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‘Parochial feel’: judge warns of post-Covid complacency

By Jemma Slingo >>


The commercial court has seen ‘unprecedented’ numbers of anti-suit injunctions as parties look to take their disputes overseas, sparking concerns about London’s future role in international litigation.

According to Mrs Justice Cockerill, the commercial court has dealt with 29 on-notice injunctions and 46 without notice so far this year. She said this is considerably higher than the full-year figures for each of the three previous years.

‘The perception of the judges of the court is that it has been heavily skewed to anti-suit injunctions,’ Cockerill J told the Dispute Resolution Forum. ‘Let’s be clear: these are not the Brexit/West Tankers anti-suits we were waiting for, they are global. What they tend to be is apparently clear breaches of exclusive jurisdiction clauses. For now we can hold the line with anti-suits. But it perhaps suggests that people may think more in future about such clauses.’

An anti-suit injunction is an order which restrains a respondent from pursuing proceedings in another jurisdiction.

The judge argued that Covid-19 has caused litigants to question the pre-eminence of English courts. ‘We know that former European partners have developed their own commercial courts and commercial litigation systems, and that the emphasis on them has been increased since we left the EU. However, my sense is that Covid itself has caused a certain amount of this thinking. It is not simply that we are outside Europe, it is that lockdowns and travel restrictions have created a more parochial feel. Some people who happily accepted an exclusive jurisdiction clause for English courts or English seated arbitrations now feel more comfortable at home.’

She added that while the commercial court had performed very well during lockdown, ‘we should not forget that we weren’t just good, we were lucky’.

‘We cannot think we did so well just because we were brilliant. And to keep our position we need to be every bit as good and as adaptable, and as innovative. We need to ask ourselves the question – why do people come here to litigate?’

A study published earlier this year by City firm White & Case found that Singapore now rivals London as the most popular seat for international arbitration, with Hong Kong coming a close second.

(Courtesy: The Law Society Gazette)