Published: May 2017Contents
i) What are the hot topics?
Brexit dominates commercial and legal discussion across Europe, but much about its meaning and effect remains, for the moment, theoretical and/or contingent. From a dispute resolution perspective, the private international law implications – e.g. the regime governing which country’s courts have jurisdiction and which country’s laws apply to disputes – are particularly relevant. Clients need to consider how best to frame their dispute resolution provisions to seek to mitigate so far as possible Brexit uncertainty.
Investor litigation continues to make headlines worldwide, even if actual progress is slow: some of it (for example cases in England against RBS and Lloyds) dates from the financial crisis, but new cases (for example claims against Tesco) continue to arise. They are all founded on alleged misrepresentations in market announcements or specific publications. The precise nature of that liability and the calculation of loss are big questions yet to be determined by the courts.
ii) Tell us about any key legal developments – recent or pending – and their international impact.
The Consumer Rights Act 2015 gives groups of affected persons a private law right to seek damages for breaches of competition law. The new regime is a major departure for English law but bring it closer into line with other jurisdictions: a representative brings collective proceedings on behalf of a group; affected individuals can opt-in or opt-out, depending on the claim. Before now, the closest England has got to class actions is the Group Litigation Order, but in fact this is simply a tool to allow the court to manage multiple claims. It is not clear how the new regime will operate in practice, although it is likely to be a powerful weapon for victims of cartels (wherever they are based) to seek redress. The first two claims have started – one, a follow-on damages claim against MasterCard, is the most valuable ever sought to be litigated in England – and the courts will soon decide whether they are suitable to be brought as collective proceedings.
iii) What are the biggest opportunities and challenges for practitioners and clients?
For lawyers and clients based in the UK and Europe (and even beyond), Brexit will continue to dominate the legal landscape for some time to come. This will bring opportunities as well as challenges. An early challenge will be resisting the temptation to take action for the sake of action, rather than on a reasoned basis. That involves recognising that not everything is uncertain: on closer inspection, some of the legal effects are likely to be minimal, even in areas currently subject to EU law. For instance, although the regime which determines which law governs a contract is contained in an EU instrument, Brexit is very unlikely to affect the validity of English choice of law clauses (wherever the parties happen to be based); parties will therefore remain free to choose English law and that choice will be respected. Even where uncertainty is greater, precipitate action now could be more costly than waiting until matters become clearer.