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SP&P is a team of lawyers whose aggregate professional experience exceeds 220 years. This time is the market capitalization on your competence; it is our nominal value that allows us to compete for leadership. We are oriented at our Clients’ business; and we are dedicated to it. Aside from knowing the legal provisions, we work for their practical enforcement, even if now and then it means busting stereotypes. We are not afraid of difficult problems and we can find unconventional solutions, while keeping within legal bounds and professional ethic.
5 hundred years of the Statutes of the Grand Duchy of Lithuania – one of the first European Constitutions. The document regulated the issues of public, civil, criminal and judicial law. The Statutes were published three times: in 1529, 1566 and 1588, they were written in the Old Belarusian language spoken by the population of the Grand Duchy of Lithuania in the 14th -19th centuries.
10 public law provisions were stipulated by the Statute of the Grand Duchy in 1588. The document declared equality of all before the law. The 10 provisions had constituted a new legal framework, and served as a model for law makers for two and a half centuries.
20 years ago the Belarus independence was enshrined in law. The nation’s sovereignty underlaid the foundation of its Constitution. Now, this event is not marked officially.
50 years ago the Basics of the Civilian Law of the USSR and Union Republics came into effect. They laid foundation of the modern civil jurisprudence and a basis for developing the 1964 Civil Code of the BSS through which was learned by all SP&P partners and other lawyers who began their practice after Belarus had acquired its independence.
100 cities of the Grand Duchy of Lithuania that were granted the Magdeburg Law in the 14-18th centuries, thereupon the citizens’ economic activities, property rights, socio-political life and estate status were regulated by the city’s municipal legal framework.
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Legal Crisis Management
ALEX AN DE R ST E PA N O VS K Y, Managing Partn er
Specialization: Legal Crisis Management Professional experience: 19 years Restructuring Bankruptcy Public-private partnership (PPP) M&A Banks
These days we have a growing number of Clients who had built, developed and protected their business on a 50/50 basis with a friend or a family member; however, as the relations began to show sings of strain, a conflict situation evolved, requiring our intervention. It is rather outstanding, when a problem is identified at the conflict’s onset and the businessman found it possible to call for lawyers’ support. That helps a great deal with conflict resolution. It is much worse, though, if the problem has accumulated a “long tail” of negative attitudes and ill-considered moves seriously aggravating the settlement process. In fact, every business now and then comes across crisis situations. For the last several years I would usually find myself helping our Clients resolve various complicated business problems: demergers, mergers and acquisitions, business restructuring and bankruptcy Now I can positively state that we are experts in resolving crisis situations in business. There are, though, not necessarily conflict situations — not only corporate ‘divorces’, but mergers can be difficult issues just as well. This is a job at the junction of jurisprudence and psychology. And it primarily includes a largeamount of analytical work. There are various methods and approaches, negotiations, understanding of the goals and persistence in achieving them. This work may not be performed without an extensive experience in both business and law, or without a stretch of imagination: such tasks would most often demand extraordinary approaches. With a rather extensive background as a bank employee, corporate lawyer, crisis manager, executive of several companies, I find it stimulating to deal with such affairs and help our Clients in settling truly challenging issues. Pondering lately about what I specialize in, I have realized that my daily work is more than mere specialization. Recently, a Client called with a request to split a business that he had been building with his partner for 10 years. Capital participation is, as usual, 50/50, and it is not a big surprise to find out that the CEO takes the opponent’s side. Foundation of a business on the 50/50 basis would some time or other entail problem with the company management. As practice shows, the companion backed by the CEO may, in fact, be considered as the one who keeps the situation under his control. For the project, we built a project team of lawyers with adequate analytical skills and experienced in resolving conflict situations, specializing in tax law, intellectual property rights and other areas. The correct arrangement of the lawyer team, knowledge of their expertise, skills and characters, as well as the Client’s engagement in the team work would immensely influence both process and outcomes. To elaborate several possible development scenarios of that potentially conflict situation, as well a mitigation action plan, we devoted a considerable amount of work to identifying and defining the Client’s problems and expected outcomes. Based on the interview data and documents that were provided to us, we built a “relationship map” of all participants of the conflict situation and developed their psychological profiles. The action plan comprised, first of all, a number of negotiation rounds with all stakeholders and reconciliation of several positions, i.e., achievement of the goal set by our Client. At this point it is important to apply a combination of jurisprudence and psychology, as all such situations are emotionally charged. Owing to the coherent joint actions of the SP&P lawyer team and the Client we managed to achieve the results needed for our Client — in negotiations, without going to court: the founder managed to withdraw with a satisfactory financial compensation. In that case it really mattered that our Client had relied on our arguments and realized that applying to a court
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would not have resolved his problem. Law suit is only one of a number of tools and, apropos, it is not necessarily the most efficient. A problem should better be resolved at negotiations with the parties’ representatives based on a pre-designed negotiation plan and scenario. Some expertise in dealing with such projects and problems I, certainly, draw from books. I truly enjoy finding diamonds among hundreds of therecent years’ publications on business, management, marketing or sale of professional services. One of the latest findings gave rise to the new SP&P project — publication of a book of our colleague from New Zealand, Simon Tupman “Why Lawyers Should Eat Bananas”, which is due to come out soon. Its tips help me with building relations with my Clients, in professional and interpersonal situations. Besides, I am very glad to see that many co-workers in SP&P also became so enthused with my idea and advice of our colleague Tupman that they partook of the book translation and referred to its tipsto other colleagues. Before SP&P every partner had had his or her individual business way, which determines our point of view on the Client’s problems and goals, aside from the prism of legal regulation, from the position of the Client’s business interests, valued as our own. We share this attitude to the Clients with our employees. I can do it,aseach project’s specifics requires establishmentof project teams with lawyers specializing in various fields, depending on the the required scope of legal research.
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Corporate Risk Management (Corporate Compliance)
VALERY PA PA KU L ,
Managing Partn er Specialization: Corporate Risk Management (Corporate Compliance) Professional experience: 19 years Foreign investments M&A Privatization and companyrestructuring
In a plain language, corporate risk management is a foundation of all and any commercial activity, a basis for further development of relations between founding partners, it means civilized dialog with government agencies and protection from possible problems coming from the competitors. Corporate compliance allows defining the procedure of opportune identification, analysis and mitigation of the risk of violation of the law and it determines the utmost protection of the Client’s interest and consideration for the Client’s capacity to execute future rights and duties, the ease of control, a precise forecast of the business foundation and maintenance cost. Development of a correct, legally impeccable flowchart of the company activities from the founders’ standpoint, definition of its organizational and legal form, ownership and financing issues; inspection of the flowchart components in the light of the investment, labor, antitrust, tax and monetary legislation; elaboration of key corporate documents — all of them make only the visible portion of our work on such projects. The irreproachability of foundation of any corporate system allows holding the required number of “superstructures”, taking into account the “seismic situation” of our economic and political environment. At the same, a clear calculation based on expertise, experience and the specifics of the Client and the Client’s area, comprehension of the market, business milieu and the legislative trends make our work useful for our local Clients and understandable for our foreign partners and investors. Throughout the world, compliance is an indispensable basis of all investments. CASE IN POINT Two partners — a foreign investor and a Belarusian company — developa project aimed at production of goods in Belarus for export, and they plan to purchase a State-owned production facility. In that situation, the foreign investor requires transparency, clearness, guarantees and protection of investments, and availability of the capital repatriation option. Duetoignoranceofthelocallegalsystemandunfamiliarlegalmechanismshespends a long time in hesitation and can hardly make decisions. The Belarusian, in his turn, has been long out in the local market, he knows all its intricacies, recognizes the objective operating difficulties and certain business risks in Belarus, and he desperately needs investments and is cautious about inconsiderate moves. In spite of the similarity of interests of such partners, there are, as a rule, a number of controversies multiplied by the ambiguity of the law and different business experience. While the foreign partner is astonished by the absence of a legal basis for conclusion of a shareholders’ agreement and the possibility to provide in it, e.g., for future acquisition of stock, the Belarusian cannot apprehend the meaning of the reservation about dispute review by foreign courts according to a foreign law in part of subsequent execution of their decisions. In that situation, there are quite a few visible and invisible pitfalls, such as: - government property acquisition risks identified at proposal analysis and legal audit (due diligence) of the company, during the investment contract preparation and follow-through; - correct method of project investment and repatriation; - relations between founders and hired managers; - relations with the public sector (involvement in public programs, public procurement, relations with concerns and ministries, social burden); - tax optimization;
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- guarantees against nationalization, property seizure and hostile takeover. It is obvious that, even at the future company’s business planning stage, the lawyer supporting the company’s entry into the market, should, aside from being able to cope with registration activities, be truly broad-minded and have a good grasp of a number of legal issues. Our practice shows that even a superhero cannot do it, in fact. Success is guaranteed by coherent efforts of a team of lawyers specializing in various parts of the legislation. Top specialists would know how such projects are implemented in reality, including the risk of court action, position of government agencies, legislation amendment plans. We did, though, manage to build relations between the above investors! We also took into account the founders’ preferences and analyzed current and future risks. In order to minimize risk and ensure business manageability in Belarus, a management company was established with the above founders. That company founded a number of new ones in order to distribute investment, production and trade risks. On the other hand, the Belarusian founded a company abroad with a foreign investor, which subsequently acted as the major founder of the management company in Belarus (i.e., the deal was partially structured under the foreign law, including the above shareholders’ agreement). I believe it is highly important to understand the basics of strategic planning, analysis of the corporate marketing mix, management and motivation, notably, not only in relation to our company, but to our Clients as well. For that reason my final MBA Executive project (2007) was dedicated to the strategy of development of a legal firm. I have proven this in practice — our company is not developed chaotically — in 4 years we have had two successful mergers under the belt, as well as a considerable gain in turnover. My interest in leadership typology made me arrive at a simple truth: ideal leadership is impossible, since an ideal leader would have to combine different, often incompatible traits. According to I. Adizes, he should be an enterpreneur, administrator, producer and integratorat the same time. Every lawyer without exception would narrate about the quality of his services, while the Client usually cannot assess the quality of services at the time when they are provided. Service is always visible “here and now”. For that reason, one of the key documents of our company is the SP&P Rules of Provision of Legal Services describing in the most comprehensible manner the minimum corporate standards of our daily communication with Clients, order receipt and delivery, interaction between colleagues and order implementation control. Services enhancement can be endless; therefore, our weekly internal seminars and training events are often dedicated to service provision standards.
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Competition and Antitrust Law
TATIAN A IGN AT O VSKAYA , P artner
Specialization: Competition and Antitrust Law Professional experience: 15 years Competition and Antitrust Law Intellectual Property Rights Telecommunications International Trade/Antidumping Investigations
I am happy to realize that competitive and antitrust law in Belarus today gradually again becomes a regulator of relations between market entities. Nonetheless, the antitrust regulation has always been there — investors have used these services all the time, therefore corporate policy writers of all international companies assess the antitrust risks of the new market as rather fair. At the same time, our extensive experience in the field of advertising and tenders are classic parts of the competition law in the countries where it is developed. Today, on the verge of establishment of an antitrust Belarusian agency in a new format, we may positively state that the competition legislation and its practical enforcement will undergo a new wave of development. Even despite the fact that, during the long years of government price regulation, business in Belarus has in fact lost the sense of possibilities and ways of protection of its right for fair competition and free access to the market. As it comes to Belarus, competition and, in particular, its protection on the government level is, possibly, one of the few effective ways and a necessary prerequisite of reestablishment of the lost trust of businesses to the government. When concluding a distributorship or dealership contract, one should understand the meaning of the competition provisions in order to keep from concluding exclusive agreements or concerted actions violating the principle of equal access to the market for other entities. When it comes tobusiness restructuring, one should take into consideration the antitrust law provisions in part of disallowance of establishment of an entity (as a result of restructuring), which potentially domineering position could lead to negative consequences for the business of its competitors, or to introduction of government price regulation of it proper activities. While planning a promotion campaign, one should keep in mind the competition law provisions that prohibit comparison with the competitors’ goods, work and services. Our Clients have a need in our antitrust law consultations both when they work in Belarus and when, owing to their growth, they enter new markets. Here is one of the most recent examples: we helped a Client — a Belarusian producer of raw materials supplied mostly to Russia — to avoid initiation of an action in the Russian antitrust agency against a claim of its competitor. In essence the claim boiled down to the inability of a small Russian competitor company to conclude supply agreements of similar materials with our Client’s consumers. After receiving the claim, the antitrust agency requested documents and comments from the stakeholders. We helped the Client to draw and present relevant property information with the market share assessment and an indication of available facts on the market, substitutes of the materials and substantiation of absence of concerted actions, impossibility for the competitor to provide the entire volume of demand of the Client’s buyers; we co-ordinated our views with our Russian colleagues and with the Client’s business partners. As a result, the antitrust agency did not find reasons for initiation of an action and conduct of an investigation on violation of competition rules in relation to our Client. Although SP&P has always been a national company with a profound understanding of, particularly, Belarusian legislation, leaving the boundaries of the national antitrust law has become possible owing to my activity in the field of competition law with the non-commercial Partnership “Assistance to Competition Development in the CIS Countries”. The Partnership is a forum for cooperation with the CIS Inter-State Antitrust Policy Board and it lets practicing lawyers of various countries to influence the development of a more progressive legislation in the CIS countries in the field of competition, and a unified practice of its enforcement. For instance, I take pride in my participation in the work on the Report on the State of Competition in the CIS Mobile Communication Markets. Even if now joint research on the mobile communication markets, based on the Report outcomes, and used for as
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grounds for reducing roaming communication tariffs, have been held only in Russia and Kazakhstan and did not cover our country, I am certain that similar processes are inevitable in Belarus within the Customs Union. The Customs Union in general, its regulation and first steps in development of a super-national legislation, represent rather topical issues for our practice So far, there is no serious interest in this field on the market due to the ignorance of its possibilities; however, our lawyers, examining the new international obligations of the Republic of Belarus, find quite a few misreadings. They become a subject of internal professional discussions and multiple inquiries on behalf of SP&P regarding interpretation of disputable legislative provisions and their adjustment with international treaties, particularly, in part of customs issues and non-tariff regulations, merchandise quality and safety requirements. Internal disputes and discussions are normal in our work. Each situation and each written document is always discussed by, at least, two lawyers of SP&P, which proves our saying: when there are two lawyers, there will be one opinion!
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Dispute Resolution
ANDREI VA SH KE VICH , P artner
Specialization: Dispute Resolution Professional experience: 21 years Real estate and construction
In SP&P, I am in charge of the judicial field. On the one hand, in fact, every legal company has its judicial practice, since all market participants would, sooner or later, have judicial disputes. On the other hand, the colleagues have long debated whether judicial practice is a stand-alone specialization in a large legal company. Can one be just a process professional? In our company we stopped arguing about this issue. The lawyers of our judicial practice are specialists in other fields of law as well — corporate, antitrust, intellectual property rights law. I, for example, along with judicial disputes, deal with the issues of construction and real estate. You may ask, whether a lawyer could claim to understand construction standards and regulations? Of course, not and there is nothing entertaining in studying construction estimates, either; however, with hundreds construction-related judicial disputes under my belt, I can assure you that even an estimate could become the missing link in solving the professional problem — a construction-related dispute; therefore, a litigation lawyer should have a better understanding of the area that he represents in court, than the other colleagues. One of such cases, and a rather exemplary one, is the legal support of activities of a Client, who was a construction developer and commissioned rather complicated facility, with a number of unhappy investors and with violation of terms on the part of our Client. It should be mentioned that, with our help,this facility is now in operation now; the Client could not only handle dozens of court proceedings during the phase of commissioning and acceptance, but they also minimized court losses when the necessary agreements with the investors could be reached out of court. It became possible, first of all, due to the fact that all legal provisions and our advice were taken into consideration on the stage of creation of contractual and document basis. Secondly, during the project implementation, all necessary defaults on obligations of our Client, which no construction can do without, were duly documented and reported to the investorsand partners. And, most importantly, in resolving the arising conflicts, the Client would always trust our advice based on law and understanding of the construction business; disputes turned into court proceedings only when it was unavoidable. Although, as a litigation lawyer, I should confess that the outcomes required by the Client could be reached due to the lawyer’s ability to deliver a substantiated legal position to the other party and conclude an agreement. However, once a case in court, a litigation lawyer comes to help; he is the process master and may, knowing the practice, assess the prospects of a certain dispute; however, working in team, he may bring in colleagues from SP&P’s other specialized practices, to formulate the Client’s legal position. I have had an interest in regulation of the Belarusian legal services market since the very onset of my profes sional life. As it approximately coincided with the appearance of private practicing lawyers in the market in gener al, the combination of practice and public activity lets me better understand all the intricacies of our profession. During my work as Deputy Chairperson of the Board of the Belarusian Public Association of Business Lawyers, I had to partake of the development of draft rules of lawyer professional ethics, and rules of provision of legal services; I took part in the working group on development of the concept of a draft law on reforms in the legal profession and the legal services market in Belarus. Contacts with colleagues facilitate achievement of professional goals. Experience with market regulation also helps augment personal competence and share the expertise with our colleagues in SP&P. Team work in general means a permanent exchange of experience and knowledge. Having tried various forms of individual and partnership legal practices during my professional life, I am in a position to assert now that the strength of a team is in its aggregate expertise. Ongoing accumulation and classification of information raise the value of our expert opinion for our Clients. Therefore, all SP&P’s judicial experience isinvariablyconsolidated and and made available for other colleagues as analytical information and regular inhouse seminars.
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Tax practice
ELENA SA P E GO , P artner
Specialization: Tax Law Professional experience: 19 years Labor law Transfer practice
The tax practice that I am in charge of now has recently become a stand-alone structural unit of SP&P. The very fact of distinguishing tax issues as a separate area speaks of the importance and demand for the SP&P customs services on the part of our Clients and market in general. In the process of growing their businesses, our Clients learn to appreciate tax consultations offered not only by accountants and auditors alone, but lawyers as well, since taxation definitely combines both accounting and legal aspects. And only a combination of financial and legal consultations in the field of taxation provides for the most efficient resolution of the Clients’ problems and the best planning of their activities. Only this approach guarantees economic efficiency and legal safety to the Customer! I have dealt with the issues of cohesion of various legal areas with the tax legislation for almost twenty years. I know both the legal regulation of tax issues and, which is important, the law enforcement and judicial practice. My personal experience in that area, my skills and abilities developed with the development of the Belarusian tax legislation. Who other than a practicing tax lawyer could set the best “network” of agreements to get the maximum efficiency? Who other than a practicing tax lawyer can take a fresh look at business processes (existing or planned), see the possibilities offered by their combination, for instance, civil and tax legislation and suggest the most beneficial and rational solution? And finally, who, other than a tax lawyer, could warn about possible mistakes, assess potential risks and at the same time provide a cushion in the most questionable situations? At times, even the easiest decision about the use of a certain contract type may bring a substantial economic effect at tax accrual. At the stage of new business planning, the project due diligence surveyhelps, first, to find tax solutions — and then these decisions should serve as a foundation for organizational, legal and contractual relations. It is this approach that helps find the best decision for the Client. And the importance of tax and legal consultingleaves absolutely no doubts when tax agencies press charges against our Clients demanding additional payments to the budget. Generally, such issues also remain at the junction of tax regulation and other legal sectors. It will suffice to cite an example when tax agencies called our Client suggesting an additional payment of USD 250,000 of the land tax and penalties of the land plot use. It should be mentioned that in that case the Client had not used the plot for 2 years; however, the Client failed to draw due documentation on return of the land plot after the end of the period of its allotment for construction purposes. In that situation, we examined a large number of various provisions, not only those pertaining to the tax and land law. However, only an overall assessment of all circumstances made possible the only acceptable outcome for the Client — a situation with no claims from tax agencies. Our Clients’ business has long left the national boundaries, and a large number of business relations of Belarusian companies concern the Russian market to a certain extent. Thus, the trends of the Russian, inter alia, tax law, are highly important for our Clients’ business. As is showed by our longstanding monitoring of the Russian law enforcement practice, the most significant tax solutions, tested through judicial practices, will sooner or later be applied in Belarus as well. Considering the ongoing experience exchange between tax officers of Russia and Belarus (by the way, Belarusians can also teach their Russian counterparts a few things), we regularly exchange new practical knowledge and experience with our Russian partners and colleagues, regardless whether it refers to a specific case in process. Therefore, in our consultations on Belarusian taxation issues we will always take into account the nuances that he Russian tax regulation could offer to our Client.
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One of the functions of a tax practice is support of other SP&P departments. Each issue of SP&P that is not directly related to tax consultation is also reviewed by us in the light of taxation, since the assessment of both the situation and the possibility to resolve the Client’s problem should be based on the most economically profitable and safest decision. Proper taxation of business transactions is, in my view, the second in importance goal of business, without which one cannot achieve the primary objective of profit generation in maximum amounts by legitimate means.
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