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Published online by Cambridge University Press: 24 January 2025
This article provides insight into the emerging global-local and public-private nature of professional regulation. Specifically, it reports on recent cross-border interaction to modify professional regulation involving the recognition of qualifications, rights of practice and discipline and ethics. That interaction reveals how – loosely - the regulation of legal competence and conduct has been drawn into a web of global governance. A particular interest is the prominent role that Australian practitioners and officials have played in both multilateral and bilateral relations.
In characterising the way governance of regulation has gone global, Picciotto describes it as a networked field. The governance of regulation has spilled over national borders, yet it has not moved cleanly upwards into a regime of binding public international law. Global governance lacks a clear regulatory hierarchy. Regulatory relations extend out horizontally as well as vertically and they blur the boundaries between public and private regulators.
1 Sol, Picciotto, ‘Regulatory Networks and Multi-Level Global Governance’ in Olaf, Dilling, Martin, Herberg and Gerd, Winter (eds), Responsible Business: Self-Governance and Law in Transnational Economic Transactions (2008) 315Google Scholar.
2 Anne-Marie, Slaughter, A New World Order (2004)Google Scholar.
3 For example, Roger, King, The Regulatory State in an Age of Governance: Soft Words and Big Sticks (2007)Google Scholar.
4 In another context, Susan, Sell, ‘The Quest for Global Governance in Intellectual Property and Public Health: Structural, Discursive, and Institutional Dimensions’ (2004) 77 Temple Law Review 363Google Scholar.
5 For example, Doreen, McBarnett, ‘Legal Creativity: Law, Capital and Avoidance’ in Maureen, Cain and Christine, Harrington (eds), Lawyers in a Postmodern World: Translation and Transgression (1994) 73Google Scholar.
6 Wendy, Becker, Miriam, Herman, Peter, Samuelson and Allen, Webb, ‘Lawyers Get Down to Business’ (2001) 2 McKinsey Quarterly 45Google Scholar. Under this system, certain US and UK firms have become very large international practices.
7 Gunther, Teubner (ed), Global Law without a State? (1997)Google Scholar.
8 Richard, Applebaum, William, Felstiner and Volkmar, Gessner (eds), Rules and Networks: The Legal Culture of Global Business (2001)Google Scholar.
9 Angus, Cameron and Ronen, Palan, The Imagined Economies of Globalization (2004)Google Scholar.
10 Saskia, Sassen, The Global City: New York, London, Tokyo (2nd ed, 2002)Google Scholar.
11 William Henderson and Arthur Alderson, ‘The Changing Economic Geography of Large U.S. Law Firms', Paper Presented at the Meeting of Canadian and United States Law and Society Associations, Montreal, May 2008.
12 Carole, Silver, ‘Local Matters: Internationalizing Strategies for U.S. Law Firms’ (2007) 14 Indiana Journal of Global Legal Studies 67Google Scholar; Sida, Lieu, ‘Globalization as Boundary-Blurring: International and Local Law Firms in China's Corporate Law Market’ (2008) 42 Law and Society Review 771Google Scholar.
13 If law is not central to state or market power, affairs are ordered and disputes resolved in other ways, then the monopoly of the legal profession will not be so significant; see Yves Dezalay and Bryant Garth, The Internationalisation of the Palace Wars: Lawyers, Economists and the Contest to Transform Latin American States (2002). True in Japan, for instance, for many years, though lawyers have been influential in other roles.
14 Richard, Guo, ‘Piercing the Veil of China's Legal Market: Will the GATS Make the China More Accessible for US Law Firms?’ (2002) 13 Indiana International and Comparative Law Review 147Google Scholar; Chris, Arup, ‘Experimenting with Regulation: Liberalisation of Professional Services in the People's Republic of China’ (2006) 8 Australian Journal of Asian Law 1Google Scholar.
15 Organisation for Economic Co-operation and Development, International Trade in Services: Assessing Barriers and Encouraging Reform (1997).
16 The EC member countries are probably the most advanced down this track with the 1988 Directive on Mutual Recognition of Diplomas and the 1999 Home Title Directive. For evaluation, see Irina, Katsirea and Anne, Ruff, ‘Free Movement of Law Students and Lawyers in the EU: A Comparison of English, German and Greek Legislation’ (2005) 12 International Journal of the Legal Profession 367Google Scholar.
17 Law Council of Australia, Foreign Lawyers and the Practise of Foreign Law in Australia: An Information Paper (2008) <http://www.lawcouncil.asn.au/shadomx/apps/fms/msdownload.cfm?file_uuid=314C0D0B-1C23-CACD-2253-F19A22E78A87&siteName=lca> at 28 September 2009.
18 See Law Council of Australia, LCA Brief, US Opportunities for Australian Lawyers (2007) <http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=8B6E3BD8-1C23-CACD-2205-4909377D55F6&siteName=lca> at 28 September 2009. For example, New York State will give recognition on the basis of a one year local masters degree.
19 Lucien Karpik, French Lawyers: A Study in Collective Action, 1274 to 1994 (Nora Scott trans, 1999) [trans of: Les Avocats entre l’État, le Marché et le Public 1274 -1994].
20 It has, eg, been a sensitive issue in Japan, see Chris, Arup, The World Trade Organization Knowledge Agreements (2nd ed, 2008) 256Google Scholar.
21 For example, see Legal Profession Act 2004 (Vic), s 2.8.7.
22 The variations are examined in Carole, Silver, ‘Regulatory Mismatch in the International Market for Legal Services’ (2003) 23 Northwestern Journal of International Law and Business 487Google Scholar; for the latest details, see United States Initial Services Offer, WTO Doc TN/S/O/USA (2003) (Initial Services Offer - Communication from the US) .
23 Bryant, Garth, ‘Introduction: Multidisciplinary Practice after Enron: Eliminating a Competitor but not the Competition’ (2004) 29 Law and Social Inquiry 591Google Scholar.
24 A new issue has been the outsourcing of certain tasks, eg, by US firms to Indian services — does this involve the practice of law? See Adam, Sechooler, ‘Globalization, Inequality, and the Legal Services Industry’ (2008) 15 International Journal of the Legal Profession 231Google Scholar.
25 Laurel, Terry, Carole, Silver, Ellyn, Rosen, Carol, Needham, Robert, Lutz and Peter, Ehrenhaft, ‘Transnational Legal Practice (International Legal Developments in Review)’ (2008) 42 International Lawyer 833, 850Google Scholar.
26 Mary, Daly and Roger, Goebel (eds), Rights, Liabilities and Ethics in International Legal Practice (1995)Google Scholar.
27 Christine, Parker, ‘Law Firms Incorporated: How Incorporation Could and Should Make Firms More Ethically Responsible’ (2004) 23 University of Queensland Law Journal 347Google Scholar.
28 Marrakesh Agreement Establishing the World Trade Organization Annex 1 B General Agreement on Trade in Services, opened for signature 15 April 1994 1867 UNTS 3 (entered into force 1 January 1995).
29 Some scholars attribute a major role to law in shaping globalization, see Terrence, Halliday and Bruce, Carruthers, ‘The Recursivity of Law: Global Norms and National Lawmaking in the Globalization of Corporate insolvency Regimes’ (2007) 112 American Journal of Sociology 1135Google Scholar.
30 For information on the commitments that member countries made in 1995, see Council for Trade in Services, Legal Services, Background Note by the Secretariat, WTO Doc S/C/W/43 (1998) .
31 Working Party of the Trade Committee, Trade Directorate, OECD, Managing Request-Offer Negotiations Under the GATS: The Case of Legal Services, OECD Trade Policy Working Paper No 2, TD/TC/WP(2003)40/FINAL (2004) (written by Massimo Grosso).
32 Some member countries, largely developing countries, still have not been prepared to enter negotiations at all, eg, India.
33 Legal Instruments Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, WTO Doc GATS/SC/90, (1994) (United States – Schedule of Commitments).
34 Legal Instruments Embodying the Results of the Uruguay Round of Multilateral Trade Negotiations, WTO Doc GATS/SC/6, 94-1005 (1994), (Australia – Schedule of Commitments).
35 WTO Doc, above n 22; Australia Conditional Revised Offer, WTO Doc TN/S/O/AUS/Rev.1, 05-2204 (2005) (Revised Services Offer - Communication from Australia).
36 See principally the preamble to the Marrakesh Agreement Establishing the World Trade Organization Annex 1 B General Agreement on Trade in Services, opened for signature 15 April 1994 1867 UNTS 3 (entered into force 1 January 1995). The point was reaffirmed in Ministerial Declaration: Annexes, WTO Doc WT/MIN(05)/DEC (2005) (Declaration from the Hong Kong Ministerial Meeting).
37 Markus, Krajewski, National Regulation and Trade Liberalization in Services (2003)Google Scholar.
38 Guidelines for Recognition of Qualifications in the Accountancy Sector, WTO Doc PRESS/73, 97-2279 (1997) (Press Release Regarding Adoption of Guidelines by the WTO); Disciplines on Domestic Regulation in the Accounting Sector, WTO Doc S/L/64, 98-5140 (1998) (Regulations Adopted by the Council for the Trade in Services on 14 December 1998).
39 This approach echoes the Council Directive (EC) No 89/48/EEC of 21 December 1998 on a General System for the Recognition of Higher–Education Diplomas [1988] OJL 19, 16.
40 Cornelia, Woll and Alvaro, Artigas, ‘When Trade Liberalisation Turns into Regulatory Reform: The Impact of Business-Government Relations in International Trade Politics’ (2007) 1 Regulation and Governance 121Google Scholar.
41 See Nitsan, Chorev, Remaking US Trade Policy: From Protectionism to Globalization (2007)Google Scholar.
42 See King discussing the UK reforms: King, above n 3, ch 8. He places Australia in this category too.
43 Report of the Chairman of the Working Party on Domestic Regulation to the Special Session of the Council for Trade in Services, WTO Doc JOB(05)280 (2005): ('there is a need for domestic coordination between trade ministries and regulating agencies, so that the eventual disciplines do not overly impinge on regulatory autonomy and are in keeping with the objectives of the GATS’). The drafts are not published by the WTO, but they can be viewed through an ABA website, see ABA, Center for Professional Responsibility, Track 2 of the GATS <http://www.abanet.org/cpr/gats/track_two.html> at 11 October 2009.
44 The Commonwealth Government is now contemplating legislation based on the constitutional corporations power to overcome State differences; see Attorney-General's Department ‘Legal Profession Reform to Strengthen Australian Economy’ (Press Release, 3 February 2009); further Alex Boxsell, ‘State A-Gs to Lose Regulatory Control', Australian Financial Review (Sydney), 6 February 2009, 24.
45 Sydney, Cone, ‘Legal Services and the Doha Round Dilemma’ (2007) 41 Journal of World Trade 245Google Scholar.
46 See Gkoutzinis regarding WTO adoption of the prudential regulation recommendations of the central bankers’ network, the Basel Committee: Apostolos, Gkoutzinis, ‘International Trade in Banking Services and the Role of the WTO’ (2005) 39 International Lawyer 877Google Scholar.
47 See Laurel, Terry, ‘Lawyers, GATS and the WTO Accountancy Disciplines: The History of the WTO's Consultation, the IBA GATS Forum and the September 2003 IBA Resolution’ (2004) 22 Penn State International Law Review 695, 708Google Scholar, fn 34. An academic lawyer, Laurel Terry is also able to report from the ‘inside’ as an IBA and ABA committee member.
48 Ibid 723.
49 The texts of these various resolutions can be viewed through the IBA, IBA Resolutions <http://www.ibanet.org/About_the_IBA/IBA_resolutions.aspx> at 11 October 2009. For background, see Laurel, Terry, ‘U.S. Legal Ethics: The Coming of Age of Global and Comparative Perspectives’ (2005) 4 Washington University Global Studies Law Review 463Google Scholar.
50 This has remained an issue in the EC with the Home Title Directive, see Katsirea and Ruff, above n 16.
51 IBA, Resolution of the IBA Council on transfer of skills and liberalization of trade in legal services (2008) <http://www.ibanet.org/PPID/Constituent/Legl_Profession_World_Orgs/WTO_Working_Group/Default.aspx> at 11 October 2009.
52 IBA, Communication to the World Trade Organization on the Suitability of Applying to the Legal Profession the WTO Disciplines for the Accountancy Sector (2003) <http://www.ibanet.org> at 11 October 2009.
53 Terry, above n 47, 714, fn 60.
54 OECD, Financial Action Task Force on Money Laundering, Review of the FATF Forty Recommendations Consultation Paper (2002).
55 In Australia, one issue is whether the privilege extended to communications with foreign lawyers, see Kennedy v Wallace [2004] FCA 332 (Unreported, 25 March 2004).
56 John, Braithwaite, Markets in Vice, Markets in Virtue (2005)Google Scholar.
57 Robert, Lutz, Philip, von Mehren, Laurel, Terry, Peter, Ehrenhaft, Carole, Silver, Clifford, Hendel, Jonathan, Goldsmith and Masahiro, Shimojo, ‘Transnational Legal Practice Developments’ (2005) 39 International Lawyer 619, 626Google Scholar.
58 Terry et al, above n 25, 846. For the Recommendations, see: http://www.fatf-gafi.org/dataoecd/32/3/34046414.pdf.
59 For example, William, Brittain-Catlin, Offshore: The Dark Side of the Global Economy (2005)Google Scholar.
60 See, eg, Working Party on Domestic Regulation, Room Document, Revised Draft, Disciplines on Domestic Regulation Pursuant to GATS Article VI:4 (2008) ABA <http://www.abanet.org/cpr/gats/track_two.html> at 11 October 2009.
61 On these committees and delegations, ABA practitioners combine with academic experts, the same experts who write informatively about regulation, such as Bob Lutz (Southwestern University), Carole Silver (Northwestern/Georgetown University) and Laurel Terry (Penn State University).
62 Richard, Self, ‘Legal Services and the Emergence of a Service Economy: Considerations’ in Linda, Elliot (ed), Michigan Yearbook of International Legal Studies: Issues of Transnational Legal Practice (1985) 269Google Scholar.
63 Details of FTAs at USTR, Free Trade Agreements <http://www.ustr.gov/trade-agreements/free-trade-agreements> at 11 October 2009.
64 AUSFTA, signed 18 May 2004, [2005] ATS 1 (entered into force 1 January 2005),, Chapter Ten: Cross-Border Trade in Services, art 10.5 .
65 Chris, Arup, ‘Services and Investment in the Free Trade Agreements: Liberalization, Regulation and Law’ in Ross, Buckley, Vai, Lo and Laurence, Boulle (eds), Challenges to Multilateral Trade: The Impact of Bilateral, Preferential and Regional Agreements (2008)Google Scholar.
66 ABA, Center for Professional Responsibility, Standing Committee on Professional Discipline et al, ‘Recommendation and Report', (2006) ,.
67 Conference of Chief Justices, Resolution 5 Regarding the Proposed Recommendation Pending Before the House of Delegates of the American Bar Association on the Legal Services Portion of the General Agreement on Trade in Services (GATS), (2006) <http://ccj.ncsc.dni.us/IndependenceofStateJudicialSystems/resol5GATS.html> at 10 October 2009.
68 Now known as the ABA Center for Professional Responisbility, ABA Model Rule for the Licensing and Practice of Foreign Consultants (2006) <http://www.abanet.org/cpr/mjp/FLC.pdf> at 15 November 2009.
69 Terry et al, above n 25, 850.
70 See ILSAC, ILSAC Membership (2007) <http://www.ilsac.gov.au/www/ilsac/ilsac.nsf/Page/Membership> at 10 October 2009.
71 Negotiating Proposal: Legal Services Classification, Supplement, WTO Doc S/CSS/W/67/Suppl.2, S/CSC/W/32 (2002) (Negotiating Proposal - Communication from Australia).
72 Now see DFAT, Plurilateral Request from Australia, Draft #1 (2006) <http://www.dfat.gov.au/trade/negotiations/services/requests_cosponsored.html> at 10 October 2009.
73 For the current status of the negotiations, see the DFAT, Free Trade Agreements <http://www.dfat.gov.au/trade/ftas.html> at 10 October 2009.
74 Development of Disciplines on Domestic Regulation in the Legal and Engineering Sectors, WTO Doc S/WPDR/W/34 (2005) (Communication from Australia to the WTO Working Party on Domestic Regulation).
75 See subsequently the more agnostic proposal: Joint Statement on Legal Services, WTO Doc TN/S/W/37, S/CSC/W/46 (2005) (Communication from Australia and other countries to the WTO Council for Trade in Services, Special Session, Committee on Specific Commitments).
76 In particular, Russell Miller, a partner in Minter Ellison.
77 AUSFTA, signed 18 May 2004, [2005] ATS 1 (entered into force 1 January 2005), Non-Conforming Measures (Services and Investment), Annex 1, Schedule of the United States-12 and Annex II, Schedule of the United States-8.
78 LCA, International Law Section, Annual Report 2005-2006, (2006) 6 <http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=8B6D2F78-1C23-CACD-2251-4C17FD1ECCD2&siteName=lca> at 10 October 2009. The Law Deans were Michael Coper (Australian National University) and Michael Crommelin (University of Melbourne).
79 Terry et al, above n 25, 848.
80 Outgoing President John North (a solicitor from country NSW), now a District Court judge, and incoming President Tim Bugg (a solicitor from Tasmania), now chair of ILSAC.
81 Dr Gordon Hughes, Blake Dawson partner, who has also been President of the LCA and President of Lawasia.
82 Attorney-General's Department, ‘Better Access For Australians in the US', (Press Release 040/2007, 1 March 2007). See Conference of Chief Justices, Resolution 7, Regarding Authorization for Australian Lawyers to Sit for State Bar Examinations (2007) <http://ccj.ncsc.dni.us/LegalEducationResolutions/resol7AustralianLawyersStateBarExams.html> at 10 October 2009.
83 The ABA accredits US law schools. Australia does not at present have a law school accreditation system. Instead, the admitting authorities of the state supreme courts (for example the Council of Legal Education in Victoria) approve subjects that schools wish to offer as part of a law degree leading to qualification for admission to practise. CALD has since begun its own accreditation project, perhaps with the US interest as a catalyst, see: W J Ford, ALTA Newsletter (2008) 34 <http://www.cald.asn.au/docs/ALTAEdn2-08.pdf> at 10 October 2009. This will have huge implications for the small new schools. Another possibility might be for an Australian school to seek accreditation directly with the ABA; it is understood the University of Melbourne has considered this connection.
84 Terry et al, above n 25, 848.
85 Ibid 850.
86 Ibid 849.
87 See LCA, above n 18.
88 David Hovenden, ‘Solving the Chinese Puzzle', Lawyers Weekly, No 203, 6 August 2004, 9.
89 See, eg, Kate Gibbs, ‘Australian Lawyers to Hit NY Bar', Lawyers Weekly, No 187, 16 April 2004, 1.
90 Negotiating Proposal for Legal Services, Revision, WTO Doc S/CSS/W/67/Suppl.1/Rev/, 01-3435 (2001) (Communication from Australia to the WTO Council for Trade in Service, Special Session, Committee on Specific Commitments).
91 ILSAC, International Legal Services Statistics <http://www.ilsac.gov.au/www/ilsac/ilsac.nsf/Page/RWPD9449DB5F45283E7CA257547002124E4> at 10 October 2009.
92 Terry et al, above n 25, 842.
93 ILSAC, Submission on Legal Services to DFAT in respect of Australia-India Free Trade Agreement Feasibility Study (2008) <http://www.ilsac.gov.au/www/agd/rwpattach.nsf/VAP/(3A6790B96C927794AF1031D9395C5C20)~Australia+-+India+fta+feasibility+study+-ILSAC+submission+on+legal+services.pdf/$file/Australia+-+India+fta+feasibility+study+-+ILSAC+submission+on+legal+services.pdf> at 10 October 2009. In late 2008, a US party visited India for discussions; an Australian mission is going in September 2009. On strategy, see Robert Sawhney, Internationalisation for Australian Law Firms (2009) Lawyers Weekly <http://www.lawyersweekly.com.au/blogs/opinion/archive/2009/07/15/internationalisation-for-australian-law-firms.aspx> at 10 October 2009.
94 See, eg, the program for the 2009 ABA/Georgetown University Center for the Legal Profession Conference: The Future is Here: Globalization and the Regulation of the Legal Profession <http://www.law.georgetown.edu/legalprofession> at 10 October 2009. Steven Mark, NSW Legal Services Commissioner, presented a paper.
95 SCAG, Communiqué (November 2008) 6 <http://www.scag.org.au/lawlink/SCAG/ll_scag.nsf/pages/scag_meetingoutcomesSCAG> at 10 October 2009.
96 See James Eyers, ‘Push to relax admission rules', Australian Financial Review (Melbourne), 3 July 2009, 41. The document is: Law Admissions Consultative Committee, Uniform Principles for Assessing Qualifications of Overseas Applicants for Admission to the Australian Legal Profession (2009) LCA <http://www.lawcouncil.asn.au/shadomx/apps/fms/fmsdownload.cfm?file_uuid=30440EFC-1C23-CACD-22AD-FF00728F08CE&siteName=lca> at 10 October 2009; It is reported the LACC has now wound back some of these requirements, see ‘Hearsay’, Australian Financial Review, 25 September 2009, 42.