“COMPARATIVE LAW” AND 21ST CENTURY LEGAL PRACTICE

• Published date: 01 December 2012
• Citation: (2012) 24 SAcLJ 319
• Author: Basil C BITAS Juris Doctor (JD) (Georgetown University Law Center, Washington, DC); Member of the Bars of New York State and Washington, DC; Associate Professor (Practice), School of Law, Singapore Management University.
• Date: 01 December 2012

An Evolving Nexus

This commentary notes that the demands of modern practice are changing under the stress of “globalisation” as manifested in the increased velocity of communication and commerce and the greater mobility and interconnectedness of individuals. National legal systems and the lawyers and judges administering them are destined to interact with alien legal systems of a national, regional, or supra-national nature in a number of multi-faceted ways. Such trends and developments are exerting a profound effect on the legal environment in Asia. The question then arises as to how legal education should respond to these developments. This commentary argues that the traditional doctrinal curriculum must be balanced by offerings that enhance the perspective of young lawyers and practitioners by instilling in them a practical appreciation of comparative issues. Rather than emphasising rules per se, the comparative approach described in this commentary is designed to sensitise students to the forces shaping the modern practice environment while also giving them an appreciation of the fundamental grammar of external legal systems and of the expanded universe of options for problem-solving. The evolving legal environment will reflect a number of asymmetric interactions between the domestic courts and private dispute resolution fora, the state and regional bodies, and finally between the state and supranational instances and instrumentalities. This commentary suggests that modern legal training must incorporate these complex dimensions of practice into the curriculum by adopting a broader notion of “curriculum” in general and a more flexible view of what we mean by “comparative law” in particular.

I. Introduction – Comparative law and the education of a 21st century lawyer

1 During the last 25 years, a recurring debate has developed as to how best to adapt and modernise the manner in which we train our lawyers amid a rapidly evolving international environment characterised by accelerating trade flows and the proliferation of international trade treaties, an alphabet soup of international and regional agencies and organisations charged with managing everything from climate change to intellectual property, and a resulting focus on the often used, but somewhat less frequently defined, term of globalisation.1 The increasing mobility of lawyers, the evolving contours of the international legal environment, and the resulting implantation and transnational integration of international law firms in financial and commercial centres, such as Singapore, Hong Kong, London, New York, and Shanghai will reinforce diverse forms of cultural and legal crossovers, thereby crystallising “globalisation” in the legal profession.2

2 To what extent, and if so, how, should legal education respond to these developments in order to become more “international” or “internationalised”? A distinction between the above two terms can perhaps be made here, with the former relating to actual transnational legal instruction in one or more specific national systems and the latter implying a more general awareness, appreciation, and understanding of the similarities, differences, and nuances across systems and of the transnational forces shaping the international legal and practice environment. Many law school curricula in Europe, North America and Asia attempt to address these different dimensions with specific courses in, say, Chinese law, paired with broader offerings in comparative law.3 Is this a viable approach, particularly as it relates to a free-standing course in comparative law, and therefore a laudable endeavour or a false lure, consuming too much time and too many resources for too limited a yield? Nowhere is this issue more relevant than in Asia, a region shaping

and being shaped by the evolving international environment and one which is destined to be at the forefront of global trends for years to come. How far should the curriculum stray from classic, domestic doctrinal courses, such as property, tort and contract, by including courses on comparative law or interdisciplinary offerings on law and economics or law and regulation? What does a lawyer in the 21st century need to know in order to enhance his or her effectiveness in light of the evolving international environment and to what extent are law schools responsible for furnishing this knowledge base? Is the endeavour primarily institutional or individual?

3 This commentary will focus on comparative law in particular, while offering some reflections on modern legal education in general. To be sure, law schools in the US4 and Europe5 are grappling with similar issues, but the Asian experience is perhaps somewhat unique in terms of degree due to the clear and present nature with which global forces are rapidly exerting daily pressures on the contours of everyday life. US legal education continues to address this problem, but from a position as a legal Goliath, given its still preponderant, albeit diminishing, weight in global commercial and legal affairs. It is clear that different nodes of legal education are developing. Europe, propelled by the forces of regionalisation, has had to confront the notion of the globalised lawyer in practical, collegial terms, but this has occurred largely within the framework of the European Union (“EU”) and with a distinctly private international law focus.6 The civil law tradition, which informs the structure of many international treaties, has also perpetuated and fostered European student interest in public international law, with many postgraduates focusing on these issues. Within this matrix, the United Kingdom has begun to carve out a role as a common law bridge to the civil law tradition, participating in the shaping of institutions and resulting EU jurisprudence.7 Asia's increasing importance in international commerce and growing regional integration will also necessitate heightened attention to, and the resulting development of, different approaches to transnational issues and law teaching.

II. Legal training and legal practice

4 Legal training must bear a rational relationship to legal practice. As the contours of the latter change, so, too, must the former. It is clear that the development of core analytical skills, coupled with a traditional basket of doctrine, the legal tool box, must anchor the curriculum. However, as Ward Farnsworth notes:8

[L]aw school is carved up the other way around: by legal topics … not by tools. Law tends to be taught, in other words, as if legal rules were the most important things one could learn, and as if the tools for thinking about them were valuable but secondary – nice to know if someone happens to explain them, but nothing urgent.

5 Domestic instruction in tort, contract, and property law, perhaps supplemented by an increasingly broad palette of skills-based courses, such as negotiation and mediation and legal research and writing, will endure. However, as cross-border trends manifest themselves in all forms of legal practice, the question arises as to how one can integrate an exposure to, and an understanding of, these developments into a “traditional law” curriculum to lay a foundation for practical, real world problem-solving.9 Can one add an operational understanding of “globalisation” to the legal “tool box” and do law firms care? It is suggested that the answer to both is affirmative.

6 With regard to “globalisation,” it is precisely in defining this phenomenon through a legal lens that value and perspective can be added to a legal education.10 A thorough discussion of globalisation requires an examination of this trend as both an economic and a social phenomenon. The former will lead to a discussion of the drivers and manifestations of economic globalisation in the form of trade flows, international instruments, and regional groupings, such as the European Union and ASEAN. Bilateral investment treaties, together with broader commitments, such as the undertakings embodied in the World Trade Organization, will interact with domestic regimes in a number of ways, including the interpretation of “non-discrimination” provisions and

their application to domestic laws and regulations,11 the rights of sovereign states to protect the public welfare, and the relationship of diverse, specialized dispute resolution fora to the national courts. Trade-related aspects of intellectual property rights (“TRIPs”) undertakings have already manifested themselves in defining the scope and protections afforded by domestic patent law in South Africa and India, regarding the manufacture of previously patented drugs for AIDS.12 The government of Australia currently finds a recent law, requiring generic packaging for cigarettes, challenged by the tobacco giant Philip Morris in both the domestic courts as an unconstitutional taking and simultaneously in investor-state arbitration pursuant to a bilateral investment treaty concluded between the Australian government and Hong Kong.13 Such multi-faceted situations are only the beginning as the development and protection of intellectual property rights and other trade-related issues move to the forefront in the high velocity age of Internet and commercial traffic.

7 Other instruments, such as the Convention on the International Sale of Goods (“CISG”),14 designed to unify international sales law, can take what appears to be a matter of domestic law and transform it into a matter of private international law. Woe to the lawyer in a signatory country who fails to realise that in the absence of a specific opt out provision, the CISG and its somewhat unique amalgam of civil law-common law concepts will apply.15 With increased migration, even issues of family law, traditionally the province of domestic law, are likely

to involve transnational issues regarding the criteria for concluding valid marriages, the protection of women's rights, and the disposition of...