Dr Solomon Osagie, Chief Legal Counsel at TSYS International
What are the 3 biggest challenges for in-house teams in FS firms today?
In no particular order, I suspect that most General Counsel will consider that a constantly evolving regulatory environment poses a challenge. Whether one considers BAU or M&A activity, there are pressures to keep businesses compliant. For UK businesses, uncertainty about the regulatory impact of Brexit and how the process will evolve adds to the challenge. Many lawyers will also be mindful of financial pressures. Some of us have advocated over the years for legal teams to be more integrated into the business, but this brings with it the reality that legal teams have to operate under financial pressure and deliver services that are not necessarily revenue generating. One last challenge will be the implementation of the new data protection legislation, the GDPR.
What key steps can legal teams take to create a higher value proposition?
Early engagement with product teams, which helps lawyers to understand the value proposition better. It is unfortunate when transactional lawyers are unaware of the technical specifications of a solution, and they offer legal solutions which impede rather than facilitate the objectives. I have also suggested that lawyers consider taking on non-traditional roles like CSR to help push boundaries. They can demonstrate value in non-monetary ways. Thirdly, we should consider how to offer advice that is practical and innovative with an eye on the commercial objective.
What main hurdles do legal teams face, in terms of implementing and delivering value from new technology solutions? How can these be overcome?
Whilst new technology solutions can offer returns for a company, the risk exposure is greatly increased. This opportunity must be balanced against risks, and legal teams need to be forward in explaining this. Thereafter risk should be spread/mitigated where possible.
If the business is buying or creating new technology, the legal team will need to ensure the business has all the required rights to use the technology effectively. What IP rights are involved, does the business own them, who owns the output? Is the new technology owned under a license? Is the license broad enough to cover all activities that the business has in mind? We should also consider that there are adequate liability caps to reflect actual risk rather than contract value. Penalties for breaches of data protection law, for example, can far outweigh contract consideration.
Early engagement and a clear understanding of the business’ objectives is key. Understanding the product and the implications for any particular asset contained therein, e.g. data, IP etc., and how the product will be used by customers.
How do you view the current level of collaboration between in-house teams across the FS industry, and how could this develop in the future?
The FS industry is diverse, with many lawyers working in niche areas. There are some areas of commonality (such as implementation of new laws) but often the drivers and risks are different from business to business. The dominant position of the banks within the sector does mean that to an extent a bank’s approach to regulation and risk will flow down through supply chains. Collaboration via a cross-pollination of ideas around regulatory compliance, risk mitigation and alternative structuring would be helpful.
Which pain points for in-house teams most lend themselves to automation, and which pain points will be the most difficult for technology to fix?
Automation could help with standard agreements such as NDAs. The issue with automation comes in the more complex contracts – this may not be just because the deal is of a high value, but because of the commercial construct and the products involved, where automation would not pick up on the nuances of such deals. This is where skilled negotiators with expert knowledge of their industry and related products will save time and help all parties to reduce risk. Automation/machine learning is useful for calculating some elements of remedy – e.g. SLAs, possibly liability caps, change control procedures. Similarly it may be possible to cover off some standard form agreements and translations. However, negotiations are ultimately a human interaction, which require give and take on issues that will not follow predetermined patterns.
Why will you be speaking at Finance Edge’s Next Generation In-House Summit, and what do you hope to get out of the event?
The summit will be a great opportunity for members of in-house legal teams within the FS sector to come together and discuss current issues, and form ideas that can help our industry move forward during a very complex regulatory and political period.