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Welcome to the electronic sample edition of the International In-house Counsel Journal. These papers have recently been published in print and together with all other IICJ papers are available for subscribers to read on-line. To view all papers published by the IICJ visit the IICJ library at http://iicj.net/accesslibary.html
The International In-house Counsel Journal is published in print quarterly and electronically 10 times a year. To subscribe to the IICJ please visit this link: http://iicj.net/subscribenow.html
Corporate Governance of listed companies: function, models and instruments.
Brief notes on the experience of a listed Italian Group
Francesco Chiappetta, General Counsel, Telecom Italia S.p.A., Italy
Corporate Governance: one size fits all?
Corporate governance has become one of the issues of greatest interest for those who work within a listed company. Recent years have seen a growing demand for fair, efficient and effective governance, especially for large cap listed companies, owing on the one hand to the development and the globalization of financial markets and on the other to the succession of financial scandals that have diminished their reliability and transparency.
The response has been the adoption of far-reaching legislative measures in various countries, such as the Sarbanes-Oxley Act of 30 July 2002 in the United States and Law 262 of 28 December 2005 on the protection of savings and the regulation of the financial markets in Italy, but also the production of recommendations of international and national authorities and self-regulatory codes. Although the latter do not have the force of law, they nonetheless affect listed companies' conduct and with their adoption on a voluntary basis contribute to the establishment of best practices.
This extensive production of documents has not led to a single definition of corporate governance but rather to a variety of solutions in which separate aspects and functions are chosen and combined from time to time in light of the peculiar features of individual countries in terms of their approach to corporate governance and its problems and according to the differences in their economic and financial systems.
A Passage to India - Practical Legal Considerations for Setting Up A Business In India
RUSSELL L. BOLTWOOD, Vice President, Licensing & Intellectual Property, UTStarcom, Inc., USA
''When an elephant is in trouble, even a frog will kick him.'' - Hindu proverb To businesses of every size, the opportunities within India are compelling. Possessing a highly-educated workforce, a large population with ever-increasing per capita income, and a government which (most recently) has focused its fiscal and monetary policies towards supporting economic growth and business development, India has emerged as one of the essential places for businesses to establish themselves. Whether viewed as a market for the sale of products, or as a low-cost theatre for the outsourcing of business functions, companies of every size and type are aggressively developing strategies which include a presence within India. However, as the above proverb suggests, foreign companies who intend to do business in India must come to grips with a business culture and legal system which differs in many important ways from those found in either the United States or Europe. For the legal practitioner who advises businesses which intend to establish operations within India, it is thus essential to be aware of these differences when helping your client with the legal aspects of establishing a business presence within India.
The Role of Internal Audit in Corporate Governance. Case: Fiat Group
MAURO DI GENNARO, Chief Audit Executive & Compliance Officer, FIAT Group, Italy
Recently there has been considerable interest in the Corporate Governance practices of modern corporations. New approaches to doing business have increased the risks connected with the achievement of company's goals. The introduction of new technical devises, for instance, the use of the Internet for carrying out transactions massively took off starting from the 1990s onwards. Subsequently, this increased the risks of intrusive attacks, made the issue of business continuity a more critical one and placed a stronger emphasis on the need for disaster recovery plans. Also, the worldwide spread of business into 'new markets', such as the Asian market, has provided new risks as well as refocusing attention on a system of control, for example the Asian financial crisis in the latter half of the 1990s. Moreover, the high-profile collapses of a number of large U.S. firms such as the Enron Corporation and Worldcom in the early 2000s, as well as lesser corporate debacles, such as Adelphia Communications, AOL, Arthur Andersen, Global Crossing, Tyco, and, more recently, Fannie Mae and Freddie Mac, Parmalat, etc. led to increased shareholder and Governmental interest in Corporate Governance which culminated in the approval of the Sarbanes-Oxley Act of 2002 and in the SOX (Sarbanes-Oxley Compliance Projects). Last but not least, the ever stronger institutionalisation of the markets in which buyers and sellers are largely institutions (e.g., pension funds, insurance companies, mutual funds, hedge funds, investor groups, and banks) also reveals an increasing need for professional diligence to protect the community at large in terms of safety and welfare.
How To Run Your In-House Legal Department Like a Profit Center
SUSAN M. DIEHL, Senior Vice President , Logistics and Supply Chain, Holcim (US) Inc.
I have always had a love of business, even when I knew I wanted to be a lawyer. Reality set in at my first in-house position, during the height of an industry slump. That job taught me what often defines the life of corporate positions: being .overhead. . I learned that when times get tough, "overhead" gets going (right out the door). The nearly quarterly demands to trim our already meager ranks were also accompanied by the question - "what, exactly, is it you do?" This hard lesson spurred a journey to prove that what an in-house lawyer does is something worthwhile for business. The question is how to define and demonstrate the value creation potential of an in-house legal function. Despite numerous articles on law firm convergence, e-billing, and TQM for dummies, none provided me a road map of how to translate individual actions and transactions into a total system for value creation. This system also needed to be translatable to the business. Ultimately, the answer came from the principles of business itself - strategy and execution.
In this article, I will discuss how our company.s legal function evolved from an assembly of high quality lawyers acting individually, to a highly performing team that has leveraged its small size by using tested business principles to create and execute a strategy. The goal - to be a corporate service that adds to, not detracts from our company's bottom line - is still a work in progress. As with most things, the fundamentals are critical. Then, it is about basic strategy, execution and continuous improvement.
Competition Law and the European Financial Services Sector: An Overview of Recent Developments
PHOEBUS ATHANASSIOU, Legal Counsel, European Central Bank, Frankfurt am Main, Germany
The European Commission has recently been channeling more resources to the enforcement of competition in the financial sector in an effort to combat the financial industry's continuing fragmentation. Contrary to the Commission, the European Court of Justice has taken an early interest in the application of antitrust rules to the activities of financial intermediaries.
The purpose of this article is to provide an overview of the Commission's recent financial sector-related competition enforcement decisions and initiatives and to examine some of the hitherto jurisprudence of the Court in this area. By way of comparison, and with a view to drawing some insights on the likely outcome of a financial services-related challenge of the concurrent application of antitrust and sector-specific regulation, this article will also briefly examine the situation across the Atlantic where a recent decision of the Supreme Court of the United States has emphatically rejected the applicability of antitrust rules to the financial services sector.
Electronic Contracts: Where We've Come From, Where We Are, and Where We Should Be Going
RUTH ORPWOOD, Legal Counsel, Dell Canada
The power and importance of contracts can hardly be overstated. Contracts constitute the legal foundation upon which business is transacted around the globe. A contract can be as informal as buying your morning coffee or as complex as a heavily negotiated multi- party, multinational corporate acquisition. It is also near to impossible to overstate the impact of the rise of the Internet and electronic commerce - the number of people online has surpassed 1.3 billion, and of those, more than 85% have used the Internet to make a purchase.1 My goal is to dig through some of the rubble created as the traditional world of contracts and the new frontier of e-commerce have collided.
A good starting point is to know what we're looking for. I will begin with a short description of the essential elements of a contract and general contract law principles. For perspective on how the law of contracts has adapted in the face of modernization and technological advances, I will look to historical milestones such as industrialization and the use of different communication methods and technologies.
Making our way to the present, I will provide a brief and selective survey Canadian and U.S. case law dealing primarily with online contracting. A review of international and regional efforts and accomplishments in the areas of legislative harmonization, functional equivalency, and consumer protection will be discussed. Finally, I will offer some thoughts on what is needed to improve upon the practice of electronic contracting for the future.
How To Run Your In-House Legal Department Like a Profit Center
SUSAN M. DIEHL, Senior Vice President , Logistics and Supply Chain, Holcim (US) Inc.
I have always had a love of business, even when I knew I wanted to be a lawyer. Reality set in at my first in-house position, during the height of an industry slump. That job taught me what often defines the life of corporate positions: being .overhead. . I learned that when times get tough, "overhead" gets going (right out the door). The nearly quarterly demands to trim our already meager ranks were also accompanied by the question - "what, exactly, is it you do?" This hard lesson spurred a journey to prove that what an in-house lawyer does is something worthwhile for business. The question is how to define and demonstrate the value creation potential of an in-house legal function. Despite numerous articles on law firm convergence, e-billing, and TQM for dummies, none provided me a road map of how to translate individual actions and transactions into a total system for value creation. This system also needed to be translatable to the business. Ultimately, the answer came from the principles of business itself - strategy and execution.
In this article, I will discuss how our company.s legal function evolved from an assembly of high quality lawyers acting individually, to a highly performing team that has leveraged its small size by using tested business principles to create and execute a strategy. The goal - to be a corporate service that adds to, not detracts from our company's bottom line - is still a work in progress. As with most things, the fundamentals are critical. Then, it is about basic strategy, execution and continuous improvement.
Aviva embraces the bear - developing Aviva's new Russian business
Lee Callaghan, Senior Corporate Lawyer, Aviva plc
The purpose of this article is to examine what was involved in setting up a new insurance company in Russia.
When Aviva decided to enter the Russian market, our goal was to establish a top 5 market position over a 5 year period. At that time, we had no local presence at all and, even more challenging, the concept of life assurance was relatively underdeveloped in Russia. There were few international insurers present in the market and a very small number of national providers, although some of these had good scale.
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International In-house counsel Journal ISSN 1754-0607 |