The conundrum of cross-legal culture

My former lecturer at the Faculty of Law, Universiti Malaya, Dr Alima Joned, was a panelist at the recent webinar, jointly organised by my law faculty alumni, PARFUM, and The Honorable Society of Middle Temple and The Malaysia Middle Temple Alumni Association.

The title of her panel was The Conundrum of Cross-Legal Culture: To be Feared or Embraced?

Dr Alima left Universiti Malaya to practise law in Washington, DC soon after she completed her graduate studies at Yale Law School in 1990. Her practice areas cover general corporate matters, international investment law, and trade regulation.

She advises Malaysian multinational companies on US strategic and legal issues and has handled complex legal and sensitive political issues for public and private sector clients, big and small.

I registered to participate in the webinar because I was curious to hear her perspectives. Unfortunately, I missed the event.

At my request, she sent me her prepared remarks. She told me that as the webinar proceeded, it became clearer to her that the participants were more international and diverse than she had anticipated. 

She decided to adjust the prepared remarks, editing out memories only PARFUM members could appreciate. Because she only had Malaysian examples to explain her points, she had to hurry in telling them. 

She also said she had to temper certain comments in order to make them more appropriate in an international and diverse setting.

I believe Dr Alima’s remarks are right on the mark on all the points she raises.  They tell stories about the globalisation of Malaysian companies, one of which I know so well: Petronas.

I was certainly deep in the story regarding Petronas’ investment in Iran. I was Petronas’ lawyer in-charge of the project and I had to deal with issues of international trade sanctions imposed on Iran and investors in Iran.

But her remarks are much more than that. 

In particular, I found the section regarding “Bubble Living” a fitting metaphor to convey the reality of how most of life is lived. It is a condition where everyone is cocooned in the little world of bubble, often oblivious to the outside world. 

It is my pleasure to share Dr Alima’s remarks during the Middle Temple-Parfum-Tmtaa Webinar held on Sept 24, 2021 — unedited and uncensored.

Dr Alima Joned

Introduction

Thank you PARFUM for asking me to speak at this panel, and for honoring me with your trust that I could bring a Malaysian perspective to the discussion. Indeed, many of you are more qualified than I to do the job.

Needless to say, the views I express here do not represent PARFUM’s; rather, they represent the views of one kampong girl who found herself in an American adventure, an adventure that began over three decades ago.

That kampong girl is still here. 

Tan Sri Shahrizat Jalil, PARFUM’s current president, was my classmate. She was a glamour one in my class. It pleases me to see that she is now an important figure in Umno. I trust she will continue to fight for the rightful place for Wanita and Puteri Umno, the backbone of her party.

Greetings everyone!

Special greetings to my former students; how proud I am to see where you are today. If only I can claim some credit for your successes …

To have your former student appointed the first female Chief Justice of Malaysia, what else could a teacher ask for …

To the Honourable Chief Justice Tun Tengku Maimun, allow me to say how very proud I am. I am also very proud of Malaysia to have her first female Chief Justice.  Even the US has yet to reach this milestone.

As some of you may be aware, I am now back at the law faculty as an adjunct professor. I am back at the law faculty to make amends, to correct my wrongs and to relearn the ropes.

About the topic

You have asked me to speak on cross-legal culture. It is a broad topic even with its subtitle. As a proponent of kebudayaan rojak (multi-culturalism), I will not tell you to fear cross-legal culture.

Most of us attending this webinar are dealing with multi-jurisdictional issues. As such, we benefit from cross-legal culture. Our profession invariably involves complex cross-legal culture issues.

About benefiting from cross-legal culture

Let me explain how I benefit from cross-legal culture. I am a business lawyer, and I advise Malaysian multi-national companies on their overseas investments and on US trade policy.

It has been the focus of my practice the last three decades to handle legal and political issues arising from different legal traditions and cultures.

For example, in the late 90s, I led a team of lawyers to advise Kumpulan Guthrie in its negotiations with the Liberian government at that time. Guthrie wanted to renegotiate a 1954 rubber concession it inherited from British B F Goodrich.

As Guthrie’s lawyers, we expended time and energy to negotiate the terms fairer to Guthrie. Returning to a far-away country without political stability and the respect for the rule of law, Guthrie required a long-term strategy that could mitigate political, legal and commercial risks.

In addition to the thorny commercial and contractual issues, I had to think quickly what to do with the handwritten note handed to me by the then Liberian Finance Minister during one negotiation. The note requested USD2 million as a “tax advance”.

Although amused, I didn’t want to rebuff the minister for fear of jeopardising the deal. All he got was a nice dinner given by my client. Apparently, such a conduct by foreign officials from certain countries was not unusual.

Despite a series of negotiations, no agreement was reached. In 2001, Guthrie officially suspended its Liberian operations due to the resumption of the Liberian civil war. But I was making a living from the failed negotiations.

Also, around this time, Petronas, my other Malaysian client, decided to invest in Iran. Iran was subject to US economic sanctions. One statute would actually sanction non-US companies for their investments in Iran’s energy sector. 

Petronas took the position that as a Malaysian national, the only laws that would govern its activities in Iran would be Malaysian and international laws, aside from Iranian law. I advised Petronas on the implications of this US statute. 

Petronas escaped the sanctions because it strategically partnered with a national of a close ally of the US (a French company) and a national of another superpower (a Russian company).

Ultimately, the decision to waive the imposition of the sanctions on the companies involved was political (rather than legal) on the part of the US Administration. 

As lawyers, sometimes we forget our duty is not only to our clients. We also have a duty to society. Reflecting on these duties, I see many challenges. 

I outline here only two. The first relates to the uneven playing field of the adversarial system, while the second concerns the bubble living of lawyers.

About level playing field and adversarial system

The UK, Malaysia, and the US belong to the common law family. Our judicial systems are adversarial in nature. 

In this system, the parties represent their positions before a judge to determine the truths, and judgment is rendered accordingly. For the system to be fair, the playing field must be level.

In practice, we know that the playing field is rarely level. The field is not level for various reasons.

For example, the playing field is not level because of unequal bargaining powers. One side may have limited financial resources to hire a competent counsel is another example.

In the case of Guthrie’s negotiations with the Liberian government, Guthrie benefited from a team of international lawyers that it was able to afford.  However, this was not the case for the Liberian government. 

In the case of Petronas’ investment in Iran and the US sanctions regime, a Malaysian lawyer may find it strange that the US could regulate the activities of non-US companies in a third-party country. But the sanctions regime is a blunt tool routinely deployed by the US to coerce weaker countries to advance her global agenda.

Because of the complexity of US trade law and policy, it would be difficult for companies from developing countries to comprehend the implications of many of the implementing regulations without expensive legal advice. Further, selective enforcement of these sanctions raises questions regarding the US’ commitment to the rule of law.

Recently, the products of three Malaysian companies were subject to US customs detention orders, technically known as Withholding Detention Orders. These orders were issued based on allegations by certain NGOs that these companies used forced labour in the production of these products. 

According to media reports, one of these companies did not even know the full allegations against it because the complaining NGO only published a summary of its petition to the US customs. 

Any lawyer, Malaysian or American, would wonder if due process, a key component of the US adversarial system, was being complied with in this case.

Relatively new in the global trade game, Malaysian companies can be baffled with the complexity of US trade regulation, about their rights and the legal processes involved. 

They might feel lost as to where to seek advice.  So, they are disadvantaged in many ways.

Indeed, in international trade, the playing field is never level. Fair competition does not exist when superpowers can impose barriers that are less than fair.

About bubble living of lawyers

As lawyers, we are members of a privileged group. We are privileged not because of the wealth we have accumulated or the social standings we have obtained. 

Rather, we are privileged because we know how to find the law and are skilled at making legal analysis and reasoning to advocate for our clients’ positions.

We make a good living in the process. But we also live in a bubble. 

Before my current firm, I practised with a white-shoe international law firm. At this firm, I belonged to a tiny minority group on the accounts of my gender and ethnicity.

Nonetheless, I still lived in a bubble of the privileged class. My former secretary was Filipino and was a doctor in her native country. She was so smart, smarter than some lawyers that I know of. Because by luck I went to an elite law school, I was the lawyer, and she was the secretary. 

I had a comfortable office with a window while she worked in a cubicle shared with others. She was a constant reminder to me that I lived in a bubble of the privileged. This daily reminder and my humble and simple kampong upbringings helped to keep me grounded to always remember my lucky lot.

I am also reminded of my lucky lot, the bubble I live in, through the pro bono work I do. Not long ago, I represented several victims of domestic violence in their petitions for legal immigration statuses in the United States before the US Citizenship and Immigration Services.  

The preparation of the petitions entailed listening to these women’s stories — the families they left behind, the dangerous journeys they undertook to reach the US borders, and the abuses they were subjected to at the hand of their spouses.

These stories, too, helped to remind me of my lucky lot, the life in a bubble I am living.

Further, because we are made up of many elements, race, gender, economic status, we live in many of different bubbles as well. Where I work, I live in a bubble of high-priced lawyers. Where I live, the suburb of Washington, DC, I live in a bubble of American middle class.

When I am in Malaysia for a home visit, I am in a bubble of Malaysian middle-class.

Indeed, we live in many bubbles. But for the most part, we live in comfortable bubbles. So comfortable that we are in our place that we may forget people who live elsewhere. As lawyers, we become close to the struggles and hardships of the less fortunate. 

After three decades in Washington, I came to know the biggest and most powerful bubble: the bubble of US policy and decision-makers. In their quest to promote democracy and freedom, two American ideals, these policy and decision makers often overlook the cultural and practical challenges that exist elsewhere. 

The failure of the American policy in Afghanistan is the latest example. The US’ respect for international law, if it exists at all, is hard to understand. In the area of international trade, it is difficult to see a level playing field.

Conclusion

You asked me to speak on the conundrum of cross-legal culture. Specifically, you asked whether cross-legal culture should be feared or embraced. As explained at the beginning, my legal field invariably involves cross-legal culture.

But again, as lawyers, our duty is not only to our clients. We have a duty to society and to the world at large. There are many challenges confronting us as we strive to meet them. I have outlined only two.

How do we meet these challenges? Perhaps, we should enlighten ourselves on fields other than law. Appreciation of literature, philosophy, politics and economics, for example, could better prepare us at advising our clients in an increasing complex world.

We would then have some credibility to advise them not only what is permissible but also what is desirable. We are, after all, modern lawyers who are in-step with the new era.

One American judge suggested the breadth of this vision in the following words:

“The modern lawyer almost invariably advises his client upon not only what is permissible but also what is desirable. And it is in the public interest that the lawyer should regard himself as more than predictor of legal consequences. His duty to society as well as to his client involves many relevant social, economic, political and philosophical considerations.”

With the foregoing quote, I leave you to reflect further on the challenges of cross-legal culture. Thank you.