The IBA and lawyers

The International Bar Association (IBA) is about to hold one of its twice-yearly meetings, where members of its council and committees get together to hammer out policy issues. This will be its mid-year meeting, held this week in Barcelona, in conjunction with its annual bar leaders meeting.

Not enough is written about the internal workings of the IBA, in fact practically nothing so far as I can see, which means that lawyers must rely on the IBA’s own press releases and website for news about the organisation. I am involved in several of its committees, and know some of its staff and officers.

I greatly benefit from the global network it offers, and the intellectual stimulation of its work. That makes honest commentary difficult, since I continue working with pleasure inside the organisation. But if I compare the relatively close coverage given, for instance, to the Law Society and the Solicitors Regulation Authority by the UK legal press, to what is written about the IBA, the gap is huge.

There are reasons for that: as we see with the EU referendum debate, people largely have loyalty to, and interest in, national institutions, and not supra-national ones, which seem remote; the Law Society and SRA govern us directly, whereas the IBA has no regulatory power, and only the broadest mandate for representation.

And yet we should pay it more attention. I shall take the forthcoming Barcelona meeting as an example. One of the committees of which I am a member deals with trade in legal services across borders, and tries to come up with common global positions. It has already produced a range of resolutions used by the World Trade Organization in its own work to promote free trade.

This time, the committee will be looking at: association (how domestic lawyers and foreign lawyers can co-operate through employment, partnership, referrals, networks and more); investor-state dispute settlement, as well as updates on large trade negotiations taking place globally; and projects that the committee can undertake to assist developing bars facing the stresses of globalisation.

These are significant and substantive issues for the legal profession, and the IBA is to be commended for encouraging such a committee. But here we come to one of the facts of IBA life. This work is undertaken by voluntary effort. The committee is helped by no IBA staff. I have to pay to attend the meeting (and I am not backed by a law firm, since I work for myself), and so I pay to contribute to the IBA’s policies.

This might be thought noble and worthy – until one learns that the IBA is sitting on reserves of many millions of pounds, and that those reserves increase after each conference because of the payments made by people like me. I work and I pay, and the IBA grows richer.

The solution is not to pay me. But the IBA could invest in staff with the expertise to help the volunteers (since if volunteers stop working, as happens, the work grinds to a halt). And the IBA could also consider a fee structure where people contributing to its work product pay a lower rate for conferences where the work takes place, compared to those who attend to consume the work product.

The IBA council is also meeting in Barcelona. Most of the agenda is taken up with reports or internal matters regarding the running of the IBA. There is one public policy position offered for a vote. (Side comment: I find that a disproportionately low ratio of the agenda for public policy positions, and it is not uncommon for IBA council meetings.) The public policy issue in question is a practical guide for lawyers on business and human rights. I have written about this recently, and it is again a significant and substantive matter for the legal profession.

There are many controversial questions which arise out of this practical guide, but I shall here raise just one consistent with the other comments in this article, relating to the IBA as a regulator. As stated, the IBA is not a regulator. It does not have the staff or expertise to become one, never mind the mandate.

Yet this practical guide sets standards for lawyers’ behaviour in an area likely to be beset more and more by multi-million-pound litigation. I am in favour of the IBA issuing guidelines, and have contributed to the drafting of several. But those were not likely to be used against lawyers by setting standards of care for their behaviour in a controversial area like business and human rights. Should the IBA be doing this?

That is why we should pay more attention. Directly and indirectly, the IBA’s work affects what we do.

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