Michael Burke, a corporate partner at Arnall Golden Gregory in Washington, D.C., takes over as chairman of the American Bar Association's Section of International Law on Aug. 9. One of his priorities is to focus on the rights of the disabled worldwide. During an interview with The National Law Journal Burke talked about the disabled, the legal implications of the debt crisis sweeping Europe, the burgeoning Chinese economy and the democratic shifts in the Middle East. He also discussed increased government enforcement of the Foreign Corrupt Practices Act.
This article has been edited for length and clarity.
NLJ: What issues do you intend to focus on during your term as chairman of the ABA's international law section?
Michael Burke: We're going to start a task force on legal empowerment of the poor worldwide -- access to justice, things like that.
Our section worked on recommendations that the United States formally sign on to the United Nations Convention on the Rights of Persons with Disabilities. I would like to push these forward. My mother is actually a paraplegic and has been for almost 30 years. Looking at the Americans with Disabilities Act and comparing that with what people with physical disabilities face outside the United States, it's one of those areas where we should feel lucky we're in the United States and have something like the ADA on the books. It's really a place where the U.S. can advocate for the rights of disabled persons in other countries and in some ways lead by example. That hit home for me.
The second priority is legal empowerment of the poor. We have in our section a pretty deep commitment on rule-of-law issues. Part of it is property rights -- ensuring people across different economic spectrums have property rights and can really not only protect their property but also can leverage it. In some jurisdictions, it's almost impossible for people to go to court to protect their rights as an economic matter. That's one area that really shouldn't be. We like to think the legal systems as constructed are accessible to everybody, regardless of what their economic status is.
NLJ: The annual conference for the ABA's international law section is in Dublin, Ireland. You've done several deals in Ireland, where a debt crisis has pummeled the country. How do you see the country's economic condition affecting legal work there?
M.B.: For financial services, which is where a lot of deals in the late 2000s in Ireland were, that work is significantly lower than it was -- placements of securities offerings on Irish exchanges, things like that. There is only really one bank that's kind of left standing on its own out of five domestic banks that were active five to six years ago.
In other sectors, the Irish economy is actually doing pretty well. Their export sector is doing really well -- everything from agriculture to finished products. They're doing a lot in the green energy space, both building -- for example, in wind energy the turbines -- and providing the services to wind farms to get them up and running.
Ireland remains an active place for setting up a European or non-U.S. headquarters of companies because they've got a 12.5 percent corporate tax rate, and that makes it hugely attractive for U.S. companies and other companies that want to set up and use Ireland as a jumping off point for business operations elsewhere in Europe.
NLJ: In Europe, though, many countries, most prominently Greece and Portugal, have failed to emerge from their own debt crises. How do you see this affecting legal work in Europe?
M.B.: There's a huge difference. The German economy seems to be doing pretty well and business transactional work in Germany -- Scandinavia also, Sweden is doing well -- is continuing on a pace it was before. In parts of Europe, the level of legal work is the same. Obviously, for folks who've got a concentration in one of these vulnerable economies, you'll see a pretty big slowdown, because people want the debt situation to sort itself out before making any significant moves on the business side. It's in a holding pattern, with the potential to slow down significantly in the weaker European economies.
NLJ: Your practice focuses a lot on China. This market is particularly hot but comes with a host of challenges, not the least of which is extensive government regulation. How do you see this market changing in the coming year?
M.B.: There are lots of strings attached to doing business there. We're still going to be talking about in-bound Chinese investment -- Chinese companies coming to the United States, either as purchasers in a merger/acquisition context or doing an IPO here.
There's still a pool of money Chinese companies can easily access. The Chinese have been extremely active in places like Africa and South America on natural resources exploitation, and that's going to continue.
If a U.S. company goes into China, it can be a good market for them if they understand what they want to get out of it. With China, you've got a lot of homework to do. One example: In the past year, I was advising a company on setting up an operation in China and the regulatory scheme changed three times in six months. The Chinese government is not great at publicizing changes and regulations. Sometimes you hear about these changes second- or third-hand, and it adds a level of complexity and frankly cost for foreign companies operating there.
NLJ: You've done some deals in the Middle East. Given the turmoil in many of those countries, how do you anticipate lawyers getting involved in this region going forward?
M.B.: As a section, we've been active in Egypt and a couple other places in transition issues. For the most part, we haven't seen a lot of changes on the business side. A lot of places in the Middle East had somewhat advanced and somewhat transparent, investor-friendly laws and regulations that pertain to foreigners investing or otherwise doing business in the region. Where a lot of the countries are now seeing that they maybe lagged a bit behind is the civil side -- the relationship between people and their government. That's going to change. And in a lot of places it has.
There's no organized bar in Egypt the way we have in the United States. What we've been doing, and this is something the section has done a lot of and does well, when a local government has a specific question on a piece of regulation, whether drafting a law or regulation up through what a foreign investment law should look like, we offer pro bono legal systems on that. Egypt really kicked into high gear in May, and we've been interfacing with our members and local lawyers there.
NLJ: The ramp-up in Foreign Corrupt Practices Act enforcement is a major topic among defense attorneys and government officials. What's the next phase in the anti-bribery law?
M.B.: The next phase is not only the Justice Department going for the home runs -- the big cases, where they're getting multimillion-dollar, sometimes hundreds of millions of dollars, settlements out of big companies, but also looking at small and midsize companies. That's a big concern for a lot of people. The Justice Department now has the resources to really go after big and small companies -- and they are.
The other thing we're seeing is this expansion of whom the companies are responsible for. It's not clear a company is responsible just for its own employees. That has evolved to be that they're responsible for their own employees plus, in many cases, distributors. Now the Justice Department seems to be pushing out the definition a bit more to include people who are just acting on behalf of a company, regardless of an employment or distributorship relationship. That has the potential to create huge headaches for companies, because they really have to keep an eye on what their employees or their agents are doing.