Corrections to Laurel S. Terry, GATS' Applicability to Transnational Lawyering and Its Potential Impact on U.S. State Regulation of Lawyers, 34 Vand. J. Transnat'l L. 989 (2001)
Terry, Laurel S., Vanderbilt Journal of Transnational Law
In October 2001, the Vanderbilt Journal of Transnational Law published an article I wrote entitled GATS' Applicability to Transnational Lawyering and its Potential Impact on U.S. State Regulation of Lawyers, 34 Vand. J. Transnat'l L. 989 (2001). (This article was part of an April 2001 Symposium on Lawyer Ethics in the 21st Century: Global Legal Practice.) After my article was published, I came to discover several mistakes in it. The pages that follow are my corrections to that October 2001 article. I am very grateful to the editors of the Vanderbilt Journal of Transnational Law for the opportunity to publish these corrections. Since my Vanderbilt article was first published, significant events have occurred with respect to the GATS and legal services. I would like my article to serve as a resource during this important time period.
In November 2001, after my article was published, the WTO held its Fourth Ministerial Meeting in Doha, Qatar. During this meeting, WTO Members agreed to a new comprehensive round of negotiations. WTO Member States agreed to submit their initial "requests" by June 30, 2002 and their initial "offers" by March 31, 2003. Negotiations should be completed by January 1, 2005. The impact of the Doha Ministerial Meeting on legal services is discussed in an International Bar Association June 2002 publication entitled GATS: A Handbook for International Bar Association Members, which is available on the Internet at http://www.ibanet.org/pdf/gats.pdf. I was the principal drafter of the IBA GATS Handbook, which is based in large part on my Vanderbilt article. I would like to thank the editors of the Vanderbilt Journal of Transnational Law Journal for granting permission to include large excerpts from my Vanderbilt article in the IBA GATS Handbook.
A third important provision to which all WTO Member States are subject is the domestic regulation provision in Article VI, [paragraph] 2. (35) Domestic regulation is also potentially significant to legal services regulators because of its requirement that, for those including legal services on their Schedules, regulatory measures, such as admission, licensing, and discipline measures, be administered in a reasonable, objective, and impartial manner and that qualification requirements be not more burdensome than necessary to ensure the quality of the service.
A fourth important generally-applicable provision involves "Recognition." (36) Recognition requirements will be relevant to regulators who must decide whether to recognize lawyers licensed in other jurisdictions--the admission by motion situation. The GATS envisions that recognition issues may also be handled through "Mutual Recognition Agreements" negotiated between GATS Member States.
Finally, one of the most important aspects of the GATS that applies to all signatories is the progressive liberalization provision in Article XIX. (37) This article requires all WTO Member States to engage in "progressive liberalization" and requires additional negotiations within five years. This provision is the basis for the GATS 2000 ongoing negotiations, which are explained in greater detail in Section III.G.
reciprocity requirements, with no mention made of the GATS); Roger J. Goebel, Legal Practice Rights of Domestic and Foreign Lawyers in the United States, 49 INT'L & COMP. L. Q. 413, 434 (2000) (describing reciprocity rules in ABA Model FLC Rule and New York Rule and the GATS separately, without mentioning the effect of the GATS on the U.S. rules.).
(35.) Article VI states in its entirety:
1. In sectors where specific commitments are undertaken, each Member shall ensure that all measures of general application affecting trade in services are administered in a reasonable, objective and impartial manner.
2. (a) Each Member shall maintain or institute as soon as practicable judicial, arbitral or administrative tribunals or procedures which provide, at the request of an affected service supplier, for the prompt review of, and where justified, appropriate remedies for, administrative decisions affecting trade in services. …