When, by the initiative of my dear friend, Prof. José Manoel de Aguiar Barros, I received the honorable invitation to return to my dear homeland, to exhibit this presentation at the House of Lawyers, it was suggested that I should speak of advocacy in the third millennium. Instead, I preferred to return to the topic of the globalisation of the law, which I have already discussed in this House about ten years ago, for I see it as being, more then ever, serious and opportune. By that time, about 1991 or 1992, the Federal Council of the Bar Association and the Bar Association section of São Paulo asked me to give lectures to lawyers throughout Brazil. This was so that they would be alerted to the fact that the liberalisation of advocacy, in other words, the opening of the markets to foreign legal services, had been included in the Uruguay Round of the General Agreement on Tariffs and Trade, GATT, through the initiative of the developed countries, especially the United States of America( USA), the European Union
(EU) and Japan. These countries demonstrated that over 60% of their economies consisted of the tertiary sector and, therefore, they wanted for the opening of the international markets in such a way that they would be able to sell services in finance, insurance, telecommunication, construction and transportation, as well as professional services in law, medicine, accounting, auditing, engineering, architecture, etc.
As I demonstrated in many books
of mine, it was a question of a rapacious initiative to maintain the commercial hegemony of the developed countries to the detriment of the developing countries, and, therefore, a serious strategic threat to Brazil´s future. The topic did not arouse greater interest in the national public opinion at the time. Brazil had greater concerns regarding its internal order, with the affirmation of democracy, after many long and hard years of military dictatorship. Thus, our country, as almost all other developing countries, showed little resistance to the hegemonic designs, and, on the contrary, proceeded with a unilateral opening of its economy, for the first time, without demanding the same of its main commercial partners. This, however, did not occur with legal services because, being the Brazilian negotiator during the Uruguay Round, I was able to expose the attempt at domination of the markets of the developing countries, while the developed countries closed themselves off by means of horizontal barriers to immigration
With the closing of the Uruguay Round of GATT in 1994 and the subsequent founding of the World Trade Organisation( WTO) in 1995, as president of the GATT Commission of the Bar Association of São Paulo, I alerted the Brazilian lawyers to the risks of an illegal invasion of the national territory by foreign lawyers and profiteers seeking to obtain a factual commercial status in Brazil. This was due to the fact that the attempt of regulation in the WTO had failed, as it had in other countries such as in Eastern Europe, China and Japan. A regulation on this subject imposed itself in the internal legal system, which was incomplete. A commission was created by São Paulo´s Bar Association to draw up a regulation with respect to the situation of the foreign law consultant. This initiative was initially met with opposition by a certain obscurantist sector of the business lawyers of São Paulo, but finally resulted this year in the approval by the Federal Council of the Bar Association. One should then ask, if the grave risks regarding the independence of Brazilian advocacy and, therefore, of the national public order and the future of the lawyers of the country, are completely ignored.
Unfortunately, a negative response imposes itself. The regulation of the activities of the foreign law consultant in Brazilian territory was, and still is, important for the defense of the public order, the democratic institutions and the national consumer. It is located in the area of defense of the privileges of the advocacy and of the civil society´s rights. These were already illegally corroded by the performance of the brokers in real estate law, the banks in the area of financial contracts and business trades, the accountants and auditors in tax law, the stock-brokers in tax planning and corporate government, the so-called consultants in the areas of tax recovery, societal conflicts and foreign commerce, the so-called agents in the area of intellectual property. Another concern here is the uncontrolled proliferation of centers of arbitration and their arbiters and, most of all, without a commitment to the public order which is an essential component of the judiciary.
The greatest danger that presents itself to Brazilian advocacy is the same one that endangers developing countries in general. Or rather, it is the threat to sovereignty due to the so-called process of globalisation whose legal vehicle of international law is WTO which is regulated by the Marrakech Treaties or the Uruguay Round. Globalisation, “latu sensu”, is the process of continuous spoliation of the developing countries by a nuclear core of developed countries. This is done through the imposition of ethnocentric cultural values and standards, as well as unilateral and non equitable rules hidden under a mantle of false international legality. And carried out under the specious ideology of a so-called free commerce by an international organisation not committed to the prevalence of the rule of law or of justice in international relations. As Ernesto Sabato
well reminds us: “Quando la cantidad de culturas relativiza los valores, y la “globalizatión” aplasta com su poder y les impone una uniformidad arrogante, el ser humano, en su disconcierto, piede el sentido de los valores y de sí mismo y ya no sabe en quién o en qué creer”
(´When the amount of cultures relative to the values, and the globalisation influences with its power and imposes an arrogant uniformity on them, the human being, confused, looses the meaning of values and of himself and does not know anymore in whom or in what believe´.).
This process which is well known not new, intensified itself with the downfall of the Soviet Union and with the consequent end of the world wide geopolitical bi-polarity. The principal instruments of this process are the international organisations created in the postwar period, that went back to the operation of a more efficient way of exploiting the human misery. In all these organisations, the power of veto of only one country (the USA) is recognised, the USA. In the WTO it actually works and as a consequence of the mechanism of consensual decision. During the Uruguay Round of the GATT, private law institutions were incorporated in the multilateral legal order and thus became the internal law of the members of the WTO ( today numbering of 137 countries).This is due to the fact that international law is above domestic law in the constitutional hierarchy of the legal norms for all of them, except the USA who benefit from this regime although they do not submit to it.
Thus, areas such as tax law, litigation, monetary politics, and tax politics, are now formulated by the International Monetary Fund. The WTO, in turn, regulates the legislation that rules intellectual property, foreign commerce, investments, customs policy, agriculture, industry and services, including professional. These regulations, which are part of our internal legal order now, were negotiated with a derisive participation of the Brazilian negotiators whom, at the final stage of the process, were demoralised, not equipped materially, with no political leadership and no allusion as to the economical agents and without any rendering of accounts towards the civil society. The description of this situation reminds me of the words of Benedetto Croce
: “Siamo tra le onde e non abbiamo ammainato le vele nel porto per prepararci a nuovo viaggio”
(“We are between the waves and we haven´t lowered the sails in the port to prepare ourselves for a new journey”). In this manner, the damage to Brazilian interests was tremendous, for the universe represented by these rules has an expressive economical extension and represents almost the whole world economy.
Any violation, actual or assumed, of these provisions will allow a dispute to be submitted to the WTO´s System of Resolutions of Disputes. It is managed in a ethnocentric way, with no transparency or leadership, in Geneva, with a history of 90% of defeats of the developing countries in issues against the developed countries. Only the USA prevailed in more then 90% of the cases of these disputes and the EU followed not far behind. Brazil was the champion in defeats in the WTO´s records, having lost 4 cases in the disputes and a fifth in preliminaries, during the consultations. The largest defeat a country suffered in the WTO was Brazil´s in the case of the subsidies to the aviation industry against Canada. Brazil was then ordered to pay Canada the amount of approximately US$ 1,7 billion for losses and its financing program for exportations, PROEX, was considered illegal, a unique situation between the ten largest world economies, and the main adverse precedent was created by the Brazilian ambassador himself!
In all the cases, Brazil was represented by the same American law firm! If the Brazilian advocacy had operated in these cases, defending national interests, certainly it could not have done worst. This decision was as absurd as seconding the services rendered by the Foreign Office to a foreign company of a hegemonic country.
As occurred in the negotiations during the Uruguay Round, but for different reasons, the Brazilian diplomacy did not do so well in these disputes in the last years. This brings us to consider if it would not be better to transfer the commercial transactions from the Ministry of Foreign Relations to some other governmental organism, as the USA, EU and Japan do. Frequently more preoccupied with their own sinecures, confused with small elementary disputes, motivated by political interests and not by merit, away from their country and their interests, poorly prepared for the tough oppositions in the commercial transactions, full of pride, arrogance and disdain, the Brazilian diplomats showed themselves, during these five years of the WTO, to incompetent in defending national interests. And even more, they were sometimes economical with the truth, trying to conceal from public opinion the extension of the adverse results and of their consequences. In the USA and the EU, there is a policy of results concerning commercial issues. When an American negotiator renders accounts to his congress, he deals with national interests and how they were preserved. When a Brazilian negotiator of the recent past speaks, he explains, sometimes by sincerely, about the sweet Montesquieu commerce
. Well, if international commerce had any taste, it would be bitter and sour, with an acrid after task. The gravity of the conflicts does not permit dreamy fancies.
Unsatisfied with the hegemony reached during the last round of negotiations, which, in the five years of the WTO, limited the world prosperity to a few developed countries, in particular, the USA and the EU. These want to improve the system so that it would become more efficient in the dissemination of misery to many in benefit of a few. This attitude became clear in the agendas for the ill-fated Millenium Round that nevertheless pretends to rescue itself from of the aches the tempestuous ministerial reunion of Seattle. In these agendas, there are some topics that most interest the Brazilian advocacy. The first one of them regards the so-called social clauses and, the second, the electronic commerce. With a cynical argumentation of the promotion of the general prosperity of the nations and of the best working standards, one aspires to build, regarding the social clauses, a protectionist barrier by means of countervailing duties between the developed country´s workers remuneration and that of the one in the developing country, which would inexorably be condemned to unemployment and absolute misery if such a mechanism is installed.
The developed countries plan to achieve the total liberalisation of electronic commerce as a way of rendering services. This would permit a legal opportunity to access accessing the market with no domestic regulation of most of the tertiary products such as banking, finance and insurance services, as well as professional services like medical, legal, architectural, engineering, etc services. Not to mention other products such as computer programs that can be electronically unloaded. It is exactly in the electronic rendering of services where the future of advocacy is going to be decided because it is the least expensive instrument and the most efficient and in the hegemonic point of view, it allows the derogation of the whole domestic legislation on public order the protection of the by means of an international agreement and, thus, it allows complete access and the restricted access of foreign lawyers in the markets of the developing countries, including Brazil. The local lawyer has a unshakeable commitment to the internal public order. He knows he represents the access to the judgment of the state, and sells the best of his services, indistinctly, to all segments of the civil society, within the law and without ever compromising his human or professional conscience. We, as lawyers, inspire ourselves in the words of the colleague who personified human dignity, Gandhi:
“there is a higher court than the courts of justice and that is the court of conscience”. In other words, what could one expect of an anonymous rendering of legal services represented by a computer site´ What is the electronic conscience? Does it exist?
Attaining this goal, the developed countries, in general, and the USA, in particular, would have attained i) control over the international and domestic legislative proceedings, regarding what is relevant to the economical order, through the WTO; ii) control over the international juridical proceeding in the WTO´s System of Resolution of Disputes; iii) control over the domestic executive action in economical and tax policies by means of combined mechanisms of the WTO and of the IMF; iv) control over the civil societies throughout the world by eradicating the local advocacy, because of its impossibility, on a large scale, to compete electronically with an economy of scale with no precedents in the history of kind man. It is never excessive to recall that negotiations to create a Free Trade Area of the Americas (FTAA) are in progress, another hegemonic initiative of the USA on a regional level, however maintaining the same goals established for the multilateral trade. In Brazil´s case, these negotiations distinguish themselves by the total lack of rendering of accounts towards the civil society.
Thus, in the next round of negotiations of the multilateral trade system, not only what is left of the sovereignty of developing countries, their important cultural values and standards will be at stake, as well as the liberty of the nations, and, therefore, the survival of the advocacy, this amazing millenary institution that, as a principle, represents the last defense against the control and the oppression, and also the power of assertion of the law and justice. For all that is at stake, we, Brazilian lawyers, have the duty to i) contribute in an active way towards the definition of the national interests in international law issues; ii) follow these negotiations demanding clearness and competence in the assertion of national interests by the Brazilian representatives; iii) take the due judicial measures for the verification of responsibilities in the cases of agreements that damage national interests and the Constitution; and iv) take the appropriate judicial measures to deny the legal effect on national territory of illegal international agreements. I would like to, once again, recall the wisdom of our colleague Mahatma Gandhi
in the sense that: “Democracy is the art of mobilising the (…) people in the service of the common good”.
To be able to act efficiently in this area, a growing professional qualification in advocacy is necessary. My alert on the spurious attempts to use electronic commerce for hegemonic ends in multilateral jurisdictions is not a undervaluation of information technologies, which are of strategic importance to the development of the legal professions and to the refinement of the rule of law. The Brazilian law university that neglects the area of legal informatics fails to render a great service to the country. One has to admit that our universities today are clearly inferior to the foreign ones. This situation is aggravated by a poor basic education. Our public schools lack quality. In the past, they were the elite. Even here, in the Monsenhor Gonçalves Education Institute, some of the most distinguished men and women of the country were educated, as, for instance, Minister Aluísio Nunes Ferreira Filho, Prof. Elisado Carlini of the São Paulo´s School of Medicine, and Dr. Dulce Pereira, secretary general of the Community of Portuguese Speaking Countries. This no longer exists unfortunately. To maintain such a picture, in a situation of free international competition in the legal services, we will inexorably end up as losers.
Ladies and Gentlemen, dear friends, I thank you for your attention and the opportunity to be present here, in the House of Lawyers in São José do Rio Preto, which allowed me, once more, to meet the principal values that distinguish our culture: human warmth, sympathy and solidarity.
Lawyer admitted in Brazil, England and Wales and Portugal. GATT and WTO panelist. Brazilian government ad-hoc representative for the Uruguay Round of the GATT. Post-graduation professor of the law of international trade.