There is a small body of rootless cosmopolitans who meet in windowless hotel rooms a few times a year to discuss the ins and outs of the General Agreement on Trade in Services (GATS) as it affects lawyers: free trade agreements, most favoured nation status, mutual recognition, the whole shebang. I should know, since I am one of them. We are members of a secret club, where you have to know your FTAs, MFNs, MRAs and four modes of service delivery if you want to join. It is rather like being a freemason: people wonder what you do there and what all the fuss is about. Here is where I tell the world our secrets.I am not worried about spilling the beans, because one of the curious facts about GATS issues is that the uninitiated forget about them the moment they are told, as if there is a magic ingredient which induces oblivion. (You might think that is because they are boring, but you would be wrong. As I wrote recently, cross-border trade matters cause the calmest to scream with rage, because it is all about identity and patriotism.) For instance, in the International Bar Association, where I am a member of the World Trade Organisation working group, we regularly give inductions to bar leaders on current GATS issues, but we have to start from the beginning each time and pretend that we have never held an induction before, since collective memory has curiously worn away.
As you may know, the Doha Development Round of talks, which was supposed to introduce a new era of reduced trade barriers, has stalled, and doesn’t look like getting anywhere soon. Instead, countries – or at any rate, the EU – have started looking at trade agreements with other countries on an individual basis. Multilateralism is dead, or maybe only in a coma, since the divisions and suspicions between developed and developing countries are too wide to be bridged. The natural response is to go bilateral and try to achieve on a country-by-country basis what cannot be achieved multilaterally. See – you have already forgotten the content of this paragraph before you have moved to the next!
You would be amazed by the number of bilateral negotiations that are currently taking place between the EU and other countries or trade blocs: I count 11 on the informative website of the European Services Forum, which is a membership organisation for the industry side. (You will find a quote there from a senior partner of a well-known law firm, extolling market-opening for bringing benefits 'in the form of improvements to the local legal infrastructure and access to innovative legal products and expertise'.) Each bilateral trade agreement is different, and on the lawyers’ side should be scanned to see what is being offered in terms of market-opening by either party.
Here are some of the issues, which arise whether the approach is bilateral or multilateral, and which we discuss in our windowless rooms:
- should regulation of foreign lawyers by the local competent authorities extend only to when they open offices and settle in a country, or also when they fly-in and fly-out on a temporary basis (my view: concentrate on the permanent, it is impossible to regulate the temporary which happens on a huge, everyday scale, including temporary electronic crossing of borders through email);
- does the opening of a previously closed market mean that all the best work will be creamed off by the big law firms from the developed world (my view: experience does not show that – open markets such as Brussels, Hong Kong and elsewhere have booming local sectors, and it appears to be that opening markets helps the local sector; the International Bar Association has a resolution which shows that closed markets which want to open can ask for some transfer of skills at the same time);
- what can a foreign legal consultant do – home law, host law, international law? And with whom – local lawyer as employee? As partner? (my view: would you like to spend the rest of your life discussing this with me? This is where it becomes really interesting.)
The International Bar Association has a guide to GATS as it affects lawyers, which I can strongly recommend (confession: I am the junior of the two authors who prepared it). It is also about to send out a questionnaire to all its member bars, asking them to describe the exact state of their local market for foreign lawyers. This is believed to be the first such worldwide survey.
Read the IBA’s guide: once you have mastered its arcana, you can apply for membership of the most interesting secret club in the legal profession.
Jonathan Goldsmith is the Secretary General of the Council of Bars and Law Societies of Europe (CCBE), which represents over 700,000 European lawyers through its member bars and law societies