A little-known trade deal

At first glance, international trade talks seem dry, technical affairs. Well, they are dry and technical even after the hundredth long stare, but they arouse the strongest emotions in many people, including lawyers.

I have seen lawyers from the south - from poor countries, developing countries, former colonial possessions, whatever you want to call them - who, although otherwise calm people, become very exercised at what they see as a new form of exploitation: lawyers from the rich countries flying in and mopping up all the remunerative work, to the exclusion of the local profession.

These fears are apparent even among the rich jurisdictions themselves, where the Anglo-saxon segment sometimes inspires resentment among others.

As a result, the International Bar Association’s products in this field have moved in recent years from cheer-leading for liberalisation, to coping with trade anxieties.

In 1998, in its statement of general principles for the establishment and regulation of foreign lawyers, the IBA said that it ‘encourages those of its member organisations in jurisdictions which have not addressed the issue of cross-border establishment of lawyers to adopt, or encourage the adoption of, appropriate amendments to their regulatory regimes which are consistent with’ the principles it laid out in its statement.

By 2008, it was passing a resolution on the transfer of skills on liberalisation, pointing out that incoming foreign lawyers could be required to provide training, mentoring or supervised work experience to local lawyers as a condition of entry into the market.

The representatives of English solicitors have traditionally pushed for further market opening. The export of legal services is one of the great, post-imperial success stories - and, to be fair, unlike some other Anglo-saxon beneficiaries of the rise of the common law in international transactions (yes, America, please blush) - the English market is also wide open to foreign lawyers coming here to practise.

And English solicitor representatives have always highlighted that keeping markets closed makes no economic sense, since the work continues to be done by foreign lawyers offshore (like in India now, or in Korea before steps were taken to open up). When markets are open, the experience is that local lawyers soon end up running the foreign law firms’ branches, with benefits to all.

There are two important trade negotiations going on at the moment which will affect lawyers’ markets. The first is the Transatlantic Trade and Investment Partnership (TTIP) between the US and the EU, which is widely discussed. But there is another, which is hardly ever mentioned, called the Trade in Services Agreement (TiSA).

It has arisen out of the ashes of the Doha Round of negotiations on the General Agreement on Trade in Services, which have been stalled for years. It is currently being negotiated by 21 members of the World Trade Organisation, including the EU, US, Canada, Turkey, Japan, Korea and Hong Kong. Together, the participating countries account for 70% of world trade in services.

Both TTIP and TiSA will almost certainly cover legal services. In TTIP, if a deal is concluded, it will probably deal with the big issues affecting all or most service sectors, leaving profession-by-profession detail to be negotiated by the competent national bodies themselves underneath its umbrella and with its encouragement, for instance in terms of the mutual recognition of either side’s qualifications.

TiSA, on the other hand, is not trying to break new ground in its scope. The assumption is that all parties will offer market access on the same basis as the best of their existing free trade agreement commitments. Beyond that, the intention is to provide a clearer framework for the negotiation of further detail subsequently.

There is another side to trade talks which brings citizens onto the streets, shouting and sometimes fighting. That is the part which gives foreign investors the right to hold governments to their trade commitments, regardless of subsequent democratic choices and regulations. Lawyers have a role to play when it comes to dispute settlement.

Our role has attracted much criticism recently, but that is a different issue on which I have written before.

Three countries (and their legal professions) stand out internationally as strong supporters of further liberalisation through international negotiations: Australia, the US and the UK. There is not much significant support from other legal professions.

As far as English solicitors are concerned then, the refrain is: Go TTIP! Go TiSA!

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