CLEAR News - Summer/Fall 2001

Proposals on Liberalization of Trade in Services Submitted to WTO Ahead of November 2001 Meeting
In preparation for the next World Trade Organization (WTO (www.wto.org)) ministerial meeting, submissions have been received regarding proposals on trade liberalization in the legal, accounting, and architectural professions (these can be viewed at http://www.wto.org/english/tratop_e/serv_e/s_propnewnegs_e.htm).

Legal Services
The proposal from Australia calls for a regulatory framework that allows the effective provision of legal services and service suppliers on a trans-national basis. The Australian proposal sets this proposal in the context of the World Trade Organization's General Agreement on Trade and Services (GATS) and stresses the importance of legal services in sustaining local and global business. The submission also identifies a number of areas in which it claims further liberalization of trade in legal services is being prevented. These include restrictions on the establishment of foreign law firms, restrictions or limitations on joint ventures between local and foreign law firms, numerical ceilings on foreign lawyers and restrictions on the practice of home country law and third-country law.

The American submission calls for liberalization in the following areas: "commercial presence, including citizenship and residency requirements for licensing, scope of practice, and association of foreign-qualified lawyers with local lawyers and association of foreign-partner law firms with local law firms". In addition, the proposal calls for discussions on the movement of personnel.

Accountancy
In the field of accountancy, the Australian submission identifies the barriers to trade that include the following: limitations on the establishment of a commerce presence; controls on the number of foreign or national accountants that can be employed and or the number of new licenses; burdensome and/or non-transparent temporary visa procedures; citizenship or residency requirements for licensing or certification: less favorable treatment of certified foreign accountants; discriminatory treatment in respect of foreign partners in a joint venture; limited or no recognition of qualifications or unreasonable requirements for qualifying examinations; restrictions on the use of firm names; restrictions on electronic transmission of reports and accounting documents.

The submission from the Member States of the European Community also is critical of residency requirements, stating that the "nationality requirement is often an inappropriate tool to control professional competence…. Members should consider whenever possible, replacing such residency requirements, by less trade restrictive requirements serving the same policy objective."

While the submission makes clear its opposition to what it sees as the "high level of regulation in almost all countries," it makes clear that the Member States "do not favor unrestricted deregulation of these sectors as a result of liberalization within the framework of GATS, given the important public service function many of these professions fulfill." A proposal from Switzerland joins the call for an end to residency requirements and also suggests adjustments be made to requirements to belong to a local professional association.

Architecture
The Australian proposal identifies similar impediments to liberalization as outlined in the review of other professions (restrictions on establishing a commercial presence, unduly onerous and and/or non-transparent temporary visa procedures, citizenship or residency requirements to practice, limited or no recognition of foreign qualifications, compulsory membership of professional associations, non-transparent regulatory environment.). It proposes that WTO member nations review licensing laws regarding registration of foreign architects be subject to a necessity test. This is defined as requiring "that any domestic regulation adopted meet a legitimate policy objective to be the least trade restrictive possible."

The WTO is set to hold its next ministerial meeting in Qatar in November this year in Doha, Qatar on 9-13 November 2001.


Progress on .eu Domain Stalled After Disagreement Between Member States
As reported in this column in the previous issue of CLEAR News, proposals have been unveiled to create a .eu domain for entities wishing to identify themselves as European or pan-European. Earlier proposals were to have secured provision for the domain by this summer, though these now appear to have stalled after disagreement between Member States regarding the regulation of the use of the domain name.

Members of the European Parliament (MEPs) are in the process of examining amendments made by the rapporteur Colette Flesch, in early April. Ms. Flesch's draft report requests that the proposal provide a clearer definition of "Registry" and suggests the European Commission report on the take-up of the domain name after a year. The European Parliament's Legal Affairs Committee met on 23 April 2001, and discussed Arlene McCarthy’s draft opinion (http://www.europarl.eu.int/meetdocs/committees/juri/20010423/435411en.doc) on the proposals. This makes the following suggestions: the operation and creation of the Registry be put out to bid; the ‘.eu’ domain names be allocated on a first come, first-served basis; and the provision of a free extra-judicial dispute resolution system.


Differences Remain Regarding Transfer of Personal Data
International service providers are closely watching negotiations between the US and EU regarding the EU’s data protection Directive (http://www.europa.eu.int/comm/internal_market/en/dataprot/index.htm). The issue is proving controversial because it limits the transfer of data from EU Member Nations to third countries that are judged to have "inadequate" privacy protection. The main area of contention for the US administration is the Commission’s recent model contract terms on the transfer of personal data, which it claims are unduly burdensome. While the majority of the issues were resolved during negotiations that took place last year, the guidelines have led to new disputes over the effect on US providers aiming to provide services to consumers in the EU.

The EU welcomes written comments on the current version of the draft before 20 August 2001. These can be sent via e-mail to leonardo.cervera-navas@cec.eu.int or by fax to +32-2-2968010

Related links:
Useful background information -http://www.europa.eu.int/comm/internal_market/en/dataprot/backinfo/info.htm

Latest news on the issue - http://www.europa.eu.int/comm/internal_market/en/dataprot/news/index.htm

Nursing and Midwifery Regulators Consider Competencies at Fifth Annual Meeting
Over 120 delegates from more than 30 countries were present in Copenhagen, Denmark for the Fifth International Conference on the Regulation of Nursing and Midwifery, June 8-9, 2001. Entitled 'Competencies as a Concept and Tool for Regulation', the conference focused on the role competencies play in the protection of the public.

The keynote speaker, Professor Michael Eraut (http://www.sussex.ac.uk/usie/staff/eraut.htm) of the University of Sussex, England, provided attendees with a review of contrasting definitions of competence, suggesting that these are either socially or individually situated. A social situated definition of competency was defined as what practitioners are supposed to do in a job at any career stage, while an individually situated definition is psychometrically derived, and used for selection or assessment of training needs and accounts for some variation in performance. Professor Eraut stressed the importance of lifelong learning for practitioners and the need for such learning to be both on, as well as off, the job. He further stressed the importance of learning as a team or department, and ensuring that the skills and talents of both individuals and the team are valued.

The remaining conference sessions looked at a variety of issues in competency including whether it is possible to develop competency standards on a regional basis, as well as particular programs that have been developed around the world. Attendees were able to hear from presenters based in Estonia on the evaluation of a national action plan for nursing professionals, and an example of a competency driven framework for infection control in Scotland. The meeting concluded with a look at core competencies within the profession of nursing, entry to practice competencies as well as an examination of the way competencies have been used as a tool for regulation in Australia, the UK and the US.

The sixth international conference on the regulation of nursing and midwifery will be held 27-28 October, 2003 in Melbourne, Australia.

More information about the fifth conference and any of these articles is available by contacting Adam Parfitt.

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