Disputes and the EU: Patching it up

The lack of youth mobility schemes, loss of mutual recognition of professional qualifications, and disappearance of short-term business mobility are well-documented Brexit impacts on the UK legal profession. Yet nearly 10 years on from the UK’s EU membership referendum, many firms have found workarounds or successfully refocused their practices. 

Firms with strong competition practices, such as Hogan Lovells and Ashurst, opened Dublin offices in the aftermath of the withdrawal agreement in 2021, providing a European base closely aligned to the UK and a springboard for dual-qualified lawyers to advise on EU law (see boxout). 

No less busy

‘The dust has settled, and most firms have realised that even if they don’t have EU-based colleagues they do not need large numbers of EU-qualified lawyers in the UK to still manage pan-European issues effectively,’ says Jonathan Branton, head of EU/competition at DWF, who is dual-qualified in Ireland. ‘In the competition field we are certainly no less busy than before Brexit, if not more so, albeit the nature of that work is more UK law-centric than it once was for obvious reasons.’ 

The UK is the largest legal services market in Europe, and second only to the US globally. Europe remains the biggest export market for UK legal services, accounting for a significant portion of the UK’s £7.6bn net exports of legal services in 2023.

‘English law is still first choice in business contracts, and the UK has maintained its reputation as a robust and fair jurisdiction for litigating cross-border disputes,’ says Heidi Walsh, an international arbitration partner at London firm Howard Kennedy, who is dual-qualified and started her career in her native Austria. ‘The legal infrastructure and quality of the judges, even at a junior level, is impressive.’ 

Brexit has not eroded the enduring confidence in London as a hub for both commercial arbitration and investment arbitration. The London Court of International Arbitration’s recently released Casework Report indicates that the total number of cases remained consistent in 2024, falling slightly from 377 to 362. London was the seat in nearly 89% of LCIA arbitrations in 2024 and English law was the governing law in 78%.

The European Court of Justice cases of Achmea (C 284/16), Komstroy (C-741/19) and PL Holdings (C 109/20) made waves in the international arbitration world, ruling that intra-EU treaties and intra-EU investment treaty claims are incompatible with EU law. Permissible as a matter of international law, there is a trend for arbitrators to accept jurisdiction over such claims nonetheless. 

James Rogers, international arbitration partner at Jenner & Block, explains the significance for the UK: ‘We are seeing a lot of cases in the EU courts concerning the enforcement of intra-EU awards in cases brought by EU investors against EU member states. If the UK was still in the EU, the English courts would also have to follow the EU case law derived from Achmea etc and would have to refuse to enforce those awards. The withdrawal from the EU has therefore opened up this seam of work for English lawyers and the English courts. Combined with an uptick in Russia-related cases following the invasion of Ukraine, there is a lot of high-profile arbitration-related activity in the English courts.’

The number of large-scale commercial disputes has diminished, however. The Courts and Tribunals Judiciary’s Commercial Court Report for 2023/2024 stated that the Commercial Court issued 743 new claims in 2024, a decrease from 885 in 2022/2023. 

It would be misleading to place full responsibility for this decline at Brexit’s door. Litigation funding dropped after the Supreme Court’s 2023 ruling in PACCAR Inc v Road Haulage Association, which found that litigation funding agreements (LFAs) are damage-based agreements (DBAs), made many pre-existing and some current LFAs unenforceable, and forced funders to review their arrangements. The growing popularity of using alternative dispute resolution (ADR), such as mediation, and arbitration in place of court is also a factor in the decline in cases. 

Enforcement is a problem

Yet it is a hard fact that having UK judgments recognised and enforced in the EU has become harder since Brexit, as the UK is no longer able to use the Brussels I Recast Regulation for enforcement and was excluded from the Lugano Convention. Instead, using a patchwork of national enforcement options, such as bilateral treaties and common law, is the only way forward – although this is far from straightforward. 

Lawyers have therefore welcomed the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters 2019. When it came into force in July 2025, it introduced reciprocal recognition and enforcement of judgments between the UK and other contracting states, including the EU (with the exception of Denmark). 

Simona Peter, a London-based dispute resolution partner at Bird and Bird, says: ‘Although the convention helps fill the gap, it does not offer automatic recognition and enforcement of judgments, as was the position before Brexit. Instead it is reciprocal enforcement. It also does not apply to proceedings issued prior to 1 July 2025, for which parties must pursue alternative avenues of enforcement.’

UK lawyers have already adapted to the uncertainty of enforcement in the EU at contract drafting stage, often choosing to build in dispute resolution mechanisms focused on arbitration rather than litigation. 

Naomi Pryde is head of litigation and regulatory at DLA Piper, Scotland. She is also global co-chair of space exploration and innovation at the firm, qualified in all UK jurisdictions and Ireland. ‘Contract structures are maturing,’ she says. ‘After Covid-19 and Brexit, many businesses have “baked in” more robust dispute resolution clauses, stepped processes, and clearer obligations, which prevent disputes from arising in the first place.’ 

It is not just the UK in which clients are more reluctant to bring claims. Pryde reports that cross-border litigation in the EU has become legally and logistically more complex in areas such as enforcement, data transfer restrictions or services, which discourages marginal claims. 

‘Post-Brexit jurisdictional uncertainty has pushed parties to either shift to arbitration, if their budget allows, or simply avoid the dispute altogether via seeking a settlement,’ she says. 

Macroeconomic uncertainty after pandemic lockdowns and restrictions included inflation, interest rate rises and recession fears, making clients cautious about launching expensive litigation. Lawyers report that clients are slower to initiate proceedings, more inclined to settle early and reluctant to pursue litigation unless the return-on-investment is clear. 

‘External legal spend is being heavily scrutinised, and corporates are prioritising cost control over aggressive litigation strategies,’ says Pryde. ‘Boards are increasingly risk-adverse, and there is a strategic shift from “rights enforcement” to “reputational preservation”, especially in sectors facing ESG or regulatory scrutiny.’

Junior lawyers lose 

Partners at a comfortable stage of their careers are the least affected by post-Brexit changes, except for fewer trips to Brussels for competition and anti-trust teams. Junior lawyers have been the biggest losers. 

While opportunities for secondments in Europe still exist, particularly for firms with strong EU footprints in Paris, Madrid, Brussels or Frankfurt, these now require greater administrative and regulatory planning. The length of time it takes to get a visa, work permit or local bar compliance can be burdensome, and compares poorly to pre-Brexit freedom of movement. 

For the International Division at the Law Society, establishing a youth mobility scheme accessible to lawyers under 35 is a top priority. 

‘We are pushing for a youth mobility scheme that allows junior lawyers to 

gain valuable experience of up to three years working in the EU,’ says Marco Cillario, international policy manager at the Law Society. ‘At the moment assignments in the EU are complicated and time-consuming to arrange – difficult when training contract seats can be assigned at short notice. Junior lawyers are missing out on the opportunity for valuable experience and network-building at a crucial stage in their careers.’ 

This perspective ties in with Pryde’s experience. ‘I’ve hosted German secondees here and vice versa and the visa requirements were very strict,’ she says. ‘Here, the German visas didn’t allow the secondees to do any UK work whatsoever, which I felt was a missed opportunity.

‘Firms now need to justify and structure EU placements more carefully, with a trend toward remote or hybrid international collaboration emerging as an alternative.’

Pryde stresses that junior lawyers need to take a greater role in shaping their own opportunities, including being proactive in trying to arrange secondments themselves. ‘There is an increasing expectation that they take ownership of developing an international profile, such as language skills, cross-border familiarity and client exposure,’ she says. 

'England and Wales are very much open for business to European lawyers. We are seeking to make this arrangement as reciprocal as possible'

Marco Cillario, Law Society

Currently, England and Wales-qualified lawyers must qualify from scratch if they want to practise the host law in a European jurisdiction, rather than their qualification being automatically recognised by EU member states, as happened before Brexit. The exceptions are France and Italy, where UK lawyers can requalify by sitting a local bar exam, and Ireland, where English solicitors can apply directly for admission to the local legal profession. 

In Switzerland, a UK-Swiss agreement brokered in 2023 for the recognition of professional qualifications means that UK lawyers can re-qualify after three years of registration and practice in Switzerland without having to complete a Swiss law degree or sit an exam. The Law Society also negotiated a commitment from the Italian National Bar in July to introduce the foreign legal consultant status, enabling UK lawyers to register with Italy’s bar associations and form partnerships with Italian firms. 

Although the Trade and Cooperation Agreement (TCA) allows England and Wales-qualified lawyers to practise English and public international law in the EU, significant restrictions to practising and partnering with native firms remain in certain EU member states, such as Greece. Here legislation to implement the TCA provisions allowing England and Wales-qualified lawyers to practise was only passed in August 2024, and is not yet fully in place.

England and Wales remain open jurisdictions to EU and foreign lawyers, who can provide legal services and establish practices, except for those activities reserved to England and Wales-qualified lawyers. The latter includes rights of audience, claims management, financial services and immigration work.

‘England and Wales are very much open for business to European lawyers,’ says Cillario. ‘We are seeking to make this arrangement as reciprocal as possible. We are also seeking improvements to the ability of lawyers to work temporarily in the EU, by pushing for a youth mobility scheme, more business-friendly mobility arrangements, and improvements to the mutual recognition of professional qualifications.’ 

The mutual recognition of professional qualifications is an area to watch. It was explicitly mentioned in Labour’s election manifesto as a commitment. 

Saved by arbitration? 

Arbitration is a popular qualification route. While this cannot be directly attributed to the post-Brexit shake up of cross-border disputes enforcement, or lack of secondment opportunities, it has advantages that other practice areas lack. For one, it offers global exposure, especially via institutions like the International Chamber of Commerce (ICC), London Court of International Arbitration (LCIA), Stockholm Chamber of Commerce (SCC), and the International Centre for Settlement of Investment Disputes (ICSID). 

‘Arbitration offers a “Brexit-proof” route for cross-border practice, with flexibility on seat, law and enforcement via the New York Convention,’ says Pryde. 

With the business outlook resolutely global and innovative market sectors utilising artificial intelligence and technology in ways difficult for outsiders to understand, arbitration is often chosen as the preferred forum for the resolution of disputes in these emergent industries. 

‘In my role as global co-chair of space exploration and innovation, arbitration is the preferred forum for the resolution of space disputes, due to the fact you can appoint a subject matter expert as your decision-maker,’ says Pryde. ‘Other factors are the flexibility and speed of the process, the confidentiality and the international enforcement.’

Arbitration, where affordable, is attractive to clients for its confidentiality and ease of enforcement. It is also appealing to junior lawyers seeking to practise law on the global stage, with the whiff of glamour that used to be attached to a training seat in Milan or Paris. 

There are workarounds to the restrictions ushered in by Brexit. In a sense, law firms are now doing what they have always done for clients, identifying solutions to the challenge of a conflict of laws. But when this is achieved for clients, it comes at a cost. 

Katharine Freeland is a freelance journalist