Opinions of Counsel in Cross-Border Financial Transactions

Reconciling U.S. Customary Practice with Non-U.S. Expectations; Assumptions & Qualications to Avoid Misunderstanding and Undue Risk

Recording of a 90-minute CLE webinar with Q&A


Conducted on Wednesday, September 20, 2017

Recorded event now available

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Program Materials

This CLE webinar will provide a framework for U.S. attorneys to give opinions in cross-border transactions, including enforceability, authority, choice of law, dispute resolution, no violation of U.S. law, and more. The panel will discuss how differences in custom and practice between U.S. and non-U.S. lawyers can affect these opinions, and the assumptions, exceptions and qualifications that should be incorporated.

Description

As international transactions have become more common, so have requests for legal opinions in international transactions. These opinions often raise legal issues that do not arise in, or are different from, those that arise in domestic transactions. Differences in legal practices and legal systems create pitfalls for the unwary. The webinar will discuss means of dealing with these issues, including the use of assumptions, exceptions and qualifications.

The webinar will also discuss particular opinion issues that are dealt with in cross-border transactions, including enforceability of contracts governed by foreign law, choice of law, arbitration, legal authority of U.S. parties, qualification requirements of non-U.S. parties, no violation of U.S. or state law and the meaning of customary practice in the international context.

The ABA Report not only considers legal issues that opinion preparers must consider when issuing opinions in international transactions, but also discusses the impact of differences in legal systems, cultures, languages and opinion practices on the rendition of such opinions. The goal of our panel, and indeed the goal of the ABA Report, is to promote a better understanding of legal opinion practice in the international context and to reduce the time, cost and difficulty in the giving and receiving of legal opinions in the cross-border context.

Listen as our authoritative panel discusses the issues presented in cross-border opinions with reference to the ABA Report. The panel will also discuss the assumptions, exceptions and qualifications that can be utilized to add clarity and reduce risk for the opinion provider.

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Outline

  1. Differences in legal custom and practice in cross-border transactions
  2. Opinions frequently requested: ABA Report suggestions on how to address
    1. Enforceability based on “as-if” assumption of U.S. law—to be avoided
    2. Choice of non-U.S. law as governing law
    3. International arbitration: enforceability of the agreement to arbitrate
    4. Cross-border litigation; recognition of foreign judgments, Hague Convention
    5. Entity status and authority
    6. No breach or default
    7. No violation of U.S. laws
    8. Sovereign immunity
  3. No requirement to qualify to do business in U.S.
  4. Assumptions, exceptions and qualifications for cross-border opinions

Benefits

The panel will review these and other key issues:

  • In what ways might U.S. legal opinion custom and practice differ from other countries?
  • What is the typical scope of a cross-border opinion; what opinions are required?
  • What suggestions does the ABA Report provide regarding how to facilitate better understanding and reduce risk for the opinion giver?

Faculty

J. Truman Bidwell, Jr.
J. Truman Bidwell, Jr.

Partner
Sullivan & Worcester

Mr. Bidwell is the co-chair of the Firm’s Opinions Committee. His practice is focused in the areas of...  |  Read More

Ettore A. Santucci
Ettore A. Santucci

Partner
Goodwin Procter

Mr. Santucci chairs the Firm's Capital Markets Group and co-chairs the REITs and Real Estate M+A Group. He...  |  Read More

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