29 September 2005

"The Americas Programme"

Earlier today I attended the launch of the "Americas Programme" organized by the International Trade Centre for Greater Merseyside at Haydock Park race course. It consisted of a series of workshops on the USA, Canada, Brazil and Hispanic America. Delegates had to choose one country or region for the morning and another for the afternoon. I chose the USA and Brazil because they are the biggest states on the continent, but it was a very hard choice as I am equally interested in Canada and Spanish speaking America.

Each workshop was on the same pattern. It began with a market overview followed by presentations from a lawyer, someone already doing business in the area, a freight forwarder rejoicing in the name of Howard Hughes and private chats over coffee. The market overviews in each of the seminars that I attended covered simple history and geography.

The legal seminar for the USA was led by Ned Martin from the London office of DLA Piper et al. He gave a brief overview on the legal system touching on the federal structure, methods of doing business, business entities, taxation, consumer protection, employment et cetera. He counselled us not to believe everything that we hear about the USA being a litigious society. Out of 200 or so clients he had represented over many years, only a handful were contentious matters. He did, however, stress that one area most likely to lead to lead to litigation was patent or trade mark infringement.

I tested Ned with a question on long arm statutes and amenability to process of foreign businesses through activity on the internet. He is obviously an astute man because he saw that question coming and deftly avoided it. He said that a foreign company going about its normal, lawful business had nothing to fear. His only concession to me was that that might not be the case with an e-commerce site because of business method patents and the fact that patent applications do not have to be published in the USA. Over coffee afterwards, Ned told me that he had shared an office with Jay Westermeier whom I had met several times at Computer Law Association conferences.

The Brazilian law talk was given by a most charming lady called Vera Helena de Moraes Dantas of the London branch of Messrs. Noronha Advogados. She said a lot of interesting things but the two points that she emphasized were that there is functional as well as aesthetic registered design protection in Brazil, and that intellectual property owners have to register with INPI (the Brazilian patent office) as well as the central bank, federal, state and local governments and all sorts of other authorities in order to receive royalties. Vera confirmed that Brazil is signed up to TRIPs, Berne, the PCT and Madrid. The courts can be relied upon to grant interim injunctions pretty quickly but you can wait years or even decades for final judgment. In the question and answer session that followed her talk, Vera agreed that one way round that problem might be to insert an arbitration clause into a licence agreement. The courts readily enforce arbitral awards and support international arbitrations. Lawyers' fees are generally lower than in London and it is possible to recover costs (including legal fees and disbursements) from the losing party.

The talks on non-legal topics were also interesting. Trevor Bargh of Charter Solutions gave 10 tips for doing business in America which I actually jotted down: (1) have clarity of vision, (2) rely on your gut feelings, (3) make your business stand out from the crowd, (4) respect cultural differences, (5) think big, (6) have self belief, (7) don't be afraid to make mistakes, (8) create a sense of urgency, (9) be enthusiastic and (10) remember that nothing is impossible. These seem to me to be eminently sensible and just as applicable to doing business in Merseyside as in North America.

Another delightful young lady from Brazil called Ana Baccan spoke about "forfaits". At first, I thought it was a misspelling of "forfeit" but as her talk unfolded I realized that it was a system for discounting IOUs to get round the high cost of borrowing and residual inflation. Having taught the Institute of Bankers (apparently now "Chartered") evening class at a different polytechnic every night when I was a pupil in London 25 years ago where my students were often as responsive as a brick wall I challenged Ana to explain how those discounts are computed. Without batting an eyelid she produced the formula

fv = pv x (1 + i/t)

where fv is future value (that is to say the amount the debtor actually pays), pv is present value (the amount the creditor gets from his or her bank), i is the rate of interest per diem and t is the term expressed as the number of days for which the facility is required divided by 360. Either Ana is exceptional or the Brazilian education system is streaks ahead of ours.

Surprisingly, there weren't too many other lawyers about. I was the only barrister. In the queue for the buffet, I met an employment lawyer from Turners of Preston who was giving the talk on Canadian law who explained that he had developed his interest in Canadian law because his wife is Canadian. He added that his firm is linked to Roiter Zucker which I know slightly better.

Altogether a very jolly day. I heard some really good Bush jokes which must be apocryphal, mustn't they. One was "The trouble with imports is that they come from abroad". The other: "The reason why the French are not very good at business is that they don't have a word for entrepreneur."

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