The EU-UK Trade Cooperation Agreement (TCA) provisions on legal services are set out in Part Two, Heading One, Titles II, Chapter 7 (Legal Services).
The same chapter specifically mentions mediation, arbitration and conciliation, defining them in footnote 32 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.’
The same footnote excludes the application of Chapter 7 in two situations: when lawyers act in disputes which do not involve the application and interpretation of law, and when lawyers act as mediators, arbitrators or conciliators.
Therefore, lawyers involved in a cross-border alternative dispute resolution (ADR) in an y of the EU member states need to define their role in that process to establish which rules apply to them.
In a situation in which the lawyer acts for one of the parties providing advice on application and interpretation of law, they are subject to Chapter 7 TCA. In practice, this means they will need to check the requirements of the member state where they are providing the service in the relevant Annexes to the TCA and national legislation.
If they act for one of the parties but not providing advice on application and interpretation of law, they will have to determine in which category of service providers will they fall in the general provisions of services chapter of the TCA Article SERVIN.4.3(3) [Short-term business visitors], points (b) and (c) of Article SERVIN.4.4(1) [Contractual service suppliers and independent professionals], or even Article SERVIN.4.2(1) [Intra-corporate transferees and business visitors for establishment purposes].
If they act as mediator, arbitrator or conciliator, they will have to determine in which category they will fall as above, but also consider the general rules which apply to international arbitration and the terms of the arbitration clause in the contract, or specific national rules applying to mediators in member states.