The International Bar Association (IBA) is currently consulting its member organisations around the world on a resolution which recommends a liberal regime for professional rules on partnership - or what it calls association - between local lawyers and foreign lawyers. This topic is always sensitive, because its promotion can look like a re-enactment of nasty scenes: the rich telling the poor what is good for them, or former colonisers coming back to their former possessions to enslave them in a new form, and so on, through other melodramatic scenarios.

The IBA has a long history of advancing liberalisation in trade through a series of resolutions, beginning with a position on establishment in 1998. The latest is a logical extension of its predecessors. The IBA has no regulatory powers, and so its resolutions are persuasive only, and help to set the climate.

I was reminded of the IBA proposal because of the case decided last week (and reported in the Gazette) regarding the ability of foreign lawyers to practise in India. This was seen as an advance because it permits ‘fly-in fly-out practice’ on home, foreign or international law, and permits lawyers to travel to India for international commercial arbitration, while banning pretty much everything else.

More interestingly, for the multi-million dollar outsourcing industry, the judgment held that those 'providing a wide range of customised and integrated services and functions to its customers like word processing, secretarial support, transcription services, proof-reading services, travel desk support services, etc. do not come within the purview of the Advocates Act 1961 or the Bar Council of India rules'. That must bring a sigh of relief to the Indian outsourcing industry, but what if they provide services which go beyond the purely administrative items listed in the judgment’s conclusions?

In response, Clifford Chance put out a statement saying, among other things: 'What also remains to be addressed by the Indian authorities is the bigger issue of collaboration and partnership between Indian lawyers and international law firms, and of international firms advising on Indian as well as non Indian law.' That is why I come to the IBA resolution on partnership, which may see fierce opposition from the Indian Bar when it comes to be discussed in the IBA Council.

It is already expected that another of its colleagues in the BRIC group of countries - this time Brazil - will oppose the resolution. There has been recent consternation in the Brazilian legal world over the permitted scope of activity of foreign lawyers there. The Brazilian legal profession decided unanimously at the General Assembly of the Brazilian Bar’s General Meeting in Curitiba in November 2011 that according to Brazilian laws and regulations:

(i) associations between Brazilian lawyers and foreign legal consultants admitted in Brazil are not allowed, except for a few special cases such as a loose exchange of experience, or to refer clients; and that

(ii) foreign legal consultants or their firms are not allowed to hire or to associate with Brazilian lawyers to practise Brazilian law or render advice on Brazilian law in foreign legal consultants’ firms.

This matter was also the object of a ruling by the Ethics Tribunal of the São Paulo Bar Association last year and of two opinions rendered and adopted by the Commission for Foreign Relations of the Brazilian Bar and its Commission of Law Firms. All these rulings and decisions were in the same direction as the decision of the General Assembly.

Apparently, there are currently several complaints filed against Brazilian lawyers and foreign legal consultants in State Ethics Tribunals regarding this matter.

So the IBA draft resolution is timely, and will allow the liberals and the conservatives to rise up and cross swords once again over what foreign lawyers should be allowed to do in other countries, in the hope that dialogue leads to rational conclusions.

Jonathan Goldsmith is secretary general of the Council of Bars and Law Societies of Europe, which represents about one million European lawyers through its member bars and law societies. He blogs weekly for the Gazette on European affairs