Article by Judd Epstein
Professor Patrick Glenn has written a stimulating article on the increased and novel use to which the legal profession now puts comparative law. In his view, this legal practice involves both purely national transactions and transnational relations. Professor Glenn's conception of the topic of comparative law and legal practice explains how practitioners are now creating comparative law and expanding “the comparative method.” An area that was exclusively the province of specialist academics has been transformed and is now made and used by legal practitioners daily. Undoubtedly, foreign law has become prominent even in the practices of lawyers who view their area of competence as generally restricted to local affairs. A century of comparative law study at universities, combined with this study's effect upon legislators and courts, has profoundly altered legal practice. The ease with which practitioners can electronically retrieve the laws of the world and the classification work by comparativists have meant that practitioners can and do go beyond the narrow range of law they previously considered their stock and trade. As the everyday use of this foreign, regional, harmonized local and universal law finds its way into negotiations, contracts, dispute resolution, and court judgments, practitioners profoundly alter the substantive and procedural law. Whether this is creating comparative law or merely applying it is perhaps beyond the point. Professor Glenn and I both agree that state-ordained private law is declining in importance and nonstate interests may assert their own law more frequently. This creates the opportunity for the application of comparative law in an unprecedented number of instances.
The deliberately provocative title, “On Removing the Borders,” is one that is worthy of consideration by a comparativist. However, the death knell for national law is premature. National law and the national law of others remain prime concerns for the practitioner. For some two decades, the information technology industry has facilitated our passage into the era of paperless litigation, but most jurisdictions remain paper bound. So too, perhaps it is still early to seriously talk of legal practice in a borderless society, even at the start of the new millennium. No doubt capital and e-commerce already ignore national boundaries, but the mainstays of practice are based upon national law.
It is perhaps perilous for a full-time academic to speculate on the changing uses of comparative law in legal practice. Thus, my remarks are principally confined to developments in international commercial arbitration and in international commercial mediation, two areas of practice in which I indulge.
Professor Glenn speaks of legal practice and comparative law principally in terms of choice-of-law questions and conflict-of-law avoidance in contract jurisdiction clauses and for cross-border litigation. No meaningful issue can be taken with his analysis of the shifting practice of private international law and of nonstate law. Professor Glenn's perception that state-ordained law is yielding to individuals choosing the law of their preference is undoubtedly correct and likely to increase. Not only are individuals tailoring contracts to their own needs, but they may also minimize the role law plays (whether their own choice of law or the states') in favor of emphasizing their interests, concerns, and need for ongoing relationships.
The comparative proceduralist envisages a central role for foreign and comparative law in practice, in drafting contracts, and in order to facilitate dispute resolution. Just about every international commercial contract has among its negotiated clauses a designated controlling law and a dispute resolution clause. This commentary will expand upon Professor Glenn's invitation to review the use of comparative law in international commercial arbitration and in the rapidly developing field of international commercial mediation. In transnational commercial law practice, the practitioner often will be involved in drafting an arbitration or Alternative Dispute Resolution (ADR) clause. Should the contractual performance begin to unravel, the practitioner may well be involved in negotiation, arbitration, or mediation.
About the Author
Judd Epstein. Director, Monash Alternative Resolution of Conflict Faculty of Law, Monash University, Melbourne, Australia.
Citation
75 Tul. L. Rev. 913 (2001)