Terms of Reference

The terms of reference for the consultancy are set out below.

APEC Legal Services Initiative 1

Terms of Reference for Research Consultant

Section 1.01 Scope of the consultancy

The consultant will develop an inventory of APEC Member economies' requirements and procedures for the licensing of lawyers, with a focus on the regulation of foreign lawyers. Tasks include:

  1. project manage the research and collation of data on the regulatory schemes for the licensing of lawyers across the APEC Member economies with an emphasis on:
    • the rights and licensing of foreign lawyers to provide services in foreign and international law, and
    • rights for foreign lawyers to work in association with host economy lawyers.
  2. i compile information on the legislative or other basis for each APEC Member economies' foreign lawyer regulatory regime, including a description of the relationship among relevant institutions.
  3. catalogue the contact details and website, if any, for each APEC Member economies' regulating body.
  4. catalogue the contact details and website, if any, for the peak professional body in each APEC Member economies' regulatory jurisdiction/s.
  5. undertake a comparison between Member economies' regulatory arrangements and assess the extent to which each Member economies' regulatory regime for foreign lawyers is consistent with the ‘Limited Licensing Approach' in the International Bar Association Statement of General Principles for the Establishment and Regulation of Foreign Lawyers adopted in June 1998 (copy attached).
  6. ensure that electronic and paper-based reporting and records management meet relevant APEC requirements regarding form and content.
  7. attend a workshop in Singapore in July 2009 and present outcomes of research.

Section 1.02 Output / reporting

Section 1.03 Fees and possible facilities to be provided by client

The consultant will be engaged on a contract and compensated with a lump sum of USD12,000 payable in two instalments, the first instalment at the beginning of the consultancy and the final instalment at the completion of the consultancy.

The following resources will be available for use by the consultant:

Section 1.04 Qualifications of consultant

Familiarity with researching and interpreting foreign statutes and regulations. Knowledge of, and experience in, government and regulatory frameworks. International liaison and research experience.

Knowledge of, and experience in, the fields of international trade in services, trans-national business, regulation of professional services and/or the provision of legal or other professional services internationally. Excellent English writing skills.

Background information

Section 1.05 Key objectives of the APEC Legal Services Initiative

The key objectives of the initiative are to:

  1. build capacity and skill levels across APEC economies in the:
    • provision of legal services in foreign and international law, and
    • regulation of foreign lawyers.
  2. increase transparency of the regulation of the legal professions, with a focus on foreign lawyers, through the development of an electronic database and repository containing current regulatory information with links to relevant regulatory bodies across APEC economies.
  3. develop a Legal Services Framework across APEC economies to:
    • facilitate a network of legal services bodies, and
    • identify best practice models for reducing impediments to the provision of services in foreign and international law.
  4. share experiences of and identify benefits flowing from open foreign lawyer regulatory regimes.

Section 1.06 Project implementation stages

The initiative will be carried out in four steps:

  1. developing an inventory of APEC Member economies' regulatory regime for licensing of lawyers, including the regulation of foreign lawyers and their right to provide legal services in foreign law and to work in association with host-economy legal professionals.
  2. holding a capacity-building workshop for legal services regulators and government representatives to: share experiences on the regulation of foreign lawyers, identify best practice models, hear the requirements of, and engage with, clients of trans-national legal services, and work towards satisfying the needs and information gaps in APEC economies in the availability of fully integrated legal services.
  3. building on the outcomes of the workshop, identify best practice models in the licensing and regulation of foreign lawyers and include that information in an electronic repository together with an inventory of current legal services regulatory information and regulatory body contacts from across APEC economies (ideally to be hosted on the APEC website).
  4. developing an APEC Legal Services Framework to facilitate a network for discussion, sharing of information and identification of best practice for reducing impediments to the provision of services in foreign and international law between APEC Member economies.

Section 1.07 Steering Committee

Australia will coordinate the implementation of this initiative with the assistance of a Steering Committee comprising of Australia, Canada, Chinese Taipei, New Zealand, Peru, Singapore and the United States.

Section 1.08 Wider Benefits

The capacity to obtain legal services covering the laws of multiple jurisdictions is a key factor in driving foreign investment through increasing the efficiency and reducing the costs of transnational business transactions. This initiative seeks to facilitate the availability of legal services covering the laws of multiple jurisdictions across APEC economies by building the capacity of participating APEC economies to develop cooperative networks of appropriate bodies to assist in developing best practice foreign lawyer regulatory regimes.

However, it is recognised that the regulation of the legal profession can be an area of particular sensitivity and this initiative will leave responsibility for accreditation and licensing of legal service providers in the hands of each economy's relevant organisations. Importantly, the initiative does not push for a right for foreign lawyers to practise local law or represent clients before local Courts.

The initiative has a wide range of intended beneficiaries, including:

Section 1.09 Regulation of foreign lawyers – the Australian approach

Australia is keen to promote the liberalisation of trade in legal services internationally and share its experience to assist others in progressively opening the legal services market to suit their particular circumstances. Australia maintains a hospitable foreign lawyer regulatory system consistent with the ‘Full Licensing' and ‘Limited Licensing' approaches advocated in the International Bar Association Statement of General Principles for the Establishment and Regulation of Foreign Lawyers. Foreign lawyers have a right to enter Australia and practise foreign law and international law without the need to gain admission to practise domestic law in Australia. Foreign lawyers have the option of registering to practise foreign law in Australia, or may practise on a fly-in, fly-out basis for an aggregate of 90 days in any 12 month period without registration. Foreign lawyers also have the option to enter into commercial association with local practitioners.

Section 1.10 Contact details

Mr Arjuna Nadaraja
Director
International Legal Services Policy Section
Attorney-General's Department
Robert Garran Offices
National Circuit
BARTON ACT 2600 AUSTRALIA
T +61 2 6250 6212
F +61 2 6250 5952
M +61 448 286 670

1 Asia-Pacific Economic Cooperation (APEC) members are: Australia, Brunei Darussalam, Canada, Chile, People's Republic of China, Hong Kong SAR, Indonesia, Japan, Republic of Korea, Malaysia, Mexico, New Zealand, Papua New Guinea, Peru, Philippines, Russia, Singapore, Chinese Taipei, Thailand, United States, and Vietnam.