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Borders won’t be dismantled, yet

Borders won’t be dismantled, yet

CALLS FROM the International Bar Association for new regulations to help lawyers advise clients across international borders may be theoretically a good idea but, in practice, are unrealistic,…

CALLS FROM the International Bar Association for new regulations to help lawyers advise clients across international borders may be theoretically a good idea but, in practice, are unrealistic, according to international trade and business lawyers in Australia.

A taskforce of leading international lawyers from the Section on Business Law (SBL) of the International Bar Association (IBA) has called for new regulation to support lawyers in temporary cross-border commercial practice.

The reasoning behind the taskforce’s demands was that clients with business or a case involving several countries may look for a lawyer or firm in another country to guide them on the legal and contractual issues they face, said chair of the SBL Fernando Pelaez-Pier.

“This means that legal regulations will need to be re-examined, particularly those which cut across client demand by restricting the ability of a business’s preferred lawyer to operate across borders,” Pelaez-Pier said.

“We believe the legal profession needs to show itself as responsive as possible to the changing landscape of international commerce,” he said.

But Phillip Wiseman, Blake Dawson Waldron partner and chair of the Business Law Committee of the Law Society of NSW argued that the proposals were “a waste of time”. Theoretically, he said, the SBL plan was “very good”, but on a practical level, “it won’t work”.

“It’s very hard for Australia to support this straight-faced when it hasn’t been done on a national level,” Wiseman said.

“Australia needs to get its own house in order first,” he argued, and “until a lawyer in NSW can practice in Queensland, there is no point talking about a global arrangement”.

Traditionally, lawyers have to practise in the jurisdiction in which they have qualified. The SBL taskforce asked that where a cross-border lawyer had expertise in a certain area of law, and had acquired thorough knowledge of that area of law in another jurisdiction, then they should be able to provide advice to the client.

The taskforce also proposed that in cross-border arbitration and mediation cases, a cross-border lawyer should be able to represent a client wherever the proceeding is held, no matter what the lawyer’s jurisdiction of admission might have been.

But Gadens Lawyers international trade and business group partner Damian Sturzaker argued that in practical terms this was “a long way off, if ever [possible]”.

“There may be an element of the myth of law firms requiring the need to advise in other jurisdictions. In practice, firms will get advice from local counsel,” he said.

Sturzaker said that if global practice were to be achieved it would come at the cost of clients’ interests. “If someone can practise in 15 jurisdictions, could their knowledge be kept up to date? Who could remember the laws of 15 different countries?”

A number of proposed safeguards designed to ensure clients were not disadvantaged were listed by the SBL taskforce for lawyers conducting cross-border business.

Lawyers should make clear to their clients that they were not qualified in the foreign jurisdiction and seek advice from a lawyer who is. And they should never bring undue influence to bear on that lawyer to give inappropriate advice.

Lastly, lawyers should follow the code of professional conduct in the foreign jurisdiction.

Lawyers are already able to advise clients on their options in foreign jurisdictions, Sturzaker said. Then they seek advice from local counsel in that country.

“The typical situation is that you’re approached by an Australian client seeking to take proceedings in law in a foreign jurisdiction. You act as a coordinator and advisor for the client in conjunction with local counsel in that area,” said Sturzaker.

The touchstone, Sturzaker said, is to get the advice to clients right. “If one is advising in another jurisdiction, one must get the advice right,” he said, “and in order to do this one must get advice from local counsel”.

The IBA push is likely to be a motivated by the amount of cross-border commerce that is happening, said Sturzaker. “Those international lawyers are wanting to assist their clients negotiate the problems that therefore emerge,” he said.

“But in practice, you are not going to see lawyers admitted in any more than two jurisdictions. Many people are admitted here and in the UK, for example, but it is extremely rare for more than that.”

“We should learn how to walk before we run,” Sturzaker concluded. “We need to unify laws of national admission before we talk about international admission.”

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Borders won’t be dismantled, yet
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