Memorandum submitted by Clifford Chance
LLP
INTRODUCTION
1. This submission is made on behalf of
Clifford Chance LLP, in response to the invitation by the House
of Commons Trade and Industry Committee to submit evidence on
its new inquiry on developments since the Committee's 2006 Report
on Trade and Investment Opportunities with India.
2. Clifford Chance is one of the largest
law firms in the world, with 28 offices in 20 countries[27]
throughout the Americas, Asia, Europe and the Middle East, and
over 3,600 legal advisers, the largest number of which are based
in London. We are regulated by the Law Society of England and
Wales.[28]
3. We made a submission to the Committee's
inquiry into Trade and Investment Opportunities with India, in
January 2006, in which we argued that legal services are as important
as other infrastructure services in facilitating foreign investment
and developmental projects, and in which we brought to the Committee's
attention the fact that local regulatory constraints currently
prohibit non-Indian law firms from establishing offices in India.
4. We welcomed the recommendation in the
Committee's report on legal services, and particularly the recommendation
that the UK Government should "press the Indian Government
to commit itself to a timetable for the liberalisation of the
legal services market" (paragraph 85).
5. We were disappointed that the Government's
response to the Committee's report made no specific mention of
legal services, though it did promise, more generally, that the
Government would continue "to push forward our market access
agenda, through ministerial contacts, multilateral negotiations,
bilateral lobbying and the JETCO process" (paragraph 16).
THE JETCO PROCESS
6. Clifford Chance has been participating
directly in the JETCO process in relation to legal services; Sir
Tom Legg, our representative on the JETCO team, recently accompanied
Baroness Ashton on a visit to India, along with other industry
members of the team (26 April to 5 May 2007).
7. Progress of the talks has been disappointingly
slow. Representatives from the Indian legal services industry
were not receptive to proposals put forward by the UK side which
would have led to a gradual liberalisation and which took into
account local restrictions which would have placed Indian
law firms at an unfair disadvantage. Alternative proposals involving
Indian majority-owned joint ventures put forward by Indian
lawyers were not acceptable to UK law firms.
8. More recently it has become clear that
a key player in the Indian legal services sector, the Bar Council
of India (the "BCI"), should have been included in the
negotiations from the outset, but had not been invited by the
Indian Government. The BCI is formally opposed to liberalisation
but we believe that this stance is not immutable. Disappointingly,
it was not possible to convene a further JETCO meeting in India,
but the BCI has agreed to come to London for talks in the near
future.
9. However, Baroness Ashton's visit has
revitalised the process and we remain confident that the JETCO
process will have positive results for liberalisation. We would
like to pay tribute to Baroness Ashton for her efforts on behalf
of the legal services sector during the trip to India. We are
hopeful that her personal commitment and the energy she has brought
to the negotiations will regenerate the talks and help bring about
a positive outcome. Certainly the climate in India as regards
liberalisation of legal services is more positive now than at
any point in the last ten years.
10. The JETCO process therefore has already
achieved a great deal in terms of advocacy for the autonomous
liberalisation of legal services in India and we are confident
that it is laying the groundwork for real progress. This could
take the form of unilateral action by India to enable foreign
lawyers to work there or of a binding agreement either within
the DDA framework or, perhaps more likely, within the framework
of the Free Trade Agreement negotiations recently announced between
the EU and India. While formal launch of these negotiations has
been delayed (at time of writing), we are confident that they
will be launched in the near future.
11. We would also like to pay tribute to
the UKTI representatives in India, as well as the DTI trade negotiators.
We believe there is evidence of greater co-ordination between
UK agencies, and between UK and EU negotiators on legal services
in the past year, and we are grateful for the efforts made on
behalf of legal services.
CONCLUSION
12. Although there have been no concrete
developments in relation to legal services in India, in that local
restrictions continue to prevent UK law firms from establishing
and providing legal services in India, there have been promising
signs on the ground in India that attitudes towards the liberalisation
of legal services are changing, largely as a result of the JETCO
process. We are therefore increasingly hopeful that it will be
possible to achieve some measure of liberalisation either by unilateral
Indian action or in the DDA or the FTA negotiations. We have enjoyed
excellent support from the Ministry of Justice and from the Department
for Trade and Industry in the past year, and hope that the government
will continue its efforts in the coming year.
29 May 2007
27 Includes an associated office in Romania. Back
28
Registered number OC323571. Back
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