Legal competitiveness

by Jean-Marc Baïssus,

CEO, Fondation pour le droit continental

The campaign launched recently on the basis of the « law made in Germany » brochure (www.lawmadeingermany.de) is energetically being prosecuted to impress upon German and foreign entrepreneurs the importance of a legal component to business strategies. Several dozen information meetings have already taken place in many countries, which demonstrate a growing awareness of this reality amongst decision-makers. In France, Mr Prada, the former head of the financial services supervision entity, has been entrusted jointly by the ministries of finance and justice with a mission to report on the legal competitiveness of Paris. Next to an appraisal of the specific issue of arbitration, the mission brief focuses on the place legal issues take in business policies, as expressed by the implication granted to legal professionals. An increasing number of initiatives worldwide thus confirm the linkage between economic growth and the impact of legal services.

There was however nothing self-evident in this new notion of legal competitiveness. Two reasons may explain this situation, which are largely cultural in nature. Deep respect for law, in the formal sense of the word, tends to equate it with the best rule available at a point in time, as it is by nature the democratic expression of the people’s will as well as the norm that supersedes any other. It therefore simply should be instrumentalized by a competition with any other rule, be it national or foreign. The historical repugnance to mix up commercial considerations with justice is another dominant characteristic amongst our legal professions. The clear refusal to make a commodity out of law and justice permeates their everyday practice. It is quite apparent that any change of approach in this respect is dictated by the influence of common law customs, which seem far less under the influence of such scruples.

Such a change is nevertheless doomed if it is restricted to the simple imitation of what is done elsewhere. Copying illustrates a clear lack of imagination and competence. Quite to the contrary, efficiency lies in accepting to be challenged to change without reneging on core values. For our legal systems, this amounts to accept the fact of legal competition through the promotion of their specific performance with those who choose the rules applicable, be they public administrations or businesses. For instance, this is the reason why our Foundation is currently working to illustrate the legal competitiveness of continental law through the drawing up a world index based on the notion of legal certainty. Contrary to the old saw of the « flexibility » of a given set of rules, which all too often barely conceals legal instability and brute force, a quest for legal certainty is the adequate answer to the need for trust to feed the development of economic exchanges and therefore growth.