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I went to a seminar by the World Trade Association of Utah today. The Speaker was Lee Boam. Lee spent his career with the US foreign service working in Europe and Asia, and spent the latter part of his career as the Minister Counselor for Commercial Affairs at the American Embassy in the People’s Republic of China. His faculty page at the University of Utah is here.

Below are some notes I took from his presentation on the present and future of China:

1. Misconception: China has huge demand because of its huge population. The problem is that population does not translate directly into market demand. Demand equals desire plus disposable income, and the bulk of the Chinese population does not have the kind of disposable income that westerners have.
2. China needs to stimulate domestic demand – they get no residual benefit from exported goods. For example, industrial machinery made in China and exported is not used to create more products in the Chinese economy, but is used to create products in a foreign economy, which increases GDP and employment in that country.  
3. China is making other people’s brands – When the brand has strong value, the company is thus able to produce more inexpensively and sell at the same price, pocketing the difference as extra profit. China ends up with a smaller piece of the pie and needs to create strong brands for itself to increase the take-home value of its work.
4. China needs to stop piracy – Two  US firms have different strategies to combat piracy: a) Coke Method – be able to produce your product cheaper than the pirates, leaving no incentive for them to compete; b) Budweiser method – Budweiser puts hard-to-counterfeit milling around the edge of their cans, making it harder and more expensive for pirates to counterfeit, and thereby creating a deterrent.
5. De-link the RMB (Chinese Renminbi) from the USD (US Dollar) – they are building up too large of a reserve of dollars and the linked currency is hurting them.

So, what does this all mean for US businesses who have been hearing that you have to be in China to compete? I think there are a few lessons to be gleaned. The first is common sense – there is no magic bullet for industry success, so don’t be misled into believing that that’s what China is. If you are looking for a big foreign market to enter, don’t go for China because you think you just have to sell one product to each person and you’ll be wildly successful. Do the research first and find out how big the actual population is that has an interest in your product and the disposable income to buy it. You may well be better off hitting the European market first. The same is true of purchasing goods. Yes, compared to the US, goods and labor are relatively cheap in China. However, Lee advised that a few places, including Vietnam, are even cheaper. In addition there are factors to consider besides cost in determining suppliers, including the ease of obtaining satisfactory import documentation, consistency of product, ease of communication, and so forth. Another lesson may be that there may be solid business opportunities within China for those adventurous spirits willing to go the extra mile.

Part II

My last post set the stage for some discussion on the utility of bulky agreements when papering up deals. There are lots of reasons to do this. Attorneys wouldn’t be able to charge what they do if there wasn’t some real value in their work. Let’s first recognize that attorneys set themselves to the task of identifying potential risks and preparing a defense against that risk. That preparation takes the form of a written agreement between the parties to a transaction. Agreements also have the salutary effect of defining key terms that each party can refer to in future discussions as they clarify how the deal is evolving. One might think of agreements as being in some ways similar to body armor. Experts have studied the body’s form and function and identified which areas of human physiognomy are most critical to the body’s functioning and are most vulnerable to attack. They looked at the different forms of attack that are most likely. Then these experts then set about devising a product that would protect the most vital areas of the body from the most likely forms of attack. The more risk you perceive, the more you will want body armor that is strong and comprehensive. So why would you ever want anything less than maximum protection? If you know a police officer, ask him to let you try on his riot gear. In addition to being expensive, it’s heavy, hot and uncomfortable. Its bulk, required to protect you, also impedes your movement, slowing you down and making you less nimble. In some situations, having too much body armor could actually work against you and become a disadvantage.

Papering up collaborations and transactions reflects many of the same dynamics. Preparing a “bulletproof” agreement requires a lot of time familiarizing the attorney with the transaction and then a lot of attorney time thinking through the specific risks that could arise in this particular transaction. The language used to describe precautions for certain risks may be complex, bulky and difficult to understand. Agreements themselves may grow to include hundreds of pages, including often confusing cross references to other sections and definitions of terms. Presenting such an agreement to a potential business partner may cause quite a reaction. First, it makes the deal more expensive – it will communicate to the other side that they will have to incur some substantial legal expense to have their own attorneys review the document to look for areas that they find to be unfavorable to their interests. If the partner is not accustomed to dealing with attorneys or complicated agreements, he or she may decide not to proceed with the deal. I have seen this a number of times with international parties whose local business customs are based more on codified laws than on agreements between the parties. Second, it may introduce something of an adversarial spirit to the deal and detract from the collegial enthusiasm that accompanied the deal up to that point. I would say that this development, in proper bounds, is somewhat healthy, as it helps business partners remember that each actually does have many opposing interests and that deals can go bad. Finally, you may end up making the relationship so rigid and guarded that it becomes difficult to function.

The good thing is, it does not have to be all or nothing. As military and law enforcement personnel select body armor that is appropriate for their particular activity and situation, small business owners can develop a strategy for papering up deals that matches the needs and dynamics of their industry, management style and legal environment. You do not have to provide for every conceivable misfortune in each agreement. Over time you will develop a feel for the protection you want and the flexibility your deals demand. And hey, if you really want absolute protection, you can still wear your full body armor to Church on Sunday, but don’t be surprised if you have the whole row to yourself more often than you like.

The Scene: A small town saloon in the wild west, in the late 1800s. A rancher and a farmer sit around a table discussing their businesses – the rancher’s herd is growing and he needs more grazing land. The farmer has been unhappy with some spots of his acreage that haven’t performed well and agrees to let the rancher’s herd graze there for a fee. The matter discussed, the partners stand, look each other in the eye and shake hands. Agreement.

Fast forward about a hundred years to the same location to now find a bar in the place of that saloon. Once again, we find a couple of potential business partners discussing matters around a table. One has a brilliant idea and a lot of enthusiasm, the other has money and connections. They get along well and each see merit in what the other can bring to the venture. The matter discussed, the partners stand and look each other in the eye. Then the investor turns, delves into a bag, and produces a small library’s worth of documents. “These are the standard forms and agreements I require when I invest. My attorney has already filled in the basic details of this deal. Have your people look over them and let’s try to get this settled as soon as possible.” The partners shake hands on leaving, but it’s not the same.

I probably didn’t really have to hark back to a simpler time to find a deal done on a handshake – to find an agreement based on honor, trust and mutual reliance between partners. One of the points of friction in many companies, large and small, is that “legal” or “accounting” are holding the deal up. Randy Komisar, in his book The Monk and the Riddle, describes how it felt to be the attorney in a side room going over papers, verifying all technicalities, while the management players were in the board room after an acquisition, shaking hands and celebrating. Many yearn for a simpler time, when deals could be done on a handshake, but the evolution of experience and a complex legal liability landscape have changed the rules of the game. That said, for the intents and purposes of many entrepreneurs and small business owners, agreements often may not need to be as long or incomprehensible as our attorneys may advise in order to be effective.

Nearly everyone who has ever needed to review a business contract has become familiar with the term “boilerplate“. It refers to language which is considered to be more or less universal in its application and non-negotiable. Although in many applications, it is universally applicable, much of the boilerplate is drafted to favor one party’s position. As I mentioned in a previous post, lawyers are paid to be pessimists, and to plan for when the deal goes bad, not if it goes bad. And where Sales and Marketing think through where they want to drive a deal, lawyers are asked to think of all the places a deal could go off into uncharted territory and provide for a safety net. That safety net takes the form of an agreement with a whole host of “What ifs,” including the ever-popular what happens in the event of an Act of God, an unforeseeable and unpreventable natural disaster? In the event that particular crisis does hit, you’ll be glad that language is there, but it does make agreements bulky, imposing and harder to understand. Luckily, it can be minimized as you develop a legal strategy for your company. I want to break this up in an effort to make my posts less long and more readable, so I’ll continue to explore this over my next post or two, which should also help me post more often.

I recently gave a lecture at BYU law school to a group of students who are interested in pursuing careers in international law. The presentation was intended to give them advice on successfully planning and getting into their legal careers. I’ll summarize it here for future reference.

Personal Preparation 

• Aim High – Doors can close quickly in the development of a legal career. Key among these are grades and journal participation in law school. It takes a lot of effort and time, but it keeps the door open in case you decide to pursue an opportunity that requires them.
• Have a 10 year plan – Looking long term at your career helps you make sense of the daily decisions. If you only consider the short term implications, you may make decisions that will lead you away from your long term objectives. 
• Develop a specialty – People want to pay lawyers because they know their area of law, not to do the research into a new area of law. Figure out what subjects interest you and develop a specialty you will stay on top of.
• Lay a foundation – Take chances. If you want to have an international practice, seek out and take opportunities to work abroad. It will differentiate your resume and will give you real insights into working with clients and attorneys from different cultures.

Career Development

• Know the business – Get to know your industry so that you can help anticipate needs. Better yet, get into an industry that you are personally interested in so that when you pick up a trade magazine that interests you personaly, it will also be professionally relevant.
• Take ownership – In-house, constantly look for ways to improve your processes and legal strategy. In a firm, think about your clients and their needs off the clock. Communicate to them ideas that will help protect them or refine their legal strategy.
• Understand your role – Remember that your clients and corporate executives are considering yoru advice as one element of the multiple factors they are weighing in making their decisions. Don’t take offense or get upset if your ideas are not always implemented in the manner you have presented them, even if they seem primarily legal in nature.
• Grow your influence – Over time, consistently giving good legal advice to your clients or corporate team will help them have confidence in you and will likely lead to more of your ideas being implemented as you have presented them. In addition, legal analysis skills are useful in non-legal applications, and you may be asked for your opinion on a broader spectrum of issues.