Canadian Lawyer InHouse

JANUARY 2017 42 INHOUSE By Robert Soccio In Closing I n my experience, general counsel must embrace opportunities, assume new challenges and achieve diffi cult corporate objectives. This rai- son d'être is even more important to follow with- in organizations involved in multi-jurisdictional or cross-border merger and acquisition activity. In such circumstances, GC will likely fi nd themselves facing confl icting legal, political, regu- latory, governance and other pressures from not only the different jurisdictions related to the transaction but internally, all as counsel attempt to keep their cor- porate ship moving in the right direction toward success. Adding a multi-jurisdic- tional or cross-border element to any transaction brings with it additional lay- ers of unexpected complexity. The art of managing such legal complexities and turning the same into simple legal steps and easily understandable solutions is the true role and value of a GC. Often, the job of a GC is about managing the un- expected. As the company's proverbial "quarterback" in all things corporate legal, a GC must become adept at managing complex "bet-the-company" transactions and highly complex corporate reorganizations/fi nanc- ings potentially involving multiple international juris- dictions. The catch for a GC is doing all of this while simplifying matters for the board and for the executive team by providing them with straightforward practical solutions and advocacy regarding same. In order to be effective in carrying out the job of a GC, one needs to be able to work collaboratively with management, be a consensus builder, be a key corporate driver in pursuit of the strategic business objectives and build credibility with the board, the executive team and management. If managing the unexpected wasn't enough, there is also the need for GCs to manage expectations. GCs need to be proactive and up front with the board and the executive team with a step plan. Organized, sustainable process must drive the transaction and be the rule as much as possible. To manage expectations, I like to use the expression "Hope for the best, plan for the worst" when advising internal stakeholders on any bet-the-company transac- tion or any material legal matter or issue in play. Of course, it is defi nitely an expectation that GCs know what role or infl uence the laws, rules and regula- tions of the domestic or home jurisdiction may play in any transaction, but GCs are increasingly expected to, at the very least, anticipate the unexpected worst-case scenarios and manage risk that may originate in foreign or international territory, be it regulatory, compliance, tax, corporate or otherwise. The effective and effi cient selection of external coun- sel and proper co-ordination of the internal deal team across jurisdictions is particularly important to GCs. One of the more critical issues with which GCs need to contend within the early days of a transaction is determining which fi rms and external lawyers will do what and to properly allocate the roles of the internal and external legal team. The GC must also oversee and manage the work of external counsel and ensure they understand the client's expectations in terms of allocation of responsibilities, advice, timing and the all-important cost. The GC does this by tactfully managing external counsel by weighing the costs, benefi ts and risks of going down one path of relevant due diligence for the purpose of providing practical value-added legal advice and advocacy versus going down the "rabbit hole" of unnecessary legal work. At the same time, GCs need to be mindful that what may not be particularly signifi cant at home may be of great importance abroad (and vice versa). With all of this in play, an effective GC needs to keep a hand on the "rudder" and make sure the deal is mov- ing in the right direction without unnecessary costs but with the view of closing the deal successfully without adverse consequences. Hope for the best, plan for the worst and manage ex- pectations as best as possible and never underestimate the potential complexity of any transaction. IH Managing the unexpected in multi-jurisdictional or cross-border transactions The role of general counsel in complex deals Robert Soccio is chief legal offi cer in Canada for Navistar Interna- tional Inc. and the gen- eral counsel, corporate secretary, compliance offi cer and director of human resources of Navistar Canada, Inc. and Navistar Defence Canada Inc. The art of managing such legal complexities and turning the same into simple legal steps and easily understandable solutions is the true role and value of a GC.

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