Undermining the UK legal system?

The new president of the Law Society, Robert Bourns, has indicated that competitors to English law are taking advantage of Brexit by promoting their legal systems at the expense of ours. No one should be surprised, since this competition predates Brexit.

Action by other legal systems partly arose through extreme irritation among our continental colleagues at our trumpeting of the benefits of the common law over continental systems. The fight began years ago and will probably only intensify now.

This struggle can be seen as a sub-category of the struggle over the supremacy of the City of London as a global financial centre. We should expect many different markets to come under attack in the coming months. And, on the basis that it is good to know how others see you, a look at how continental legal systems contrast their ways with ours is instructive.

In 2011, the German Federal Bar (Bundesrechtsanwaltskammer, or BRAK) published a promotional booklet called Law – Made in Germany.

It contains rankings and statistics to show the efficiency of using German law, and on occasion draws comparisons with the English system, as follows: ‘Not only are contracts under German law more concise, they are also more cost-effective and reliable than contractual agreements under English or US law’, or: ‘In contrast to English law, a contract under German law requires no detailed provisions and definitions on issues such as right of retention, set-off or assignment.

‘Unless the contract expressly stipulates otherwise, the statutory provisions will apply. German contracts of sale are therefore considerably more concise than comparable contracts under English law, saving both parties valuable time and substantial legal fees.’

They did not restrict themselves just to publishing the brochure, but have since then promoted the concept of German law in meetings and conferences around the world – in Russia, China, Vietnam and many other countries.

The French launched a foundation for the promotion of continental law in 2007. It seeks the increased global adoption of Romano-Germanic law, in cooperation with states and international organisations. Founding members include big French companies like Vivendi, Total and Veolia. French government institutions are also heavily represented and the French government gives the foundation money.

Together with the BRAK, it has published another promotional brochure, called Continental law – global, predictable, flexible, cost-effective. This brochure makes comparisons between the two systems. After paragraphs of praise for one of its own chief principles – codification – it comments on its rival: ‘In common law countries, the search for the applicable law often requires consulting a long series of court decisions in order to find an appropriate precedent – if one even exists. Understanding all of these court decisions is often difficult for non-lawyers, who therefore must rely on professional legal advisers. The need for such legal assistance greatly increases the costs for those seeking to enforce their rights.’

Or, ‘contrary to common law countries, the parties do not have to create their own rules for each contract; the contract only needs to stipulate clauses on issues on which the parties wish to exclude or supplement the rules of the Code.’

There is an accompanying map showing – like in the old days of empire – those countries which subscribe to the continental legal system, with vast swaths of the globe (South America, Europe and Asia, chunks of Africa) shown in the civil law colour.

It is not only in the area of legal systems where our continental colleagues will seek to undermine the approach of the UK. Controversial UK policies for regulating the legal profession – alternative business structures, a heightened market approach to regulating lawyers – have heavily influenced the European Commission, partly as a result of UK lobbying. We saw their influence recently in the publication by the Commission of a Consultation on the regulation of professions: proportionality and member states’ national action plans.

The commission is looking at member states’ action plans on regulation of the professions – not just lawyers – and wants comments on whether access to, and exercise of, say, the legal profession is proportionate to legitimate public interest objectives. This is the kind of practice in which the UK used to be the principal cheerleader. Our colleagues on the continent have in the past resisted such an approach, seeing lawyers as a profession based chiefly on serving justice and the rule of law.

UK lawyers often deride their continental colleagues as ‘fuddy-duddy’ and ‘old-fashioned’. The French, Germans and others will doubtless use the sudden killing-off of UK influence – which has already occurred, whenever Brexit finally takes place – to reassert their own values. They may also use Brexit to say: ‘You see where wild market values have taken the UK.’

And we will see where those market values take us.

Jonathan Goldsmith is a consultant and former secretary-general at the Council of Bars and Law Societies of Europe, which represents around a million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs