Law schools want money. Law schools make money off their tuition. This means law schools want as many qualified students to enroll (within limits, of course) and this also means that they do not want their enrolled students to drop out. Law schools oftentimes try to entice students to enroll in their schools and to stay in their schools by touting what law students find sexy. Law students often find international law sexy. Law schools often tout their international law courses/programs and tout an international law career path so as to appear sexy to their students.

The above poses problems, mostly centered on the fact that there are incredibly few international law jobs for recent law school graduates. Incredibly few.

Let me explain, using the Seattle lawyer job market as the example.

First though, let me give you a greatly oversimplified primer on American law firms. There are the mega firms that do high level business work and there are the boutiques that do high level business work. The boutiques tend to be made up largely of lawyers who once worked at the mega firms. For the most part, only these firms do international business work. Even in a very international city like Seattle, there are really only a handful of firms that truly do much international legal work.

Now let me give you a greatly oversimplified primer on the hiring practices of the mega firms and the high level boutiques. These firms are obsessed with hiring people with high grades from highly rated law schools. Why? Because those “numbers” are the easiest way to “grade” potential lawyer applicants. Is this the best way to grade potential applicants? No, but it is the fastest and the easiest and if you are looking at a stack of 500 resumes and 250 of the people behind them have done amazing things with their lives and seem like truly stand-up people, you need to do additional filtering. This means that these law firms filter down to the ten or twenty they will interview by taking only really good students from the top law schools and maybe only the top 5-10% from a mid-ranked law school.

Here is where the problem arises. Since nearly all international legal work is done by the mega firms and the high end boutiques and many mega firms do not do much (if any) international law and hardly any boutique law firms do any international work, this means that law firm international law jobs are going to be limited only to the best students at the best schools.  On top of this, many (most) big law firms do not have recent law school graduates work on many (or any) international law matters. The feeling is that young lawyers must first become good at corporate law or tax law or dispute resolution or labor law or IP law or whatever before they get tasked with the additional layer of complexity of working on an international matter.

What the above means in real life for law students seeking an international law job with a law firm is that their class rank/school rank is going to be absolutely critical in determining their chance of getting an international law jobs and that even top ranked students from top ranked law schools with fluency in an important language for business are not likely to get an international lawyer job at a law firm right out of law school.

Now to the real point of this post. Too many law schools either intentionally or negligently put into the heads of their students that getting an international law job is no more difficult than getting any other law job.

From my perspective, I feel as though the law schools prefer to leave it up to people like me to burst their students’ bubbles and I have done that more than once. And though I do not enjoy it, I take a certain pride in it, because I believe that by doing so I am helping young lawyer wannabes, not hurting them.

One example highlights my myth busting work. Many years ago, I gave an informational interview to a middle of the class student from a law school ranked in the mid 100s about international law jobs at law firms in Seattle. I met with this student because I am friends with one of her professors and he really wanted me to speak with her. At our meeting I learned that she was fluent in French and was looking for a job in Seattle doing international law involving France. I was blunt, and I told her the following (note that I was less blunt than appears below, but the below has any niceties removed):

  • If we added up all the Seattle-France legal work done by all of the law firms in town I doubt there would be enough work to keep one lawyer busy full time.
  • I do not believe there is a single law firm in town that will view your fluency in French as a plus factor in deciding whether to hire you. In fact, if you emphasize your desire to do France work, I think most firms will consider that to be a negative because they will think that you are more interested in dreaming about France than in doing the nitty gritty legal work the firm generates.
  • What law firms in town do international law? I mean really do international law, not just mention it on their website?

We then talked about the three or four law firms in Seattle that actually do a decent amount of international law and all but my own law firm were mega firms. We then talked about how these firms virtually never hire middle of the class students from middle to lower tier law schools. Sorry, but they just don’t.

By this time, she was convinced that writing Seattle law firms for an international law job was not going to work (I also learned that she had been doing that for six months and getting nowhere) and so we then started talking about her real world options.

And on that, I had this to say:

What you need to do is get the best job you can. Forget about international. Focus on getting a job that will teach you how to be a good lawyer and that will put food on your table. Then after you have been in that job for a year or two, start figuring out how to “make it your own.” And by making it your own, I mean how you can mold it to suit what you really want to do. If you don’t actively mold your work, it will get molded for you and then one day you will wake up as so many lawyers do and really hate your job.

If you find yourself doing dispute resolution and you are enjoying it but you still want to be involved with France you do whatever you can to try to get dispute resolution work that involves France. How do you do that? You do that by educating yourself on French business, French law, French disputes, French anything. And you do that by getting to know every single French person in whatever city you are in and you get to know the French Consul and you get to know French lawyers in France and elsewhere and you write about dispute resolution involving France, etc.

So long as you are doing a good job with your law firm’s core work, they will likely be fine with your making efforts to bring in France related work. Small firms generally are happy to bring in whatever good work they can, but do not expect anyone there to help you much in bringing in the French work because they both won’t know how to do that and they won’t have time to do that and they won’t really care about it the way you do. And if you are doing corporate work, the same thing holds, but for corporate work.

A year later she wrote me a thank you email that said she was in a job she very much liked in a good-sized city doing corporate work for small businesses and that once she was more comfortable with the legal and client aspects of that work, she was going to start working on trying to position herself as the French expert in her city.

Because that is usually what it takes.

For more on what it takes to become a China lawyer/international lawyer, check out the following:

What do you think?

I wrote this post in April of last year and while going through draft posts just realized that I failed to post it back then, and so I’ve updated it and I am posting it now.

I get at least twenty emails every week from law students/young lawyers expressing interest in becoming an international lawyer (or a China lawyer) and asking essentially what courses they should take to achieve that goal. My response is always something like the following:

First, do what it takes to become an excellent lawyer, then focus on the international side. In the meantime though, get fluent in a language that matters to you and make yourself international by traveling and by reading.

In other words, get educated, get smart, and get international. Not terribly helpful, I know, but true.

Last April I read an article that really resonated for me. The article was written by William Henderson, a professor at the Indiana University Maurer School of Law and one of the most knowledgeable people alive on the legal profession. The article is entitled, The Fromm Six, and it sets out a “competency model for law students called the Fromm Six.

The article starts out with the following background:

One of the greatest people in legal education that you have never heard of is a man named Leonard Fromm. Fromm served as Dean of Students at Indiana University Maurer School of Law from 1982 to 2012. On February 2, 2013, Dean Fromm passed away after a relatively short battle with cancer.

I want to discuss an innovation that Dean Fromm contributed to legal education — a contribution that, I predict, will only grow over time. This innovation is a competency model for law students called the Fromm Six. But first, let me supply the essential background.

After several years in counseling and adult education, Dean Fromm joined the law school in 1982 to preside over matters of student affairs. Over the course of three decades he quietly became the heart and soul of the Maurer School of Law. Dean Fromm was typically the first person that new students met during orientation — the law school administrator who completed character and fitness applications for state bar authorities and the voice that called out their names at commencement (with an amazing, booming tenor).   During the three years in between, Dean Fromm counseled students through virtually every human problem imaginable. His most difficult work was done in his office with his door closed and all his electronic devices turned off. It was private work that was not likely to produce much fanfare.

*   *   *   *

One of the cumulative benefits of Dean Fromm’s job was the ability to track the full arc of lawyers’ careers, from the tentative awkwardness of the 1L year, to involvement in the school’s extracurricular events and social scene, to coping strategies for students not at the top of their class, and the myriad, unexpected turns in our graduates’ professional careers. During his tenure he interacted with nearly 6,000 students and stayed in contact with a staggering number of them after graduation. Invariably, he saw the connection between law school and a student’s subsequent success and happiness later in life (noting, in his wise way, that professional success and happiness are not necessarily the same thing).

In 2008, I started collaborating with Len on a project to construct a law school competency model. Our first iteration was a list of 23 success factors  which we constructed with the help of industrial & organizational (IO) psychologists. Although valid as a matter of social science, the list was too long and complex to gain traction with students. In 2010, the faculty who taught Indiana Law’s 1L Legal Professions class got together and reduced the list of competencies to 15. Once again, we found it was too long and complex to execute in the classroom.

During the summer of 2011, as we were debriefing the challenges of another year in our competency-based 1L Legal Professions course, Dean Fromm said, “I have an idea.” A short time later, he circulated a list of six competencies that were appropriate to 1Ls and foundational to their future growth as professionals. Finally (or At last), we now had a working tool!  Moreover, none of the professors teaching the Legal Professions course, including me, wanted to revise a single word — a veritable miracle in legal academia.

And thus the Fromm Six was born. This is that six:

Self-Awareness. Having a highly developed sense of self. Being self-aware means knowing your values, goals, likes, dislikes, needs, drives, strengths and weaknesses, and their effect on your behavior. Possessing this competence means knowing accurately which emotions you are feeling and how to manage them toward effective performance and a healthy balance in your life. If self-aware, you also will have a sense of perspective about yourself, seeking and learning from feedback and constructive criticism from others.

Active listening. The ability to fully comprehend information presented by others through careful monitoring of words spoken, voice inflections, para-linguistic statements, and non-verbal cues. Although that seems obvious, the number of lawyers and law students who are poor listeners suggests the need for better development of this skill. It requires intense concentration and discipline. Smart technology devices have developed a very quick mode of “listening” to others. Preoccupation with those devices makes it very challenging to give proper weight and attention to face-to-face interactions. Exhibiting weak listening skills with your colleagues/classmates/clients might also mean that they will not get to the point of telling you what they really want to say. Thus, you miss the whole import of what the message was to be.

Questioning. The art and skill of knowing when and how to ask for information. Questions can be of various types, each type having different goals. Inquiries can be broad or narrow, non-leading to leading. They can follow a direct funnel or an inverted funnel approach. A questioner can probe to follow up primary questions and to remedy inadequate responses. Probes can range from encouraging more discussion, to asking for elaboration on a point, to even being silent. Developing this skill also requires controlling one’s own need to talk and control the conversation.

Empathy. Sensing and perceiving what others are feeling, being able to see their perspective, and cultivating a rapport and connection. To do the latter effectively, you must communicate that understanding back to the other person by articulating accurately their feelings. They then will know that you have listened accurately, that you understand, and that you care. Basic trust and respect can then ensue.

Communicating/Presenting. The ability to assertively present compelling arguments respectfully and sell one’s ideas to others. It also means knowing how to speak clearly and with a style that promotes accurate and complete listening. As a professional, communicating means persuading and influencing effectively in a situation without damaging the potential relationship. Being able to express strong feelings and emotions appropriately in a manner that does not derail the communication is also important.

Resilience. The ability to deal with difficult situations calmly and cope effectively with stress; to be capable of bouncing back from or adjusting to challenges and change; to be able to learn from your failures, rejections, feedback and criticism, as well as disappointments beyond your control. Being resilient and stress hardy also implies an optimistic and positive outlook, one that enables you to absorb the impact of the event, recover within a reasonable amount of time, and to incorporate relevant lessons from the event.

I knew Len Fromm, which is to mean I thought the world of him. And for that reason, I did not want to write this post back in April as I was worried that my sadness at Dean Fromm’s death was clouding my judgment and forcing me to go gaga over his six.

But in re-reading it I realize how great the list really is and how much it deserves further dissemination for reasons that have nothing to do with memorializing a truly decent man.

Dean Fromm’s list just works. Law students and young lawyers, go talk to older lawyers you respect and I am confident you will find that they would agree. And the list works for what it takes to succeed as an international lawyer as well, which should be no surprise, since international lawyering is really no different than any other kind of lawyering. If you want to succeed as a lawyer, work on the six. I particularly love the line about silence, as it took me years to realize how valuable silence can be in getting people to reveal things, even things they never intended to reveal.

The scary thing about the Fromm Six is that we lawyers tend not to be very good at many of the things on the list. Lawyers are trained (maybe even over-trained) to be rational, logical and unemotional and to focus on merit. But life, and thus lawyering, is not always so simple. Dean Fromm’s list thus tilts much more towards EQ than towards IQ, and rightfully so.

For more on what it takes to become a China lawyer/international lawyer, check out the following:

I am still gaga over Dean Fromm’s list and I am going to make it a part of my future email responses. What do you think?

As the Yuan continues its steady gains against the Dollar, more and more of our clients are looking at selling product to China as an additional revenue stream.  Engaging in sales and shipping from the U.S. to China has its own unique challenges.

Free advice — don’t be this guy. The arrest affidavit is worth a read, but the short story is that two Taiwanese buyers of controlled technology equipment and a Chinese national exporter were linked through their use of a fake website operated by Homeland Security. The Chinese national met with an undercover agent in the United States to consummate the sale, and then he was arrested and charged with crimes that carry a possible $1 million fine and up to 20 years in prison.

U.S. export officers love a good sting operation. Export enforcement mirrors drug enforcement in that way. It is very difficult for federal agents to effectively police actual illegal exports, so they instead often pose as attractive buyers with lots of money to encourage their targets to violate the rules. Call it entrapment if you want, but the safe response for anyone exporting from the United States is to operate legally and to thereby avoid falling into the trap. If someone calls you and wants to buy millions of dollars of your product, it’s great. If they are encouraging you to fudge information on licenses or to conceal the final shipment destination, don’t do it, unless you want to risk finding yourself hit with a large fine and a possible prison sentence.

To protect yourself as an exporter, you should implement a compliance program to avoid falling victim to such an operation. Such a program really comes down to three things: know your product, know the destination of your product and the rules relating to the country to which your product is going, and know your end-user. With that information in hand, you will know whether or not you need export licenses, which federal agencies are involved (there’s about a dozen that can be), and how to ensure that you have covered yourself against legal problems. And if you should get a prospective buyer pushing you to violate the rules, all you have to do is walk away.

And the sign said long haired freaky people need not apply
So I tucked my hair up under my hat and I went in to ask him why
He said you look like a fine upstanding young man, I think you’ll do
So I took off my hat I said imagine that, huh, me working for you

Signs, by the Five Man Electrical Band
At least three times a week, I get emails from earnest young college and law students seeking advice on what they should do to become international (usually China) lawyers. My advice is pretty simple. Study hard, get killer grades, and learn your languages, both spoken and written. I should also tell them not to be a creep, but I figure either they are or they are not.
But even these things do not (especially these days) mean you will get hired and they certainly do not mean you will be effective. For that there are the intangibles.
My firm recently went through a massive interview process for a legal assistant and, though this may sound weird, that process is pretty much the same as what we go through in hiring our lawyers. So with an eye towards helping all earnest people out there, here is what we did and how we made our pick.
We began by running an ad in Craigslist, looking for someone with the following credentials:
“International law firm seeks legal assistant. Our firm is looking for a college graduate with excellent written and editorial skills. Legal experience is not necessary, but brains, desire and work ethic are. High GPA and foreign language skills are a plus. This job is perfect for someone contemplating a legal career.”
This is the fourth time we have used this same ad and we have never failed to hire star-quality people with it. Two of our past hires are in law school (one is with us right now as a summer associate) and one heads up PR for a national quality museum in New York City. This time around, we got around 150 resumes and — not kidding — about half of these were really good. One of our staff broke them out into three piles: Yes, No, and Maybe. I quickly scanned the 40 or so resumes and cover letters in each of the Yes and Maybe piles and immediately determined that all of the “Maybes” had become Nos. I made this determination not on the basis that none of them would have worked, but that none of them were as good as the Yeses and we already had way too many yeses.
We then pored through the “Yes” pile and got it down to around 20, all superb. I then gave these 20 back to our departing legal assistant (off to law school) and asked her to get the number down to 12, with a one sentence explanation as to why she was rejecting the eight. She did that and all of her explanations made sense and so we went with them. We were now down to twelve and of this number, I correctly figured ten or so will still want to interview.
We interviewed the ten and, truthfully, we were convinced any one of them would have been more than fine. But we had a job to do and so we caucused and discussed who to ask back for another round. What did we see that we liked and what did we see that we did not like from those ten?
Likes and dislikes:
— All ten had done incredibly well in college. And though we do not for a moment believe that grades are a perfect indicator of how someone will perform in their job, they are at least a very good indicator and when we are trying to figure out how to get 150 resumes down to ten, that is a very easy and logical way to start the reduction process. I know plenty of great lawyers who did not have top grades and plenty of not so great lawyers who did. But someone with high college grades is almost certainly smart, hard-working, and able to multi-task.
— All ten came across as well spoken and personable in their initial interviews. This is very important to us. We are a small firm and it is essential that everyone get along. Everyone. I had a discussion the other day with a friend of mine with his own firm. He will not hire anyone unless he thinks he would enjoy going out with that person for a beer. I strongly disagree with that criterion for many reasons. First off, I virtually never go out for beers and I cannot remember the last time I went out for beers with an employee other than with a large chunk of the firm there. My criteria are that the person have a sense of humor and be someone with whom I would enjoy a lunch with the rest of the firm there. I am not hiring someone to be my friend, but I am seeking to hire someone with whom it will be fun (that is the word I meant to use) to work. Even more importantly, I do not want to favor someone necessarily because they think like me. I have a friend with a law firm and it seems like she is always hiring people just like her. I am a huge believer in diversity as a business proposition, and that includes diversity of views and personalities.
— I like someone who is passionate about something. I do not care if it is car racing (ugh!) or basketball (yeah), just something. That shows me they have interests outside of just school and work. That matters because clients actually tend to like real people.
— But it is absolutely critical the person we hire be someone who gets along well with others. This is critical both for internal firm morale and this is critical for interactions with clients and other outsiders. This person will be a face of our firm to the outside world and I do not want that face to say “jerk.” Or as the What About Clients blog so aptly put it in its recent post, no creeps:”Whether or not you think your trial people (men or women) are capable of looking or acting like “creeps” and robots of war at any moment during the roller-coaster ride of a trial, explain to them in advance the importance of “maintaining” a demeanor which appears professional yet fair, friendly, amiable and genuinely good-hearted. Better yet, hire only those people to help you present your case to a jury.”
–One interviewee was asked back because our receptionist insisted on it. She said this person was by far the most personable and polished and we believed her. One person did not get asked back (even though the lawyers really liked this person) strictly because one of our staff felt this person had spoken down to her.
— All ten had something “international” about them.This means they spoke a foreign language well or had lived or studied overseas. This is important not so much because we need the language skills in our office (we are already covered on all of the languages in which we conduct business), but because we want someone who is comfortable with people from all over (see diversity above). We do not want someone to say to one of our clients “‘Zhang,’ that’s too difficult for me to pronounce, do you mind if I just call you John like my American friends?”
— We have a bias for those who seem to have made it on their own. By this we mean that we like those who appear to have had to work during college. We also like those with serious volunteer experience. Volunteering a few weeks here and a few weeks there for different organizations comes across as a resume pad and I see that as a negative. We also like those who have spent at least one year post-college in the real world. Our last two staff hires had, respectively, taught high school with Americorps and been a cocktail waitress in Las Vegas. We figured if they could handle high school students and Vegas drunks, they could handle opposing counsel. And we were right.
— We have a bias for those who are really enthusiastic about the job. If someone does not convey real interest, we feel a lot less guilty turning them down.
— Proofreading is a critical function of the job. But not just proofreading, a desire to do everything perfectly. I am always saying (I know this is a cliche, but so what) that we need to strive for perfection. I do not expect to hit it, but if we do not strive for it, we won’t even come close. Every document that leaves our office (from one paragraph letters to 150 page contracts) is a reflection on our firm. It is that face of the firm thing again. Wherever possible, we want two people to see any document before it leaves the office and on many of the shorter, less critical documents, the legal assistant is the last line of defense. In the end, the competition was so tight between three remaining people that we went back and reviewed the cover letters and resumes and picked the person we perceived as being the best writer.
How do you choose your lawyers? Young lawyers, what are you seeing out there?
UPDATE: So I got an email from a lawyer in California who asks: “Once you get such top (non lawyer) people on your staff, how do you keep them?” My answer is that we don’t. We really can’t. And here is the big issue faced by all law firms, particularly small ones. Working in a law firm as a non-lawyer has its limits and really top people do not want to be doing other people’s work (drafting, editing, filing, calling, etc.) for the rest of their lives. My firm has made the conscious decision to go for superstars, short term, rather than go for someone content to be a small firm staff lifer. We tell our hires that we expect a one year commitment out of them and that if they do a good job and leave after one year, we will do whatever we can to help them in the next stage of their career. We have yet to have someone leave after less than a year and we have yet to have someone leave who does not come back to visit.
Now when it comes to lawyers, our view is very different. We view each of our lawyers as lifers and, in fact, none of our lawyers has left the firm since its inception. Not one.

I am frequently emailed by college students, law students and even practitioners, seeking advice on what it takes to become an international lawyer. It seems the lawyer behind the Counterfeit Chic blog (an excellent blog, BTW) gets even more of these regarding “fashion law” and she gives answers in her post, entitled, “Fashion Law.

How can I get into fashion law?
Several times each week — more during interview season — a Counterfeit Chic reader asks me this question. I’ve heard from aspiring law students, current law students, recent graduates, law firm associates disillusioned with their current jobs, law partners interested in a new group of clients, and former lawyers who’ve spent quite enough time at home changing diapers, thank you very much. I’ve received messages from parents seeking advice for their children, colleagues seeking advice for their students, and seeking advice for the objects of their affection. Your emails have come from every continent except Antarctica — and any day now I expect to hear from a lonely scientist with a great new anorak design and an interest in becoming a patent lawyer.

What I found so interesting about the post is how virtually all of it applies with equal force to getting into international law.
CC’s tips, grossly summarized, are as follows:

  • Excel at law.
  • Think laterally.
  • Do your homework.
  • Learn the ropes.
  • Make yourself uniquely valuable.

The post is well worth a full read.

For more on becoming an international lawyer, check out my two previous posts on the same topic:

This is the second in my series detailing the presentations made at the Doing Business in China Seminar in SFO last week.  This post is on the first day presentation given by Marshall Horowitz, the head of Dreier, Stein & Kahan’s Asia Pacific Practice Group. Marshall began his career with Coudert Brothers in Hong Kong (he left well before its demise) and his practice as an international lawyer today focuses “on advising both U.S. and international clients on a broad range of transactional matters, including mergers and acquisitions, business formations, venture capital and private equity transactions, private placements, licensing of intellectual property, and investment fund formation.”

Marshall set out the various possible entities a non-Chinese company can form in China that would allow it to invest in Chinese real estate and then concluded that the only two that are really ever used are the wholly foreign owned entity (WFOE) and the joint venture (JV). The bottom line is that WFOEs have become by far the most common investment vehicle for purchasing or developing real estate in China. Marshall also touched briefly on the forming of an offshore holding company to own the WFOE, which in turn buys the Chinese real estate.

Major apologies to John Lennon.

Arbitration provisions fascinate me. They are the Rodney Dangerfield of the legal world in that they get no respect, not even among international lawyers.  This is a mistake.

I can nearly always judge the legal thought that went into an agreement through its arbitration/litigation provision alone. I usually can instantly tell from just the dispute resolution provision whether an international contract was drafted by a lawyer or not, and if it was drafted by a lawyer, whether that lawyer knows international law. Mistakes in this critical provision are rampant. Huge mistakes.

Some examples:

  • Company wants us to sue on a contract that calls for Arbitration before the International Court in Geneva Switzerland. Problem is there is no such court in Geneva. At a cost of at least ten times what it would have cost this company to have retained a qualified international lawyer to draft this contract, we successfully convince the Chamber of Commerce and Industry of Geneva that the parties intended for it to arbitrate their dispute before that body.
  • Denver lawyer contacts us about suing a large Chinese company on behalf of their client. Contract calls for litigation in Denver.  We tell the Denver lawyer this is probably the worst provision possible and he is shocked, asking why it does not benefit his client to be able to sue in its local court. We explain this provision means we will have to sue the client in Denver, spend months serving the opposing party in China (under the Hague Convention for service rules), spend another month or so getting a default judgment in the Denver Court against the Chinese company, and then take that judgment to China, where the Chinese court will almost certainly ignore it.
  • U.S. Company comes to us complaining of a company in China making its product with its molds and requesting we help it get a Chinese court to put a stop to this. We learn the Chinese company was until recently manufacturing this same product for our client under an OEM (Original Equipment Manufacturing) contract that provides for arbitration in New York. We tell the US  company we will probably first need to arbitrate this case in New York and even if we could get an order from the New York arbitration panel requiring the Chinese manufacturer cease production, no Chinese court will enforce it. We also tell the client we can go to court in China, but the chances are the court will refuse to do anything until the case is arbitrated first, if ever.

All of these situations could have been easily prevented with the right arbitration or litigation provision.

The first problem could have been avoided simply by naming a real arbitration panel. The second problem would not have occurred had the contract simply called for arbitration, not litigation. Had the contract called for arbitration in Denver (not litigation), we could have taken an arbitration judgment to China where the courts would have been required to enforce it pursuant to the United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards (usually called the “New York Convention”), of which China is a signatory. Not that China is great at enforcing foreign arbitration awards, but at least the law would have been on our side.

The third situation could have been avoided had the contract explicitly carved out a litigation exception for injunctive relief or called for litigation in China.

What got me to thinking about arbitration today was a very nicely done article by the Patton Boggs law firm (no individual lawyers were listed), entitled, “Seven key points when considering an arbitration provision” [link no longer exists]. Though this article is geared towards all contracts (not just international ones), the advice it gives is both concise and thoughtful. I particularly like how it explains the importance of arbitration provisions:

To the untrained negotiator, an arbitration provision may be legal “boilerplate,” which means typical clauses that require little or no negotiation — a throw-in type provision. The reality is that parties should carefully weigh the benefits and disadvantages of arbitration in every transaction . . . .

The decision to use or write an arbitration provision in commercial transactions should not be made with a mechanical “one-size-fits-all” approach. It is critical that transaction parties consult with their litigation lawyers, not just their transactional counsel, and take the long view of the business relationship at hand and how the parties are going to resolve disputes. To neglect to tailor a dispute resolution provision to your needs at the outset of a transaction may lead to unnecessary disadvantage, expense and distraction down the road.

Amen to that.

Update: One of my firm’s China lawyers just got called in to assist an American company with their CIETAC Arbitration. Boy were they shocked when I told them that arbitration would be conducted in Chinese because the arbitration does not explicitly state otherwise.

The Wall Street Journal Law Blog recently did a post entitled, China Getting Hip to Antitrust, on a Chinese antitrust ruling “slated to come down.” The Wall Street Journal Blog is, in turn, based on a Fortune Magazine story by Roger Parloff.

The post and the story focus on a Shanghai People’s Intermediate Court No. 1 lawsuit brought by Sichuan Dexian Technology Co., in November 2004, alleging Sony engaged in “monopolization and abuse of its dominant marketing position.” Sichuan Dexian claims Sony’s use of an electronic coding feature in its digital cameras and videocameras that requires they use only Sony batteries violates China’s unfair competition laws. Sony says its “closed” system “offers technological advantages as well as safety.”

Dexian’s suit is based on a broadly worded Chinese unfair-competition statute that has been used mainly to allege fraud or false advertising. But, according to Fortune, “the statute’s broad language – requiring companies to observe ‘principles of voluntariness, equality, fairness and bona fides’ – might also encompass antitrust claims.” The thought is that that with China constantly debating whether to enact true antitrust laws, this case is a kind of test case for how Chinese courts might apply the future law.

Color me skeptical. I find it difficult to believe Sony could, under antitrust law concepts, be said to have a dominant position in the market to abuse:

Dexian’s allegations against Sony (Charts) would probably fail as a “monopolization” or “abuse of dominance” claim in the U.S. or European Union for a simple reason, says Jingzhou Tao, a China attorney at DLA Piper. Canon and Sony each have about 20 percent of China’s digital camera market, according to IDC, while Kodak has 14 to 15 percent. “Whether Sony has a dominant position in that market,” says Tao, “is far from clear.”

I also just do not see the Shanghai court putting into force anti-monopolization law through the back door.  Doing so would be too much judicial activism, particularly when there is already so much talk in China of enacting explicit anti-monopolization law. I do not see such laws being enacted in the short term either.

On January 30, 2006, I did a post, entitled, “China’s Proposed New Antitrust Laws,” in which I expressed my doubts on China enacting an antitrust law within the year, as so many were predicting:

At this point, I am of the view that it is simply too early for great concern.  I am, however, particularly looking forward to see how the new laws handle the fact that the Chinese government itself owns so many of China’s largest companies.

In a September 5, 2006, post, entitled, Chinese Antitrust Laws — I Don’t Think So I again expressed doubts regarding China enacting an antitrust law any time soon:

Every few months there is an up-tick in interest regarding China’s “upcoming” antitrust law.  We seem to be in another such phase right now. But each time enactment looks closer, it is put off and the reason for that is simple: China is not ready for such a law to be applied to its State Owned Enterprises (SOEs).

I still have my doubts on the legislation and I have even bigger doubts on such laws coming in through the back door of the Sichuan Dexian v. Sony case. It is, however, a very interesting case that certainly does bear watching.

Nearly every week, I get a couple e-mails and/or calls from earnest law students seeking pearls of wisdom regarding how to break into international law or China law.  I usually talk about the need to learn as many languages as possible and about the benefits of having lived overseas.  A couple years ago, I gave a speech on international law careers at Indiana University School of Law and I am scheduled to be on a international law career panel at Seattle University Law School later this month.  I am an expert on these issues only to the extent that I am in the international lawyer business and I have very definite ideas as to what it takes.

I have no idea if my ideas on this would hold up to analysis, but I at least now know my views are part of the mainstream.  Chris Carr over at the CalPolyMBA Blog just did a post, entitled “Critical Success Qualities for Expat Managers in China,” summarizing what CEOs look for in choosing their China managers.  This list comes from the book China CEO: Voices of Experience from 20 International Business Leaders (of which I have heard many good things and I have just started it). Interestingly (but not surprisingly, the traits these CEOs seek in their ex-pat managers for China are pretty much the exact same traits I find necessary to be a good international lawyer.   Here is the list, with my comments in italics.

1. Technical and Corporate Expertise: Select people with a rock-solid professional background and an excellent knowledge of the company.   

Yes. In the legal arena, this means get smart people. 

2. International Expertise: A posting in China becomes vastly more manageable after an assignment either in an Asian location or another developing market, or both.

Absolutely.  The key here is that the person who has spent time in another country tends to be better equipped to deal with other countries, including those countries to which he or she has never been.  I have seen this time and again with both lawyers and clients.  We have many clients who when their business dried up in one country moved nearly effortlessly to another country.  We also see domestic companies that simply cannot make the leap to go international at all, when they really should. What you learn in one country (but obviously not everything) does help you in another.

3. Multicultural Mindset: When selecting an executive for an overseas posting, look for someone with an adventurous spirit, a sense of humor, and an open mind.

I completely agree and this applies to lawyers as much as to anyone else.  In an article I wrote a long long time ago on doing business in emerging market countries, I stressed (and stressed again …. so I was repetitive back then):

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.

4. Commitment to Learn: Learn from those around you. Listen to your employees, JV partners, clients, and customers.

Of course.

5. Humility:  Be humble and avoid using an authoritarian style. Influencing and coaching is the way to get the best out of your Chinese employees.

Yes. This is also the way to get the best out of the lawyers in other countries with whom you will be working.

6. Strength:  Be unyielding in defending core corporate values and culture.

Yes.  And in the legal context this means doing things by the law, even if you see others around you not doing so.

7. Patience:  Be patient; use a step-by-step approach in China, not a Big Bang approach.

I will borrow again from my emerging markets article:

Exercise Extreme Patience.  This principle stems from the maxim that everything takes twice as long as you think it will. If it takes twice as long in the West, triple that in emerging market countries. You’ll go in both as a businessperson and a teacher — and in both roles, the learning curve of your partner will almost certainly take way more time to deal with than you think.

For example, many emerging market countries have a history where “bad business” meant “thinking long-term.” A year or two after the fall of Soviet communism, I was involved in a matter where an investor put $250,000 into a Russian joint venture. The business very quickly was making good money and all indicators pointed towards steadily increasing profitability. But, quite quickly, the Russian company stole the $250,000. Was it so irrational for him to think so short term in a country where the government and tax systems had such a history of unpredictability?

8. Speed: Be flexible and quick. Stay well informed; the business environment in China is in a constant and rapid flux, probably much more so than in other markets.

This is true of international law as well, and if one is going to practice in this area, one has to enjoy and thrive on constant change and even constant uncertainty.  I was talking the other day with my friend, Dan Hull, lawyer extraordinaire at Hull McGuire, and he was telling me how he has abandoned all pretext of what he calls “PCness” and he now just tells potential hires there that they had better be prepared to work tirelessly just to keep up.  I can certainly vouch for Dan being right when it comes to practicing international law.   

9. Guanxi-building: Build your guanxi not only internally (with subordinates, peers and superiors) but also externally with clients, suppliers and government officials). A strong guanxi network is a fundamental element of your success in China.

As a lawyer, both you and your practice will benefit by your doing more than just staying in your office poring over law books.  Get to know your clients, your fellow lawyers, good people in the industries in which you are working, and treat them with respect.  I see this as basic good business for anyone.

So you want to be an international lawyer/China lawyer?  Conform to this list.