International Bar Association
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International Bar Association

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International Bar Association International Bar Association Presentation Transcript

  • Legal Services & Domestic Regulation World Trade Organization March 29, 2004 Prof. Laurel S. Terry Representing the International Bar Association Email: [email_address]
  • 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/lst3/wpdr-web.htm
    • GATS Webpage of the ABA Center for Professional Responsibility:
    • http://www.abanet.org/cpr/gats/gats_home.html