Statement addressed on the occasion of the visit of Minister for Constitutional Affairs, David Lammy to Brazil, São Paulo, SP, Brazil, 16 February 2005.
As I am currently working from our London offices, I have asked one of my law partners to read this statement to you tonight, which I have prepared with the responsibility of being the senior partner of Noronha Advogados, the only Brazilian law firm based in the United Kingdom. In addition, I am a solicitor duly accredited with the Law Society of England and Wales and a member of its International Issues Committee.
Whilst it is true that the liberalisation of the legal professions can highly contribute to the formation of services centres and thus bring about prosperity, it is also true that this is not the only decisive element behind success. Other institutional aspects are also important like political and economic stability, institutional competitiveness and access to international markets.
This is applicable to all countries in general, but particularly to developing countries, such as Brazil. For such cases, imbalances in the legal treatment may jeopardise not only the development of the legal professions, but also put at risk access to justice and ultimately the rule of law in such jurisdictions.
The matter of the liberalisation of the legal professions has been object of the General Agreement of Trade in Services (GATS) of 1994. It is to be noted that the United Kingdom was represented in the respective Uruguay Round negotiations by the European Union (EU). Thus, concessions were made by the EU to its trading partners and vice-versa. Whilst the jurisdiction of England and Wales is quite liberal, those of the remaining members of the EU are quite restrictive to access by third countries, particularly by developing countries.
If a developing country like Brazil is to liberalise the access to its internal legal markets, it would be obliged by the most favoured nation clause of the GATT 1947 to liberalise access to all other 148 members states of the World Trade Organisation. As an examination of the WTO concessions made by the major trading parties would reveal, access to their legal markets is still a dream. This is true of the United States of America, this is true of the EU, this is true of Japan, this is true of Canada, this is true of Switzerland.
I have mentioned repeatedly at meetings of the International Issues Committee of the Law Society of England and Wales that, as a duty of good faith deriving from sundry international treaties, including those of the Uruguay Round, whenever a developed country makes a proposition to a developing country, this proposal should be transparent about the full implications of its offer. In your case, this duty will not be accomplished without revealing your records about the restrictive nature of market access to the legal markets of other EU countries and those of developed countries in general.
In addition, the question of horizontal barriers to trade in practice at the EU and the UK should be approached. It is now virtually impossible for a Brazilian lawyer as such to access the EU markets in view of uniform immigration restrictions, even if technical access to the legal markets would be permitted in the UK. This is a problem that we, as a law firm, have observed in the UK as well as in Portugal, with a commercial presence in those countries for over 17 years. For this reason, all of the professionals we have in our offices in those jurisdictions have EU passports.
With specific respect to the liberalisation of services towards the UK, I must say that I see this matter with grave preoccupation as a result of the possible implications of the proposed changes under the Clementi review. This is so because, by bringing outside control and supervision to the legal professions, the respective norms would contradict international law and renege on sundry international commitments.
The resulting situation would make developing country law firms unable to compete, in their own markets, with super-capitalised public English firms operating out of supermarkets. This would also mean the demise of the dreams of internationalisation of developing country law firms. With respect of the legality of the Clementi scenarios before international law, I prepared a report for the International Issues Committee of the Law Society of England and Wales, a copy of which I would like to deliver to you now.