Late, but not for much longer

Late, but not for much longer

John Guy takes a look at how Spain's legal market is coping with having to open itself to the global economy

BELIEVE it or not, Spain is finally becoming part of Europe. No-one has removed the Pyrenees, and the food, wine and women still have a distinct flavour. But the sheer power of modern telecoms and the outreach of the global economy is breaking down the differences that made Spain special.

Businessmen now arrive on time for meetings and the economy is growing faster than anywhere else in Europe. Spain's industries compete with the best in the world. Lawyers can no longer hide behind the idea that Spain is different. They too are starting to turn up on time.

It is different in some ways. Spain has more lawyers per head than any other EU country, with one per three hundred inhabitants, compared with one per thousand in Germany, for instance. This owes more to the ease of qualification and the desire of aspiring middle class parents to push their children up the social ladder than to any tendency to litigiousness.

Spain is the only country in Europe where lawyers do not have to pass a bar examination or go through compulsory practice before hanging up their shingle. The consequence is that the overwhelming majority of Spain's 120,000 lawyers work in small, often one-man (rarely one-woman) practices.

That is changing, and small firms are thinking about merging with each other, and reaching out to join with larger firms from outside Spain. In the maritime sector, this trend has been given an enormous push by the recent changes to the law of ports and merchant marine.

Those changes altered the status of ship agents. Until recently, ship agents could be held to account for the actions of their principals. Now, they cannot, and the comfy situation where a Spanish lawyer with a cargo claim could pop round the corner and serve a writ on the ship's agent, and then expect all proceedings to take place in the local court, are gone. And they won't be coming back, despite a rearguard action from many in the legal community.

Jose Bertran, head of Barcelona-based Bufete Bertran & Assoc, says, "We need foreign links because agents are no longer responsible. Everything used to happen in Spain, but now it doesn't. We fought hard to keep the responsibility with the agents, but that has changed. So now we need languages, we need foreign lawyers, we need to serve papers on owners in Hong Kong and Panama."

But Bertran is not alone in thinking that reaching out has its problems. The mismatch in size between the mostly small Spanish firms and the mostly large English maritime majors makes for an unbalanced relationship. "We need to form links with firms of the same size as us," says Bertran. "I am tired of this one-way traffic with the large firms."

Many of Spain's shipping firms have seen the change coming and employed foreign lawyers. Madrid-based Amaya, Barcelona-based Bufete Berenguer and Barcelona-based Ignacio de Ros have all hired foreign lawyers to work in their offices. There is no shortage of French and Scandinavian lawyers willing to work in Spain for a few years. Bertran is dismissive of this. "The lawyers have to speak Spanish to be any use," he says. "They get more out of it than the host firm does. They have to learn the style of the office, which is more important than the law itself."

For many years, Spanish lawyers have kept up a fiction that, to operate in Spain, you needed enchufe, the right contacts, and that only they could provide that. At the same time, they are fiercely resistant of any notion that the rules can be bent. When Ignacio de Ros recently told a law conference in Barcelona that there were practical ways to make things happen in Spain, he was roundly criticised by his colleagues for implying that Spain is a banana republic. It isn't. The lawyers are honest, and the judges are honest. But they both still tend to look inwards and base their decisions on outdated laws. So practical realities don't always match legal niceties.

One thing which still causes problems is the mismatch between the commercial code and modern transport practices. Agents have now had their responsibilities clarified, at least in part. But freight forwarders have problems. "We find that the bills of lading for through transport don't match the maritime bills," says Bertran. "Transport law designed for the shore does not work when applied to shipping today. It puts unreasonable responsibilities on the forwarders."

That too will change, although no-one in Spain is in any hurry to reopen the commercial code. They are too busy coping with the pressure of globalisation to deal with local matters. Expect more incursions by foreign firms, and, more Norwegian and French lawyers answering the phone when you call a Spanish law office. But don't expect to see many mergers within Spain. Spaniards are anarchistic individuals. That is one difference that won't change.

Masters course finds major support

BARCELONA's Collegi d'Avocats (Bar Association) has launched a Master in Maritime Law course, to run from October 1999 to June 2000. Thirty-six students have signed up for the course, which covers the ship, commercial use of ships, the role of agents, forwarders and shippers, problems, ports, cargoes, navigation rights, fishing and problems of cruise and passenger ships.

The course is backed by the Department of Justice of the Generalitat de Catalunya and the Department of Sciences of the University Polivalente de Catalunya. In other words, the Catalan regional bodies are behind the initiative, which is a sign of how maritime legal business is moving away from Madrid to the ports, especially Barcelona.