The Law Society launched the Global Legal Centre campaign last week, with speeches and films highlighting why the UK has attained its current pre-eminent status in global law, and why the position should stay that way.
The campaign is excellent and necessary, but we should realise that it has the potential to exacerbate the very problem it is trying to tackle. I wrote a year ago, just after Brexit, about the extreme irritation shown by our continental colleagues at our continual trumpeting of the wonderful benefits of the common law over continental systems. I wrote then about how the French and Germans in particular had struck back with their own campaigns and publications (such as ‘Law – Made in Germany’ and ‘Continental law – global, predictable, flexible, cost-effective’).
I of course understand why we need to promote our place in the legal world, but paradoxically we also need the support of our continental colleagues now more than ever. They are currently being consulted by the European Commission about their views on the rights of UK lawyers in the Brexit withdrawal agreement, and presumably in any future trade agreement as well. It is a tricky balancing act to maintain – to promote ourselves but to keep their support.
There is no doubt that some of our continental colleagues are using Brexit as a way to attract legal business away from us. There was an article in the French legal press just last week – ‘The law, agent of influence for France in Europe post-Brexit’ - which emphasised in its opening paragraphs about how one of the big claims always made for English common law, its stability, was being undermined by the uncertainty created by Brexit, which might go on for some years.
The other big claim for the common law, that it is conducted in English, is in any case no longer a monopoly of commercial courts in anglophone countries. For some years now, there have been commercial courts in both France and Germany, for instance, which have English language capability. This point was made at the Global Legal Centre launch last week by one of the speakers, Sir Geoffrey Vos, Chancellor of the High Court.
Sir Geoffrey highlighted the efforts of the judiciary to promote the UK’s global legal standing. He mentioned the introduction of the new Business and Property Courts, going live this week on 2 October. These courts will now bring together our international dispute resolution jurisdictions, and will act as a single umbrella for business specialist courts across England and Wales. The new courts comprise the former Commercial Court (including the Admiralty Court and Circuit Commercial Court), the Technology and Construction Court, and the courts of the Chancery Division (including those dealing with financial services, intellectual property, competition, and insolvency). Their new name and structure are an effort to simplify our court structure, and so make it more attractive for use by international litigants.
The final point made by Sir Geoffrey is also worth noting here, which is that the future of the UK’s global legal status in dispute resolution depends on its staying on top of – ahead of – developments in IT. He particularly mentioned fintech, focusing his remarks on blockchain. He is clearly a believer in the coming blockchain revolution.
To remind you, blockchain is an incorruptible digital ledger or database of economic transactions, open to anyone, which can be programmed to record not just financial transactions but virtually everything of value. It is used in bitcoin, and is likely to be widely used for self-executing contracts in future. Sir Geoffrey was alive to the need for blockchain technology to be based on common law notions, so that – even if blockchain proponents claim that it dispenses with the need for lawyers and dispute resolution - English courts can remain key in the blockchain litigation which will inevitably follow. Lawyers need to be ready to support the courts when such litigation arises.
The conclusions are these. Promoting ourselves as a global legal centre is good and necessary, but it should be accompanied by careful diplomatic manoeuvres with our continental colleagues at this most sensitive time, when we need their continuing support for the practice rights demands we have made of our own government in the Brexit negotiations.
Finally, becoming a global legal centre is not a static status, but one which faces constant threats, both from our competitors like the French and the Germans, but also from technology. Using the example of blockchain, we lawyers must inform ourselves, train ourselves, and lobby on the future development of blockchain, so that we stay ahead of the game.