The Economic Community of West African States (ECOWAS) was established at the time civil society and the business community were striving to understand and rise to the challenges of globalisation, posed by World Trade Organisation (WTO) agreements, European Union (EU) and African Caribbean and Pacific (ACP) Regional Economic Agreements, the African Union and New Partnership on Africa’s Development (NEPAD).
The treaty establishing ECOWAS was signed in Lagos, on May 28, 1975, comprising 16 countries of the West African sub-region. They were: Benin, Burkina Faso, Cape Verde, Cote d’Ivoire, Gambia, Ghana, Guinea, Guinea Bissau, Liberia, Mali, Mauritania, Niger, Nigeria, Senegal, Sierra Leone, and Togo. Following the withdrawal of Mauritania in December 2000, the membership dropped to 15.
The primary purpose of ECOWAS is to integrate the fifteen West African markets for goods, capital and labour so that the community can advance harmoniously as one region in its search for sustained economic growth and development. Since the community became operational in 1977, trade development has been central to the cooperation programmes adopted by the decision – making organs of ECOWAS. As early as 1976, the first protocol relating to the concept of products originating from member states of the community was signed by the Authority of Heads of State and Government. Three years later, in 1979, decision on the liberalisation of unprocessed products was signed by the council of ministers followed by decision of the Authority of Heads of State and Government relating to trade liberalisation in respect of traditional handicrafts in 1981. Another decision relating to the adoption and implementation of a single Trade Liberalisation Scheme for industrial product originating from member states of the community dated May 30, 1983 was signed by the Authority completing the scope of products covered by the ECOWAS Trade Liberalisation Scheme. It is certain that the success of West African integration efforts will be judged by the volume of intra community trade and by the degree of interaction between the citizenry and also between the business communities.
It is instructive to point out that the undercurrents of regional integration that were generated internationally made the formation of ECOWAS a fait accompli. In fact, the United Nations Commission for Africa, (UNCA), generated tremors of regional integration in Africa that soon saw the formation of the East African Economic Community,(EAEC), established by the Kampala Treaty signed on June 6, 1967, which consolidated and legalised the East African Common Services Cooperation and Coordination that existed informally since 1984. The success of the EAEC motivated the UNCA to turn its attention to West Africa. When the ECOWAS treaty was finally signed it was described in London as “one of the most ambitious projects of its kind in the world” and in West Africa as by far, the most momentous and far-reaching economic treaty.
Article 2 (1) of the Treaty provides thus: It shall be the aim of the Community to promote cooperation and development in all the fields of economic activity… for the purpose of … fostering closer relations among its members and contributing to the progress and development of the African continent.
To achieve the above purposes, Article 2(2) of the Treaty requires Member States to, by stages, ensure, inter alia, the abolition as between Member States of the obstacles to free movement of persons, goods, services and capital. The removal of obstacles to free movement was meant to provide the foundation upon which a borderless region was to be achieved. The ECOWAS Community envisioned the transformation of the Union into one “massive borderless region, an ECOWAS of peoples, not countries”.
In the words of the pioneer ECOWAS Commissioner for Trade, the late Alhaji Mohammed B. Daramy, at the 3rd West African Investment Forum in Abuja, February, 2008, “The ECOWAS Commission … has developed a vision to have an ECOWAS of peoples and a borderless region…” The Commission is also committed to ensuring that all the stages of integration, including the creation of a single monetary union are completed in a sustainable manner. This is with a view to realising the ECOWAS vision of moving from an ECOWAS of States to an ECOWAS of peoples through the creation of a single economic space in which the people transact business.
2.0 Cross border trade in services
A lot has been written on the increasing importance of cross border trade in services including legal services at the international and regional level. The World Bank, writing generally on the internationalisation of trade in services which includes legal services, notes in one of its publications, ‘’Negotiating Trade in Services: A Practical Guide for Developing Countries’’, (2009), that in the last twenty years the growth in trade in services has been phenomenal mainly as a result of advances in technology to the extent that trade and services have attracted the attention of policy makers. The study further notes that in the years before the 2007 financial crisis, trade in services grew as much as the trade in goods, at an average rate of 12 percent and that the trade in business services (such as engineering, legal, health, accounting, and management services) grew even more quickly, at 14 percent over the same period.
This view that trade in services is gaining importance is supported by a number of authors and institutions such as the World Trade Organisation (WTO) and the International Lawyers and Economists against Poverty (ILEAP). The WTO in one of its publications notes that services represent the fastest growing sector of the global economy which account for about 70 percent of world gross domestic product (GDP), one third of global employment and nearly 20 percent of global trade. In further support of the WTO’s position; ILEAP in one of their publications entitled Harnessing Services Trade for Development: A Background and Guide on Service Coalitions in Africa and the Caribbean, notes that the services sector plays an integral role in the functioning of any modern economy and has earned the status of being the cornerstone of all economic activities as a result of the impact on development.
As highlighted by the World Bank, negotiations on service agreements increasingly feature in modern trade agenda. The growing importance of trade in services has translated into the prominence of services in trade agreements. According to the World Trade Organisation (WTO), its members have ratified 263 regional trade agreements. Of these, 74 cover trade in services.
Since the entry into force of the WTO in 1995, service agreements have been actively negotiated by developed and developing countries alike. As noted by the World Bank, the entry of WTO into the International Trade Arena in 1995 marked the turning point for trade in services agreement since that year the marathon negotiations for the General Agreements on Trade in Services (GATS) was concluded and for that first time a general framework for negotiating services was made available.
The international trend to have a frame work within which to negotiate service trade agreements influenced by the promulgation of
GATS appeared to fuel efforts to establish regional arrangements between themselves using the framework provided by GATS. Thus in a space of few years after GATS, other regional blocks such as the European Union (EU); North American Free Trade Agreement (NAFTA), The East African Community (EAC) and the Economic Community of West African States (ECOWAS) engaged in cross border agreements in services.
The European Union, in an effort to liberalise cross border legal services, notes Florence Liu, (‘’The Establishment of a Cross-Border Legal Practice in the European Union’’), has embarked on a number of implementation stages under the framework provided by the Treaty Establishing the European Economic Community (Treaty of Rome), which established as a primary goal of the EU, the creation of an internal market without internal frontiers, where goods and services are traded freely and easily by granting every EU national the “Freedom to provide Services” and the “Right of Establishment” in another Member State.
As noted by Liu, the freedom to provide services envisions the gradual abolition of restrictions on the free supply of temporary services within the EU while the Right of Establishment includes the “right to take up and pursue activities as self-employed persons”on a permanent basis in the host Member State.
Like the European Union, the liberalisation of legal service in North America was conducted under the aegis of NAFTA. According to Paul D. Paton, (‘’Legal Services and the GATS: Norms as Barriers to Trade’’), The NAFTA, drew on the initial experience of the GATS to entrench basic principles governing cross-border trade in services by declaring that the agreement covered all cross border non-financial services, unless such a service is specifically excluded.
The NAFTA was based on the principles of improvement of national/MFN treatment for all of its service providers and a commitment to eliminate citizenship and permanent residency requirements for licensing or certification of professional service providers within two years from the effective date of NAFTA (by January 1, 1996), failing of which retaliation by equivalent was permitted. In 1998, the three NAFTA signatories signed an agreement permitting lawyers from any one of the three to act as foreign legal consultants in the other two. Lawyers licensed to practice in one country are, under this agreement, allowed to set up offices in the other countries and advise on laws of their home country, as well as represent clients in international commercial transactions.
Like its regional counterparts in Europe and North America, West Africa has not been spared this pressing need to regionalized and harmonize trade relations.
3.0 CROSS BORDER TRADE IN LEGAL SERVICES:
Though widely used in theory and practice, the term Cross Border Legal Practice (CBLP) is devoid of any clear precision. The term means different things to different people depending on the jurisdiction.
This lack of clear definition notwithstanding, I will adopt the loose definition by L. Terry in his article ‘’GATS’ Applicability to Transnational Lawyering and its Potential Impact on U. S. State regulation of Lawyers’’, who referred to Cross Border Legal Practice as:
‘’the general situation in which a lawyer originally licensed in one jurisdiction, the Home State, provides legal services in another jurisdiction, the Host State. This can occur when the lawyer physically travels to the Host State, or when the lawyer provides services through other means’’.
The evolution of this new concept is spearheaded by the fact that, traditionally, lawyers practice law in the country where they completed their legal studies. This practice, though still present, is slowly but surely going to change soon in the West African Community as greater economic integration leads to the greater mobility of lawyers. It is anticipated that with the envisaged mobility, West African lawyers may benefit from this increased mobility, as they may practice law in a country that is a member of the ECOWAS in addition to the one where they obtained their legal education and license.
In practice however, this mobility is difficult to achieve because it requires a harmonization of legal standards among countries with different legal systems and traditions. However, efforts to provide the platform for harmonization have been going on across the ECOWAS basing on the achievement and basic structure of the common ancestor, the General Agreement on Trade in Services, the GATS.
4.0 LEGAL SERVICES AS A COMMODITY IN INTERNATIONAL TRADE:
In recent times, the World, including the region of West Africa, has noticed a phenomenal growth in International Trade and Investment, which is substantially larger than the growth of domestic economies. International business appears to provide more opportunities for expansion, growth and income than does the domestic business alone as a result of increasing flow of ideas, services and capital across the world. As a result, innovations can be developed and disseminated more quickly, human capital can be used better and financing can take place more quickly as well. In addition to all the above, international investment provides challenging employment opportunities to individuals with professional and entrepreneurial skills.
Terry when explaining the growth of legal services as an international commodity for the United States notes that, legal services are among the professional services sectors that have experienced strong growth and that have helped the U.S. trade balance, noting that the growth was a result of increased demand for legal services resulting from globalization and economic growth in emerging markets and highlighted the important role of legal services in facilitating other trades, noting:
‘’The professional services sector provides critical inputs to all sectors of the economy, including other services. For example,
law firms provide support for commercial transactions and buyer/seller relationships’’.
As argued by Terry and supported by many commentators, it is now widely admitted that international business is important and necessary because economic isolationism has become impossible. Failure to become an active part of the global market assures a nation of declining economic influence and a deteriorating standard of living for its citizens. Successful participation in international business, however, holds the promise of improved quality of life and a better society in our nation.
For any business and international business in particular to thrive, it needs the necessary support services such as accounting and legal amongst others. As international business and investment from abroad have to rely in the services provided by the government and the private sector in the host country, the service providers such as lawyers in our case must possess the necessary skills and understanding of laws and procedure of the host states as well as of the original states in order to offer proper advice. Therefore, the need for and the role of lawyers with multi-jurisdictional skills have increased. Since, traditionally, legal practice has been an internal affair of a state, this new emerging trend of multi-jurisdictional practice creates considerable hurdles to lawyers who have had no chance to practice internationally on account of the fact that the work does not just mean cross border work but also cross cultural and sometimes cross language adaptability.
This multi-jurisdictional need for lawyers signify that legal services, as a result of globalization, have become an international business prompting for the need to have rules and procedures that will recognize the importance of lawyers from one jurisdiction to practice in another jurisdiction by either cooperating with the fellow lawyers in one jurisdiction or, move in and practice in the new jurisdiction.
Therefore, as a natural consequence of the need for multi-jurisdictional skills in legal business, there emerges a need for some form of cooperation and understanding between nations to facilitate and regulate the trade in legal services as well as other related services.
5.0 CROSS BORDER TRADE IN LEGAL SERVICES IN WEST AFRICA’S ECOWAS:
Apart from information from Eastern African Region, there is scanty information on the progress made in other regional groupings in Africa on the concept of cross border legal practice. It would appear that the concept is still in its nascent stage given the fact that the basic frameworks for engaging in it are being established.
The Economic Community of West African States (ECOWAS), which comprises West African states, appears not to have given effect to the concept despite the fact that Article 3(2) (d) (iii) of the revised ECOWAS Treaty makes provision for elimination of restriction in the movement of factors of production, including restrictions in the movement of services, and also the provisions under Article 3(2)(h) and Article 57(1) regarding the establishment of an enabling legal environment and harmonization of judicial and legal systems. It is hoped that with the ECOWAS Trade Liberalization Scheme (ETLS) and recent effort of the ECOWAS to strengthen its common market by the formal launching of the Common External Tariff (CET) which became fully operational on 1st of January, 2015, amongst other steps being taken by the regional body to strengthen trade cooperation amongst member states, ECOWAS will be in a position to effectively adopt the concept of Cross Border Legal Practice (CBLP) in the near future.
It is pertinent to point out unlike its counterparts in the West and South, the East African region is seen moving at a modest speed towards the establishment of the Cross Border Legal Practice by establishing the Common Market under the provision of the Treaty for the establishment of the East African Community as a vehicle for implementing Cross Border Legal Practice.
6.0 QUALIFICATION FOR LEGAL PRACTICE IN SOME WEST AFRICAN COUNTRIES:
The Legal Practitioners Act prescribes the qualification for persons to practice law in Nigeria. This includes persons whose names are on the Roll of legal practitioners, persons who apply to the Chief Justice of Nigeria and are entitled to practice as advocates from countries where the legal system is similar to that of Nigeria and the Chief Justice of Nigeria is of the opinion that it is expedient for that person to practice as a Barrister for the purpose of the proceedings described in the application.
Under the Legal Practitioners Act a person shall be entitled to have his name enrolled if, and only if-
a) he has been called to the Bar by the Body of Benchers; and
b) he produces a certificate of his call to the Bar to the Registrar of the Supreme Court of Nigeria.
At the moment the Nigerian legal market is closed to foreign lawyers from other jurisdictions.
The Ghana Legal Profession Act, 1960, empowered the General Legal Council to enforce regulations concerning all matters relating to legal education in Ghana.
The Ghana legal system is based on British Common, customary (traditional) law, and the 1992 Constitution. Article 11 of the 1992 Ghana Constitution identifies the source of Ghanaian law as the Constitution; legislation; existing law; and common law. Existing law is defined as the written and unwritten laws of Ghana predating the current constitution as adapted to conform to the constitution.
In Ghana, there is no dichotomy between solicitors and barristers. Foreign lawyers are permitted to practice in Ghana provided they have the required qualifications from their home jurisdiction. A letter of good standing is
required from their local bar which must be certified by the General Legal Council. The foreign lawyer must also pass the required examination in Ghanaian Constitutional law and the Customary law of Ghana. Non-Ghanaian citizens are also required to demonstrate seven years post qualified experience (PQE) in a country with compatible legal system. A few Nigerian law firms have already established offices in Ghana.
(iii) SIERRA LEONE:
The Legal Profession in Sierra Leone is regulated by the Legal Practitioners Act, 2000 of Sierra Leone. The Act allows a qualified lawyer to practice as solicitor and barrister upon a written application made to the General Legal Council of Sierra Leone. The application shall be accompanied by two testimonials of good character sufficient to satisfy the Council, copies of qualifying certificates and a certificate that the applicant has served the period of pupilage applicable to him. The application is usually posted up at a conspicuous place in the main law courts building for a period of thirty (30) days inviting objections to the application, if any. Where an objection is received by the Secretary of the Council a day is appointed with summons issued to any interested party to appear before the Secretary for the hearing of the objection. Where an applicant has fulfilled the requirements under the Act and there is no objection pending against his application, the Council may admit the applicant as a legal practitioner in Sierra Leone.
It is important to note the Council may upon ‘’good cause shown’’, refuse to admit any person to practice law in Sierra Leone notwithstanding that he has fulfilled all the requirements for the practice of law in Sierra Leone. Where admission to practice is refused, the person concerned may apply to the High Court to have the matter reviewed for determination.
Trade liberalization and regional integration have already become a reality in most parts of the world and even in other parts of Africa, with Regional Economic Communities growing from strength to strength. Indeed, it is
widely believed that regional economic integration is the only way for African countries to survive the negative effects, and collectively, take advantage of the opportunities of globalization. The message for policy makers then is that the elimination of those visible and invisible controls and barriers to the implementation of the ECOWAS trade liberalization scheme as well as Cross-Border Legal Practice (CBLP) will increase investment in the region and thus restructure economic activity towards greater global competitiveness.
As we may all know, there are Medical Doctors already operating on the internet. There are some commercial agreements you can easily download from the internet. The world is already a global village and the best way to overcome the challenges anticipated in opening the Nigerian legal industry to foreign lawyers to practice is to immediately formulate and put in place acceptable, legitimate and reasonable limitations to cross border legal practice in order to protect and shield from competition Nigerian Legal Practitioners until such a time we will be able to compete effectively with our foreign counterparts.
SYLVA OGWEMOH, SAN, FCIArb (UK).
IBA Global Cross Border Legal Services Report. www.ibanet.orgWorld Bank (2009), “Negotiating Trade in Services: A Practical Guide for Developing Countries”, International Trade Department, p.2 World Trade Organization, Services: rules for growth and investment’, http://www.wto.org/english/thewto_e/whatis_e/tif_e/agrm6_e.htm
Hustler, M. and D. Primack, 2012. Harnessing Services Trade for Development: A Background and Guide on Service Coalitions in Africa and the Caribbean. Toronto: ILEAP (Background Brief No. 22) p.5. http://www.ileap-jeicp.org/downloads/bb22_background-guide-service-coalitions-africa-caribbean_april12.pdf)
Florence R. Liu, The Establishment of s Cross-Border Legal Practice in the European Union, 20 B.C. Int’l & Comp. L. Rev. 369 (1997), p.370 Retrieved from http://lawdigitalcommons.bc.edu/iclr/vol20/iss2/7 .
Terry, L. (2001). GATS’ applicability to transnational Lawyering and its potential impact on U.S. state regulation of lawyers. Vanderbilt Journal of Transnational Law, 34(Issue)p.995. http://www.americanbar.org/content/dam/aba/migrated/cpr/gats/terry_full_vanarticle.authcheckdam.pdf)
Terry L. A Case Study of the Hybrid Model for Facilitating Cross-Border Legal Practice: The Agreement Between the American Bar Association and the Brussels Bars, 21 FORDHAM INT’L L.J. 1382 (1998) p.1385
Terry, L (2010) From GATS to APEC: The Impact of Trade Agreements on Legal Services, 43 AKRON L. REV pg.875
See generally the provisions of Article 3(2)(d) (iii) of the ECOWAS Treaty at http://www.comm.ecowas.int/sec/index.php?id=treaty&lang=en
For the latest development on the ECOWAS quest to establish the Common market, go to http://allafrica.com/stories/201102220370.html
ECOWAS and Trade Liberalisation: Challenges and The Way Forward. By Akim, K. A.
Actualizing the ECOWAS Dream of a Borderless Region: Issues, Prospect and Options. Michael P. Okom and Edem E. Udoaka.
Implementing Cross Border Legal Practice within the EAC States: A Case of the Legal Profession in Tanzania. By John Seka.