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KEYNOTE ADDRESS OF YBHG. TAN SRI ABDUL GANI PATAIL,
©ATTORNEY GENERAL OF MALAYSIA
AT THE 13TH MALAYSIAN LAW CONFERENCE
AT PWTC, KUALA LUMPUR, 16 NOVEMBER 2005 Please click  to listen.  Greetings
1. Good morning Tuan Haji Kuthubul ZamanBukhari, Chairman of the Organising Committee, Honourable Judges, learned members of the Bar, distinguished speakers and guests, delegates of the conference, ladies and gentlemen. It is indeed a privilege for me to be invited to deliver the keynote address of the esteemed 13th Malaysian Law Conference with the presence of many distinguished speakers and foreign and local delegates.
Programme
2. I have perused the programme for the 3-day conference and am delighted that the Organising Committee has put together a programme which has depth and width. Apart from that, I also noticed you have gone global in line with the theme of this conference by inviting international speakers to speak on subjects like Mediation and International Law. My congratulations to the Committee for putting together such interesting and diverse topics of importance which also cover Cyber Law and Human Rights.
Globalization
3. Much has been debated everywhere on the issue globalization. We are into 21st century and the question of “Can we combat the onslaught of globalization?’ should have ceased lingering in our minds by now. What should be more of concern now is how to go about maximizing the opportunities of globalization especially in the legal profession. In this respect, perhaps it’s timely that the Malaysian legal profession be urged to “Think global, focus local”. The ‘One size fits all’ approach is no longer appropriate in the modern legal market. Lawyers have a vital and challenging role in an increasingly globalized and sophisticated world.
A Revoluntionary Legal Profession 4. The legal profession has been said to be in a constant state of revolution. That is because legal services evolve continuously both in depth and width. Or should I replace the word ‘width’ with ‘global’ now? Lawyers now play a more active role vis-à-vis existing and potential clients. It cannot be denied our lawyers have also diversified their services in various services to become global players offering a wide range of specialized legal and other complementary services to their clients. The discerning clients of today ask a simple but fundamental question that is: has my lawyer delivered results for me that are quick, effective and created to meet my needs? The lawyer without legal wisdom and business vision is out of step with the ethos of our times. The lawyer of today has to focus on the client’s short-term and long-term objectives and interests. That requires forward thinking, uncompromising quality and exceptional client service. Today’s practice of the law does not provide a mere ‘yes’ or ‘no’ answer to a legal dispute.
5. To this end, how have we in Malaysia kept up with the times and the revolution in legal services that have resulted directly and indirectly from globalization?
GATS (General Agreement on Trade in Services)
6. The direct impact on or legal services stems form the liberalization of trade under the GATS (General Agreement on Trade in Services) in which Malaysia is a signatory.
7. In the 1994 Uruguay Round, GATS was created as part of the WTO system. It visualizes the commitment of the Member States to progressively liberalize the Services Sectors by the year 2015. The GATS has two parts: firstly the framework agreement containing the general rules and disciplines and secondly the national ‘schedules’ which list individual countries’ specific commitments on access to their domestic markets by foreign suppliers. Each WTO member list in its national schedule those services for which it wishes to guarantee access to foreign suppliers. All commitments apply on a non-discriminatory basis to all other Members.
8. Under the GATS classification, legal services come under the professional services, together with other professional services such as the accounting and engineering services. Under the ASEAN Framework Agreement on Services (AFAS), Member Countries aim at enhancing co-operation in services by way of progressive liberalizing on a ‘GATS-Plus’ basis. This would give more favourable treatment to the ASEAN Members which is allowed under Article V of GATS.
9. Presently in Malaysia, foreign legal firms are only allowed to be set up in the Federal Territory of Labuan whose services could only be provided to offshore corporations established in Labuan. GATS allows for progressive liberalization so will Malaysian legal firms be ready to take on full liberalization in 2015? Although many countries do not allow the establishment of foreign firms, there are alternative means of foreign participation in those domestic legal markets. Our nearest neighbour Singapore, for instance, permits foreign practice in some areas. In terms of bringing in foreign consultants, Singapore has introduced the Joint Law Venture and the Formal Law Alliances that allow foreign firms to collaborate and work with the local firms as a single entity/firm. I believe the Honourable Attorney General of Singapore, Mr. Chan Sek Keong in his special address on ‘Globalizing the legal profession’ will deliberate on Singapore’s position and enlighten us regarding this on the third day of the Conference.
10. The significance of liberalization of legal services should not be under-rated. With globalization which sees an acceleration of world economic integration, law firms will become increasingly important in advising clients on trade-related matters. The legal services can encompass a wide spectrum of the business matters ranging from mergers and acquisitions with foreign companies to contractual agreements for franchises, dealerships and product sales.
Practising in a foreign jursidiction
11. England and Wales
- practitioners need not be British nationals. Legal advice and services can be offered with some restrictions. Certain limited areas are reserved for nationally qualified solicitors and barristers and they include conducting litigation, drawing up of court documents, rights and audience, property transfers and succession. Immigration advice and immigration services are also reserved for British nationals.
12. Germany
- not dependent on nationality to practise law in Germany. A foreign lawyer needs to be admitted to the German Bar in the territory falling under the jurisdiction of a district court.
- non-German lawyers from the EU or other EEA (European Economic Area) Member Countries (the EEA combines the EU Member Countries and three of the remaining members of the European Free Trade Association (EFTA) namely Iceland, Norway and Liechtenstein) wishing to practise law on a permanent basis are covered by the right of establishment, EC Treaty article 52-58.
- in accordance with GATS, lawyers originating from Member Countries of the WTO are allowed to practise in Germany with a reduced scope of activities; they may only give advice in legal matters concerning their home country and the law of nations. They are excluded from services in other parts of international law and EU law as well as from the law of third countries.
13. China
- with effect from 1 July 1992, foreign law firms were allowed to open offices inside China and to date, eighty over law firms from more than a dozen countries and twenty over firms from Hong Kong have established offices in various big cities in China.
14. United States
- a foreign lawyer has three options: a) they may seek dual admission through the same process as an individual wanting to become a lawyer in the US; b) they could be employed by or consult for either a law firm or company; c) they can seek licensing as a foreign legal consultant.
On the need to equip ourselves in special fields in order to compete and be relevant the AG’s chambers had for the past couple of years embarked aggressively in training and working together with various main institutions and legal firms.
Current developments and the threat of transnational crimes and terrorism necessitate cooperation in the field of legal studies between the AG's Chambers or their equivalent in the world.. Private International Law and Mutual Legal assistance in matters are developing rapidly in the world.
15. Japan - foreign lawyers are limited to advising clients only on the laws of their own jurisdiction but are allowed to establish joint ventures with Japanese firms.
The Attorney General's Chambers response to globalization
16. Realizing the need and importance of focusing in international matters and foreign legal matters, the 6th Division of the Attorney General’s Chambers that is the International Affairs Division was established on 1 June 2003. Its objectives are to protect and improve Malaysia’s rights and interests in the international arena, to give legal advice and views to the Malaysian government, public interest and domestic laws and to ensure that Malaysia’s international obligation under any agreements, treaties and conventions which have been signed, agreed upon, ratified or participated by the Malaysian government are carried out in accordance with Malaysian laws and policies.
17. It had also dawned upon me that local expertise is limited in various disciplines of the law which have become increasingly important. Hence, for these few years the Attorney General’s Chambers has embarked aggressively to work in collaboration with foreign institutions firms and trainers. In some cases, our officers were sent overseas for the exposure while foreign trainers and speakers were also invited to come to teach our legal officers whenever found more economically feasible to do so. For instance in 2005 we sent two legal officers for a Legislative Drafting course at the Sir William Dale Center, University of London. We also had trainers from the University of Nottingham to train our officers on ‘Online Legal Information Sources and Legal Research Skills, Intellectual Property, Introduction to the Law of the Sea and the Protection of the Marine Environment and Advocacy Skills. We are now working close with the University of Wollongong, Australia for future training of our DPPs. In the pipeline are Masters In Prosecution and Trans Organized Crimes. There are also plans to conduct a General Certificate Course in Criminal Law and Evidence with the University of Wollongong.
18. The Judicial and Legal Training lnstitute (ILKAP) which trains judicial and legal officers has also been actively responsible far bringing in foreign lecturers and trainers to our shore. It conducted the ‘Mediation Familiarization Training Course’ and the ‘Mediation Assessment Course’ facilitated by Eversheds LLP of London in which one of the distinguished lecturer was Ronald Bradbeer who was accredited by the Centre for Effective Dispute Resolution (CEDR) as a mediator in I993. Laura Hopkins from the Ministry of the Attorney General Ontario, Canada, Roger Neville Rose and J. Paul Salembier were trainers in the Advanced Legislative Drafting conducted recently. We are also honoured to have the attendance of Mr Michael Caplan QC to share his experiences on extradition in the ‘Course for DPPs on United Nations Convention Against Trans Organised Crimes’ which is currently running in ILKAP. Also present in this course will be experts on Mutual Legal Assistance from the Department of Justice Hong Kong to conduct a workshop in Mutual Legal Assistance.
Alternative Dispute Resolution (ADR)
19. A discussion on the legal profession will not be complete without mentioning arbitration, mediation and conciliation. Although these alternative modes of dispute resolution are not strictly confined to legal professionals, they have become increasingly important in the settlement of disputes which are alternatives to litigation. Traditional arguments for the delivery of civil justice have come under scrutiny, challenge and change. Lawyering in this millennium must take into account processes of dispute resolution other than litigation. In both large and small jurisdictions, the lawyer of today requires a marriage of both litigation and dispute resolution skills.
20. There are numerous advantages of resolving disputes through ADR. Of the utmost importance is the reduction of the backlog of cases in the courts. Acknowledging that ADR is truly beneficial and is an important dispute settlement mechanism, the Malaysian government, Bar Council and other professional bodies in. Malaysia have taken proactive steps to promote the usage of arbitration, conciliation and mediation for the settlement of disputes.
Arbitration
21. According to Cecil Abraham in the 2001 issue of ‘Arbitration in Asia’, there are four main reasons why parties in Malaysia find arbitration more attractive than litigation as a means of resolving disputes. The first reason lies in the role of language where the national language need not be used. Secondly, the parties in arbitration may be represented by any person of their choice and they are not required to be represented by Malaysian lawyers. Thirdly, the rigid rules of evidence under the Evidence Act I 950 are not applicable to arbitration proceedings. Finally, the parties involved in the dispute may select the arbitrator of their choice. Yet another factor for the success of arbitration in Malaysia is that it is common to find that most local standard form contracts provide for arbitration as a means for resolving disputes. I cannot help but observe that many of our retired but able and diligent judges who used to serve in the Federal Court and Court of Appeal are now making great strides as arbitrators which must be their alternative in their professions!
Mediation
22. It is a confidential voluntary non binding and private dispute resolution process in which the mediator helps to reach a negotiated settlement. It is a process totally different from arbitration in all respects save for the parties’ agreement to utilize the process as an alternative to litigation and the objective of privacy. It brings flexibility to the dispute resolution process because there is no right or wrong way to conduct mediation. In its effort to promote mediation, the Malaysian Bar Council set up the Malaysia Mediation Centre (MMC) on 5 November 1999. The MMC’s Mediation Rules were formulated, amongst others to provide for the procedure to be observed in a request for mediation, the mediation process and the scale of or fees for the mediator.
Conciliation
23. Conciliation and mediation have been used interchangeably but there is a difference between them. A mediator does not advise or direct the parties on how to resolve their dispute. The conciliator goes a step further and makes recommendations and advise the parties on how to resolve their dispute. The statutory regime relating conciliation proceedings in Malaysia can be found on the Industrial Relations Act 1967 and the Law Reform (Marriage and Divorce) Act 1976.
24. There are two categories of unlegislated conciliation: one in which there is a requirement for the contract for conciliation and the other is where parties voluntarily or consensually agree on conciliation proceedings. I am happy to note that various professional bodies in Malaysia like Kuala Lumpur Regional Centre for Arbitration (KLRCA), Construction Industries Development Board and the Malaysian Institute of Arbitrators have established the mechanisms for conciliatory proceedings.
Challenges in the legal profession
25. I had taken unenviable task addressing how, this far in Malaysia, various initiatives have been taken by the government sectors and the Bar Council in making inroads and diversifying the options available in the legal profession. The are not meant to be educational in this Conference since you will be listening to these subjects being delivered to you in precision and at great length by the experts in their respective field. What I have ventured to address is to this stark reality that globalization is inevitable and it is for the legal profession to examine the options available in the local market and overseas which will ensure their survival in the onslaught of globalization.
26. We are fortunate to be in the legal profession because there are many areas we can penetrate into if we have the expertise and are competitive enough. Will we benefit from a globalized legal profession or be consumed by outside forces especially by full liberalization in 2015? By comparing some of the counties’ position which have opened their legal markets, perhaps we have to ask ourselves if we have been lying cozily in our comfort zone. It may also appear that we are too conservative or seemingly over-protective and do not venture across borders whereas foreigners in the form of trainers, educators, lecturers and individual legal practitioners have made their way to our doorsteps here and offered us their expertise. As lawyers, we are legal advisors and we can be experts/consultants in a particular subject in a foreign as well as domestic jurisdiction. We can be mediators, conciliators and arbitrators. Or serve as in-house counsels/legal advisers for multinational companies. In a global marketplace, law firms cannot be limited to just one scope of legal work/expertise.
27. Malaysian law firms will encounter stiff competition from within and outside forces. Our foreign counterparts will penetrate the perimeters of our comfort zone indirectly due to their specific legal expertise, greater mobility physically and through the internet and other wireless communication since legal services may be provided from afar due to developments in ICT. By being over protective, the Bar could be limiting the expertise required to be shared with our lawyers by foreign lawyers in which international firms/multinationals in Malaysia might have opted to use. I hope I am not encroaching into your domain by saying that the priority now is to develop the level of competency of legal firms to equal, if not rival that of the foreign firms. To achieve that level, let us advocate on investment in infrastructure, ICT, human resources and training.
28. The mushrooming of small legal firms is another area of concern in a competitive legal climate. It is worth considering emulating the Malaysian banking sector to merge small legal firms to stay financially stronger, more efficient and more specialized. For a small country like Malaysia, it must be a marvel for our foreign counterparts to appreciate that we have three different pieces of legislation governing the three Bars! Again, I will not touch on the sensitivities of this issue since those rights are enshrined in the Constitution.
29. Legal firms should not be complacent and continue doing what they had done in the last century. Please look beyond litigation and court appearances. It is not everyday that you get to represent VIPs and rich clients who are Tan Sris or Datos’ who can afford to cough out fortunes for you to defend them. The big bucks are where the big players are namely those big international firms and in big business deals and enterprises.
Threat or opportunity?
30. In the 2003 Lexis Nexis-IBA (International Bar Association) Legal Survey carried out, one of the finding was that the UK, Argentina and Chile were the most optimistic that globalization represents an opportunity and not a threat to local firms. By contrast, lawyers in Australia, Canada and Germany were wary of the potential negative consequences of globalization such as the growing concentration of international legal work in select countries beyond their borders. The Australian lawyers did not point to any particular areas of concern, with most noting that the increased globalization will increase the efficiency of trade. Lawyers polled in France and the US saw a local opportunity as the legal profession globalizes.
31. How does the Malaysian legal profession view it: is it an opportunity or a threat? Are we going to be swept away by the undercurrents of globalization or are we ready to take another look at our legal profession, reexamine the option available and to stay afloat and strive to be as competitive as our foreign counterparts? “The Wisdom and Folly of Open Sesame” is very much in our hands and we can determine our fortune if we work towards making globalization an opportunity for us. I therefore urge the Malaysian legal profession to keep abreast with the development of the world in the face of globalization and to be more competitive, receptive and innovative. Conclusion Once again, I'd like to take this opportunity to thank the organizers for inviting me to grace this function and to share my limited views in such a global Conference. I wish everyone here a Happy Conference. It is with my greatest pleasure I officiate the opening of this Conference. Thank you. 
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