Future of disputes debate in association with Boies Schiller Flexner | Summer 2018
Alex Novarese, The In-House Lawyer: Will the UK legal system be more or less trusted post Brexit?
Abhijit Mukhopadhyay, Hinduja Group: As a business, we trust English law and the English courts. Whenever we do business in any part of the world, unless it is in the US, we always go for English law. So long as the courts remain a brand – and they will, irrespective of whether Brexit happens – London will be attractive.
Natasha Harrison, Boies Schiller Flexner: A combination of the certainty of due process, the quality of the judiciary, and a common law system that is constantly evolving means the UK delivers a level of certainty, sophistication and trust that European jurisdictions cannot match. Maintaining that will be critical. The one area we want to think about in negotiations is reciprocity and enforcement of judgments across Europe. It would be good to secure that.
Gaby Dosanjh-Pahil, SSE: There is also the independence of the judiciary, which in other countries is questionable.
Claire Drury-Axford, Barclays: I agree about predictability. As lawyers, we are always keen to advise our clients properly. It is very difficult to do that in an unpredictable jurisdiction.
Ken Beale, Boies Schiller Flexner: For London as a seat of arbitration, it will be at worst neutral and at best a positive. The UK has established itself as the gold standard for arbitration. The English judiciary is highly respected and the Arbitration Act 1996 is as good as you get anywhere in the world. Brexit is not going to change any of that but might offer opportunities. When English law is decoupled from EU law, English law may be viewed as more neutral than today. You will not necessarily have a ban on anti-suit injunctions. A variety of things could happen that make the UK even more attractive.
Gaby Dosanjh-Pahil, SSE: I agree, but the ECJ point might be a disadvantage, because some will think of it as another recourse for them.
David Sugden, Edelman: Some businesses also want the protection, or perceived protection, of European law. What will help certainty is that, no matter what happens with Brexit, lots of UK law has been derived over time, through precedent, from EU law.
Claire Drury-Axford: Will [Brexit] create a vacuum in Europe? Will one member state seize that opportunity?
Natasha Harrison: France has just done that. They are opening an international court. However, it is difficult to reconcile a French court resolving English or New York law governed disputes and I don’t see our clients starting to write in French or Italian law.
Abhijit Mukhopadhyay: I agree. As a business, we prefer New York law over anything else. Until there is a change in the mindset of the courts, you just cannot compare France with England under any circumstances.
Alex Novarese: What is your take on an English-language court in France?
Mr Justice Knowles, Queen’s Bench Division: It does not concern me. Let me evidence that by referencing our proposal to the world’s commercial courts to create a standing international forum of commercial courts. We took the initiative last year to ensure the established players, like New York, Singapore, Australia and Hong Kong, gathered with us and the newcomers.
Alex Novarese: Was it 26 jurisdictions you had at the first meeting?
Mr Justice Knowles: Yes and we are likely to have more next time around, with activity in between. Our thinking was that we cannot leave this to a sense of competition between jurisdictions. If we can share best practice, everybody wins. You have said nice things about this jurisdiction. They do point to our having the confidence to show leadership. I do not see why the strengths you identified should be harmed by Brexit.
Touching on arbitration, our courts do not regard arbitration as a competitor. Twenty-five percent of the Commercial Court’s time is spent supporting the arbitration framework, where arbitration has a seat here.
If I may tie that back to the standing international forum, one of the things we learned was a number of countries under pressure in terms of their dispute resolution offering think: ‘Maybe handing it over to arbitration is the answer.’ Our respectful advice is that you cannot look at arbitration on its own. You need a strong court system to have success from arbitration.
Alex Novarese: How will the initiative develop?
Mr Justice Knowles: We agreed three overall objectives. The first was sharing of best practice. The second was an opportunity for those jurisdictions with a developed commercial court offering to help those from the developing world.
The third element was to ensure the commercial court community could play its part in the broader rule-of-law question. China is one of the standout examples. It is fascinating how strong a conversation you can have about the rule of law from a commercial starting point where the values you are looking for are stability and certainty.
[In Europe] we made no attempt to be comprehensive, but present were Germany, Holland and one of the Scandinavian countries. We will look to add France and one or two others this time.
Alex Novarese: Have many people had experiences of the Financial List?
Natasha Harrison: The beauty of the Financial List is that it de-risks litigation, because you will have an expert judge who understands a complex finance structure or knows what the LMA [Loan Market Association] is. We have had a couple of cases in the Financial List. There has been flex in the rules and a much more commercial approach. I was reminding Robin [Knowles J] earlier that we did the first summary judgment in the Financial List, which was a significant securitisation for one of our clients. Because I knew we were going to get a really good judge who would understand the issues, we went for it and it was a fantastic experience.
Gaby Dosanjh-Pahil: There are initiatives, such as the shorter trial scheme, which a lot of people are reluctant to go into, but I think they will work great if more and more people do them.
Natasha Harrison: The judges are open to being creative and bespoke.
Tom Spender, Lloyds Banking Group: I see parallels with the incumbent UK banks and the challengers and digital innovations coming along, which is leading to healthy change. [Knowles J] talked about Brexit being a spur to healthy competition and innovation. That is very true for the court system. Looking at the user experience – which encompasses issues like technology, disclosure, specialist courts, costs and access – is a very useful spur to innovation. If Brexit leads to a greater concern with the user experience in UK courts then that could be a silver lining.
Alex Novarese: Has the market test mechanism in the List been used?
Mr Justice Knowles: Not yet.
Alex Novarese: You must want to give it a spin, though.
Natasha Harrison: We are desperate to.
Mr Justice Knowles: There have been nibbles. There is a great deal of interest from other jurisdictions. Some of its value is it puts on the table courts being ready to approach things in a business-like way.
Natasha Harrison: With the test case protocol, you can take an academic question where a dispute has not crystallised. That is incredibly valuable.
Alex Novarese: Is it a model to replicate? Unusually, I have not heard that much whingeing from litigators. Is it something you could do in other sectors?
Mr Justice Knowles: That is a real possibility. There are many things that we have been able to pilot and develop in the Commercial Court that have rolled out across the system. Those include things we regard as second nature now.
Alex Novarese: Presumably the court is more efficient as well.
Mr Justice Knowles: There might be something in that. We are being careful. That is why the Financial List deliberately aimed at the most significant cases. We have had about three-dozen cases so far in the first two years, which is in line with expectations.
James Wood, The In-House Lawyer: Hannah, you raised the question of the extent to which Brexit will impact dispute resolution clauses. Presumably you and the other businesses in the room can give concrete answers to that, because you will have been asked by the business: ‘To what extent should we rely on London courts?’
Hannah Ogilvie, GE Capital: The discussion has mostly been focused on enforcement or confidentiality. Often, the trade-off with arbitration is that you have the cloak of confidentiality, which may be more important than getting a more certain judgment given the consistency of the English courts. I have not come across anything that suggests that English court judgments would not be enforced in the same way as now.
James Wood: But if it is a question of whether businesses trust the courts, the answer you give the business is going to be largely a self-fulfilling prophecy.
Hannah Ogilvie: Brexit has created a perception of us being very inward looking. Perhaps Brexit creates a lot of opportunities, as we have discussed, but equally, if individuals do not want to be located in this jurisdiction, that may create opportunities elsewhere that rival our offering, perhaps not in lawyer circles but for commercial operations considering start-ups or innovations.
Ken Beale: I have not heard much of a concern that this is going to have a material impact on the enforceability of English judgments.
Matt Getz, Boies Schiller Flexner: It is one of this government’s stated aims to ensure enforceability stays as easy after Brexit – that we replicate Brussels regulation, or Lugano if necessary. That seems one of the easier ways to continue the same system. The panic might arise if, come early 2019, it looks like that is not going to happen.
Alex Novarese: Does Brexit have any impact on practitioners in terms of litigation tactics or risk strategies?
Gaby Dosanjh-Pahil: One of the questions I have had as we have been talking is whether there will be more issues around jurisdiction.
Abhijit Mukhopadhyay: We have started putting in a clause that if, because of Brexit, the commercial stuff suddenly goes away, the parties will sit together and decide whether to continue with the agreement.
Will London remain the hub? As a business we are waiting to see what kind of deals come out. In the past six to seven months, many companies have stopped investing in London. There are 800 Indian companies operating in London and they have all stopped fresh investment. I would love London to remain the hub of global activities, but if the business moves to other jurisdictions, companies will opt for their laws rather than English law.
Alex Novarese: Let us assume a messy Brexit, how much would that impact existing clauses?
Natasha Harrison: If they are written to English law and subject to the jurisdiction of the English courts, they will stand, and likewise if they are written to arbitration. The challenge will come if I get a judgment from our lovely Financial List and want to enforce it in Germany.
Alex Novarese: I was thinking of act-of-God-type clauses or material adverse-change clauses.
Gaby Dosanjh-Pahil: It would probably come down to the drafting. You would have to revamp all your contracts if there was a messy Brexit. What would happen in cartel-type cases?
Claire Drury-Axford: And what is going to happen if, from a financial services perspective, under your permissioning you can no longer provide the service but you are mid-contract? That is going to be the real challenge.
Natasha Harrison: What are corporates and financial services companies doing? Are you all reviewing your contracts to see where you are at risk?
Claire Drury-Axford: There is a lot of waiting to see how it plays out. We are sat there thinking about what our permissions will look like and whether that means moving jurisdiction. A number of the banks have expressed wishes to other European jurisdictions. Dublin is going to do very well. But who will then supply the service? It is not necessarily going to be the same entity. That is concerning.
Mr Justice Knowles: We can look at this within the four corners of Europe. If we are not careful, that is where we rest our perspective. I was in China a couple of weeks ago. The gist of their message was: ‘What are you worried about? The world needs English law and dispute resolution.’ One thing that worries me on the legal side is the danger we lose our confidence. If we do not, we will be in a place where we can show leadership on ways of solving these problems.
Abhijit Mukhopadhyay: As a business we see immigration becoming a hot issue. We have our global headquarters here. When we ask youngsters: ‘Why don’t you come here?’ they say: ‘No, we’re not interested.’ They would rather go to Australia, New Zealand or even Singapore. The perception is now very negative.
Gaby Dosanjh-Pahil: It is going to be a big task to decouple from EU regulation. It is in everything.
Matt Getz: There are areas where we might be more regulated. Take data protection. So far, the UK, subject to one regulator, has not followed data protection in the same way as everywhere else in the EU. After Brexit, any company in the UK that deals with people in the EU will have to ensure they are in line with EU data protection rules.
David Sugden: Hannah, you mentioned using arbitration for confidentiality. The world has changed so much. I saw a case where everyone on our side assumed there was a cloak of confidentiality in arbitration, but the result was leaked to the media two days before it was announced. If you do not prepare for that kind of stuff, you are way behind the curve. In the US, the OJ Simpson trial 20-odd years ago was the first real case that was definitely dictated to by factors outside the courtroom. That was exceptional. Now, in the UK, almost every day you see factors being played out in the court of public opinion.
Alex Novarese: Because of the internet?
David Sugden: You have public courts, so you can attend court far more often now than you could previously. You can use media to maximise your case. You have accessibility to a president that you previously did not have. He can move stock prices overnight.
Claire Drury-Axford: I was a criminal practitioner in various different roles before moving in-house. I was involved in the Michael Stone retrial – an awful murder case. One of the arguments we ran against the retrial was: ‘This man can’t have a fair trial because it’s been played out in the press.’ The Court of Appeal said: ‘Of course, he can. He can have it in Nottingham.’ They thought it was far enough from Maidstone. Perhaps that many years ago the impact was more limited, but now, with everything played out to the nth degree, debates on social media that are picked up by radio stations and fake news, it is really problematic for businesses. Look at the Standard Chartered case. After the filings started, the share price did not pick up until they had settled. The hysteria had a much greater impact than the actual case.
David Sugden: Previously, social media was the champion of democracy. Now, there is definitely a growing distrust of social media as a perpetuator of fake news.
Matt Getz: On a lighter note, social media can make it a lot easier to find out more about potential opponents in litigation. Investigative firms all have groups of people who are expert at going through Facebook, Twitter, Instagram and Snapchat.
Mr Justice Knowles: Does this not mean that it is more important than ever that there is a reliable piece of the jigsaw? Imagine you could not even count on the absolute core that there would be an expert decision on the case.
Alex Novarese: Is there not a problem that the legal profession is very good at talking to itself but not to policymakers? The English legal profession is a world leader, but does a singularly bad job at lobbying.
Mr Justice Knowles: That is part of the opportunity. The judiciary is a little more open to listening than it was. And the profession – having been forced to in some areas by things like Brexit – is more prepared to realise that it has to explain itself to the government.
I wish there was a greater connection between the law and the public. If the public understood the law more, the law would feel more equipped both to assess how the public felt about all this change and to recognise that within that change we have something that, for all its faults, is very reassuring.
Alex Novarese: The legal industry is bigger than the accountancy market, yet the highly-consolidated accountancy sector is a very powerful lobby, although it cannot go more than two weeks without being in some scandal.
Natasha Harrison: There are different bodies. You have the Financial Markets Law Committee…
Alex Novarese: These are all technical committees. I had someone from the Ministry of Justice ring me up once and boast about how none of them knew or cared anything about commercial law.
Natasha Harrison: The committees?
Alex Novarese: No, he thought he was some right-hand man to [former justice secretary Michael] Gove for the ten minutes Gove was in there. Lawyers should think bigger. We have a massively under-funded court system.
Natasha Harrison: You would lobby, for example, for maintaining reciprocal enforcement of judgments post Brexit.
Alex Novarese: Yes, and investing in the courts. Why is the government always trying to charge more for using the commercial courts when they generate plenty of tax already?
Simon Cuerden, Deloitte: I am not sure how much we do genuinely lobby. The Big Four are much more acutely aware of a red-top headline than lawyers.
Alex Novarese: Are we not in a ludicrous situation where the commercial courts are generating hundreds of millions of pounds of earnings, but that message does not get through at all? There is a point where you cut £1 in spending and take out £10 of tax. Linklaters generated £500m of tax last year globally on revenue of £1.5bn. What did Facebook pay?
Mr Justice Knowles: It is billions [contributed by the legal profession] and it helps anchor the insurance sector, the finance sector and the technology sector.
Claire Drury-Axford: But the headline would be about the fat-cat lawyers.
Alex Novarese: But nobody bothers to change that headline. Other industries do not sit around talking themselves down.
Mr Justice Knowles: Here is a world-class asset. The rest of the world keeps telling us about it. It would be nice to hear that.
Matt Getz: There is a larger narrative. We are not in manufacturing, which is seen as good, honest business. That is a long-term narrative that we just have to accept.
Natasha Harrison: Alex’s point is that we should be more proactive and should be educating and lobbying. You are right that we are not a coherent body. The judiciary is doing a great job getting out there, you get the odd committee lobbying, but we do not do it in a coherent or necessarily persuasive way.
Alex Novarese: Yes, equivalent industries that Britain punches above its weight in – pharma, bits of the entertainment industry and accountancy – get a lot more influence with policymakers.
Claire Drury-Axford: The difference between the Bar councils in the UK and the US is huge.
Mr Justice Knowles: If ever there was a time for it, it is now. The time really is now. I may not be able to say it, but Alex, your spur to exertion is very timely.
Alex Novarese: Are there final things that people want to address?
Simon Cuerden: Do you think other jurisdictions might try to take advantage of the cost of disclosure in the English courts?
Natasha Harrison: Ah, but we have a working group, which has come up with new proposals.
Mr Justice Knowles: I have the pleasure of being on it. You only have to look ten, 20 or 30 years back to find a convincing body of opinion that one of the reasons for choosing English litigation was disclosure. Obviously, since then, IT has produced challenges on scales we have never seen. We are also at that moment when technology has not done its second thing, which is to help us cost-effectively solve the problem it generated. We have some very clunky and expensive predictive coding, all of which will improve over time, like with brick mobile phones becoming iPhones. The crucial thing is not to lose our nerve and throw disclosure out, and also not to say that we cannot do anything about it and expect clients to wait. Hence this work on disclosure to produce a pilot across the business and property courts.
Alex Novarese: This is having different channels for different cases, is it not?
Mr Justice Knowles: It is. It gives an opportunity to come at disclosure in a thoughtful way.
Alex Novarese: I thought it was a no-brainer, but some litigators sent us angry emails.
Mr Justice Knowles: I hope the new model gives us all an opportunity to make disclosure work better. Alex, you have had negative views expressed to you and so have I. There are also very positive views, but what is not to like about this new rule? It enables people to propose what they think works for the case and there will be an independent decision from a participating judge.
Alex Novarese: It is surely worth a try. We cannot just keep having more and more documents turn up.
Mr Justice Knowles: We cannot. If we left it, in the end it could strangle disclosure altogether.
Hannah Ogilvie: One footnote from me. There is a lot of politics informing what is happening with the US judiciary and differing opinions about the appointments that are being made, noting those judicial appointments will have an impact over a very long period of time. Perhaps that could work in favour of the London courts (when considering a choice between London or New York jurisdiction clauses), depending on the outlook of those negotiating contracts.
Ken Beale: In the aftermath of Brexit there was a sense in the US that it might be a great opportunity for New York courts to steal business from England. Then Trump happened and you have seen what has happened with judicial nominations. There is a serious concern about the quality and ideology of the judges filling federal court positions, where the high-ticket-value disputes are heard. That is a potential opportunity [for London].
Alex Novarese: Do people think the talent is still going to the Bench in this country?
Natasha Harrison: Yes. We have just had [South Square QC Antony] Zacaroli go up. He is absolutely outstanding. We have this conversation every year: ‘The conditions are terrible, the pensions are appalling, the pay is dreadful… Will we attract?’ We had Snowden a couple of years ago, as well as Justice Knowles, and Zacaroli is one of the leading practitioners of his generation. That is a huge coup.
Alex Novarese: Final thoughts on what London needs to do to stay relevant as a top-class disputes centre?
Gaby Dosanjh-Pahil: Continue the work on disclosure. Costs are always relevant. We need to work smarter and more innovatively.
Abhijit Mukhopadhyay: Get a good Brexit deal and London will remain as it is now.
Natasha Harrison: I like Robin’s mantra: confident but not arrogant. We have a lot to offer, but we must not be arrogant or complacent – we must constantly evolve.
Alex Novarese: Thank you, everybody, for your insights.
Simon Cuerden Disputes and investigations partner, Deloitte
Gaby Dosanjh-Pahil Head of dispute resolution, SSE
Claire Drury-Axford Senior vice president – legal counsel, litigation, investigations and enforcement, Barclays
Sara Hall Managing director, Deutsche Bank
Mr Justice Knowles Queen’s Bench Division
Paul Laffan Head of anti-money laundering, UK, State Street
Abhijit Mukhopadhyay President and general counsel, Hinduja Group
Hannah Ogilvie Senior litigation counsel, Europe, GE Capital
Stuart Reid Legal counsel, Worldpay
Tom Spender General counsel – group litigation, regulatory and competition, Lloyds Banking Group
David Sugden Head of litigation and legal affairs, Edelman
Ken Beale Partner, Boies Schiller Flexner
Matt Getz Partner, Boies Schiller Flexner
Natasha Harrison London managing partner, Boies Schiller Flexner
Dominic Roughton Partner, Boies Schiller Flexner
Alex Novarese Editor-in-chief, The In-House Lawyer
James Wood Research editor, The In-House Lawyer