|
Page 3 of 3 For Denis Boulianne, the best hedge against legal problems in South America is finding — and relying on — solid local legal counsel. Once part of the Latin America practice group at Fasken Martineau DuMoulin LLP’s Toronto office, where he worked on a big copper-mining project in Chile, Boulianne spent 10 years in Paris with Shearman & Sterling LLP doing mostly securities work on the New York and European stock exchanges before returning home last year to become an in-house lawyer in charge of international acquisitions for Ivanhoe Cambridge, the $13-billion, Montreal-based real estate subsidiary of the Caisse de dépôt et placement du Québec. One of his first tasks with Ivanhoe Cambridge was on a project already in the works, with the company’s Brazil-based partner Ancar, for the acquisition of São Marcos Real Estate Enterprises, co-owner of four high-quality shopping centres in Rio and São Paulo. Boulianne says the deal, which was completed last summer and announced on Aug. 4, was driven superbly by local lawyers according to local laws and agreements, including arbitration clauses for dispute resolution. “One of the things I’ve noticed doing work [in South America] is that there are significant numbers of excellent law firms that are used to, and equipped for, catering to and advising North American companies.” He notes that Canadian lawyers are still needed to advise and protect their clients in regards to tax structuring and project co-ordination if they have the in-house capability. “[The second thing] is that these countries have legal systems based on civil law like in Quebec . . . so a lot of the basic legal principles are the same.” Because civil law differs from common law in areas such as ownership, and because of his belief that the civil code is better equipped to deal with local intricacies, Boulianne believes North American lawyers should open their minds — and check their egos — if they intend to do business in South America. “I think many have the attitude that their way of doing business is the best way, [and] that’s wrong-headed,” he says. “Depending on the country, you can deal with very wealthy people, families, and corporations that can make you feel disadvantaged, that you don’t have the same access to the legal system, which can be real or perceived. That’s why you need a local firm with strong local roots that can help by choosing, say, the right method of dispute resolution given the local context and the players involved. People who are investing their money in different parts of the world want and need that protection.” For Faass, the different laws and legislations between countries — and even states — is another good reason for Canadian lawyers to rely on local firms in South America. He says while there are similarities in the kinds of things being done by Macleod Dixon’s two offices in the region — M&A-type work representing foreign clients who are purchasing local assets and/or making investments mostly in oil and gas and mining operations; and commercial-type work representing international companies, such as service providers which sell, lease, or manufacture equipment — the Venezuelan shop has developed a leading litigation practice, as well as an important labour law practice. “Employment law is more important in South America than here in North America, [in that] it is very favourable to employees,” he says, in part because the continent’s brutal colonization history has left people there with an acute sense of social justice. “It’s much harder to downsize there, [and] there is high financial exposure for companies who make employment changes.” He says Brazil is a whole different kettle of fish from its Spanish-speaking neighbours. “A major issue in Brazil is tax law. . . . It’s the easiest area to get into trouble,” says Faass. “Brazil is unusual in that it is a developing country [in which] legislation isn’t always clear, [but] it has developed country enforcement [and] a very strict system of audits, assessment, and fines. It requires skilled experts to navigate through it all.” Those complexities, together with Brazil’s law that restricts foreign lawyers to the practice of international law, led to Macleod Dixon’s association with Veirano Advogados, one of Brazil’s biggest law firms. “It enables us to deliver an integrated package of domestic and foreign services for mostly foreign clients,” says Faass, who is still the managing partner of the Rio office, and who was, until last year, a member of the firm’s global executive committee. “Finding the right domestic partners is the key to doing business in South America.” However, even the best-laid plans can be bedevilled by quick economic downturns and sudden shifts in policies, not to mention the unexpected failure of culture-shocked North American lawyers who perform well at home but fail to adapt to changes in their work and living environments. “You can’t assume that someone who’s highly skilled and highly motivated in Canada will make a smooth transition,” says Faass. To help lawyers prepare to live and work in the region — and to better represent their clients — Don Coxe recommends reading novels like Death in the Andes, a whodunit by former Peruvian president and free market economist Mario Vargas Llosa. A Washington Post journalist called the work “a well-knit social criticism as trenchant as any by Balzac or Flaubert — an ingenious patchwork of the conflicting mythologies that have shaped the New World psyche since the big bang of Columbus’s first step on shore. In short, this is a novel that plumbs the heart of the Americas.” Fiction is the best way to learn about a place, says Coxe, who served as general manager for the Ontario Federation of Agriculture and general counsel for the Canadian Federation of Agriculture in the 1970s before leaving law to enter the investment business. “And when you’ve got a billion dollars invested in a country, it’s worth it to read a book.” In addition to huge economic opportunities, Faass says South America’s vibrant and intriguing culture — everything from music, art, and language to the importance of family and friends and people’s exuberant driving habits — make it both a fun and fascinating place to work, even when it involves jobs any seasoned corporate lawyer can do with his or her eyes closed. “You see something different — even unbelievable — every day there,” he says. “And building something out of nothing is very rewarding.”
|
