Opinions of Counsel in International Finance Transactions

Reconciling U.S. Customary Practice With Non-U.S. Expectations; Assumptions and Qualifications to Avoid Misunderstanding and Undue Risk

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


Conducted on Thursday, May 27, 2021

Recorded event now available

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Course Materials

This CLE course will provide a framework for U.S. attorneys to give opinions in cross-border transactions, including enforceability, authority, choice of law, the golden rule, misleading opinions, 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 dealing with cross-border issues. 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 assumptions, exceptions, and qualifications.

The webinar will also discuss particular opinion issues that are dealt with in cross-border transactions, including the enforceability of contracts governed by foreign law, choice of law, arbitration, the 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.

"Cross-Border Closing Opinions of U.S. Counsel," 71 Bus. Law. 139 (Winter 2015-2016), (the ABA Report) considered issues that U.S. opinion preparers and counsel for non-U.S. opinion recipients must consider when negotiating opinions in cross-border transactions and discusses the impact of differences in legal systems, cultures, languages, as well as “rules of engagement” in cross-border opinion practice. Our panel's goal, and indeed, the goal of the ABA Report is to promote a better understanding of legal opinion practice in the international context and reduce the time, cost, and difficulty of giving and receiving legal opinions in the cross-border context.

Listen as our authoritative panel discusses the issues presented in cross-border opinions regarding the ABA Report. The panel will also discuss the assumptions, exceptions, and qualifications that can add clarity and reduce the opinion provider's risk.

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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 the 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 the 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 facilitating better understanding and reducing the opinion giver's risk?

Faculty

Bidwell Jr., J. Truman
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

Chin, Sylvia
Sylvia Fung Chin

Partner Of Counsel
White & Case

Ms. Chin is a senior lawyer in corporate and commercial financing, with an emphasis on asset-based financing...  |  Read More

Santucci, Ettore
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

van Schilfgaarde, Elizabeth
Elizabeth van Schilfgaarde

Managing Partner
NautaDutilh

Ms. van Schilfgaarde serves as Netherlands and Netherlands Caribbean counsel in a wide range of cross-border finance...  |  Read More

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Strafford will process CLE credit for one person on each recording. All formats include course handouts.

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