Comparative Research On The Market Access Rules Of Legal Services

Legal service is a specialized service industry,closely related to national judicial sovereignty,politics and society,which is its important attribute different from other industries such as finance and accounting.The opening of the legal service industry not only reflects the liberalization level of the service trade,but also highlights the convergence of the global structure of legal services and the regeneration of local cultural connotation.In view of this,countries are cautious about opening up the legal service industry,and have formulated market access rules with different standards for foreign legal services and their providers.Market access rules are usually divided into international and domestic market access rules.International market access rules are determined by the international commitments made by the government,whose effectiveness comes from the commitment of a country's government.The domestic market access rules reflect national sovereignty,which are important means for the government to fulfill its management responsibilities and regulate the market economy.Both rules constitute the foundation and basis of opening up legal service industry.Although China has promised to partially open the legal service market under the its international market access rules,there are still voices of criticism that China's opening process is too slow and the market access rules are too conservative.They require us to reduce the domestic restrictions on the legal service and completely opento the outside world.The Shanghai Free Trade Zone took the lead in testing the above ideas.Therefore,such innovative systems as chinese-foreign joint venture and mutual legal counsel have emerged.However,many problems remain to be solved in practice.Therefore,how to correctly evaluate market access rules and restrictions,and analyze its feasibility to apply rules formulated by other countries or regions,in order to put forward some suggestions for perfecting our market access rules,are both have theory value and practice significance to the research subject.This paper will start from the concept of legal services,legal service trade,market access and market access rules and other theoretical issues,and then analyze the international market access rules and the domestic market access rules of various countries(including China),and put forward own opinions on several major issues.Chapter One: Overview of the Market Access Rules of Legal Services.This chapter aims to clarify some basic concepts,involving three aspects: first,the concept of legal service,which is the research object of this paper.In this paper,legal service is interpreted in a narrow sense,which only refers to the service of lawyers.Second,the definition of trade in legal services.Legal services must be provided in a specific way.As legal services are a part of service trade,their modes of provision include Cross-Border Supply,Consumption Abroad,Commercial Presence and Movement of Natural Persons.Under Cross-Border Supply and Consumption Abroad,it is difficult for host countries to manage or control,so most countries are committed to opening up to these two modes.In terms of Commercial Presence and Movement of Natural Persons,these modes will have a great impact on the legal service market of the host countries which can be easily regulated,thus the host countries are likely to set more restrictions on these two modes.It is also the key research area of this paper.Third,market access and market access rules.Market access reflects the meaning of national laws,which is a macro control of the opening degree of the national market through the implementation of various laws and regulations.Market access rules are a series of standards and norms based on market access,including international and domestic market access rules.Both of them are interrelated and can be transformed under certain conditions.Chapter Two: International Market Access Rules for Legal Services.International market access rules are mainly embodied in relevant WTO agreements and multilateral or bilateral agreements.Such rules include not only agreements that have been signed into force,but also some that are being negotiated to represent future trends in legal services.The most important international market access rule is the General Agreement on Trade in Services(GATS).However,the compliance with the market access under GATS is only the minimum obligation for each member.Regional agreements give more space to legal services.Both CPTPP and several FTAs have broken through the market access rules under the original framework of GATS,and many new rules have emerged.For example,CPTPP puts forward the "fly in and fly out" system,stipulating that citizenship or professional qualification shall not be taken as the precondition for the entry of foreign lawyers,thus realizing the real movement of natural persons.South Korea and Singapore have made some new attempts on Commercial Presence and Movement of Natural Persons under their FTAs.For instance,South Korea,under the US-South Korea FTA,has taken a "three-stage opening" step,liberalizing the business presence conditionally,from setting up a representative office to signing a co-operation agreement to setting up a joint venture law firm and hiring local lawyers.Under the US-Singapore and Australia-Singapore FTA,Singapore recognizes foreign academic qualifications and opens up the business sector.Thus,from GATS to Regional Agreements,the attitude towards legal services is developing from restriction to openness,and the access rules of legal services seems to be more open and transparent in the future.In terms of international market access rules,China's commitments in GATS and subsequent FTAs are strictly limited in terms of investment forms,business scope and employment of foreign law firms.Also,China did not make any commitment to the movement of natural persons.Therefore,China's international market access rules fall behind the latest standards of international market access rules.Chapter Three:Comments and Comparison on Domestic Market Access Rules of Legal Services.The chapter aims to address the domestic market access rules of each member,particularly the innovative systems that have emerged with respect tocommercial presence and movement of natural persons.Concerning Commercial Presence,Singapore offers a diverse array of organizations to give foreign law firms with different development needs a wide range of options.Foreign law firms in Hong Kong may establish their Hong Kong practice in the form of foreign law firms,joint ventures or direct conversion into Hong Kong law firms.In terms of Movement of Natural Persons,Singapore introduced the Foreign Practitioner Examination,with which foreign lawyers can better engage in commercial legal affairs in Singapore,thus expanding the scope of practice of overseas lawyers.The vast majority of States in U.S.allow foreigners to participate in the judicial examination.If not,they can practice as "foreign legal counsel" in the United States,but "foreign legal counsel" has experience,business restrictions and other requirements.Like U.S.,in Hong Kong foreign citizen can practice law either as a Hong Kong lawyer or as a foreign lawyer.There is no nationality restriction on the qualification of Hong Kong lawyers,but foreign nationals practicing in Hong Kong as foreign lawyers must meet the requirements of legal profession,educational background,internship,length of residence,etc.In China,domestic market access rules can be divided into the general provisions and special provisions of the free trade zone.The general provisions of Commercial Presence do not break through China's international market access rules,and some provisions in the corporate form,business scope and employment requirement even violate China's GATS commitments.Although the free trade zone proposed joint venture,but in practice this system is not overwhelming.Regarding movement of natural persons,both the general provisions and foreign legal consultant system in the free trade zone impose many restrictions on foreign lawyers.Through the comparison with other WTO members,it seems that China imposes unreasonable burden on foreign law firms as well as foreign lawyers in terms of commercial presence and the movement of natural persons.It will reduce their enthusiasm towards practicing in China's legal market.Chapter Four: Suggestions on the Market Access Rules of Chinese legal services.This chapter will make suggestions for China to improve the market access rules of legal services based on the existing analysis of China's international and domesticmarket access rules and the experience from other countries and regions.So far,the market access rules for legal service have had three problems: first,the practice effect of international market access rules is not obvious.The commitments under FTAs are only the gradual recognition of some existing practices in China,but do not create more market access opportunities for foreign legal services and service providers.Further negotiations under the FTA framework may be slow,and major changes to international market access rules may not be realized in the near future.Second,the conflicts between domestic and international market access rules.Some domestic market access rules violate the market access and domestic regulations provisions under GATS and the purpose of GATS.Third,the innovation effect of domestic market access rules is not obvious.Even the free trade zone aimed at opening up its market access rules have failed to break through the constraints of Chinese existing laws and regulations.In order to correct this situation,China needs to open conditionally,levelly and selectively,so that Chinese law firms can enhance their industrial competitiveness with international law firms.Specifically,the implementation should be carried out from the following aspects: on the whole,China should systematically sort out the domestic market access rules,summarize the clauses which obviously violate international obligations,and modify or directly delete the provisions.As for the ambiguous clauses,they should be clarified through the revision of laws and regulations or judicial interpretation,so as to set relatively clear criteria.Secondly,in view of the commercial presence,the non-sensitive legal service fields,such as commercial law,should be opened conditionally.Also,a multi-type organizational pattern should be established,and a new mode of Chinese-foreign joint venture should be explored in the free trade zone.Third,gradually free the movement of natural persons.Initially,the threshold of the professional qualification examination may be reduced appropriately.Besides,China can select the most favorable policy to tried out first,such as within the free trade area allowing mainland law firms hiring foreign lawyers to provide commercial legal services,or allowing representative office of foreign law firms hiring Chinese lawyers in order to provide Chinese law matters.