Legal community gives guidance on the implication of Brexit for disputes

The Law Society, the SRA and the Bar Council have submitted responses to the Justice Committee's ongoing inquiry into the implications of Brexit for the justice system.

With the High Court's landmark ruling on the need for a Parliamentary vote to trigger Article 50, that decision's appeal to the Supreme Court and the simultaneous vote by the House of Commons to back the Government's Brexit timetable, the legal discussions around Brexit are progressing at great speed.

One development that risks getting lost in the drama of the main constitutional debate is that of views recently expressed on the impact of Brexit on the justice system by the main organisations representing lawyers in England and Wales.

Preservation of position

Common to the submissions from The Law Society, The Solicitors Regulation Authority and the Bar Council is an emphasis on the need for preservation of the UK's position as the leading centre for dispute resolution.

The UK and, in particular, London benefits from a pre-eminent position for the resolution of legal disputes. Yet if the UK is to retain this position, argues the Law Society, it should either seek to remain as a party to the European institutions and instruments that it is already a party to, or it should seek to negotiate new agreements replicating those European ones.

Rights of audience

A key area of unease for both the Law Society and the SRA is the rights which the UK could lose to represent parties before EU courts. As things stand, only lawyers of member states can represent parties before EU courts. Many UK lawyers currently represent parties who will continue to be subject to EU law following the UK's withdrawal from the EU and, unless sufficient rights of audience are negotiated, UK lawyers will not be able to represent these organisations before EU courts on Brexit.

Rights of access

Further, the Law Society and the SRA raise the potential implications for all UK lawyers on their ability to provide advice across the EU. UK lawyers currently have broad rights to provide advice to clients based in other EU member states by either establishing offices in those countries or flying in and out of them to provide their services. If these or similar rights were not maintained following Brexit, UK lawyers may find it difficult to service the needs of clients based in the EU, even when advising on English law.

Rights of enforcement

The Law Society and the Bar Council also emphasise the need for the continuing enforcement of UK judgments abroad after Brexit. As part of its membership, the UK benefits from a uniform system under which judgments are recognised and enforced throughout the EU. This encourages cross-border trade and provides a continued incentive for parties to negotiate jurisdiction clauses in favour of the English courts, argues the Law Society.

If the UK failed to negotiate continued participation in the Brussels I framework, or join a similar framework such as the Lugano Convention, there is a risk that this incentive would be lost. Both the Law Society and the Bar Council cite anecdotal evidence that some foreign businesses are already discouraged from naming England and Wales as the jurisdiction of choice in commercial contracts due to concerns around recognition and enforcement of English judgments on Brexit.

Although the form and content of Brexit still remains uncertain, the submissions made by the legal community's key professional organisations provide a helpful overview of the main items providers and users of legal services would do well to look out for as the Brexit negotiations unfold.

You can view the full response of the Law Society here. the SRA here and the Bar Council here.

If you would like to give your view as part of the Justice Select Committee's inquiry, you can do so here.

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