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China And England, Without Prejudice. Assume Nothing.

By Dan Harris and Steve Dickinson

Sometimes the strangest things get me to thinking. Today it was an article, entitled, "Court of Appeal rules on without-prejudice communication," by London lawyer, Andrew McGregor. An incredibly rough summary of the article is that British courts will exclude settlement negotiations as evidence. Bear with me here, as there will be a China angle here soon. As an American lawyer, my first thought was, "of course." Of course because US Courts have long had such a rule. But does China have such a rule? I do not know, but I doubt it. The point here though is not whether China has such a rule or not, but how easy it can be to engage in settlement negotiations on a Chinese case without giving any thought as to whether your communications might one day show up as evidence in court. US lawyers do not even give this a second thought, and that is really the problem. It is difficult to take what has become instinct and re-examine it each time you are dealing with a new country. Back when I was just starting out as a lawyer focusing on emerging markets, I wrote an article setting forth what I saw as the "Four Principles of Emerging Market Success, which included the following:

PRINCIPLE TWO: Keep an Open Mind. Assume Nothing. Doing business in an emerging market means taking nothing for granted. I have a mantra for my own legal work in these countries that translates well to the business world: "Assume nothing, but assume that you are assuming things without even realizing you are doing so." Things will be different. Very different. Things you take for granted in your home country might not exist in the emerging market country. Things you take for granted in your home country might be the exact opposite in the emerging market country. Things you think will be totally different in the emerging market country may be exactly the same. Things you thought you knew about emerging market countries based on what you know from another emerging market country may be completely different in a neighboring country, or even in another region within the same country. The principle, one more time: Keep an open mind, and assume nothing.

My firm and I are involved right now in a very high profile case in an Asian country other than China (and on which I hope to be able to write more later, but which is too sensitive right now) that is forcing us to confront anew certain legal doctrines we usually just take for granted, such as the following: 1. Right to counsel of your own choosing. 2. Right to due process. 3. Admissibility of hearsay evidence. 4. Conflicts and waivers of conflicts. These are the sort of things that go to the heart of lawyering and yet seldom arise in the typical international business transaction. We are finding ourselves wanting answers to these sorts of very basic issues as those answers may influence our overall strategies. I actually enjoy being tossed out of my comfort zone from time to time and I would guess most of our readers do as well. I say this because Westerners interested in China almost have to be the sort of people who revel in the new and different. Right? Stories welcome.....

Full post as published by China Law Blog on March 09, 2010 (boomark / email).