The African Counsel

I. Introduction and Summary

A region of great diversity, Sub-Saharan Africa ("SSA") is burdened by and, in some instances, afflicted with a variety of socio-political and legal contexts. For instance, there is a mixture of authoritarian, military, and democratic administrations. Africa is also diverse in terms of its people, religion, normative values, colonial experience, political systems, economic systems, physical environment, and the cultural legacy of colonialism. Managing litigation and other legal issues in the U.S. could be challenging enough; doing the same in SSA is certainly a hair-raising adventure at best.

Conflict is an inevitable aspect of human interaction. It can, however, be prevented on some occasions and managed on others. Navigating conflicts successfully in SSA requires a combination of global experience, local knowledge, and cultural competence.While most western jurisdictions, including the U.S., have Uniform laws governing commercial transactions, the same is not true in most SSA countries. Litigation, regardless of where it rears its ugly head in SSA, could cause debilitating anxiety to both counsel and client. Disconcerting questions that often come to mind include: What is the lingua franca where the matter will be litigated? Will U.S. laws be applied? How long will it take for the matter to be resolved? Will the contract in place between the parties be enforced? Will it be interpreted the way it was written or will a local interpretation come into play and change the terms? Will corruption, which is endemic in this region, tilt the playing field and influence the decision of the foreign court?

The first order of business for the in-house lawyer with a case in SSA is to hire a good lawyer or a law firm that is capable of handling and managing Alternative Dispute Resolution ("ADR") or litigation in the country in question. In selecting lawyers to handle complex legal issues with cross-jurisdictional implications, U.S. companies normally look for large international firms because of perceived capacity. However, in selecting lawyers to handle work in SSA, well-informed foreign companies have been known to prefer specialization to size. While U.S. corporations tend to use formal means like the Request for Proposal ("RFP") in their regular selection of lawyers for domestic work, selecting counsel for international legal matters in SSA may, for the most part, require informal means. The lack of local knowledge and cultural competency by multinational corporations require referrals or recommendation by professionals who know the terrain of the country in question and have a high level of expertise in the region.

For instance, there are generally no reporting systems to track law firm and lawyer performance in most SSA jurisdictions to gauge their competence and true capabilities. The best and/or most influential counsel on a given legal subject matter or problem may not even have a facsimile line or email. In some SSA countries, possessing modern communication equipment is still more a function of exposure, youth and/or age group of the particular attorney than competence and applicable influence. The task is even more difficult when the country is not a common law country. Read more...