Sometimes the strangest things get me to thinking. Today it was an article, Court of Appeal rules on without-prejudice communication, by London lawyer, Andrew McGregor. An incredibly rough summary of the article is that British courts will exclude settlement negotiations as evidence.
Bear with me here, as there will be a China angle soon.
As an American lawyer, my first thought was, “of course.” Of course because US Courts have long had a similar rule. But does China have such a rule? It does not. The point here is not whether China has such a rule or not, but how often foreign lawyers engage in settlement negotiations with Chinese companies without giving any thought as to whether their communications might one day show up as evidence in court. It is difficult to take what has become instinct and re-examine it each time you are dealing with a new country.
Back when I was just starting out as a lawyer focusing on emerging markets, I wrote an article setting forth what I saw as the Four Essential Principles of Emerging Market Success, which included the following:
PRINCIPLE TWO: Keep an Open Mind. Assume Nothing.
Doing business in an emerging market means taking nothing for granted. I have a mantra for my own legal work in these countries that translates well to the business world: “Assume nothing, but assume that you are assuming things without even realizing you are doing so.”
Things will be different. Very different. Things you take for granted in your home country might not exist in the emerging market country. Things you take for granted in your home country might be the exact opposite in the emerging market country. Things you think will be totally different in the emerging market country may be exactly the same. Things you thought you knew about emerging market countries based on what you know from another emerging market country may be completely different in a neighboring country, or even in another region within the same country. The principle, one more time: Keep an open mind, and assume nothing.
A couple of the international dispute resolution lawyers at my law firm are right now involved in a high profile case in an Asian country other than China that is forcing us to confront anew certain legal doctrines we usually just take for granted, such as the following:
1. Right to counsel of your own choosing.
2. Right to due process.
3. Admissibility of hearsay evidence.
4. Conflicts and waivers of conflicts.
These are the sort of things that go to the heart of lawyering and yet seldom arise in the typical international business transaction.
We are finding ourselves wanting answers to these sorts of very basic issues as those answers may influence our overall strategies.
I personally like being thrown out of my comfort zone from time to time and I would guess most of our readers do as well. I say this because those not from China who are interested in China almost have to be the sort of people who revel in the new and different.
Am I Right?