A general counsel’s view

Report on session at 6th IBA Global Entrepreneurship Conference, 16 – 17 May 2022, presented by the IBA Closely Held and Growing Business Enterprise Committee

Pedro Fernández

Pérez-Llorca, Madrid
pfernandez@perezllorca.com

Session Co-Chairs

Alejandro Payá Cuatrecasas Barcelona; Chair, IBA Closely Held and Growing Business Enterprises Committee

Philip van Hilten AKD, Amsterdam

Speakers

Pauline Bottema-Sanders General Counsel, Edge Technologies, Amsterdam

Vincent Brugge VP General Counsel EU & Asia, ICL Group, Amsterdam

Nora Klug Group General Counsel, Robert Bosch GmbH, Stuttgart

Martin Roberts Senior Underwriter, Liberty Global Transaction Solutions, Amsterdam

Caroline de Waele General Counsel, Darling Ingredients, Amsterdam

Session Report

Alejandro Payá opened the session and after a short introduction of the participants, raised a relevant question: what are the learnings and the practical lessons identified during the last two years? When Covid-19 and the lockdown stopped the world.

Nora Klug said that, for her, the most relevant learning experience is the importance of people. We cannot underestimate the relevance of people joining together. We all learnt that remote functioning works. Tasks are completed and the business is maintained, but it is difficult to innovate and to integrate people and teams without any presence. Thus, a mix model (remote and physical work) is the ideal.

Another learning is that the senior roles of the company have to focus in leadership, in transmitting the values of the company and to maintain a positive spirit in difficult times.

Vincent Brugge highlighted the relevance of the empathy in the decisions and its communication. There were, and are, people in terrible circumstances (Shanghai at the beginning of the Covid-19 pandemic, then the world was locked down, and now the situation in Ukraine).

Pauline Bottema-Sanders commented that in this scenario many laws and regulations were new. For her, it was very important to have a proper open line with the authorities to understand how they see and execute all those new regulations. They were approved very fast and frequently real consequences were not tested or thought through very well.

After some discussion of experiences regarding situations during the pandemic that the participants will never forget (such as the moment of the lockdown, the complete stop of transactions and business, etc), Caroline de Waele commented that in difficult moments like those, there are always opportunities to improve your product, your business and, of course, the situation of your employees.

Philip van Hilten asked the participants if, in those moments of crisis, companies need to make decisions based on legal grounds or has there been a relevant extra-legal component?

Pauline Bottema-Sanders remarked that in such extreme scenarios, external counsels’ opinion, for example, in relation to the obligation to comply with an agreement, was very relevant. It is important to know how far one can stretch an agreement, but at the end of day it is necessary to speak with the other party and the need to understand each other’s situation and to try to reach an agreement.

Brugge and de Waele commented that it was very important to balance measures. Global decisions and measures needed to be adapted to different jurisdictions and environments. In others words, measures are needed to ensure the safety of employees and other people, but the measures also need to be practical and workable and therefore adaptable to different countries and regions. Klug added that she was very surprised how quickly organisations and people adapted to the crisis.

This comment led to the next topic raised by the moderators. In these unusual times, what was the role of the general counsel and the external counsel?

All the participants said that general/legal counsels are becoming a long-term strategic partner of the board of directors. Their role not only concerns legal topics, but they can advise on how to anticipate future problems. In this sense, it is essential that the experience and network of the external counsel law firms share their experience with other clients, the channels with the authorities in different countries: ’All this is beyond law’.

Finally, participants agree that they need the external counsel to think as a general counsel (‘we all need you to become a general counsel’). In order to achieve this, both parties’ general counsel and external advisors need to invest time in explaining and understanding the business. External counsels need to know and understand the business to be able to give proper advice. Only with an understanding of the importance and particularities of their company can they create a road map and anticipate problems.