LAWYERS SHOULD lobby for greater cooperation between foreign jurisdictions to reduce legal transaction costs associated with doing business overseas, said Chief Justice of New South Wales James Spigelman
“[W]ith respect to cooperation relating to the administration of civil justice, the perspective of national sovereignty continues to dominate. Accordingly, significant progress to reduce the legal transaction costs involved in international commerce and investment has been difficult. Compared to what has been achieved in reducing other barriers to trade and investment over recent decades, the changes in non-tariff barriers associated with the dispute resolution process have been modest,” he told the biennial LAWASIA conference in Hong Kong earlier this month.
Last year Spigelman raised the same point at the 16th Inter-Pacific Bar Association conference, arguing that it was time the costs and uncertainties of international litigation were acknowledged as a barrier to trade or investment.
He told the LAWASIA conference that these issues could be pursued at the multilateral level in discussions at the World Trade Organization, by the implementation and expansion of the Hague Conventions or in the deliberations of organisations such as UNCITRAL, UNIDROIT or INSOL.
It was up to lawyers, he argued, to ensure the issue was placed on the agenda.
“Legal transaction costs can be reduced. That, however, will only occur if members of the legal profession act to ensure that reforms directed at reducing such costs and uncertainties are actively pursued in the course of governmental negotiations which are concerned with the reduction of barriers to trade and investment,” Spigelman said.
Like domestic commercial litigation, international commercial litigation requires minimal delay and expense to be effective. Uncertainty in these areas results in commercial timidity, higher insurance premiums, and frozen capital, he said.
“Much civil litigation is about dividing a pie. The effect of delay in commercial litigation is that the pie to be divided is smaller. I have no doubt that in any jurisdiction, reduction in delays involving commercial litigation would liberate significant amounts of dead capital for deployment in the economy,” he said.