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As law firms go global, many lawyers are poised, like it or not, to become international practitioners. But lawyers in different countries do not necessarily belong to the same species. Of course, in places like Germany and France the transactional practices of a growing number of large firms may now closely resemble those of their British and American counterparts. But even the most high-end corporate practitioner abroad will invariably encounter a range of foreign colleagues: local in-house counsel; partners in smaller firms located in and outside of the central business centers; even partners not involved in transactional practice within the biggest firms. How these lawyers think and operate is as varied as their diverse cultures. Do not count on any uniformity. Indeed, as one astute observer has written, you cannot travel the world and say that “a lawyer is a lawyer is a lawyer.” In different countries lawyers do — and are expected to do — different things. Moreover, their status in society varies; so does their training and their approach to legal questions. While lawyers advising on mergers and acquisitions or big bond issues may play a similar role in all of the major commercial centers around the world, do not expect most others to function as we do here. In Germany, for example, a legal education takes years to complete and is designed to train future judges and civil servants. After finishing the gymnasium, the rough equivalent of freshman and sophomore year at an American college, a law student attends university for an average of six years. From there, it’s on to work as an intern for another two years or so in the offices of judges, government agencies, and private law firms. Only then is the prospective lawyer ready to take the final exam and be admitted to the bar, a process that can easily take another six months. In discussing actual questions of law with German lawyers, I find almost always that the answers are identical, or at least not very different, under either German or American law. But the path a German lawyer travels to arrive at that answer differs radically — and can be difficult for an American lawyer to comprehend. Because the German civil law system is based on the construction and interpretation of codes, precedent and court decisions play a subsidiary role. And facts, at times, play hardly any role at all. The detachment from facts is, from this American’s point of view, the most significant characteristic of German law and lawyers. For example, I was once amused to read a treatise on expropriation under international law, written by a then-promising young German professor, which included a chapter on “Expropriation Under United States Law.” It comprised some 20 pages, yet did not refer to one single fact. Even the practical side of a German legal education does not balance abstractionism. The internship years are spent working for judges, administrative officials, or private practitioners who are all the products of the same abstract legal education. Even a German litigator who has a degree from Harvard Law School and has spent a year or two with an American law firm — as many do — must take leave of that American experience when facing German judges. (To address the gaps in the traditional German legal education, a new private law school opened in Hamburg in October. Its curriculum will place extra emphasis on corporate and international law and practice.) With this background, a German lawyer may become impatient when pressed on a question that for an American lawyer hangs on the facts. I once asked a German colleague whether the facts justified our clients’ claim that they had stopped certain deliveries because of force majeure. He responded curtly: “I don’t want to know the facts.” Living in a universe of abstraction and logic, light-years removed from Oliver Wendell Holmes, Jr.’s admonition that “the life of the law has not been logic,” most German lawyers unaffiliated with the major law firms or in-house corporate offices operate totally outside the loop of business. They may be asked to look at a contract just before it is signed, but they are not involved in its negotiation. And their clients (far more often than American clients) do not want them so involved. In fact, the communications gulf between lawyers and clients in Germany is so striking at times that a distant cousin of mine is able to earn his living as an intermediary between clients and their lawyers who communicate with one another only through him. German lawyers are not retained to plead the interests of clients before government agencies. Though in Washington, D.C., the resident vice president for governmental relations of a large company is typically a lawyer, a German company’s representative in Berlin usually is not. As a result, German lawyers, while respected as members of an academic profession, play a very limited role in public life. In France, a lawyer’s standing is even more limited. There, with rare exceptions, lawyers are shut out of the elitist French establishment and play a subordinate role in a culture where personal relations and access to the elite are mandatory for getting anything done — especially if it requires government approval. France is governed by a meritocracy in which the key positions are held by the top graduates of the so-called “great schools” (grandes �coles). Most influential among these institutions is the postgraduate National School of Administration (ENA), established by President Charles de Gaulle in 1945 to educate the top echelon of civil servants, known as the “great corps.” ENA graduates, called �narques, must serve ten years in the government, where the Inspection of Finance office is the most prestigious posting. After this government service, �narques can be found in every influential job in industry, politics, and finance — but not in law. Not only are lawyers outside that charmed circle, they stand low on the totem pole of professions. Some journalists, politicians, and businessmen who are not �narques may be influential; lawyers rarely are. Moreover, lawyers are essentially isolated and detached from this body of society and typically have no wide outside contacts. To make an appointment to see a French government official, especially an inspector of finance, is virtually impossible for an outsider such as a lawyer. Consider this experience. Years ago, an American client company of mine needed government authorization to acquire enough shares to obtain a majority of a closely held French pharmaceutical company. My client was told by its lawyer in Paris that success, if it came at all, would take at least two years. The client gave me that information on a Friday morning. Like all in-groups, be they Cincinnati, Boston, or B�sle Society, French inspectors of finance will condescend to meet with outsiders who by luck (or circumstances) have come to befriend one of them. Such has been my luck. And so I phoned a good friend in Paris who was an inspector of finance and a high treasury official at the time, to ask whether we could lunch on Monday. We did so. I described my client’s problem and was told that the one person I must see was Monsieur so-and-so. My friend arranged a meeting for 3:30 that afternoon. There, I was given an hour’s description of the authorization process: The decision was interministerial, and the most difficult member of the committee, of which my informant was the executive secretary, was the representative of the Ministry of Industry. This informant outlined the arguments that could persuade that ministry and advised me to call on the chairman of the committee. “Probably he won’t influence the outcome,” he said, “but it is safer to have him on your side.” And so my friend made an appointment for me to see the chairman at 5:30 p.m. that day. We spent an hour together, mostly gossiping about mutual acquaintances. Within two weeks my client had the written authorization we had applied for. It had not taken two years. No French lawyer was involved. The moral drawn from these experiences in France and Germany — that one must not assume that foreign lawyers do what American lawyers do — applies to all countries. I learned this lesson working as a lawyer for the World Bank early in my career. Once, in Peru, I asked our local counsel, that country’s foremost international corporate lawyer, whether a negative pledge clause in a loan agreement was valid under Peruvian law. He immediately answered yes. But when I asked if he had ever seen such a clause in a Peruvian contract or knew of any case in which such a clause had been adjudicated, his answer was no. He explained that under the Spanish Code, applicable in Peru, there should be no question about the clause’s validity. With such answers, any prudent lawyer would forget about relying on a negative pledge clause. Similarly, in Austria I was once told by equally eminent counsel that the signature of the Austrian Minister of Finance under a guaranty agreement unquestionably pledged the full faith and credit of the country. But some digging revealed a provision in the Austrian constitution that no such obligation of the government was valid unless it was countersigned by a second Austrian government agency, the Bundesrechnungshof. Yet, the first postwar Austrian federal bonds were issued without benefit of those countersignatures! Let American counsel beware. Franz M. Oppenheimer, of counsel in the Washington, D.C., office of Swidler Berlin Shereff Friedman, specializes in banking and international law. He has extensive experience dealing with foreign and domestic government offices and agencies.

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