SO BE IT, foreign lawyers will soon be able to practise law in Mauritius with the enactment of the Law Practitioners (Amendment) Bill 2008. This bill is the result of a number of reports, the last one being from the Law Reform Commission. What I write here may sound alarmist but it is meant to be constructive and it is good to hear an alarm bell when danger may be forth-coming. Buccaneers left Mauritius in the early 19th century; let us please do the needful for them not to come back. There will hopefully be good, very good people wanting to enjoy the status of ?foreign lawyer? in Mauritius but also some bad, very bad black sheep. We need strong parameters.

I will not dwell on a number of considerations, which I have pointed out over the last 15 years to support the practice of law by Mauritian lawyers through law firms. What is sad and frustrating however is that Mauritian legal practitioners were not authorised by law and by relevant Code of ethics to form law firms and practice law in partnerships. Now that policy-makers want to push through the reforms to allow foreign law firms to practise in Mauritius, it is suddenly acknowledged that Mauritian legal practitioners should also be allowed to form partnerships. Foreigners therefore kick start with a positive handicap on our own turf. A number of practitioners had suggested that the status of law firms should be opened to Mauritians first and, after a moratorium, be allowed to foreigners.

I have often preached the example of jurisdictions similar to ours, the best one being Bermuda, where local law firms emerged, became successful and employed foreign lawyers for expertise needed and indeed expanded elsewhere. We are proposed the other way round here, namely, that foreign law firms should establish themselves in Mauritius and employ Mauritians for the transfer of knowledge and expertise. I have stated before that ?foreign law firms?, which would come here, would be present to reap the cream of the milk of our financial services sector. I may be wrong but know of no proper foreign law firm wishing to come here for philanthropic reasons. I do not also believe that the top class law firms of New York or London will settle here as they do not do so in offshore centres.

We pay taxes to Government, Government supports the University, the University trains lawyers, the lawyers are employed by foreign law firms, foreign law firms make a hefty value added, the value added in dollars, euros and pounds is then transferred overseas thanks to Mauritian know-how and sweat. I suppose this is part of some logic but so be it.

Let us, however, be constructive and, if the Bill will go through, let?s try to make it better. One very good element to emerge is that local law practitioners will be able to form partnerships, companies or ?sociétés? to practise law. Such law firms bring to its members the benefit of sharing of experience, disbursements and fees, of staff and equipment, of pension, medical or insurance schemes and finally of security of tenure. In short, better extrinsic and intrinsic job satisfaction for those who wish to regroup in law firms. Sole practitioners may obviously pursue their careers on their own if they so wish. So far so good.

We may now tackle the foreign lawyers and law firms. There are many things to be said but, for the sake of focus, I shall concentrate on only one issue, which is to me the paramount one. This is the licence to be granted to the foreign law firm to practise law in Mauritius and such licence is granted solely by the Honourable attorney general.

When granted its licence, the foreign law firm will be registered and there is no time limit to its licence to provide legal services in Mauritius.

The first issue is that the licence should be granted by a committee and not by a person.The present attorney general seems to adopt a cautious approach and this is good, but who knows tomorrow another one will not be distributing licences like small cakes. I very strongly urge prudence here and suggest that all applications be processed by a committee constituted evidently of persons competent to deal with same. The processing of such applications is a tedious exercise, which should require the applicant to provide each and every detail of his reason to set up a law firm and its business plan.

The second issue is that a licence cannot and should not be indeterminate in time. It should be granted for one year and be renewed annually. It is essential that foreign law firms report to the attorney general and that their activities be monitored so as to see whether their licence should be renewed or not. As now proposed by the bill, the licence is not limited in time and the attorney general may radiate the law firm only if it is in the public interest to do so, which is difficult to prove.

An evident parallel may be the management companies (previously known as offshore management companies) in the offshore sector. They incorporate and administer global business companies and there are 86 of them registered presently. The application for a management company to the Financial Services Commission (FSC) is a very complex process where the applicant has to provide its business plan, list of directors and shareholders, policy guidelines, insurance cover, situation of offices etc ? and even fees to be practised. The application is not granted just for the mere asking. The management companies have afterwards to furnish detailed reports to the FSC, which closely monitors their activities and may even make physical visits at their offices to check if files are in order.

At the moment, the office of the attorney general is not at all equipped for the screening of ?foreign law firms? applications or any monitoring of same. This has to be provided for. In fact, the provision of legal services is complimentary to the incorporation and administration services offered by management companies and such service providers which can offer the whole package are better positioned. We will therefore soon see several management companies wanting to form their own ?foreign law firms? registered in Mauritius to keep all the business captive. It will not be too difficult to find a couple of young lawyers looking for a few years of enjoyment of our sea, sun and sand to come and spend some good time in Mauritius. The irony would be that as things stand, the management company is under strict control from the FSC but its ?sister? law firm would be under no control whatsoever.

We then have the issue that those law firms may employ (possibly for peanuts) say one Mauritian lawyer to provide legal services, not only in foreign or international law (as provided by the proposed Act) but also in? Mauritian law. La boucle est alors bouclée and the client just gulps down a package of services offered: foreign, international and Mauritian legal advice plus incorporation and administration services. The role of the stooge Mauritian lawyer would be simply to sign off on legal advice.

We may look at another possible scenario: there is a law firm, which is presently based outside Mauritius, it does not matter whether it is in New York, London, Johannesburg or Hong Kong; this law firm has a client, which wants to use a Mauritian company to invest say in India. It happens to be the case that this law firm has incorporated a ?foreign law firm? in Mauritius and will explain to its client that (i) it has an office in Mauritius, (ii) there is no need to retain Mauritian counsel and (iii) will offer the client a package deal to set up a Mauritian company (via a management company) and invest in India. En passant, fees are not paid in Mauritius. In fact, the ?foreign law firm? is registered here but who is checking if it has two lawyers in an office and that it is not a virtual office rendering services on the Internet.

When I look at these scenarios from left, right and centre I wonder where is the value added to the Mauritian legal profession or better to the Mauritian economy. Transfer of funds, know-how and technology? From whom to whom?

Then there are the issues of ethics, we members of the Bar swear or affirm allegiance to the president of the Republic to uphold the values of our nation through the rule of law. Like the doctor in medicine with the oath to Hippocrates. The foreign lawyer?s allegiance? To whom? Is he concerned with our country or just his pocket?

<I>?It took a lot of hard work and patience to build up a quality offshore sector, we cannot allow it to be tarnished by some black sheep through lack of control. Let a scandal affect Mauritius and it would take years to reconstruct our reputation.?</I>

It is clear that numerous matters will have to be dealt with by way of Regulations to be made by the attorney general in the future but the law must contain a minimum framework and Regulations cannot afterwards go against the objects of the law. So it is not an answer to say that concerns raised in the present paper will be dealt with by future Regulations and, in any event, what I write here may be of help, to those drafting such Regulations. May I therefore repeat that we need more garde-fous.

May I please ask our parliamentarians to rise above partisan politics so as to produce the best piece of legislation for the benefit and honour of our legal profession and of the reputation of Mauritius and its services centre. In fact, the leader of the opposition says that this piece of legislation was initiated by the previous Government. Policymakers seem to agree but differ on matters of openness and on which way to follow.

<I>?We members of the Bar swear or affirm allegiance to the president of the Republic to uphold the values of our nation through the rule of law. Like the doctor in medicine with the oath to Hippocrates. The foreign lawyer?s allegiance? To whom? Is he concerned with our country or just his pocket??</I>

It took a lot of hard work and patience to build up a quality offshore sector, we cannot allow it to be tarnished by some black sheep through lack of control. Let a scandal affect Mauritius and it would take years to reconstruct our reputation. Worse, countries like India would turn round, look at us with inquisition and we may say good-bye to our Double Taxation Agreements. Certain stakeholders in India are precisely waiting for such situations. I dare not envisage the dramatic economic consequences.

The buccaneer gets his name from the French word boucan, which is smoked meat those adventurers ate when at sea. Let us not allow such buccaneers to transform our offshore sector into shredded meat.