Canadian Journal of Commercial Arbitration: Building an International Practise in Canada

Hannah Ross

On November 24, 2020, the Canadian Journal of Commercial Arbitration (CJCA) presented a panel on “Building an International Practice in Canada”. The panel was composed of Stephen Brown-Okruhlik (McMillan LLP), Howard Krupat (DLA Piper LLP), George Tai (Dentons LLP) and Gannon G. Beaulne (Bennett Jones LLP).

Moderated by CJCA Managing Editor of Blog and Marketing Christina Tang, the panelists discussed working with foreign and multinational clients, building an international practice, and different strategies for branding oneself internationally as a litigator or as a corporate lawyer. CJCA Co-Editor-in-Chief Milan Singh-Cheema then moderated a question period.

Question 1: Engaging with International Clients and Controlling Your Region of Work

            The panelists began by discussing how their practice engages with international clients, and to what extent they were able to control the regions they work with. A common theme arose of striking a balance between natural growth and seeking out opportunities in specific areas.

            Howard Krupat opened the discussion by explaining how early in his career, due to his focus on construction law, his practice was predominately local. However, as more international companies entered the Canadian construction market, his practice grew in size and complexity. Throughout his career he was able to focus on areas of interest but was also able to build relationships with clients that provided natural opportunities for international exposure.

            The other panelists affirmed Krupat’s experience, with similar parallels in their own practices. Gannon Beaulne emphasized the role of mentorship when building his practice. Initially he thought he wanted to work as a corporate lawyer, but a mentor encouraged him to work in litigation. Through mentorship within his firm, he started publishing work related to arbitration and as a result, this became a large portion of his practice. Beaulne added that he considered the opportunities to work with international clients and the demand for class action and arbitration lawyers when choosing his practice area.

            Stephen Brown-Okruhlik discussed the progression of choice within a lawyer’s career. As a junior lawyer, he found the choice of clients and specific areas of law mostly out of his control. However, by working in a larger market (in this case Toronto), there was a greater opportunity to work with international clients even within areas of law that seemed inherently local. Brown explained that as he progressed in his career, he had greater control over his area and region of practice.

George Tai discussed how his experience in leveraging his language and intercultural skills to forge an international practice. He paralleled the experience of natural growth in his practice as his clientele expanded internationally. He found greater success when clients introduced international work as opposed to attempting by himself to spread his client-base globally.

Question 2: Growing an International Practice in Litigation and in Corporate Law

The panelists then discussed the differences in international opportunities for litigators and for transactional lawyers.

Brown began by reviewing the unique challenges of marketing yourself as an internationally inclined litigator. He explained how in specialized areas of law where the same legal issues frequently recur, you can employ a focused and measurable business strategy to grow your practice. However, in corporate litigation, the wide variety of cases that your clients’ experience makes marketing more challenging and unpredictable. Within the international context, Brown added that working in a specialized field, like bankruptcy and insolvency, is a more successful strategy allowing you to invest your skills in a tailored market. He concluded that by building relationships as a litigator within a more narrow area of law you are able to create a recognizable brand.

Krupat affirmed the benefits of creating a specialized practice as a litigator. He stated that by growing your brand within a specific area, you can have the benefits of both litigation as well as general practice. He noted that clients had contacted him deal with disputes when they arose but also employed him for compliance and transactional work.  He added that corporate lawyers tend to have more repeat work compared to general litigators, making it easier to build a global practice.

Krupat went on to discuss the balance between skill-development and practice. He explained that building foundational skills domestically places you in a position to build client relationships that are applicable to international practice. Tai affirmed this balance. He added that his success came not due to specialized expertise in international law, but because of his good grounding in Canadian law. International clients require this knowledge when starting projects in Canada. He concluded by saying you have to first have a firm basis in Canadian law, and then will be in a position sell that expertise with an international flavour.

Individual Question Period

            During this portion of the proceedings, panelists were each asked a question specific to their own practice experience.

            Beaulne began by discussing Das v George Weston,[1] a case in which the arguments he advanced were directly influenced by the international elements of the case. Das involved a class action suit Ontario, in which Beaulne’s firm represented the social audit company hired by a Canadian manufacturer whose factory had collapsed in Bangladesh.

            Beaulne recalled how the case’s international elements shaped his team’s approach. The case was unique because his clients had little connection to Canada aside from being hired by a Canadian company. The entirety of the class were Bangladeshi residents, and the defendant clients were non-Canadian corporate entities. His firm argued that the substantive law governing the claim under private international law should be Bangladeshi, on the basis that the law of the place where the tort occurred applies. Therefore, the case was centered around its international components from the outset.

            Tai then answered a question regarding his work as a board member of several Toronto Stock Exchange listed companies impacts his international work and practice. He discussed how rather than those positions adding to his practice, it was typically his practice that led him to board positions. He gave an example of a company whose board he currently sits on that is expanding into China. It was due to his previous business relationships, commercial background, and intellectual property experience in China that he was able to support the expansion, which led to his being recruited to become a board member.

            Tai went on to discuss how technology has drastically changed international contract negotiations. He noted that extensive travel is no longer necessary because negotiations can occur remotely. A possible downside is that technology has increased the number of amendments introduced during contract negotiations. Previously, during a commercial transaction his practice would complete approximately 10 focused revisions of a document. However, because technology facilitates quick turnarounds, many more revisions now occur. Meeting face-to-face a limited number of times with the goal of coming to an agreement is no longer typical.

Krupat discussed how practicing construction law at an international firm differs from practicing at a domestic one, and how the international character of the partnership affects the nature of his work. He stated that there are a number of both domestic and international Canadian practices that work with international clients. However, at an international firm, there is a greater opportunity to build global relationships. For example, he reviewed the benefits of being able to create joint marketing initiatives with colleagues outside of Canada. In addition, by working at a firm that has an international network, he is able to respond to his clients’ specific needs promptly by calling on colleagues from other jurisdictions and with varied specialized expertise. For example, as part of recent reforms to Ontario’s construction legislation, an interim binding dispute resolution process was introduced. To explain this process to his clients, he invited colleagues from the U.K. where similar legislation is already in force to advise his clients directly on its impact. He concluded that a benefit of working at an international firm is having the opportunity and expertise to draw upon substantive legal experience outside of Canada quickly and efficiently.

Stephen Brown-Okruhlik closed the question period by discussing how the internationalization of business has changed bankruptcy proceedings, and the coordination process that now occurs when working with clients who have many global locations. Brown explained that Canada has an internationalized economy and deep ties with foreign entities. He reviewed in particular the benefits of adoption by Canada and the provinces of the UNCITRAL Model Law on Cross-Border Insolvency, a transnational law adopted by numerous jurisdictions around the world. (UNCITRAL is the United Nations Commission on International Trade Law.)  . Brown gave the example of a center of main interest. When a corporation operates globally, if there is an identifiable center of main interest, that ought to be where the insolvency proceedings occur. He explained how in cases of predominately U.S. companies with Canadian operations, proceedings will go ahead in the U.S. and then companies will seek recognition and enforcement of a US bankruptcy court orders in Canada. He then discussed how internationalization developed with the idea of deference, for countries to accommodate one another and to create a workable international system by harmonizing the substantive rules and recognizing each others’ court judgments. He concluded his remarks by stating that while there are a number of ways that the internationalization of business complicates insolvency, it is also an area in which an international model law has emerged as a powerful tool promoting consistency and predictability.

            Overall, the CJCA panel was an interesting session that covered a variety of topics and provided insight for lawyers and law students seeking to enter or build the international practice of law.

[1] 2017 ONSC 5583.