Now that the Cop26 climate change conference is over, work is gearing up for the next major international meeting with consequences for lawyers.
The 12th Ministerial Conference (MC12) of the World Trade Organization (WTO) will take place from 30 November to 3 December 2021 in Geneva. Trade ministers from around the world – the WTO counts 164 member countries – will meet to review the functioning of the multilateral trading system, which has delivered considerable benefits to our profession as an exporter of legal services. This is the first such meeting where the UK will appear on its own, no longer under the EU umbrella.
As with Cop26, there has been huge work to ensure that agreements can be signed during the few days that the conference takes place. Probably the most high-profile example is the work of the Council for Trade-Related Aspects of Intellectual Property Rights (TRIPS) to find a common intellectual property (IP) response to Covid-19. The shared goal is to provide timely and secure access to high-quality, affordable vaccines for all, rich and poor – but disagreement remains as to whether a waiver of IP rights is the best way forward.
That is of great interest to IP lawyers of course, but there are other areas of more general interest. Every topic is dense with the most obscure jargon and impenetrable technical terms (witness the many initialisms in this article), but they are worth following for their potential impact on our work.
The issue of most consequence for solicitors goes under the heading of ‘domestic regulation’. This covers qualification requirements, technical standards and licensing requirements in services, and targets the kinds of barrier that solicitors face when we want to practise cross-border (how to obtain recognition of our existing qualification, for instance, or how to qualify in a new jurisdiction). The aim is to counter the unintended trade-restrictive effects of existing measures, and to provide predictability and transparency.
This discussion has been subject to classic WTO politics. Work was continuing on domestic regulation on a multilateral basis (covering everyone), but at the previous WTO ministerial conference in 2017, India and several other developing countries voiced opposition to the scope. This led to a large group of countries splitting off from the multilateral discussions to seek progress on a plurilateral basis, covering just those countries interested in making progress. Not surprisingly, India and its allies do not like plurilateral negotiations, because they are deprived of leverage.
Given the increasing difficulty of finding multilateral agreement among countries with such different agendas and types of economy, there are now various plurilateral negotiations, known as Joint Statement Initiatives (JSIs), covering e-commerce, investment facilitation for development, micro, small, and medium-sized enterprises (MSMEs), and services domestic regulation. The US joined the JSI on domestic regulation earlier this year, a sign of more WTO engagement from the new administration. It now covers 64 countries, including the UK, EU and other important markets for solicitors.
The news is that the JSI on domestic regulation is making headway on finalising negotiations in time for MC12. Although publicity will focus on the discipline applying non-discrimination between men and women in authorisation procedures, there will doubtless be other successes in transparency of procedures.
There will also be news on e-commerce. E-commerce is an area with its own JSI, and there will be an announcement at MC12 to take stock of what progress has been made in e-invoicing, cybersecurity, customs duties on electronic transmissions, open internet access and paperless trading.
Lawyers’ organisations will be present. For instance, the International Bar Association is sending a delegation. The kinds of topic of interest to lawyers are not only the outcome on domestic regulation, but also market access commitments, digital trade – since legal services are increasingly delivered electronically across borders, which throws up new legal and regulatory problems – and whether there will be any movement on the frozen WTO appellate body, which is unable to function because the US is refusing to allow the appointment of another judge to it.
The pandemic hangs over proceedings. Up to four people may register per non-governmental organisation, but there will be a ‘floating badge’, which means that only one representative of each organisation will be admitted to events. There will be limitations everywhere, on an event which thrives on constant briefings and haggling.
As with Cop26, the proceedings will seem remote from our lives. However, the outcomes will affect not only those solicitors who advise clients on trade matters, but also those firms which are engaged in the cross-border trade in legal services.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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