It takes a while to get over squandering an empire. As our habit of placing the prefix “Great” before “Britain” suggests, we’re still not quite there yet. But deep down we know we blew it. The evidence is everywhere: from our dentists, who don’t really know what they’re doing anymore, to our universities, which are crumbling, just like our schools, hospitals, and public transport.
Somehow, though, the U.K’s legal system has avoided being dragged into this spiral of decline. Yes, we’re still good at law — so good, in fact, that London is the top destination in the world for international companies to settle disputes, and English law the most popular among international in-house counsel (40% use it, with just 14% opting for New York law). And, in spite of the relatively tiny size of the British domestic legal market, our law firms manage to give yours a run for their money, with the Magic Circle quartet of Clifford Chance, Linklaters, Freshfields and A&O outdoing most of their U.S. rivals in terms of turnover and profits.
Doubtless part of this success stems from the fact that Britain is the home of the Common Law, which, unless some joker on Wikipedia is deceiving me, was invented around the 1150s by King Henry II. And as we saw during the April nuptials between Prince William and his bride Kate, our “Ye Olde Ingland” nostalgia sells very nicely to foreigners….
Still, as lovely as our quaint courthouses and bewigged lawyers are, their pull must surely be diluted substantially by the sheer convenience of New York law — which, let’s not forget, is the main legal system of the dominant world power in whose currency virtually all international deals are done. So what gives companies the extra nudge towards using the rules of a decaying island of yellow-toothed people? Now, I’m far from 100% on this, but I think it’s got something to do with the widely held notion of “British fairness”.
We have no idea where foreigners get this from. It can’t be from our imperial days, when we raped and pillaged our way round the world – a tradition our soccer hooligans faithfully continued during the 1970s and 1980s. Nor can it be related to our more recent sorties in Iraq and Afghanistan, or indeed the annual ransacking of Southern Europe by British holidaymakers. But hey ho, if you like to think of us as fair….
The question turns, then, to our ability to sustain this legal dominance. Last week, the British government minister in charge of justice, Ken Clarke, issued a battle cry on the topic, labelling the U.K. as “the world’s lawyer” as he outlined a plan to make the still-closed Indian legal market the next frontier for British firms to expand their reach. “It’ll be the f**king British Raj Mark 2!” Clarke didn’t say, but may have thought to himself, as he claimed to be “almost as much of an enthusiast for English law as I am for English cricket”, before going on to describe the rule of law – which we appropriated from the Greeks — as “one of our greatest exports”.
The battle ground for now, though, is China and East Asia, where U.K. and U.S. law firms are currently fighting it out for dominance. Can we, the plucky underdogs, win? In the short term, you’d have to back us. After all, British firms have been present in Asia for far longer than most of their U.S. counterparts, having been driven by the constraints of the local U.K. market to expand abroad. Certainly, the new U.S. arrivals in Hong Kong, such as Sullivan & Cromwell, Davis Polk and Simpson Thacher, have a lot of catching up to do before they match the likes of Linklaters and Clifford Chance, which have been there over 30 years.
Further down the line, however, we could face problems. Worryingly for us, many of the young dual-qualified Chinese lawyers beloved of the international firms in Asia are choosing U.S. law schools over U.K. ones to get their international qualifications. They seem to be put off by our weird system of legal education, which sees law studied either as an undergraduate degree – meaning students embark on legal study at just 18 – or via a hurried year-long postgraduate conversion course, which lacks the rigour of a three year JD. Another turn-off is the fact that graduates of U.K. law schools complete their studies unqualified to practice, with the title of ‘lawyer’ only conferred at the end of an additional two-year long “training contract” spent with a law firm.
Unsurprisingly, British law schools are seeking to change this, with Nigel Savage, the chief executive of the U.K.’s College of Law, currently lobbying in favour of scrapping the training contract. “The present system could become an impediment to the British legal profession operating in global markets,” he argues. But the concern is that, once again, us Brits may have left it too late.
Alex Aldridge is a London-based journalist specialising in legal affairs. He writes a weekly column for The Guardian and contributes regularly to specialist legal publications. Previously Alex was Associate Editor of Legal Week, having begun his career with The Times. Follow Alex on Twitter @AlexAldridgeUK or email him at [email protected].