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CCCA_V2No2_Outsourcing-FIN.qxd:CCCA_V1No1_DriversSeat-FIN.qxd 5/1/08 3:01 PM Page 24 Cover outsourcing, to make sure you’re getting the IP you think you’re getting,” says Ramsey. He notes that Indian laws are different than those in Canada and the U.S. regarding ownership, protection and duration of IP rights. Should a major dispute arise in a BPO scenario, you must ensure from the start that there’s a proper dispute resolution process in place.Such a process should answer whether a dispute would go through the courts or through private dispute resolution mechanisms.In addi- tion, it should include a process that escalates,for exam- ple, from mediation through to binding arbitration. Quadir suggests going the private dispute resolution route. “The worst thing that can happen is a court case, as all the dirty laundry is aired out publicly.” Ramsey concurs:“Because of the international flavour of BPO transactions, you may find arbitration to be more suitable, as confidentiality is protected more so than it is in the courts.” Another important legal issue to examine prior to entering BPO negotiations is who monitors and ensures compliance with international laws.“You need to think hard about who’s responsible for compliance with the laws, how you deal with changes, and who is responsible for the costs,” says Austin. An oversight role Once you’ve examined and prepared for the major legal issues that need to be addressed,you need to concentrate on how you should become involved and help your company through the BPO deal.That task is one that Cairns, who actively participated in Chubb Canada’s BPO deal, calls “more of an oversight role,” revolving around the transaction and ensuring the protections that the company wants are in place and well documented. Asif Quadir Senior Legal Counsel This role extends to co-ordination of human Bank of Nova Scotia,Toronto resources, such as consultants, external counsel and transactional experts.A BPO transaction“takes a lot of different people and co-ordination,”Ramsey says.Paul agrees: “You need to rely on consultants, references, have shut RIM down. Eventually, the two sides came to a full and suppliers and competitors to gauge the process and the quality of final settlement, but it cost the Canadian firm US$612.5 million. the bids tendered.The service provider deals with these issues all Companies without those kinds of resources could be forced to the time.You need to surround yourself with people who have close if faced with a similar lawsuit. gone through the process before and who know how to direct This is particularly important for firms that are either now out- you as well as negotiate the contract.” sourcing or looking to outsource key business processes.As their But in order to ensure that this oversight role is done properly, business processes are in the hands of third-party firms in a foreign corporate counsel must take an active role from the beginning.“Get jurisdiction, corporate counsel have to “get offshore counsel who involved early in the process, so the business people don’t go down PAUL EEKHOFF are familiar with the legal regime in jurisdictions to which you’re a path that regulations don’t allow. Counsel has a very good role in 24 CCCA Canadian Corporate Counsel Association SUMMER 2008