Perhaps the most striking feature of this year’s Report is the remarkable resilience of the London Commercial Courts, in the face of challenges both old and new. Three may be particularly singled out.
The continuing uncertainties around Brexit have presented perhaps the most significant challenge. Civil judicial cooperation has not so far been part of any deal between the UK and EU, and although the UK’s application to join the Lugano Convention remains under consideration at the time of writing, the European Commission reportedly recommended against its acceptance on 12 April 2021. For the moment, Brexit has therefore meant the end of the regimes under which English judgments generally received recognition and enforcement throughout the EU and EFTA. Judgments in proceeding brought prior to 1 January. 2021 continue to benefit from these regimes,
It remains too soon to tell whether the potential difficulties in enforcing English judgments might lead parties to litigate elsewhere (or indeed to prefer arbitration).
and so it remains too soon to tell whether the potential difficulties in enforcing English judgments might lead parties to litigate elsewhere (or indeed to prefer arbitration).
The Hague Choice of Court Convention 2005, to which the UK has acceded in its own right, provides a partial solution, although comes with its own uncertainties (including as to its date of effect). There is, however, another side to this coin, which is that departure from the EU civil judicial cooperation regimes has meant a return to the common law rules of jurisdiction in 2021, expanding the range of cases in which the English courts might hear claims against EU domiciled defendants. This change also reopens the possibility for anti-suit injunctions in relation to proceedings in EU Member States, which had been prohibited under European law, potentially increasing the attractiveness of London as a forum of choice.
A second challenge has of course been presented by COVID-19. Unlike many other courts around the world, the London Commercial Courts have remained open throughout the pandemic, and the data reveals that they have not only maintained but significantly expanded their production of judgments. Indeed, through the adoption and widespread application of a new Remote Hearings Protocol, among other innovations, the Courts have shown impressive agility in reacting to changed circumstances.
The fact that litigant numbers have increased by significantly more than case numbers also suggests continued success in attracting complex multi-party proceedings to London.
A third challenge to the position of the London Commercial Courts is the rise in global competition for international commercial litigation. Litigant numbers from Asia have only increased slightly compared with 2020, and those from Oceania have fallen, both of which could perhaps be the product of the success of the Singapore International Commercial Court. Nevertheless, the strong growth in the number of litigants overall, and European litigants in particular, is remarkable in the face of efforts to establish internationally-minded competitor courts in locations such as the Netherlands, France and Germany.
The fact that litigant numbers have increased by significantly more than case numbers also suggests continued success in attracting complex multi-party proceedings to London. The flexibility of the English common law rules of jurisdiction, which can facilitate consolidation of claims against multiple defendants in a single forum, is potentially a powerful contributing factor here.
In summary, the Report reflects a year of resilience and innovation in the face of extraordinary challenges – although the impact of these challenges is likely to continue to be felt in the years to come.