John Bramhall, Past President of the LSLA (London Solicitors Litigation Association), and Partner at DAC Beachcroft LLP says:
“The German plan sounds more than a little opportunistic, and it is hard to see that it, or indeed any of the proposed European courts will have any significant take up in the short term – but London does need to be alive to any attempts to take advantage of the uncertainties presented by Brexit, to grab a piece of the highly lucrative international disputes market.
“London must keep moving forward to enable it to stand still. It needs to constantly evolve, and embrace technology and change. For now, its pre-eminent reputation, based on a high quality judiciary and trusted procedures should keep it at the top of the game but the sooner the uncertainties arising out of Brexit are resolved, the better.”
Peter Dodge, barrister at Radcliffe Chambers, says:
“This story may not be entirely new. My understanding is that there have been instances in the past of German commercial court proceedings being conducted in English.
“London has a competitive advantage. Parties to commercial contracts like using English law and English judges (who are high quality and impartial). Not surprisingly, London has the greatest pool of expertise for English law dispute resolution (whether through the courts or arbitration).
“However, there is absolutely no room for complacency. There is no inherent reason why English law disputes must be resolved in England. While commercial parties may not want their disputes resolved under, say, German law (even if the hearing is in English), there must be a danger that support services will “follow the markets”: if market centres drift towards the EU there could be a need for their disputes to be resolved on the doorstep (even if under English law). Simply, there is nothing obvious to stop, say, Frankfurt or Amsterdam having an English law/English language commercial or financial court (providing it can draw in the expertise).
“A second Achilles Heel is continuing uncertainty over the post-Brexit recognition and enforcement of English court decisions across the EU/EEA. Historically, an overwhelming majority of ISDA (International Swaps and Derivatives Association) Master Agreements between counterparties based in the EU/EEA have been governed by English law. But only last month, ISDA published new French and Irish law versions of the Master Agreement precisely to provide options for those institutions that would prefer to continue trading under an EU member state law with EU court jurisdiction clauses once the UK leaves the EU.
“It is too early to say which way the wind is blowing – but there is clearly at least a light breeze.”