IBA issues guide to legal services trade as international agreements proliferate
Latest trade agreements affecting legal services ‘unrecognisable from the past’, says co-author
The International Bar Association (IBA) has published a revised guide to legal services trade against the background of a proliferation of international agreements.
The new edition of the IBA’s Guide to International Trade Agreements takes account of significant shifts in international trade since the last edition in 2013.
It advises that while the General Agreement on Trade in Services (GATS) – a 1995 treaty of the World Trade Organization – “remains the starting point for trade in legal services, there have been a host of developments both inside and outside the WTO that apply in different ways to different countries.”
The guide sets out to help national Bar Associations understand trade agreements signed by governments, both within and outside of the WTO, that affect trade in legal services, which in 2022 was estimated to be worth close to US$1tn.
James Killick, a partner at White & Case’s Brussels office, welcomed the new guide, saying historically, lawyers, especially law firms, faced many restrictions from practising law outside their home jurisdictions.
While the EU had set the trend against that by allowing freedom of establishment for lawyers and free movement of legal services – which allows cross-border operations, subject to respecting proportionate and non-discriminatory regulatory rules locally – outside the EU, a law firm’s ability to practice is governed by GATS or bilateral or multilateral free trade agreements.
These include the UK’s Brexit deal, the Comprehensive Free Trade Agreement, the pan-Asian Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the Africa Continental Free Trade Agreement.
The revised handbook aims to assist bars in lobbying governments on issues of fundamental importance to lawyers, preserve their regulatory status and assist members seeking to trade in new jurisdictions.
Killick said that while commitments made by WTO members under GATS had not materially changed recently, there had been much activity over new FTAs.
There are over 356 bilateral and regional trade agreements globally, covering trade in legal services, international arbitration and other forms of dispute resolution to international human rights.
Killick said: “Each new FTA offers a foreign law firm the potential to establish in a new country – assuming that its home jurisdiction has negotiated well. And there are dozens of new FTAs entering into force each year.”
The book was authored by members of IBA’s International Trade in Legal Services Committee (IBA ITILS), including Alison Hook, co-Founder of Hook Tangaza, a legal sector consultancy; Laurel Terry, Professor of Law Emerita, Penn State Dickinson Law; and Jonathan Goldsmith, a Law Society council member, best known for his work with EU lawyers’ group, CCBE. All are active in the IBA.
Hook remarked: “The latest trade agreements being negotiated are unrecognisable from the past. The most ambitious includes extensive chapters on regulatory cooperation, joint policy initiatives and cooperation in international rule-making bodies. This, along with the digital revolution changing how cross-border trade in legal services is being done, means that Bars need to be on top of what is going on in this area or risk being side-lined.”
Mickaël Laurans, chair of the ITILS Committee, who is also head of international at the Law Society of England and Wales, said: “The handbook has been the go-to resource for Bars and law societies having to consider the challenges of cross-border trade in legal services.”
He added the authors had done “an immense service in updating the guide to reflect the realities of today’s international trade”.
Killick agreed, saying: “Law firms must keep up to date on the status of FTAs to be able to expand their horizons,” saying the new book was “mandatory reading for leading ambitious law firms”.