Having attended Legal Business’s first International Arbitration Summit in September to debate issues on investor-state disputes, Sir Frank Berman KCMG QC (pictured) of Essex Court Chambers talks to Sarah Downey about the highlights of his 50-year career, London’s status as a disputes hub, and the future of the Bar.
What initially stoked your interest in the law and following that, your specialisation in arbitration?
Initially I came to international law at the time I started studying law at Oxford. Immediately out of my doctoral work I went to the Foreign & Commonwealth Office where our sole function was to be the legal advisers: no policy function, but the in-house legal advisers to the government. That’s what led me in the direction of international arbitration. Those were the days when it was just state-to-state arbitration; the idea of investor-state arbitration was just crawling into existence.
What was it like cutting your teeth as a young lawyer?
As a young lawyer, I was always a junior member of the team and I could only sit there in admiration and watch the lawyers who were carrying the argument. I was the deputy agent for the UK in a fascinating bilateral arbitration against France in the 1970s on the delimitation of maritime boundaries in the English Channel and that involved everything, treaty law, geology, map making, it was wonderfully challenging. It ended up in a curious way because we had a very successful process for bilateral arbitration. Then something funny happened in the way the tribunal drew the boundary line. So we went back to the court to ask them to interpret their earlier decision. That was a hair-raising process.
Do junior lawyers today have fewer opportunities to get heavily involved in case work compared with when you started?
What I say to young lawyers asking for advice is you need luck to get your first opportunity. They don’t get to be on their feet and argue the point before the tribunal. One is always conscious that what leading counsel is saying to the tribunal is the result of an enormous amount of work. I like it when a party appears before me and produces four or five lawyers, all of whom get a chance to carry the argument. It breaks the monotony and gives you an opportunity to see where the reasoning has come from.
What do you see for the future of the junior Bar, considering legal aid cuts and potential changes to levels of advocacy work?
It depends on the policy choice government will make, particularly over legal aid. It will be the subject of immense argument and controversy. Something will have to be done when one sees important figures on both sides of the political divide saying we can’t run down our system – it’s against the rule of law. In legal practice the picture diverges – I haven’t seen any tailing off on the commercial side of the Bar. There’s lots of work for junior barristers too. It would be tragic of all talented young lawyers were all going into commercial law because of finances, and none were going into public law, criminal law, human rights law, or family law. Some interesting practices straddle the divide because they’re doing the kind of international law that touches all of those.
Whom do you admire?
I admire enormously my initial professor, Sir Humphrey Waldock, who became President of the International Court of Justice. Robbie Jennings is another, who also became president of the court. There were impressive lawyers from all over the world, even under the days of communism, there were lawyers who had their legal education pre-communist days – Manfred Lachs was one of them, a Polish lawyer of immense distinction. I really have to mention Lord Thomas Bingham, he was a great figure in his own very quiet way who covered all of the fields of law and had an openness towards international law that was remarkable. It’s only Lord Richard Wilberforce who I think was equally as open.
Do you have a work/life balance?
Are you asking me or my wife? Yes, I do. I like music and being out in my garden – grow vegetables and fruit to eat, contending with nature is nearly as challenging as being a lawyer. I have very orthodox tastes in classical music and choral music, and opera. I used to sing when I was young – I now sing vicariously through my wife who has a lovely soprano voice. I’ve hardly sung myself since my bar mitzvah.
Do you see London maintaining its status as the disputes hub of the world?
There are very good reasons why it should, and its more than English law, its English lawyers. The quality of our practicing profession in this country is extraordinary, and judges too. There’s so much talent in London. I’m struck if I look at how the scene has developed by the way big international firms have developed stations in London – the prospects are enormous. We shouldn’t underestimate the importance of this invisible export – but competition is a fact of life, and you have to compete.