International legal services
What are international legal services?
International legal services concern the international or transnational trade in legal services. The ways in which international or transnational trade in legal services can arise is best understood in the ‘four modes of service delivery’ under the General Agreement on Trade in Services (commonly known as GATS):
1. ‘Cross-border’, the service ‘travels across the border’ but not the lawyer or the client.
For example:
- a lawyer in one country prepares a legal advice or a document (for example, a contract) and delivers it to a client in another country (whether by telephone, video conference, e-mail or facsimile)
- a lawyer in Singapore conducts a video conference with a client in Perth
- a lawyer in Sydney prepares a legal advice which is sent via mail or e-mail to a client in New Zealand, or
- a lawyer in Brisbane prepares a contract to purchase a property and sends it by post to a client in Hong Kong for his or her signature.
2. ‘Consumption abroad’, the client travels abroad to seek the services of an overseas-based lawyer.
For example:
- a client in one country travels to another country to engage the services of a lawyer in that country (for example, to institute legal action or commence contract negotiations on the client’s behalf in that other country)
- an Australian business person flies to Japan on business and seeks advice from a Japanese firm on Japanese business law
- an overseas student travels to Australia to study law
- a client from Germany comes to Australia to commence legal action against an Australian-based defendant, or
- an American company comes to Australia to obtain legal advice from a Sydney-based firm.
3. ‘Commercial presence’, a lawyer from one country establishes an office in another country.
For example:
- a Chinese law firm establishes a branch office in Sydney, or
- an Australian law firm establishes a branch office in Jakarta.
4. ‘Movement of natural persons’ (or ‘fly-in fly-out’), a lawyer from one country travels to another country to temporarily deliver legal services.
For example:
- a barrister flies from Sydney to represent a client in court or tribunal in another country and returns to Sydney at the conclusion of the court or tribunal proceedings, or
- a lawyer travels with a client from Singapore to Australia to assist the client in conducting contract negotiations during the client’s visit to Australia.
What are the benefits of international legal services?
Legal business services underpin international trade and investment. Together with other business services like accountancy, management consultancy and computer and information technology services they are increasingly critical to the growth of trade and investment across borders.
Legal services enable and facilitate business activity by defining rights and the responsibilities and processes for dispute resolution where commercial conflicts arise. Typically, they will involve professionals skilled in the business services of the countries or jurisdictions involved in the investment, trade or transaction, not just one country or jurisdiction.
Removal of unnecessary regulatory barriers to legal and other business services provides benefits to countries through increased efficiencies and economic growth. Users of legal business services benefit from a greater choice of suppliers, the availability of integrated business services and the introduction of new technologies in the development and supply of such services.
What are the barriers to international legal services?
Some countries have restrictions on the extent to which foreign lawyers can practise law in those countries. While all countries will impose requirements that lawyers must meet in order to practise law, market barriers will exist where those requirements discriminate between local and overseas lawyers.
Such market barriers can include additional study requirements or number of years’ practice in the overseas jurisdictions, or a prohibition on providing certain kinds of legal services.
What is being done about barriers to international legal services?
World Trade Organization (WTO) and the Liberalisation of Trade in Legal Services
Australia has tabled three negotiating proposals promoting the liberalisation of transnational trade in legal services in the current Doha Round of multilateral trade negotiations. These proposals were developed by the Australian Government Attorney-General’s Department with input from ILSAC, members of the legal profession and the Department of Foreign Affairs and Trade (DFAT).
Australia is recognised by our trading partners as playing a leading role in promoting the liberalisation of transnational trade in legal services under the WTO. Australia’s primary objective in legal services is to encourage WTO members to make binding commitments on legal services that would provide access for foreign lawyers to practise foreign law (home-country, third-country and international law), but with a right to work in association with, or employ, host-country lawyers to facilitate the availability of legal services covering the laws of multiple jurisdictions in all WTO member economies. Hence, a key aspect of Australia’s position is to promote a system that would enable foreign lawyers to obtain a ‘limited licence’ to practise foreign law in a host-country without having to undertake an unnecessarily burdensome process to meet admission requirements to practise host-country law.
Negotiations on legal services are conducted under the WTO’s General Agreement on Trade in Services (GATS). The WTO currently has 151 members. More details on Australia’s interests in multilateral trade negotiations, including Australia’s services offers under the current Doha Round and specific negotiating proposals on legal services, are available at DFAT’s ‘Trade in Services’ dedicated web page.
The International Legal Services Advisory Council
The International Legal Services Advisory Council (ILSAC) was established by the Australian Government in June 1990 to advise the Attorney-General on matters relevant to Australia’s international performance in legal and related services. It has government and non-government members. ILSAC’s Chairman is Sir Laurence Street, AC KCMG QC. The ILSAC Secretariat is located within the Office of Legal Services Coordination (OLSC) and provides secretariat and other services to ILSAC and a contact point for enquiries on Australia’s international capabilities, including international legal cooperation.