It has been coined as “the most liberalising bilateral trade agreement that Japan has ever concluded”, but the Australia and Japan EPA may also lead to more multi-qualified Australian lawyers. We find out why
Announced on July 8, the Japan-Australia Economic Partnership Agreement (JAEPA) was coined as “the most liberalising bilateral trade agreement that Japan has ever concluded” by the Department of Foreign Affairs and Trade.
The signing of the agreement is hugely significant considering that Japan is Australia’s second largest trading partner and the third largest economy in the world.
Kano, a partner at Clayton Utz’ Brisbane office, told Australasian Lawyer of the opportunities the agreement will proffer for the Australian legal community.
“Generally speaking, Australia-Japan legal work will increase as the FTA will increase trades and investments between the two countries,” he says. “It will be easier for Australian law firms to open up Japanese offices because of the deregulation of foreign lawyers in Japan.”
But another trend Kano hopes will start to emerge thanks to JAEPA is a move towards Australian lawyers holding law qualifications over multiple jurisdictions.
Kano himself is qualified to practise in Australia, Japan and the US, and spent 11 years studying to be able to do so.
He says this will become increasingly important because although the EPA will lessen much of the bureaucracy and paperwork that our lawyers must undertake to register as a foreign lawyer in Japan, the agreement won’t allow them to advise on anything other than Australian law there.
“That [bar] itself cannot be lowered because the law is unique per country,” he says. “But because of the flow of lawyers that [will now] come through between the countries, some of the lawyers – like I did – will realise that if he or she goes to Tokyo to work for an Australian law firm they need to get a law degree there… more lawyers will become more conscious of the fact that businesses are becoming internationalised.”
Kano acknowledges that another spin off of JAEPA will be that we’ll start to see more Australian law firms opening in Japan simply because it will now be easier.
But he’s not necessarily supportive of the potential consequences of this both for the lawyers who move to Japan from Australia, and their clients.
This is because unless they gain a law qualification in Japan, they won’t be permitted to work on anything other than Australian law there.
“Personally I have a reserved view of opening up Japanese offices. You open up an office, send a few lawyers there and they start to work…but over the years they will lose expertise, because we need to work in Australia and on the ground,” he says. “They won’t have a support around them on the ground to pull on expertise depending on the nature of the matter.”
This could lead to intermediary office being opened in Australia to deal with such issues, which will inevitably drive up the cost for clients.
While the intermediate benefit is getting better access to the Japanese client, in the long term it is not in the best interests of either the lawyer in Japan or their clients, Kano says.
“I travelled to Japan seven times last year. Every two months I travel to Japan, so we can have access to the Japanese clients cheaply by doing that…It’s like a cost benefit analysis, and we don’t think opening an office in Tokyo is beneficial to our clients,” he says.
But there is no doubt that JAEPA can only increase trade and flow of business between Australia and Japan, and the majority new Japanese businesses coming into Australia will be utilising our legal services.
The resulting increased movement and exchange of lawyers will stimulate and facilitate better understanding of other jurisdictions and legal systems amongst the legal practitioners in the region, Kano says.
And those who will be in the best position to take advantage of the future business opportunities between Australia and Asia could be the lawyers who are dual-qualified.
Due to his qualifications, Kano has become an expert in bridging the gap between Australian law and Japanese law, and is now in a prime position to use this experience for the work that flows from JAEPA.
“I spent a quarter of my life studying law but I believe it’s worth it. [In my work] I can see very easily where there are concerns and fill in the gaps.”
Stephen Price, partner and co-chair of the Corrs Chambers Westgarth Japan Business Group agrees that the JAEPA will mean clients start to develop greater expectations that their Australian lawyers have a deep understanding of the peculiarities and challenges that Asian markets present.
“Lawyers will need to facilitate seamless and efficient connections to the advisors and entities necessary in each country to ensure a transaction is completed smoothly. To be able to meet these expectations, firms will need to ensure that not only its clients, but its lawyers, become more connected to Asia,” he told Australasian Lawyer.
This will be the biggest challenge for Australian law firms, he says, and it’s vital they ensure their lawyers have the capability to enable their clients to fully capitalise on the opportunities JAEPA presents.
“Firms will need lawyers that understand how businesses operate in Japan, are engaged with what is happening culturally, politically and economically and have strong relationships with other key advisors in Japan.”
The signing of JAEPA marks an exciting and important time for both countries and will present many opportunities for lawyers from both jurisdictions to work together to assist both Australian and Japanese clients, says Price.