The proposals are still unclear and it is not known what is meant by allowing international law firms to practice locally. It appears that local litigation, i.e. the right of foreign lawyers to appear before the Courts of Mauritius would be excluded. As far as legal consultancy i.e. the provision of advice and opinions is concerned, we do not know the intention of Government.

The issues hereunder are summarised and simplified although clearly in this short presentation several concerns have not been tackled. The matter should however be straightforward: all stakeholders should understand what we are talking about and how to proceed for the future. I do apologise to your readers for the inevitable technical nature of my arguments.

■ The issue:

The issue from the business point of view is that our ?offshore? sector now known as the Global Business sector is not moving ahead at sufficient speed because Mauritian lawyers sometimes do not keep pace and are not sufficiently efficient and knowledgeable to deal with complex and intricate international transactions.

The same complaint might be heard from Government and the private sector which more than ever have to deal with a globalised economy and believe that Mauritian lawyers are too often ?à la traîne?. The same issue will then be extrapolated that our laws are years behind and that the State Law Office, which drafts those laws, and the judiciary, which interprets them, have lost track in relation to modern commercial, corporate or financial issues.

So goes this misconceived reasoning that in a world of ?international? transactions, we need ?international law firms? to fix all these issues, in the same stride mixing up all these different components of the general problems relating to our legal system and thinking that magical international law firms will resolve everything.

■ The legal profession today:

Practising lawyers are divided into three branches, the barristers, attorneys and notaries. All three have their specific functions which sometimes overlap regarding their rules and responsibilities when law is in action. We inherited of this system, chose to live with it and so be it ? the concept of fusing these professions is not the aim of the present article.

Barristers earn their bread and butter from litigation and advice; attorneys from signing up to litigation and advice and notaries mostly from conveyancing, transfers of title and successions.

What members of the legal profession cannot do however in Mauritius is to join forces into partnerships i.e. law firms and this is widely unknown to the public. This is clear from a reading of the relevant laws regulating partnerships, the Code de Commerce coupled with the prevalent Code of Ethics and the Law Practitioners Act.

■ Why partnerships?

The very fact of pooling up of human and physical resources is nothing new and several professions or business entities exist this way and have done so for centuries. Pooling means the combination of expertise and knowledge and the sharing of same, the possibility of being a legal entity allowing the professional to a better office organisation with sophisticated IT systems, medical schemes, insurance, security of tenure, pension and retirement plans etc ?

Most importantly, as we are living in a knowledge era, it facilitates access to know-how and expertise.

The goodwill of the sole practitioner generally dies with him unless his affairs have been very well organised. In most advanced countries of the world, partnerships amongst lawyers are generally accepted and this is how they progress in building up goodwill and satisfying clients with efficiency. International clients or law firms are very demanding and strict deadlines often have to be respected. Opinions are sometimes requested to be made ready in 24 hours. Long gone are the days when the lawyer could work on his own or sleep on a file for weeks !

In Mauritius, law firms are not authorised. Recently, the McKay Commission refused to allow practising barristers to set up law firms, and this mainly for ethical reasons, which I personally contest.

The proposal is consequently that those willing to adopt the partnership idea should be allowed so to do. Those who prefer the status quo in the role of sole practitioner may also do so. Nobody should be forced to form partnerships.

In fact general partnerships themselves are somewhat outdated and regrouping of lawyers is now, in several jurisdictions, through a limited liability partnership (the ?LLP?) or through a corporate entity such as the limited liability corporation (the ?LLC?). Some of those law firms, just like multinational enterprises, even have holding companies in places like Switzerland, Luxemburg or the US.

■ The large law firms and local Bars

At least thirty law firms, with more than one thousand lawyers worldwide, today consider themselves as globalised law firms with offices in numerous countries. Others, with several hundreds of lawyers may be regionally based say in the UK or state based much as in certain US States. These law firms generally do not have offices in small jurisdictions like ours and in the larger countries where they are established, they have to obey very strict rules to ensure compliance with the local Bar regulations.

■ The reason for local laws and their application

Local Bars have always been very restrictive as to who may practise law because of the specific legal system of a particular country. A nation creates a State and a State chooses its Constitution. Such Constitution will then regulate the enactment of laws in that State and also provide for their interpretation through a system of courts and the intervention of lawyers. Each State will have its own laws.

Ours is a mixed system of laws inherited from the French and British colonisation. However, as rightly pointed out by certain Judges of our Supreme Court, for years we have had Mauritian law with a Legislative Council and since independence a Legislative Assembly enacting Mauritian laws adapted to the country. Ministers and certain institutional bodies may also enact regulations which are styled as delegated legislation. All of this is purely Mauritian with its own specificities. Apart from common law inherited from the British, our laws and regulations are a codification of the rules governing our society.

Laws differ from country to country, especially in the field of private law. The science of law is not like that of medicine or arithmetics which are universal sciences.

■ Similar jurisdictions

The fact now remains that in several jurisdictions similar to Mauritius, in the offshore sector, local law firms have emerged and also conquered new territories in this field of activity. It is NOT true to say that the large, globalised international law firms are present in places like Guernsey, Jersey, Bermuda, the Cayman Islands, the British Virgin Islands, the Isle of Man, Cyprus or Malta i.e. similar, small jurisdictions. Local law firms in those countries have been allowed to develop and become major law firms and this simply because they are entitled to exist as firms. We are in the land of Utopia if we think that the large global law firms will come and open offices in Port-Louis. Those firms prefer to use local law firms for numerous reasons, the main one being the costs of setting up offices and the absence of local expertise on their side.

An interesting example is Switzerland where there are simply no foreign law firms and which is one of the most successful financial centres of the world. The Swiss legal market is simply a closed shop business where the Swiss authorities defend very actively the right to practice law. Another country which has been cited for its openness to international business is Ireland. This nation, heavily agricultural a few years back, is today a model as a financial centre. All the ten top firms are simply Irish even though the United Kingdom is just next door. Yes, they employ foreign lawyers but the firms are Irish.

I need not even mention large countries such as India, Brazil, Japan, Canada, South Africa or Australia where the practice of law is almost exclusively reserved to its nationals.

■ The Singapore model

The Singapore model has often been mentioned as the one we should follow. There are basically in Singapore three tiers of foreign law firms. Firstly, the foreign law firm proper which gives advice on foreign law, secondly the joint venture law firm which is a joint venture between a foreign law firm and a local firm and thirdly the representative office. The latter is simply very often a marketing office not supposed to give any legal advice whatsoever. The Singapore model which seems to hold the flavour of the day within certain sectors here is however regularly criticised. It is highly regulated with the office of the Attorney General giving licences to practise law and the difference between local and foreign law is often blurred. Singapore is a major economy, a highly successful international financial centre where larger foreign law firms were attracted. It is also a country with a wide experience of licensing and regulations. This is not the case for Mauritius and a further question arises as to who would regulate the foreign lawyer.

■ The predators

This is how I name some potential ?international law firms? which would turn up here to benefit from the system and not to contribute to the economy. A number of them might be linked to a management company operating in the Global Business Sector. The offshore management companies are now styled as ?management companies? and they incorporate and administer Global Business Companies and trusts. Numerous management companies have been granted a licence by the Financial Services Commission and several of them are simply dormant. Many of them might well want to create their own ?international law firm? and keep the legal work to themselves without having to enrol the Mauritian lawyer.

Other ?foreign lawyers? may similarly set up shop here to exploit the system. The legal work would probably be done elsewhere and not adding much value to our economy. This brings us to how the system might turn up to be. The foreign law firms may well ?employ? a couple of local lawyers, do a lot of the work outside Mauritius and get a final local touch to the job through a Mauritian qualified lawyer for a pittance. The Mauritian lawyer would end up just signing off on the work.

The reason for mentioning the presence of such predators is that they often emanate from other mature financial centres and have developed expertise on reaping the cream and the cherry on the top of the cake.

■ Value added to Mauritius

This brings us to the crux of the matter.

The aim of this discussion is to see how to add value to our country. What is the value added which may be brought to Mauritius by allowing "international law firms" to practise here? If we do decide to open our doors, it is to bring to our country value in terms of the economy, of services and of progress in the transfer of technology and know how.

It is evident that a better practice of our laws also creates ancillary services such as arbitration or mediation. The mature offshore centre gains a lot from the good practice of law bringing in more value added than the mere incorporation and administration of companies and trusts.

Today?s financial world moves at a very fast pace. What is of actuality today may not be the same in a year. The world of finance is everyday inventing new products ? whether they be in the field of derivatives, securitisation or just to mention the ever evolving hedge funds.

Mauritian lawyers cannot abscond from their responsibilities and have to face what we are dealing with. Otherwise progress is stopped and the Mauritian economy will suffer. If foreign expertise is needed then allow Mauritian law firms to be constituted and recruit foreign lawyers. If the State law office needs foreign expertise, it should recruit foreigners albeit, on an adhoc basis. If the judiciary will eventually need expertise and specialisation, this should be done.

■ The regional and African market

One final point to take into consideration is the Regional and African market. I am proud to see the success of Mauritian accountancy and consulting firms in establishing themselves in that market. Projects abound, sometimes from institutions like the World Bank, sometimes initiated by Governments or Governmental institutions and sometimes by the private sector. With our knowledge of English and French law, we could excel in that market ? even distancing our biggest competitors here, namely the South Africans. Whether it may be in the field of privatisations, of the development of infrastructure or project finance, there is a huge market around us. This is also what Mauritian law firms could do.

■ BUT, where is the answer?

I believe as a conclusion that we are not more stupid than lawyers of other jurisdictions. Mauritius has a rather unique system of hybrid laws, fortunately or unfortunately. Mauritian lawyers should be allowed to rise to the challenge of adapting our laws and practice of such laws, but on an equal playing field. It sounds outrageous to me to hear that the Mauritian lawyer is way back, lacks competence and yet is not given the chance of developing the tools of his profession. Let Mauritians have law firms or law companies and let us revisit the situation in a few years. If it is inevitable that foreign law firms will one day be established here, then Mauritian law firms should be allowed to exist and at least be granted a moratorium to be able to flourish. The ox cannot be behind the cart and this is what is being pushed upon us.

Allow the ox to head the cart and everybody will reach destination.

Marc HEIN (Juristconsult Chambers)