One of Britain's major colonial legacies in Hong Kong has been its legal system, and that includes its division of labor in litigation between solicitors who advise clients and barristers who actually present cases in court. The latter, with their iconic wigs and robes, have long been a familiar sight in high-profile Hong Kong court cases, with senior barristers often flying in from the United Kingdom or Australia.
So it's hardly surprising that as Hong Kong and Singapore, another former British colony, have grown in importance as centers for international arbitration, barristers have sensed opportunity. Several London-based chambers have opened branches in Asia in recent years, specifically targeting international arbitration work.
But many lawyers from major firms active in the practice think the barristers' day may have passed, at least when it comes to arbitration.
"We do our own advocacy," says Freshfields Bruckhaus Deringer Hong Kong partner Lucy Reed, who serves as cohead of the firm's international arbitration practice. "We think it’s in the best interest of the clients to have the same lawyers who grow up with the case do the advocacy."
Unlike in court cases, use of a barrister is not mandated in arbitration, and lawyers at many major firms in Hong Kong and Singapore say they rarely use barristers when they don't have to. The added cost is a major factor, as is the arrival in the region of many U.S. litigators like Reed, who are not accustomed to instructing barristers. Even in courts, the tide seems to be shifting; early next year, Hong Kong will license its first solicitor-advocates to practice before its high court.
For their part, many barristers bristle at the notion that their courtroom skills might be seen by some as unnecessary.
"There’s no one as good in handling cases and making submissions on law and dealing with witnesses as an English QC," says Neil Kaplan QC, an international arbitration adviser with King & Wood Mallesons.
Kaplan lays out the standard argument in favor of using barristers: Most solicitors just don’t have the advocacy skills—the “court craft,” he calls it—to argue cases as effectively as barristers. "That’s the whole point of the bar, they are specialists in presenting cases," he says. "You can’t pick it up by watching Perry Mason on the television."
Of Mason's real-life American brethren, Kaplan says U.S. litigators often take a "kitchen sink" approach to cases, flooding proceedings with documents rather than choosing select pieces of evidence to buttress an argument. He also thinks U.S. litigators can come across as too combative to some arbitral panels.
A considerable number of arbitrators in Asia are barristers, including Kaplan. Reed and other large-firm lawyers acknowledge that having an arbitral panel stocked with QCs may be a compelling reason to hire a barrister in a particular case. They also note that certain barristers have practice or industry specializations that are very useful in some cases.
But large-firm arbitration specialists almost uniformly dismiss the argument that barristers have advocacy skills far superior to those of other lawyers.
“We’re not lesser mortals,” says John Savage, an English solicitor who now heads the Singapore-based Asia arbitration practice for Atlanta's King & Spalding and handles his own advocacy. “Once you’ve got one or two [cases] under your belt, you won’t need to use a barrister again.”
The cost of employing a barrister on top of a large firm is an obstacle to some clients. Reed notes that, even before the first hearing, it can take a “massive amount of money” to bring barristers up to speed on complex cases.
Senior QCs from London-based barristers’ chambers 4 Pump Court, which opened a Hong Kong office last summer, fetch between $640 and $1,040 an hour for their services, depending on the nature and size of the dispute. 20 Essex Street, another British chamber with an Asia presence, in Singapore, noted a similar rate of over $1,000 an hour for QCs.
“In a world where clients are concerned with the costs involved with any dispute resolution, solicitors respond to that in different ways,” Norton Rose Hong Kong partner Jim James says. “And one of the ways is to do as much of the work in-house, as long as standards are maintained.”
But Kim Rooney, a former partner and head of the Hong Kong dispute resolution practice for White & Case who now works as a barrister at Gilt Chambers, says many barristers in Asia are not looking primarily to large international firms for business but rather Hong Kong and mainland Chinese firms, as well as foreign firms without a presence in Asia. These firms truly don’t have the advocacy experience in-house needed to handle a major case under one roof, she says.
“And I don’t see that changing,” she says.
Rooney also thinks there is enough arbitration work to keep busy all lawyers, barristers or otherwise. In fact, the influx of talented lawyers only bolsters Hong Kong’s standing as a reputable destination for dispute resolution, rather than seeing those cases disappear to Paris, London, or New York, creating a larger market from which all lawyers can draw business.
Christopher Moger, a London-based QC who is a member of 4 Pump Court, also says his chambers are not banking on receiving instructions from big international firms. Rather, he says they decided to open in Hong Kong to leverage his existing network among Chinese lawyers and arbitrators in the region.
Moger says he's aware that many large firms tend to keep all aspects of arbitration work in-house, and he doesn't think that will change. But he does think there will be occasion for chambers and large firms to work together. “I still think the bar offers a resource for those firms that will want to use barristers on an ad hoc basis,” he says.
Email: tbrennan@alm.com.
