Localising documents is the process where documents are adapted for a specific country or market (like Africa or South Africa). One of the benefits of localising documents is that the documents are more accessible to the market of that country and have the look and feel of having been created specifically for a target market regardless of their language, culture, or location. We are experts in the localisation of documents for use in specific countries. If a multi-national company already has documents, it does not make sense to redraft them. Localising them for use in a specific country is much more cost-effective.
There are two different kinds of localisations that can be done when we localise legal documents:
- One is where the contracting party is changed from an offshore entity to a local entity and the governing law is changed from the law of a foreign jurisdiction to the laws of the specific country.
- The other is where the contracting party stays an offshore entity and the governing law stays the law of a foreign jurisdiction.
These two reviews are very different and require different approaches. The second kind is often for when a document is being globalised and we check to see whether a global document breaks the law of a specific country. This article deals with the first kind of localisation review.
Our process of localising documents
We are often requested to localise documents (such as template agreements) for use in a specific country to ensure that they are enforceable and suitable for use in that country. The review process involves reviewing the relevant document for enforceability, identifying risks, evaluating risks and making amendments to the documents to avoid risks.
Often a new legal entity may already have been formed or is in the process of being formed in a specific country and this local entity will be the entity through which our client will be trading. The local entity is to be the contracting party and the law of the specific country is to be the applicable law in the localised document.
In our review we start by considering the following general questions:
- Are there any clauses in these documents that would contravene the laws of the country in question or cause the document to be invalid?
- Would the documents be enforceable against a legal person of the country in question who concludes these documents with the local entity?
- Are there any clauses in the standard documents that are, from a commercial point of view, very rare or unusual?
The limited scope of the localisation
When we conduct these reviews we appreciate that the scope of the review is limited. We do not modify the format and structure of the documents unless we feel that such changes are necessary for local law compliance purposes. We only make amendments to clauses where they are not permitted or need to be restricted due to the laws of that specific country. We do not alter any bias of the document. We can update a document, globalise a document or convert documents into plain language, but these are something different.
Overview of legal issues
These are some of the legal issues that we address in our review. There are however always other specific additional issues.
- Customer protection. Do the documents comply with applicable consumer protection laws?
- Dispute resolution. Is the most appropriate forum selected?
- Debit orders. Are there any specific laws relating to debit orders?
- Limitation of liability. We usually amend the manner in which liability is disclaimed or limited.
- Terminology. Is the terminology correct?
- Capital letters. Does the law require certain clauses (such as disclaimer of warranties and limitation of liability) to be in capitals?
- Insurance. Are there any specific requirements relating to the insurance of goods?
- Breach events. Is the wording of the breach events suitable?
- Governing law and jurisdiction. Is the wording correct?
- Suretyships. Does local law have any specific requirements relating to suretyships?
We make the required amendments directly to the documents in English. We aim to make the smallest change possible. All changes that we make to the documents will be tracked using the “track changes” function for ease of reference purposes. We generally do not provide explanations or reasons why amendments have been made to the documents.
If we feel that an explanation or reason is required, we are as concise and specific as possible. We avoid lengthy descriptions of the law. We only provide a summary of the issue, the risk involved and a solution to avoid the risk identified. We make any comments relating to specific clauses in square bold brackets after the relevant clause.