In June this year, the Hong Kong Court of Appeal held that the English Court of Appeal decision in Three Rivers (No.5) does not represent Hong Kong law. This is, of course, the 2003 English Court of Appeal decision well-known for the challenges it presents companies who wish consultations with their legal advisers to benefit from the protection of legal advice privilege.
The English court system has added to its stable of specialist courts a Financial List, to deal with major banking and other financial disputes.
Calling time at the Bar – Quality fears for English judges are growing as top QCs turn away from the bench
Disillusionment within the England and Wales judiciary was laid bare by the findings of the UK Judicial Attitude Survey in February this year. Pay freezes, pension cuts and increased workload have evidently soured the mood at the bench.
The survey, carried out by the UCL Judicial Institute, indicated that 86% of judges who had been in the post for at least five years believed that working conditions had worsened since 2010. And nearly a third of judges are considering leaving their positions early in the next five years. Perhaps even more worryingly, a high proportion of judges said that reduced pension benefits (76%) and a reduction in income in real terms (69%) would discourage people from joining the bench.
The return of our Disputes Yearbook finds the wider outlook for contentious work considerably changed over the last 12 months. The flood of disputes that were not so long ago carrying along pretty much all vessels has receded on both sides of the Atlantic. Limitation periods have dramatically slowed the flow of litigation linked to the banking crisis, while rising business confidence has turned the mind of executives to deal-doing rather than cleaning up old messes. It is a more challenging time for the run-of-the-mill disputes team.
Nevertheless, it remains a more-than-respectable environment in which to ply the services of high-end disputes shops. Even if the march of more proactive enforcement and regulation across many sectors has paused for breath, the long-term trends show no suggestion of abandoning the global-wide push towards a more regulated business environment. The creeping extension of corporate liability and the vogue for developing economies to start clamping down on at least the most flagrant corruption look set to continue for years to come.
Herbert Smith Freehills’ Tim Parkes welcomes the overdue launch of London’s financial court but warns of the dangers of test cases
Not before time, the English court system will soon add to its stable of specialist courts a Financial List, to deal with major banking and other financial disputes. This is a positive illustration of the English courts not resting on their laurels as a pre-eminent venue for commercial dispute resolution but taking active steps to ensure that they meet the needs of financial markets users and enhance London’s status as a global financial centre.
As contentious work increasingly drives revenues at major City firms, Legal Business canvasses the leading teams to find the new partners setting the disputes agenda.
Over the last decade, an undeniable emphasis on contentious skills has occurred among the elite City firms. While seasoned litigators and arbitration specialists still dominate the landscape, firms are working harder than ever to develop their younger generation of partners.
When I came to the Bar I didn’t know anybody, but fortunately got introduced to Tom Bingham and I was his marshal during my pupillage for about six weeks. He was a very inspiring figure. He was quite a junior judge then but he had tremendous insight. I was only with him for six weeks but he’s the person I’ve learnt the most from.
At that stage I liked the sound of my own voice too much. The problem at the Bar is that you’re always arguing a corner, it’s very difficult in your personal life. My wife always says ‘stop cross-examining me’.
In a small resort called La Féclaz in the Alps, a lawyer was sitting next to me in the restaurant telling stories about criminal law. I said then: ‘That’s what I’m supposed to do.’ I was just going through the motions before that and being made miserable by studying maths.
I spent two summers at Rockefeller Plaza being a New York lawyer when I was 30 at a two-partner law firm called Layton & Sherman. They were typical New Yorkers… always in pinstripe suits! I had never been to Manhattan. I lived near the Upper West Side and I was going out in jazz bars and going downtown meeting artists.
I’ve had a happy time. My wife said at school I spent most of my time in the library. I came to 4 Essex Court in 1975. This is my home. In those days, 4 Essex Court was the number one set of chambers for commercial work and I met the head Bob MacCrindle. He was Tom Cruise, Brad Pitt, Obama, Putin… a mixture… it was like getting a part in a Hollywood film because no one got into 4 Essex Court in those days.
I remember Bob saying: ‘I’ll tell you three things. One, I’m leaving’. He went to Shearman & Sterling in Paris around the time tax rates were 98% or something like that. Second, he said, ‘you’re going to buy my chair and table’. I was 22, didn’t have any money and he said ‘that will be £100’. I said ‘okay’. I still have that furniture. Thirdly, he gave me some advice and said: ‘If you don’t have to say anything, don’t.’ That stayed with me. I’ve been incredibly short in my judgments.
With growing caseloads and global appeal, international arbitration is blossoming – as is criticism of rising costs and delays. As some practitioners develop tactics to ‘fix’ arbitration, will they do more harm than good?
It has taken 25 years since the end of the Cold War for states to fully embrace the notion of settling their disagreements through a third party, but as the recent and resolved case between Singapore and Malaysia shows, inter-state arbitration can be a powerful force in international relations. Similarly, large and sophisticated corporate consumers of dispute resolution services have developed a growing enthusiasm for arbitration when it comes to settling their disputes.