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Cms annual review 2012


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Cms annual review 2012

  1. 1. Annual Review A nnual review 2 0 11 – 2 0 1 2 2011–2012CMS Legal Services EEIG is a European Economic Interest Grouping that coordinates an organisation ofindependent member firms. CMS Legal Services EEIG provides no client services. Such services are solelyprovided by the member firms in their respective jurisdictions. In certain circumstances, CMS is used as a brandor business name of some or all of the member firms. CMS Legal Services EEIG and its member firms are legallydistinct and separate entities. They do not have, and nothing contained herein shall be construed to place theseentities in, the relationship of parents, subsidiaries, agents, partners or joint ventures. No member firm has anyauthority (actual, apparent, implied or otherwise) to bind CMS Legal Services EEIG or any other member firm inany manner whatsoever.CMS member firms are: CMS Adonnino Ascoli & Cavasola Scamoni (Italy); CMS Albiñana & Suárez de Lezo, S.L.P.(Spain); CMS Bureau Francis Lefebvre S.E.L.A.F.A. (France); CMS Cameron McKenna LLP (UK); CMS DeBackerSCRL/CVBA (Belgium); CMS Derks Star Busmann N.V. (The Netherlands); CMS von Erlach Henrici Ltd(Switzerland); CMS Hasche Sigle, Partnerschaft von Rechtsanwälten und Steuerberatern (Germany); CMS Reich-Rohrwig Hainz Rechtsanwälte GmbH (Austria); and CMS Rui Pena, Arnaut & Associados RL (Portugal).CMS offices and associated offices: Amsterdam, Berlin, Brussels, Lisbon, London, Madrid, Paris, Rome, Vienna,Zurich, Aberdeen, Algiers, Antwerp, Beijing, Belgrade, Bratislava, Bristol, Bucharest, Budapest, Casablanca,Cologne, Dresden, Duesseldorf, Edinburgh, Frankfurt, Hamburg, Kyiv, Leipzig, Ljubljana, Luxembourg, Lyon,Milan, Moscow, Munich, Prague, Rio de Janeiro, Sarajevo, Seville, Shanghai, Sofia, Strasbourg, Stuttgart, Tirana,Utrecht, Warsaw and©CMS Legal Services EEIG (June 2012)
  2. 2. facts and figures contact CMS Legal Services EEIG Frankfurt am Main Barckhausstrasse 12-16 60325 Frankfurt am Main Germany T: +49 69 717 01-500CMS F: +49 69 717 01-550 E: The European provider of legal and tax services One of the reasons clients choose CMS is that we have the most extensive European footprint of any firm. Other reasons include our cross-border sector and practice expertise and our outstanding reputation in key markets.Key fac t s52Offices 28 Countries 4680 Cities >5,000 Created by Wardour Portrait and people photography by Theo Cohen Total employees 808m Chambers Band 1 rankings Turnover of all CMS firms in 2011 calendar year140 Printed by Park Communications on FSC® certified € paper. Park is an EMAS certified CarbonNeutral ® Company and its Environmental Management System is certified to ISO14001. 100% of the inks used are vegetable oil-based, 95% >2,800 36 Scan the code with your smartphone to visit of press chemicals are recycled for further use and, Chambers Band 2 rankings Lawyers New partners in 2011 on average, 99% of any waste associated with this production will be recycled.
  3. 3. contentsI n t h i s y e a r ’s A n n u a l R e v i e wIntroduction & Leadership Team 02CMS in Portugal 04Banking & Finance 06Commercial 08Competition 10Consumer Products 12Corporate 14Dispute Resolution 16Employment & Pensions 18Energy 20Hotels & Leisure 22Infrastructure & Project Finance 24Insurance 26Intellectual Property 28Lifesciences 30Private Equity 32Real Estate & Construction 34Tax 36Technology, Media & Telecommunications 38Client Services 40Growth Markets 42People & Development 44Corporate Social Responsibility 46Governance 48 1
  4. 4. introductionWelcome to the 2011–2012 CMS Annual Review D espite the challenging market conditions and really understands the business issues facing across Europe and turbulence in the our clients. world economy, 2011 was a year of growth and expansion for CMS. As the largest Our success would not be possible without our provider of legal and tax services in Europe, people. For lawyers at every stage of their career, we increased our fee income, which for the the CMS Academy provides a learning programme second year running amounted to more than of business-related skills that complements €800 million. Our cross-border teams of sector their regular legal training. For all staff, the CMS specialists competed successfully for business, Induction Course gives new joiners the key facts winning a substantial number of pitches. about CMS and helps them navigate their way around the CMS world. In last year´s Annual Review, we announced our co-operation agreement with leading Portuguese Looking ahead, we are confident that our broad law firm Rui Pena, Arnaut & Associados. We are geographical coverage and deep expertise will delighted to be able to report that, after several enable CMS to continue to provide the service months of working together successfully, our that our clients need. With no end in sight to the Portuguese friends officially joined CMS on uncertain economic situation across many of 1 January 2012, a year ahead of schedule. CMS the jurisdictions in which we operate, we will be Rui Pena & Arnaut, as the firm is now known, will maintaining this approach. expand our reach in Iberia and in Portuguese-CMS had a year of speaking countries worldwide. I hope that this Annual Review gives you a good impression of the people behind CMS and of thegrowth in 2011. We This Annual Review displays the work of CMS over values and principles that shape what we do.increased fee income the past year across practices, industry sectors and countries. It reinforces our claim to be the biggest As always, if you have any questions or thoughts, we hope that you will get in touch with us.and won a large provider of legal services in Europe, covering more jurisdictions with more lawyers than any of our Cornelius Brandinumber of pitches competitors. The Annual Review also shows how Chairman of the Executive Committee CMS works on complex, cross-border transactions cornelius.brandi@cmslegal.com2 C M S A N N U A L R E V I E W 2 0 11 – 2 0 12
  5. 5. the cms L E A D E R S H I P T E A MOurleadershipteam chairman executive director Cornelius Brandi Matthew Gorman matthew.gorman@cmslegal.comManag i ng partners’ g rou pPietro Cavasola Carlos Peña Boada Pierre-Sebastien Thill Duncan Weston Stanislas van WassenhoveRome Madrid Paris London BrusselsDolf Segaar Patrick Sommer Hubertus Kolster Peter Huber José Luís ArnautAmsterdam Zurich Berlin Vienna Lisbon i See page 48 for more on CMS Governance 3
  6. 6. cms in portugalCMS addsPortuguese capacity C MS welcomed a leading Portuguese law numerous practice areas by the Europe, firm as a new member on 1 January 2012. Middle East and African edition of This represents CMS’ 52nd office, The Legal 500. while Portugal is its 28th country. Explaining his firm’s decision to join CMS, With a history dating back to 1964, the Portuguese founding Partner José Luís Arnaut new member firm is well established in the comments: “The move will allow the firm to Portuguese market. It also maintains a network reinforce its Iberian strategy, while becoming of relationships with other law firms in Angola, a European powerhouse.” Brazil and Timor, enabling CMS to meet the needs of its clients in these jurisdictions. “This adds an important jurisdiction to our European growth strategy,” says CMS ChairmanClient Law Firm A large number of CMS’ 60 lawyers and tax Cornelius Brandi. “CMS in Portugal can continue advisers in Portugal are rated as ‘leaders in their to build on its longstanding, excellent reputation,of the Year, field’ by the influential client guide Chambers while simultaneously strengthening our EuropeanCMS in Portugal Europe. The office is also highly regarded across offering to clients.”Chambers Europe Awardfor Excellence 20124 C M S A N N U A L R E V I E W 2 0 11 – 2 0 12
  7. 7. I nternationalCMS officesRio de Janeiro Beijing Shanghai Aberdeen Edinburgh Moscow Hamburg Amsterdam Berlin London Utrecht Warsaw Leipzig Bristol Antwerp Duesseldorf Dresden Cologne Brussels Prague Kyiv Frankfurt Luxembourg Paris Stuttgart Strasbourg Munich Vienna Bratislava Zurich Budapest Lyon Ljubljana Zagreb Milan Belgrade Bucharest Sarajevo Sofia Rome Tirana Madrid Lisbon Seville Algiers Casablanca
  8. 8. banking & financeCMS has a market-leading reputation for banking andfinance across European markets. As our recent dealsdemonstrate, we regularly act for some of Europe’slargest corporates and banks on multimillion-eurotransactions. CMS prides itself on achieving workablesolutions, whether we are structuring complexcross-border finance deals or handlingintercreditor arrangements Telecoms loan for Oil trader refinancing share buy-back When advising high-profile, cross- to Deutsche Bank and HSH border lenders on a complex deal Nordbank across a number of It was a finance deal that was to provide finance for a major global CMS offices. CMS in London also advantageous to all the parties involved. company, it helps to have offices co-ordinated the production of key It paved the way for new investment in around the world. securities assignment documents Serbia’s state-owned telecoms provider, in countries with an English law Telekom Srbija. And debt-laden Greek That was certainly the case in 2011, heritage: Gibraltar, Hong Kong telecoms company OTE was able to inject when an integrated banking team and Singapore. some much-needed cash into its balance from CMS, comprising lawyers from sheet. The deal was heralded as one of Amsterdam, Hamburg, London More recently, CMS’ clients on the largest finance transactions in south- and Madrid, advised the lenders of this deal have asked the firm to eastern Europe in 2012. a €205 million syndicated loan to revisit Bominflot’s syndicated Bominflot Group, one of the world’s loan. Towards the end of 2011, The role of the CMS Prague-based Central largest independent traders of Bominflot announced it was and Eastern Europe banking team was bunker oil for ships. Deutsche Bank merging with fellow worldwide to advise the client, UniCredit, as one of AG and HSH Nordbank AG were key bunkering business Mabanaft the lead arrangers of the loan to Telekom lenders, while ABN AMRO Bank, ING GmbH & Co. KG. Srbija. The syndication of the loan was Bank and others also provided funds heavily over-subscribed, with 19 banks to the syndicate. CM S offices involved taking part. Amsterdam, Hamburg, The loan was designed to provide Most of the proceeds of the loan in the London, Madrid Bominflot with operational €470 million deal were intended to help funding, but the money also Telekom Srbija buy back 20% of its shares replaces the group’s existing from OTE. The remainder refinanced finance arrangements. its existing loan facility. The Serbian government owns the remaining 80% The deal was structured as an of Telekom Srbija. umbrella loan agreement, with all banks using standardised “This was a unique deal in terms of loan terms to supply funding CMS advised the € 470 million public interest, volume, structure direct to Bominflot. CMS’ lenders of a deal and the size of the syndicate,” says role in the deal was to advise CMS Banking Partner Mark Segall, € 205 million Deutsche Bank and HSH who led the deal. “Banks were eager Nordbank in their function syndicated loan to be part of it and the syndicate kept as the loan’s facility agent, to Bominflot growing as the transaction evolved.” as well as advising Deutsche Group Bank Luxembourg in its role as CM S offices involved the loan’s security agent. CMS in Hamburg co-ordinated the advice Belgrade, Prague6 C M S A N N U A L R E V I E W 2 0 11 – 2 0 12
  9. 9. banking & finance CMS PartnersProtecting against property trust perils head up USCorrections to commercial propertyvalues in several European countries on the banks’ security over the suggested restructured loan. equity initiativehave had a knock-on effect on real Together, lawyers from Belgium,estate investors. The loan-to-value France, Germany, Spain, the US securities Partner Daniel Winterfeldtcovenants of some property Netherlands and the UK helped ensure leads a team charged with developinginvestment facilities are no longer that the banks’ security was enhanced CMS’ international capital marketsbeing met. As a result, many facilities or at least that the restructured deal practice. Based in London, Winterfeldthave required restructuring. fitted within the existing security is founder and co-chair of The Forum package in each jurisdiction. for US Securities Lawyers in London, aThis was the issue facing The Royal trade association representing more thanBank of Scotland International Limited CMS Finance Partner Ian McGarr says: 1,500 US-qualified lawyers and marketand The Royal Bank of Scotland plc “Commercial property prices in many participants from law firms and financial(RBS) when they asked CMS to help European countries show no signs of institutions in the City’s capital markets.them renegotiate their existing loan recovery, so banks want to restructure The Forum engages in thought leadershipfacility to Invesco Property Investment loan facilities to real estate investors. on the application of, and complianceTrust Limited (IPIT). Our pan-European Banking and Real with, US securities issues in London. Estate teams make us ideally placed toAn important element of this deal assist banks and real estate investors.” The innovative service that Winterfeldtinvolved a combined CMS Banking provides via the Forum includes anand Real Estate team, supported by initiative focused on the complex matterCorporate, reviewing RBS’ existing CM S COUN T RIES of issuer reliance on an exemption fromsecurity over IPIT’s pan-European involved registration under the US Investmentproperty portfolio. The CMS team Company Act of 1940. This was Belgium, France, Germany,then assessed what impact IPIT’s established after five prominent New York Spain, the Netherlands, the UKproposed restructuring would have law firms issued a memorandum on the international application of the exemption to equity issues, which, in some cases, could cause problems for participants in the London market. The Forum’s procedures capture the range of market practices employed by issuers. The toolkit “If you work for a non-US helps clients investment company that wants exempt themselves to sell its shares to US investors, from the it’s helpful if you can find a US Investment way to exempt yourself from the US Investment Company Company Ac t Act,” Winterfeldt says. “In many situations, our newly developed toolkit will allow you to do just that. It’sAwards and based around a flexible menu of possiblerankings procedures, each with their own points to consider.” The draft toolkit can now beBest Capital Markets The reach of CMS used by issuers and underwriters accessingLaw Firm of the Yearin Spain across the European the US market from London. A roundtable event at CMS in London in December– Corporate Intl. continent is impressive 2011 attracted more than 40 investment banks, law firms and market makers.The Budapest and lends itself well Matthias Strasser from CMS in ViennaBanking & says: “With stakeholders ranging fromFinance team to a strong cross- the Bank of America to Deutsche Bankis ranked in Tier 1 byall legal directories border practice providing feedback on the toolkit, it’s pretty clear it will be well used.”(Chambers,Legal 500, IFLR) Chambers Global 2012 For more details, visit 7
  10. 10. commercialCommercially minded TA new, dedicated Commercial his year saw the launch of an official CMS clients understand where differences between group specialising in commercial law. The countries occur. The first guide to be publishedLaw Group operates Europe- CMS Commercial Law Group works across outlined how different rules apply to the legalwide and further adds to more than 40 offices in Europe and beyond and concept known as the ‘battle of the forms’.CMS’ expertise, client offering has access to more than 400 specialist lawyers. Essentially, this concept refers to the successfuland broad geographic reach Across CMS, almost one-fifth of our Partners party when two parties each believe their operate in this specialist practice area. contractual terms should prevail. A new guide covering distribution and agency arrangements is The CMS Commercial Law Group was established currently in production and more are set to follow. to provide clients, particularly multinationals, with a one-stop service for their commercial law needs. An important aim of the group is to share Besides advising on pure commercial law issues, knowledge about commercial law developments such as terms and conditions, distribution, IT and internationally. As well as producing cross-border supply agreements, the new group also covers guides, the group has developed a series of areas including data protection and outsourcing. commercial training webinars for clients. Also, internally, it organised its first pan-CMS associates’ Sarah Hanson, the CMS Head of the group, has training weekend in Zurich earlier this year, ambitious plans for her team. Together with her along with the TMT sector group. cross-border colleagues, she has already begun marketing it to clients, developing new products The new group is likely to improve awareness of and engaging in internal team-building. CMS’ cross-border commercial law expertise. “We’ve set ambitious targets to raise our profile For the benefit of clients, the CMS Commercial and we must ensure this expertise is more widely Law Group has started to roll out a series of recognised,” Dirk Loycke, the group’s Deputy cross-border comparative guides on commercial Head, says. “We’re already acting on significant law issues. As many legal concepts do not cross client matters and winning recognition from legal national boundaries, these guides aim to help directories such as Juve in Germany.” De CMS Co mm ercial L aw Group is opgericht om cliënten te voorzien van een one-stop Co mm ercial s e r v i c e** “ T h e CM S Co m m e r c i a l L a w G r o u p w a s e s t a b l i s h e d t o p r o v i d e c l i e n t s w i t h a o n e - s t o p Co m m e r c i a l s e r v i c e”8 C M S A N N U A L R E V I E W 2 0 11 – 2 0 12
  11. 11. commercial Don’t end up being 30 seconds w ith: short-changed Sarah Hanson CMS in London If one or more EU member states leaves the euro, what happens to all the contracts What’s the most significant signed with businesses resident in those case you’ve ever handled? countries? That is the topic of a new report, Advising Takeda Pharmaceutical on its Eurofit: How to get in shape to deal with €9.6 billion acquisition of Swiss drug eurozone risks, spearheaded by our CMS company Nycomed. Despite all the long team in London. hours, it was not only my most significant case, but also one of the most fun matters The report highlights a range of legal I’ve worked on. That was largely due to the risks that any upheaval may cause and fantastic team that I was working with. summarises those common contract clauses that could cause problems. It also suggests What work are you most proud of? what steps clients can take to minimise their Advising Camelot on the establishment risk exposure, wherever possible. A wide of the EuroMillions lottery when it range of issues is considered in the document, originally launched in France and Spain from currency payment options to supply and then the subsequent expansion to chain issues and force majeure clauses to other European countries, namely Austria, It was not only termination triggers. Belgium, Ireland, Luxembourg, Portugal and Switzerland. It represented a first in my most significant many ways, but unfortunately I’m still waiting for that winning ticket! case, but also one If you could change one law, of the most fun, i PUBL IC AT IONS what would it be? due to the team The law that prohibits eating mince pies on Christmas Day that was introduced in Britain by Oliver Cromwell. Cromwell, the ‘Lord Protector’ who temporarilyEurofit: How to get overthrew the English monarchy in thein shape to deal 17th century, believed that Christmas waswith Eurozone risks plagued by the superstitions of the Roman Catholic Church and he also thought tradition had pagan roots. commen T By the time you read this report, a new pan-European sales Like existing national sales laws, certain provisions of the new Instead, the main challenge for most organisations will be the regulation will have made good European regulation, such as need to learn a new additional Coming to a contract progress towards its adoption. The conditions relating to the return of sales law regime and how to make near you – a common European Commission is pushing for faulty goods, cannot be modified appropriate use of it. European sales law? the new legislation to be approved even if all parties want them to be. soon, possibly by the end of 2012. But other provisions can be varied Another change resulting from the Gerd Leutner, if all parties agree. new rule is that, for the first time, CMS in Berlin While the proposed regulation the European Court of Justice will is intended to ease international At present, it is too early to say gain the power to rule on disputes trade, its use will not be compulsory. whether the draft rule is more or that arise from the legislation. Parties will remain free to base their less onerous than existing national This means the regulation will be contracts on national sales laws or sales laws. This is something applied consistently across Europe. rules based on a United Nations (UN) CMS is currently investigating. By contrast, under the current UN treaty if they prefer. In order to be But our initial reaction is that sales law regime, national courts in bound by the new European sales the actual contents of this new each EU country tend to give slightly rule, all parties must actively ‘opt in’ law will not result in extra costs different interpretations of the to the new regime. for the companies who use it. meaning of the treaty. 9
  12. 12. competitionMeasuring upthe competitionFrom training clients on competition law compliance tohelping companies threatened with European Commissionfines, CMS’ Competition Group is a leader in its field Ensuring competition compliance scrutiny if a competition law investigation The latest instruction involved helping obtain across borders takes place. These might be management, cross-border competition law clearance of sales forces, the legal department, compliance a Swiss joint venture between Mori Seiki Today, if a multinational company is the personnel, the head of electronic data and DMG. This alliance will take over the target of a competition authority ‘dawn raid’ processing and front-desk reception staff. distribution and service activities of both investigation in one country, it is often subject companies in all European countries, except to similar raids in others. The existence of “It was important to the client that our guides Germany. Meanwhile, DMG took over Mori bodies such as the European Competition were translated into all local languages Seiki’s equivalent operations in Germany. Network or International Competition where K+S has operations,” explains Harald Network means that investigations into Kahlenberg, Head of the CMS Competition CMS helped Mori Seiki review its merger alleged anti-competitive behaviour are likely Law Group. “Most people prefer guidance in control filing requirements throughout Europe. to be cross-border, co-ordinated and very their native language, especially as they may This resulted in the need to make merger challenging for any company involved. use it in stressful situations. For example, in control filings in Austria, Germany, Italy and Germany, a competition investigation may Poland. In addition, a filing was made to the To reduce the likelihood that clients will be involve the police, who often arrive armed.” Swiss Competition Commission. targeted in this way, CMS’ Competition Law Group offers comprehensive competition law Kahlenberg adds: “CMS’ ability to offer “The co-operation of competitors requires a compliance training all over Europe. such extensive compliance training is helped cautious approach under competition law,” by the fact that we have one of the largest explains CMS’ Kahlenberg. “When advising One of the most significant compliance competition law groups in the world – Mori Seiki on this latest matter, it was helpful programmes that CMS helped with in the past 140 specialists based in 29 European cities.” to draw on the same CMS competition law 12 months was for longstanding client K+S, team that had advised the company the a leading supplier of salt and fertilisers. CMS previous year. They already knew our client’s provided competition law compliance training CMS in Mori Seiki hat-trick business, as well as its joint venture partner.” in 20 countries for the company. CMS has had a relationship with Japan-based The training programme undertaken by engineering technology firm Mori Seiki for CMS aids 90% reduction in EU fine K+S comprised two elements, the first being years. Work undertaken has included advising guidance on competition law relevant to on a deal to increase Mori Seiki’s stake in Breach of EU competition law can leave the management and all sales forces in the Germany’s DMG (Gildemeister). Recently, companies facing fines worth 10% of organisation. The second part comprised CMS acted on another matter related to the global turnover – enough to put even large ‘dawn raid’ training and a series of checklists two companies – the third such competition firms under severe financial pressure. The for company personnel most likely to be under instruction since 2009. consequences can be worse if the alleged10 C M S A N N U A L R E V I E W 2 0 1 1 – 2 0 1 2
  13. 13. competition 30 seconds w ith: Edmon Oude Elferink CMS in Brussels What’s the most significant case you’ve ever handled? I advised on competition law issues relevant to a merger between two large pharmaceutical companies that had a Office Head Michael Bauer, secured a 90% very high combined market share across reduction in the fine to just €1 million. a number of markets. That kept me busy for about five months. The Baerlocher case was a legal first for two reasons. First, the reduction was the What matter are you most first successful ‘inability-to-pay’ application proud of? under new fining guidelines issued by the As a young associate, I managed to haveDas CMS-Team konnte European Commission. Second, the fine a cartel fine that had been imposed oneine Reduzierung reduction was the largest ever obtained under the ‘inability-to-pay’ rules to date. a medium-sized construction company reduced from €500,000 to €30,000der Geldbuße von The CMS team has since been asked by rival in proceedings before the Dutch competition authority. Bankruptcy wasBaerlocher um 90 law firms how it achieved this outcome. One avoided and many jobs were saved. of Baerlocher’s competitors is challengingProzent erreichen the decision at the EU General Court, saying If you could change one law, Baerlocher’s fine reduction was unjustified. what would it be? I would change the rules requiring the“The CMS team secured a 90% notification of mergers to competitionreduction to Baerlocher’s fine” authorities in many member states of award wins the European Union. These laws create a disproportionate burden for companies. Global Competition Review 100 2012 ‘A Guide to the World’s Tell us something interestingwrongdoing took place over a prolonged Leading Competition Law about yourselfperiod and involved a firm’s main product. and Economics Practices’: Before I joined CMS, I worked as a CMS rated as leading competition référendaire – an assistant to a judge –This was the case for global chemicals law experts in Austria, Germany, at the Court of Justice of the Europeancompany Baerlocher, when it was Hungary, Italy, the Netherlands, Union in Luxembourg for three years.investigated by the EU Commission for its Poland, Russia, Slovakia, It was a truly great experience to practiserole in a cartel in the plastic additives market. Switzerland. Recently, Global law at the heart of the European Union.A threatened fine of more than €20 million Competition Review added CMS Now, I am able to draw upon thiswas more than the company could afford. in France to its list. experience, giving our clients betterHowever, a CMS team, led by EU Law EU and competition law advice. 11
  14. 14. C onsumer productsCMS atMid Europa’sconvenienceEuropean M&A activity in the retail sector remainsbuoyant. CMS’ Consumer Products Group actsfor buyers and sellers alikeT he Central and Eastern explains, Mid Europa faced fierce European (CEE) retail sector has competition in its renewed bid to proved a fertile area for CMS win control of the retail chain.recently. Just weeks after helping “The disposal was arranged asto conclude the Delhaize Group’s a beauty contest and we knew that€932.5 million acquisition of Delta several private equity houses wereMaxi, CMS was appointed by long- likely to be bidding against ourstanding client Mid Europa Partners client,” Sawicki help with its bid to take controlof Zabka Polska. Zabka is one of the “Once Penta decided that Mid Europalargest chains of convenience stores was its preferred bidder, it imposedin Poland, with 2,400 branches and a very tight timetable for negotiatingsales of about €640 million in 2010. the deal. A CMS team, including myself, Dariusz Greszta and JakubMid Europa had Zabka in its sights Marcinkowski, started discussionsfor some time. The convenience chain one morning and the deal was signedhad previously come onto the market the next day after just 24 hours ofin 2007, but Mid Europa lost out on talks,” he adds.that occasion to Penta Investments,a Central European investment group. Sawicki maintains that he is confidentWhen it became apparent later that that there is scope for more deals ofPenta was putting Zabka up for sale, this type in the CEE retail sector.Mid Europa quickly called in CMS to “Our lawyers are aware of increasedhelp with its tender. activity at the moment, both in terms of new deals being done andHowever, as Warsaw-based CMS also those currently in the pipeline,”Corporate Partner Marek Sawicki he concludes.12 C M S A N N U A L R E V I E W 2 0 1 1 – 2 0 1 2
  15. 15. C onsumer productsCMS advises onSaturn sale forMetro GroupThe Metro Group is one of theworld’s largest retailers, withan annual turnover in excess of€66 billion. So, it was a great coupfor CMS to be chosen to act for thisimportant client when it decidedto dispose of 34 of its Saturn storesin France, following a strategicreview. The shops were purchased I would change theby international retailer the Italian proceduralHTM Group, formerly known asBoulanger S.A. 30 seconds w ith: system, which isAn 18-strong cross-border CMS Paola Ghezzi complex and formalteam, including lawyers from CMS in RomeBrussels, Cologne, Lyon and Paris,helped the Metro Group on thedisposal, working to a tight two- What’s the most significant case manufacturer’s products was to blamemonth deadline. The transaction you’ve ever handled? for the blaze. All circumstances weredrew on a wide range of CMS’ legal A very important insurance matter apparently in favour of the claimants, butspecialties, including corporate and that involved a railway accident. a very long and complex investigationM&A, competition, employment, carried out by court-appointed expertsIP and IT, real estate and tax. What matter are you most and by the parties’ own experts revealed proud of? that the claim was groundless.As part of the deal, 2,000 Saturn It was a complex product liability caseemployees, who generate sales of where there was a claim against a If you could change one law,about €583 million annually, were manufacturer of electronic devices. what would it be?transferred to HTM. After a short The claimants were demanding I would change the Italian proceduraltransition period, HTM intends to compensation for damages following system, which is incredibly complexrebrand the Saturn stores with the a fire that had destroyed an apartment. and formal and would benefit fromBoulanger name. They claimed that one of the being simpler. e vents This year, the Consumer Products discover how key legal issues for Group in London is hosting a series consumer products companies Breakfast briefing of roundtable breakfast briefings relate specifically to their own for consumer and discussion forums across a range of topics affecting consumer products. business interests. products clients These subject areas include health and nutrition claims in food and Attendees have welcomed the opportunity to engage in exchanges drink, category management, media with their peers about the similar marketing, corporate reorganisations, challenges and experiences they face running competition law compliant day-to-day. The forums allow CMS promotions and advertising issues. to understand better the commercial issues that most concern clients. The forums are designed to bring together in-house legal professionals The annual CMS Consumer Products for an in-depth discussion of the chosen Conference is on 25 October 2012. legal topic. These events give the For information, email participants the opportunity to 13
  16. 16. corporateCollaborationis key in M&ACross-border deals are CMS’ lifeblood. Our M&A teamhad a busy year in 2011-2012 A Christmas present for Kennametal It was one of the largest and most complex deals Kennametal Inc had ever undertaken, spanning eight jurisdictions. To complicate things further, the parties wanted to complete the transaction within three months. But neither challenge posed a problem for the CMS led a €222 million 40-strong team of CMS lawyers advising deal in which Unipapel Kennametal, a New York-listed metals entity, whose services range from small-scale company, on its bid to buy the Deloro Stellite acquired Spicers Group shipping monitoring systems to powerful Group, a specialist alloy solutions producer. coastal surveillance systems, currently operates in 50 countries worldwide. “Shortly after negotiations began, we ran into the Thanksgiving celebrations in the US, The full-service CMS team in Germany was followed by Christmas and New Year. There led by Hamburg-based Corporate Partner were, not surprisingly, deal-specific issues, Ludwig Linder and Tax Partner Heino Büsching. too,” says London-based Corporate Partner The CMS team in Paris included Tax Partner Martin Mendelssohn, who led the deal. inauspicious to some, Kennametal’s General Edouard Milhac and Corporate Partner Counsel Kevin G Nowe was delighted Jean-Robert Bousquet. By the time the deal closed, CMS lawyers with the acquisition, which completed on from eight countries, including China, France, 1 March 2012. Nowe paid tribute to the Germany, Italy, Luxembourg, Russia and the cross-border CMS team, thanking them Spanish client expands into Europe UK, had helped Kennametal in its bid to for their “tireless effort” and their “most buy Deloro. A range of legal specialisms professional representation of Kennametal in CMS in Spain led a €222 million deal in which had been deployed, including corporate, this transaction”. He adds: “I don’t think CMS office supplies business Unipapel SA acquired competition, pensions, employment, could have done any better.” Spicers Group, the continental European real estate and tax experts. business of DS Smith plc. The acquisition process revealed the conflicting France and Germany working in unison CMS lawyers from seven countries advised mindsets of the European private equity seller on the transaction, representing longstanding and the New York-listed US trade buyer. CMS teams from France and Germany joined client Unipapel. Now qualifying as Spain’s “There were differing attitudes to matters, forces to advise the EADS Group on a deal that largest maker and distributor of paper such as the repetition of warranties at closing established a new world leader in maritime products, the Unipapel Group is set to become and material adverse change provisions,” security. Signalis, a joint venture company, the leader in the European office supplies says Mendelssohn. “The ‘locked box’ concept was formed by the merger of Sofrelog and industry as a result of the acquisition. – where the buyer takes the risk and benefit Atlas Maritime Security. of the target business from an historic date The cross-border CMS team was led by without any purchase price adjustment – is not Before the merger, Sofrelog was a subsidiary Unipapel’s client relationship partner in as widely used in the US as it is in Europe.” of Cassidian, formerly known as EADS Defence Madrid, Corporate Partner Rafael Suárez & Security. Atlas Maritime Security was a de Lezo. CMS offices in Belgium, France, Although the date of the deal’s signing – subsidiary of naval and marine electronics Germany, Italy, the Netherlands and the UK Friday, 13 January 2012 – might have seemed company Atlas Elektronik. The combined provided additional input.14 C M S A N N U A L R E V I E W 2 0 1 1 – 2 0 1 2
  17. 17. corporate i PUBL IC ATIONS The fourth edition of the CMS European M&A Study The latest edition of CMS’ highly regarded analysis of M&A transactions in Europe has recently been published. The study is a detailed analysis of the What’s the most significant case you’ve European M&A deals that CMS acted ever handled? on between 2007 and 2011 – more than That is very hard to say, because every 1,300 in number. transaction is significant and unique due to the human dynamics. One of the most recent CMS Head of Corporate Thomas significant transactions was the sale of a 50% Meyding says: “Clients continue to tell stake for €2.35 billion in Dekabank. I was us how useful the study is, so we are representing eight different Landesbanken pleased to publish its latest edition.” (regional state banks). rankings What matter are you most proud of? I can say that so far no litigation has arisen out 1st Europe of M&A projects that I have been involved in – Bloomberg, Thomson Reuters except for one that involved fraud on the Buyout by volume, mergermarket other side. Counsel to principals30 seconds w ith: by volume, Bloomberg If you could change one law,Thomas Meyding what would it be? The Pareto principle. I would love to have 99% 1st Central and Eastern EuropeCMS in Stuttgart Deals by deal count, Bloomberg of the possible results with an investment of 20%. That would make life much easier and 1st Germany I could do so much more. Deals by deal count, Bloomberg, Tell us something interesting about yourself mergermarket, 2011 Thomson At work I survive on apples, Gummibaerchen Reuters and Corpfin mid-market (jelly bears) and Diet Coke. 15
  18. 18. dispute resolutionCatching the WAVEof dispute successCMS lawyers are speeding up the resolution of cross-border, improving efficiency and saving clients moneyF or parties involved in complex cross-border who are not only experienced in international CMS achieves this through a combined approach disputes, international arbitration can disputes, but also fluent in one or more of the of delivering effective training in cross-border sometimes be expensive and time- languages relevant to the dispute. disputes to its lawyers, covering the principlesconsuming, says Guy Pendell, Head of CMS’ of effective case analysis, as well as offering adviceDispute Resolution Group. In some cases, this means witness interviews on the interviewing and examination of witnesses. can be conducted in the native tongue of the Lawyers are given advocacy training to ensureWhile some of this time and cost is inevitable, individual concerned and then translated without that they understand the different approach toCMS has been exploring ways of improving the the need for interpreters. Equally, conducting an hearings in different jurisdictions, ranging fromsituation for clients. One solution is a new process initial document review in the native language international arbitration to common and civilknown as WAVE – Work Allocation for Value can save significant translation costs. Our ability law litigation. Once lawyers are fully trained,and Efficiency. to offer this service is just one of the benefits of cases and individual work streams can then be having a Dispute Resolution Group spanning planned and costed, using project managementThe principle behind WAVE is simple: minimise 25 CMS offices, according to Pendell. techniques more commonly found in largecosts by using a cross-border team of lawyers in construction projects.all suitable cases. This allows the client, after To deliver cost savings while maintaining thediscussions with the lead Partner, to have items highest level of service is essential and requires Adopting the WAVE approach has proved popularof work undertaken by appropriate lawyers in organisation and co-ordination. All the legal team with lawyers and clients. Recent WAVE-managedthe most cost-effective location. For example, needs to be familiar with the relevant procedures matters include cross-border teams in London anddocument reviews and initial witness interviews and, of course, they must understand the Moscow; Vienna and Bratislava; Bucharest andcan often be undertaken locally, using lawyers necessary issues in the case. Sofia; as well as in many other locations.16 C M S A N N U A L R E V I E W 2 0 1 1 – 2 0 1 2
  19. 19. dispute resolutionCMS wins for theRomanian StateCMS in Bucharest has successfully defended theRomanian State in a significant investment treatyarbitration before an International Centre forSettlement of Investment Disputes tribunal.The dispute centred on alleged violations of theGreece-Romania bilateral investment treaty andthe European Convention on Human Rights. AGreek investor had complained that AVAS, theRomanian privatisation agency, had invoked ashare pledge related to his frozen food warehouse The law on paymentbusiness, which he acquired from the agencyin the late 1990s. The investor said this was for copies from courttantamount to expropriation and was unfair andinequitable treatment. files is daylight robbery 30 seconds w ith:The Romanian State, advised by CMS, arguedthat the investor had not complied with the Danielashare pledge’s conditions. The investor’s taxliabilities and his alleged failure to comply with Karollus-BrunerEU food standards regulations were also brought CMS in Viennainto question.After a tribunal hearing in March 2011, the What’s the most significant case If you could change one law,investor’s claim – $91 million in compensatory you’ve ever handled? what would it be?damages and $56 million in moral damages – was One of my most significant cases involved The law on the payment for copies fromdismissed. AVAS’ attempts to enforce the share working for a client on about 100 civil court files. At one euro per page, it ispledge were deemed ‘reasonable, appropriate proceedings. This was further complicated daylight robbery, especially in criminaland justified’. The tribunal ruled the State had by regulatory and criminal proceedings cases when the copies are needed eithernot been excessive regarding the investor’s tax that were taking place at the time. to defend the client or to act for victims inliabilities and food safety regulations. Consistency was vital to ensure that any preparing their damage claims. confusion was kept to a minimum.Bucharest-based International Dispute Resolution Tell us something interestingPartner Gabriel Sidere led the CMS team. He says: What matter are you most proud of? about yourself“This is the first hearing of its kind for CMS and is I think that I have reason to be proud I love books. I can spend hours inof great significance.” of the two cases where I managed to bookstores and buy hundreds of books – convince the Supreme Court to change then, inevitably, I struggle to find the time its jurisprudence. to read them. cl ient services allow clients to make an informedDadurch hat der Initial case choice about pursuing a potential claim.Mandant die Möglichkeit, assessment For clients, the process is very straightforward. After being givenLeistungen jeweils auf CMS can now offer a fixed-price initial a brief outline of a dispute, plus essential documents, CMS assessesdem kostengünstigsten case assessment in all disputes. The the merits of the case and carries out purpose of this initiative is to allow busy an initial cost-risk-benefits analysis.Weg erbringen zu lassen clients to use CMS as an extension of We can also provide strategic advice their own in-house legal team when on how to resolve the dispute and, resources are stretched. We can provide where it is appropriate, give a“This allows the client to have items of work case assessments at an early stage to preliminary assessment of quantum.undertaken in the most cost-effective way” 17
  20. 20. employment & pensionsCross-border people solutionsCMS can help multinational companies restructure their operations,while complying with differing national employment laws CMS acts on major jurisdiction, as well as an indication of the international restructuring potential costs and legal challenges. On top of this, all advice had to be Today’s economic climate means that many provided within a very tight timetable – companies find they must restructure their just 48 hours from start to finish. operations. For businesses that work acrossOur Employment Group national borders, this can be very complex. Inside the EU, many aspects of employment CMS delivered on all fronts, winning praise from the client. Speaking aboutis one of the largest in law are governed by Europe-wide the client’s feedback, CMS Employment directives and regulations. But, even within Partner Anthony Fincham says: “The clientthe European market these cross-border frameworks, important commented very favourably on our ability national differences remain. to act within the brief, meeting the tight deadline and delivering the written advice In March 2011, a major consumer products within its budgetary constraints.” business decided to undertake a global restructuring and collective redundancy programme. It wanted a particular type Advising across national borders of European law firm – an adviser with a strong cross-border European presence. The essential role of cross-border Just as importantly, the chosen lawyers employment law expertise was highlighted would need to understand the finer points when CMS advised Dutch energy company of employment law at a truly local level. Delta NV on the sale of a subsidiary to a management buyout (MBO) team. Naturally, CMS fitted the bill. Not only do The premises to be sold were unique, leading client guides, such as Chambers bridging the Netherlands-Germany border. Europe, describe the Employment Group as being one of the largest in the European market, CMS is also ranked as a leading employment law adviser in many European countries. In addition, CMS has a strong track record of advising multinational clients on cross-border restructurings across a wide range of industry sectors. Nevertheless, this latest instruction was Voor bedrijven met the most demanding cross-border matter CMS had handled. The advice covered a internationale business, full analysis across 16 separate European kan een herstructurering jurisdictions of collective consultation obligations, the impact of works councils complex zijn and protection against dismissal. The client also requested a detailed breakdown of the relevant processes and procedures “For businesses that work across national they were required to undertake in each borders, restructuring can be complex”18 C M S A N N U A L R E V I E W 2 0 1 1 – 2 0 1 2
  21. 21. employment & pensions My Employment team is a very dynamic group of lawyersEach half was run as a separate nation-based company, despite being located on 30 seconds w ith:the same site. When CMS advised on theemployment aspects of the MBO, it had to Katja van Kranenburgdevise a proposal that was legally robust in CMS in Amsterdamboth countries. CMS’ Katja van Kranenburgled on the Dutch employment law aspects What’s the most significant case If you could change one law,of the deal, working alongside her you have ever handled? what would it be?Hamburg-based colleague Bernd Roock. In a current employment case, a former I would change the rule that only allows managing director tried to mislead his an employer in the Netherlands to giveTo complicate matters, there were multiple shareholders by establishing a competing notice to a member of staff once they haveworkers’ representative bodies to consult group of companies. This breached all obtained approval. I would also changeabout the sale, two with overlapping written agreements with the original the formula that calculates severance paycoverage. At a national level, the local company. The case has developed into in the Netherlands. Currently, it resultsDutch and German works councils agreed a string of court cases, all of which have in amounts being paid to staff that areto share the consultation rights where had a positive outcome for our client, typically much higher than severance inlegally allowed. An additional central the former employer. other council also existed on the Dutchside, claiming exclusive rights to be What matter are you most proud of? If you weren’t a lawyer,consulted in that country. “Working in I am very proud of my Employment team what would you be?close co-operation with CMS in Germany, in Amsterdam, as we have existed for I would like to establish a foundation thatwe presented our clients with scenarios several years now and it is a very dynamic would stimulate, motivate and developthat would hold up in court, if necessary,” group of lawyers. children from poor backgrounds.says van Kranenburg.Because the venture’s financial future Chambers Europe 2011: Employment & Pensions – Francewas uncertain, a key element was theestablishment of a shareholder-funded • and 1: This highly esteemed French outfit (CMS) houses one of the leading Bseverance package, payable to individual employment departments in the country. The size of the team, coupledMBO employees in certain circumstances. with the various specialisations of the lawyers, enables it to handle someA combined CMS team, involving of the most complex work in the area.both employment andinsolvency specialists,helped negotiate anagreement thatwas acceptable to A key elementall stakeholders. was the i PUBL IC ATIONS“The severancepackage was an establishment ofimportant safety a shareho ld er- CMSnet, required funded severance negotiated anfor the MBO to package acceptabletake place,” van CMS International agreementKranenburg says. Guide to Pensions 19
  22. 22. energy Smart transmission networks Investment in Europe’s energy infrastructure is essential. CMS supported the creation of an industry first in this area E lectricity transmission companies across The tie-up between the two big names was Europe are upgrading their networks established to deliver the €1 billion, 2.2GW to cope with the growing expansion project. It will be the longest 2.2GW HVDC in renewable power generation. But many cable in the world at 420km. encounter the same problem. Most sources of renewable energy are in remote locations CMS’ work on the deal was led from London, far from conventional power stations, so how supported by CMS in Germany and Italy, and can they be connected to their country’s major drew on a large range of expertise. Lawyers population centres? from the Energy, Projects, Construction and Planning teams were involved, CMS has played its part in recent innovations. while Corporate, Procurement, Banking, Rather than building a major new electricity Environment, Health Safety and Oil Gas transmission link over land, CMS advised on also played a part. The cable is expected to be a pioneering initiative to develop a seabed- fully operational in 2016. based alternative. Robert Lane, the CMS Energy Head who led CMS’ role in the deal was to advise NGET/SPT the project, says: “The Western HVDC Link Upgrades Limited on procurement for a project is a first. It is tremendous to be a part project called the Western High Voltage Direct of this, addressing not only the UK’s energy Current (HVDC) Link. NGET/SPT Upgrades, the needs, but also climate change. The project project sponsor, is a joint venture between will also serve as the model for other sub-sea two of the UK’s main electricity transmission solutions and will be a helpful precedent for companies – ScottishPower and National Grid. the ‘North Sea Grid’.” Reporta-se não só às necessidades de energia do Reina Unido, mas também às alterações climáticas “It’s addressing not only the UK’s energy needs, but also climate change”20 C M S A N N U A L R E V I E W 2 0 1 1 – 2 0 1 2