It is timely to contemplate what the retreat from globalisation might mean for our profession.
It looks as if the Transatlantic Trade and Investment Partnership (TTIP) is dead.
The French trade minister has come out against it, as has the German vice-chancellor – even though Angela Merkel herself spoke in favour of it a few days ago, saying it should be concluded by the end of the year, before president Obama leaves office (not much hope of that). It is the latest sign of the growing clamour in the west against globalisation. Donald Trump is the traditional symbol of this shift. But the vote for Brexit was itself a vote against the consequences of a radical international trade deal.
I have been at endless meetings over the years when lawyers from developing countries have protested about the impact of globalisation on their legal professions, since UK and American lawyers in particular have swamped the market for top-class commercial deals, forcing out the local firms, leaving them unable to cope with slick competition.
As a representative of the victors of globalisation, I know all the comforting words, about globalisation growing the legal market (look at Hong Kong), raising incomes and standards for all, and – through local hires – enabling the local profession in time to compete vigorously against the newcomers. On the part of lawyers, I still believe the rhetoric.
But these are difficult times to put the arguments. As soon as the west itself begins to suffer from the consequences of globalisation, through cheaper labour being available abroad, we say we are going to stop playing the game, it is stacked against us, we will only carry on if winning is guaranteed. What should the victims in the developing countries, to whom we have been preaching globalisation’s virtues all these years, think of us?
It is timely, therefore, to contemplate what the retreat from globalisation might mean for our profession. I assume the gains in liberalisation over the years – particularly in the EU – will not be taken away. But will there be any forward movement in the near future?
There is only one large trade agreement which has not been knocked out by anti-globalisation campaigners, although they have it in their sights – the Trade in Services Agreement (TiSA), being negotiated in Geneva under the umbrella of the World Trade Organisation by 23 countries, including the EU for us.
TiSA aims at opening up markets and improving rules in areas such as licensing and professionals moving abroad temporarily to provide services. The next round will take place in a few days’ time, and the hope – again wildly optimistic – is that it will be concluded by the end of this year.
As its offer, the EU has tabled its EU-Korea free-trade agreement, although there are complaints that it has not tabled its most radical deal, the EU-Canada trade deal (CETA). But the EU says that that has not been ratified – and, in the current climate, there is a continuing risk that it will not be.
Assuming TiSA is concluded, there might be some further liberalisation of legal services markets of the 23 countries involved: Australia, Canada, Chile, Chinese Taipei, Colombia, Costa Rica, the EU, Hong Kong China, Iceland, Israel, Japan, Korea, Liechtenstein, Mauritius, Mexico, New Zealand, Norway, Pakistan, Panama, Peru, Switzerland, Turkey and the United States.
There is one group of lawyers, though, whose bacon might have been saved by the rise in anti-globalisation, and that is those involved in arbitration, particularly investment treaty arbitration. As I have reported before, there has been heavy criticism of them in the European Commission and Parliament as a result of their being seen as a cosy, conflicted clique.
To appease critics, the EU had proposed an investment court to replace arbitration, and this was first inserted into CETA and is being requested for TTIP. If both CETA and TTIP fall by the wayside, I assume that investment treaty arbitrators are safe for the time being.
For those interested in the topic, the International Bar Association’s Subcommittee on Investment Treaty Arbitration published a report a few months ago. It set out ‘to examine the apparent increase in criticism levelled at investment treaty arbitration and the extent to which such criticism was justified and warranted reform’.
Unfortunately, 70% of the respondents were themselves counsel in such arbitration, and so it is perhaps not surprising that nearly 60% of respondents answered the single question most closely aimed at this issue (‘Should arbitrators in investment treaty arbitration be permitted to also act as counsel in investment treaty arbitration?’) with a resounding ‘Yes’. In my view, there needs to be a more objective look at the issue within the IBA, if a proper policy is to be developed.
Arbitration lawyers aside, the retreat from globalisation is not in the interests of the UK legal profession, which has thrived on open markets overseas.
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