GGI Leadership Forum in Eisenberg · GGI member firm Lawrence Grant welcomes new Partner ..... 15...
Transcript of GGI Leadership Forum in Eisenberg · GGI member firm Lawrence Grant welcomes new Partner ..... 15...
GGI INSIDER | No 65 | May 2013
1
copy 2013 - Geneva Group International
News andInformationfor Membersand Friends of Geneva GroupInternational
Issue No 65 | May 2013
GGILeadershipForum in Eisenberg
2
Content
EditorialDear GGI Members Dear Friends
It is already good two months since INSIDER last floated into your inbox
So time for an update and the new is-sue of INSIDER which aims to inform inspire amuse and keep readers abreast of all the latest developments
What can you expect from this issue A little of everything
For the benefit of all those who were unable to attend the reviews of this yearrsquos European conference in Portugal this yearrsquos Developing Leaders Confer-ence in Boston for GGIrsquos young pro-fessionals and a review of this yearrsquos North American Regional Conference in San Francisco give details of the activi-ties that took place We can tell you this much already all three conferences were outstanding successes
The GGI Leadership Forum in Eisen-berg Burgenland Austria is now almost upon us It will take place from 20 to 23 June in Eisenberg Austria and prepa-rations are now in full swing This year once again there is much to look for-ward to the keynote speakers will be John Caswell and Hazel Tiffany with an interactive talk on ldquoWhen did we last challenge our leadership abilityrdquo
There is much more to discover in this issue We wish you a pleasant read much success productive networking and for all those who have already signed up a safe smooth journey to Eisenberg in Burgenland
Your GGI Team
CONTACT | EDITORIAL | CONTENT
Geneva Group International AGSchaffhauserstrasse 5508052 ZurichSwitzerlandT +41 44 256 18 18E infoggicom W wwwggicomW wwwggiforumcom
The information provided in this INSIDER came from reliable sources and was prepared from data assumed to be correct how-ever we neither accept liability for nor are we able to guarantee the content
If you wish to be removed from the mailing list send an email to infoggicom Let us know what you think about INSIDER We wel-come your feedback
Disclaimer
Contact
GGI INSIDER | No 65 | May 2013
3
Content20 - 23 June 2013 GGI Leadership Forum Eisenberg ndash Austria
05 - 07 July 2013 GGI Asia-Pacific EasyMeet Goa ndash India
20 - 22 September 2013 GGI German Speaking Chapter Barcelona ndash Spain
26 - 28 September 2013 Developing Leaders Conference Philadelphia PA ndash USA
04 - 06 October 2013 GGI EasyMeet Zurich ndash Switzerland
29 - 31 October 2013 GGI Latin American Conference Cancun ndash Mexico
31 October - 03 November 2013 GGI World Conference Cancun ndash Mexico
05 - 08 December 2013 GGI Asia-Pacific Regional Conference Mumbai ndash- India
31 January - 02 February 2014 GGI Practice Group Chairpersons Meeting Zurich ndash Switzerland
07 - 09 March 2014 GGI EasyMeet Dusseldorf ndash Germany
Please refer to our website for actualised information and additional events wwwggicom entry ldquoEventsrdquo
Diary
TBC
= to
be
confi
rmed
EDITORIAL CONTACT DISCLAIMER 02
CONTENT DIARY 03
UPCOMING GGI EVENTS GGI Leadership Forum in Eisenberg 04
REVIEW GGI EVENTS GGI European Conference in Lisbon Portugal 05 GGI North American Developing Leaders Conference in Boston MA USA 07 GGI North American Regional Conference in San Francisco CA USA 08
GGI NEW MEMBER FIRMS 10
GGI INTERNAL NEWS Global Village on the Move Shanghai 2013 12 GGI member firm Haines Watts wins excellence award for second year 13 GGI member has been elected as President of the Leabanese Tax Society 14 GGI member firm Lawrence Grant welcomes new Partner 15 New business contacts of GGI member firm ldquoYakovlev amp Partnersrdquo in South-East Asia region 15 Solid US Legal Base Builds International Practice 16
COMMON INTEREST Make the next step the right one for your business 17
GGI PRACTICE GROUP PAGES PRIVATE EqUITY AND INTERNATIoNAL WEALTH MANAGEMENT The investorsrsquo dilemma 19 REAL ESTATE Practice Group Real Estate discussed Property Prices 20 TRUST amp ESTATE PLANNING The blocking of a family memberacutes involvement in a business 21 Royal Court Awaits Hastings-Bass Ruling 23
BOOK REVIEW 25
FURTHER CONFERENCES EVENTS 26
4
Content
As announced in the March issue of the Insider the 2013 GGI Leader-ship Forum will be held in Eisenberg Austria at The Eisenberg Hotel (wwwTheEisenbergcom) from 20 to 23 June The programme promises lively discus-sions on the concept of business lead-ership as well as a wide range of out-door activities The hotel can provide the necessary equipment for delegates to embark on bike trips and explore the spectacular surrounding area during their stay Details of hiking routes can also be supplied and a number of hot springs are located close to The Eisen-berg Hotel If they wish delegates can also play a round of golf during their visit
on Thursday 20 June the confer-ence will begin with a meeting of the GGI Executive Committee and of the International Taxation Practice Group The meetings will be followed by cock-
tails and dinner at the hotel on Friday the conference will host two rounds of workshops about Leadership and Best Practice in the morning as well as a contribution from our keynote speak-ers in the afternoon John Caswell Founder and CEo of Group Partners and Hazel Tiffany Partner of Group Partners The keynote speakers will provide a non-traditional speech fo-cused on leadership abilities visual tools and techniques and structured frameworks
The evening programme includes guided tours with a schnapps tasting at the Goumllles Schnapps Distillery amp Vin-egar Production followed by the Vulca-
no Ham Factory The daily programme will end with a dinner at the Heurigen-schenke zum Sterngucker
Saturday morning will feature an-other contribution by John Caswell and Hazel Tiffany about Structured Visual Thinking while the afternoon will be dedicated to a team building session at the Adventure World for delegates and accompanying persons
The conference programme will of-ficially end in the evening with a cock-tail reception and a midsummer night barbecue at the wine cellar of the hotel
GGI is looking forward to hosting this event and meeting many members at The Eisenberg Hotel in Austria It is not too late for GGI members who have not yet registered to do so Please use the online registration tool at wwwggicom (Member loginEvents) The detailed conference programme is also available on the website
Hotel The Eisenberg Austria ndash GGI Leadership Forum venue
GGI Leadership Forumin Eisenberg Austria
20-23 June 2013
UPCOMING GGI EVENTS
GGI INSIDER | No 65 | May 2013
5
GGI European RegionalConference in Lisbon Portugal
18-21 April 2013
The annual GGI European Confer-ence was held in Lisbon from 18 to 21 April and was kindly hosted by GGI member firm Pontes Baptista amp As-sociados The venue for this event was the elegant Penha Longa Hotel Spa amp Golf Resort (a Ritz Carlton Hotel) nestled in the beautiful Sintra moun-tains surrounded by the stunning Por-tuguese landscape
The conference commenced on Thursday with a meeting of the Inter-national Taxation Practice Group and a round of golf for the early attendees In the evening delegates were welcomed next page
REVIEW GGI EVENTS
Audience at the European Conference in Lisbon
Gala Dinner
6
Content
REVIEW GGI EVENTS
for dinner in one of the finest rooms of the resort enjoying delicious dishes and the presentation of new member firms and candidates
The formal segment of the confer-ence began on Friday with an open-ing speech delivered by Claudio G Cocca GGI President and Founder and a warm welcoming address from the conference host Dr Seacutergio Pontes The first keynote speaker at the event was Dr Daniele Ganser founder of the Swiss Institute for Peace and Energy Research who delivered an involving lecture about Europe and its addiction to oil focusing on the consequences of this dangerous addiction The lecture was followed by an interactive qampA section before leaving the stage to the second keynote speaker of the session Markus Grubb Managing Director of the World Gold Council His lecture fo-cusing on the benefits of investing in gold was accurate and interesting and also stimulated an interesting debate between Mr Grubb and Mr Cocca
The morning session concluded with the management report present-ed by GGIrsquos CEo Michael Reiss von Filski During this presentation the new GGI team member Sophia Moon presented the new GGI social media marketing strategy aimed at increasing company presence on social networks and providing a wider connection be-tween members Lastly the upcoming GGI events were introduced by Adam Crowson GGI North American Re-
gional Manager After these interesting contributions the attendees enjoyed a delightful lunch at the hotel before starting the afternoon session with two rounds of Practice Group meetings
The dayrsquos official programme ended at the Satildeo Juliatildeo da Barra Fortress a stunning example of Portuguese archi-tecture from the 16th century which is considered to be the countryrsquos biggest existing maritime defence building Delegates experienced music and dish-es distinctive of the region in the out-standing restaurant inside this venue
Saturday morning started with a round of workshops oliver Biernat de-livered an interesting session on pre-venting burnout and Graham Busch underlined how important these con-ferences are for promoting business referrals GGIrsquos Honorary Vice Presi-
dent oliver Rothschild provided an insight into the third sector while Inna Deputat and Sophia Moon focused on social media marketing projects After lunch delegates had the choice be-tween three different sightseeing tours of Lisbon Sintra or Belem which was a great opportunity for attendees to ex-perience the culture and scenery of this beautiful country
To conclude the event participants were invited to a fabulous black tie gala dinner at the prestigious Casino de Es-toril Guests enjoyed a delicious meal followed by a live band and after din-ner dance All delegates were in great spirits as the conference came to a successful end
The next European Conference will be held in Edinburgh Scotland 3-6 April 2014
Friday Dinner Satildeo Juliatildeo da Barra Fortress
Sightseeing ndash Lisbon walk
Remodelado tram in Lisbon
GGI INSIDER | No 65 | May 2013
7
The new event hosted by our three Massachusetts member firms Mir-ick orsquoConnell tonneson + co and Shields amp Company was successfully launched The conference drew an at-tendance of over 50 participants and was well represented with members from Asia Europe and North America
Held within walking distance of the GGI North America offices the Devel-oping Leaders Conference introduced GGI to a new generation of young part-ners and partner track professionals The conference programme focused on leadership development and was delivered by the managing partners at our host firms and by tutors from Le-high University
Without a doubt the GGI tradition of blending quality content an elegant locale and event-driven networking was upheld at the welcome reception and dinner at the Tajrsquos rooftop lounge overlooking Boston Common
The keynote speaker was Dick Brandt the Chairman of the Iacocca Institute at Lehigh University He delivered a fasci-nating dichotomy contrasting a leader with a manager Following his lecture a video of Lee Iacocca speaking on the 9 Crsquos of leadership was shown to del-egates Forming a panel David Sur-prenant from Mirick orsquoConnell Rick Mastrocola from tonneson + co and Tom Shields from Shields amp Company presented on building a high value net-work A further panel discussion with Mr Surprenant Mr Mastrocola and Mr Shields followed focusing on work-life balance and questions submitted by the audience The first day concluded with
Carol Ham and Adam Crowson Ms Ham highlighted Lehigh Universityrsquos internship programme and the chal-lenges of working abroad and Mr Crow-son put the spotlight on developing leaders through our partnership with Lehigh Universityrsquos ldquoGlobal Village on the Moverdquo programme
The second day was no less stimu-lating with Peter Johnson presenting on business development strategies and lessons that can be learnt from in-terviews with his client firms and their clients The culmination of the event was a panel of all presenters discuss-ing ethics in business scenarios from next page
GGI North AmericanDeveloping LeadersConference Boston MA USA
2-4 May 2013
Audience
Dick Brandt
8
Content
REVIEW GGI EVENTS
GGI North AmericanRegional Conference San Francisco CA USA
09-12 May 2013
12 May marked the successful con-clusion of the third North American Regional Conference at the Grand Hy-att Hotel located in the heart of Union Square San Francisco CA over 130 participants took part in this yearrsquos program from all of the various re-gions of GGI
The Welcome Reception amp Dinner was staged on the 36th floor of the Grand Hyatt with a breathtaking view of the San Francisco Bay at sunset al-lowing participants to reconnect with old friends and forge new relation-ships
Keynote speaker David Goldsmith
author of lsquoPaid To Thinkrsquo (refer to page 23 for the book review) opened the morning with an engaging presenta-tion which challenged the audience on ways to redefine leadership and implement forward strategic thinking
The North American winner of the Global Village on the Move scholarship
their own experiences and challeng-ing choices they have made in the past The interesting day ended with a fabulous dinner at the warm modern Post 390 tavern
New to GGI the North America De-veloping Leaders Conference aims to fa-cilitate the whole-firm approach of GGI Also new is the GGI Institute the edu-cational arm of GGI which is dedicated to the development of professionals
The next North American Develop-ing Leaders event will take place in his-toric Philadelphia hosted by member firms Drucker amp Scaccetti and Smart
Devine This event will include a paral-lel meeting of managing partners and executive directors discussing best
practice GGI members can enquire about registration at wwwggicom (Member loginEvents)
Panel Discussion from left to right David Surprenant Rick Mastrocola Tom Shields
Networking Friday evening
GGI INSIDER | No 65 | May 2013
9
Tour of the Napa Valley
Raven Akram of Sandberg Phoenix amp Von Gontard was announced and participants had a chance to briefly hear from her
Mr Kim Moody of Moodyrsquos Tax Advi-sors one of the foremost opinions on tax in Canada offered insight into the various tax structures opportunities and potential pitfalls of doing business in Canada To everyonersquos delight he also took the time to dispel many amus-ing misconceptions regarding Canada and their citizens
Host firm Rowbotham amp Co invited the distinguished Federal Prosecutor Joseph Fazioli from the US Depart-ment of Justice who gave participants an overview of white-collar crimes in-vestigation over lunch
Practice Groups and Workshops gave participants the opportunity to connect in smaller groups to discuss industry and practice specific chal-lenges and to share best practices and personal experiences
The social highlight of the program was a tour of the beautiful Napa win-ery Rutherford Hill where participants continued to strengthen personal rela-tionships over fine wines and a fun memorable dinner within the wineryrsquos handsomely adorned cellarcave
Workshop
From left to right Claudio G Cocca David Goldsmith Michael Reiss von Filski Adam Crowson
10
Content
NEW MEMBER FIRMS
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
WolfgangRossbacher
AntonioCastilla
MamukaMardaleishvili
Rossbacher Kohlfuumlrst amp PartnerWirtschaftspruumlfung undSteuerberatung GmbHSt Veiter Ring 1A9020 Klagenfurt am WoumlrtherseeAustria
T +43 463 575 5822F +43 463 575 5811E wpofficerkpcoat W wwwrkpcoat
Company languages German English ItalianContact persons Wolfgang Ross-bacher wrossbacherrkpcoat Paola Strozzi pstrozzirkpcoatServices Audit amp Accounting Tax
Grupo Acender LtdaCoronel Pereira 72 6th and 11th floorLas Condes SantiagoChile
T +56 2 912 00 00E acenderchileacendercomW wwwacendercom
Company languages Spanish EnglishContact persons Antonio Cas-tilla antoniocastillaacendercl Ricardo Corral ricardocorralacenderclServices Tax Advisory Corporate Finance
TMC LLC47 Belinski StreetTbilisiGeorgia
T +995 32 293 37 72F +995 32 293 37 72E infotmcgeorgiacomW wwwtmcgeorgiacom
Company languages Georgian English RussianContact persons Mamuka Marda-leishvili mamukatmcgeorgia com Levan Agladze levan tmcgeorgiacomServices Audit amp Accounting Tax Advisory
Austria Chile Georgia
PaolaStrozzi
RicardoCorral
GGI INSIDER | No 65 | May 2013
11
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
ClaudiaMattig
Jeffrey AFord
Treuhand- undRevisionsgesellschaftMattig-Suter amp PartnerBahnhofstrasse 286430 SchwyzSwitzerland
T +41 41 819 54 00F +41 41 819 54 01E claudiamattigmattigchW wwwmattigch
Company languages English Ger-man French Slovak Romanian Bulgarian Portuguese Italian and SpanishContact person Claudia Mattig claudiamattigmattigchServices Audit amp Accounting Tax Advisory Legal services Corpo-rate Finance
Grossman Yanak amp Ford LLPThree Gateway Center Suite 1800Pittsburgh PA 15222United States
T +1 412 338 41 00F +1 412 338 93 05E fordgyfcomW wwwgyfcom Company language EnglishContact person Jeffrey A Ford fordgyfcomServices Audit amp Accounting Tax Advisory
Switzerland United States
Searchingfor GGI
member firmsall over the
world
Visit ggicom
12
Content
In cooperation with the Iacocca In-stitute office of International Affairs at Lehigh University Pennsylvania USA GGI sponsors five candidates from GGI member firms to participate in the highly acclaimed leadership programme Global Village on the Move (GVotM) Shanghai 2013 With diversity in mind one candidate was selected from each of GGIrsquos five geo-graphical regions
The application process focused on examining the candidatersquos work ex-perience skills personal values and motivation as well as identifying the benefits the candidate hoped to derive
by attending and contributing to the programme
A very pleasing number of appli-cations were received The selection process was conducted by the GGI Ex-ecutive Management and the GGI Ex-ecutive Committee It was an extreme-ly difficult task to choose only five candidates as all applicants boasted outstanding qualifications both pro-fessionally and personally
GGI would like to thank all entrants as well as their respective firms for participating in this initiative Con-gratulations to the five successful can-didates
GGI announces the five winnersto be sponsored
GGI INTERNAL NEWS
Global Village on the Move Shanghai 2013
GVotM 2013 will take place in Shanghai
North America Raven Akram Sandberg PhoenixSaint Louis United States Latin America amp The Caribbean Chafick MahauadoHMampCo Guayaquil Ecuador Europe Jelena Mihic MunjicMDM Revizija Beograd Serbia Middle East Africa Ahmed GhattourAhmed Ghattour amp CoTripoli Lybia Asia-Pacific Botirkhon GanikhodjaevTSIAR-FINANSTashkent Uzbekistan
The winners
GGI INSIDER | No 65 | May 2013
13
GGI member firmHaines Watts wins excellence award for second year
GGI Accountancy member firm Haines Watts is celebrating success having won Auditor of the Year in the SME category for a second time at the annual FDs Excellence Awards
The awards recognise the service pro-viders that support Britainrsquos finance com-munity using the results of an annual survey in which 1380 FDs and financial decision-makers recorded their opinion
The prestigious awards ceremony was held in Grosvenor Square London and hosted by Real Business in association with the Institute of Chartered Accoun-tants in England and Wales (ICAEW) and supported by the Confederation of British Industry (CBI)
Haines Watts won the award last year and beat competition from other UK firms such as Baker Tilly Crowe Clark Whitehill Deloitte RSM Tenon and Saf-fery Champness
Andrew Minifie National Managing Partner at Haines Watts commented ldquoItrsquos great to see Haines Watts win such a prestigious award for the second year in succession This type of award really matters to us because itrsquos voted for by business people and not by an academic panel of expertsrdquo
Andrew added ldquoour core client base is owner managed businesses so to get this endorsement from SME businesses means a great deal to us We are proud
of all of our staff who do an outstanding job for our clients day to day and who have contributed towards us winning this awardrdquo
Michael Izza (Chief Exec ICAEW) presented the excellence award to Andrew Minifie National Managing Partner at Haines Watts
GGI member firm Haines WattsWith over 60 officesaround the UK Audit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningAndrew MinifieE asminifiehwcacomW wwwhwcacom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
2
Content
EditorialDear GGI Members Dear Friends
It is already good two months since INSIDER last floated into your inbox
So time for an update and the new is-sue of INSIDER which aims to inform inspire amuse and keep readers abreast of all the latest developments
What can you expect from this issue A little of everything
For the benefit of all those who were unable to attend the reviews of this yearrsquos European conference in Portugal this yearrsquos Developing Leaders Confer-ence in Boston for GGIrsquos young pro-fessionals and a review of this yearrsquos North American Regional Conference in San Francisco give details of the activi-ties that took place We can tell you this much already all three conferences were outstanding successes
The GGI Leadership Forum in Eisen-berg Burgenland Austria is now almost upon us It will take place from 20 to 23 June in Eisenberg Austria and prepa-rations are now in full swing This year once again there is much to look for-ward to the keynote speakers will be John Caswell and Hazel Tiffany with an interactive talk on ldquoWhen did we last challenge our leadership abilityrdquo
There is much more to discover in this issue We wish you a pleasant read much success productive networking and for all those who have already signed up a safe smooth journey to Eisenberg in Burgenland
Your GGI Team
CONTACT | EDITORIAL | CONTENT
Geneva Group International AGSchaffhauserstrasse 5508052 ZurichSwitzerlandT +41 44 256 18 18E infoggicom W wwwggicomW wwwggiforumcom
The information provided in this INSIDER came from reliable sources and was prepared from data assumed to be correct how-ever we neither accept liability for nor are we able to guarantee the content
If you wish to be removed from the mailing list send an email to infoggicom Let us know what you think about INSIDER We wel-come your feedback
Disclaimer
Contact
GGI INSIDER | No 65 | May 2013
3
Content20 - 23 June 2013 GGI Leadership Forum Eisenberg ndash Austria
05 - 07 July 2013 GGI Asia-Pacific EasyMeet Goa ndash India
20 - 22 September 2013 GGI German Speaking Chapter Barcelona ndash Spain
26 - 28 September 2013 Developing Leaders Conference Philadelphia PA ndash USA
04 - 06 October 2013 GGI EasyMeet Zurich ndash Switzerland
29 - 31 October 2013 GGI Latin American Conference Cancun ndash Mexico
31 October - 03 November 2013 GGI World Conference Cancun ndash Mexico
05 - 08 December 2013 GGI Asia-Pacific Regional Conference Mumbai ndash- India
31 January - 02 February 2014 GGI Practice Group Chairpersons Meeting Zurich ndash Switzerland
07 - 09 March 2014 GGI EasyMeet Dusseldorf ndash Germany
Please refer to our website for actualised information and additional events wwwggicom entry ldquoEventsrdquo
Diary
TBC
= to
be
confi
rmed
EDITORIAL CONTACT DISCLAIMER 02
CONTENT DIARY 03
UPCOMING GGI EVENTS GGI Leadership Forum in Eisenberg 04
REVIEW GGI EVENTS GGI European Conference in Lisbon Portugal 05 GGI North American Developing Leaders Conference in Boston MA USA 07 GGI North American Regional Conference in San Francisco CA USA 08
GGI NEW MEMBER FIRMS 10
GGI INTERNAL NEWS Global Village on the Move Shanghai 2013 12 GGI member firm Haines Watts wins excellence award for second year 13 GGI member has been elected as President of the Leabanese Tax Society 14 GGI member firm Lawrence Grant welcomes new Partner 15 New business contacts of GGI member firm ldquoYakovlev amp Partnersrdquo in South-East Asia region 15 Solid US Legal Base Builds International Practice 16
COMMON INTEREST Make the next step the right one for your business 17
GGI PRACTICE GROUP PAGES PRIVATE EqUITY AND INTERNATIoNAL WEALTH MANAGEMENT The investorsrsquo dilemma 19 REAL ESTATE Practice Group Real Estate discussed Property Prices 20 TRUST amp ESTATE PLANNING The blocking of a family memberacutes involvement in a business 21 Royal Court Awaits Hastings-Bass Ruling 23
BOOK REVIEW 25
FURTHER CONFERENCES EVENTS 26
4
Content
As announced in the March issue of the Insider the 2013 GGI Leader-ship Forum will be held in Eisenberg Austria at The Eisenberg Hotel (wwwTheEisenbergcom) from 20 to 23 June The programme promises lively discus-sions on the concept of business lead-ership as well as a wide range of out-door activities The hotel can provide the necessary equipment for delegates to embark on bike trips and explore the spectacular surrounding area during their stay Details of hiking routes can also be supplied and a number of hot springs are located close to The Eisen-berg Hotel If they wish delegates can also play a round of golf during their visit
on Thursday 20 June the confer-ence will begin with a meeting of the GGI Executive Committee and of the International Taxation Practice Group The meetings will be followed by cock-
tails and dinner at the hotel on Friday the conference will host two rounds of workshops about Leadership and Best Practice in the morning as well as a contribution from our keynote speak-ers in the afternoon John Caswell Founder and CEo of Group Partners and Hazel Tiffany Partner of Group Partners The keynote speakers will provide a non-traditional speech fo-cused on leadership abilities visual tools and techniques and structured frameworks
The evening programme includes guided tours with a schnapps tasting at the Goumllles Schnapps Distillery amp Vin-egar Production followed by the Vulca-
no Ham Factory The daily programme will end with a dinner at the Heurigen-schenke zum Sterngucker
Saturday morning will feature an-other contribution by John Caswell and Hazel Tiffany about Structured Visual Thinking while the afternoon will be dedicated to a team building session at the Adventure World for delegates and accompanying persons
The conference programme will of-ficially end in the evening with a cock-tail reception and a midsummer night barbecue at the wine cellar of the hotel
GGI is looking forward to hosting this event and meeting many members at The Eisenberg Hotel in Austria It is not too late for GGI members who have not yet registered to do so Please use the online registration tool at wwwggicom (Member loginEvents) The detailed conference programme is also available on the website
Hotel The Eisenberg Austria ndash GGI Leadership Forum venue
GGI Leadership Forumin Eisenberg Austria
20-23 June 2013
UPCOMING GGI EVENTS
GGI INSIDER | No 65 | May 2013
5
GGI European RegionalConference in Lisbon Portugal
18-21 April 2013
The annual GGI European Confer-ence was held in Lisbon from 18 to 21 April and was kindly hosted by GGI member firm Pontes Baptista amp As-sociados The venue for this event was the elegant Penha Longa Hotel Spa amp Golf Resort (a Ritz Carlton Hotel) nestled in the beautiful Sintra moun-tains surrounded by the stunning Por-tuguese landscape
The conference commenced on Thursday with a meeting of the Inter-national Taxation Practice Group and a round of golf for the early attendees In the evening delegates were welcomed next page
REVIEW GGI EVENTS
Audience at the European Conference in Lisbon
Gala Dinner
6
Content
REVIEW GGI EVENTS
for dinner in one of the finest rooms of the resort enjoying delicious dishes and the presentation of new member firms and candidates
The formal segment of the confer-ence began on Friday with an open-ing speech delivered by Claudio G Cocca GGI President and Founder and a warm welcoming address from the conference host Dr Seacutergio Pontes The first keynote speaker at the event was Dr Daniele Ganser founder of the Swiss Institute for Peace and Energy Research who delivered an involving lecture about Europe and its addiction to oil focusing on the consequences of this dangerous addiction The lecture was followed by an interactive qampA section before leaving the stage to the second keynote speaker of the session Markus Grubb Managing Director of the World Gold Council His lecture fo-cusing on the benefits of investing in gold was accurate and interesting and also stimulated an interesting debate between Mr Grubb and Mr Cocca
The morning session concluded with the management report present-ed by GGIrsquos CEo Michael Reiss von Filski During this presentation the new GGI team member Sophia Moon presented the new GGI social media marketing strategy aimed at increasing company presence on social networks and providing a wider connection be-tween members Lastly the upcoming GGI events were introduced by Adam Crowson GGI North American Re-
gional Manager After these interesting contributions the attendees enjoyed a delightful lunch at the hotel before starting the afternoon session with two rounds of Practice Group meetings
The dayrsquos official programme ended at the Satildeo Juliatildeo da Barra Fortress a stunning example of Portuguese archi-tecture from the 16th century which is considered to be the countryrsquos biggest existing maritime defence building Delegates experienced music and dish-es distinctive of the region in the out-standing restaurant inside this venue
Saturday morning started with a round of workshops oliver Biernat de-livered an interesting session on pre-venting burnout and Graham Busch underlined how important these con-ferences are for promoting business referrals GGIrsquos Honorary Vice Presi-
dent oliver Rothschild provided an insight into the third sector while Inna Deputat and Sophia Moon focused on social media marketing projects After lunch delegates had the choice be-tween three different sightseeing tours of Lisbon Sintra or Belem which was a great opportunity for attendees to ex-perience the culture and scenery of this beautiful country
To conclude the event participants were invited to a fabulous black tie gala dinner at the prestigious Casino de Es-toril Guests enjoyed a delicious meal followed by a live band and after din-ner dance All delegates were in great spirits as the conference came to a successful end
The next European Conference will be held in Edinburgh Scotland 3-6 April 2014
Friday Dinner Satildeo Juliatildeo da Barra Fortress
Sightseeing ndash Lisbon walk
Remodelado tram in Lisbon
GGI INSIDER | No 65 | May 2013
7
The new event hosted by our three Massachusetts member firms Mir-ick orsquoConnell tonneson + co and Shields amp Company was successfully launched The conference drew an at-tendance of over 50 participants and was well represented with members from Asia Europe and North America
Held within walking distance of the GGI North America offices the Devel-oping Leaders Conference introduced GGI to a new generation of young part-ners and partner track professionals The conference programme focused on leadership development and was delivered by the managing partners at our host firms and by tutors from Le-high University
Without a doubt the GGI tradition of blending quality content an elegant locale and event-driven networking was upheld at the welcome reception and dinner at the Tajrsquos rooftop lounge overlooking Boston Common
The keynote speaker was Dick Brandt the Chairman of the Iacocca Institute at Lehigh University He delivered a fasci-nating dichotomy contrasting a leader with a manager Following his lecture a video of Lee Iacocca speaking on the 9 Crsquos of leadership was shown to del-egates Forming a panel David Sur-prenant from Mirick orsquoConnell Rick Mastrocola from tonneson + co and Tom Shields from Shields amp Company presented on building a high value net-work A further panel discussion with Mr Surprenant Mr Mastrocola and Mr Shields followed focusing on work-life balance and questions submitted by the audience The first day concluded with
Carol Ham and Adam Crowson Ms Ham highlighted Lehigh Universityrsquos internship programme and the chal-lenges of working abroad and Mr Crow-son put the spotlight on developing leaders through our partnership with Lehigh Universityrsquos ldquoGlobal Village on the Moverdquo programme
The second day was no less stimu-lating with Peter Johnson presenting on business development strategies and lessons that can be learnt from in-terviews with his client firms and their clients The culmination of the event was a panel of all presenters discuss-ing ethics in business scenarios from next page
GGI North AmericanDeveloping LeadersConference Boston MA USA
2-4 May 2013
Audience
Dick Brandt
8
Content
REVIEW GGI EVENTS
GGI North AmericanRegional Conference San Francisco CA USA
09-12 May 2013
12 May marked the successful con-clusion of the third North American Regional Conference at the Grand Hy-att Hotel located in the heart of Union Square San Francisco CA over 130 participants took part in this yearrsquos program from all of the various re-gions of GGI
The Welcome Reception amp Dinner was staged on the 36th floor of the Grand Hyatt with a breathtaking view of the San Francisco Bay at sunset al-lowing participants to reconnect with old friends and forge new relation-ships
Keynote speaker David Goldsmith
author of lsquoPaid To Thinkrsquo (refer to page 23 for the book review) opened the morning with an engaging presenta-tion which challenged the audience on ways to redefine leadership and implement forward strategic thinking
The North American winner of the Global Village on the Move scholarship
their own experiences and challeng-ing choices they have made in the past The interesting day ended with a fabulous dinner at the warm modern Post 390 tavern
New to GGI the North America De-veloping Leaders Conference aims to fa-cilitate the whole-firm approach of GGI Also new is the GGI Institute the edu-cational arm of GGI which is dedicated to the development of professionals
The next North American Develop-ing Leaders event will take place in his-toric Philadelphia hosted by member firms Drucker amp Scaccetti and Smart
Devine This event will include a paral-lel meeting of managing partners and executive directors discussing best
practice GGI members can enquire about registration at wwwggicom (Member loginEvents)
Panel Discussion from left to right David Surprenant Rick Mastrocola Tom Shields
Networking Friday evening
GGI INSIDER | No 65 | May 2013
9
Tour of the Napa Valley
Raven Akram of Sandberg Phoenix amp Von Gontard was announced and participants had a chance to briefly hear from her
Mr Kim Moody of Moodyrsquos Tax Advi-sors one of the foremost opinions on tax in Canada offered insight into the various tax structures opportunities and potential pitfalls of doing business in Canada To everyonersquos delight he also took the time to dispel many amus-ing misconceptions regarding Canada and their citizens
Host firm Rowbotham amp Co invited the distinguished Federal Prosecutor Joseph Fazioli from the US Depart-ment of Justice who gave participants an overview of white-collar crimes in-vestigation over lunch
Practice Groups and Workshops gave participants the opportunity to connect in smaller groups to discuss industry and practice specific chal-lenges and to share best practices and personal experiences
The social highlight of the program was a tour of the beautiful Napa win-ery Rutherford Hill where participants continued to strengthen personal rela-tionships over fine wines and a fun memorable dinner within the wineryrsquos handsomely adorned cellarcave
Workshop
From left to right Claudio G Cocca David Goldsmith Michael Reiss von Filski Adam Crowson
10
Content
NEW MEMBER FIRMS
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
WolfgangRossbacher
AntonioCastilla
MamukaMardaleishvili
Rossbacher Kohlfuumlrst amp PartnerWirtschaftspruumlfung undSteuerberatung GmbHSt Veiter Ring 1A9020 Klagenfurt am WoumlrtherseeAustria
T +43 463 575 5822F +43 463 575 5811E wpofficerkpcoat W wwwrkpcoat
Company languages German English ItalianContact persons Wolfgang Ross-bacher wrossbacherrkpcoat Paola Strozzi pstrozzirkpcoatServices Audit amp Accounting Tax
Grupo Acender LtdaCoronel Pereira 72 6th and 11th floorLas Condes SantiagoChile
T +56 2 912 00 00E acenderchileacendercomW wwwacendercom
Company languages Spanish EnglishContact persons Antonio Cas-tilla antoniocastillaacendercl Ricardo Corral ricardocorralacenderclServices Tax Advisory Corporate Finance
TMC LLC47 Belinski StreetTbilisiGeorgia
T +995 32 293 37 72F +995 32 293 37 72E infotmcgeorgiacomW wwwtmcgeorgiacom
Company languages Georgian English RussianContact persons Mamuka Marda-leishvili mamukatmcgeorgia com Levan Agladze levan tmcgeorgiacomServices Audit amp Accounting Tax Advisory
Austria Chile Georgia
PaolaStrozzi
RicardoCorral
GGI INSIDER | No 65 | May 2013
11
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
ClaudiaMattig
Jeffrey AFord
Treuhand- undRevisionsgesellschaftMattig-Suter amp PartnerBahnhofstrasse 286430 SchwyzSwitzerland
T +41 41 819 54 00F +41 41 819 54 01E claudiamattigmattigchW wwwmattigch
Company languages English Ger-man French Slovak Romanian Bulgarian Portuguese Italian and SpanishContact person Claudia Mattig claudiamattigmattigchServices Audit amp Accounting Tax Advisory Legal services Corpo-rate Finance
Grossman Yanak amp Ford LLPThree Gateway Center Suite 1800Pittsburgh PA 15222United States
T +1 412 338 41 00F +1 412 338 93 05E fordgyfcomW wwwgyfcom Company language EnglishContact person Jeffrey A Ford fordgyfcomServices Audit amp Accounting Tax Advisory
Switzerland United States
Searchingfor GGI
member firmsall over the
world
Visit ggicom
12
Content
In cooperation with the Iacocca In-stitute office of International Affairs at Lehigh University Pennsylvania USA GGI sponsors five candidates from GGI member firms to participate in the highly acclaimed leadership programme Global Village on the Move (GVotM) Shanghai 2013 With diversity in mind one candidate was selected from each of GGIrsquos five geo-graphical regions
The application process focused on examining the candidatersquos work ex-perience skills personal values and motivation as well as identifying the benefits the candidate hoped to derive
by attending and contributing to the programme
A very pleasing number of appli-cations were received The selection process was conducted by the GGI Ex-ecutive Management and the GGI Ex-ecutive Committee It was an extreme-ly difficult task to choose only five candidates as all applicants boasted outstanding qualifications both pro-fessionally and personally
GGI would like to thank all entrants as well as their respective firms for participating in this initiative Con-gratulations to the five successful can-didates
GGI announces the five winnersto be sponsored
GGI INTERNAL NEWS
Global Village on the Move Shanghai 2013
GVotM 2013 will take place in Shanghai
North America Raven Akram Sandberg PhoenixSaint Louis United States Latin America amp The Caribbean Chafick MahauadoHMampCo Guayaquil Ecuador Europe Jelena Mihic MunjicMDM Revizija Beograd Serbia Middle East Africa Ahmed GhattourAhmed Ghattour amp CoTripoli Lybia Asia-Pacific Botirkhon GanikhodjaevTSIAR-FINANSTashkent Uzbekistan
The winners
GGI INSIDER | No 65 | May 2013
13
GGI member firmHaines Watts wins excellence award for second year
GGI Accountancy member firm Haines Watts is celebrating success having won Auditor of the Year in the SME category for a second time at the annual FDs Excellence Awards
The awards recognise the service pro-viders that support Britainrsquos finance com-munity using the results of an annual survey in which 1380 FDs and financial decision-makers recorded their opinion
The prestigious awards ceremony was held in Grosvenor Square London and hosted by Real Business in association with the Institute of Chartered Accoun-tants in England and Wales (ICAEW) and supported by the Confederation of British Industry (CBI)
Haines Watts won the award last year and beat competition from other UK firms such as Baker Tilly Crowe Clark Whitehill Deloitte RSM Tenon and Saf-fery Champness
Andrew Minifie National Managing Partner at Haines Watts commented ldquoItrsquos great to see Haines Watts win such a prestigious award for the second year in succession This type of award really matters to us because itrsquos voted for by business people and not by an academic panel of expertsrdquo
Andrew added ldquoour core client base is owner managed businesses so to get this endorsement from SME businesses means a great deal to us We are proud
of all of our staff who do an outstanding job for our clients day to day and who have contributed towards us winning this awardrdquo
Michael Izza (Chief Exec ICAEW) presented the excellence award to Andrew Minifie National Managing Partner at Haines Watts
GGI member firm Haines WattsWith over 60 officesaround the UK Audit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningAndrew MinifieE asminifiehwcacomW wwwhwcacom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
GGI INSIDER | No 65 | May 2013
3
Content20 - 23 June 2013 GGI Leadership Forum Eisenberg ndash Austria
05 - 07 July 2013 GGI Asia-Pacific EasyMeet Goa ndash India
20 - 22 September 2013 GGI German Speaking Chapter Barcelona ndash Spain
26 - 28 September 2013 Developing Leaders Conference Philadelphia PA ndash USA
04 - 06 October 2013 GGI EasyMeet Zurich ndash Switzerland
29 - 31 October 2013 GGI Latin American Conference Cancun ndash Mexico
31 October - 03 November 2013 GGI World Conference Cancun ndash Mexico
05 - 08 December 2013 GGI Asia-Pacific Regional Conference Mumbai ndash- India
31 January - 02 February 2014 GGI Practice Group Chairpersons Meeting Zurich ndash Switzerland
07 - 09 March 2014 GGI EasyMeet Dusseldorf ndash Germany
Please refer to our website for actualised information and additional events wwwggicom entry ldquoEventsrdquo
Diary
TBC
= to
be
confi
rmed
EDITORIAL CONTACT DISCLAIMER 02
CONTENT DIARY 03
UPCOMING GGI EVENTS GGI Leadership Forum in Eisenberg 04
REVIEW GGI EVENTS GGI European Conference in Lisbon Portugal 05 GGI North American Developing Leaders Conference in Boston MA USA 07 GGI North American Regional Conference in San Francisco CA USA 08
GGI NEW MEMBER FIRMS 10
GGI INTERNAL NEWS Global Village on the Move Shanghai 2013 12 GGI member firm Haines Watts wins excellence award for second year 13 GGI member has been elected as President of the Leabanese Tax Society 14 GGI member firm Lawrence Grant welcomes new Partner 15 New business contacts of GGI member firm ldquoYakovlev amp Partnersrdquo in South-East Asia region 15 Solid US Legal Base Builds International Practice 16
COMMON INTEREST Make the next step the right one for your business 17
GGI PRACTICE GROUP PAGES PRIVATE EqUITY AND INTERNATIoNAL WEALTH MANAGEMENT The investorsrsquo dilemma 19 REAL ESTATE Practice Group Real Estate discussed Property Prices 20 TRUST amp ESTATE PLANNING The blocking of a family memberacutes involvement in a business 21 Royal Court Awaits Hastings-Bass Ruling 23
BOOK REVIEW 25
FURTHER CONFERENCES EVENTS 26
4
Content
As announced in the March issue of the Insider the 2013 GGI Leader-ship Forum will be held in Eisenberg Austria at The Eisenberg Hotel (wwwTheEisenbergcom) from 20 to 23 June The programme promises lively discus-sions on the concept of business lead-ership as well as a wide range of out-door activities The hotel can provide the necessary equipment for delegates to embark on bike trips and explore the spectacular surrounding area during their stay Details of hiking routes can also be supplied and a number of hot springs are located close to The Eisen-berg Hotel If they wish delegates can also play a round of golf during their visit
on Thursday 20 June the confer-ence will begin with a meeting of the GGI Executive Committee and of the International Taxation Practice Group The meetings will be followed by cock-
tails and dinner at the hotel on Friday the conference will host two rounds of workshops about Leadership and Best Practice in the morning as well as a contribution from our keynote speak-ers in the afternoon John Caswell Founder and CEo of Group Partners and Hazel Tiffany Partner of Group Partners The keynote speakers will provide a non-traditional speech fo-cused on leadership abilities visual tools and techniques and structured frameworks
The evening programme includes guided tours with a schnapps tasting at the Goumllles Schnapps Distillery amp Vin-egar Production followed by the Vulca-
no Ham Factory The daily programme will end with a dinner at the Heurigen-schenke zum Sterngucker
Saturday morning will feature an-other contribution by John Caswell and Hazel Tiffany about Structured Visual Thinking while the afternoon will be dedicated to a team building session at the Adventure World for delegates and accompanying persons
The conference programme will of-ficially end in the evening with a cock-tail reception and a midsummer night barbecue at the wine cellar of the hotel
GGI is looking forward to hosting this event and meeting many members at The Eisenberg Hotel in Austria It is not too late for GGI members who have not yet registered to do so Please use the online registration tool at wwwggicom (Member loginEvents) The detailed conference programme is also available on the website
Hotel The Eisenberg Austria ndash GGI Leadership Forum venue
GGI Leadership Forumin Eisenberg Austria
20-23 June 2013
UPCOMING GGI EVENTS
GGI INSIDER | No 65 | May 2013
5
GGI European RegionalConference in Lisbon Portugal
18-21 April 2013
The annual GGI European Confer-ence was held in Lisbon from 18 to 21 April and was kindly hosted by GGI member firm Pontes Baptista amp As-sociados The venue for this event was the elegant Penha Longa Hotel Spa amp Golf Resort (a Ritz Carlton Hotel) nestled in the beautiful Sintra moun-tains surrounded by the stunning Por-tuguese landscape
The conference commenced on Thursday with a meeting of the Inter-national Taxation Practice Group and a round of golf for the early attendees In the evening delegates were welcomed next page
REVIEW GGI EVENTS
Audience at the European Conference in Lisbon
Gala Dinner
6
Content
REVIEW GGI EVENTS
for dinner in one of the finest rooms of the resort enjoying delicious dishes and the presentation of new member firms and candidates
The formal segment of the confer-ence began on Friday with an open-ing speech delivered by Claudio G Cocca GGI President and Founder and a warm welcoming address from the conference host Dr Seacutergio Pontes The first keynote speaker at the event was Dr Daniele Ganser founder of the Swiss Institute for Peace and Energy Research who delivered an involving lecture about Europe and its addiction to oil focusing on the consequences of this dangerous addiction The lecture was followed by an interactive qampA section before leaving the stage to the second keynote speaker of the session Markus Grubb Managing Director of the World Gold Council His lecture fo-cusing on the benefits of investing in gold was accurate and interesting and also stimulated an interesting debate between Mr Grubb and Mr Cocca
The morning session concluded with the management report present-ed by GGIrsquos CEo Michael Reiss von Filski During this presentation the new GGI team member Sophia Moon presented the new GGI social media marketing strategy aimed at increasing company presence on social networks and providing a wider connection be-tween members Lastly the upcoming GGI events were introduced by Adam Crowson GGI North American Re-
gional Manager After these interesting contributions the attendees enjoyed a delightful lunch at the hotel before starting the afternoon session with two rounds of Practice Group meetings
The dayrsquos official programme ended at the Satildeo Juliatildeo da Barra Fortress a stunning example of Portuguese archi-tecture from the 16th century which is considered to be the countryrsquos biggest existing maritime defence building Delegates experienced music and dish-es distinctive of the region in the out-standing restaurant inside this venue
Saturday morning started with a round of workshops oliver Biernat de-livered an interesting session on pre-venting burnout and Graham Busch underlined how important these con-ferences are for promoting business referrals GGIrsquos Honorary Vice Presi-
dent oliver Rothschild provided an insight into the third sector while Inna Deputat and Sophia Moon focused on social media marketing projects After lunch delegates had the choice be-tween three different sightseeing tours of Lisbon Sintra or Belem which was a great opportunity for attendees to ex-perience the culture and scenery of this beautiful country
To conclude the event participants were invited to a fabulous black tie gala dinner at the prestigious Casino de Es-toril Guests enjoyed a delicious meal followed by a live band and after din-ner dance All delegates were in great spirits as the conference came to a successful end
The next European Conference will be held in Edinburgh Scotland 3-6 April 2014
Friday Dinner Satildeo Juliatildeo da Barra Fortress
Sightseeing ndash Lisbon walk
Remodelado tram in Lisbon
GGI INSIDER | No 65 | May 2013
7
The new event hosted by our three Massachusetts member firms Mir-ick orsquoConnell tonneson + co and Shields amp Company was successfully launched The conference drew an at-tendance of over 50 participants and was well represented with members from Asia Europe and North America
Held within walking distance of the GGI North America offices the Devel-oping Leaders Conference introduced GGI to a new generation of young part-ners and partner track professionals The conference programme focused on leadership development and was delivered by the managing partners at our host firms and by tutors from Le-high University
Without a doubt the GGI tradition of blending quality content an elegant locale and event-driven networking was upheld at the welcome reception and dinner at the Tajrsquos rooftop lounge overlooking Boston Common
The keynote speaker was Dick Brandt the Chairman of the Iacocca Institute at Lehigh University He delivered a fasci-nating dichotomy contrasting a leader with a manager Following his lecture a video of Lee Iacocca speaking on the 9 Crsquos of leadership was shown to del-egates Forming a panel David Sur-prenant from Mirick orsquoConnell Rick Mastrocola from tonneson + co and Tom Shields from Shields amp Company presented on building a high value net-work A further panel discussion with Mr Surprenant Mr Mastrocola and Mr Shields followed focusing on work-life balance and questions submitted by the audience The first day concluded with
Carol Ham and Adam Crowson Ms Ham highlighted Lehigh Universityrsquos internship programme and the chal-lenges of working abroad and Mr Crow-son put the spotlight on developing leaders through our partnership with Lehigh Universityrsquos ldquoGlobal Village on the Moverdquo programme
The second day was no less stimu-lating with Peter Johnson presenting on business development strategies and lessons that can be learnt from in-terviews with his client firms and their clients The culmination of the event was a panel of all presenters discuss-ing ethics in business scenarios from next page
GGI North AmericanDeveloping LeadersConference Boston MA USA
2-4 May 2013
Audience
Dick Brandt
8
Content
REVIEW GGI EVENTS
GGI North AmericanRegional Conference San Francisco CA USA
09-12 May 2013
12 May marked the successful con-clusion of the third North American Regional Conference at the Grand Hy-att Hotel located in the heart of Union Square San Francisco CA over 130 participants took part in this yearrsquos program from all of the various re-gions of GGI
The Welcome Reception amp Dinner was staged on the 36th floor of the Grand Hyatt with a breathtaking view of the San Francisco Bay at sunset al-lowing participants to reconnect with old friends and forge new relation-ships
Keynote speaker David Goldsmith
author of lsquoPaid To Thinkrsquo (refer to page 23 for the book review) opened the morning with an engaging presenta-tion which challenged the audience on ways to redefine leadership and implement forward strategic thinking
The North American winner of the Global Village on the Move scholarship
their own experiences and challeng-ing choices they have made in the past The interesting day ended with a fabulous dinner at the warm modern Post 390 tavern
New to GGI the North America De-veloping Leaders Conference aims to fa-cilitate the whole-firm approach of GGI Also new is the GGI Institute the edu-cational arm of GGI which is dedicated to the development of professionals
The next North American Develop-ing Leaders event will take place in his-toric Philadelphia hosted by member firms Drucker amp Scaccetti and Smart
Devine This event will include a paral-lel meeting of managing partners and executive directors discussing best
practice GGI members can enquire about registration at wwwggicom (Member loginEvents)
Panel Discussion from left to right David Surprenant Rick Mastrocola Tom Shields
Networking Friday evening
GGI INSIDER | No 65 | May 2013
9
Tour of the Napa Valley
Raven Akram of Sandberg Phoenix amp Von Gontard was announced and participants had a chance to briefly hear from her
Mr Kim Moody of Moodyrsquos Tax Advi-sors one of the foremost opinions on tax in Canada offered insight into the various tax structures opportunities and potential pitfalls of doing business in Canada To everyonersquos delight he also took the time to dispel many amus-ing misconceptions regarding Canada and their citizens
Host firm Rowbotham amp Co invited the distinguished Federal Prosecutor Joseph Fazioli from the US Depart-ment of Justice who gave participants an overview of white-collar crimes in-vestigation over lunch
Practice Groups and Workshops gave participants the opportunity to connect in smaller groups to discuss industry and practice specific chal-lenges and to share best practices and personal experiences
The social highlight of the program was a tour of the beautiful Napa win-ery Rutherford Hill where participants continued to strengthen personal rela-tionships over fine wines and a fun memorable dinner within the wineryrsquos handsomely adorned cellarcave
Workshop
From left to right Claudio G Cocca David Goldsmith Michael Reiss von Filski Adam Crowson
10
Content
NEW MEMBER FIRMS
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
WolfgangRossbacher
AntonioCastilla
MamukaMardaleishvili
Rossbacher Kohlfuumlrst amp PartnerWirtschaftspruumlfung undSteuerberatung GmbHSt Veiter Ring 1A9020 Klagenfurt am WoumlrtherseeAustria
T +43 463 575 5822F +43 463 575 5811E wpofficerkpcoat W wwwrkpcoat
Company languages German English ItalianContact persons Wolfgang Ross-bacher wrossbacherrkpcoat Paola Strozzi pstrozzirkpcoatServices Audit amp Accounting Tax
Grupo Acender LtdaCoronel Pereira 72 6th and 11th floorLas Condes SantiagoChile
T +56 2 912 00 00E acenderchileacendercomW wwwacendercom
Company languages Spanish EnglishContact persons Antonio Cas-tilla antoniocastillaacendercl Ricardo Corral ricardocorralacenderclServices Tax Advisory Corporate Finance
TMC LLC47 Belinski StreetTbilisiGeorgia
T +995 32 293 37 72F +995 32 293 37 72E infotmcgeorgiacomW wwwtmcgeorgiacom
Company languages Georgian English RussianContact persons Mamuka Marda-leishvili mamukatmcgeorgia com Levan Agladze levan tmcgeorgiacomServices Audit amp Accounting Tax Advisory
Austria Chile Georgia
PaolaStrozzi
RicardoCorral
GGI INSIDER | No 65 | May 2013
11
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
ClaudiaMattig
Jeffrey AFord
Treuhand- undRevisionsgesellschaftMattig-Suter amp PartnerBahnhofstrasse 286430 SchwyzSwitzerland
T +41 41 819 54 00F +41 41 819 54 01E claudiamattigmattigchW wwwmattigch
Company languages English Ger-man French Slovak Romanian Bulgarian Portuguese Italian and SpanishContact person Claudia Mattig claudiamattigmattigchServices Audit amp Accounting Tax Advisory Legal services Corpo-rate Finance
Grossman Yanak amp Ford LLPThree Gateway Center Suite 1800Pittsburgh PA 15222United States
T +1 412 338 41 00F +1 412 338 93 05E fordgyfcomW wwwgyfcom Company language EnglishContact person Jeffrey A Ford fordgyfcomServices Audit amp Accounting Tax Advisory
Switzerland United States
Searchingfor GGI
member firmsall over the
world
Visit ggicom
12
Content
In cooperation with the Iacocca In-stitute office of International Affairs at Lehigh University Pennsylvania USA GGI sponsors five candidates from GGI member firms to participate in the highly acclaimed leadership programme Global Village on the Move (GVotM) Shanghai 2013 With diversity in mind one candidate was selected from each of GGIrsquos five geo-graphical regions
The application process focused on examining the candidatersquos work ex-perience skills personal values and motivation as well as identifying the benefits the candidate hoped to derive
by attending and contributing to the programme
A very pleasing number of appli-cations were received The selection process was conducted by the GGI Ex-ecutive Management and the GGI Ex-ecutive Committee It was an extreme-ly difficult task to choose only five candidates as all applicants boasted outstanding qualifications both pro-fessionally and personally
GGI would like to thank all entrants as well as their respective firms for participating in this initiative Con-gratulations to the five successful can-didates
GGI announces the five winnersto be sponsored
GGI INTERNAL NEWS
Global Village on the Move Shanghai 2013
GVotM 2013 will take place in Shanghai
North America Raven Akram Sandberg PhoenixSaint Louis United States Latin America amp The Caribbean Chafick MahauadoHMampCo Guayaquil Ecuador Europe Jelena Mihic MunjicMDM Revizija Beograd Serbia Middle East Africa Ahmed GhattourAhmed Ghattour amp CoTripoli Lybia Asia-Pacific Botirkhon GanikhodjaevTSIAR-FINANSTashkent Uzbekistan
The winners
GGI INSIDER | No 65 | May 2013
13
GGI member firmHaines Watts wins excellence award for second year
GGI Accountancy member firm Haines Watts is celebrating success having won Auditor of the Year in the SME category for a second time at the annual FDs Excellence Awards
The awards recognise the service pro-viders that support Britainrsquos finance com-munity using the results of an annual survey in which 1380 FDs and financial decision-makers recorded their opinion
The prestigious awards ceremony was held in Grosvenor Square London and hosted by Real Business in association with the Institute of Chartered Accoun-tants in England and Wales (ICAEW) and supported by the Confederation of British Industry (CBI)
Haines Watts won the award last year and beat competition from other UK firms such as Baker Tilly Crowe Clark Whitehill Deloitte RSM Tenon and Saf-fery Champness
Andrew Minifie National Managing Partner at Haines Watts commented ldquoItrsquos great to see Haines Watts win such a prestigious award for the second year in succession This type of award really matters to us because itrsquos voted for by business people and not by an academic panel of expertsrdquo
Andrew added ldquoour core client base is owner managed businesses so to get this endorsement from SME businesses means a great deal to us We are proud
of all of our staff who do an outstanding job for our clients day to day and who have contributed towards us winning this awardrdquo
Michael Izza (Chief Exec ICAEW) presented the excellence award to Andrew Minifie National Managing Partner at Haines Watts
GGI member firm Haines WattsWith over 60 officesaround the UK Audit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningAndrew MinifieE asminifiehwcacomW wwwhwcacom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
4
Content
As announced in the March issue of the Insider the 2013 GGI Leader-ship Forum will be held in Eisenberg Austria at The Eisenberg Hotel (wwwTheEisenbergcom) from 20 to 23 June The programme promises lively discus-sions on the concept of business lead-ership as well as a wide range of out-door activities The hotel can provide the necessary equipment for delegates to embark on bike trips and explore the spectacular surrounding area during their stay Details of hiking routes can also be supplied and a number of hot springs are located close to The Eisen-berg Hotel If they wish delegates can also play a round of golf during their visit
on Thursday 20 June the confer-ence will begin with a meeting of the GGI Executive Committee and of the International Taxation Practice Group The meetings will be followed by cock-
tails and dinner at the hotel on Friday the conference will host two rounds of workshops about Leadership and Best Practice in the morning as well as a contribution from our keynote speak-ers in the afternoon John Caswell Founder and CEo of Group Partners and Hazel Tiffany Partner of Group Partners The keynote speakers will provide a non-traditional speech fo-cused on leadership abilities visual tools and techniques and structured frameworks
The evening programme includes guided tours with a schnapps tasting at the Goumllles Schnapps Distillery amp Vin-egar Production followed by the Vulca-
no Ham Factory The daily programme will end with a dinner at the Heurigen-schenke zum Sterngucker
Saturday morning will feature an-other contribution by John Caswell and Hazel Tiffany about Structured Visual Thinking while the afternoon will be dedicated to a team building session at the Adventure World for delegates and accompanying persons
The conference programme will of-ficially end in the evening with a cock-tail reception and a midsummer night barbecue at the wine cellar of the hotel
GGI is looking forward to hosting this event and meeting many members at The Eisenberg Hotel in Austria It is not too late for GGI members who have not yet registered to do so Please use the online registration tool at wwwggicom (Member loginEvents) The detailed conference programme is also available on the website
Hotel The Eisenberg Austria ndash GGI Leadership Forum venue
GGI Leadership Forumin Eisenberg Austria
20-23 June 2013
UPCOMING GGI EVENTS
GGI INSIDER | No 65 | May 2013
5
GGI European RegionalConference in Lisbon Portugal
18-21 April 2013
The annual GGI European Confer-ence was held in Lisbon from 18 to 21 April and was kindly hosted by GGI member firm Pontes Baptista amp As-sociados The venue for this event was the elegant Penha Longa Hotel Spa amp Golf Resort (a Ritz Carlton Hotel) nestled in the beautiful Sintra moun-tains surrounded by the stunning Por-tuguese landscape
The conference commenced on Thursday with a meeting of the Inter-national Taxation Practice Group and a round of golf for the early attendees In the evening delegates were welcomed next page
REVIEW GGI EVENTS
Audience at the European Conference in Lisbon
Gala Dinner
6
Content
REVIEW GGI EVENTS
for dinner in one of the finest rooms of the resort enjoying delicious dishes and the presentation of new member firms and candidates
The formal segment of the confer-ence began on Friday with an open-ing speech delivered by Claudio G Cocca GGI President and Founder and a warm welcoming address from the conference host Dr Seacutergio Pontes The first keynote speaker at the event was Dr Daniele Ganser founder of the Swiss Institute for Peace and Energy Research who delivered an involving lecture about Europe and its addiction to oil focusing on the consequences of this dangerous addiction The lecture was followed by an interactive qampA section before leaving the stage to the second keynote speaker of the session Markus Grubb Managing Director of the World Gold Council His lecture fo-cusing on the benefits of investing in gold was accurate and interesting and also stimulated an interesting debate between Mr Grubb and Mr Cocca
The morning session concluded with the management report present-ed by GGIrsquos CEo Michael Reiss von Filski During this presentation the new GGI team member Sophia Moon presented the new GGI social media marketing strategy aimed at increasing company presence on social networks and providing a wider connection be-tween members Lastly the upcoming GGI events were introduced by Adam Crowson GGI North American Re-
gional Manager After these interesting contributions the attendees enjoyed a delightful lunch at the hotel before starting the afternoon session with two rounds of Practice Group meetings
The dayrsquos official programme ended at the Satildeo Juliatildeo da Barra Fortress a stunning example of Portuguese archi-tecture from the 16th century which is considered to be the countryrsquos biggest existing maritime defence building Delegates experienced music and dish-es distinctive of the region in the out-standing restaurant inside this venue
Saturday morning started with a round of workshops oliver Biernat de-livered an interesting session on pre-venting burnout and Graham Busch underlined how important these con-ferences are for promoting business referrals GGIrsquos Honorary Vice Presi-
dent oliver Rothschild provided an insight into the third sector while Inna Deputat and Sophia Moon focused on social media marketing projects After lunch delegates had the choice be-tween three different sightseeing tours of Lisbon Sintra or Belem which was a great opportunity for attendees to ex-perience the culture and scenery of this beautiful country
To conclude the event participants were invited to a fabulous black tie gala dinner at the prestigious Casino de Es-toril Guests enjoyed a delicious meal followed by a live band and after din-ner dance All delegates were in great spirits as the conference came to a successful end
The next European Conference will be held in Edinburgh Scotland 3-6 April 2014
Friday Dinner Satildeo Juliatildeo da Barra Fortress
Sightseeing ndash Lisbon walk
Remodelado tram in Lisbon
GGI INSIDER | No 65 | May 2013
7
The new event hosted by our three Massachusetts member firms Mir-ick orsquoConnell tonneson + co and Shields amp Company was successfully launched The conference drew an at-tendance of over 50 participants and was well represented with members from Asia Europe and North America
Held within walking distance of the GGI North America offices the Devel-oping Leaders Conference introduced GGI to a new generation of young part-ners and partner track professionals The conference programme focused on leadership development and was delivered by the managing partners at our host firms and by tutors from Le-high University
Without a doubt the GGI tradition of blending quality content an elegant locale and event-driven networking was upheld at the welcome reception and dinner at the Tajrsquos rooftop lounge overlooking Boston Common
The keynote speaker was Dick Brandt the Chairman of the Iacocca Institute at Lehigh University He delivered a fasci-nating dichotomy contrasting a leader with a manager Following his lecture a video of Lee Iacocca speaking on the 9 Crsquos of leadership was shown to del-egates Forming a panel David Sur-prenant from Mirick orsquoConnell Rick Mastrocola from tonneson + co and Tom Shields from Shields amp Company presented on building a high value net-work A further panel discussion with Mr Surprenant Mr Mastrocola and Mr Shields followed focusing on work-life balance and questions submitted by the audience The first day concluded with
Carol Ham and Adam Crowson Ms Ham highlighted Lehigh Universityrsquos internship programme and the chal-lenges of working abroad and Mr Crow-son put the spotlight on developing leaders through our partnership with Lehigh Universityrsquos ldquoGlobal Village on the Moverdquo programme
The second day was no less stimu-lating with Peter Johnson presenting on business development strategies and lessons that can be learnt from in-terviews with his client firms and their clients The culmination of the event was a panel of all presenters discuss-ing ethics in business scenarios from next page
GGI North AmericanDeveloping LeadersConference Boston MA USA
2-4 May 2013
Audience
Dick Brandt
8
Content
REVIEW GGI EVENTS
GGI North AmericanRegional Conference San Francisco CA USA
09-12 May 2013
12 May marked the successful con-clusion of the third North American Regional Conference at the Grand Hy-att Hotel located in the heart of Union Square San Francisco CA over 130 participants took part in this yearrsquos program from all of the various re-gions of GGI
The Welcome Reception amp Dinner was staged on the 36th floor of the Grand Hyatt with a breathtaking view of the San Francisco Bay at sunset al-lowing participants to reconnect with old friends and forge new relation-ships
Keynote speaker David Goldsmith
author of lsquoPaid To Thinkrsquo (refer to page 23 for the book review) opened the morning with an engaging presenta-tion which challenged the audience on ways to redefine leadership and implement forward strategic thinking
The North American winner of the Global Village on the Move scholarship
their own experiences and challeng-ing choices they have made in the past The interesting day ended with a fabulous dinner at the warm modern Post 390 tavern
New to GGI the North America De-veloping Leaders Conference aims to fa-cilitate the whole-firm approach of GGI Also new is the GGI Institute the edu-cational arm of GGI which is dedicated to the development of professionals
The next North American Develop-ing Leaders event will take place in his-toric Philadelphia hosted by member firms Drucker amp Scaccetti and Smart
Devine This event will include a paral-lel meeting of managing partners and executive directors discussing best
practice GGI members can enquire about registration at wwwggicom (Member loginEvents)
Panel Discussion from left to right David Surprenant Rick Mastrocola Tom Shields
Networking Friday evening
GGI INSIDER | No 65 | May 2013
9
Tour of the Napa Valley
Raven Akram of Sandberg Phoenix amp Von Gontard was announced and participants had a chance to briefly hear from her
Mr Kim Moody of Moodyrsquos Tax Advi-sors one of the foremost opinions on tax in Canada offered insight into the various tax structures opportunities and potential pitfalls of doing business in Canada To everyonersquos delight he also took the time to dispel many amus-ing misconceptions regarding Canada and their citizens
Host firm Rowbotham amp Co invited the distinguished Federal Prosecutor Joseph Fazioli from the US Depart-ment of Justice who gave participants an overview of white-collar crimes in-vestigation over lunch
Practice Groups and Workshops gave participants the opportunity to connect in smaller groups to discuss industry and practice specific chal-lenges and to share best practices and personal experiences
The social highlight of the program was a tour of the beautiful Napa win-ery Rutherford Hill where participants continued to strengthen personal rela-tionships over fine wines and a fun memorable dinner within the wineryrsquos handsomely adorned cellarcave
Workshop
From left to right Claudio G Cocca David Goldsmith Michael Reiss von Filski Adam Crowson
10
Content
NEW MEMBER FIRMS
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
WolfgangRossbacher
AntonioCastilla
MamukaMardaleishvili
Rossbacher Kohlfuumlrst amp PartnerWirtschaftspruumlfung undSteuerberatung GmbHSt Veiter Ring 1A9020 Klagenfurt am WoumlrtherseeAustria
T +43 463 575 5822F +43 463 575 5811E wpofficerkpcoat W wwwrkpcoat
Company languages German English ItalianContact persons Wolfgang Ross-bacher wrossbacherrkpcoat Paola Strozzi pstrozzirkpcoatServices Audit amp Accounting Tax
Grupo Acender LtdaCoronel Pereira 72 6th and 11th floorLas Condes SantiagoChile
T +56 2 912 00 00E acenderchileacendercomW wwwacendercom
Company languages Spanish EnglishContact persons Antonio Cas-tilla antoniocastillaacendercl Ricardo Corral ricardocorralacenderclServices Tax Advisory Corporate Finance
TMC LLC47 Belinski StreetTbilisiGeorgia
T +995 32 293 37 72F +995 32 293 37 72E infotmcgeorgiacomW wwwtmcgeorgiacom
Company languages Georgian English RussianContact persons Mamuka Marda-leishvili mamukatmcgeorgia com Levan Agladze levan tmcgeorgiacomServices Audit amp Accounting Tax Advisory
Austria Chile Georgia
PaolaStrozzi
RicardoCorral
GGI INSIDER | No 65 | May 2013
11
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
ClaudiaMattig
Jeffrey AFord
Treuhand- undRevisionsgesellschaftMattig-Suter amp PartnerBahnhofstrasse 286430 SchwyzSwitzerland
T +41 41 819 54 00F +41 41 819 54 01E claudiamattigmattigchW wwwmattigch
Company languages English Ger-man French Slovak Romanian Bulgarian Portuguese Italian and SpanishContact person Claudia Mattig claudiamattigmattigchServices Audit amp Accounting Tax Advisory Legal services Corpo-rate Finance
Grossman Yanak amp Ford LLPThree Gateway Center Suite 1800Pittsburgh PA 15222United States
T +1 412 338 41 00F +1 412 338 93 05E fordgyfcomW wwwgyfcom Company language EnglishContact person Jeffrey A Ford fordgyfcomServices Audit amp Accounting Tax Advisory
Switzerland United States
Searchingfor GGI
member firmsall over the
world
Visit ggicom
12
Content
In cooperation with the Iacocca In-stitute office of International Affairs at Lehigh University Pennsylvania USA GGI sponsors five candidates from GGI member firms to participate in the highly acclaimed leadership programme Global Village on the Move (GVotM) Shanghai 2013 With diversity in mind one candidate was selected from each of GGIrsquos five geo-graphical regions
The application process focused on examining the candidatersquos work ex-perience skills personal values and motivation as well as identifying the benefits the candidate hoped to derive
by attending and contributing to the programme
A very pleasing number of appli-cations were received The selection process was conducted by the GGI Ex-ecutive Management and the GGI Ex-ecutive Committee It was an extreme-ly difficult task to choose only five candidates as all applicants boasted outstanding qualifications both pro-fessionally and personally
GGI would like to thank all entrants as well as their respective firms for participating in this initiative Con-gratulations to the five successful can-didates
GGI announces the five winnersto be sponsored
GGI INTERNAL NEWS
Global Village on the Move Shanghai 2013
GVotM 2013 will take place in Shanghai
North America Raven Akram Sandberg PhoenixSaint Louis United States Latin America amp The Caribbean Chafick MahauadoHMampCo Guayaquil Ecuador Europe Jelena Mihic MunjicMDM Revizija Beograd Serbia Middle East Africa Ahmed GhattourAhmed Ghattour amp CoTripoli Lybia Asia-Pacific Botirkhon GanikhodjaevTSIAR-FINANSTashkent Uzbekistan
The winners
GGI INSIDER | No 65 | May 2013
13
GGI member firmHaines Watts wins excellence award for second year
GGI Accountancy member firm Haines Watts is celebrating success having won Auditor of the Year in the SME category for a second time at the annual FDs Excellence Awards
The awards recognise the service pro-viders that support Britainrsquos finance com-munity using the results of an annual survey in which 1380 FDs and financial decision-makers recorded their opinion
The prestigious awards ceremony was held in Grosvenor Square London and hosted by Real Business in association with the Institute of Chartered Accoun-tants in England and Wales (ICAEW) and supported by the Confederation of British Industry (CBI)
Haines Watts won the award last year and beat competition from other UK firms such as Baker Tilly Crowe Clark Whitehill Deloitte RSM Tenon and Saf-fery Champness
Andrew Minifie National Managing Partner at Haines Watts commented ldquoItrsquos great to see Haines Watts win such a prestigious award for the second year in succession This type of award really matters to us because itrsquos voted for by business people and not by an academic panel of expertsrdquo
Andrew added ldquoour core client base is owner managed businesses so to get this endorsement from SME businesses means a great deal to us We are proud
of all of our staff who do an outstanding job for our clients day to day and who have contributed towards us winning this awardrdquo
Michael Izza (Chief Exec ICAEW) presented the excellence award to Andrew Minifie National Managing Partner at Haines Watts
GGI member firm Haines WattsWith over 60 officesaround the UK Audit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningAndrew MinifieE asminifiehwcacomW wwwhwcacom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
GGI INSIDER | No 65 | May 2013
5
GGI European RegionalConference in Lisbon Portugal
18-21 April 2013
The annual GGI European Confer-ence was held in Lisbon from 18 to 21 April and was kindly hosted by GGI member firm Pontes Baptista amp As-sociados The venue for this event was the elegant Penha Longa Hotel Spa amp Golf Resort (a Ritz Carlton Hotel) nestled in the beautiful Sintra moun-tains surrounded by the stunning Por-tuguese landscape
The conference commenced on Thursday with a meeting of the Inter-national Taxation Practice Group and a round of golf for the early attendees In the evening delegates were welcomed next page
REVIEW GGI EVENTS
Audience at the European Conference in Lisbon
Gala Dinner
6
Content
REVIEW GGI EVENTS
for dinner in one of the finest rooms of the resort enjoying delicious dishes and the presentation of new member firms and candidates
The formal segment of the confer-ence began on Friday with an open-ing speech delivered by Claudio G Cocca GGI President and Founder and a warm welcoming address from the conference host Dr Seacutergio Pontes The first keynote speaker at the event was Dr Daniele Ganser founder of the Swiss Institute for Peace and Energy Research who delivered an involving lecture about Europe and its addiction to oil focusing on the consequences of this dangerous addiction The lecture was followed by an interactive qampA section before leaving the stage to the second keynote speaker of the session Markus Grubb Managing Director of the World Gold Council His lecture fo-cusing on the benefits of investing in gold was accurate and interesting and also stimulated an interesting debate between Mr Grubb and Mr Cocca
The morning session concluded with the management report present-ed by GGIrsquos CEo Michael Reiss von Filski During this presentation the new GGI team member Sophia Moon presented the new GGI social media marketing strategy aimed at increasing company presence on social networks and providing a wider connection be-tween members Lastly the upcoming GGI events were introduced by Adam Crowson GGI North American Re-
gional Manager After these interesting contributions the attendees enjoyed a delightful lunch at the hotel before starting the afternoon session with two rounds of Practice Group meetings
The dayrsquos official programme ended at the Satildeo Juliatildeo da Barra Fortress a stunning example of Portuguese archi-tecture from the 16th century which is considered to be the countryrsquos biggest existing maritime defence building Delegates experienced music and dish-es distinctive of the region in the out-standing restaurant inside this venue
Saturday morning started with a round of workshops oliver Biernat de-livered an interesting session on pre-venting burnout and Graham Busch underlined how important these con-ferences are for promoting business referrals GGIrsquos Honorary Vice Presi-
dent oliver Rothschild provided an insight into the third sector while Inna Deputat and Sophia Moon focused on social media marketing projects After lunch delegates had the choice be-tween three different sightseeing tours of Lisbon Sintra or Belem which was a great opportunity for attendees to ex-perience the culture and scenery of this beautiful country
To conclude the event participants were invited to a fabulous black tie gala dinner at the prestigious Casino de Es-toril Guests enjoyed a delicious meal followed by a live band and after din-ner dance All delegates were in great spirits as the conference came to a successful end
The next European Conference will be held in Edinburgh Scotland 3-6 April 2014
Friday Dinner Satildeo Juliatildeo da Barra Fortress
Sightseeing ndash Lisbon walk
Remodelado tram in Lisbon
GGI INSIDER | No 65 | May 2013
7
The new event hosted by our three Massachusetts member firms Mir-ick orsquoConnell tonneson + co and Shields amp Company was successfully launched The conference drew an at-tendance of over 50 participants and was well represented with members from Asia Europe and North America
Held within walking distance of the GGI North America offices the Devel-oping Leaders Conference introduced GGI to a new generation of young part-ners and partner track professionals The conference programme focused on leadership development and was delivered by the managing partners at our host firms and by tutors from Le-high University
Without a doubt the GGI tradition of blending quality content an elegant locale and event-driven networking was upheld at the welcome reception and dinner at the Tajrsquos rooftop lounge overlooking Boston Common
The keynote speaker was Dick Brandt the Chairman of the Iacocca Institute at Lehigh University He delivered a fasci-nating dichotomy contrasting a leader with a manager Following his lecture a video of Lee Iacocca speaking on the 9 Crsquos of leadership was shown to del-egates Forming a panel David Sur-prenant from Mirick orsquoConnell Rick Mastrocola from tonneson + co and Tom Shields from Shields amp Company presented on building a high value net-work A further panel discussion with Mr Surprenant Mr Mastrocola and Mr Shields followed focusing on work-life balance and questions submitted by the audience The first day concluded with
Carol Ham and Adam Crowson Ms Ham highlighted Lehigh Universityrsquos internship programme and the chal-lenges of working abroad and Mr Crow-son put the spotlight on developing leaders through our partnership with Lehigh Universityrsquos ldquoGlobal Village on the Moverdquo programme
The second day was no less stimu-lating with Peter Johnson presenting on business development strategies and lessons that can be learnt from in-terviews with his client firms and their clients The culmination of the event was a panel of all presenters discuss-ing ethics in business scenarios from next page
GGI North AmericanDeveloping LeadersConference Boston MA USA
2-4 May 2013
Audience
Dick Brandt
8
Content
REVIEW GGI EVENTS
GGI North AmericanRegional Conference San Francisco CA USA
09-12 May 2013
12 May marked the successful con-clusion of the third North American Regional Conference at the Grand Hy-att Hotel located in the heart of Union Square San Francisco CA over 130 participants took part in this yearrsquos program from all of the various re-gions of GGI
The Welcome Reception amp Dinner was staged on the 36th floor of the Grand Hyatt with a breathtaking view of the San Francisco Bay at sunset al-lowing participants to reconnect with old friends and forge new relation-ships
Keynote speaker David Goldsmith
author of lsquoPaid To Thinkrsquo (refer to page 23 for the book review) opened the morning with an engaging presenta-tion which challenged the audience on ways to redefine leadership and implement forward strategic thinking
The North American winner of the Global Village on the Move scholarship
their own experiences and challeng-ing choices they have made in the past The interesting day ended with a fabulous dinner at the warm modern Post 390 tavern
New to GGI the North America De-veloping Leaders Conference aims to fa-cilitate the whole-firm approach of GGI Also new is the GGI Institute the edu-cational arm of GGI which is dedicated to the development of professionals
The next North American Develop-ing Leaders event will take place in his-toric Philadelphia hosted by member firms Drucker amp Scaccetti and Smart
Devine This event will include a paral-lel meeting of managing partners and executive directors discussing best
practice GGI members can enquire about registration at wwwggicom (Member loginEvents)
Panel Discussion from left to right David Surprenant Rick Mastrocola Tom Shields
Networking Friday evening
GGI INSIDER | No 65 | May 2013
9
Tour of the Napa Valley
Raven Akram of Sandberg Phoenix amp Von Gontard was announced and participants had a chance to briefly hear from her
Mr Kim Moody of Moodyrsquos Tax Advi-sors one of the foremost opinions on tax in Canada offered insight into the various tax structures opportunities and potential pitfalls of doing business in Canada To everyonersquos delight he also took the time to dispel many amus-ing misconceptions regarding Canada and their citizens
Host firm Rowbotham amp Co invited the distinguished Federal Prosecutor Joseph Fazioli from the US Depart-ment of Justice who gave participants an overview of white-collar crimes in-vestigation over lunch
Practice Groups and Workshops gave participants the opportunity to connect in smaller groups to discuss industry and practice specific chal-lenges and to share best practices and personal experiences
The social highlight of the program was a tour of the beautiful Napa win-ery Rutherford Hill where participants continued to strengthen personal rela-tionships over fine wines and a fun memorable dinner within the wineryrsquos handsomely adorned cellarcave
Workshop
From left to right Claudio G Cocca David Goldsmith Michael Reiss von Filski Adam Crowson
10
Content
NEW MEMBER FIRMS
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
WolfgangRossbacher
AntonioCastilla
MamukaMardaleishvili
Rossbacher Kohlfuumlrst amp PartnerWirtschaftspruumlfung undSteuerberatung GmbHSt Veiter Ring 1A9020 Klagenfurt am WoumlrtherseeAustria
T +43 463 575 5822F +43 463 575 5811E wpofficerkpcoat W wwwrkpcoat
Company languages German English ItalianContact persons Wolfgang Ross-bacher wrossbacherrkpcoat Paola Strozzi pstrozzirkpcoatServices Audit amp Accounting Tax
Grupo Acender LtdaCoronel Pereira 72 6th and 11th floorLas Condes SantiagoChile
T +56 2 912 00 00E acenderchileacendercomW wwwacendercom
Company languages Spanish EnglishContact persons Antonio Cas-tilla antoniocastillaacendercl Ricardo Corral ricardocorralacenderclServices Tax Advisory Corporate Finance
TMC LLC47 Belinski StreetTbilisiGeorgia
T +995 32 293 37 72F +995 32 293 37 72E infotmcgeorgiacomW wwwtmcgeorgiacom
Company languages Georgian English RussianContact persons Mamuka Marda-leishvili mamukatmcgeorgia com Levan Agladze levan tmcgeorgiacomServices Audit amp Accounting Tax Advisory
Austria Chile Georgia
PaolaStrozzi
RicardoCorral
GGI INSIDER | No 65 | May 2013
11
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
ClaudiaMattig
Jeffrey AFord
Treuhand- undRevisionsgesellschaftMattig-Suter amp PartnerBahnhofstrasse 286430 SchwyzSwitzerland
T +41 41 819 54 00F +41 41 819 54 01E claudiamattigmattigchW wwwmattigch
Company languages English Ger-man French Slovak Romanian Bulgarian Portuguese Italian and SpanishContact person Claudia Mattig claudiamattigmattigchServices Audit amp Accounting Tax Advisory Legal services Corpo-rate Finance
Grossman Yanak amp Ford LLPThree Gateway Center Suite 1800Pittsburgh PA 15222United States
T +1 412 338 41 00F +1 412 338 93 05E fordgyfcomW wwwgyfcom Company language EnglishContact person Jeffrey A Ford fordgyfcomServices Audit amp Accounting Tax Advisory
Switzerland United States
Searchingfor GGI
member firmsall over the
world
Visit ggicom
12
Content
In cooperation with the Iacocca In-stitute office of International Affairs at Lehigh University Pennsylvania USA GGI sponsors five candidates from GGI member firms to participate in the highly acclaimed leadership programme Global Village on the Move (GVotM) Shanghai 2013 With diversity in mind one candidate was selected from each of GGIrsquos five geo-graphical regions
The application process focused on examining the candidatersquos work ex-perience skills personal values and motivation as well as identifying the benefits the candidate hoped to derive
by attending and contributing to the programme
A very pleasing number of appli-cations were received The selection process was conducted by the GGI Ex-ecutive Management and the GGI Ex-ecutive Committee It was an extreme-ly difficult task to choose only five candidates as all applicants boasted outstanding qualifications both pro-fessionally and personally
GGI would like to thank all entrants as well as their respective firms for participating in this initiative Con-gratulations to the five successful can-didates
GGI announces the five winnersto be sponsored
GGI INTERNAL NEWS
Global Village on the Move Shanghai 2013
GVotM 2013 will take place in Shanghai
North America Raven Akram Sandberg PhoenixSaint Louis United States Latin America amp The Caribbean Chafick MahauadoHMampCo Guayaquil Ecuador Europe Jelena Mihic MunjicMDM Revizija Beograd Serbia Middle East Africa Ahmed GhattourAhmed Ghattour amp CoTripoli Lybia Asia-Pacific Botirkhon GanikhodjaevTSIAR-FINANSTashkent Uzbekistan
The winners
GGI INSIDER | No 65 | May 2013
13
GGI member firmHaines Watts wins excellence award for second year
GGI Accountancy member firm Haines Watts is celebrating success having won Auditor of the Year in the SME category for a second time at the annual FDs Excellence Awards
The awards recognise the service pro-viders that support Britainrsquos finance com-munity using the results of an annual survey in which 1380 FDs and financial decision-makers recorded their opinion
The prestigious awards ceremony was held in Grosvenor Square London and hosted by Real Business in association with the Institute of Chartered Accoun-tants in England and Wales (ICAEW) and supported by the Confederation of British Industry (CBI)
Haines Watts won the award last year and beat competition from other UK firms such as Baker Tilly Crowe Clark Whitehill Deloitte RSM Tenon and Saf-fery Champness
Andrew Minifie National Managing Partner at Haines Watts commented ldquoItrsquos great to see Haines Watts win such a prestigious award for the second year in succession This type of award really matters to us because itrsquos voted for by business people and not by an academic panel of expertsrdquo
Andrew added ldquoour core client base is owner managed businesses so to get this endorsement from SME businesses means a great deal to us We are proud
of all of our staff who do an outstanding job for our clients day to day and who have contributed towards us winning this awardrdquo
Michael Izza (Chief Exec ICAEW) presented the excellence award to Andrew Minifie National Managing Partner at Haines Watts
GGI member firm Haines WattsWith over 60 officesaround the UK Audit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningAndrew MinifieE asminifiehwcacomW wwwhwcacom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
6
Content
REVIEW GGI EVENTS
for dinner in one of the finest rooms of the resort enjoying delicious dishes and the presentation of new member firms and candidates
The formal segment of the confer-ence began on Friday with an open-ing speech delivered by Claudio G Cocca GGI President and Founder and a warm welcoming address from the conference host Dr Seacutergio Pontes The first keynote speaker at the event was Dr Daniele Ganser founder of the Swiss Institute for Peace and Energy Research who delivered an involving lecture about Europe and its addiction to oil focusing on the consequences of this dangerous addiction The lecture was followed by an interactive qampA section before leaving the stage to the second keynote speaker of the session Markus Grubb Managing Director of the World Gold Council His lecture fo-cusing on the benefits of investing in gold was accurate and interesting and also stimulated an interesting debate between Mr Grubb and Mr Cocca
The morning session concluded with the management report present-ed by GGIrsquos CEo Michael Reiss von Filski During this presentation the new GGI team member Sophia Moon presented the new GGI social media marketing strategy aimed at increasing company presence on social networks and providing a wider connection be-tween members Lastly the upcoming GGI events were introduced by Adam Crowson GGI North American Re-
gional Manager After these interesting contributions the attendees enjoyed a delightful lunch at the hotel before starting the afternoon session with two rounds of Practice Group meetings
The dayrsquos official programme ended at the Satildeo Juliatildeo da Barra Fortress a stunning example of Portuguese archi-tecture from the 16th century which is considered to be the countryrsquos biggest existing maritime defence building Delegates experienced music and dish-es distinctive of the region in the out-standing restaurant inside this venue
Saturday morning started with a round of workshops oliver Biernat de-livered an interesting session on pre-venting burnout and Graham Busch underlined how important these con-ferences are for promoting business referrals GGIrsquos Honorary Vice Presi-
dent oliver Rothschild provided an insight into the third sector while Inna Deputat and Sophia Moon focused on social media marketing projects After lunch delegates had the choice be-tween three different sightseeing tours of Lisbon Sintra or Belem which was a great opportunity for attendees to ex-perience the culture and scenery of this beautiful country
To conclude the event participants were invited to a fabulous black tie gala dinner at the prestigious Casino de Es-toril Guests enjoyed a delicious meal followed by a live band and after din-ner dance All delegates were in great spirits as the conference came to a successful end
The next European Conference will be held in Edinburgh Scotland 3-6 April 2014
Friday Dinner Satildeo Juliatildeo da Barra Fortress
Sightseeing ndash Lisbon walk
Remodelado tram in Lisbon
GGI INSIDER | No 65 | May 2013
7
The new event hosted by our three Massachusetts member firms Mir-ick orsquoConnell tonneson + co and Shields amp Company was successfully launched The conference drew an at-tendance of over 50 participants and was well represented with members from Asia Europe and North America
Held within walking distance of the GGI North America offices the Devel-oping Leaders Conference introduced GGI to a new generation of young part-ners and partner track professionals The conference programme focused on leadership development and was delivered by the managing partners at our host firms and by tutors from Le-high University
Without a doubt the GGI tradition of blending quality content an elegant locale and event-driven networking was upheld at the welcome reception and dinner at the Tajrsquos rooftop lounge overlooking Boston Common
The keynote speaker was Dick Brandt the Chairman of the Iacocca Institute at Lehigh University He delivered a fasci-nating dichotomy contrasting a leader with a manager Following his lecture a video of Lee Iacocca speaking on the 9 Crsquos of leadership was shown to del-egates Forming a panel David Sur-prenant from Mirick orsquoConnell Rick Mastrocola from tonneson + co and Tom Shields from Shields amp Company presented on building a high value net-work A further panel discussion with Mr Surprenant Mr Mastrocola and Mr Shields followed focusing on work-life balance and questions submitted by the audience The first day concluded with
Carol Ham and Adam Crowson Ms Ham highlighted Lehigh Universityrsquos internship programme and the chal-lenges of working abroad and Mr Crow-son put the spotlight on developing leaders through our partnership with Lehigh Universityrsquos ldquoGlobal Village on the Moverdquo programme
The second day was no less stimu-lating with Peter Johnson presenting on business development strategies and lessons that can be learnt from in-terviews with his client firms and their clients The culmination of the event was a panel of all presenters discuss-ing ethics in business scenarios from next page
GGI North AmericanDeveloping LeadersConference Boston MA USA
2-4 May 2013
Audience
Dick Brandt
8
Content
REVIEW GGI EVENTS
GGI North AmericanRegional Conference San Francisco CA USA
09-12 May 2013
12 May marked the successful con-clusion of the third North American Regional Conference at the Grand Hy-att Hotel located in the heart of Union Square San Francisco CA over 130 participants took part in this yearrsquos program from all of the various re-gions of GGI
The Welcome Reception amp Dinner was staged on the 36th floor of the Grand Hyatt with a breathtaking view of the San Francisco Bay at sunset al-lowing participants to reconnect with old friends and forge new relation-ships
Keynote speaker David Goldsmith
author of lsquoPaid To Thinkrsquo (refer to page 23 for the book review) opened the morning with an engaging presenta-tion which challenged the audience on ways to redefine leadership and implement forward strategic thinking
The North American winner of the Global Village on the Move scholarship
their own experiences and challeng-ing choices they have made in the past The interesting day ended with a fabulous dinner at the warm modern Post 390 tavern
New to GGI the North America De-veloping Leaders Conference aims to fa-cilitate the whole-firm approach of GGI Also new is the GGI Institute the edu-cational arm of GGI which is dedicated to the development of professionals
The next North American Develop-ing Leaders event will take place in his-toric Philadelphia hosted by member firms Drucker amp Scaccetti and Smart
Devine This event will include a paral-lel meeting of managing partners and executive directors discussing best
practice GGI members can enquire about registration at wwwggicom (Member loginEvents)
Panel Discussion from left to right David Surprenant Rick Mastrocola Tom Shields
Networking Friday evening
GGI INSIDER | No 65 | May 2013
9
Tour of the Napa Valley
Raven Akram of Sandberg Phoenix amp Von Gontard was announced and participants had a chance to briefly hear from her
Mr Kim Moody of Moodyrsquos Tax Advi-sors one of the foremost opinions on tax in Canada offered insight into the various tax structures opportunities and potential pitfalls of doing business in Canada To everyonersquos delight he also took the time to dispel many amus-ing misconceptions regarding Canada and their citizens
Host firm Rowbotham amp Co invited the distinguished Federal Prosecutor Joseph Fazioli from the US Depart-ment of Justice who gave participants an overview of white-collar crimes in-vestigation over lunch
Practice Groups and Workshops gave participants the opportunity to connect in smaller groups to discuss industry and practice specific chal-lenges and to share best practices and personal experiences
The social highlight of the program was a tour of the beautiful Napa win-ery Rutherford Hill where participants continued to strengthen personal rela-tionships over fine wines and a fun memorable dinner within the wineryrsquos handsomely adorned cellarcave
Workshop
From left to right Claudio G Cocca David Goldsmith Michael Reiss von Filski Adam Crowson
10
Content
NEW MEMBER FIRMS
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
WolfgangRossbacher
AntonioCastilla
MamukaMardaleishvili
Rossbacher Kohlfuumlrst amp PartnerWirtschaftspruumlfung undSteuerberatung GmbHSt Veiter Ring 1A9020 Klagenfurt am WoumlrtherseeAustria
T +43 463 575 5822F +43 463 575 5811E wpofficerkpcoat W wwwrkpcoat
Company languages German English ItalianContact persons Wolfgang Ross-bacher wrossbacherrkpcoat Paola Strozzi pstrozzirkpcoatServices Audit amp Accounting Tax
Grupo Acender LtdaCoronel Pereira 72 6th and 11th floorLas Condes SantiagoChile
T +56 2 912 00 00E acenderchileacendercomW wwwacendercom
Company languages Spanish EnglishContact persons Antonio Cas-tilla antoniocastillaacendercl Ricardo Corral ricardocorralacenderclServices Tax Advisory Corporate Finance
TMC LLC47 Belinski StreetTbilisiGeorgia
T +995 32 293 37 72F +995 32 293 37 72E infotmcgeorgiacomW wwwtmcgeorgiacom
Company languages Georgian English RussianContact persons Mamuka Marda-leishvili mamukatmcgeorgia com Levan Agladze levan tmcgeorgiacomServices Audit amp Accounting Tax Advisory
Austria Chile Georgia
PaolaStrozzi
RicardoCorral
GGI INSIDER | No 65 | May 2013
11
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
ClaudiaMattig
Jeffrey AFord
Treuhand- undRevisionsgesellschaftMattig-Suter amp PartnerBahnhofstrasse 286430 SchwyzSwitzerland
T +41 41 819 54 00F +41 41 819 54 01E claudiamattigmattigchW wwwmattigch
Company languages English Ger-man French Slovak Romanian Bulgarian Portuguese Italian and SpanishContact person Claudia Mattig claudiamattigmattigchServices Audit amp Accounting Tax Advisory Legal services Corpo-rate Finance
Grossman Yanak amp Ford LLPThree Gateway Center Suite 1800Pittsburgh PA 15222United States
T +1 412 338 41 00F +1 412 338 93 05E fordgyfcomW wwwgyfcom Company language EnglishContact person Jeffrey A Ford fordgyfcomServices Audit amp Accounting Tax Advisory
Switzerland United States
Searchingfor GGI
member firmsall over the
world
Visit ggicom
12
Content
In cooperation with the Iacocca In-stitute office of International Affairs at Lehigh University Pennsylvania USA GGI sponsors five candidates from GGI member firms to participate in the highly acclaimed leadership programme Global Village on the Move (GVotM) Shanghai 2013 With diversity in mind one candidate was selected from each of GGIrsquos five geo-graphical regions
The application process focused on examining the candidatersquos work ex-perience skills personal values and motivation as well as identifying the benefits the candidate hoped to derive
by attending and contributing to the programme
A very pleasing number of appli-cations were received The selection process was conducted by the GGI Ex-ecutive Management and the GGI Ex-ecutive Committee It was an extreme-ly difficult task to choose only five candidates as all applicants boasted outstanding qualifications both pro-fessionally and personally
GGI would like to thank all entrants as well as their respective firms for participating in this initiative Con-gratulations to the five successful can-didates
GGI announces the five winnersto be sponsored
GGI INTERNAL NEWS
Global Village on the Move Shanghai 2013
GVotM 2013 will take place in Shanghai
North America Raven Akram Sandberg PhoenixSaint Louis United States Latin America amp The Caribbean Chafick MahauadoHMampCo Guayaquil Ecuador Europe Jelena Mihic MunjicMDM Revizija Beograd Serbia Middle East Africa Ahmed GhattourAhmed Ghattour amp CoTripoli Lybia Asia-Pacific Botirkhon GanikhodjaevTSIAR-FINANSTashkent Uzbekistan
The winners
GGI INSIDER | No 65 | May 2013
13
GGI member firmHaines Watts wins excellence award for second year
GGI Accountancy member firm Haines Watts is celebrating success having won Auditor of the Year in the SME category for a second time at the annual FDs Excellence Awards
The awards recognise the service pro-viders that support Britainrsquos finance com-munity using the results of an annual survey in which 1380 FDs and financial decision-makers recorded their opinion
The prestigious awards ceremony was held in Grosvenor Square London and hosted by Real Business in association with the Institute of Chartered Accoun-tants in England and Wales (ICAEW) and supported by the Confederation of British Industry (CBI)
Haines Watts won the award last year and beat competition from other UK firms such as Baker Tilly Crowe Clark Whitehill Deloitte RSM Tenon and Saf-fery Champness
Andrew Minifie National Managing Partner at Haines Watts commented ldquoItrsquos great to see Haines Watts win such a prestigious award for the second year in succession This type of award really matters to us because itrsquos voted for by business people and not by an academic panel of expertsrdquo
Andrew added ldquoour core client base is owner managed businesses so to get this endorsement from SME businesses means a great deal to us We are proud
of all of our staff who do an outstanding job for our clients day to day and who have contributed towards us winning this awardrdquo
Michael Izza (Chief Exec ICAEW) presented the excellence award to Andrew Minifie National Managing Partner at Haines Watts
GGI member firm Haines WattsWith over 60 officesaround the UK Audit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningAndrew MinifieE asminifiehwcacomW wwwhwcacom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
GGI INSIDER | No 65 | May 2013
7
The new event hosted by our three Massachusetts member firms Mir-ick orsquoConnell tonneson + co and Shields amp Company was successfully launched The conference drew an at-tendance of over 50 participants and was well represented with members from Asia Europe and North America
Held within walking distance of the GGI North America offices the Devel-oping Leaders Conference introduced GGI to a new generation of young part-ners and partner track professionals The conference programme focused on leadership development and was delivered by the managing partners at our host firms and by tutors from Le-high University
Without a doubt the GGI tradition of blending quality content an elegant locale and event-driven networking was upheld at the welcome reception and dinner at the Tajrsquos rooftop lounge overlooking Boston Common
The keynote speaker was Dick Brandt the Chairman of the Iacocca Institute at Lehigh University He delivered a fasci-nating dichotomy contrasting a leader with a manager Following his lecture a video of Lee Iacocca speaking on the 9 Crsquos of leadership was shown to del-egates Forming a panel David Sur-prenant from Mirick orsquoConnell Rick Mastrocola from tonneson + co and Tom Shields from Shields amp Company presented on building a high value net-work A further panel discussion with Mr Surprenant Mr Mastrocola and Mr Shields followed focusing on work-life balance and questions submitted by the audience The first day concluded with
Carol Ham and Adam Crowson Ms Ham highlighted Lehigh Universityrsquos internship programme and the chal-lenges of working abroad and Mr Crow-son put the spotlight on developing leaders through our partnership with Lehigh Universityrsquos ldquoGlobal Village on the Moverdquo programme
The second day was no less stimu-lating with Peter Johnson presenting on business development strategies and lessons that can be learnt from in-terviews with his client firms and their clients The culmination of the event was a panel of all presenters discuss-ing ethics in business scenarios from next page
GGI North AmericanDeveloping LeadersConference Boston MA USA
2-4 May 2013
Audience
Dick Brandt
8
Content
REVIEW GGI EVENTS
GGI North AmericanRegional Conference San Francisco CA USA
09-12 May 2013
12 May marked the successful con-clusion of the third North American Regional Conference at the Grand Hy-att Hotel located in the heart of Union Square San Francisco CA over 130 participants took part in this yearrsquos program from all of the various re-gions of GGI
The Welcome Reception amp Dinner was staged on the 36th floor of the Grand Hyatt with a breathtaking view of the San Francisco Bay at sunset al-lowing participants to reconnect with old friends and forge new relation-ships
Keynote speaker David Goldsmith
author of lsquoPaid To Thinkrsquo (refer to page 23 for the book review) opened the morning with an engaging presenta-tion which challenged the audience on ways to redefine leadership and implement forward strategic thinking
The North American winner of the Global Village on the Move scholarship
their own experiences and challeng-ing choices they have made in the past The interesting day ended with a fabulous dinner at the warm modern Post 390 tavern
New to GGI the North America De-veloping Leaders Conference aims to fa-cilitate the whole-firm approach of GGI Also new is the GGI Institute the edu-cational arm of GGI which is dedicated to the development of professionals
The next North American Develop-ing Leaders event will take place in his-toric Philadelphia hosted by member firms Drucker amp Scaccetti and Smart
Devine This event will include a paral-lel meeting of managing partners and executive directors discussing best
practice GGI members can enquire about registration at wwwggicom (Member loginEvents)
Panel Discussion from left to right David Surprenant Rick Mastrocola Tom Shields
Networking Friday evening
GGI INSIDER | No 65 | May 2013
9
Tour of the Napa Valley
Raven Akram of Sandberg Phoenix amp Von Gontard was announced and participants had a chance to briefly hear from her
Mr Kim Moody of Moodyrsquos Tax Advi-sors one of the foremost opinions on tax in Canada offered insight into the various tax structures opportunities and potential pitfalls of doing business in Canada To everyonersquos delight he also took the time to dispel many amus-ing misconceptions regarding Canada and their citizens
Host firm Rowbotham amp Co invited the distinguished Federal Prosecutor Joseph Fazioli from the US Depart-ment of Justice who gave participants an overview of white-collar crimes in-vestigation over lunch
Practice Groups and Workshops gave participants the opportunity to connect in smaller groups to discuss industry and practice specific chal-lenges and to share best practices and personal experiences
The social highlight of the program was a tour of the beautiful Napa win-ery Rutherford Hill where participants continued to strengthen personal rela-tionships over fine wines and a fun memorable dinner within the wineryrsquos handsomely adorned cellarcave
Workshop
From left to right Claudio G Cocca David Goldsmith Michael Reiss von Filski Adam Crowson
10
Content
NEW MEMBER FIRMS
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
WolfgangRossbacher
AntonioCastilla
MamukaMardaleishvili
Rossbacher Kohlfuumlrst amp PartnerWirtschaftspruumlfung undSteuerberatung GmbHSt Veiter Ring 1A9020 Klagenfurt am WoumlrtherseeAustria
T +43 463 575 5822F +43 463 575 5811E wpofficerkpcoat W wwwrkpcoat
Company languages German English ItalianContact persons Wolfgang Ross-bacher wrossbacherrkpcoat Paola Strozzi pstrozzirkpcoatServices Audit amp Accounting Tax
Grupo Acender LtdaCoronel Pereira 72 6th and 11th floorLas Condes SantiagoChile
T +56 2 912 00 00E acenderchileacendercomW wwwacendercom
Company languages Spanish EnglishContact persons Antonio Cas-tilla antoniocastillaacendercl Ricardo Corral ricardocorralacenderclServices Tax Advisory Corporate Finance
TMC LLC47 Belinski StreetTbilisiGeorgia
T +995 32 293 37 72F +995 32 293 37 72E infotmcgeorgiacomW wwwtmcgeorgiacom
Company languages Georgian English RussianContact persons Mamuka Marda-leishvili mamukatmcgeorgia com Levan Agladze levan tmcgeorgiacomServices Audit amp Accounting Tax Advisory
Austria Chile Georgia
PaolaStrozzi
RicardoCorral
GGI INSIDER | No 65 | May 2013
11
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
ClaudiaMattig
Jeffrey AFord
Treuhand- undRevisionsgesellschaftMattig-Suter amp PartnerBahnhofstrasse 286430 SchwyzSwitzerland
T +41 41 819 54 00F +41 41 819 54 01E claudiamattigmattigchW wwwmattigch
Company languages English Ger-man French Slovak Romanian Bulgarian Portuguese Italian and SpanishContact person Claudia Mattig claudiamattigmattigchServices Audit amp Accounting Tax Advisory Legal services Corpo-rate Finance
Grossman Yanak amp Ford LLPThree Gateway Center Suite 1800Pittsburgh PA 15222United States
T +1 412 338 41 00F +1 412 338 93 05E fordgyfcomW wwwgyfcom Company language EnglishContact person Jeffrey A Ford fordgyfcomServices Audit amp Accounting Tax Advisory
Switzerland United States
Searchingfor GGI
member firmsall over the
world
Visit ggicom
12
Content
In cooperation with the Iacocca In-stitute office of International Affairs at Lehigh University Pennsylvania USA GGI sponsors five candidates from GGI member firms to participate in the highly acclaimed leadership programme Global Village on the Move (GVotM) Shanghai 2013 With diversity in mind one candidate was selected from each of GGIrsquos five geo-graphical regions
The application process focused on examining the candidatersquos work ex-perience skills personal values and motivation as well as identifying the benefits the candidate hoped to derive
by attending and contributing to the programme
A very pleasing number of appli-cations were received The selection process was conducted by the GGI Ex-ecutive Management and the GGI Ex-ecutive Committee It was an extreme-ly difficult task to choose only five candidates as all applicants boasted outstanding qualifications both pro-fessionally and personally
GGI would like to thank all entrants as well as their respective firms for participating in this initiative Con-gratulations to the five successful can-didates
GGI announces the five winnersto be sponsored
GGI INTERNAL NEWS
Global Village on the Move Shanghai 2013
GVotM 2013 will take place in Shanghai
North America Raven Akram Sandberg PhoenixSaint Louis United States Latin America amp The Caribbean Chafick MahauadoHMampCo Guayaquil Ecuador Europe Jelena Mihic MunjicMDM Revizija Beograd Serbia Middle East Africa Ahmed GhattourAhmed Ghattour amp CoTripoli Lybia Asia-Pacific Botirkhon GanikhodjaevTSIAR-FINANSTashkent Uzbekistan
The winners
GGI INSIDER | No 65 | May 2013
13
GGI member firmHaines Watts wins excellence award for second year
GGI Accountancy member firm Haines Watts is celebrating success having won Auditor of the Year in the SME category for a second time at the annual FDs Excellence Awards
The awards recognise the service pro-viders that support Britainrsquos finance com-munity using the results of an annual survey in which 1380 FDs and financial decision-makers recorded their opinion
The prestigious awards ceremony was held in Grosvenor Square London and hosted by Real Business in association with the Institute of Chartered Accoun-tants in England and Wales (ICAEW) and supported by the Confederation of British Industry (CBI)
Haines Watts won the award last year and beat competition from other UK firms such as Baker Tilly Crowe Clark Whitehill Deloitte RSM Tenon and Saf-fery Champness
Andrew Minifie National Managing Partner at Haines Watts commented ldquoItrsquos great to see Haines Watts win such a prestigious award for the second year in succession This type of award really matters to us because itrsquos voted for by business people and not by an academic panel of expertsrdquo
Andrew added ldquoour core client base is owner managed businesses so to get this endorsement from SME businesses means a great deal to us We are proud
of all of our staff who do an outstanding job for our clients day to day and who have contributed towards us winning this awardrdquo
Michael Izza (Chief Exec ICAEW) presented the excellence award to Andrew Minifie National Managing Partner at Haines Watts
GGI member firm Haines WattsWith over 60 officesaround the UK Audit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningAndrew MinifieE asminifiehwcacomW wwwhwcacom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
8
Content
REVIEW GGI EVENTS
GGI North AmericanRegional Conference San Francisco CA USA
09-12 May 2013
12 May marked the successful con-clusion of the third North American Regional Conference at the Grand Hy-att Hotel located in the heart of Union Square San Francisco CA over 130 participants took part in this yearrsquos program from all of the various re-gions of GGI
The Welcome Reception amp Dinner was staged on the 36th floor of the Grand Hyatt with a breathtaking view of the San Francisco Bay at sunset al-lowing participants to reconnect with old friends and forge new relation-ships
Keynote speaker David Goldsmith
author of lsquoPaid To Thinkrsquo (refer to page 23 for the book review) opened the morning with an engaging presenta-tion which challenged the audience on ways to redefine leadership and implement forward strategic thinking
The North American winner of the Global Village on the Move scholarship
their own experiences and challeng-ing choices they have made in the past The interesting day ended with a fabulous dinner at the warm modern Post 390 tavern
New to GGI the North America De-veloping Leaders Conference aims to fa-cilitate the whole-firm approach of GGI Also new is the GGI Institute the edu-cational arm of GGI which is dedicated to the development of professionals
The next North American Develop-ing Leaders event will take place in his-toric Philadelphia hosted by member firms Drucker amp Scaccetti and Smart
Devine This event will include a paral-lel meeting of managing partners and executive directors discussing best
practice GGI members can enquire about registration at wwwggicom (Member loginEvents)
Panel Discussion from left to right David Surprenant Rick Mastrocola Tom Shields
Networking Friday evening
GGI INSIDER | No 65 | May 2013
9
Tour of the Napa Valley
Raven Akram of Sandberg Phoenix amp Von Gontard was announced and participants had a chance to briefly hear from her
Mr Kim Moody of Moodyrsquos Tax Advi-sors one of the foremost opinions on tax in Canada offered insight into the various tax structures opportunities and potential pitfalls of doing business in Canada To everyonersquos delight he also took the time to dispel many amus-ing misconceptions regarding Canada and their citizens
Host firm Rowbotham amp Co invited the distinguished Federal Prosecutor Joseph Fazioli from the US Depart-ment of Justice who gave participants an overview of white-collar crimes in-vestigation over lunch
Practice Groups and Workshops gave participants the opportunity to connect in smaller groups to discuss industry and practice specific chal-lenges and to share best practices and personal experiences
The social highlight of the program was a tour of the beautiful Napa win-ery Rutherford Hill where participants continued to strengthen personal rela-tionships over fine wines and a fun memorable dinner within the wineryrsquos handsomely adorned cellarcave
Workshop
From left to right Claudio G Cocca David Goldsmith Michael Reiss von Filski Adam Crowson
10
Content
NEW MEMBER FIRMS
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
WolfgangRossbacher
AntonioCastilla
MamukaMardaleishvili
Rossbacher Kohlfuumlrst amp PartnerWirtschaftspruumlfung undSteuerberatung GmbHSt Veiter Ring 1A9020 Klagenfurt am WoumlrtherseeAustria
T +43 463 575 5822F +43 463 575 5811E wpofficerkpcoat W wwwrkpcoat
Company languages German English ItalianContact persons Wolfgang Ross-bacher wrossbacherrkpcoat Paola Strozzi pstrozzirkpcoatServices Audit amp Accounting Tax
Grupo Acender LtdaCoronel Pereira 72 6th and 11th floorLas Condes SantiagoChile
T +56 2 912 00 00E acenderchileacendercomW wwwacendercom
Company languages Spanish EnglishContact persons Antonio Cas-tilla antoniocastillaacendercl Ricardo Corral ricardocorralacenderclServices Tax Advisory Corporate Finance
TMC LLC47 Belinski StreetTbilisiGeorgia
T +995 32 293 37 72F +995 32 293 37 72E infotmcgeorgiacomW wwwtmcgeorgiacom
Company languages Georgian English RussianContact persons Mamuka Marda-leishvili mamukatmcgeorgia com Levan Agladze levan tmcgeorgiacomServices Audit amp Accounting Tax Advisory
Austria Chile Georgia
PaolaStrozzi
RicardoCorral
GGI INSIDER | No 65 | May 2013
11
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
ClaudiaMattig
Jeffrey AFord
Treuhand- undRevisionsgesellschaftMattig-Suter amp PartnerBahnhofstrasse 286430 SchwyzSwitzerland
T +41 41 819 54 00F +41 41 819 54 01E claudiamattigmattigchW wwwmattigch
Company languages English Ger-man French Slovak Romanian Bulgarian Portuguese Italian and SpanishContact person Claudia Mattig claudiamattigmattigchServices Audit amp Accounting Tax Advisory Legal services Corpo-rate Finance
Grossman Yanak amp Ford LLPThree Gateway Center Suite 1800Pittsburgh PA 15222United States
T +1 412 338 41 00F +1 412 338 93 05E fordgyfcomW wwwgyfcom Company language EnglishContact person Jeffrey A Ford fordgyfcomServices Audit amp Accounting Tax Advisory
Switzerland United States
Searchingfor GGI
member firmsall over the
world
Visit ggicom
12
Content
In cooperation with the Iacocca In-stitute office of International Affairs at Lehigh University Pennsylvania USA GGI sponsors five candidates from GGI member firms to participate in the highly acclaimed leadership programme Global Village on the Move (GVotM) Shanghai 2013 With diversity in mind one candidate was selected from each of GGIrsquos five geo-graphical regions
The application process focused on examining the candidatersquos work ex-perience skills personal values and motivation as well as identifying the benefits the candidate hoped to derive
by attending and contributing to the programme
A very pleasing number of appli-cations were received The selection process was conducted by the GGI Ex-ecutive Management and the GGI Ex-ecutive Committee It was an extreme-ly difficult task to choose only five candidates as all applicants boasted outstanding qualifications both pro-fessionally and personally
GGI would like to thank all entrants as well as their respective firms for participating in this initiative Con-gratulations to the five successful can-didates
GGI announces the five winnersto be sponsored
GGI INTERNAL NEWS
Global Village on the Move Shanghai 2013
GVotM 2013 will take place in Shanghai
North America Raven Akram Sandberg PhoenixSaint Louis United States Latin America amp The Caribbean Chafick MahauadoHMampCo Guayaquil Ecuador Europe Jelena Mihic MunjicMDM Revizija Beograd Serbia Middle East Africa Ahmed GhattourAhmed Ghattour amp CoTripoli Lybia Asia-Pacific Botirkhon GanikhodjaevTSIAR-FINANSTashkent Uzbekistan
The winners
GGI INSIDER | No 65 | May 2013
13
GGI member firmHaines Watts wins excellence award for second year
GGI Accountancy member firm Haines Watts is celebrating success having won Auditor of the Year in the SME category for a second time at the annual FDs Excellence Awards
The awards recognise the service pro-viders that support Britainrsquos finance com-munity using the results of an annual survey in which 1380 FDs and financial decision-makers recorded their opinion
The prestigious awards ceremony was held in Grosvenor Square London and hosted by Real Business in association with the Institute of Chartered Accoun-tants in England and Wales (ICAEW) and supported by the Confederation of British Industry (CBI)
Haines Watts won the award last year and beat competition from other UK firms such as Baker Tilly Crowe Clark Whitehill Deloitte RSM Tenon and Saf-fery Champness
Andrew Minifie National Managing Partner at Haines Watts commented ldquoItrsquos great to see Haines Watts win such a prestigious award for the second year in succession This type of award really matters to us because itrsquos voted for by business people and not by an academic panel of expertsrdquo
Andrew added ldquoour core client base is owner managed businesses so to get this endorsement from SME businesses means a great deal to us We are proud
of all of our staff who do an outstanding job for our clients day to day and who have contributed towards us winning this awardrdquo
Michael Izza (Chief Exec ICAEW) presented the excellence award to Andrew Minifie National Managing Partner at Haines Watts
GGI member firm Haines WattsWith over 60 officesaround the UK Audit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningAndrew MinifieE asminifiehwcacomW wwwhwcacom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
GGI INSIDER | No 65 | May 2013
9
Tour of the Napa Valley
Raven Akram of Sandberg Phoenix amp Von Gontard was announced and participants had a chance to briefly hear from her
Mr Kim Moody of Moodyrsquos Tax Advi-sors one of the foremost opinions on tax in Canada offered insight into the various tax structures opportunities and potential pitfalls of doing business in Canada To everyonersquos delight he also took the time to dispel many amus-ing misconceptions regarding Canada and their citizens
Host firm Rowbotham amp Co invited the distinguished Federal Prosecutor Joseph Fazioli from the US Depart-ment of Justice who gave participants an overview of white-collar crimes in-vestigation over lunch
Practice Groups and Workshops gave participants the opportunity to connect in smaller groups to discuss industry and practice specific chal-lenges and to share best practices and personal experiences
The social highlight of the program was a tour of the beautiful Napa win-ery Rutherford Hill where participants continued to strengthen personal rela-tionships over fine wines and a fun memorable dinner within the wineryrsquos handsomely adorned cellarcave
Workshop
From left to right Claudio G Cocca David Goldsmith Michael Reiss von Filski Adam Crowson
10
Content
NEW MEMBER FIRMS
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
WolfgangRossbacher
AntonioCastilla
MamukaMardaleishvili
Rossbacher Kohlfuumlrst amp PartnerWirtschaftspruumlfung undSteuerberatung GmbHSt Veiter Ring 1A9020 Klagenfurt am WoumlrtherseeAustria
T +43 463 575 5822F +43 463 575 5811E wpofficerkpcoat W wwwrkpcoat
Company languages German English ItalianContact persons Wolfgang Ross-bacher wrossbacherrkpcoat Paola Strozzi pstrozzirkpcoatServices Audit amp Accounting Tax
Grupo Acender LtdaCoronel Pereira 72 6th and 11th floorLas Condes SantiagoChile
T +56 2 912 00 00E acenderchileacendercomW wwwacendercom
Company languages Spanish EnglishContact persons Antonio Cas-tilla antoniocastillaacendercl Ricardo Corral ricardocorralacenderclServices Tax Advisory Corporate Finance
TMC LLC47 Belinski StreetTbilisiGeorgia
T +995 32 293 37 72F +995 32 293 37 72E infotmcgeorgiacomW wwwtmcgeorgiacom
Company languages Georgian English RussianContact persons Mamuka Marda-leishvili mamukatmcgeorgia com Levan Agladze levan tmcgeorgiacomServices Audit amp Accounting Tax Advisory
Austria Chile Georgia
PaolaStrozzi
RicardoCorral
GGI INSIDER | No 65 | May 2013
11
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
ClaudiaMattig
Jeffrey AFord
Treuhand- undRevisionsgesellschaftMattig-Suter amp PartnerBahnhofstrasse 286430 SchwyzSwitzerland
T +41 41 819 54 00F +41 41 819 54 01E claudiamattigmattigchW wwwmattigch
Company languages English Ger-man French Slovak Romanian Bulgarian Portuguese Italian and SpanishContact person Claudia Mattig claudiamattigmattigchServices Audit amp Accounting Tax Advisory Legal services Corpo-rate Finance
Grossman Yanak amp Ford LLPThree Gateway Center Suite 1800Pittsburgh PA 15222United States
T +1 412 338 41 00F +1 412 338 93 05E fordgyfcomW wwwgyfcom Company language EnglishContact person Jeffrey A Ford fordgyfcomServices Audit amp Accounting Tax Advisory
Switzerland United States
Searchingfor GGI
member firmsall over the
world
Visit ggicom
12
Content
In cooperation with the Iacocca In-stitute office of International Affairs at Lehigh University Pennsylvania USA GGI sponsors five candidates from GGI member firms to participate in the highly acclaimed leadership programme Global Village on the Move (GVotM) Shanghai 2013 With diversity in mind one candidate was selected from each of GGIrsquos five geo-graphical regions
The application process focused on examining the candidatersquos work ex-perience skills personal values and motivation as well as identifying the benefits the candidate hoped to derive
by attending and contributing to the programme
A very pleasing number of appli-cations were received The selection process was conducted by the GGI Ex-ecutive Management and the GGI Ex-ecutive Committee It was an extreme-ly difficult task to choose only five candidates as all applicants boasted outstanding qualifications both pro-fessionally and personally
GGI would like to thank all entrants as well as their respective firms for participating in this initiative Con-gratulations to the five successful can-didates
GGI announces the five winnersto be sponsored
GGI INTERNAL NEWS
Global Village on the Move Shanghai 2013
GVotM 2013 will take place in Shanghai
North America Raven Akram Sandberg PhoenixSaint Louis United States Latin America amp The Caribbean Chafick MahauadoHMampCo Guayaquil Ecuador Europe Jelena Mihic MunjicMDM Revizija Beograd Serbia Middle East Africa Ahmed GhattourAhmed Ghattour amp CoTripoli Lybia Asia-Pacific Botirkhon GanikhodjaevTSIAR-FINANSTashkent Uzbekistan
The winners
GGI INSIDER | No 65 | May 2013
13
GGI member firmHaines Watts wins excellence award for second year
GGI Accountancy member firm Haines Watts is celebrating success having won Auditor of the Year in the SME category for a second time at the annual FDs Excellence Awards
The awards recognise the service pro-viders that support Britainrsquos finance com-munity using the results of an annual survey in which 1380 FDs and financial decision-makers recorded their opinion
The prestigious awards ceremony was held in Grosvenor Square London and hosted by Real Business in association with the Institute of Chartered Accoun-tants in England and Wales (ICAEW) and supported by the Confederation of British Industry (CBI)
Haines Watts won the award last year and beat competition from other UK firms such as Baker Tilly Crowe Clark Whitehill Deloitte RSM Tenon and Saf-fery Champness
Andrew Minifie National Managing Partner at Haines Watts commented ldquoItrsquos great to see Haines Watts win such a prestigious award for the second year in succession This type of award really matters to us because itrsquos voted for by business people and not by an academic panel of expertsrdquo
Andrew added ldquoour core client base is owner managed businesses so to get this endorsement from SME businesses means a great deal to us We are proud
of all of our staff who do an outstanding job for our clients day to day and who have contributed towards us winning this awardrdquo
Michael Izza (Chief Exec ICAEW) presented the excellence award to Andrew Minifie National Managing Partner at Haines Watts
GGI member firm Haines WattsWith over 60 officesaround the UK Audit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningAndrew MinifieE asminifiehwcacomW wwwhwcacom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
10
Content
NEW MEMBER FIRMS
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
WolfgangRossbacher
AntonioCastilla
MamukaMardaleishvili
Rossbacher Kohlfuumlrst amp PartnerWirtschaftspruumlfung undSteuerberatung GmbHSt Veiter Ring 1A9020 Klagenfurt am WoumlrtherseeAustria
T +43 463 575 5822F +43 463 575 5811E wpofficerkpcoat W wwwrkpcoat
Company languages German English ItalianContact persons Wolfgang Ross-bacher wrossbacherrkpcoat Paola Strozzi pstrozzirkpcoatServices Audit amp Accounting Tax
Grupo Acender LtdaCoronel Pereira 72 6th and 11th floorLas Condes SantiagoChile
T +56 2 912 00 00E acenderchileacendercomW wwwacendercom
Company languages Spanish EnglishContact persons Antonio Cas-tilla antoniocastillaacendercl Ricardo Corral ricardocorralacenderclServices Tax Advisory Corporate Finance
TMC LLC47 Belinski StreetTbilisiGeorgia
T +995 32 293 37 72F +995 32 293 37 72E infotmcgeorgiacomW wwwtmcgeorgiacom
Company languages Georgian English RussianContact persons Mamuka Marda-leishvili mamukatmcgeorgia com Levan Agladze levan tmcgeorgiacomServices Audit amp Accounting Tax Advisory
Austria Chile Georgia
PaolaStrozzi
RicardoCorral
GGI INSIDER | No 65 | May 2013
11
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
ClaudiaMattig
Jeffrey AFord
Treuhand- undRevisionsgesellschaftMattig-Suter amp PartnerBahnhofstrasse 286430 SchwyzSwitzerland
T +41 41 819 54 00F +41 41 819 54 01E claudiamattigmattigchW wwwmattigch
Company languages English Ger-man French Slovak Romanian Bulgarian Portuguese Italian and SpanishContact person Claudia Mattig claudiamattigmattigchServices Audit amp Accounting Tax Advisory Legal services Corpo-rate Finance
Grossman Yanak amp Ford LLPThree Gateway Center Suite 1800Pittsburgh PA 15222United States
T +1 412 338 41 00F +1 412 338 93 05E fordgyfcomW wwwgyfcom Company language EnglishContact person Jeffrey A Ford fordgyfcomServices Audit amp Accounting Tax Advisory
Switzerland United States
Searchingfor GGI
member firmsall over the
world
Visit ggicom
12
Content
In cooperation with the Iacocca In-stitute office of International Affairs at Lehigh University Pennsylvania USA GGI sponsors five candidates from GGI member firms to participate in the highly acclaimed leadership programme Global Village on the Move (GVotM) Shanghai 2013 With diversity in mind one candidate was selected from each of GGIrsquos five geo-graphical regions
The application process focused on examining the candidatersquos work ex-perience skills personal values and motivation as well as identifying the benefits the candidate hoped to derive
by attending and contributing to the programme
A very pleasing number of appli-cations were received The selection process was conducted by the GGI Ex-ecutive Management and the GGI Ex-ecutive Committee It was an extreme-ly difficult task to choose only five candidates as all applicants boasted outstanding qualifications both pro-fessionally and personally
GGI would like to thank all entrants as well as their respective firms for participating in this initiative Con-gratulations to the five successful can-didates
GGI announces the five winnersto be sponsored
GGI INTERNAL NEWS
Global Village on the Move Shanghai 2013
GVotM 2013 will take place in Shanghai
North America Raven Akram Sandberg PhoenixSaint Louis United States Latin America amp The Caribbean Chafick MahauadoHMampCo Guayaquil Ecuador Europe Jelena Mihic MunjicMDM Revizija Beograd Serbia Middle East Africa Ahmed GhattourAhmed Ghattour amp CoTripoli Lybia Asia-Pacific Botirkhon GanikhodjaevTSIAR-FINANSTashkent Uzbekistan
The winners
GGI INSIDER | No 65 | May 2013
13
GGI member firmHaines Watts wins excellence award for second year
GGI Accountancy member firm Haines Watts is celebrating success having won Auditor of the Year in the SME category for a second time at the annual FDs Excellence Awards
The awards recognise the service pro-viders that support Britainrsquos finance com-munity using the results of an annual survey in which 1380 FDs and financial decision-makers recorded their opinion
The prestigious awards ceremony was held in Grosvenor Square London and hosted by Real Business in association with the Institute of Chartered Accoun-tants in England and Wales (ICAEW) and supported by the Confederation of British Industry (CBI)
Haines Watts won the award last year and beat competition from other UK firms such as Baker Tilly Crowe Clark Whitehill Deloitte RSM Tenon and Saf-fery Champness
Andrew Minifie National Managing Partner at Haines Watts commented ldquoItrsquos great to see Haines Watts win such a prestigious award for the second year in succession This type of award really matters to us because itrsquos voted for by business people and not by an academic panel of expertsrdquo
Andrew added ldquoour core client base is owner managed businesses so to get this endorsement from SME businesses means a great deal to us We are proud
of all of our staff who do an outstanding job for our clients day to day and who have contributed towards us winning this awardrdquo
Michael Izza (Chief Exec ICAEW) presented the excellence award to Andrew Minifie National Managing Partner at Haines Watts
GGI member firm Haines WattsWith over 60 officesaround the UK Audit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningAndrew MinifieE asminifiehwcacomW wwwhwcacom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
GGI INSIDER | No 65 | May 2013
11
WE WISH TO ExTEND A VERY WARM WELCOME TO OUR NEW DISTINGUISHED MEMBERS
ClaudiaMattig
Jeffrey AFord
Treuhand- undRevisionsgesellschaftMattig-Suter amp PartnerBahnhofstrasse 286430 SchwyzSwitzerland
T +41 41 819 54 00F +41 41 819 54 01E claudiamattigmattigchW wwwmattigch
Company languages English Ger-man French Slovak Romanian Bulgarian Portuguese Italian and SpanishContact person Claudia Mattig claudiamattigmattigchServices Audit amp Accounting Tax Advisory Legal services Corpo-rate Finance
Grossman Yanak amp Ford LLPThree Gateway Center Suite 1800Pittsburgh PA 15222United States
T +1 412 338 41 00F +1 412 338 93 05E fordgyfcomW wwwgyfcom Company language EnglishContact person Jeffrey A Ford fordgyfcomServices Audit amp Accounting Tax Advisory
Switzerland United States
Searchingfor GGI
member firmsall over the
world
Visit ggicom
12
Content
In cooperation with the Iacocca In-stitute office of International Affairs at Lehigh University Pennsylvania USA GGI sponsors five candidates from GGI member firms to participate in the highly acclaimed leadership programme Global Village on the Move (GVotM) Shanghai 2013 With diversity in mind one candidate was selected from each of GGIrsquos five geo-graphical regions
The application process focused on examining the candidatersquos work ex-perience skills personal values and motivation as well as identifying the benefits the candidate hoped to derive
by attending and contributing to the programme
A very pleasing number of appli-cations were received The selection process was conducted by the GGI Ex-ecutive Management and the GGI Ex-ecutive Committee It was an extreme-ly difficult task to choose only five candidates as all applicants boasted outstanding qualifications both pro-fessionally and personally
GGI would like to thank all entrants as well as their respective firms for participating in this initiative Con-gratulations to the five successful can-didates
GGI announces the five winnersto be sponsored
GGI INTERNAL NEWS
Global Village on the Move Shanghai 2013
GVotM 2013 will take place in Shanghai
North America Raven Akram Sandberg PhoenixSaint Louis United States Latin America amp The Caribbean Chafick MahauadoHMampCo Guayaquil Ecuador Europe Jelena Mihic MunjicMDM Revizija Beograd Serbia Middle East Africa Ahmed GhattourAhmed Ghattour amp CoTripoli Lybia Asia-Pacific Botirkhon GanikhodjaevTSIAR-FINANSTashkent Uzbekistan
The winners
GGI INSIDER | No 65 | May 2013
13
GGI member firmHaines Watts wins excellence award for second year
GGI Accountancy member firm Haines Watts is celebrating success having won Auditor of the Year in the SME category for a second time at the annual FDs Excellence Awards
The awards recognise the service pro-viders that support Britainrsquos finance com-munity using the results of an annual survey in which 1380 FDs and financial decision-makers recorded their opinion
The prestigious awards ceremony was held in Grosvenor Square London and hosted by Real Business in association with the Institute of Chartered Accoun-tants in England and Wales (ICAEW) and supported by the Confederation of British Industry (CBI)
Haines Watts won the award last year and beat competition from other UK firms such as Baker Tilly Crowe Clark Whitehill Deloitte RSM Tenon and Saf-fery Champness
Andrew Minifie National Managing Partner at Haines Watts commented ldquoItrsquos great to see Haines Watts win such a prestigious award for the second year in succession This type of award really matters to us because itrsquos voted for by business people and not by an academic panel of expertsrdquo
Andrew added ldquoour core client base is owner managed businesses so to get this endorsement from SME businesses means a great deal to us We are proud
of all of our staff who do an outstanding job for our clients day to day and who have contributed towards us winning this awardrdquo
Michael Izza (Chief Exec ICAEW) presented the excellence award to Andrew Minifie National Managing Partner at Haines Watts
GGI member firm Haines WattsWith over 60 officesaround the UK Audit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningAndrew MinifieE asminifiehwcacomW wwwhwcacom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
12
Content
In cooperation with the Iacocca In-stitute office of International Affairs at Lehigh University Pennsylvania USA GGI sponsors five candidates from GGI member firms to participate in the highly acclaimed leadership programme Global Village on the Move (GVotM) Shanghai 2013 With diversity in mind one candidate was selected from each of GGIrsquos five geo-graphical regions
The application process focused on examining the candidatersquos work ex-perience skills personal values and motivation as well as identifying the benefits the candidate hoped to derive
by attending and contributing to the programme
A very pleasing number of appli-cations were received The selection process was conducted by the GGI Ex-ecutive Management and the GGI Ex-ecutive Committee It was an extreme-ly difficult task to choose only five candidates as all applicants boasted outstanding qualifications both pro-fessionally and personally
GGI would like to thank all entrants as well as their respective firms for participating in this initiative Con-gratulations to the five successful can-didates
GGI announces the five winnersto be sponsored
GGI INTERNAL NEWS
Global Village on the Move Shanghai 2013
GVotM 2013 will take place in Shanghai
North America Raven Akram Sandberg PhoenixSaint Louis United States Latin America amp The Caribbean Chafick MahauadoHMampCo Guayaquil Ecuador Europe Jelena Mihic MunjicMDM Revizija Beograd Serbia Middle East Africa Ahmed GhattourAhmed Ghattour amp CoTripoli Lybia Asia-Pacific Botirkhon GanikhodjaevTSIAR-FINANSTashkent Uzbekistan
The winners
GGI INSIDER | No 65 | May 2013
13
GGI member firmHaines Watts wins excellence award for second year
GGI Accountancy member firm Haines Watts is celebrating success having won Auditor of the Year in the SME category for a second time at the annual FDs Excellence Awards
The awards recognise the service pro-viders that support Britainrsquos finance com-munity using the results of an annual survey in which 1380 FDs and financial decision-makers recorded their opinion
The prestigious awards ceremony was held in Grosvenor Square London and hosted by Real Business in association with the Institute of Chartered Accoun-tants in England and Wales (ICAEW) and supported by the Confederation of British Industry (CBI)
Haines Watts won the award last year and beat competition from other UK firms such as Baker Tilly Crowe Clark Whitehill Deloitte RSM Tenon and Saf-fery Champness
Andrew Minifie National Managing Partner at Haines Watts commented ldquoItrsquos great to see Haines Watts win such a prestigious award for the second year in succession This type of award really matters to us because itrsquos voted for by business people and not by an academic panel of expertsrdquo
Andrew added ldquoour core client base is owner managed businesses so to get this endorsement from SME businesses means a great deal to us We are proud
of all of our staff who do an outstanding job for our clients day to day and who have contributed towards us winning this awardrdquo
Michael Izza (Chief Exec ICAEW) presented the excellence award to Andrew Minifie National Managing Partner at Haines Watts
GGI member firm Haines WattsWith over 60 officesaround the UK Audit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningAndrew MinifieE asminifiehwcacomW wwwhwcacom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
GGI INSIDER | No 65 | May 2013
13
GGI member firmHaines Watts wins excellence award for second year
GGI Accountancy member firm Haines Watts is celebrating success having won Auditor of the Year in the SME category for a second time at the annual FDs Excellence Awards
The awards recognise the service pro-viders that support Britainrsquos finance com-munity using the results of an annual survey in which 1380 FDs and financial decision-makers recorded their opinion
The prestigious awards ceremony was held in Grosvenor Square London and hosted by Real Business in association with the Institute of Chartered Accoun-tants in England and Wales (ICAEW) and supported by the Confederation of British Industry (CBI)
Haines Watts won the award last year and beat competition from other UK firms such as Baker Tilly Crowe Clark Whitehill Deloitte RSM Tenon and Saf-fery Champness
Andrew Minifie National Managing Partner at Haines Watts commented ldquoItrsquos great to see Haines Watts win such a prestigious award for the second year in succession This type of award really matters to us because itrsquos voted for by business people and not by an academic panel of expertsrdquo
Andrew added ldquoour core client base is owner managed businesses so to get this endorsement from SME businesses means a great deal to us We are proud
of all of our staff who do an outstanding job for our clients day to day and who have contributed towards us winning this awardrdquo
Michael Izza (Chief Exec ICAEW) presented the excellence award to Andrew Minifie National Managing Partner at Haines Watts
GGI member firm Haines WattsWith over 60 officesaround the UK Audit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningAndrew MinifieE asminifiehwcacomW wwwhwcacom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
14
Content
GGI INTERNAL NEWS
GGI member Sarkis Sakr has been elected as President of the Lebanese Tax Society
Sarkis Sakr GGI member firm Sarkis Sakr amp Partners Beirut Leba-non has been elected as President of the Lebanese Tax Society Sarkis is a Lebanese Certified Public Accoun-tant and has wide and unparalleled experience in tax accounting and financial consulting He is widely re-garded as the best tax consultant in Lebanon
Sarkis currently serves as a tax and financial consultant to a num-ber of multinational banks and com-panies Sarkis worked in the Income Tax Department in the Ministry of Finance for 35 years including 8 years as the Head of Income Tax De-partment and 2 years as the Head of the Large Tax Payers Department He was heavily involved in drafting several income tax laws and their implementation guides Sarkis was a member of the Higher Council of Accounting in Lebanon from 1998 to 2008
Sarkis graduated from Lebanese University in Beirut in 1973 with a Bachelor of Business Administra-tion (Accounting and Finance con-centration) Sarkis was a lecturer at the Lebanese University (faculty of
Economics and Business Adminis-tration) from 1978 to 2008 and su-pervised quite a lot of graduate the-ses
Since its inauguration GGI mem-ber firm Sarkis Sakr and Partners has been considered one of the fast growing accounting practices in Lebanon
Its reputation is derived from con-sistently offering timely and insight-
ful advice The office has quickly dis-tinguished itself as a market leader among accounting officesrsquo especial-ly in tax consulting services
Moreover Philippe Moukheiber Partner in GGIrsquos member law firm Abou Jaoude amp Associates has been elected to the Board of the Lebanese Tax Society and as its representative to the Lebanese Government The term of the board is 4 years
Sarkis Sakr
GGI Member firmSarkis Sakr and PartnersAudit amp Accounting Tax Beirut LebanonSarkis SakrE sarkissarkissakrcomW wwwsarkissakrcom
Philippe Moukheiber
GGI member firm Abou Jaoude amp AssociatesLaw FirmBeirut LebanonPhilippe MoukheiberE pmoukheiberajalawfirmcomW wwwajalawfirmcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
GGI INSIDER | No 65 | May 2013
15
GGI member firm Lawrence Grant welcomes new partner
Lawrence Grant Chartered Accoun-tants is very pleased to announce that Ben Korklin sole practitioner has joined as a partner with effect from 1st May
Ben qualified as a Chartered Accoun-tant in 2008 which lead to him starting his own firm in 2010 before joining Law-rence Grant as a partner in 2013
Benrsquos client portfolio consists of UK companies and individuals including sole traders partnerships and limited companies and in particular provides specialist tax business and accountancy knowledge to the media industry and beauty sector
He is very passionate about helping clients grow their business with a spe-
cific focus on development and imple-mentation strategies Away from work Ben enjoys football films and reading as well as spending time with his wife Lyn-sey and daughter Alicia
Ben Korklin
GGI member firm Lawrence GrantChartered AccountantsAudit amp Accounting Tax Advisory Fiduciary amp estate planningLondon UKBen KorklinE benlawrencegrantcoukW wwwlawrencegrantcouk
GGI member firm Yakovlevamp Partners new business contacts in South-East Asia
More than 250 in-house lawyers gathered in Hong Kong for the Asia Pa-cific In-house Counsel Summit which took place from 14 to 15 May The event provided a series of panel-led discus-sions which offered practical and tech-nical advice on key market trends and issues These included capital markets regional regulation issues private eq-uity predictions and how to choose the right venue for dispute resolution
Andrey Yakovlev (founder and Man-aging Partner of the Russian law group
Yakovlev amp Partners) also participated in the summit He conducted a work-shop on the regulation of foreign invest-ments in the Russian economy
In his speech Mr Yakovlev spoke about the ways in which foreign inves-tors can participate in the Russian econ-omy including the following
1) As a branch of a foreign legal entity 2) As a subsidiary (100 participation
of the investor in the charter capital of the company)
3) As a commercial organisation with foreign investments
4) As a public-private partnership
He also reported on restrictions con-cerning foreign investorsrsquo participation in the capital of companies which are of strategic importance and in the capital of insurance companies restrictions on acquisition of land by foreign inves-tors peculiarities concerning taxation in branches of foreign companies cus-toms payments and more next page
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
16
Content
GGI INTERNAL NEWS
Solid US Legal BaseBuilds International Practice
Growing up in the middle Piedmont region of North Carolina Brooks Pierce Wilmington office partner Charles S Baldwin IV did not expect to become an international lawyer The profession he considered most was medicine However a number of his high school friends were from international families that had overseas business interests The Berti family (Italy South America and US) and Tettamanti family (Ar-gentina Germany Spain and US) are examples ldquoBeing around these fami-lies and learning of different interests and opportunities really opened my eyesrdquo said Baldwin ldquoI recall Giancarla Berti asking me how many languages I spoke as she spoke five If Southern counts I spoke twordquo That led Baldwin to study abroad and eventually to law school and the School of International Service at American and Georgetown Universities
Baldwin then credits another fam-ily friend John Stevenson with steer-ing his career Baldwin said ldquoAs a 2L I visited Jack on the porch of his house in the North Carolina moun-tains and told him I was interested in international law Jack had been Man-aging Partner of Sullivan amp Cromwell Acting Legal Advisor at the US State Department a delegate to the Law of the Sea Convention and wrote in the Columbia Law Review one of the de-finitive articles on international law I was honored for the audience with him He said `Forget about interna-tional law You need to become the best well-rounded lawyer you can be International law is based on rules like law generally You need to learn legal principles like contracts real property dispute resolution Second join the best law firm you can They will have many clients and issues If an interna-
tional issue comes up let them know you would like to work on itrsquordquo
Baldwin followed Mr Stevensonrsquos advice and joined a well-respected admiralty law firm in the port city of Wilmington North Carolina Although the firm had long dealt in maritime and Jones Act matters it did not have an in-ternational business practice ldquoWhen an international issue came in it went to merdquo said Baldwin ldquoMy practice grew as clients grew or wanted to pur-sue new opportunities that global com-merce affordsrdquo
Baldwinrsquos practice remains diverse In addition to working with maritime port facilities and port users on in-frastructure and import and export transactions he handles Customs du-ties and investigations US export li-censes trade contracts international distribution and licensing agreements and transportation including freight
Mr Yakovlev also focused on the theme of Russiarsquos entry into the World Trade organization (WTo) and the impact this has had on foreign invest-ment All restrictions on foreign invest-ments are subject to change as a result of Russiarsquos WTo accession Russia is a favourable location in terms of taxes on foreign investment for example the
countryrsquos profit tax for a branch of a for-eign company is only 20
According to the results of negotia-tions and Mr Yakovlevrsquos personal com-munication with the delegates of the summit a number of new business contacts could be established with lead-ing law firms from South Korea Taiwan Hong Kong and the Philippines
The Yakovlev amp Partners law group hopes that the new business ties in the South-East Asia region will be useful for its present and future clients if they decide to conduct business in these new partnersrsquo jurisdictions The con-tacts it established are Romulo (Romu-lo Mabanta Buenaventura Sayoc amp De los Angeles) Kim amp Chang Yangming Partners and Debevoise amp Plimpton LLP Andrey Yakovlev
GGI member firm Yakovlev and Partners Law OfficesLaw FirmMoscow Kirov Nizhny Novgorod Samara Tver Russia Andrey YakovlevE referentmatecruW wwwmatecru
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
GGI INSIDER | No 65 | May 2013
17
forwarding and Federal Maritime Com-mission matters ldquoLearning about a government agency its jurisdiction process and contacts is like adding a tool to the toolbox You must keep growing in the international field to serve your clientsrdquo observed Baldwin Baldwin recently worked on matters involving trade with China Colom-bia Mexico Panama Algeria Libya and Russia among others ldquoWe try to help the client accomplish its business goalsrdquo said Baldwin ldquoProjects where people make money are almost always more fun than trying to unscramble the eggs in dispute resolutionrdquo
However dispute resolution also must be considered in international deals ldquoThe parties are not down the street so you must consider what practical leverage and legal remedies the client will have if things go wrongrdquo observed Baldwin ldquoAlthough the is-sues often are the same as in domestic disputes -- payment and performance -- there is often not an efficient legal remedy in the international arenardquo Baldwin has handled international liti-gations in federal and state courts and arbitrations He co-wrote with David Epstein Director office of Foreign Litigation Civil Division US Depart-ment of Justice INTERNATIoNAL CIVIL DISPUTE RESoLUTIoN A GUIDE To JURISDICTIoN PRACTICE amp STRATEGY (Transnational Publish-
ersMartinus Nijhoff 2010) Based on his experience he also wrote ldquoPro-tecting Confidential and Proprietary Commercial Information in Interna-tional Arbitrationrdquo 31 Tex Intrsquol L J 451 (1996) Noted Baldwin ldquoThere are many strategic decisions to be made in international contract drafting long before a dispute arises You must con-sider choice of law forum discovery enforcement of award etc If a foreign agency is involved you must consider sovereign immunity waivers and act of state issuesrdquo Arbitration clauses are often pitfalls noted Baldwin ldquoThey
are popular but frequently not well-drafted and fail to yield an efficient re-sult Do you really need three arbitra-tors at $45000 or more per hour each or is the dispute of a nature where a single neutral arbitrator would suffice Why did you select an unfamiliar loca-tion or set of rules People often use form clauses that do not address im-portant issues like language ability to add third-parties whether there will be a lengthy reasoned award etcrdquo
Baldwin was delighted to join the Wilmington office of the Brooks Pierce firm in January 2013 ldquoThe firmrsquos inter-national environmental tax securi-ties regulatory and business practices are a great fit for my practice and more importantly for my clientsrsquo goals I fol-lowed Jackrsquos advice to join the best firm I can and to associate with the best lawyers I canrdquo
Charles Baldwin
GGI Member firmBrooks Pierce McLendonHumphrey amp Leonard LLPTax Legal Corporate Finance Fiduciary amp estate planningGreensboro NC Raleigh NC Wilmington NC USACharles S Baldwin IVE cbaldwinbrookspiercecomW wwwbrookspiercecom
GGI COMMON INTEREST
Make the next step theright one for your business
By Allan Farrar
As business owners ponder where they will take their business in the long term many factors come into play in determining which direction will be
right for themAfter perhaps many years spent
growing a business the decision can be daunting and is indeed a critical one owners have many options available to them and depending on their de-
sired outcome a management buy-out (MBo) could be an attractive choice
An MBo involves a group of senior managers acquiring an existing ownersrsquo interest in a company or business
next page
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
18
Content
GGI COMMON INTEREST
Due to the often high purchase price or value of the business the manage-ment group will usually require financial help to buy the business which may be sourced from the private equity sector bank debt or vendor finance
An MBo is a great option for own-ers particularly in the current challeng-ing market conditions with decreased genuine buyers and buyers facing dif-ficulty securing finance Added to this the expected increase in acquisition op-portunities as a flood of ldquobaby-boomerrdquo businesses are put to market will also create a glut of businesses for sale and boost competition for securing genuine buyers
Selling to an established manage-ment team provides owners with confi-dence that the integrity values and rep-utation that they poured so much time effort and money into establishing will be upheld An MBo will also provide se-curity for the businessrsquo employees and overall reduce the risk of failure add-ing further peace of mind to the exiting owner and the purchasers other key benefits include Increased wealth and financial reward
for managersrsquo efforts in the business Confidence for existing owners and
stakeholders that the business is in ldquosafe handsrdquo
Managementrsquos ldquoinside knowledgerdquo reducing the risk of failure post trans-
action The alignment of managementrsquos in-
terests with those of financiers Flexibility for the current owners to
have a staged exit from the business and provide a liquidity event
No need to market the business thus decreasing uncertainty for cus-tomers employees suppliers and other stakeholders and avoiding the need to release confidential informa-tion to competitors
The opportunity for management to take over an established business
with which they are familiar rather than acquiring a competitor or com-mencing on a start-up path and
Reduced transition and integration issues compared to an acquisition by an external party
Effective planning as well as open communication between the owners and managers is critical in the execution of a successful MBo for all parties
Whether it is an MBo trade sale or public listing business owners should be planning for succession as early as possible Early planning will ensure that a business is in its best possible shape to maximise value and its attractiveness to potential acquirers Being prepared is the best way to ensure a successful exit for ownersAllan Farrar
GGI Member firmLawler Chartered AccountantsAudit amp Accounting Tax Advisory Corporate Finance Fiduciary amp estate planningSydney Melbourne Brisbane Newcastle Rockhampton PerthAustraliaAllan FarrarE afarrarlawlercfcomau W wwwlawlercomau
Join theGGI Leadership Forum
20-23 June 2013Eisenberg Austria
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
GGI INSIDER | No 65 | May 2013
19GGI PRACTICE GROUP PAGES
PrivAte eqUity And internAtionAl WeAlth MAnAGeMent
The investorsrsquo dilemmaBy Prof Robert Anthony
Where are we going with our invest-ments Is the crisis over Has the euro reached the end of its life Should we invest in corporate bonds What about precious metals These are just some of the questions regularly asked by many people Private equity and social responsibility in investing ndash these key words sound great but are they really as original as we think
In an age of electronic cigarettes is what we think we know the truth At the risk of causing confusion anyone smok-ing this new fashionable lifestyle acces-sory should perhaps consider that elec-tronic cigarettes have higher nicotine content and it may therefore actually be better to smoke traditional cigarettes Marketing experts cleverly conceal old ideas in new products through differ-ent packaging Can this not also be ap-plied to impact investment activity by singularly focusing on one aspect of an overall investment to justify its worth to mankind
Where does this leave us with regard to the above issues The crisis will end when governments wake up and cut excessive public spending the press will drop its poison pens and investor confidence will be restored We are now seeing a reduction in unemployment in the USA which is a promising sign for recovery The cash mountain increases as the returns on corporate debt are re-duced The European Central Bank once again cut its interest rates Italy finally has a new government All that remains is for France to also take that all impor-tant step of cutting expenditure which extreme pressure from EU member states will hopefully help provoke
The euro has some life left in it yet Germany is in a good financial position and it seems likely Chancellor Merkel will be re-elected The sceptics risk los-
ing money and rightly so The yields of corporate bonds have fallen thereby rousing investors to look for alterna-tives Big cap companies with high yields are becoming attractive As con-fidence in the stock market increases prices there is a greater risk that their yields will shrink Hedging on the down-side with put options is a possibility and could be an interesting solution for the near future Precious metals also pres-ent a fascinating dilemma There is con-stant demand from private investors Given that supply and demand always determine price if economies recover their need will become less crucial out-side of manufacturing It is therefore es-sential that the percentage in a portfolio is carefully managed
Private equity is always interesting provided it is not rushed and sufficiently diversified Investing in several compa-nies with a proven track record and skills in the sector is always wise to mitigate risk Why not join our Practice Group to find out more about the above aspects and help both you and your clients
Where are we going with our investments Information is needed
GGI Member firmAnthony amp CieFiduciary amp estate planning TaxSophia Antipolis FranceProf Robert AnthonyE robertantcocomW wwwantcocom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
20
Content
GGI PRACTICE GROUP PAGES
reAl eStAte
Real Estate Practice Group discuss property prices
By Dr Reinhard Nacke
As in previous years the Real Es-tate Practice Group once again met at the European Conference which was held in Portugal The debate between the ten attendees was extremely ani-mated with the development of prop-erty prices in different countries as the main discussion topic
A study by two Swiss scientists on the subject was presented at the meet-ing This identified a link between high national debt and property prices To summarise the thesis put forward in the study is that property buyers con-sider any specific future costs they
may incur when making their invest-ment decision For example if the property is in an affluent district where tax revenue is in line with spending then prices will remain stable or po-tentially rise if there is uncertainty However if a local district is burdened with high levels of debt potential buy-ers will have to expect outgoings to be higher in future as interest and loan obligations will have to be covered in addition to normal expenses Accord-ing to the study investors will only be willing to take on board these added costs when buying property if the seller makes appropriate concessions on the asking price This particularly
applies to countries that not only levy property tax but also municipal sur-charges based on income tax such as Switzerland
The scientific authors highlight that this price development does not just apply to local authorities but also to countries Those making invest-ments in highly indebted countries should expect prices to remain at a low level until public budgets are con-solidated and the cost burden placed on citizens also returns to normal as demand will continue to be low De-pending on their level of optimism investors may identify this as an op-portunity or a risk However meet-
A study identified a link between high national debt and property prices
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
GGI INSIDER | No 65 | May 2013
21
ing attendees also identified a range of other factors that influence price For some time now there has been a clear international trend of movement from suburbs and surrounding areas into booming cities This appears to be in consequence of cities increas-ingly recognising over the last few de-cades that they need to eliminate the factors that are detrimental to living environments and conversely also en-sure positive features are present in
these areas For example traffic and therefore noise has been significantly reduced in many cities as has air pol-lution caused by vehicle fumes and heating In addition many munici-palities have successfully improved the appearance of urban green spaces and their connections as a result of which it is now quite common to live in a ldquogreen areardquo at the heart of the city
The meeting also explored the ben-efit of appreciating and understand-ing these correlations to lawyers ac-countants tax advisors and corporate consultants Clients expect lawyers to have knowledge of property law and tax advisors to be au fait with property taxation However there is a competi-tive advantage for consultants if they are also able to offer guidance beyond this
To underline the expertise of GGI real estate lawyers in this field the topic of ldquopricesrdquo will be a central fea-ture in the latest issue of FYI a publi-cation targeted directly at clients and potential clients of GGI members
A further key issue under discus-sion at the meeting was how the ac-
tivities of the Practice Group can help to successfully attract new clients The decision was made to investigate whether GGI should attend real estate trade fairs such as MIPIM in Cannes and EXPo Real in Munich to appeal to clients and potential clients To this end a survey will be conducted among GGI members to determine the level of interest among firms in attending such events preferences between EXPo Real and MIPIM and whether interested members would be prepared to cover any reasonable costs incurred as a result
The decision was also made to amend and update the ldquoInternational Real Estate Handbookrdquo published by the Practice Group
Blocking a family memberrsquos involvement in a business
trUSt amp eStAte PlAnninG (teP)
By Sergio Guerrero Rosas
In developed economies just as in emerging markets most companies are born as family businesses How-ever companies or businesses in which a family owns a majority stake often face an unpleasant reality In fact the probability that they will prosper in the long term is low given that according
to statistical data only 5 continue to generate value for the shareholders af-ter the third generation
one of the risks faced by these com-panies arises from the fact that the generations succeeding the founder do not always inherit the same leader-ship and entrepreneurial vision
In the eternal discussion about com-petitiveness in the family business
many arguments can be made for and against The positive characteristics include a long-term orientation and personal attention Some of the nega-tive characteristics can be confusing organisation charts nepotism family feuds resistance to change autocratic leadership and succession problems
The different perceptions of hu-man resources dividends corporate
GGI Member firmFPS Rechtsanwaumllte amp NotareLaw FirmDusseldorfGermanyDr Reinhard NackeE nackefps-lawdeW wwwfps-lawde
Dr Reinhard Nacke
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
22
Content
strategy and control structures are something that can be foreseen and therefore pre-emptive mechanisms can be put in place one proven way to achieve agreement is the creation of a family protocol that incorporates strong corporate governance as well as the institution of a family council and a board of directors
The following example demon-strates how such a conflict might occur A number of years ago siblings Laura and Sebastian founded a manufactur-ing company with ownership shares of 65 and 35 respectively This compa-ny is run by both siblings but one day Sebastian decides to include Luigi his son in the companyrsquos workforce Luigi is 32 years old abandoned school aged 17 and is a failed sportsman
How does each of the three family members perceive this decision Se-bastian sees this as a good decision for both business and family his son Luigi will show unconditional dedica-tion towards the company and it is an opportunity for him to discover the family business as well as doing some-thing productive Laura perceives this as a bad decision for both business and family Luigi will not be productive in the company which will create prob-lems with her brother Luigi sees this as a bad decision for the business but good for the family by working at the family business he will improve his re-lationship with his father but he knows there is little (or nothing) he can do to contribute to the company
on one occasion a founding owner mentioned ldquoYou canrsquot expect a family to systematically generate people com-petitive in upper management func-tionsrdquo Another pointed out ldquoLuck-ily my uncle who was named CEo died very young otherwise he would have ruined the companyrdquo A third ex-plained ldquoThe key to our success is that we hire the best and if it turns out they are not the best we fire themrdquo
other examples of philosophies that cause conflicts are
bull ldquoThe company is an opportunity to provide jobs for the whole familyrdquo
bull ldquoI do not care what happens to the company I just want my children to
be happy and if they do not have a job there is always place for them hererdquo
bull ldquoI have to work here as I do not have an alternativerdquo
The origin of these types of conflicts is born from differences in abilities ex-perience and work ethic
In order to solve these types of con-flicts there are two basic tools Firstly adopting corporate governance prac-tices which encourage the participation of professionals and consultant spe-cialists as far as possible in the most fundamental and practical issues This should be in a way that is totally inde-pendent and free from family influence It also involves the implementation of information transparency measures the integration of committees in differ-ent areas with the aim of diminishing the centralism in the decision-making process and the institutionalisation of the company without losing its family character
The second basic tool is the integra-tion of a family protocol This is simply a document in which clear and objec-tive rules explain the family head and founderrsquos vision for the companyrsquos succession Similarly this document should establish the rules for the rela-tionship between family members and the company In this way it is possible to create an environment free from family-business conflicts with defined career paths for family members stan-
dards for incorporation of new family members and descriptions and pro-files of key positions that may or may not be filled by family members It has been observed that before accepting a new family member many companies ask the new family member to work for another company preferably in the same industry in order for them to learn how to behave in the workplace follow a schedule obey orders respect rules compete and maintain their job despite the labour competition
It is necessary to have effective rival-ry management in a family business as well as respect for each memberrsquos needs and a leader with democratic au-thority who gradually delegates more and more functions as they grow old and dedicates more time to teaching and coaching
In conclusion it is important to not make the common mistake of engag-ing unqualified and incapable children or other family members in a com-pany and vital to institute a board of directors and corporate governance to control the situation It is imperative to make the distinction between direc-tors and owners and to educate fam-ily members to be owners capable of making good decisions that foster the companyrsquos growth
Implementing these tools in the best possible way in any family business will make it possible to at least minimise if not avoid the involvement of a family member who lacks the requisite qualifi-cations and skills for guaranteeing the companyrsquos success as well as its future succession
GGI Member firmGuerrero y Santana SCAudit amp Accounting Tax Advisory Corporate Finance Law FirmTijuana Baja California MexicoSergio Guerrero RosasE sguerrero guerrerosantanacommxW wwwguerrerosantanacommx
GGI PRACTICE GROUP PAGES
By Sergio Guerrero Rosas
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
GGI INSIDER | No 65 | May 2013
23
Royal Court AwaitsHastings-Bass Ruling
Advocate Nigel Pearmain and English Solicitor Daniel Walker of Voisinrsquos Trust team review a recent Jersey judgement which may have important ramifications for Jersey trustees
Background
This was an application by the Trust-ee requesting the Royal Court to set aside andor confirm to be invalid as having been made by mistake a deed of amendment a deed of exclusion and a deed of appointment
This was the first time the Court in Jersey has had to consider the continued applicability of the rule in Hastings-Bass since the English Court of Appeal deci-sion in Pitt -v- Holt and Futter -v- Futter
The B Life Interest Settlement was es-tablished in 1994 under Jersey law The case concerned a restructuring arrange-
ment in 2008 the purpose of which was to mitigate the incidence of inheritance tax in the United Kingdom and exten-sive UK tax and legal advice was taken The intention of the restructuring was to transfer life interests in two thirds of the Trust to the settlorrsquos sons free of the life interest of the settlor and his spouse thus creating new transitional interests under relevant UK tax legisla-tion The re-structuring would reduce the value of the settlorrsquos estate for the purposes of inheritance tax but would only be fully effective if the settlor lived for a period of seven years from the date of the restructuring
Unfortunately it subsequently trans-pired that the settlor was suffering from an aggressive form of Alzheimerrsquos dis-ease which was not diagnosed until No-vember 2008 and as a result of which he died in September 2011 The Trustee gave evidence that it undertook the restructur-
ing in the mistaken belief that the settlor was a fit and health 57 year old man and the Trustee would not have undertaken the restructuring had it known that the settlor was not fit and healthy
law on Mistake
The Court confirmed that the test for whether a voluntary disposition can be set aside by a settlor under Jersey law is different from English law as developed in Pitt -v- Holt
The Jersey courts affirmed the test for mistake in Re S [2011] JLR 375 which stated that the Court has to ask itself the following questions(i) was there a mistake on the part of
the settlor(ii) would the settlor not have entered
into the transaction ldquobut forrdquo the mistake next page
A recent Jersey judgement may have important ramifications for Jersey trustees
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
24
Content
GGI PRACTICE GROUP PAGES
(iii) was the mistake of so serious a character as to render it unjust on the part of the donee to retain the property
The Court further held that the afore-mentioned test could be reformulated in respect of an application in relation to an appointment by Trustees (as opposed to the settlor)
Application of theMistake Principles tothe Facts of this Case
In this case there was no question that the tax advice was in any sense wrong or misplaced The alleged mistake was that when the Trustee made the appoint-ments it did so in the mistaken but rea-sonable belief that the settlor was fit and healthy whereas in fact he was not The Court found that the family of the settlor had indeed been aware that the settlor was having health problems although it was not until after the appointments had been made that the extent of his illness was diagnosed The Court further noted that the Trustee had considered obtain-ing life insurance for the settlor for the required period but had left arranging such insurance to the settlor
on the matter of mistake the Court concluded that as the question of wheth-er or not the settlor would survive for seven years had been considered by the parties (as the issue of life insurance was raised) it did not consider that the mis-take was of so serious a character as to be sufficient to avoid the Trusteersquos exer-cise of power on the grounds of mistake
hastings-Bass Principle
The Hastings-Bass principle has been summarised as follows
ldquoWhere trustees act under a discretion given to them by the terms of the trust in circumstances in which they are free to decide whether or not to exercise that discretion but the effect of the exercise is different from that which they intended the Court will interfere with their action if
it is clear that they would not have acted as they did had they not failed to take into account considerations which they ought to have taken into account or taken into account considerations which they ought not to have taken into accountrdquo
In this case the Trustee also sought to set the arrangements aside on the basis that it had failed to take the true state of the settlorrsquos health into account The Court considered in detail the various Jer-sey cases which had applied the rule in Hastings-Bass
The Court concluded that there is no doubt that the decisions of the Royal Court in this area so far have simply been to apply the historic Hastings-Bass rule as developed in first instance in other English decisions and that the Court would have followed these decisions were it not for the decision in Pitt -v- Holt in the English Court of Appeal The Court held that if that decision stands after the appeal to the Supreme Court in England a departure from the line of reasoning in the judgements of the Royal Court based on previous authorities is inevi-table ndash either the Court has to follow the changed approach of the English Courts to the Hastings-Bass doctrine or it has to adopt some other reasoning based on principle for continuing to follow the his-toric approach
Application ofhastings-Bass to thefact of the case
As regards Hastings-Bass the Court stated that in its judgement the Trustee took the settlorrsquos state of health generally into account (as the possibility of life in-surance being taken out was considered) The Court therefore held that in the cir-cumstances it did not think the Trustee had failed to consider anything which it had been under a duty to consider Ac-cordingly the Court did not need to con-sider the third limb of the Hastings-Bass test namely whether the Trustee would have acted differently had it taken relevant matters into account
The Court then made some obiter remarks concerning the Hastings-Bass
regime generally The Court expressed sympathy with the criticism of the Hast-ingsndashBass regime as a lsquoget out of jail free cardrsquo for trustees to be applied when convenient and that the approach of the Royal Court should be to ensure that loss lies where it should
Accordingly the Court stated that if it had been required to decide the point in the light of the Jersey and English author-ities as they currently stand the decision would have been that the previous deci-sions of the Royal Court in connection with applications under Hastings-Bass were clearly wrong If the Supreme Court in Pitt -v- Holt however were to endorse the historic Hastings-Bass approach or something similar to it then the rationale previously adopted by the Royal Court for its decisions on this point could not be impeached and one would expect that the Court at first instance would follow them
Comment
This is clearly a very important deci-sion Although the Court affirmed the Jersey approach on mistake through its obiter comments it has indicated that it is not in favour of the Hastings-Bass principle and that it would be inclined to follow the reformulation of the Hast-ing Bass principle in Pitt -v- Holt if it was confirmed by the Supreme Court or to abolish the principle entirely if that is the outcome of the appeal The future of the principle of Hastings-Bass in Jersey therefore rests upon the outcome of the Supreme Court hearing
GGI Member firmVolaw Trustamp Corporate Services LimitedLegal Corporate Finance Fiducia-ry amp estate planningSt Helier Channel IslandsNigel PearmainE nigelpearmainvoisinlawcomDaniel WalkerE danielwalkervoisinlawcomW wwwvolawcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
GGI INSIDER | No 65 | May 2013
25
David Goldsmith ndash Paid to Think A Leaderrsquos Toolkit for Redefining Your Future
Have you ever thought about the fact that a craftsman has more and bet-ter tools to solve challenges on the job than the leader of a business or orga-nization does Leadership ldquotoolsrdquo are usually defined as computers spread-sheets data and even experience but in reality leaders need thinking tools that are hard to come by so they find themselves hunting and pecking for answers in books at seminars through on-the-job training programs from mentors and at business schools and still theyrsquore left with gaps Surely most leaders are good at what they do but the daily challenges of their jobs like accelerating growth increasing pro-ductivity driving innovation doing more with less and balancing work with life donrsquot come with some sort of leadership toolkituntil now
In Paid to Think international con-sultant David Goldsmith presents his groundbreaking approach to leader-ship and management based on re-search revealing the twelve specific activities that all leaders perform on a daily basis and he provides you with each activityrsquos accompanying tools and instructions proven to boost your per-formance and that of your entire orga-nization
David Goldsmith has delivered a fascinating keynote speech during the GGI Regional conference in San Fran-cisco (refer to pages 8ff)
Take the uncertainty out of everyday leading convert ideas to realities and maximize your intellectual value Learn how decision makers at some of the worldrsquos most successful organizations have already used Paid to Thinkrsquos uni-versal and easily transferable toolsmdash
regardless of their industries sectors geographic locations or management levelsmdashas their greatest advantages in achieving more earning more and liv-ing more
Paid to Think A LeaderrsquosToolkit for Redefining Your FutureBy David GoldsmithHardcover 544 pagesISBN-13 978-1936661701
BOOK REVIEW
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
26
Content
Further Conferences amp EventsWhat Pocket MBA Summer 2013 Finance for Lawyers Where San Francisco CAWhen 03 - 04 June 2013
Brief Description The ability to identify and appropriately use finan-cial and accounting information is relevant to a wide range of legal and regulatory matters for attorneys and allied professionals Litigators and transactional attorneys alike will bene-fit from this practical course designed specifically for non-accountants and taught by members of the nationrsquos top accounting tax and advisory firms leading law firms in-house counsel
and universities What you will learn Key factors shaping financial re-
porting Foundational finance accounting
and economics terminology and principles
How to ldquonavigaterdquo and understand the basic financial statements -- the balance sheet income statement statement of cash flows and state-ment of shareholdersrsquo equity
Practical corporate finance con-cepts including financial ratios and analysis
The use of valuations in business transactions and fairness opinions as well as in common claims and
defenses in litigation Strategies for uncovering fraud in
financial statements
Who should attend External and in-house attorneys and allied profes-sionals who work with financial infor-mation whether in the course of liti-gation or in business transactions will benefit from this program
MORE INFORMATION
What Corporate GovernanceWhere Miami FL United StatesWhen 08 - 11 July 2013
Brief Description This practical train-ing course examines current best practice in all aspects of corporate governance from the new role of
board committees and directorsrsquo re-sponsibilities and powers to best im-plementation of governance in day-to-day activities The costs and benefits of best practice governance will be examined and practical guidance will be given on such issues as the rela-tionship with shareholders and other
stakeholders managing and meeting the expectations of the market inter-national investors and local govern-ment and regulatory authorities
What Mergers amp Acquisitions Expert Techniques amp StrategiesWhere Paris FranceWhen 10 - 12 June 2013
Brief Description A 3-day training course dedicated to the valuation structuring financing and negotiat-ing of merger and acquisition (MampA) transactions You will learn
The key characteristics of success-ful MampAs
How MampA thinking needs to be ad-justed in downturn and bear market
situations MampA valuation techniques their
uses and abuses How to analyse and incorporate
synergies within MampA valuation The key features of due diligence
and the importance of commercial due diligence
Key issues in MampA negotiations Divestment as an important part of
the MampA toolkit specifically when to divest and the alternative ways of divesting a business
The key issues in successful MampA
implementation The distinguishing features of dif-
ferent sources of acquisition fi-nance
The essential features of leveraged buyouts and how are they struc-tured
What is different about the strate-gic buyer and the private equity per-spective
MORE INFORMATION
MORE INFORMATION
FURTHER CONFERENCES amp EVENTS
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
GGI INSIDER | No 65 | May 2013
27
Join this yearrsquos
GGI WorldConference31 October - 03 November 2013 Cancun ndash Mexico
The Ritz Carlton Cancun ndash Mexico
28
Content
ggicomggiforumcom
28
Content
ggicomggiforumcom