EU Law: Frank Schoneveld, Partner, McDermott Will & Emery LLP

Frank Schoneveld, McDW&E BL: What range of issues does your practice cover?

FS: My practice is a very broad one. I would simply characterise it as solving issues and disputes in the cross-border context.

Over the past five or so years, most of my work has been on competition law and litigation or arbitration, with periods where EU regulatory and trade law has seen spikes of activity. Competition law has included M&A filings with the European Commission, and advice on dominance, distribution, R&D and cooperation agreements. Advice on cartels, information exchange and leniency or settlement negotiations with the Commission have been areas of concern for a number of clients.

The arbitration and litigation work has consisted of managing other senior counsel and providing strategic advise on proceedings in ten jurisdictions including various EU Member States, the US, Channel Islands and Caribbean countries. Such cases concern the oil and gas industry where the amount in question exceeds € 3 billion. The enforcement of arbitral awards can be a very complex process and varies significantly from jurisdiction to jurisdiction. My experience with international arbitration rules and court procedures in England and Spain, as well as in Australia, has proven to be very useful here. In the field of cross-border arbitration, I have now acted as an arbitrator in over a dozen LCIA and WIPO disputes. The WIPO cases concerned domain name disputes while LCIA arbitration involved foreign investment in the tourist industry in Spain.

EU regulatory advice has covered a range of issues such as import and marketing authorisations for medicines and pesticides, the REACH processes, and energy efficiency measures. Websites for sales of consumer products in various EU countries raised both EU and national law issues on privacy, unfair contracts, advertising and IP rights. It is great to work in a team with colleagues who advise on, for example, German, French, Irish, Danish, Italian, Dutch and Belgian law. Other big projects have involved things such as labelling, packaging and waste at EU and national level in nine EU jurisdictions.

Advising on EU trade matters has slowed recently. In the past I have done over 20 EU anti-dumping cases, the last one being ethyl alcohol from Guatemala in 2008-2009. Most recent trade advice has been on UN/EU sanctions (particularly Iran) and customs/import procedures. I very much enjoy the variety of my practice as well as the diversity of my clients.

BL: How does a Dutch-Australian national who was called to the Bar in the United Kingdom and is qualified to work in Spain end up practicing in Brussels?

FS: After working as a lawyer in Australia and pursuing post-graduate studies in EU law in Amsterdam, I did a stage in the Commission’s Legal Service (back in 1987), then accepted a job with a small law firm in Brussels. Non-EU lawyers were just starting to advise on EU law and you had to be able to cover the whole range of EU competition, trade and regulatory law. As an Australian qualified lawyer, I was able to join the English Bar quite quickly after two or three years of advising on EU law. After 11 years in Brussels and work in Australia, Gaza and Oslo, I lived in Madrid for four years and eventually became an qualified “Abogado”. While in Madrid, I was advising essentially on matters of EU law. It was while in Madrid that I started doing more arbitration work, having previously experience of the field from my work with the Australian government. Getting up to speed in Spanish was a real challenge. I returned to Brussels six years ago and rejoined Stanbrook & Hooper, which merged with McDermott, Will & Emery LLP about six months later.

BL: How creative do your perceive your work to be?

FS: Very. Problem solving, mainly through legal mechanisms, but also through economic or political approaches, is a highly creative process. Establishing a negotiation and litigation or arbitration strategy is, by its nature, very creative. This is particularly so when you are up against some very sharp lawyers and EU officials with diverging interests. Designing and helping a client to successfully put in place, for example, a new R&D, cross-border sales or distribution strategy, and protecting the IP and innovation can be very satisfying.

BL: How does your current job compare to your previous experiences?

FS: Previous roles as European Counsel to the Australian Government and Head of the General Legal Division of the UN were much more political, even though the positions also essentially involved advising on cross-border matters. Because of a high profile extradition case during one of the years I served as European Counsel, my role involved almost daily contact with the media. That was very different to my current position. Being an arbitrator is also quite different as it involves acting like a judge rather than as an advocate.

Current litigation work involves a managerial role, the provision of strategic advice as well as regularly involvement in the nitty-gritty details of the applicable law. My work with the UN involved managing 10 to 12 in-house lawyers. As a partner, I manage junior lawyers for particular projects together with lawyers from other offices, especially when multiple national jurisdictions are involved. A certain level of training in management has therefore proved useful throughout my career.

Working in Government or in an international organisation can be quite different to being part of an international law firm. During my role with the Australian Government, the priorities were just as much political or diplomatic as they were commercial. Success is measured less by the number of hours billed and more by whether an agreement is signed, a dispute settled, or a commitment to follow a particular policy is agreed to.

As European Counsel to the Australian Government I was also a diplomat and either conducted the negotiations or advised on legal aspects of many negotiations with the EU as well as in WIPO, Energy Charter, OECD and UNCITRAL.

The position with the UN Works Agency in the Middle East involved managing twelve lawyers in Gaza, Israel, Jordan, Syria, Lebanon and Egypt. Much of it was advising on procurement contracts for services, and construction or maintenance works in the UN camps for Palestinian refugees. There was also one lawyer devoted almost exclusively to UN employment tribunal disputes for the over 22,000 staff of the Agency. I was pleasantly surprised by the relatively few employment disputes that arose during the year and a half I was with UNRWA. I was based in Gaza but travelled very frequently to the UN offices in the other five jurisdictions. Being a lawyer in places where there was no real “rule of law” was the most challenging part of this work. Getting medicines, equipment and food past corrupt officials, or dealing with local militia who control a camp, needed a completely different approach to the law and how to apply it. Although the UN was generally immune from national law, the UN did try to follow local law as much as it could. This was an additional challenge since the Bedouin tribes often applied their own law, and if only those of the Muslim faith were involved, Sharia law would often apply to family relationships and personal injury cases. In Gaza there was an impossibly complex layer upon layer of Egyptian law, British Mandate law, Ottoman Empire law, Jordanian law, Israeli Occupied Territories law and finally laws of the Palestinian Authority. Car accidents involving UN vehicles, pension rights of relatives of deceased UN employees, use of UN facilities to erect mobile telecoms towers, attempts by national authorities to search or scan UN vehicles and personnel, what text books could be used in UN schools (history books were sensitive), and even whether male cleaners could enter female toilets in clinics and hospitals, were all compelling issues that had legal aspects to them.

BL: What makes practicing law in Brussels special?

FS: Being at the forefront of a new system of law that is the EU on a daily basis is special. The variety of work and clients, the different approaches of lawyers from other jurisdictions and the different cultural expectations when dealing with lawyers and legal systems from around Europe is often very different to practising law from a purely national perspective. Sometimes what is not said is more important than what is said. Forming good friendships with lawyers from other cultures and learning from their experiences is very special. Having a home in a “livable” city, trying to figure out Belgian politics, and having some of the best restaurants in Europe is also special!