CROSS-CULTURAL LAWYERING AND INTERNATIONAL SUCCESSION LAW
Article from Peter Kun published in Juriste International 2020.2
“Culture is like the air we breathe – it is largely invisible and yet we are dependent on it for our very being. [It] is the logic by which we give order to the world.”[i]
To handle a case successfully, is it always enough for lawyers to have a thorough knowledge of the relevant statutes, case law and professional conventions in his or her country? In cross-border cases, could it be sufficient for a lawyer to only request advice on the national laws from collaborating foreign colleagues? Or, could it take more to successfully represent clients in cases dealing with, for example, international succession cases? These are the questions that we set out to answer in this article.
Cross-Culturalism in Our Everyday Lives
It is hardly disputable that we are increasingly exposed to a diversity of cultures as we go about our day-to-day lives. Our personal futures are heavily influenced by the society in which we live, and by the forms of coexistence the given society can establish with members from various cultural backgrounds and identities. Naturally, this cross-cultural modus vivendi may vary from country to country, and even from one community to the next. By the 21st century, in some countries, especially in countries with great commercial traditions, models for easing cooperation between citizens of differing backgrounds had emerged. However, in countries that up until this point have not faced a pressing need to resolve the coexistence of diverse cultures in their history, the related challenges are obviously being addressed a little more slowly and with more pitfalls.
Before we explore everyday cross-culturalism in more depth, we would like to briefly discuss the nature of cross-culturalism itself. Cross-culturalism, multiculturalism and interculturalism are often used as synonyms, but they all refer to different concepts. In a multicultural society, groups with diverse ethnic and cultural backgrounds may live together, but there is not by necessity any deeper relationship between them. They do not necessarily know about each other’s gods or frequent each other’s restaurants. By contrast, in an ideal inter-cultural community, it is a given that the individuals making up the community, from various cultural backgrounds, know, understand, accept and mutually respect each other. In an inter-cultural society, there is no dominant norm; the various customs interact with each other, changing and evolving together.
Cross-culturalism, unlike the previous concepts, is related to cultural differences at the level of the individual rather than of the society. Research into cross-culturalism examines the interactions between individuals of differing identity in what are referred to as cross-cultural situations. A typical example of such a situation is where people from different cultural backgrounds meet each other, and for some reason it is in their best interests to understand and accept the differences arising from their differing identities. Therefore, this effort is not primarily motivated by some kind of abstract, theoretical reason, such as a belief in the utopia of an ideal intercultural society, but rather by some specific, individual aspect, such as how they can successfully run their joint venture.
The number of cross-cultural situations rose steeply with the breaking down of physical barriers and trade restrictions between “west” and “east” at the end of the Cold War. Companies that had previously only operated at a national, or at most a regional level, stepped out into the global market, becoming multinational. As a result, in addition to the linguistic barriers, they were faced with challenges they had never experienced before. One of these was how to overcome the conflicts originating from cultural differences, whether they be “in-house” disputes between employees or conflicts with the managers of business partners or companies targeted for acquisition.
Typical cross-cultural conflicts have arisen when two companies entered into a relationship where one operated in accordance with the norms of an individualistic society, while the other functioned according to those of a collectivistic society. In individualistic societies, such as the USA or countries of Western Europe, the individual is largely independent from the other actors in society, whereas in collectivistic, for example, Asian societies, a person is typically defined by his or her social connections.
Presumably, during negotiations between a North American and Western European company, it is unlikely that replacing the previous negotiating partner with a person having the same decision-making authority from one meeting to the next would create any major problem. It is by no means certain, however, that an Asian company would accept this substitution so easily given that, as far as the representatives of the Asian company are concerned, the trust built up in the course of the previous personal meetings probably carries just as much weight as the professional qualifications of the negotiating partner.
In addition to the spread of global trade, numerous other factors, such as the decolonization that followed the Second World War, the recognition of freedom of movement as a basic right within the European Union, and several waves of economically and politically motivated migration, have also contributed to culture clashes. These clashes emerge not only between companies from different business cultures, but also among employees with different identities at the same company. These conflicts, and their resolution, are perhaps the most clearly visible at multinational corporations. A company that successfully defuses its internal tensions can expect to have more efficient and well-balanced employees and lower staff turnover costs. However, cross-cultural situations are not limited to large companies. They are also present at a growing number in small and medium-sized enterprises, and even in family relationships.
With the dawning of a globalized world, every country has, and will have, more and more families consisting of members with differing identities. A rising number of local small and medium-sized enterprises will have members arriving from different business cultures. As in the case of multinational corporations, where more effective internal conflict management means a more productive company, it is also essential for the profitability of small businesses, and for the happiness and stability of families, that their members be capable of managing their conflicts effectively so they can devote their time to value creation instead of constant infighting.
It is more than likely that cross-cultural conflict management will be a key factor in whether a society can successfully overcome the challenges of the 21st century; whether it can learn to cooperate or have its energy drained by constant struggles between its members. The principles of “Recognition, Respect, and Reconciliation of Differences”[ii] describe the recipe for successful cooperation but cannot be applied with equal effectiveness in all areas. The more deeply rooted a tradition or a basic value is, the more challenging it is to reconcile it with a completely different one. In the legal area, perhaps the most striking differences of this kind can be found in succession.
For a lawyer dealing with international succession, the question is self-evident. How should I act if I find myself in the crossfire of differing cultures?
The lawyer’s role is to counsel, conciliate and represent.[iii] It is in the public’s interest for a lawyer to be capable of effectively representing the individual and defending the individual’s private interests. The effectiveness of this protection of private interests, however, takes a different form in each branch of law. In a litigious proceeding, it is generally easy to decide whether the lawyer’s advocacy was successful. If the court accepted the lawyer’s legal arguments and ruled in favour of the lawyer’s client, we can say that the legal representation was a success. A lawyer’s effectiveness is also beyond question if a corporate acquisition deal is concluded satisfactorily for all parties involved. This occurs when the transaction documents are drawn up accurately and as agreed, then they are signed, then the seller receives the purchase price and the buyer acquires the intended shares in the target company.
It is more difficult to judge the “success” of a lawyer who has to settle a conflict between people bound by familial and often close emotional ties. That can be the case, for example, in disputed probate procedures. In cases of this type, seemingly irrational considerations are often in play alongside the rational ones. A special feature of these cases is that, after their “completion,” for example, following the conclusion of the probate procedure, the participants remain in contact with each other since they are connected by other factors besides the legal relationship. The former disputants may be just as likely to meet again at weddings and funerals as at shareholder meetings of the family company.
Lawyers cannot disregard these relational aspects in the course of their work. They must strive to ensure that the arrangement reached is one the lawyer’s client can live with in the long term as well. This is because the success of any agreement is largely dependent on whether the parties are able, or willing, to comply with its provisions. Lawyers advocating in such cases must exercise caution, and they need to be even more careful if the parties have contrasting identities and come from different cultural environments.
In her 2001 landmark paper, Professor Susan Bryant summarized the results of her several-year research project conducted with Jean Koh Peters entitled “The Five Habits: Building Cross-Cultural Competence in Lawyers.”[iv] The Five Habits refers to a practical technique intended to make it easier to overcome the barriers resulting from cultural differences. Applying these techniques requires a great deal of skill, attention, and self-knowledge on the part of lawyers. While an exhaustive summary of Bryant’s work is beyond the scope of this article, it is important to explain what is meant by the “Five Habits.”
Habit One requires the lawyer to identify and to differentiate between the cultural similarities and differences of the lawyer and the client, as well as recognize the stereotypes and preconceptions that could subvert lawyer-client communication. Habit Two helps the lawyer identify what impact the explored similarities and differences might have on the relationship between the lawyer and the client, the client and the decision-maker (for example, judge), and the lawyer and the decision-maker. This helps the lawyer correctly “translate” the client’s position into the decision-maker’s “language.”
Nevertheless, it is still common for the lawyer to misconstrue what the client wants to communicate due to their own preconceptions. This is why Habit Three encourages the lawyer to explore what we will call the client’s “parallel universe” and to utilize effort to interpret what the client really intends to communicate in that context. Habit Four is concerned with communication between cultures, especially what are referred to as communication pitfalls and red flags. A typical pitfall is when the lawyer starts to think and communicate in old patterns.
This is a real and usual pitfall, because there is no guarantee that the previously successful pattern into which the lawyer places the solution to a client’s problem will apply when there are clients with differing identities. Habit Five gives the lawyer the task of confronting the prejudices and stereotypes stemming from his or her own cultural background, which are especially capable of influencing how the case is handled in stressful situations. This step is far from easy, as prejudices are often very deeply rooted. According to Bryant and Peters, it can help if lawyers constantly and proactively “monitor” themselves in order to recognize when they are being controlled by their own preconceptions.
Each of the habits described above can be a great help for lawyers, enabling them to overcome the obstacles resulting from cultural differences. But why does applying them present an especially big challenge in the field of inheritance law?
The Inter-Cultural Nature of International Inheritance Law[v]
The very existence of inheritance law betrays a very human idea: although individual human lives are finite, they are not isolated. Rather, they are part of an intergenerational “web of relationships” in which the transition of property between certain members must be ensured.
The central issue under inheritance law is determining the mode of transfer. Two factors play a key role in this: on one hand, the “permanent” core values of the given society and on the other, the individuals who wish to determine what happens to their assets after their lives are over. These two factors, however, are not independent of each other as the norms of a society largely reflect the cultural and moral criteria that also shape the identity of the individual.
These cultural and moral criteria are also in play when the inheritance laws set out the idealized order of succession that is perceived to be “right.” Looking at the three main inheritance systems, namely the civil law system, the common law system and Islamic law, it is clear that while all three essentially treat the family members of the deceased as the natural guardians of continuity, subject to specifying how the testator’s wealth be divided up among them, they show substantial differences in terms of how much freedom of disposal the testator has.
In essence, the inheritance laws encapsulate a society’s “genetic code,” and this code is different for every culture. In cross-cultural situations, the most important first step is to decode and recognize what different laws apply in order to manage a given situation. This decision-making process would benefit from identifying the origins of these differing laws and understanding which social, political and economic processes led to their creation.
For the sake of argument, take the example of a business founded by three friends, one French, one Egyptian and one American. Upon reaching a certain age, they want to give instructions on who should inherit their share of the company in the event of their death, so as to ensure business continuity. However, they soon realize that different laws on inheritance apply to each of them; what is more, they all regard their own rules as “natural.”
While the French and Egyptian members are accustomed to the idea of strict reserved shares and find it self-evident that they cannot freely dispose their assets in their will, it is far from certain whether the American shareholder, who may have never even heard of the reserved or forced share, will find this method so easy to accept. For the American, the freedom to decide what should happen to their assets in the event of death is broader than in most European and Muslim countries. For these entrepreneurs to be capable of finding a solution that both serves the interests of the company and respects the individual considerations of its shareholders, they need to understand and take into consideration the laws and rules to which the others are subject. These laws can only be understood if they also get to know, understand and accept their cultural roots. Lawyers can help with this, provided of course that they themselves see the importance of such understanding.
There is no such thing as culturally neutral lawyering. Lawyers, just like any other human beings in the course of their work rely – either consciously or unconsciously – on the customs, traditions and norms that they grew up with, and based on which, or perhaps contrary to which, they define themselves as individuals. A lawyer dealing with international inheritance law regularly encounters situations where the client, the party opposing the client, or perhaps the authority presiding over the client’s case, have a fundamentally different cultural background and different ideas about what is right or wrong. In these situations, a lawyer’s work goes beyond simply having knowledge of the laws. Lawyers must make an effort to know and understand the points of view of all the differing conventions and rules, and their cultural roots, because this is the only way they can satisfactorily uphold and advance their clients’ genuine, long-term interests.
Published in Juriste International 2020.2, page 32
[i] Bryant, Susan, “The Five Habits: Building Cross-Cultural Competence in Lawyers” (2001). CUNY Academic Works; http://academicworks.cuny.edu/cl_pubs/258
[ii] Samsung: Cross Cultural Management, https://www.youtube.com/watch?v=rJ4IbhXrqnc
[iii] Union Internationale des Avocats: Core Principles of the Legal Profession;
[iv] Bryant, Susan, “The Five Habits: Building Cross-Cultural Competence in Lawyers” (2001). CUNY Academic Works. http://academicworks.cuny.edu/cl_pubs/258. Note that although Bryant addresses her work to students of law, they can also be applied, mutatis mutandis, by practicing lawyers.
[v] This section is based on Olivér Spiriev and Péter Kun “Inheritance systems in the light of testamentary freedom” (International Succession Review, vol. 1 issue 2); https://kunadvocate.hu/wp-content/uploads/2019/11/International-Succession-Review-Vol.-1-No.-2..pdf