Solicitors have been one of the beneficiaries and promoters of globalisation in legal services. It is not a success that could reasonably have been predicted back in the 1960s. I suppose that its causes lie in multiple factors, including: the removal of the cap on the number of partners in a law firm; the rise to dominance of the English language; and the structure of the solicitors’ profession, which is not specifically tied to court work but includes non-contentious matters (and in particular commercial transactions).
The outstanding success of the large English law firms abroad might blind us to the fact that globalisation poses overwhelming challenges to us as individuals and nations. For instance, our regulatory bodies – and this is not a criticism of them – are unable to deal with the problems alone, because many of them lie outside their governing reach. The regulation of multi-jurisdictional law firms is no longer a matter of one bar alone, since it gives rise to deciding which ethical rules will govern a cross-border transaction. My organisation, the Council of Bars and Law Societies of Europe, CCBE, has a code of conduct which our members must adopt to regulate cross-border practice in Europe.
The International Bar Association has its own International Principles on Conduct for the Legal Profession, which are not binding. The American Bar Association has recently been struggling with the notion of alternative business structures which might stray into their territory, where ABSs are not allowed. And that doesn’t begin to take account of the problems arising through the use of electronic media – how to regulate government access to lawyers’ data stored via cloud computing on everyday electronic devices, or how to regulate virtual law firms.
As with regulatory bodies, so with European nations. I wrote last week about the internet giants whom the EU finds it difficult to control. This set me to thinking about other challenges now facing the UK. Too many of them can be solved only by collective effort, or, as with those bankers’ bonuses which took up headlines last week, by a global solution. Let me list them (apart from new IT developments and financial services, already touched on): dealing with the economic giants like the US and China, climate change, energy security, money laundering, terrorism, trade liberalisation, free competition - the list goes on. The European nation state is outflanked by problems which it cannot solve alone.
The question is: when global challenges face us, is it better at least to find a regional solution, and use the power of the region to come (hopefully) more quickly and easily to a satisfactory global solution; or is it better to say ‘well, with no global solution on the table, then I will retreat to my nation state without any solution at all’? Of course, my wording of the dilemma shows which I prefer, with particular reference to the UK government and bankers’ bonuses. But I have a serious point as well. Indeed I have a big idea, which I am thinking of selling at a high price to the EU as its new slogan, as follows.
It is no news to say that the EU is currently adrift and losing both meaning and support because it lacks a persuasive narrative to persuade citizens to support it into the future. There have been previous periods where the narrative worked to bind us together. First, we had the post-war need for reconciliation, and the collective political and economic effort to recover from war (second world war phase). Next, we had to win, and then recover from, the cold war and its outcome (cold war phase). Now, we are in the third phase, which seems to me to be the era of the global problems that I have described above (globalisation phase). No nation state in Europe is able to flourish any longer on its own.
In the UK, the only pro-EU argument seems to be support for the single market, which is of course of great benefit to us. But it is largely achieved, and on its own has lost its persuasive power after so many years of implementation. We need a new and future story. Although one is staring us in the face, no one is telling it in an articulate and compelling way. We see it as lawyers through the challenges faced by our national regulatory bodies, and we see it as citizens and European nations through the global challenges I have listed.
The EU should look away from the second world war, away from the cold war, away from the single market. It should describe the world as it currently is – full of challenges which do not respect national borders and which can only be resolved collectively. It should then explain to us how it can assist with speedier and more effective resolutions on our behalf. The new EU slogan: ‘Coping with the global for you.’
Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs