The international work of the English bar is booming whether its in arbitration or fraud work. Catherine Baksi finds out why top barristers are in such demand overseas

Old Filth – ‘Failed in London Try Hong Kong’ – was the moniker given to the fictional international barrister in Jane Gardam’s novel shortlisted for the Orange prize this year. To some, it may appear an anachronism. But there remains a happy breed of barristers who, while they have not failed in London, have diaries that resemble an exotic holiday guide. Instead of Bournemouth, Chelmsford, Maidstone and London, read Fiji, Australia, Singapore and the Caribbean.


The international work of the English bar is growing. Figures from the Commercial Bar Association (COMBAR) reveal that fees for international work from 27 chambers that gave figures amounted to more that £95 million in 2003.


Solicitors and barristers together rake in £2 billion annually in invisible earnings from international work – a figure that has risen by 111% over the last five years.


London-based Atkin Chambers recently became the first barristers’ chambers to receive a Queen’s Award for enterprise, in the international trade category, in recognition of its growth in income from overseas work (see [2005] Gazette, 28 April 6). In 2004, 45% of its work had an international element, with members of chambers working on cases involving 38 different countries.

Predating the recent move to direct access to barristers, the international practice rules permit counsel to receive instructions directly from lawyers, businesses or individuals based outside the UK to carry out work abroad. Overseas clients can instruct English barristers to provide advice, act as expert witnesses, represent them in arbitrations and mediations, or act as mediators or arbitrators. In certain circumstances, they can also represent them in court.


However, barristers have an ethical obligation to act in the best interests of their clients – and that will usually mean involving a solicitor, especially where there are court proceedings.


All members of the bar of England and Wales have rights of audience before the European Court of Justice in Luxembourg and the European Court of Human Rights in Strasbourg. With human rights being a topical issue throughout the European jurisdictions, this is a growing field.


In other jurisdictions, barristers can appear in courts as advocates, subject to the rules of the local legal profession. In jurisdictions such as Australia, Singapore, Hong Kong, Brunei, Bermuda, the Cayman Islands and the Caribbean, they need to obtain temporary admission to argue cases.


The diverse practice of former Bar Council chairman Anthony Scrivener QC demonstrates the range of work carried out abroad. In Hong Kong and Trinidad he is seen as a criminal specialist; in Singapore, Jamaica and the Turks and Caicos Islands, as a civil specialist; while his reputation in the British Virgin Islands is as a libel lawyer.


Overseas advocates are called in for large fraud or corruption cases, especially where politicians are involved, and also for complex civil litigation, particularly in the Caribbean.


Robert Akenhead QC, head of chambers at Atkin Chambers, says: ‘International cases are usually quite big. There is a lot at stake, so parties are prepared to bring in overseas lawyers with specialist expertise.’


Simon Nesbitt, a partner at City firm Lovells who undertakes a lot of international arbitration work, observes: ‘Sometimes the size of the case, the amount of money involved and the complexity of the legal issues are vastly disproportionate to the size of the island and the resources of the local court.’


Colin Nicholls QC, a specialist in commercial crime and extradition at 3 Raymond Buildings, in Gray’s Inn, spent 18 months in Hong Kong on a series of fraud trials that became known as the Carrian cases. He says: ‘The whole thing has become more global – there are many cases involving terrorism and extradition, and global criminal cases.’


But he adds: ‘It is harder to get work in the Far East now, particularly in Hong Kong since it was handed back to the Chinese.’


International arbitration is a growth area for those seeking a practice in warmer climes because of the increase in international trade. Most contracts contain an arbitration clause, as parties prefer not to submit themselves to the jurisdiction of the other side’s courts.


Hot places for arbitration, according to Mr Akenhead, include the countries of the Pacific Rim that were hit by the Asian economic collapse in the late 1990s – Hong Kong, Singapore, Malaysia and China, where large amounts of construction is taking place.


But why instruct the English? Mr Akenhead replies: ‘We tend to be retained on a lot of international work because overseas clients like the English style – they think we are pretty good at getting into the facts.’


Especially in the Commonwealth, the lure of the traditional wig and robes can prove irresistible. Christian Wisskirchen, international relations manager at the Bar Council, says English barristers are highly regarded in many countries overseas and offer surprisingly competitive rates. It can, he says, be cheaper to fly out a top English silk first class and put him up in five-star hotel to do the case, than it is to instruct a local lawyer.


Mr Scrivener adds: ‘It is assumed we have specialist expertise and we are thought to be particularly good at appellate work, though one should never underestimate your opposition or the judge – the lawyers abroad are first class.’


On relations with the locals, Mr Nesbitt says ‘there can be hostility to flash London lawyers, so it is important to involve the local bar’.


John Jarvis QC, a barrister at London-based 3 Verulam Buildings who recently returned from a trusts case in Bermuda, says: ‘It is all extremely friendly. You are usually against another member of the English bar, and instructed by a local attorney with a local junior.’


But Mr Akenhead notes: ‘We are sometimes treated with caution – it is not dissimilar to when London counsel venture up north.’


On life on the worldwide circuit Mr Scrivener, who also did the Carrian trials, admits: ‘We are looked after very well – good hotels, chauffeurs and banquets, but it can be lonely, and you have to be disciplined; it can be easy to put on weight.’ He adds: ‘When you get home, the clerks send you to some far-flung magistrates’ court to bring you back down to earth.’


There are other down sides to the jet-setting lifestyle – getting to court can be even more troublesome than struggling with unreliable trains or the London underground. Mr Nicholls had to endure a RAF flight from Brize Norton in Oxfordshire, followed by a two-and-a-half-day boat trip to attend a hearing on the South Atlantic island of St Helena. And being part heard is that much more frustrating when your court is in Australia and you have to fly back out for one day to finish it off, as Mr Scrivener discovered.


There are other things of which the unsuspecting advocate should be aware, such as unusual ceremonies in which they would be expected to participate. When acting for the government of Fiji in an arbitration, Mr Akenhead met a government minister at his office, where he was handed half a coconut shell containing a fairly potent substance that looked like dishwater.


He recalls: ‘I had to take it with both hands and drink it back while my host clapped his hands slowly. I don’t think it rendered the quality of my advice peculiarly silly.’


So what does the future hold for globe-trotting barristers? Mr Wisskirchen predicts: ‘As the government limits litigation in England and Wales, and the number of claims issued here declines, the bar will increasingly look elsewhere for work and international work is very attractive.’



And watch out solicitors – as foreign clients are allowed direct access to the bar, he foresees reverse patronage becoming more common, with international clients approaching the bar first and asking barristers to advise them on which firm of solicitors to instruct.