Letters roundup - 3 December 2018

London left on continental shelf?

Can London’s Commercial Court remain in pole position? This is not a rhetorical question, as some hard-line Brexiters would like to think.

The fact that the London Commercial Court has been the destination of choice of international litigants has been undisputed for many years. More recently, some commentators and senior judges have increasingly been cautioning against complacency, and have been pointing at the risks of the court’s position in international litigation being eroded.

One of the consequences of Brexit, which Brexiters underplay or seek to ignore, is the fact that in March 2019, the (Recast) Brussels I regulations will no longer apply to decisions delivered by England and Wales courts. 

As a result, judgments by the London Commercial Court will no longer enjoy automatic enforceability in EU member states. This will represent a serious impediment for multinational companies and financial institutions which are present in most EU countries. The need for them to seek exequatur in each of these countries may prompt them to elect a jurisdiction elsewhere.

Some argue that the UK will negotiate unilateral agreements with the major EU countries. This is just not possible. They know full well that EU countries cannot individually agree to rules in matters which are already EU-regulated.

Others believe that major companies will continue to submit to the jurisdiction of the courts of England for a number of reasons, ranging from the alleged superiority of common law, to the well-established competence of English judges or their ‘unmatched’ probity.

There may be a bit of wishful thinking in believing that Brexit will not affect the position of the UK’s Commercial Court. 

The truth, as noted by former Lord Chief Justice Lord Thomas, is that the UK’s justice system has become unaffordable to most, except Russian oligarchs and Middle East sheikhs.

In comparison, across the board the cost of access to European courts is much more reasonable, especially in France. 

The London courts like to put forward their business-friendly approach. Clearly, agreeing to hold hearings in camera at the request of two Russian oligarchs is a friendly gesture towards them. 

More seriously, it seems that the UK system has lost some of its attractiveness. Foreign litigants may soon realise that the UK’s business courts have come closer to being an arbitration court – without the advantages of arbitration. Against this background, it may be difficult for the UK business–judicial system to retain its pole position.

For decades, European courts have refrained from soliciting international corporations the way the London courts would do. Recently, though, several continental European countries have sought to set up English-speaking courts to attract the potential litigants who could find London a less attractive destination. 

With the recent establishment of an international chamber within its court of appeal, Paris is the first to offer a real challenge to the London courts.

Indeed, the attractiveness of the Paris Commercial Court – whose bilingual judges have life-long international business experience – is now reinforced by the strong legal backing of the English-speaking court of appeal judges.

With procedure rules that promote flexibility, and timeliness, potential litigants will be looking increasingly at Paris for the settlement – at reasonable cost – of their cross-border disputes. 

Jean Messinesi
President, Paris Commercial Court

So-called ‘elite’

I feel compelled to comment on the list of the so-called 200 top firms as recommended by lawyers in The Times of 30 October.

It is, of course, very pleasant to be recommended by your peers, and I used to consider such referrals about twice as valuable as referrals from clients. However, I find The Times’ list and comments from those chosen very dispiriting.

In the first place, they are, nearly without exception, big City firms with multiple offices. In many cases, they boast of their ever-burgeoning annual profits.

They seem to represent between one and five per cent of the population.

Which firm, for instance, would one recommend to someone suddenly faced with a serious motoring offence (these things can happen to anyone); or the woman abandoned by her husband, leaving her to cope with three children and a mortgage?

The list seems to me to represent an affluent and often smug elite, having no relation to vast swaths of the public, who must feel ever more excluded from the day-to-day working of the law – which was, after all, created for their benefit.

John Greenwood
Chippenham, Wiltshire

Civil partners

I was interested to read the letter from Sahil Aggarwal (‘Lack of foresight on civil partners’, Feedback, 26 November).

While it is the case that currently a same-sex civil partnership cannot be dissolved on the basis of adultery, it is of course possible for a same-sex marriage to be dissolved on the basis of adultery (with a member of the opposite sex).

There seems to be no good reason therefore why adultery should not be the basis for the dissolution of a civil partnership, whether in respect of same-sex or heterosexual couples (when the necessary legislation is passed).

Deborah Prance
Partner, Wheelers LLP, Farnborough