This follows on from a very successful mission to Brazil in which a team of barristers from those at the junior end to some very senior members of the Bar excelled in their presentations in Sao Paulo, Rio de Janeiro and Recife. The main substance of the talks we gave was Magna Carta and its legacy, mediation, international arbitration, extradition procedures and the worldwide effect of the UK Bribery Act and the US Foreign Corrupt Practices Act. Together, these pieces of legislation expose companies, wherever they are in the world, to the possibility of swingeing penalties. In addition, they would be ruled out of any public procurement project. Law is becoming increasingly applicable across borders, and the Acts to which I have just referred easily catch companies with even an apparently transient or marginal connection with the UK or USA. It was a real eye-opener for some of the Brazilian lawyers to realise how far reaching were the scope of these Acts.
Brazil is intensely litigious. There is one piece of litigation per head of the population, which currently stands at 202.8 million. To add to the sheer difficulty of dealing with that number of law suits, the right of appeal is automatic. Although this sounds like heaven for lawyers, there are, of course, real problems that arise from this state of affairs. The courts are utterly overwhelmed. One lawyer told me of a case that was just celebrating its 32nd birthday, which makes Jarndyce v Jarndyce seem like summary justice. One of the results is that those in power have been able to act with impunity. There really is no effective remedy through the courts for wrongdoing and corruption is rife. The country is reeling from the Petrobras scandal. Fifty-four people are being investigated for their alleged part in taking kickbacks in return for contracts with the company. They include a former President of the country and speakers of both Houses of Parliament. To add to all this misery, six directors of major construction companies have been indicted for allegedly channelling kickbacks into a Petrobras scheme to pay politicians. No wonder the Brazilian audiences found our presentations so relevant.
On the positive side, the Brazilian Parliament has just passed a Clean Company Act. In addition, to try and beat the backlog in civil cases, they have introduced a new civil code with much more emphasis on mediation as an alternative to court action.
I turn to our journey to Kazakhstan. The very fact that we are going at all has attracted some criticism in the light of the human rights record of that country. In selecting Kazakhstan as a place to take a Bar Council mission, the Bar Council’s International Committee was fully aware of the human rights record of Kazakhstan. The decision to go was carefully weighed. It can sometimes be a fine balance as to whether a visit to a country is likely to be justified. Clearly in a country with a well-developed and functioning democratic process and in which the rule of law is both heavily embedded and adhered to, there is no question of refusing to make a visit. On the other hand, the decision not to attend the St Petersburg International Legal Forum was very easy. The event publicity boasts that it was set up by the Government of the Russian Federation and is supported by the President. In the light of political events in the Crimea and the Ukraine generally, it is obvious that we should not be party to any such forum. We have therefore, as in past years, declined to be part of this event. By contrast, we will be co-organising and attending English Law Week in Moscow. That has no public money put into it and is organised in conjunction with the local Bar. We think it is essential to be there in order to promote England and Wales as an international dispute resolution capital and also to support our colleagues at the Russian Bar.
Against that background, the decision was taken to make the visit to Kazakhstan. A significant part of the visit will involve presentations on rule of law issues and we will be encouraging the development of an independent Bar which, at present, is in a nascent form.
Finally, I should like to record my thanks and admiration for those barristers who have shown such a commitment to the development of their practices internationally by going on these missions at their own expense. They bring foreign exchange into the UK and their expertise is regarded very highly worldwide. It adds lustre to the reputation of England and Wales wherever they practise.
You may ask what there is in it for anyone to be involved these missions unless they already have an established international practice. But, as I have said, there is, for example, an obvious market for barristers from our jurisdiction to give advice to foreign companies with branches in the UK on employment law and the way in which to operate so as to obviate the risks of falling foul of the Bribery Act – and indeed in other fields of practice.
I appreciate, as a publicly funded practitioner, the difficulties of finding the money to go on such ventures. But experience suggests that you only need one brief or set of instructions from a mission to make the whole thing worthwhile financially. It will not suit everyone and not all will either want, or feel able, to participate. However, with things as they are in the UK, it is surely worth thinking seriously about whether an international event is one in which you might participate.
If you are interested, the members of the International Committee will be only too pleased to talk to you about the possibilities. In addition, Christian Wisskirchen, who is Head of International Policy, is delighted to discuss forthcoming events and how you might get the best out of them.
Alistair MacDonald QC, Chairman of the Bar