Barry Fletcher, Head of the Dispute Resolution Group and Head of Arbitration at LexisNexis, discusses a recently published memorandum, ‘English Law, UK Courts and UK Legal Services after Brexit: the view beyond 2019’, which was jointly authored by the judiciary, the Commercial Bar Association, the Law Society, CityUK and others.
In the immediate aftermath of the UK referendum on membership of the EU, it was notable that some figures within the international arbitration community forecast London’s decline as a leading seat of arbitration. For many practitioners, UK-based or otherwise, such predictions were, perhaps, premature, misplaced and opportunistic. As the Lord Chief Justice of England & Wales, the Rt Hon. The Lord Thomas of Cwmgiedd, stated during his Mansion House speech to Her Majesty’s Judges last week:
London will continue [post-Brexit] to be a leading arbitration centre. Our legal profession will continue to be expert and world-respected. Our judges will continue to be drawn from the highest ranks of that legal profession. They will continue to be renowned for their expertise, impartiality and integrity. All the key features that made London into the leading centre for dispute resolution will continue unchanged.’
Although it is widely acknowledged that Brexit presents challenges to ‘UK Legal’ and the UK as whole, many see significant opportunities ahead for dispute resolution and arbitration in London and the rest of the UK. However, the purpose of this post is not to discuss the potential impact of Brexit on London arbitration (information on this subject is available here) but rather to highlight the memo above.
‘English Law, UK Courts and UK Legal Services after Brexit: the view beyond 2019’ provides a reminder of some key factors to bear in mind, and also highlight, regarding the position of UK courts and legal services in a post-Brexit world. That the judiciary is committed to ensuring that the UK and London maintain their reputation for world-leading dispute resolution services is also demonstrated by another judge-led initiative, the creation of the Business & Property Courts of England & Wales (B&PCs), an intelligible umbrella term for the specialist jurisdictions of the High Court.
The B&PCs were launched in London on 4 July 2017, with LexisNexis supporting the Birmingham launch on 6 July (see our brochure for the event here) (with other launches taking place throughout July), ahead of 2 October 2017, when they formally come into effect. This spirit of modernisation is set to continue with initiatives such as the introduction of the Online Court and a clearly expressed intention to review and simplify litigation procedure, including, for example, disclosure. Beyond 2019, arbitration practitioners will also be looking to the ICCA 2020 Congress in Edinburgh, which is a fantastic opportunity to promote Scotland’s arbitration offering and UK legal.
According to the memo, the key factors which recommend the UK as a centre for dispute resolution include that:
- English Law is and will remain the gold standard
- the UK’s judges are and will remain of the highest calibre
- London will continue to provide unrivalled access to high quality legal advice, contract drafting and dispute resolution services
- the UK is and will remain a global arbitration and ADR centre
- UK judgments and arbitration awards will continue to be readily enforceable (indeed, the enforceability of arbitral awards will be unaffected by Brexit)
- the UK legal system is underpinned by the Rule of Law
As for the question, ‘Why arbitrate in London?’, the memo also provides compelling answers:
- the availability of modern facilities and services
- a neutral forum for parties of different nationalities
- modern arbitration legislation in the form of the Arbitration Act 1996 (note: arbitration has been cited as a potential candidate for attention in the UK Law Commission’s forthcoming 13th Programme of Reform—see here—demonstrating a commitment to reflect and modernize if necessary)
- supportive, knowledgeable supervisory courts, including high levels of respect for party autonomy and a generous view of arbitral jurisdiction
- home to the London Court of International Arbitration (LCIA), one of the world’s leading arbitral institutions, and the fact that many other leading institutions and arbitral organisations administer proceedings seated in London, and
- the LCIA’s Arbitration Rules, which are said to combine the best features of the civil and common law systems
To the above list, one could also add:
- London’s strength and depth in legal expertise, including counsel, arbitrators and experts, across all forms of arbitration including, but not limited to, institutional, investment and ad hoc (whether insurance, shipping, commodities, etc)
- a demonstrable commitment, through institutions such as QMUL’s School of International Arbitration, to education and leading research in the field of arbitration, and
- the UK’s commitment to the protection and celebration of human rights and diversity (whatever your gender, religion or sexuality—see, for example, the Law Society’s support for Pride 2017), matters which are often overlooked by those selecting a seat of arbitration, and in relation to which many other leading seats are unable to offer comparable protections
Although concise, the memo provides a timely reminder to UK Legal, as well as its supporters and detractors from across the globe, that we’re open for business and that the reasons why parties the world over choose English law to govern their contracts and London as their seat of arbitration continue to be as strong and as relevant as ever. As the Lord Chief Justice implies, we have much to be proud of.