UK Arbitration and Dispute Resolution to Stand Strong in the Face of Brexit
by Lisa Hillary
The Lord Chief Justice, Lord Thomas, has declared that “arbitration in the UK will not be affected by Brexit in any way”.
In a speech on 24 July 2017 opening the Business and Property Courts for Wales the LCJ proclaimed the “unique strength” of English Law and dispute resolution in the UK and acknowledged the contribution legal services make to the UK economy as being “substantial”.
The following major advantages of English law and dispute resolution were cited as grounds for his positivity:-
– Independence of the Judiciary/Arbitrators and compliance with the rule of law. This acts to ensure fair and predictable dispute resolution for international parties litigating in the UK who can be confident that their disputes will be decided without regard to nationality, politics, religion or race. Brexit will not impact upon this cornerstone of the English legal system.
– English common law is clear, fair and predictable being based on precedent. English common law respects party autonomy as to the terms of the contract and will not imply or introduce terms into the parties’ agreements unless stringent conditions are met. This results in businesses being able to predict the outcome of a dispute with a high degree of certainty. Brexit will not change the substantive content and application of English contract and commercial law as it was never a part of EU law.
– The UK legal system and English common law is flexible and adapts to meet the challenges of the ever-changing commercial world. The English common law is the market leader in addressing the problems of globalised financial markets and currently leading the way in Fintech, Digital Ledger Technology and AI. Brexit will not change this.
– The UK court and arbitral procedures deliver speedy and efficient resolution of business and financial disputes. Parties can be confident of prompt resolution of disputes by the adoption of an English jurisdiction or arbitration clause. The court process is practical and innovative and the UK courts have taken the lead by introducing special procedures for the resolution of high profile market disputes in the Financial List in the newly established Business and Property Courts.
– Litigation and Arbitration in the UK is cost effective. The overall cost of UK international dispute resolution continues to compare favourably with costs in other competing jurisdictions. Flexibility of court procedures provide significant cost/benefit advantages and Judges are pro-active in the prevention of unnecessary cost escalation.
– The UK will remain a global arbitration and ADR hub post Brexit. The UK’s subscription to the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 will be unaffected by Brexit allowing UK arbitral awards to be recognised and enforced in the 142 worldwide states (including the EU) that are parties to it. London will remain one of the world’s most commonly selected seats in both institutional and ad hoc arbitration, due to its highly qualified legal services, the London Court of International Arbitration and other bodies, its legislative framework and a pro-arbitration judiciary.
– Mutual recognition and enforcement of UK judgments abroad will largely continue post Brexit. This will be either on the basis of the Brussels Recast Regulation or in non EU states by virtue of long standing bilateral treaties or under common law principles of comity.
– A UK exclusive jurisdiction clause will continue to be given effect after Brexit. The EU is a signatory to the Hague Convention on Choice of Court Agreements and the UK can become a signatory in its own right post-Brexit. Parties who agree to resolve their disputes before the UK courts can therefore be confident that the resulting judgment will be given effect throughout the EU in the same way that they are now.
– London will continue to provide unrivalled access to high quality legal services and will remain home to many of the world’s leading international law firms and barristers.
– London will remain one of the principal financial, insurance and commercial centres in the World. English language will continue as the language of international business irrespective of the consequences of Brexit. In addition, the UK’s specialist Business and Property Courts have been specially developed to meet the needs of international business to include the Commercial Court (which is the world’s leading forum for the resolution of international trade, shipping and insurance disputes, where two thirds of claims involve at least one overseas party), the Business List of the Chancery Division, the Financial List, the Insolvency and Companies List, the Intellectual Property List and the Technology and Construction Court.
The above provides welcome assurance to those providing legal services in the UK and to the wider international business communities who will continue to take the benefit of these advantages.
If you require advice in relation to the contents of this article or to discuss it further, please contact Lisa Hillary, whose details appear below.