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Towards a modern global view of law practice and the need to reform the current legal educational system

Law students and legal practitioners are accustomed to the traditional view of the law which consists of a clearly defined categorization of local law, public international law (governing interstate relations) and private international law (governing relations between private persons and legal entities)

Thus, law students are being taught these subjects in totally separate courses and legal practitioners become specialized in each of the respective fields

This traditional view is also based on the long-held assumption that international and local laws are totally separate legal fields

As international legal and commercial relations became more complex and globalized, this traditional division between local and international law, and public and private law became less clear and is no longer suitable to govern these issues as general legal framework.

Lawyers are now facing complex global cases and legal matters that require a new understanding of the law in an attempt to reconcile these fields which is where transnational law becomes relevant

Multinational companies (MNC) have become for instance international actors playing an increasingly significant role in the international legal order comparable to that of Nations and States

Transnational law thus transcends the traditional view of law in its classical categories of local and international, public and private, to reconcile these categories in a hybrid legal context that governs complex global legal relations that constitute and are governed by a combination of local, public and private international law

Immigration and refugee law, commercial law, international trade, business law, international treaties, IT law, cybercrime, human rights, environmental law and issues like global warming, are all fields that apply both on local and international levels affecting private individuals and international legal entities both public and private

Thus, the necessity for a new legal theory combining the study of all these legal disciplines taking into consideration the many actors, norms and process on the global scene

Nation States both on local and international levels no longer have the monopoly of norm creation, new actors like NGOs multinational enterprises and global social movements are increasingly playing an important role in transnational norm creation that governs the global economy where local and international law have lesser impact

This new less formal non-central norm creation process is modifying the way in which law is classically perceived as a state centric system of law

As local laws are no longer suitable nor tailored to govern complex global relations, global actors are creating their own “laws” and norms through customs trade practices and private international cross border agreements based on complex hybrid legal frameworks that arguably might constitute an autonomous law existing outside the State and the realm of national laws

The globalized study of law i.e. transnational law goes beyond the conventional education in formal “hard” local and international law to an informal “soft” law created and enacted by private actors

On the global legal scene transnational law is evolving towards becoming a kind of a legal framework that applies across the board independently from any local legal system and takes into consideration the complexity of international legal relations

One example of such framework is the UNIDROIT principles of international commercial contracts offering a compromise (neutral law) to govern cross border agreements between parties based in different jurisdictions and each has different local contract laws

Many transnational legal scenarios have presented such challenges to international legal practitioners, that are based on facts and events involving public and private parties, multiple legal jurisdictions and regulations, complex different cultural backgrounds that invoke resolving disputes that go beyond local boundaries

Such issues include transnational labor law, transnational disaster law, human rights, ‘modern slavery’ in global supply chains and gender equality etc.

Many international events occurring on the global scene have changed the way in which law is viewed and perceived and questions the very foundation of law in its classical perception

The Rana Plaza tragedy for instance shed the light on many legal problems presented by the complexity of the global supply chain where MNC operate within the context of an international global legal scene going beyond the realm of local institutionalized state laws, and even public and private International law creating complex legal relations

The complex structure of the global supply chain prevents holding MNC accountable in this regard where no direct link can be established with local suppliers in addition to the structure of the MNC where each company in the same group is a separate legal entity subject to different laws and regulations

International legal frameworks such as the Bangladesh Fire and Safety Accord that constitute new kind of laws and norms emerged in an attempt to resolve the legal problem and regulate the global supply chain including protecting human rights and preserving the basic rights of the factory workers

The Accord was created independently by private international actors between multinational brands and trade unions and was intended to work towards creating a safe working environment for the Bangladesh Garment Industry

Other topics including human rights and gender equality were addressed within the context of an international legal framework that includes different sources of the law to protect women’s rights and equality including; The Universal Declaration of Human Rights, international treaties, constitutions and local laws

The UN guiding principles on business and human rights and the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), were developed and constitute a valid legal basis for developing international legal regulations to prevent gender discrimination both in the public and private sectors

Furthermore, as discussed, consumers and NGOs have become actors on the global level and even norm creators as seen in legal issues such as modern slavery in global supply chains

MNC face multiple challenges in this regard namely legal action (based on slavery, forced labor and human trafficking), consumer and media activism, threats to reputation, public disclosure and compliance with international norms such as the UN guiding principles on business and human rights set out to define corporate responsibility to respect human rights

NGO’s have become regulators and norm creators in the sense that they can set expectations for MNC for transparency, reporting and creating significant public pressure

In this regard, we have witnessed an interaction between soft laws and hard laws that deal with slavery and human trafficking namely; the California Transparency in Supply Chains Act (2010) and the UK Modern Slavery Act (2015) which are limited to the obligation of disclosure in major companies’ direct supply chain

Disclosure “obligations” were established based on the idea of “name and shame” where NGO’s create public reports and rankings for MNC and potential plaintiffs could use such public information as basis for legal action

The OECD Guidelines for Multinational Enterprises provides in this regard valuable information for MNC to establish a valid framework for responsible business conduct in a global context and contains general policies to adopt and addresses issues such as disclosure and human rights

These guidelines are non-binding recommendations addressed by governments to MNC and constitute a multilaterally agreed and comprehensive code of responsible business conduct that many governments have committed to promoting.

A new special kind of “Court” emerged which is the international “Court” of public opinion

Based on all the above, a drastic difference is seen between the way law is practiced on local and international levels and the roles of the lawyer and legal practitioner thus differ between practicing within a transnational setting as opposed to domestic contexts

Lawyers and law students are usually taught clearly defined categories presented as separate subject of study namely Domestic law and international law both public and private

In a domestic context the applicable laws are clearly defined with a long-standing tradition of jurisprudence to rely on, jurisdiction and competence are clear, the process of issuing laws is institutionalized and well organized as well as the enforcement process

In this context local laws govern legal relations and amendments fill in the gaps and try to cope with social and economic transformation and progress

 

Lawyers operate within a harmonious homogenic social background in which they are well accustomed and apply laws in which they are well versed

Civil procedures offer a guideline on how to navigate the legal system

Legal education also deals with clearly well-defined fields in which laws students wish to specialize and indeed become highly knowledgeable and specialized

Going beyond national boundaries lawyers must be familiar with both civil and common law systems and must be prepared to grasp the complexity of the global legal scene

A hybrid system has developed combining international and local laws, civil and common law, public and private law, which is dynamic and continuously evolving resulting in an new kind of law described as “soft” law in contradiction with the classical “hard” law

In a local context lawyers apply the law within a clearly defined institutionalized legal system and are provided the tools to do so including civil procedures, precedents, clear rules for competence and jurisdiction etc.

Whereas on a transnational level lawyers have become an integral part of norm creation providing frameworks for international actors to operate in complex cross border legal relations and transactions and creating rules and codes of conduct that could be applied globally

Legal practice is no longer restricted within national boundaries nor limited to local laws, and local courts although often part of the transnational legal process are no longer the final authority or recourse

Transnational lawyers are now part of a global community of legal practitioners exchanging information in an increasingly globalized legal scene where traditional legal education is no longer valid and oftentimes obsolete

Transnational law firms have appeared combining lawyers in a wide range of social, cultural and legal backgrounds to face the challenges of legal practice on a global scale to cope with fast technological advancements and the continuous expansion of global business conduct beyond geographical borders

Lawyers thus become cosmopolitan “lawmakers”, legal planners, and strategic legal advisors providing advice beyond strict enforceable legal provisions

Finally, Transnational Lawyers are free thinkers conducting their own investigation on multiple interdisciplinary legal challenges concerned with the wide implications of global legal matters that continuously challenge their own classical legal education.

Malek Kallas

Master of Laws – King’s College London