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of the provisions of two legal systems which apply to a
problem may be identical, but the one per cent differ-
ence—either in the abstract law or in practice—may
produce a completely different solution to a dispute.
For example, contracts which have been running in
West Pakistan for many years include a clause prohi-
biting claims by one party unless they are made within
certain times limits. This clause would, of course, be
perfectly valid under English law. The contract law of
West Pakistan is codified in the Indian Contract Act,
1872, which is largely a codification of English contract
law at the time: consequently this clause has been
treated as valid by many foreign lawyers advising on
these contracts and even by some local lawyers involved.
In fact, the Contract Act contains one peculiar section,
which says:
Every agreement, by which any party thereto is
restricted absolutely from enforcing his rights under
or in respect of any contract, by the usual legal pro-
ceedings in the ordinary tribunals, or which limits
the time within which he may thus enforce his rights,
is void to that extent.
Example of suing in foreign court
I referred also to differences in practice. Professor E. J.
Cohn gives an interesting example ("The Rules of Arbi-
tration of the International Chamber of Commerce"
[1965],
Fourteenth International and Comparative
Law Quart erly
t
p. 132):
Perhaps a more practical lesson is provided by a
recent actual, though unpublished, case. Negotiations
had taken place between an English firm represented
by two members of its board and a German firm
represented by a leading employee. The participants
in these negotiations afterwards differed in their
views as to what had been agreed at the conference
table. The English firm, contrary to advice given to
them, sued the German firm in the German courts,
relying on the fact that the evidence of their two
representatives would be preferred to that of the one
German representative. This was wrong : the German
court was not even capable of hearing any evidence
for the English firm, members of the board of a com-
pany under German law were not eligible to give
evidence on behalf of their company. No such diffi-
culty presented itself to the German side whose wit-
ness consequently gave evidence. The English party,
being unable to offer any evidence of its own, could
not submit any proof for its allegations and neces-
sarily lost a case which it would perhaps have won
in a court applying the common law rules of evidence.
Differences of outlook and of temperament
Most difficult to evaluate are the differences in results
which may be produced by differences of outlook and
temperament. One of the most advanced systems on
paper is the Civil and Commercial Code of Libya, for
example, but one would, I think, be loth to advise a
client to become involved in litigation there. I was once
taken aback on being told by a Spanish lawyer that
arbitration would take three months to reach hearing in
his country, and congratulated him on doing in three
months what would take about three years in Ireland.
When we left his room my companion, who knew more
of Spain than I did, suggested that the time estimate
should not be taken too seriously, and in fact it was
more than three months before the lawyer acknowledged
his instructions. An extreme example is the recent pro-
nouncement by a spokesman of the . Nigerian Govern-
ment, that the public hanging of thieves was justified
by the common law maxim that justice must not only
be done but must be seen to be done.
No doubt travel is useful in broadening academic, as
it does other, minds. Because of the effect the actual
practice may have on theoretical rules, however, prac-
titioners might be advised to rely with caution on the
results of academic travel expressed in treatises on
comparative law which are not based on practice.
Certainly, however straightforward the problem seems
to be and however wide his knowledge, the Irish lawyer
advising a foreign client on Irish law relative to a
dispute or advising an Irish client on foreign law, will
work in conjunction with the advice of a foreign corres-
pondent.
Foreign correspondent to be chosen with care
If the correspondent is not nominated by the client,
the choice must be made with very great care. A foreign
correspondent once chosen normally will be the sole
source of advice. It is also very difficult for an Irish
lawyer to judge the quality of advice on foreign law.
The phraseology may be strange, generally there will
not be quotation of decided cases which can be checked,
and it may be very difficult to decide whether vagueness
in the advice is due to lack of ability on the part of the
adviser or the state of the foreign law.
A choice of correspondent made with a pin from a
list of foreign lawyers can be disastrous. There is consid-
erable variance in quality even amongst those foreign
lawyers with dual qualifications who practice in cham-
bers in England.
At the same time the Irish lawyer should not rely
blindly on his correspondent, but must try to achieve an
understanding of the foreign law involved by wherever
possible going to basic tests and commentaries. Only in
this way can he be certain that there is no failure of
communication between himself and the correspondent
—that he has asked all the necessary questions and that
he has brought to the correspondent's attention all the
relevant facts.
Irish lawyer's opinions should be clear and unambiguous
The converse also applies. An Irish lawyer advising
a foreigner on our own law may receive undeserved
acclaim for an opinion in our traditional form, from
foreign clients who are not used to the relative certainty
and detailed support from decided cases, compared to
continental opinions. The Irish lawyer must remember
nevertheless that the foreign client may not fully under-
stand the effect of the opinion. If the lawyer in that
opinion has referred to some doctrine as a rule of equity,
for example, the client may believe that Irish judges
have discretion to temper the law with equity in the
wide sense. The lawyer will then have to explain that
this is not so, usually many times, since it is not too easy
to explain to continental businessmen the history of the
division between common law and equity. Foreigners
(understandably) find some of our legal attitudes very
strange indeed—particularly the literal and inflexible
application of contracts however unfair or unreasonable
they may be—and like all clients may tend to think
that it is the adviser and not the law which is the ass.
They may also omit to mention important facts because
under their legal system they are irrelevant. The Irish
lawyer therefore must be on his guard in obtaining
instructions, and must be prepared to explain and
defend the law and his opinion in order to persuade
the client that the opinion should be accepted and
acted upon, and to make quite certain that it has been
understood correctly.
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