WORLD TRADE
ORGANIZATIONS/CSS/W/67/Suppl.1/Rev.1
10 July 2001
(01-3435)
Council for Trade in Services
Special SessionOriginal:  English
COMMUNICATION FROM AUSTRALIA
Negotiating Proposal for Legal Services
Revision
The following communication has been received from the delegation of Australia to replace
the previous supplement (S/CSS/W/67/Suppl.1) with the request that it be circulated to the Members
of the Council for Trade in Services.
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1. This paper elaborates on Australia’s Negotiating Proposal for Legal Services1 by setting out a
description of the ‘Limited Licensing’ concept and th e role it can play in meeting the requirements of
legal practitioners and law firms interested in pr oviding international legal services.  Australia
reserves the right to submit further and more detailed proposals in relation to legal services at a later
date.
I. LIMITED LICENSING CONCEPT - DEFINITION
2. The limited licensing concept can be defined as a regulatory approach that permits foreign
legal practitioners and foreign law firms to practise their home-country law, third-country law (where
qualified) and international law in a host country, without having to satisfy the more burdensomerequirements in relation to gaining a right to practise host-country law.
3. The International Bar Association (IBA) definition is:
Regulation of Foreign Lawyers as practitioners of foreign law for the limited purpose
of permitting them to practice the law of their home jurisdiction in the host
jurisdiction without examination or full admission to the host bar.
2
II. BACKGROUND
4. As identified in Australia’s proposal,3 a prerequisite for the limited licensing approach is the
recognition of the existence of separate categories of laws: home-country, host-country, third-country
                                                     
1 World Trade Organisation ‘Communication from Australia: Negotiating Proposal for Legal Services’
S/CSS/W/67 (27 March 2001).
2 International Bar Association ‘Resolution on the General Principles for the Establishment and
Regulation of Foreign Lawyers’ adopted by the Council of the IBA in Vienna on 6 June 1998.  For the purpose
of the resolution, the IBA definition of ‘home jurisdiction’ includes “a person licensed or otherwise authorised
to practice law in a given country, or internal jurisdiction thereof”.S/CSS/W/67/Suppl.1/Rev.1
Page 2
and international law, as distinct bodies of law.  By using these distinctions in their GATS
commitments, Members have demonstrated that the categories of home-country law, host-country
law, third-country law and international law more accurately reflect the reality of international trade in
legal services.4
5. For a prospective foreign legal practitioner, a lack of regulatory provisions recognising these
categories of law in a host jurisdiction means that the foreign practitioner is usually required to meet
admission criteria for the practice of host-country law in order to practise home-country law.  This is
unnecessarily burdensome because, in effect, a foreign lawyer is required to obtain a ‘full licence’
when he or she may require only a licence to pr actise home-country law, third-country law and/or
international law,  not host-country law.
6. Legal practitioners involved in providing inte rnational legal services are, in the main,
interested in providing ‘producer’ (intermediate) services concerned with commercial transactions andnot ‘consumer’ services, which are typically ‘final’ services (eg, family, matrimonial, estate, personal
injury and similar personal legal services).  Nor are foreign legal practitioners usually interested in
obtaining a right of audience in the courts of host jurisdictions, other than a right to appear in
international commercial arbitration.  Generally, a foreign legal practitioner’s main interest is in
providing advisory legal services in home-country law, third-country law and international law.
5
Accordingly, a limited licence scheme provides acces s for foreign practitioners to a country without
intruding into the primary domain (practise of host-country law) of that country’s practitioners.  There
are also flow-on benefits for host-country practitioners: eg, from providing supporting or
complementary advisory services in host-country law and from international commercial arbitration
being conducted in the host country.
III. LIMITED LICENSING – ESSENTIAL FEATURES
7. A regulatory system adopting the limited licensing concept should aim for the following
outcomes:
• formal recognition, under a transparent regime, of the right of a foreign legal practitioner to
practise home-country law, international law and, where appropriately qualified, third-country
law;  and
• the right to practise the foreign legal practitioner’s home-country law, third-country law and
international law in partnership or in other forms of voluntary commercial association with
other foreign legal practitioners or host-country legal practitioners, without limitations on the
number and type of such associations.
IV. LIMITED LICENSING – AUSTRALIAN MODEL
8. Australia has a federal system of government and the legal profession is regulated at the State
and Territory level.  States and territories in which foreign legal practitioners have shown the most
interest, a hospitable and comprehensive limited licensing regulatory system (granting the rights
mentioned above) is in place.  The principle purpose of the implementing legislation in those
jurisdictions is:
                                                                                                                                                                    
3 World Trade Organisation ‘Communication from Australia: Negotiating Proposal for Legal Services’
S/CSS/W/67 (27 March 2001) at paragraphs 7 - 8.
4 World Trade Organisation ‘LEGAL SERVICES: Background Note by the Secretariat’ S/C/W/43
(6 July 1998) at paragraph 17.
5 World Trade Organisation ‘LEGAL SERVICES: Background Note by the Secretariat’ S/C/W/43
(6 July 1998) at paragraph 24.S/CSS/W/67/Suppl.1/Rev.1
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... to encourage and facilitate the internationalisation of legal services and the legal
services sector by providing a framework fo r the regulation of the practice of foreign
law in the State by foreign-registered lawyers as a recognised aspect of practice in
the State.6
9. Four Australian jurisdictions (Victoria, New South Wales, the Northern Territory and
Australian Capital Territory) have implemented legislation which ensures the following rights,
additional to those identified in Paragraph 7:
• on a ‘fly-in, fly-out’ basis (Mode 4), foreign legal practitioners have the right to practise
home-country law, international law or third-country law without registration as a foreignlegal practitioner;
7  and
• foreign legal practitioners have the right to provide legal services (including appearances) in
relation to international commercial arbitration.8
10. Mode 4-type access identified above is of interest to legal practitioners generally, and
particularly to practitioners from developing nations, as it does not require the high costs associated
with establishing a commercial presence.9
11. The hospitable and comprehensive limited licensing scheme in Australian jurisdictions is
consistent with the ‘Statement of General Principles of the Establishment and Regulation of ForeignLawyers’ adopted by the IBA.  The IBA is of the view that a limited licence should be granted,
permitting the practice of foreign law if the foreign legal practitioner:
• is licensed or authorised to practise law by, and in good standing with, his or her Home
Authority;
• has satisfied reasonable minimum practice requirements;
• is a person of good character and repute;
• agrees to submit to the Code of Ethics, or its equivalent, of the Host Authority;
• carries liability insurance or bond indemnity or other security consistent with local law and
which, if applicable, is no more burdensome than required by the Host Authority of fullylicensed lawyers; and
• consents to local service of legal process.
10
12. To protect the public, the IBA is of the view that a host country may impose certain
conditions on foreign legal practitioners.  They would operate to prohibit foreign legal practitioners
from appearing in local courts or providing advice on host-country law or third-country law when not
qualified, and would require the foreign practitioners to make reasonable disclosure to inform thepublic of their status as foreign practitioners.
                                                     
6 Legal Profession Act 1987 (NSW) Section 48ZF; Legal Practice Act 1996 (Vic) Section 63F.
7 Legal Profession Act 1987 (NSW) Section 48ZH; Legal Practice Act 1996 (Vic) Section 63I.
8 Legal Profession Act 1987 (NSW) Section 48ZS; Legal Practice Act 1996 (Vic) Section 63U.
9 World Trade Organisation ‘LEGAL SERVICES: Background Note by the Secretariat’ S/C/W/43
(6 July 1998) at paragraph 25.
10 International Bar Association ‘Resolution on the General Principles for the Establishment and
Regulation of Foreign Lawyers’ adopted by the Council of the IBA in Vienna on 6 June 1998.S/CSS/W/67/Suppl.1/Rev.1
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13. The approach commended by Australia and discussed at paragraphs 8 to 11 above, is
consistent with the IBA's recommended conditions.  In addition, the Australian approach allows
foreign practitioners to advise on the effect of host-country law, if the giving of that advice is
necessarily incidental to the practice of home-country law, third-country law or international law and
the advice is expressly based on advice of a host-country practitioner not employed by the foreignpractitioner.
14. In the Australian jurisdictions which have adopted a comprehensive limited licensing
regulatory system, public interest and consumer protection aspects are addressed during the
registration process by an assessment of the applicant’s fame and character prior to registration as a
foreign legal practitioner.  This assessment is generally made on the basis of whether the practitioner
is, amongst other aspects, subject to any disciplinary  proceedings, any criminal or civil proceedings or
to any special conditions in the home or the relevant third-country.  The practitioner is also required toconsent to the local authority exchanging inform ation, about the practitioner, with the home/third
country registration authority.  Subsequent to registration, foreign legal practitioners are subject to the
same disciplinary action in relation to professional, ethical and practice standards applicable to local
practitioners in the relevant Australian jurisdiction.
V. VOLUNTARY COMMERCIAL ASSOCIATION
15. As identified at the second dot point in paragraph 7 above, the ability to form partnerships or
other forms of integrated practice relationships between host-country and foreign legal practitioners is
an important element of providing more comprehensiv e international legal services.  This ensures that
clients demanding international legal services can obtain a broad range of legal services from a
common provider across different jurisdictions.
16. A limited licensing scheme that does not provide for association between foreign and local
legal practitioners, without limitations or special requirements on the number or type of such
associations, would fail to fully achieve a framework that serves the needs of clients demanding
international legal services.  A limited licensing scheme that lacks the ability to provide for
association between foreign and host-country legal practitioners is, in effect, an unnecessarilyrestrictive barrier to the provision of international legal services.
17. Countries that maintain a nationality requirement in relation to the provision of legal services
appear to do so to protect a 'public function' performed by host-country practitioners involved in the
practice of host-country law, particularly in relation to representation associated with a right of
audience in the courts of host jurisdictions.
11  As discussed earlier, a foreign legal practitioner’s main
interest is in providing advisory legal services in home-country law, third-country law and
international law with scope for voluntary commercial association without a need for a right ofaudience before the host-country courts.  Even though Australia considers nationality requirements to
be a trade-distorting barrier,
12 it is possible for Members to maintain such a requirement and protect
'public function' aspects, but at the same time, to provide access for foreign legal practitioners under a
limited licensing scheme, as foreign practitioners would not practise host-country law nor seek a right
of audience before the courts.
                                                     
11 World Trade Organisation ‘LEGAL SERVICES: Background Note by the Secretariat’ S/C/W/43
(6 July 1998) at paragraph 30.
12 World Trade Organisation ‘Communication from Australia: Negotiating Proposal for Legal Services’
S/CSS/W/67 (27 March 2001) at paragraph 9.S/CSS/W/67/Suppl.1/Rev.1
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VI. CONCLUSION
18. The limited licensing concept allows foreign legal practitioners and foreign law firms to
practise their home-country law, third-country law (where qualified) and international law in a host-
country without having to meet the burdensome requ irements related to the right to practise host-
country law.  It negates the need to maintain nationality requirements and is trade enhancing.  Whencombined with the scope to form voluntary commercial associations between foreign and host-
country practitioners, it meets the needs of clients demanding comprehensive international legal
services at predictable standards across different jurisdictions.  It also facilitates the transfer of
professional knowledge and skills.
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