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on the Internet and you need to talk to local lawyers to see how they do things," says Poupak Bahamin, a new partner with Norton Rose OR LLP who has just moved from Montreal to the firm's office in Paris. She will work on behalf of clients in French-speaking Africa while another lawyer is responsible for English-speaking parts of the conti- nent. (Norton Rose recently announced it will open an office in Morocco to focus on the finance, energy, and infra- structure sectors. The U.K.-based firm's merger with Deneys Reitz earlier this year also gave it African offices in Cape Town, Durban, and Johannesburg). Fasken Martineau, which has a well- established office in "Jo'burg," claims its physical presence gives it a leg up on firms that have to fly in legal exper- tise on an as-needed basis. "Invest- ment banks and [other clients] refer us not only because of our expertise but because we are on the ground there," says John Turner, head of the firm's global mining group. "It certainly adds to our credibility and we have a depth of experience that no one else has." While Fasken's African business emanates from its Johannesburg office, it also has a team in Paris focused on the French-speaking areas of Africa and a "big team in London as well," says Turner. "There is some focus on South Africa obviously because we are there but we have never tried to have a domestic South African practice. What we have focused on is advising Cana- dian companies throughout Africa and South African-based companies in other parts of Africa." Fasken's Cana- dian and South African offices recently handled mining giant Vale S.A.'s bid for South African-based copper producer Metorex Ltd. For those Canadian firms not able to tap into a network of international ofices, they can bring some homegrown advantages: Canada is known as an international "good guy" (a peacekeep- ing, non-colonial power) that is bilin- gual, a priceless asset where most of the key countries use either English or French as the language of business. "I think the Canadian law firms have not THERE'S A LOT THAT'S NOT THE SAME ABOUT PRACTISING LAW IN AFRICA AND NORTH AMERICA udy Wilson, a Toronto partner with Blake Cassels & Graydon LLP, who also has experience working on infrastructure development in the Middle East and 'Stans' of the former Soviet Union, has a "hit list" of things that are different in terms of practising law in Africa. They include: Political risk. "You really have to anticipate the possibility of uncertainty and the impact it would have on a commercial agreement," says the Blakes lawyer. Those include wars, coups, and changes to democratic government. "We don't change as dramatically or as rapidly from that perspective in North America as you would see in Africa." Add to that potential on the part of a government for arbitrary changes to taxes or legislation in the middle of a contract. Financial issues and price. "You have to draft much more aggressively for exchange rate variations." Very few contracts in Africa would be priced and paid for in the local currency, but instead might be a mix of well-traded foreign currencies. "You have to become a bit of an expert in pricing contracts and having provisions in contracts in which multiple currencies are used to price the contract." J Local tax policy may vary. "The taxes may not be in one omnibus piece of legislation. For companies very often it is hard to understand exactly how you export your money from the country, how you actually repatriate it." As well, some countries have a history of adding new taxes unexpectedly, what Wilson terms "taxation volatility." Information risk. How does the system work and how is it managed? "We take it completely for granted in North America, but sometimes it is even hard to identify decision-makers, to understand where real power lies in an organization." Even official revenue structures may be notional. She cites the case of water rates where often users never paid the posted commercial rate but in fact bartered services for payment. Contract enforcement. "You have all kinds of nice, fancy North American enforcement clauses in the contract but no solid legal system that you either have experience with, understand, or that works efficiently, or any number of things to enforce your contract." Often the fallback will be commercial pressure rather than strict legal enforcement. Finding a good local legal partner. "The education, background, skill set of local lawyers is hugely variable," notes Wilson. Cultural differences. "Negotiating styles are just so different around the world." Wilson recalls negotiating on behalf of Mozambique against French water companies. "When we were done, the Mozambicans asked me how I learned to be so frightening." The western, aggressive negotiating style "was just foreign to them." Force majeure clauses. In African countries with potential for serious turmoil, "they really mean something," she says, rather than just being standard boilerplate in a commercial agreement. "Sometimes in Africa, the force majeure clauses took as long to negotiate as any of the other clauses." Dispute resolution. Some countries have laws that require dispute resolution be carried out in country, with local arbitrators under local legal rules. — PB www.CANADIAN Lawyermag.com OCTO BER 2011 29 SPOT THE DIFFERENCES