Please outline the work your firm does and the ways in which you distinguish yourself in the provision of commercial law advice.
The Bird & Bird Commercial team advises on the whole remit of commercial work including supply and manufacturing agreements, standard terms and conditions of supply and purchase, sales, marketing, advertising and promotion agreements, representation, agency, distributorship and franchise arrangements, joint ventures, co-operation and collaboration agreements, strategic partnerships, procurement, outsourcing and licensing, research, development and exploitation agreements.
Bird & Bird’s commercial team stands out due to:
• Its specific focus on acting for clients being changed by technology or the digital world; we are at the forefront of the legal market when it comes to advising on strategically significant agreements and transactions for multinational clients across all industry sectors as we are considered the go-to firm for support when technological change presents challenges and opportunity to clients' businesses and industry sectors.
• Operating internationally as a single equity pool partnership. We have our own offices in each of our jurisdictions staffed with lawyers who are expert in the commercial law of their own country, but with the collaborative attitude and the common vision that comes only from all being a shareholder in the same venture. Our clients, often with international operations, profit from the delivery of the highest-calibre international commercial advice in fully cohesive multi-national teams who work together to achieve effective and elegant business solutions for them.
• Being one of the very few stand-alone commercial teams, unlike other firms where Commercial is a subset of the Corporate practice group, we are one of, if not the largest, standalone commercial practices in the world.
• We have unparalleled specialisation within the group with a practical approach to the law. We are home to leading sector specialists who advise world-leading organisations on all aspects of contracts law, and the majority of our lawyers have completed secondments working with the clients in their organisations, which gives us the edge on the depth of industry knowledge that we can bring to every project.
• Our expertise in developing and innovative areas where, in many instances, we’re at the forefront of the legal developments. These specialist areas include; blockchain, mobile health, satellites, cloud computing, robotics and autonomous/connected cars.
• Being more than just commercial lawyers; we recognise the need to look beyond just the detail of the law but to act as 'trusted advisors', advising on the best way to operate their core business processes and on their extensive expansion strategies, particularly into overseas markets. Our unique client services, such as CyberBox – which offers a full cyber solution including resilience and bespoke solutions such as regarding franchise contracts and agreements – sets us apart from others in the market.
What are the most significant commercial projects that you have advised on in the last 12 months?
With the size of our business the list of significant projects is huge. To give you a flavour of the sort of ground-breaking deal we get involved with, we acted for EY on the establishment of a joint venture with Guardtime, one of the world's leading blockchain solutions companies, which is set to transform the $30 billion global marine hull insurance industry.
The joint venture company, InsurchainConnect Limited, has developed a platform named "Insurwave", which leverages blockchain and distributed ledger technologies, Microsoft Azure infrastructure and ACORD data standards. It revolutionises how global businesses in the marine hull insurance industry manage risk across their organisations, and how they work with brokers and (re)insurers.
This is the world's first blockchain platform for marine insurance now in commercial use, and we were the only firm providing legal advice. Furthermore, it is one of the most significant and largest legal matters involving Blockchain technology to date.
Your firm advises clients on the whole remit of commercial work. Have any facets of this work been particularly prominent recently?
COVID-19 has caused a flurry of activity with clients asking for support to address supply chain issues and other lockdown-related issues. So, the advisory aspect of our work has been very busy indeed.
We have also been looking to the anticipatable consequences of this episode. With outsource consultancy, SquareRED, we have very recently launched a service contract review programme that assesses both the operational and contractual aspects of service contracts to assist businesses who are looking to “right size” their service arrangements. The contracts in place today are likely to have been entered into in financially easier times, with a focus on expansion as opposed to contraction, and with less pressing financial constraints. Our programme helps identify where belts can be safely drawn in; how the present contracts may support the need to adjust the supply to what is now needed and what can now be afforded; and it supports the consequential adjustments from a very practical approach. The present circumstances affect supplier and customer alike, and so a non combative practically minded approach is key to reaching good solutions.
What challenges do businesses commonly face when adapting to technological change? How do you assist companies to overcome these challenges?
The pace of digitalisation puts present business models under review. Disruption and digital transformation will accelerate and intensify changes across business sectors, especially in the post COVID-19 environment – as companies look to streamline complex global supply chains and cut costs through the use of automation and reliance on data.
There are estimates that approximately 40% of the companies that are around today will not exist in 10 years, because they either did not implement the digital change in a timely manner or they did not implement it at all.
It is imperative that you partner with a law firm that understands the potentially disruptive as well as beneficial interaction of digitalization and technology change.
Our experience advising on some of the most complex digital transformation programmes in the world sets us apart from other law firms. We are able to liaise seamlessly with our clients’ technical advisors, given our understanding of technology terminology, and offer insights from lessons learned from previous projects. Our experience of technology providers and the industry also means we can offer more than just legal support; for example, we are equally happy drafting the underpinning agreements as we are advising on the advantages and disadvantages of different software development approaches. We are also well used to rolling up the sleeves and providing input into technical documentation such as service levels, security arrangements and support terms.
In a recent article you stated that cyber security is of increasing concern for all businesses worldwide. Are there any sectors that are particularly at risk? How can you help businesses in these sectors mitigate this?
Sadly, risk associated with cybersecurity is an ever-present feature of technology-dependent business life. The weight of cybercrime continues to grow, and with it, the impact on business in terms of the frequency of attack and the impact suffered. It has always been a case of “when”, not “if”, businesses will experience a cyber security incident, but it is only now that there is a much wider realisation that there is no technological panacea, and that businesses have to prepare for how to deal with an incident.
The extraordinary circumstance of having a material segment of global business being conducted from homes hasn’t passed the cyber criminals by. With an astonishing array of people’s computing devices in daily operation. stretching from my daughters’ nearly new Mac Book Airs, to my antediluvian desktop system, it is no surprise that there is both a perceived surge in vulnerability and the crime wave to meet that vulnerability.
The sectors most at risk are entirely predictable. Cyber criminals tend to focus on large aggregations of valuable data. It is no surprise then that airlines, banks, credit information agencies, mass hotel chains and the like are high-level targets.
Tracking back to the “when” not “if”, a key mitigation is to ensure that equal energy and expenditure is spent on preparation to address a cyber incident as to buying apps and equipment to seek to secure your network. Working out response plans, up-skilling response teams, educating the staff and practising what to do in a crisis are all key parts in mitigating cyber incidents better. Of course, it always helps to have the seventh cavalry on speed dial, and that’s where we come in.
It is key to meet the cybersecurity challenge with a multidisciplinary perspective. Improving cyber resilience needs the input of a number of specialisms. Yes, you need lawyers and compliance experts, but you also need in your integrated team input from cyber experts covering forensic IT, insurance, PR and communications, physical security and the like. It was for this reason we established our award-winning CyberBox offering.
Has the COVID-19 pandemic had a significant impact on the commercial work you have been involved in this year?
As mentioned, we have seen a flurry of activity that is directly COVID-19 impact related. That work has been largely advisory – decoding what contracts say that has relevance to the facts on the street. Understandably, we have also seen some commercial projects being put on hold while clients wait to better understand the likely impact of the virus.
While we remain holding our breath, and without wishing to tempt fate, I think we are very lucky to have seen work holding up and projects still being incepted. Long may that continue!
Do you anticipate a longer-term impact on your work as a result of the pandemic?
Having lawyered through all of the recessions since 1990, I have a good muscle memory of how we do it and the anticipatable impacts on our clients! Many of the strategies that were effective in helping businesses address recession in 1992 and 2008 will have good application today. The review programme mentioned above is a renovation of a successful strategy that proved its worth in 2008.
The difference to earlier recessions will largely be driven by technological advance. Technology today offers a spectrum of opportunities that were simply not available in the early ’90s and 2008-2009.
Change is here and now, and technology will help us adapt to and profit from the change.
Do you believe that outsourcing will have a significant role to play in the economic recovery following this crisis?
Outsourcing always sees an uptick when the cold winds of recession blow. The opportunity to chase cost savings by externalising functions to outsourcing specialists is certainly one that should be assessed when businesses are working out how to adapt to the financial pinch. I do expect cash-strapped businesses to evaluate outsourcing as an option to seek to save money, but how significant that role will be in helping us climb out of recession I am not sure.
It will be interesting to see if the business impact of COVID-19 causes a move away from offshoring, with caution driving a desire to have critical service supply closer to hand.
What other factors do you expect to have an impact on commercial law in the next 12 months?
You want more than a global recession and the continuing effects of a pandemic? That Scylla and Charibdis are more than enough to keep us going, surely!