International and maritime lawyer Michael Goodman has many colourful anecdotes about overcoming cultural and language barriers during his career – some of which will never make it to print.
However the Principal of Avanti Lawyers, who was recently recognised for 25 years of Queensland Law Society membership, is keen to share some tips about international law.
As an international lawyer, Michael has worked abroad extensively in all jurisdictions and most regularly in Papua New Guinea. He has also appeared in the UN International Court in The Hague.
Michael says international law is “a very important area of legal practice. Australia needs to project itself beyond its borders for many reasons”.
And he explains that international law has several levels including Public International Law (between sovereign nations) and Private International Law (between citizens or companies from different sovereign nations.)
“Public International Law is a very complex weave of treaties, conventions and alliances. There are formal engagements and informal engagements based on history, culture and origin of the legal system,” he said.
“The main focus of a Private International Lawyer is trade and commerce. There are some conventions and common definitions and expressions of common usage. Usually there is a nexus to Australia. The client may be a person or a business entity.
“Culture is an important context. Matters go smoothly if you understand the culture and context of the foreign party.”
And while his anecdotes are safe with Proctor, here are his tips:
1. Usually a party has an ego-centric or culture-centric point of view. Their country, laws, culture and government is the best. Australians can be somewhat cheeky when it comes to authority figures in Australia. The Australian business culture is based on mateship and a slightly cheeky, anti-government attitude. In Australia, you do business with your “good mate”. Many expensive businesses have been purchased only to find the key suppliers and customers’ points of contact were golfing mates of the seller, and the relationship was not commercial but based on “mateship” which has now gone elsewhere. It may be different in other countries. There is always a local network and you want to be in the right one. To a great degree, you are your client and you are chaperoning them to a workable long-term deal. Much like a barrister who uses the first person to represent a client.
2. In many other cultures, you first create the relationship and then document it. As an international lawyer, you are often under a lot of personal pressure. The other party wants to know who they are dealing with and your strengths and weaknesses. Socialisation is very important. I once was involved in a dinner which extended into the night at a bar in New York, discussing a farm in agreement for an oil industry deal. The deal was pitched and discussed and finally documented on a drink coaster, with fine writing around the edges. I carefully put the drink coaster in my suit pocket and headed up to my hotel room. Next day I started documentation. Another well-known business dealmaker would stop a meeting going nowhere and meet at the local barber shop and start again. Very successful. You must fit well with your foreign partner and their presence and reputation is very important. Australians trying to cut a quick good deal overseas can be a bit arrogant. There are many good stories. I am a film and TV lawyer, and copyright and intellectual property is the key. After finally getting a meeting to pitch your script or story outline, and signing an NDA, your pitch is rejected and off you go. Before your taxi arrives to take you to the nearest bar, the script has gone to pre-production and writers are being engaged. Be wary where you fit and what leverage you have. You must be the “sine quo non” of any deal. It is much harder to do it without you or your partner having a strong presence in the field. Business is War.
3. Speed is of the essence. It is vital to record the general outline of the deal as fast as possible, and if possible, get a quick acknowledgment. Australian lawyers have an overseas reputation of creating documents in anticipation of the inevitable litigation, including against their firm. That is a deal killer and anathema in some cultures. There is no patience for draft and redraft with a flavour of intellectual or professional cowardice on every risk or consequence however unlikely. That version will usually end up in the cyber bin. I have more than once responded to one of the heavy-hitter law firms with a comment politely requesting a redraft. If you have the ability to type up notes of a client meeting with each point of agreement reached, then print it out and have it signed before you go to a long boozy lunch, do so. Often the best timing is within the euphoria of the first meeting. Monday morning regrets and rethinks can kill a good deal. Your job is to put together a workable deal ready for final documentation. A fair balance of risks and rewards in fair terms.
4. Tax. There are two rules of international dealings. One: it’s not a profit unless you get to keep it. You can make a “profit” based on your version of international accounting standards but then have to run the gauntlet of the foreign tax authorities. Two: it’s not a profit unless you get it. Even if you have cleared the way to finally convert to AUD and transfer, you can find there may be other obstacles, some clumsy and some corrupt. This is where your relationship with your “local” partner can make a difference.
5. English language. English is the language of international trade and commerce. However in many foreign organisations, all key documents are often translated into the local language and submitted to higher-ups for approval. You do not have the translated document. The approval is then translated back to you. I am aware of one case, where the series of documents were followed from English to the local language and back to English, and the deal looked nothing like what was pitched or agreed. Keep it simple and use numbers and financial projections to clarify.