Within the United States, people worry about whether the law should be consistent.
Should we have one uniform law for all 50 states, making it easier to do business, or should we continue to use the states as “laboratories of democracy,” permitting the states to experiment?
That’s a hard question. States have rights, of course, but it would sure be nice if the standards for packaging a product, or labeling it, or even employees’ rights were uniform, so that a company could establish one set of rules and follow them.
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But I’m fretting about something different today: What can we do about national laws that are not merely inconsistent, but absolutely conflicting?
For example, the discovery requirements in common law countries mandate the production of documents in litigation. But the French blocking statute forbids the requesting or disclosure of documents directed toward establishing evidence in foreign courts. To date, both U.S. and English courts have simply ignored this law, and France doesn’t seem to have noticed. But what if France gets serious?
Or what about bank secrecy laws that may prohibit compliance with certain discovery obligations? What law do you obey — the law that requires disclosure, or the law that forbids it?
What about defamation laws? Must Google remove links to defamatory statements about the claimant, as one Canadian court required, or is Google forbidden from removing those links due to U.S. law?
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Should a company obey the EU requirement that personal data shouldn’t be kept for longer than necessary to achieve its purpose, or other countries’ laws that require the retention of documents for set periods of years? (Or Costa Rica’s law that requires companies to maintain certain documents until the closure of the business plus ten years?) I really don’t care what rule I should follow, but I can’t follow ’em all.
What about gay rights?
Those rights are protected in many countries. And homosexuality is illegal in other countries.
What should the company’s policy be?
Are communications with in-house lawyers privileged, or are they not?
It depends: In what court were the documents subpoenaed? What choice of law governs privilege? And what does the substantive law provide?
In civil law countries, companies don’t need much protection through the attorney-client privilege, because discovery is limited: You can’t request the documents, anyway, so it doesn’t make too much difference whether they’re privileged.
In common law countries, companies are playing by a whole different set of rules.
It’s worse, of course, where countries impose criminal sanctions for failing to follow the law. What’s a company to do when it’s criminal to do something under U.S. law, and criminal not to do the same thing under EU law?
I know this problem is insoluble.
We’re still fighting wars, for heaven’s sake; no one thinks that we can (or should) have laws that are uniform internationally.
But it would sure be nice if we could reach an agreement that, for example, a company that is doing what it is required to do under one country’s laws cannot be criminally prosecuted if that law conflicts with a second country’s laws.
Hey, United Nations: How do you feel about that?
Mark Herrmann spent 17 years as a partner at a leading international law firm and is now responsible for litigation and employment matters at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at [email protected].