Direct access to the Bar

Whether or not an overseas lawyer or other professional adviser should instruct a barrister without going through an English solicitor ('direct access') will depend on the circumstances of the particular case. Very often barristers and solicitors provide a complementary service and the client is best served by a team combining the particular expertise of both. But there are also many cases where the only services which are really needed are those of the barrister and in such cases it is both simpler and cheaper to instruct him or her directly. The competitive advantage of barristers' charges derive in part from the fact that their overhead expenses are very much lower than those of a firm of solicitors.

Overseas lawyers can directly instruct English barristers to give advice on disputes and non-contentious matters arising anywhere in the world, provided that the dispute is not already being litigated in the English courts. Barristers are now extending the situations in which advice can be given directly even into the litigation area.

More international and commercial arbitrations take place in London than in any other city in the world. Overseas lawyers can directly instruct English barristers to appear as advocates in international and commercial arbitrations in England and, subject to the rules of the local profession, throughout the EC and in several other important commercial centres around the world.

Arbitrators and Mediators

Senior Members of the Commercial Bar are frequently appointed to sit as arbitrator in commercial disputes. Any party or their professional advisers or overseas lawyers may appoint a barrister as an arbitrator. Please contact any member of COMBAR for assistance. In addition, there are organisations which appoint commercial barristers as arbitrators and mediators, such as ACI which provides an administered scheme for disputes being referred to the commercial bar (see details under 'Useful Information') and the London Court of International Arbitration (LCIA).

Mediation

Other forms of alternative dispute resolution ("ADR") or mediation are being used more and more to resolve commercial disputes. Increasing numbers of COMBAR members are now qualified, and have substantial experience, as mediators. Many others regularly act as advocates or representatives of clients in the mediation process. ACI (referred to above) provides commercial services in this sector, as does CEDR. COMBAR also has links with ADR Chambers, a provider of ADR practitioners for commercial disputes in high-value cases; ADR Chambers' panel contains a large number of COMBAR members, as does that of ACI. Details can be found under "Useful Information".

Many Queen's Counsel and other barristers have wide experience of conducting commercial arbitrations. In addition many also have direct experience in international arbitration under the International Chamber of Commerce and the London Court of International Arbitration and these barristers can be appointed to sit as international arbitrators by overseas lawyers or overseas lay clients, without the need to go through English solicitors.

There are also several important overseas centres for international trade in which, subject to the local rules of the legal profession, English barristers can acquire the right to appear in court and arbitrations, and argue cases.

If it is necessary for evidence of English Commercial Law to be given in courts and arbitrations anywhere in the world, English barristers can be instructed directly by overseas lawyers to appear before the court or arbitral tribunal and give evidence of English Law, or to write an opinion on English Law for presentation to the court or tribunal.

In a case where proceedings have already been started in the English courts and the overseas lawyer wishes to obtain the advice or advocacy services of a barrister, a solicitor must first be instructed, as it is only through a solicitor that a barrister's services can, in this instance, be obtained. Moreover, barristers do not have the administrative facilities to conduct extensive factual investigations such as interviewing witnesses of fact, and where administrative services, rather than advice, are required, such as in the incorporation of a company, the purchase of property or the administration of funds in England, solicitors should always be instructed to provide these services.