International Opportunities

Author Richard Solomon is a conflicts and crisis management lawyer with 50 years of experience in business development, antitrust and franchise law, management counseling and dispute resolution including trials and crisis management.

One cannot practice law dealing mainly with distributive systems - goods, services, independent and franchised - without eventually coming upon opportunities to assist with international transactions. Inevitably a client will come to you with an opportunity to help him do a deal with a customer/joint venture in another country. You will have to decide whether to refer the client to another firm with experience in such things or to learn what must be mastered in order to provide very competent advice and assistance. If you are rule bound, without the ability to think tactically, some phi beta kappa type who gets an A in everything but lacks cunning street smarts, refer the client out to someone else. This will require good street instincts.

To many it suggests having to learn about various foreign legal systems, markets that may not function like US markets, corruption as something always having to be faced, mind bending issues of comparative taxation, language issues across many cultures and dialects and how you must change your system of being compensated in order to avoid major compensation problems in your practice.

This is being written by and for the small firm/solo practitioner. Not everyone is part of some very large international law firm with hundreds of lawyers spread out all over creation. They will get just about all the international work coming from large companies, There is a lot of international work beyond the big company client, and it is available to the rest of us if we learn the capability of providing the available substitutes for sheer weight. The Internet has facilitated access to every international resource, from law to business to banking to every possible question of jurisdiction and the impact of contacts with other nations. It does require a great deal of ingenuity and insight, the ability to play opportunities and requirements off against each other to find the right place and configuration for any international/multinational transactions or relationships.

The extent to which digital technology, including licensing trade identities and related software program access, is part of the mix, one of the configuration issues will always be the potential to have to register your client and/or the deal itself with a foreign government. If that is a requirement, then you have to find alternative configurations to present to your client, because those registrations will subject your intellectual property to impairment in local courts and commissions as well as to taxation by the taxing authority of that other jurisdiction. In addition, not every country has a "no double taxation" treaty. Not every country is signatory to reciprocal recognition of IP rights, and those that are provide the protection only in exchange for registration in county and exposure to taxation there. Not every country is signatory to reciprocal enforcement of judgments. Some encrypted software requires a special license in order to export it. You need to be aware of the implications of that as well as what to tell your client and how to configure any transaction to avoid adverse consequences. This is not for sissies.

Learn how to sort out jurisdictional options according to these and other informal issues. Almost all developed countries are signatories to the treaties just referenced, but even in those countries there can be corruption issues that make the treaty protections almost worthless.

In many instances a decision to go forward with an international relationship subject to the foreign jurisdiction will demand that your client select a local partner/joint venture/licensee/sub licensee that is "connected" politically. In a significant number of countries considered to be "developed", a few families still have the ability to make life easy or extremely hard. You need to know how to select a "connected" partner not only from the perspective of connecting to their "good will" but also from the perspective of being sure you don't alienate another local power player. These "families" often loathe and despise each other and will try very hard to sabotage each others' relationships. Socio political issues are way beyond reading up on laws and regulations. You may not have the finesse to sort that out, and it is at least important that there be discussions with your client regarding how they should arrange to account for the ephemeral vicissitudes. Here it will just about always be necessary to identify and establish a relationship with a local law firm that is also "connected" and willing to provide insights available nowhere else.

Often the country of domicile of the opposite party will be accessible from "offshore", either because it is a member of some community of jurisdictions in its part of the world or because a bank or other financial institution has a lot of experience in the area and its resources are available over the Internet. Doing business with Africans is a typical situation where all these factors are present. Elsewhere in the Middle East, other arrangements are available according to comparative bargaining strength of your client and its customer/partner. Similar issues arise with regard to your client doing business with Russians or domiciliaries of other eastern block nations. Asia is a whole different world.

Not only do you need to become familiar with what you are facing in dealing with any non USA jurisdiction, but you need to configure your office Internet protocols to save and keep at the ready all the sites to which you will have to refer every time an international opportunity presents. If you handle a few initial opportunities well, and especially if they work out well for the clients, you will become more comfortable in your own skin in this milieu and will promote yourself as a resource for it. You will, of course, sign up for relevant CLE seminars. The written materials will be valuable as general reference resources, but they will not always be relevant to any particular prospective transaction and will always need "tailoring" to any deal you may be working on.

How will your client obtain payment? Where the deal is sale of goods, that is a no brainer to configure. Where it is about services that cannot simply be unplugged, enforcing payment can become dependent upon whether the opposite foreign party believes your services are worth paying for when the due date comes around. Payment protocols through financial intermediaries is often a protocol that imposes the opposite party's desire not to be on unfavorable terms with the intermediary on top of their obligation to pay your client. You have to find pressure points. Remember that your client is probably not a McDonalds level brand impact asset. Developers would probably never miss a payment to McDonalds, but may well have fewer compunctions about not paying you.

This could go on for several more pages, but I think you now get a taste of how these issues develop according to what country, whether goods or services, whether independent or franchised, what treaties are in place, what jurisdictional issues will be triggered in any dispute mode, and so on ad nauseam. But don't give up on international practice. Once you get well into it you will be thrilled and well paid. You can also be a lot more efficient to clients than any mega law firm.