Pointers for Working with Foreign Employment Counsel

Working with foreign employment counsel on a challenging employment issue can sometimes be a frustrating experience, particularly if the advice you receive on a proposed course of action is simply “no, you can’t do that under our law.” Here are some pointers for in-house lawyers and HR professionals to try to make the process of getting local law advice more productive and efficient:

1. Find good local counsel – It’s an obvious point, but finding the right lawyers for the particular piece of work is important. Your colleagues within your company and your wider business circles probably make recommendations based on personal experience. And your external counsel in your home country will also usually be able to make suggestions. We regularly see internal emails from V&E lawyers asking colleagues for recommendations for foreign counsel to advise a client on a specific issue. We are always happy to facilitate that process and use our contacts to help clients find the local support they need.
2. Instruct them early – Local counsel can advise you not only on the law affecting a particular issue, but also what is customary and expected by employees. Having the benefit of that guidance earlier in the process could help to avoid causing unnecessary disputes. Handling sensitive terminations can be difficult at the best of times, but following a process that might be typical in your home country may not work (or work well) in another legal jurisdiction and culture, and can sometimes result in an avoidable dispute and potentially greater liability. If you don’t already have a local HR or in-house legal presence that can guide you, instructing your local outside counsel early in the process can help you avoid some of the pitfalls you might otherwise stumble into.
3. Pushback when told “no” – In my experience it’s not uncommon to hear local counsel say that a client’s proposed course of action is “not allowed” or “against the law.” But that doesn’t necessarily mean it cannot be done. Pushing back on that kind of advice and asking for more explanation can help distinguish between actions that really cannot be done (e.g., if it results in a criminal offense under local law) and those that can be done but might increase potential financial liability. It can sometimes take a bit of time and effort to fully understand the context of the advice in a foreign legal system, but asking questions and probing the advice can help you make an informed risk assessment and help come up with viable options.
4. Use local form agreements – It can be worth the time and cost to use local counsel on the front-end to draft employment agreements rather than trying to use your standard home-country form in a foreign country. If disputes arise, a tried-and-tested form of agreement from a good local lawyer is likely to provide the company better protection and avoid the ambiguities and unforeseen negative consequences of a contract drafted for another jurisdiction. Local counsel should be able to incorporate the provisions and concepts in your standard form into a tailored agreement based on their local form.

Working with local counsel around the world can be daunting, as these pointers indicate. If you would rather not face all of this effort, our final pointer is to hire regular counsel who has experience with labor and employment matters around the world and who has a track record of working with local counsel in many countries. These types of regular counsel can handle these matters for you and do a good job of interpreting advice given by the local counsel and putting it all in terms that make sense from the U.S. perspective.