Legal Services and the GATS

1. Legal Services and the GATS WTO multilateral liberalization of trade in legal services

2. The General Agreement on Trade in Services • General obligations and disciplines • MFN, transparency, regional integration, mutual recognition, payments and transfers • Domestic regulation • Future disciplines on licensing and qualification requirements and procedures and technical standards • Specific commitments • Market access and national treatment • Progressive liberalization • Successive rounds of negotiations

3. Definition of Legal Services • Advisory services • Representation services • Host country law • Criminal law • Other fields of law • Home country law • Third country law • International law • Legal documentation and certification services

4. Trade in legal services • Cross-border supply • Legal advice over the Internet • Consumption abroad • Legal services received in other countries or over the Internet • Commercial presence • Foreign offices of law firms • Movement of natural persons • Lawyers practising abroad individually or through an established foreign law firm

5. Regulatory barriers to trade • Market access (XVI) • mostly quantitative barriers • National treatment (XVII) • de jure and de facto discriminatory barriers • Domestic regulation (VI) • all other regulations (potentially restrictive)

6. Article XVI (MA): mainly quantitative restrictions Article XVII (NT): discriminatory measures Article VI (DR): regulatory autonomy of Members subject to GATS rules (VI:4) aimed at minimising trade restrictive effects Distinguishing regulation

7. Articles XVI (MA) and XVII (NT): progressive elimination of national treatment and market access restrictive measures; possible to schedule limitations to specific commitments Article VI: test of necessity for qualification and licensing requirement and procedures and technical standards; no scheduling of trade restrictive domestic regulation GATS treatment of regulation

8. Market Access Nationality requirements Foreign equity restrictions Restrictions on legal form Restrictions on the movement of professional and technical personnel National Treatment Residency requirements Restrictions on partnership with local professionals and on the hiring of local professionals Restrictions on foreign firm names Specific commitments negotiations: trade barriers in legal services

9. Legal services specific commitments in the Uruguay Round

10. Article VI GATS • (1) Administration of all mesures of general application affecting trade in services in a reasonable, objective and impartial manner* • (2) Mechanisms for the review of administrative decisions affecting trade in services • (3) Rules on authorizations* • (6) Adequate procedures to verify the competence of foreign professionals* *Rules applicable only in sectors where specific commitments have been undertaken

11. Paragraph (4) The CTS shall develop disciplines on domestic regulation aimed at ensuring that qualification and licensing requirements and procedures and technical standards are transparent, objective and no more trade restrictive than necessary Paragraph (5) Pending the entry into force of the disciplines, the paragraph 4 criteria (objectivity, transparency and necessity) apply to all new requirements (excluding existing requirements and requirements which could be foreseen at the end of the 1994) Article VI GATS

12. The WPPS - Accountancy • Guidelines on MRAs in accountancy sector • Disciplines on domestic regulation: • Necessity • Transparency • Detailed rules on licensing • Qualifications - equivalence • Technical standards

13. WPDR - All services sectors • Necessity • policy objectives • least trade restrictive measure • reasonably available alternative means • Transparency • beyond Article III • Equivalence • Members to take account of requirements fulfilled in other jurisdictions • International standards • presumption in favour of regulation based on IS • no requirement to base regulation on IS

14. Domestic regulation in legal services • Qualification requirements • university degree of 3 to 5 years • postgraduate or vocational studies of 1 to 3 years • period of practice • professional examination • Licensing requirements and procedures • treatment of applications • content and frequency of exams • restrictions on multidisciplinary partnerships • Ethical standards • conflicts of interest • loyalty to the client • confidentiality

15. Current state of play in the negotiations • Initial phase of general proposals • Direct negotiations based on: • requests • offers • Possible plurilateral process on additional commitments

16. Issues raised in negotiating proposals • Classification issues • the desirability of following classification based on jurisdiction of certification; • inclusion of new elements, such as counselling and business transactions, participation in governance of business organizations, mediation, arbitration and other non-judicial dispute resolution services. Regulatory issues • Disciplines similar to the ones developed for the accountancy sector • Additional commitments under Article XVIII or disciplines under Article VI:4? Limited licencing concept, based on qualifications obtained in home jurisdictions (only for advisory services) • Market access and national treatment issues

17. Request/offer negotiations • Doha dates: initial requests by 30 June 2002 and initial offers by 31 March 2003 • Current state requests and bilateral consultations • Submission of initial offers

18. Negotiations on regulatory issues • The role of bilaterals in identifying country and sector-specific issues • Choice of legal context (Article XVIII or VI:4) • Choice of additional commitments (individual or reference paper type)