International Law in retrospective and perspective: A personal experience

Master Class given at University of East Anglia (UEA). London, United Kingdom, November 12, 2012.

I started my legal practice over 40 years ago, in May of 1972, whilst attending the 3rd. year of law school, clerking for a law firm in São Paulo, Brazil, doing work in the area of international private law. I had been recruited because of my knowledge of the English language and would attend classes in the mornings and work in the firm in the afternoons. In those days, there were no more than 50 lawyers in the whole of Brazil doing this sort of work.

The world was then divided into the developed countries of the north, the underdeveloped countries of the south and the communist bloc. In 1972, no less than 80% of the global manufactures and exports of manufactured products came from the developed countries of the north. Developing countries were exporting only basic products.

In the United States of America (USA), president Richard Nixon was struggling with fiscal deficits and a troubled economy burdened by the costs of the Vietnam war. In 1971, the USA was forced to denounce the Bretton Woods Agreement and abandon the gold standard, in view of the perceived weakness of the US dollar.

China was then undergoing the trying times of the Cultural Revolution led by Chairman Mao Tse Tung, which not only caused great sufferings to the Chinese people, but prevented the country from having a competitive economy. India, on the other hand, had been independent for approximately 25 years and was reconstructing its economy after the ruinous colonial regime. South Africa was plagued by the vicious and barbaric regime of apartheid, only eliminated in 1994, with democratization. The USSR, under the leadership of Leonid Brejnev, was struggling with missed economic goals and the disappointments of the economy under Nikita Krushev.

Brazil in 1972 was under a right-wing military dictatorship. Not less than 70% of the country’s GNP was represented by the participation of the state sector of the economy. Civil liberties were repressed, democracy had been compromised, but the economy was growing, albeit in a non-sustainable manner.

In this environment, it is hardly surprising that a young international lawyer would basically do work with US clients or, in a smaller scale, with European companies, for which US law and training was also the reference. When I founded my own firm, Noronha Advogados, in 1978, correspondence with clients was done by mail, which took about 7 days to reach New York City and 12 days to reach London.

The profile of the profession changed over the past 40 years overall as a result of the technological developments, but mainly as a result of the extraordinary economic developments that have taken place during such period. In 2012, the emerging economies of the south represent more than 50% of the global economic activity.

The USA will account at the end of 2012 for less than 20% if the global GDP or virtually the same as the BRIC group of countries3. According to the International Monetary Fund (IMF), China’s economy will overtake that of the USA by 2016. Brazil’s economy overtook the British one in 2011 and will surpass Germany’s in the course of the next few years.

China has been Brazil’s main trade partner for 4 consecutive years now and will remain so for many years to come. India’s trade with Brazil is growing and will evolve enormously in the years to come. In 2011, Brazil received some US$ 70 billion in foreign direct investments (fdi) and invested abroad some US$ 28 billion. China received about US$ 110 billion in fdi and invested overseas some US$ 40 billion.

Of course, these economic movements, notably the south-south trade and investment flows alter the nature of legal work. In addition, the new position of emerging countries as investors abroad, not only in other emerging nations but also in the former developed countries, adds to this this tendency.

Accordingly, the profile of legal work and the professional tools it requires has changed dramatically. What is the need for a US law framework reference for a transaction between a Brazilian and a Chinese party? What is the convenience of a choice of European law in a matter dealing with an Indian investment in Brazil or a Chinese investment in Angola?

Furthermore, in the case of disputes, outside the mandatory choices of laws and venues for settlement, there are very efficient alternatives in the emerging countries which offer efficient services for a lesser cost.

With respect to languages, even if English remains the undisputed leader as a means of acting in the field of international law, other tongues have become important such as Mandarin, Brazilian Portuguese, Russian and Spanish, and their respective knowledge will certainly contribute for greater efficiency in the relevant jurisdictions.

Another interesting side feature of the greater internationalization of the economies verified in the past decades, and the resulting more intense movement of people, is the expansion of international law in areas such as communications, Internet, sports, entertainment and family.

One should also note that criminal law has expanded globally in a considerable way, as crime and villains have gone international. International lawyers are not only doing trade, transportation, banking and investments any more. Judges are now required to cooperate more intensively on the international level, together with members of the public prosecution services and of the police forces.

Even public international law that traditionally more somnolent field of practice, often in the past left in the equivocal and prevaricating hands of diplomats, has become somewhat more proactive and practical with the creation of the World Trade Organization (WTO) in 1995.

Thus, we face today a watershed in the area of international law. This is, in my view, a situation resulting from the addition of new international legal references to those traditionally accepted of US and European law. This will require new professional, linguistic and cultural skills for the new lawyers and a consequent review of the current training models.

The use of technology is also changing the legal professions in a dramatic way. Will the judge of the future be a computer? Will the lawyer and the public prosecutor be a combination of constantly upgraded soft wares? Will the legal professional of the future be a computer engineer? What will be his/her nationality: Indian or Chinese? What sort of language will they be using?

In any event, one aspect seems clear to me: major changes will now take less than 40 years to occur. Society must be ready for them.