Your World First Annual Review 2012-2013
Your World First
At CMS, we believe that delivering real value only happens when we work from a point of total client understanding and commitment. We call this philosophy â€˜Your World Firstâ€™.
Your World First puts client success ahead of anything else. It speaks to our deep expertise and the focus we put on advice, insight and execution that enable our clients to move ahead in their chosen markets, fulfilling strategic ambitions and being a benchmark for best practice.
CMS Annual Review 2012-2013
In this yearâ€™s Annual Review
04 Introduction & Management
44 People & Development
46 Corporate Social Responsibility
08 Global Rankings
09 Offices & Key Information
22 Banking & Finance
Technology, Media & Telecoms
28 Commercial 30 Competition & EU 32
Employment & Pensions
34 Insurance & Funds 36 Real Estate & Construction 38 Tax 40 Hotels & Leisure 41
Infrastructure & Projects
Welcome to the 2012-2013 CMS Annual Review
This third edition of our Annual Review includes some new features which reflect successful developments in other areas of CMS. In 2012, we were included for the first time in the AmLaw 2012 Global 100, The Lawyer UK Top 200 and the Legal Business Global 100. You can read about our rankings on page 8 of the Review. For some insight into the people behind our organisation, on pages 44 and 45 we have profiled two of our new partners from Switzerland and the UK. Sibylle and Juan are representative of over sixty colleagues who entered our partnership last year, forming the ‘next generation’ who will take CMS forward. In 2012, the challenging conditions that we saw last year continued to dominate the business environment. Regulatory and shareholder pressure on banks and corporates, reduced M&A activity and continuing uncertainty in the eurozone have had direct consequences for the clients that we serve and for our work at CMS.
“This third edition of our Annual Review includes some new features which reflect successful developments in other areas of CMS.”
Despite this volatile picture, CMS has had another year of growth and expansion. In 2012, we won new business as a result of successful panel pitches with a win rate of almost 60 percent. In June, we announced financial results for CMS and were able to report an increase of five percent in annual revenues over the previous year. The opening of new offices in Barcelona and Dubai indicated our commitment to expand into locations where our clients require support.
The CMS combination of a wide geographical base, solid sector expertise and talented people has worked well and delivered results for our clients over the past business year. Against the background of significant changes to our profession, which we follow closely, we are convinced that our current model is the right one to ensure our continued success.
In our work for clients, matters have ranged from the IPO of Telefónica Deutschland Holding AG, which was the largest flotation in Germany during the last five years, ongoing support of BP´s operations in Iraq and advice to CitizenM, the fast-growing hotel chain headquartered in Amsterdam. In the field of renewable energy, our dispute resolution team has been very active on behalf of clients affected by the changes to subsidies in this extremely volatile area of business. You can read more about these matters in the Review.
CMS Annual Review 2012-2013
I hope that the following pages give you a good impression of the strengths, the competence and the diversity of our organisation. As always, I and the members of our leadership team will be very pleased to receive any questions about CMS. Cornelius Brandi Executive Chairman firstname.lastname@example.org
Our leadership team
Cornelius Brandi Executive Chairman email@example.com
Matthew Gorman Executive Director firstname.lastname@example.org
José Luís Arnaut
Carlos Peña Boada
Implementing the CMS quality pledge
The post-crisis legal landscape has highlighted in stark terms the difference between price and value, with quality of service the key issue that distinguishes the two. With this in mind, CMS set up a Quality Committee in late 2011 made up of a cross-section of CMS partners and senior support staff. Members of the team have practice area, office and technical responsibilities and together are able to look ‘in the round’ at how CMS delivers quality to clients. Since its formation, the team has undertaken a number of key initiatives aimed at improving the client experience throughout CMS, many of which have come to fruition during the past year. CMS priority projects One of the committee’s first priorities was to devise a CMS Client Service Commitment that was then sent to every fee-earner in the organisation, as the kick-off to a more extensive campaign. CMS Executive Director and Chair of the Quality Committee Matthew Gorman says, ‘We have specifically looked at four underlying issues that encapsulate the CMS client offering: resourcing, fees, innovation and efficiency. ‘We see these as being the key drivers of everything we do on quality.’ Other key initiatives, each of which impacts on CMS’ ability to deliver on the Client Service Commitment, include: – Project management The delivery of efficiency and service quality in all matters undertaken. Thomas Meyding, Head of the Corporate Group and Committee member, says, ‘With cross-border deals such a major part of our business, it is crucial that all our lawyers get into the mindset of being project managers.’
CMS Annual Review 2012-2013
– Legal documents The implementation of standard formats for all Englishlanguage legal documents used on matters involving a number of jurisdictions. Patrick Torti, Director of Business Technology and co-ordinator of the project, says, ‘We believe that the creation of a common look and feel to all CMS documents is extremely important.‘ – Quality in our CMS Academy offering All training of CMS lawyers must reflect the quality tools and standards set by CMS. Matthew says, ‘A good example would be project management skills which now form an integral part of what our associates are taught at the CMS Academy. They will typically be given a transactional case study and be asked to demonstrate how they would project manage it from start to finish. To make it realistic we create role-plays using actors to simulate typical tricky issues that come up during transactions.’ – Feedback Systematic collection of client and internal feedback to assess how well we deliver on the promises that we make in the Client Service Commitment. Director of Business Development and Committee member Jeroen Douwes says, ‘Bringing the voice of the client into CMS is essential. We have an established and robust methodology to gather feedback from our clients, both post-deal and as part of a broader relationship review.’ – Best practice Learning from best practice and benchmarking on dimensions of quality. Gaining insight from other non-legal organisations such as Integreon or Deloitte and other sectors such as construction and healthcare.
Applying The Checklist Manifesto In an age where box-ticking, form-filling and minor rule enforcement are often viewed as yet another layer of unnecessary bureaucracy, Atul Gawande’s best-selling book, The Checklist Manifesto, certainly goes against the grain. Gawande, a surgeon by profession, argues that by using the correct checklist, professional standards are raised rather than ‘dumbed-down’.
His book outlines his search for the perfect checklist to support optimum performance in any operating theatre in the world. But the principles are equally applicable to the execution of many types of legal transaction. CMS Executive Director Matthew Gorman says, ‘We are very interested in how we can significantly improve client service by doing simple things well and in a uniform manner,
supported with simple tools such as checklists.’ Matthew gives the example of an M&A transaction or property sale where the same legal processes form the basis of the work irrespective of the clients involved.
underestimated when dealing with legal processes. The skill is to design checklist tools that work at both the detailed technical level and at the metalevel of the overall transaction.’
He says, ‘The importance of planning and adherence to checklist systems that are proven to work cannot be
Our commitment to clients Our commitment to quality
How we resource client matters
How we work to enhance quality and efficiency
Our approach to fees
– We provide seamless high quality service within each office and across all offices of CMS. – We provide clients with clear, commercial and pragmatic advice. – We respond promptly to e-mails and telephone calls. – We acknowledge all instructions by confirming actions and timescales and keep the client updated on any changes to schedules. – We are open with the client about potential legal or commercial conflicts that inhibit us from acting for them on a matter.
– We are honest about our capabilities and abilities to resource a matter. – If the client requires it, we provide them with a primary point of contact for all matters across CMS. – We staff matters with individuals who have the right level of technical and local expertise and seniority. – If anyone working with the client is away, we find a suitable substitute, notify the client and absorb any costs of substitution.
– We seek the client´s feedback as to how we have performed and how we can improve. – We identify value added services to offer the client. – If the client has complaints that cannot be resolved by the relevant partner, we find the appropriate person who can deal with the matter quickly and objectively. – We innovate and invest in personnel and technology in order to improve our quality of service and enhance our effectiveness. – We work with our clients to ensure that we meet their needs by developing expertise in new areas of law, in new sectors and by moving into new countries.
– We provide fee estimates at the outset of a matter or task if requested by the client. – Where we have provided an estimate and the scope of a matter or task changes, we provide a revised fee estimate. – We provide cost updates regularly and ASAP on request.
Chambers 2012 and Legal 500 2012 94 Band 1 rankings. 179 Band 2 rankings.
LISTED FIRM 2012
The Lawyer UK Top 200 Number 8 by turnover.
Legal Business Global 100 Number 23 by turnover.
The AmLaw 2012 Global 100 Number 22 by turnover. Number 7 by number of lawyers.
CMS Annual Review 2012-2013
Offices & Key Information
CMS â€“ a global perspective
Amsterdam London Utrecht Antwerp
Berlin Warsaw Leipzig Dresden Prague
Duesseldorf Cologne Frankfurt
Kyiv EUR 841m â€“ Turnover 2012 calendar year Bratislava
Brussels Luxembourg Stuttgart Paris Vienna Strasbourg Munich Zurich Ljubljana
54 offices, across 48 cities in 29 countries
Belgrade Bucharest Sarajevo
Madrid Lisbon Seville Algiers
Amsterdam London Utrecht Antwerp
Berlin Warsaw Leipzig Dresden Prague
Duesseldorf Cologne Frankfurt
Brussels Luxembourg Stuttgart Paris Vienna Strasbourg Munich Zurich
Bratislava Budapest Zagreb Belgrade Bucharest Sarajevo
Over 60 new partners in 2012
Lisbon Seville Algiers Casablanca Shanghai
Over 5,000 employees, including over Dubai 2,800 lawyers and over 750 partners
Rio de Janeiro
17 practice and sector groups
The opportunity in Europe
Whatever we know, we know through narratives, stories we believe to be true. The narrative about Europe in the last three years has been one of a never-ending crisis, social and political friction, a place best to avoid. European policy makers clearly share some of the blame for this. But it is also a lazy narrative that fits in with prejudices about the European Union, a construction that defies standard political and economic models. The narrative is as prevalent as it is false. One could make the case for Europe by downplaying the risks. But that would lack credibility. The best case for Europe is made through an explicit acknowledgement of the risks, their proper evaluation and pricing. A good place to begin this evaluation is the debt crisis – clearly the biggest macro risk that hangs over the eurozone right now. There is no point in denying the possibility of the break-up of monetary union. I think it is a small probability but clearly a non-trivial one.
Wolfgang Münchau Wolfgang Münchau is considered one of the world’s foremost experts on the eurozone. He writes the European economic column of the Financial Times and is a co-founder of Eurointelligence.com. His latest book is The Meltdown Years: The Unfolding of The Global Economic Crisis.
There are two possible outcomes: a high probability that the eurozone survives, which would go hand in hand with institutional reforms and a greater degree of centralisation and burden-sharing; and a low probability of a collapse. Neither is catastrophic from the point of view of a shrewd foreign financial or entrepreneurial investor. In both scenarios, there are potentially large gains.
“The biggest long-term danger would be for the eurozone to be trapped in a Japanese-style scenario of low growth and deflation.” While that statement might seem obvious if the eurozone survives, it might equally apply to a scenario in which it bursts – for example in the form of a north-south break-up. In that case, all assets held in the northern part would appreciate, the downside being a slower rate of economic growth in the following period due to a real appreciation of the successor currencies. In the south, the opposite is the case. Assets would depreciate, but in many cases this would be compensated for by increases in economic growth.
CMS Annual Review 2012-2013
Some of the risks to foreign investors are thus naturally hedged and the rest is hedgeable on financial markets. In fact, since the risks are asymmetric, such a hedging strategy is not hard to accomplish. The risk in the south is mainly through asset values – be it through asset price deflation or successor currency devaluation – while the risk in the north is through lower growth. From the perspective of a foreign investor, the macroeconomic situation of the eurozone is not potentially riskier than that of other regions and some of the asset valuations are relatively low – clearly the result of market hysteria.
“Judging Europe from a riskreward perspective, my analysis is that despite the multiple, and still ongoing, policy failures, the rewards outweigh the risks, since the latter can be hedged.” A similar argument applies to the political risk. European voters do not always vote for austerity, but they have consistently resisted extremist parties. Greece has come the closest, but there, too, the centrist coalition continues to enjoy a commanding lead in the polls, despite an economic contraction of 25 percent since 2007. Spain and Portugal voted for conservative governments in 2011. In Italy, the February elections produced a stalemate, but there is no whiff of extremism. The Five Star Movement of Beppe Grillo, which emerged as the single largest party, is an expression of the discontent of mostly younger voters. It challenges the European policy consensus, but it is a democratic party. The bottom line is that Italy will either converge towards Germany through structural reforms or away from Germany through a eurozone exit. Whatever it does, it will be politically legitimated. I would even go as far as to argue that the political risks in the US, stemming from persistent noncooperation between the two large parties, is larger, as is the risk of political upheaval in China or Russia.
What should matter for real-economy investors is the long run. The eurozone is still home to a large number of some of the best companies in the world. The workforce is well trained and educated. The recent, much-commented remark by a major US industrialist, that France was a bastion of low productivity, falls in the category of statements that, according to the American essayist H.L.Mencken, are, ‘neat, plausible and wrong.’ The truth is that France has higher productivity levels than the US, measured as output per hour worked. Contrary to rumours, France remains the country with the largest stock of foreign direct investment in the EU. The country no doubt has its fair share of economic problems, such as excessively high youth unemployment, but this should not be a problem for any foreign investor, rather for the French themselves. Probably the biggest opportunity for investors, especially in the field of professional services, is the likely liberalisation of the services sector without which Europe would be condemned to a self-reinforcing spiral of decline. A progressive liberalisation of labour and service markets would unleash economic activity that is not yet present and would reward those who frontloaded their investments in those sectors. Imagine also what would happen if Italy managed to get out of this crisis through reforms and higher growth. After a decade of zero real growth, Italy would not only secure its future in the eurozone, but would prosper beyond anything currently discounted in the markets. Ironically, that would also be the case if Italy were to leave the eurozone, which would result in an immediate increase in competitiveness and a simultaneous fall in the debt ratio (assuming that the debt would convert to the successor currency). Judging Europe from a risk-reward perspective, my analysis is that despite the multiple, and still ongoing, policy failures, the rewards outweigh the risks, since the latter can be hedged, since asset prices overshot in reponse to those risks, and especially if set against the risks elsewhere.
The biggest long-term danger would be for the eurozone to be trapped in a Japanese-style scenario of low growth and deflation. I see little chance that European electorates would accept such an outcome over long periods. This is also the reason why I am encouraged by the Italian election, because that is precisely what the voters rejected.
Beijing office to target Chinese pharma boom
CMS substantially expanded its operation in Beijing in autumn last year, with a brief to focus initially on the Lifesciences sector. As large pharmaceutical companies expand rapidly into China, the country is being transformed into a powerhouse for the sector, a trend that CMS is already capitalising on.
“To be in close proximity to the regulators is hugely important in the Lifesciences sector and in Beijing we have the State Intellectual Property Office (SIPO) and the State Food and Drug Administration (SFDA) right on our doorstep.” The Beijing office has been mandated to advise a large UK pharmaceutical company on its proposed China launch, in addition to receiving a number of other inbound investment instructions. CMS London Lifesciences partner Nick Beckett has relocated to Beijing to head the office. Nick is the relationship partner for Takeda, the largest Japanese pharmaceutical company, and led the team advising on its transformational EUR 9.6bn acquisition of Swiss drug company Nycomed in 2011. Nick says, ‘To be in close proximity to the regulators is hugely important in the Lifesciences sector and in Beijing we have the State Intellectual Property Office (SIPO) and the State Food and Drug Administration (SFDA) right on our doorstep.’
CMS Annual Review 2012-2013
‘We firmly believe that clients doing business in China want sector experts and not generalists. Our focus on Lifesciences in Beijing, backed by a full-service CMS capability in Shanghai, is giving us real traction.’ The Beijing office is growing quickly with a team of 14 – including a former global pharma Chinese General Counsel, a professor of law and pharmaceutical regulation, a qualified biopharmaceutical patent attorney and a PhD with extensive drug discovery experience – already recruited. A strategic partnership has been agreed with one of the leading academic pharmaceutical institutions, China Pharmaceutical University (CPU), that includes a visiting lecturer role for Nick and a rolling internship programme. Nick says, ‘China is an especially attractive mergers and acquisitions destination for European and US drug-makers hoping to ride out the wave of imminent patent expirations. It is a prime location for companies looking to diversify their pipelines and make up for any shortfall. The Beijing team is well-placed to advise clients on this huge market opportunity.’
Shanghai office marks first decade with corporate deal boost
CMS, China celebrated ten years in Shanghai this year with a slew of high profile corporate mandates, predominantly from inbound investors. Ulrike Glueck, Managing Partner of CMS Shanghai, says, ‘Our clients tend to come from the manufacturing, technology, automotive and renewable energy sectors and we see a lot of inbound work, mainly from European companies.’ The full-service office, with teams that additionally have specialised knowledge in several industry sectors, advised SMA Solar Technology (SMA) on its EUR multi-million acquisition of a majority stake in Jiangsu Zeversolar New Energy Co, Ltd, a leading inverter manufacturer in China.
“The Chinese legal market is very competitive and to have coverage in both Shanghai and Beijing demonstrates our continuing commitment to both China and to the broader Asian region.” Zeversolar offers products specifically tailored to the requirements of the Chinese photovoltaic market. With this joint venture, SMA secures access to the growing Chinese market whilst consolidating its position as global market leader.
Lawyers from CMS, China and Germany worked together on the high-profile IPO of Chinese-funded Firstextile AG. CMS advised the company on the IPO as issuer’s counsel with an international team led from Frankfurt in close cooperation with the Shanghai office. Firstextile is one of the leading manufacturers of high-end yarn-dyed fabric in the Chinese market. The company markets fabric and shirts used for uniforms by Chinese government institutions and enterprises as well as its own branded men’s shirts for the Chinese premium market segment. In 2011, the company posted revenues of EUR 131.7m. Ulrike says, ‘The company was listed in Germany yet its operations are in China. We carried out the legal due diligence here in Shanghai. The IPO market has been very quiet and this was one of the few listings in 2012.’ The deal reinforces CMS’ leading position in supporting Chinese companies in investing in Europe. These two matters capped a memorable year for CMS, China following its 10 year anniversary in Shanghai and the autumn expansion of its Beijing office (see story opposite). Ulrike says, ‘The Chinese legal market is very competitive and to have coverage in both Shanghai and Beijing demonstrates our continuing commitment to both China and to the broader Asian region.’
Ulrike says, ‘This was an important deal as SMA is one of the largest German companies in the sector and because the solar industry is becoming increasingly concentrated in China. This deal is one example of the large scale M&A projects CMS Shanghai has handled this year. Several other transactions we advised on have been signed but are still in the approval and merger control filing stages.‘
Advice on delivering Porsche for Volkswagen
Few corporate mandates have attracted the number of column inches generated by the epic merger discussions between Volkswagen (VW) and Porsche which first began in 2007. The deal, which initially started with a failed attempt by Porsche to buy VW, triggering high-profile litigation in the US, ended in July last year with VW acquiring the remaining 50.1 percent of the shares in Porsche. The transaction involved a mixed non-cash contribution and is worth around EUR 4.46bn. A team of corporate and tax lawyers from CMS Germany advised the representatives of the Federal State of Lower Saxony, as well as the independent supervisory board member, on all aspects of the complex transaction.
“The transaction involved a mixed non-cash contribution and is worth around EUR 4.46bn.” CMS Hamburg Corporate partner Christian von Lenthe, who led the deal, says, ‘This was a groundbreaking and highly innovative piece of work. The political and tax dimensions inherent in advising on state-owned share ownership added another layer of complexity and as a result the whole transaction was very partner-driven.’ By acquiring the Porsche shares, VW, which currently owns 12 automotive brands and sells more than eight million vehicles annually, aims to become the world’s largest car manufacturer. CMS Germany continues to advise Lower Saxony on all aspects of the VW stake.
CMS Annual Review 2012-2013
Sector approach pays dividends Christian highlights the automotive, energy, pharmaceutical and maritime sectors as being extremely active in Germany over the past 12 months and expects another busy year in 2013. Headline deals in addition to the Porsche acquisition included advising key client Mayfair on the merger of Germanischer Lloyd and DNV. This cross-border transaction involved both CMS Germany and CMS the Netherlands and sees the emergence of an important
player in the certification business of the maritime, oil and gas and renewable industries. CMS Germany also advised The Aenova Group, one of the world’s leading companies in the pharmaceutical and healthcare industry, on its acquisition of Euro Vital Pharma GmbH & Co. KG. An international CMS transaction team had previously advised BC partners on its acquisition of the Aenovo Group from Bridgepoint last autumn.
Cross-border team advises multi-billion dollar Dover Corp on Maag purchase
CMS was already working for Dover Corp when it was contacted in Switzerland to discuss a groundbreaking merger mandate. The planned acquisition of Maag, involving more than 20 jurisdictions and two highly sophisticated yet diversified companies was a potential game-changer for Dover Corp.
“We have managed to attract a relatively high number of transactional mandates despite the impact of the financial crisis on the Swiss market.”
CMS Zurich partner Stefan Brunnschweiler, who led the deal, says ‘We had to project manage the work across the many jurisdictions which was an immense task given the size of the transaction. This required very rigorous processes as the client wanted regular updates on fees and progress.’ Maag, which is headquartered in Zurich, Switzerland, will be part of the Downers Grove, Illinois-based Pump Solutions Group within the Fluid Solutions platform of Dover’s Engineered Systems segment. Stefan says, ‘We have managed to attract a relatively high number of transactional mandates despite the impact of the financial crisis on the Swiss market. Our clients have remained active and there has been a solid level of inbound investment work, too.’
Within 48 hours, CMS Switzerland had quoted for the entire transaction and set to work on a year-long deal requiring high-level due diligence, merger control and share price agreement advice.
30 seconds with: Anikó Kircsi Partner, CMS Budapest Corporate
Why did you decide to become a lawyer? At first I wanted to be a medical doctor but my personality clearly led me to study law. I liked it immediately and have ever since. What change would you most like to see in your practice/ sector area? Improved M&A activity. If the Hungarian and the European economies can stabilise, and business in the region and Europe can start to pick up, it is likely to get the Hungarian M&A market moving in the near future. Furthermore, eliminating the somewhat unclear legal environment regarding certain parts of Hungarian corporate law would also be beneficial for business.
How has the post-crunch regulatory environment impacted on your practice/ sector area? Rules have become more stringent regarding the potential liability of executive officers and controlling shareholders. However, we’ve yet to see how they will be implemented in practice. As regards deal types, we have seen more distressed sales, group restructurings and liquidations in recent years. What are your interests outside the law? I enjoy reading fiction and non-fiction. I also try to find the time to cook, especially baking experimental cakes with my daughter. My latest passion is Hungarian wine. If you have the chance, I would definitely recommend trying Sauska Cuvée 5 2007 or Merengó Egri Bikavér Superior 2009, St. Andrea.
Technology, Media & Telecoms
Anglo-German teams combine to seal market-moving Telefónica Deutschland IPO
In a still-struggling European IPO market, the EUR 1.5bn flotation of Telefónica’s German business was one of the most reported-on transactions of 2012. Viewed as a much-needed confidence boost to business sentiment in the eurozone, the deal won numerous plaudits from both the markets and the media. Telefónica has strong historic ties to CMS and has instructed several offices on recent deals prior to the IPO of its German subsidiary. However this deal was by far the most significant for the client, the financial markets and CMS’ cross-border capital markets practice. In addition to being the largest German IPO of the past five years – and among the biggest-ever capital markets transactions CMS has ever advised on – this groundbreaking deal marks the first time CMS has issued a 10b-5 disclosure letter to the company, the global co-ordinators and joint bookrunners (JP Morgan and UBS) and the syndicate as part of a Rule 144A offering.
30 seconds with: Anne-Laure Villedieu Partner, CMS Paris Technology, Media & Telecoms
Daniel Winterfeldt, Head of International Capital Markets at CMS London, who led the team, says, ‘This was a robust, sellout IPO and is illustrative of the growing demand for new share offerings in the European markets.’
“This was a great mandate for us to get and puts us firmly on the map for high-calibre capital markets work.” ‘It was a critical deal for Telefónica as evidenced by the huge teams of bankers and lawyers advising on the deal. This was a great mandate for us to get and puts us firmly on the map for high-calibre capital markets work.’ CMS´ Oliver Thurn, based in Munich where Telefónica has its German headquarters, added: ‘We were delighted to work with Telefónica on this large scale transaction which highlights our ability to execute complex, cross-border transactions across Europe.’
Why did you decide to become a lawyer? In addition to the fact that I found the business stimulating and interesting, I felt very much attracted by the independent status of lawyers. I decided to practice in the field of IT and data protection because these activities are in constant evolution and are closely related to public liberties and protection of individual rights. What has been your most memorable matter? I remember two significant events in my career so far. The first was one of the first investigations of an entity by the Data Protection Authorities, where I had to assist the client on an entirely new procedure. The second was my first hearing before the same Data Protection Authorities, where the client had
CMS Annual Review 2012-2013
made a huge mistake but was acting in good faith. I had to convince the authorities of this. How has the post-crunch regulatory environment impacted on your practice/ sector area? It has had consequences on self-regulation and has led to the development of compliance programmes and to the spread of compliance culture within companies. What are your interests outside the law? I love travelling in foreign countries and discovering other cultures, people and ways of living. If you weren’t a lawyer, what would you be? I would love to be a doctor.
Technology, Media & Telecoms
BWise goes Dutch on high-profile NASDAQ deal
When CMS Amsterdam partner Martika Jonk got the call last year to advise BWise, a Dutch-based compliance and risk management group, on a headline-grabbing sale to US-European exchange operator NASDAQ OMX, it was the culmination of a business relationship of more than a decade’s duration.
“The deal was very complex as the interests of the private equity shareholders and those of the founders were not always the same.” Martika had worked opposite one of the BWise founders on a separate deal in 2002 and had clearly impressed. She says, ’We had kept track of each other and I was delighted that I was asked to lead this very high-profile transaction.’
‘Also, the share purchase agreement was done under Dutch law which is very unusual in transactions involving large USbased corporates.’ Martika worked closely with other lawyers in the Netherlands and New York to guide the sale through and manage the complex, competing interests. The deal was the latest in a series of acquisitions of corporate services groups made by NASDAQ OMX over the past few years that included Directors Desk and Glide Technologies. The government, risk management and compliance (GRC) platform of BWise, which has offices in the Netherlands, Germany, France, the US and the UK, is now available through NASDAQ OMX corporate solutions. BWise CEO Robert Pijselman says, ‘The acquisition process was extremely complex and the interests were very diverse but the expert team has worked hard to achieve this excellent result. All this was done in a very short time. Looking back, I would opt for the same team again.’
CEO Robert Pijselman and founder and CTO Luc Brandts of BWise sold a part of their shares and continue to lead the company. The remaining shares will subsequently be transferred through an earn-out structure. Co-shareholder Avedon Capital, a subsidiary of NIBC, has sold all its equity shares. Martika adds, ‘The deal was very complex as the interests of the private equity shareholders and those of the founders were not always the same.’
Dubai launch creates base to service energy clients
As a world-leader in energy work, CMS’ launch in Dubai last year was the latest piece in a global jigsaw which includes Moscow, Maghreb (Algiers and Casablanca) and Rio de Janeiro. The Dubai office establishes CMS in the Middle East, which has long been a focus point for CMS and the global energy sector even before its recent emergence as a base for those companies looking to service major investment into Iraq. CMS Head of Energy Penelope Warne comments, ‘We have supported clients in this part of the world for a number of years. Having a physical presence in Dubai consolidates our Middle East offering and is a logical addition to our expanding global practice.’ CMS Energy partner Matthew Culver has relocated from London to head the Dubai office. He is already being kept busy with a number of key mandates in Iraq and also with enquiries from new and existing clients looking to spot deal opportunities in the Middle East and North Africa regions. Matthew says, ‘It’s been good to talk to people on the ground and become very clear and focused as to what their strategic aims are. Dubai is a fantastic hub from which we can service major clients such as BP and Eni and we are also in discussions with clients from many of the 30 jurisdictions we cover.’ CMS has been BP’s primary legal adviser in Iraq since it first
CMS Annual Review 2012-2013
acquired rights to the giant Rumaila field in 2009. The firm initially advised BP on the terms of the Rumaila contract with the Iraqi authorities and on the arrangements with its joint venture partners, PetroChina and South Oil Company of Iraq.
“Dubai is a fantastic hub from which we can service major clients such as BP and Eni and we are also in discussions with clients from many of the 30 jurisdictions we cover.” Since that time, CMS has advised BP on most of the contracts it has placed to upgrade and replace the infrastructure in Rumaila so as to increase oil production, including multi-billion dollar contracts for drilling and workover rigs, wells services and equipment, power plant projects, water treatment plants and office and accommodation construction.
CMS Energy partner Ian Herbert, who manages the day-today BP Iraq relationship, says, ‘This is truly cutting-edge work and our expansion into Dubai really helps us support BP’s management team in the region.‘
“Most of our lawyers have been seconded to major energy companies and we feel our in-depth sector knowledge really sets us apart from our rivals.”
30 seconds with: Fritz von Hammerstein Partner, CMS Hamburg Energy
Looking beyond the eurozone has always been a key focus for the CMS Energy team, particularly as clients focus more heavily on new and emerging markets. Matthew concludes, ‘Most of our lawyers have been seconded to major energy companies and we feel our indepth sector knowledge really sets us apart from our rivals. Our experience with BP and Eni in Iraq gives us a great basis of knowledge with which to advise other clients looking to do business in the region.’
Why did you decide to become a lawyer? If I had possessed the necessary spatial imagination and creativity I would have become an architect. Lacking these abilities, I ended up as a lawyer. There is nothing to complain about as to be a lawyer in an environment such as CMS is one of the best jobs you can have. It is full of challenges, with a large share of exciting projects, with influence and a great level of personal freedom. What has been your most memorable matter? When I joined CMS Germany in 1992, my first case was to advise Statoil in the planning and permit procedures for the Europipe pipelines connecting the Norwegian gas fields with the German gas system. The pipelines met fierce public resistance as they crossed the Wadden Sea National Park, an important bird sanctuary
in the North Sea. We obtained the permits and successfully defended them in court. The project was completed on time and without environmental damage. This was an exceptional experience for a young partner. Which person has had the most beneficial impact on your career? At the University of Freiburg I attended lectures in constitutional law given by Professor Ernst-Wolfgang Böckenförde who later became a judge at the Federal Constitutional Court. His lucid lectures and publications on the prerequisites of modern civilised democratic societies and the rule of law sparked my interest in constitutional and public law. What are your interests outside the law? I am interested in modern history, politics and architecture.
Unified Patent Court to give cross-border Lifesciences boost
The long-awaited launch of a Unified Patent Court (UPC) with exclusive jurisdiction for litigation relating to European patents has been the major talking point in intellectual property circles this year. The news follows four decades of political and legal wrangling and creates a one-stop shop for medical, chemical, pharmaceutical, hygiene and technology companies seeking to protect their patents in Europe.
“This is a huge event for the Lifesciences sector as patent enforcement is crucial to companies seeking to protect their pharmaceutical innovations.” The creation of the UPC means that – once the Court has been established for daily practice – patent owners will only need to litigate in one UPC court to get an injunction for EU member states instead of battling in each separate jurisdiction where their patents have been infringed.
The previous regime led to ‘forum shopping’, where parties sought to take advantage of disparities in domestic courts’ interpretations of harmonised European patent law. The development will have a huge impact on legal representation in the Lifesciences sector as clients gravitate towards firms with expertise in each European jurisdiction so as to present a case covering all the cross-jurisdictional infringements in one application to the new court. CMS has long had a UPC task force discussing in detail the implications of the changes. Its new cross-border patents team is already advising clients in relation to the new regime and on ways to litigate against potential infringements. CMS Utrecht Intellectual Property partner Willem Hoorneman says, ‘This is a huge event for the Lifesciences sector as patent enforcement is crucial to companies seeking to protect their pharmaceutical innovations. ‘Irrespective of which CMS office a client comes to in the first instance, we can provide an immediate cross-border assessment of how to run the case.’ The UPC will be made up of a Court of First Instance composed of a central division (with a seat in Paris and two sections in London and Munich) and by several local and regional divisions in those member states which have signed up to the Agreement. A Court of Appeal will be located in Luxembourg. CMS’ coverage in all four key court locations is a further boost to its Lifesciences practice. Leading Lifesciences clients represented by CMS include Takeda, Amgen and GE Healthcare.
CMS Annual Review 2012-2013
Pharma 3.0: avoiding the ‘patent cliff’
Lifesciences – key stats
The pharmaceutical sector has been hit hard in recent times by the expiry of patents for blockbuster products and a lack of new medicines to replace them.
‘The resulting uptick in pharmaceutical M&A activity, where companies seek to buy innovation, has led to us working very closely with our corporate, commercial and IP colleagues on such deals.’
– CMS acted for 16 of the top 20 global pharma companies in the last 12 months
He adds, ‘To be able to field a multi-disciplinary, cross-border team where every lawyer is a pharma expert allows us to get these complex deals done despite the many regulatory hurdles.’
–C MS handled more M&A deals in Europe in the Lifesciences sector than any other firm in each of the last three years
As a result, leading pharma companies are looking to acquisitions, licencing deals and new tech-related products such as smart phone apps to fill the profits gap. CMS Lifesciences Head David Butts says, ‘Top companies are being forced to look at new ways of making money due to the expiration of key patents and a depleted pipeline.’
30 seconds with: Willem Hoorneman Partner, CMS Utrecht Lifesciences
–C MS Lifesciences group is made up of more than 180 lawyers globally
Why did you decide to become a lawyer? My father was an attorney at law who had his own law firm in Amsterdam. During family dinners he used to tell great stories about exciting court suits and legal dilemmas, of course without disclosing privileged details. This would often lead to lively and interesting legal discussions about ‘do’s and don’ts’ in ethical behaviour. So, studying law became obvious. As a student I was very fond of pop music and this aroused my interest in copyright and other intellectual property rights. During my military service, I was an army officer in a technical platoon and this, mixed with my legal interests, led to a preference for patent law and to me finally becoming an IP lawyer. What has been your most memorable matter? My involvement as a leading patent litigator in a very complex
– CMS advised Takeda Pharmaceutical, the largest Japanese pharmaceutical company, on its transformational EUR 9.6bn acquisition of Swiss Drug company Nycomed.
cross-border pharmaceutical patent fight which lasted over two years and ended in a settlement. Which person has had the most beneficial impact on your career? For more than 25 years I have been working closely together with my good friend and colleague Hendrik Struik from whom I learned a lot about the law and who has supported me from the beginning in everything I have undertaken. Outside my firm I have been influenced by former CMS UK partner Stephen Whybrow. He taught me how to approach the market and develop a practice and by also being a very kind and generous person who always shared contacts and experience with other CMS colleagues from other firms. If you weren’t a lawyer, what would you be? A singer in a rock and roll band.
Banking & Finance
Closing big-ticket financings in CEE
As a former investment banker with UniCredit, CMS Prague Banking partner Mark Segall was involved in some of the most notable leveraged finance and financial sponsor-related transactions in Central and Eastern Europe. Mark joined CMS’ banking group three years ago and proceeded to work with the CEE team to close some of the biggest deals in the region. Strong client relationships with UniCredit and ING in particular – the two banks often work together on syndicated deals – have been a key factor in the smooth running of the deals.
“Not only did the syndicate comprise a rare combination of leading European and Russian banks, but the transaction is also an outstanding example of the value CMS can add.” In 2012, a cross-border CMS team (which included CMS lawyers in the Czech Republic, Ukraine and the Netherlands) advised ING Bank as coordinator of a group of banks on a EUR 416m loan to DTEK, the largest, privately-owned, vertically-integrated company in Ukraine. Other banks in the syndicate included Sberbank of Russia, UniCredit Bank Austria, Gazprombank and Sberbank (Switzerland.) The facility has two tranches with a tenor of three and five years and will be used for general corporate purposes, including the financing of DTEK’s capital expenditure.
According to Nick Vozianov, Director, Loan Syndication, ING Commercial Banking, ‘From a professional point of view I could not find a single negative from this relationship and from [CMS’] support on the deal.’ The size and combination of international and Russian liquidity made this one of the most significant transactions in Ukraine last year. Mark, who led the deal, says ‘Not only did the syndicate comprise a rare combination of leading European and Russian banks, but the transaction is also an outstanding example of the value CMS can add when advising on financing to leading domestic companies that make their entry into the international syndicated loan market. ‘A deep understanding of the requirements of borrower and lender in achieving their aims was key to a successful conclusion of the transaction.’
“These are sophisticated clients who are getting used to new financing techniques and different ways of doing business.” The transaction is the second Ukrainian deal CMS has advised on that involves a syndicate including UniCredit and ING within the last 12 months. Earlier last year, the firm advised PJSC Ukrsotsbank, the Ukrainian branch of UniCredit, and ING on a USD 100m corporate and acquisition financing to Ukrainian agribusiness Kernel Holding, which is listed on the Warsaw Stock Exchange. Mark says, ‘These are sophisticated clients who are getting used to new financing techniques and different ways of doing business. ‘At CMS we ensure our clients are guided through the transaction at a pace they feel comfortable with. There are cultural differences to deal with and we are very sensitive to this.’
CMS Annual Review 2012-2013
Banking & Finance
Breaking into the EMTN big league
September 2012 will be remembered as a seminal moment for the CMS European capital markets practice when a multi-office team won a competitive pitch to be the sole legal advisers on Société Générale’s EUR 50bn European Medium Term Note (EMTN) programme.
“Changes to the European Prospectus Directive last year added an extra layer of complexity to the transaction as more information is now required in the base prospectus.” CMS was also adviser to the dealers on several bond issuances under the programme for an amount in excess of EUR 3.3bn. The high-profile transaction saw CMS Paris Capital Markets head Marc-Etienne Sébire work closely with CMS UK Capital Markets chief Jason Harding. Marc-Etienne says, ‘There has been a lack of financing by the banks so a lot of bonds have been issued on the market.
30 seconds with: Andrew Ivison Partner, CMS London Banking & Finance
These are often multi-jurisdictional offerings as seen in the Société Générale programme which was done under French and English law.’ He adds, ‘Changes to the European Prospectus Directive last year added an extra layer of complexity to the transaction as more information is now required in the base prospectus.’ The deal was the highlight of a number of top EMTN programmes closed by CMS this year, with French and German teams combining on the following key covered bond mandates: – Advising Natixis, the arranger of the EUR 40bn BPCE SFH programme – Representing BNP Paribas and BFCM as arrangers on the EUR 30bn Crédit Mutuel-CIC Home Loan SFH programme – Advising Crédit Agricole CIB, the arranger of the EUR 10bn Crédit Mutuel Arkéa Public Sector SCF programme. Marc-Etienne says, ‘The work we did in 2012 acting for arrangers and dealers proves to me that banks trust CMS’ ability to handle these very complex cross-border transactions.’
Why did you decide to become a lawyer? Because my tutor at Cambridge University arranged my interview and CMS London offered me a job. (And I read Law at University because my parents didn’t want me to read History. It all could have been so different...) What has been your most memorable matter? The London Underground PPP – one of the largest transactions we have ever acted on - was designed to finance and deliver new rolling stock and signalling systems, track replacement and station upgrades as well as the operation and maintenance of the whole Underground network and infrastructure over a 30-year period. It took nearly five years to reach financial close in April 2003. At its peak I had a team of over 40 lawyers working with me.
What do you think the next big development in your practice/sector area will be? It’s already under way with ‘alternative lenders’ replacing banks in providing debt finance to companies and projects in the infrastructure and real estate sectors. The ‘alternative lender’ community is expanding to include debt funds and other financial institutions that are looking to diversify their investment activity. What are your interests outside the law? I cycle, wear out cross-trainers in the gym, swim and go walking. I also follow Harlequins Rugby Club, go scuba diving and continue searching for the perfect red wine – so far a burgundy heads the field. If you weren’t a lawyer, what would you be? A marine biologist (see scuba diving above) or maybe a history teacher.
Anglo-French teams put fizz into Coca-Cola JV
Global drinks producer Coca-Cola has long put its faith in CMS, instructing the firm on its competition, commercial, corporate and tax law matters. The client’s environmental credentials are key to its global image and a state of the art recycling facility in France was one of its strategic aims for 2012.
“This was a very complex transaction due to the joint venture parties being vastly different organisations and because the technologies we were dealing with were so groundbreaking.” The original call for the mandate was made to CMS London relationship partner Louise Wallace, who initially advised CocaCola on the UK aspects of the transaction before working with CMS France on the local deal negotiations. The deal saw Coca-Cola Enterprise (CCE), leading producer and distributor of non-alcoholic ready-to-drink beverages in France, make a EUR 6.5m investment in a joint venture with APPE, France’s leader in recycled polyethylene terephthalate (PET), to increase the recycling rate of plastic bottles in France. The investment will expand the food grade PET production of the plant of Sainte-Marie-la-Blanche (Côte-d’Or) by 20,000 tonnes, an increase of 70% of the capacity of the site. An additional EUR 2.2m investment from APPE has also been made in the joint venture. The combined investment will be used to expand the plant of Sainte-Marie-la-Blanche. This will be achieved with the creation of a new recycling line in the facility, the launch of a joint programme for research and innovation in new advanced technologies for recycling and the securing of a multi-year supply agreement from the site of Sainte-Marie-la-Blanche to CCE.
CMS Annual Review 2012-2013
CMS Paris Corporate partner Isabelle Buffard-Bastide, who led the deal, says, ‘This was a very complex transaction due to the joint venture parties being vastly different organisations and because the technologies we were dealing with were so groundbreaking. ‘The shareholder agreement was subject to intense negotiation as there were so many competing interests at stake. It was an innovative deal and took around nine months to complete.’ The deal was one of a number of cross-border consumer products mandates undertaken recently by CMS France. Isabelle comments, ‘Our clients seem to like the model of having global reach but very specific sector knowledge in each jurisdiction.’
Cross-border mergers advised on by CMS France Consumer Products group –N issan France: merger of Nissan Belgium and Nissan Netherlands by their parent company – P icard Surgelés creation of joint ventures in Sweden and Belgium – F uji Film: merger of French and Dutch arms
– Media Saturn (Group Metro): disposal of 34 stores by Media Saturn in France to HTM/Boulanger – Alkor, Venilia: merger of the French subsidiary with its German parent company
30 seconds with: Nathalie Pétrignet Partner, CMS Paris Consumer Products
What has been your most memorable matter? An experience I had with the new EU settlement procedure in cartel cases which took effect in July 2008. I was fortunate enough to experience the first application of this procedure with the Commission team (the Head Director of Cartel and the case team). As it was the first time this procedure was implemented, it gave us the opportunity to build a relationship with a team who made great efforts to work constructively with us. What do you think the next big development in your practice/sector area will be? The French government has announced its intention to introduce collective redress into national law. The draft bill has not yet been publicly disclosed, but according to reliable sources, it would aim to permit a large number of individuals who have
suffered similar material losses to band together in an attempt to recover antitrust damages. Which person has had the most beneficial impact on your career? Francis Delbarre, who recruited me 24 years ago at CMS France. He is retired now yet was one of the best competition lawyers in the market. Through his personal example, he taught me how to give the best practical advice to the client, while remaining accessible, good-humoured and maintaining an agreeable work atmosphere. What are your interests outside the law? I like everything that has to do with the ‘art of living’: gastronomy, wine, music and gardening. If you weren’t a lawyer, what would you be? I would be a photographer or a journalist.
New anti-corruption group launched as Bribery Act bites
Bribery and corruption concerns currently feature towards the top of most corporate agendas in the light of recent scandals such as Rolls Royce and BAE. Although the introduction of tough new anti-corruption laws in the UK Bribery Act 2010 has not led to an avalanche of prosecutions so far, it has already had a palpable impact on business practices.
“We expect to see the first significant prosecutions under the Bribery Act in the next couple of years, which will give us a steer on how the courts will interpret the more uncertain aspects of the legislation.” The primary purpose of the Act was to create a corporate culture where corruption is not tolerated. This has led to a surge in corporates developing and improving their internal controls and procedures to prevent wrongdoing. It has also led to far greater awareness of these issues and a willingness by staff to report concerns.
30 seconds with: Torsten Lörcher Partner, CMS Cologne Dispute Resolution
Against this backdrop, CMS has launched a cross-jurisdictional group focusing on anti-bribery and corruption, in addition to sub-groups for litigation, arbitration and alternative dispute resolution (ADR.) The team is currently advising clients in connection with ongoing corruption investigations and in developing procedures to meet the requirements of the Bribery Act and other relevant legislation across the CMS jurisdictions. CMS London Disputes partner Omar Qureshi says, ‘Anti-corruption mandates tend to break down into general advisory work, where we work alongside a client to improve procedures and controls, and secondly, crisis management. Both types are often multi-jurisdictional, although the latter also requires us to mobilise specialist teams extremely quickly.’ CMS’ unrivalled presence across Europe makes the anti-bribery and corruption group an attractive option for corporates who need joined-up, specialist advice in this area. Omar says, ‘This is a growing area of corporate risk globally – not just in the UK. We expect to see the first significant prosecutions under the Bribery Act in the next couple of years which will give us a steer on how the courts will interpret the more uncertain aspects of the legislation. But I also expect to see more activity in this sphere in other jurisdictions too. I can’t see any signs to suggest that anti-bribery issues will fall off the corporate agenda.’
What has been your most memorable matter? A complex plant engineering and construction dispute. We had a difficult case with odds against us yet worked long and hard with a good team and managed to succeed. It was great to win this case. What do you think the next big development in your practice/sector area will be? The internationalisation of commercial relationships will increase even further with a growing use of arbitration. At the same time, cost pressure will make it necessary to streamline arbitration and to make it more efficient.
CMS Annual Review 2012-2013
Which person has had the most beneficial impact on your career? My father, who was an arbitration practitioner and who introduced me to this area of law. Also, my mentor, Professor Karl-Heinz Böckstiegel, who is a leading figure in international arbitration and who has taught me a lot. What are your interests outside the law? Andrea (my wife) and Ella (our little daughter), friends, tennis and classical music. If you weren´t a lawyer, what would you be? I always wanted to be a pilot (if there hadn’t been this multitasking issue…).
Solar market upheaval leads to increased disputes activity
The price of solar modules has significantly declined in recent years due to intense competition and the reduction of subsidies for solar energy. The abrupt changes in market conditions have led to a huge rise in disputes affecting all areas of the solar energy business. The German solar market, still the world leader in 2012, has been particularly hard-hit leading to a significant uptick in work for disputes lawyers with the requisite sector expertise. CMS Germany has been particularly active this year as the market tries to cope with the effects of the market changes. CMS Cologne Arbitration partner Torsten Lörcher says, ‘The caseload of disputes concerning the solar industry has significantly increased over the last 18 months with disputes affecting all areas of the solar industry and all steps in the production chain. Because of the international nature of the solar industry and, in particular, the active role of Asian parties in this field, arbitration is the dispute resolution mechanism of choice in most cases.’ Matthias Schlingmann, a CMS Dispute Resolution partner in Hamburg, says, ‘We have a team of very experienced arbitration practitioners at CMS and, because of our deep expertise in the solar sector, our lawyers are acting as counsel or arbitrators in a large number of the solar disputes. ‘With the biggest solar companies increasingly based in China, we believe that CMS’ expanding practice there will be crucial to us in the future.’ (See International section pages 12-13.)
CMS launches 2012 Guide to Arbitration
CMS has launched the fourth edition of its Guide to Arbitration. The two-volume book gives clients and practitioners involved in arbitration a detailed overview of the law and practice in 32 jurisdictions as well as arbitration materials such as international conventions, arbitration rules and further helpful information. CMS London Arbitration partner Jeremy Wilson, who coedited the guide, says, ‘We are seeing an uptick in the number of international arbitrations as companies seek swifter, more accessible resolutions to cross-jurisdictional disputes.’
As an example, CMS is currently acting for an international clean energy technology company in relation to a dispute concerning the termination of a joint venture project in Mozambique with an international mining company. The dispute raises issues of Brazilian and English law under related agreements. CMS London is currently working in collaboration with CMS Lisbon and Brazilian local counsel to provide strategic advice during the initial stages of the dispute. The text is available online as an e-guide at: http://eguides.cmslegal.com/arbitration
Binding Corporate Rules: the time to act is now
The proposed new General Data Protection Regulation, currently in debate at the European Parliament, indicates that a stricter regime is all but inevitable. Non-compliance with the new legislation may attract fines of up to EUR 1m or 2 percent of annual turnover. Under existing UK law, the highest fine that can be imposed by the UK’s data protection supervisory authority (DPA), the Information Commissioner’s Office (ICO), is GBP 500,000. The implications for corporates are clear – prioritise data management within your organisation or risk incurring large fines and public exposure.
‘They can be seen as a data protection commitment made to employees, clients, service providers, regulators and competitors.’
Both the current and the expected future data protection legislation include a provision restricting the transfer of personal data outside the European Economic Area to locations which do not have adequate data protection regimes.
The application process involves working initially with one lead DPA, selected due to a number of factors, including HQ location, the culture of the organisation and where liabilities for data protection breaches are handled.
“Two outcomes of the new rules could be longer approval times and a less personalised process, both in terms of a more formulaic, bureaucratic application structure and a reduction in the time companies can have with the regulator while building their BCR framework.”
The ICO is currently one of the more experienced DPAs, along with those in France and the Netherlands, having led almost half of the approved BCRs now in place including that of conglomerate GE, which was the first, in 2005.
Companies are increasingly establishing binding corporate rules (BCRs) as a way of ensuring that personal data is transferred internally in a compliant manner. The number of approvals – which take an average of 12 months to achieve – is now approaching 40. While BCRs have evolved over the years and are widely recognised and used for intra-group transfers in the context of data controllers, the proposed new rules enshrine BCRs for the first time within the legislation. BCRs therefore remain core to data protection compliance and can be used by data processors as well as controllers. CMS London Commercial partner and expert in the field of data protection Emma Burnett says, ‘BCRs are a set of internal procedures and rules that an organisation adopts and which represent a guarantee as to how data will be handled.’
CMS Annual Review 2012-2013
There is a certain amount of work that should be undertaken up front, including coordinating stakeholder buy-in and analysis of what needs to be changed to improve standards. The European Union Article 29 Working Party, a group made up of representatives from the DPAs of each member state, has issued guidance and a set of framework BCRs to expedite this process.
Up-to-date employee training will need to be put in place and regular internal process audits implemented. Even after approval, BCRs need to be updated when the organisation acquires or disposes of entities. It is likely that DPAs will increase the number of post-approval audits as the number of BCRs in the market grows. Emma says, ‘Two outcomes of the new rules could be longer approval times and a less personalised process, both in terms of a more formulaic, bureaucratic application structure and a reduction in the time companies can have with the regulator while building their BCR framework. ‘The gap before local implementation of the new rules therefore presents the ideal opportunity to adopt BCRs and to work with the regulators before the new regime is brought in.’
CMS launches Commercial webinar series
Launched in 2012, the webinars focus on those commercial topics of most relevance to in-house counsel. Each event has a multi-jurisdictional theme and is led by senior, specialist lawyers from a variety of countries where CMS is present, usually two to four jurisdictions. Seven webinars have taken place so far: – Reducing the Risk of Adverse Consequences from the Eurozone Crisis – Legal Professional Privilege – Impossibility of Performance – The Termination of Agency and Distribution Agreements – Key Contract Provisions Relevant to Warranties – EU Data Protection – Council Regulation on Jurisdiction & the Enforcement of Judgments
30 seconds with: Dirk Loycke Partner, CMS Stuttgart Commercial
Webinars are free to attend and clients are able to join as long as they have access to a computer, Internet connection and a phone. For those unable to attend the live webinar, a recording is made available after the event so clients can still reap the benefits of the series. CMS London partner and Head of the Commercial Law Group Sarah Hanson says, ‘Clients have provided us with some very positive feedback saying the webinars have been concise, clear and to the point. The events were considered to be informative, interesting and structured to give clients a succinct comparison between countries.’ New topics and webinars are constantly being planned and we are always keen to hear from our clients on particular topics they would find of interest for future webinars. Sarah Hanson would be happy to listen to your suggestions and thoughts and can also let you know how to register. She can be contacted at email@example.com
What has been your most memorable matter? We advised a German manufacturer of car interiors with regard to its supply relationship with Formula 1 and sports car manufacturer McLaren. The process was lengthy and complicated but in the end we got the deal done. One of the highlights of this matter was the final round of negotiations which took place in the McLaren headquarters near London which are absolutely breathtaking. On top of that, we were treated to a test drive in one of their limited edition roadsters. If you weren’t a lawyer, what would you be? I would probably be a sports reporter. When growing up in Berlin, I worked for a local radio station (RIAS-Radio in the American Sector) reporting on youth sports events and hosting a live radio show in the afternoon. This was great
fun and some of my former colleagues actually went on to have a good career in the media business. Why did you decide to become a lawyer? Being a lawyer provides me with the opportunity to assist companies in getting things done, be it a complex agreement or enforcing their respective rights/claims. In addition, it is a very international business so I get the chance to meet people from different cultures, legal backgrounds and systems which provides interesting challenges. What do you think the next big development in your practice/sector area will be? As we work with a lot of clients in the automotive industry, the area of e-mobility will further develop both from a technical standpoint and from the legal side, in order to keep up with new challenges.
Competition & EU
Sealing swift, decisive multi-acquisition clearance for BC Partners
Last year, long-standing CMS private equity client BC Partners embarked upon an ambitious corporate buying spree as it attempted to consolidate a leading position in the field of solid oral dosage delivery systems. BC Partners acquired three competitors – Aenova, Temmler and EVP – in quick succession with the issue of EU merger clearance potentially proving huge obstacles to completion of the deals. The CMS Competition Group has advised BC Partners for the past 14 years across multiple jurisdictions and represented the client in many transactions before the relevant competition authorities. This comprehensive understanding of both BC Partners´ business, and the sectors in which it operates, allowed CMS to deliver a speedy resolution to all competition issues that arose. Merger control filings in Austria, Italy, Cyprus, Norway and Germany were necessary for the acquisition of Aenova. CMS Stuttgart Competition partners Harald Kahlenberg and Christian Treib checked the merger control filing requirements worldwide and coordinated the filings in all five countries.
CMS took the strategic step of not applying for a referral of the case to the European Commission as it would have meant proceedings before one competition authority, the European Commission, based on the principle of one-stop shopping rather than having five proceedings before national competition authorities.
“We calculated that a full referral procedure and a full filing procedure before the European Commission would have brought us into 2013. Therefore we stuck to five national filings and everything worked very quickly as expected.” Harald Kahlenberg, who led the cross-border CMS team, says, ‘The parties wanted to make sure we obtained all clearances before Christmas (we were successful with this) and we calculated that a full referral procedure and a full filing procedure before the European Commission would have brought us into 2013. Therefore we stuck to five national filings and everything worked very quickly as expected.’ Further merger control filings in Austria, Italy, Cyprus, the Netherlands and Germany were necessary for the add-on acquisition of Temmler.
CMS Annual Review 2012-2013
Competition & EU
The client again wanted to be able to complete the transaction before Christmas and so CMS decided not to ask for a referral to the European Commission but again to have merger control proceedings in each country.
“These highly strategic deals all closed in a very tight timeframe.” As this was an add-on acquisition with overlaps, it was scrutinised very closely by the competition authorities. But with the CMS team working overtime to project manage lawyers in multiple jurisdictions, all clearances were on the table at the beginning of December 2012. This would not have been possible without the highly experienced team fielded by CMS which enabled BC Partners to close the transaction earlier than expected in the middle of December 2012.
30 seconds with: Bernt Elsner Partner, CMS Vienna Competition
Due to the team’s success in achieving multiple clearances so quickly, BC Partners decided to embark on a third transaction – the acquisition of EVP – before the end of 2012. Only one filing was needed, this time in Germany, again handled by Harald and Christian. The merger control proceedings went according to plan and clearance was received so that this transaction was also closed well before the client’s deadline. Harald concludes, ‘These highly strategic deals all closed in a very tight timeframe. In light of the extra planning time it now has, BC Partners may carry out further add-on acquisitions in the field of solid oral dosage delivery systems in 2013.’
Why did you decide to become a lawyer? I had an idealistic approach and felt that fighting for justice and representing individuals or entities who could not otherwise reach a fair solution was a good plan. It has been possible to do this, at least to a certain degree, and I continue to give part of my time to pro bono matters. How has the post-crunch regulatory environment impacted on your practice/ sector area? The number of merger control cases dropped due to the significant reduction in M&A deals. Meanwhile, activity in public tenders increased because public contractors spent more and the number of economic operators looking for these opportunities grew due to the fact that their business in Central and Southern Europe had dropped. I also see a much higher awareness of the need for competition compliance
advice, which is a good thing because free competition needs a fair legal framework. Which person has had the most beneficial impact on your career? Prof. Dr. Karl Spielbüchler, former judge at the Constitutional Court, with whom I had the honour to work as his academic assistant. He had the greatest impact on my ability and ambition to seek legal excellence and to describe complex legal issues in a very concise way. What are your interests outside the law? Definitely my family, with whom I love to go sailing, skiing and play music. If you weren’t a lawyer, what would you be? If I weren’t an attorney I would be a judge. If I weren’t a lawyer, I would probably be a mathematics professor.
Employment & Pensions
Crisis talk: guiding Spanish clients through the employment minefield
In February 2012, at the height of the financial crisis, dramatic changes in Spanish employment law were introduced in a concerted attempt to tackle an unemployment rate of almost 25 percent. The enactment of the reforms will make it easier for companies to change the working conditions of employees. Aimed at increasing employer confidence by allowing companies to adapt the conditions of workers to the changing fortunes of their business, the reforms were the most radical ever seen in Spanish employment law.
With companies such as Banco Espírito Santo, Nokia Siemens, MetLife, Takeda and Honeywell all on the CMS employment client list, it was inevitable that there was a significant crossborder flavour to many of the large employment matters advised on by CMS Spain this year.
“We were on the cusp of a whole new set of employment legislation and it was a fascinating yet demanding time.”
For lawyers in the field, this was a once-in-a-lifetime opportunity to help shape the creation of a whole new body of legal precedent.
Fernando estimates that around 25 percent of his practice involves multi-jurisdictional mandates.
CMS Madrid Employment & Pensions partner Fernando Bazán López says, ‘We were on the cusp of a whole new set of employment legislation and it was a fascinating yet demanding time. We literally had to start from scratch in interpreting the law and advising our clients in the most innovative way we could.’
He says, ‘Long-term relationships are crucial in this field and people demand commercial, business-savvy advisers as opposed to those who just tell them what the law is. We believe in giving clients definite answers as to what path to take, not lengthy opinions and a bewildering number of options.’
30 seconds with: Susana Afonso Costa Partner, CMS Lisbon Employment & Pensions
What has been your most memorable matter? Each case is unique but I will never forget the one situation where I dismissed the same person in different companies on more than one occasion. What do you think the next big development in your practice/sector area will be? The reduction of severance pay when employment contracts are terminated. This trend has already begun to happen recently. Which person has had the most beneficial impact on your career? There have been many influences, but the most
CMS Annual Review 2012-2013
important has probably been Paulo Trindade Costa. He was my university colleague and we began our careers side by side. Paulo always believed in me and gave me confidence. He taught me how to relate to clients, gain their trust and never let me give up. What are your interests outside the law? I’m addicted to jogging and I like playing paddle, too. I love travelling, not only to encounter new cultures but also to enjoy the glamour that each country has to offer. This year I would like to go to Asia.
Employment & Pensions
The CMS Guide to Dismissals The CMS Guide to Dismissals provides CMS’ international clients, including those doing business across Europe and into Asia, with a summary of local laws across 24 countries. It aims to simplify the employment minefield, helping clients understand the similarities and differences between each jurisdiction. The first part of the Guide deals with termination procedures for employees and the second part for managing directors.
With more and more companies facing dismissal issues with respect to employees and managing directors in different jurisdictions, the Guide helps clients deal practically with rapidly changing employment laws resulting from the economic crisis and subsequent panEuropean austerity climate. Published in December 2012, CMS used social media and webinars to publicise the Guide and inform clients.
CMS Madrid employment and pensions partner Fernando Bazán López says, ‘We do not believe in swamping people with lots of marketing brochures. Our clients want swift, easy-tounderstand know-how delivered in an efficient manner. ‘People are looking at the Guide and can really see the extent of our employment expertise and global reach.’
Insurance & Funds
Leading for MetLife on largest-ever European insurance reorganisation
CMS is no stranger to MetLife, having advised the US insurance company on the European aspects of its headline-grabbing USD 16bn acquisition of Alico in 2010 – a deal that significantly increased MetLife’s presence in Europe. Following that acquisition, MetLife is streamlining and reorganising its European group. The reorganisation involves 19 jurisdictions in Europe and has been described by PwC as the largest and most complex ever conducted in the European insurance sector.
“Our knowledge of the MetLife and Alico businesses and our ability to handle cross-border aspects were key factors in us getting this mandate.” A CMS team, led by Insurance partners Paul Edmondson and Chris Southorn in London, successfully pitched to advise MetLife on the project at the beginning of 2011. The project is now entering its third year.
CMS Annual Review 2012-2013
Paul Edmondson says, ‘This was a hugely significant deal for MetLife and for us as their advisers. To win this mandate in a competitive pitch was very satisfying.’ The project involves a substantial corporate reorganisation, a series of cross-border mergers and transfers of businesses between insurance companies. The CMS team is made up of CMS lawyers in the UK, Spain, Italy, Switzerland, Belgium, Poland, Romania, Bulgaria, the Czech Republic, Hungary, Slovakia, Ukraine and Serbia, and has called on advice from CMS colleagues in Germany, Russia and France. Chris Southorn says, ‘Our knowledge of the MetLife and Alico businesses and our ability to handle cross-border aspects were key factors in us getting this mandate’. The UK transfers, the corporate reorganisation and the Italian, Spanish and Portugese cross-border mergers all completed in late 2012. A cross-border CMS team has since been instructed by MetLife on the 2012 acquisition from Aviva of life and pensions companies in the Czech Republic, Hungary and Romania. Chris Southorn led the team which involved CMS lawyers in London, Prague, Budapest and Bucharest.
Insurance & Funds
Mitsui continues European expansion after successful German launch
After advising Mitsui – the world’s seventh largest non-life insurer in the world – on admitting a German-based carrier in 2012, CMS is now guiding the client through its wider European expansion. A cross-border team, led by CMS Cologne Insurance partner Winfried Schnepp and involving CMS teams in Paris, Italy, the Netherlands, Spain and Belgium, has been mandated to advise on all corporate, tax, regulatory and employment work for the client. Winfried says, ‘Mitsui is now present in Germany, Slovakia and France and should be active in Italy, the Netherlands, Spain and Belgium this year. ‘This insurer is a very active client for us and we are able to undertake highly complex matters globally due to our strong insurance sector expertise in each jurisdiction.’
30 seconds with: Laura Opilio Partner, CMS Rome Insurance
CMS Germany counts a host of top insurance companies as clients including Allianz, HDI and AXA.
“This insurer is a very active client for us and we are able to undertake highly complex matters globally due to our strong insurance sector expertise in each jurisdiction.” Looking to the year ahead, Winfried concludes, ‘The insurance sector is much more confident than it was a year ago with better share prices and more liquidity. ‘The consolidation phase within the sector is pretty much over so clients are focusing on their own brands and the future. It is an exciting time for us.’
Why did you decide to become a lawyer? Since my student days, I have always been interested in civil and procedural law and, therefore, my university choice was simple. In addition to this I also attended a postgraduate course in civil procedural law. What has been your most memorable matter? An arbitration matter concerning intellectual property rights which I followed as a trainee. It was my first experience of the actual work of a lawyer. At the time, the firm I worked for had many famous contemporary artists among its clients and these types of proceedings were quite frequent. What do you think the next big development in your practice/sector area will be? Legal practice has changed in
the past years and the request for legal specialisation has grown constantly in this period. In my opinion, the areas of law in which we will register most developments will be insurance and life sciences. Which person has had the most beneficial impact on your career? The managing partner of my firm, Pietro Cavasola. We started working together as soon as I passed my exam as a lawyer and since then we have continued working together. Our firm was quite small at the time, with only four partners and has grown to become the firm it is now over a period of 20 years. What are your interests outside the law? Arts and cinema.
Real Estate & Construction
Sportsdirect.com begins Euro roll-out as discount retail shines
UK corporate success story Sportsdirect.com continues to defy the downturn with eye-catching growth in its domestic market. Buoyed by its achievements, the company has begun an ambitious pan-European expansion with CMS working as its trusted legal adviser.
Pierre-Axel says, ‘All continental European activity for the client is managed through Belgium and we have strong ties to the management team here.
Led out of Brussels by CMS Real Estate partner Pierre-Axel Chabot, the project involves corporate and real estate work in five CEE countries (Hungary, Slovakia, Slovenia, Poland and the Czech Republic) to establish around ten test shops of 2,000-2,500 sqm in an eight-month period in jurisdictions where the client has no existing structures.
International sales still make up less than 12 percent of Sportsdirect.com’s entire retail turnover, yet the group has gone on record as declaring that it plans to operate in all 17 countries that have adopted the euro in five years’ time. In addition, it has started exploring other European countries.
“The expansion of Sportsdirect.com is a big story in the retail sector and these are perfect economic conditions for discount retailers. Real estate is cheaper to lease and customers appreciate the pricing of the products during these difficult times.” If the tests are successful, Sportsdirect.com plans to increase its coverage in each of the five CEE countries and to look at separate Italian and Spanish launch programmes.
CMS Annual Review 2012-2013
‘Our cross-border team provided local advice that was prompt and to the point.’
For the current financial year, the group has set a target of opening 10 to 15 stores in three to five new countries. At the end of its financial year in April 2012, Sportsdirect.com already had more than 480 stores in eight countries. The group’s recent move into Portugal was considered a major success and it has grown quickly, opening around ten stores. Real estate niche markets, such as retail and logistic real estate, are currently outperforming traditional property workstreams and CMS has capitalised heavily on this trend.
Real Estate & Construction
“All continental European activity for the client is managed through Belgium and we have strong ties to the management team here.” Pierre-Axel says, ‘The expansion of Sportsdirect.com is a big story in the retail sector and these are perfect economic conditions for discount retailers. Real estate is cheaper to lease and customers appreciate the pricing of the products during these difficult times.’
Looking ahead to the financial year 2013-14, Pierre-Axel predicts another busy year for the retail sector. He says, ‘Retail will remain active as we see more professional investors return to the market in addition to more private equity activity. Before the crisis, 90 to 95 percent of the money for an acquisition was provided by banks. They can’t do this any longer so we see alternative finance players progressively filling the gap.’
In addition to Sportsdirect.com, CMS Belgium is also working with leading clients including Camper, Calzedonia, Hard Rock Café, Ludendo, Godiva, Brico, Delhaize and Prémaman.
30 seconds with: Wojciech Koczara Partner, CMS Warsaw Real Estate
Why did you decide to become a lawyer? I wanted to be a lawyer from the age of 14. I like it when things are well organised and lawyers are supposed to be better organised than artists. What has been your most memorable matter? Assistance with the acquisition of a listed building, the Hotel Bristol, which is located next to the Presidential Palace in Warsaw. What do you think the next big development in your practice/sector area will be? A real estate expansion in Poland in cities other than Warsaw.
Which person has had the most beneficial impact on your career? Hilary McDowell, former head of the CMS CEE Real Estate & Construction practice. She led the team in a way which allowed junior partners to expand their business and introduced me to several clients. Based on this help, I built a significant business. If you weren’t a lawyer, what would you be? A historian writing books about the 20th century. I may still do this when I retire.
Getting to grips with the global tax clampdown
One consequence of international austerity has been the governmental crackdown on alleged tax avoidance by international companies operating outside their domestic markets. The practice of multi-nationals shifting profits to countries with low tax regimes is not illegal, yet leading companies have faced severe criticism in recent months for what is perceived as a moral failure to pay tax in the jurisdictions where profits are actually generated. With Britain, France and Germany among a host of countries calling for a unified global tax clampdown, it is clear that cutting-edge legal advice in this area is at an absolute premium.
the client and issue a defence claim while simultaneously dealing with any criminal proceedings that arise (and instructing separate criminal counsel). Due to CMS’ marketleading reputation for tax work in France, it is dealing with around half the headline cases currently being investigated.
CMS Paris Tax partner Agnès de l’Estoile-Campi says, ‘In France, tax authorities have recently adopted a hardline approach to foreign companies operating in the country. They are very proactive and are also attempting to bring criminal charges against management. This new stance has come about without any change in the law and our clients are obviously very concerned.’
As an example, CMS France is currently representing a large US real estate fund on one of the first test cases and is also advising large foreign companies engaged in e-commerce activity in France.
The authorities will typically get pre-authorisation by a judge to remove all documents, mailboxes and other materials from a foreign company’s French HQ, sometimes in a dawn raid. Very often, a tax audit follows. CMS will be called in to assist
30 seconds with: Giovanni Battista Calì Partner, CMS Rome Tax
“This is very lawyer-intensive work and few firms have the capability to handle these types of investigation.”
Agnès says, ‘This is very lawyer-intensive work and few firms have the capability to handle these types of investigation. We work with other CMS colleagues in jurisdictions such as Luxembourg if there is an angle there. ‘It is still too early to say how this new tax clampdown will play out. For clients, these are worrying times so we are working hard to find the best, most innovative solutions we can.’
Why did you decide to become a lawyer? Taxes are in the middle between business and law and their implications strongly influence business decisions. My decision to work as a lawyer as opposed to an in-house tax specialist simply derives from the greater autonomy and variety of cases you can experience in a law firm rather than in the tax department of a company. What has been your most memorable matter? The Revenue Agency contested the existence in Italy for ten years of the permanent establishment of a foreign company but we successfully negotiated with them a reduction to 5 percent of the initial liability for our client. This solution was a great example of pragmatism that was highly appreciated by the client.
CMS Annual Review 2012-2013
How has the post-crunch regulatory environment impacted on your practice/ sector area? The adverse economic cycle, more than the regulatory environment, has had a big impact. It has decreased the budget of clients, reduced the number of deals and increased the aggressiveness of the Revenue Agency. All of this needs to be understood by law firms in order to react in the proper manner. This is what we are doing. If you weren’t a lawyer, what would you be? A winemaker, for sure.
CMS guides Coface through cross-border restructuring
The race to shore up financial institutional balance sheets as a result of the stringent new Basel liquidity guidelines has led to a slew of corporate activity in the past year.
“The tax aspects of this restructuring were highly complex as so many different jurisdictions had to be considered.” Few deals have been as complex as the international restructuring of French credit insurance giant, Coface, which embarked on a series of national and cross-border mergers involving its Austrian, German and Italian subsidiaries and their local branches in other European jurisdictions.
CMS Vienna Tax partner Sibylle Novak, who led the CEE part of the deal, comments, ‘The tax aspects of this restructuring were highly complex as so many different jurisdictions had to be considered. In the CEE region, for example, we had to coordinate teams in Austria, Bulgaria, Poland, Slovakia, Romania, Hungary, the Czech Republic, Lithuania and Latvia. ‘We also project managed the transaction across all practice areas including tax, corporate, employment and regulatory.’ Coface, which posted revenues of EUR 1.6bn in 2011, provides companies around the world with protection against the risk of financial default of their clients, both on the domestic and export markets.
This was the type of deal that CMS was created to do: a complex, multi-office, multi-practice area transaction that required completing to a tight deadline. The overall project was led by CMS France and the deal team included lawyers from more than 21 European jurisdictions.
Hotels & Leisure
Rolling out the hotels of the future for CitizenM
The beginnings of the CMS relationship with high-end global hotels chain CitizenM can be traced back to 2002 when CMS Corporate partner Roman Tarlavski was working at the legal arm of a global accountancy firm.
CitizenM is a new breed of hotel operator that aims to provide affordable luxury for international travellers. It currently operates in Amsterdam, Glasgow and London with further launches imminent in New York and Paris.
While there, he worked on a number of hotel deals with a colleague who subsequently became the strategic brains behind CitizenM.
“This is an innovative, high-tech client that is growing at an extraordinary rate. It is very satisfying and engaging work.”
When Roman, based in Amsterdam, joined CMS a decade ago, the client had used another Dutch law firm on a domestic deal but required an organisation with global reach. Roman was asked to introduce the firm to CMS UK for advice on a number of British hotel launches and, when it decided to roll out its concept globally, CMS was instructed as its primary international adviser.
30 seconds with: Philippe Rosenpick Partner, CMS Paris Hotels & leisure
Roman says, ‘The client uses CMS in countries where we have an office and we recommend firms that we know and like in jurisdictions where we don’t. This is an innovative, high-tech client that is growing at an extraordinary rate. It is very satisfying and engaging work.’
Why did you decide to become a lawyer? I decided to become a lawyer so as to remain independent and free, to be able to continue working after retirement and to have the opportunity of meeting a very diverse range of people. What do you think the next big development in your practice/sector area will be? Technical skills will not be the most important thing when it comes to attracting clients. This was the development of the last decade. An understanding of strategy, economics and business will be the key qualities demanded by clients. Which person has had the most beneficial impact on your career? It is not a person but my previous law firm. When I was recruited
CMS Annual Review 2012-2013
by the firm, the managing partner was dismissed and the corporate partner resigned. After six months in the firm (with two and a half years of practice), I found myself on the front line, handling huge cross-border transactions and corporate finance transactions such as privatisations. It was very hard work but it helped me progress quickly in my career. How has the post-crunch regulatory environment impacted on your practice/ sector area? A greater focus on value added work rather than on pure technical skills, thus pushing us to combine a number of skills other than legal advice. Unlike the crisis which occurred in the late 90s, we have not really created new legal products since the last financial crisis began.
Infrastructure & Projects
Filling the funding gap with alternative lending
With the retrenchment of bank lending being one of the defining themes of the economic crisis, it was only a matter of time before insurers, pension funds and specialist investment funds moved into the financing gap. Such entities are seeking to become a key source of funding for corporates and other borrowers, a trend fully capitalised on by the CMS Infrastructure & Projects group.
“Clients come to us because they know we can handle complex, highly structured deals.”
The team also advised a fixed income fund on an investment in a combined heat and power energy centre with a 25 year off-take contract, as well as a prominent self-storage operator on a GBP 100m secured 15 year fixed-rate loan sourced from a major UK insurer in order to refinance a significant portion of the company’s core bank facility. CMS London Finance partner Nancy Eller says, ‘Clients come to us because they know we can handle complex, highly structured deals, but also because we have expertise in the specific sectors they are investing in, notably infrastructure, energy and real estate. Alternative financing requires innovative thinking and high partner visibility and we feel that this sets us apart from our rivals.’
Recent deal highlights include advising Aviva Investors, the asset management arm of Aviva plc with assets under management of GBP 260bn, in purchasing a substantial portion of the Bank of Ireland’s infrastructure loan portfolio, a sale required by the bank in order to deleverage its balance sheet to improve its core Tier 1 capital ratio. This work has led to CMS advising on other loan portfolio acquisitions as banks step up their asset sales to comply with new capital restrictions.
30 seconds with: Abraham Nájera Pascual Partner, CMS Madrid Infrastructure
What has been your most memorable matter? Probably the financing of the acquisition of Fadesa by Martinsa, a EUR 4.1bn transaction which closed in 2007, just a few months before the collapse of the real estate sector in Spain. It was one of the biggest transactions I have been involved in, but I have especially good memories of the people I had the opportunity to work with during the intense months of negotiations. What change would you most like to see in your practice/ sector area? I would like to see fewer debt restructuring transactions and more new financing deals in Spain. It would be a definite sign that the current situation is changing and a reason for hope for a lot of people.
Which person has had the most beneficial impact on your career? It is difficult to name only one. I am constantly learning from all the people I work with, but I am especially proud of my team. They give a meaning to my job and they always help me remember that we are working with people and we should never forget that. What are your interests outside the law? I really love reading books, listening to music and playing the bass guitar with other CMS colleagues in our band, Control de Cambios. If you weren’t a lawyer, what would you be? I would like to be a musician but it is not easy to earn a living as a bass player. So I will continue working as a lawyer, at least for now.
Financial crisis creates drive for greater IP protection
With intellectual property (IP) estimated to constitute the major part of a company’s value, it is unsurprising that IP lawyers report greater activity during tougher economic times. Companies seek to exploit their existing ideas to the maximum in times of slower innovation creating a consequent uptick in disputes. A good example is the dispute between CMS client Sky and the Austrian Public Broadcasting station. This was referred to the European Court of Justice in respect of the interpretation of the Audio Visual Media Directive to allow access to the TV signal from an exclusive TV rights holder. The recent creation of a Unified Patents Court (see also Lifesciences section p20), where companies will only need to litigate in one court instead of battling in each separate jurisdiction where their patents have been infringed, is a breakthrough development in the area of intellectual property. Patent Litigation Group leaders CMS Stuttgart partner Matthias Eck and CMS London partner Jeremy Morton have pushed the agenda on the UPC, allowing clients to be kept completely up-to-date with any developments.
CMS Vienna IP partner Egon Engin-Deniz says, ‘As a multi-jurisdictional firm with sector expertise in industries driven by innovation, the agreement to create a Unified Patents Court is important news for the IP group.’
“The economic slowdown does not have a negative impact on IP work as, if anything, it is even more crucial that companies protect their key products, trademarks and patents in times of slower growth.” ‘Clients will make use of this new system as soon as possible and we have made very specific efforts to ensure that they are fully prepared.’ CMS’ IP practice has also been bolstered by the significant expansion in 2012 of the Beijing office, led by CMS London partner Nick Beckett, that will focus initially upon the Lifesciences sector. Patent litigation has become an increasingly important part of the global IP practice. CMS is currently advising the leading crop protection and seeds corporation, Syngenta, in regard to a series of product piracy issues. Most recently, the client was successfully represented in plant protection matters in Austria, Germany, the Netherlands, Belgium and CEE. Egon says, ‘The economic slowdown does not have a negative impact on IP work as, if anything, it is even more crucial that companies protect their key products, trademarks and patents in times of slower growth.’ CMS’ IP team recently won several new consumer product clients including Camper, Louis Vuitton and L’Oréal.
CMS Annual Review 2012-2013
UK mid-market and CEE provides growth in rejuvenated PE market
Few markets have been hit as hard by the global economic crisis as private equity (PE), reliant as it was on cheap bank debt and foreseeable exit opportunities. Yet the tide appears to be turning with CMS outperforming rivals to close a number of significant deals for PE houses over the past 12 months.
“In Q4 2012, we had a wave of closings, and generally found clients to be more confident, helped by increased bank appetite, at least for the quality assets.”
30 seconds with: James Grimwood Partner, CMS London Private Equity
The firm has grown its institutional clients over the last few years, with Sovereign Capital and Risk Capital Partners among others, and has expanded its relationship with AnaCap Financial Partners. Regular clients such as LGV Capital and LDC have continued to be active. LGV’s joint GBP 100m investment with Hutton Collins in leisure operator Novus Leisure was a deal highlight, together with two public-to-private transactions for LDC in the TMT sector. CMS London Corporate partner James Grimwood says, ‘We found the mid-market to be pretty resilient domestically this year with pockets of activity in central and eastern Europe and Germany. In Q4 2012, we had a wave of closings and generally found clients to be more confident, helped by increased bank appetite, at least for the quality assets.’
Why did you decide to become a lawyer? I managed to secure a holiday job one summer at Cameron Markby Hewitt, as it then was, and was offered a job at the end of it. I think my 20-year old self felt that being a City lawyer would be pretty interesting, varied and a good platform for whatever I might end up doing in the decades to come. What do you think the next big development in your practice/sector area will be? There is likely to be a shakeup in the private equity (PE) sector over the next couple of years as certain funds will miss targets and struggle to raise new funds. Plenty of investment is flowing into the sector as an asset class but investors are inevitably picking and choosing very carefully the PE houses with whom they place their money.
Which person has had the most beneficial impact on your career? Andrew Sheach, the Head of Corporate at CMS in London, with whom I did most of my PE deals as an associate. I won’t give some sort of sycophantic tribute as, being British, that would make us both intensely uncomfortable. If you weren’t a lawyer, what would you be? I would probably be in PE itself. It’s a fascinating and dynamic sector to work in and PE houses have some of the most talented individuals I’ve had the pleasure of working with. And, contrary to some lawyers, I don’t come out in a ghastly rash when I see a spreadsheet.
People & Development
Aussie rules: creating the transactional blueprint of the future Juan Crosby
With a front-row seat observing the way that some of the world’s leading companies are driving efficiencies and value within their own businesses, Juan is passionate about the evolution of services in his own profession. He says, ‘As a firm, it is critical that we think about the market and how our services are delivered. Every law firm needs to think about what their legal product is now and what it will look like in five, ten and twenty years time - particularly given the potential for commoditisation of certain legal services.
Having grown up and qualified in Australia, CMS London Commercial and Technology partner Juan Crosby worked for a global law firm in the nation’s capital, Canberra, and in Sydney before joining CMS London in 2005.
“It is important to deliver within a shortened timeframe and capture more value for the client. As lawyers, we should look to support the client agenda and be totally focused upon their key drivers for doing the deal.” Juan was made a partner last year after advising on a string of high-profile technology outsourcing deals for leading clients of the firm. At the European Outsourcing Association Awards in April of this year, he was awarded a special commendation as leading individual in the Outsourcing Advisor of the Year award category. He recently led negotiations on a 20-year strategic software development and licensing agreement transforming the technology underpinning the core business activities of one of the world’s largest companies. Juan says, ‘Companies of all sectors are increasingly dependent on technology to support and drive their business forward and this, together with the very large sums that form a part of their IT budget, means that many companies are looking much more strategically at their key technology partners and the contractual arrangements that underpin these relationships. ‘Larger companies are moving towards creating multi-vendor ecosystems that consolidate the number of suppliers and spend to a select few in return for more strategic, robust contracts that recognise the key role those vendors play in supporting the company’s business.’ 44
CMS Annual Review 2012-2013
‘The industry is becoming more standardised in terms of documentation and process so there are efficiencies that can be created in terms of the way we work and what we can achieve for our clients. Ultimately, our clients want to see a faster return on investment and it is crucial that we facilitate that. For CMS, we need to lead this and evolve our offering in the best way possible to stay in front of our competitors.’ Juan is currently working with a number of technical and commercial advisers in the outsourcing industry to look at how the transaction process can be made more efficient and how it will look in the future. He adds, ‘It is important to deliver within a shortened timeframe and capture more value for the client. As lawyers, we should look to support the client agenda and be totally focused on their key drivers for doing the deal, one of which is delivering the services earlier and working with industry to achieve that.’ Juan counts CMS London Energy partner Penelope Warne as having one of the biggest impacts on his career so far. He says, ‘Penelope has been an incredibly supportive mentor and has helped me not only to develop technically as a lawyer but also to understand how law firms and the industry work. She has also encouraged me to be as innovative and creative as possible in thinking how the legal market will evolve.’ Outside the law, Juan is interested in travel and the arts, particularly contemporary literature and theatre. He also looks for new ways to balance the long hours of partnership with the joys of his family which includes a lively eight-year old daughter. Looking to the future, Juan says, ‘In five to ten years, I see CMS as being a top player globally while retaining our leading position across Europe.’ ‘I personally hope to play a major part in the development of that and the creation of a technology practice for the firm that is recognised as a market leader in providing optimised, efficient legal services that better drive our clients’ needs.’
People & Development
The partnership juggling act Sibylle Schnyder
Sibylle views the increasing number of cross-jurisdictional real estate deals advised on by the Swiss office as a key measure of its success in recent years. ‘While CMS is known primarily as a leading European law firm, our expansion into new jurisdictions such as China and the Middle East has been important for us in the Real Estate team as it throws up lots of new opportunities.’
As the first woman to make partnership in CMS Switzerland and with a one-year old daughter to care for, 2012 was undoubtedly a memorable year for Zurichbased Real Estate partner Sibylle Schnyder. Sibylle first joined CMS Switzerland in 2002 before completing her postgraduate studies at Cambridge University three years later. She then worked as a foreign associate at CMS London before travelling the world for several months. Sibylle returned to the Real Estate and Project Finance department of CMS Switzerland in 2006, making partnership this year. Sibylle says, ‘I initially wanted to become a diplomat but changed my mind after beginning my legal studies. After completing my exams I focused on litigation before becoming part of the Real Estate team launched by my mentor [CMS Zurich partner] Stefan Gerster.’
“I initially wanted to become a diplomat but changed my mind after beginning my legal studies. After completing my exams I focused on litigation before becoming part of the Real Estate team.” Within the next five years, Sibylle envisages working hard to bring new clients into the firm and building a successful Real Estate practice. She is also focused on becoming a role model for women at CMS. She says, ‘I think it is very important to set a good example to other female lawyers at CMS by showing it is possible to juggle the competing demands of partnership and family life.’
Sibylle’s work revolves around advising institutional investors on large property acquisitions and hotel transactions. She recently advised a Swiss real estate fund managed by CMS Zurich’s top client Credit Suisse on the EUR 246m acquisition of a portfolio of three branded hotels in Switzerland. Sibylle says, ‘Switzerland was less affected by the global financial crisis than many European countries and the real estate market has boomed in recent years. ‘Nonetheless, there is a real danger of a bubble forming and we are beginning to help clients restructure deals in addition to working on new transaction opportunities for others.’
Corporate Social Responsibility
Creating shared value through CSR
CMS has made Corporate Social Responsibility (CSR) a core element of its business strategy. Here are some of the initiatives undertaken in the past year.
Pro Bono Advocates for International Development – A4ID A4ID is a global charity that believes the law should be used more effectively to eradicate global poverty. Through an innovative broker service, it brings together legal experts and those working towards the Millennium Development Goals, ensuring all those who need legal advice can access it.
“Talk to any of our lawyers who do pro bono work and they will tell you how rewarding it is on a professional and personal level and how the work enhances their abilities and careers.” As a legal partner of A4ID, CMS has been involved in pro bono projects across a range of jurisdictions during 2012. Guy Pendell, partner at CMS London, comments, ‘We treat pro bono work in exactly the same way as we treat chargeable work. Talk to any of our lawyers who do pro bono work and they will tell you how rewarding it is on a professional and personal level and how the work enhances their abilities and careers.’ Sport Special Olympics The International Special Olympics movement provides sports training and competition programmes for children and adults with intellectual (learning) disabilities. Since 2011, CMS UK and Central and Eastern Europe (CEE) has raised over GBP 150,000 as a result of 70 separate fundraising initiatives across seven different countries, devoting over 2,000 hours to organising events and volunteering. The money raised in London has allowed Special Olympics Great Britain to employ a London Inclusion Officer to raise participation and awareness levels in the six boroughs of East London where the 2012 Olympic Games were held. Over the two years of involvement with Special Olympics, the partnership has progressed beyond fundraising to include mentoring for the UK CEO of Special Olympics and engaging with clients to join forces in volunteering.
CMS Annual Review 2012-2013
Corporate Social Responsibility
Diversity CMS Diversity Statement
Arts CMS the Netherlands and De Nederlandse Opera (DNO)
As a multi-jurisdictional organisation with customers and employees spanning a multitude of countries, cultures and professions, diversity is of fundamental importance to CMS. Our commitment to promoting diversity and inclusion is broad, encompassing the following: – developing and supporting a diverse workplace in which all are welcome regardless of gender, marital status, race, colour, national or ethnic origin, social or economic background, disability, religious belief, sexual orientation or age – creating an environment that encourages new ways of thinking and working, and values the contributions and perspectives of all – especially those with experience, ideas and work styles different from our own – supporting all staff with a broad range of policies, practices and procedures which recognise individual contribution and performance, develop each individual’s capability and give everyone an equal opportunity to use their talent and fulfil their potential – providing a workplace free from discrimination, harassment and bullying, where everyone is treated with dignity and respect.
After a successful sponsorship of DNO for two seasons, CMS became DNO’s European partner in 2011.
Diversity The Stonewall Workplace Equality Index (WEI) The WEI measures employers’ efforts to tackle discrimination against lesbian, gay and bisexual (LGB) employees. The index is the most vigorous benchmarking tool in the industry and over 370 blue chip organisations enter each year. In the second year that it has entered the WEI, CMS UK and CEE is listed among the top 100 employers in 62nd position, scoring 150 out of a possible 200 points. CMS is one of only eight law firms featured in the Top 100.
Since that time, in addition to sponsoring the opera, CMS and DNO have jointly initiated two outreach programmes. OperaFlirt aims at introducing people under the age of 30 to opera. The highly successful programme was awarded the 2009 SponsorRing for the most innovative sponsoring project in the Arts category. OperaLounge is a forum where people from different sectors are invited to share their views on current topics around opera-related themes.
“DNO is an international opera house that is characterised by its musical and substantive quality and originality. There we connect with CMS, which is known for its quality, craftsmanship and innovation.” Dolf Segaar, Managing Partner of CMS the Netherlands, comments, ‘We very much value the quality of DNO and the surprising ways they have of making opera a modern art. That is why CMS shares their aim of bringing opera to as wide an audience as possible.’ Els van der Plas, Managing Director at The Amsterdam Music Theatre and DNO, adds, ‘DNO is an international opera house that is characterised by its musical and substantive quality and originality. There we connect with CMS, which is known for its quality, craftsmanship and innovation. Moreover, it is also one of the major international players in its sector.’
Daniel Winterfeldt, CMS partner in London who led the submission, comments, ‘It´s been really encouraging to see the great support given to our networks by people at all levels across CMS. Participating in this sort of rigorous benchmarking exercise raises the bar for everyone and also helps our other networks to learn and develop themselves.’
Contact CMS Legal Services EEIG Frankfurt am Main Barckhausstrasse 12-16 60325 Frankfurt am Main Germany T: +49 69 717 01-500 F: +49 69 717 01-550 E: firstname.lastname@example.org www.cmslegal.com
Created by Dragon Rouge www.dragonrouge.co.uk Written and edited by James Baxter www.jamesbaxtermedia.com
Printed by Park Communications on FSC® certified paper. Park is EMAS certified; its Environmental Management System is certified to ISO 14001 and it is a CarbonNeutral® company. 100% of the inks used are vegetable oil-based, 95% of press chemicals are recycled for further use and, on average, 99% of any waste associated with this production will be recycled. CMS Legal Services EEIG is a European Economic Interest Grouping that coordinates an organisation of independent member firms. CMS Legal Services EEIG provides no client services. Such services are solely provided by the member firms in their respective jurisdictions. In certain circumstances, CMS is used as a brand or business name of, or to refer to, some or all of the member firms or their offices. CMS Legal Services EEIG and its member firms are legally distinct and separate entities. They do not have, and nothing contained herein shall be construed to place these entities in, the relationship of parents, subsidiaries, agents, partners or joint ventures. No member firm has any authority (actual, apparent, implied or otherwise) to bind CMS Legal Services EEIG or any other member firm in any manner whatsoever. CMS member firms are: CMS Adonnino Ascoli & Cavasola Scamoni (Italy); CMS Albiñana & Suárez de Lezo (Spain); CMS Bureau Francis Lefebvre S. E. L. A. F. A. (France); CMS Cameron McKenna LLP (UK); CMS DeBacker SCRL / CVBA (Belgium); CMS Derks Star Busmann N. V. (The Netherlands); CMS von Erlach Henrici Ltd (Switzerland); CMS Hasche Sigle, Partnerschaft von Rechtsanwälten und Steuerberatern (Germany); CMS Reich-Rohrwig Hainz Rechtsanwälte GmbH (Austria) and CMS Rui Pena, Arnaut & Associados RL (Portugal). CMS offices and associated offices: Aberdeen, Algiers, Amsterdam, Antwerp, Barcelona, Beijing, Belgrade, Berlin, Bratislava, Bristol, Brussels, Bucharest, Budapest, Casablanca, Cologne, Dresden, Dubai, Duesseldorf, Edinburgh, Frankfurt, Hamburg, Kyiv, Leipzig, Lisbon, Ljubljana, London, Luxembourg, Lyon, Madrid, Milan, Moscow, Munich, Paris, Prague, Rio de Janeiro, Rome, Sarajevo, Seville, Shanghai, Sofia, Strasbourg, Stuttgart, Tirana, Utrecht, Vienna, Warsaw, Zagreb and Zurich.
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