Canadian publication The Lawyers Weekly has published a contribution from Robert Amsterdam on doing business in emerging markets in their upcoming August 21 edition. An adapted excerpt can be found below.
For lawyers representing clients’ interests in challenging environments, some basic changes of mentality must be embraced.
Firstly, too many international lawyers are quick to embrace the perceived safety net of the bilateral investment treaties (BITs). In reality, BITs are not even applicable in many key markets, and when they are they are exceedingly cumbersome, slow and expensive, which often serves the purpose of the local opponent whose main goal is sometimes to just buy time.
Secondly, too many lawyers fail to embrace the importance of partnering locally with independent domestic counsel. Simply enlisting the affiliate of the largest global firms is not always going to be the right way to go, especially if that affiliate firm depends on business from other parties in such a small market. Working closely with high quality local law is the only way to achieve an honest assessment of how the opponent is going to approach the dispute.
Thirdly, one of the most common mistakes we see is the habit of international law firms to fire away letters from their Bay Street headquarters toward local private sector opponents as well as targeting specific bureaucrats within state ministries, raising the specter of corruption.
Such an approach is usually counterproductive. Foreign counsel working in places like Africa and Eurasia need to carefully unpack and disaggregate their notions of “corruption” and understand the political scene and how it works on the ground. We should be very careful about making normative or controversial public statements, which may only serve to band together local elites instead of forming alliances.
In short, the takeaway for Canadian lawyers is that nobody should write off emerging markets because of misunderstood reputations. These markets are complex, nuanced, and ripe with future opportunities — especially if you are willing to go local and leave behind the flawed assumptions that tend to take root at the corporate level.
Read the full article on The Lawyers Weekly.