Washington Lawyer - May/June 2024 - 48

A SLICE OF WRY
Foreign Matter
By Paul Kiernan
T
here's only one thing I know
about international law, and
that's International Shoe. And
if I remember right, there was
nothing international about that
case, not even the shoes.
Plus, the precedential value of the case has
been severely limited following the merger of
traditional business footwear and athletic
shoes. See In re Dress Sneakers, 123 Foot Supp.
3d 123 (Court. Pub. Op. 2022) (applying the Allbirds
doctrine to hybrid shoes at hybrid offices).
Numerous pieces in this issue of the magazine
involve something international. Companies
and people from elsewhere, technology created
outside the country, events that have occurred
in other countries. Imports, exports,
mergers, tariffs, travel, immigration, even outer
space - so many legal issues have an international
aspect. So, it's past time for all of us to
get smarter about international law.
First, international law depends entirely on
where you stand. Literally. If you are in Alexandria,
Virginia, international law looks one way.
Alexandria, Egypt? Something else entirely.
In international law, the single biggest concern
is a border. That border tells you where one
country's law starts and another country's ends.
This brings to mind the old law school hypothetical:
If an American-owned jet carrying Canadian
passengers crashes on the border of the
United States and Canada, and the front of the
plane is in Canada and the rear is in the U.S.,
where do they bury the survivors? International
law can supply the answer once you know exactly
where the border lies.
I appreciate that there are very complex questions
and political flashpoints about borders in
this country. (In case you missed the punchline:
48 WASHINGTON LAWYER
* MAY/JUNE 2024
They don't bury the survivors.) But there is
something that brings out the child in each of
us when crossing a border and showing the
uniformed official our passport and paperwork.
It's elegant, even glamorous, like you are a master
spy slipping in for your next assignment.
Your assignment could be no more thrilling
than enduring a day of meetings in a conference
room at the airport Marriott about a
banking deal, but you feel like you are the star
of your own mini-movie as you step up to that
booth where the official asks you the purpose
of your visit. And there is always that frisson of
fear that this time they won't let you in.
Let's remember that we still
have lots of American legal practices
that confuse our neighbors.
Americans are probably pretty parochial when
it comes to the ways of law practice in other
countries. We make fun of the wigs worn by
English barristers. We shake our heads at the
seemingly endless supply of seals and stamps
and ribbons that some countries require for official
legal documents. And triplicates!
But how must our American ways seem to foreign
eyes? E-discovery to retrieve the personal
text messages of the second assistant vice
president in charge of industrial solvents? Lawsuits
about bad coffee that was too hot? Napoleon
still reigns in Louisiana? " Remise, release,
and otherwise quitclaim " ? And when you get
sued and win, you still have to pay your own
lawyer? (Well, that one's fine.) Before mocking
others, let's remember that we still have lots
of American legal practices that confuse our
neighbors.
True story: Years ago I worked on a case that involved
an arbitration in France. Our local counsel
was a very accomplished avocat and Parisian
to his bones. One day, he told us that he
was presenting argument to an appellate court
that afternoon on another matter, and he asked
whether we wanted to attend. I don't speak
French but figured it would be a learning experience
as well as a support to our colleague.
The argument was scheduled for 1:30 p.m. At
12:15 we went out to lunch - his was steak tartare
(yes, with raw egg), salad, wine, baguette,
and cigarettes. It was still the ancien régime.
The text of his presentation was written out
and placed in an elegant leather volume. Each
attorney presented for 45 minutes. The presentation
consisted of the attorney reading the
written text while the members of the appellate
panel followed along reading from their
identical written texts in their elegant leather
volumes. There were no questions or other interactions.
I
was puzzled. Why schedule an oral argument
if it consists solely of someone reading aloud
the argument that everyone has a copy of?
Where was the give-and-take, the seizing on an
opponent's slipup, the hard question from left
field? How about the finger-pointing, the sarcasm,
the rhetorical gambit, the pounding of
the table, the playing to the cameras? That's
the American way!
But that's not the way they did things. I can
only guess the reasoning behind it, but the
whole experience did give me an appreciation
of the different customs of the legal world.
There is so much to learn about international
law and the many ways that people seek results
and justice for their clients. I just have to
be open to it, I guess, and appreciate that there
are a lot of people smarter than me. And they
can think in different languages simultaneously
while I need IT to help me install a language
app.
But I have learned this much - no steak tartare
and wine before court.
Washington Lawyer - May/June 2024

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