Dean has handled many crisis management cases for multinationals that have a core foreign investment in an emerging market. In this kind of scenario, a multinational’s foreign venture may be subjected to illegal “regulation”, “corporate raids” or the threat of a forced takeover. The personnel or other stakeholders associated with the venture may be subjected to harassment, intimidation or arbitrary detention. Regardless of the specific circumstances, the viability of the venture is put at risk and its operations are severely paralyzed.
When he confronts a crisis on this scale, Dean never relies exclusively on conventional legal advocacy as it is practiced in the developed nations. Traditional advocacy is rarely adequate. This is due to the basic fact that the state courts and agencies in many emerging markets do not function independently or impartially. They are often subject to manipulation by external forces and agendas.
It follows that the client’s so-called “legal problem” is rarely just that. It is fundamentally “political”- not “legal”. Local political elites and/or competitors usually concoct the problem by turning the national courts and state agencies against the foreign investor.
Under these circumstances, Dean devises a multi-faceted “legal/political” solution to the “legal/political” problem. Throughout the assignment, he typically acts as lead counsel or outside general counsel. He assembles and directs a special task force composed of the most informed personnel in the client’s organization and external experts who constantly consult in the face of the crisis.
Dean may resort to “public advocacy” at the domestic and international level to gain a strategic advantage. He may reach out to potential strategic allies that have the political clout or the moral authority to stand up for the client’s commercial interests: sympathetic NGOs, third party states and constituencies in the emerging market. At the same time, Dean may launch the client’s case in the regional and international media. Although the regional media is rarely free from state intermeddling, any form of in-country coverage that shows defiance against state misconduct has the potential to undermine public support for those who have targeted the multinational’s foreign investment.
If feasible, Dean will actively conduct legal advocacy on the ground- in the emerging market where the foreign investment resides. He often engages in this kind of in-country opposition despite the fact that the domestic “legal process” amounts to a sham- a legal cover for state illegality. Although resistance of this nature does not change the predetermined outcome of the legal proceedings, it exposes flagrant violations of the laws protecting due process, foreign investment and fundamental rights. Exposure of the abuses serves to delegitimize the attack against the multinational in the eyes of objective international observers who have the potential to exert pressure on the municipal authorities.
Traditional legal advocacy may also be pursued before international tribunals or national courts where the rule of law governs. The goal here is to engage any independent adjudicative body that will hear the complaint.
Dean goes well beyond the strict legal arguments when he mounts his defense in any legal or public forum. He exposes the legal pretenses that cover up the implicit financial and political motives behind the so-called “legal case”. Dean often draws on expert evidence to show how political elites and competitors take advantage of the larger, systemic problems in the emerging market.