Legal Services & Domestic Regulation World Trade Organization March 29, 2004 Prof. Laurel S. Terry Representing the International Bar Association

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 IBAs prior GATS work May 2003 IBA GATS Forum September 2003 IBA resolutions Questions the IBA did not consider IBAs 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 IBAs May 2003 GATS Forum led to 2 IBA resolutions, approved 9/03

IBA Resolutions Sent to the WTO The IBAs 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 July 2002 IBA Seminar in Geneva May 2003 IBA GATS Forum

The IBA May 30, 2003 GATS Forum Purpose: to respond to the WTOs 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 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 Secretariats Legal Services Background Note S/C/W/43 (6 July 1998) IBA GATS Handbook: IBA Resolutions Prof. Laurel Terrys webpage on the WPDR, Disciplines & the Legal Profession GATS Webpage of the ABA Center for Professional Responsibility: