European Union and international

European Union and international

Brian Kennelly QC

Blackstone Chambers

University: University of Cambridge
Undergraduate degree: Law

Barristers specialising in this area may appear before the European Court of Justice, the European Court of Human Rights, international tribunals (ICSID, ICC and LCIA), domestic courts and other international tribunals. Matters that may be under dispute include the interpretation of treaties, state responsibility, international investment law, the environment and human rights.

Although he grew up with no family or any other contacts in the law, Brian Kennelly QC nevertheless knew from an early age that he wanted to be a barrister. “When I was young I saw an old black and white film called Witness for the Prosecution starring Marlene Dietrich and Charles Laughton – I thought the Charles Laughton character was great and I basically wanted to be him,” he recalls. “Later, the self-employed nature of working as a barrister was also really attractive. I liked the idea of being independent.”

Brian moved away from his family’s home in Ireland to study law at Downing College, Cambridge, followed by a master’s in EU law at the Université libre de Bruxelles, the French language university situated in the political and administrative centre of the European Union. Emerging from academia with the impressive qualifications mandatory for a career at the Bar, Brian then completed pupillage at Blackstone Chambers, where he is now one of the set’s tenants to have been appointed the prestigious title of Queen’s Counsel.

Cartel cases

EU law – specifically, competition and sanctions law, forms the majority of Brian’s caseload. “The competition law aspect centres mostly on cartels,” he explains. “Cases I have worked on include the Vitamins cartel, the LIBOR case and the forex scandal. One way to describe this area would be white collar crime, which involves economics and commercial litigation. It is very interesting to work in because there is a public law element – for example, in cases such as those involving a breach of prohibition – and an important economics element where my job is to analyse the effect of the alleged crime on competition within the market. Finally, the fact that such cases are usually litigated in commercial damages actions means that they often lead to big commercial trials, which is fascinating and also means that advocacy can make a real difference.”

Public law cases are often shorter and are heard in the Administrative Court or the Court of Appeal: “The issues at stake in these cases are fascinating, often involving citizenship, free movement and personal rights. And of course Brexit has potential implications for all these issues – the way in which they will arise and be litigated in the future remains to be seen.”

Sanctions cases arise when people have had a travel ban imposed on them or their assets frozen by the European Union, and they want to challenge those sanctions in the European courts. “These cases are really interesting because such asset freezes are imposed as part of EU foreign policy, while the challenges rely on human rights and due process arguments, and often point to human rights violations in the countries which requested the asset freeze,” explains Brian. “Clients I’m currently acting for in that regard include the former president of Egypt, Hosni Mubarak and his family; many members of the former Ukrainian government; the head of the Russian state broadcasting agency; and other prominent individuals who have had their assets frozen by the European Union. In such cases, travel bans have usually been imposed, so I travel to clients’ home countries to meet them, find out their story and then put their case to the European court. Essentially, this is challenging EU foreign policy.”

Brian now advocates at the pinnacle of the legal system, where international politics and law are intertwined, but the personal highlight of his career involved a smaller case. “The time when I was happiest was when I first appeared as an advocate in the European Court of Justice 10 years ago,” he recalls. “In that case I was acting on behalf of Three, which was then a small mobile phone company that was being bullied by its larger competitors, so the case concerned EU telecoms law. While the point of law in question may not seem the most interesting of the cases that I have worked on, to have my first opportunity to plead in the ECJ – which is where I wanted to be and what my whole professional life had been leading up to until that point – was a real privilege and a joy.”

“The fact that such cases are usually litigated in commercial damages actions means that they often lead to big commercial trials, which is fascinating and also means that advocacy can make a real difference”

Always on the go

Advocacy is certainly the main attraction of life at the Bar in Brian’s view: “It is also the hardest part of the job, but the adrenaline rush that comes with it is what distinguishes this career from everything else.” If there is a downside, it is the relentless workload that goes into those court appearances: “You can never really stop – you don’t have a team to fall back on. You also never really get a proper break because you always have to be available, so although barristers have long holidays, it is not possible to disappear completely – with a family, that can be difficult.” 

In the near, medium and long term, Brexit is sure to have an effect on cases in this area of law. “I think it is going to make people like me very busy for a few years, but where it will leave us in 10 years’ time is a different thing altogether,” says Brian. “For the foreseeable future, I think there will be a massive spike in litigation. In the long term, the competition work won’t go away, although the EU public law cases may diminish.”

For those aspiring to join the profession themselves, Brian has the following advice: “Being realistic, you have to achieve academic success at university, which means working very hard during your studies. The next thing to do is to develop your public speaking and advocacy skills - debating or mooting. That counts for lot in a Pupillage application. Finally, you need to consider the sheer hard work that the career demands. You need to have the stamina and determination during the first few years to build up a reputation and a client base, especially if you are coming to the Bar without contacts.”

Brian also imparts one final piece of practical knowledge, learned with the clarity of hindsight, which future junior barristers can benefit from – or more likely ignore in their anxiousness to succeed: “In my early years of practice, I could have said ‘no’ more often. As a junior I never said no to any work as I was insecure and anxious to impress solicitors and clerks. I really did have no holidays at all for a few years. In retrospect, I could have taken a little less work and enjoyed some holiday, and it would have had no effect on my practice in the long run.”