A “vast amount” of complex and lucrative international commercial work could be lost by UK lawyers if they are denied access to the EU legal services market as a result of Brexit, the Bar Council has warned.
The barristers’ body said that although some lawyers would “doubtless be in high demand in the short term for new, Brexit-related work”, in the longer term the level of uncertainty was high.
“Major international clients are sophisticated litigators, and are choosing to bring cases in the UK rather than in other member states because of the critical mass of experience and expertise of UK lawyers, as well as litigation advantages of the UK courts (such as the disclosure rules).
“A vast amount of this work will be lost if UK lawyers lose access to the EU market for legal services.
“This will in turn reduce the attractiveness of London to (for example) top US law firms who currently establish offices in the UK and use these as their passport into the EU legal market by instructing or employing barristers.”
In a paper on access to the EU legal services market, one of a series produced by a working party led by Hugh Mercer QC, the Bar Council said that outside Brussels, London had the “highest concentration of lawyers with specialist EU law knowledge and experience anywhere in the world”.
The Bar Council – which said it produced the papers to help ministers and civil servants pin point the most pressing legal concerns arising from the UK’s withdrawal from the EU – said these lawyers were in demand “not just for domestically focused EU law”, but also for work on behalf of “EU and third-country clients”, including in the courts of other member states, European Commission investigations, and European Court of Justice proceedings.
“Barristers also advise and represent clients across the EU in commercial proceedings under the Services Directive, for example where an international contract has an English choice of law clause, and in arbitrations conducted in English.
“Barristers act as arbitrators in numerous EU member states, an activity which in the absence of EU-equivalent guarantees could not be guaranteed to continue in any member state which classed it as the supply of a legal service.
“Advisory and advocacy work across the EU in the areas of private and public international law, and in fields such as international financial services and wealth management, is also dependent on the cross-border rights that the legal profession currently enjoys.”
The Bar Council went on: “All these streams of business rely on UK legal professional qualifications being recognised in other member states and in the European courts.
“These are high-profile and lucrative activities. In EU competition proceedings alone, multinational clients who have been represented by the Bar in recent years (including some major ongoing proceedings) include Microsoft, Google, Apple, Samsung, Ryanair and AstraZeneca.”
The Bar Council added that any post-Brexit arrangement should at the very least preserve the rights of UK lawyers to represent clients in the domestic courts of EU member states under the Services Directive and acquire the domestic legal titles of EU states under the Lawyers Establishment Directive.
It should also ensure that lawyers entitled to practise before UK courts can represent parties before the European court, that UK lawyers enjoyed the same rights to legal privilege under EU law as lawyers of EU member states, and maintain freedom of movement for immigration purposes.
In other papers, the Bar Council called on the government to ensure that English jurisdiction clauses were respected and judgments enforced in the EU; protect the position of UK lawyers to appear in EU arbitrations; ensure there were transitional provisions, at the very least, in place for insolvency cases, and protect the UK as a forum of choice for intellectual property matters.
In her foreword to the papers, Chantal-Aimée Doerries QC, chairman of the Bar Council, commented: “The Bar Council did not take a position on leaving or remaining in the EU.
“As the representative body for the Bar we are doing what can to identify the key legal issues which we believe need to be addressed by the executive and the legislature in order to facilitate a transition that minimises the risk of legal uncertainty, the loss of rights, and possible adverse consequences to the national economy, and capitalises on the opportunities for post-Brexit global Britain.
“It is clear that there is a great deal of work to be done. These papers indicate the scale of the task that lies ahead.”