The risk manifests usually itself when the (creditor) party tries to reclaim what he feels is rightfully his due. This includes documentation risk and the formation of incomplete or unen- forceable contracts.
Lawyers are one of the first row of experts to manage risk. Companies demand and expect a ‘water-tight’ contract to cover eventualities, usually of non-payment or underperformance. Legal management of risk was considered an isolated fiefdom of the solicitors, barristers and judges. Similarly, accountancy was a completely separate profession. Investment banking was the same. This is an unrealistic risk management system, which needs to be holistic if we are to have an effective protective system. Otherwise there are loopholes and gaps in contracts.
What the law covers
There are a few fundamental goals to consider when dealing with legal risk (sometimes called basis risk) management:
cost
time
probability of winning lawsuit
effectiveness
completeness of contract
enforceability
redress, e.g. ability of party to pay damages.
Completeness of contract
This is a potential problem because of the complexity of the legal system – even more so when we deal with separate state jurisdictions within the USA, or with national and EU levels of laws.
Redress: we can question the ability of the guilty party to pay damages once a favourable decision has been granted.
The question must be asked regarding “enforceability”. We live in a global economy, so can effective legal measures can be brought against parties that operate offshore? Our view of the jurisdiction, especially over offshore cases and the wide usage of the Internet, leads us to offer more questions initially, rather than answers.
What about those who conduct fraud in the USA and Europe on the Internet while based in China or Russia? Our experience in Russia, China and southeast Asia leads us to believe that the laws on paper look very good, but the real effectiveness of enforceability is lacking. Nothing can be done to punish these people who cannot be extradited.
We include the recovery rate within the Loss Database because it will be the basis for projecting the probability of getting compensation or insurance. This means that we have further transactional data when we are faced with making a similar investment again in the future. Recovery rates are sector-specific, lower for telecoms. Thus, the dot-coms had many “99 %” members, i.e. those whose equity value listed on the exchanges fell by 99 % from their peak. What is the recovery rate for your investment that you envisage?
The regulatory risks, risks of change in company law and the risk of lawsuits from clients, employees and every other stakeholder are further hazards. The list of financially unclassifiable risks, means that any perceived “legal risk management” is generally assigned to the legal department. These are the “residual” risks that companies consider fit to be handled by their legal department. This need not be the best way to organise legal risk management, but it is a return to the separate silos concept of viewing risk.
The “not my problem” syndrome does not work because the judge can rule that “whistle- blowing” is the duty of a responsible director or company manager.
It is no longer just the duty of the police to investigate. When lawyers, actuaries and accountants become aware of major trangression during their duties, it is sufficiently arguable that they are in breach of civic and company law if they do not inform the proper authorities. Thus, losses suffered, e.g. as result of incorrect accounts or money-laundering, must be reported.
Similarly, the silo risk view is potentially erroneous because it tries to pass the buck. Thus, professional indemnity insurance cannot always be relied upon to save your bacon. Grounds of negligence can override the quest for damages, so all you are left with is nothing.
However, plaintiffs can sue and still win considerable damages. Risk assessment over likely award and chances of loss now become a priority before a case is initiated. This will be more commonplace in the area of executive underperformance. Stakeholders can hit back, and win, through the legal system.
One of the interesting points of this open-fund trustee versus fund manager conflict is the choice of battlefield. The fund trustees could have picked professional negligence based on a reckless investment stance, one that was not properly risk managed. In fact, they chose the comparison of underperformance against an agreed benchmark. Mercury had undershot the UK equities benchmark by a concrete 10 %, and that was not in dispute. A guideline for fund trustees and holders of the investment mandate is to set out fixed benchmarks for agreement. A potential legal wrangle over whether a fund manager was, or was not, risk managed would probably not prove a fruitful ground to wage war.
The final Combined Code is in the listing rules of the London Stock Exchange and is mandatory for all listed companies in the UK. It requires the boards to maintain a sound system of internal control to safeguard shareholders’ investment and the company’s assets. Directors should check the effectiveness of the company’s internal control and review all controls, including financial, operational and compliance controls and risk management. Further developments with regard to Combined Code for corporate governance in the UK reinforced processes for identifying, evaluating and managing key business risks. They aim to protect the corporate wealth through sound leadership.
One alternative to speed up the legal process and cut counsel costs is to choose arbitration. This body can be stipulated in the initial contract. Sometimes it can work out to be swifter and cost-effective. Yet even arbitration can cost more to instigate than conventional litigation routes, given the lack of choice stated over arbitration bodies.
Given the dissatisfaction over level of service and professional costs, there is a growing trend for people to manage risk themselves. Once again, in an organic business world, we are in danger over losing the corporate command-control battle.
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