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CIS Local Counsel Forum
Minsk, 23-25 June 2010

Outbound Cooperation
Practical advice for outbound disputes.
What should a CIS based attorney do
when his or her client is confronted with
a dispute outside his or her territory?
Irina Sidorova
Law Firm Irina M. Sidorova
Paris, France
Law Firm Irina M. Sidorova – www.avocatsidorova.fr

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First rule: Compile a complete check
list without hurrying
Before taking any steps, check the provisions
relative to the remedies in case of material breach
or to the termination in the agreement :
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Conciliation Clause
Termination Clause
Notification Clause
Etc.

Law Firm Irina M. Sidorova


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First rule: Compile a complete check
list without hurrying
• Conciliation Clause

In the case of non-respect of the conciliation
clause, e.g., the immediate start of litigation, the
judge can declare the suit inadmissible

Law Firm Irina M. Sidorova


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First rule: Compile a complete check
list without hurrying
• Termination Clause
In the case of non-respect of the termination
clause conditions, e.g., non-respect of the delay
before termination, the agreement may be
declared non terminated by the judge, thus the
terminating party may be sentenced to the
payment of damages, even if it is an injured
party
Law Firm Irina M. Sidorova


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First rule: Compile a complete check
list without hurrying
• Notification Clause
In the case of non-respect of the notification
clause, e.g., notification of the termination of the
agreement to a wrong address, the agreement
may be declared non terminated by the judge

Law Firm Irina M. Sidorova


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Also check
A forum selection clause (jurisdiction clause) in a
contract with a conflict of laws:
• the reference made to a particular court in a
jurisdiction agreed upon by the parties
• the reference made to a specific kind of dispute
resolution process, such as mediation, arbitration,
or a hearing before a special referee
• the clause requiring a specific process to be
carried out in a specific location
Law Firm Irina M. Sidorova


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Also check
Be particularly careful if you wish to terminate the
agreement unilaterally
E.g., in France the early termination of a fixed term
agreement by a party may be considered as a breach
of agreement. The terminating party may be
sentenced to pay damages if the judge considers that
the early termination is not justified.
It is preferable to ask the Court for the authorization
to terminate such an agreement
Law Firm Irina M. Sidorova


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Also check
Whether there is no termination provisions
• If the agreement does not contain any
termination provisions, then the termination
provisions of the law governing the agreement
will apply

Law Firm Irina M. Sidorova


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Second rule:
Ask advice from a specialist before taking any
steps, even if you consider that the matter is
simple

• E.g., in the European Union, in the case of
termination of an agreement of a commercial
agency, the commercial agent is entitled to be
paid compensation or an indemnity payment,
even after the expiry of a fixed term agreement
Law Firm Irina M. Sidorova


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Ask advice
In the case of simultaneous litigation in
various countries:
If you start the litigation in your own
country first, the foreign counsel will be
obliged to follow your own arguments
It is preferable to fix a common strategy with
all the foreign counsels before and coordinate
with them
Law Firm Irina M. Sidorova


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How to find a foreign counsel?
• By professional contact (the best way to find a
reliable partner)
• By reputation
• By advertisement
• By contacting the consulate or the economic
services of the embassy of the foreign country
• By Internet
Law Firm Irina M. Sidorova


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What to look for in the foreign counsel?

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Specialization
Experience
Fees
Language
Personal contact

Law Firm Irina M. Sidorova


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What to check before hiring a foreign counsel?
• The professionalism (carefully read the
brochure/Internet /website, etc.)
• The law degree (if you have some hesitation)
• If the counsel is admitted to the local Bar (if you
have some hesitation)
• List of previous clients (subject to the respect of
the professional secrecy rules in certain
countries)
• Payment arrangements
• Your intuition
Law Firm Irina M. Sidorova


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What foreign counsel to choose
for what case?
- law firm
A well-known international
Plus: Prestige, reputation, possibility to carry out
trans-border operations within the same law-firm,
multi-specialization
Minus: High fees, long internal administrative
procedures, risks resulting from the conflict-check,
your case may be dealt with by different lawyers
For what case? For IPO, International Arbitration
between multinational or State companies,
international M&A, cases involving the
application of the competition law, etc.

Law Firm Irina M. Sidorova


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What foreign counsel to choose
for what case?
A medium-sized law firm
Plus: Good knowledge of local business
practices, good contact with local courts,
personal contact
Minus: Sometimes, narrow specialization which
does not allow work on different aspects of the
case, high and medium-level fees
For what case? For litigation cases of a certain
importance, international and national
arbitration, drafting of contracts, cases involving
the application of criminal law

Law Firm Irina M. Sidorova


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What foreign counsel to choose
for what case?
• A small law firm or an independent lawyer
Plus: Personal contact, reactivity, mobility,
medium-level and low fees
Minus: Impossibility to carry-out huge operations
in a short period of time
For what case? Establishment of commercial
representations involving numerous
administrative or immigration formalities,
commercial and employment disputes,
conclusion and termination of commercial
agreements, minor real estate operations
Law Firm Irina M. Sidorova


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Fee options
• A fee set according to the time spent and based
on an hourly rate – a generally accepted means
of fee calculation
• A subscription contract – a regular fee payment
lasting the duration of a given agreement
• A flat fee - is fixed to complete any work on the
case from beginning to end
• An additional contingency fee arrangement – it
is not accepted in all countries
Law Firm Irina M. Sidorova


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Conclusion

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Compile a complete check list without hurrying
Ask advice before acting
Careful choice of foreign counsel
Obtain fee option agreement

Law Firm Irina M. Sidorova – www.avocatsidorova.fr