February 01, 2012

ABA Supports Addition of Countries to Trans-Pacific Partnership

The ABA expressed support last month for inclusion of Japan, Mexico and Canada in the Trans-Pacific Partnership (TPP), which the association said would provide additional opportunities to address issues relating to the ability of U.S. firms to establish offices and to associate freely with foreign lawyers and law firms.

In a Jan. 13 letter to the Office of the U.S. Trade Representative (USTR), ABA Governmental Affairs Director Thomas M. Susman noted that “the ongoing globalization of commercial activity by American individuals and businesses makes it imperative for U.S. lawyers to be able to provide advice and assistance to their clients wherever the clients needs that assistance.” The USTR solicited comments in December regarding the interest that the governments of Japan, Mexico and Canada have expressed about joining the TPP, a trade and investment partnership among the following nine countries: Australia, Brunei Darussalam, Chile, Malaysia, New Zealand, Peru, Singapore, Vietnam, and the United States.

The comment letter emphasized that international trade in legal services is big business, citing the most recent published statistics suggesting that the United States annually exports legal services valued at more than $7 billion and enjoys a trade surplus of more than $3 billion. The figures, according to the letter, probably understate the participation of U.S. lawyers in U.S. trade by excluding the significant legal services provided by in-house counsel at many businesses engaged in cross-border and foreign operations. 

In the comments, Susman emphasized that Japan, as the second largest destination for U.S. legal services, is a particularly critical market for U.S. lawyers and law firms. He said that Japan has made significant progress in liberalizing its legal services market since 1987, when the country began to open its doors with the passage of the Foreign Lawyers’ Act. In spite of the progress, however, a number of important inhibitions on the ability of U.S lawyers to practice in Japan remain, including requirements that a foreign lawyer have practiced in his or her “home country” for at least three years before admission to practice in a Japanese office.

The negotiation of Japan’s membership in the TPP would provide a forum for reviewing the remaining obstacles to opportunities for lawyers in both countries to offer their services, and similar opportunities would be presented with the inclusion of Canada and Mexico, Susman said.

He also noted that it is important for USTR, as TPP and other trade negotiations continue to engage in ongoing consultation with state supreme courts and other regulatory bodies because rules regulating practice by non-U.S. lawyers, including consultants, are adopted by each state’s highest court of appellate jurisdiction.

The ABA, Susman said, has long supported state-based judicial regulation of the legal profession in the United States but also has adopted recommendations encouraging state supreme courts to adopt limited licensure rules to allow both U.S. and non-U.S. lawyers to engage in temporary practice in a jurisdiction where they are not licensed.

 

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