KEO International Consultants
Author: Vikki Rogers, Director of the Institute of International Commercial Law & Adjunct Professor of Law, Pace Law School, Founder, Trade Logics, LLC
Consider an analogy between law school and military boot camp. Both take civilians, break them down and re-build them into literal or figurative agents of prevention, management and dispute resolution. The analogy appears to fit, but are we really building the best legal soldiers to meet the challenges of today's marketplace?
By Vikki Rogers, Director of the Institute of International Commercial Law & Adjunct Professor of Law, Pace Law School, Founder, Trade Logics, LLC
Most law schools have perfected a model in which 21st century law students are broken-down and re-built into 20th century lawyers. As these new practitioners march into the marketplace to serve their clients, a gap forms between their training and the needs of the global marketplace.
…and the gap is widening For years, lawyers have built bridges, or performed high jumps over the gaps between legal training and market realities. But, as international trade increases, technology infuses into business practice, and as global commercial relationships and responsibilities become more complex, the gap widens. Indeed, this suggests that the legal profession needs re-engineering to prevent it from hitting the bottom1.
One of the most striking gaps is the lack of modern technologies in the teaching and practice of law. While most of the commercial world has incorporated technology into their operations, the legal community has largely side-stepped modernization. The global marketplace encourages innovation, research and development, and entrepreneurship. And yet, the legal community has perpetuated a culture of 20th century methods.
Shortly after the introduction of the internet, scholars postulated on the inevitable and exciting potential for the incorporation of technology into law2. Today, although scholars acknowledge that the legal community has been on the verge of a technological revolution for 30 years, it cannot be guaranteed to ever come to fruition3 – at least not through traditional channels.
Challenges to closing the gap
A current project on online dispute resolution at the United Nations Commission for International Trade Law (UNCITRAL) perfectly illustrates emerging trends towards creating resolution systems that operate outside the traditional legal service models. Yet, at the same time, this demonstrates the tension between traditional legal methods and more progressive approaches.
Factoring in technology
One of UNCITRAL's projects is to create a legal framework to support the resolution of claims that arise in low-value cross-border e-commerce transactions4. For example, a consumer or small business buys a product overseas directly from an online seller and the goods are damaged on receipt (or never received at all). The parties cannot resolve the dispute, and short of filing a claim in a foreign court, the buyer is left with no practical redress options.
UNCITRAL's objective is to create a practical redress option for this type of dispute. The online marketplace environment is the catalyst that has forced delegates at UNCITRAL to factor technology into possible options.
Technology apparently voted down in favor of tradition
On the face of it, the project could start a new legal paradigm for regulating cross-border commerce. When deliberations began, delegates appeared to agree that technology could support the creation of some sort of “virtual courthouse” and provide enough “structural support” that lawyers would be optional to the process.
Unfortunately, the innovative thinking stopped at this point. An approach designed to perpetuate traditional legal dispute resolution mechanisms seems to be taking the lead, overriding any possible solutions that might more appropriately mirror and provide for the needs of an online marketplace.
Binding arbitration leads to costly, archaic solutions
Specifically, the online dispute resolution rules in the current proposal do provide for an automated negotiations phase, which is indeed promising and relatively innovative. However, a very traditional online binding arbitration process follows at the heels of this. It's like an expedited business-to-business arbitration that leads back to a non-practical outcome for buyers and sellers.
For example, as an American, if I receive an online arbitration award against a foreign vendor for $50 and the vendor opts not to honor the decision; my only enforcement option is to have a local court in the vendor's country enforce the award under an international treaty. So a project that was otherwise intended to remove courthouses from their brick and mortar shackles, has ultimately full-circled back to traditional 20th century legal roots – at the expense of the consumer and to the potential benefit of the lawyer.
…and the gap widens again!
The state delegates at the UNCITRAL meetings (essentially all lawyers) are advocating their respective positions in the name of consumer protection. Yet, regardless of the swords and shields they use, the gap between law and the marketplace they serve is only being widened.
Online commercial disputes are probably the most obvious and appropriate way to lead a discussion on innovative possibilities for the fusion of law and technology.
So what went astray? In part, it seemed at the outset of the UNCITRAL process lawyers desired the relationship between law and technology to grow, but ultimately, it appears they lacked sufficient understanding and training on the “online” options available. Plus, marketplace experts were largely absent from discussion, which would have otherwise given them the confidence to take a new approach. So, they reverted to traditional approaches.
Indeed, this niche project illustrates one of the current challenges for the legal community, i.e. the lack of law and technology subjects and methods being incorporated into a lawyer's initial training in law schools and ongoing training in the workplace. Without such training, we cannot reasonably expect the legal community to react most appropriately to marketplace needs.
So, where do we go from here?
In other words, how do we retool LOGICS into legal training? The legal profession needs a paradigm shift. By leveraging technology into law – now virtually absent in modern legal practice – legal practitioners would more closely align with the other business groups in a company.
One of the many changes should be the holistic inclusion of technology into the teaching of law – both in law school5 and post-Juris Doctor (JD). “Holistic” means law students should be required to take classes on law practice technology6 (including the idea of legal development labs)7. Students should know how to use technology in the specific marketplace they intend to serve.
Equally important, training institutions should use technology to deliver training on substantive legal topics. Because law-schools – with few exceptions -- are large bureaucratic institutions with inability to rapidly innovate, the post-JD training community needs to largely lead the implementation of a new approach.
A new approach to post-JD training…
In the field of international commercial contracting, a legal team's function is not isolated from other parties in a commercial contracting process. Law is but one factor considered in the formula for commercial success and lawyers must be integrated members of business organizations.
Lawyers, as well as others that have a finger on legal aspects of international commercial contracting, must re-evaluate the means by which they are acquiring the skills and knowledge to take on their management tasks to ensure success. Online platforms that harness global thinking from various perspectives on international contracting are the new approaches.
For example, IACCM has created an effective online certification program that transfers a Contracting Body of Knowledge, appropriate for new lawyers to bridge the gap between traditional law school training and marketplace realities.
Another example: Trade Logics provides online training in international commercial contracting and dispute resolution via a combination of synchronous and asynchronous learning modalities, i.e. taped and live interactive online sessions.
The online environment enables the delivery of substantive content in an asynchronous format, so knowledge can be transferred to users in their own time and at their own pace. As a means to ensure that users don't engage in passive learning and understanding, knowledge is “applied” in a live synchronous online classroom environment. These interactive classrooms offer one of the most interesting and promising environments for online training.
Interactive classrooms offer many advantages
First, in choosing an instructor, training institutions are no longer limited by geographical constraints and can harness thought leaders and subject matter experts from across the world to join their training platforms. Participants have the unique opportunity of gaining access to these instructors for several weeks – not just typing questions or comments, but rather engaging in live audio and visual discussions.
Second, the programs are open to lawyers, as well as others involved in the contracting process, including contracts managers, advisors and consultants. Accordingly, participants gain an advantage in learning from multiple perspectives in the room, providing lawyers with insight into their colleagues' roles and goals in the contracting process.
Third, regional bias is eliminated Because these platforms are open to the global community -- which might even be defined as a global community amongst departments and offices in one company -- participants are not confined to regional understanding and participation.
Fourth, global networking opportunities expand Because the online live training is not limited to a single class, but a training experience over several weeks with interactive exercises, participants become familiar with one another and increase their global network.
Finally, training platforms link with latest technologies The training platform becomes in and of itself, an educational tool as it familiarizes lawyers with mainstream technologies used for global communications. Collectively, by effectively leveraging technology, benefits are derived from multiple directions.
So, the analogy fits…with the right training
Clearly, incorporating technology is part of an evolutionary solution. First, market conditions are forcing the legal community to modernize their legal practice and understand the 21st century commercial contracting needs and concerns. Second, online post-JD training programs in international commercial contracting -- among other topics -- offer a promising path forward for the legal community. Such programs serve as a model or start point for the fundamental changes that must occur within the legal profession.
ABOUT THE AUTHOR
Vikki Rogers is the Director of the Institute of International Commercial Law (IICL) at Pace Law School and Founder of Trade Logics, LLC. Her areas of expertise include online dispute resolution (ODR), international commercial arbitration and international sales law. She has published widely in these subject areas and is regularly invited to speak on such topics. She also consults on the development of online dispute resolution processes for domestic and cross-border disputes, particularly for electronic and mobile commerce. She represents the IICL as an NGO observer in Working Group II and III at UNCITRAL, and is also an expert advisor at UNCITRAL for Working Group III on ODR. She is responsible for maintaining the award-winning online CISG Database and is an Editor of the UNCITRAL CISG Digest. She also developed and manages the Pace online Certificate Program on International Commercial Law and International Alternative Dispute Resolution.
ABOUT TRADE LOGICS
Trade Logics is an Accredited Training Partner of IACCM. Trade Logics programs are intended to supplement the underlying IACCM Contracting Body of Knowledge for those that need a more in-depth understanding of legal considerations and their negotiation. Refer also to the The Advisory Board of Trade Logics.
Today's best training fuses the latest technology and know-how. By leveraging technology, Trade Logics empowers you to gain access to leading global experts in international commercial law and dispute resolution, knowledge and skills to improve your work performance and enhance professional opportunities and a network of similarly situated program participants across industries and countries.
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