We cannot be ‘Australian lawyers alone’ anymore

We cannot be ‘Australian lawyers alone’ anymore

18 October 2021 By Jerome Doraisamy
Donald Robertson

Given the shift in the balance of alliances in the “Pacific Century”, a shift in mindset is needed to better reflect the world in which lawyers are practising, said one partner.

All legal issues, Dentons partner Donald Robertson said, are global in nature.

The world is full of global value chains, and Australia is “deeply intertwined” in both a legal and geopolitical sense, he submitted. As such, he posited, “we need to look beyond the traditional sources of law (we must see the English legal system as only one of many that guide our thinking)”.

“We have to work out how global issues are challenging us. That means we need to be more aware of the global regulatory regimes in international treaties and other international instruments,” he argued.

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“The biggest challenge for lawyers today is to change our own mindset about what sort of world we live in. We can no longer afford to think of ourselves as ‘Australian lawyers’ alone.”

The comments follow Mr Robertson’s recent outline of the legal issues surrounding AUKUS, the new trilateral security and defence pact between Australia, the United Kingdom, and the United States. Last year, Mr Robertson spoke with Lawyers Weekly about how Australian lawyers could and should react if then-presidential nominee Joe Biden decided to rejoin the Trans-Pacific Partnership.

Major shifts in geopolitical alliances

In conversation with Lawyers Weekly, Mr Robertson said that the “Westphalian model of independent nation-states looking after their own interests” is transformed into one where we have a community of interests.

We are a world of alliances, both global and regional,” he said.

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“AUKUS is just the culmination of a radical shift to see the Pacific (more accurately, the Indo-Pacific) as the focus of the world’s attention. These alliances are not just geopolitical alliances. They are commercial (think of the alphabet of RCEP, CPTPP, PACER-Plus, and the thousands of BITs and IIAs – all trade or investment protection agreements, but ones which are ‘deep’ in that they seek also to develop a sound legal infrastructure for a mixed market economy); they are legal (think of the various Hague Conference and UN instruments on private international law over the last 10-15 years – on choice of court agreements, on choice of law, including ‘rules of law’ or soft law, on the global enforcement of settlement agreements, culminating in the 2019 Judgments Convention that will put in place a global method for enforcement of court judgments); and, of course, geopolitical (the revival of the Quad security alliance between the US, Japan, India, and Australia, and most recently AUKUS itself).”

Just as importantly, Mr Robertson went on, we are seeing the relevance of previous and perhaps forgotten international treaties impacting our traditional sectors.

“For example, deep seabed mining is about to finally start, with countries in the Pacific being some of the leaders in the area. China is vitally interested in deep seabed resources, but so too are the smaller Pacific nations, with Nauru conducting at this very moment a major environmental impact assessment in the Pacific Clarion-Clipperton Fracture Zone prior to obtaining a licence to exploit seabed resources,” he outlined.

“Likewise, carbon capture and storage (CCS) projects are starting on both the land and the sea. The regulation of these projects at national and international level is largely unarticulated, but both require an understanding of the Law of the Sea, whose foundation is a 1982 treaty (UNCLOS). UNCLOS was agreed at the same time as the UN was promoting the New International Economic Order.

“UNCLOS itself, whilst recognising territorial rights and obligations, is based on the economic idea of a ‘commons’, with the rights to the deep sea (the ‘Area’) being a part of the common heritage of mankind.”

How to work out how to responsibly exploit those resources for the benefit of all humanity, Mr Robertson reflected, is one of the biggest regulatory challenges going forward.

Much of this commercial activity is driven by the economic, political, and scientific necessity of reducing our carbon footprint – which, he said, is the issue of the day.

“Scientific studies (such as the Princeton study Net-Zero America) show that there is no feasible pathway to net-zero carbon emissions by mid-century without carbon capture as an essential element of that strategy,” Mr Robertson detailed.

“As Australia and other nations head to Glasgow to debate climate change, lawyers need to see that the outcome of that debate can lead to significant new areas of work. That work will include infrastructure deals, the many issues dealing with the world’s oceans and other matters.”

Subsequent legal questions

Such alliances are “transforming how we do law”, Mr Robertson deduced, and are far removed from any notion that globalisation is in retreat.

Even the concept of law, he said, is changing.

“Many were taught that, with few exceptions, national laws applied to commercial transactions. Now, general principles of international law apply in all sorts of ways, including in commercial transactions. The dividing line between public and private international law is blurred to the point of extinction,” he suggested.

“We are reminded by the recent lamented death of John Ruggie (the author of the 2011 UN Principles of Business and Human Rights) that the obligations of commercial players include that of caring for those who cannot care for themselves, so the old debate in economics about whether corporations have responsibilities beyond making profits is now decided.”

So, Mr Robertson mused, the issue of the moral integrity of supply chains “now need to take into account the obligations that arise in national laws and international instruments”.

“Modern slavery laws build upon international conventions, which also now appear in national form.”

Moving forward

Looking ahead, Mr Robertson said that there is a “major re-education process needed” by external and internal counsel as to the importance to their commercial activities of these new areas and sources of law.

“We all need to call upon a broader range of experience and expertise,” he opined.

“It is exciting to learn new areas of law, especially one that is based on economic and historical principles that support a view of the world as one that requires cooperation (through alliances) in order to achieve the best possible result for all. Conversely, the results of failure in this project can be calamitous in both economic and political terms.”

Legal work has already evolved, and the opportunities are appearing and will become even more obvious as the years pass,” Mr Robertson concluded.

“But to take advantage of those opportunities requires a legal practice with a global mindset and the willingness ourselves to collaborate with our global partners and friends.”

We cannot be ‘Australian lawyers alone’ anymore
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