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Free movement of legal practice within ECOWAS states (2)

By Sylva Ogwemoh   |   08 September 2015   |   3:46 am  
Macky Sally

Macky Sally

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. 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.

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. QUALIFICATION FOR LEGAL PRACTICE IN SOME WEST AFRICAN COUNTRIES: NIGERIA: 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.

GHANA: 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. 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. CONCLUSION: 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.

Ogwemoh, a Senior Advocate of Nigeria presented this as a paper on the occasion of the Nigerian Bar Association young lawyers’ annual summit in Benin City recently.



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