Trade deals are going out of fashion. But there is much lawyers can do to create growth opportunities – even outside the EU.
Brexit can be described as many things, and one of them is ill-timed.
Just as the UK is going to become dependent on trade deals with many countries around the world (there are 164 countries in the World Trade Organisation (WTO) alone), trade deals are rapidly going out of fashion. We are going to have to be creative to keep future partners interested, and I suggest below an example of creativity from the legal profession.
The newspapers have been full of the EU’s problems with the Comprehensive Economic and Trade Agreement (CETA) with Canada. The regional Parliament of Wallonia – population of 3.5 million against the EU’s total of 508 million – has refused to approve it, thus preventing Belgium from signing, and so the EU from obtaining the required unanimous approval.
Although some enjoy any discomfiture suffered by the EU, many commentators have pointed out that this is not good news for the UK, since other tiny outposts can in due course hold up the UK’s own needed trade deal on departure.
We are different to Canada, say the Brexiteers, ignoring the wish – or maybe the need – of other EU members to ensure that leaving the EU is not seen as a desirable outcome for the UK, to prevent others from leaving. We saw the beginning of this at the treatment given to Theresa May at the recent EU Council meeting.
Other more hard-line Brexiteers say: ‘Too bad, we will go with the WTO’. But that is not only to ignore that the WTO has nearly six times as many members, and so six times as many potential stumbling blocks, but also that the WTO has had to give up on its own recent trade agreement, the so-called Doha Development Round, which stuttered along for seven years until it was abandoned in 2008 because of failure to reach agreement.
Much of the failure centred around an inability to reconcile the wishes of the developed and the developing world.
Finally, we have seen how trade deals have taken centre stage during the current US election. Both candidates have been forced to take an anti-trade deal stance. Goodbye, almost certainly, to TTIP (the Transatlantic Trade and Investment Partnership, being negotiated between the EU and US).
What has all this got to do with lawyers? Our profession is an exporting profession. Many thousands of solicitors are employed in the City, and they work in many countries. The opening of markets for the further provision of legal services is essential for growth.
As a result, lawyers have been discussing the international trade in legal services for decades. The International Bar Association (IBA) has a committee which discusses the policy behind trade deals affecting us, with membership from around the world. Although it began hopefully, rather like the Brexiteers, in talking about opening markets for lawyers, it eventually hit resistance from lawyers from developing countries, who expressed their opposition to foreign lawyers coming in and taking all the best work.
Adjustments were needed on both sides to understand what the others actually meant. And it culminated in a resolution on transfer of skills on liberalisation of markets, to be used as a model in future trade agreements where the issue is raised.
What this means is that part of the payment for a country opening its market may be that the entrant should train up local lawyers to be able to compete fairly with incoming foreigner lawyers. This is expressed in two central clauses:
‘A Foreign Lawyer who is permitted to practise through an establishment in a Host Jurisdiction may be required by the Host Authority to participate, directly or indirectly, in the provision of formal continuing legal education and training programs sponsored or approved by the Host Authority or other bodies responsible for the development of the legal profession of the Host Jurisdiction and open to Local Lawyers generally.
‘(B) A Foreign Lawyer who is permitted to practise through an establishment in a Host Jurisdiction in association with Local Lawyers may be required, in the course of his/her practice, to provide, directly or indirectly, individual training and mentoring in relevant legal skills and disciplines, as well as supervised work experience, to Local Lawyers with whom the Foreign Lawyer practices in such association.’
We are going to need all the skill and imagination at our disposal in the coming years, as we navigate difficult waters. Trade deals are now high on the global political agenda, and not always in a good way for those desperate to conclude them quickly.
The NGO community is geared up in opposition, having become familiar with the statistics and arguments. We may have to be ready to give in order to receive, along the lines of the IBA’s transfer of skills example.
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