nation0428

THE NATION TUESDAY, APRIL 28, 2015
LAW & SOCIETY
Being text of a paper presented by former NBA President, Mr. Joseph Bodunrin Daudu (SAN) at the just concluded 19 th edition of
Commonwealth Lawyers Conference held at the Scottish Events and Conference Centre, Glasgow, UK.
How to practice in multi-jurisdictions
Introduction
ACCORDING to the American Bar
Association’s Report of the
Commission of Multijurisdictional
Practice, multijurisdictional practice is defined
as “the legal work of a lawyer in a jurisdiction
in which the lawyer is not admitted to practice
law. Mobility of lawyers on the other hand
refers to the ability of legal practitioners trained
and certified to practice law in one jurisdiction
to practice in other jurisdictions without
running afoul of the regulatory provisions in
those other jurisdictions. This phenomenon is
brought about by the fact that the world has
shrunk since the advent of globalization. The
combination of cheap and safe air travel and
the internet have made places which seemed
so far away half a century ago to be accessible
to trans-national businesses. The implication
is that these conglomerates prefer to approach
business from the stand of using legal services
that they are accustomed to and readily
available. This preference usually excludes the
use of counsel practicing in the place where the
business is to be conducted. The importation
of legal services by the foreign business outfit
into a country where its lawyers are not licensed
to practice brings about its complications and
conflicts in (1) the authority of nation-states to
regulate multi-jurisdictional practice, (2) the
law to be applied to regulate the conduct of
such counsel in the event of a breach of the
rules of ethics and (3) the consequences of unregulated
multi-jurisdictional legal practice.
This discourse will consider the basis/origin
and implications of multi jurisdictional law
practice from the African stand-point. How has
cross-border legal services fared under the
dispensation of globalization and what is the
response of African nations especially the
emerging economic power blocs to the practice
by foreign lawyers in their own territories
especially as viewed from the stand point of
competition with local counsel. It is hoped to
conclude with suggestions and or
recommendations for the removal of conflicts
and frictions going forward. The writer
naturally, expresses these views from the prism
of Nigerian law. However, a comparative
approach from the position of other African
nations will be attempted from time to time in
the course of the paper.
Globalisation and cross-border legal practice-
Nigerian perspective
The view was once widely held in Nigeria
that globalization is a journey to utopia 1 , a
lotus-eater kind of world far away from reality.
However, this is not the view of the major
players who control the economic resources of
the world. That this situation is taken seriously
by the people who control the resources of the
world has been succinctly captured by
Guobadia 2 in his paper Globalization of Legal
Services- What should Nigeria do? Thus; - ‘A
globalised economy could be defined as one in
which neither distance or national borders impede
economic transactions. This would be a
world where the costs of transport and communication
would be zero and the barriers
created by differing national jurisdictions had
vanished. The driving force of trade
•Daudu (SAN) left and Gregory Ross at the Conference
liberalisation is the World Trade Organisation,
a creature of the 1994 Uruguay Round Trade
negotiations. The WTO works on a single
undertaking principle so that once a country
signs and takes up membership it becomes a
party to all related agreements including those
reached before it joined. In other words, it is
very unlike GATT, where a nation can pick and
choose which agreements it intends to be bound
by’.
The general agreement on trade in service
One of the achievements of the Uruguay
negotiations is the General Agreement on Trade
in Services (GATS), which came into force in
January 1995. The GATS, a multi-lateral treaty
based agreement was inspired by essentially
the same objectives as its counterpart in merchandise
trade, the General Agreement on
Tariffs and Trade (GATT) The only major distinction
was that GATS dealt with services as
opposed to trade and merchandise. Legal
Services comes within the purview of GATS.
One important characteristic of GATS is that
countries that appended their signatures to it
had committed themselves to periodic negotiations
to progressively eliminate barriers to
international trade in services without
requiring further approval from other member
states as evidenced in Article 19 of the agreement
which compels members to enter in
negotiation of specific commitments “directed
to the reduction or elimination of the adverse
effects on trade in services of measures as a
means of providing effective market access.
However this process shall only take place with
a view to promoting the interests of all participants
on a mutually advantageous basis and to
securing an overall balance of rights and obligations.
(Please note the underlined passage
as this defines the scope of liberalisation of
legal services.) Essentially the agreement
comprises of legally binding rules set for trade
in all commercial services, the intention being
to spur economic growth by removing barriers
limiting trade in services and enabling
countries to attract foreign investment by
opening highly regulated services to
international competition. GATS therefore
takes into consideration (i) The National Policy
Objectives of each member and (ii) their
respective levels of Development.
It is therefore obvious that the requirements
of liberalisation are not as frightful as they are
made out. To the uninitiated, the impression
given is that developing countries must open
their markets in trade and services including
legal services to the unrestricted participation
of the developed world. It cannot be so for the
following reasons. Firstly, while it has been
agreed that no discriminatory measures will
be meted out to service suppliers of member
states in favour of domestic suppliers, it is also
agreed that liberalisation will be gradual based
on the national policy objectives of each
member and the respective levels of development.
These factors, it is submitted are complex
platforms upon which to base any such agreements
on. It is therefore more of phantom
which cannot in practical terms negatively
affect the local legal service market of any
country. In my considered opinion, flowing
from the foregoing that the market access in
legal services as conceptualised by GATS was
not expected to be universal or overwhelming
in all spheres of legal services. It is clear that
the interest of the WTO is to have legal services
of such quality and delivery commensurate to
and in tandem with the speed and efficiency
with which modern international/cross border
financial transactions are concluded.
There are so many areas of local national
economies whereby legal services have inexorably
acquired international flavour and there
appears to be nothing that domestic legal
practitioners or systems can do about it. They
include but are not limited to (i) Oil and Gas,
(ii) Aviation, (iii) Shipping, (iv) communications,
(v) Internationally financed construction,
(vi) equipment leasing, (viii) Mining and
mineral exploration, (ix) Privatisation by way
of mergers, acquisition etc. It must be noted
at this stage that in the past, the excuse for
bringing foreign counsel was that local
counsel were not equipped technically to deal
with the demands of clients in those sectors.
But this pretext has waned considerably as
(taking Nigeria for example) local counsel
have gone in droves to acquire requisite
expertise and experience in the aforeenumerated
areas. However such recourse to
the excuse of lack of local expertise was
unnecessary in view of the express provisions
of the GATS.
Summary of the criteria for legal practice in
selected african countries i.e Nigeria, south
Africa East African states and Ghana Nigeria
Item 49 of the exclusive legislative list in
Part 1 of the 2 nd Schedule to the 1999 Constitution
of the Federal Republic of Nigeria lists
‘Professional occupations as may be designated
by the National Assembly’. This means
that only the National Assembly as opposed
to the legislative house of the 36 States of the
Federation can legislate on all issues pertaining
to the practice of law in Nigeria as a profession.
The Legal Practitioners Act 3 prescribes
the qualification of a person qualified to
practice law in Nigeria 4 and it includes (a)
persons whose names are on the Roll of legal
practitioners, (b) persons who apply to the
Chief Justice of Nigeria and are entitled to
practice as advocates from countries where
the legal system is similar to to that of Nigeria
and the CJN is of the opinion that it is
expedient for that person to practice as a Barrister
for the purpose of the proceedings described
in the application.
The LPA also sets out the disciplinary regime/procedure
for erring members of the
profession. It is to be noted at this point in
time that the LPDC can only discipline lawyers
who have been called to the Nigerian
Bar. This raises the question of how foreign
counsel whose professional conduct impact
badly on the ethics of the profession while
working in Nigeria can or should be disciplined.
This aspect will be dealt with in due
course.
Indeed, there is no move to instant
liberalisation of legal services; that is not
the concept in GATS. Article 19, which calls
for a progressive move towards
37
liberalisation is therefore relevant, let individual
nations readiness be reviewed as required
by the treaty every 5 years and at the
next Round Nigerian stakeholders such as
the NBA and its specialised sections must
be ready with facts and figures to justify the
state of readiness of Nigeria to liberalise
and whether it is indeed feasible owing to
the conduct of our partners so to do. The
NBA position on multi-jurisdictional
practice as last reviewed in the year 2012 is
therefore clear from the foregoing. That in
the long run liberalisation of legal services
is foreseeable but not imminent. Nigeria
should however not include legal services
in its schedule until bilateral and
multilateral issues of market access and
discriminatory practices are resolved. Furthermore,
there is a need for the Governments
of Nigeria (Federal and States) to rapidly
industrialise. The absence of viable industries
in the required number denies Nigerian
lawyers of the necessary enabling
platform to practice modern international
commercial practice. No foreign counsel is
expected to involve him or herself in land,
chieftaincy, election and other local
indigenous legal disputes of customary
status. Any Initiative that will promote local
content in the rendering of legal services is
being encouraged and supported. However,
this is not to justify tardiness in our
preparations to join the five African nations
that have opened their doors to foreign legal
counsel.
South Africa
No doubt the legal services sector has experienced
several changes as a consequence
of the growth in international trade. All over
the world lawyers are required to provide
services and advice to their clients who do
business across borders. Businesses and organizations
involved in international transactions
need reliable, up to date and integrated
services covering all aspects of such
transactions.
The Legal Profession in South Africa is divided
into Advocates and Attorneys and they
are regulated by the General Council of the
Bar of South Africa and the Law Society of
South Africa respectively. No dual practice
is allowed. Legal practitioners are regulated
by different laws and each has its own set of
admission requirements. In 1995, South Africa
made legally binding commitments to
liberalize legal services under the WTO General
Agreement on Trade in Services. The
commitments allow, foreign legal practitioners
to establish, a commercial presence in
and transfer personnel, including legal practitioners,
to South Africa.
South Africa made specific commitments
on the establishment of a commercial presence
(mode 3) and the temporary transfer of
personnel (mode 4) to South Africa. The
commitments are limited to the supply of
legal advisory services in foreign
international and domestic law and legal
representation services in domestic law by
a locally established entity. Such an entity
must be owned or controlled by natural or
legal persons of any other WTO member
state. 5 Please note that to practice local law,
a foreign lawyer must requalify as a South
African attorney.
Unless a person is from a designated country
(at present Swaziland, Namibia, Lesotho
and the former TBVC states) a person must
complete a South African LLB degree and
comply with the other requirements with
regard to articles or community service,
practical legal training and the admission
examination. A person who intends to be
admitted in the Republic of South Africa,
can submit his/her degree to a South African
university for an indication of whether any
credit by such university would be given
with regard to any part of the foreign law
degree.
Further requirements with regard to
admission are provided in the Attorneys Act,
1979 as amended 6 . A person must be a South
African citizen or permanent resident and be
otherwise fit and proper in the opinion of
the court to be admitted as an attorney. The
current qualification requirements for the
admission and enrolment of attorneys and
advocates present an insurmountable barrier
to foreign legal practitioners wanting to
practice in South Africa.
•To be continued next week