Cross-Border Disputes Multiply Challenges for Guarding Reputation

Companies operating in today’s global marketplace face a host of increasingly interconnected legal and reputational risks. An issue that once may have been contained within national borders can easily snowball globally as news of a product recall, security breach, or government investigation sets off a chain reaction in other countries.

Cross-border disputes present a distinct set of challenges. They frequently involve multiple legal proceedings advancing across the globe concurrently. The most complex corporate issues and litigation often play out in the public arena, especially those arising in the regulatory sphere, where anything said in one forum can have significant reverberating implications in another—both from a legal and reputational standpoint.

Communications missteps can have unintended and sometimes exponential spillover effects that threaten a company’s reputational standing among its customers, business partners, investors, employees, regulators, government officials, and community for months or years. Companies must navigate unfamiliar and sometimes unpredictable legal, regulatory, and media environments; overcome language, political, and cultural barriers; and manage coordination issues related to time zones and long distances.

In particular, emerging markets that may offer some of the most exciting business opportunities are often the most challenging places to navigate disputes.

In such cases, strategic communications are an important tool for managing the inherent risks that can’t be resolved in a courtroom, government office, or arbitral tribunal. While every situation is unique, there are some standard operating principles to help ensure a best-in-class communications response for companies navigating high-profile cross-border disputes.

Global Working Group

This team should include members of management, senior leaders from the legal and communications teams, and external legal and communications advisers. They should take the lead in assessing and monitoring the situation, developing a unified response strategy, and managing its implementation.

The core team must be small, agile, and empowered to make quick decisions that reflect the totality of the organization. It also must account for diverse—and often competing—internal and external stakeholder interests.

This team must communicate constantly so that new developments can be considered and addressed in a coordinated way, while managing region-specific considerations and ensuring that the company’s actions and messages in all venues are consistent and working to support its objectives.

Align Strategies

It’s critical to have a tightly aligned legal and communications strategy to advance the company’s legal goals and corporate reputation, while helping to avoid generating new risks and preventing communications and legal working at cross purposes.

Under the oversight of the global working group, the legal and communications teams must ensure that the company is using consistent messages. This applies not only to public statements but also legal filings; statements to courts, enforcement authorities, and litigation counterparties; and communications with business partners, employees, and investors.

Legal documents and exhibits can be powerful communications tools outside the courtroom. The legal strategy must consider how each will be perceived by corporate stakeholders, and public relations decisions must be made with an understanding of the potential legal risk and objectives. A good communications strategy will reinforce the key messages that support the legal strategy and mitigate legal risks.

Meet Audiences Where They Are

Companies today need to communicate seamlessly with diverse stakeholders across multiple markets. A company should speak with one voice but also should tailor communications for delivery to specific audiences through appropriate channels.

This may require significant strategizing and planning if a company is trying to reach stakeholders in an unstable market where media is censored or otherwise controlled by the government or interest groups.

On-the-Ground Support

In cross-border situations, on-the-ground communications support can act as the company’s eyes and ears, assess sentiment, monitor local media, and share key developments and updates.

Ideally, this person should speak the local language and have a good understanding of the media, political, and social environment. This is especially important in emerging markets where a company may have to contend with corruption, government instability, and a lack of transparency.

Education on Foreign Systems

In-house or external counsel may benefit from conducting educational background briefings for key reporters in foreign markets about critical components of an unfamiliar legal system, process, or procedure.

For example, a French company’s beat reporter in Paris who is following the company’s legal developments may not be familiar with the US Chapter 11 bankruptcy process or multidistrict litigation. These sessions can help avoid inaccurate or uninformed reporting while building trust with reporters.

Dedicated Microsite

This information should serve as a global source of truth and clearly present the company’s perspective and position to external audiences in one place. The site may include case background, key legal filings, press releases, FAQs, and fact sheets.

Cross-border disputes are inherently tricky, but effective management of a contentious situation can be a powerful tool. Communications should be a key part of that.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Rebecca Houck is a managing director at leading strategic communications firm FGS Global, and a former litigator.