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An African perspective on cross-border legal collaboration and operations


Picture of Terence Hussein

When I first started practicing law internationally in southern Africa thirty years ago, things were simpler, in the sense that communication was more basic. There was no internet, no emails, and none of the gadgets that we know of today. If you wanted to communicate with a lawyer outside your jurisdiction you needed to write a letter, affix a postage stamp to it, and drop it off at the post office. Thirty years ago, I worked in a “modern” law firm which was, “well equipped”. It boasted a telex machine (an upgraded telegraph device that sputtered out words in machinegun-like bursts). The pride and joy of the firm was a fax machine. It was revolutionary and could send a document by putting it through the machine, after which it would come out instantaneously on the other side of the world. As there was no World Wide Web for you to google search for a foreign lawyer you had to subscribe for or enrol in a directory such as Martindale and Hubble which lawyers received as a hardcover book every year.

Cross-border legal work was therefore not only slow and cumbersome but restricted to a chosen few. As contact and communications were limited, cross-border legal work was the preserve of multinational legal franchises and giant accounting firms.

Traditionally, the types of cross-border work that existed were in the fields of intellectual property such as copyright, patent, trademarks, and industrial designs. There would also be commercial work such as rendering assistance with local registration processes and compliance requirements.

With this history in mind, it is readily apparent what has changed over the last three decades. Technology. Nothing has changed the face of the legal profession more than technology. During my time in practice, I have witnessed more changes in the legal profession in the last five to six years than I believe has occurred over the past century. Everyone now is on the internet and connected virtually by WhatsApp, Snapchat, WeChat, zoom, email, etc. 

Lawyers like us are now on case management systems, having finally binned the mountains of paper hitherto synonymous with our profession. Even in a developing country like Zimbabwe, courts, such as the Constitutional Court, Supreme Court Commercial Court, are on an online case-management and filing system. They have gone paperless. You can now file documents with a court online and it is no longer a requirement that you be at a particular place to do so. The courts in Zimbabwe, because of this, have done away with the delays that were occasioned by having to prepare papers and physically deliver them to a particular office. This has significantly shortened the time it takes for a matter to mature and get it to court to be determined. The advent of the electronic management system means it is now theoretically possible to have a matter determined in six months. The laws of the country have been amended so that a court hearing may now be held virtually at the discretion of the court itself. Therefore, an investor based in China may now give evidence before the court from his base in, say, Guangzhou and does not have to be physically present in the country. The net effect of this is that it makes the legal process in a cross-border context much easier and less costly. It has also made it a lot more transparent. This is not unique and is the direction the practice of law is going the world over.

The legal profession itself, whether it be here in Zimbabwe or across the world, has also changed significantly because of the relaxation of entry requirements into the profession. The world over, law graduates are being churned out at a rate never before seen and in quantities that cannot be readily absorbed by existing practices. There is a joke that is told at Stellenbosch University, in Cape Town, South Africa that “at Stellenbosch University every rock, tree, and stone is studying law..!!!” 

What made practicing law lucrative was that the profession was made up of a monopoly of a few qualified lawyers who could pick and choose their clients and charge a fee that they would determine more or less freely. The elevated levels of entry to the profession and changes in technology have seen to it that this lucrative monopoly status has been diluted. These are no longer the good old days and, compared to what was, the current state of the profession is certainly not business as usual.  Lawyers will have to up their game to remain viable in the face of stiff competition and technology that is hungrily eating away at spheres of practice which have long been the preserve of the few. Clients, thanks to a worldwide improvement in education and access to technology, are more demanding of quality, and an affordable price. An investor or fellow cross-border lawyer can find a suitable person to represent them in any part of the world at the click of a button.  It is easy for clients to cross check information and advice that they receive from a lawyer. Due to this the lawyer who is lazy and simply does work and gets a fee regardless of their quality could end up facing lawsuits for mis-representation or miss-advice.

On the other hand, cross-border collaboration has its constraints. It is now done under extreme pressure within confined time limits. Email and the various other communication methods mean that answers are required within a few hours as opposed to the laid-back fourteen-days-to-one-month it would take to communicate in the past.

Cross border investment itself has changed too. Thirty years ago, when we spoke of cross-border legal representation we usually referred to investment that was coming from Western Europe and the United States. The advent of China as an economic giant has truly changed this familiar terrain. In Africa, China is a major investor, having built world-class airports in Angola, Ethiopia, and Zimbabwe, major motorways in Kenya, and high-speed rail systems in Ethiopia. In fact, there is no part of Africa that can claim that China has not made significant infrastructural investments therein. Additionally, China has a voracious appetite for mineral resources which it needs to feed its ever-expanding manufacturing capacity. In this regard China has invested heavily in mining for copper in Zambia, chromite in Zimbabwe, oil in South Sudan, and many other ventures. 

It is my experience with investors from China that they are extremely particular on the legal environment and the legal processes that need to be followed. There is therefore a need to provide these investors with quality legal advice. Most of the investors who come to Africa from China are learned and speak English or the language of the territory quite well. I find that the members of the legal profession in Africa have no ambition to try and learn Chinese so that they can fully understand the people and investors with whom they are dealing. Lawyers not only in Africa must come out of their comfort zone and accept that China is going to be the next most industrialised country in the world and will be looking for investment and advice.

Therefore, my suggestions to cross-border lawyers are 

  • ensure that you are completely tech-savvy, that is, you have a clear understanding of the latest technology around you and use it. 
  • Remain up to date on international standards, laws and provisions required regarding international investment, not to mention laws within your own jurisdictional area. 
  • Be honest and truthful, and be a person of integrity. Do not try to give advice simply to suit the situation. Give your honest assessment and even if it is negative. Indeed, often you will find that what the client would like to do is not possible but as a good lawyer you should be able to provide lawful alternatives.  
  • Understand your client’s background and needs so that you know where they are coming from and try to grasp the areas of interest and concern that they may have. 
  • Be reasonable in the way in which you levy your charges and avoid the rainmaking-fee syndrome. It is not a crime that your client has come to consult you and therefore he should not be penalised with a bill that is meant to put him out of business to keep you in yours. 
  • Be even handed, do not charge because of the name on the letterhead but because of the type of matter and the time that you will have spent on it.
  • Make sure that you join professional bodies where your clients have easy access to verify your ability and your reputation.