Are you the law's international man
of mystery? The answer to the prayers of corporate counsel in global companies?
Can you leap jurisdictions with a single bound? Effortlessly unravel
the tangle of law, culture and procedure? Wrap your arms around a wriggling
mass of seemingly conflicting regulations, and fearlessly work with them to
make compliance a reality?
Toby, the firm's anti-trust
specialist, was convinced he'd got the right look for the international project
kick off meeting
No?
Well don't worry, you're not alone.
Conversations with in-house counsel
about the difficulties supporting business overseas often have familiar themes
(more on this later), but what's becoming clear is that these challenges are
becoming more acute.
Whether it's the sheer volume of
international business increases, the interest in emerging markets continuing
to heighten as western markets stagnate or become saturated, or technology
adoption increasing the ability to communicate effectively across the world,
more and more in-house lawyers are being asked to operate in jurisdictions
which are often way outside their
comfort zones.
Bear in mind also, that many of the
challenges described below might be experienced by those in a law firm that is
supporting an inhouse client with an overseas project (and this applies even
with a global firm working cross-office) almost to the same degree as an
in-house lawyer.
The problems start with the ability
to quickly identify what the relevant issues are. It may be that you have an
idea of what they are - the big headline-grabbers like anti-trust, employee
issues and anti-corruption legislation are obvious examples. However, it may be
that there are a bunch of the infamous "unknown unknowns" which might be
substantive law, but they might also be difficulties around the legal process
or simply understanding the legal system.
Some of them you might be able to
get an overview from research or asking the right people, but others will
require hands-on experience of the situation you are facing.
Which leads on to the next step in
the journey - selecting and managing local counsel.
Given that the problems above (not
knowing what the key issues might be) immediately cause difficulty in having
productive, early-stage conversations with business colleagues, it's not
surprising that they can also make the relationship with local external counsel
much more difficult to manage.
The first challenge is finding the
right lawyers for the matter in hand. Existing contacts, referrals from trusted
sources and directories (online, paper) are often the first port of call, but
even then the answer might not be the right one.
When I was inhouse I had
difficulties both with specific offices of global firms (delivering anything
but a consistent global service) and local firms that were recommended at a
firm level, but who had individuals that weren't up to scratch.
The next step is of course
instructing the local counsel, which is understandably more difficult than
using external lawyers in your own jurisdiction. Lacking an understanding of
the key issues means giving a tightly defined project scope is difficult, which
has a knock-on impact on costs and timescales.
There may also be softer factors at
play, ranging from the more obvious such as language and cultural barriers
("what do you mean he's out for lunch and won't be back for three hours, we
close the deal this afternoon!") to those that are more difficult to put your
finger on such as differing views of risk and mismatched service expectations.
For multi-jurisdictional projects,
this is the point at which project management skills come into play. Assuming
those skills exist (which is not always the case), invariably the international
element to a transaction adds a bigger administrative overhead to the project,
and critically for the business, lengthens timescales.
Which leads nicely on to billing.
It's horrible.
Managing billing on an international
project, particularly one in multiple jurisdictions, is invariably a nightmare
which would warrant its own post. I've found the best strategy is to close my
eyes and wish really (really) hard that all the bills arrive in the right
currency, on time and for the agreed (or a reasonable) amount. Admittedly it
didn't work that often.
So, there we are. A post full of
problems this week. There are mitigating strategies at almost ever stage of
course - getting contacts on the ground (folks in the business can be a mine of
useful information) is a great start, as is developing your own network of
trusted advisors in major jurisdictions. Getting a baseline understanding of
different international cultures helps (have a look at Riding
the Waves of Culture: Understanding Cultural Diversity in Business) as does
up-front conversations about expectations on both sides of the table.
However, my point was really that as
a profession, we need to crack this. To efficiently serve clients, whether
internal or external, in a global business environment, we need to provide a
seamless service. It's difficult, but not insurmountable - don't you think?
Read more from The
Intelligent Challenge
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