The below article was extracted from The Times Student Law Supplement on 18 October 2018
'The UK is hovering uncertainly at the most significant crossroads in modern history since the summer of 1940. For many solicitors and barristers, prospects, opportunities and aspirations will hinge on the kind of Brexit that will be crafted between now and March.
For this year’s Times Student essay competition, sponsored by One Essex Court, entrants are invited to discuss: “Brexit: A threat or an opportunity for UK lawyers and legal London?”
Whereas the UK population seems split roughly equally in its vision of life outside the EU, the evidence of legal conferences before the referendum was that “leavers” were in a minority among lawyers. Those in favour of leaving were often inspired by principled distaste of what they saw as undemocratic institutions, a corrupt bureaucracy and, in some instances, a conviction that the EU was on a doomed path that the UK should leave before it imploded. Behind that was the confidence that the strength of London as a legal centre would endure.
“Ultimately, if our regulatory system is attractive and our dispute resolution systems remain robust, there’s a good chance of companies continuing to conduct their business and their disputes here,” says Anna Boase, a barrister of One Essex Court. Ms Boase also says that there is scope for bilateral trade deals with emerging financial centres. “The EU has relatively less global significance than it did when we joined. The EU has a history of failing to do trade deals — the collapse of a Canadian trade deal in October 2016 was a good example. In the long term, some of the loss of EU business might be made up by increased business from elsewhere, which will be to the advantage of UK lawyers.”
Benefits may arise if a future government were, as Ms Boase puts it, “to tailor-make the rules to fit our markets and our problems, simplifying regulation and compliance to increase competitiveness”. This could give a boost to the amount of contractual work and disputes going through the City.
What about the short term? Law firms could be feasting on Brexit-related work. “If there is a Brexit deal with continuity, then there might be little change,” Ms Boase says. “But if there is chaos, then litigation will boom.”
A key issue may be “force majeure” clauses and whether they could be construed to apply in these circumstances.
After a flurry of activity, what would happen next? A Commercial Bar Association report stated: “There are many competing interest groups in the European legal community now seeking to take advantage of the present uncertainty to divert business away from the UK. There is a growing literature being published by leading European scholars indicating that Brexit may mean that English jurisdiction clauses can no longer safely be utilised and therefore (although we would suggest a little overdramatically) presaging the end of Britain’s domination of the market for international legal services.”
A key question is if the judgments of the English courts or contracts made under English law still have force around the world. If not, then the base on which London has built its reputation could crack and be swept away. According to Ms Boase, more than 80 per cent of cases in the Commercial Court involve at least one foreign party.
It is not just the process of litigating to obtain a favourable judgment that is at risk. It is also the enforceability of judgments. “English judgments are currently automatically enforceable throughout the EU. That will no longer be the case after Brexit,” Ms Boase says.
Where will Brexit leave Legal London? Your guess is as good as the lord chancelllor’s. We would like to hear it.
How to enter
The Times/One Essex Court essay competition for students is open to anyone registered at a UK educational institution. Full rules and details of how to apply are available at www.oeclaw.co.uk/times-law-award
More than £10,000 of prizes are on offer. First prize is worth £3,500, and the closing date is November 30.
The winner will be announced at a gala dinner in the spring of 2019.'
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