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How to obtain documents held by an opposing party in arbitration proceedings?

A client wishes to obtain documents held by the opposing party in the course of a document production phase, in application of the IBA rules on the Taking of Evidence. Thus, it requires assistance in managing this phase.

A party wishes to obtain documents held by the opposing party in the course of the arbitration

A company, party to an arbitration, wishes to obtain, through a document production phase, documents held by the opposing party which it believes are necessary to determine the outcome of the dispute.

Our client's challenge

Obtaining documents held by the opposing party during an arbitration proceeding

A construction company initiated arbitration proceedings against its project owner.

 

Applicable procedural rules provide for a document production phase to take place between the two exchanges of submissions. This document production phase will be carried out in accordance with the IBA Rules on the Taking of Evidence, with requests made via a Redfern schedule.

 

The construction company wishes to obtain a certain number of documents which it believes to be in the possession of the project owner, in order to prove its claims but also to be able to refute those of the opposing party.

 

It is seeking advice on how best to prepare its requests for production and its responses to the opposing party’s requests for production.

Our way

Assisting our client in managing procedurally and substantially the document production phase

Requests for production made in application of the IBA Rules on the Taking of Evidence must describe precisely the documents requested, specify how the documents are relevant to the resolution of the dispute, and explain that the documents are not in the possession of the requesting party, but held by the opposing party. Only if these conditions are met can the arbitral tribunal grant a request for production of documents.

 

The document production phase provides for several exchanges for the parties to substantiate their requests and object to the adverse party’s requests. These requests, responses and replies are contained in a Redfern Schedule, in the form of a table identifying the documents requested and the elements justifying the production.

 

We assist our clients in preparing the requests, in identifying the documents to be requested or in justifying the requests, and in defending their interests faced with opposing requests.

 

Although these phases are frequent in arbitration proceedings, arbitral tribunals do not easily order forced production of documents, due to the principle that the burden of proof is upon a party forming an allegation. It is therefore important to work on justifying the request and, more generally, to adopt a strategy specific to each case when managing a document production phase.

Clients' stories

Why should parties resort to mediation?

Mediation is particularly relevant when parties want to preserve their commercial or contractual relationship. Indeed, the mediator helps them find a common solution without excessively favoring one party over the other and which is satisfactory for both. In the present case, mediation allows the contract to be performed and avoids a lengthy and costly litigation, or even having to find a new contractor to finish the project.
Read Story

How to draft an efficient arbitration clause?

A company seeks to include a model arbitration agreement in its suite of contracts to ensure efficient settlement of its potential disputes.
Read Story

How to rely on witness evidence in arbitral proceedings?

A company wishes to submit testimonies in support of its allegations in arbitral proceedings. It wishes that the witnesses to be presented to the arbitral tribunal be assisted in preparing statements and in the preparation of their examination at the hearing.
Read Story

Why should parties resort to mediation?

Mediation is particularly relevant when parties want to preserve their commercial or contractual relationship. Indeed, the mediator helps them find a common solution without excessively favoring one party over the other and which is satisfactory for both. In the present case, mediation allows the contract to be performed and avoids a lengthy and costly litigation, or even having to find a new contractor to finish the project.

A dispute has escalated between a project owner and a contractor

The project owner and the contractor have a disagreement that they are unable to resolve satisfactorily and seek the help of a mediator to find a solution, resume performance of their contract and finalize the construction of the plant.

Our client's challenge

The success of conventional mediation

The parties have opposing positions regarding the performance of their contract. The project owner argues that the contractor’s performance is delayed in breach of the contractual deadlines, while the contractor argues that responsibility for the delay results from the project owner’s errors in the technical assessments conducted before the contract was signed.

 

The contractor and the project owner want to avoid submitting their dispute to a state court or an arbitral tribunal in order to find a swift and cost-effective solution and finalize the construction of the plant.

 

The parties wish to seek the help of a mediator, preferably accredited by an organization attesting to his or her competence, to act as an independent third party and accompany them in finding an amicable solution satisfactory to both parties.

 

The mediator’s role is to bring the parties together and to propose innovative solutions enabling them to find an acceptable solution for all and settle their dispute as quickly as possible.

Our way

The establishment of an efficient and fair working method that facilitates the exchange

As a mediator, it is necessary to take responsibility for the organization of the mediation in order to establish a climate of trust between the parties. To achieve this, it is important to remind the parties of the principle of mediation, the neutrality of the mediator, confidentiality, and the voluntary nature of the process.

 

The mediator must then analyze the facts and identify the key points of the dispute. To do this, the mediator must allow the parties to express themselves freely and listen carefully while trying to structure the different positions. The goal is to allow the parties to hear and understand each other’s position, to generate potential solutions to the dispute, and to narrow down the fundamental issues for each party.

 

The goal of the mediator is to bring together the positions of the parties and find solutions that suit both parties, in this case the contractor and the project owner.

 

The agreement will then be formalized in writing and the relationship between the two parties will continue in the interests of both parties.

Clients' stories

How to obtain documents held by an opposing party in arbitration proceedings?

A client wishes to obtain documents held by the opposing party in the course of a document production phase, in application of the IBA rules on the Taking of Evidence. Thus, it requires assistance in managing this phase.
Read Story

How to draft an efficient arbitration clause?

A company seeks to include a model arbitration agreement in its suite of contracts to ensure efficient settlement of its potential disputes.
Read Story

How to rely on witness evidence in arbitral proceedings?

A company wishes to submit testimonies in support of its allegations in arbitral proceedings. It wishes that the witnesses to be presented to the arbitral tribunal be assisted in preparing statements and in the preparation of their examination at the hearing.
Read Story

How to handle an ACPR inspection?

Dealing with an ACPR investigation over the anti-money laundering and countering the financing of terrorism (AML/CFT) system.

Assisting a regulated entity in the context of an inspection related to its AML/CFT program and in particular to the know-your-customer procedure, the detection of politically exposed persons and the implementation of appropriate due diligence measures

We help the clients dedicate appropriate resources to ensure the proper communication of the requested elements, providing convincing justifications on the robustness of the AML program and, where applicable, define the scope of the elements likely to be improved. Knowing how to best present the activity and the type of clients are all challenges for our clients when facing en ACPR inspection.

Our client's challenge

Knowing which resources should be dedicated and understanding what posture to adopt

The responsiveness and the preciseness of the responses provided are considered as critical while managing our relations with the ACPR during its inspection and collection of evidence. The objective of the company subject to the inspection, is to provide all the requested answers in a comprehensible manner highlighting the qualities of the system in place.

Our way

Responsiveness, balanced communication and appropriate remedies

We recommend appointing a dedicated contact person within the entity subject to the ACPR inspection, preparing the responses provided to the ACPR, in conjunction with the law firm in charge of representing the company’s interests.

 

The law firm ensures a precise and balanced communication with the regulator in order to understand its expectations and to clarify the actions taken by the company involved.

 

Finally, in case of actual breaches, sanctions can be mitigated through the demonstration of the implementation of remediation measures in a way to avoid the reiteration.

Clients' stories

How to prepare for an interview by AMF investigators?

Reacting to a summons to an interview within the course of an AMF investigation
Read Story

How to best handle the opening of an AMF inspection?

Reacting to requests made in the context of an inspection
Read Story

How to draft an efficient arbitration clause?

A company seeks to include a model arbitration agreement in its suite of contracts to ensure efficient settlement of its potential disputes.

A company seeks to include a model arbitration clause in its group of contracts to safeguard oneself in the event of possible future disputes

The drafting of such a clause should be tailored to the specific needs and expectations of the client and should anticipate relevant procedural aspects for an efficient resolution of disputes

Our client's challenge

Include in its contracts a model arbitration clause applicable to all its potential disputes

A company wishes to refer its disputes to arbitration and include, in its contract, a model arbitration agreement.

This arbitration clause must, therefore, be sufficiently broad to encompass various potential types of disputes, the interaction between different contracts applicable to one operation, and the different parties involved, to ensure that proceedings can be coherent.

The arbitration clause must also consider the legal and procedural framework of potential arbitrations (applicable rules, seat of arbitration, number of arbitrators, language of the arbitration etc.).

Our way

A tailored arbitration clause which considers the actual needs of our client

Arbitration agreements are simple instruments but must be tailored to the specificities of the disputes that can arise and to the interests of our clients.

A standard clause inserted into contract templates should be drafted in a way that allows it to encompass as many potential dispute situations as possible.

To ensure the effectiveness of the arbitration clause, we recommend submitting arbitration procedures to an arbitral institution to guarantee proper administration and selecting an arbitration-friendly seat.

We also advise specifying various procedural aspects depending on the needs of our client and the anticipated specificities of its disputes, such as the number of arbitrators and the modalities of their nomination, the opportunity to provide for amicable dispute settlement procedures, the applicable law and the language of the procedure.

Clients' stories

How to obtain documents held by an opposing party in arbitration proceedings?

A client wishes to obtain documents held by the opposing party in the course of a document production phase, in application of the IBA rules on the Taking of Evidence. Thus, it requires assistance in managing this phase.
Read Story

Why should parties resort to mediation?

Mediation is particularly relevant when parties want to preserve their commercial or contractual relationship. Indeed, the mediator helps them find a common solution without excessively favoring one party over the other and which is satisfactory for both. In the present case, mediation allows the contract to be performed and avoids a lengthy and costly litigation, or even having to find a new contractor to finish the project.
Read Story

How to rely on witness evidence in arbitral proceedings?

A company wishes to submit testimonies in support of its allegations in arbitral proceedings. It wishes that the witnesses to be presented to the arbitral tribunal be assisted in preparing statements and in the preparation of their examination at the hearing.
Read Story

How to rely on witness evidence in arbitral proceedings?

A company wishes to submit testimonies in support of its allegations in arbitral proceedings. It wishes that the witnesses to be presented to the arbitral tribunal be assisted in preparing statements and in the preparation of their examination at the hearing.

A party wishes to rely on witness evidence and to prepare the examination of the witnesses during an arbitral hearing

Preparing testimonies and the examination of a witness in the course of arbitral proceedings.

Our client's challenge

Relying on credible witness evidence to support its allegations efficiently

A company has initiated arbitral proceedings following a dispute with a commercial partner. Due to deficiencies in project document management, this party wishes to leverage the testimonies of individuals involved in the project to bolster its evidence and add a concrete and personal insight to its factual allegations.

Within the ICC proceedings, the procedural guidelines established by both the parties and the arbitral tribunal, which additionally make reference to the IBA Rules on the Taking of Evidence in International Arbitration, allow the parties to rely on witness evidence. These rules provide that the witnesses submit a witness statement. The witnesses may then be summoned to appear at the hearing on the basis of this statement, in order to be cross-examined by the adverse party and be questioned by the arbitrators.

Our client wishes to be assisted in this opportunity to rely on witness evidence.

Our way

Assisting and preparing the use of witness evidence in the proceedings

The use of witness evidence is frequent in international arbitration. It is seen as providing a different perspective on the facts in issue, by relying on people having direct knowledge of the facts, in order to inform the arbitral tribunal.

It is usually required from witnesses that they submit a written statement detailing the facts they testify on. This statement serves as a frame for the testimony and can help assess the usefulness of the facts stated and serves as a basis for the potential examination of the witness. If the substance and words must remain those of the witness, the statement can be prepared with the help of counsel for the party bringing this testimony forth.

Examination of witnesses is a key step of the proceedings, and is used to establish the facts, confront them with those of the case and assess their coherence, relevance, accuracy and reliability. The examination is usually centered around the cross-examination of the witness by the adverse counsel and the questions of the arbitral tribunal. For that purpose, counsel for the party bringing the testimony prepare witnesses by informing them of the process of the hearing, identify the key and contested points in their testimony and ensure that the cross-examination is completed correctly at the hearing.

Clients' stories

How to obtain documents held by an opposing party in arbitration proceedings?

A client wishes to obtain documents held by the opposing party in the course of a document production phase, in application of the IBA rules on the Taking of Evidence. Thus, it requires assistance in managing this phase.
Read Story

Why should parties resort to mediation?

Mediation is particularly relevant when parties want to preserve their commercial or contractual relationship. Indeed, the mediator helps them find a common solution without excessively favoring one party over the other and which is satisfactory for both. In the present case, mediation allows the contract to be performed and avoids a lengthy and costly litigation, or even having to find a new contractor to finish the project.
Read Story

How to draft an efficient arbitration clause?

A company seeks to include a model arbitration agreement in its suite of contracts to ensure efficient settlement of its potential disputes.
Read Story

How to recognize and enforce an arbitral award?

A party to an arbitration has obtained a favorable award. It wishes to recover its claim and seeks to have the award enforced in several jurisdictions, including in France where recoverable assets have been identified. It is essential to obtain first the exequatur of the award before enforcing it by common means of enforcement.

A company wishes to enforce an arbitral award in France and abroad

Recognition of the award in jurisdictions where assets have been identified and setting up enforcement of the award

Our client's challenge

Ensuring enforcement of its award and recovery of its claim

After an ICC arbitration proceeding seated abroad, a company has obtained an award that orders the adverse party to pay damages.

The losing party does not intend to pay the damages arising out of the award voluntarily. The company benefiting from the award must therefore proceed with its enforcement.

To that end, it wishes to have recoverable assets identified in various jurisdictions, have the award recognized and enforced and ensure proper recovery as efficiently as possible.

Our way

Setting up a strategy to ensure recognition and enforcement of the award

Asset recovery strategy depends on the identification and localization of said assets. For that purpose, we use several legal means and investigatory methods, with the help of experts as the case may be, in order to identify and locate recoverable assets. This research phase allows us to determine the priorities for enforcement.

Prior to launching enforcement measures, it is necessary to have the award recognized in any jurisdiction in which enforcement is sought. In France, recognition of the award is requested ex parte, before the president of the local competent court and consists in a summary examination of the award and of the arbitration agreement. An appeal can be made only based on a limited set of legal arguments, which does not suspend the enforcement of the award, unless there is a risk of a serious breach to the rights of a party.

After exequatur has been obtained, the award can be enforced. Enforcement can be obtained through seizures and other common means of enforcement. When enforcement is sought in foreign jurisdictions, we are assisted by our network of trusted partners.

Clients' stories

How to obtain documents held by an opposing party in arbitration proceedings?

A client wishes to obtain documents held by the opposing party in the course of a document production phase, in application of the IBA rules on the Taking of Evidence. Thus, it requires assistance in managing this phase.
Read Story

Why should parties resort to mediation?

Mediation is particularly relevant when parties want to preserve their commercial or contractual relationship. Indeed, the mediator helps them find a common solution without excessively favoring one party over the other and which is satisfactory for both. In the present case, mediation allows the contract to be performed and avoids a lengthy and costly litigation, or even having to find a new contractor to finish the project.
Read Story

How to draft an efficient arbitration clause?

A company seeks to include a model arbitration agreement in its suite of contracts to ensure efficient settlement of its potential disputes.
Read Story

How to best carry out a corruption risk mapping?

Following the discovery of facts likely to qualify as corruption, a company decides to update its corruption risk mapping to ensure the non-recurrence of these acts and its compliance program effectiveness.

A company decides to update its corruption risk mapping to limit its legal risk and strengthen its compliance program.

Following an alert alleging facts likely to qualify as corruption, a company whose compliance program is being deployed decides to update its corruption risk mapping to ensure the non-recurrence of the acts and its compliance program effectiveness.

Our client's challenge

Identify, analyze, and prioritize corruption risks to better contain them.

In response to the discovery of facts likely to qualify as corruption, a company decides to update its corruption risk mapping following the Sapin 2 law and the best standards defined by soft law sources.

 

Corruption risk mapping is the cornerstone of a company’s anti-corruption compliance system, forming the basis for all its anti-corruption measures and procedures. This mapping requires managers and employees alike to reflect on the risks of corruption. This reflection enables identifying, assessing and, evaluating corruption risks to limit the company’s legal exposure.

 

The corruption risk assessment results should lead to adopting new and/or updating anti-corruption procedures and measures within the company. These procedures and measures should be consistent, effective, appropriate, and proportionate to the risks identified and the company’s specific needs.

 

Through this serious effort to strengthen its compliance program, the company demonstrates its ethical commitments, its integrity, and trust to its business partners.

Our way

Carrying out a customized corruption risk mapping through a detailed understanding of our clients’ business and organization.

Our method focuses on  understanding our clients’ organizations and activities to identify their specific needs and determine an approach adapted to their particularities (e.g., their sectors of activity, their geographical location, or the typology of their third parties).

On this basis, we define a precise ad hoc methodology that complies with the requirements of the Sapin 2 law and the best standards defined by soft law sources, such as the French Anti-corruption Agency Guidelines.

Through our expertise in ethics and compliance  and anti-bribery and corruption compliance, we analyze the existing anti-corruption measures and procedures within our clients’ companies and ensure that their corruption risk mapping is coherent and logically linked to the rest of their anti-corruption systems.

To enable our clients to take ownership of the exercise and reproduce it if necessary, we involve them in implementing and completing each steps of the risk mapping, such as identifying corruption risks and existing anti-corruption measures or developing and monitoring remediation action plans.

In addition, through our experience over the years, we have developed privileged relationships with forensic and foreign compliance firms, with whom we work jointly when necessary.

Our experience, organization, and work ethics thus ensure that our clients obtain a customized corruption risk mapping that enables them to improve the management of their corruption risks and therefore protect them from the commission of acts of corruption as well as the reputational, legal, human, economic and financial consequences that may result from them.

Clients' stories

How to respond to allegations of international sanctions violations?

Preliminary investigation initiated with regard to contraventions of European restrictive measures.
Read Story

What position to adopt with prosecuting authorities in response to allegations of corruption?

Multi-jurisdictional investigation with concurrent jurisdiction and international criminal cooperation between the prosecution authorities regarding allegations of corruption
Read Story

What to do when receiving a whistleblower report?

Formulation of serious allegations of fraud and abuse of corporate assets by a former employee following his departure from the company.
Read Story

How to prepare for arbitration in the case of a shareholders’ dispute?

A corporate shareholder in a joint venture is prevented from managing the joint venture in breach of the shareholders’ agreement which contains an arbitration clause.

A shareholder of a joint venture anticipates a dispute with its shareholders concerning the governance of the joint venture.

A minority corporate shareholder in a joint venture is being removed from the company’s board of directors and is refused payment of dividends. The company wishes to protect its interests and thus prepare for possible arbitration proceedings.

Our client's challenge

Protecting the commercial interests of a company in the context of a shareholders’ dispute and preparing for potential arbitration proceedings

Three companies in the hydrocarbons sector have set up a joint venture to operate an oil concession. Following a conflict between these shareholders, the minority shareholder was removed from the board of directors and refused payment of dividends.

In order to defend its interests, it plans to initiate arbitration proceedings in accordance with the arbitration clause contained in the shareholders’ agreement between the partners. The minority stakeholder would like advice on the preparation of this procedure and, in the meantime, on the implementation of preventive measures to protect its interests.

Our way

Advising and supporting our client in protecting its business interests and preparing for arbitration

In this type of conflict, it is essential for the parties involved to act in accordance with the rules of corporate governance, in order to preserve their rights.

To this end, the minority company being excluded from the joint venture should continue to participate in the life of the joint venture and to document its various stages. This means collecting the minutes of these meetings and the invitations to attend them whenever possible, and taking part in all board meetings and shareholders’ meetings.

All irregularities in the management and governance of the joint venture, as well as breaches of the articles of association or by-laws, must be brought to light as soon as they occur, so as not to be accused of failing to challenge them in due time during the arbitration proceedings. The joint venture’s accounts should also be examined to identify any financial irregularities.

All these steps will protect the company’s interests throughout the life of the joint venture, prior to any arbitration proceedings, and allow the company to obtain the necessary evidence in the event of a dispute.

Clients' stories

How to obtain documents held by an opposing party in arbitration proceedings?

A client wishes to obtain documents held by the opposing party in the course of a document production phase, in application of the IBA rules on the Taking of Evidence. Thus, it requires assistance in managing this phase.
Read Story

How to recognize and enforce an arbitral award?

A party to an arbitration has obtained a favorable award. It wishes to recover its claim and seeks to have the award enforced in several jurisdictions, including in France where recoverable assets have been identified. It is essential to obtain first the exequatur of the award before enforcing it by common means of enforcement.
Read Story

How to constitute an arbitral tribunal?

In having recourse to arbitration, the parties can refer their dispute to arbitrators with profiles suited to the dispute
Read Story

How to manage a visit to your offices by tax authorities ?

Company offices searched for tax purposes as part of an investigation by the tax authorities

A company is searched as part of an investigation by the tax authorities for avoiding the assessment and payment of corporate income tax.

Upon request from the tax authorities, the "Juge des libertés et de la détention" authorizes tax officials to search the taxpayer's offices and seize all documents needed to establish the taxpayer's fraudulent activities

Our client's challenge

Ensure that the search procedure is duly followed, anticipate potential legal consequences, and manage the impact of such an investigation on employees, business partners and reputation

A company is under investigation by the tax authorities for suspected evasion of corporate income tax. Pursuant to article L16B of the French Tax Code, the company is visited by agents of the tax authorities, who are seeking proof of this evasion.

 

It wishes on the one hand, to ensure that these agents comply with the procedure prescribed by article L16B, and to prepare for the possible legal consequences of such an act, and on the other hand, to control as far as possible its outcome and the internal and external communication that could be made of such an event.

Our way

Monitor seizure operations and anticipate any criminal proceedings that may be initiated.

The right of inspection and seizure is one of the most restrictive methods available to tax authorities in their investigations. We inform our customers and make them aware of the applicable legislation and the correct reflexes to adopt when conducting such a search. During the search, we assist them throughout the process to ensure that their rights are respected, that the procedural framework is followed, that events are properly recorded in the minutes, and that only documents relating to the alleged offence are. To this end, we liaise with tax officials to ensure that the visit has as minimal impact as possible on the day-to-day life of the company and its employees, while guaranteeing them access to the premises, information and documents required, and helping our clients to guide the officials to find what they are looking for.

 

Thus, and in collaboration with the customer, we work to manage all the risks likely to arise from this measure in order to protect the company’s business and safeguard its interests.

 

We also assist our clients in exercising their right to appeal against the authorization of the “Juge des libertés et de la détention” or against the conduct of operations.

 

Our team explains, prepares and supports our clients throughout the legal process, from the opening of a preliminary inquiry or investigation to referral to the criminal court. Within this process, we develop a defense strategy to ensure that our clients’ interests are considered, and that the outcome is as favorable as possible.

Clients' stories

How to prepare your defense in the event of a tax fraud prosecution?

Preliminary investigation opened for tax fraud in the wake of a tax audit revealing a concealment of part of the amounts subject to tax.
Read Story

How to obtain funding for an arbitral proceeding?

A company wishes to introduce an arbitral proceeding following the breach by its partner of its contractual obligations. It envisions using third-party funding in order to limit the amount the costs it will have to disburse.

A company wishes to use third-party funding for an arbitral proceeding

Third-party funding allows parties to have their proceedings being funded in order to manage arbitration costs and ensure their rights are being upheld or defended.

Our client's challenge

Ensuring funding of its proceeding in order to fully upheld its rights

A company wishes to introduce an ICC arbitration proceeding after a dispute arose with its contractual counterpart. It envisions having to pay a substantial amount for this proceeding in order to cover administrative fees of the arbitration center, the arbitrator and lawyers’ fees and other fees for defending its interests.

In order to control the costs of this proceeding, it wishes to request funding from a third-party funder in order to cover all or part of the arbitration costs.

It wishes to be assisted strategically, legally and procedurally, in this process, and requested our services to identify advantages and risks, potential partners, prepare a funding application and reach an agreement with the funder.

Our way

Assisting our client in preparing and obtaining third-party funding

Third-party funding consists, for a party to a dispute, in having its action financed by a funder – which does not take part in the dispute strategy – in exchange for a return on investment. This counterparty is generally constituted by a contingency fee and/or a multiple of the investment made. Accordingly, the decision to request external funding will depend notably on the expected profit and the importance of the dispute.

To obtain this funding, relevant funders should first be identified, within those involved in the jurisdiction and for the type of dispute in question (depending on the parties, the amount in dispute, the type of proceeding and the nature of the dispute). A case should then be prepared for the funder to perform its due diligence and assess its risk and investment possibilities. This step will require identifying the relevant facts and underlying elements as well as legal grounds.

Once the decision to invest is taken, our client and the funder will negotiate and conclude a funding agreement which will lay out the parties’ obligations – and the roles of the stakeholders: the party, the lawyers and the funder –, notably the budget and amount of the funding, as well as the funder’s fees.

The consequences of the third-party funding on the proceeding will also have to be anticipated. For instance, under the ICC rules, funding must be disclosed in order to prevent any risk of conflict of interests. Funding may also lead opposing party to request security for costs, as it can be a sign of impecuniosity of the party having obtained funding.

Clients' stories

How to draft an efficient arbitration clause?

A company seeks to include a model arbitration agreement in its suite of contracts to ensure efficient settlement of its potential disputes.
Read Story

How to rely on witness evidence in arbitral proceedings?

A company wishes to submit testimonies in support of its allegations in arbitral proceedings. It wishes that the witnesses to be presented to the arbitral tribunal be assisted in preparing statements and in the preparation of their examination at the hearing.
Read Story

How to constitute an arbitral tribunal?

In having recourse to arbitration, the parties can refer their dispute to arbitrators with profiles suited to the dispute
Read Story

How to constitute an arbitral tribunal?

In having recourse to arbitration, the parties can refer their dispute to arbitrators with profiles suited to the dispute

A party wishes to identify adequate arbitrator profiles to ensure efficient resolution of its dispute

The constitution of the arbitral tribunal is a paramount stage in every arbitration proceeding. Parties are free to appoint the arbitrators they choose, taking into account their professional and personal qualities, but also requirements of independence and impartiality.

Our client's challenge

Appointing an arbitrator suited to the issues of the dispute

A construction company is in dispute with a sub-contractor in relation to delays in performing a construction project and technically inadequate performance of its obligations.

It wishes to introduce arbitration proceedings in compliance with the arbitration agreement contained in the contract. This arbitration agreement provides for the application of the UNICTRAL rules, the constitution of an arbitral tribunal composed of three members, the application of English law and a seat in Hong-Kong.

In such a situation with a tribunal of three members, the arbitrators appointed are often chosen by the parties. In that case, each party generally appoints a co-arbitrator and they then attempt to find a commonly agreeable chair.

The claimant wishes to anticipate the phase of constitution of the arbitral tribunal and wants to identify arbitrator profiles that are suited to the dispute, taking into account the nature of the legal and technical issues of the case and the procedural requirements of arbitration.

Our way

Assisting our client in identifying appropriate profiles to deal with the dispute

Selecting an arbitrator is a strategic decision, for which we can provide key assistance and experience to our clients.

This choice must first be made with a view to avoid risks of conflicts of interests and within the requirements of independence and impartiality that arbitrators have to abide by. Breaches of these requirements can lead to challenges to arbitrators (see Article 1456 of the French code of civil procedure) or annulment of awards (see Articles 1492, 2° and 1520, 2° of the French code of civil procedure). It is therefore necessary to anticipate these issues to ensure the integrity of the procedure.

In addition to these legal requirements, it is important to take into account the availability of arbitrator candidates in order to ensure an efficient management of the arbitration.

Finally, the profiles of the arbitrators must be suited to the characteristics of the dispute, through precise and tailored research and screening, notably by reviewing academic writings and past decisions. For legal aspects, profiles that are experienced with the substantive law or the procedural law of the arbitration should be identified. For technical aspects, it is also important to select arbitrators that are familiar with the sector in dispute. Finally, knowledge of the language of the merits or of the substantive law by the arbitrators should be taken into account.

Clients' stories

How to obtain documents held by an opposing party in arbitration proceedings?

A client wishes to obtain documents held by the opposing party in the course of a document production phase, in application of the IBA rules on the Taking of Evidence. Thus, it requires assistance in managing this phase.
Read Story

How to recognize and enforce an arbitral award?

A party to an arbitration has obtained a favorable award. It wishes to recover its claim and seeks to have the award enforced in several jurisdictions, including in France where recoverable assets have been identified. It is essential to obtain first the exequatur of the award before enforcing it by common means of enforcement.
Read Story

How to prepare for arbitration in the case of a shareholders’ dispute?

A corporate shareholder in a joint venture is prevented from managing the joint venture in breach of the shareholders’ agreement which contains an arbitration clause.
Read Story

How to prepare for an interview by AMF investigators?

Reacting to a summons to an interview within the course of an AMF investigation

Procedure initiated in the context of suspected market abuse

As part of an investigation opened based on facts potentially amounting to insider trading, a company and its manager have been summoned to answer the AMF investigators questions.

Our client's challenge

What behavior should be adopted with AMF investigators?

In the case of a summons to an interview in the context of an AMF investigation, limited information on the procedure is communicated to the interviewees. The challenge for our clients is to be prepared to answer the questions asked while anticipating on the potential consequences of the procedure.

Our way

Adopting the right behavior, prepare and keep control on the information provided

Thanks to its specific expertise, Navacelle offers support from the very first stages of the procedure.

Our experience in AMF procedures together with our technical expertise both in professional regulatory obligations and on market abuse cases enables us to rapidly understand the situations that our clients may face and to anticipate the authority’s concerns.

Navacelle helps preparing for the interviews by drawing up a list of questions that may be asked and by advising on how to behave in front of the investigators. We also attend the interviews alongside our clients, to ensure that their rights are respected, to limit unexpected situations and to avoid compromising the rest of the procedure.

Then, throughout the investigation, our team assists our clients to build together a defense strategy, to control the information provided, to file briefs and more generally to carry out any useful procedural action.

Clients' stories

How to best handle the opening of an AMF inspection?

Reacting to requests made in the context of an inspection
Read Story

How to distinguish between illegal lending of manpower and subcontracting?

In addition to the company’s liability, liability of the director for illicit lending of manpower

From subcontracting to illegal manpower lending

As part of a temporary IT project, a company subcontracted the management of part of its IT system. Following a referral to the employment authorities, the company and its director were prosecuted for illegal lending of manpower.

Our client's challenge

Avoiding the conviction of the company and its director

Criminal business law covers a wide spectrum of offenses related to business activities, including criminal employment law. The latter, which applies to offences committed in the context of employment relations between employers and employees, often leads to the employer’s liability.

Behind the notion of employer, we find both the legal entity and the manager. However, the liability of the director of a company accused of having committed a work-related offence by the sole fact of his capacity as legal representative is often sought.

In view of the implications of a criminal conviction and the existence of a criminal record, both the company and the director would like the director to be removed from the preventive process and be exempt from criminal liability.

However, this liability is often considered to be automatic. The will to exclude this commitment of responsibility is therefore inconsistent with the literal wording of the legislative texts.

Our way

Demonstration of the lack of classification of the offence

We accompany our clients and jointly establish the criminal defense strategy with them. We also assist them, independently of any legal proceedings, in understanding the measures to be taken to improve the processes in place within the company in order to limit the risks of criminal liability.

In this respect, we help our clients implement very precise control procedures to avoid any risk. In this context, we can also recommend the implementation of delegations of authority so that the potential criminal liability rests with the persons actually in charge of the decision-making process and who have the competence, authority and means to carry out their missions.

If the criminal liability of the director is questioned, we analyze the criminal file and gather, in collaboration with our client, all the elements that allow us to consider the qualification of the accused offence. Experienced in criminal proceedings, our team examines the basis for the prosecution and build the strongest possible legal argument to obtain the right decision.

Clients' stories

How to best carry out a corruption risk mapping?

Following the discovery of facts likely to qualify as corruption, a company decides to update its corruption risk mapping to ensure the non-recurrence of these acts and its compliance program effectiveness.
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What position to adopt with prosecuting authorities in response to allegations of corruption?

Multi-jurisdictional investigation with concurrent jurisdiction and international criminal cooperation between the prosecution authorities regarding allegations of corruption
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How to prepare your defense in the event of a tax fraud prosecution?

Preliminary investigation opened for tax fraud in the wake of a tax audit revealing a concealment of part of the amounts subject to tax.
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How to respond to allegations of international sanctions violations?

Preliminary investigation initiated with regard to contraventions of European restrictive measures.

Prosecution for breaches of international sanctions

Following operations carried out in an embargoed country, a French company was investigated in the context of a preliminary investigation opened for a breach of EU sanctions.

Our client's challenge

Demonstrate the absence of breach of international sanctions

Trade sanctions are often the results of diplomatic and geopolitical considerations which renders the legislation complex and time varying. These measures may restrict international through various means such as the freezing of assets or the prohibition to make funds, resources or services available to certain designated persons or entities. Any decision to trade in a country affected by sanctions must therefore be subject to a legal analysis.

Violations of international and EU trade sanctions can render legal persons criminally liable for such violations and inflict considerable reputational harm. The defense for violations of trade sanctions is de facto based on very technical legal arguments as to whether or not the regulations apply to the specific case.

Our way

Legal analysis and assistance during criminal proceedings

In tight cooperation with our clients, we provide in-depth assistance by analysing the legal situation relating to international sanctions at the time of the facts to determine the existence of a risk. We thus identify and measure the legal and reputational issues that may arise for the targeted person.

Our legal advice not only considers the legal and reputational risks of the allegations of trade sanctions violations but also a strategic approach to criminal procedure through our experience of such proceedings. We strive to prepare to the best of our ability our clients to the challenges that they face by using our recognized experience and ability.

Therefore, depending on the analysis conducted, a defence strategy is developed, studied, and validated by the client. Once approved, the firm accompanies the client in the development of such strategy, step by step, with reassessment at each stage to achieve the expected result.

Clients' stories

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A company faced with the classification of its goods exported from France as dual-use goods
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How to request the services of a Commissioner within the meaning of Article 17 of Chapter II of the Hague Convention?

Dealing with a request for discovery of information located in France in the context of a foreign procedure

Communication of French data abroad in civil and commercial matters

In the context of a foreign civil or commercial proceeding, one of the parties requests information located in France from the other

Our client's challenge

Respond adequately to the request for information

When a party to a U.S. civil or commercial proceeding requests discovery of information located in France, the party must make every effort to respond to the request while ensuring that the response complies with the applicable law. However, the Blocking Statute of 26 July 1968, as subsequently amended, prohibits, except in the case of international treaties or agreements, that “any person requests, seeks or communicates, in writing, orally or in any other form, documents or information of an economic, commercial, industrial, financial or technical nature intended to constitute evidence in view of or in the context of foreign judicial or administrative proceedings”, under penalty of criminal sanctions.

The said communication required by the American authorities must therefore be made within the framework of a treaty or an international agreement to avoid violating the provisions of the Blocking Statute.

The Hague Convention of 18 March 1970 on the Taking of Evidence Abroad in Civil or Commercial Matters governs the manner in which this communication can take place: either by rogatory commission between signatory States, or through diplomatic or consular agents or commissioners.

The party requesting the communication of information located in France will therefore have to apply this convention in order to ensure that the transfer of data is fully legal.

Our way

To provide a secure and contractually compliant framework for the communication of information

The team has significant expertise in cross-border cases, as the firm’s practice mainly involves multi-jurisdictional cases. The firm also has experience in the management of the Hague Convention process, having been appointed as a commissioner by the American courts on several occasions.

We therefore offer our clients services to implement the necessary steps to carry out this disclosure, by reviewing the draft order issued by the foreign courts, contacting the Ministry of Justice to obtain the authorization to act as commissioner, organizing the eventual collection of testimony and proceeding with the collection and transmission of the documents in accordance with what is agreed by the foreign court and in application of the treaty provisions.

Based on our past experience, we also provide our clients with clear understanding of the issues and risks involved in these multi-jurisdictional discovery requests and the application of the Blocking Statute so that choices are made in accordance with the applicable legal framework.

How to prepare for arbitration proceedings?

Following major political events, a company is forced to suspend the execution of its contract

A State initiates arbitration proceedings against a company operating in the oil industry

Arbitration proceedings initiated before the ICC by a State due to the non-performance of a contract for the installation of a pipeline by a company.

Our client's challenge

Being exonerated from liability and obtaining compensation for its own harm

Due to major political events, a company had to flee the country and suspend the performance of its contract for the installation of an oil pipeline.

Its partner raised the company’s liability due to the breach of its contractual obligations. Our client was therefore seeking exoneration of its liability and compensation for a portion of the contract that remained unpaid by its partner. The stakes were high both in terms of costs and in terms of reputation for this world leader operating in many politically unstable countries.

It was necessary to master the procedural stages of the arbitration and to develop factual and legal arguments on the basis of local law, applicable to the contract. The political and security situation, the lack of a continued presence in the country and the fact that the events happened many years before increased the difficulties in administering this dispute and building a solid case.

Our way

Working collectively to build a solid legal argument

Our priority is to work jointly with our clients in order to provide them with the most appropriate options. In that case, the complexity of the logistical and evidentiary situation made it all the more crucial working side by side with our client.

Taking into account the procedural stages of the arbitration, we set up internal processes in order to build a strategy, anticipate difficulties and prepare our defense. Our experience in investigations and evidence gathering allows us to deal with issues in document management, which are frequent in complex arbitrations.

In addition, our procedural expertise and our global network of judicial and technical experts allowed us to build a strong legal position under the local law and to implement the best conditions for success.

Clients' stories

How to obtain documents held by an opposing party in arbitration proceedings?

A client wishes to obtain documents held by the opposing party in the course of a document production phase, in application of the IBA rules on the Taking of Evidence. Thus, it requires assistance in managing this phase.
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Why should parties resort to mediation?

Mediation is particularly relevant when parties want to preserve their commercial or contractual relationship. Indeed, the mediator helps them find a common solution without excessively favoring one party over the other and which is satisfactory for both. In the present case, mediation allows the contract to be performed and avoids a lengthy and costly litigation, or even having to find a new contractor to finish the project.
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How to draft an efficient arbitration clause?

A company seeks to include a model arbitration agreement in its suite of contracts to ensure efficient settlement of its potential disputes.
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What position to adopt with prosecuting authorities in response to allegations of corruption?

Multi-jurisdictional investigation with concurrent jurisdiction and international criminal cooperation between the prosecution authorities regarding allegations of corruption

A company challenged over allegations of corruption

Following a whistleblower's report, several prosecuting authorities are seized with corruption allegations against a company operating in many countries. The company must therefore deal with this plurality of prosecutions and the potential for multiple prosecutions and put in place a coordinated defense.

Our client's challenge

Defend and preserve one' s interests to the best of one's ability

When allegations of corruption are made and several authorities have concurrent jurisdiction, the defense strategy put in place must anticipate the potential for multi-jurisdictional proceedings and must therefore take into account the legal risks and procedural options available in the various countries concerned.

This defense strategy can only be put in place once the company’s actual involvement and degree of liability has been analyzed and the procedural and judicial options have been set out and chosen.

It is then necessary to establish the reality of the allegations, which often demands the examination and assessment of past situations that have taken place in specific countries and on specific contracts. Based on the factual situation thus established, an analysis of the legal risks involved is conducted in order to determine the strategic options.

Depending on this initial review and the selected options, the company will have to identify, anticipate, prepare and respond to possible requests from the authorities, while preserving its interests and keeping open the eventual possibility of cooperation in view of a potential settlement agreement (DPA or CJIP).

Our way

Define the most effective defense strategy

The team, which has extensive expertise in the handling of corruption cases involving prosecutions from several countries, assists, represents and accompanies clients at all stages of the proceedings in France and coordinates their defense with an extended defense team composed of experienced law firms in the other countries concerned.

Working in concert with all the parties entrusted with the client’s defense allows us to build the best possible strategy and to preserve the client’s interests in the most cautious manner possible. Indeed, this allows for a coordination of all actions anticipating the possible consequences and repercussions in the other countries concerned and taking into account any judicial or legal particularities that may exist.

Certain issues associated with the involvement of multiple jurisdictions, such as the blocking statutes, the conditions of international criminal cooperation or the transmission of data outside our borders, are fully explained to clients and included in the strategic choices made.

Based on our past experience with similar cases, our involvement in current discussions or working groups in the field, and our knowledge of how exchanges with the authorities work, we offer our clients support at different stages and with short-, medium- and long-term analysis. This study work, carried out in close cooperation with our clients, is reviewed on a regular basis to ensure the most appropriate assistance possible as the case evolves over time.

« Allegations of corruption are used at several stages of arbitration proceedings and have become a means of procedural strategy in recent years »
Salomé Garnier

Clients' stories

How to best carry out a corruption risk mapping?

Following the discovery of facts likely to qualify as corruption, a company decides to update its corruption risk mapping to ensure the non-recurrence of these acts and its compliance program effectiveness.
Read Story

What to do when receiving a whistleblower report?

Formulation of serious allegations of fraud and abuse of corporate assets by a former employee following his departure from the company.

French SME on the receiving end of serious allegations

In the context of a settlement following the dismissal of an employee, the latter makes serious allegations of fraud and misuse of corporate assets against the directors in particular.

Our client's challenge

Preserve the reputation of the company and its directors

When faced with such allegations, it is important to identify, control and therefore limit the potential legal, operational and reputational repercussions of such allegations.

Although unfounded, allegations of reprehensible or inappropriate behavior undeniably arouse suspicion and therefore damages the company’s reputation. This can be destabilizing for the company, and even more so if its governance is called into question.

It is therefore necessary to assess the reality of these allegations as quickly as possible in order to respond to them.

The analysis of the allegation must be as serious and effective as possible in order to draw the appropriate conclusions and either firmly refute the allegation or implement any useful measure in order to put an end to the misconduct established.

However, the latter is not always easy, given the quality of the people involved, the social climate, the existing professional relationships, or the obligation of independence and objectivity that must be imposed.

Our way

Evaluate the risk incurred through an internal investigation

We set up internal investigations with the intention of bringing light to the facts reported and allowing our clients to obtain an analysis of the allegation made as well as recommendations on the measures to be taken based on the conclusions reached.

As an independent and external party, we guarantee that our internal investigation is conducted in a methodical manner and in compliance with the applicable rules. Our findings inform clients of the identification of any potential liabilities, the nature of the present and future risks involved, and the measures to be taken to put an end to the deviant or reprehensible practices and prevent their reoccurrence. Armed with these elements, our clients are in a position to decide the handling of the fact discovered or reported and the actions to be taken.

While the internal investigation is carried out independently, we work in close collaboration with our clients to develop the investigative plan, which identifies all the parties involved in the investigation, whether external or internal, and determines the facts to be investigated as well as the time frame for the investigation.

Clients' stories

How to best carry out a corruption risk mapping?

Following the discovery of facts likely to qualify as corruption, a company decides to update its corruption risk mapping to ensure the non-recurrence of these acts and its compliance program effectiveness.
Read Story

How to respond to allegations of international sanctions violations?

Preliminary investigation initiated with regard to contraventions of European restrictive measures.
Read Story

What position to adopt with prosecuting authorities in response to allegations of corruption?

Multi-jurisdictional investigation with concurrent jurisdiction and international criminal cooperation between the prosecution authorities regarding allegations of corruption
Read Story

How to choose the appropriate export licence to export dual use goods?

A company faced with the classification of its goods exported from France as dual-use goods

Company exporting technology with cryptography

Need to apply for a license to export dual-use goods from the European Union to the Dual-Use Goods Unit (DUG) after the exported goods have been classified as dual-use goods.

Our client's challenge

Choice of export licenses for the authorization to be granted

Dual-use goods are those that can be used for both civilian and military purposes. They must be authorized to be exported. Several types of licenses authorizing their export are provided for by European and French legislation.

Each export license has its own specific characteristics depending on the export location, the frequency of export or the quantity of goods exported. Some licenses allow goods to be exported on a permanent basis but require an internal control system to be implemented. These internal systems must ensure the identity of the end-users and the final location of the exported goods.

Depending on the classification of the goods being exported, the location of the end-user and the quantity and frequency of the exports, the choice of a type of license must be made and such decision not always obvious.

Our way

Understanding of the exporter's activity and needs

We assist and advise the client based on the precise characteristics of the goods to be exported, the needs and the location of the export sites.

We present the different EU and French legislation on the export of dual use goods. We strive to present clear and precise legal and practical advice on the issue of export of dual use goods and accompany Clients in the choice of the appropriate license.

Once the choice is made, we assist them when applying for export licences at all relevant stages before the French SBDU. We also provide support for the implementation of monitoring programs that are required as part of some export authorizations such as global licences.

Clients' stories

How to respond to allegations of international sanctions violations?

Preliminary investigation initiated with regard to contraventions of European restrictive measures.
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How to prepare your defense in the event of a tax fraud prosecution?

Preliminary investigation opened for tax fraud in the wake of a tax audit revealing a concealment of part of the amounts subject to tax.

After a tax audit, a company is accused of hiding a part of the amounts subject to tax and must face prosecution for tax fraud.

Following a denunciation, a tax audit is carried out and it is established that the audited company has avoided or attempted to avoid paying taxes. Criminal proceedings for tax fraud are initiated and some of the company's employees are summoned before a French financial brigade.

Our client's challenge

Prepare the most appropriate defense and preserve your futures interest

When allegations of tax fraud are confirmed by a tax audit and legal proceedings are initiated, the defense strategy that is established must be based on a detailed analysis of the procedure followed during the audit or rectification operations and of the conclusions of the tax audit in order to establish the possibilities of challenging the constitution of the fraud.

The defense strategy can only be implemented once the reality and the degree of involvement or responsibility of the company have been analyzed and the procedural and judicial options have been exposed and chosen.

These strategic options, depending on the study and assessment of the risk, will enable the company to anticipate, prepare and respond to any requests made by the prosecuting authorities while preserving its interests as best as possible, whether these are based on a dispute as to the materiality of the offence or on full cooperation with a view to a potential agreement (CRPC or CJIP).

Our way

Build a criminal defense demonstrating the absence of fraudulent behavior or the introduction of remedial measures

We offer our clients customized support adapted to the hybrid nature of criminal tax law issues.

Depending on the stage of the procedure at the time of consultation with the firm, our team works with its tax law partners to try to avoid an opinion in favor of criminal prosecution issued by the “Commission des infractions fiscales”.

When criminal proceedings have already been initiated, our lawyers conduct a detailed and accurate analysis of the elements involved and the conclusions of the tax audit in order to assist the client in demonstrating either the absence of a tax fraud offence or the implementation of measures to ensure that there is no further dissimulation or evasion in the declarations made.

Our team has the necessary expertise to assist its clients during all stages of the judicial procedure, such as a police interview or a police custody measure. We explain and sensitize our clients so that they adopt the right reflexes during these constraining measures.

We also work in close collaboration with the tax specialists in our network during the jurisdictional phase in order to challenge the taxes that would have been prescribed at the end of the audit, in the event of a dispute as to the materiality of the offence.

This methodology makes it possible to control the stages of the procedure, to build the most appropriate defense strategy possible and to obtain the result that limits as much as possible the legal, reputational, economic and governance risks that the company could face.

How to initiate arbitration proceedings?

In order to settle a dispute, arbitration proceedings must be initiated by submitting a request for arbitration

A party wishes to initiate arbitration proceedings

The request for arbitration, which starts the proceedings, must comply with the applicable arbitration rules and agreement and set out the claims and grounds as well as the claimant’s position on certain procedural aspects.

Our client's challenge

Drafting a valid, coherent and relevant request for arbitration

After the dispute has crystallized and in order to settle the dispute, a party wishes to initiate arbitration proceedings before the ICC, in compliance with the arbitration agreement.

To this end, it is necessary to identify the procedural requirements to be complied with under the applicable law and arbitration rules. The request for arbitration will need to specify the claims that will be raised, set out their factual and legal basis and quantify the damages to be claimed.

Insofar as the opposing party will have the opportunity to submit an answer to the request for arbitration, the defenses that will be raised procedurally or on the merits, or the counterclaims that will be submitted should be anticipated.

Our way

Identifying the legal and procedural aspects in order to draft an efficient request for arbitration

The request for arbitration lays out the claims raised, in a short and concise manner. It is therefore necessary to determine them precisely beforehand. We therefore work with our clients to identify the relevant facts to develop and substantiate legal claims.

To ensure the validity of the request, the requirements of the applicable rules of arbitration must be taken into account. For instance, according to Article 4 of the ICC rules, the request must contain the identification of the parties and counsel, a presentation of the facts and claims as well as clarification on some procedural aspects, notably concerning the constitution of the arbitral tribunal (but also the place of arbitration, the applicable law and the language of the proceedings). The strategic aspect of choosing an arbitrator must be commenced as soon as the preparation of the request is contemplated.

Finally, the request for arbitration must be prepared with a thought for the adverse party’s possible defenses, in particular procedural defenses, like those relating to the jurisdiction of the arbitral tribunal or the admissibility of claims.

The same process will be applied if the proceedings are administered by another institution (LCIA, HKIAC, SCC, ICSID, etc.) and the requirements under each rules will need to be checked.

Clients' stories

How to obtain documents held by an opposing party in arbitration proceedings?

A client wishes to obtain documents held by the opposing party in the course of a document production phase, in application of the IBA rules on the Taking of Evidence. Thus, it requires assistance in managing this phase.
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Why should parties resort to mediation?

Mediation is particularly relevant when parties want to preserve their commercial or contractual relationship. Indeed, the mediator helps them find a common solution without excessively favoring one party over the other and which is satisfactory for both. In the present case, mediation allows the contract to be performed and avoids a lengthy and costly litigation, or even having to find a new contractor to finish the project.
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How to draft an efficient arbitration clause?

A company seeks to include a model arbitration agreement in its suite of contracts to ensure efficient settlement of its potential disputes.
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How can you ensure that your compliance program is reliable?

A monitorship pursuant to a settlement agreement negotiated between a company and the World Bank through a compliance program evaluation

Company with worldwide presence sanctioned by the World Bank

Designation of a 2-year monitor, responsible for assessing the compliance program implemented by the Group in its subsidiaries and making any necessary recommendations on how to improve the program.

Our client's challenge

To demonstrate the existence of a strong compliance program

The demonstration of an effective compliance program is necessary for many reasons. First it can be a legislative obligation for some since Sapin II law or it can be an obligation imposed by an authority for others. However, a solid compliance program is also a way to ensure that the company’s way of doing business is appropriate and therefore to avoid and mitigate the risks of liability.

A compliance program that meets the best international standards must be efficient and accepted by everyone in the organization. Thus, an effective compliance program is one that allows for the receipt of alerts, deals with them and addresses their consequences. It is therefore often a process of constant improvement. A compliance program that is accepted by all (employees, customers, business partners, shareholders) requires the adoption of a compliance culture within the organization, at all levels. This culture is adopted when compliance is no longer seen as a hindrance or a threat, but rather as a necessary and beneficial process.

Our way

Assessment and recommendations to strengthen the compliance program

With extensive experience in the matter, we evaluate existing compliance programs after having worked with our clients to understand their business, their operational needs and their constraints. The assessment of the compliance program is therefore done in concreto with respect to the business reality and via both a review of the existing policies or processes and an analysis of their application in the field.

Once the assessment is completed, we discuss the identified weaknesses with our clients and establish recommendations to bring the compliance program up to legal or regulatory requirements while ensuring their feasibility and effectiveness. We assist and support our clients in the implementation of these recommendations.

This evaluation and improvement process of the compliance program can be carried out by us in several cases: measure imposed by an authority, following a failure identified within the framework of an alert, or on decision of the client who wishes to improve its standards.

Clients' stories

How to best carry out a corruption risk mapping?

Following the discovery of facts likely to qualify as corruption, a company decides to update its corruption risk mapping to ensure the non-recurrence of these acts and its compliance program effectiveness.
Read Story

How to respond to allegations of international sanctions violations?

Preliminary investigation initiated with regard to contraventions of European restrictive measures.
Read Story

What position to adopt with prosecuting authorities in response to allegations of corruption?

Multi-jurisdictional investigation with concurrent jurisdiction and international criminal cooperation between the prosecution authorities regarding allegations of corruption
Read Story

How should one respond to the introduction of a criminal investigation and to intrusive investigative acts?

Searches of company premises following the opening of an investigation for breach of trust and tax money laundering

Preliminary investigation opened for breach of trust and tax fraud laundering

Following a complaint from a minority shareholder, an initial investigation was opened against the company and its directors, who were accused of having misappropriated funds for a specific purpose and of having assisted in an operation to invest, conceal, or convert the direct or indirect proceeds of tax fraud.

Our client's challenge

Avoiding a governance crisis and reputational harm

When an internal conflict leads to criminal proceedings, the situation can be extremely sensitive as a lot of internal information and documents are used to support the investigation. The company’s activities and operations are analyzed and criticized, but above all, they are also thoroughly exposed in the proceedings and even in the judicial decisions rendered. This exposure, often unmanaged, causes the company to suffer an additional risk to the judicial or criminal one.

However, in many criminal business law issues, the company is accused by its employees or former employees, its shareholders, its former directors or even its business partners.

When the conflict is initiated by a shareholder or a former executive, governance is frequently destabilized. Distrust can also develop. The time dedicated to reducing the conflict is time that is not allocated to the defense of the legal entity and to the determination of the strategy to be implemented.

When the initiation of criminal proceedings is announced through a search or a summons, surprise often prevails over good reflexes, even though these initial stages of the investigation are often crucial and decisive for the future and the defense of the company’s interests.

Our way

Control and anticipate the steps of the criminal process to ensure a reassuring communication

We offer our clients tailored support that is specific to their case and the context in which it takes place.

We are committed to supporting and assisting our clients in the criminal legal proceedings, both in the construction of their defense strategy and in providing answers to questions that may arise regarding the impact of this aspect on their internal problems.

Thus, we explain and prepare our clients for all stages of the procedure. They are made aware of the correct reflexes to have in the event of an investigation and are prepared to deal with them. They are also informed of the possible consequences on the remainder of the procedure, so that they can take the necessary measure and draw conclusions regarding the strategic choices of governance and operations.

In close collaboration with our clients, we analyze the situation from a legal perspective to define, redefine and refine the line of defense to be adopted as much as necessary.

We work to understand all elements of the case in order to anticipate as much as possible the steps to come and to prepare our clients as well as possible.

This expertise allows our clients to work on the handling of any risk other than the legal one, whether social, reputational, economic, governance or political, so that they can take the necessary measures to protect their reputation and their commercial or economic activity.

Clients' stories

How to best carry out a corruption risk mapping?

Following the discovery of facts likely to qualify as corruption, a company decides to update its corruption risk mapping to ensure the non-recurrence of these acts and its compliance program effectiveness.
Read Story

How to distinguish between illegal lending of manpower and subcontracting?

In addition to the company’s liability, liability of the director for illicit lending of manpower
Read Story

What position to adopt with prosecuting authorities in response to allegations of corruption?

Multi-jurisdictional investigation with concurrent jurisdiction and international criminal cooperation between the prosecution authorities regarding allegations of corruption
Read Story

How to prepare for an interview in an internal investigation?

Summoning an employee to an interview during an internal investigation to be heard on the facts

Employee of a French company under investigation

In the context of investigations opened by foreign prosecuting authorities against a French company, an employee responsible for the department where an offence is alleged to have occurred is summoned to be heard on the matter.

Our client's challenge

Collaborate with the employer while protecting your own interests

In the context of an internal investigation, interviews with employees or business partners are very commonly conducted, particularly to gather factual information as to the reality, materiality and importance of the fact(s) reported, accused or alleged.
The elements and information provided during these interviews can be used by the employer in his defense strategy and can therefore be the source of a possible sanction of the employee. This information may also be transmitted to the prosecuting authorities in the context of a possible cooperation.
In order to avoid self-reporting or providing information that could compromise them, employees who are heard in this way must strike a balance between providing the held information to their employer and protecting their own interests.
In the same way, and regardless of what is said, the employee must ensure that the rights granted to him/her during the internal investigation are respected, in particular the right to privacy or the protection of personal data.

Our way

Prepare for the hearing while preparing for one' s own defense

Based on our considerable experience in this matter, we assist our clients at hearings conducted by their employer or their employer’s counsel.

To do so, we analyze the facts and the possible legal risks in anticipating the subjects and questions that may be raised and preparing the answers with our clients. We study all elements transmitted by the investigator and ensure a follow-up dialogue with the latter in the interest of our clients. We provide all additional elements of answers which may be necessary.

We also ensure that the rights granted to employees by the internal investigation process are respected.

More importantly, in the event that a prosecuting authority is seized, we also assist our clients in the context of the open investigation and implement their rights of defense, in line with the actions carried out in the context of the internal investigation.

Clients' stories

What to do when receiving a whistleblower report?

Formulation of serious allegations of fraud and abuse of corporate assets by a former employee following his departure from the company.
Read Story

How to best handle the opening of an AMF inspection?

Reacting to requests made in the context of an inspection

Administrative inspection procedure initiated on an asset management company

Assistance provided to an asset management company during a visit by AMF inspectors and then at the various stages of the inspection.

Our client's challenge

Ensuring effective communication with AMF representative while preserving your rights and the confidentiality of the procedure

When AMF inspectors send requests to a regulated professional, precise answers should be provided to ensure that they are well informed on the company’s activity while asserting your rights to protect your interests and anticipating on the following procedural steps.

Our way

Responsiveness and precision: tailor-made assistance

We were informed by the CEO of our client, an asset management company, that the AMF inspectors had come to their offices. We immediately met him on site and assisted the company in responding to the authority’s requests.

We participated in all the discussions that took place, gathered the inspectors’ requests and organized the communication of the documents sought, making sure to keep confidential elements out. This allowed us to have an overall understanding of the case in order to be able to quickly submit relevant briefs to the AMF.

Considering the information gathered, we also advised the company on the remediation measures to be implemented, which helped avoid its referral to the Enforcement Committee.

Clients' stories

How to prepare for an interview by AMF investigators?

Reacting to a summons to an interview within the course of an AMF investigation
Read Story

How to defend oneself from illegal banking solicitation?

Proceedings opened against a Swiss banking institution for illegal solicitation in France.

Interview of a former employee of a banking institution

Due to some activities carried out in France by its Swiss entity, a Swiss banking institution was subject to investigation and its employees and former employees were interviewed.

Our client's challenge

Cooperating while avoiding liability

Eager to provide the answers to the questions to demonstrate their cooperation and to avoid encouraging an intensification of the investigative measures, our clients still want to avoid participating in their incrimination and putting themselves at risk of being held liable.

In this case, our client was suspected of having committed illegal solicitation in the context of his past functions within a Swiss banking institution. He was concerned that he would be caught between the necessary cooperation required for his own defense and the possible incrimination of his former employer on the basis of his statements. He therefore wanted a detailed legal analysis of the facts he had to report in order to understand their possible judicial consequences.

In the same way, the client questioned the extent to which he was allowed to answer questions relating to his activity, as he was subject to banking secrecy in Switzerland.

Our way

To respond to our clients' inquiries and prepare their defense strategy

We accompany our clients throughout criminal proceedings, providing them with explanations regarding the past and future steps of the process and helping them to prepare themselves to deal with these steps in the best possible way. We strive to provide answers to all the queries they might have so that they are best equipped to be actors of their defense. We also provide an overview of each constitutive element of the alleged offence and detail all the strong and weak aspects of the defence strategy considered.

In addition to the work carried out regarding the technical aspects of the offences and the steps of the procedure, we also take into account the specific characteristics that may exist in cross-border procedures, such as the existence of national blocking statutes for example, or specific conceptions and definitions of the notion of professional secrecy.

In order to do so, we can rely on our network of foreign colleagues who are specialized in the fields in which we work and who can provide us with their legal analysis of local law.

Thus, we were able to justify in the present case the existence of the blocking statute and bank secrecy preventing or limiting the answers of our client during his hearing, thus preserving him from any risk of commitment.

How to challenge an arbitral award?

After an arbitral award has been rendered, a party has identified irregularities and wishes to challenge it

A party to an arbitration wishes to challenge an arbitral award

Set-aside proceedings before the court of appeal of Paris due to some irregularities, including allegations of violation of international public order.

Our client's challenge

Having the award being set-aside due to suspected corruption

Following ICC arbitration proceedings with a seat in Paris in relation to breaches and payment defaults of service contracts, the claimant has obtained an award of damages against the respondent.

The respondent has discovered suspected corruption in relation to these contracts and wishes to explore the possibility to challenge the arbitral award due to a possible violation of international public order.

Our way

Setting up a strategy to present the relevant irregularities against the award

The set-aside procedure has strict time-limits. It is therefore necessary to rapidly identify the potential irregularities that can be raised and their strength.

Claims of violation of international public order rules in the presence of allegations of corruption, usually require a precise identification of the relevance of those allegations both legally and factually, and require extensive fact-finding in order to establish a strong body of evidence.

As the case-law on this issue is rich and constantly evolving, substantive, creative and convincing legal arguments need to be drafted to convince the judge of the high risk of violation of international public order.

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