Contracts

Joe Borstein

Since the launch of alt.legal, Ed and I have received a lot of very interesting emails and feedback. It is apparent that many of you read ATL literally all day love working in Biglaw, but most many have considered taking a walk onto the alternative side (sounds far more erotic than it is).

What we hope to prove to you through this ongoing column is that legal entrepreneurship is exciting, prestigious, lucrative, and, most importantly — to the many resilient lawyers out there who have remained idealistic in the face of back-to-back all-nighters — your best chance to change the legal system for the better. Moreover, despite what you think, innovation in the law is NOT just in e-discovery. Turns out, there are problems worth solving associated with almost every practice, and with each, there are entrepreneurs and innovators ready to change the game. (My co-author, Ed Sohn, is planning to write more on this underground world next time.)

Today, we profile one such entrepreneur, Adam Nguyen, who saw inefficiencies in the always-exciting process of contract review for due diligence (hey litigators, it turns out M&A lawyers have to do document review too), and leveraged $150,000 worth of Harvard Law-branded problem solving to create an innovative technology solution called eBrevia.

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When it comes to negotiating, Chinese companies view American companies as easy marks: impatient, unfocused and too willing to compromise to avoid losing out. Accordingly, Chinese companies often employ the following three negotiating techniques:

1. Wear down the American side down with endless issues. This tactic actually has two variants. In the first variant, the Chinese side raises a series of issues. Once these initial issues are resolved, the Chinese side then raises a series of unrelated new issues. This process never stops, because the list of issues is endless. The second variant is for the Chinese side to make several unreasonable demands and then refuse to address the American company’s concerns at all. Both variants are designed to induce the American side to concede on all major points out of a desire to keep the deal moving forward….

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The height of wedding season is upon us, and while others are busy tying the knot, newly engaged couples are searching for venues, florists, photographers, and everything else that becomes part and parcel of a beautiful wedding day.

Planning the perfect wedding is all about the details — from the color palette and theme you choose to the number of layers in your cake. It’s so incredibly easy to get swept away in the whirlwind of wedding bells that most soon-to-be married couples forget about the most important part: the legal issues.

That’s right, brides, there’s more to think about than those blinged-out bridal shoe decals. Please stop Pinning things to your wedding Board and consider these useful legal tips for your upcoming wedding…

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In case you’re not aware, law school costs a lot of money. Just one year of legal education can run the average law student more than $50,000. Many, if not most, law students take out loans to cover the costs of law school, but some are lucky enough to have their educations paid for in full by their parents. The students in the latter group are beholden to their parents and can’t run the risk of making them angry, for fear of getting cut off financially.

Of course, today’s incredible tale deals with a law student in her 20s who pissed her parents off so badly that they refused to continue paying for her prestigious law school tuition. This girl did what any law student with cash flow problems would’ve done: she became a prostitute.

This law student cum lady of the night came across some choice clientele, as one of her top johns, a man in his late 60s, was a lawyer at a prominent firm. You can guess what happened next: the lawyerly lovers created a sex contract, and the relationship quickly soured. As it turns out, notwithstanding Fifty Shades of Grey (affiliate link), sex isn’t quite so sexy when it’s wrapped in a condom of legal terms.

The pair ended up suing each other, and now we’ve got a juicy judgment for you to feast your eyes upon…

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There are three rules for making contracts enforceable in China:

  • Make the jurisdiction a China court.
  • Make the governing law Chinese law.
  • Make the governing language Chinese.

American companies routinely insist on contract provisions that effectively render their contracts unenforceable in China. By their own efforts, they make their contracts worthless, much to the amusement of the Chinese side of the transaction.

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In an Atlantic Monthly article, The View from There: What living in England, Japan, and China has taught one American about the character of his own country, James Fallows discussed how easy it is to misunderstand other countries and how Americans misunderstand China:

When living in Japan, I heard accounts from many Japanese who had gone to the US for business or study in the 1950s, after the Allied occupation ended. They looked at the factories and the farms and the vastness of America and asked themselves: What were we thinking? How could tiny Japan have imagined challenging the United States? After the Soviet Union fell and the hollowness of its system was exposed, many Americans asked: What were we thinking about “two superpower” competition with the USSR? Its missiles were lethal and its ideology was brutal and dangerous. But a rival to America as an overall model? John F. Kennedy was only one of many to suggest as much, in his 1960 campaign references to the prestige gap as well as missile gap that had opened. Eventually, we all learned there was no comparison at all. I think if more Americans came to China right now and saw how hard so many of its people are struggling just to survive, they too might ask: What are we thinking, in considering China an overall threat? Yes, its factories are formidable, and its weight in the world is huge. But this is still a big, poor, developing nation trying to solve the emergency of the moment. Susan Shirk, of the University of California at San Diego, recently published a very insightful book that calls China a “fragile superpower.” “When I discuss it in America,” she told me, “people always ask, ‘What do you mean, fragile?’” When she discusses it here in China, “they always ask, ‘What do you mean, superpower?’”

I thought of Fallows’s article after speaking last week on China law before the county bar association. My talk had been mistakenly “advertised” as being about “doing business in Asia.” Wanting to disabuse anyone of the notion that I would be providing insights into doing business in all of Asia, I began by making clear what I would and would not be discussing…

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It is almost always a waste of time to sue Chinese companies in United States courts. But this seems to be news to many American lawyers.

Just about every month, my firm gets a call from a lawyer somewhere in the United States expecting us to jump at the chance to help enforce a multi-million dollar U.S. court judgment against a Chinese company.

The problem is China does not enforce U.S. court judgments…

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I re-watched the movie The Painted Veil (the 2006 version with Naomi Watts and Edward Norton) this weekend. It’s a decent movie with a pretty thin plot, but I love its cinematography and its depiction of 1920s China.

I also love the lessons it teaches for surviving China.

The movie does a good job conveying how China viewed its foreigners back then. That is, China belongs to the Chinese, and they do not particularly want foreigners there — even doctors there to save lives. Foreigners are in China only to the extent that it makes sense to have them there, and they will never be treated the same as Chinese people.

When it comes to modern-day Chinese commercial law enforcement, the perceptions and the treatment of foreigners have not changed all that much…

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How often do you stop to think about the ubiquitous “Made in China” label? If you’re a China lawyer, you should think about it almost every day.

To convince recalcitrant clients of the need for product liability protection for the products they are having made in China, I sometimes send them the following deposition questions asked of a U.S. manufacturer whose China-made product had badly injured a child:

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(c) Image by Juri H. Chinchilla.

At 1:24 a.m. on March 18, 1990, as St. Patrick’s Day festivities wound down in Boston, two men dressed as police officers rang the buzzer at the Isabella Stewart Gardner Museum in Boston’s Fenway neighborhood. Eighty-one minutes later, they vanished, taking eleven paintings and two artifacts with them. None of the stolen works — worth at least $500 million today — has ever been recovered. This week, On Remand looks back at the Gardner heist and another set of stolen paintings that found their way back the rightful owner — landing an attorney in prison in the process….

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