Going to bat
The Business Law Committee regularly ‘goes to bat’ for legal practitioners who identify legislation that isn’t working for practical reasons. Its consultations with Government departments, the Central Bank, and the CCBE are key to the work it does on behalf of fellow solicitors. Mary Hallissey is on a sticky wicket
The Law Society’s Business Law Committee has a very broad-ranging remit, explains chair Eleanor Daly.
“We cover the whole gamut of corporate and commercial law – so company law, commercial, regulatory, financial services, insolvency. It’s a broad church in terms of its scope,” says Eleanor, who works as director and associate general counsel with Meta in Dublin.
The committee comprises a mix of practitioners – in-house solicitors (such as Eleanor herself), large private-practice firms, and a regional mix, as well as boutique firms, such as that run by incoming chair Philip Andrews SC, who runs Andrews Law, which advises on competition and foreign-investment transactions, investigations, and reviews.
“One of the things I really like about the committee is the variety of legal perspectives,” Eleanor says of the committee on which she has served since 2008.
“When an issue comes up, you tend to get several different people voicing their experiences, often informed by the perspective of their client base. I enjoy the fact that we get a good mix of voices around the table.”
This adds value to the development of legislation, as the committee gets to hear so many legal experts and perspectives.
The committee has, as its primary purpose, monitoring and advising the members of the Law Society on best practice in business-law matters. To this end, the committee regularly contributes to consultations and makes submissions on new or changing areas of business law.
The committee also issues guidance on practice issues as they arise for business lawyers.
Practical issues
Recent matters have included engagement, led by Philip, with the Central Bank on the .
“It’s often about practical issues that arise with the implementation of law by regulatory agencies,” Eleanor explains.
Where lawyers identify well-meaning legislation that isn’t working for practical reasons, the committee goes to bat.
“We respond to consultations on legislation very regularly – that’s one of the most important pieces of work that we do,” says Eleanor.
“The Law Society is often asked to comment on legislation with a corporate or commercial impact, and it’s the Business Law Committee that responds, with the benefit of its many years of combined legal experience in terms of technical expertise, and its assessment of the practical implications.”
The committee also receives practitioner queries, often from those who don’t engage regularly with corporate or commercial law: “We give direction on a one-on-one basis, perhaps to recommend a precedent, or give them a steer,” Eleanor says.
This collegiate environment, offering help and support, is one of the attractions of the committee’s work, she adds.
“We do the annual Business Law Conference, where we flesh out key issues that might be coming down the road,” Philip points out.
Last year, the Corporate Sustainability Reporting Directive (CSRD) was explored – a huge regulatory change that is, however, currently on pause.
Burdensome business?
Is regulation burdensome to business lawyers?
“There is certainly a proliferation of legislation,” answers Eleanor.
“We are well placed to support the profession in terms of how it might respond to that. The Law Society needs to support its members in terms of their awareness and preparedness for the impact of new legislation on their clients. Europe is producing a lot of legislation, at speed.”
Philip adds: “Certainly, there has been a growth in regulation, but the Government also appears conscious of the interplay between regulation and growth. The agenda for Government is growth-based, and that reflects what’s happening around the world.
“Britain is certainly trying to ease the burden of regulation and reduce red tape to favour investment and growth. That’s very much the case in the US as well,” he adds.
“The CSRD is an excellent example of that, post the Draghi report [on EU competitiveness]. There’s a change in relation to that.
“We have new regulations all the time. We have the foreign direct-investment legislation that is regulating M&A transactions in Ireland, and that’s something that the committee has been active on, by engaging with the relevant Government department in relation to how it works, to ensure that it doesn’t disproportionately impede on investment and growth in Ireland.
“And the department has been very responsive to that. It’s one of the things the committee does quite well. Rather than representing one segment, we are a mix of people, and we can advocate for the general business-lawyer interest.”
Through this work, the committee is advocating for business in Ireland and that the right policy and regulatory conditions are in place to enable investment and innovation.
Specialist approach
There are examples of where the scale of new legislation has required a more specialist approach, the consequence of which has been the creation of a dedicated Law Society Intellectual Property and Data Protection Committee.
Data protection originally sat within the Business Law Committee, but has now been spun out.
Eleanor points to the committee’s advocacy during the pandemic for a standard approach to the use of e-signatures, which had a significant impact and gave practising lawyers here a degree of certainty.
“We followed up on that, post-COVID, with a submission to the Department of the Environment, Climate and Communications, as it was then. There are still issues to be resolved with the implementation of a piece of legislation called [‘electronic Identification, Authentication and trust Services’], and how it interplays with the , and there is an opportunity to revisit this issue in the context of eIDAS 2.
“That’s an ongoing issue that commercial practitioners face, and that is the type of pro-business engagement and submission that the Law Society and the Business Law Committee are well placed to engage in.
“And it’s very much necessary for Ireland, if it is to continue to be an open economy where business can be done efficiently. You need a clear legal footing for the use of e-signatures,” she adds.
“The practitioners around the table have good, practical experience and knowledge of the issues we might face in that respect.”
Business friendly
The committee works to ensure that European legislation that is being transposed into Irish law is implemented in a way that is business-friendly and aligned to existing domestic law.
Philip adds that the voluntary commitment of the committee brings with it invaluable practical experience on the implementation of legislation and its day-to-day impact, and how business can thrive in this country.
Philip’s own practice includes EU and Irish merger control, and he understands how guideline changes can affect the wider business community.
“I think it’s important that there is a business-law voice out there that can feed real-world expertise – based on practical knowledge, skill and experience – into Government from a variety of technical legal perspectives, rather than lobbying from a particular client base,” he says.
The committee’s annual report for 2024 details its response to several specific pieces of legislation over the last 12 months.
It meets every six weeks for approximately two hours and tries to gather in person at least three times a year, which is better for community and collaboration, though there are always hybrid-attendance offerings.
“People will share their experiences more openly in an in-person forum,” Eleanor says.
“Hybrid is brilliant, of course, and the move to virtual business that happened so seamlessly during COVID would have been unthinkable previously.”
Hybrid meetings also facilitate greater regional participation, Philip points out.
Differing opinions
Where there are differing opinions, a subcommittee will form to tease out the issue. The committee also has a role in contributing an Irish ‘common-law voice’ to the development of legislation at a European level.
The Council of Bars and Law Societies of Europe (CCBE) is also working on the , and a Business Law Committee member is actively involved in supporting that from an Irish perspective.
The regime aims to simplify operations for innovative companies by providing a single set of harmonised corporate rules across all member states.
“If we can help to influence the direction of European legislation through the Law Society, that has the potential to be very impactful – this is where the ‘common-law voice’ is incredibly important,” Eleanor says.
“In the absence of representation from the Law Society of Ireland, discussions could be led from a civil-law perspective, with concepts that can feel very foreign when we are trying to implement them at a domestic level [in our common-law jurisdiction].”
Given the scale of legislation and policy direction coming from Europe, it is critical that Ireland’s legal sector has a voice at the table.
“Being in the room when the legislation is being ideated is incredibly important, and the role of the Law Society is very important there. For any in-house lawyer, either in a domestic or multinational company, we need legislation that is clearly understood, can be translated globally, and is business friendly.”
Geopolitical competition
Philip points out that Britain is moving very quickly to stimulate growth, with independent regulators recently summoned to explain how they are promoting it.
“There is geopolitical competition for investment, and it’s very high on a lot of countries’ agendas,” he says.
Eleanor adds that supporting the Irish legal and regulatory system and, by extension, the Irish economy, is dependent on ensuring a pipeline of highly educated and experienced legal professionals, with well-honed skills.
The Law Society’s role in ensuring that lawyers are well trained and continue to have access to high-quality continuing legal education is crucial for the continued success of the profession and the businesses they serve, particularly in the key spheres of technology, life sciences, and financial services, Eleanor argues.
“We need to have highly trained and experienced professionals to service the wide variety of legal work that is currently conducted in Ireland. It’s a very competitive global market for legal services, and the Law Society has a key role, both in terms of education of solicitors and, longer term, by supporting practitioners as they progress through their careers.”
She continues: “There is a reason why we give of our time freely to support the profession, because we believe that there is a value in the profession and in supporting our colleagues.
“I’ve really benefited from the mentorship I’ve experienced on the committee. I was privileged to have had the opportunity to represent the Law Society on the Department of Enterprise Company Law Review Group – that was a very rewarding experience, and I really enjoyed it.
“That sense of community is incredibly important to me. The work I have done on the committee is my contribution to the profession, both in terms of the technical analysis of legislation and in giving my perspective as an in-house practitioner,” she concludes.
Mary Hallissey is a journalist at the Law Society Gazette.
More information on the Business Law Committee is available on the Law Society website.