Friday 20 September 2019

Judge warns of 'isolation' of our legal system in EU

Following Brexit, Ireland will be the largest common law jurisdiction in the EU. Stock photo
Following Brexit, Ireland will be the largest common law jurisdiction in the EU. Stock photo
Shane Phelan

Shane Phelan

Ireland's system of law could potentially be marginalised within the EU as a result of Brexit, a senior Irish judge has warned.

Advocate General to the Court of Justice of the EU, Gerard Hogan, said the UK would no longer be around to block potentially far-reaching legal developments that would have an impact on the manner in which laws are applied in Ireland.

Following Brexit, Ireland will be the largest common law jurisdiction in the EU.

Under this system, past legal precedents and judicial rulings are of importance in deciding cases.

However, the vast majority of EU member states favour a civil law tradition, using codified statutes.

Speaking at the Law Reform Commission's annual conference in Dublin, Advocate General Hogan said there was a danger of Ireland being "swamped" by other EU states.

"We have got to face facts. There will be the de facto isolation of Ireland and to some extent Cyprus and Malta insofar as the common law is concerned," he said.

Citing the example of the UK's blocking of European Commission proposals for a common European sales law, Mr Hogan queried whether Ireland would be in a position to wield the same power.

However, Professor Federico Fabbrini, director of the DCU Brexit Institute, told the conference the UK's departure from the EU could actually improve Ireland's standing.

"To a large extent, there is little reason to fear that Brexit will fundamentally change the EU legal order," he argued.

Prof Fabbrini said Ireland tended to punch above its weight and was "really influential in the development of EU law, considering its size".

Barrister Patrick Leonard SC told the conference the loss of UK support in relation to EU legislation would be a challenge. But he said there was a need to embrace the opportunities that Brexit presents for the legal services industry in Ireland. He outlined proposals aimed at attracting to Ireland international legal dispute resolution work currently conducted in London.

Law Society director general Ken Murphy said Ireland needed to position itself to capitalise should such business leave London.

"People put choice of law and choice of forum clauses in international legal agreements for London and English law for many reasons," he said.

"A lot of it is to do with the stature of the courts in London and the depth and the reputation they have for quality and for independence. How much of that changes after Brexit, we will have to wait and see.

"There may be issues to do with enforceability of [English] judgments but maybe not."

Irish Independent

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