In a speech at the National Judges' College in Beijing on 6 April 2017, the Lord Chief Justice (LCJ) of England and Wales, The Rt Hon. The Lord Thomas of Cwmgiedd, talked about how important it is for the Commercial Court and arbitral centres to work together "to enhance expert, efficient and cost-effective commercial dispute resolution and to keep the law up to date … [on the basis that] a sound system of commercial dispute resolution helps to give the stability that is essential to the peace and prosperity of all our societies." (You can read the LCJ's full speech here.)
Of particular interest were the LCJ's views that the impending "Brexit" will not affect the strength of London as a dispute resolution centre. It is worth quoting in full:
"A Commercial Court must also be prepared for political change. In London we are having to deal with such a change, given the decision of the UK to leave the European Union, known as Brexit. This decision might be seen, by some, as raising a question of the strength of London as a centre for commercial dispute resolution. In some quarters it has even been suggested that Brexit makes the law of the UK uncertain. This is all quite wrong. Brexit will have no effect on London’s key strengths. Let me take English contract law as an example. Brexit has no effect, unsurprisingly, both because the common law is used by nearly 30% of the world’s legal jurisdictions and because English contract law has at its centrepiece respect for parties’ intentions, as has the Commercial Court in London. [See W. Rowley, London Arbitration Under Attack, (16 March 2016).] …
That English contract law is well-established, well-understood and freely circulates contributes to its being a law of choice; and in terms of arbitration, the law of choice for 40% of all global corporate arbitrations. (See J. Makin, Brexit – Jurisdiction, Enforcement and Conflict of Laws) …
English contract and commercial law remains as the UK’s ‘national treasure’ (See N. Andrews). 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’.
In his footnotes, the LCJ gave arbitration as another example of Brexit having "no effect on London’s key strengths" stating that "Far from having any adverse effect on arbitration, there is a strong case that it will have a beneficial effect." The LCJ quoted Professor N. Andrews who concluded that “. . . ‘Brexit’ has no impact on the New York Convention (1958) system of arbitral enforcement”. (See London Arbitration and Brexit, at 10 http://www.ciarb.org/docs/default).
"The LCJ also referenced Professor Adrian Briggs, Professor of International Private Law at Oxford University, who argued in his lecture Secession from the European Union and private international law: The cloud with a silver lining, that Brexit will have a beneficial effect on London as an arbitral centre" because, "as he puts it at page 21:
‘. . . the relationship between judicial jurisdiction and arbitration will be freed from the hamstringing complications of the [Brussels] Regulation and from the taint – to put it no higher – that the Regulation is less respectful of the rights and duties of those who promised to arbitrate than English law would naturally be. It is clear that the Commercial Court in London will continue to provide the expertise it has honed over very many years of practical experience and familiarity with arbitral culture to assist arbitral tribunals, supervise where asked to do so, and enforce arbitral awards. As a centre for international dispute resolution, it will remain at the fore." (For the LCJ's full references and footnotes, see paragraph 17 of the LCJ's speech.)
We may be in uncertain times, but the expertise of the judiciary and the strength of both English law and our arbitral system, continue to make London an attractive place for international parties to resolve their disputes.
This article was co-authored by Dan Boyle, partner in the International Arbitration Team and Tracey Summerell, practice development lawyer in the Construction Team.