There is a certain irony to be found in France’s enthusiastic uptake of English courts just as the UK detaches itself from the EU, an irony accompanied by a realistic fear of weakening the English judiciary.
Of course, the introduction of an English-language common law commercial court in Paris is nothing new for the continent, with similar proposals already taking form in Belgium and Germany. However, the Parisians have recently upped their marketing drive, announcing a flat court fee of €100 to contest the Rolls Building’s less-than-competitive entry price of up to £10,000.
It all adds up to an attractive package in Paris, with the court also offering the guaranteed enforceability of judgments throughout the EU and ‘bilingual judges who are familiar with the principles of common law’, according to France’s Minister of Justice, Nicole Belloubet. It is clear that this is an attempt to take advantage of any decreasing desirability of a post-Brexit English court system.
So are English litigators quaking in their boots? Not really. Quinn Emanuel Urquhart & Sullivan litigation partner Ted Greeno is calm but cautious: ‘It will take a lot more than this new court to make a serious dent in London’s position and the prevalence of English law. But it’s another warning shot.’
For Greeno, the issue puts the lack of funding into the English judiciary in the spotlight: ‘This should be a wake-up call for the government. They need to put proper resources into the English courts. Comparing €100 to £10,000 – it’s an incredible difference.’
When speaking to litigators, the viability of the court will largely rest on the calibre of judges at its disposal. Currently the only description we have to go on is the aforementioned set of ‘bilingual judges’.
Simmons & Simmons litigation partner Ed Crosse says: ‘The key consideration aside from the recognition of judgments will be who is selected as judges. Certainly if the proposal is to apply English common law, then the court would need to be comprised of recognised and experienced members of the English judiciary. It remains to be seen whether current or former members of the English judiciary will be attracted to this court.’
While it is unknown whether the Paris court will be able to lure English judges, recent developments suggest they are willing to seek pastures new. Due to the judiciary’s mandatory retirement age of 70, some of England’s more respected judges have made such moves: notably Lord Justices Jackson and Woolf have set up a new commercial court in Kazakhstan this year. Former High Court judge Sir Bernard Eder also made the switch to the Singapore International Commercial Court in 2015.
Simon Davis, Clifford Chance’s commercial litigation partner and future president of the Law Society, brings the client into focus: ‘I look at these courts through the eyes of the client, and they will find it uncomfortable and unfamiliar.’ For his money, the Paris court is somewhat pointless: ‘If you are not replicating entirely what is happening in the English courts, such as procedure, disclosure and lots of cross examination, you are going to have an uncomfortable blend. If they are replicating all that, then why not do it in English courts?’
Litigators are within their right to downplay such news; after all, it is very early days. But it is also hard to argue with such reduced fees. Finding a strong bench of English judges would take the threat to a whole new level.