DRT PDF Arcelormittal 12-03-22.Indd

WORLD RECOGNITION of DISTINGUISHED GENERAL COUNSEL

GUEST OF HONOR: Simon Evans Group General Counsel, ArcelorMittal

THE SPEAKERS

Simon Evans Sir Nigel Knowles Richard Price Group General Counsel, Joint CEO & Managing Partner, Partner & Co-Head — ArcelorMittal DLA Piper LLP Corporate Practice Shearman & Sterling LLP (London)

Samantha Mobley Rani Mina John Brinitzer Partner & Leader — Global Partner, Mayer Brown Partner, Cleary Gottlieb Steen & Competition Practice International LLP (London) Hamilton LLP (Paris) Baker & McKenzie LLP (London)

TO THE READER: General Counsel are more important than ever in history. Boards of Directors look increasingly to them to enhance financial and business strategy, compliance, and integrity of corporate operations. In recognition of our distinguished Guest of Honor’s personal accomplishments in his career and his leadership in the profession, we are honoring Simon Evans, General Counsel of ArcelorMittal, with the leading global honor for General Counsel. ArcelorMittal is the world’s largest steel company, operating in approximately 60 countries. His address will focus on key issues facing the General Counsel of an international corporation. The panelists’ additional topics include operating in diverse countries and multiple regions; capital markets transactions; compliance; international litigation; and cross-border mergers and acquisitions.

The Directors Roundtable is a civic group which organizes the preeminent worldwide programming for Directors and their advisors, including General Counsel.

Jack Friedman Directors Roundtable Chairman & Moderator

Simon Evans is Group General Counsel Formerly, Mr. Evans was European and Vice President of ArcelorMittal, the Counsel at Rohm and Hass Company world’s leading steel company. (now Dow Chemical) and prior to that he worked at the law firm Taylor Joynson Mr. Evans joined the company in Garrett, London. September 2001 as General Counsel and is based in the London corporate office. He Mr. Evans is a graduate of Oxford has over 20 years’ experience in corporate University and the College of Law, and commercial law in both industry and Guilford. Mr. Evans is married with three private practice. daughters.

Simon Evans Group General Counsel

ArcelorMittal ArcelorMittal is the world’s leading steel to getting employees in other functions and mining company. Guided by a phi- throughout the group to think about what losophy to produce safe, sustainable steel, they could do differently. Our innovative it is the leading supplier of quality steel thinking leads to improved performance, products in all major markets, includ- increased sustainability and solutions to ing automotive, construction, household global challenges. appliances and packaging. ArcelorMittal operates in 60 countries and employs ArcelorMittal’s operating philosophy is to about 260,000 people worldwide. produce safe, sustainable steel, and reflects our deep commitment to protecting and As the world’s leading steel and mining improving the environment in which company, our business operations extend we work and live. Steel is an infinitely from the mining of iron ore and coal to recyclable material: steel can be used and the production of the full range of steel used again in the steelmaking process. products and services. Innovation perme- Across the steel industry, carbon dioxide

ates everything we do at ArcelorMittal: (CO2) emissions per ton of crude steel from the scientific expertise of our research made are now half what they were 40 and development (R&D) department years ago.

JACK FRIEDMAN: Good morning. I am Jack Friedman, Chairman of the Directors Roundtable. We have a special program today, presenting the leading world honor for corporate counsel to Simon Evans of ArcelorMittal. Our mission is to organize programming for Boards of Directors and their advisors, who include General Counsel, bankers, accountants, top executives, and the CEOs who work with the Boards.

The Directors Roundtable is a civic group that has held 800 events in 21 years in 14 countries. I am the volunteer Chair. We have never charged a penny for anybody to attend any event.

The format today is that our Guest of SIMON EVANS: Thank you, Jack! Good largest mining groups in the world, with Honor will make his opening remarks, morning, ladies and gentlemen. A free operations in over 20 countries around followed by a brief presentation by each of event is always a good way to get the crowds the world: Europe, North America and the panelists related to his or her specialty. in, so I’d like to congratulate you on that! South America, Africa and Asia. Turnover The speakers will then have a roundtable Thank you, everyone, for coming. I think last year (2010) was U.S.$78 billion. We discussion among themselves, and later it’s just as well we didn’t hold this yester- have 270,000 employees around the world, with the audience. day, because there were lively demonstra- making key material for use in the con- tions across the city. struction industry, automotive, household The transcript of the event will go out to appliances, and countless other products, about 150,000 leaders globally. I must begin by thanking the Directors of course. Our product is fully recyclable: Roundtable for this recognition. I feel steel is one of the most recycled products In terms of our Guest of Honor, I’d like very honored to receive this award, which in the world. to mention a few of the highlights of his I accept on behalf of not just myself, but career. Simon came from an Army family, all my colleagues at ArcelorMittal, and it’s As you may be aware, ArcelorMittal is which automatically means that he started very much a shared honor. headquartered in Luxembourg, but has with a multinational outlook at a young listings in Luxembourg, Brussels, Paris, age, and his later background was Oxford Apparently, I’m meant to enlighten you all, Amsterdam, Spain, and New York. So, University PPE; the College of Law at to start with, about ArcelorMittal, the com- for example, we do press releases in three Guildford; and private practice with the pany — some of you are more familiar with languages — English, French and Spanish; firm then called Taylor Joynson Garrett. it than others — and then maybe make a our main Board of Directors come from at He then became European counsel for few remarks on what it means, what a gen- least six different nationalities. So I think the chemical company Rohm and Haas; eral counsel faces in such an organization. it’s certainly true to say that if any company followed by his current position as the Then we have a number of distinguished is international, then ArcelorMittal is an GC for the last ten years at ArcelorMittal. panelists who can help us discuss other international group, which is perhaps a Additionally, he is a fan of rugby and matters afterwards. theme that we can pick up during today’s cricket, and he’s married with three discussion. daughters. Before the program I asked Being a lawyer — a quick disclaimer at the him about having three daughters with beginning — all these remarks I make are, It’s a group that’s grown very rapidly over good manners, and as their father, having of course, my personal views and should the last two decades, through mergers, to have good manners himself. Daughters not be taken as official ArcelorMittal com- acquisitions, joint ventures and privatiza- can be demanding children for their dads. pany policy. tions, as well as significant organic growth.

It is a pleasure to have Simon Evans make ArcelorMittal is the world’s largest steel In the ten years that I’ve been General his opening remarks. manufacturing group, and also one of the Counsel at ArcelorMittal, the number of

employees in the listed group has increased, of Directors weren’t already focusing, there from about 16,000 up to today’s 270,000. is an increasing trend toward imposing So that, itself, has been certainly an personal criminal liability on directors — it integration challenge. The phenomenal is certainly something that we see more of growth of this company has, of course, across the world, as a way of making those been led very much by the bold and directors pay attention. visionary CEO, Lakshmi Mittal, and it’s worth saying, perhaps, that whilst there Identifying the legal risks is, of course, are a lot of multinational industry groups, only part of the role. The real challenge is in the steel sector this was revolutionary to develop the solutions to mitigate those in its time. Up until that occurred, the risks, and of course, within the time con- steel industry had been very much single- straints of whatever urgent transaction we country-based companies. It’s not an easy might be dealing with, as well as the cost industry to succeed in, having historical and budgetary pressures. cyclicality and this old heavy industry image. The lessons of the recessions of So the company needs skilled lawyers the early 1990s and 2008-2009 certainly who also know and understand the busi- resonate in today’s uncertain times as the ness and strategy of the company. That world struggles with global imbalances and means not only legal participation in busi- sovereign debt issues in Europe. If there ness internal discussions, but also getting are any finance ministers or European joint venture vehicles, which of course close to the actual operations and under- commissioners here, I encourage them to have their own challenges, and again, a standing them. This includes visiting the resolve this situation as soon as possible for topic which may develop today. manufacturing sites or the mines. As I all of our interests! was saying earlier to one of the panelists, In an ideal world we probably wouldn’t the expression being “at the coalface” JACK FRIEDMAN: We’re going to pass need any lawyers. I don’t want to upset is generally used metaphorically by most these remarks on! anyone in the room! Anyway, the world of us, but then if you have actually been isn’t ideal at the moment, so no worries half a mile underground in a coal mine SIMON EVANS: Thank you, yes. They from that perspective! in Kazakhstan, you know that this has a may be busy elsewhere but we all wish them slightly more literal and tangible meaning, success in resolving these local difficulties! So, what are the challenges facing the as I’ve experienced myself. General Counsel of a multinational com- The rise of emerging economies is a key pany, and what is his or her role? I’m A close working relationship and part- feature of today’s world-impacting interna- supposed to say a few words on this nership between business and legal is tional groups, and whether they’re there topic. There are obviously a number of vital. Of course, the in-house lawyer must as the markets for these companies’ prod- so-called stakeholders. First, of course, is know when and how to use the external ucts or as competitors for customers or the company’s Board of Directors, and resources of private practice lawyers. Some for scarce raw materials. Amongst those the General Counsel is needed to provide of you may fall into that category, so you’ll emerging economies, China stands out as advice to the board and senior executives. be pleased to know that we value those the most obvious example. In our industry, He and his team help the company find its sorts of services. They’ve got to be used for example, 45% — nearly half — of the way through the legal minefield of today’s judiciously to leverage their own in-house world’s steel is actually made within China complex world. There are legal risks and capability. today; and China is also the world’s largest regulations covering just about everything consumer of steel. today, from securities law to the environ- The subject of corporate governance ment, from employment law and data remains topical, as shareholders and regu- This presents opportunities and also chal- protection, privacy issues, to antitrust. Of lators around the world struggle to work lenges. In China, in particular, national course, that’s multiplied by the 70 or 80 out the best model for governance. Much state rules designate certain sectors — and or more countries that large international has been said about the important role of steel is included in those — as strategic, groups operate in. If that isn’t enough, non-executive directors ensuring indepen- and therefore, foreign ownership of those sometimes these laws actually conflict with dent oversight, board diversity and effec- companies is restricted. So we are limited each other: for example, in international tiveness of board committees; as well as the to operating in those countries through trade law. Then, just in case those Boards comparative advantages and disadvantages

of single-tier and dual-tier boards (the Identifying the legal risks is, of course, only part of the role. latter being more typical in the civil law jurisdictions). The real challenge is to develop the solutions to mitigate

In considering the role of the legal func- those risks, and of course, within the time constraints of tion in the context of corporate gover- whatever urgent transaction we might be dealing with, as nance, one hears a lot of debate about organizational structures and particularly well as the cost and budgetary pressures. reporting structures in large groups. One — Simon Evans question is whether the in-house lawyers should all report directly to the group gen- program, policies and training, which are initiative, as well as by NGOs such as eral counsel or to business divisional heads all important components of the support- Transparency International and others. or some matrix structure, which often ends ing architecture. Ultimately, however, as Some progress has been made toward up being the case. Another is whether the is widely recognized, it is leadership from achieving that level playing field. However, general counsel should report to the chief management and the so-called “tone from there remains a long way to go, and in executive (generally regarded as the best the top” which are vital to the integrity of today’s difficult economic situation, there practice), or to the CFO, or elsewhere the organization. is a risk of slipping backwards. in the organization. A third question is whether the general counsel should be on Questions such as whether the general Many of the risks associated with emerg- the board or, as is a widely held view, pres- counsel should be directly responsible for ing countries are linked with a less well- ent at the board not as a director but as compliance, taking on the role of chief established legal system or rule of law. an advisor, and in some cases, also as the compliance officer, or whether that makes Doing business in such countries requires, company secretary. him too much of a policeman, are debated of course, additional due diligence and risk in some organizations, and there is no assessment, and I think we may return to These structural and organizational issues single absolute rule which works for all this subject in the discussion later. are important, particularly for the large organizations. The financial sector may be corporate group, but no one of these is different, of course, from the manufactur- At the same time, the public scrutiny of the sole determinant of good governance, ing industry. But in the end, whatever the companies continues to intensify, aided which is, instead, really determined by the situation is, the general counsel has to by the increasing speed of modern media combined effect of numerous interlock- bridge the gap between business counselor communication making information acces- ing pieces of the jigsaw. Even then, there and regulatory advisor, so as to provide sible around the world in seconds and is the all-important question of corporate integrated advice to management. shortening the available response time for culture. However many boxes a company’s management, and raising the standards governance can tick, if the corporate cul- In international business, there are many expected of those multinationals. ture — the internal ethos — is weak, the challenging parts of the world, of course, risk of failure is higher, if managers are where culture and business practices are Corporate responsibility is now very much tempted to cut corners or to hide problems different — if that’s not sounding too mainstream. The welfare of employees, from investors. That is clearly illustrated euphemistic! This tension can test an health and safety, protecting the environ- by, unfortunately, numerous examples organization’s integrity, as has been seen ment, supporting local communities, and such as Enron and others, or perhaps more in recent years in the case of certain good governance are all rightly in the lime- recently one reads in the news issues of a highly regarded companies which have light today. This agenda is pushed by the similar nature affecting Olympus. faced FCPA investigations in the U.S. and different stakeholders: employees’ repre- in Europe, resulting in very large fines and sentatives, governments, regulators, NGOs, Achieving the balance between entrepre- significant damage to their reputations. and the media, customers, suppliers and neurship, profit and integrity is vital for shareholders. ArcelorMittal, for example, the long-term success and sustainability Managing these risks requires strong leader is a member of the FTSE4Good Index, as of the organization. The general counsel ship and determination by individual com- well as the Dow Jones Sustainability Index. has an important responsibility to assist panies. But what business wants and needs, senior management in the maintenance really, is a level playing field. In this respect, There is increasing awareness of globaliza- of this corporate integrity. There are the there is much work being done by interna- tion linking the economies of different rules and tools, such as the company’s tional bodies such as the UN, OECD, countries and regions of the world, and code of business conduct, compliance EBRD and World Economic Forum PACI the same goes for attempts to address

the legal marketplace and caused the tradi- tional law firms to rethink their business model and adapt in different ways.

Similarly, as companies face cost pressures, they, too, are adapting their own models. Some may expand their in-house legal department on the basis that the in-house lawyers, employed lawyers, actually cost less than private practice lawyers on an hourly basis. Others may choose to outsource certain activities, and some international companies may have a natural offshoring global issues such as greenhouse gas emis- Commission officials are very busy with arising from their geographically diverse sions and climate change. Even before other things, but I just mention that. legal team. the current financial crisis, the world’s governments were struggling to agree on So, in the light of these challenges, how So, given all that, how does one assess ways of updating the Kyoto Protocol to does an international company organize the performance of the legal function? limit the impact of climate change. This its legal services, its legal department? How does one measure it? It’s not easy. led some, such as the EU, to set their own I’ve already touched on the subject of the Although maybe I should say that clearly, unilateral CO2 reduction targets. Whilst structure and reporting arrangements, and the wise heads of the Directors Roundtable well-intentioned, this creates a serious risk the need to find the right balance between have been able to do that on this occasion — in energy-intensive industries such as business alignment and independence of with this award today, for which we are steelmaking — of shifting those CO2 the in house lawyer. Of course, the big- honored. emissions from within the EU to other ger the organization, the more impor- countries with less regulation and placing tant internal communication is, to avoid JACK FRIEDMAN: I’m always impressed producers in the EU at a competitive dis- misunderstandings and ensure alignment. by the accumulated billing rates of the advantage. So, while European producers Corporate functions, such as legal, have whole panel put together. invest in greener technology, they are look- an important role to play in this informa- ing for a level playing field with their global tion liquidity within the company, sharing SIMON EVANS: That’s a scary topic! competitors. information with other corporate teams But the danger is that in the short term, such as finance, HR, M&A, purchasing, in some companies, the legal department Whilst on the subject of level playing and all the other corporate functions, as may just be seen as a cost center, and fields — or the lack of them — one issue well as the business divisions in the group. therefore simply somewhere to make sav- affecting lawyers in the European Union ings. Sometimes the difficulty is that when (and others indirectly) which could be One of the potential benefits of an inter- the legal function is doing a good job, remedied more easily is the issue around national corporation is that you can have and controlling and mitigating those legal the failure of the European Commission an international legal department. So, risks, the potential downside of what has and the European Court to recognize for example, in ArcelorMittal, the Global been avoided is not always clear; whereas the legal professional privilege for EU Legal Leadership Team, as we call it, is unfortunately, if the company suffers a antitrust advice given by in-house lawyers, composed of twelve people, made up of serious legal problem, management may whilst they at the same time recognize ten different nationalities from around belatedly recognize the value of avoiding the professional legal privilege for private the world. That breadth of experience and a repetition. practice lawyers who are often governed diversity is a great asset for the group, that by the same professional bodies (Bars and we can share best practices from around Of course, part of the answer is that execu- Law Societies) as many of the in-house the world, and we do. tives do see what can happen to other com- lawyers. Such unjustifiable discrimination panies when mistakes are made, and this is has a detrimental impact on antitrust com- Over the last few years, outsourcing has been a healthy reminder. Nevertheless, it is part pliance of companies in the EU, which very topically and much debated; not least of the general counsel’s role not only to is an important goal for the regulators, the outsourcing of legal services. This has control the legal costs in an efficient way, and this should be corrected as soon as changed the international legal landscape, as but also to ensure that his or her team possible. Again, I know those European many alternative legal providers have entered is focused on adding real value, and to

demonstrate that value that the team adds But I do believe that general counsel, to the organization. heads of legal, and partners in law firms are leaders in their own right, and I’m Good litigation results or successfully com- delighted to be part of this event honoring pleting M&A or bond transactions may your achievements as a leader in the field speak for themselves. But in other areas of general counsel, and for ArcelorMittal, — contracts, compliance, and day-to-day which is a great business. I think, as lead- activity — these are also fundamental to an ers, we have all got to be aware of more organization’s reputation and future. than just the law. We’ve got to be aware of what’s going on around us in the world. So Finally, I’d just like to mention maybe this morning, I want to talk about trust. Of one other challenge which many lawyers course, I understand that the expression, and general counsels and other profes- “Trust me, I’m a lawyer,” is not the most sions face, which is the so-called work/ compelling offer out there right now. life balance. This is a subject on which of our operational countries, we have a I’m not sure how qualified I am to advise, legal team. When Ipsos MORI conducted their annual other than to finish my remarks with a survey of trust — and this was confined to big “thank you” to my wife and family for JACK FRIEDMAN: So there are some in the U.K.; actually, I think it applies around their loyalty and forbearance during my the U.K., in Europe, and some are in the the world — they don’t, unfortunately, single legal career. local countries? out lawyers as a profession, but 72% of people did say, apparently, that they trust Then let me finish by thanking all of SIMON EVANS: Yes. We have lawyers judges. I’m not sure whether that’s some- you for listening, for your attention, and in London, Luxembourg and in other thing to be pleased about or frightened I look forward to the panel discussions, cities in Europe and worldwide, and they about — 72%. University professors scored and thank you, again, to the Directors are all very closely linked in speaking to slightly higher. But politicians were at the Roundtable for this award. Thank you. each other. We have a regional structure bottom of the table, with 14%, and journal- of lawyers, so we have six regional gen- ists slightly higher at 19%. Now that might JACK FRIEDMAN: Thank you. eral counsels around the world who form not surprise us, but I was genuinely per- a regional general counsels’ team with plexed and concerned that the next of those Before we turn to our next speaker, I just me. Then I have a corporate legal team professions in the table astonishingly — to wanted to ask you a question. In the States, and together, all those people who work me, at any rate — was business leaders, with we have 50 similar jurisdictions, although together, talk together, and integrate with just 29% of them expected to tell the truth Louisiana has some French law back- their local management, as well as corpo- the first time. Behind that headline figure — ground. The power of national regulation is rate management. We do our best to meet I don’t want to try to explain — lies a much largely centered on Washington. It’s rather the challenges. more disturbing reality about business trust. inconceivable how a company can deal with the regulatory environment in 60 dif- JACK FRIEDMAN: Thank you. We’ll So, more specifically, I want to talk about ferent countries. For example, the compen- get back to this topic. the emergence of a serious trust deficit sation is different; the rights of employees between business and the general public, are different; the intellectual property I’d like to introduce Sir Nigel Knowles, a deficit that grew slowly over many years, rights or enforcement are different. How who is the Joint CEO and Managing but as a result of globalization; I mean, you do you organize the legal department to Partner of DLA Piper, and he’ll make some can see it all around you. Globalization, deal with this huge variety? brief opening remarks in his area. the global economic crisis, the explosion of 24-hour media coverage, which is now SIMON EVANS: Well, I wouldn’t plan SIR NIGEL KNOWLES: I spend a lot instant, and the media are where it’s hap- to do it all myself! No, we have a signifi- of time with clients, but don’t deliver any pening far sooner than business leaders, cant sized legal department, and that’s not legal advice, much to the pleasure of our and the growth of social media, mean that unique to us, we have specialists in differ- professional indemnity insurers and my the trust deficit could, in some cases, look ent areas. So, we have a corporate legal partners. So when adding up the collective more like a chasm. department — a sort of corporate center, charging rate, I don’t count. I haven’t got a shall we say — where we have certain spe- charging rate. If I do give advice, it’s part of I want to talk about the profound implica- cialists in certain areas, and then in each my own Change for Good program. tions that has for business, and suggest some

ways that it might be regained. As someone However many boxes a company’s governance can tick, who leads a major international business, because we are — we’re in 31 countries, 76 if the corporate culture — the internal ethos — is weak, offices — and who advise major international businesses, we’re all entrenched in the risk of failure is higher, if managers are tempted to the concept of the trusted advisor for whom cut corners or to hide problems from investors. trust is so central in everything we do. This crisis of trust has profound implications for — Simon Evans all of us, if we are going to benefit in the future, and if the world is going to turn social media, everybody feels able to com- and we know where they are present; we itself around. Because without trust, what ment about anything. One FTSE chief know that they are in a multi-language, have we? Never before has success of busi- executive told us that people feel more able multicultural situation. And they’ve got ness been so critical to the future of the to judge — non-experts in the media, in the to be careful — real pressure on them to world. Business will take the strain where government and the public, feel able to say get it right, so many times and in so many the public person sometimes can’t. just what they think. A lack of technical diverse situations. expertise is no longer a barrier to having So, restoring trust is therefore an urgent a view as to whether something is right or A second key finding from the report is and important task, not only for business wrong. I thought only my wife had that that trust at a senior level is intrinsically leaders, but for all of us. We are leaders characteristic, but it seems that everybody based around individuals and personal in our own chosen subject, and it simply has that characteristic! relationships. Individuals can earn trust, can’t wait. and companies can often lose it. We can all Senator George Mitchell, our chairman think of examples of how this has worked DLA Piper did commission a report by emeritus, once told me that when he went to good and bad effect. But consider the the leading opinion research consultancy, to the senate, what he realized was that most effective: Steve Jobs, regrettably no Populus, a few months ago, and I want to you can speak on any subject at any time longer with us. But what a great leader, share a few of those findings and consider for any length of time, without the obliga- and an advocate of the Apple brand. Sir the implications. There are some reasons tion of either possessing or conveying any Richard Branson is another example, as for optimism, and of course, the findings useful information! These sorts of things are Warren Buffett and Lakshmi Mittal. are the result of feedback from lots of now are really present all around us. The All guys who are really respected in the FTSE chairmen, CEOs, CFOs, COOs and 24-hour news cycle is widely seen to have global business marketplace for having got non-executive directors. So this is not the forced companies to respond more quickly it right and being leaders. view of DLA Piper; this is the view of cor- at times of corporate crisis, and all business porate Europe and the world, if you look leaders acknowledge that the media have Thirdly, we discovered that overt trust strat- at the companies in the FTSE. They are all considerable power to influence percep- egies where some businesses are pursuing over the world. tions of corporate trustworthiness. We saw corporate social responsibility and trying that in the Gulf of Mexico oil spill, where to buy trust doesn’t work. Trust is a conse- The first finding was that today, a busi- I’m sure Tony Hayward of BP saw what quence of a pattern of consistently positive ness has got to be prepared to explain and was happening for the first time, along corporate behavior, and is not something to justify its actions to their stakeholder with everybody else, on television, and that can be created for special occasions. audience. That includes, now, obviously, was immediately asked to say what was he You can’t buy trust; you’ve got to earn it. shareholders, employees, customers, busi- going to do about it. What could he say? ness partners, suppliers, the media, govern- Finally, Populus found that the people ments, regulators and NGOs. Simon cov- Statements made in one country — this we talk to thought that regulation wasn’t ered all that in what he had to say. But only is another point — in one country, can necessarily the way through all of this. You ten years ago — and I’m not suggesting they be construed entirely different in another can’t legislate your way out of the current were the good old days — the stakeholders country — and in some cases, in some difficulties into an environment of trust. were probably only shareholders. Now, it’s countries where you don’t even have a a far different array of people you’ve got presence, because of different cultures, I think that must be right. We’ve all got to look at. different interpretations. So we’ve really to exist with some regulation around us, got to be aware of that. So, ArcelorMittal but just think about it. When a regula- Now, following the global financial crisis says, “We want to be the world’s safest steel tion is imposed, most people think this is and globalization and the proliferation of company, as well as the most admired,” something else to get around. “We’ve got

to apply all our brains and all our efforts know if my D&O policy covers me, not just to try and find a way around this regula- all the independent directors. It’s gone so tion.” My own view is clear: regulation is far that at least one Director has actually what you must do, but best practice is what asked the Board for permission, at his own you should do. You can’t regulate trust into expense — not asking the company to pay existence, and you can’t legislate to make a penny — to bring his personal attorney people trustworthy. to every board meeting. We’re not talking about a critical meeting where they’re As a chairman of a FTSE company said, going to vote on some major M&A deal or you’ve got to trust your colleagues. Your some colossal decision which was scary for customers have got to trust you. You’ve got them to have legal liability. He said every to trust your shareholders. Top manage- There are just a few words, food for board meeting. ment have got to trust each other to foster thought. Thank you, and if any of you a culture with trust, which at its heart, is want to refer to any of that during ques- So the question I’d like to give back to very important for any leader. tions, I would be happy to participate. everybody here is, “In today’s environ- Thank you. ment how are people able in top manage- You can rationalize all of this down ment and the board to work in a trusting to a number of things, with all your JACK FRIEDMAN: Before we go on to way when down the road you don’t know stakeholders and you’ve got to work out the next speaker, I wanted to open this if you’re going to be a witness against each who they are. up — before the other panelists make their other?” Does anybody have some com- opening remarks, I’d like to throw in a ment of working with clients about this We’ve got to communicate better as indi- question about an issue you raised, to the issue of trust? viduals. We have got to be transparent. So whole panel, and then we’ll get back to the if we say we are going to do something in presentation. SAMANTHA MOBLEY: I can com- six months’ time, I think we’ve all got to ment from an antitrust perspective. As you say, did we do it? Actually, if we did do As a brief introduction, we have Samantha may know, recently, the antitrust area has it, were we successful? Did we fail? If we Mobley, who is a partner and leader of become criminal for individual directors failed, why did we fail? Are we going to do the Global Competition Practice of Baker who participate in cartel activity. What something more about it? We’ve got to be McKenzie; and we have Richard Price, we’ve seen is a renewed interest, I would accountable, and with all our stakeholders. the partner and co-head of the Corporate say, amongst individual directors on the Practice of Shearman & Sterling here in board, and around compliance in the anti- So I’m going to explain that — you got that London, although he lives in France. John trust area, precisely because their neck is completely right and consistent with our Brinitzer is the partner at Cleary Gottlieb now on the line. The companies that tackle report. Steen & Hamilton in Paris. And we have this new problem best are those companies Rani Mina, who’s a partner at Mayer that proactively acknowledge that this is We must all now change our habits, to start Brown, in the litigation area. As I say, we’ll now not only a risk for the company, but earning back trust, to start the rebalancing, get back to their comments. it’s also a risk for the individual. They the deficit in business, because building address that at the board level, and address trusted businesses is the right thing to There was a time in the boardroom, if you how to help the director feel comfortable do — because it is a source of competi- had some controversy with outsiders, such that the business is compliant, and that tive advantage. Put very simply, if nobody as the government or private litigation, the director is in a position where he can trusts each other — everybody’s checking you’d refer to “we versus them.” Who was turn around to the regulator and say, “I did everything that everybody else does — if “we”? “We” was the company and all the know about that incident that occurred, you do trust each other, you’ve only got to management and all the board members because my company has put in place the do it the first time. So you can achieve a lot and so forth. That was the “we versus best policies and the best procedures, and more if you trust each other, because trust them.” Then after Enron, investors said, there was no way that the company could is a key driver of business success, business “The independent directors weren’t on top have addressed that particular thing that’s success the world desperately needs right of things,” and so forth. So, “we” became gone wrong.” now; but more importantly than all of that, the independent directors. because life is so much simpler, so much So, in my view, the companies that do more enjoyable and fruitful, if you can all Then, more recently, “we” has become “I.” it best are the companies that are able be trusted and trust each other. As soon as there’s a problem, “I” want to to address the issue proactively with the

individual, recognizing that the individual Achieving the balance between entrepreneurship, profit has a personal liability at stake. and integrity is vital for the long-term success and RICHARD PRICE: I’m going to make an observation that there’s no question sustainability of the organization. The general counsel has that an individual director liability gets the an important responsibility to assist senior management in attention of the board, and as a result, the board will be much more focused on the the maintenance of this corporate integrity. particular issue at hand. From a societal — Simon Evans perspective, that’s not such a bad thing. dialing it up a bit in a particular area where do ask for it. I think there’s a much better SIR NIGEL KNOWLES: I would say you might feel there is a lack of credibility. flow, much better trust as a result; a much that from the point of view of a non- Intimacy is the hardest one — to allow your- better exchange of information. And hope- executive director, they have got to be more self to be intimate with your colleagues in a fully, better governance, because those selective in terms of the sort of boards that way which builds trust. directors bring their expertise from those they join. For example, if they join the other companies — they were on different board of a company that does not seem JACK FRIEDMAN: When I spent time boards at other companies, or CEOs of to have good governance, if they are a in London in the ’60s, I remember that other companies — and they bring that director of a company where there’s been the head of Shell Oil was quoted in The expertise to the board. That’s how it’s sup- board evaluation and recommendation for Wall Street Journal as saying, “I serve on the posed to work. improvement which has not been followed, British Leyland Manufacturing Board, and or where they believe the CEO doesn’t I asked the question, ‘Why do we have so It’s not perfect, but I think companies have listen or does not take any notice of them, many models with inefficient runs? We moved a long way, and I think it’s a very you’ve got to decide: are you doing it for make a little of this and this, so we don’t important question. the money, or are you doing it because you have economies of scale properly.’ In all want to discharge your obligations properly the years I was there, I never got a decent JACK FRIEDMAN: I just want to ask in accordance with what is required from answer.” I said to myself at that point, John Brinitzer and the other people here an independent, non-executive director? “If the head of the first, second or third who work on deals — when you’re doing largest oil company, who’s sitting on the deals, does every entity in a corporation That gets down to — I’m quite surprised Board of an auto company, can’t get an that’s remotely involved with the deal have that more non-executive directors don’t answer to questions, what hope is there their own body of attorneys? Does every- say, “I’m not prepared to be on a board for any director, anywhere, to get the infor- body say, “I have to have my own counsel of a company that behaves like that, and mation needed to have an independent to sign any document?” Has it gone that far I’m leaving.” Knowing nothing at all about judgment?” in terms of legal representation? it, but hazarding a guess, I suspect lots of independent directors over the years have SIMON EVANS: The personal liability JOHN BRINITZER: Within a particular gone native and not challenged the execu- of the directors, the increased focus on the organization? tive enough and perhaps need the money non-execs, they know that the ones that and don’t decide to leave out of principle. I weren’t asking the questions five years ago, JACK FRIEDMAN: No, within all these think more of that needs to happen. ten years ago, know they should be. The organizations and leaving out the litigation companies’ management knows they need side. SAMANTHA MOBLEY: I think that to provide the information to directors, building trust comes down to three things: because they’re entitled to it. It does work JOHN BRINITZER: For a cross-border credibility, reliability, and intimacy; and all much better now, because the idea that M&A transaction or a securities transac- of that can be undermined by too much you just turn up once a month for lunch tion, it’s typically centralized at the home of a focus on self-interest. So if there is a and then sign off and go home, is long office, with counsel running it from a trust issue amongst a board or with your gone. Some non-executive directors were central location and calling on the local colleagues, it’s really fundamentally going dramatically underpaid, with the responsi- expertise. The organization itself would to be an issue with one of those things that bility they may not realize they were taking! involve participants from local jurisdic- I’ve mentioned, and so I think that you But now, you get full information; if you tions to the extent there are specific local can build trust by focusing on those things don’t get information, as a non-executive law issues arising, but otherwise, not if it’s and just changing your behavior slightly, director, you should ask for it, and people just a question of liability protection of the

local jurisdiction; that would be handled centrally, in my experience, actually.

JACK FRIEDMAN: Thank you all. To continue on, our next speaker is Richard Price. So, go ahead.

RICHARD PRICE: Thanks, Jack. Good morning, everyone. As Jack mentioned, I’m a capital markets lawyer, and this is an interesting, if not surreal, time to be a capital markets lawyer in Europe, helping companies raise capital in these topsy-turvy markets that we’re encountering. Just to give you one example: yesterday, we priced a high-yield (which means sub-investment grade) bond offering for a Nordic issuer. We issued a ten-year U.S. dollar-denomi- nated bond, and got better pricing than the current yield for Italian government AUDIENCE MEMBER: Portugal? the person who can get number three. I bonds. So in the eyes of investors, this have to confess — I didn’t even know this small sub-investment grade company from RICHARD PRICE: Not on the list. city had a stock exchange. the Nordic region is a better risk than the Italian government. Who would have JACK FRIEDMAN: If you don’t give the AUDIENCE MEMBER: You’re going to thought we’d be encountering something right answer, they’re going to take your have to tell us. like that. college degree away and make you go back to college! RICHARD PRICE: Shenzhen. Number One thing that has come out of the global three. financial crisis is that companies have to RICHARD PRICE: How about some look to diverse sources of capital, to raise more obvious ones? Another — and this trend, actually, is capital, for their corporate needs. And this continuing into this year, even though the is playing out in both debt and equity. AUDIENCE MEMBER: London? equity capital markets have been pretty quiet. Roughly $50 billion was raised on In the equity markets, we’re seeing a glo- RICHARD PRICE: London? London Asian exchanges and IPOs, 30 billion in balization, a continued globalization of the was, interestingly, not on the list. European exchanges, and 25 billion in capital markets, and the rise of exchanges U.S. exchanges, year-to-date. in new markets, particularly in Asia, and AUDIENCE MEMBER: NASDAQ. maybe I could turn it over for a little bit of Why are we seeing this surge of interest in audience participation and ask you if you RICHARD PRICE: NASDAQ, not on Hong Kong, in particular? It largely boils can name, or we can collectively name, the the list. I think I heard someone say New down to Hong Kong’s proximity to China. top five exchanges for IPOs last year, in York. New York was on the list. Number Most of the action with Hong Kong listings the world. two. is from Chinese companies. Hong Kong is the only exchange in China that is open AUDIENCE MEMBER: Hong Kong? AUDIENCE MEMBER: São Paolo. to foreign investors, so for Chinese companies, Hong Kong serves as a gateway to RICHARD PRICE: Hong Kong was RICHARD PRICE: Not on the list. global funds and global investors, but it’s number one; that’s correct. still fairly close to home. AUDIENCE MEMBER: Shanghai. AUDIENCE MEMBER: Singapore? As we all read about in the newspapers, RICHARD PRICE: Shanghai, yes. Hong Kong is also beginning to attract for- RICHARD PRICE: Singapore, not on Shanghai was number four. Tokyo was eign issuers seeking to tap Chinese capital. the list. number five. We will give a gold prize for That’s largely valuation-driven. They can

get higher multiples on the Hong Kong as the equity markets become less volatile, exchange than they may be able to get on we’ll see a pickup in IPO and other equity comparable exchanges in the West. capital market raising to refinance this debt. Then the third option, if those first In addition, a number of companies are two options fail, is to go bust, essentially. IPOing or getting a second listing in Hong So I think we will see a lot of restructuring Kong, in order to raise their profile generally activity beginning next year. in Asia, and this is particularly true in the luxury goods segment. I didn’t appreciate Just to talk a little bit about high-yield bonds until yesterday that fifty percent of luxury and the difference between high-yield bonds goods sales in the world are in Asia. So for a and leveraged loans, from an issuer’s per- luxury goods company like Prada, for exam- spective, the positive of bonds vs. loans is ple, they may want to list in Hong Kong that it’s a reasonably permanent source of in order to raise their profile with Chinese funding. You raise the money, the bonds investors and potential customers, as well. are there and they become due seven to ten Switching to debt, in Europe we’re seeing years later. Bank loans have much shorter a really interesting — or at least, from our One reason issuers don’t go to Hong Kong, tenors, they’re subject to MAC clauses and perspective — a really interesting trend despite what we might read, is lack of regu- the like, and the issuer is, to some extent, in the debt markets, and that’s a seismic lation. The Hong Kong market is actually more hostage to the lender. heavily regulated. It’s a fairly cumbersome shift away from leverage lending by banks and expensive process for a company to in favor of the high-yield bond market. High-yield bond covenants also tend to be list on Hong Kong, and the Hong Kong Until 2007, the vast majority of leverage a bit looser than bank covenants. There are monetary authorities are a very vigorous financing in Europe — and this is financ- incurrence covenants as opposed to main- regulator in our experience, and in others’ ing for M&A transactions, financing for tenance covenants, so they just restrict experiences, as well. LBOs — the vast majority of this financing actions that the company can take. They’re was provided by banks. European banks not required to maintain certain financial Another trend that we’re beginning to are now sitting on approximately $2 tril- ratios in order not to go into default, and see recently is the reemergence of New lion worth of these leveraged loans and that’s certainly a big plus. York as a listing venue, and why is that? high-yield bonds, and with the capital con- The U.S. markets have proven less volatile straints they now face, and the new capital On the negative side, although high-yield recently than certainly the European mar- requirements coming down the pike with covenants may be looser than bank cove- kets, although they’re not immune, by any all three, these assets are highly capital- nants, they’re much more rigid, and because means, from what’s happening in Europe inefficient for the banks, and they are quite high-yield bonds are issued to hundreds and elsewhere. Also, companies are get- keen to shrink their exposure to leveraged and potentially thousands of investors, ting more comfort around the regulatory finance generally. they’re drafted in such a way that they’re regime in the U.S. and, in particular, intended to remain in effect, unamended Sarbanes-Oxley. Sarbanes-Oxley proved to At the same time, we are approaching this and unwaived, throughout the term of the be a huge deterrent for foreign companies massive wall of loans that were written in bond. It’s very difficult and expensive for a to list in the U.S., and over time, a couple the boom years of 2005, 2007 that begin high-yield bond issuer to have to go back to of things have happened: firstly, companies maturing next year that companies have investors once the bond’s been issued, to try have become more comfortable with it; sec- to refinance. We don’t expect, and people to amend the terms. ondly, the rest of the world has caught up don’t generally expect that the banks will with many aspects of Sarbanes-Oxley, and be lining up to provide that refinancing JACK FRIEDMAN: Would they need a the playing field has been leveled. themselves. majority or supermajority amendment?

Finally, I should talk about London. Over So these companies have really three RICHARD PRICE: Yes. the last five years, the London Stock options. One is to refinance the loans that Exchange has generally led the way as the are becoming due, with high-yield bonds, JACK FRIEDMAN: They can’t require a market for non-domestic issuers doing and that’s really the obvious option, to unanimous vote, obviously. IPOs. We would expect that to continue, refinance debt with debt. Another option although obviously, London has been is to refinance it with equity, and to some RICHARD PRICE: Well, interestingly, affected by the recent European turmoil. extent we’ll see some of that, and hopefully on money terms, it is unanimous, which

makes it extremely difficult to do. That’s a In terms of the implications of this for law mentioned, two changes: First of all, going function of the U.S. Trust Indenture Act. firms and for all of what I’ve described, I back a number of years, we moved from The high-yield bond market in Europe think it’s increasingly important for inter- less debt at operational units and slightly really grew out of the high-yield market national law firms to have global capabili- more debt raising centrally, and that was in the U.S., which is much more mature. ties across practice areas, to be able to pro- based on the ability to get better funding High-yield deals in the U.S. are subject vide clients with advice, whether they’re with investment grade rating and so on. to something called the Trust Indenture doing a listing in Hong Kong or a high- The other change over the last few years Act of 1939, which basically provides that yield bond deal in Europe. Or if there’s was less dependency on bank debt and you can’t change the money terms of a a junior mining exploration company, a moving toward bonds; again, for reasons bond without the consent of every single listing on the Toronto Stock Exchange, just mentioned: that it gave a longer debt bondholder. So to restructure a bond in is the most popular venue. Whatever the profile, and we were better protected going a way that changes the economics is very kind of company, it’s increasingly impor- through the last economic crisis and any- difficult. There is no real opportunity to tant for law firms to have capability in all thing that might happen now in terms of cram down changes. of these areas. any repayment schedules. So, we have quite a well-spread debt profile, which is partly Another negative, from the perspective of So I think law firms will continue to global- based on more bond debt and slightly less borrowers, is that many of these companies ize. They’ll beef up certain practice areas, bank debt. have never been to the capital markets like high-yield, particularly in Europe. U.S. before, and there’s obviously a reasonably high-yield practitioners are in high demand We haven’t historically done a lot of proj- significant cost associated with accessing these days in this market. Firms will beef ect finance, although we do have a few the capital markets for the first time, to up their Asian capital markets capability, such project finances on at the moment. come up with a disclosure document. and we would expect restructuring lawyers They tend to be great for lawyers, because That’s what the lawyers do. Basically, they to be in fairly high demand going forward. they’re quite complex. They slow the com- become, in effect, public companies expos- pany down sometimes. We’ve used them ing themselves to the market and having JACK FRIEDMAN: For the audience, in some joint ventures in some parts of the to disclose information to the market this is employment planning advice for you world, external project financing. They are through the tenor of the bonds. for free. You can mark it down and you a bit more complicated. They may have cer- didn’t even have to pay him to know who tain balance sheet implications, of course. But we certainly see a potential for a huge would be hiring. We do use them occasionally, but it isn’t surge in high-yield bond activity in Europe. our primary way of raising funds. The markets are extremely quiet right now. Let me ask you this quick, before we move It’s very difficult in spite of the deal that on to the other speakers. Would you give Of course, our primary way of raising got priced yesterday. us an idea of the variety or geographic funds, I should have said at the beginning, spread of the financings that a company is through our own cash flow, because our JACK FRIEDMAN: Really? like yours would do? I’m sure it could own cash flow from the organization is be everything from currency to project used for our own expansions. RICHARD PRICE: Yes! It’s extremely finance, but I don’t know what the variety challenging to price any capital markets would be. JOHN BRINITZER: Simon’s being very transaction in these markets. But we expect modest, so I’ll toot ArcelorMittal’s horn. that once there’s a little less volatility in SIMON EVANS: Okay. We, ArcelorMittal ArcelorMittal reopened the debt and the bond markets, we’ll see a surge in made a bit of a change over the last few equity linked markets after the financial high-yield. years, partly for the reasons that Richard crisis in 2008 and early 2009 with a series

emerging markets, particularly in South substance of the terms of the transaction America and in North America. Mittal needed to be identified. So that required Steel had global operations with focus on coordination both on the regulator’s side emerging markets, as I mentioned, but as well as on the offeror’s side. elsewhere as well. The securities were being listed in six juris- The transaction raised many of the issues dictions, so the disclosure requirements that one sees in cross-border M&A trans- needed to be addressed and harmonized actions, plus novel ones. It was quite a through the listing document, which was remarkable transaction in many respects. a transaction in and of itself. In addition, Briefly — I could take up the remaining and perhaps most importantly, this was time to talk about the transaction — but not a static situation but a very dynamic quite briefly, hitting some of the issues situation, because Arcelor did not initially and how they presented themselves and see the industrial logic of the transaction were dealt with: on a political front, it was or was otherwise opposed to it, so it threw of transactions: an equity linked, an equity a controversial transaction, at least initially. up an array of defensive measures which deal, and several debt deals. All told, five It was perceived as a south-north transac- needed to be addressed. These ranged or six transactions in a two- or three-month tion. I should mention, for those who from active involvement in the regulatory period, raising over € 10 billion–€ 12 bil- don’t recall, that it was initially unsolicited. review process, such as suggesting to the lion, so it has been a very opportunistic It was launched in January of 2006 as an various regulators who were reviewing the and successful capital markets issuer. unsolicited transaction, the transaction terms of the offer and the transaction JACK FRIEDMAN: Could you comment taken directly to shareholders through an documents, some issues that they might be on the M&A aspect of capital markets? exchange offer and a tender offer, and the raising — these are known, at least in the governments involved considered them- U.S., as “bedbug letters” (i.e., sending a let- JOHN BRINITZER: Well, I was going selves to be stakeholders and took an active ter to the regulator indicating that it might to speak briefly on cross-border M&A and part in the review of the transaction, both want to look at X, Y or Z aspect of the issues arising in cross-border M&A transac- directly, through their regulatory role, as transaction or require pro forma financial tions. I would take a case study of one of well as indirectly in a more political role statements for X, Y or Z aspect). the most noteworthy cross-border M&A through public statements and various transactions of the last decade, which was requests of Mittal Steel, such as to publish Value-based offenses, including special Mittal Steel’s acquisition of Arcelor in an industrial plan. So how the potential cash distributions, dividends, share repur- 2006. At the time, Mittal Steel was the larg- acquirer saw the industrial strategic logic chases had to be dealt with in structur- est steel producer in the world, and Arcelor for the transaction, what it would mean for ing the offer, such as by building in an was a close second. Actually, one of the local economies and for local labor forces, automatic adjustment mechanism. Poison contested features of the transaction was as an example. pill defense: Arcelor put a key asset into a the order of that. Mittal Steel was a Dutch Dutch trust, a stichting, as a way of ring- company, the controlling shareholder of From a regulatory perspective, it raised fencing it. This was an asset that Mittal which was an Indian national. It had significant antitrust issues globally and Steel had agreed at the outset of the trans- grown exponentially over the past decade, required a global antitrust analysis. There action to onsell to a competitor, in order both organically and externally, through were overlapping operations, in particular, to proactively address any antitrust issues, numerous transactions primarily in the in North America. From a securities law as well as synergy issues. So that had to emerging markets. It was listed on the perspective, the European takeover direc- be addressed, as well, and that was done New York Stock Exchange and Euronext tive had not yet come into force. Actually, through a “pocket” consent decree with Amsterdam. Arcelor had resulted from it was coming into force in the midst of the the U.S. Justice Department that if the the combination of the French, Belgian, transaction, and the securities, as I men- stichting could not be undone, an alterna- Spanish and Luxembourg steel companies tioned, were listed in six stock exchanges, tive asset could be sold in order to address that had been restructured following the so the takeover regulations of those six antitrust considerations. difficult periods of the 1980s and part of stock exchanges needed to be addressed. the 1990s. It was listed on the Spanish, In particular, in Europe, a cohesive set of Last, but not least, at the very end of the Belgian, French and Luxembourg stock takeover regulations needed to be identi- game, a white knight defense was employed exchanges. Its operations were European- fied and complied with, and indeed, a with a transaction with a Russian steel focused, but it also had operations in lead regulator for the contents and the company that would have blocked Mittal

Steel’s transaction. This was addressed through, among other things, essentially a shareholder revolt, where a fifty percent threshold had been built into the white knight transaction that could only be rejected if fifty percent of the shareholders voting at an EGM rejected it — not fifty percent of those present, but fifty percent of the total shareholder base, which had been seen probably as an insurmountable threshold, but indeed it was reached.

So, in a nutshell, a six-month deal — actually, a nine-month deal, in hopefully not more than five or ten minutes, as an example of the type of issues that arise in Commission is accused of being both I’ve had plenty of experiences, as you sug- cross-border M&A transactions. an investigator and judge imposing the gested, of having a CEO presenting the fines, although of course there are appeal antitrust case to a case officer that looks JACK FRIEDMAN: A few years ago we procedures with courts. It’s become more half his age. That needs to change. So one hosted the Global General Counsel of and more complex, and the official jotting of the proposals that we’ve put forward to Microsoft here in London. His firm had down notes may be doing as much good as reform the U.K. system, for example, is an important competition law issue in anybody else in the room sometimes. that the CEO, or equivalent, ought to have Europe. Regarding competition proceed- the right to have their day in front of the ings before judges, the Panelists said that JACK FRIEDMAN: Well, without saying person who’s going to make the decision, they are professional and in-depth, and that anybody on the Panel is necessarily if you’re going to stick with this adminis- that was fine. They said there was a prob- giving their personal opinion, what is the trative system as opposed to move to the lem with administrative proceedings before opinion among business leaders about the court system. the trial. The parties are sitting there and a whole regulatory process system for the EU, junior official comes in to hear you. Often not just antitrust? Are people happy with it? JACK FRIEDMAN: We are going to hear no one with actual authority is hearing From where is the reform supposed to come? from Samantha Mobley on her topic now. your presentation and there is no question and answer. SAMANTHA MOBLEY: I think that SAMANTHA MOBLEY: I’m just going to this debate, and in particular the differ- say a few words on the topic of compliance, At a trial, the judges may say, “You had ences between the two models that Simon really following very much on the comments your day before the administrative agency has raised, is very topical, because in fact that Simon made earlier. Congratulations, and we defer to their expertise.” you may know that we’re looking at a by the way, Simon, for your recognition, to wholesale reform of our U.K. competition both you and your team! Are there any comments anybody would regime, and ministers have been given a like to make about administrative proceed- couple of options in terms of enforcement My data point for these comments is the ings or the process? and in, for example, the conduct area. One fact that the world’s first global law firm is, you’re going to have to take this to a has conducted a series of risk management SIMON EVANS: Dominance allegations court like they do in the U.S., and you’re roundtables with international global gen- relating to Microsoft would be very differ- going to have to prove your case in front eral counsel, and we’ve been doing these ent and wouldn’t apply to us. The whole of the judge. The other is, we’ll just do sessions over the last five years, and prob- regulatory system around antitrust is com- it as the Europeans do it, like we’ve been ably obtained the views of about eighty plex; it is bureaucratic. The U.S. system is doing it for the last few years. So it’s on the general counsel. I really wanted to touch a bit different from the European one, but ministers’ table at the moment to make the very briefly on five points. One is actually the European system is actually criticized choice between the two. I suspect they’ll one that Simon’s already picked up, which — you refer to the separation between the stick with the European system, which as is this tone from the top point. administrative and the court system in the Simon says, is flawed in the sense that the U.S. — in the EU, you get that different investigator is also the person you take I think five years ago, general counsel, post- form of criticism in that the European your case to. Enron, were very aware of the fact that risk

now needed to be proactively managed, as pretty sophisticated due diligence on their opposed to the general counsel’s role just third-party intermediaries. being a firefighting role. But they were having real difficulty in persuading boards There has been a lot of debate over the that money ought to be spent on this pro- years about how to incentivize individual active compliance. Peer benchmarking was compliance out there in the business, and used to say, “Oh, well, they’re doing it,” or five years ago people were talking about “Look how they got into trouble.” making sure that compliance was part of your expected performance. These days, I think now, today, top-level commitment people have hardened and moved on to is seen as a no-brainer by pretty much perhaps making 10% of your performance everybody, including board members. It bonus dependent on delivering on compli- may have to do with the personal criminal ance measurables. liability that’s been mentioned before. It also may be to do with the proliferation There’s been some talk about the ultimate of stakeholders that’s been mentioned by steps you might take to avoid risk, includ- Nigel. But today, everybody agrees you ing pulling out of a risky business area, need strong CEO/board statement around pulling out of a country, or indeed verti- compliance, and compliance has got to be cally integrating in a country so you don’t an item on a board or board committee mentioned as needing to be proactively have intermediaries who might go off and agenda at least every quarter. managed. Then, when we headed into bribe officials. the recession in 2008 and 2009, there was The second point is around structuring the certainly a recognition amongst general In the M&A space, there was a lot of talk compliance function. It’s the structural and counsel that compliance is even more initially around how you go in and do due organizational issues that Simon referred important, because it’s in the moments diligence to find out what’s happening. to. I think five years ago, the idea of a when there’s a real squeeze on budget that More recently, there’s a recognition that compliance officer separated from legal or people are tempted to break the rules. In it’s going to be very hard to find out in due internal, was definitely very much in the the face of an impending double dip, that’s diligence the things that are, by definition, frame, but there was no real talk of a com- a particularly pertinent point today. covert and secret in nature. pliance function beyond that officer. Today, it’s completely different. Now we have many Now, the focus is not so much on which So the discussion today is more around companies that have, in fact, established for- areas we have to manage; the focus is more going in and implementing processes and mal board committees focused on legal risk where, in particular, we need to manage procedures to root out the problems and management, including lawyers, auditors, them, and Transparency International has try and manage those problems as soon as business managers, etc. Also, the compli- been mentioned already, the index that you’ve bought the business. ance function is now out in the business. A identifies the most risk countries. Most lot of companies, in each of their particular recently, GCs are looking around for other Finally, in the ongoing monitoring space, businesses, have compliance champions to data points, not just transparency, but five years ago the talk was all about the take responsibility for this area, but at the other data points, and looking to see need to conduct audits, and what the best same time, have said to senior managers, which countries are the most risky. China practice in conducting audits was. Audits “You can’t just delegate this to the compli- is definitely one that’s been mentioned are still important today for specific and ance officer. It’s your responsibility to make before and is on the list. suspect problems, but the theme these days sure that your part of our business has a is more around ongoing monitoring. Often compliance culture.” The fourth point is around what are companies will make sure that their internal the policies and procedures you ought to audit is routinely and regularly going in and The third point is around risk assessment implement to manage the risks that you’ve conducting exercises, whether or not there’s and identifying legal risks. Five years ago, identified. Training is considered a soft a problem, just to pick up whether the orga- everybody was focused on, “Well, what are audit and therefore a focus. Third-party nization has a culture of compliance. the really key legal risks for our business?” intermediaries — five years ago, nobody So people were focused, in those days, thought that we ought to be training our JACK FRIEDMAN: Thank you. Before even then, on bribery, but also antitrust third-party intermediaries. A number of we go to Rani on litigation and arbitration, and fraud were the key areas that were companies now do that, and also conduct I have a question for the whole Panel.

I was involved with a panel at a conference a law that if you do an investigation, you on technology in the boardroom. I was in have to tell the target, the employee who’s the role of being an independent director the subject of the investigation, something and there was a corporate crisis. I said, like within 48 hours, within two days, that “Bring in the chief information officer and they’re the subject of an investigation, let’s just have him or her collect all the whereas in the States, the tradition is you’d information from the different divisions.” better get your facts straight first, before Everybody in the audience who was a tech you tell someone you’re doing an investiga- person started laughing, and I said, “Why?” tion. In other words, the fact that you’re They said, “Databases are so decentralized collecting the information doesn’t mean in companies that even the chief informa- that they’re guilty or not guilty, but you’d tion officer doesn’t know all the databases, better do your homework before you walk and the software can be incompatible.” problem was that people in the Indian sub- in and say, “We’re investigating you.” At other programs, I’ve heard people say, sidiary said it’s against Indian law for them “The first thing we did in a crisis was try to to help their parent company in certain SIMON EVANS: The whole whistleblow- collect all the documents.” What are “all” aspects of the investigation, so they were ing thing is very different on each side of the contracts and other legal documents? not cooperating. In Brazil, they had a simi- the Atlantic. Does somebody know where all the docu- lar problem — it’s against local law to do ments are? How do you pull everything this so we’re not going to do it. You own JACK FRIEDMAN: Right. So, the together at the beginning of a crisis to find the local company. They’re your subsidiary. American companies were very concerned out what is going on? They are not helping. The issue is how can about how they’re going to reconcile it. a parent collect documents globally? RANI MINA: Well, often, with great As another example, one of the Big Four difficulty. The starting point is to identify SIMON EVANS: It’s true that in a large accounting firms did the audit for a who the key individuals are in terms of organization, particularly one that’s grown Chinese company. The company raised the particular issue that has arisen, and incrementally, data can be located all over money in America, which it is alleged really to have them identify where the the place. was done on a fraudulent basis with false key documents are and the key evidence bank records that they had procured. sits. But you’re quite right — it can be Your question about subsidiaries is inter- The American government said that the spread amongst lots of different countries’ esting, because where it’s not a 100%- accountants must bring in their work jurisdictions; there doesn’t tend to be a owned subsidiary, you do have the minor- papers. The Chinese government said that centralized place in which all of the docu- ity shareholders, and then you’re going if you do that you’re violating Chinese law. ments are kept. Even once you’ve engaged into all sorts of complexities about what Either government could shut down the in that process of identifying who the key information can be shared with the parent, accountants in that country. Of course, individuals are and where the documen- even if you own a high percentage of the the accountants say the operations in each tary evidence sits, there are often issues company. country are legally separate. We now have with relation to the collection process. the two governments giving orders which Collecting electronic documents is quite There’s a difference between a litigation, could harm the Big Four accounting firm, a complex activity in itself, and once you where you’ve got court orders demanding depending on what it does. have done that, you run into issues about documentation, much more the U.S.-U.K. transferring those documents and that evi- type of discovery process, and the different So again, a comment about if you have dence amongst different countries in terms continental system, of course. In terms of a litigator or anybody else dealing with of data protection and privacy. So it can be an internal investigation, then: again, it threats from two sides and you have one very difficult when you are faced with that can be very, very complex, and organiza- client going, “I’m law-abiding, but what type of issue. tions have their crisis management teams do I do?” Does anyone have any advice on preserving the confidentiality of the docu- that one? JACK FRIEDMAN: There was an arti- mentation that is also all part of it. But cle in The Wall Street Journal saying that from time to time, organizations have to RANI MINA: Well, those types of issues Siemens, in their big investigation, had do as you say and it’s not always easy. do arise quite regularly. There are differ- spent $500 million on the investigation ent standards that are applied by different apart from the billion dollars of penal- JACK FRIEDMAN: We were told in the countries in terms of what information ties. According to the article, part of the States, if I get this right, that France passed they’re allowed to share as between other

countries, and from a client’s perspective, But in the end, whatever the situation is, the general it can be a very difficult thing to understand. In one jurisdiction, they’re being counsel has to bridge the gap between business counselor told that they need to produce certain documents, and then they run into problems and regulatory advisor, so as to provide integrated advice in terms of producing those documents to management. — Simon Evans from another country. Those are issues that do come up quite regularly, and particularly with the accounting firms, who have global response in circumstances like this, hope that we can then explore further in quite deliberately organized themselves in you’ve got people on the ground who the panel discussion. that way so that they are separate entities embrace and understand the local culture, operating in each of these jurisdictions. who can go and talk to regulators with It’s been said a few times already this One of their concerns is precisely that they whom they probably have a relationship. morning that globalization has been a don’t want to really be in a position where That also helps the speed of response, key feature of business in recent decades. they are being forced to hand over their because there are, as you’ve suggested, What that means, in practical terms, is clients’ confidential documents to regula- many different ways of doing things in that corporations are increasingly estab- tors in other jurisdictions. different parts of the world. One thing for lished or have a presence in a number certain is, everything’s done; the world is of jurisdictions; part of their business SIR NIGEL KNOWLES: My only obser- a three-legged stool, isn’t it? You’ve got the activities take place abroad; or they’re vation would be to say that I think it Americas, Europe, the Middle East, and transacting with foreign entities; and that depends whether it’s internal or external. Africa. You’ve got Asia-Pacific. They’re all may often include foreign states and state- It depends whether it’s global or multi- different. Within each region, it can be controlled entities. jurisdictional. I think it’s about speed very, very different. You really have got to and resource and response, because if talk to a regulator in a country, in a differ- So, it’s against that background that you, for example, are headquartered in ent culture, by having people who under- questions of governing law, jurisdiction the U.K. but you have a bit of a problem stand it in the same culture. I think that’s and enforcement have become increas- in the Asian-Pacific region, you can’t say, increasingly important. You can’t do the ingly prominent, both during contractual “Well, we’d better go buy an air ticket fly-in, fly-out routine as effectively. negotiations for cross-border contracts, and get out there to see what’s going on.” and also in the disputes that may arise You’ve actually got to be immediately JACK FRIEDMAN: I’m going to invite subsequently under those contracts. In on the ground. Therefore relevant global Rani to speak. Rani, will you make your fact, these issues are at the very top of the resources, able to act immediately, before remarks? agenda for many corporates who transact things disappear, people disappear, people with foreign states or state-controlled enti- change their stories, externally, internally, RANI MINA: Thank you, Jack. ties, given the real prospect of sovereign whatever, is the really important dynamic debt defaults leading to cross-border dis- on things of this nature. As Jack has said, I’m a partner in the putes under those contracts. Commercial Dispute Resolution group of JACK FRIEDMAN: Have you ever had Mayer Brown in London. Mayer Brown So I’d like to dive into those issues by look- a situation where your lawyers in numer- has been lucky enough to work with Simon ing first at the negotiation of the cross- ous countries have a conference call and and some of his colleagues in various juris- border contract. I’ve already indicated say, “What are the privacy rules for emails dictions on a range of interesting matters that there are three key considerations in where you are? We don’t want something over the years. So I’d just like to start by terms of the choice of governing law, the in one country to create problems else- saying it’s a real privilege for Mayer Brown choice of jurisdiction, and the enforce- where.” Do you ever have a huge confer- to attend this morning and to take part in ment of rights and obligations under ence call among large numbers of partners? this program honoring Simon, and we’d those contracts. like to offer our congratulations to Simon SIR NIGEL KNOWLES: I’m sure we’ve for this honor, and to thank him, Jack and The choice of governing law is a really cru- done everything, ridiculous or otherwise. the Directors Roundtable for including us. cial issue. It would be a mistake to treat it as some form of boilerplate clause, because But I mean, the other point about what In my opening comments, I wanted to it can make the difference between what we’re talking about here is, if you get touch on some high-level themes in inter is at the outset a profitable contract, and global resources and are able to make a national cross-border disputes, which I what may later turn out to be a deeply

unprofitable contract after the dust has prior to any hearing. More fundamentally, settled following a dispute. there is the issue of whether the dispute is going to be determined by a judge or a jury. The governing law affects many different aspects of the contract. First and foremost, Jurisdiction is of equal importance, and it affects the nature and scope of the rights here, the choice in negotiating the con- and obligations of the parties, including tract, is whether you may want to give the rights of termination under those exclusive or non-exclusive jurisdiction to contracts. It affects what remedies may be the national courts of a particular coun- available for breach, so in each country, try, or alternatively, whether you want to you would want to ask whether there is, confer jurisdiction on an arbitral tribunal. for example, a monetary award available On that point, it should be kept in mind under those governing laws, and if so, how that particular difficulties can arise when would that be quantified? Is an injunction corporations are contracting with foreign might your client be required to pay. On available on an urgent basis? Can you get states and state-controlled entities, since the other side of that is whether a particu- specific performance of obligations? In the defense of sovereign immunity can be lar jurisdiction provides for the possibility fact, the governing law can affect whether raised to challenge jurisdiction and often of cost protection via the making of a well- a claim can be made at all, since the limita- is raised. timed settlement offer, for example. tion periods do differ quite significantly between countries. The issue of sovereign immunity from court There are a number of other consider- proceedings is determined by reference to ations in these areas, but I’m just going Just to give you an example from a recent national laws, and different countries have to mention the main issue with respect matter that I’m working on, I have an different ways of striking a balance between to enforcement, and that is whether the Italian client that has two supply contracts protecting the rights of those who enter into orders or awards of the preferred forum, with the same German company. The commercial transactions with states, and the forum that you select for this contract, first contract is governed by English law, the legitimate interest that sovereign states are going to be enforceable in the coun- and the second is governed by German have in preserving their immunity from try where the contract debtor is located, law. The client has come to us because proceedings of national courts. or the various countries in which their they have a substantial breach of warranty assets may be located. Clients are often claim which potentially stretches back over Actually, those risks can be addressed in surprised to learn, for example, that judg- a seven-year period, and I think most of part by including an arbitration provision ments issued by the English courts are not the audience will know that under English in such contracts, because the conclusion readily enforceable in the U.S., whereas law, the standard, reasonably generous, of an arbitration agreement by a state or judgments issued on a pan-European basis limitation period is six years. But under a state-controlled entity generally carries are enforceable. German law, there’s a strict two-year limi- with it an implied waiver of immunity in tation period. So what the client is faced respect of the arbitral process, and this JACK FRIEDMAN: Would you just with is the real prospect that there may be general rule of international custom and amplify? I just assumed that whatever the no claim for products supplied under that law is in fact confirmed by the national British courts say is good enough for us. German contract which fall outside of that laws of various countries. two-year limitation period. RANI MINA: Yes, as I said, it’s often The cost and time scale of proceedings in surprising to learn that that’s not the case. Of course, governing law doesn’t just affect different jurisdictions is also a key factor As between England and the U.S., there the substantive rights of the parties. It also that needs to be considered when select- is no bilateral treaty on the reciprocal affects the procedure and evidence that ing a jurisdiction. Here, I would suggest enforcement of judgments, so that enforc- may be required for any claim that you that it’s important not just to focus on the ing an English judgment in the U.S. is a wish to bring. So different countries, as differences in lawyers’ fees and arbitrators’ matter of the United States’ domestic law we’ve been hearing, have different rules fees, although that obviously is to be taken on enforcement, which may vary between on discovery or disclosure of documents. into account, but it’s equally important to states. In Europe, there has been great There are different rules on the way in consider whether a particular jurisdiction progress made in implementing EU-wide which evidence needs to be presented, and has cost-shifting rules, and if that jurisdic- regulations, so that there is a large measure different rules also on the access that you tion does, what proportion of costs might of standardization and enforceability of might have to the other side’s witnesses be recoverable from the other side, or judgments amongst European countries.

Of course it’s not always the case that a cross-border contract will contain a care- fully considered jurisdiction and governing law clause. It’s not uncommon for there to be a governing law clause but no jurisdiction clause. Sometimes there’s no clause at all. Or, alternatively, the parties may agree on a non-exclusive jurisdiction clause or some form of hybrid clause. So the situation might exist where one party can be sued only in their home country, whereas with the other party, it’s possible to sue them in any jurisdiction.

So, when you have a dispute arising out of that type of contract, you get the range of similar issues arising in terms of the substance of the dispute and the rights and obligations of the parties, procedural does mean that these are issues that par- I’d like to welcome anybody who’d like issues, practical issues and tactical issues. ties are increasingly locking horns over, to come up and say hello to the speakers. Just as a starting point, it would be neces- and that they are issues which need to be Thank you, Panelists, for sharing your sary to consider where proceedings can be considered at an early stage of any dispute. expertise, and thank you, Simon, for commenced, whether jurisdiction can be accepting our invitation to be honored. contested, where your client would prefer Thank you. to sue, where it’s best for them to sue, and SIMON EVANS: Thank you, Jack. then having worked that out, how best to JACK FRIEDMAN: Thank you. You can obtain and maintain that preferred forum see from a content point of view, the vari- on behalf of your client. ety of things that Simon has to deal with. It’s almost unbelievable. I can’t even imag- Any one of those issues can change the ine all these issues that have been raised in outcome of a cross-border dispute. So it just one program.

Sir Nigel Knowles is joint CEO and man- expanded into Continental Europe, Asia aging partner of DLA Piper. He has been and the Middle East. DLA Piper contin- managing partner since 1996 and in that ues to retain a strong regional presence time has led its growth from a regional U.K. in the U.K. with a total of eight offices. law firm to what is now the world’s largest The Continental European practice has law firm. Globally, DLA Piper has a turn- expanded rapidly and now has offices in over in excess of £1bn. Austria, Belgium, Central & Eastern Europe and the CIS, France, Germany, Italy, the Career History Netherlands and Spain. The Asian practice has grown steadily since opening in Hong Sir Nigel Knowles joined the Yorkshire Kong in 1988 and now includes offices in firm, Broomheads, as a trainee in 1978 and Bangkok, Beijing, Shanghai, Singapore and was admitted to partnership in 1984, spe- Tokyo. In 2006, DLA Piper’s first Middle cializing in corporate finance, private equity East office opened in Dubai, and was swiftly Sir Nigel Knowles and mergers and acquisitions. He quickly joined by offices in Abu Dhabi, Kuwait, Joint CEO and moved into the management sphere and in Oman, Qatar, and Saudi Arabia. Managing Partner 1990 was appointed head of the commercial group at Dibb Lupton Broomhead (follow- Perhaps most notably, in January 2005, ing the merger of Broomheads and Dibb Sir Nigel was instrumental in the single Lupton, which took place in 1988). Sir largest transatlantic law merger in recent Nigel’s career quickly accelerated from there history when DLA integrated with U.S.- and he was appointed to the board and the based firms Piper Rudnick and Gray Cary role of deputy Managing Partner in 1995, Ware & Freidenrich LLP. In the same year finally becoming Managing Partner in 1996. Sir Nigel was named Partner of the Year by Legal Week and DLA Piper was named Since that time, Sir Nigel has led the prac- Global Law Firm of the Year at The Lawyer tice through a host of successful mergers. Awards and Law Firm of the Year at the From a largely U.K. presence, the firm has Legal Business Awards.

DLA Piper require seamless coordination across mul- and nearly half of the FTSE 350 or their tiple jurisdictions or delivery in a single subsidiaries. As we build our global pres- location, they can count on us to deliver ence, we remain committed to maintaining the right service and solutions. regional practices around the world where With 4,200 lawyers located in 76 offices we do great work for longstanding clients. in 30 countries throughout Asia Pacific, We represent more clients in a broader This gives us an understanding of middle Europe, the Middle East and the U.S., range of geographies and practice dis- market clients and insight into the issues DLA Piper is a global business law firm ciplines than any other law firm in the facing both large clients and those seeking positioned to help companies with their world. Our client commitment is also our to establish a foothold. legal needs anywhere in the world brand — everything matters when it comes to the way we serve and interact with our Our Services DLA Piper became one of the largest clients. We offer a wide range of global services law firms in the world in 2005 through to address our clients’ business needs in a merger of unprecedented scope in the Our Clients all areas of business law. The Sectors we legal sector. We were built to serve clients Our clients range from multinational, address are: Banking; Energy and Water; wherever in the world they do business Global 1000, and Fortune 500 enter- Health Care; Hospitality and Leisure; — quickly, efficiently and with genuine prises to emerging companies develop- Insurance and Reinsurance; Life Sciences; knowledge of both local and interna- ing industry-leading technologies. They Sports, Media and Entertainment; tional considerations. Whether our clients include more than half of the Fortune 250 Technology; and Transportation.

Samantha Mobley is head of the EU, an experienced merger control specialist. Competition & Trade Practice of Baker She has been involved in numerous cases & McKenzie’s London office. She is also coordinating the merger aspects of multi- the leader of Baker & McKenzie’s Global jurisdictional transactions and regularly Antitrust and Competition Group, com- defends clients involved in international prising a team of over 300 competition and cartel investigations and prepares antitrust antitrust specialists worldwide. and competition programs for clients in all industry sectors. Samantha has extensive experience in all areas of EC and U.K. competition law and is an eminent name in the cartel field and Samantha Mobley Partner & Leader — Global Competition Practice

Baker & McKenzie Baker & McKenzie defined the global and insights of more than 3,750 locally law firm in the 20th Century, and we are admitted lawyers in 70 offices worldwide. redefining it to meet the challenges of the We have a distinctive global way of think- global economy in the 21st. ing, working and behaving — “fluency” — across borders, issues and practices. We bring to matters the instinctively global perspective and deep market knowledge

Richard Price is the head of our European clients regarding U.S. federal securities capital markets practice and the co-head laws, mergers and acquisitions, corporate of our European corporate practice group. governance and other corporate matters. Mr. Prior to his relocation to London in Price is a frequent speaker on U.S. securities August 2003, Mr. Price was based in law issues, international corporate finance Singapore, where he led our capital markets transactions and corporate governance practice in Southeast Asia and India and, matters. He sat on the Competitiveness prior to that, was based in our Toronto Working Group Committee of the office. He has extensive experience in Stock Exchange of Singapore and the representing both issuers and underwriters Corporate Governance Committee of the in a wide range of international corporate Government of Singapore. He is cited as finance transactions. He has overseen a leading corporate finance lawyer in the Richard Price investment grade debt, high yield debt most recent editions of Chambers Global, Partner & Co-Head — and equity offerings by issuers in a wide Chambers Europe, Chambers U.K., The Legal Corporate Practice range of industries. Mr. Price’s practice 500 and Legal Experts. includes providing advice to corporate

Shearman & Sterling Shearman & Sterling has been advising of Rohm & Haas and sale of Morton many of the world’s leading corporations International and its calcium chloride and and financial institutions, governments and Styron businesses; Suncor Energy in its governmental organizations for more than $15.8 billion merger with Petro-Canada; 135 years. We are committed to providing Brazilian conglomerate JBS in its acquisition legal advice that is insightful and valuable of U.S. poultry company Pilgrim’s Pride to our clients. This has resulted in ground- through a bankruptcy proceeding; Société breaking transactions in all major regions of Générale in combination of its asset man- the world, including: Asia, the Middle East, agement operations with Crédit Agricole’s; Europe, Latin America, and North America. and Sterlite in its $500 Million Convertible Bond Offering in India. We have also advised on some of the world’s most notable transactions and matters, rep- Together, our lawyers work across resenting: the Yukos shareholders in their practices and jurisdictions to provide the $100 billion compensation claim against highest quality legal services, bringing Russia; Cadbury in its $19.4 billion acqui- their collective experience to bear on sition by Kraft; Panama Canal Authority the issues that clients face. For example, in its $5.7 billion canal refinancing plan; underpinning the quality of our work IntercontinentalExchange in its acquisition firmwide are our shared values. of The Clearing Corporation and formation of a credit default swap clearinghouse; The We take pride in the successes of our clients Dow Chemical Company in its acquisition and in our contributions to them.

Rani Mina is a partner in the Commercial • Representing a large airline in an ICC Dispute Resolution team at Mayer Brown arbitration involving a significant IT out- International LLP in London. She focuses sourcing dispute. on commercial dispute resolution and international arbitration in the banking and • Represented one of the world’s leading finance, IT and telecommunications, out- suppliers of intelligent market informa- sourcing and procurement and mining sec- tion in a complex network and IT out- tors. Rani has wide experience of acting for sourcing dispute. financial institutions, companies, corporate trustees, directors and shareholders, private • Represented an Israeli telecommunica- equity funds and joint ventures in complex tions company in a claim against a global litigation and international arbitration. mobile telephone operator for termina- Rani Mina tion of an IT outsourcing contract. Partner Rani has a particular interest in the reforms to civil litigation costs arising out of Sir • Conducted proceedings on behalf of the Rupert Jackson’s review and in alternative investment arm of a major U.S. corpora- litigation funding generally. She has written tion to prevent the improper variation a number of articles on these issues and of rights attaching to its shares in a U.K. provided comments for media publications. investee company.

A selection of notable engagements Rani is a graduate of Griffith University includes: (LLB, First Class Honours; BA 1998). She is admitted as a Solicitor-Advocate (Higher • Acting for a corporate trustee in an arbi- Courts Civil Proceedings), as well as admit- tration arising out of pipeline shipping ted as a Solicitor of the High Court of arrangements between oil producers in England and Wales and the Supreme Court Russia and Kazakhstan. of Victoria and High Court of Australia.

• Acting for an international bank in a claim against a Middle East bank arising under a letter of credit.

Mayer Brown Mayer Brown is a leading global law firm managing pan-European, transatlantic and advising clients across the Americas, global projects. Europe and Asia. The firm is known for its client-focused approach to provid- Mayer Brown is noted for its commitment ing creative solutions to complex prob- to client service and its ability to solve lems on behalf of businesses, governments the most complex and demanding legal and individuals. Mayer Brown is particu- and business challenges worldwide. The larly renowned for its Supreme Court firm operates in association with Tauil & & Appellate, Litigation, Corporate & Chequer Advogados in Brazil and has an Securities, Finance, Real Estate and Tax alliance with Ramón & Cajal in Spain. practices. The firm serves many of the world’s largest companies and financial services organiza- Mayer Brown advises on both regional and tions, including a significant proportion international transactions and litigation of the Fortune 100, FTSE 100, DAX and and its lawyers have extensive experience Hang Seng Index companies and more than half of the world’s largest banks.

John D. Brinitzer is a partner based in the From 1992 to 1996, he was resident in Paris office. the Paris office, and returned to Paris in 2000 following four years in New York. Mr. Brinitzer’s practice focuses on interna- Mr. Brinitzer received a J.D. degree from tional capital markets, mergers and acqui- Harvard Law School in 1990 and a B.A. sitions, and corporate transactions. He is degree, summa cum laude, from Amherst distinguished as a leading capital markets College in 1986. lawyer by Chambers Global. Mr. Brinitzer is a member of the Bars of Mr. Brinitzer joined the firm in 1990 in New York and Paris. His native language is New York and became a partner in 1999. English and he is fluent in French. John Brinitzer Partner

Cleary Gottlieb Steen & A leading international law firm with 14 admitted to practice in numerous jurisdic- Hamilton LLP offices located in major financial centers tions around the world. Since the opening around the world, Cleary Gottlieb Steen of our first European office in 1949, our & Hamilton LLP has helped shape the glo- legal staff has included European lawyers, balization of the legal profession for more most of whom have received a portion of than 60 years. Our worldwide practice their academic legal training in the United has a proven track record for innovation States and many of whom have worked as and providing work of the highest quality trainees in one of the firm’s U.S. offices. to meet the needs of our domestic and The firm was among the first international international clients. In recognition of the law firms to hire and promote non-U.S. firm’s strong global practice, its effective- lawyers as equal partners around the world. ness in dealing with the different business cultures of the countries in which it oper- Our clients include multinational corpora- ates, and its success in multiple jurisdictions, international financial institutions, tions, Cleary Gottlieb received Chambers sovereign governments and their agencies, & Partners’ inaugural International Law as well as domestic corporations and finan- Firm of the Year award. cial institutions in the countries where our offices are located. Although each of our Organized and operated as a single, inte- 14 offices has its own practice, our “one grated global partnership (rather than a firm” approach to the practice of law offers U.S. firm with a network of overseas clients in any office the ability to access offices), Cleary Gottlieb employs approxi- the full resources of all of our offices and mately 1,200 lawyers from more than 50 lawyers worldwide to the extent their mat- countries and diverse backgrounds who are ters so require.