Author: Andrew Mizner
In January this year, the German Federal Ministry of Justice announced plans to establish specialist commercial courts for high-value disputes, that could conduct proceedings in English.
Germany will join a growing number of European countries that have introduced English-language commercial courts in recent years, following France in 2018 and the Netherlands in 2019.
Meanwhile, Ireland is positioning itself as the home of English-speaking common law in post-Brexit Europe, with ministers and judges making visits abroad to promote Irish legal services.
It has not all been plain sailing for these new ventures; proposals for a Brussels International Business Court stalled in the face of political apathy, but it is surely no coincidence that European nations have begun opening English-language commercial courts following the UK’s decision to leave the European Union.
London’s lawyers have been largely unperturbed by these developments, confident in the track record of English law, the Commercial Court and those who practice there. Historically, that faith has been well placed.
But the ‘B’ word has signalled a shift in the UK’s political life. Despite reassurances from English lawyers that enforceability is unlikely to be affected in practice, membership of the Lugano and Hague Conventions has not yet materialised and would go a long way to reassuring international parties.
That need for reassurance may have been exacerbated by several years of conflict between the government and the legal sector. These battles have tended to relate to constitutional and criminal matters rather than the commercial courts, but seeing ministers and MPs repeatedly attack the judiciary and lawyers has brought into question the government’s commitment to both the rule of law and the legal profession, while negative headlines about backlogs and facilities appear with depressing regularity.
The pandemic has put a premium on up-to-date facilities and technology, both of which require investment and, although the courts have adapted, they risk looking dated in comparison with shiny new court buildings in Singapore and the Middle East; foreign parties and lawyers will be used to high-tech solutions elsewhere, while justice ministers from a multitude of different jurisdictions actively campaign for the use of their legal systems.
London’s historical strength as an arbitral seat and the home of the London International Court of Arbitration also faces competition. The Singapore International Arbitration Centre remains perhaps the great international success of the past 15 years, and since the Russian invasion of Ukraine, is reportedly picking up the Russian disputes work that used to be a staple for London lawyers.
Meanwhile, the ICC International Court of Arbitration grows bigger and more global with every passing year, while centres across the globe are launching and relaunching in the hope of picking up a share of international arbitration work.
Many of these centres will not trouble London, but on the other hand the international legal market might favour more decentralisation; in an era when there is more attention on national interests and the legacy of colonialism, it might become expedient for some parties to turn away from London to arbitral communities in their own regions.
English law has deep roots in the global legal market, so the chances of London losing its overall position are slim, but there is a danger that over time London loses some of its appeal and, without a concerted and focused effort to organise and promote the capital, there is a very real possibility of losing valuable work.
It will take a more unified approach from government, judiciary, practitioners and institutions to ensure London’s legal community maintains a seat at the top table in the face of this growing competition.
More promotion would help. LegalUK and Legal Services Are GREAT do good work, but the amount of investment heaped on to foreign competitors is considerable.
When London International Disputes Week (LIDW) arrived in 2019 it was overdue that the city had a marquee event that promoted its services, engendered a sense of community and trumpeted London’s benefits to the world. The enthusiasm shown from the start by senior legal sector figures suggests they agree and the visible government support for the upcoming edition of LIDW is a welcome sign that the government is taking notice. Hopefully it is an indication that it recognises the value of the commercial disputes sector to the country’s economy, and a corresponding investment in the courts, both financially and politically.
The city’s place in the market is not yet under threat, but in a competitive post-pandemic world, its supporters must work together to ensure that it adapts and evolves, so that it can still be at the top of the tree many years from now.
Andrew Mizner is the editor of Commercial Dispute Resolution Magazine (CDR News).