As is amply demonstrated in the varied articles that follow, England – both the jurisdiction and the law of England & Wales – remains at the cutting edge of global dispute resolution. Whether it is managing increasing numbers of mass claims, providing a forum for the hearing of ESG disputes, giving certainty in the world of distributed ledger technology (DLT) and crypto-assets, grappling with Russian sanctions, or hosting and providing court support to international arbitration, England (and in particular London) remains pre-eminent.
But there is no place for complacency. While English law, and England as a dispute resolution forum, have some enviable strengths, there are growing challenges in what is an ever more competitive global dispute resolution marketplace. It is increasingly clear that the judiciary recognise this threat, and the need to look ahead and adapt accordingly.
So what are England’s strengths, and what are its weaknesses? Where are there opportunities, and where must the legal industry act to mitigate threats?
First in the credit column is English law. The English common law system is well adapted to commercial dispute resolution. It provides certainty and predictability, via a large body of established case law, while also providing flexibility at two levels – first, for a case to be distinguished on its own facts; and second, for pre-existing concepts to be extended to new areas, for example in the sphere of crypto-assets. In addition, English common law has historically prioritised, and continues to prioritise, the freedom of parties to contract as they wish, notwithstanding public policy considerations such as general duties of good faith. The courts will intervene to a limited extent to give meaning to unclear drafting, but will not rescue bad bargains.
Second is the jurisdiction itself – conveniently located, with the most widely spoken language in the world, increasingly cutting-edge dispute resolution facilities, particularly in arbitration, a deep bench of talented lawyers, and a judiciary rightly respected globally for its integrity and freedom from corruption. Brexit has not, so far as we and our transactional colleagues have seen, led to any significant drop-off in the use of jurisdiction clauses specifying England (other than perhaps – anecdotally – a slight move towards London seated arbitration clauses as opposed to clauses specifying the English courts).
Third, it is adaptable and forward-looking. The judiciary is well aware, for example, of the hot topics of ESG, DLT and crypto-assets, and AI and technology. As to these possible opportunities:
- ESG cases of various types are starting to come through the courts through a variety of routes – collective actions, parent company liability claims and derivative actions to name just three – and the judiciary is actively promoting England’s ability to deal with this growing area of disputes;
- a number of cases in the crypto sphere are showing the flexibility of English law to deal with these new assets, though the judiciary recognise that there is more to do to cement England’s place at the forefront of the jurisdictions able to provide the necessary legal foundation and infrastructure for these assets; and
- the English courts were quick to adopt technology to assist with (i) document review and disclosure; (ii) electronic filing and bundles; and (iii) remote hearings, and the judiciary has made clear its resolve to be well positioned to deal with the increasing importance of generative AI in dispute resolution.
Fourth, England has an increasingly active and multi-faceted mass claims market, particularly in the competition space, given the Collective Proceedings regime ushered in by the Consumer Rights Act 2015, and facilitated by an increasingly mature litigation funding industry.
So what are the challenges to which England must be equal? The first relates to adaptability, in a number of respects. English law has proven itself to be very adaptable; as Sir Julian Flaux has put it, “rising to the challenge of providing certainty and justice in an ever-changing world“. However, adaptability may need to come in other forms too; for example:
- There is an increasing need for procedural adaptability, against a backdrop of greater complexity and cost in English litigation, and the ever-increasing proliferation of documentary evidence. Recent efforts have been made in relation to disclosure and witness evidence in the Business and Property Courts; it remains to be seen whether these will be effective, or whether more fundamental changes may need to be contemplated. For example, will cross-examination ultimately need to be restricted, perhaps significantly, in circumstances in which hearings are becoming ever longer, the documentary record ever more complete, and oral evidence increasingly recognised as unreliable? See, for example Lord Leggatt’s keynote address.
- While the courts have been quick to embrace technology, and the Master of the Rolls in particular is clear that it is critical that the English justice system is at the forefront in harnessing generative AI, the widespread adoption of generative AI may require something of a philosophical shift in English dispute resolution. Historically the English approach has been one of cards on the table, cross-examination and detailed assessment by a judge. Will there be reluctance in England in particular, as compared with other jurisdictions, to use more substantive technological solutions (as opposed to labour-saving technological tools) at the risk of ushering in, or being seen to usher in, a “rougher” or less judge-led form of justice?
- There may need to be an increasing adaptation, or evolution, in the role of the judge (or at least some judges). Mass claims in particular increasingly call not just for pre-eminent black letter lawyers to judge them, but expert project managers, able to take huge numbers of interrelated cases (sometimes at various levels of a supply chain) and drive them forward to a sensible and predictable conclusion in a reasonable time and proportionate cost. This may, in some ways, be a novel skillset, and not one on which aspiring judges are assessed; it may nevertheless be critical.
The role of England’s long judicial history is an important one in this context. It is a huge strength in terms of the richness of its common law and the reputation of its courts and their judges. The risk, however, is that without constant scrutiny and reform, this history and tradition may hamper real efforts by the judiciary to keep pace with the disputes the courts have to resolve, and the world in which those disputes arise. Every indication is that the judiciary appreciate the urgency of this continuing issue. A thought experiment is to try to design the best possible dispute resolution process from scratch. The richer the history and tradition of a dispute resolution forum, the less easy it may be to return, nimbly and repeatedly, to this central starting point.
My final point was well expressed by the Master of the Rolls, Sir Geoffrey Vos, at the McNair lecture in April 2023, where he said, about DLT and crypto assets in particular, that “[l]aw is always regarded as something for lawyers alone; something of no real interest to finance, economic growth or consumers. We must challenge that false misconception. Law in general, and English law in particular, is of inestimable value to our economy. The national and international trust in our judiciary, our legal system and most of all in the flexibility and resilience of English law is a unique selling point that … we will undervalue at our peril.” In particular, then:
- Important legislation such as the new Arbitration Bill, legislation to address the PACCAR judgment for litigation funders, and possible legislation to expand the Collective Proceedings regime beyond pure competition claims1, needs to be prioritised by the Government, to maintain the pace of necessary legislative change; and
- Funding of the judiciary and the courts needs to be prioritised, to ensure that judges and litigants are assisted not only by state-of-the-art technology but also, for the larger commercial cases, by judicial assistants and other dedicated judicial support. The role of a judge is becoming more and more challenging, with longer hearings, more documents, more complexity and longer judgments. It is critical that the role of a judge remains attractive to the brightest and best lawyers.
Dispute resolution in England, both through the courts and via arbitration, is dynamic, complex and hard-fought. So, too, is the global dispute resolution market. By emphasising its many strengths, focusing hard on its weaknesses and threats, and demonstrating its huge value to the economy, the English dispute resolution industry can hold its central position in this global marketplace for many years to come.
Just as, of course, the English legal system needs to run to stand still, so do the dispute resolution firms who operate in it. The same themes of flexibility, adaptability, willingness to use procedure to a client’s best advantage, intelligent harnessing of AI, and active and strategic project and case management will, in my view, continue to be centrally important for top dispute resolution practices just as much as English judges and arbitral panels.
Footnotes
- An extension of the Consumer Rights Act 2015 beyond pure competition claims was contemplated while the Digital Markets, Competition and Consumers Act 2024 was passing through Parliament, but was dropped in the final statute. ↩︎
