Legal services in the Brexit free trade agreement

Overview

The provisions relevant to legal services are included in:

• Part Two, Heading One, Title II – services and investment
• Part Two, Heading One, Title III – digital trade
• Annexes 1 to 5 to Title II of Part Two, which list non-conforming measures and restrictions (i.e. continuing restrictions)
• Annex 6 to Title II of Part Two – the requirements for recognition of qualifications

The specific provisions on legal services are included in Chapter 5, Section 7 (alongside several other services sectors).

These have to be read together with the provisions mentioned above, particularly the non-conforming measures at each member state level.

Highlights for legal services

The chapter on legal services includes the following provisions.

• Legal services covered by the agreement include advice on home country and public international law, as well as arbitration, conciliation and mediation. The agreement excludes representation, legal advisory and legal authorisation, documentation and certification services supplied by legal professionals entrusted with public functions in the administration of justice, and services supplied by bailiffs
• UK lawyers (including solicitors of England and Wales) are in principle allowed to supply legal services in EU member states using their home title in relation to home jurisdiction law and public international law
• EU member states can set registration requirements in their territory as a condition for UK lawyers to supply legal services. However, the registration process should not:
  • (i) be less favourable than those which apply to lawyers from third countries in relation to third country law or public international law
  • (ii) amount to or be equivalent to any requirement to requalify into or be admitted to the legal profession of the host jurisdiction
• EU member states should allow UK lawyers to establish a branch in their territory through which the UK lawyers deliver legal services, subject to conditions set out in the investment liberalisation chapter of the FTA. This shall be without prejudice to requirements that a certain percentage of the shareholders, owners, partners or directors of a legal person be qualified or practise a certain profession such as lawyers or accountants

However, only a close analysis of the non-conforming measures contained in Annexes 1 to 5 to Title II of Part Two (existing measures) can provide a clear and accurate picture of the actual commitments taken at member state level.

These measures can cancel or limit the general principle of home title practice for a given member state and may include restrictions on joint practice with local lawyers.

Main differences from the General Agreement on Trade in Services

Compared to the General Agreement on Trade in Services (GATS), which would apply in case of a failure to negotiate a new agreement, the EU-UK agreement has several positive aspects for the legal services sector.

First, as is the case in other recent EU FTAs, under movement of natural persons (Title II, Chapter 4) the agreement covers several categories of personnel that are not included in GATS:

• independent professionals
• short-term business visitors
• graduate trainees (under intra-corporate transferees – ICTs)

Mobility provisions are an important aspect of the new relationship with the EU.

They are subject to their own non-confirming measures in Annexes 1 to 5 to Title II of Part Two and will need to be analysed closely.

Secondly, and this is a new element, the agreement clearly defines lawyers and legal services covered by the agreement (in the main body of the text) which provides greater clarity as to the scope of obligations included.

Thirdly, the annexes covering reservations and exceptions to the rules of the agreement are organised according to the definition of legal services included in the text (and thus differently from the existing EU FTAs).

This, again, provides more clarity and transparency as to the obligations and continuing restrictions that apply to the legal sector.

Non-conforming measures

In the case of the UK (for EU lawyers in the UK), the general reservations (Annexes 1 to 5 to Title II of Part Two) are:

• to provide certain legal services, it may be necessary to obtain authorisation or a licence from a competent authority, or to comply with registration requirements, to the extent that the requirements for obtaining authorisation or a licence, or registration, are non-discriminatory and conform with commitments set out above under Highlights for legal services in the second bullet point
• these restrictions may include:
  • a requirement to have obtained specified qualifications
  • having completed a recognised period of training, or requiring upon membership an office or a post address within the competent authority’s jurisdiction
  • a requirement for residency – this may be required by the relevant professional or regulatory body for the provision of certain UK domestic legal services in relation to immigration

These non-conforming measures do not impact on the general openness of England and Wales (or the UK) to foreign lawyers.

Their listing was deemed necessary to take into account reserved activities and some registration requirements; for example, under the SRA Registered Foreign Lawyers (RFL) regime.