Written By: Robert L. Gegios and Stephen D. R. Taylor
Kohner, Mann & Kailas, S.C.
Businesses of all sizes are selling more to foreign buyers, sourcing from foreign suppliers, entering into ventures with foreign partners and investing directly in foreign businesses or infrastructure. Since businesses rely on legal advice, documentation and advocacy throughout the lifecycle of a business undertaking, lawyers are increasingly being asked to provide counsel relating to transnational business transactions and disputes. Such advice is frequently critical to the successful outcome of a client’s initiative. Legal input shapes risk assessments and strategic choices, influences the direction of negotiations and the form of joint ventures, and provides management with the groundwork for moving forward.
Yet transnational commerce inherently crosses cultural boundaries, raising the question of whether domestic assumptions that underpin traditional legal reasoning travel effectively. The answer is that, more often than not, such assumptions do not translate well, and the result is that sound advice in one culture may be far from beneficial in another. To be effective, legal counsel must be able to develop legal support for negotiations, transactions and operational management that is accepted by the counterparty and enforceable in the relevant localities. The absence of such capabilities in counsel can be disastrous. At the outset, flawed risk assessments may result and strategic decisions may be based upon erroneous assumptions. Cultural miscomprehension can alienate or confuse employees, partners, suppliers, customers, and key local constituencies. Needless misunderstandings or minor disagreements may be created or existing ones escalated into major crises resulting in significant costs and, sometimes, more lasting damage to future prospects.
The scale of this challenge is significant. Differences in business culture may represent a greater obstacle to successful outcomes than even language differences. “Cultural differences are the most significant and troublesome variables … the failure of managers to fully comprehend these disparities has led to most international business blunders.” General Motors has stated in court briefs that “cross-cultural competence is the most important new attribute for future effective performance in a global marketplace.” Microsoft has acknowledged past losses resulting from an inability to identify and bridge international cultural divides. Microsoft’s response, in common with large sections of the business community, has been to invest heavily to establish and broaden cross-cultural skills. The amount of attention devoted by the business media to cross-cultural management tools and techniques reflects the international business community’s recognition that developing cross-cultural competence internally is essential to international business success. It should be no less important to ensure that both in-house and outside counsel possess the same cross-cultural capabilities. This is particularly so given the economic and political rise of areas of the world that do not share European-derived commercial or legal traditions or the cultural characteristics from which these developed.
Why are Cultural Differences So Significant?
Our culture shapes the way we see the world. How we see the world shapes what we regard as proper, or important, and, hence, how we organize our society and evaluate the propriety of actions, in everyday life, in business and at law. Where cultural values differ, the same comment, concept, text or act may be understood completely differently. For this reason, the ability to appreciate cultural differences is essential to successful international commerce, and to the provision of legal services that support it.
Culture is the “set of distinctive spiritual, material, intellectual and emotional features of society or a social group and … encompasses, in addition to art and literature, lifestyles, ways of living together, value systems, traditions and beliefs.” Unfortunately, visible manifestations of cultural differences—such as fine arts, literature, drama, music, pastimes, cuisine and dress—are of little practical help in predicting how cultural differences will affect notions of proper business conduct and the enforcement mechanisms that underpin business certainty. The visible manifestations of cultural difference have been compared to the tip of an iceberg, since they represent only a tiny fraction of the whole and are noticeable only because of the existence of the much larger body of unseen influences, as illustrated by the following diagram.
Business practices reflect cultural sensitivities and objectives, and hence are not universal. For example, in the United States, profit is seen as a legitimate goal, success in business can be measured empirically, and the work ethic is highly developed. For the Japanese, the focus may not be on the pursuit of profit alone, but on human efficiency; the group is superior to the individual. In France, there may be more of an emphasis on moderating one’s own freedom of action in order to avoid harming the interests of others, often expressed as a social compact. This is not to say that a French or Japanese person does not seek to make profit. It is simply that they may not necessarily see true return on investment as measurable solely by bottom-line financial gain, but rather as an amalgam of profit, long-term market position, and the welfare of all stakeholders in the venture, including the workforce, and even the local community.
As commerce is shaped by culture, so is law. Legal systems that have developed organically over time fundamentally reflect the belief system that spawned and upholds them. Indeed, “the rule of law is the very bedrock of our civilization.” It is not surprising, therefore, that cultural divergence is, if anything, more pronounced in law than in commerce. As Professor Charles W. Wolfram observed in his treatise Modern Legal Ethics, “the practices and philosophies of lawyers practicing in other legal cultures very often bear little resemblance to those of lawyers in the U.S.” This goes to the heart of legal reasoning and practice:
[T]he Anglo-American lawyer [tends] to evaluate the importance of code provisions, of decisions of higher courts … and underestimate treatises or commentaries …. The continental lawyer in contrast will usually find himself at a loss among the innumerable precedents which are binding, but yet can be distinguished out of existence … and will vaguely look for precise concepts among the legal synonyms, loosely phrased decisions and unsystematic text books.
One of the then most senior English Law Lords, Lord Templeman, acknowledged the practical difficulties posed by trans-system practice in commending an English text for “grappl[ing] manfully with the different problems of construing English and [European] Community legislation.”
However, the conceptual divide between established European civil and common law systems is far narrower than that between the traditional systems of many major trading nations. Both legal paradigms are primarily the product of Christian Western European peoples. For all the differences between them they have far more in common than regulatory mechanisms developed in other parts of the world. Other distinct legal traditions include Sharia law, Hindu law and various forms of cultural “law,” such as the guanxi system of relationships in China, or giri in Japan. To complicate matters, many modern societies operate a fusion of systems, such as Egypt, which has elements of civil, common, and Sharia law, and South Africa, where common law is blended with uncodified civil law. Many emerging nations have imported statute law or civil law code, yet this written law alone often seems not to be predictive of legal outcomes, at least as interpreted without overlaying an understanding of local values and practices inherent to indigenous practitioners.
Contract Law as an Illustration of Divergent Cultural Priorities
Generally, commercial law, or its equivalent in a given culture, performs two functions: the creation of certainty in business transactions, and the resolution of disputes. Where there is trade, some mechanism will have developed to foster certainty in transactions and disputes resolution. However, this may not be legalistic. Cultural rules may be unwritten or may operate by changing the meanings of written law in ways that reflect the traditional values of the culture. Sometimes, the mechanism operates in the absence of enforced law, or outside of its structures. Dispute resolution may be based on the application of moral codes or interpretations of religious teachings. In such circumstances, transactional undertakings or litigation conducted on the basis of written law alone are unlikely to produce the desired outcome.
Dispute resolution and commercial regulation are outgrowths of what is important to a society. In a culture where an agreement is defined by the language in which it is expressed, interpretation on the basis of the language is not only logical, but also essential to establishing certainty in the marketplace. Yet, in many cultures, commercial accommodation requires trust, which can be created only by the gradual building of a relationship. In such societies, a written contract is not always seen as a final embodiment of the accommodation. The idea that words on paper could replace trust built through mutual understanding may appear ludicrous. Breach of obligations under a relationship duly grounded in trust may carry infinitely more severe consequences than a breach of contract. For the same reasons, culture goes to the heart of whether a party will view a business opportunity as worthy of investigation, the terms on which it will do so, and the likelihood that the relationship will be lasting and mutually beneficial. It shapes the conception of what has been entered into and perceptions of why each party has done so, and hence can legitimately expect as a result. Not surprisingly, therefore, it also plays a role in the emergence of disagreements and misunderstandings, whether these escalate into disputes, and whether and how such disputes can be resolved.
The profound impact of such cultural differences is illustrated by considering the differences in the concept of operation of contract between the relatively closely-related Western European civil and common law traditions. Under common law, a contract is not binding unless consideration of at least nominal value is exchanged. Consideration is “an inducement given to enter into a contract that is sufficient to render the promise enforceable in the courts.” In civil law, the critical element is cause, which does not necessarily require any flow of consideration. Thus, gratuitous promises may form the basis of a binding arrangement, and, as a result, contracts in favor of a third party can be recognized and enforced despite no consideration having been tendered for the benefit. “With regard to bilateral contracts, the [cause] of one party is the correspective obligation. In the case of gratuitous contracts, the [cause] amounts to the spirit of liberality of the donor.” Consequently, there is no equivalent to the common law concept of privity (under which, as a general rule, only a party to a contract can sue to enforce).
The notions of when a contract can be revoked or is breached differ equally markedly. In common law, an offer can be revoked until acceptance, even if the language suggests otherwise (unless consideration has been exchanged in return for what is perceived as a separate contract to keep the offer open for a given period). This is far from the case in civil law, where once made, an offer is binding for any period specified, or for a reasonable time beyond its making, if accepted within that period. If breach occurs, the concepts applied to determine damages also diverge. Common law holds breach of contract to be a strict liability issue, and consequently, it is enough that a material breach has occurred: no intent or fault is necessary to enable the aggrieved party to recover damages. However, an award of damages under civil law requires a finding of fault. Even if performance is not timely, at civil law, notice must be given to the potential defaulter, who must also be given a reasonable time to remedy the situation. At common law, the contract is deemed to provide adequate notice of conditions and duties, and generally no notice is required to enable damages to be sought.
In “most legal systems outside of the common law world, the law of obligations recognizes and enforces an overriding principle of good faith” as applied to the making and application of contract. Common law applies no such rule, rather allowing equitable principles to address unconscionable dealings. However, “only where the contract is unconscionable as might arise from situations of unequal bargaining power between the parties, should the courts interfere with agreements that parties have freely concluded.” In other words, the common law acknowledges the potential for abuse of power at creation of a contract. In contrast, the civil law duty of good faith applies to pre-contractual negotiations as well as performance: good faith is presumed and the party alleging otherwise bears the burden of proof. The different philosophy of the civil law approach is illustrated by the determination that good faith required debt revaluation by courts in periods of hyper-inflation because it was contrary to good faith for the creditor to be deprived of actual value by the debtor. A similar principle is at play in Quebec civil law, under which a party who exercises a contractual right in a manner that would not be expected of a “prudent and reasonable individual” may be subject to an action to recover damages incurred as a result, even if there was no malicious intent.
The timing of passing of title is another area of conceptual difference that can cause significant problems. Under common law, the contract, as representative of the desire of the parties, determines when title to goods transfers. However, traditionally, under French law, title passes the moment the nature of the goods and the price to be paid are agreed: delivery and payment are of no consequence. German concepts evolved differently from the French: not only must there be agreement, but the goods must also be delivered. Taken together, the result is that a secondary buyer may, in certain jurisdictions, acquire the contractual rights of the first buyer for goods not yet delivered, without the need to consult the original seller. Such concepts are directly contrary to the common law precept that parties can contract for risk (unless utterly unforeseeable) and that if parties fail to do so there is no basis for the courts, absent duress, to step in and apply a higher principle of good faith.
Different Cultural Priorities Result in Dramatically Different Approaches to Disputes
Cultural differences affect every aspect of commercial activities, not merely the process of entering into an arrangement. The concept of dispute resolution differs just as profoundly. Consider the approach to evidence in European-derived civil and common law traditions. The principal characteristic of civil law systems is “full exchange before hearings of documents on which each party intends to rely.” Judges in civil law countries bear the bulk of the responsibility for bringing out the facts of the case. Pre-trial is neither distinguished from trial, nor clearly understood as a concept. The whole American discovery process is frequently viewed as fishing for cause, and as distasteful in the extreme, and often as contradicting fundamental rights of privacy and confidentiality. “Never underestimate foreign fear and loathing of American Discovery Practices.” This is so even in common law England, where disclosure (discovery) is generally only available from parties, and then only of identified documents for which relevance can be justified in advance. Depositions, essential to the American process, are regarded as little more than exercises in intimidation and entrapment, to the point that they are almost unheard of in international arbitration. Notions of privilege also vary greatly, in large part because the privilege is the result of a different policy concern. In the United States, the aim is to foster full and frank communication, generally safe from discovery. In civil law, the object is to protect professional confidences as a right of the lawyer, who determines what constitutes such a confidence. On the other hand, American privilege extends to employees consulted by in-house counsel, whereas civil law privilege generally will not. Together, these differences over evidentiary rights provide excellent examples of a potentially determinative differences arising directly from different cultural perceptions of privacy.
Such contracts reflect fundamental differences in the rights of the participants, the objective of the judicial process and the manner in which it is conducted. Arguably, the difference goes to the very core of the concept of the position of the individual. The common law focus on these rights of an individual as the basic unit of law is not the same as the civil law concept of an individual as a member of a wider society. Put another way, compare the state-determined balance of constitutional rights expressed in the German Basic Law: “favoring dignity over freedom of speech, and favoring the preservation of democracy over the exercise of free speech with the statement that “all men are created equal, that they are endowed by their Creator with certain unalienable Rights” from the United States’ Declaration of Independence. Just as in conceptions of contract, there are many “largely unbridgeable conceptual chasms between common and civil law” in the areas of pleading, testimony, discovery and the proper time for production of written argument. “Counsel should be wary of their own – and their colleague’s culturally conditioned conceptions” and the behavior that springs from these.
The above differences demonstrate fundamental conceptual divergences between these systems. The starting rationale and burdens placed on the parties are fundamentally different conceptually, resulting in a “difficulty finding even a common starting point for lawyers in the two systems.” Cumulatively, these and other differences shed some light on the different notions of the role of contracts in society, on the approach to resolving disputes and the proper limitations on a person’s ability to establish and enforce rights and obligations through a contract. Obviously, the optimal language and structure of any documentation reflecting a given, hypothetical agreement to transact will look very different depending on whether a civil or a common law legal system applies. What is often overlooked is that the ability to enforce agreements and the impact of external events may also differ significantly.
Cultural differences deeply impact the concept of an acceptable contract document. For example, the prototypical American conception of contract is an all-encompassing document that is the exclusive record of the respective rights of the parties expressed in a detailed writing. One word may alter the interpretation of the whole contract, rendering precision essential. Therefore language is necessarily specific and direct regarding obligations. The result is a detailed, sequential document intended to address all potential eventualities that may arise over the term of a contract in explicit language. In contrast, in European civil law jurisdictions, contracts are traditionally “relatively straightforward and brief” since major contractual principles are implied as a result of their being enumerated in applicable civil code. In other parts of the world, the divergence in the conception of contract is often greater. In such circumstances, practical considerations are paramount. The length, breadth and subject matter appropriate for a contract should both facilitate the intended commercial activity and provide certainty in the event of a dispute arising. In many cultures, an American-style detailed exposition may alone be sufficient to prevent the other party’s ratification of an otherwise acceptable agreement. Alternatively, signature may be effectively valueless, since contracts in such form are either unenforceable under local law, or at best only offer the potential for a pyrrhic victory. As a result, very careful consideration should be given to whether to include and how to fashion dispute resolution clauses, and the manner that these can be beneficially invoked in a cross-cultural setting.
To Achieve Cross-Cultural Competence, One Must First Comprehend the Problem
To appreciate the perspective of another culture, one must understand that even the most fundamental tenets of one’s own culture may not be recognized, let alone understood, in another. Such appreciation entails not only an ability to appraise the fundamental values of others, but to realize that such fundamental concepts as freedom, transparency and individual rights may not be shared, and that this difference critically impacts business transactions and notions of law.
Acquiring the ability to operate effectively across different cultures is a process that requires an individual to question fundamental personal and professional assumptions before he or she can acquire the skills to assess the differences in terms of practical consequences. Only then can a viable approach to a particular legal or business objective be identified and pursued. This is not a sudden process, but a skill that requires time to acquire. For most people it also requires a catalyst to create awareness of the existence of the problem.
Businesspeople with experience in international commerce have often learned all too well that simply being part of the same company does not ensure efficient cross-cultural cooperation. If a corporate connection was sufficient to promote cross-cultural competence, most international cultural problems would disappear or have been solved long ago. In contrast, international businesses increasingly encourage, and often require, senior appointees to have had extensive experience of working not just with people from different parts of the globe, but as leaders of business units and teams physically located in different cultures—staffed by and transacting with people and businesses that are part of that culture. In addition, many industries are investing heavily to develop cross-cultural awareness and competency among their personnel.
Lawyers appear to be more insulated from exposure, perhaps in part because lawyers typically focus on their domestic environment. This is supported by the fact that international law firms have, for the most part, been slow to acknowledge the need to invest in such skills. Some international firms are on record as believing that cross-cultural awareness is unnecessary, because they have so many offices in so many nations, or because such issues can be adequately addressed informally, or as an adjunct to domestic sensitivity training. This appears to confuse international diversity with cross-cultural understanding, and contrasts with the approach of many major businesses that retain such firms. Others may be more candid: “Some lawyers said law firms don’t invest in cross-cultural training because it can’t be linked to billable hours.” For others the issue seems to equate to business etiquette—surely the very tip of the cultural iceberg. “[I]t’s not terribly effective to have a workshop or a course that will tell you how to receive business cards,” notes the head of one multinational law firm, suggesting that some law firms have yet to become appreciative of the impact of culture. Perhaps the reason is the lack of direct exposure of most attorneys to a catalyst.
Some writers, such as Milton Bennett and Mitchell Hammer, believe that without such exposure, the natural inclination of lawyers and businesspeople alike, is to refuse to recognize that differences exist, and when forced to do so, dismiss their significance or insist on American practice. One of the most fertile sources of cultural blunders occurs when businesses from developed countries assume their strong belief in the correctness of their domestic operational principles and practices upon operating units located in emerging economies. According to Bennett and Hammer, even when it becomes apparent that different peoples possess divergent but nevertheless valid and complex world views, there may be problems in coming to terms with the validity of the practices that reflect the underlying cultural differences. The inescapable conclusion is that true cross-cultural competence requires significant time and experience to develop to a point where an individual can grasp different cultural realities and identify means to achieve objectives in a manner that finds support within all the cultures involved.
The risk of false cultural confidence is genuine, as are the potential consequences. As a result, prudent business decision-makers give cross-cultural expertise significant weight in evaluating potential legal counsel for transnational matters, even where they have had a long and productive relationship with prospective counsel in domestic activities.
There is no miracle test. If available, the assessment should involve individuals within the client organization who have real experience verifying and implementing transactions and operations in other cultures, ideally in close geographic proximity. Whether such resources are available or not, asking the right questions of potential legal counsel at the outset is critical. The following are a few suggestions for developing questions to evaluate prospective counsel. If one can address the client’s potential impact in relation to a business or project, then one has, at a minimum, established awareness and some potential to develop appropriate solutions. If such responses are lacking, the client may wish to look elsewhere. While far from comprehensive, these suggestions may shed light on whether counsel has an awareness of obstacles and will be able to address how such issues can be accommodated in practice.
In General Dealings
1. Is the individual the rightful focus, or the community, or other group, and to what degree?
2. Is communication direct, or is nuance preferred?
3. Is deference to superiors expected, and to what extent?
4. What are the sources of superiority?
5. Is linear negotiation favored?
6. What is the attitude to devolved decision-making?
7. What is the real source of business certainty?
8. Is there great focus on the past, or is past practice viewed as something to be continuously improved upon?
9. How important is decisiveness (or the public appearance thereof)?
10. What are local attitudes to gender, age or overt sexuality?
In Relation to Resolving Disputes
1. Is the dispute as expressed likely to be the true source of contention?
2. What is the attitude to public conflict?
3. Is “face” a significant concern?
4. Which is most valued: visible affluence or demonstrable contribution to the community?
5. Is there a black or white view of conflict, or one of shades of gray?
6. Is conciliation a tenet of the society, or is there a win-lose approach?
7. Is the proper scope of consideration limited to parties or properly inclusive of all stakeholders?
8. Are contracts viewed as final expressions, lose guides, or agreements to agree, etc?
9. Is profit motive accepted as the prime purpose of business?
10. Can disputes impact prospects beyond the scope of the parties to the dispute?
In Relation to Successful Advocacy
1. What are the attitudes to, and bounds of, privilege?
2. Is lawyer contact with witnesses viewed as tainting?
3. What is the concept of privacy? Does this conflict with domestic evidentiary principles?
4. In a deferential society, which sources of evidence attract particular deference?
5. Is the goal to punish wrongdoing or to find the solution offering the least harm to interested parties?
6. Is truth validated by rational, dispassionate investigation, or by live test under cross-examination?
7. Is cross-examination seen as ineffably hostile?
8. Is oral testimony or written evidence seen as more dispositive?
9. Is aggression in advocacy indicative of conviction and right, or improper intimidation?
10. Is precedent seen as an inhibition on the ability of a decision-maker’s scope of action?
The above provides a starting point for further research into linguistic abilities, political issues and, most critically, individual background and experience. Detailed knowledge of the laws of a particular nation is not a pre-requisite. Rather, the search is for evidence of a lawyer’s awareness and knowledge of the nature and scale of the cultural difference issue, combined with insight into how differences can be identified and addressed to secure effective business and legal advantage.
Businesses with cross-cultural business understanding and experience should expect as much from their counsel. For those companies less experienced in international dealings, advice from peers in the business community on the realities and pitfalls of transnational commerce can help in creating a basis for evaluating potential counsel. The stakes are high: cross-cultural competence can mean the difference between success and failure in matters crucial to a client’s long-term business prospects as well as short-term profits.
(1) Horwitz, F. M., Anderssen, K., Bezuidenhout, A., Cohen, S., Kirsten, F., Mosoeunyane, K., Smith, N., Thole, K. & Van Heerden, A, “Due diligence neglected: managing human resources and organizational culture in mergers and acquisitions.” South African Journal of Business Management, Vol. 33(1), pp. 1-10 (2002).
(2) David A. Ricks, BLUNDERS IN INTERNATIONAL BUSINESS, 3rd Ed. Blackwell (2000) ISBN: 0631217762.
(3) Amicus Curiae Brief, filed in Gratz v. Bollinger, 122 F.Supp.2d 811 (E.D. Mich. 2000).
(4) Cultures are not coterminous with nationality, but tend to be ethnically, and sometimes religiously, defined. See, Convention on the Protection and Promotion of the Diversity of Cultural Expressions (2005) Art. 2(3), available at http://portal.unesco.org/en/ev.php-URL_ID=31038&URL_DO=DO_TOPIC&URL_SECTION=201.html.
(5) Culture evolves over time and as a result of outside contact, but significant change generally occurs on a generational time scale. See, John Hewko, “Foreign Direct Investment in Transitional Economies: Does the Rule of Law Matter?” East European Constitutional Review, Fall 2002/Winter 2003, p. 78.
(6) UNESCO definition (2002). Source: http://www.unesco.org/education/imld_2002/unversal_decla.shtml#1. Individuals within a culture will vary in the degree to which they reflect cultural generalizations due to differing exposure to divergent cultural traditions and differences in the personality of individual members of societies and cultures.
(7) See, Robert L. Gegios & Stephen D. R. Taylor, “Cross-Cultural Understanding: An Essential Skill in International Advocacy,” in INTERNATIONAL MEDIATION & ARBITRATION FROM THE PROFESSIONAL’S PERSPECTIVE, Anita Alibekova & Robert Carrow eds., Yorkhill Law Publishing (2007) ISBN: 978-1-4303-2526-0.
(8) Adapted from INTERCULTURAL LEARNING T-KIT, Silvio Marinelli, ed., Council of Europe Publishing (2000). ISBN 92-871-5364-7, p. 21, attributed to “AFS Orientation Handbook,” Vol. 4 p. 14, New York: AFS Intercultural Programs Inc. (1984).
(9) P. Poirson, “Personnel Policies and the Management of Men,” École Supérieure de Commerce de Lyon, Trans. Thierry Devisse. (1989), p. 6. cited in DEREK TORRINGTON & LAURA HALL, PERSONNEL MANAGEMENT: HRM IN ACTION,” Prentice Hall,” 3rd Ed. (1995), ISBN 0-13-149543-7, p. 117.
(10) See Torrington, et al., supra n.9, p. 117.
(11) Margaret Thatcher, “Follow the Leader”, American Outlook, Hudson Institute, Spring 2000, at 23.
(12) West Publishing Co. (1986), ISBN 0-314-92639-9.
(13) C. SZLADITZ & C. GERMAIN, GUIDE TO FOREIGN LEGAL MATERIALS: FRENCH, 2nd Ed. Oceana (1985) at ix.
(14) The Rt. Hon. Lord Templeman MBE, Lord of Appeal in Ordinary (1982 to 1994), Foreword to JAMES A. HOLLAND & JULIAN S. WEBB, LEARNING LEGAL RULES, Blackstone Press, 4th ed. (2001), ISBN 1-85431-889-6, at vii.
(15) For more on these divides, see Stephen D. R. Taylor & Robert L. Gegios, “The Ability to Bridge Cultural Differences: A Prerequisite for Good Counsel in International Transactions,” COMPARATIVE LAW YEARBOOK OF INTERNATIONAL BUSINESS, VOL. 32, Kluwer Law International (2010) ISBN: 90-411-3361-5.
(16) The fundamental purpose of commercial law is “to maintain the commercial harmony, integrity, and continuity of society.” Source: http://www.commonlawvenue.com/Glossary/GlossaryA-D.htm.
(17) “Seven Disciplines for Venturing in China,” Deloitte Research (2005), p. 4 col. 1.
(18) The Japanese have sometimes been characterized as averse to all-controlling written contracts. Rather, certainty comes from “giri,” a system of intertwining social and moral obligations. “In the event that parties under giri should fall into a dispute, then they will adopt a conciliatory and flexible concessionaire approach. The presence of giri might be incompatible with the nature of litigation and operate to inhibit a resort to legal resolution of disputes.” Masayuki Yoshida, “The Reluctant Japanese Litigant: A New Assessment,” available at: http://www.japanesestudies.org.uk/discussionpapers/Yoshida.html.
(19) Encyclopædia Britannica online, available at http://www.britannica.com/EBchecked/topic/133519/consideration.
(20) Dr. Aron Mifsud-Bonnici, “The requirement of a lawful consideration in the law of obligations (section 987 [of the Italian Civil Code]),” available at: http://www.mifsudbonnici.com/lexnet/articles/causa.html.
(21) See, Australian Contract Law website available at http://www.australiancontractlaw.com/law/scope-privity.html. As a general rule, under common law, a contract cannot confer rights or impose obligations on persons who did not assent to the agreement that the contract records.
(22) Interfoto Picture Library Ltd v. Stiletto Visual Programmes Ltd  1 All ER 348, 352-53, Bingham L.J.
(24) Hunter Engineering Company Inc. et al v. Syncrude Canada Ltd. et al  S.C.R. 425, 426
(25) HOLLAND, et al., supra n.14, pp. 308-09.
(26) Id. at 309.
(27) Banque Nationale du Canada v. Houle et al ( 3 S.C.R. 122, 155; Article 7, Civil Code of Quebec (“No right may be exercised with the intent of injuring another or in an excessive and unreasonable manner which is contrary to the requirements of good faith”).
(28) Ceslav Pejovic, “Civil Law and Common Law: Two Different Paths Leading To The Same Goal,”  VUWL Rev 42, III. A. at III H, citing Article 1583 of the French Civil Code.
(29) Id. at III H, citing Article 929 of the German Civil Code.
(30) W. LAWRENCE CRAIG, WILLIAM W. PARK & JAN PAULSSON, “INTERNATIONAL CHAMBER OF COMMERCE ARBITRATION,” 3rd Ed. Oceana Publications, Inc. (2000), ISBN: 0-379-21392-3, p. 418.
(31) Glen P. Hendrix, in “Ten Rules for Obtaining Evidence from Abroad,” in “INTERNATIONAL LITIGATION STRATEGIES AND PRACTICE,” Barton Legum, ed., ABA Section of International Law (2005), ISBN 1-5903-544-8, p. 105, cites examples for emphasis, including a declaration of a staff attorney at the Russian High Commercial Court that pre-trial discovery enables a party to obtain documents even before a complaint is filed, to facilitate the filing.
(32) Javier H. Rubinstein, “International Commercial Arbitration: Reflections at the Crossroads of the Common Law and Civil Law Traditions” CJIL, Vol. 5 No. 1, (2004), p. 2.
(33) Glen P. Hendrix, in Legum ed., supra n.31, p. 105, Rule 1.
(34) Javier H. Rubinstein & Britton R. Guerrina, “The Attorney Client Privilege in International Arbitration,” 18 J. Intl Arb. 587 (2001), p. 591-99.
(36) The Unanimous Declaration of the thirteen united States of America, in Congress, July 4, 1776.
(37) Cliff Hendel, “Transnational Litigation and International Arbitration: Cross-Cultural Reflections,” International Law News, Winter 2006, p. 8.
(39) HOLLAND, et al., supra n.14. p. 311.
(40) Sara McLaughlin Mitchell and Emilia Justyna Powell, “Legal Systems and Variance in the Design of Commitments to the International Court of Justice,” Shambaugh Conference, University of Iowa, October 12-14, 2006. Available at: saramitchell.org/mitchellpowellcmps.doc.
(41) As one business performance consultancy to law firms notes: “North American lawyers, in particular, may be surprised to learn that styles and behaviors that work well at home may produce unintended negative effects among lawyers and staff in other countries.” Source: http://www.walkerclark.com/articles.html.
(42) See, e.g., Vesna Jaksic, “The Culture Gap: Firms going global study client customs,” The National Law Journal, May 11, 2007, available at: http://www.law.com/jsp/llf/PubArticleLLF.jsp?id=1178787890511&rss=newswire.
(44) Id. (quoting the managing partner of one of the world’s largest law firms).
(45) See “The Development Model of Intercultural Sensitivity,” Milton Bennett and Mitchell Hammer (1998), available at http://www.intercultural.org/pdf/dmis.pdf.
(46) Ahlstrom, D. & Bruton, G., INTERNATIONAL MANAGEMENT: STRATEGY AND CULTURE IN THE EMERGING
WORLD, Cengage Learning, ISBN-10: 0324406312 ( 2010).
Robert L. Gegios, Kohner, Mann & Kailas, S.C. firstname.lastname@example.org
Robert Gegios chairs the Litigation Department of the Milwaukee law firm of Kohner, Mann & Kailas, S.C. He has more than 25 years of experience representing public and private companies and individuals in a wide range of legal matters, including general business and commercial litigation and counseling, securities, antitrust and trade regulation, dealership and franchise law, intellectual property, RICO, employment disputes, insurance coverage, and international controversies. His clients have spanned a broad array of industries and occupations, and he has represented their interests in disputes across the United States, as well as in foreign settings. His many accomplishments include winning one of the largest jury verdicts in a business case in the State of Wisconsin in recent years and obtaining winning dismissals of numerous multi-million dollar class and individual actions brought against both public and private companies.
Stephen D. R. Taylor, Kohner Mann & Kailas, S.C. email@example.com
Prior to becoming an attorney with Kohner, Mann & Kailas, S.C., Stephen Taylor was a businessman and venture capitalist who focused on business strategy, in particular the development and expansion of international markets. Mr. Taylor advises businesses on how to manage electronic information to protect their interests in the event of litigation, and on the conduct of electronic discovery. He also provides transactional and strategic support to businesses involved in trading across international and cultural boundaries and in identifying effective dispute resolution strategies arising out of such activities. An American attorney, Stephen also holds an MBA and Bachelor’s degrees in both International Trade and Politics & International Relations from British universities.
Kohner, Mann & Kailas, S.C. www.kmksc.com
Founded in 1937, KMKSC is a business and commercial law firm. KMKSC provides quality legal expertise across the areas of law encountered by businesses in the course of their operations and growth. Our services range from high-profile appellate representation and international business issues to ensuring that critical everyday needs, such as debt recovery, are fulfilled efficiently and expertly. Our purpose is to deliver excellent results for our clients, whether the issue is advice on the avoidance of legal disputes, closing a deal, protecting assets or winning in court. KMKSC is continually advancing the interests of its clients in negotiations, transactions, litigation and alternative dispute forums across North American and beyond. We help U.S. companies address the legal issues raised by trading across international borders and provide legal support and advice to foreign companies operating in American markets.