FOREIGN LEGAL REPRESENTATION IN ARBITRAL PROCEEDINGS: THE CASE FOR A LIBERALISED LEGAL SERVICES SECTOR IN EMERGING ECONOMIES

ABTRACT

This note examines the issue of foreign legal representation in arbitral proceedings. This is done within the precincts of the broader issue of the benefits and likely detriments of a liberalized legal regime. The need for an evaluation of whether an emerging economy, which seeks to attract and retain foreign investments, should embrace international best practices in its legal system has never been more important. The right to legal representation of choice is well accepted and provided for by international arbitral instruments and even national legislations of leading arbitration jurisdictions. This note examines various international instruments, arbitral rules, national legislations; and also the policy considerations of various protectionist and liberal jurisdictions. It establishes that more jurisdictions have liberalized or are taking steps towards the liberalization of their legal services sector, particularly as it relates to arbitration. It concludes with a recommendation that emerging economies will achieve a cohesion in their economic and development policies, if they embrace a liberal approach, not just in the area of foreign legal representation but also in their legal services sector as a whole.

I. INTRODUCTION

The freedom or the autonomy of parties to structure their private dispute resolution system has long been accepted and recognized as the bedrock of arbitration.[1] It simply follows that amongst other rights, parties have the right to legal representation of their choice. As a practical matter, the parties' right to select representatives of their own choosing is of fundamental significance: the quality, loyalty and vigour of a party's representatives can have substantial consequences for the party's opportunity to present its case, for the outcome of the arbitral process and for the parties' perceptions regarding the fairness and legitimacy of the process.[2] However, there are still concerns about the extent to which this freedom can be limited by mandatory national law provisions, particularly as it relates to choice of legal representation (foreign or domestic) in arbitration proceedings. The answer may not be as straightforward as it appears.

The policy considerations and judicial decisions from various jurisdictions across the globe, on this issue of legal representation reflect differing jurisdictional policies irrespective of how sophisticated the legal system in that jurisdiction is or how developed the jurisdiction might be considered to be. While some jurisdictions e.g. European Community, New York, Malaysia, Netherlands etc. have a liberalized regime that recognizes the unfettered right of the parties to choose or determine their legal representation in arbitral and in some cases other legal proceedings and services. In addition, some jurisdictions subject the right to certain limitations or restrictions e.g. China, India, Singapore, Brazil, Kenya etc. At the other extreme, some jurisdictions totally prohibit foreign legal representation in arbitration proceedings seated in their jurisdiction and even from their legal services sector e.g. Singapore prior to 2000, India prior to 2012, Japan, and some of the states in the United States etc.

This Note explores the existence of the right to legal representation of one's choice in arbitration proceedings (international or domestic).This it does within the precincts of a much broader issue of whether an emerging economy should or should not liberalize its legal services sector. It examines the issue, beginning with the provisions of international arbitration conventions, institutional and ad hoc arbitral rules guaranteeing parties the right to representation of their choice. It also evaluates various national laws and policies. Finally, it concludes with a verdict that any limitation of this right could affect the growth and development of arbitration as a means of dispute resolution in an emerging economy and in the end, impinge on the evolution of a sophisticated legal services sector that is capable of meeting the demands of a globalized world.

II.  THE DILEMMA

It is trite that developed, emerging or developing economies have adopted the practice of concluding Free Trade Agreements, Bilateral or Multilateral Investment Treaties, Investment Agreements etc. whenever foreign capital or investors are involved in economic activities in a particular State. A vast majority of these agreements or treaties contain arbitration clauses and/or other alternative dispute resolution mechanism as the means of resolving disputes. However, there is still a raging debate amongst stakeholders on what the qualification (local or foreign trained) of the dramatis personae required for the rendering of the legal services needed for these business transactions. The dynamics of the time have made the issue more perplexing, considering that we are now in an era, where the practice of law has increasingly become transnational and we now have in abundance international law firms that are spreading across the globe.

The question then becomes whether a country should be protectionist or non-protectionist in its approach. In protectionist jurisdiction, foreign law firms and attorneys may be out rightly prohibited from participate in any arbitration taking place in that jurisdiction. In some cases, their role would be limited to advisory or consultancy services in domestic arbitrations with only local lawyers able to represent parties formally. For instance, in a high profile arbitration with seat in Nigeria,[3] the arbitral tribunal considered Article 4 of the Arbitration Rules ('the Rules') made pursuant to the Arbitration and Conciliation Act, Cap A18, Laws of the Federation of Nigeria 2014, held that the term 'legal practitioner' in Article 4 restricts representation of parties to persons who are qualified to practice law in Nigeria. On that basis, the tribunal declared that the foreign counsel who appeared for the claimants not qualified to represent the claimants in the arbitration proceedings. It concluded that a person who is not qualified as a 'legal practitioner' in Nigeria may not represent parties in arbitration proceedings in Nigeria.

In addition, the restrictions foreign attorneys/law firms may face when trying to gain access to the legal service sector of a protectionist or closed jurisdiction are quite evident in a much broader context than legal representation in arbitration proceedings. These restrictions include the restriction on legal form (the establishment of "branches", incorporated entities, partnerships (limited or not), etc.), including branding and prohibitions or restrictions on the practice of law through corporate entities.[4] The restrictions may also require the local part/arm of the global law firm responsible for providing legal services with regard to domestic law to be locally incorporated or registered, thereby enabling the application of various local rules and regulations pertaining to financial management, including in relation to clients' assets. Further, it may be in the form of requiring some form of partnership or on the hiring of local professionals. In addition, it may involve preventing foreign law firms from expanding into the field of court representation or requiring them to operate in association with or employing locally qualified lawyers.[5]

There are no doubts that upon an objective evaluation, one may not dismiss in a hurry the fears or concerns within the legal communities of these jurisdictions. The fundamental question remains how a balance can be achieved between the protectionist position an emerging economy may adopt in its legal services sector, and the effective actualization of any economic growth and liberalization agenda it is pursuing.

III.  THE RIGHT TO LEGAL REPRESENTATION OF CHOICE IN ARBITRATION

The principle of party autonomy in arbitration, allows the parties to choose the law applicable to substantive and procedural issues, appoint the arbitrator(s), determine the conduct of the arbitration process, arrange the hearing timetable, choose the place of arbitration, select their legal representation etc.[6] Further, it has been suggested that the principle of party autonomy ensures that the arbitration will proceed in accordance with the aspiration of the parties.[7] The right to legal representation of a party's choice is an integral component of the doctrine of party autonomy. It is, accordingly, of decisive importance that the parties be free to select legal representatives of their choice in arbitral proceedings.[8] It is one right, which has been accorded recognition and acceptance by most of the arbitral rules (ad hoc and institutional) and even national arbitral legislations.[9]

a) International Arbitration Conventions

Few international arbitration conventions expressly provide for the right of parties to legal representation of their choice. Under the International Centre for Settlement of Investment Dispute (ICSID) Convention, Article 44 provides that "[e]ach party may be represented or assisted by agents, counsels or advocates whose names and authority shall be notified by that party to the Secretary-General." On its part, the Inter-American Convention provides in Article 3 that, absent express agreement, "the arbitration shall be conducted in accordance with the rules of procedure of the Inter-American Commercial Arbitration Commission" (IACAC); in turn, Article 4 of the IACAC Rules provides that "[t]he parties may be represented or assisted by persons of their choice." The combined effect of these provisions is that, absent contrary agreement, the Convention guarantees a party to an international arbitration the right to legal representation of its choice.[10]

b) Arbitral Rules

In the arbitral rules of most arbitration institutions that are primarily located in developed economies, there are express provisions guaranteeing the rights to legal representation of ones choice in an arbitral conducted by that institution under it rules. For instance, the International Chambers of Commerce (ICC) Rules of Arbitration[11] provides that, "the parties may appear in person or through duly authorized representatives. In addition, they may be assisted by advisers." Article 12 of the American Arbitration Association/International Centre for Dispute Resolution (AAA/ICDR) Arbitration Rules (2009) provides inter alia that, "[a]ny party may be represented in the arbitration. The names, addresses and telephone numbers of representatives shall be communicated in writing to the other parties and the administrator". In the case of the London Court of International Arbitration (LCIA), it 2014 Rules provide that, "[a]ny party may be represented in the arbitration by one or more authorized representatives appearing by name before the Arbitral Tribunal".[12]

Even in the arbitral rules of most regional or domestic arbitration institutions located in leading and some emerging economies, there is the recognition of the right to legal representation of choice. The China International Economic and Trade Arbitration Commission (CIETAC) Arbitration Rules provide that, "the parties may act through designated 'representatives', who may be either Chinese or foreign citizens." In addition, the CIETAC's constituting documents provide that, parties may appoint attorneys to defend their interest during the proceedings of a case before the Arbitration Commission. Such attorney may be citizens of the People's Republic of China or foreign citizens. The 2013 Lagos Court of Arbitration (LCA) Rules,[13] inter alia, provides that, "each party may be represented or assisted by the person chosen by them."

In the realm of ad hoc arbitration, Article 5 of the United Nations Commission on International Trade Law (UNCITRAL) Arbitration Rules (2010)[14] provides inter alia that, "[e]ach party may be represented or assisted by persons chosen by it."

c) National Arbitration Legislations

In the area of national arbitration legislations, quite a number of jurisdictions give foreign attorneys the right to appear in arbitration proceedings. Potentially, this has contributed to the growth of some of these jurisdictions into arbitration hubs for the resolution of disputes arising from domestic and international business transactions.

Highlighting a few of these legislations,[15] the English Arbitration Act of 1996, for instance, in its recognition of the time-tested principle of party autonomy, provides that, "unless otherwise agreed by the parties, a party to the arbitral proceedings may be represented in the proceedings by a lawyer or other person chosen by him."[16] In Hong Kong, Section 2F of the Arbitration Ordinance expressly provides that, "representation and preparation of arbitration proceedings may be conducted by persons who are not legally qualified except where it is done in connection with court proceedings arising out of an arbitration agreement or arbitration proceedings". In the Case of China, Article 29 of the Arbitration Law states that "the parties and their legal representatives may appoint lawyers or engage agents to handle matters relating to arbitration proceedings." Further, ยง594(3) of the Austrian ZPO provides a mandatory guarantee of the right to representation in international arbitral proceedings: "The parties may be represented or counselled by persons of their choice. This right cannot be excluded or limited."

Upon an evaluation of the above provisions of the various international conventions, national legislations and arbitration rules considered above, in the least, it will be garnered that the freedom of parties to determine who represents them in arbitration proceedings is recognized and expressly accorded protection by these instruments. The rationale for this overwhelming support is not far-fetched. The support is anchored on the fact that arbitration is a private dispute resolution system and the parties reserve the right to construct or arrange their private dispute resolution system in the way and manner that suits them. Further, the author is of the opinion that the above provisions, particularly from a national law perspective, recognize the need for parties to effectively present their respective cases before the arbitral tribunal subsists as a right that is far too important to be derogated from on grounds of any mandatory national provisions.

However, one is not unmindful of the fact that in some instances, practical exigencies require that parties to the arbitration proceedings may at some point rely on the courts of the place or seat of arbitration for the use of their coercive power to support or facilitate the proceedings. This is evident in the area of determining the existence of an arbitration agreement, the appointment and replacement of arbitrator(s), interim or provisional measures, and setting aside/enforcement of arbitral awards, etc. Due to the general supervisory power of the courts, particularly those of the place of arbitration, there is, in some jurisdictions,[17] an underlying rule that the arbitral proceeding has to comply with mandatory standards or provisions of the national law of the state, whose court will provide the necessary supervisory support when required. This is considered a limit to or the non-absolutism of the autonomy of parties in arbitration. These mandatory rules are said to be imperative provisions of law, which must be applied to the relationship between the parties irrespective of the law that governs that relationship. The mandatory rules are said to be matters of public policy. More so, they reflect a public policy so commanding that they must be applied even if the general body of law to which they belong is not relevant by application of the conflict of law rule.[18]

Proponents of protectionism have argued that the need to comply with the public policy of the place or seat of arbitration should serve as a restriction to the principle of party autonomy and by extension, the right to legal representation of a party's choice. These proponents have also suggested that since every state has the right to exercise full and permanent sovereignty over its boundaries, each state can or should govern any arbitration process within its territory.[19]

The preceding arguments are said to be further strengthened by Article V(2)(b) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards of 1958 (New York Convention). Proponents of protectionism have also argued that Art. V(2)(b) empowers a court to refuse to enforce an arbitral award on its own initiative, if the court finds that its recognition or enforcement would be contrary to the public policy of that country.[20]

Despite this persuasive argument, one is of the opinion that public policy is not static. In fact, the public policy of a country evolves as the country evolves and in most cases, it largely depends on the political, economic, social, and cultural aspirations of the country at a given period. Given that, public policy is subject to change, its elements should be determined based on the current prevailing aspirations of the country. In fact, Gary Born puts it succinctly, when he opined, that although the New York Convention does not expressly address the issue of legal representation, the better view is that the effect of Article II(1)[21] and II(3)[22] of the Convention, in combination with institutional rules providing for freedom to select legal representatives or parties implied agreement is to guarantee such freedom. He also rightfully pointed out that the party's freedom to be represented by lawyers or others, of their own choosing, can also be derived indirectly from their right to be heard, recognized in Article V(1)(b) of the Convention and from the fundamental character of the arbitral process in which parties are entitled to present their cases in an adjudicatory process.[23]

IV.  EVALUATION OF VARIOUS JURISDICTIONAL JUDICIAL STANDARDS AND POLICIES

A consideration of the decisions of the courts in various jurisdictions and the ascertainment of the policy, which they seek to advance, is very important for our discussion.

a) Protectionist Jurisdictions

In the United States[24]case of Birbrower, Montalbano, Candon & Frank P.C v. Superior Court of Santa Clara,[25] the California Supreme Court, while deciding on the right of a New York firm to maintain a counterclaim for unpaid legal fees, concluded that any involvement of attorneys of a New York firm in AAA arbitration proceedings (including mere preparation) that took place "in California" constituted an unauthorised practice of law and, therefore, the attorneys could not recover this portion of their fees when the client refused to pay. Also, in Turner (East Asia) Pte Ltd (Singapore) v. Builders federal (Hong Kong) and Josef Gartner & Co (FR Germany),[26]the High Court of Singapore ruled that representation of the respondents by a New York firm in a Singaporean arbitration would contravene certain sections of the Singaporean Legal Profession Act, 1988.[27]

In fact, in some other jurisdictions, the issue of a right to foreign legal representation is not solely restricted to court or arbitration proceedings. For instance, in 2009, the Bombay High Court in India reaffirmed that foreign law firms are not allowed to practise law in India.[28] The Court held that both litigation and corporate advisory work constitute the practice of law and that India's Advocates Act limited such work to Indian citizens and, by extension, Indian law firms. This decision, from all indication, clearly prohibits foreign attorneys and law firms from offering legal representation in court and arbitral proceedings with a further inclusion of corporate and advisory related legal services within the scope of prohibited areas.

Realising the potential negative consequence of its stance on foreign legal representation, India is gradually shifting grounds and is now turning to embrace the concept of a liberalized legal services sector. Evidently, on February 21, 2012, in a suit filed by local lawyers who accused a group of foreign law firms of illegally practising law in violation of India's Advocates Act, which governs the country's legal profession, the Madras High Court ruled that foreign practitioners are now permitted to enter India and advise their clients on isolated matters. It directed that foreign lawyers must limit their representation to international law matters and can only 'fly in and fly out' on a temporary basis.[29]

Taking a look at the above decisions, it appears that the Courts in these jurisdictions are predisposed towards preserving the market for the local attorneys, who, as it is often argued, may not be able to compete with the attorneys from the big foreign law firms, should the latter be given the free rein to operate in that jurisdiction. These decisions may also have been reached on the basis that the foreign attorney, who is involved in arbitration, renders one form of legal services or the other despite its private nature. More so, there may be concerns that the waiving of mandatory tests, licensing, and other requirements for foreign attorneys might be detrimental or even discriminatory to the local attorneys.

Some commentators have argued that the total prohibition of foreign attorneys from participating in a country's legal sector is justifiable on grounds of public policy and national interest.[30] The author is of the opinion that the furtherance of this total prohibition philosophy to include privately conducted proceedings, such as arbitration or even mediation and conciliation, could be detrimental to the general economic interest of an emerging economy, particularly one with an economic liberalization agenda. My position is premised on the fact that often times foreign investors usually want assurances that they will not be compelled to resolve commercial or investment disputes under national laws or before national courts.[31] It follows that at the slightest signal that a country does not encourage or promote the open practice of other legally recognized methods of dispute resolution, such an investor, in the absence of any other compelling financial reasons, would be reluctant to invest in that country.

b) Non-protectionist Jurisdictions

On the other side of the divide lie jurisdictions that have embraced a liberalized approach in their legal services sector. This is reflected either in every facet of their legal services sector or more particularly in the area of arbitration practice. For instance, the European Community (EC) has since the mid-1970s recognized and protected the more liberal rights for lawyers to engage in interstate practice.[32] This in itself has far-reaching implications than the involvement in arbitral proceedings or other ADR processes. A combination of legislation and case laws of the EC Court of Justice has steadily expanded the recognized level of interstate legal practice rights.[33] Multistate legal practice is now a reality within the European Union. Lawyers and Law firms from any EU State are able to represent clients on a continuous basis throughout the European Union, practise in almost all commercial law fields in any EU country, and form multinational law firms with offices in any EU commercial centre.[34] In short, lawyers are able to carry on modern international legal practice throughout most of Europe.

While considering the legality of an out-of-state counsel participating in an arbitration with its seat in New York, the United States District Court for the Southern District of New York, in the case of Williamson v. John D. Quinn Construction Corp,[35] held that "an arbitration tribunal is not a court of record, its fact-finding process is not equivalent to judicial fact-finding, and by the distinct nature of private arbitration proceedings, an out-of-state attorney from New Jersey was entitled to render arbitration services in New York, and this would not amount to the unauthorized practice of law". It is important to point out that the principle behind the Williamson opinion was reinforced nearly ten years later in a New York Ethnic Committee report, in which the Committee stated: "[A]s a matter of New York Law and professional ethics, parties to international or interstate arbitration proceedings conducted in New York may be represented in such arbitration proceedings by persons of their own choosing including attorneys not admitted to practice in New York."[36]

Looking at some emerging markets and developing economies, China for instance, through its arbitration law and CIETAC Arbitration Rules recognize the right of foreign attorneys to represent their clients in arbitration proceedings with seat in China. Usually, the arbitral tribunal decides whether to recognize the parties' representatives during the proceedings.[37] Under Article 29 of the Arbitration Rules, a CIETAC arbitration tribunal may examine the case in any way that it deems appropriate unless otherwise agreed by the parties. It is part of the 'contractual' duty of the tribunal that it acts impartially and fairly and afford reasonable opportunities to all parties for presentation and debates. If a foreign lawyer introduces an argument based on PRC law in his or her oral or written pleadings, the arbitrators in CIETAC proceedings would usually consider whether the foreign attorney was acting jointly with a Chinese practitioner and whether the arguments based on PRC (People's Republic of China) law were supported by opinions of Chinese legal practitioners.[38] A close observation of the Chinese regime on the right of legal representation, reveals some fine points on how to create an effective balance between the 'protectionist' interest of an emerging market economy and the competing liberal inclination to promote economic and legal sector openness that is triggered by globalization and the 'internationalization' of business transactions. Based on the principle of equal opportunities to the parties, the tribunal in each case involving a foreign attorney/law firm is expected to decide if the desired balance has been achieved.

Further, in Re Mohammed Azahari Matiasin,[39] the Malaysian Court of Appeal overturned a High Court decision and maintained that foreign attorneys who are not advocates within the meaning of the Advocates Ordinance, 1953, which governs Sabah in East Malaysia, are not prohibited from representing parties in arbitration proceedings conducted in Sabah. In fact, most recently, another developing economy appears to be blazing the trail. Kenya is proposing a new Legal Practitioners Bill, which if enacted, would open the field for lawyers from the international community. It will distinguish between those who are locally qualified to practice all the law, those qualified to practice because they come from the East Africa region, and the international law firms with a limited licence to practice in Kenya on certain matters.[40]

The policy behind these pro-liberalization decisions and stances may be the acceptance by the courts and the legal circle in these jurisdictions that the private, flexible and confidential nature of arbitration should be immune from the formalistic, rigid and highly regulated regime of court proceedings. Further, some jurisdictions have even opened their legal services sector. The decision in the Williamson case, clearly supports my argument that the total restrictions that is or may be imposed on foreign attorneys in relation to court proceedings, and even other parts of a country's legal system cannot and should not be extended to a private proceeding such as arbitration assuming the jurisdiction decides to take that path. This is because arbitration is neither a court of record nor a body statutorily conferred with the authority to exercise full judicial powers. It appears that these liberal jurisdictions might have given much weight and value to the policy that globalization does not only involve the liberalization of the economy, it might well also involve the liberalization of the legal services sector to some extent. This approach exhibits the acceptance of arbitration as the standard means of resolving international commercial disputes, in order to effectively solve the socio-economic cum legal challenges of today's world.

However, should the courts, legislature or policymakers be minded to continuously affirm or promote the interest of a totally closed or protectionist legal service sector; such a restrictive stance would have far-reaching consequences. First, it will deprive the country of the much-needed cohesion it requires in its economic liberalization drive. Second, it will deny or limit the autonomy of the parties to select legal representation of their choice in arbitral proceedings with their seat in that jurisdiction. Further, it has the potential of creating the impression that the jurisdiction is anti-arbitration, particularly in the realm of international or transnational arbitration where parties seek specialized skills and global spread for their legal representation in complex matters and a country with a pro-arbitration outlook. All of these will negatively affect the growth of arbitration as a flexible and less formal means of dispute resolution in that protectionist jurisdiction.

It is the author's suggestion that in terms of a cohesive approach to economic and legal sector reforms, developing and emerging economies should take a cue on the right to legal representation of choice from other leading jurisdictions and from an emerging market economy counterpart, the People's Republic of China. Despite being the topmost emerging economy, China has since 1978, through a process of economic and legal sector reforms, gradually moved from a totally closed economy to an open one. These reforms in addition to its huge population have facilitated and contributed its emergence as the second largest economy in the world[41] and the largest trading economy in the world.[42] For a country with a long history of jealously guarding its sovereignty against foreign countries and international dispute resolution, China now has a pro-arbitration regime and specifically, a friendly regime for foreign attorneys involved in arbitration. Further, China is now a signatory to the Convention on the Recognition and Enforcement of Foreign Arbitral Awards (New York Convention) and the Convention for the Settlement of Investment Disputes between States and Nationals of the Other States (Washington Convention).[43] In addition, China has signed nearly 53 multilateral conventions with binding international dispute mechanisms and more recently, it has earned the reputation of being one of the world's most enthusiastic signatories of bilateral investment treaties (BITs) that grant binding mandatory jurisdiction to International Centre for Settlement of Investment Disputes (ICSID).[44]

Proceeding on the same path of legal liberalization, the current government of India has recently initiated discussions with the Bar Council of India for opening up the Indian legal sector to foreign law firms.[45] It was reported that the government is of the view that the legal sector should be opened up to firms in a phrased manner, which would also help the Indian legal fraternity and the Indian economy. Specifically, the government reasons that these law firms would be hiring local legal brains and their presence in India will help government department in hiring services of international legal experts in arbitration cases.[46] Prior to this recent move, Indian Supreme Court Justices SS Nijjar and PC Ghose and Retired judge AK Ganguly had at Seminar by the Indian Council of Arbitration argued that foreign lawyers should be allowed to work on arbitrations in India to make domestic arbitration more attractive and to unburden the court.[47] In the words of Justice Nijjar, "...we need to open up. Let's come up with a comprehensive act (and become) an arbitration-friendly nation and judiciary". He added that the process must be liberalized and foreign lawyers should be allowed to participate. On his part, retired Judge Ganguly added "[I]t is natural that foreign companies will depend on foreign lawyers. If we want the arbitration process to become popular in India, we need to provide a level playing field to foreign lawyers. This will improve the legal system in India".[48]

V. CONCLUSION

Presently, there is a conscious effort on the part of some emerging economies to liberalize their economy through a number of reforms in their economic and financial sectors reforms. However, prospective foreign investors want to be assured that the legal services sector in these developing economies is not an entirely closed one where they cannot have access to their foreign attorneys or law firms even on matters that have international law implication.

Liberalization and a pro-arbitration policy in the legal services sector would serve as a lubricant for on-going reforms and would influence positively on the economic development of these countries. Developing economies like Brazil, Nigeria, Ghana, South Africa, Malaysia, and India (just to mention a few) with democratic institutions, the positive potentials of an emerging economy, and a sizable population could evolve to become leading business and even arbitration hubs.

The reality today is that the liberalization of the economy and in the long run the legal service sectors of emerging economies are inevitable, the question is whether to resist it or determine how best to gradually embrace it, doing so on one's own terms and conditions. Given that we are in the era of globalization and economic interdependence, which has resulted in the concomitant increase in multinational corporations and international business transactions, it is now time for a rethink on the issue of the liberalization of the legal services sector in developing or emerging economies. Such a reform has the potential of improving the quality of legal services rendered in these countries, particularly in relation to complex transactions. It would also be a useful bargaining chip in convincing foreign investors to do business in these emerging economies. Further, it will incentivize the emergence of highly skilled, internationally minded local attorneys who will seek training aboard in order to be able to interact with other cultures as well as provide top notch legal services to meet the demands of a complex, fast changing and globalized world.

AUTHOR - MR. IKEMEFUNA STEPHEN NWOYE

                    Principal Chief Counsel - NWOYE (Barrister & Solicitor)

*DISCLAIMER - This article is not a legal opinion. The views expressed in this article are the personal opinion of the author and they do not in any way reflect the view of any person, entity or organization that the author was or is associated with.

[1] See UNCITRAL Model Law (1985 as amended in 2006) art 19(1); see also Alan Redfern and others (eds), Law and Practice of International Commercial Arbitration, 4th ed, (Oxford University Press 2004) 315.

[2] Gary B. Born, International Commercial Arbitration, 2nd Ed (Kluwer Law International 2014) 2832.

[3] The author was involved in this arbitration, while working as an associate in the dispute resolution department of a law firm in Nigeria.

[4] See Lulu Sianga, 'Race for the African Legal Service Market' Law Digest (Spring Edition 2014) <https://www.nglawdigest.com/constitutional-law/563-race-for-the-african-legal-service-market> accessed 21 May 2014.

[5] Sianga (n 3).

[6]Ar. Gor. Seyda Dursun, 'A Critical Examination of the Role of Party Autonomy in International Commercial Arbitration and an Assessment of its Role and Extent'162 <https://www.yalova.edu.tr/Files/UserFiles/83/8_Dursun.pdf> accessed 25 April 2014.

[7]Ibid at 163. It should however be pointed out that there is still an on-going debate as to what extent the principle of party autonomy can be limited by mandatory rules of law of the place of arbitration. This has prompted calls in some quarters that arbitration should be 'delocalized' i.e. having no control or subjection to the seat of the arbitration. See Jan Paulsson, 'Delocalization of International Commercial Arbitration: When and Why It Matters'(1983) 32 ICLQ 53-61.

[8] Born (n 2) 2832.

[9] It is important to point out that, in some cases where the national laws do not expressly provide for right to legal representation of a parties choice, the Court has given a liberal interpretation to the relevant statutes, which deals with the right to legal representation of one's choice. See the Malaysian Court of Appeal decision in Re Mohammed Azahari Matiasin, (n 38) below.

[10] Born (n 2) 2833.

[11] ICC Rules of Procedure for Arbitration Proceedings ('ICC Arbitration Rules') (1 January 2012), art 26.

[12] LCIA Rules of Procedure for Arbitration Proceedings ('LCIA Arbitration Rules') (1 October 2014) art 18.1.

[13] It appears that by enacting this provision into its new Rules, the Lagos Court of Arbitration is makes a radical departure from the position provided for in the Nigerian Arbitration and Conciliation Act of 1988 (ACA) Arbitration Rules art 4. It is suggested, that going forward parties who seek to arbitrate in Nigeria can evade the bar to foreign legal representation by choosing to conduct their arbitration under this Rules.

[14] It should be noted that the UNCITRAL Arbitration Rules presently serves as the most accepted arbitral rules in ad hoc arbitration and in most of its provisions; it mirrors the UNCTRAL Model Law. However, on the issue of legal representation in contrast to Article 4 of the Arbitration Rules, First Schedule of the ACA, it provides inter alia that, the parties may be represented or assisted by a legal practitioner of their choice.

[15] For other national legislations that guarantee the right to legal representation of a party's choice - see the Netherlands Code of Civil Procedure art. 1038(1)(2); Australian International Arbitration Act 2011,s 29(2); New Zealand Arbitration Act 2006 s 24(4); Brazilian Arbitration Law 1996, art 21(3).

[16] s 36.

[17] Countries like the United Kingdom, Italy, Nigeria and the United States just to mention a few, have continuously maintained some mandatory standards in their arbitral law. Contrast with the practice in France, which is the most liberal arbitration jurisdiction and remains largely delocalized in its approach.

[18] Daniel Hochstrasser, 'Public and Mandatory Law in International Arbitration'in Emmanuel Gaillard and others (eds), Towards a Uniform International Arbitration Law? (New York, NY: Juris, 2005) 17. For instance in America, prior to recent developments, securities and antitrust disputes despite the express agreement of the parties could not be subjected to arbitration. See Wilko v. Swam 346 US 427 (1953). Procedurally, it may include requirements regarding legal representation, the language of the proceedings, the equality of treatment of the parties, the "adversarial" character of proceedings, discovery etc.

[19] Dursun (n 5) at 181.

[20] The national court of the seat of arbitration can rely on this provision of the New York Convention to refuse the enforcement of an arbitral award that emanates from proceedings where foreign counsels have represented a party contrary to the provisions of the lex arbitri that prohibits such a practice.

[21] provides that, "[e]ach contracting State shall recognize an agreement in writing under which the parties undertake to submit to arbitration all or any differences which have arisen or which may arise between them in respect of a defined legal relationship, whether contractual or not, concerning a subject matter capable of settlement by arbitration."

[22] provides that, "[t]he court of a contracting State, when seized of an action in a matter in respect of which the parties have made an agreement within the meaning of this article, shall, at the request of one of the parties, refer the parties to arbitration, unless it finds that the said agreement is null and void, inoperative or incapable of being performed."

[23] Born, (n 2) 2833.

[24] It should be noted that in the United States, given the diversity in the eligibility to practice in the various component states, the differing policy on the right to out-of-state legal representation is more evident. Decisions of the courts in States like Arizona, California, Connecticut, Florida and Ohio maintain that representation by an Out-of-State Attorney amounts to an unauthorised practice of law; while those of States like District of Columbia, Illinois, New Jersey, New York, South Dakota and Virginia maintains that representation by an Out-of-State Attorney does not constitute or amount to an unauthorised practice of law.

[25] [1998] 1 Cal P2.d however it is important to point out that shortly after this decision, the California State Legislature's adopted a law (California Rules of Court, Rule 983.4) in July 1999 specifically authorizing the appearance of out-of-state attorneys in private arbitration.

[26] [1988] 5(3) J Int'l Arb 139; See also the Florida Supreme Court decision in Florida Bar v. Rapoport 845 So. 2d 874 (Fla. 2003).

[27] Since 2000, the Singaporean Government has been taking steps to liberalize the countries legal service sector. Dispute resolution, particularly arbitration has been identified as an area that can be further developed in order to enhance Singapore legal sector and to establish Singapore as a legal hub for the region. To this end, the Singapore Legal Profession Act was amended in 2000 to allow for a new regulatory regime for foreign lawyers and foreign law practices. Further reforms were carried out in 2008, which lead to the establishment of Qualifying Foreign Law Practices (QFLP). See Jeffrey Chan Wah Teck, S.C. 'Liberalisation of the Singapore Legal Sector' https://www.aseanlawassociation.org/10GAdocs/Singapore3.pdf accessed 23 June 2014.

[28] Attorneys Collective v. Indian Bar Council, Writ Petition No. 1526/1995 (Bombay H.C 2009).

[29] See Ben Lewis "Foreign Lawyers 'Can Fly In, Fly Out' of India, Court Rules" The Legal Intelligence (23 February 2012) <https://www.thelegalintelligencer.com/id=1202543216986/Foreign-Lawyers-%27Can-Fly-In,-Fly-Out%27-of-India,-Court-Rules>.accessed 16 March 2012.

[30] Sianga (n3), where it was reported, Lalit Bhasin, President, India Society of Law Friends had queried the idea of foreign lawyers practicing in India in the following words "If we allow the entry of foreign lawyers in the country, then we need to allow the entry of the whole administration of the judiciary. Are we really prepared for that?" In addition, the then Nigerian Bar Association (NBA) President, Okey Wali SAN had also expressed his concerns. He said, "If I cannot walk into London to practice law as a Nigerian-trained lawyer and called to Nigerian Bar, why do you want to walk in here and practice? It is as simple as that. The day I can go into a New York and practice law as a Nigerian practitioner, then, I would have no reason to have reservations for you to come and practice in Nigeria". See also Nigeria: NBA Presidency - Adekoya, Alegeh Step Up Campaigns Daily Independent (28 May 2014) <https://allafrica.com/stories/201405290843.html> accessed on 3 June 2014 - where it was also reported that the current NBA President Augustine Alegeh during his campaign for the NBA presidency expressed a dissatisfaction that work reserved for Nigerian lawyers are being done by third parties and NBA does nothing about it. According to him,"[w]e have foreign law firms today who take 80 percent of our arbitration work. We have the Legal Practitioners Act that provides that all legal services should be done by lawyers. How then do we sit down as NBA and allow funds from public corporations to be paid to foreign lawyers in flagrant breach of our laws?"

[31]Margaret Moses, 'Principles and Practice of International Commercial Arbitration' (Cambridge University Press 2012)1.

[32]Roger Goebel, 'The Liberalization of Interstate Legal Practice in the European Union: Lessons for the United States?' in Mary Daly and Roger Gobel (eds) Rights, Liability, and Ethics in International Legal Practice (1994) 2.

[33] See the Council Directive on Lawyers' Freedom to Provide Services (Lawyers' Services Directive) adopted on March 22, 1977; see also EU Court of Justice decision in the case of Gebhard v. Milan Bar Council 1995 E.C.R 1-4165,[1996] 1 C.M.L.R. 603 (1990) which involved disciplinary proceedings brought by the Milan Bar Council against Gebhard a qualified German Rechtsanwalt with a part-time practice and office in Stuttgart. In 1978, he took up residence in Milan and opened office in Milan with a practice, which chiefly consisted of representing German and Austrian Clients in Italy with the aid of Italian avvocatos.The Court did conclude that Gebhard's permanent residence in Italy and his legal practice on a stable and continuous basis in Milan took him out of the category of a temporary interstate trans-border service provider. However, the Court dictated that his rights were to be appraised under the EC Treaty's establishment provisions that, incidentally, the Court interpreted in a very liberal manner by applying the Van Binsbergen doctrine which is to the effect that freedom to provide services under the EC Treaty not only prevents discrimination based on nationality, but also bars the application of state rules unless they are objectively "justified by the general interest,".

[34] Goebel (n 31) 2.

[35] [1982] 537 F.Supp. at 613 (S.D.N.Y.)

[36] See the Committee Report, Recommendation and Report on the Right of Non-New York Attorneys to Represent Parties in International and Interstate Arbitration Conducted in New York, 49 REC. ASS'N B CITY N.Y., 1 (1991)

[37] Daniel Arthur Lapres, 'The Role of Foreign Lawyers in CIETAC Arbitration Proceedings'.<https://www.chinabusinessreview.com/the-role-of-foreign-lawyers-in-cietac-arbitration-proceedings/> last accessed July 30 2014.

[38] Ibid.

[39] [2011] 2 CLJ 630; see also the Malaysian case of Government of Malaysia v. Zubin- Muhibbah Joint Venture, consisting of Ed Zublin AG and Muhibbah Engineering Sdn Bhd XVI [1991] YBCA 166.

[40] Wahome Thuku, 'Foreign Lawyers to work in Kenya' The Standard Digital (3 February 2014) <https://www.standardmedia.co.ke/?articleID=2000103789&story_title=Kenya> last accessed on 3 May 2014.

[41] See Country Overview - China < https://www.worldbank.org/en/country/china/overview > last accessed July 30, 2014.

[42] See "China overtake US in World Trade" London: Guardian of February 11, 2013

[43] Julian G. Ku, The Enforcement of ICSID Award in the People's Republic of China. 38 6 (1) Contemp. Asia Arb. J. 31.

[44] Ibid.

[45] See 'Government discussing opening up of legal sector to foreign firms' The Economic Times (27 February 2015) https://economictimes.indiatimes.com/news/politics-and-nation/government-discussing-opening-up-of-legal-sector-to-foreign-firms/articleshow/46395472.cms> accessed 27 February 2015

[46]Ibid.

[47] See Kian Ganz, 'Allow foreign lawyers to arbitrate in India: SC judges' Legally India <https://www.legallyindia.com/tag/foreign-law-firms> accessed on 28 February 2015.

[48]Ibid