Monthly Archives: November 2003

November 23, 2003

Lost in Translation (Part Deux):

This is one of my favorite tidbits on working with foreign counsel. Your local counsel has all the right credentials. His English is excellent; he worked (briefly) for a Wall Street law firm after his LLM from an Ivy League school. So why do you have a funny feeling that the answers he’s giving you just don’t sound right?

More times than I care to remember, after a conversation or even email exchanges with foreign counsel, I still wonder if I have the right answer. I ask a question, foreign counsel gives me an answer. Done, right?

Not quite. Many times, we fall victim to the phenomena of “talking apples and hearing oranges.” It usually goes like this: you ask about an issue “so, how are the apples in Mexico today?” On the other end of the line, foreign counsel says reassuring things like “yes” and “OK” (thereby lulling you into a sense of complacency) and foreign counsel, thinking that you’re asking about oranges, replies “I’m afraid that can’t be done in Mexico.” The problem is that due to a myriad of influences, including, English being foreign counsel’s second or third language, cultural differences, and even bad phone lines, foreign counsel’s answer could be absolutely correct – to the question he understood was being asked, which unfortunately may not be the question you’re asking.

It’s not a pretty sight if you relayed foreign counsel’s advice to the client and later on, someone else on the deal proves that you’re wrong. If the problem is material enough, it may even be a good idea to put your carrier on notice (remember that thing about negligent selection of counsel?).

So, how do you raise the “confidence index” on foreign counsel’s advice, especially if you don’t have the luxury of getting a second opinion? Here are my basic survival tips:

1. Ask the same question several different times – and in several different ways. For non-US counsel, it never hurts, before giving the answer, to repeat the question or say something like “Let me make sure of what you’re asking…”

2. Even if foreign counsel’s English is good, don’t assume that her English is the same as your English. For example, to “table an issue” has opposite meaning depending on what side of the Atlantic you’re on. In American English, to “table” an issue is to remove it from consideration. On the other hand, to the Queen’s English speakers, to “table” an issue mean to present it for consideration. And I wouldn’t make the mistake of thinking that it’s only like that when you’re doing a deal in London. Don’t forget that the Brits’ influence, including that funny English they speak, is prevalent not only in Europe but also former colonies like Singapore, Hong Kong, and India.

If you have a particularly painful – yet in hindsight, funny – story along these lines, email me to be a guest -blogger. The next blog on this subject, I’ll talk about a related but necessarily distinct topic of not taking “no” for an answer.

November 2, 2003

Lost in Translation: Musings on

After a mind-numbing viewing of Charlie’s Angels, I thought I’d spend the next few hours on the plane back from Japan to muse abit about cross-border dealmaking. This will be the first in a series of blogs on this subject.

It’s the Relationship, Stupid! As American lawyers, we’re taught to believe in the written contract as king and as such we must provide for every little contingency under the sun. Voila, the famous 100 page kitchen-sink American acquisition agreement! We also believe that once the contract is inked, the negotiation stops.

In my experience, deal docs from other countries (particularly the civil law jurisdictions) tend to be very skinny. Aside from the fact that lawyers in civil law jurisdictions always tell us that “eet’s all in zee Code,” how can you explain the difference in approach to contracts?

As I’ve learned (the hard way), it all comes down to that fact that in the US, we think the contract is “the deal.” Outside the US, the relationship is “the deal.” The non-US agreements tend to be more framework in nature with the principals comfortable in their ability to work things out as needed. To the distress of American lawyers, once the contract is signed, the real negotiations begin!

So if your client is planning to do a deal outside the US (or a US deal with a non-US company), tell them this: A good agreement cannot fix a bad relationship, but a good relationship can fix a bad agreement.

So relax and do what Asian and European dealmakers have been doing for centuries: wine, dine, and (then) sign…then wine and dine some more.