in doing so promptly. And that dynamic of being put on the spot often occurs in board meetings. With no notice, a board member will suddenly throw a complex issue at you. The board has been very supportive to me, but there are moments where they naturally just ask questions that are on their mind about something. In those situations, I will typically say three things: first, let me give you my instinctive answer to that. Then, unless I’m 100% certain of the answer, which is not often the case, I’ll say, listen, that’s actually quite a complex question you’ve asked, so I want to go and reflect on it some more and come back to you. There are the three things: instinctive answer, complex issue, make sure you come back. So that’s a skill, if you can call it that. You’ve got to have the courage to say you don’t know all the answers. Of course, it’s a bit easier when you come into the role at 54. And I’ll be 66 when I finish. It’s a lot easier when you’ve had, you know, 30 years of experience, and your kids are off your hands. And you feel a lot calmer and more sanguine about things, that if you lose your job, you probably won't starve!

Did you see your role as a CEO of a legal function? Were you still very much a lawyer? I figure that as the Group General Counsel, who has to suddenly answer questions of a legal nature at no notice, you simply can’t lose connection to the law. When the CEO walks into your office, you need to have that legal understanding — same with board meetings, same with meetings with third parties, same with regulators. While you will have enormous support from your team and panel firms, you can’t let your legal skills become rusty. Having said that, you have to run a first-rate legal function — that means staying within your budget and keeping your people going. It includes the financial aspect, the team spirit, monitoring engagement levels, developing your young lawyers, bringing your people on, mentoring your senior team and some of the younger ones you get to work with. I was previously the relationship partner for a number of my old firm’s blue-chip clients and what I had to do there was build strong relationships to seek to win as much of their work as possible. When I arrived here, I found myself suddenly in at the corporate level and I thought the most important thing I could do was to ensure ANZ was a company that all the best lawyers in the country wanted to do work for. What did that mean? Interesting work. That’s no problem, we’re always throwing off issues. Secondly, that we pay good rates. While we get good volume discounts, they can still make a good living out of us. Thirdly, that I don’t make their lives miserable by playing a conflict card, so if a panel firm wants to do a deal that involves ANZ peripherally, some companies will say, sorry, if it has anything to do with us, you can’t do it. I never take that position and always try to resolve conflicts, because if they lose a job, or one of the partners loses a job, because of their relationship with ANZ, it can make them think badly of ANZ. Finally, there are about four firms that get the bulk of our spend and I say to them, over a rolling 2–3-year period, they’ll all get an equal share of our spend. So, if they miss out on a big project this year, they know they’ll get a good chunk of work next year and when I have to say no to them, they know they will be treated in an evenhanded manner, which allows me to look them in the eye.

How important is it to switch off when you leave work at the end of the day? It’s vital. You have to be able to switch off and take a break from work. Yes, you’ll have late nights and out of hours phone calls, plus travel, but anybody in a high-pressure job needs to have a release of some sort that lets them get away from work every now and then. I wouldn’t have survived 12 years here if not for a wonderful wife, five adult children and several grandchildren. They are the main focus in my life. I also have many good friends who provide a valuable distraction, plus I have a summer sport and a winter sport. In summer I go body surfing with my best mate and during winter, I’m at the footy most weekends. a

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While you will have enormous support from your team and panel firms, you can’t let your legal skills become rusty.

Bob Santamaria would like to extend his thanks to the entire ANZ Legal/CSO team for their support over the past 12 years. He would also like to thank the CEO, Board of Directors, and ANZ Leadership team. In retirement he looks forward to staying in touch with the law, seeing more of his family, and seeing the AFL Premiers flag return to Carlton.

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ACC GLOBAL UPDATE First Australian elected ACC Board Chair at ACC Annual Meeting

In Europe, Hans Albers Re-elected President

The Association of Corporate Counsel (ACC) hosted its Annual Meeting this year in Phoenix, Arizona from 28 to 30 October. Some 3,500 in-house lawyers, legal service providers, and business thought leaders from over 25 countries attended. Trevor Faure, CEO of Smarter Law Solutions and ACC’s benchmarking partner, gave the opening plenary, “Smarter Law: From emotional to artificial intelligence, transforming busy lawyers into business leaders.”

ACC Europe, which serves over 2,900 inhouse lawyers in Europe, has announced the re-election of Hans Albers, Chief of Staff, Legal and Associate General Counsel, Juniper Networks, as President of the ACC Europe Board of Directors.

At the conference, leaders from Capital One, Motorola, Starbucks, Thomson Reuters, Western Union, and other companies served as faculty for the two full days of programming, covering law department performance, in-house law and geopolitics, new technology, legal operations, corporate culture, and compliance and ethics. The Annual Meeting also saw the election of the 2020 ACC Board of Directors. Anneliese Reinhold, General Counsel at the Emirates Integrated Telecommunications Company (du) was elected chair. Born in New South Wales, Reinhold leads the legal and regulatory functions at du. She has won 'Legal Department of the Year' awards several times, been profiled in The Legal 500’s GC Powerlist: Middle East, and led the only team from a non-UK company recognised with the prestigious Lexcel practice management accreditation by the Law Society of England and Wales. The Legal 500 has described her as a 'bastion for diversity', and CommsMEA magazine has listed her as one of the Middle East’s and Africa’s 20 leading women in the information and communications technology sector.

This will be Albers’s second term as president. His first term saw robust membership growth and several initiatives to make ACC's legal resources, education, advocacy, and networking more valuable for members. He plans to expand chapter programming on innovative legal technology, as well as grow resources and conversations on diversity and inclusion. ACC Europe has also launched two online practice networks — one on competition law, the other on legal management and operations — to further drive interactive discussions of best practices among European members. “Today's volatile and evolving business climate makes it more important than ever for in-house lawyers to have a strong peer network and access to trusted resources,” Albers said. “I am particularly excited to share the insights of our recently launched diversity and inclusion working group with our members. It is this type of quality content and networking connections that European in-house lawyers find through ACC Europe, and I look forward to continue serving our members in the year ahead.” That service will include the 2020 ACC Europe Annual Conference, to be held in Brussels from 17 to 19 May 2020. The conference will focus on “Transforming Legal: Reshaping the Future and Seizing the Opportunities”.

“Anneliese is an incredibly accomplished and creative in-house leader,” said Veta T. Richardson, ACC President and CEO. “The breadth of her repertoire, from in-depth technological knowledge to intimate familiarity with the international business community, seems tailor-made to ACC’s global membership and goals.”

The ACC Europe Board of Directors will be supported by Robin Grossfeld, ACC’s Senior Vice President, Global Initiatives, who will lead the association’s new London office as of January 2020, and Giuseppe Marletta, ACC’s Managing Director, Europe, who is heading the association’s recently opened Brussels office.

Reinhold is the first Australian to hold the chair.

Please visit https://www.acc.com/chaptersnetworks/chapters/europe for more information. a

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2020

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