Much is at stake for lawyers in the controversial TTIP talks, which are now floundering.
The huge trade deal being negotiated between the EU and the US (the Transatlantic Trade and Investment Partnership, or TTIP) is in trouble. In the US, the success of Donald Trump makes American politicians nervous about agreeing to more globalisation. In Europe, civil society has mobilised over fears about public services and the environment. Some will cheer at all this.
There are rarely objective criteria by which to judge whether a trade deal is a good or bad thing overall. From whose point of view? These deals cover many sectors which differ enormously from each other. I have been following the negotiations regarding lawyers, and it may be useful to gain a perspective through the prism of one profession.
There has already been benefit to the European legal profession from the ongoing negotiations, even if the agreement is never signed. The European legal profession, led by the Council of Bars and Law Societies of Europe (CCBE), has grown closer to its US counterpart as a result. The counterpart is not in this case their trade union, the American Bar Association, but rather their regulator, the Conference of Chief Justices. The latter brings together the leaders of state supreme courts, which are mostly responsible for US lawyer regulation, state by state (these terms are broad to describe the US set-up, but accurate enough for our purposes).
Imagining that a TTIP deal would be concluded in due course, the CCBE and the CCJ began their own mini-discussions some time ago. Their grounds were that it would be better for the two sides to come to an agreement on a mutual basis and sell it to their respective authorities, than to have a deal negotiated by the authorities forced on the two professions. This has led to fruitful outcomes, such as the CCJ resolution over a year ago ‘in support of regulations permitting limited practice by foreign lawyers in the US to address issues arising from legal market globalisation and cross-border legal practice’.
There are now also regular telephone conferences hosted by the CCJ, where trade issues are discussed with international players, including participation by the relevant official from the US Trade Representative’s office (USTR), who can be asked for updates and insights into trade issues. This would not have happened without TTIP.
If the deal goes through, and depending on whether it touches finally on legal professional barriers, there are potentially large benefits for those European lawyers who want to practise cross-border in the US. Solicitors are among the world’s prime exporters of legal services. The opening of markets is crucial to our economic well-being and reputation. There continue to be significant barriers in the US, and a successfully concluded TTIP, also covering legal services, would be of obvious benefit.
US lawyers want a quid pro quo in terms of access to the European market. They mostly have pretty free access anyway, certainly in the UK. But they would also like the benefit of the mobility given by the EU directives relating to lawyers (open at present only to EU lawyers), and legal professional privilege for their in-house counsel (not recognised by many member states, nor by the European Court of Justice). This is beyond the power of the European legal profession to give.
On the US side, it is their federal government which negotiates, while the regulation of lawyers remains a state-level responsibility. So the USTR cannot offer binding guarantees for the legal sector. As a result, the discussions are not easy.
Maybe lawyers are not typical, in that the benefits of TTIP to our sector appear greatly to outweigh the disadvantages.
We have been caught up nevertheless in the broader politics of right-and-wrong. One of the main complaints of those lobbying against the deal is that such agreements usually allow investors to sue governments which introduce subsequent regulation that damages their investment, giving investors a de facto veto over future democratic decisions. Lawyers have been substantially involved in investor-state dispute resolution, since it has been settled through arbitration. This has been slammed, in the European parliament and elsewhere, as a form of private justice run by a small club of lawyers.
The European Commission has recognised the outrage and now favours an investment court with independent judges to decide such cases. Lawyers have lost the initiative over the argument, by allowing the arbitration system to be belittled and maybe in time replaced, without entering the raucous argument.
Lawyers have several dogs in this fight, and should follow TTIP closely. Our economic future and reputation have both been shown to be at stake.
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