Cross-border law practice: Tinga speech

In a speech delivered by Justice Dante O. Tinga at the Commencement Exercises of the Ateneo de Manila School of Law on April 27, 2008 entilted “From General Practice to Cross-Border Practice: The Changing Trends and Paradigms”, he made the following points:

1. The rise of the globalized economy has led to the growing acceptance by many states of cross-border practice of law by foreign lawyers. Cross-border practice has been allowed within the European Union since the late 1970s as a consequence of the adoption of a common market. It has been regulated through Directives, which established guidelines governing the provision of services, the mutual recognition of diplomas, and the establishment of permanent professional law practices in foreign states. The allowance of the cross-border practice of law in the European Union has not led to any major problems or scandals, despite initial fears that there would be an unacceptable increase in unregulated or uncontrollable behavior, fears which have proved unfounded.

2. The accession by the Philippines to the General Agreement on Trade in Services (GATS) as part of the Uruguay Round Agreement might very well be the gateway to the allowance of cross-border practice of law in the Philippines. The GATS, which was intended towards “the early achievement of progressively higher levels of liberalization of trade in services”, defines “services” as any service in any sector except services supplied in the exercise of governmental authority”, the latter exception being defined as “any service which is supplied neither on a commercial basis, nor in competition with one or more service suppliers.”

3. This definition of “services” clearly includes the provision of professional legal services. The GATS mandates that “each Member shall accord immediately and unconditionally to services and service suppliers of any other Member treatment no less favourable than that it accords to like services and service suppliers of any other country.” However, it is also recognized that such treatment may not be possible for every service activity, thus the parties are authorized to specify exemptions, which are included as an annex to the GATS, and subject to review after five years and a normal limitation of 10 years in their duration. The GATS also provides guidelines for allowing the automatic and mutual recognition of education and experience obtained, requirements met, or licences or certifications granted, in a particular country.

4. There are, as should be expected, potential problem areas with respect to cross-border practice. An especially sensitive topic is the applicable code of conduct that applies to a lawyer engaged in cross-border practice. Since most nations have adopted their own legal codes of conduct, the question arises whether such codes bind the foreign lawyer practicing in that country, or whether the foreign lawyer remains bound to her or his own national code. The European Union has mandated that such lawyer be subject to both home and host rules, a situation which has come to be known as ‘double deontology’. Perhaps, as cross-border practice becomes more prevalent worldwide, the need will arise for the adoption of international agreements governing the code of conduct of lawyers in cross-border practice.

5. Section 14, Article XII of our Constitution states that “[t]he practice of all professions in the Philippines shall be limited to Filipino citizens, save in cases prescribed by law.” Nonetheless, since the GATS is part of the WTO Agreement, a treaty which the Philippines ratified in 1994, it has the force of law in this jurisdiction. In any event, any legislation allowing foreigners to practice their profession in the Philippines, following Section 14, Article XII, will pass constitutional muster, except the professions which the Constitution specifically confines to Filipino citizens, such as the management of mass media or the advertising industry.

6. There are understandable qualms within the Philippine legal community, especially among the old-guard, to the allowance of cross-border practice in the Philippines. Some of these concerns may arise out of self-interest, such as the potential diminution in profits of Filipino lawyers, but others do arise out of selfless, nationalistic motives. It is not an accessible assumption that foreign lawyers will act in the best interests of their Filipino clients, or adhere to the interests of Filipino sovereignty as they develop their particular advocacies. Neither could we intelligently assume that foreign lawyers will be well-versed in the Philippine legal system, or the Philippine social animus, to be able to render the most competent legal services to Filipino or Philippine-based clients.

7. Nonetheless, if we refuse to allow cross-border practice of law in the Philippines even as the rest of our Asian neighbors accede to the practice, the Philippines will be in danger of isolation from the global community. And truth be told, there are benefits to allowing cross-border practice here which extend beyond signification that we are members in good standing of the international trade community. Just as the Supreme Court has extremely benefited with its interactions with foreign high courts and foreign legal systems, the Philippine legal community can only be intellectually enriched with greater exposure to the legal practices of foreign lawyers. These interactions may even spur necessary law reforms in the Philippines. Added competition could likewise provide the impetus for the improvement or further competence of Filipino lawyers, who may have settled into professional complacency.

8. A legal curriculum that is designed solely to gain the law student’s eventual admission to the Philippine bar through rote memorization of Philippine legal provisions will be woefully insufficient to train such student in this fast evolving legal environment. A more viable curriculum is one designed to help the law student absorb the fundamentals that permeate all the legal systems of the world. A student who is grounded in these basics, as well as in legal methodology, will be better equipped in interacting with the international legal community and the transnational business circles, as well as in grasping the inevitable changes in Philippine law.

Atty. Manuel J. Laserna Jr.