Now, I’m going to discuss something that I’m borrowing from Dan Harris over at Chinalawblog, even though I haven’t actually read the article. I’m going off of the headline and regardless of what Dan Harris said, I can come up with my own reasons for this distinction.

First, don’t let a foreign lawyer draft your contract because they aren’t qualified. Each jurisdiction has different rules, and although the common law and civil law countries may have similarities, there are enough differences that a foreign lawyer isn’t going to know all the rules.

Take for instance, the concept of non-competition clauses in employment contracts. This is something that is common throughout the western world. They like to see them, and they like to include them in contracts. A non-competition clause is a clause in a contract that prevents an employee from competing in the same field and the same region for a specified period of time after the employment relationship ends.

For a NY qualified attorney, this would be par for the course. In Vietnam, non-competition clauses aren’t enforceable. There are provisions of the employment law and Civil Code that prevent a contract from containing anything that limits a person’s opportunity to work, and the courts have interpreted this to mean that non-competition clauses are unenforceable. Now, this NY attorney will not know this. Also, he will not know that including a non-competition clause is generally part of negotiations. It is included as a moral deterrent rather than as an enforceable clause and most lawyers in Vietnam will include them knowing full well that they are not enforceable.

You may be saying, what’s the difference? But there is a huge difference in expectation. If you, as an employer, use a NY qualified attorney to draft your non-competition clause you may be expecting that the the clause will be enforceable and when the employee starts his own business in the same field as your own, in the same city, you want to go to court to enforce the non-competition clause. You can’t, because it’s non-enforceable. You would have known this if you had worked with a Vietnamese qualified attorney because they would have told you that it was unenforceable. But now you’re left with an expectation that’s wrong, and you’re at a loss.

When I was in Laos I worked with an attorney from NY that insisted on using the same language that he used in NYC in contracts in Laos. Not only was this dangerous, but it was silly as well. Why would someone put a clause about estoppel in a contract in Laos, when estoppel is not a Laos legal concept, hell, it’s not even a civil law concept, and expect the courts to interpret it to mean the next best thing in the Laos law. That was his attitude. Just because the concept has a different name, doesn’t mean I have to use the Laos name. I can use the NY name and the court’s will interpret it as they should. This is a wrongheaded attitude. Laos courts, and Vietnamese courts, and Cambodian courts are all staffed with underpaid civil servants who are not necessarily educated in international law. They may not understand the legal concepts from NY that are integral to a contract drafted by a lawyer out of NY.

So don’t trust your NY lawyer to draft a Vietnamese contract. They don’t know the law, and even though they may have the same concept, they may use a different name, and that’s dangerous because the courts can’t understand the difference. You’ll be left with a contract that’s filled with unenforceable clauses and useless agreements.