Areas of practice
Cross-border acquisitions
International Experience in Mergers and Acquisitions
Philippe has advised as team leader or sole adviser on several acquisition.
Naming some of those where the client has agreed to the disclosure if its name in the deal, this includes in Europe the acquisition by Swiss based ABB of several subsidiaries of Cegelec in Belgium, Luxembourg and the Netherlands, the integration of the distribution and agency network of Remy Cointreau in Denmark, Sweden, Brazil and other countries, then in Asia as a reference the acquisition and structuring of a complex deal for the CETIM (Centre d’Études Technique des Industries Mécaniques) in Singapore.
Bilingual and Structured Support
Conversely, Philippe has been adviser in several sales or potential sales from French entrepreneur owned companies in Asia to potential buyers in India, the USA, and continental Europe including Scandinavia.
We follow the civil law client, especially if french-speaking, through every step of the acquisition, from the first contacts with the management of the target company all the way to closing.
Our involvement in the acquisition team is bicultural, French should that be the case but in any event taking the side of a civil law governed business to connect it to a common law environment.
Active Negotiation Phase
Only one trusted adviser follows the client in seedless way from the negotiation and drafting if the preliminary documentation (Letter of Intent, Memorandum of Understanding non binding et binding documents: Confidentiality Agreement, Disclosure Schedule, Exclusivity Agreement), to the due diligence performed in physical or virtual data room physique within the framework of a Letter of confidentiality and due diligence, and eventually the due diligence report submitted to the Board of the prospective purchaser.
Philippe assists further in the negotiation and drafting of the Disclosure schedules, Guidelines et Timetable followed to the documents preceding the active part of the acquisition (Third party consents, Non solicitation agreement).
At this stage, Philippe and his client are ready and prepared to enter the active stage of the acquisition.
This includes the “representations and warranties” the “covenants” and “conditions precedent” (Pre-closing precedents, Conditions precedent to signing, Conditions precedent to Closing et Post-closing covenants).
Key Clauses and Closing
In the next and most crucial phase, Philippe uses his expertise and experience in the negotiation of the SPA (Sale and Purchase Agreement) until “Closing”.
At the time of Closing, he makes sure that the Guidelines to Closing are complied with, as well as thereafter the Post-Closing.
Our added value
Philippe’s involvement all along the journey of an acquisition is about team work. It goes beyond the technical aspects of the legal advice, which are in no way forgotten, but ensures that the business goals (“interests” just like in a mediation) are understood and integrated into the negotiation from a lawyer’s contribution perspective.
Advice on personal liability to non-resident directors
An Essential Role of Directors
Many companies appoint one of their managers residing in Europe to the board of a subsidiary overlooking the liability aspect, yet they are bound by the same fiduciary duties as a resident board member.
Comme précisé à Singapore par le Companies Act 2013 (Cap 50) section 157 (1): “A director shall at all times act honestly and use reasonable diligence in the discharge of the duties of his office”.
Conflicts of Interest and Criminal Liability
Non seulement l’administrateur non résident est-il tenu aux mêmes obligations que s’il était résident, mais s’il est désigné par un actionnaire (typiquement la société mère), en cas de conflit d’intérêts, l’administrateur doit faire prévaloir les intérêts de la société où il siège comme administrateur sur ceux de l’actionnaire qui l’a nommé. La violation est passible de sanctions pénales, par exemple en Malaisie au titre du Companies Act 2016 (Act 777) section 217 “Responsibility of a nominee director” une amende jusqu’à 600.000 euros ou une peine d’emprisonnement jusqu’à cinq ans.
The Business Judgment Rule
He advises further on such aspects of the fiduciary duties as the conflicts between the interests of the appointing body and those of the subsidiary, in line with local legislation such as in Malaysia the Companies Act 2016 (Act 777) section 217 “Responsibility of a nominee director” and the duty to apply the “Business Judgment Rule”.
Governance and Directors’ Protection
From a governance point of view, Philippe advises the directors to implement and check the effectiveness of protocols against (Bribery & Corruption, Money Laundering and the Financing of Terrorism), and from a broader ESG including environment sand human rights, since some local legislation following the Australian model deem a failure as “breach of director’s duties” by the directors.
Our added value
Philippe provides his guidance to non-resident nominee directors as individuals, apart from the company’s liability
Distribution and cross-border commercial partnerships
Building Distribution Networks in Indo-Pacific
Philippe has advised numerous clients from various industries for the setting up of their distribution, agency of franchising network in Indo-Pacific. He has a real knowledge of the requirements for an effective network both from a business and local legislation point of view.
Complex Business Cooperations
Philippe has advised numerous clients from various industries for the setting up of their distribution, agency of franchising network in Indo-Pacific. He has a real knowledge of the requirements for an effective network both from a business and local legislation point of view.
Beyond that basic level of assistance, he has been instrumental in the legal structuring of complex cross-border cooperation partnerships, involving French companies as well as Japanese, India, US, Scandinavian…etc.
He usually recommends the use of Singaporean law as the governing law of the contract and Singapore as the seat for dispute resolutions.
He sees his role just like in M&A’s as being part of the business project, without interfering with the client’s management but contributing with his own skills (a fine line learnt as in-house legal adviser with Procter & Gamble, Ford Motor and IBM) and sharing with the client his experience of successful deals.
Our added value
Philippe does not limit his role to documenting the deal, he participates in getting it done, whilst remaining within the remits of being “just a lawyer”.
Dispute Resolution
Resolution of Commercial Disputes
Philippe has resolved as negotiator on behalf and with the trust of his client many cross-border disputes which are landmarks in business…but must be kept confidential.
Prevention and Contractual Clauses
He has been asked consistently over the years to act as advocate in a mediation, whether ad hoc, institutional or Judge-led, as counsel in transnational arbitrations and in some cases as instructing solicitor conveying the instructions from his client alongside a local colleague lawyer.
He strongly believes in the mitigation of the risks associated with commercial disputes, by reviewing the (often imperfect) dispute resolution clauses and suggesting a better (and more suited to the client’s needs) arbitration, mediation and mixed forms (such as Med-Arb, Arb-Med and Arb-Med-Arb) clause in replacement of the existing ones, whether in current agreements, during the negotiation period of a new one, or at the early stage of the dispute resolution process.
Given the clear acknowledgement in the legal profession that one has to choose one side over the other, in the light of the increasing concern about conflicts of interest, Philippe has made the conscious of acting only and solely for the client, as counsel in arbitration or advocate in mediation.
Recognized Expertise in Mediation and Arbitration
He has been formally trained as arbitrator and as mediator in Sydney, Brisbane and Kuala Lumpur, but uses that training as counsel or advocate instead of arbitrator or mediator.
As advocate, he believes in a structured methodology, better suited to complex, multi parties international mediation, following the evaluative model.
Philippe’s initial input consists of familiarising his client with the fundamentals of mediation: the UNCITRAL Model Law, the local legislation (Mediation Act), the Singapore Convention, the procedural Rules, the Codes of Conduct for mediators…etc.
Strategic Counsel in Mediation
He advises the client on the most appropriate type of mediation (“facilitative”, “transformative” or “evaluative”), the choice of an institution and of its Rules (AIAC, AIADR, SIAC, HKIAC, CIETAC, THAC…etc.), the choice of a simple or mixed mediation/arbitration (Med-Arb, Arb-Med, Arb-Med-Arb), of a single or co-mediation and of the mediator.
He assesses the merits of applying for a bifurcation, distinguishing the issues of jurisdiction, liability and quantum in separate partial awards.
Conduct of Mediation
He advises his client in the preparation of his opening statement, the drafting of the agenda, the joint sessions, the private sessions (caucus) and the exploration of options by the mediator.
He conducts a risk analysis of the client’s claim and reevaluates it throughout the course of the mediation.
Philippe helps the client to identify its interests beyond its positions, present them efficiently to the mediator and to the other party, and to reply to the reframing of positions by the mediator.
He further assists his client in the light of his professional experience in negotiations, in open and in private sessions, with the mediator, the other party and its counsels.
Lastly, he drafts the original version and successive amendments of the documentation: dispute resolution/mediation clause in the main contract, invitation to mediate to the other party, mediation agreement, “Summary”, documentation supporting the claim and settlement agreement.
Review of Dispute Resolution Clauses
Before any dispute arises, Philippe advises that it is the right time to scrutinise the arbitration and mediation clauses in all existing contracts, which are often found toxic or defective, and assists in the negotiation with the other party in view of the replacement by a more appropriate clause in both parties’ interest.
The improvement of the existing dispute resolution clause concerns the arbitration part of it, but usually more so the mediation part is incomplete and must be completed with such provisions as: matters to be referred to mediation, confidentiality, number of sessions, place of the mediation, choice of the institution (if no ad hoc), number of mediators, choice of the mediator, sharing of costs.
Our added value
In his capacity as Registered Foreign Lawyer (full registration) with the Singapore International Commercial Court (SICC), Philippe is accredited to represent clients at the Court of Appeal, in SICC proceedings described as “arbitration in litigation”, which combine the best practices of international arbitration with the substantive principles of international commercial law and in the proceedings following the Litigation-Mediation-Litigation Protocol established with the Singapore International Mediation Centre to provide parties options for multi-tiered dispute resolution.
L’originalité de cette formule est que la SICC reste impliquée dans le “case management” pendant tout le cours de la procédure et peut émettre à la requête d’une partie des “interim or supplementary orders” portant sur des sujets aussi variés que:
- la nomination d’un expert,
- l’interprétation d’un point de droit ou d’une pièce versée à la procédure;
- le séquestre ou la cession d’un actif inclus dans le litige
- le prononcé de mesures destinées à préserver des preuves;
- une demande de production d’un document;
- toute mesure conservatoire de nature à empêcher qu’un accord transactionnel (en cas de réussite de la médiation) ou un jugement de SICC (dans le cas contraire) soit empêché d’être exécuté pleinement par l’effet de la dissipation d’un actif par une partie; ou
- l’exécution d’une obligation de confidentialité.
Dans cette médiation du troisième type, un mode hybride totalement nouveau qui combine la flexibilité de la médiation avec la rigueur d’une Cour spécialisée placée sous l’autorité de la Cour Suprême de Singapour, Philippe peut représenter des clients en tant que Registered Foreign Lawyer auprès de SICC.
Environmental, Social, and Governance (ESG)
CSR/ESG Advice and International Compliance
Philippe has undertaken a training in ESG and legal sustainability accredited by the UN Academy, and advises his clients in accordance with worldwide standards (ISO 26000) as well a EU (Taxonomy Regulation, Sustainable Finance Disclosure Regulation, Corporate Sustainability Reporting Directive CDSR) and local in Malaysia, Singapore and India.
He takes also into consideration the advances in Hong Kong, Australia and New Zealand used as benchmark in Asia.
He looks closely at the local regulations, guidelines and the emerging case-law in the field of legal sustainability.
Defense of Companies and Executives
He advises not only from the point of view of compliance (“materiality assessment, reporting”) but also from the point of view of potential legal responsibility that the company and its directors may incur.
In order to mitigate such potential liability, Philippe assists his client in building up a structured ESG framework.
Our added value
Philippe takes a broad view at the challenges of sustainability, with a special focus on the regional trends in the potential liability of directors, covering all three aspects of ESG including the environmental one (the “deemed-liability offence” in Queensland), human rights (“breach of directors’ duties” to the Federal Court of Australia) and governance.
Artificial Intelligence
Compliance and Regulation
Philippe’s approach of IA from a legal perspective encompasses the three angles of this new area: compliance, ESG and protection against liability.
With respect to compliance, Philippe integrates the regulations and good practice guidelines emanating from the European Union (Regulation 2024/1689) and in each of the concerned jurisdictions: India (Digital Personal Data Protection Act DPDP), Singapore (Model AI Governance Framework (MGF) for Traditional AI, Model AI Governance Framework for Generative AI (MGF-Gen AI)), Malaysia (AI Technology Action Plan, National Guidelines on AI Governance & Ethics) and regional (ASEAN Guide on AI Governance and Ethics).
Against that backdrop, Philippe’s clients can fine tune their compliance without aligning themselves on the stricter standards.
Governance and Environmental Dimension
Our advice includes the ESG side of IA, using Singapore as benchmark (Singapore’s Green Date Centre Roadmap) and generally the increasing integration of IA and ESG through the opening of the existing structures of “governance, risk and compliance (GRC)” to the AI governance processes.
With respect to responsibility issues, Philippe focuses on the prevention of liability, with the implementation of risk assessment and safety testing in the understanding of the local legal environment of each jurisdiction, leading to internal protocols inspired by ESG methodology.
For his own use, Philippe resorts to IA only for research, parsimoniously and subject to human checking, and never in its generative form.
Liability and Risk Prevention
With respect to responsibility issues, Philippe focuses on the prevention of liability, with the implementation of risk assessment and safety testing in the understanding of the local legal environment of each jurisdiction, leading to internal protocols inspired by ESG methodology.
For his own use, Philippe resorts to IA only for research, parsimoniously and subject to human checking, and never in its generative form.
Use of Generative AI
Conscient des risques associés à l’Intelligence Artificielle, Philippe ne l’utilise que parcimonieusement (et avec vérifications ex post) pour la recherche et jamais sous forme génératrice.
Our added value
Our assistance in IA related matters relies on our exacting follow-up of that constantly evolving landscape in the light of the priority issue of the potential liability of managers and directors which may be manifold eg accepted lowering of the quality of management by the acceptance of money saving short-cuts and reliance on IA in the decision-making process.
