As a banking lawyer of rather too many years, and having seen the light and moved into the exciting world of ‘new law’ a few years ago, I recognized that these two seemingly distinct worlds could collide and generate new solutions for our clients.
My early consulting work focused heavily on the in-house operating models of global banks. Unsurprisingly, much in-house resource was focused on enabling transactional work. However, consistent themes emerged: private practice mentality, unarticulated risk appetite, lack of clarity on instructing and working with external lawyers, silos – inconsistency between teams; inconsistency between business lines; inconsistency between products; inconsistency between locations, limited deployment of technology, senior teams in expensive locations etc.
While these teams were deemed front line business critical and not the natural contenders for change it was clear that improvements in the model would yield significant efficiency gains. We have seen changes emerging in the market often centered around the establishment of transaction negotiation functions potentially alongside a level of automation, most often developed in-house but less often considered candidates for external management/ outsourcing, unlike less core lower value commercial contracts work or specific simple contract types such as NDAs. However, driven by increasing focus on cost and a pro-active approach to risk, we are seeing transformation initiatives in transactional banking accelerate and other models emerge.
These models often involve partnering with an external provider to deliver an end-to-end transaction solution and can provide a number of benefits, including:
- a scalable solution that may develop from a proof of concept around a particular loan type but then deliver value by incorporating quickly further loan types and at the same time breaking down silos and driving consistency
- ‘right location right resourcing’ levers, recognizing that unlike heavily standardized ‘back office’ work more senior legal resource and judgement may need to be deployed to ensure business confidence and quality, but with a flexibility to shift towards more junior resource as playbooks develop and improve
- cost certainty in the form of annual retainer fees coupled with incentives to identify further efficiencies
- the ability to ‘hook on’ limited in time projects, often driven by regulatory change such as IBOR, while maintaining fungibility between the core and supplemental teams
- improvement of the ‘front door’ with a clear interface between business units, other stakeholders and the transaction team and ongoing contract management.
My experience of helping to implement such changes is that, while there may be some simple loan template starting points, when dealing with sophisticated and often platinum level counterparties, there is a need to design a solution where relationship management with the business units and sufficient hand-holding is combined with improved processes and day one efficiency gains, bridging towards a longer term model which rewards continuous improvement.
The set-up phase is key and, while interim solutions involving deployment of more unstructured experienced resource can meet immediate needs, it should be given sufficient weight in order to design for long term success.
Ensuring such success tends to require:
- advice from myself and other subject matter expert lawyers throughout the scoping phase – while it is easy for a lawyer to go ‘native’ their involvement alongside expert consultants ensures detail is not missed and the overall result is fit for purpose
- consultation with and feedback from business stakeholders and the continuing legal function in order to define clearly roles and responsibilities
- an express consideration of cultural differences – while a solution lends itself to a global approach which can often be a key driver, minor tweaks can mitigate any geographical sensitivities
- a focus on systems – will the externally managed team be housed on internal systems and if so how, or will they utilize and lever their own systems and how will this impact on functionality and look and feel?
- communications and the requirement for change management and ongoing project management and the relationship with in-house sponsors
- the design, development/improvement and implementation of processes and playbooks
- reporting and MI
While it is still relatively early days in this area, we are seeing some great results and it is an exciting time to be a banking lawyer in new law helping accelerate the pace of change over the coming period.
David is a partner in Eversheds Sutherland (International) LLP and Head of Operations for Konexo. He was previously Head of Banking at Eversheds where he had a broad practice acting for lenders and borrowers in relation to a wide range of banking and capital markets transactions. He is also the client partner for several clients of the firm. He has operated across many sectors but has particular knowledge of the Financial Institutions sector. Through his client relationships and transactional finance work, as well as senior line management roles within Eversheds Sutherland and Konexo, he brings extensive experience of legal team strategy and implementation with a focus specifically on new legal service operating models and resourcing needs.
Konexo is a provider of legal and compliance services. Developed by Eversheds Sutherland, Konexo operates globally through different entities and is present in the UK, Hong Kong, Singapore, Malaysia and the US. David is instrumental in Konexo’s business expansion in Asia, and helped to established the Asia delivery center in 2019.