Thursday, 4 April 2013

The roulette of law?

We posted an unusual news report on the website today about the application of Russian law by English Courts.

It’s a topical story, in these early days of referral fee bans and the Huhnes’ jail terms, which portrays as “draconian” English anti-bribery laws, by comparison with their Russian counterparts.

This is the latest product of the litigation tourism on which there has been much comment recently. Observers, including myself, have remarked on the anomaly that is the provision of a first class judicial service for the global elite whilst access to justice for the plebs becomes ever more difficult.

It‘s not all bad, of course. As well as the positive impact on the balance of trade figures, there are more profound and longer term benefits of “having people round to show them how it is done”.

Jurisdiction and applicable law clauses are nothing new to those of us involved in the drafting and/or interpretation of commercial contracts but until recently it is probably right to say that the focus has been on where the match should be played, rather than the rules to be applied.

Most folk can happily grasp the concept that where there is any sort of international element, there might be a squabble about who is to have home advantage. What is rather more difficult to embrace is the notion that a court in one country should decide a case according to the laws of another.

But in an increasingly globalised society, we can surely expect to see more of this. Not only is it a development of commercial practice and case law on an international level but it is also now promoted by conventions like the pan-European Rome II.

What intrigued me today reflecting on this article was the question of how, in time, this is going to impact on the application and development of our own law.

The report features a case involving a Russian businessman and companies he controlled for whom the application of a law made in Russia presumably presents no problems in principle, if not practically.

And it’s part of the attraction to the rest of the world that our judges, particularly those of the Senior Courts in London, have no difficulty in recognising the circumstances in which different laws should be applied, and the distinctions between them.

I say that – but then this was a decision of the Court of Appeal on the question of whether a judge at first instance had exercised those functions correctly!

Assume that in most cases we are getting it right, as it will be, yet there is still the question of where the grey areas creep in, and what shade of grey they will be.

Will a judge who has routinely applied foreign law in cases before him be influenced in the way that he approaches matters of principle and exercises judgment where English law leaves it open to his discretion? The public know almost as well as lawyers the uncertainties and difficulties often created by the fact that an outcome may be determined by what the court ultimately decides to be reasonable.

So, how do we define that in our multi-cultural courts of today? Is it still to be the man on the Clapham omnibus? Or will it be one on the Sapsan train, the Beijing bike or the Mumbai elephant?!

As the fruits of diversity within our society have demonstrated over the last half century, we should probably do well to have a combination of the lot! But is there a risk of losing touch with the foundations of our legal system?

Good lawyers always recognise the sovereignty of Parliament and the need ultimately to interpret statutory law by an understanding of what it was that Parliament intended, ultimately relying on the evidence of Hansard above all else.

The proper application of the laws of this land to this land may be a matter beyond debate but in times when we are perceived, repeatedly, to be leading with the chin on e.g. human rights issues then one can’t help but wonder whether it will be seen as counter-intuitive.

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