Lawyering amid the globalization of law
The Apec Summit being hosted by the Philippines makes discussions on globalization relevant. It also happens to be the month of the bar exams.
Discussions on how globalization affects law are often limited to how national laws must address the realities of increased cross-border movements of goods and services, as well as how national laws must address global problems such as international terrorism, human trafficking, smuggling, climate change and others. Sometimes, the question of what lawyers must do to stay competitive amid the globalization of the market for services is also discussed.
There is very little discussion, if any, on the globalization of law itself. The phrase “globalization of law” seems an oxymoron considering the common concept of law as a set of binding norms enacted by a government exercising sovereignty over a specific territory.
However, scholars like the Italian jurist Paolo Grossi do speak of the globalization of law. Grossi, for example, posits that globalization precisely challenges the notion of law described above as it challenges the idea that the nation-state is the exclusive source of law.
The notion of law as intimately linked to the nation-state emerged only in the latter part of the last millennium, with the consolidation of modern nation-states, the rise of constitutionalism, and the codification movements that started with the Napoleonic Code. Previously, law was understood in a broader sense, as the basis of rights and obligations according to a preestablished just order. Such notion of law includes statutes and edicts, but is not limited to them as they were just a few among the many sources consulted by scholars to arrive at a just answer to specific legal questions.
As stated earlier, the rise of modern nation-states, constitutionalism, and the movement toward codification created the notion of law as it is understood today. The current system has advantages, but in an increasingly globalized environment, a state’s national laws are not enough to regulate realities in which its citizens may find themselves entangled.
The implications are numerous. One is that one may acquire rights and obligations based on laws other than one’s own national law. A transaction between a Filipino and a Japanese, for example, may be governed by Philippine law, Japanese law, or the law of a third state.
The parties may even agree to be governed by one of the instruments formulated either as offshoots of studies in comparative law or as deliberate attempts to harmonize laws based on the theory—debated, to be sure—that differences among national laws disrupt international trade. Examples of such instruments are the Convention on Contracts for the International Sale of Goods or the Unidroit Principles of International Commercial Contracts.
The use of international commercial arbitration as a method of solving international commercial disputes highlights further the globalization of law. In a dispute between parties who have chosen Filipino law to govern their contract, a Filipino lawyer may find him/herself having to argue Filipino law before an arbitral tribunal composed of three persons of diverse nationalities, each trying to understand Filipino law from the point of view of his or her prior legal training. Or, a Filipino lawyer may find him/herself suddenly having to learn, within a short period of time and based on his or her training in Filipino law, how a foreign law resolves the claim of his or her client.
Not to be underestimated, too, is the increasing relevance of international law given the rise of treaties that affect private rights, such as the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, or the Convention on Contracts for the International Sale of Goods cited earlier.
What does the globalization of law mean for lawyers?
One consequence is the emergence of new and exciting fields of practice such as international commercial arbitration and investment treaty arbitration. Lawyers of a more academic bent may want to explore comparative law and harmonization of laws, among the many other legal issues that globalization raises.
Another consequence is that it is not enough for a lawyer to master one legal system. The knowledge of more than one legal system is increasingly becoming a comparative advantage. But it is unrealistic to master as many legal systems as may be physically possible. Any lawyer can attest to the huge investment of time, effort and other resources that it takes to master just one.
A lawyer can, however, facilitate this task by acquiring the flexibility to adapt from one legal system to another. This means acquiring intellectual rigor, honing skills in legal analysis, and, more importantly, by familiarizing oneself with the philosophical and historical contexts of the world’s major legal systems. This knowledge is an important tool for legal analysis. Laws, after all, are not enacted in a vacuum. They are premised on preconceived notions of justice and human nature, and were enacted to solve specific real-world problems.
Amid an increasingly globalized milieu, one thing remains unchanged: The aim of legal practice is the attainment of justice. Despite differences among legal systems and cultures, in all human societies laws are enacted and cases are decided with this in mind. Law students, law educators and lawyers must keep this in mind, too, as they face the challenges presented by the globalization of law.
Cristina A. Montes graduated from the Master en Derecho de la Globalizacion e Integracion Social program of the Universidad de Navarra in Spain. She also holds bachelor’s degrees in laws and in humanities (specializing in philosophy) from the University of the Philippines and the University of Asia and the Pacific, respectively.
