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Irish law poised for crucial role post-Brexit says Clarke

Ireland will be the leading dispute resolution venue in international litigation post-Brexit, the Chief Justice has predicted.

Because the ordinary language of the Irish courts will continue to be English and Ireland will remain an EU member, the decisions of Irish courts will continue to be easily enforceable throughout the European Union, the Chief Justice said.

“Those are advantages which we have and which are not shared by any other jurisdiction.

"Ireland can provide, not least for those outside the EU in the common law world, a safe haven.

“In a time of great uncertainty I would like to think that safe haven may prove to be a significant advantage,” he said.

Speaking at a seminar at Fordham University in New York on 12 September, Frank Clarke said that as the main common law jurisdiction remaining within the European Union, huge opportunities present themselves for the Irish legal system, including its courts and arbitral tribunals.

Uncertainty

The Chief Justice pointed to the “extraordinary level of uncertainty” about the future legal order in Europe. He said that there are two critical points in time. 

“The first is the expiry of the Article 50 notice in March of next year which might lead to a fairly chaotic departure from the EU in the absence of a withdrawal agreement.

“The second, in the event that there is a withdrawal agreement, will likely arise on 31 December 2020 when the future relations between the EU and the UK will be the subject of further arrangements as yet unnegotiated,” the Chief Justice.

Chief Justice Clarke offered his opinion that the Irish examinership model “would provide at least as an effective means of dealing with cross-European insolvency as the UK administration system has to date”.  

Britain has a key role in international insolvency litigation using  corporate recovery models of administration and schemes of arrangement.

This success stemmed from the fact that under the Insolvency Regulation, orders made by UK courts carried throughout the European Union, the Chief Justice pointed out, adding that the playing pitch will change post-Brexit, in that the orders of UK courts will not have cross European recognition.  

Examinership

Ireland’s examinership corporate recovery model is closer to Chapter 11, the US model, than the British system of administration.

Here, the company in examinership remains under the control of its existing management during an examinership but, unlike Chapter 11, the scheme for recovery is prepared by a fiduciary rather than by the company itself.  

The Chief Justice also pointed out that increasingly Ireland is being asked to nominate senior judges to many EU legal bodies.  

The Attorney General has acknowledged that it may be necessary for Ireland to intervene in many more cases before the European Court of Justice where there is a particular common law interest at stake.