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What are the biggest challenges facing international lawyers today?

What role does international law play in addressing global problems? How can international lawyers innovate to provide solutions? How can they learn new approaches from different legal systems? Which fields require greater research and expertise?

With International Law Weekend (ILW) fast approaching, we asked some of our key authors to share their thoughts on this year’s conference theme — Global Problems, Legal Solutions: Challenges for Contemporary International Lawyers.

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“The integration of worldwide financial and commercial markets has occurred at an astonishing speed over the last thirty years. Market participants now routinely lend, borrow, invest, trade, hedge and pledge in jurisdictions other than their own. They expect their lawyers to tag along with them in these global adventures.

“For the lawyers, compulsory cosmopolitanism can be discomforting. It isn’t just that laws and judicial procedures differ from one jurisdiction to another. It is something more subtle. Lawyers trained in different legal systems may approach legal problems, client relations, professional etiquette, ethical questions, legal drafting, and correct professional demeanor in remarkably different ways.

“Most lawyers are oblivious to the depth of their own parochialism until they are forced to transact business abroad. We insensibly absorb in law school and the early years of practice an impression of how lawyers ought to think, talk, and behave. And we all insensibly carry with us those notions about the proper deportment of a lawyer when first we venture into the world of cross-border transactions.

“That is when the trouble can begin. Conduct that may be regarded in one place as demonstrating admirable zeal in the pursuit of a client’s interest may strike observers elsewhere as gratuitously gladiatorial and abrasive. At the opposite extreme, lawyers who adopt a posture of respectful reticence in a business setting risk being perceived by client and counterparty alike as bovinely impassive. Commendable attention to detail in one culture may, in other places, be persnickety pencil-pushing. A finely honed sense of the line between the ‘legal’ and the ‘commercial’ aspects of a transaction, and a lawyer’s refusal ever to trespass across that line, may infuriate clients who expect their lawyers to function as an integral part of a deal team, not act as detached legal advisers whenever a pristinely legal issue has been identified.

“The biggest challenge facing international lawyers is therefore self-awareness; the need to recognize one’s own parochialism in the practice of this profession.”

Lee C. Buchheit, Partner at Cleary Gottlieb Steen & Hamilton LLP, New York, and editor (with Rosa Lastra) of Sovereign Debt Management (OUP 2014), also avaiable on Oxford Legal Research Library

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“Perhaps the biggest challenge for international lawyers today involves the way in which they conceptualize themselves and their field. ‘International lawyers’ are often seen as focusing primarily if not exclusively on inter-state issues, i.e. public international law. However, globalization has triggered a rapid expansion in the need for experts in private international law. In many ways, this field is even more demanding than public international law, since private international lawyers must gain competence in a particular area of private law (such as family law, criminal law, commercial law and/or arbitration law) as well as expertise in comparative law and international law, including matters relating to both private international law (for example, various conventions promulgated by UNCITRAL or the Hague Conference) and public international law (for example, instruments such as the Vienna Convention on the Law of Treaties). The situation is made even more difficult because law schools and faculties often do a poor job of training private international lawyers, although there are a few notable exceptions. Looking forward, one hopes that the legal community will begin to recognize the importance of private international law as a specialized field of study and practice and to support the development of experts in this area of law.”

S.I. Strong, Manley O. Hudson Professor of Law, University of Missouri School of Law, author of Class, Mass, and Collective Arbitration in National and International Law (OUP 2013), also available on Oxford Scholarship Online, and Research and Practice in International Commercial Arbitration: Sources and Strategies (OUP 2009), also available on Oxford Legal Research Library

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“Our age is pluralistic. There is no prospect that one specific understanding of international law and one specific project of internationalism will ever come to dominate the profession again. International lawyers are bound to continue to disagree on the frameworks they use to make sense of international law and the projects they want to realise through international law. Such pluralism is not necessarily a bad thing. With pluralism comes an opportunity to acquire more self-awareness about one’s presuppositions and pre-reflective structures Yet, with pluralism comes a risk of fatigue. Indeed, in a pluralistic age, debates on international law requires each participant to reach out to (and understand) the pre-reflective structures of others. Such debates necessitate that any claim about how we understand international law and what we make of it is situated. Debates on international law are thus more painstaking and laborious. Debates on international law may even come to look like debates held in international relations circles. In this context, the risk is not only that international lawyers get tired of situating their claims and disclose their pre-reflective structures but that they also get bored of debates themselves. This is one of the greatest challenges of the pluralistic age we live in.”

Professor Jean d’Aspremont, Director of the Manchester International Law Centre (MILC), University of Manchester, author of Formalism and the Sources of International Law (OUP 2011), also available on Oxford Scholarship Online, and director of the forthcoming Oxford Database on International Organisations (OXIO)

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“A challenge for lawyers concerned with the UN Security Council is coming to grips with the Council’s impact on the development of international law. The issue has become sharper — and more interesting — in recent years as the Council has: (1) broadened the definition of what constitutes a threat to peace and therefore falls within its purview (such as infectious disease); and (2) expanded its ‘quasi-legislative’ powers to impose obligations on all states for an indefinite period in a broad issue area (such as counter-terrorism). While there is much to be said for a proactive Council filling gaps in international law, especially if in so-doing it is able to prevent crises and atrocities, there is risk of the five permanent members abusing that power by making or interpreting the law in a manner that suits them but not the international community more broadly. Fortunately, some checks on the Council do exist, for example the reputational costs associated with being seen to violate accepted norms. A fascinating challenge for lawyers is how to put teeth in those checks while helping to create the space for the Council to act creatively in addressing global threats — both new and old.”

Ian Johnstone, Professor of International Law at Fletcher School of Law and Diplomacy, Tufts University, and co-author (with Simon Chesterman and David M. Malone) of the forthcoming Second Edition of Law and Practice of the United Nations

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If you’re attending International Law Weekend, don’t forget to stop by the OUP booth to see our collection of international law titles discounted 20%, pick up a postcard for free access to law’s online resources, and browse our collection of law journals. To stay connected throughout the conference, follow us on Twitter @OUPIntLaw and like our Oxford International Law Facebook page.

See you in New York!

Featured image: New York City. CC0 via Pexels.

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