For the aspiring Asia focused lawyer
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For the aspiring Asia focused lawyer

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Just some random thoughts espoused during Asian comparative law course some years ago...

Just some random thoughts espoused during Asian comparative law course some years ago...

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    For the aspiring Asia focused lawyer For the aspiring Asia focused lawyer Document Transcript

    • ALEX’S MODEL PART 1My model makes one inherent assumption: that our aspiring Asia literate lawyer is anAustralian (he/she does not need to be your stereotypical footy and cricket watchingmate, or shazza for that matter if the stereotype even exists since we’re so diverseespecially in metropolitan areas nowadays!) resident who has limited knowledge orexposure to the Asian region and cultures.Firstly, it is crucial for this person to come to the table with an open mind. It is alwayseasier to subscribe to familiarity, instead of being able to appreciate and understandsomething completely and utterly foreign. As elaborated upon further in the model, Asiais full of surprises owing to its immense diversity, ranging from the fascinating to thedownright macabre. Therefore, remaining objective and critical far from one’s comfortzone will demand patience as well as an accepting and respectful attitude. Without thismindset, it may prove difficult to overcome the initial culture shock and barriers to asteep learning curve necessary to engage with Asia will be remain to break down.The gist of my model is essentially similar to that of Alexandra Rose. However, I wouldlike to emphasize the importance of appreciating culture when learning any language, beit Asian or otherwise. Personally, I feel that it is impossible to divorce language from itsculture. It is only through a deep understanding of culture (and this will take up muchtime and effort to ‘immerse’ oneself in another’s culture) would one successfully masterits language. This is because it is culture that provides background context required topave the way for more effective communication. This is especially important for theAsian literate lawyer since legal issues are often complex, intertwined with localphenomena and couched in traditions. Mere direct word-to-word translation would begrossly inadequate in these circumstances.
    • ALEX’S MODEL PART 2RATIONALE FOR BECOMING ASIA LITERATEAsia is becoming a force to be reckoned with in economic terms and this is evidenced bythe recent Shanghai stock market hiccup that sent shock waves and panic throughout theglobe – such is China’s (and to a lesser extent, the rest of the Asian Region) influence inthis day and age. As such, it is important to seize the opportunity to, in crude terms, ‘cashin’ on Asia’s rapid economic growth at present which is still forecasted to rise in the nearfuture.Australia has much to offer to developing Asian countries and even more to benefit toreap from them. For instance, Australia is blessed with natural resources such as coal anduranium that can be harnessed to feed our power hungry Asian neighbours as theyindustrialize, although the ethical and environmental merits of such a scheme must bequestioned. On the flip side, we also have tremendous human resources in variousspecialist areas to export to the Asian region as they grapple with, for example,environmental issues caused by the use of our coal! Although other advanced Westernnations will emerge as Australia’s leading competitors, we have a significant edge due toour close geographical proximity to Asia, as well as a local population in which largeminority groups have ethnic and cultural ties to Asia. These migrants can help tofacilitate and enhance the quality of our interactions with Asian nation-states.Since we have identified the economic importance – and there are others, such as mutualcooperation for increased security and political stability within the region – of Asia, howdo lawyers come into the picture? Asia literate lawyers are important because they act asthe conduit or gateway, in a sense, to understanding Asian law. The primary role of theselawyers will be to ‘decipher’ Asian legal culture and incorporate or fuse or modify settledcommon law principles in an attempt to find some common ground or provide a sense oflegal security to clients on both sides of a transaction. Other functions of Asian literatelawyers may be to provide insight and commentary into Asian legal practices and legalsystems such that foreign investors are better informed as they engage with the region. Inany case, it can be seen that being Asia literate, as well as being a good black letterlawyer, is a skill that Australian lawyers should aspire to develop.
    • ALEX’S MODEL PART 3LITERACYApplying Bigg’s taxonomy of knowledge, true mastery of a certain subject matter willonly come with functioning knowledge. Therefore, functioning knowledge of Asian lawcan be acquired by ‘walking around in the shoes of Asians’ as explained by Leon Wolff.Alternatively, one could follow Vervoon’s methodology for generating knowledge, i.e.‘bridge-building’ and ‘constructing rafts’. The articles by Wolff and Vervoondemonstrate that there is no stead fast rule to developing Asian cultural literacy and that itcan be developed using various methods. However, I feel that Australian lawyers inparticular should guard against complacency and imperialist attitudes because from myexperience in Malaysia, many expatriates have a tendency to cluster together in ‘elite’communities without seizing the opportunity to make the most of their time in the regionby at least attempting to integrate with the locals. To this end, I also recall reading aboutan American in Jakarta shortly after the bombing of JW Marriot Jakarta who felt verysafe, and rightly so, despite the high alert for terrorist activity because he spoke thelanguage and mingled freely with its people which led to him assimilating over time.PERCEPTIONS OF ASIAFrom the readings, I am inclined to agree more with authors who have observed thatWesterners have a tendency to homogenize and dominate Asia instead of thoseperpetuating relativistic views. Taking Asian women for example, I strongly believe thatthe way in which the media (largely controlled by the West) portrays Asian women assubservient, mystical, petite creatures is tailored to the way in Western men homogenizeand dominate Asian women. I would coin this as the ‘Geisha effect’, following the film‘Memoirs of Geisha’ where the leading actress had exotic oriental features, piercing blueeyes and a svelte personality. Other recent Hollywood films – note: ‘Crouching Tiger &Hidden Dragon, Charlie’s Angels, Kill Bill have also played to this stereotype. In truth,Asian women are just as diverse as their Western counterparts. As Roches and Edwardspoints out, Asia has had its fair share of female head of states or political icons, such asMegawati Sukarnoputeri, Gloria Arroyo, Aung San Suu Kyi and Imelda Marcos. Thisobviously stands in stark contrast with the widely held erroneous perception that Asianwomen are domestic, obedient and subservient to male fantasies whatever they may be.Domination of culture may have been brought upon by the latent superiority Westernersfeel. These are the after effects of colonialism when Westerners were in an advantageous
    • position of power as imperial masters. Due to the colonial history between East and West,one cannot solely blame Westerners of today for homogenizing and dominating Asianculture. It takes two hands to clap and many Asians exacerbate the problem by frowningupon their own. I have been treated very rudely in some Chinese restaurants aroundKingsford but suddenly given top quality, friendly service when I bring along an AngloAustralian friend. The same applies in my home country Malaysia where airport staff aremuch friendlier to white foreigners than say, tourists of Asian appearance. Perhaps this isa sweeping generalization (or perhaps white Australians tip more ??), but unless a morerelativistic and objective perspective view of Asia is taken, Asia lawyers will find itdifficult to distinguish themselves from the general populace by being unaware of theirlatent superiority and accompanying superior treatment by Asians. This will in turn makethem less effective in interpreting Asia or bridging the divide between East and West.RepresentationsAlternative Dispute ResolutionAs Asia’s influence grows in the global market, the West is starting to familiarize itselfwith certain key characteristics of Asian style legal sytems – i.e. the importance of ‘guan-xi’ (from China). Guan Xi literally means ‘connections’ but generally is used to describethe relations between two or parties to a transaction. It is important in many Asiancultures to develop Guan Xi (or a similar guan xi equivalent for non Chinese nations) as aprerequisite before conducting business. As such, the West now appreciates that giventhis context, it is sensible that alternative dispute resolution methods will be preferred tolitigation and should be used as the primary method for solving legal disputes.Asian Common Law NationsWhile at first glance, Asian common law nations such as Singapore and Malaysia, and toa lesser extent India, have a judicial system that looks and smells like our own, anexperienced Asian literate lawyer will be astute enough to point out the differences.Although these nations have constitutions which infer freedom of rights, Jayasuriya hasdemonstrated in the readings that economic progress can occur while political reforms areleft behind. Furthermore, the incorporation of Asian values such as communitarianattitudes mean that individual rights and freedoms may not always be safeguarded, as ex-Malaysian Deputy Prime Minister Anwar Ibrahim found out to his ultimate detriment.Therefore, Asian literate lawyers should exercise caution even when engaging with Asian
    • countries with legal systems very similar to Australia. Issues such as an incompleteseparation of powers or a non-independent judiciary should spring to mind.ContextBy appreciating the extracts above, as well as the effects of colonization andglobalization, Asian literate lawyers should be better placed and will stand in good steadto view both Asian and Western legal systems critically. This in itself is no easy feat andwill take much time and sustained effort to engage with a region as vast and diverse asAsia. I am a staunch believer that it is much easier to learn something you are interestedin. Perhaps a useful hint would be to immerse yourself in the culture to the point that itactually grows on you and you find yourself attracted to it. This may well translate into asteeper learning curve and then you will be well on your way to becoming an Asianspecialist lawyer!