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Commercial courts rebrand to stay ahead

23 March 2017
The Times

This article was first published in The Times on 23 March 2017.

Aiming to simplify their structure and consolidate their status as a leading destination for high-value international disputes, England's commercial courts are undergoing a rebrand. From June 2017, the courts where business disputes are resolved will be known as the "Business and Property Courts of England and Wales".

This move will unite the business and property courts of the High Court of England and Wales, allowing greater scope for the cross-deployment of specialist judges. Such measures build on other recent changes, including the new state-of-the-art headquarters at the Rolls Building, a specialist list for complex financial market cases and a new system of case allocation, allowing for the same judge to preside over case management from commencement through to trial.

London's status as a key jurisdiction for international litigation was highlighted by the recent report by Portland Communications, "Who Uses the Commercial Court?". This found that foreign litigants made up some two-thirds of all cases heard, with parties from Kazakhstan, Russia, Switzerland and the US among the most prolific users. However, Africa's growing significance was also highlighted, with Nigeria taking its place among the top ten countries whose litigants face one another in the English courts.

Growing investment into Africa over recent decades has spurred the expansion and diversification of the continent's largest economies. Measures such as "local content" laws increasingly mandate the participation by indigenous businesses in foreign in-bound investments. Local business elites have profited hugely, with a growing ecosystem of African companies and high net worth individuals driving local investment and intra-Africa trade. Against the backdrop of the current slump in the commodities cycle, high-value commercial disputes are never far away.

The competence and independence of the judiciary, and the relative speed with which disputes can be heard, are aspects of the English courts' brand which are particularly attractive to African litigants. The familiarity of English procedure and jurisprudence to many from countries with common law legal systems is an added attraction. Cases such as Bouhadi v Breish (sovereign wealth funds), African Export-Import Bank & Anor v Shebah Exploration & Production Company (oil exploration) and Republic of Djibouti v Boreh (infrastructure) illustrate the breadth of high-value African commercial disputes heard by the English courts in the past year alone.

London's role as a leading arbitration venue is equally important, and the English courts are often called upon to exercise supervisory jurisdiction and/or deal with enforcement in relation to international arbitrations. The March 2017 Supreme Court judgment in the long-running IPCO (Nigeria Limited) v NNPC[2] dispute, over a Nigerian arbitration award with around US$ 300 million at stake, provides a recent example.

While the unfolding impact of Brexit brings uncertainties, a renewed focus on trade with the Commonwealth may serve to highlight still further the importance of the developing relationship between the English courts and the African commercial community. Post-Brexit legislative change may have a more limited impact on international arbitration, given the importance and effectiveness, consistently upheld by the English courts, of the New York Convention, with its 157 contracting states (the most recent of which, Angola, is another of Africa's largest economies).

As the UK's role in the world evolves and adapts, the English courts' position as a first-choice destination for international commercial disputes will remain crucial. Ongoing success shall depend on a continued ability to meet the needs of litigants from the world's emerging regions, which will of course include Africa. The recent reforms and rebranding underscore the Business and Property Courts' determination to do so.

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