Tim Herbert, Director at London Law Collective joins Legalwise Seminars and to answer key questions regarding cross border deals. Tim recently spoke on this topic during our Cross Border Contracts, Business Deals & Disputes which is now available as an on demand recording. Click here to register for the recording.
Tim, thank you for joining us today. To start, could you provide our delegates with a brief overview of your impressive legal career, from your early days at Herbert Smith in London and Hong Kong to your current role as a Director of London Law Collective?
Impressive is very kind! I did, indeed, train with Herbert Smith and then worked for a couple of firms in London. From there, I moved to Sydney and then to Auckland (my wife is a Kiwi). After a relatively broad initial training with HSF (as they are now), most of my experience had been in dispute resolution. By the time I was in Auckland, I was a barrister, specialising in corporate and commercial disputes. However, I also started to consult for two London firms, as to disputes, and also as to corporate/commercial matters. For family reasons, I had to return to England, and so my consultancy became my main job: I am now a director for London Law Collective, splitting my time across corporate/commercial and, still, disputes. Somewhere because of all of that I ended up being qualified in three countries!
Your session in the program, titled “Mastering Cross-Border Deals: The Practicalities of Cross-Border Contracting,” promises valuable insights into managing conflicts of laws and making informed decisions between arbitration and court proceedings. Can you give us a sneak peek into the key takeaways that participants can expect from your presentation?
I think the key takeaway will be that cross-border contracts are different to domestic contracts. With domestic contracts, you have one law and one culture. With cross-border contracts, you have at least two of each. So, you have to think slightly outside the strict boundaries of the contract, to take this into account. As an example, whilst you might have a contract that, in principle, operates in one way, under its applicable law, because of cultural differences, in practice, things may work very differently. It’s important to take a pragmatic approach and realise that what is written down on the paper is not always the be all and end all of the relationship between the parties.
Can you share some insights into some cases you have worked on? Specifically, are there any notable challenges related to cross-border contracts and international business that you have encountered, and how did you navigate or overcome these challenges?
Most recently, the biggest challenge has been convincing parties that you cannot simply change a choice of law clause in a contract and expect the contract to operate in the same way under the new law chosen. The way I tend to explain it is in terms of computer operating systems. If you had an app that worked on the Apple OS, you would not expect to be able to simply transfer it to a Windows OS and it work the same. There are different concepts and principles in each country’s laws and to pretend that somehow there is some sort of “uniform” global law is unsustainable. Even the various common law jurisdictions differ in their basic principles to some extent. This is all before you even consider the various statutes that may have been passed in the various countries: which can add a whole layer of new rights or duties that need to be considered.
Given your extensive experience in both England and Wales and New Zealand, how do you navigate the complexities of cross-border contracts, and what advice do you have for legal professionals engaging in such agreements?
To some extent, I have covered this above. Recognise that a contract is cross-boundary and make special provision for it. Outside this, I think my main advice would be to not try to overreach. Acknowledge and accept that you are an expert in the law of the jurisdiction in which you are qualified, and then only advise on that area of the law. Whilst you can carry out some basic research as to applicable laws in another jurisdiction, your advice is never going to be as good as that which would be given by the ‘home’ lawyer. Unless there is a good reason, and certainly if it is proportionate, do not be afraid of advising your client to seek advice in the other jurisdiction. Although it may represent a further expense to the client, if it brings true value (in the sense of a strong, clear contract), then it is money well spent.
Tim is a Director at the London Law Collective and its Head of Disputes. Having studied law at Brasenose College, Oxford, Tim attended law school at the Oxford Institute of Legal Practice. From there, he commenced his career at Herbert Smith in London and Hong Kong, becoming a solicitor qualified in England and Wales, before moving to the litigation department of the London branch of US firm, Jones, Day, Reavis & Pogue. After two years there, he moved to Australia where he worked for Freehills and Coudert Brothers in Sydney, becoming a solicitor and barrister qualified in New South Wales. He moved to New Zealand in 2005. After 5 years qualified as a barrister and solicitor in New Zealand, practising from LeeSalmonLong in Auckland, he commenced his own practice in 2010. He advised in most aspects of civil and commercial law and appeared at all levels of the New Zealand courts. Whilst a barrister, Tim also remained a solicitor qualified in England and Wales and was a Senior Consultant for two London firms: Ignition Law and London Law Collective. Both are entrepreneurial law firms, in particular providing specialist corporate, commercial and employment advice to start-ups, scale-ups and entrepreneurs. Tim was also an Adjunct Instructor of the College of Law in New Zealand. In 2022, Tim moved back to the United Kingdom, to practise full time as a Director of London Law Collective, advising in England and Wales on corporate and commercial deals and disputes. Connect with Tim via LinkedIn
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