In Paper 2 of the Brexit papers Access to the EU legal services market The Bar Council Brexit Working Group reminded us that "the UK legal services market is a significant revenue generator for the Exchequer, worth £25.7 billion in total, employing approximately 370,000 people. Much of its work comes from overseas:
"In 2015, of the 1,100 cases registered at the Commercial Court, more than two-thirds had one non-UK based party to proceedings."That would probably be true of the Patents Court where the world's leading pharmaceutical and consumer electronics companies settle their disputes and to a large extent the Intellectual Property Enterprise Court. Net exports of legal services generated an estimated £3.3 billion in 2015.
Even though it is more expensive to litigate in common law countries than in most civil law jurisdictions businesses still come to London because proceedings are in English and the UK is in the European Union which facilitates the enforcement of judgments and allows lawyers from other member states to practise here and British lawyers to practise in other member states. Brexit threatens the second of those advantages as Paper 2 points out, but a new English speaking commercial court in the Netherlands appears to be about to challenge the first.
According to Eelco Meerdink, a partner of DeBrauw Blackstone Westbroek in Amsterdam, "uncertainty created by the UK’s vote to leave the EU has left European legal firms and financial institutions considering homes in other parts of mainland Europe" (see English language in Dutch courts 1 Dec 2016 LexisPSL). There is already a website for the Netherlands Commercial Court. Its home page states:
"Amsterdam will soon be joining the likes of London, Dubai and Singapore when the new Netherlands Commercial Court opens its doors.Unlike the new English language courts in the United Arab Emirates and Qatar which I track in NIPC Gulf the procedural and substantive law of the Amsterdam court will be Dutch and, apparently, so will the judges.
This court shall be specialised in hearing complex (international) commercial cases.
The Netherlands Commercial Court will offer parties to business and trade disputes a forum where they can litigate in English before neutral, specialist commercial judges, right in the heart of Europe."
The use of Dutch law by the Dutch judiciary is cited as one of the advantages of the new court:
"The court will provide an alternative to parties who want to litigate in English, but wish to avoid expensive forums such as London or the United States."Those procedural advantages include the preliminary injunctive relief that is available including the extra-territorial injunctions that are granted frequently by Dutch judges.
I will follow these developments closely and report on them from time to time. At present, I enjoy rights to practise in other member states including the Netherlands under the Lawyers Services Directive (77/249/EC) and indeed to establish myself in Amsterdam the Lawyers Establishment Directive (98/5/EC). If clients so require, I shall take advantage of that legislation for so long as I can.