In an increasingly competitive market for dispute resolution across jurisdictions, commercial courts still need to work together to uphold the rule of law and support international economic cooperation and prosperity. To do so requires the courts to meet the needs of the business community, said Lord John Thomas of Cwmgiedd, the Lord Chief Justice of England and Wales in a guest lecture at the Grand Court of the Cayman Islands.
In his March 2 talk, which formed part of the courts’ Judicial Education Committee, the most senior judge in England and Wales outlined what commercial courts need to do to stay relevant and to deliver what businesses need from the court system.
“Commercial courts must ensure that they … remain aware of changing business needs and market practices, that they innovate and continue to provide accessible, flexible, economical, efficient justice,” Lord Thomas said. “It is not a case of saying that the needs of business are king. It is more a case of saying that the quality of justice is king; and that is what each commercial court should aim to guarantee businesses.”
For businesses, the two main factors when considering litigation are time and cost, in addition to the certainty of law. While the Lord Chief Justice acknowledged that courts had not “always been designed or operated with the needs of business foremost,” he outlined best practices and innovations in the U.K. and other international jurisdictions that are helping courts to remain “centers of excellence” in an increasingly competitive “market in justice.”
Courts should be vigilant against the long-standing challenges of “cost, complexity and delay,” adopt new approaches to disclosure and discovery and realize the potential of IT, he said.
To remain responsive to business needs, he recommended listening and responding to complaints when they arise, and introducing user liaison committees, “which are indispensable means of communication between the commercial judges, court administration, commercial lawyers and business leaders, both domestic and international.”
The judiciary must have “wide-ranging dialogue to check that the views of all – particularly those who are averse to committees (or do not have the time) – are properly communicated,” he said.
Technology also plays a key role, and the development of an online court/tribunal is progressing in England and Wales, for example. In addition, the London Commercial Court and a few other courts have embraced digitalizing court processes and records. Beginning in April 2017, all claims, applications and documents must be filed online.
It is similarly anticipated that “judges will lead the way” in paper-free trials, as it is already happening in the Crown Court of England and Wales, the Lord Chief Justice said.
In relation to often time-consuming and expensive disclosure procedures, he referenced innovations such as using automated search mechanisms rather than cadres of junior lawyers or paralegals. This new automated approach is being combined with efforts to devise more flexible approaches to disclosure.
In other areas of more business-friendly procedural flexibility, Lord Thomas mentioned the London Commercial Court’s approach of adapting processes to fit the needs of cases. Courts have also introduced more business-oriented, shorter trial procedures that ensure that a single judge is responsible for the management of a case from start to finish.
Other strategies enabling courts to adapt to the needs of business include ensuring the right fit of expertise of judges to the requirements of disputes, and the “development of the law to meet the changes in the way that business is conducted.” This involves preemptively seeking resolution to issues in cases where there is no applicable precedent, even before a legal problem arises.
Overall, said Lord Thomas, “there can be no doubt that what a commercial court needs are judges of the highest caliber who understand the needs of business.” This requires high quality judicial education and seminars through which the business community brings the judiciary up to date.
The provision of modern IT amenities and the availability of legal assistants and of advocates of the highest caliber are other support needs of judges.
“A commercial court, like that in London and here in the Cayman Islands, which can demonstrate its adherence to such standards, is one whose judgments are capable of enforcement across frontiers. It is a court which has real utility to the international business community,” the Lord Chief Justice concluded.
However, he conceded that one area that still needs work is enforcement, where the development of an effective, widely respected enforcement mechanism for commercial disputes is long overdue.
The execution of judgments in other jurisdictions will form part of discussions in a forthcoming forum of international commercial courts in London, he said. The aim of the forum will be to standardize international mechanisms by which judgments for plaintiffs who win cases in Cayman, for instance, can be enforced against defendants’ assets in another jurisdiction.