Free Trade Agreements

Issue: Free Trade Agreements

Impact:

Free trade agreements (FTAs) can impact state courts because they include “services” as a subject matter.  The General Agreement on Trade in Services [GATS] is the grandparent of such proposals.  GATS is one of the agreements annexed to the agreement establishing the World Trade Organization [WTO].  The intent is to remove barriers to the flow of services between nations, including legal services.  State courts may receive pressures to effectuate some types of regulatory easing for foreign lawyers seeking to practice in the USA.

Position:

By resolution, state court leaders have urged the US Trade Representative (USTR) and Congress to only approve trade agreements provisions that recognize and support the sovereignty of state judicial systems and the enforcement and finality of state court judgments and to clarify that under existing trade agreements, foreign investors shall enjoy no greater substantive and procedural rights than US citizens and businesses.

Summary:

Since the last monthly report, the USA signed the Trans-Pacific Partnership Agreement (TPP).  The Agreement now awaits Congressional approval. 

Additional FTAs are being negotiated including the Trade in Services Agreement (involving more than a dozen US trading partners who are impatient with the GATS process), and the Transatlantic Trade and Investment Partnership Agreement (commonly called the “TTIP” or US-EU trade agreement).

Status:

At its January 2015 midyear meeting, the full CCJ adopted a resolution that “strongly encourages its members to adopt explicit policies that permit the qualified activities by foreign lawyers as a means to increase available legal services and to facilitate movement of goods and services between the United States and foreign nations. 

For the last two years, the CCJ Task Force on Foreign Lawyers & the International Practice of Law has hosted biannual international conference calls to keep up with the multiplicity of developments in global lawyer regulation and to promote readiness of the full Conference to make timely and appropriate recommendations with respect to domestic lawyer regulation.  Callers dial in from Australia, Europe, and North America.  Of special note, Thomas Fine, a lead USTR trade negotiator participates regularly.

After the 2015 annual meeting, CCJ leadership decided to abolish the Task Force and place its subject matter in the Professionalism Committee.  The Committee created a working group chaired by retired NY Chief Judge Jonathan Lippman to maintain focus on international lawyer regulation issues.

The new Working Group on Foreign Lawyers and the International Practice of Law, like its predecessor Task Force noted above, conducted an international conference call on 11/14/16.  Working group chairman Jonathan Lippman will report to the CCJ Professionalism Committee at the CCJ midyear meeting in January 2017.