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Still the law of choice? Future proofing UK legal services

Still the law of choice? Future proofing UK legal services

Hannah Jenkins

50 days to go until B day, and still the cliché that “the only certainty is uncertainty” prevails.

For two and a half years future proofing for Brexit has been on everyone’s agenda and lawyers have been on hand to help our clients face these challenges.

But what about the challenges faced by the legal sector?

Legal framework

Lawyers need to understand the impact of Brexit on the legal framework governing our clients’ deals and disputes.  Perhaps most significantly for many of our clients is the rule (derived from the EU Rome I and Rome II Regulations) that parties’ choice of law in contracts will be upheld by the courts of EU member states.

Happily, even in a ‘no deal’ scenario, there will be no change to the rules on which law will apply here -  meaning parties’ choice of Scots or English law will continue to be upheld by the EU27 (and vice versa). At least that is one area in which we can provide our clients with some ever-elusive Brexit certainty.

Desirability of UK law

Nevertheless, the question is whether the UK legal industry may face a commercial challenge in promoting the desirability of Scots or English law to govern cross border commercial contracts and disputes.

There have been campaigns north and south of the border to push the message that the legal systems of the UK are ideal to govern and support international business and to bolster the UK legal sector’s place on the global stage in the face of uncertainties.

The first of these is the Ministry of Justice’s “Legal Services are GREAT” campaign, launched in late 2017. The campaign focusses on the infrastructure and global expertise within the UK legal market and highlights the value to businesses of using UK (in particular English) law in their cross border commercial contracts, projects and disputes.

Burness Paull have been working with the Ministry of Justice in this campaign and have published two blogs so far on the benefits of using English law as parties’ choice of law.

Closer to home, the “Scotland is NOW” campaign has been launched as part of Scotland Development International and is aimed at attracting more inward investment into Scotland. As part of this campaign, the Scottish legal profession is working on ways to promote Scots law, Scottish courts and the profession internationally through a collaborative initiative called Scottish Legal International (SLI). 

The aim is to bring commercial gains to the sector as a whole by highlighting the significant overseas work that is already being carried out by Scottish lawyers on a daily basis. At Burness Paull over 40% of the work we do has an international element.

These campaigns are examples of the innovative partnership strategies which have been adopted by the legal sector to take on the commercial challenges posed by Brexit.

The message is clear - even after B Day, UK law, and through it access to the UK’s preeminent legal services market, should remain parties’ first choice for cross border commercial contracts and disputes.

By Hannah Jenkins

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Burness admin