It is 28 degrees Centigrade here in London as I write this newsletter. Nevertheless, summer holidays have now been taken, workers are now reacquainting themselves with a commute to work as offices reopen and furlough in the UK comes to an end, and school children have started their autumn term. Life as we knew it pre-pandemic is in some respects, in certain parts of the world, returning. There is no doubt that how we view business travel, in light of the new technologies we are now very familiar with, has changed. However, zoom cannot always be a substitute for face-to-face meetings and I am looking forward to meeting again friends, clients and colleagues in the UAE and Paris over the next couple of months, as international travel restrictions ease.
We have had a really interesting variety of work since our last newsletter, again working for clients in the energy industry and the wider business community. Outside of the energy industry this has included working for a management buyout team in the manufacturing sector, an entrepreneur in the UK roll out of a US branded retail products business, on-going legal support for a UK financial services organisation and on the establishment of a joint venture business of a UK supplies company in UAE. In the energy sector, we have acted on the sale of North African upstream oil and gas interests, the purchase of an operated upstream oil and gas interest in a former CIS country, for the seller on a suite of Middle East gas supply arrangements, advising an oil field services company on a proposed Russian joint venture and advising an entrepreneur on a royalty and marketing arrangement for an upstream interest in South America. We have assisted clients in the understanding and application of new pieces of legislation which may well affect you in the coming years – more on that below.
For clients with business interests in UAE or considering establishing operations there, the long-standing requirement for UAE companies to have one or more UAE shareholders holding in total at least 51% of the issued share capital has been removed, with final effect from 1 June this year. The former requirement to appoint a national service agent for the registration of a branch or representative office in the UAE (outside the Free Zones) has also been abolished. Working with our relationship UAE law firm ,we are now advising several clients who are benefitting from the lifting of these restrictions. Helpfully, both the Abu Dhabi and Dubai Departments of Economic Development have listed over 1000 commercial activities where 100% foreign ownership is now permitted. For clients who have existing operations in the UAE, this may now be a good time to revisit your UAE structure and ensure it is still appropriate for your business. If it is not, clients now have more flexibility to change it.
Now to an imminent change in the UK, which gives the UK Government greater oversight over foreign investors setting up in the UK by way of acquisition. The National Security and Investment Act 2021 will come into force on 4 January 2022 so we are ensuring that our clients are aware of its application now. The Act gives the Secretary of State for Business, Energy and Industrial Strategy far greater oversight over mergers and acquisitions in 17 sectors, on national security grounds. The 17 sectors include energy, transport, advanced materials, communications, computing hardware and data infrastructure. “National Security” is not defined. Acquisition of control of qualifying entities requires a pre-notification to the Secretary of State for approval. There is no de minimis threshold on transactions and it applies equally to UK and non-UK buyers. The Secretary of State also has the power to call-in transactions for consideration if there is a reasonable suspicion that the transaction may give rise to a national security risk. Failure to notify constitutes a criminal offence punishable with prison sentences of up to five years for the buyer’s directors and civil penalties of up to the higher of 5% of the company’s global turnover and £10 million. A transaction completed without prior approval is automatically void. Clearly, practical deal considerations flow from this new legislation. Notifiable transactions will be completed under the sale and purchase agreement often conditional on clearance under the Act. The practical impact of the new law can be seen from the Government’s own numbers – it expects 1,000 to 1,800 notifications per year under this new regime. Clearly, this may cause a timing lag to the achievement of deal completion.
Finally, in another development which has international dimensions, we are starting to increasingly see the UK Government following a similar but no longer identical path to the EU in relation to its sanctions legislation. From when the Brexit transition period ended on 31 December 2020 the UK has implemented its autonomous sanctions regime, the framework of which is set out in the Sanctions and Anti-Money Laundering Act 2018. The UK sanctions regime is still broadly similar to that of the EU and we expect it to continue to be so, albeit with closer alignment also to the regimes of USA and Canada. For example, UK asset freezes now automatically apply to entities that are owned or controlled by a person on the UK’s asset freeze list, which is not the case for the EU legislation. UK trade restrictions now extend to the provision of financial services relating to prohibited trade rather than only the provision of financial assistance under the EU legislation. Under certain trade restrictions under the UK legislation they apply to persons “connected” with the targeted country rather than just in relation to the supply of goods, funds and services to that country, which is generally the EU approach. What does this mean in practice? We can no longer treat the UK and EU sanctions legislation as homogenous. To do so may lead the unwary to inadvertent breach, particularly of the UK legislation.
Please do let me know if you would like further information about any of the matters covered in this note.
With best regards
Time has flown by! It is already more than three months since I launched BoothLaw as a new boutique international business law firm (www.boothlaw.co.uk). I am delighted to report that we have been busy from the start. We have had the pleasure of working for new clients and old friends. Personally speaking I have enjoyed immensely working alongside my new BoothLaw colleagues, some of whom I had worked with previously and others who I have admired from across the negotiating table for many years and who I am pleased to say are now part of our business. It has also been terrific talking to long-standing colleagues in independent law firms in those jurisdictions key to BoothLaw clients and who are keen to work with us to provide a seamless service to our clients internationally.
Global energy consumption is predicted to increase by 1/3 by 2040 and 85% of that increased demand is expected to be met by renewables and natural gas. Demand for oil is expected to increase at least for the next decade. Our lawyers have been active in supporting clients throughout this energy chain. This has included working for the seller of its African upstream interest, a client developing gas processing infrastructure in the Middle East, a client in the oilfield services sector undertaking a review of its customer terms and conditions and agency arrangements, a client in its purchase of LNG and development of regasification facilities for a large independent power programme, and being appointed by a client embarking on the first stages of a solar PV power project.
BoothLaw is first and foremost a business law firm and we have also enjoyed working with clients in the manufacturing and logistics sectors, the IT industry, in real estate development and the aviation sector. This has involved us in helping clients with respect to a wide range of matters – including shareholders’ agreements, distribution arrangements, know-how licensing and debt financing. Each sector is different but there are certain skills which the best lawyers display whatever the business – knowing the goals of your client, an understanding of how contracts work, a keen sense of how commercial aspects and legal aspects interact, effective communication of sometimes complex legal issues, precise drafting skills and the ability to develop close working relationships with the client and respectful working relationships with the counterparty. It is only with this combination of skills that BoothLaw is able to deliver on our statement on the home page of our website – ‘the best legal advice delivered clearly, on time and on budget’.
There have been legal developments aplenty since we started business, many of which may raise important risks or opportunities for our clients’ businesses. Some major international corporations have been in the headlines for the wrong reasons in the last 3 months – in relation to bribery or corruption allegations. Some allegations were proven and resulted in huge fines, some were not. However all resulted in reputational damage, took up huge amounts of management time, resulted at best in personal stress and at worst in criminal liability of company executives and will have resulted in difficult conversations with customers, lenders, investors and potential clients. The UK Bribery Act, the US Foreign Corrupt Practices Act and the domestic legislation of several other developed jurisdictions have extra territorial effect – that is they can apply to activities outside of their home jurisdiction, Let us know if we can assist in drafting and implementing procedures to limit the risk of your business and employees falling foul of this legislation.
“The end of LIBOR” – the London Interbank Offered Rate. I don’t expect that is going to send your pulse racing but we are in the final countdown of LIBOR being consigned to the history books – by the end of this year if not earlier. Particularly where your contract provides for interest to be paid on a loan or for an interest rate for late payments, the basis of the calculation may be one of the LIBOR rates. Many of those contracts may not have envisaged LIBOR no longer being quoted or what arrangements should then be put in place. Please let us know if you would like further information.
You may be aware of the Uber case in the UK Supreme Court, where Uber drivers in England were held to be employees of Uber rather than self-employed. This has significant consequences, for the Uber drivers and the employer, the drivers are now entitled to a range of (backdated) employee rights such as a statutory minimum wage, protection against unlawful deductions from pay and entitlement to paid leave. We can now expect a floodgate of claims in UK about the same issue as well as, we understand, similar claims in European countries and elsewhere. In a connected issue only last week the new IR35 rules came into effect in UK, whereby individuals providing their services through personal service companies (so benefitting from certain tax advantages compared to employees) will now have to satisfy certain criteria so as to continue to be judged not as employees. Essentially the issue is very similar whether based on the Uber case or the new IR 35 rules. Is the individual in question being managed and directed in what they do and using the “client’s” equipment to do their work? This determination can have a profound effect on how a business should structure its work force. Striking the right balance between employee rights, the wish of many workers for flexibility in their work life, the need for Government to raise taxation revenues and to support an entrepreneurial economy, is a challenge for authorities and businesses globally. Please let us know if we can help you in managing this process.
Finally one which will be of most interest to our oil and gas clients, many of whom have operations in Iraq or plan to do so as the security and political environment improves. Iraq has just ratified what is known as the “New York Convention”, becoming the 167th country to do so.. This means that, subject to certain limitations, arbitration awards issued in other ratifying states (e.g. UK, France, Switzerland, UAE and Singapore) should be automatically enforceable in Iraq. This immediately broadens the overseas investor’s choice to adopt a recognised arbitration location and rules to determine disputes where the counterparty is Iraq based.
A final thought in relation to the last three months. We have heard in the media lots of talk of people having “different truths” about the same event, of politicians operating in “echo chambers”. It is easy and often comforting for us to operate in our echo chambers, in the papers we read, the people we talk to, the friends we make, the TV programmes we watch. I know from talking to my own two children, who are now young adults, that we can have “different truths” about a public event. I am reminded that we always need to bear this in mind in negotiations, whether it is in relation to a term in a contract or a matter in dispute in court proceedings. Progress can often be made when one does not only listen to or value voices in one’s own echo chamber in a negotiation and where one questions one’s own truths. That helps give us insight into the counterparty’s position which assists in bringing negotiations to a speedy, cost effective and excellent outcome. The opposite position is best illustrated by one of our best known breakfast TV presenters in UK. He recently stormed out of a TV studio when one of his co-presenters disagreed with him. As a consequence our understanding of the subject to be discussed was not developed and no agreement was reached between the two presenters. The presenter was unwilling to step out of his echo chamber and respect the co-presenters “truth”. The TV presenter is now looking for other employment.
George Booth 13 April 2021
George Booth was delighted to be interviewed by law students at Nottingham Trent University on 28 January 2021 as part of their Commercial Awareness programme.
George commented “It is so important to break down barriers to the profession and to ensure that law students have a clear idea as to the vast and exciting opportunities being a commercial lawyer presents. I was delighted to participate and I hope the students found the session useful. Contribution to this event was part of BoothLaw’s CSR programme which is integral to the fabric of the firm”.
George Booth is delighted to announce today the opening of the energy and business law firm BoothLaw.
George commented ”This is a really exciting day for me. I have believed for some time that there is a desire from the business community for a new breed of law firm, offering close collaborative client relationships, senior level specialist expertise and the cost benefit and flexibility of a boutique law firm. We offer this.
Much of the inspiration for BoothLaw has come from clients and colleagues, friends and family, who have willingly given up their time and shared their knowledge to help get BoothLaw to this stage. You know who you are. I thank you all.
The BoothLaw team is now keen to get started!”