With a population of over one billion, 3.29 million square kilometres of landmass to cover, several climates, a multitude of languages and customs, the Indian market can be a daunting place for businessmen and foreign lawyers alike. Shailini Agarwal, a partner with ALMT Legal, explains how, with clear objectives and a steady nerve, doing business in India and getting the best out of local lawyers as instructing solicitors can be richly rewarding and an experience to remember.

Outsourcing legal services '“ Maintaining hands on responsibility

Today outsourcing is a well accepted and widely used management tool that spans all industries on a global basis. The legal sector is no different. However, much like outsourcing software development to the shores of India requires a well defined structure and strong project management, instructing local lawyers on cross border transactions requires skilful handling and an appreciation for the idiosyncrasies of operating in a foreign land.

International transactions increasingly require a consortium of lawyers and law firms to deal with the complex multi-jurisdictional issues that arise.  In such instances, the task of identifying and instructing local counsel invariably falls on the lead firm.  Dealing with colleagues operating in a similar business, cultural and commercial environment is not as daunting as operating in a less known market.

Business transactions in India need to be carefully considered and monitored. Particularly where a team of international lawyers is set up to assist in completion of a transaction it is vital to ensure that all members of that team follow the discipline required for a successful outcome.  Whilst the tendency is to place a matter completely in the hands of local lawyers who one considers better equipped to deal with the local law of the land, it is imperative that a hands on approach is maintained at all times.  Firms differ in the legal and professional services they offer, each having their own corporate culture, servicing styles and team dynamics.

In order to associate the most appropriate service providers in a foreign jurisdiction it is advisable to know something about the market the firms operate in.  Knowing firsthand the pitfalls to expect helps in segregating reality from myth. It is also helps in assessing what support is required locally and which individuals or firms are best equipped to provide it.

From our own experience in operating as Indian advisers in a European marketplace, apart from providing assistance with Indian legal issues, we often play a crucial role in bridging the cultural gap in respect of the varied linguistic and working ethics prevalent in cross border transactions.  First hand knowledge and experience of the Indian market allows us to advice and assist clients and instructing solicitors on preferred entry strategies for their clients.  A practical and commercially sound approach to solving business issues assists clients in overcoming the complex commercial, regulatory, legal and technical issues characteristic of doing business in India.

Forewarned is Forearmed '“ What you need to be prepared for!

Doing business in India or getting a deal underway is a challenge. Understanding the prevailing culture, market, working ethics, bureaucracy, corporate structures and regulatory environment can enhance business success.  A few tips worth bearing in mind when considering a transaction in India, whether for a client or with a view to instructing local counsel:

• Regulatory environment '“ Obtaining government approvals and complying with statutory requirements in India can have long lead times.
• Infrastructure '“ Several regions of India are still struggling to equip themselves with basic power and telecommunications facilities. Transactions in smaller towns and cities often pose a hurdle to completion of an international deal '“ therefore care must be taken to address specific issues and problems to overcome last minute hitches.
• Language '“ Although India has a large English speaking population and most business is conducted in the English language, several parts of the country may be difficult to operate in without local support and staff. Instructing firms with local capability is therefore of utmost importance.
• Many Indian businesses are autocratic and family run. Thus be aware that the person you are dealing with is the key decision maker.  If local counsel are involved in negotiations ensure that all parties are present as often instructions to local counsel are conveyed orally, informally and at the very last moment!
• Verify local information from a reliable source.
• Allow enough lead-time for projects in India and budget for unexpected costs '“ everything takes longer in India, and therefore can be more expensive.
• Handle red tape with caution '“ exchange controls do exist and regulatory procedures can be highly bureaucratic.
• Exit strategies must be considered up front and can save a lot of time, effort and money in the long run.

The dos and the don'ts - beating the system

In a competitive world, client care is imperative. But how does one extend that care beyond one's own jurisdiction and to what extent is one responsible for the acts or omissions of local counsel?  And how do lawyers trained in one jurisdiction to do what they are best at, namely deal with the law, move into challenging new roles of project managers and external advisers coordinating and dealing with foreign lawyers and the law of foreign lands?

Speaking to English law firms who have on occasion instructed Indian lawyers to assist with a transaction and drawing on our own experience in terms of what clients expect at a minimum, three key requirements highlighted were responsiveness, pro-activity and conciseness! The question remains '“ how do you get local lawyers to provide this same level of customer care if it is not part of the firm's culture?

A simple starting point would be to draw up a checklist that sets out a modus operandi for instructing local lawyers, namely:

• Spell out scope of instructions '“ clearly and in detail
• Define a time frame within which advice is required
• Request confirmation and acknowledgement of all correspondence
• Ask specific questions and demand concise answers supported by law
• Request creativity, proactivity and lateral thinking '“ ask for solutions
• Agree fees upfront, in writing, for a defined scope of work
• Designate one point responsibility within the firm for work undertaken
• Don't rely on good faith assurances

Armed with this basic knowledge of India and the market place as it exists, you should be a step closer to making a successful headway on deals and getting the best out of local lawyers in a remote jurisdiction!

Shalini Agarwal is a partner at ALMT Legal, an Indian law firm with offices in London and India, and can be contacted at sagarwal@almtlegal.com