Brexit will have “beneficial effect” on arbitration, Lord Chief Justice predicts

Thomas: English law a national treasure

There is a “strong case” that Brexit will have a “beneficial effect” on arbitration in England and Wales, the Lord Chief Justice has predicted.

Lord Thomas said it was “quite wrong” to suggest that Brexit made the law of the UK uncertain, and argued that it “will have no effect on London’s key strengths”.

Speaking at the National Judges College in Beijing, Lord Thomas said English contract law was the law of choice for 40% of all global corporate arbitrations, and its contract and commercial law “remains as the UK’s ‘national treasure’”.

He went on: “The British government has made clear that measures will be put in place to ensure the recognition of jurisdiction clauses and the enforcement of judgments.

“London’s Commercial Court is and will remain the ideal commercial court for litigation. It is both ‘international in outlook’ and ‘commercial in skill’. London remains and will remain to the fore as a centre of international dispute resolution.”

In a footnote to the speech earlier this month, the LCJ went further, saying of Brexit: “Far from having any adverse effect on arbitration, there is a strong case that it will have a beneficial effect”.

Lord Thomas referred to a lecture by Professor Adrian Briggs, professor of international private law at Oxford University, who argued that Brexit had a “silver lining” because London, as a centre of arbitration, would be free from the “hamstringing complications” of the Brussels Regulation on recognition and enforcement of civil judgments across the EU, and from the “taint” that the regulation was less respectful of the rights and duties of the parties than English law.

The LCJ used other footnotes to stress that the Commercial Court was now a “technology-based court, with state-of-the-art information technology” and from the end of this month, filing and court processing would move entirely online, bringing further costs savings.

On disclosure, he said there was now “very much a culture of control” in London, with parties exercising their options to limit disclosure, using technology such as predictive coding to reduce cost and with further proposals to cut costs being developed by a working party headed by Master of the Rolls Sir Terence Etherton.

Lord Thomas said the role of the Commercial Court was not simply as a forum for court-based litigation, but it must respect and uphold the right of parties to settle cases through arbitration.

“An example of the benefits of the collaborative relationship can be seen in London, where the strength of arbitral centres is a reflection of, and underpinned by, the strength of its Commercial Court and its expert legal profession.

“Parties wishing to arbitrate have immediate access to some of the most experienced international commercial arbitrators in the world, not only from the legal professions but also from specialist professional arbitrators practising in a variety of different fields.

“In 2015, 25.7% of all claims commenced in the Commercial Court were arbitration claims. This rose to 26.6% in 2016.”

The LCJ concluded with a plug for the Standing International Forum of Commercial Courts, which holds its first conference in London next month, and was his own idea.

“Its objective is to build on and develop a more systematic and common approach to the provision of dispute resolution, to keep commercial dispute resolution up to date and to see that the law and legal framework is developed in a way that supports international trade, international commerce and the international financial markets. All will benefit.”

Lord Thomas added that he was glad that judges from China would be attending the conference.


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