Legal Services and Professional Regulation Internationally? Australia Abroad
| Date | 01 September 2009 |
| Author | Chris Arup |
| Published date | 01 September 2009 |
| DOI | 10.22145/flr.37.3.4 |
| Subject Matter | Article |
LEGAL SERVICES AND PROFESSIONAL REGULATION
INTERNATIONALLY? AUSTRALIA ABROAD
Chris Arup*
I INTRODUCTION
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.1 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.2 A variety of normative forms are used to
express regulation, including different forms of law. Global governance contains
elements of power, order and rationality but it is often constructed through interaction,
discourse and compromise.3 Consequently, its pattern is multi-level, multi-polar and
multi-modal; its orientation is progressive and constructivist.4
The study finds this largely to be true of legal professional regulation. Competence
and conduct have mainly been regulated nationally and often subnationally. Given the
business associated with multi-jurisdictional service supply, certain lawyers,
supported by their home states, work to see that regulation relaxed. They now have a
global frame of reference, the Word Trade Organization ('WTO') General Agreement
on Trade in Services ('GATS'), supplemented in some cases by the services chapters of
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* Professor, Faculty of Business and Economics, Monash University.
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) 315.
2 Anne-Marie Slaughter, A New World Order (2004).
3 For example, Roger King, The Regulatory State in an Age of Governance: Soft Words and Big
Sticks (2007).
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 363.
418 Federal Law Review Volume 37
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the free trade agreements ('FTAs'). Increasingly, the regulatory issues are discussed in
terms of the liberalisation of 'trade in services' and local regulation is placed on the
defensive. Yet, local regulation is very detailed and very tenacious. Internationalists
must forge coalitions and make cases to influence change. Change strengthens the
hand of national governments as well as international lawyers. Furthermore, the
international lawyers display some ambivalence towards such change. They see the
need to coordinate the regulation of multi-jurisdictional practice, yet they are watchful
that local liberalisation does not lead to an international standards regime. They want
to retain freedoms from public regulation, national or international.
Within the confines of this article, it is difficult to capture the complex and fluid
nature of this governance. Nonetheless, in today's world, it is important to do so —
otherwise the picture that is presented will always be incomplete. And that picture
should not simply be 'schematic', that is, a chart of all the possible actors and
institutions. It should be filled out empirically as far as possible, tracing the actual
processes of interaction. Therefore, after giving some structure to the field of
governance, the article examines the evidence of two attempts at governing. The first is
the multilateral WTO work on disciplines for the domestic regulation of professional
services, where Australia, and to a lesser extent the United States ('US') have
endeavoured to take a lead with proposals and negotiations. The second is a bilateral
United States-Australia initiative to work on liberalising foreign lawyers' rights of
practice and recognising qualifications in return for cooperation on disciplinary
matters.
These experiences are able to convey a sense that the interactions are intricate and
the outcomes are mixed. The trend is essentially towards global governance and the
regulation is now often networked. But that does not mean it has converged;
sometimes it even fails to be connected. Such findings are significant for the fate of
local lawyers and law schools and for the future of international legal practice. They
provide insights into the general theory of governance too.
II INTERNATIONAL LEGAL SERVICES
First, it is necessary to ask why the field is both globally and locally defined. How does
the supply of legal services give the field transnational or global scope? Markets for
legal services have spilled over the boundaries of the local and national jurisdictions,
where professional regulation has largely been based. Clients who extend their
operations and investments over borders seek assistance, if not with a new lex
mercatoria (transnational contracts and commercial arbitration), then with multi-
jurisdictional law. Lawyers develop services to meet that demand. The pattern to these
services is the subject of empirical study now. The study is made more interesting by
the fact that supply also affects the nature of the services. Lawyers do not merely
respond to client demands, they take the initiative to construct services that appeal to
clients who want to operate transnationally.5
Certain kinds of lawyers prosper with globalisation. Their services started out quite
specialist in terms of the clients involved and the jobs to be done, but now global
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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) 73.
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