Commercial courts may have to use their new right to determine issues of market importance by declaration if Brexit leads to a boom in arbitration, Lord Briggs has warned.
While agreeing with Lord Neuberger that Brexit would “if anything” make English commercial law “more attractive as the chosen law”, Lord Briggs made no attempt to hide concerns over the enforceability of judgments.
The Supreme Court justice said that if Brexit or “other moves away from sharing jurisdiction” led to private arbitration and ADR taking over from public courts as the main means for resolving cross-border commercial disputes, “ways will need to be found to remedy the deficit in transparency” that resulted.
“This may perhaps include the newly created – but as yet unused – jurisdiction in the Business and Property Courts to determine by declaration legal issues of strategic market importance without there being an underlying dispute.
“It may call for a freeing up of routes of appeal from arbitrators on questions of law of general public importance, or some relaxation of privacy which might, for example, permit the publication of anonymised awards.”
On enforceability, Lord Briggs said the “available choices” appeared to be a Danish-style solution, by which the UK would voluntarily join the Brussels Regulation regime, a Lugano-type solution or a “reversion to common law rules, only slightly fortified” by rejoining the Hague Convention.
In a speech entitled Dispute resolution in uncertain times, delivered at the PRIME finance conference at the Hague, he said: “The current thinking of the UK government, which largely concurs with the view of the House of Lords EU committee, favours a Brussels-type regime in principle.
“But its implementation faces the formidable obstacle constituted by the probable demand of the EU 27 that the CJEU retain its suzerainty, while at the same time deprived of UK involvement, either in the form of members of the court (including advocates general) or the locus standi of the UK government to make submissions, which it has traditionally done with great vigour.
“That is what Denmark and (to a lesser extent) the non-EU members of the Lugano convention have signed up to.
“The current form of the Lugano Convention critically lacks the benefit of improved recognition of party choice of jurisdiction now to be found in the recast Brussels Regulation.
“An attempt to join either of those regimes will require the other members’ consent to the terms. Meanwhile, a reversion to the common law rules, coupled with the loss of EU wide reciprocal enforcement of judgments, has been described by commentators as a recipe for confusion, expense and uncertainty.”
Lord Briggs said almost 40 years of involvement in financial dispute resolution in court, through arbitration and ADR, had “quietly imbued me with the settled perception that, in this field, there was an unstoppable move towards what I will loosely call globalism”.
However, he doubted whether in 2018 most people “would still take the further onward march of globalisation in dispute resolution as a given, in quite the same way as we may have done in the past”.
Along with Brexit, Lord Briggs mentioned the “advance in several countries” of “what may be described as an ‘us first’ approach to national engagement with global problems”.
He said this was called ‘America First’ in the USA, and manifested itself in its decision to withdraw from international trade, environmental and diplomatic agreements.
“These changes may not impact directly upon dispute resolution, but they may herald a worldwide retreat from an earlier ambition to find global solutions to global problems, with adverse consequences for the continuation of the current view that a global approach to dispute resolution is a Good Thing which can safely be taken for granted.”
Lord Briggs said the UK’s membership of the EU had been seen as the “essential glue attaching the mainly civil law jurisdictions of the other member states to the common law world, including for this purpose the USA”.
He said the common law had in some respects benefited from its “enforced exposure” to European jurisprudence.
He added: “I have no reason to think that European jurisprudence will not continue to play an important part in the further development of the common law, as it has always done.”