ABA Section of Business Law

Business Law Today
May/June 2001 (Volume 10, Number 5)

Third World for us, new world for them
U.S. lawyers take their expertise abroad
By Garrett Ordower

Most people would probably have shied away from trooping off to the Balkans in 1993. The area certainly did not attract tourists like it had in the past. And it certainly does not seem like the best place to practice law.

But in July 1993, George J. Farrell Jr. of Farrell Fritz PC in Uniondale, N.Y., and his wife, headed to Macedonia for the ABA's Central and East European Law Initiative (CEELI).

"Basically I have been a lawyer for more than 40 years. If you're a physician, you have Physicians Without Borders. But there are not many opportunities for lawyers to do something like that," Farrell said. "This to us was a real opportunity and a challenge and that's what made it interesting to do."

CEELI began in November 1990 as a response to the collapse of communism in Europe and the former Soviet Union. Simply put, the mission of CEELI, according to its outreach director, Molly Stevenson, is: "To promote the rule of law by supporting the legal reform process in Central and Eastern Europe and the former Soviet Union."
"We aim to help them undertake the massive legal reforms that they need to do coming off this communist legacy," Stevenson said. "They really have to revamp all of their laws, train all of their judges, and train all of their citizens to know how to use the system and trust that a judge will give them a fair decision that will not be politically biased."

What that essentially means is that CEELI helps countries move toward democracy, although its role has certainly been adjusted in the years since the Wall fell.

"My interaction was with the members of the judiciary of the country includingtheir constitutional court, the bar association to the extent that it existed at that time, the law school and the university," Farrell said. "It was kind of in a sense introducing the whole concept of democracy and the rule of law to the people who had to administer it."
Farrell speaks of a lofty task, made even loftier since the constitution of Macedonia had only been adopted a year and a half before he arrived. Combining that with the constant state of flux of the Balkans and it was apparent why Macedonia needs American legal talent to help it get on its feet as a democracy.

"You can read about what went on in the Balkans and you can be a student of it to an extent," Farrell said. "But I think only until you are on the ground and living with the people and understanding what their life experiences have been that you really have an opportunity to understand how all these things have happened. And I think it gives you a better grasp of how you might deal with them."

Farrell got a sense of the reality of life in the Balkans one night when he and his wife had dinner at the home of a couple they knew. The couple's parents, who were Farrell's age, explained that they had to change their names four times so that they would blend in with the party occupying their country, whether it be the Turks, Bulgarians or Serbs.

CEELI boasts of having had a presence in every former communist-bloc country with the exception of Slovenia, although some countries have "graduated" from U.S. aid. Those countries include Poland, Hungary and the Baltics.

Obviously CEELI cannot afford to pay its volunteers the kind of salary they would expect to receive in the United States - or any salary at all. But what CEELI lawyers do receive is an all-expense-paid trip. Meals, travel, rent and business expenses are all taken care of, and for those long-term participants in CEELI, medical expenses and language training are included as well.

"It's a pretty substantial package," Stevenson said. "It is close to $40,000 worth of support, and in that part of the world, that goes pretty far."

At any given time, CEELI has approximately 80 long-term people dispatched, lawyers who are staying for three months or longer. In addition, it sends many more people on shorter trips and hires people in the United States as well as local liaisons in other countries, bringing its involvement to around 500 people.

CEELI is just one of the many divisions of the ABA that sends lawyers overseas. The Business Law Section's International Technical Assistance Committee also sends people to foreign destinations, but with a different purpose in mind. Instead of helping the transition from communism to democracy, the committee helps any developing nations that are having problems with establishing laws relating to business.

"What we do is provide people from the Section and from other sections to international projects dealing with the development of capital markets, the development of securities standards, accounting standards and generally securities banking and commercial law," said Meyer Eisenberg, co-chair of the committee and on the staff of the Securities and Exchange Commission. "If underdeveloped countries are looking to institute a banking law, a securities law or deal with 'Where should we go with the following kinds of capital market-development problems?' we will send people to them."

The committee has sent help to China, Bhutan, the Baltics, the Ukraine and China. In addition to the differences in the goal of the committee from CEELI, there are differences in working to accomplish that goal as well. The representatives of the committee serve more in an educational capacity, meeting with different members of the legal systems of the country for day-long Q&A sessions or holding panel discussions for several days at a time. The lawyers on assignment from the committee also rarely stay for more than a few weeks at a time.

"It is very difficult to get good experienced people that can be spared for a year at a time," Eisenberg said.

Ben Vandegrift, a lawyer in private practice in Washington, participated in a five-day seminar that was sponsored by the committee in coordination with the U.N. Development Program (UNDP) and the High Court of Bhutan. Many of the programs that the committee participates in are co-sponsored by the UNDP.

"We basically talked about commercial law," Vandegrift said. "The seminar was about commercial law, so we went through all kinds of different aspects. We talked about corporate and partnership law, bankruptcy, secure transactions, sales - you name it, and we did it. We obviously didn't go into great depth with the whole commercial law system, but we did cover quite a few pieces of material."

Fifty Bhutanese "lawyers" attended the seminar. In the entire nation of Bhutan, there are only about 100 legally trained men and women. All of them have been trained in India, although many would like to receive an education in the United States were it not for the prohibitive cost. There is no law school in Bhutan, but the University of Delhi is in the planning stage of opening a satellite school.

The seminar was led by five panelists: Vandegrift, a bankruptcy judge from North Carolina, a law professor from France and two law professors from Delhi.
One of the things that Vandegrift observed was how deeply ingrained Buddhism was in the Bhutanese legal system. One example he saw of how the country's faith influenced its law was when he was examining a secured transaction law. He thought the law was flawed to begin with: It was basically taken right out of the United States and slapped into place in Bhutan, where it really did not apply.

"They would say, 'Well, we would like to have a secured transaction law,' so they would just sort of have one," Vandegrift said. "Basically they would take Article 9 out of the UCC and change it. One of the changes they made was that you couldn't use a monastery to secure a transaction, that sort of thing would appear in the law on occasion."

Mike Flowers, the immediate past chair of the Business Law Section and a partner at Bricker & Eckler LLP in Columbus, Ohio, and Marsha Simms, a partner at Weil, Gotshal & Manges LLP in New York City, went on a very different kind of trip.
Flowers and Simms traveled through Africa for three weeks in 1998 to Tanzania, Uganda, Zambia and Malawi "for the purpose of conducting an assessment of these countries with respect to the current state and the future development of their commercial laws," according to Flowers' report.

The format of their tour was very different from the panel-style format that Vandegrift used. Instead of meeting with large groups of lawyers at a fixed location, Flowers and Simms traveled and met with members of the nations' judiciaries, commercial lawyers and law professors in small groups or individually.

"Usually [the meeting] would start by the local lawyers explaining what they were doing and then Mike and I would explain how things worked in the United States, or in different states when it was a state law issue instead of a federal law issue," Simms said. "Then there would be a back and forth on questions."

Their meetings included talking to the chief justice of the High Court of Tanzania about the establishment of a commercial court, the chairman of the board of the Zambian Stock Exchange in Lusaka about emerging markets and the general counsel of the Privatization Committee in Malawi.

One of the encounters that really stuck with Flowers and Simms was their meeting with some professors at the University of Dar es Salaam in Tanzania. The professors told them that they desperately needed books. Since then, Simms has been sending the school copies of the New York and Delaware corporate codes and the ABA has started sending books to the school. Simms also made a return trip to the law school in 1999 and spoke to the students about different aspects of law in the United States.
The Unites States Information Agency, an organization of the federal government, arranged the meetings for Flowers and Simms. Based on what the USIA knew about the two, they would contact a local representative of USIA who worked and lived in the country the two were to visit. Although the agency contacted the people from the African nations instead of the other way around, it was still the interest of the local lawyers to meet with Flowers and Simms.

However, there are questions of "legal imperialism" that are sometimes broached with regard to the activity of U.S. lawyers overseas. Basically all of the programs receive some sort of sponsorship from the U.S. government; CEELI's main sponsor is the U.S. Agency for International Development.

It is easy to see why the U.S. government would have an interest in CEELI, since its goal is to aid in the transition from communism to democracy. Most of the times, requests for legal assistance come through an agency operated by or affiliated with the U.S. government, whether the Department of State or the USIA. Requests can also come through the World Bank. In almost all cases, the aid is met with open arms from the government of the host country.

"Over all, we've been very well received," the CEELI's Stevenson said. "There are certain countries where the government specifically is not very keen on reform. One example would be Belarus. In cases like that, we will stay away from any contact with government officials and work more at a grassroots level."

Instead of working with the government in Belarus, CEELI works with labor groups in helping to establish workers' rights and with human rights lawyers.

"Sometimes we have to take a new tactic or strategy if the environment is not as friendly," Stevenson said. CEELI sometimes seeks out people to help reform just as much as those people seek an organization like CEELI. Stevenson believes it is a combination of both parties' looking that leads to success.

"One of the goals of the CEELI liaison is to make contacts and figure out who the reformers are on the ground and who can make these changes happen," Stevenson said. "But I also think those types of people will seek out groups like CEELI that can give them support as they are trying to make the changes."

Despite the U.S. government's interest in lending its legal support to the rest of the world as a catalyst for democracy and friendlier capitalism, participants maintain that the lawyers are there solely for advice and are not forceful with their presentation of the American way.

"We don't go in and say, 'You should adopt this,'" Eisenberg said. "We go in there and say, 'These are the experiences we've had with this kind of problem.' Obviously, you have to adapt experience around the world first to your own legal system."
In addition to CEELI, several other committees have opportunities for international involvement. Appropriately enough, each one has its own affiliations and reasons for being.

One of the newest agencies established for helping to bring U.S. lawyers overseas is the Legal Resource Unit. The LRU was established jointly by the ABA and the UNDP. It is essentially a matchmaker for lawyers that want to get involved overseas and the needs of the UNDP. The LRU came into being in October 1999 and since then has registered more than 130 interested lawyers ranging from people who have just graduated from law school to those who are recently retired.

"I think this fits within the UNDP's broader goal of leveraging its resources in trying to partner with private-sector groups," said Peter Lichtenbaum, a partner at Steptoe & Johnson in Washington and a member of the LRU steering committee. "I think they're trying to get the most bang for their buck with scarce resources."

Lichtenbaum expects that LRU will be called on most to provide assistance with judicial reform, strengthening of the organized bar, general legal reform statutes, commercial law, technological advances, human rights and the rights of women and minorities.

The LRU has had openings for a legal specialist to work in Bhutan, a technical adviser for Laos, and a judiciary expert in Somalia.

Although it might seem that these trips might appeal to younger lawyers who would not want to interrupt an established practice, most of the programs require a minimum amount of legal experience.

"The basic requirement is that you've had five years of legal experience," Stevenson said. "We can't take brand new lawyers. We did at the beginning of the project, but now the problems have evolved to be so complex that we feel someone needs a good foundation in the U.S. legal system, which we feel that in five years they've really got."
The International Legal Exchange (ILEX) Program, which co-sponsored Flowers and Simms in Africa, is the longest standing of the international programs. It was established in 1968 by the ABA "under the proposition that a worldwide exchange of ideas and programs will lead to a heightened level of learning and understanding for all," according to the ILEX Web site.

ILEX offers technical legal assistance to developing countries and has seminars for foreign lawyers overseas as well as foreign lawyers coming to the United States.
Several other ABA committees deal exclusively with international involvement and are similar to the International Technical Assistance Committee of the Business Law Section.

The Asia Law Initiatives Council is responsible for the activities of the ABA in its relations with Asian countries. Most recently the council has arranged three-month internships for Chinese lawyers in U.S. firms. Based on this model, the Africa Law Initiatives Council and the Latin America Law Initiatives Council have been established by the ABA Board of Governors following recommendations contained in the report of the ABA's Special Committee on International Technical Legal Assistance Projects to maintain relationships with those areas. Mike Flowers is a member of the ABA's special committee, which is chaired by former ABA President Phil Anderson.
The Business Law Section, in coordination with Deloitte & Touche, the International Law Institute and the Financial Management Institute, won a grant from U.S. AID to establish a Commercial Law Center in the Ukraine. This sort of coordination and cooperation between different organizations is characteristic of international activities because of their scope and cost.

The ABA is also making use of its new status as a nongovernmental organization observer by sending members to the U.N. Commission on International Trade Law. The Business Law Section sent members to that committee to assist the U.S. delegation and comment on the issues being discussed.

These organizations do not exhaust the possibilities for getting involved overseas. Getting in contact with one of them will certainly put you on the right track to finding an international involvement suited to your interest.

"I think the people who volunteer are very public service minded," Stevenson said. "They want to give back some of the skills that they have gained as a lawyer in this country. Others are very interested in international affairs and have not had the opportunity to take advantage of that area of interest practicing here. Those are probably the two top reasons why people get involved - to make a difference and to get that international experience."

Ordower is a freelance writer in Evanston, IL