Cultural differences: concepts or rules?

Every lawyer who worked in international contexts will have experienced the complications of negotiating and agreeing on a contract (and experiencing performance). Despite a high awareness and appreciation of the great differences one can face, the process almost inevitably involves surprises of a cultural nature. I very enjoy this part of the work. This blog explains that some people (including lawyers) prefer to settle on “why” rather than on “how”.

If you have some stories yourself, feel free to share them.

There are manifest differences between contracts originating from an Anglo-Saxon lawyer and those drafted by a European continental attorney. A U.S. lawyer would be the most obvious example of the former group. The differences are threefold:

  1. Being exhaustive vs. conceptual: Common law originated contracts tend to phrase provisions in an exhaustive manner, listing the approximating words to make sure the entire concept is captured, whilst European continental lawyers dare to delete if the concept is addressed sufficiently clearly.
  2. Funny phrases: Common Law contracts tend to have somewhat cerebral words and phrases, which do not reflect reality but give strong feeling of reading a contract (e.g., In witness whereof while there is no witness).
  3. Presentation: U.S. style contracts are usually printed in a much more compact way, whereas European styled contracts, including in the UK, open up the page outline, especially of the first page (see chapter 3 ‘Practice and presentation’).

One of the most remarkable differences in the legal practices of the U.S. and the European continent (with England somewhere in between), is the American tendency to be exhaustive (explicit) and the European attitude of drafting in a conceptual (‘abstract’) way. Apart from historical and case law related arguments, this difference is most likely culturally determined.

‘How?’ or ‘why?’. People with a predilection for being explicit would focus on questions such as ‘how’ and ‘what’, whilst those with a conceptual, deductive or context-sensitive approach will more likely be interested in the question ‘why’. The first group of people, probably favouring the U.S. legal tradition, would try to fit into the contract all aspects, which they imagine can be of some importance. The second group will rely on an understandable dividing line allocating the main obligations and risks amongst the parties. The latter group of people, discernible in Germany, France, Spain and Italy (but also England), would understand the bigger picture from a few words only and be able to work with scanty principles. In anthropologist literature, this is also classified as (high) ‘context sensitivity’.
The differences may also be explained by a tendency towards ‘universalism’ versus ‘particularism’: ‘universalists’ would feel less bound by specific rules and regulations and more committed to universally determined (abstract) principles[1]. ‘Particularists’ would feel more comfortable by clear and specific rules tailored for the relevant context. Extrapolating this opposition to contract drafting could similarly be based on a perceived individualistic or collectivist nature of the U.S. or European societies.

Exhaustive or conceptual. Transposing this cultural difference to contract drafting raises the issue whether contract provisions should be ‘exhaustive’, or rather ‘abstract’ and ‘conceptual’. Examples of the (‘exhaustive’) U.S. style are phrases such as:

…modify, adjust, amend or otherwise change…

…any losses, actual damages, costs, fees, expenses, claims, suits, judgments, awards, liabilities (including but not limited to strict liabilities), obligations, debts, fines, penalties, charges, costs of Remediation (whether or not performed voluntarily), amounts paid in settlement, litigation costs, reasonable attorneys’ fees, engineers’ fees, environmental consultants’ fees, and investigation costs (including but not limited to costs for sampling, testing and analysis of soil, water, air, building materials, and other materials and substances whether solid, liquid or gas), of whatever kind or nature, and whether or not incurred in connection with any judicial or administrative proceedings, actions, claims, suits, judgments or awards…

…any and all substances (whether solid, liquid or gas) defined, listed, or otherwise classified as …, or words of similar meaning or regulatory effect under any present or future Laws [with Laws defined as… ]…

Their respective equivalents ‘working’ under European continental laws would be:

…amend…

…all damages, including all related costs and expenses…

…all natural and chemical substances classified as …, from time to time…

[1]               The cultural determinants are derived from: F. Trompenaars & P. Wooliams, Business across cultures; G. Hofstede, Cultures and organizations: software of the mind; F. Trompenaars & Ch. Hampden-Turner, Over de grenzen van cultuur en management; D. Walker, T. Walker & J. Schmitz, Doing business internationally.

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