Cone, Sydney M., III.

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New York Law School’s Digital Commons@NYLS

DigitalCommons@NYLS Other Publications Faculty Scholarship Spring 1997 International Parochialism Sydney M. Cone III. Follow this and additional works at: https://digitalcommons.nyls.edu/fac_other_pubs International by Sydney M. Cone, Ill, Professor of Law The legal profession the world over is frag-mented into segments that protect themselves from one another. If you have the opportun ity to look through International 1,·ade in Legal Servires, (Little , Brown 1996) you wi ll probably be struck by the parochial and often petty rules that govern the cross-border practice of law; rules that seek to exclude, or minimize the role of, non indigenous lawyers. International legal practitioners may bask in the image of gigantic, even glamorous, transac-tions, but their professional lives are hedged in by regulations that, in the name of protecting consumers of legal serv ices (usually referred to with feigned altruism as "the public"), in fact offer protection of the type represented by high tariff barriers or low import quotas. These regulations are less likely to be inspired by concern for the public ~t large than by an entrenched "gu ild-ridden" mentality. Among the forces that work against the eas-ing of restrictions on cross-border legal prac-tice are bar associations and bar rcgu la tors who think of the practice of law as a privi leged activity properly parceled out amongst loca l fiefdoms. Often, they find it unduly risky to seek the a ll eged benefits of developing a pro-fession aligned with the needs of transna-tional clients, or they are driven by fears or dislike of foreign-tra ined lawyers, or they con-sider it unprofessional to view lawyering as susceptible of regulation under rules clevel-oped for trade in services genera lly. Facing (and frequently overwhelmed by) these forces arc, first, those lawyers and law firms that stand to benefit from freer trade in legal ser-vices and, second, governmen tal and supragov-ernmental agenc ies charged with liberalizing the terms of trade in profess ional serv ices. Progress in achiev ing more liberal regula-tion requires that principled proselytism be backed by gritty determination. Typically, the high ground to be captured is guarded , in each jurisdiction, by local legisla tors a nd ad mini strators accustomed to responding (if at all ) only to recognizable constituencies. Outside of London and New York City, it is unusual to find a body of international legal practitioners who have the potential to develop muscle where it counts, and even in those two cities they must first lea rn to deal in the crass co in of local politics. In add ition , it is not easy for the cross-bor-der legal profession to obtain help from trade negotiators, because legal services (unlike hor-mone-enhanced beef or air transport) do not represent a big ticket item in any country's balance of trade. Even so, it is occas ionall y possible for the clamoring of foreign lawyers to be heard in the arena of trade negotia tions, particularly in those opportun istic moments when an embattled gove rnment is looking for a relatively painless way to give up someth ing in an effort to concl ude a difficult nego ti at ion on weight ier trade issues. Thus, in the 1980s, the Japanese Government, under American pressure on many trade measures, dropped its protectionist barriers a bit to let in foreign lawyers (and thereby, in the eyes of Japanese Parochialism lawyers, betrayed the local profession to appease the Un ited States). A few years later, the Japanese profession, th rough its govern-ment, succeeded in limiting the damage in the closing hours of the Uruguay Round in December 1993, when U.S. negotiators acceded in part to the Japanese position on legal services (and thereby, in the eyes of U.S. lawyers, sold them out in order to secure a deal on sem iconductors). For the foreseeable future , the regulation of international legal practice will remain a parochial patchwork which will have to be eva l-uated jurisdiction by jurisdiction. Not unex-pectedly, two of the principal areas to keep in mind a re China and the European Union. China, having admitted over 70 foreign law firms under lega l practice rules that in key respects are fraught with ambiguity, seems to be moving toward increasing protectionism in regulating cross-border practice. Within China, a crucial test could arise later this year after Hong Kong becomes a Special Administrative Region, and China finds itself free to continue or modify the liberal lega l practice rules cur-rently in effect in Hong Kong and under which it now ex ists as a major international legal center. The European Union, after two decades of intense infighting, seems to be on the verge of adopting a Directive on the intra-EU estab-li shment of lawyers. Shou ld it do so, the next tests will involve implementation of the Directive by the EU member states, and whether it leads to le ·s-restrictive rules for non-EU (notably U.S.) lawye1-s and firms seek-ing to become establi shed in those member states. Within the EU, France present the severest test case, because it imposes on non-European lawyers (e .g., on U.S. lawyers) a pro-tectionist bar examination for which it is extremely difficult to prepare and which is administered in way that permit the arbi-trary flunking of candidates. ■ Sydney M. Cone, lll is the C. V Starr Professor oft hf' Law of International Trade and Finance at New Yorh Law School and Director of the Schoon CenlNfor International Law. One of the nation's top experts in th.ejielrl of international law, Professor Cone joined the Law School's faculty after 37 years with Cleary, Gottlieb, Steen & Ilamilton, where he was instrumental in thf' development of the jinn's global practice. He is the author of International Trade in Legal Services (/,i tt/e, Brown 1996). Spring/ SummC' r 1997 In brief 19 

International Parochialism

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International Parochialism

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