ChinaLat Law : China and Latin America Litigation Lawyer & Attorney : Diaz, Reus, Rolff & Targ Law Firm : Trade, Business, Dispute Resolution

QDuring last weekend's Summit of the Americas in Trinidad and Tobago, US

President Barack Obama sought out Venezuelan President Hugo Chavez to shake hands, drawing the ire of conservatives in the US, including former House Speaker Newt Gingrich, who said Obama's actions showed "weakness." Are US-Venezuelan relations on a new track after the summit and after Chavez's announcement that Venezuela will send a new ambassador to Washington? What might prevent improved relations between the two countries?

AGuest Comment: Adrian Cruz: "Last weekend's Summit of theAmericas

performance byPresident Obama was most disappointing,albeit predictable. Mr. Obamahas been in an apologetic tour that startedin Europe last month and ended withphoto ops with Hugo Chavez in LatinAmerica. The President of the UnitedStates should be seen palling around withour supporters, the likes of Uribe of Colombia and Calderon of Mexico, andnot with Chavez and Ortega while makingovertures to Raul Castro. It can onlydemoralize the often times persecutedsympathizers of democratic government inopposition to Chavez, Castro and Ortega.Latin America needs a strong, proud,benevolent America, willing and ready tostand for the democratic principles as statedby its founding fathers, not a pathetic, weak, apologetic and slumbering papertiger."

AGuest Comment: Jennifer McCoy: "Allegations of weaknessby Barack Obama for

greetingcivilly an elected head of state at agathering of hemispheric leaders is absurd.Obama's message to the Latin andCaribbean leaders was that the US ought toacknowledge past mistakes and the legacyof past interventionism, but that othercountries should also recognize their own responsibility for their state of affairs, andall of us should be looking to the future todetermine how to work together to solveour common problems and enhance ourgeneral welfare. I was at the summit and Iwitnessed the overwhelmingly positivereception of the hemisphere to the newUS administration, and an almost visiblesign of relief at the changes inWashington. Even Chavez recognized thischange and wants to be a part of it. Thatdoes not mean that the US will suddenlyfind that all contentiousness has disappeared,particularly with the countrieswho have expressed the deepest grievanceswith US policy or with whom theUS has the most serious discrepancies.Venezuela's foreign policy, in particular,is predicated on challenging US dominancein the region and the world. But ifVenezuela is willing to restore diplomaticcommunications by exchanging ambassadorsagain, the US should certainly takeadvantage of that signal to see on whatissues, and how far, a more cooperativeeffort can be constructed to deal withserious issues like ensuring the oil flowwhile curtailing the drug flow. At thesame time, it provides channels for theUS to express its concerns about democraticerosions like the incursions on theauthority of elected governors and mayors."

AGuest Comment: Gregory Wilpert: "It seems that US Venezuelarelations are going

toimprove as a result of the recentencounter between Presidents Obamaand Chavez. Contrary to the impressionmany in the US have of Chavez, he is veryinterested in having positive relationswith the US because he is genuinely concernedabout US intervention inVenezuelan politics and hopes that agood relationship will forestall suchintervention. What would derail thispotential improvement of relations,though, are not so much actions byVenezuela, which is unlikely to do muchthat would affect US interests, but USactions, such as the continued funding ofopposition organizations via the NEDand USAID, or the maintenance of sanctionsdue to Venezuela's supposed lack ofcooperation in the war against drugs andterrorism. Also, considering the divergentstatements Obama made about hisencounter with Chavez and those madeby his advisor Dan Restrepo, it seems thatthe Obama administration still is of twominds about whether it actually wantsbetter relations with Chavez. There is reasonto believe that the Obama administrationmight still try to keep Chavez atarms length mainly so that its détentewith Cuba does not look too 'dovish.' "

Adrian Cruz is a member of the Advisory Board of Cross Keys Capital.

Jennifer McCoy is director of the Americas Program at the Carter Center and professor of political science at Georgia State University.

Gregory Wilpert is adjunct professor of political science at Brooklyn College.

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APR09 ISSUE106 Print this article

Carlos Gonzalez and Arti Sangar present a guide to finding the right lawyer

Alternatively, clients and attorneys may find each other through word-of-mouth or reputation. The internet and specialised search engines which profile attorneys and their law firms also provide a useful tool for researching a lawyer’s background and experience.

What happens, however, when you need to hire a lawyer several thousand miles from where you live, in another country, and who speaks a different language? As more and more entrepreneurs, small business owners, and corporations enter the global economy, the need to hire foreign counsel will continue to increase.

A party in Dubai, United Arab Emirates (UAE), who enters into a contract with another party in Miami, Florida may need the assistance of US-based counsel to draft the contract and provide advice on a range of issues including: arbitration clauses; the use of foreign law to resolve disputes; and the enforceability of certain contract clauses in one jurisdiction, or another.

Likewise, a foreign government sued in a US court will need to retain US counsel to defend the lawsuit. International litigation raises a wide variety of legal issues from the proper service of process, to the adequacy of the US as a proper forum for the litigation. These are issues which are unique to international litigation, and require counsel with experience in this particular field.

When looking for foreign counsel, you should first consider the following:

How well do I know the foreign jurisdiction?
While there may be some similarities, the law in the UAE and the US is not the same. Foreign clients often naively assume that what works in their country will also work in a foreign jurisdiction. This assumption can be costly. If you are based in Dubai, for example, and are negotiating a contract with a party in the US, it may be essential to hire US counsel to review the contract and ensure that your interests will be protected.

"FOREIGN CLIENTS OFTEN NAIVELY ASSUME THAT WHAT WORKS IN THEIR COUNTRY WILL ALSO WORK IN A FOREIGN JURISDICTION. THIS ASSUMPTION CAN BE COSTLY."

The US party may want to include an arbitration clause requiring that all disputes be resolved in Florida, under Florida law. This may or may not be in your best interests as a foreign national. Likewise, you may want to include an alternative dispute resolution provision which favours a forum in your home country. The feasibility of one option over another may require a study of the competing jurisdictions’ laws. The selection of counsel with on-the-ground knowledge of and experience in the foreign jurisdiction will therefore be critical.

What is my legal problem?
The law has become very specialised. Unlike other parts of the world, in the US, one lawyer does not typically practice civil and criminal law. Of course, you may find law firms with lawyers that specialise in both areas, but, as a general rule, US lawyers typically focus their practices in the civil or criminal arenas. Accordingly, you will need to define, as specifically as possible, the legal issues that you feel require you to hire foreign counsel.

In broad terms, if you have been sued, or are looking to sue another party for breach of contract, you should narrow your search of attorneys to those concentrating their practice in the areas of civil or commercial litigation. Of course, what may appear to be a civil matter at first may also become criminal in nature. A good lawyer will be able to identify additional issues and help you build the right defence team.

How much do I want to spend?
There is a popular belief that the quality of a lawyer is directly proportional to how much that lawyer charges. Nothing could be further from the truth. Lawyers who work for large law firms, for example, are forced to charge very high rates in order to cover their overhead expenses. A small to mid-size law firm, however, is economically leaner. Unlike their larger counterparts, small to mid-size law firms do not employ large numbers of inexperienced attorneys who earn high salaries, but add little value to the representation, nor do they maintain established partners who are collecting large salaries, but are not generating as much business as in the past. As a result, small to mid-size practices are not forced to charge high rates to cover their overhead expenses.

This, however, does not mean that these law firms lack the skill, experience, and know-how to represent clients in sophisticated litigation. In many cases, these law firms are built around former large law firm attorneys whose skills, experience, and know-how help make these practices attractive alternatives.

How well do my lawyers know me?
Beyond knowledge, confidence, and reputation, clients also consider their ability to relate to their legal representative as an important factor in selecting one lawyer over another. Often, the greatest barrier to the attorney-client relationship, particularly in cross-border disputes, is the lawyer’s inability to communicate in the client representative’s native language.

Even if the client representative speaks English, for example, the ability to communicate in Arabic, Chinese, Spanish, Portuguese, or any other language can strengthen the relationship between client and lawyer. In addition, the client should look for a lawyer who knows the particular industry at issue. Knowledge of the client’s business will be critical in contract negotiations, mediations, arbitrations, and other legal proceedings. While the law governing contracts, for example, is fairly well defined throughout the US, the reason for drafting a contract one way, and not another, may well turn on the nature of the business at issue.

While there are certainly many other factors that may affect your decision to hire a lawyer, the above factors provide a strong starting point for selecting the right lawyer for your needs. Of course, researching, interviewing, and selecting the right law firm to represent you in foreign litigation can be a time-consuming task in its own right.

Often, corporate and private clients in need of foreign representation will turn to a firm they trust to assist them in locating the right team of lawyers outside their jurisdiction. Many clients, for example, will hire ‘umbrella counsel’ to coordinate major litigation or transactions with law firms and lawyers across multiple jurisdictions. This method can be very effective from a client’s point of view. Regardless of how many jurisdictions are involved, the client will always have a primary point of contact who will then take on the task of vetting law firms, assembling the litigation or deal team, and ensuring that the clients’ needs are met, regardless of the jurisdiction involved.

Carlos Gonzalez is a Partner with Diaz Reus & Targ, LLP in its Miami, Florida office and Arti Sangar is a Senior Associate located in the firm’s Dubai office, UAE.

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       应大会主办方－中国贸促会的邀请，美国达瑞律师事务所驻上海首席代表艾顿（Adam Ehrlich）和胡晓敏（Xiaomin Hu）律师出席了于4月21日至22日在杭州举办的“中阿合作论坛第三届企业家大会暨投资研讨会”。

        作为参会的唯一一家国际性知名律师事务所，达瑞的律师将为与会企业介绍中阿两国的投资环境和法律情况，在大会主题“迎接挑战，互利共赢”的指导下，旨在帮助促进两国的商务往来，实现合作共盈。与会期间，达瑞首席代表接受了杭州电视台的采访。

       本届大会由中国贸促会与杭州市人民政府共同主办；外交部、商务部、浙江省人民政府、阿盟秘书处、阿盟经社理事会和阿拉伯驻华使团支持；阿拉伯国际农工商会总联盟、阿拉伯企业家联合会、中阿联合商会和贸促会浙江省分会协办；贸促会杭州分会承办。

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After an Indian summer that lasted well over a year into the financial crisis that started in the United States, by mid 2008, and especially after the collapse of Lehman Brothers, the global crisis caught up with Latin America and the Caribbean, putting an end to one of the most buoyant periods in its recent history. Since then, currencies have depreciated sharply, stock prices have experienced severe falls, and growth forecasts have been revised dramatically downward, with the region now expected to display negative rates of growth in 2009.

However, something appears to be different this time. After all, although the region was hit hard, it has so far withstood the crisis without major financial turbulences. Generally speaking, the region has to date avoided currency and debt crises and bank runs, so typical of previous episodes of global financial turbulence (1982, 1998, and 2001). The ability of the region to resist an extremely severe external shock without major crises appears to suggest that it has now graduated from being exceptional and has earned the “privilege of normality”.

Why the “privilege of normality”? Because, in contrast to past episodes of global financial turbulence, the region entered the current global crisis with much stronger fundamentals: low inflation, twin external and fiscal surpluses, a sound banking system, a large stock of international liquidity and more flexible exchange rate regimes. Stronger fundamentals have allowed governments to respond with “standard” countercyclical monetary and fiscal policies to mitigate the impact of adverse external shocks, in sharp contrast with past episodes of financial turbulence, when countries in the region reacted procyclically, raising interest rates and tightening fiscal policy in response to a worsening global scenario.

This time, as a result of the combination of fundamental strength and the associated ability to pursue countercyclical policies, the region is expected to withstand the global storm better than in the past, and than other emerging economies. In fact, the case could be made that the impact of the global crisis will be short lived, a relatively deep recession expected in 2009 followed by a return to positive growth in 2010. Equally importantly, the case could be made that this time the impact will be mostly limited to the real sector, and liquidity crises and economic collapses will be largely prevented.

So far events appear to be validating this view. Or do they? This report will argue that this view is essentially correct only under the assumption that the recession in the United States bottoms out in the first half of 2009 and the economy starts a relatively strong recovery thereafter—the so called V-shaped recovery. A recovery like this in the US will in turn improve the outlook for industrial country growth, commodity prices and global financial conditions, key external drivers of Latin America and the Caribbean’s economic fluctuations. In such a scenario, the region will be out of the woods relatively unscathed.

This might well be the case. However, the evidence available from previous severe financial crises suggests that they tend to be deeper and last longer than run-of-the-mill recessions. On average, during these episodes it takes about four years for output to return to pre-crisis levels.

As this report will illustrate, a moderate perturbation from the V-shaped scenario, i.e., a more protracted L-shaped recovery although not a deeper recession, consistent with the evidence on financial crises, may deteriorate significantly key macro fundamentals in the region—fiscal, banking and liquidity indicators. Importantly, a key feature of this alternative scenario is that the deterioration in fundamentals is gradual and therefore problems may not become evident until it is too late.

The aim in this report is to not to be pessimistic or raise unnecessary alarms. Rather, the purpose is to heighten awareness of how perfectly feasible alternative scenarios can dramatically change outcomes, and to call attention to the risks faced in such a case. Thus, the challenge for the region’s countries—and for the international financial institutions engaged in the region—is to anticipate potential problems early on so as to act in a timely fashion; and if so needed, to design policies to prevent countries from entering into financially hazardous territory where they can be exposed to a financial crisis and a major economic collapse. Given the region’s past history, complacency is a luxury that policymakers and multilateral institutions cannot afford. It is not a question of optimism or pessimism, but of caution and prudence in assessing options and risks during unprecedented times. The analysis presented here should be useful to that task.

The analysis is carried out from a regional perspective. Given data limitations, in what follows the “region” consists of the seven largest countries, namely, Argentina, Brazil, Chile, Colombia, Mexico, Peru and Venezuela (henceforth LAC-7), which together account for 91 percent of the region’s GDP.5 Carrying out the analysis from a regional perspective proves to be a useful abstraction since it permits identification of common risks, challenges and policy trade-offs. However, it must be stressed that heterogeneity is a key element accounting for the dynamics of each country’s performance. Although performance will depend crucially on external factors common to all countries, such as the duration and deepness of the global crisis, it will also depend critically on idiosyncratic country characteristics, i.e., the strength of their fundamentals and the appropriateness of their policy responses.

The rest of this report proceeds as follows. Section 2 reviews the region’s economic performance and the evolution of key macro fundamentals in the five-year period preceding the Lehman collapse. Section 3 describes the immediate impact on the region of the post-Lehman world and what may be called the predominant view as to how the region will withstand this more virulent phase of the global crisis. Sections 4 and 5 develop an analytical framework that highlights the importance of liquidity issues— key under precarious access to credit markets and often neglected in policy analysis. This framework is used to evaluate the predominant views on the region. To do this, two alternative scenarios are constructed for the global economy. A key result is that that under a moderately less favorable global scenario than the one currently being discounted by the markets, the region’s outlook may change very significantly. Section 6 concludes with an analysis of the relevant policy trade-offs for the region and some policy principles that emerge from the framework of this report.

For detailed information, please find the IDB report: www.thedialogue.org/uploads/Op_Eds/Policy_Trade-off_for_Unprecedented_Times.pdf.

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Asian attorneys have different expectations and perceptions of their roles than American attorneys

By Dan Harris on 12.9.2008

Since no two legal systems in Asia are exactly alike, I will focus on China and Korea.

Working With Lawyers In Korea

In Korea as in Japan, the overwhelming majority of people who go to law school never pass the bar. This scarcity of lawyers gives Korean lawyers a very high social status (think US medical doctors in the 1950s), and this, in turn, can pose many problems for foreign lawyers and clients needing Korea legal help. The fact that Korea does not allow foreign law firms compounds the problem. The four most common problems I see in retaining Korean lawyers are:

1. Non-responsiveness is the norm. American lawyers generally see their role as helping clients achieve their goals and keeping their clients informed. Korean lawyers operate far more independently. They consider themselves the legal experts and can get offended when questioned. According to their perspective, a client should trust them, not ask questions, and not expect updates.

This obviously does not work well for American clients. Two excellent Korean law firms have admitted to me they “always get fired” when they work directly with American companies or with American lawyers inexperienced with Korea. If a Korean lawyer has a hearing scheduled in a case, I email him the day before to urge him to provide me with a full report by the next day, at the latest. I usually send another email reminder after the hearing concludes and if I do not have a timely report, I call.

2. Your matter is not important. Most Korean lawyers have plenty of work and any one matter from an overseas client is not likely to be of paramount importance to them. This may mean your Korean lawyer will not fight hard on a particular motion where the chances of winning are low; he or she would rather stay in the good graces of a judge or fellow lawyer than challenge the status quo. I try to get around it by hiring “outsider” lawyers if my case is going to be particularly difficult or contentious, or by attending the hearing if it is particularly important. I also always make clear, upfront, that a good result for this client will lead to more work from my other clients.

3. The Korean lawyer’s role is different. Korean lawyers tend to view themselves as “above it all.” I learned this when, trying to settle a case, we offered $900,000 and the Korean company on the other side offered to pay us $700,000. I asked the Korean lawyer to go back at $850,000 and I could feel his reluctance. I say “feel” because while he was telling me he would go back at $850,000, he was also asking me questions to let me know he did not think he should go back at $850,000. Weeks then passed with no updates and vague responses to my emails. Then, out of the blue, a US-educated paralegal from the firm called me to say the $850,000 offer had never been passed on because the Korean lawyer considered it beneath him to negotiate “as though at a flea market.” I do not know if that paralegal was put up to the call by the attorney or if he did it on his own, but I have since learned to control negotiations myself. It is not just in negotiations that the Korean lawyer sees himself as above the fray. If you do not put pressure on your Korean lawyer, you can pretty much assume that numerous time extensions will delay your case for years.

4. Confidentiality? What’s that? Korean lawyers simply do not respect the attorney-client privilege as American lawyers do. I try to handle confidentiality problems by using the same few lawyers in Korea for all of my firm’s clients. Because I provide so much work to these attorneys, I have a personal relationship with them, which makes it less likely that they will hurt me by hurting my client. It also decreases the incentive for the Korean lawyer to hurt my client because doing so will cut off a regular stream of work.

Working With Lawyers In China

There are many lawyers in China scrambling for work, but most of them have neither the experience nor the language skills to handle international clients. The problem is that most either do not know this or will not admit it. The four most common problems I see in retaining Chinese lawyers are:

1. Chinese law firms often aren’t “firms” as we understand the term. There are very few really good Chinese international law firms in China and many of them are not really firms at all; they are a collection of solo practitioners. Many American companies think they are using the best lawyer in a firm for a particular matter when in fact that lawyer has the case not because of his skill set but because he or she is the one who brought the case in.

2. Chinese lawyers are rarely power brokers. The importance of connections isn’t as strong as it once was, though it is still a factor in certain industries and certain parts of the country. Chinese lawyers are usually not well connected (even if they are reluctant to admit it) so hiring a lawyer as a power play is rarely recommended. China’s good lawyers are very smart and very well educated, but if they were truly well connected, they would most likely have a top position in the government or with a big company, and they would never have attended law school in the first place.

3. The Chinese lawyer’s role is different. Chinese lawyers far too often see their role as doing what the client tells them to do rather than telling the client what should be done. If a client calls me and says she wants to do A, my knee-jerk response is to ask why. The typical Chinese lawyer’s response is to say yes.

4. Chinese lawyers do things the Chinese way. Chinese companies can get away with all sorts of things in China that American-owned companies cannot. Chinese lawyers tend not to account for this. Chinese lawyers also almost never know the various US law strictures under which American companies must operate. The Foreign Corrupt Practices Act is a classic example. There are also many things American companies can do legally in China that would be a public relations disaster back home. This is particularly true regarding labor relations and environmental stewardship.

There are a whole slew of excellent American law firms with lawyers in China and the safest way to handle your Chinese legal matter is usually to retain an American lawyer who both speaks and reads Chinese.

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2009-03-31     

Doha, March 31 (QNA) - H.E. the Minister of State for Foreign Affairs Ahmed bin Abdullah al Mahmoud said that the Doha Declaration issued by the 2nd Arab- South America countries Summit covered a number of elements pertaining to political coordination and economic, social and cultural cooperation between the Arab countries and south America''s countries. H.E. the Minister of State for Foreign Affairs noted that a number of political issues of interest to both sides including the Arab-Israeli conflicts and other issues were also taken up.

Speaking at joint press conference with Chile President and Chairperson of the South America''s countries'' Union and Arab League Secretary General Amr Moussa, H.E. al Mahmoud said the declaration also highlighted the existing cultural relations between the two sides and joint cooperation in this domain including the establishment of the Arabic - South America Library and Studies Institute in Rabat aimed at enhancing the cultural relations.

On the economic side, H.E. the Minister of State for Foreign Affairs underlined that the declaration covered a number of economic matters saying that the economic cooperation between the two sides witnessed remarkable progress since the first Summit which was held in Brazil in 2005. H.E. the Minister of State for Foreign Affairs said the volume of the trade exchange between Brazil and the Arab countries reached $21bn at the end of 2008 compared to $ 8,8bn in 2005 in addition to other countries such as Argentina where the volume of trade exchange with it reached around $5 million.

H.E. the Minister of State for Foreign Affairs said the declaration touched on dialogue among civilizations, social, educational and information technology sides. The Doha declaration also covered mechanisms of activation of the relations between the two groups through holding a summit every three years and a ministerial meeting at the level of Foreign Ministers every two years and at experts level every six months and other meetings on the sidelines of the Conference, H.E. Minister said . H.E. the Minister said the the preparatory meeting held two days ago between the businessmen from the Arab countries and their counterparts from South America countries embodied the relations between the two sides. H.E. the Minister of State for Foreign Affairs also pointed out to the joint declation signed by the GCC states and the Mercosur group which include Brazil, Argentina, Uruguay and Paraguay aimed at signing an agreement of free trade between the two groups. (QNA) AK
 

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