September 01, 2011

Washington News Briefs

U.S. LAWYERS IN INDIA: As the United States resumes negotiations with India on a bilateral investment treaty (BIT), the ABA is urging Secretary of State Hillary Clinton to include provision of legal services on the agenda. In a July 28 letter to Clinton, then ABA President Stephen N. Zack noted the importance of India as the fourteenth biggest trading partner of the United States and expressed hope that this bilateral trade and investment will flourish in the future. “A critical element in increasing the size of that trade and investment and the relationship between the two nations is the provision of legal services in their support,” he wrote. “Such services of lawyers well versed not only in the laws of the United States and India but also cross-border transactions and arbitration matters are plainly essential for such an increase. Obviously the ability of lawyers in the United States to provide such services is an important issue for the ABA and its members.” The ABA Model Rule for Licensing and Practice by Foreign Legal Consultants, as adopted by 32 U.S. jurisdictions, allows overseas licensed lawyers, including those from India, upon acceptance of a registration with the local bar or court, to establish offices in the United States and provide legal services to businesses in this country. There is an effort, however, in India to deny reciprocal treatment to U.S.-licensed lawyers, Zack said. He urged the State Department to advocate that the government of India establish a similar rule allowing non-Indian lawyers to provide advice to their clients in India on laws of their home jurisdictions. Zack also expressed hope that the courts in India would not intervene in this matter, citing a lawsuit pending in the High Court of Madras in which a private Indian lawyer seeks to limit the ability of U.S. lawyers to travel to India and give advice on their home jurisdictions’ laws to Indian clients or to U.S. clients who are present in India. The case involves many of the largest U.S. law firms as well as British and Australian law firms.

CONGO CONFLICT MINERALS: The ABA urged Congress on Aug. 18 to enact a technical amendment to the Congo conflict mineral disclosure provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act. The amendment would clarify the definition of “persons” who are subject to the conflict minerals disclosure requirements of the act. In a letter to the House Financial Services Committee and the Senate Banking, Housing and Urban Affairs Committee, ABA Governmental Affairs Director Thomas M. Susman explained that these provisions in the Dodd-Frank Act sought to discourage companies from providing financial support to those engaged in the ongoing armed conflict in the Democratic Republic of the Congo by creating a detailed regime for disclosing certain information regarding Congo conflict minerals to the Securities and Exchange Commission (SEC). Unfortunately, according to Susman, although the SEC applied the correct definition of “persons” who are subject to the requirements in its proposed rule implementing this section of the act, the definition of such “persons” is vague in the statute and should be clarified by Congress. “By clarifying this key term, Congress can provide meaningful guidance to the SEC, the State Department, and private sector entities regarding the statute’s intended scope while preventing unnecessary legal challenges to the definition used in the SEC rule,” Susman said. The ABA also urged Congress to incorporate the technical amendment in any future legislation modifying the Dodd-Frank Act. The comments in the ABA letter were prepared in coordination with the ABA Task Force on Financial Markets Regulatory Reform and the ABA Section of Administrative Law and Regulatory Practice.

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