As the region feels its way through the fog of the global pandemic, we enlisted some of Asia’s top general counsel for a virtual roundtable to plot a roadmap for recovery. Here are the highlights of the conversation moderated by Mithun Varkey
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2020 has been a year like no other in our lifetimes. While there is hope that we will successfully ride out the pandemic, one thing is certain – the old days are behind us and we need a new playbook. And that’s what brings us together, sharing ideas to script a new way ahead. We have a carefully assembled a team of leading in-house legal counsel from across the Asia-Pacific.
Our panelists include Sun Bin, who is the chief legal officer for Beijing, China-based Xiaomi Corp; Nilanjan Sinha, who is the head of legal for India and Southeast Asia at Mumbai, India-based lender ICICI Bank; Grace Yunica Janse, who is general counsel for Indonesian e-commerce company Sale Stock; Masako Takahata, the Tokyo-based director and general counsel for Japanese infrastructure company IDI Group; Olivia Khor, the general counsel for PricewaterhouseCoopers, Malaysia; Arlene Lapuz-Ureta, the president of the Legal Management Council of the Philippines, and legal counsel for Nissan Philippines; Yang Jay-son, president of the 1,800-strong In-House Counsel Forum in Korea, and senior legal counsel for Citibank Korea Inc; and Dessi Berhane Silassie, president of Singapore Corporate Counsel Association and general counsel, Asia-Pacific, and global head of IP for IHS Markit, a London-based information and technology platform.
Q1: What are the major legal issues and challenges companies will encounter as they come out of lockdown and countries slowly open up?
Nilanjan Sinha: Although it’s not a legal challenge, I think one of the things we’ll have to start getting better at is how we collaborate and come to a consensus while staring at a computer. And that’s going to be perhaps one of the biggest “new normal” challenges as I see it.
Talking about India, a slew of reforms have been announced by the government, including a lot of relief packages. One can divide the packages into four “Ls” – land, labour, liquidity and laws. Our reform packages are addressed to cover these four aspects, and the challenges and legal issues really emanate from there.
From the labour perspective, a whole new law that would consolidate various labour laws into one code, has been proposed. It will then mean a lot of unlearning and relearning in so far as how the laws would pan out. India has laws [emanating] from the time we were a British colony. What the government is trying to do is to look at rationalizing these laws. To give you an example, we had an Epidemic Diseases Act, which is from the 1800s. The first time it was amended was in April 2020, because it is the first time that we actually had a need to amend that law. Similarly, we are now looking at all laws.
As lawyers, we have to really start looking at all of these rationalizations of laws, which presents a big opportunity as well. While we talk about issues and challenges, a big opportunity I see is of legal advocacy. All of us as GCs have to play [a legal advocacy role] as these laws are getting shaped. We already see the government is coming out with a lot of talk papers, white papers, whether it is in the securities laws, corporate laws or stamp duties. This is our opportunity to actually get to frame the ecosystems of some of these laws. So, of course, the challenges will emerge from there.
India, you know, is admittedly a litigious society, so new case laws will emerge. I must also add one of the big issues for us was how do we resolve pending cases. I am personally very pleasantly surprised to see how the Supreme Court right down to the tribunals have actually adopted video-conferencing hearings. Right now, they’re only taking up urgent matters, but I think they’re gaining a lot of experience. I think this online dispute resolution is going to be a big opportunity for us, where we’ll be able to resolve many matters. Online ADR is also gaining traction in India.
What I hear from all senior counsel is that the bigger matters, more serious matters, would still have to happen before the court,because there is merit in physical argument. But there will be a lot of opportunities for the ones that are not that big, where you can actually start doing it online.
We will have to adapt. How do I adapt to these things, to e-filings, to e-executions of contracts. In India, we have this whole issue of stamp duty payment. How do we sort of make seamless executions of documents where we can execute documents in an electronic manner without any physical interface, where we do execution digitally? The break in our chain was stamping. The government has again been very proactive and come out with methods for electronic stamping.
Masako Takahata: We haven’t experienced any sort of “lockdown”. As you may know, the Japanese state of emergency declaration is a kind of formal request to avoid non-essential trips from the government. I mean, legally it’s something the prime minister is authorized to do under the infectious diseases provision or law, but our government doesn’t have any sort of special force to enforce such requirements like penalties or fines, or something like that. So we are just required to stay at home and work from home.
And some of the legal challenges arise from this situation are similar to issues involving corporate social responsibility (CSR). We, as a firm, need to think about the kind of best practices for the purpose of preventing any sort of infectious diseases, which is not necessarily unique to the firm but something well perceived in the financial sector or the relevant community. In order to comply with the expectations from the community, we need to gather information and exchange ideas to mitigate risks among the community. We need to know what we are supposed to do in the middle of the crisis and predict some criteria under the “new normal” standard. Such purposes and activities are very similar to managing some issues relating to corporate social responsibility (CSR). We need to establish a kind of internal policy to work from home, or when to have on-site meetings How to adapt to the new work-from-home style – fewer meetings, and organizing less crowded meetings, something like that. Generally speaking, the Japanese have a kind of tendency to keep a relatively long distance from person-to-person and the Japanese do not hesitate to wear masks So, you know, that’s OK for most of the Japanese to introduce a “new normal” life.
Yang Jay-son: Just over the past month, I have had a lot of different experiences for the first time in my life, both personally and professionally. And I just wanted to share with you a few observations that I made from this experience, which will bring us to think about what will change going forward. First of all, contingency of business, or the so-called COB, now is no longer a good-to-have thing, nor is it mandatory only for certain specific industries like finance, but an area of top priority for each and every industry.
No longer a “business talk”, IT investment and IT resources will be very important areas to discuss. Interestingly, within the bank, I’m in charge of governance and global function, back-office function advisory, not transactions. And as you know, those areas, third-party investment, IT and HR, are areas that are always back office, behind the transactional priority. But interestingly, in the past few years, and especially following this covid-19 pandemic, there are a lot of opportunities for me to revisit the very basic customary process of the institution, and revisit and consider changing the customs, changing our practice so far, which was very interesting – some things like [making policies for] e-signatures, how to evaluate employee performanceand how to measure company integrity.
Given that we don’t have face-to-face interactions, all those issues, such as HR and very business-as-usual issues, which were somehow behind the transactional issues, are now the main topics of our discussion. That was the biggest change to me and to our institution. So, the company will need to consider, going forward, how to change and consider those changes for the areas that we believe are taken for granted.
I think [the pandemic] has brought us back to think about basics again. There is room to improve considering both the offline and online areas. That was my biggest observation from this change, from this pandemic situation.
Dessi Berhane Selassie: I’m not sure if [my experience] is all that different, but I was listening very closely to the previous speakers because I covered those jurisdictions from Singapore. It is interesting to hear the on-the-ground expert view of what’s happening in Korea, India and Japan. We’ve definitely seen similar themes in India. What’s been interesting for me is responding to the Indian government’s policy changes as a result of covid-19, and making sure that my company is able to do business. We employ several thousand, and [it is difficult] just being able to navigate through those legal and regulatory changes as they’ve been happening in the middle of a pandemic. And so it is really interesting to hear the context of those policy changes for India.
I couldn’t agree more with Jay-son in terms of the digital world. We are at an information service and technology company, so our comfort space is in deep technology. But we’ve seen an acceleration of that movement as a result of covid-19. What we’re doing now is really engaging with our customers who are on that accelerated timeline, to help them get on board for the financial service institutions that we service. For example, information security has been critical for several years, for lots of different reasons. But now they’re being forced into a new way of working without that readiness, that time to prepare as critical institutions within our ecosystem present systemic risk. It’s important that as a service provider, we provide them with that support.
I think I’m very lucky to be in Singapore. It’s been pursuing a digital strategy for over a decade. So, from a personal and work-from-home perspective, the transition to working from an office to the home was a very smooth one. And I think Singapore’s infrastructure lends itself very easily. It’s also a smaller country, and much more able to act with agility.
If I’m honest with you, I know it feels like a lifetime, but we’ve actually only been in this position for the past three to four months, if you ignore the beginning of the pandemic in January, when we all were still figuring out what were going to be the implications. And so, coming out to a new normal, for me – it is not all that clear what that new normal really means. I still think most people will be speculating as to the duration, and as to what will indeed remain a permanent impact versus an emergency state, or a transitional way of working.
So that’s what I’m really watching closely. And from our crisis management team perspective, really what we’re thinking about is how to prepare ourselves for the next six months, as well as 12, 24 and a much longer-term period. I think it’s that level of planning that we’ll need to embark on.
Arlene Lapuz-Ureta: The legal issue that arose in view of this pandemic, first and foremost, is that we have an existing law [in the Philippines] that provides for compliance with occupational safety and health standards. So the first challenge there is for the employers, who are opening their businesses, to provide the safe workplace that the law requires. And since this law grants the worker the right of refusal to work if there is an imminent, dangerous situation in the workplace, such as, for instance, an employee being infected, these are matters that need to be seriously addressed in the Philippines by employers. Because under that law, the employer must provide not only training, but also medical examination provisions for protective and safety devices like personal protective equipment, given the health and safety protocols now, and mandating the wearing of masks or other protective gear in view of the covid-19 pandemic.
So the initial dilemma of the employer, when businesses opened after the partial lifting of quarantine here in the Philippines, was whether they would require covid-19 testing for their employees who report for work. And if they do, what kind? Would it be the more expensive swab test, or the cheaper rapid test? So, aside from the compliance issues, with respect to this law, it entails cost issues as well. And we know it is going to be a burden for employers already affected financially by the loss of income during the suspension of work.
Secondly, of course, they know that under this law, [employers] have to harmonize the rights granted to the worker with all the kinds of hazards in the workplace, meaning they have the right to know if an employee was found positive for covid-19. And this right conflicts with our data privacy law in the Philippines, which considers medical information relating to the health of an employee as sensitive personal information, the processing of which is prohibited.
So now data privacy issues have cropped up, and these need to be addressed by in-house counsel, especially where there is also a mandate to adopt data protection measures pursuant to the law. Given the pandemic, most employees are now working from home. Our National Privacy Commission, in fact, issued recent guidelines on general security measures that the organizations and individual employees working at home should be taking, not only during a pandemic, but also whenever there is a telecommuting arrangement implemented. In the Philippines, even prior to this pandemic, a law was already enacted for telecommuting, allowing flexible working arrangements.
This became very relevant because of the pandemic. And now our National Privacy Commission is very concerned about possible unauthorized access to, or improper disposal of, documents containing personal data, due to unprotected home devices and also the physical files that are brought, for instance, when working at home. So all of these are now covered by new guidelines on this.
And, of course, the IT and HR teams are now working double time on how to ensure the safety and security of, for instance, the laptops and other work documents that are brought home. In other words, we expect reduced economic and business activities in the country, and the new normal would certainly entail staggered working hours and, of course, reduced manpower requirements. This also brings the issue of the telecommuting law that we have because right now it’s only voluntary on the part of the employer and the worker to agree to it. But we are expecting some of the workers to already invoke the right to be allowed to work from home, given the risks of going out.
All those issues in the end affect the employers because this might lead to possible losses as the output is affected if only 50% of the workforce is present or working. So definitely, on account of the losses that the company suffers, given the extended community quarantine that has been imposed here in the country, [employers] will have to consider work arrangements that are favourable to the company in terms of being able to recover these losses.
One last major item is that we encountered problems on authorization and execution of documents. And one initiative that I actually made through our organization, the University of the Philippines Women Lawyers’ Circle, is to write and propose that our Supreme Court adopt electronic notarial rules. This was favourably acted upon and right now a sub-committee has been organized by our Supreme Court to study this.
Grace Yunica Janse: The challenge is, something that was previously normal or legal could become illegal in this new normal as laws and regulations are unclear. This challenges us to be creative and innovative. In Indonesia, you can have a local lockdown, which means maybe, like me in Bali, there are no lockdowns, but in Jakarta there is a strong lockdown. It is stringent in certain industrial areas. Some manufacturers and factories were raided by police and they wanted to see whether they are employing the new protocols. That’s how strict it is in certain areas in Indonesia, especially if they think that it’s a red zone, and if they think it’s not safe, they will in put more stringent regulations. So, in terms of legal issues and challenges, for me, as a legal practitioner in Indonesia, it’s a very challenging situation because, in theory, legal teams are set up to manage our existing regulations that are based on normal situations in which we interact physically.
In the current situation, which is very new, nobody knows what the definition of a new normal is. We need to adapt to some things that are unregulated. In Indonesia, governments issued lots of implementing regulations on how people, in general, need to keep safe, such as social distancing. If you don’t wear a mask, you will get fined and, if you do not follow protocol, you will get sanctions, including suspension of your business. Our companies are into e-commerce, which is exempted from the lockdown. That means we can still operate with certain measures. On health, the protocols require that we provide hand sanitizer, masks and make sure that nobody is standing next to each other. The most challenging part is that operational procedures that were previously legal currently can be illegal.
For example, a very simple thing, but quite a big matter for us because it disrupts our operations, is in our warehouse we do a body check because we have lots of stuff inside of our warehouse and it’s quite hard for us to control. Previously, that was 100% legal. Currently, this can be illegal because you have close contact between two employees. So, in these kinds of situations, we, as legal counsel, need to be very creative and innovative, and need to know what is the operational procedure, and then become a bridge between the compliance, legal, safety, and commercial and operational teams, because it’s a very challenging situation.
Sun Bin: Suddenly working in an office is a heavily regulated business. So the government has a lot of policies, and there are policies from the central government and from local governments. They all have different standards, but you just have to comply with them. And at the beginning of the pandemic, you also had a shortage of hygienic goods, too, so with all this combined together, it was quite a battle to fight against.
So we monitor and follow the policy very closely so that we can talk with our internal admin to keep compliant with it. We do have a very strong supply chain, which has helped us to obtain sufficient hygienic goods very quickly, and we also helped our partners to have access to those resources during the pandemic. That’s one of the reasons why we could reopen our offices very early on, compared to many of our competitors and partners. Then, when we had to close some of our overseas offices, we already had the experience of how to deal with it, and it was much easier at that time.
The biggest difficulty in the beginning is you really don’t know what’s going to happen tomorrow, when it’s going to end, and whether it will get better someday. How can we keep the supply chain working and we have, you know, for hardware manufacturing, there is still a lot of the components and assembly that needs manpower. Even the workers have difficulties getting back to their workplaces and their plants, and also the government is actually not allowing the plant to open. So, a lot of things are happening at the same time. You just have to keep adapting all the time and make changes, change your plans.
We have our OEM [original equipment manufacturer] partners who actually made those changes very early on and responded very quickly to this situation, so we actually benefited from that. And we also helped our other supply chain partners to bridge the gap in resources for them. We benefited from a good relationship with those upstream partners a lot.
Q2. How have you been able to deal with contract frustration and force majeure clauses in your contracts? What are the challenges in invoking these clauses in your jurisdictions?
Olivia Khor: Malaysian parties, I think, as in most jurisdictions, can actually excuse themselves from obligations by relying on force majeure clauses in the contracts. So if the contracts do not contain a force majeure clause in Malaysia, you can still rely on the statutory provision under section 57 of the Contracts Act, where a contract that has become impossible or unlawful to perform will be void. So, if section 57 is successfully invoked, both the parties will be permanently relieved from their contractual obligations.
However, relying on force majeure clauses, or even the contract, the parties will need to then refer their disputes to court. And this may then lead to a flood of contractual claims, since non-performance will become a common issue during this lockdown period. So there have been multiple calls for the government to table a Covid-19 bill to address the issues arising from the pandemic.
In Malaysia, the government actually welcomed proposals and recommendations from the public on drafting temporary measure bills to mitigate the impact of the covid-19 pandemic. The prime minister’s department said that the drafting of the bills was the government’s commitment to minimize the impact of the pandemic on the economy and people. So all stakeholders, including civil society and non-governmental organizations, as well as individuals, can actually submit proposals and suggestions to the government by the 5 June.
Arlene Lapuz-Ureta: The first thing that an in-house counsel should do would be to make an assessment of all the contractual obligations adversely affected by the quarantine. And then there are notification requirements under those contracts. But in dealing with such defaults, whether it is the company’s own default, or those of its suppliers or other counterparties, I believe that instead of the adversarial approach, you know, of invoking exemption from liability on the grounds of force majeure, parties should collaborate and agree on new schedules or deadlines, even just talk about how to address the problems that arose.
Especially in the Philippines, where people are very litigious, a notice of a force majeure event will trigger immediately a corresponding legal response from the other party. I think this pandemic situation does not warrant resorting to formal legal processes, especially if no agreement is reached, but rather an effort should be made on how to resolve the problems amicably.
Sun Bin: Our philosophy is not to use force majeure clause unless absolutely necessary. Really everybody is facing the same hardship, so we will try our best to discuss and know the situation of each other, and solve the problem together through amiable discussions. And it works. We seldom, really rarely, need to enforce these force majeure clauses, and because we have been partners for a long time, we intend to still stay as partners in the future, so there’s nothing that we cannot solve. Downstream, we give grace periods to customers and distributors, and upstream we try to help them if they are small – if it’s needed, help them financially, as well as help them on how to become compliant with the lockdown policies, and to talk with their local government.
Nilanjan Sinha: There are two aspects. As you know, we [India] are a civil law country, and we don’t have a concept of force majeure; we do have a concept of frustration of contract. The case law is quite established in that, where the test in the courts, and rightly, is pretty high to say what circumstances can lead to calling a contract to be a frustration, and therefore cancellation of the contract.
Although we do not have any concept of force majeure, parties have negotiated for a force majeure clause in the contract. As far as banking is concerned, it is pretty uncommon to have any force majeure clauses for lending contracts; what you have is material adverse clauses.
If there are material adverse circumstances, typically can the bank’s have a right to, therefore, invoke that and cancel undrawn amounts, etc. Insofar as payment defaults are concerned, I think specifically for our country, the banking regulator has actually announced a moratorium on payments for a six-month period. If a business is you are affected by covid-19 and have difficulty in payment, banks could take that into account as per its internal policy and grant relief in payment and will not downgrade the assets classification to the borrowerif you don’t pay.
Q3. How can GCs best support companies and their business teams in resuming normal operations?
Masako Takahata: Actually, it is kind of good timing for us to consider going back to basics, as Jay-son mentioned. Most of the programmes under the current kind of situation should be reconsidered from scratch. Revisiting some issues are important; what are essential activities to meet the clients’ and/or regulators’ needs, who are decision makers, what are risks and risk mitigants? We need to think about a new business model.
Yang Jay-son: I just wanted to mention two things – one, I wanted to share how effectively in my experience as a legal counsel we helped business, that’s in the past tense – in the early stages of the pandemic. In Korea, there is a unique regulation called network segregation. The gist of the regulation says you have to separate your work network from the internet, which means remote access is not possible. It was not possible at the time, and it’s still not possible unless you have a compelling reason to make an exemption. Network segregation is really a fundamental barrier for us, especially for multinational companies having headquarters overseas, and not being able to do remote access work.
But after this coronavirus outbreak, we immediately applied for an exemption given these very unusual circumstances. Of course, it was not only work by legal, but it was close collaborative work with local finance companies, with our bank as the representative of foreign banks, to strongly recommend to the Korean regulator that they should lift, temporarily, this network segregation. So, it was accepted, and that’s how even in the pandemic situation our work processes and customer services were not disrupted. It was a good example of how we, in a timely manner, helped the business to respond to these unusual circumstances.
Number two is in the future tense. Everybody has been hearing that after this pandemic situation, outsourcing and freer movement of resources, freer movement of people will be somehow restricted. As we are all in the Asia-Pacific, we know that outsourcing is really popular and very prevalent. Many global financial institutions like ours have outsourcing services providing sites in Manila, Mumbai and Singapore. This outsourcing requirement in many countries, especially for the very conservative Korean regulators, requires specific approval.
My concern is that one of the possible circumstances will be a stricter viewpoint from the local regulator on outsourcing approvals. So, in preparation for those kinds of regression, depending on views and trends, we will need to prepare as legal counsel to respond and to cope with those different situations.
Dessi Berhane Silassie: In Singapore, we just came out of the circuit breaker, as it’s known here, on 1 June, and we’re only in phase one at the moment, which is still quite limited, at least for companies like mine that are able to telecommute with no difficulty. The Singaporean government is being very deliberate and designed about how it’s gone on this kind of “circuit breaker” journey. And so the focus at the moment is the resumption of normal business operations for industries like manufacturing and essential services that were able to continue their businesses throughout the “circuit breaker” period.
So, what resumption to normal might look like for us in phase three, which is some time away, remains to be seen. I think actually what the “circuit breaker” period, both in Singapore and our other Asia-Pacific jurisdictions, has shown us and our customers is the ability to collaborate and conduct business cross-border with a lot less disruption than might have been anticipated. And what it’s accelerating for some organizations is enterprise platforms.
I don’t want to say any particular brands, but Office 365 and other platforms like that really allow their organizations to work together with that security that we’ve been talking about. And as in-house lawyers, you are going to be dragged into, or rather very much core to, those projects of bringing a new infrastructure that needs to be designed around privacy, security and governance. These topics have become the domain of in-house counsel over the past 10 years. So it will be a very busy period for us.
I think we’ll also see an acceleration of the adoption of cloud solutions, and migration to the cloud. So, again, that will trigger all sorts of reviews of privacy, but also your contracts, to ensure that you don’t require consent and notifications. Never mind the immediate BAU [business as usual] state, just try to service your company’s business because in some of our sectors our customers are still managing to do business rather well.
And we’re lucky enough to be in the Asia-Pacific, where we’re seeing markets like [mainland] China and Hong Kong and Taiwan and Japan resume, not quite to pre-covid-19 levels, but business levels nonetheless. So we’re already busy on BAU, and also having to future-proof for the new normal that people have yet to define.
Nilanjan Sinha: If I may add to what Dessi said, the other thing that cloud computing does is bring in a discussion around regulatory matters, and it’s a problem. And I’m sure it’s common for many jurisdictions that regulators are very possessive about getting their arms around the data when they want. And that is going to be a challenge.
Q4. What should in-house legal teams be doing now to prepare for the next big disruptive event?
Olivia Khor: I think negotiation with clients and vendors for extensions of time, instalment payment plans, etc., are very important. Managing the relationship with external parties is very important in times like this, when some industries are hit harder than others.
For example, can we rely on termination for convenience costs by, say, giving 14 days of written notice instead of relying on a force majeure clause or the contracts act. Why fight in court when we actually have an easier way out? And I think we should also review our existing contracts to see if there are any peculiar terms. For example, do we need to go through certain approval processes to get an extension of time from the client? Can we negotiate a longer subscription period of certain services that were not utilized during the lockdown? Or maybe, do we need to pay the differences where the client has had to engage a third party to finish work that we couldn’t finish due to the lockdown?
What should in-house legal teams be doing now to prepare for the next disruptive event? I think we should start thinking about how to further automate certain processes to make it easier for the business to deal with legal issues. For example, having more internally legal FAQs published in a database available to the masses, or exploring ways for contract consultations to be semi-automated. We can build in legal explanations and implications to each of the contract clauses in a standard contract template. Also, I think embracing technology is very important. Virtual meetings are now a norm and in-house counsel should embrace that, and by supporting the business in various negotiations, even via virtual meetings. I actually had such a negotiation with the other side’s counsel. Normally meeting each other is very difficult, but during the lockdown period, when we had this virtual meeting, we became nicer to each other and we actually managed to close the contract immediately.
I was pleasantly surprised, and I think we just have to be agile and accommodating towards business needs. I’m currently doing a virtual roundtable discussion with GCs from multiple countries, so I think that’s a start. And last but not least, I recall this joke about, who is responsible for your company’s digital transformation? (a) the CEO; (b) the CIO; (c) heads of department; or (d) covid-19?
Grace Yunica Janse: Knowing the enemy is the key. We should be able to know about what this [pandemic] is, what’s going to happen, what are governments going to do, how the governments will react to this situation and what is the impact on our operation. In this unclear situation giving black-and-white advice may not be helpful. It is important to know the balance between what is doable for commercial people while following the rules and all the new protocols.
Masako Takahata: The covid-19 situation reminds me of, you know, economic turmoil triggered by the Lehmann Brothers collapse shock situation – at that time I was as a senior counsel for Deutsche Bank, an investment bank. Now that I am a general counsel for an infrastructure fund management firm, which is responsible for the equity investor’s side, it’s a little bit of a different situation for me, but very similar. What I should do is almost identical. As Olivia said, you know, we, legal counsels, are always preparing for such kinds of market disruption, so we need to prepare for this from the perspective of BCP. We need to standardize, or make a kind of chart for the purpose of cross border, inter-company-reporting as well as cross-functional reporting, on force majeure events. It is important for me to know, to think fast, and move fast.
Arlene Lapuz-Ureta: There are a lot of initiatives that in-house counsel can take to ensure that we are prepared for future disruptive events. First of all, in order not to be caught off guard in the future, it is imperative that in-house counsel use technology to help them in the legal work that still needs to be done, even during the pandemic. In the Philippines, not all legal counsel are provided with laptops, especially the smaller companies, and not even free access to their e-mails in their homes. In fact, some companies prohibit bringing their company-issued laptops home because of security issues. Secondly, in-house counsel must now have all contracts and all legal documents digitally stored, and ensure that this can be accessed immediately so that there will be no need to go to the head office, in case there’s a need to access such important and vital documents.
Nilanjan Sinha: I think in so far as how in-house teams can support, I would say there are two things – one is innovation. How do you enable product innovation, with respect to customized offerings and product offerings? At the end of the day, your new normal still means you have to go back to business, to go back to making money and earning your bonuses. And that means how do you get digital lending enabled; if there is a problem, how do you have digital dispute redressal done? An example from our bank is blockchain. How do you use blockchain technology? We, for example, are using blockchain technology for trade finance.
The other is, as a legal team, how do you use law tech. Law tech used to be one line in our goal sheet, but is now the top item. In India, for example, there’s a lot of digitization of land records happening. There is a contract automation system, which we are working on. So, these are the innovation aspects. We would need to work on three Ds – digitize, declutter and decongest. When your capital is constrained, you’ve got to play with that. The next thing is, we need to reimagine communication. With teams as well as stake holders. It is important to ensure communication is bespoke for the recipient and effective.
Sun Bin: I think there is really no one-size-fits-all solution to these situations. I think we actually learned from this crisis how to respond to it. So our experience is you just have to have stay adaptive and flexible, and really respond quickly to the situation, and monitor it closely, and always have wise decision-making at that time.
Because of the pandemic, conflict resolution mechanics is also changing, with some courts having been closed for quite a while. We did see a little bit of slowing down for conflict resolution, as well as for the resolution of conflicts already there. Also, we see there’s less disputes during the pandemic, probably because the courts are not as active. One good thing is virtual hearings. Now we can actually attend hearings in England from Beijing. We are forced to make some changes, but some of them are actually good for us to keep occurring in future.
Yang Jay-son: I think a disruptive event can be without notice, but at the same time disruptive events have to be anticipated. If we prepare and, in that sense, I want to echo Olivia’s two points, that as a legal counsel, when we provide legal advice, we will be pre-empting any potential problems, not only focusing on the existing visible risk. Second, to make it happen, embracing technology and, as Olivia said, infosecurity and all those technologies will be good armour for us. So let’s get around it and cope with it.
Dessi Berhane Silassie: For me, this is not a question for in-house legal teams in isolation. This is what our businesses are thinking about right now. At the beginning of this pandemic, they were forced to look at their scenario analysis with less data than what they have today. So they will be revisiting those scenario analyses and trying to understand what the next six, 12, 18, 24 months look like. And that’s what we should be doing.
I don’t know if it’s necessarily preparing for the next disruptive event. I think that we’re preparing for the next disruptive chapter of the current event, which, if you believe some research, is going to look like an accordion of lockdown and non-lockdown measures. So what does that look like? What does the most likely business scenario analysis for your company, for your organization look like? Seek to understand it with your businesses, and then understand what the legal, regulatory risk and compliance implications will be from an in-house perspective, so that you can correspondingly prepare for the response. I think there is a lot to be learned from the way that we behaved and responded in the preceding six months.
That data now needs to be reviewed. I think going into phase one of the circuit breaker doesn’t honestly feel like the end of anything meaningful. But now is the right time for us to look back, see what worked, what didn’t work. Tighten up our tool kits, our policies around that period, to ensure that it is ready to be tested again and again and again for future disruption, whether it’s covid-19-related or otherwise.
Charting a new course