Keep It Simple Stupid

I recently heard a lawyer say, “I’m not a believer in the less-is-more method of contract drafting.” He was referring to the tendency of national lawyers in this part of the world to draft simple contracts.

Now I’ve read this lawyer’s contracts and he certainly practices what he preaches. The problem is that he doesn’t modify his “American” drafting style at all for the Indochina context.

It’s a problem I’ve seen over and over in all three countries and it’s not limited to foreign attorneys. In an effort to perform at an “international” level, local and foreign attorneys both, will draft contracts filled with Western concepts.

The problem is, this is not the West and Western concepts do not always translate into Indochinese law.

Case in point. The lawyer who made the initial statement drafted a security contract in which he referred several times to the concept of liens. In fact, liens were a fairly central element of his contract. Only thing is, Laos doesn’t have liens. Laos  law doesn’t even have a concept similar to liens.

While I agree that a contract should be as comprehensive as possible, it does need to be adapted to the jurisdiction. By referring so integrally to liens, this lawyer has created a document that is, one, unenforceable, and, two, bound to confuse any local judge or arbitrator who looks at it.

By including Western concepts in an Indochinese contract the lawyer, whether national or foreign, creates a situation where the parties to the contract will not be able to enforce their intentions.

How can a party enforce a lien in a country where liens don’t exist?

That’s why it’s so important for contracts to be reviewed by lawyers who are familiar with the local law. They can both adapt the concepts to fit the jurisdictions and, for those things the client can’t live without, explain the concept in the contract so that it has a slight chance of enforceability.

For instance, rather than relying on the Western term of art, explain that the lender has a right to all the fruits of a particular property, including the price of any sale that occurs, until such time as the loan is discharged. While still not a concept that properly exists under Laos law, it is much more likely to gain a sympathetic reading when the judge can at least understand what’s been written.