I have read the controversy trailing the signing of the Enhanced Trade Investment Partnership (ETIP) Agreement. The NBA has also issued a statement on it. My contribution is merely to draw attention to deeper lying issues. We must remember that within the last few years a Nigerian law firm has opened up offices in London and many other Nigerian law firms are setting up in other African countries. We must therefore take a balanced and informed approach to the issue.
I am happy with the strong response from NBA. The lack of consultation with the NBA is condemnable. My understanding is that such an agreement should be preceded by a detailed industry study to determine the impact of the proposal on the target industry. Armed with the results of such a study, the Agreement can be framed to best capture the mutual best interest of all stakeholders. Nigeria refused to sign the AfCFTA on the eve of the signing ceremony because the relevant industry players raised objection about a lack of proper consultation.
I am aware that a Nigerian lawyer can in theory practice “international or non-UK law” in the UK. Thus, guaranteeing some sort of reciprocity, but as the NBA rightly pointed out, there is no basis for reciprocity when the disproportionate capacity of both markets are considered, we would need something other than reciprocity to make this a fair and mutually beneficial deal.
But going deeper, we need to understand that this ETIP was simply the UK Govt trying to put a formal structure to what is already happening. Beyond stopping ETIP we need to focus on taking effective control of the situation, the reality is that foreign law firms operate very actively within the Nigerian legal market.
We must also acknowledge that it is not entirely wrong for foreign law firms to play in the Nigerian market in a globalized world. They are lawfully entitled to do so under certain circumstances. Eg if a Nigerian entity signs an agreement with UK as governing law, then a UK law firm is entitled to that brief if an International Arbitration ensues.
But there are other border line cases such as transactions that involve a mix of Nigerian and foreign law. Foreign lawyers also take briefs in these situations. However, we can not tell for certain if this is lawful or not because our law does not clearly define and ring fence what legal services are within the monopoly of Nigerian lawyers. Sections 2, 8, and 22 of the Legal Practitioners Act provide vague indications but lack specificity.
We need clear definition of what constitutes legal services in Nigeria so we can limit or rather regulate the activities of foreign law firms in a way that is mutually beneficial. We must realize that the Nigerian Bar cannot exist as a closed island in a sea of globalization. With opportunities such as the AfCFTA and the expansion of Nigerian law firms to other jurisdictions, we must be benevolent enough to realize that we cannot close-off our market. In fact, that is not in our best interest.
My suggestion is that before we pursue such a proposal, we need to establish a legal regime that defines the following:
1) the services exclusively reserved only for Nigerian Lawyers (eg non-commercial litigation, land transactions, formation of Nigerian companies etc).
2) services that are open to both local and foreign lawyers (Eg cross-border transactions, commercial litigation with foreign element etc). The condition should be that a foreign law firm engaging in these services must engage a local firm at every stage of the transaction.
3) services that are exclusive to foreign lawyers (eg foreign seated Arbitration, foreign law advice for Nigerian domiciled entities etc). This should be a very limited list. They should be a further obligation on the foreign law firm to report such briefs to a regulatory entity and engage a Nigerian law firm as an understudy.
It is my view that we should seek a collaborative and mutually beneficial approach and not merely a protectionist stance. At the moment, our protectionist stance is not working as foreign law firms are actively participating in the market without any clear modalities. A collaborative approach will enhance the ability of Nigerian lawyers to benefit from the inevitable impact of globalization of legal services that we cannot escape by putting up a hedge.
Marx Ikongbeh