Legal Services Domestic Regulation World Trade Organization

Legal Services & Domestic Regulation World Trade Organization March 29, 2004 Prof. Laurel S. Terry Representing the International Bar Association Email: LTerry@psu. edu

What is the International Bar Assoc. ? • The IBA is one of two general-purpose, international bar associations • IBA members include more than 190 bar associations and 16, 000 lawyers • The policy-making body of the IBA is its “Council” • The IBA Council includes smaller bars and bars from developing countries

Summary of IBA Remarks • Background information – legal services • The IBA’s prior GATS work • May 2003 IBA GATS Forum • September 2003 IBA resolutions • Questions the IBA did not consider • IBA’s response to the WTO consultation

Why Are Legal Services in the GATS? • Trade in legal services is a large part of the world economy • Some believe that trade in legal services facilitates other trade • Legal services are delivered in all 4 Modes • 58 countries “scheduled” legal services

What you should know about lawyers • Legal systems vary: examples are civil law, common law, Hindu and Islamic law • Rule of Law: lawyers help the rule of law • Core values: for all, lawyer values are loyalty, independence & confidentiality • Law License: many countries require a law license to practice • Qualification & Licensing: There is NO consensus on what these terms mean

Terminology Used By the IBA • Full License: refers to a Home lawyer who is able to use the Host State title • Limited License: the Home lawyer has a special, limited title in the Host State • Foreign Legal Consultant or FLC: refers to a lawyer with a limited law license

GATS Track #2 - Disciplines • WTO Members agreed to conduct domestic consultations on extending the WTO Accountancy Disciplines • Many countries have not sought bar association input on the Disciplines • In Dec. 2002, the WTO asked for input from various NGOs, including the IBA • The IBA’s May 2003 GATS Forum led to 2 IBA resolutions, approved 9/03

IBA Resolutions Sent to the WTO • The IBA’s 98 -2001 resolutions include: – “Core values” of the legal profession – Principles for establishment of foreign lawyers – Regulation of Multidisciplinary Practice between lawyers and non-lawyers – Principles for Mutual Recognition Agreements for lawyers • Two IBA resolutions are cited in S/C/W/43, the WTO Legal Services Background Note • In 2003, the IBA sent the WTO its resolutions on Terminology & Accountancy Disciplines

Additional IBA Work on the GATS • February 2002 IBA visit to the WTO • IBA GATS Handbook, available at http: //www. ibanet. org/pdf/gats. pdf • July 2002 IBA Seminar in Geneva • May 2003 IBA GATS Forum

The IBA May 30, 2003 GATS Forum • Purpose: to respond to the WTO’s December 2002 questions • Attendance: from 6 continents, possibly 90 people from 60 bar associations • Built heavily on the work of the Canadians and Australians • Debated specific proposed changes, circulated ahead of time • Led to unanimous Sept. 2003 IBA resolutions

Questions not Addressed by the IBA The IBA Resolution and debate did not address the following questions: • Are additional “Disciplines” necessary? • Should the legal profession have its own “Disciplines”? • If the legal profession drafted its own “Disciplines”, what would they look like?

Summary of IBA Suggested Changes • Art. II(2): expand “legitimate objectives” to include confidentiality, independence, and avoidance of conflicts of interest • Art. II(2): clarify the treatment of legal services measures by the Appellate Body • Art. III(3): expand transparency requirements to lawyer licensing and discipline • Art. III(4): define “technical standards” as ethical rules & rules of professional conduct

Summary of IBA Suggested Changes • Art. IV(8): define “licensing” & “qualification” because these are confusing terms to lawyers • Art. IV(8): Host must consider Home discipline • Art. IV(12): adds malpractice & pension plans to those requiring recognition, but Host may require lawyers to explain their existing plans • Art. VI(19): explain that both limited & full licensing have qualification requirements • Art. VI(20): delete last sentence about qualification exams because misleading

Conclusion • The IBA has taken no position on whether Disciplines are needed • The IBA has taken no position on whether to have separate Disciplines for lawyers • IF the Accountancy Disciplines are applied to lawyers, certain changes should be made • The IBA urges countries to consult their legal professions

Available Resources • WTO Secretariat’s Legal Services Background Note S/C/W/43 (6 July 1998) • IBA GATS Handbook: http: //www. ibanet. org/pdf/gats. pdf • IBA Resolutions http: //www. ibanet. org/aboutiba/resolutions. asp • Prof. Laurel Terry’s webpage on the WPDR, Disciplines & the Legal Profession http: //www. personal. psu. edu/faculty/l/s/lst 3/wpdr-web. htm • GATS Webpage of the ABA Center for Professional Responsibility: http: //www. abanet. org/cpr/gats_home. html