The Gazette 1972

of the provisions of two legal systems which apply to a problem may be identical, but the one per cent differ- ence—either in the abstract law or in practice—may produce a completely different solution to a dispute. For example, contracts which have been running in West Pakistan for many years include a clause prohi- biting claims by one party unless they are made within certain times limits. This clause would, of course, be perfectly valid under English law. The contract law of West Pakistan is codified in the Indian Contract Act, 1872, which is largely a codification of English contract law at the time: consequently this clause has been treated as valid by many foreign lawyers advising on these contracts and even by some local lawyers involved. In fact, the Contract Act contains one peculiar section, which says: Every agreement, by which any party thereto is restricted absolutely from enforcing his rights under or in respect of any contract, by the usual legal pro- ceedings in the ordinary tribunals, or which limits the time within which he may thus enforce his rights, is void to that extent. Example of suing in foreign court I referred also to differences in practice. Professor E. J. Cohn gives an interesting example ("The Rules of Arbi- tration of the International Chamber of Commerce" [1965], Fourteenth International and Comparative Law Quart erly t p. 132): Perhaps a more practical lesson is provided by a recent actual, though unpublished, case. Negotiations had taken place between an English firm represented by two members of its board and a German firm represented by a leading employee. The participants in these negotiations afterwards differed in their views as to what had been agreed at the conference table. The English firm, contrary to advice given to them, sued the German firm in the German courts, relying on the fact that the evidence of their two representatives would be preferred to that of the one German representative. This was wrong : the German court was not even capable of hearing any evidence for the English firm, members of the board of a com- pany under German law were not eligible to give evidence on behalf of their company. No such diffi- culty presented itself to the German side whose wit- ness consequently gave evidence. The English party, being unable to offer any evidence of its own, could not submit any proof for its allegations and neces- sarily lost a case which it would perhaps have won in a court applying the common law rules of evidence. Differences of outlook and of temperament Most difficult to evaluate are the differences in results which may be produced by differences of outlook and temperament. One of the most advanced systems on paper is the Civil and Commercial Code of Libya, for example, but one would, I think, be loth to advise a client to become involved in litigation there. I was once taken aback on being told by a Spanish lawyer that arbitration would take three months to reach hearing in his country, and congratulated him on doing in three months what would take about three years in Ireland. When we left his room my companion, who knew more of Spain than I did, suggested that the time estimate should not be taken too seriously, and in fact it was more than three months before the lawyer acknowledged his instructions. An extreme example is the recent pro- nouncement by a spokesman of the . Nigerian Govern- ment, that the public hanging of thieves was justified

by the common law maxim that justice must not only be done but must be seen to be done. No doubt travel is useful in broadening academic, as it does other, minds. Because of the effect the actual practice may have on theoretical rules, however, prac- titioners might be advised to rely with caution on the results of academic travel expressed in treatises on comparative law which are not based on practice. Certainly, however straightforward the problem seems to be and however wide his knowledge, the Irish lawyer advising a foreign client on Irish law relative to a dispute or advising an Irish client on foreign law, will work in conjunction with the advice of a foreign corres- pondent. Foreign correspondent to be chosen with care If the correspondent is not nominated by the client, the choice must be made with very great care. A foreign correspondent once chosen normally will be the sole source of advice. It is also very difficult for an Irish lawyer to judge the quality of advice on foreign law. The phraseology may be strange, generally there will not be quotation of decided cases which can be checked, and it may be very difficult to decide whether vagueness in the advice is due to lack of ability on the part of the adviser or the state of the foreign law. A choice of correspondent made with a pin from a list of foreign lawyers can be disastrous. There is consid- erable variance in quality even amongst those foreign lawyers with dual qualifications who practice in cham- bers in England. At the same time the Irish lawyer should not rely blindly on his correspondent, but must try to achieve an understanding of the foreign law involved by wherever possible going to basic tests and commentaries. Only in this way can he be certain that there is no failure of communication between himself and the correspondent —that he has asked all the necessary questions and that he has brought to the correspondent's attention all the relevant facts. Irish lawyer's opinions should be clear and unambiguous The converse also applies. An Irish lawyer advising a foreigner on our own law may receive undeserved acclaim for an opinion in our traditional form, from foreign clients who are not used to the relative certainty and detailed support from decided cases, compared to continental opinions. The Irish lawyer must remember nevertheless that the foreign client may not fully under- stand the effect of the opinion. If the lawyer in that opinion has referred to some doctrine as a rule of equity, for example, the client may believe that Irish judges have discretion to temper the law with equity in the wide sense. The lawyer will then have to explain that this is not so, usually many times, since it is not too easy to explain to continental businessmen the history of the division between common law and equity. Foreigners (understandably) find some of our legal attitudes very strange indeed—particularly the literal and inflexible application of contracts however unfair or unreasonable they may be—and like all clients may tend to think that it is the adviser and not the law which is the ass. They may also omit to mention important facts because under their legal system they are irrelevant. The Irish lawyer therefore must be on his guard in obtaining instructions, and must be prepared to explain and defend the law and his opinion in order to persuade the client that the opinion should be accepted and acted upon, and to make quite certain that it has been understood correctly. 42