While the COVID-19 pandemic has undoubtedly taken centre stage around the world over the past few months, in the UK, Brexit is still very much going ahead, whether businesses are truly prepared or not.
According to the British Chamber of Commerce, only half of UK ﬁrms with international trade links have considered the impact Brexit will have on their business.
But while some businesses may be in denial, the Law Society of England and Wales says the UK’s strong relationship with the Asia-Paciﬁc will “only be strengthened as the UK leaves the EU” through more targeted relationships and economic ties.
Mickaël Laurans, head of international at the Law Society of England and Wales, says that following Brexit, the UK will be establishing its own international trade policy.
The UK has sought continuity agreements with countries with which the EU has existing trade agreements – including South Korea, which inked an agreement with the UK last year, much to the relief of UK-headquartered law ﬁrms operating in the market.
There are other similar discussions going on at present with other jurisdictions.
“It is likely that new trade discussions will be actively sought with all major Asian players,” Laurans says.
But the timing of Brexit – during a tense time for diplomatic relationships, does pose something of a challenge for UK foreign policy which must succeed in redeﬁning its relationship with PRC “amidst the background of deteriorating relations between the USA and China,” Laurans adds.
According to the Law Society of England & Wales, around half of the society’s estimated 9,400 overseas-based solicitors work in Asia-Pacific countries permanently. But there are other enduring links between the UK and Asia, says Laurans.
“The UK has strong historical, cultural and economic links with the region which are buttressed by the English language and the role English law plays in international commercial transactions. Asia is and will remain a priority for both the UK government and the Law Society in its international work,” he says.
While lawyers working in Asia experience different challenges dependent on which market they operate in, Laurans advises it is important to keep up-to-date, not with the politics necessarily, but with signiﬁcant substantive developments, “i.e. whether there is a trade deal and what it entails.”
For UK-headquartered ﬁrms, says Laurans, the principal impact of Brexit will be in relation to the conditions for market access in EU/EFTA countries and the provision of EU law advice.
“On market access, we are moving away from the EU lawyers’ directives, a single framework of rights and obligations applicable in 31 jurisdictions, to a patchwork of as many national regimes, each of them being different in what they allow non-EU lawyers to do,” he says, noting that some of these countries will remain very open to international law ﬁrms “but some will not”.
“UK-headquartered firms have therefore worked hard on their contingency planning subject to what countries they are established in and what their client needs are: do we need to have UK lawyers requaliﬁed in the host country professions? Do we need to restructure entities if UK LLPs are not recognized by national corporate laws? At the end of the day, it should hopefully make very little difference to the client experience, but it requires a lot of internal work and we are supporting our members there,” he adds.
While there are plenty of new challenges to manoeuvre for lawyers, Laurans does believe that it will not alter the “inherent strengths and attractiveness” of English common law as a governing law of choice for international contracts. England and Wales will also remain a jurisdiction of choice for dispute resolution – both litigation and arbitration – globally.
But, in the meantime, for UK lawyers operating in Asia, in order to minimize the potential disruptions preparation is the best option – particularly given some clients and sectors are likely to be more impacted than others.
“Both the EU and the UK government have published guidance on what businesses in different sectors need to do to prepare and lawyers can translate this into concrete actions for their clients. For lawyers based in Asia, that is likely to involve liaising with colleagues back in London and/or in EU capitals,” Laurans says.
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