Case 1 – Summary (Theory & Case) and Discussion Questions

by: Akhir Syabani (0806350902), Siti Farida (0906529501),

Sri Enda A.S. (0806352076), Stephani Debora (0806318561)

Nature of Law, Why Law Should & Shouldn’t Be Universal

As its very nature, law basically is rules—things that determines how we should behave
and interact with other people in society. By formal definition from Merriam-Webster, law is a
binding custom or practice of a community: a rule of conduct or action prescribed or formally
recognized as binding or enforced by a controlling authority1. In practice, law can be both universal
and particular regarding which country it stands for. Therefore, it is logical to see law in two points
of view; why it should and shouldn’t be different among countries.

Law is supposed to be about universal principles: rules that apply without prejudice to a
broad category of human beings, regardless of sex, culture or economic status2. Fundamentally,
human beings have similar instincts, senses, morality, intelligence, etc. then they should get same
frameworks of how to conduct things right. In fact, there’s international law—agreement among
different countries around the world, a bridge that synchronizes different interests in the same line
of understanding. It proves that all of us have willingness and tendency to harmonize the world. In
the other hand, the existence of international law also shows that there are many versions of law
created in various parts of the world. The law differences are coming from historical, cultural,
political, and religious reasons. The rule of law, the role of lawyers, the burden of proof, the right to
judicial review and the laws themselves differ from country to country, make each of them has its
own parameter.

Globalization and Law

Law and globalization have reciprocal relations; they can affect each other equally.
Globalization makes everything seems borderless, but law can somehow affect it in unfavorable
ways by making hindrances to the spread of globalization. For instance, domestic legal
environment has ability to direct the flow of global business. A country may impose sanctions,
embargo, extraterritoriality against commerce with another country, or nationalization to foreign
firms. These actions will curtail both countries to go global.

However, globalization forces every country to be more open-minded because (1) the
actions of people, corporations and organizations in one country can have a dramatic effect on
people outside the country, (2) powerful states make decisions that affect not only their own
people, but people in other states, (3) territorial boundaries become more permeable, allowing

1
http://www.merriam-webster.com/dictionary/law?show=0&t=1283404947
2
http://www.economist.com/node/16693882
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people to cross them for work, and (4) the common welfare of humans depends on problems
(environmental degradation) and opportunities (potential resources on the moon or in the ocean)
that fall across state boundaries3. Hence, it leads to the needs of global law. This is why, in the
contrary to the first point of the paragraph above, globalization also affects the national legal
environment.

“Law Liberalization”: How India Deals With It

Legal profession, such as lawyers, and its clients, does go global. Lawyers can now be
globe-trotters, mainly because cross-border commerce. For examples, New York is fairly
accessible to anybody with the brains and a green card to practices English-style common law as
long as they fulfill the requirements and qualifications. In China and Brazil, foreign firms are
allowed to offer advice on international law, but they’re prohibited to provide legal representation in
local courts. South Korea has promised to open up its legal market to European Union under Free
Trade Agreement later this year 2010, while Singapore has been more foreign-friendly since 1998.
Legal practitioners now become more ‘liberalized’—this is the underlying point that Indian legal
practitioners seems to avoid, as stated by Lalit Bashin (Head of the Society of Indian Law Firms)
who accuses British government and profession of ‘trying to emasculate the Indian Legal
Community” by pressing a “one-point agenda” of liberalization. It may be understood as the fear of
loosing job opportunity for local legal practitioners.

In the other hand, by restricting foreign lawyers, India may lose the chance of getting world
class legal advice. Stuart Popham (from Clifford Chance, a London firm) argues that opening legal
environment to foreigners doesn’t take anyone’s job, and India should’ve flied clients to meet
lawyers elsewhere to restrict supply and competition and raise prices, not by striking against
liberalization. Until today, technically it still takes time for an institution based in Anglophone world
to be acculturated in Asia or Latin America. Administrative barriers can go up and down, as well as
the cultural ones.

General Opinion upon India’s Case

Many people in the legal forum consider India’s actions as the proper reactions to the force
of “Law Liberalization”. India still needs time to modernize the Indian legal market; it needs to
improve the domestic first. Even though India has similar system as Commonwealth country, it still
has unique characteristics that may be better understood by the local practitioners. Opening the
legal market is seen as threat and India has to figure out how to prepare their local practitioners to
compete in this global challenge because globalization will keep urging them. They can’t protect
their legal market forever as they’ve already greatly participated in the global market, especially in
providing human resources for outsourcing. (*)

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http://clg.portalxm.com/library/keytext.cfm?keytext_id=40
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References:

• Griffin, Ricky W. & Michael W. Pustay. 2010. International Business: 6th Ed. Upper
Saddle River, NJ: Pearson Education, Inc.

• http://clg.portalxm.com/library/keytext.cfm?keytext_id=40

• http://www.iilj.org/GAL/documents/THEGLOBALIZATIONOFLAW.pdf

• http://www.economist.com/node/16693882

• http://www.merriam-webster.com/dictionary/law?show=0&t=1283404947

Discussion Questions – Case 1

1. Does this kind of restriction only prevail in Indian legal profession?

2. How the force of the view upon BRIC as emerging markets will effect the globalization of
law?

3. What preparations should be done for a country to totally open up its legal profession
market? Is it necessary? Or we still need any form of restriction?

4. What is the main burden for non-Anglophone countries to open up its legal profession
market?

5. What is the true motivation for those Anglophone countries to persuade other countries for
opening their legal profession market? How urgent it is actually? If the motive is economy,
we already know that most of Anglophone countries have already gripped on world
markets, so why do they do this?

6. From the case given, it focuses on Commonwealth countries in legal practices. Then, what
it has to do with non-Commonwealth countries, like Indonesia—which is historically
influenced by the legal system of the Netherlands? Any differences?

7. If we open up our legal profession markets, is there any possibility that it will give favorable
influence in decreasing the negative practices that already exists, such as bribery of
judges? Can it trigger our local legal practices to improve professionalism?