The courts in New York rather than those in Dublin or elsewhere in the EU may be the principal beneficiaries of legal services activity leaving London in the wake of Brexit.
This is the widely held view within international legal and business circles, according to a document produced by the Bar Council and the Law Society which contains proposals for how the legal services sector should respond to Brexit.
The document, Promoting Ireland as a Leading Centre Globally for International Legal Services, calls for a series of actions including appointing more judges, greater use of technology by the courts, and more specialist courts, in order to compete for potential new business.
A state-of-the-art, internationally focused court dealing exclusively with patents, intellectual property and technology issues is one of the specific proposals made.
The document points out that, until now, the UK played a strong role in influencing EU legislative policy from a common law perspective. Post-Brexit “it will likely fall to Ireland’s legal profession and governmental representatives to play a more active role in ensuring that EU legislation and other polices develop in a manner conducive to Ireland’s economic interests”.
Specialist expertise
Developing greater specialist expertise among Irish lawyers and judges, the document says, has significant potential to enhance Ireland’s foreign direct investment offering in key sectors.
Changes to the law or the legal system directed towards the needs of international aviation, greater investment in data protection and regulation, and introducing limited liability partnerships for lawyers, are among the other ideas put forward.
The document notes that in the absence of the UK as an EU member state, Ireland will have to take the lead in ensuring that future EU measures do not unnecessarily diverge from the common law system, particularly in ways that might make Ireland, or the EU, less business-friendly.
In this regard, there is a need for further developing Irish legal education with a particular emphasis on EU law and specialist legal issues in growth industry areas.
“The Irish Government and State agencies should lead the way in promoting the use of Irish law and Irish legal services in contracts and business transactions generally,” the document says.
Significant challenges
The challenges facing Ireland are significant as it is a small country rather than a major player on the world stage and many global industries will incline towards jurisdictions they perceive to be more substantial and sophisticated.
However, the recent announcement by the International Swaps and Derivatives Association that Irish law will henceforth be the option for parties to its derivatives documentation, “shows that Irish law can be an attractive option for complex financial transactions post-Brexit, particularly where the preference is to choose the law of an EU member state and a common law system”.
In asking the Government formally endorse the proposals and establish a body to push for their implementation, the document says competing jurisdictions will certainly point to the need for significant investment in the Irish legal system: “Time is of the essence.”
