Ten things I have learnt recently…

…or been reminded of, by recent work experiences.

  1. US clients are interested in the 2012 case, Oracle v UsedSoft, in which the Court of Justice of the European Union confirmed that a licensee of cjeusoftware, where the licence is for an unlimited period, has the right to sell their licence, and the purchaser can use the software, despite any terms in the licence agreement to the contrary. Result: much head scratching to understand exactly how far this case affects different models of software licensing.
  2. The approach of French lawyers in relation to confidentiality of communications between lawyers is very different to that of English avocatlawyers.  It seems that, in France, a lawyer may not copy to his client a letter that he has received from the other party’s lawyer.  Result: effective communication with one’s clients becomes unnecessarily difficult.
  3. If there is a way of signing an agreement incorrectly, parties will find it, like moths attracted to a flame.  Last week, we received two originals of a contract that had been signed by the other party.  The signature blocks in the contract clearly indicated that the party’s signature should be witnessed.  The other party’s lawyer had designed the signature blocks.  But the other party signed without witnessing, and without the other party’s lawyer apparently noticing the omission when they sent us the agreements for signing.  Result: extra work.
  4. Large US corporations that acquire UK companies sometimes use standard employment contracts for their UK employees that unthinkingly bolt together US practice with UK practice, and with no real attempt to take into account UK employment or IP laws.  Result: conflicting terms and contractual chaos.
  5. When parties negotiate an 11,000 word Memorandum of Understanding without full legal input and then want the MOU to be converted into a full agreement, there is a lot of work involved in clarifying the parties’ intentions, removing inconsistencies and cleaning up the text.  Result: headaches and additional legal cost.
  6. When international groups of companies involve a dedicated procurement department in the purchase of complex software, negotiations can become very protracted if the procurement department has no authority to agree anything and must refer all issues of substance to the operating company.  Result: slower negotiations and additional legal cost.
  7. referralWork referrals from other professionals (eg firms of patent attorneys) can be very hit and miss.  Two recent projects from the same firm, involving different clients: the first went very smoothly and the client and intermediary were very pleased with our advice; the second, where the client didn’t know what they wanted, was a nightmare throughout and bills are outstanding six months after the work was done.
  8. Lawyers and accountants based in tax havens have a vested interest in persuading a client to move their operations to the tax haven.  Much as one wants to trust other professionals, one also needs to keep a weather eye out for whether their advice is entirely impartial and in the client’s best interests.
  9. Some UK tax barristers take an unhelpful approach in refusing to advise not my jobon whether a proposed move from the UK to a tax haven is workable under both English law and the law of the tax haven.  By limiting themselves to English law they are not providing a useful service and drive work to the big international firms of accountants.
  10. Australian solicitors, at least in IP Draughts’ experience, are generally of a high standard.  Anderson Law is delighted that Mario Subramaniam joined the firm this month as an associate.  He graduated and initially qualified as a solicitor in Australia before requalifying as an English solicitor.

2 Comments

Filed under Legal practice

2 responses to “Ten things I have learnt recently…

  1. Point 3 – agreed. But once it’s there, I feel it’s better to get clarity that neither party expects witnessing or have the agreements re-signed.
    Point 4 – sometimes it doesn’t even need legal advice, someone just needs to read the documents. On my desk is a set of docs for an employee that in one doc says employment at will by either party (US doc) and in another doc says employer 12 months notice and employee 24 months notice (UK doc; probably not enforceable against employee). Also has inconsistent post-termination restrictions in two docs. Plus other major inconsistencies. Whoever put the set of docs together just didn’t care what they said, was just following a process.
    Other points – believe it or not, I prefer clients to spend money in efficient use of legal resource.

  2. On point 3: I’ve never understood the passion for superfluous rituals like signature witnessing, notarization, or other such folderol, in a business contract. If there was no legal requirement for the signature to be witnessed, the other party’s lawyer was a fool for demanding it in the first place.

    On point 4: not to excuse the practice, but large companies usually have separate budgets for in-house and outside counsel, and so chief legal officers are under pressure to keep outside legal fees down. If the company doesn’t have an office with locally admitted lawyers in the UK, chances are the thinking was “the UK’s a common-law jurisdiction [they would probably miss the point entirely that it's three more-or-less common-law jurisdictions], so it’s all done the same way as in the US.” Truth to tell, even when contracting with non-common-law jurisdictions, many companies won’t bother to consult local counsel on details like these. All I can say about it is that it’s a good thing most deals don’t go to court.

    On points 2, 5, 6, and 9: Did I hear you aright to complain about needing to do more work (and charge more fees) because of your client’s inefficiency?

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