The practice of law and iel

I always had a certain idea of what the legal profession is and such idea and passion has been magnified ever since I started focusing on international economic law.

Every lawyer worth the name sees the legal profession - and indubitably himself - in light of Thomas More's characterization in A Man for All Seasons, Al Pacino's idealistic lawyer in ... And Justice For All, or Jeremy Northam's brilliant and sedate barrister in The Winslow Boy. There has or always is that picture kept in every one of us of justifying our membership in the profession by doing what the profession was designed to do, which is - as succinctly put in The Winslow Boy: that right be done. Usually that concept of right is identified with helping the poor, the downtrodden, the helpless. Thus, Northam's character’s plea near the end of The Winslow Boy has always brought a special resonance through the years and serves as a call to most lawyers: "you shall not side with the great against the powerless."

Indeed. That is why it is almost heartbreaking to see the state of the legal practice in recent times. Although to say "in recent times" may be carrying it too far. For one could always say or think that the present state of the legal profession is but an extension of the practice as it has accumulated through the years. Not to discuss the practice in terms of the corruption that everybody talks about, publicly abhorred but oftentimes privately encouraged. One only needs to look at the state of intellectual mastery and discipline exhibited by a number of lawyers (and law students) today.

Lawyering now seems to be relegated to a matter of flashiness, presentation, of glibness and marketability. Of blackberries and laptops, of designer suits and fashionable parties. Gone seemingly are the days when the law has been described "as a lonely passion", of the rumpled solitary individual buried beneath his files and his books. At least in the olden days, despite the corruption that even then has been complained of, eloquence and purpose was apparent. Today, even that has gone. I have had students who could talk your ears off in highly voluble and fashionably phrased social conversations but who could not create, in speech or in writing, a decently coherent, in style and substance, piece of argumentation. These lawyers could talk to you of shoes by Manolo Blahnik, the latest trends in pop psychology, their takes on deconstruction by Derida but could not - in class or in practice - summon the appropriate craftsmanship necessary to defend their clients' interest in court that would be upheld if were left in the light of day.

One reason perhaps is that our society is so generously forgiving and becoming more and more so to the point of unreasonableness. Personal flaws, weaknesses, and failures are readily understood and accepted. While such may be good for the benefit of the individual concerned, they do not redound to the good of society as a whole and the future of our country. The need to better oneself is not there, goaded undoubtedly by the lack of its demand.

Which leads me to think of this field that I utterly love and that is international economic law. I could go on and on, talking of its intellectual depth and breadth, its purity, elegance, and sophistication, combining as it does an understanding of private domestic law, public international law, economics, government, and diplomacy. At the least.

But this incredibly beautiful field is also demanding and, more to the point, unforgiving. It does not suffer fools well. If you do not work, study, think in the level required then your country suffers. Not merely an individual client or corporation but the country. Simple as that. One only has to talk to our coconut or rice farmers and unemployed factory or garments workers. Furthermore, unlike in local jurisdictions, where allegations of “friendly” judges or courts go around, international economic law is a field that generally wouldn’t suffer such charges and wouldn’t work with such shortcuts.

It is for all these reasons that I love the field. It is lawyering as it was meant to be. Incidentally, international trade itself, by its very nature, would require one to be systematic, cold, detached, patient, strategic in thinking, and highly rational. It also requires strong and effective institutional structures, where decision making is based on a formal and set process, where institutional memory (a must) is developed and kept, and where accountability is clearly identified. Lack of accountability in our government officers is wrong and encourages sloppy thinking. Our recent experience in a trade treaty is a demonstration of that.

In any event, IEL is a beautiful field of law that, done properly and given enough time, could contribute immensely to making this country what it should be: competitive, prosperous, and meritocratic.


Dispute and the odds

. . . is the topic of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld. Excerpts:

"Thus, it would be interesting to see what inputs game theory could provide on the probable outcome of the said cases. This is because, while normally one would think that the moment a dispute comes before a panel then chances are 50-50 for either party. This apparently is not so, according to the 2002 findings of Andrew Guzman of the University of California, Berkeley, in his paper 'The Political Economy of Litigation and Settlement at the WTO.' He found that complainant countries (or countries that complain against other countries’ trade barriers) in WTO disputes have almost a 90% chance of winning. These findings were corroborated in A Theory of WTO Adjudication by Juscelino Colares of Syracuse University, which made use of empirical analysis of WTO adjudication from 1995 through 2007, revealing again a high disparity between complainant and respondent countries’ success rates: Complainants do win 90% of the time. This rather unfortunate statistic is obviously well above the 'win rate' of any domestic legal system (or any other international dispute system for that matter).

Which perhaps underlines another important thing: international trade disputes are really no places for domestic industries involved to engage in flaky thinking or grandstanding."


Trade policy and the trade rep

. . . is the topic of my Trade Tripper column in this Friday-Saturday issue of BusinessWorld. Excerpts:

"Anyway, with regard to trade policy, Section 6.a of the consolidated Senate Bill (similar to Section 5.a of SB 252) states that the RPTR shall 'formulate the Philippine trade position.' This, I believe, places a rather profound burden on the RPTR. Even though certain bureaus or offices from different government departments or agencies may be carved out to serve in the RPTR, still, it must be said, that (particularly in the early years) such departments or agencies will retain a considerable advantage in terms of expertise, resources, experience, and network. Furthermore, contrary to the claims that the nature of the trade system requires placing entirely in the RPTR the policymaking function, it is precisely the multi-disciplinary and complex nature of trade policy itself that justifies the need to have the different departments and agencies of the government providing input in the development of trade policy.

No practical reason exists as to why the TRM process under EO 230 (s. 1987) should not continue to exist in formulating trade policy, which it must be remembered is merely a subset of overall economic policy. The danger of 'policy capture' by certain narrow sectors is also minimized as the theoretical risk of only having one office to "pressure" by unscrupulous parties, if any, when formulating policy is not present."


One deadly place

. . . is the topic of my latest Trade Tripper column in this Friday-Saturday issue of BusinessWorld. Excerpt:

"I’m talking about Midsomer, an English county that apparently has around 20 murders a year, with the past decade seeing a total of more than 200 murders, all premeditated. This does not include the assortment of accidental deaths and suicides. This is amazing when you consider that New York averages eight murders a year for every 100,000 individuals. To give an even better idea of the murder rate of Midsomer county, one published account noted that the likelihood of being murdered in London is .007% (per 100,000 people) whereas Midsomer is a shocking 27.4%. To paraphrase a line from Lock, Stock, and Two Smoking Barrels, it’s like Bosnia on a bad day. The body count is simply staggering — for a place that is not a war zone, it racked up three kills a week for the past 12 years. "



This is an interesting article and discusses the point (of which I agree with) that the concept of self-determination is rather more limited than what people believe and definitely does not support a secessionist agenda:

"In the contemporary times nationalistic/secessionist self-determination is discouraged and every State with minority population offers a procedural remedy from internal self-determination perspective to maintain its territorial integrity. It is significant to mention though procedural remedy to peoples claim to self-determination is not always the answer, what worked for Hong Kong was not a solution for Kosovo."


Win rates at the WTO

Came across this interesting piece of information: complainant countries (or countries that complain against other countries’ trade barriers) in the WTO has almost a 90% chance of winning its case. This statistic is obviously well above the “win rate” of any domestic legal system (or any other international dispute system for that matter (see Political Economy of Litigation and Settlement at the WTO by Andrew Guzman of Berkeley). Simon Lester of World Trade Law came with a more exact figure 88.14% win rate for those complainants reaching WTO panel or Appellate Body levels (click here).

These findings were corroborated in "A Theory of WTO Adjudication: From Empirical Analysis to Biased Rule Development," by Juscelino Colares of the Syracuse University - College of Law, which made use of empirical analysis of WTO adjudication from 1995 through 2007, still revealing a high disparity between Complainant and Respondent success rates: Complainants win roughly ninety percent of the disputes. This statistic is obviously well above the “win rate” of any domestic legal system (or any other international dispute system for that matter). Greenwald (JIEL, 2003, 113-124) also notes that: “Countries that complain about other countries’ trade barriers have a ‘win rate’ of between 80-90 percent before WTO panels and the Appellate Body (and nearly 100 percent in cases challenging anti-dumping, countervailing and safeguard measures) . . . The complainant has won all but one of the anti-dumping, countervailing duty, safeguard measure challenges.”

Compare that statistic with the Philippine win rate: 0%. We were complainants (not counting third party complaints) in four cases. We lost in the big case (really big case, still discussed in trade law courses) of dessicated coconuts. Nothing came about with the US prohibition on shrimp case. And the Australians are still cheerily waiting if we are up to proceeding on two cases we filed way back in 2002: on fruits and vegetables, and pineapples. We are the complainants in the currently ongoing Thai cigarettes II, as well as a possible respondent against the EC for our excise taxes on certain alcoholic beverages.


Searching for a competition law

. . . is the topic of my latest Trade Tripper column in this Friday-Saturday issue of BusinessWorld. Excerpts:

"It is probably a logical progression from the fact that since imports are down then concern must be made with regard to the state of competition within the Philippines. Senate Bill 3197 (Competition Act of 2009) seems to be doing just that and the momentum with which the bill is being propelled over the past few months is a testament to its authors’ concern over the competitive environment existing within the Philippines. This article is no way intended to be a detailed analysis of the bill but rather seeks to merely point out some areas of interest that could perhaps lead to further discussion on the matter.

Section 3 of SB 3197 interestingly describes the enforceability of the intended law to be "within the territory of the Republic of the Philippines and shall apply to all areas of trade, industry and commercial economic activity. It shall likewise be applicable to international trade having substantial effects in the Republic of the Philippines including those that result from acts done outside the Republic of the Philippines." The fact that jurisdiction is had over offenses committed within the Philippines is par for the course — territoriality being a long accepted jurisdictional premise within Philippine law. However, the latter portion of Section 3 is fascinating, flirting as it does with the probability of jurisdiction being extended by reason of either the protective principle or the passive personality principle of jurisdiction (the former being embodied, as an exception within our body of criminal law and jurisprudence, in Article 2 of the Revised Penal Code). It could also be indicative of Philippine acceptance of the emerging "effects doctrine" (more like that of objective territoriality doctrine), which is being increasingly employed by the US (e.g., the Helms-Burton and Sarbox laws, as well as the strange case of US vs. Alvarez-Machain)."


Books to read

Looked good to the FT, looks good for me: the books I must have:

> The Idea of Justice: In this intricate, endlessly thought-provoking book, Amartya Sen brings the full force of his formidable mind and his moral sense to show how specific questions – of chronic malnourishment, ill-health, demographic gender imbalance – must be analysed in terms of justice.

> The Case for God: What Religion Really Means: WB Yeats wrote that our ideas about God are all “trash and tinsel”, like a tawdry wedding dress hiding the truth that lies beneath. Karen Armstrong, one of our best living writers on religion, agrees. But in her latest book, The Case for God, she argues that there was a time when people understood God better.

> Lords of Finance: 1929, The Great Depression – and the Bankers Who Broke the World By Liaquat Ahamed: A former World Bank economist, Ahamed revisits the great crash of 1929 and details how the work of revered central bankers led to disaster. A salutary warning from the past about the unexpected consequences of policy mistakes at the highest level. Historical but topical.

> Animal Spirits: How Human Psychology Drives the Economy, and Why It Matters For Global Capitalism
By George Akerlof and Robert Shiller: Behavioural economics, once regarded with deep suspicion, is winning more advocates. Akerlof is a Nobel laureate while Shiller teaches at Yale. Its title echoes Keynes, while its analysis forces readers to consider how irrational human behaviour impinges on neat economic models.

> False Economy: A Surprising Economic History of the World By Alan Beattie: The FT’s world trade editor reveals why some economies flourish while others fail, even when they appear to be equally blessed with natural resources and opportunities to prosper. A commentary on the often mysterious world of global economic mega-trends.

> The Spirit Level: Why More Equal Societies Almost Always Do Better By Richard Wilkinson and Kate Pickett: Two distinguished academics explain how consumerism and gross income inequality can harm general well-being. And this inequality seems to be bad news for rich and poor alike. The alternative? Collaboration and greater human kindness. A well-timed and exhaustively researched attack on the “greed is good” ethos.

> God is Back: How the Global Revival of Faith is Changing the World By John Micklethwait and Adrian Wooldridge: In their latest book, the Economist’s editor-in-chief and US editors seek to address liberal incomprehension of the religious beliefs that animate hundreds of millions of people. Their focus is on Christianity with an American accent and its harnessing of modernity.

and, finally, of course:

> How to Drink By Victoria Moore: You might think drinking is one thing we do know how to do but Moore’s thesis is that drinking has suffered in comparison to eating. An unsnobbish and eclectic but knowledgeable series of tips on what to drink, when and with what.