Bar Council highlights Brexit opportunities for Irish lawyers

Ireland will be sole English-speaking common law jurisdiction within EU legal order

Judgments obtained in the UK could become unenforceable in some EU member states and more difficult and more expensive to enforce here. Photograph: Nicolas Nadjar

Judgments obtained in the UK could become unenforceable in some EU member states and more difficult and more expensive to enforce here. Photograph: Nicolas Nadjar

 

Brexit creates “significant opportunities” for Irish lawyers to sell more services to the international sector, according to the Bar Council.

However it will also create significant difficulties in civil law for international businesses that operate here and in the UK as well as across the EU.

Following Brexit, Ireland will be the only English-speaking common law jurisdiction fully integrated into the European legal order, the council says in a submission prepared for the Seanad Select Committee on the UK’s withdrawal from the EU.

As matters stand the UK accounts for approximately 10 per cent of global legal services fees and 20 per cent of all European legal services fee revenue. The bulk of this occurs in London, where it was worth more than €4 billion in 2015.

Different European jurisdictions are now looking to attract this business should it leave England, and Ireland should be among those seeking to benefit, according to council chairman Paul McGarry SC.

Commercial contracts

One of the factors that underpins London’s prominent role in the legal services sector globally is parties to international commercial contracts choosing English law to govern their agreements.

Almost half of the cases that come before the Commercial Court in London involve solely non-UK litigants.

However, there is a real risk that, post-Brexit, judgments of the English courts will not be enforced in EU states as easily as they are now.

International consumers of UK legal services are now signalling that they will seek an alternative jurisdiction for the governance of commercial agreements and the resolution of disputes, according to the council.

“Brexit has created considerable uncertainty among UK legal services providers concerning their ability post-Brexit to service their clients as before given that they will no longer be in the European legal order,” according to the council submission.

Contract disputes

Already a survey for the Bar Council of England and Wales has found European clients considering moving away from using English law to govern contract disputes.

Irish lawyers could benefit if Irish rather than English law was used as the governing law of contracts, if Ireland was used as the forum for resolving disputes, and if Irish lawyers were used more for advising on European law.

The council submission also warns of difficulties in the area of civil law in the event of Brexit, and in particular a hard Brexit.

Judgments obtained in the UK could become unenforceable in some EU member states and more difficult and more expensive to enforce here. Also, judgments in Europe might be difficult to enforce in the UK.

In the case of the insolvency of multinational companies, a hard Brexit would affect the EU-wide regime that currently facilitates courts in the jurisdiction where a company’s main interests are situated, making rulings that affect the overall insolvency.

Replacements

In order to prevent difficulties such as those above, the council says it is in the interest of both the UK and EU to seek replacements to the agreements for the civil law rules currently in place across the European Union.

Brexit will also have consequences for citizens in such areas as immigration law, employment law, consumer law, patents, competition and tax law, according to the submission.

The council also points out that, while it was focusing in its submission on matters of civil law, the departure of the UK from the EU could also raise significant criminal law issues, citing as examples the European Arrest Warrant, co-operation in judicial and security matters, and family law matters such as jurisdiction, maintenance and child abduction.