Last week, Belgium followed in the recent footsteps of several other larger EU Member States, and set up an English-language commercial court – the Brussels International Business Court (BIBC). This follows similar recent moves by France (decisions taken earlier this year), the Netherlands (its new anglophone commercial court will come into force next year) and Germany (which took its decisions a few years ago).
The creation of the new Belgian court was directly linked by the Belgian government to Brexit. The launch press release stated – in Belgian surrealist style, it is available only in French and Dutch, and not in the language of the future court - that Brexit means that it will no longer be so obvious to use a UK court to settle disputes. The Belgian prime minister, Charles Michel, said at the same time that Brexit can’t stop the development of the EU.
Brexit in this case is merely accelerating a process which was in any case inevitable, for two connected reasons. First, the dominance of English as the international commercial language is now complete. This has nothing to do with the UK’s current position, but is a consequence of past empire, the rise of the USA (itself obviously a former colony), and the spread of globalisation. The English language is now so deeply entrenched as the international lingua franca that it is difficult to imagine it being threatened for a long time – maybe only once the Chinese Belt and Road initiative has grown beyond anything now envisaged for it.
Second, countries are beginning to see the consequences of the rise of English in terms of their national courts and legal systems. They note that major litigation affecting their companies and their jurisdiction is being decided elsewhere by courts which do not speak their national language. That is an economic and a political problem. So some EU Member States are trying to stop the trend by establishing their own anglophone courts. Time will tell whether this will stop the drift.
Brexit’s contribution to the trend is to put the recognition and enforcement of judgments by UK courts across the EU in doubt, and so to strengthen the role of the new continental anglophone courts. The government would like to minimise the impact of this on the UK’s central position in dispute resolution, as is obvious from the Brexit paper it published in August on the topic. But their proposals are not part of the current Brexit negotiations on the withdrawal agreement. They can only be dealt with as part of the future trading agreement with the EU, which is threatened in the short term by those who are encouraging the government to consider leaving without a deal.
But, as stated earlier, we should not be misled into thinking that this is only, or even mainly, a Brexit problem. It is a world-wide development. Countries across the world are growing wise to the rise of English in commerce and its concomitant dispute resolution mechanisms. So there are now anglophone dispute resolution centres in places outside Europe and the US. In Asia, the international arbitration centres in Singapore and Dubai are well-known and maybe not surprising, but Kazakhstan has also launched one, in the hope of competing with Singapore and Dubai in central Asia. And there are anglophone international arbitration centres in Africa, too – for instance in Kigali, Rwanda, launched in 2012, in Nairobi, Kenya and Lagos, Nigeria.
Other countries might not set up their own arbitration centres, but are equally concerned about their litigation disappearing for resolution to the rich north. As I wrote earlier this year, the International Bar Association is running a series of conferences to assist lawyers in developing countries to face the consequences of globalisation. The next one will take place in Zambia early next year, for lawyers from the Southern African Development Community, the local version of the EU.
One of the central themes of these IBA conferences, much appreciated by the audiences of local lawyers, focuses on how litigation can stay local – by local firms teaming up with foreign firms brought in by large-scale investors, by telling local lawyers what these foreign lawyers want and expect from them, and by inserting local arbitration clauses into contracts.
The fight for the UK to remain a global legal centre will therefore be fierce. Brexit is a negative blip along the road, but not the most important obstacle. The real lesson is that the advantage of having our national language as the international lingua franca has been understood by our competitors, who no longer growl from the sidelines, but have swallowed their national pride and are in the process of establishing their own anglophone dispute resolution centres within their own jurisdictions. An interesting struggle lies ahead.
Jonathan Goldsmith is Law Society Council member for EU matters and a former secretary general of the Council of Bars and Law Societies of Europe. All views expressed are personal and do not necessarily reflect the views of the Law Society Council.