English Speaking Commercial Courts in France, Germany and the Netherlands bid for London's Work

Author Raimond Spekking Licence CC BY-SA 4.0 Source Wikimedia

 

Jane Lambert

At 23:00 on 31 Dec 2020, Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters ceased to apply to the United Kingdom.  One of the likely consequences that Judge Marieke Witkamp noted in her article Internationalizing Domestic Courts in Europe: A Comparative Analysis on Procedure, Function, Organization is that judgments of the English courts will be more difficult to enforce in the EU a well as the means of obtaining evidence and serving process.

That has presented an opportunity for lawyers and the judicial authorities in Germany, France and the Netherlands to grab some of the international commercial litigation work (estimated at €16 billion by Orchard Reports in UK Legal Services Market Trends Report 2019 (Feb 2019))  that has been coming to the Business and Property Courts in London.  All of those countries have opened special commercial courts in which evidence may be admitted and at least some of the proceedings may be conducted in English.  In Part 4 of her article, which is a preprint of the article that is submitted to Cambridge University Press to become part of the book International Commercial Courts: The Future of Transnational Adjudication Judge Witkamp compares the French, German and Dutch courts with the Abu Dhabi Global Market, Dubai International Financial Centre and Qatar Financial Centre Courts in the Gulf. the Astana Financial Centre Court in Kazakhstan and the Singapore International Commercial Court.

The courts in France, Germany and the Netherlands differ from the courts in Asia in several respects but perhaps the most striking is that they apply their own substantive and procedural law whereas the courts in the Gulf, Singapore and Kazakhstan apply the common law and procedures based on the Civil Procedure Rules or, in the case of Singapore, Rules of the Supreme Court.  Whereas many of the judges of the Asian courts come from the leading common law jurisdictions (including Ebgabd and Wales), the judges of the French, German and Dutch courts are local judges who have a good command of English. Similarly, litigators and advocates from overseas can appear before the Asian courts but only locally qualified practitioners can appear in the French, German and Dutch courts.  In the case of the French and Grman courts that is probably because part of the written procedure and the judgment in those courts must be in French or German as the case may be.  In Part 5, the judge compares various features of the European courts and it has to be said that the Dutch court appears to be far more users friendly than its rivals. Although the judge argues that the civil law system of litigation offers advantages over the common law system it does not yet appeal to most international businesses litigators.  

There is one international commercial court that is in the EU that applies the common law and has seen an influx of lawyers from the UK and that is the Commercial Court in Ireland. This has more in common with the Singapore International Commercial Court than it does with the English speaking courts on the Continent but the author does not mention that tribunal.  That is surprising as it must be a serious contender for any European work that London loses. Later in the year, James Bridgeman SC who is a door tenant of our chambers and our French and Italian colleagues, Natasha Peter and Guido Carducci will give a webinar on enforcement of EU trade marks, Community designs and plant varieties in their respective jurisdictions. It is not clear whether the French, German and Dutch courts would have jurisdiction in those cases but the Dublin Commercial Court certainly does.

Anyone wishing to discuss this article or any topic mentioned in it can call me on +44 (0)20 7404 5252 or send me a message through my contact form.  I wish all my readers a very happy Easter.

The Netherlands Commercial Court - an English Speaking Court in Amsterdam

By Stephencdickson - Own work, CC BY-SA 4.0,
https://commons.wikimedia.org/w/index.php?curid=72838371

Jane Lambert

On 28 Jan 2017, I wrote about a proposal to establish an English language commercial court in the Netherlands (see Jane Lambert An English Speaking Commercial Court in the Netherlands 28 Jan 2017 NIPC News).  In a Zoom call on Friday to an old friend who practises at the Dutch bar, I learned that the proposal was adopted by the Dutch parliament on 11 Dec 2018. An English speaking chamber within the Amsterdam District Court known as the Netherlands Commercial Court opened on 1 Jan 2019.

It appears from the website, A practitioner's guide to commercial litigation in the Netherlands, that the Netherlands Commercial Court has both original and appellate jurisdiction. Unlike the recently established English speaking courts in Abu Dhabi, Doha, Dubai and Nur Sultan, the Netherlands Commercial Court is a civil law jurisdiction which will apply Dutch substantive and procedural law.  Dutch procedural law provides a number of extraterritorial interim remedies that are not available in other jurisdictions and litigation in the Netherlands is believed to be considerably less expensive than in most common law jurisdictions.   Perhaps most importantly, Regulation 1215/2012 will continue to apply to the Netherlands after the 31 Dec 2020.

According to its list of judgments, the Court has given 6 judgments since it opened.   That may not sound a lot but it is a new jurisdiction with which foreign lawyers and businesses have had very little time to be acquainted.   I have just subscribed to its mailing list and will monitor its progress.  Anyone wishing to discuss this article should call me on +44 (0)20 7404 5252 during office hours or send me a message through my contact form.

European Circuit Webinar "IP Litigation post Brexit"

Author Jtdi  Copyright waived by the author

Jane Lambert

Yesterday I attended a webinar entitled "IP Litigation post-Brexit". It was presented by the European Circuit which is an association of advocates across the European Union and beyond modelled loosely on the Circuits of the Bar of England and Wales. The webinar was opened by the Leader of the Circuit, Mr Colm Ó hOisín SC. It was chaired by Ms Margaret Gray SC. The speakers were Nicholas Saunders QC of Brick Court, Jonathan Newman SC and Sir Robin Jacob.

The questions that I hoped might be addressed in this webinar were "What is to become of the Unified Patent Court?" and "What is to happen to cross-border litigation after Regulation (EU) No 1215/2012 ceases to apply to the UK?"  The first question was addressed because I asked it as did Fidelma Macken.  Sadly, nobody raised the second.

Mr Saunders noted that a vast volume of EU legislation has been absorbed into the laws of the United Kingdom.  From 1 Jan 2021 judges in this country will no longer refer points of law relating to that legislation to the Court of Justice of the European Union under art 267 of the Treaty on the Functioning of the European Union.  As British judges will have to do that for themselves he did not think it would be long before noticeable divergencies in the interpretation of the same instrument emerged.

Mr Newman agreed and opined that Irish courts would become less and less likely to follow English decisions as a consequence.  However. most of his presentation focused on the Commercial Court of the Republic of Ireland. and a proposal to create an intellectual property list within that Court. Sir Robin said that Ireland had a great opportunity as the main common law jurisdiction to take much of the work that will no longer go to London but it was an opportunity that Ireland was in danger of losing.  Ireland had yet to ratify the Unified Patent Court Agreement and failed to send judges to judicial forums.   The Netherlands was also a small country but the Dutch courts and lawyers had made a big contribution to the development of European IP law.

On the question of what will happen to the Unified Patent Court, Sir Robin thought that the agreement will have to be renegotiated.   Annex II of the Agreement allocated chemistry and pharmaceutical work to London. Sir Robin doubted whether businesses in those industries would want to litigate their disputes in Milan.  Judges and lawyers from the UK had contributed massively to the preparations of the Court including the procedural rules.  He was saddened by his country's withdrawal from the project and believed that the UK would be missed.

Although I enjoyed the presentations I think the webinar would have been improved greatly by contributions from IP Bar Association, the IP Lawyers Associations and the Chartered Institutes of Patent and Trade Mark Attorneys.  Sir Robin suggested that the Irish might send for Mr Justice Birss who would be an excellent speaker.  Perhaps, Lord Justice Arnold might be even better as it was he who reformed the Patents County Court and created the Small Claims Track.

Anyone wishing to discuss this article or any of the topics mentioned in it should call my clerk on  07986 948267 or send me a message through my contact page.