Simmonds, Ralph --- "Globalisation & law reform: a preliminary view of cooperation through technology" [2000] ALRCRefJl 5; (2000) 76 Australian Law Reform Commission Reform Journal 25

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Reform Issue 76 Autumn 2000

This article appeared on pages 25 - 28 & 100 of the original journal.

Globalisation & Law Reform: A Preliminary View of Cooperation Through Technology

By Professor Ralph Simmonds*

Globalisation is one of those pervasive and diffuse phenomena that are hard to define. Globalisation is widely discussed, particularly in its economic aspects, and particularly when those aspects are perceived to cause domestic difficulty, such as that seen to be caused by international trade arrangements.

A striking illustration was the street protests at the Seattle international trade talks in late 1999. But globalisation goes beyond this to include associated matters such as ‘the trend to a global culture’. This trend is often seen in movies from Hollywood, and more benignly in international television broadcasts, such as the one of more than 24 hours, to bring live, some of the world’s celebrations of 2000. There is also growing international travel and, of course, now the Internet.

How might something so much a part of modern life but so little a purely domestic matter be related to the work of law reformers? They deal with matters of a domestic nature. They live on their ‘ability to craft recommendations which are practical and susceptible to ready implementation’.¹ Globalisation, as opposed to particular aspects of it, would not be something for such recommendations, it would seem.

But globalisation is very much something of concern to law reformers. To show this it is essential to begin, as this paper does, with a definition of globalisation. One is offered that represents an attempt to do justice to globalisation’s richness and significance.

Then this paper explores how globalisation might be related to law reform, first by considering globalisation as itself a topic for law reform. The difficulty of such a treatment leads this paper to suggest a more useful way of thinking about globalisation and law reform. This paper’s suggestion is that globalisation’s significance for law reformers lies in its great potential to aid their work, particularly through the imaginative use of the information technologies that are so important a part of globalisation. This of course is the theme that lies at the heart of the Perth conference,² for which this paper is meant as an introduction.

What is globalisation?

Globalisation describes the set of phenomena that involve people world-wide in a more immediate experience of communities other than their own, particularly ones far removed geographically from their own. This is the increasing realisation of Marshall McLuhan’s idea of the global village.³

These experiences are not only economic but also political, cultural and social. These other experiences may be part of projections of and responses to economic power, of course. An example is when foreign investors bring with them their ways of regulating workplace, investor, customer and supplier relations, and those foreign investors have to grapple with the local ways of doing things.

The experiences may be less clearly economic, however, as in the ubiquitous CNN snapshots of world events, or in cultural exports, such as Disney cartoons that loop back in forms such as the Pokémon craze from Japan. And there is the huge impact of international travel, including much that is ancillary to global economic activity, travel that is itself a global industry (in the form of tourism), and travel in less benign forms, most sadly that represented by massive refugee movements.

The relationship to law reform

How does globalisation relate to law reform? At first, a relationship is hard to see. Globalisation seems to transcend the local detail that is the ordinary stuff of law reform activity. Of course, globalisation is capable of being part of the wider environment in which local detail is set. In that way, globalisation is relevant to the extent it produces issues on which to concentrate law reform activity. But globalisation as it has been defined here seems to be something far too large for law reform itself to address.

Thus, the Internet may throw up new issues for defamation law reform, going to how (for example) to make proper provision for corrective disclosure ordered as a remedy for defamation through the net. But, as attempts to control Internet pornography have seemed to show, the Internet itself seems to be something law reform cannot easily address. And globalisation, while importantly about the Internet, goes well beyond it, into international exchanges at the economic, political, cultural and social levels, through other international media, such as television and transportation.

Further reflection suggests that globalisation as a topic for law reform would require devising new models for law reform activity, different from the work of bodies like state law reform commissions or the Australian Law Reform Commission. Such models exist now, in the work of international organisations that serve as centres for the production of proposals for new international law, particularly new international commercial law, such as new treaties on such aspects of international trade as the sale of goods or security for debt.⁴ An overarching organisation is represented by the body with which a number of these specialist ones are affiliated, the United Nations.⁵

However, it is not easy to see these existing organisations, including the UN, tackling globalisation itself, as something to be promoted, regulated or channelled, through new (international) law. Altogether apart from the difficulties in making and enforcing international law, globalisation seems too diffuse, too pervasive, to be amenable to law reform, at least as that is normally thought of. This is not to say that globalisation itself is beyond the reach of law. Rather, it is hard to see globalisation as a topic that law reformers could address in ‘practical’ ways that are ‘susceptible to ready implementation’.

But there are other ways of thinking about globalisation and law reform.

Getting to foreign sources

Recall the earlier definition of globalisation, as more immediate experiences of other communities. This readily suggests law reform agencies drawing on those experiences as lessons, models or other input into their work.

_{There is a long tradition of drawing on foreign law in law reform, typified in Australian agencies studying New Zealand, Canadian, UK and US law. These studies have in many cases been prompted by suggestions obtained from correspondence with overseas law reform} agencies, of the sort, ‘have you looked at this sort of problem yourselves?’.

Australian agencies have (if less often) gone even further afield than this, however, beyond countries with Australia’s common law tradition and Australia’s sort of law reform agency. Thus, in the Law Reform Commission of Western Australia’s recent review of the systems of civil and criminal justice in that state, studies were commissioned of the models of inquisitorial civil and criminal process from Europe.⁶ Globalisation, through the provision of information on the web and the possibilities for checking that information through e-mail contact with legal experts abroad, makes access to the most recent law and legally useful material much easier than when law reform commissions depended on books in libraries. Such globalisation makes it much easier to do such tasks as the checks of the references to foreign law in commissions’ draft reports, to see that those references are up-to-date. Previously the commissions had to be content with the most recent published sources available to them in local libraries.

^{But globalisation represents more for law reform agencies than a gigantic new legal archive in real time. Globalisation dramatically enhances the possibilities for drawing on the resource that foreign experts represent. That resource is more than one for checking that the law reform agency has the latest version of a foreign law of interest to it. The Internet permits the law reform agency to contract with foreign legal experts to produce material as quickly as local experts can produce material about local law. The Internet also permits those foreign legal experts to respond rapidly to the agency’s comments on their material.}

^{It must be admitted that there are no examples of Australian law reform agencies using foreign legal experts in this way that spring readily to mind. Australian law reform agencies seem to continue to value forms of local access to their consultants which has them draw the line at using ones from other Australian states. But it is not obvious, once a foreign legal expert can be identified who can understand the perspective from which the local agency will be viewing the foreign law in question, why the line must be drawn there. There are examples in academic collaboration across borders that are strongly encouraging.7 And other manifestations of globalisation, particularly international travel and} social exchange, make identifying such foreign legal experts for the purposes of local law reform much more likely. Of course it must first occur to the agency that foreign law might be of significant interest locally. But this is a matter of enhanced local awareness of foreign law that globalisation should be contributing to in any event.

All of this promises more confident (because it is both more sophisticated and more informed) resort to less familiar foreign law sources. But there is more to the promise of globalisation than this.

Input into work in progress

There is another variation on the theme of globalisation as widening the human resources for law reform work. This variation goes to the cooperation that globalisation through the Internet and other technologies can foster. This variation includes but goes beyond cooperation between law reform agencies themselves.

_{The experience of the Law Reform Commission of Western Australia (LRCWA) in its recently completed review of the criminal and civil justice system of the state may be instructive. Given the breadth of the project, and the popular interest it seemed likely to engender, the LRCWA sought forms of outreach to the community going well beyond its previous efforts in other projects. This took the form of ‘Have Your Say’ public meetings throughout WA. But it also took the form of a new web presence, at which the LRCWA mounted papers prepared for the project. Virtual visitors could readily respond through the use of the e-mail links put in place there. The LRCWA also arranged a live television broadcast to take the Commissioners to parts of the state not reached by the public meetings. Viewers could respond to the broadcast in real time, so that on-air interaction with the Commissioners could occur.}

_{It has to be admitted that response to the television broadcast was hard to gauge, with no phone calls coming in, although this does not say much about how many people saw the} broadcast. But the new web-site proved highly successful, with visits rising rapidly, from less than 200 a month before the redesign to a peak of 9,000 in the months leading up to the release of the final report of the review of the criminal and civil justice system,8 and a total of 70,000 during the 16 months between release of the issues paper for the review and that report.

This only scratches the surface of the possibilities, however. Many law reform agencies now publish consultation papers on the web to allow for comment through the e-mail links they provide.⁹ In suitable cases, with due allowance for privacy concerns and other sensitivities, it should be possible for the agency to go beyond this, to sponsor an on-line discussion forum, one which would not only pose questions, but also show responses. As law reform projects have significance across national boundaries, international participation, of the sort the Internet so readily accommodates, may be of value.¹⁰

As a way of augmenting the range of participation in law reform work in progress, there is much promise in this, of giving enhanced public ownership of law reform activity as well as providing new forms of input. The emphasis on augmentation, not substitution, is important, however. For some projects (particularly technical ones?), there may not be sufficient promise of this sort to warrant the agency’s investment in the set-up, and administration of a forum, let alone the digestion of its product. And supplement the forum can only be: ready access to the web, as well as ease in its use, even in the developed economies, is still limited. The more traditional forms of input are likely to remain at least as important overall, for the immediate future. The LRCWA’s experience was that that the enhanced accessibility of its consultation papers was much appreciated; but the preferred method of responding to those papers was the written submission, by paper mail or fax.

Promises of globalisation

Globalisation is about attitudes and generalised awareness more than it is about specific technologies. Undoubtedly, however, those attitudes and that awareness have come about from the technologies that have defined the modern era. These range from high-speed international travel through international television broadcasts, to live international data exchange on a massively widespread basis that continues to grow.

Law reform agencies are products of the modern era. They have traditionally cooperated through the available technologies, first international air mail and now predominantly e-mail. Globalisation promises to broaden their horizons, stimulating the agencies to take account of foreign law on a greater scale than before because of the enhanced local awareness of such law that globalisation promises to bring.

Globalisation promises more than this, however. It promises new ways for law reform agencies to follow up on foreign law, through the sophisticated and timely use of foreign legal experts.

But even more than this, globalisation promises law reform agencies new ways of stimulating and recording community input, including foreign community input. This is a matter of considerable importance. Not only must law reform agencies be able to produce recommendations that are ‘practical and susceptible to ready implementation’, but those agencies are also defined by the characteristic of ‘operating fully in the public domain’.¹¹ The new technologies are a vital part of the new public domain. And that domain is very much global.

* Professor Ralph Simmonds is a Member of the Law Reform Commission of Western Australia. He is also Dean and Professor of Law, School of Law, Murdoch University, Perth, Western Australia

Endnotes

1. D Weisbrot ‘Comment’ 75 Reform 1, 68.

2. The Australasian Law Reform Agencies Conference (ALRAC) Globalisation and law reform: cooperation through technology Perth 30 March - 1 April 2000.

3. See M McLuhan and BR Powers The global village: transformations in world life and media in the 21st century (1989).

4. See for example, the work of Unidroit, the International Institute for the Unification of Private Law at <http://www.unidroit.org/> .

5. See for example, Uncitral, the United Nations Commission on International Trade Law at <http://www.uncitral.org/> .

6. See the LRCWA papers Advantages and Disadvantages of the Adversarial System in Civil Proceedings and Advantages and Disadvantages of the Adversarial System in Criminal Proceedings, available at <http://www.wa.gov.au/lrc/condrafts/condraftsindex.htm> .

7. For a recent example, where the co-authors knew one another well, but where the product was jointly written for the most part from their respective locations in Canada, the United Kingdom and Australia, see M Bridge, R Macdonald, R Simmonds and C Walsh, ‘Formalism, Functionalism and Understanding the Law of Secured Transactions’ (1999) 44 McGill Law Journal 568, available at <http://journal.law.mcgill.ca/en/index1.htm> .

8. See the graph in the LRCWA’s Annual report 1998-1999 at 5, available at <http://www.wa.gov.au/lrc/Annual%20Report/arparti.pdf> .

9. A particularly elegant example, which clearly allows for international participation, is for the Law Commission of Canada’s project on the complex, sensitive and socially significant topic of Institutional Child Abuse. See <http://www.cdc.gc.ca/en/forum/ica/index.html#participate> . This does not seem to allow for the sort of discussion forum the following text suggests, however.

10. See the Canadian project in the previous note.

11. D Weisbrot ‘Comment’ 75 Reform 1, 68.