Free movement of legal practice within ECOWAS states

Macky Sally

Macky Sally

The Economic Community of West African States (ECOWAS) was established at the point in time when civil society in general and the business community in particular were striving to understand and rise to the challenges of globalization, 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). There was a growing enthusiasm for economic integration, which led to the ultimate goal of regional economic unions. Many countries that were close neighbours or had common problems of economic development strived to maintain some degree of economic cooperation. Thus, ECOWAS came into being as a result of the manifestation of the desires for cooperation among the peoples of West Africa.

The treaty establishing ECOWAS was signed in Lagos, on the 28th of May 1975, comprising sixteen countries of the West African sub-region. These countries 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 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 liberalization 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 liberalization in respect of traditional handicrafts in 1981. Another decision relating to the adoption and implementation of a single Trade Liberalization Scheme for industrial product originating from member states of the community dated 30th May 1983 was signed by the Authority completing the scope of products covered by the ECOWAS Trade Liberalization 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 6 June 1967, which consolidated and legalized 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.

In order 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, late Alh. 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 realizing 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.

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 internationalization 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 general 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 Organization (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 general 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 liberalize 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 liberalization 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.

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’’.

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