Address of Michael W. Galligan, Partner, Trusts & Estates Department
and New York State Bar Association (NYSBA) International Section Chair,
First Meeting of the NYSBA International India Chapter
New Delhi, June 5, 2009
Dear Distinguished Colleagues and Ladies and Gentlemen:
If you take the time to access the website of the International Section of the New York State Bar Association, NYSBA International, you will read that the Section is dedicated to the promotion of the international practice of law in all phases of international life whether commercially or for the common good and to the promotion of the rule of law throughout the world. This morning, at the inception of this historic first meeting of the NYSBA International India Chapter, I would like to consider and discuss with you the meaning of these major goals of our organization.
I. Strengthening International Civil Society By Promoting the Rule of Private as well as Public International Law
Many of us no doubt were first drawn to an interest in international law by issues that are commonly said to involve public international law, such as building peaceful relations between states based on the fundamental principles embodied in the Charter of the United Nations respect for the territorial integrity of nation states, non-aggression, respect and promotion of the civil, political, social and economic rights of every individual and cooperation among states in order to build the conditions for human dignity and prosperity throughout the world. Now, in those parts of the world where states do not claim to occupy every part of economic and social life but support the flourishing of an autonomous civil society, there developed in the years after World War II an exponential increase in travel, communication, sharing of information, cross-border financial investment, commercial transactions and corporate affiliations among private persons, families and business entities, under many different circumstances and in a wide variety of forms, what I think can best be called international civil society, of which this meeting is a splendid reflection and example. The scope of this mass of transnational activity became almost universal when the major countries built on the premises of state socialism and one party rule either adopted many of the tenets of liberal democracy or at least switched to an emphasis on market forces in the planning and development of their economies.
This proliferation of transnational contact and commerce has created the field of what can rightly be called private international law not just in the more restricted sense of conflicts or choice of law as that term is often used by our colleagues from continental Europe but in a much more comprehensive and dynamic sense. This includes (1) seeing the various countries of the world as they develop their own law related to the increasing internationalization of all aspects of life as laboratories of legal invention and experimentation from which all of our respective countries can learn and benefit (2) building a network of agreements between countries that seek to rationalize and harmonize the legal traditions of the state parties in areas of commercial and personal law so as to encourage and not inhibit transnational private activity, and (3) where desirable and convenient, to establish transnational structures that coordinate and regulate specific areas of international commerce for example, in the areas of trade, environment and even immigration. In truth, as you can see, the old distinction between public international law and private international law is itself breaking down as the diplomatic resources of states are more and more dedicated to issues outside the province of public international law in the traditional sense and are dedicated to the promotion and facilitation of the activity of international civil society.
The International Section of the New York State Bar Association stands firmly rooted and has its reason for existence in the vitality and broad reach of international civil society. It is committed to the development and strengthening of an inter-related set of legal principles, structures and policies that support each level and type of international civil relationship, transaction and project from the exalted world of complex international financings and corporate acquisitions to the lowly efforts of a crew member of an ocean cargo ship or a migrant worker to access a bank account in a port of call or temporary place of work, even to the more intimate sphere where lovers from different countries attempt to formalize their relationships in marriage or similar forms of personal union. This, of course, does not mean that NYSBA International has forgotten the still very critical issues that need to be addressed to strengthen of the rule of law at the level of the formal relations of states and to promote a worldwide system to protect international human rights for these issues and needs still undergird the whole international system, including that of international civil society.
II. The Structure and Strategic Objectives of NYSBA International
To see how NYSBA International in general and the India Chapter in particular can contribute to these objectives, let me explain a little about the structure and strategic activities of the Section.
The Section has five major organizational components: (1) substantive law and regional law committees, (2) national chapters, (3) conference steering committees, (4) the Executive Committee and (5) the Sections web-based membership communities.
1. Law and Regional Committees. The section has over thirty committees each devoted to a substantive area of private or public international law or to the legal issues of special relevance to a region of the world. Every member of the Section, whether living in New York or anywhere else in the world, can serve as a m ember of as many committees he pleases. Each Committee should generally has two co-chairs and a steering committee.
2. National Chapters. The Section endeavors to have a chapter in every county and in countries like India, to have co-chairs from every important city of that country. Membership in a chapter is intended primarily for Section members residing in that country but there is nothing to prevent Section members residing in New York or other countries from joining one or more particular chapters.
3. Program Committees. The organization of a major Conference such as the four day Annual Seasonal Conference that will take place in Singapore in the last week of October this year and our major continuing legal education conferences in New York such as Fundamentals of International Practice and International Practice Institutes require the leadership of a steering committee organized well in advance of the event. Membership in these committees draws from our worldwide membership.
4. Executive Committee. The Executive Committee is the steering committee for the entire Section. Its members include all chairs of the substantive law and regional committees, the national chapters and the program committees as well as the Section officers.
5. The Web Communities. I cannot underestimate the importance of the web communities because these are the means, made possible by the revolution in international communications over the past couple of decades, by which every member of the Section can have a voice and be aware of all the opportunities the Section offers. The Section Listserve, while not organized at this time as an interactive site, is still the way in which the Sections leadership can scan the section membership for volunteers, ideas and important news. For example, without the ability to reach out so quickly to our members on the Section Listserve for volunteers to join this Meeting in India, we might never had sufficient participants from outside India to enable this first Meeting of the India Chapter to go forward. Every Committee and Chapter can have its own listserve, organized through NYSBA headquarters. In addition, there are also over 300 members who are part of an inter-active web-based community through Linked-In. We are also expecting momentarily the installation of a web-based membership directory that will enable Section members to identify and communicate with fellow members in specific countries and cities and a web-based project using the new Google Knolls technology that will enable eventually all Section members to share with each other articles and studies that they have authored in all the areas of international practice and law with which the Section is concerned.
Now let me turn to what I world call the strategic activities of the Section:
1. Education: While the core principles of the law we learned years and even decades ago have not changed, the application of these principles is open to new challenges every day to a plethora of issues were not even thought of just a little while ago. Moreover, especially in international practice, no legal counsel can be an island in his or her area of specialty. Every Committee and Chapter is encouraged to organize events that will deepen the legal knowledge of our members and also broaden their international horizons and perspectives. These programs can include lunchtime or breakfast events with a single speaker to more formal programs approximating a half day or even a one or two day conference like this Meeting of the India Chapter, possibly in association with other committees, chapter and even other bar associations.
2. Networking: Members of NYSBA International want not only to learn about and understand international practice but to help create the relationships and transactions that make much up international practice and also assist each other in the legal work that must be accomplished to make transnational relationships and transactions succeed. Committees and chapters can organize receptions and other social, events in conjunction with educational events or not as they see best. The Annual Seasonal Conference is a also a splendid opportunity for this type of inter-action. Perhaps, in the long run, our web-based communications portals will provide methods of interaction that we have yet even thought of at this time.
3. Development of Law: NYSBA International seeks to shape law and assist in the development of the international legal systems that make international practice possible. This includes reform and change in the law of (1) New York, the home jurisdiction of the Section, (2) the federal law of the United States, (3) the relevant federal and local law of its chapter countries, (4) the law of treaties affecting private international law as well as public law, including but not exclusively those developed through the Hague Conference on Private International Law, UNCITRAL and UNIDROIT. NYSBA International, for example, was influential in changes to the rules of New York law about the granting of judgments in foreign currency. NYSBA International has been actively involved, through its Committee on International Estates and Trusts, in efforts to secure support of US ratification of the Hague Convention on the Recognition of Trusts. Projects that are now under consideration includes (1) study of the Model UNCITRAL Arbitration Statute as a model for a reform of the US Federal Arbitration Act, (2) study of the advisability of a possible treaty concerning the protection of intellectual property assets in national bankruptcy proceedings, (3) study of legal instruments that simplify the procedures for executing against property serving as security for registered obligations in countries that do not necessarily have jurisdiction over the financial obligation so being secured, (4) reform of New York and other state law provisions dealing with cross-border distributions of estate assets to heirs in civil law countries and (5) procedures for the appointment of non-US persons to be guardians of orphaned children in New York and other states.
4. Reform of Rules Affecting the Ability to Practice Law: International practice does not always fall neatly within national and state rules about the authorization to practice law, the limits of competence to render legal opinions and the ability to appear in courts outside the jurisdiction where a lawyer is normally admitted to practice law. NYSBA International is in the process of considering how best to institute a new version of a New York State Bar Association Committee on Cross-Border Practice that recently worked on these issues for several years.
5. Promoting the Rule of Law. Despite well-conceded weaknesses and being the subject of criticism of from many quarters in the world, the United Nations, which is headquartered in New York City, represents the most comprehensive world-wide organization devoted to the promotion of peace and the welfare of peoples. The United Nations is the home of the International Law Commission and UNCITRAL which has been the sponsor of a number of important treaties that affect the private practice of international commercial and financial law as well as the resolution of private legal disputes. NYSBA International is investigating the possibility of the New York State Bar Association attaining NGO status at the United Nations, the better to have a voice and in and better understand the newest developments that affect the rule of law domestically and internationally at the United Nations and its member organizations.
III. Indias Dedication to the Rule of Law
Dear colleagues, it is especially appropriate that we meet here in New Delhi, in India, to discuss the involvement of our new India Chapter in the work of NYSBA International. In 1959, the International Commission of Jurists met here and issued the Declaration of Delhi on the rule of law. In that declaration, the Commission said that it reaffirmed the principles that an independent judiciary and legal profession are essential to the maintenance of the Rule of Law and to the proper administration of justice. The Commission also went on to declare that the Rule of Law is a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which the legitimate aspirations of men and women may be realized.
No one can read the story of the meetings of the Constituent Assembly that met here In New Delhi and drafted the Constitution of India from 1946 to 1949 without being convinced that dedication to the ideal of the rule of law runs very deep in the modern history of this country, even if the great pluralism of religions, ethnic groups, languages, political philosophies, historical and modern class and caste distinctions have posed major challenges to its implementation in the every day life of the nation. Your Constitution reflects the priority of the rights of the individual over group or class or community affiliations and a recognition of the key role of the judiciary in the development of the civic and political life of the nation. The increasingly important role assigned to private markets and international investment here also reflects a growing integration of the peoples of India into what I have been calling international civil society.
This history and these developments makes us all the more eager to have the benefit of your ideas, your insights, and your contributions to the development of fair and workable legal systems that facilitate the types of international communications and exchanges in all walks of life - commercial and non-commercial - that make up international civil society. We in New York are, of course, very proud of what we believe is the deep commitment and passion for the rule of law that lies behind the history of our state and our country, even as we are aware that we too have certainly not mastered all the challenges that the varieties of prejudice, discrimination and class distinctions that are part of our history so much shorter than your history have posed and even though our own U.S. Supreme Court just like the Supreme Court of India has perhaps not yet said the last word about the proper role of the judiciary in our own constitutional system.
Nonetheless our pride, which you may detect in certain comments you may hear during this Meeting about the strengths and attributes of New York law or even United States law by no way means that we cannot benefit, learn from and even be corrected by, the insights and the contributions of the bar of India and the bars of the other many countries in which NYSBA International has chapters. In this respect, I hope you will allow me to apply to our experiment in attempting to build a truly international bar association with its roots in New York State the words a certain lawyer, first admitted to the Inner Temple of London and later a legal practitioner in South Africa before returning to India, the country of his familys origins, once said in regard to his own love of India:
My patriotism is not an exclusive thing. It is all-embracing and I should reject that patriotism which sought to mount upon the distress of the exploitation of other nationalities. The conception of my patriotism is nothing if not always, in every case, without exception, consistent with the broadest good of humanity at large.
Of course, I refer to the words of none other than Mohandas G. Gandhi, the Mahatma, and with these words I am also happy to thank you for your attention this morning and for the extraordinary hospitality and generosity of the Indian lawyers and law firms who have made this extraordinary meeting possible.
Thank you, again!