Lord Goldsmith talks to ACICA audience about Brexit and arbitration 

(Copy of Lord Goldsmith’s Paper Available for Download here)

On 24 October 2016, Lord Goldsmith presented to an ACICA audience in Sydney on Brexit and arbitration. He set the Brexit scene: Theresa May is still tight-lipped about the nature of Brexit, following a Brexit campaign characterised by a lack of clarity on what Brexit would actually mean. Uncertainty abounds, except for in one aspect: indications are that negotiations won’t be easy. The EU has made it clear to the UK that there will be ‘no negotiation without notification.’ The constitutional battle rages in the London courts.

The thesis of Lord Goldmsith’s talk was that Brexit will not lead to a diminution of the merits or popularity of London a seat of arbitration nor damage the popularity of English law as the commercial law of choice for many international transactions. Why is this the case? Lord Goldsmith stated that despite Brexit, London would retain the key features of a desirable seat of arbitration:

  • a clear arbitration law,
  • an independent judiciary,
  • legal expertise,
  • education,
  • the right of choice in representation,
  • accessibility and safety of the seat,
  • facilities,
  • professional ethics that embrace diversity of traditions,
  • enforceability and
  • arbitrator immunity.

Lord Goldmsith sees opportunities for reshaping the English legal landscape in the wake of Brexit. These include both the substantive disentanglement of UK common law from EU law, as well as procedural aspects of the UK courts’ exercise of jurisdiction.

Finally, the audience was told that Brexit might influence the global debate about the legitimacy of ISDS. The UK’s decision to opt for one model or the other will influence the course of the debate particularly as the UK will become one of the more active trade negotiating countries over the coming years.

In his concluding remarks, Lord Goldsmith stated it may now be time for Australia and the UK to grow a new and invigorated cooperation in the field of common law. This is also the time for lawyers to examine closely the opportunities for collaboration in training, development of the law and finding better ways to serve clients.

Author: Marina Kofman, ACICA