Alternative dispute resolution post-Brexit – which rules apply to litigators?

The EU-UK Trade Cooperation Agreement (TCA) provisions on legal services are set out in part two, heading one, title II, chapter 5, section 7 (see page 114).

The same section specifically mentions mediation, arbitration and conciliation, defining them as “the preparation of documents to be submitted to, the preparation for and appearance before, an arbitrator, conciliator or mediator in any dispute involving the application and interpretation of law” (see footnote 32).

There are exceptions to the application of section 7. These apply in two situations, when lawyers act:

1. in disputes which do not involve the application and interpretation of law, and
2. as mediators, arbitrators or conciliators.

Therefore, lawyers involved in cross-border ADR in any of the EU member states must define their role in that process to establish which rules apply to them.

Acting for one of the parties

In a situation in which you act for one of the parties, providing advice on application and interpretation of law, you are subject to section 7 of the TCA. In practice, this means you need to check the requirements of the member state where you are providing the service in the relevant annexes to the TCA and national legislation.

If you act for one of the parties but are not providing advice on application and interpretation of law, you need to determine which category of service providers you fall under. Check pages 90 to 91 (chapter 4) on:

• short-term business visitors (SERVIN.4.3(3))
• contractual service suppliers and independent professionals (points (b) and (c) of SERVIN.4.4(1)), or even
• intra-corporate transferees and business visitors for establishment purposes (SERVIN.4.2(1)).

Acting as a mediator

If you act as mediator, arbitrator or conciliator, you will have to determine which category you fall under, as above, but also consider:

• the general rules which apply to international arbitration
• the terms of the arbitration clause in the contract, or
• specific national rules applying to mediators in member states.