The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

The Bahamas’ chief WTO negotiator last night slammed as “absolute nonsense” assertions that the government is willing to open the legal services sector up to foreign firms.

Zhivargo Laing, the former Cabinet minister, told Tribune Business it was “an absolute lie” to suggest that The Bahamas was prepared to permit the physical presence of foreign law firms in this nation as part of its accession to full World Trade Organisation (WTO) membership.

He said he had “made it clear that no such thing will happen” during a recent meeting between The Bahamas’ negotiating team and the Bar Association, adding that he had warned WTO member states he would “need an apartment in Geneva” should that be permitted.

However, Dave Allen, an attorney with Bahamas Law Chambers, last night told this newspaper he stood by his concerns that The Bahamas is prepared to open the legal profession to foreign law firms establishing a physical presence in this nation.

The assertion, made in a column he has authored, and which is due to run in Tribune Business tomorrow, expressed fears that The Bahamas is “being bullied into losing control over important sectors of our services economy” as the price for being admitted to full WTO membership.

He e-mailed to this newspaper documents purporting to back his case, which were issued at the Bar Association meeting with Mr Laing. On the third page of a four-page document, under the heading ‘Proposal for The Bahamas’ legal sector’, mode three - which refers to the ability of companies to establish a physical presence in this nation under its WTO offer - features the word “none”.

This means there are “no limitations” to market access and/or national treatment, which in theory means foreign law firms will be able to enter The Bahamas. However, they would still have to overcome so-called “horizontal limitations” that may exist, which require all incoming businesses - regardless of which industry they are in - to seek the necessary government approvals.

A closer look at the small print, though, suggests that “physical presence” in the context of foreign law firms will be limited to those offering services strictly limited to their home country law and international law. This indicates The Bahamas is not planning an ‘Open Sesame’ when it comes to international law firms, which Mr Allen also appears to acknowledge in his column.

And Mr Laing yesterday said no WTO member was currently “pressing or pushing us” to open any industry to foreign firm physical presence beyond what was contained in The Bahamas’ initial offer.

“That is an absolute lie,” he told Tribune Business, when contacted about the assertions of opening the Bahamian legal services profession to physical presence by foreign firms. “I don’t have anything else to say about that.

“I just spoke recently to the Bar Association, and made it very clear no such thing was happening - not at all, so far in this process. It’s absolute nonsense. Speaking to the lawyers at one point, I indicated to the that I’d told the WTO and its members that if I wanted to open that area you’d have to find me an apartment in Geneva because I couldn’t go home like that.

“It’s absoute nonsense. At this point no one has pressured or pushed us to open any area to mode three. We have had no such pressure to-date across-the-board. These areas are not up for discussion. It does not mean somebody will not ask about that, but there’s no pressure or threat in that direction at all. Not at the moment.”

Mr Allen, though, wrote in his column that while allowing Bahamians to consume legal services in other WTO members’ countries and vice versa was not controversial, as it merely reflected the “status quo”, opening up the sector to foreign law firms to establish physical presence would be - even if limited to practicing home country or international law.

“The few limits to Mode three imposed in the revised Bahamas WTO offer on legal services are that these WTO member state law firms can only practice public international law and the law of their home nation,” he wrote. “How could these limitations be enforced?

“Once these law firms move here, it will likely be impossible to determine if they are trading and practicing in Bahamian law. Further, the legal system of English-speaking Caribbean countries is based on the English common law system, so it would be very tempting for them to advise on Bahamian legal matters.”

The Bahamas Bar Association has guarded the legal services industry against foreign intrusion for decades now, even to the extent of not allowing in specialist practitioners to help drive financial services business to these shores. Any WTO-related opening will likely also be met with stiff resistance.

The first page of the four-page document disclosed by Mr Allen reflects the position shown in The Bahamas’ initial offer released back in January, namely that it is “unbound” and offering no opening to foreign law firm physical presence beyond the “horizontal commitments”. However, Mr Laing said at the time that legal services was one of eight areas in the offer that did not reflect the current “status quo” of the economy.

Confirming that he went to the Bar Association meeting with the WTO negotiating team, Mr Allen said attorneys present were informed that The Bahamas was not going to open up the industry to foreign law firm physical presence.

“I was quite taken aback when I spoke to the experts at the back,” he told Tribune Business. “I was so amazed that they had talked on and on about nothing changing, and when I spoke to a lady afterwards she let it slip out. They said: ‘Why’d you tell him that?’, and the main reason they said they didn’t say anything earlier was because they didn’t want to upset us.

“I was so amazed. It blew me away that they’re actually considering this.”