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London arbitration roundtable: Part I

October 12, 2019
Craig Arnott

In March of 2019, Burford gathered leading London lawyers and arbitrators for a roundtable to discuss the city’s continued evolution as an arbitral center. Excerpts of their conversation, co-moderated by Burford’s Elizabeth Fisher and Craig Arnott, are gathered below.

We’re grateful to the participants for their willingness to share their perspective and time.

Thomas Sprange QC, London Managing Partner, King & Spalding

Sylvia Noury, Partner and Head of International Arbitration London, Freshfields

George Burn, Partner and Co-Leader International Arbitration, Bryan Cave Leighton Paisner

Justin Williams, Partner and Head of International Arbitration, Akin Gump

Paul Brumpton, Partner, White & Case

Jane Wessel, Partner, Arnold & Porter

Chris Parker, Partner, Herbert Smith Freehills

Janet Whittaker, Partner, Clifford Chance

Hamish Lal, Partner, Akin Gump

London is widely recognized as a leading seat of arbitration. Why do foreign parties choose London as an arbitral seat?

Justin Williams: London has been a beneficiary of simply not being the US. When non-US corporations contemplate a potential dispute, they often have concerns about the US in terms of jurisdiction, tax issues and jury trials—and the perception that they need to avoid the US. Although this may be a misconception, London has benefitted from that mindset.

George Burn: There are two contradictory points I would make. On the one hand, London ticks all the boxes: It has the centuries-old body of commercial litigation; a genuinely reliable independent judiciary; good lawyers and arbitrators; the facilities are excellent; and proceedings are conducted in English. It's a fantastic arbitral seat, not just for the commercial arbitrations such as the ICC and LCIA cases, but also for maritime cases, insurance and re-insurance cases, the commodities world. Among other arbitral seats, few rival London.

On the other hand, internationally, there certainly are questions about London as a legal seat. I recently was in Tel Aviv, where local lawyers noted that, although they like English law, the notion of using barristers and then English law firms seems foreign and confusing, especially as compared to Geneva or Amsterdam. And of course, Brexit may further complicate things for international parties. To ensure London’s brand doesn’t get tarnished, we should look critically at what we do as providers of dispute resolution services.

Jane Wessel: We need to guard against being complacent about our court system and continuing desirability as a seat of arbitration to foreign parties. For instance, over the last few years court timetables have been becoming lengthier in the English courts as the resources available to our courts have been cut. International commercial courts are becoming increasingly prominent, such as the new Netherlands international commercial court. If any of those entities can develop an efficient and quick system, there is a danger that they could overtake the English courts in parties’ preferences.

Sylvia Noury: In the context of a corporate transaction, a London seat is often packaged up with English governing law, which as we know from the QMUL survey is the most popular governing law for cross-border contracts. This package is (and will remain) very attractive for those who want commercial certainty. Having just negotiated contractual terms they are happy with, parties are understandably keen to find a dispute resolution package (including both the governing law and the supervisory courts in any arbitration) that will uphold those terms with minimal interference.

That said, when considering an arbitral venue, parties of course consider a number of factors, including an eventual challenge to the award and the appellate system of the courts at the seat. As we have recently seen in one of our BIT cases, when you go to the Swiss Federal Supreme Court on a challenge, it's just one shot there--you go straight into the Supreme Federal Court and that's it. This was the main reason we chose a Swiss seat—it was very attractive to our clients, knowing that the respondent state would undoubtedly challenge the award. For a BIT case, which could take up to six years to conclude, adding the time it would take for a decision on the challenge to be appealed could make London less attractive. In the US, for example, we had a negative appeals experience in a BIT case against Argentina in a challenge that took six years to go all the way up to the Supreme Court.

Thomas Sprange: I agree that England can at times be a little parochial. But as an Aussie, I come here and do arbitration; I appear in the commercial court a couple of times a month. I definitely can't do that in Singapore. I definitely can't do that in India. And I probably can't do that in many other jurisdictions. Compared to other venues, London is much more open to people who want to come here and practice, and that opportunity makes London much better for anyone to practice law and to do disputes.

At the end of the day, London is globally recognized as an extremely rigorous system with a well-developed body of law, both of which are attractive when you are dealing with serious commercial issues. You may lose a case and not like the English judge or arbitrator's finding, but you will never go away thinking it wasn't carefully considered and properly analyzed. Other arbitral centers can't always compete at that level.

This year marks the inaugural London International Disputes Week as well as the launch of the City’s first dedicated arbitration facility, the International Arbitration Centre. How will these developments impact the future of arbitration in London, especially compared to rival centers, such as Singapore?

George Burn: The IDRC is partly owned by practitioners, so many people will always hold it close to their hearts. But, frankly, we needed an alternative, somewhere a little bit different and better. The ICC's facility in Paris, Maxwell Chambers in Singapore, and even the new center in Mumbai are all better in terms of facilities than the IDRC, so it’s good in that sense to have a genuine competitor with the International Arbitration Centre.

I think the Disputes Week is really significant and a good thing for London to be doing, because it showcases the full spectrum of disputes in London, not just arbitration. It's all the court litigators as well, people that practice mediation. It's fantastic that the Secretary of State for Justice is speaking. It's genuinely a good thing.

Janet Whittaker: I agree that it’s an excellent development for London to have an International Disputes Week. Ultimately, however, this development will be additive rather than determinative. What will continue to secure London’s position as a leading seat are all its other attributes—English law, the neutrality of the court system, easy access to highly qualified lawyers, and English language proceedings.

Paul Brumpton: Another point to make is that because London is a center for lawyers, there is an enormous amount of arbitration work done in London which is neither English law nor English seat. In fact, the majority of my cases in the last ten years have been neither one or the other. A lot of what we do is foreign law, foreign seat. People come here for construction expertise, investment treaty expertise, or whatever it may be, because London is this huge center of gravity of legal expertise.