Impact of Brexit on UK courts “exaggerated”, judges say

Vos: Working with other commercial courts

The likely legal impact of Brexit on English law and the UK’s role in international dispute resolution, has been exaggerated, a Court of Appeal judge said yesterday.

The comments of Sir Nicholas Hamblen were echoed in a separate speech by the Chancellor of the High Court, Sir Geoffrey Vos, who said the impact of Brexit on financial services disputes would not be as “dramatic [as] some people have suggested”.

Both were speaking at events during London International Disputes Week.

Hamblen LJ was talking about the financial list, of which he was one of the architects. Since its inception in October 2015, there has been a total of 64 cases in the financial list, 34 through Chancery and 30 through the Commercial Court.

“In my view, the likely legal impact of Brexit on English law and the UK’s role in international dispute resolution, including in the financial services sector, has been exaggerated,” he said.

He argued that in relation to choice of governing law, “for the vast majority of international commercial agreements, Brexit is unlikely to make any difference to the substantive law applicable or as to whether parties should continue to choose English law”.

The reasons why parties chose English law – its recognition of the importance of freedom of contract, a body of precedent, certainty and predictability, and “flexibility and adaptability” – would be unaffected by Brexit, he said.

Hamblen LJ continued: “In relation to choice of jurisdiction, the reasons for choosing English law are also good reasons for choosing English jurisdiction since, for obvious reasons, English judges are regarded as best placed to decide issues of English law which may arise, particularly issues of difficulty.”

This was supported by “the quality, independence, impartiality and integrity of the English judiciary”, specialist courts, modern courts and flexible court procedures, and “the availability of high-quality legal advice and dispute resolution services”.

Hamblen LJ added that potential difficulties of enforcement post-Brexit should also not be exaggerated.

“The UK government’s stated position is that it will seek to agree a framework of civil judicial co-operation with the EU which would ‘mirror closely the current EU system’.

“In the context of civil jurisdiction that means the Brussels Recast Regulation. Even if that is not achieved, the government has made it clear that it would apply to sign up in its own right to the Lugano II Convention, under which jurisdiction agreements and judgments are required to be recognised and enforced within the EU.

“In any event, it will sign up to the 2005 Hague Convention on Choice of Court Agreements under which exclusive jurisdiction clauses are required to be recognised and enforced, including by the EU.”

In his speech, Sir Geoffrey made similar points. “In choosing a jurisdiction, my experience suggests that the most important things are the rule of law, the integrity of the judges and the system, and the quality of the judges.”

He pointed to surveys by the European Network of Councils for the Judiciary, which found that among judges from 14 out of some 24 countries, more than 10% either agreed or were not sure about whether they had been subjected to inappropriate pressure to decide a case in a particular way.

“These countries included some very well-regulated European member states, but not, I am pleased to say, the UK.”

Vos LJ also said people may be surprised to learn that the judiciary was “working closely” with several of the newly established commercial courts in Europe and beyond “to exchange ideas and improve our systems for the benefit of international businesses generally”.

Later this year, three judges from the new Paris Commercial Court will be visiting London for two weeks each to sit with UK judges.

On the reciprocal enforcement of judgments, he added that it would be “to the advantage” of both the EU and UK to reach an agreement, “so I would not expect it to be long delayed”.

The Lord Chief Justice, Lord Burnett, also spoke along similar lines today in a speech entitled ‘English law on the world stage’.

“I have little doubt that English law’s position on the world stage will be secure in the years to come. Challenges, competition and uncertainty may come to test us. But the strength of the foundations will enable those tests to be met.

“If between us we meet the expectations of the international marketplace and demonstrate the advantages of using English law and English jurisdiction clauses, the vitality of London as a leading centre of international dispute resolution will be secure.

“That is in the national interest in contributing to invisible exports and it represents one of the many ways in which a successful legal sector contributes to the well-being of the nation.”

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