Paul Martenstyn Managing Director

VANNIN CAPITAL

Ania Farren Managing Director

VANNIN CAPITAL

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VANNIN CAPITALSPOTLIGHT ON LONDON

The first ever London International Disputes Week or “LIDW” is taking place in London on 7-10th May 2019, and Vannin Capital is proud to be a platinum sponsor of this event which is aimed at “promoting London’s prominence as a venue for resolution of disputes” (Ian Quirk, Arbitration Consultant for ICC UK, Essex Court Chambers).

Vannin Capital, Managing Directors, Paul Martenstyn and Ania Farren, are founding members of LIDW and took the opportunity to meet with some of the industry’s leading disputes practitioners to talk about the event and more broadly, what continues to make London such a popular seat for international litigation and arbitration.

SPOTLIGHT ON LONDON

Vannin Capital is proud to support:

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LIDW - its scope and aims

Richard Bamforth and Guy Pendell of CMS are spearheading LIDW. We asked them to explain the thinking behind the event and what it is hoping to achieve:

“The idea came about following a number of conversations between members of the London disputes community in late 2017, at a time when Brexit discussions were high on the national agenda. There was (and remains) a sense that English law, and dispute resolution in the UK, and London in particular, has been an important aspect for international business for many years. Now is a good time to recognise and celebrate that, as well as encouraging colleagues from across the international business community to come together and to explore the future of global dispute resolution and best practice. All of us involved in those early discussions have been amazed by the level of interest and enthusiasm. There are over 50 international law firms and barristers’ chambers signed up as Founding Members and Supporters. We currently have15 organisations signed up to sponsor the week as well as support from a large number of other institutions and bodies. I don’t think anyone ever imagined that would happen.”

THERE ARE OVER 50 INTERNATIONAL LAW FIRMS AND BARRISTERS’ CHAMBERS SIGNED UP AS FOUNDING MEMBERS AND SUPPORTERS. RICHARD BAMFORTH AND GUY PENDELLCMS

VANNIN CAPITALSPOTLIGHT ON LONDON

A FULL PROGRAMME OF EVENTS TAKING PLACE ACROSS THE WEEK IS AVAILABLE AT LIDW.CO.UK

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In terms of the timing of LIDW Richard and Guy explain: “We will all be getting together in London just over a month after the UK leaves the EU, so it is the perfect time to reflect on these matters.”

Unlike other, similar events organised in other jurisdictions, LIDW does not focus exclusively on just litigation or arbitration or a particular sector but “very much on dispute resolution as a whole”. Richard and Guy stress that “the international arbitration community and the judiciary have been equally supportive, and the levels of interest and co-operation that we have encountered is perhaps best illustrated by the flagship conference on the Wednesday of the Week, which has been arranged by a committee made up of the LCIA, ICC, Bar Council, Law Society and CIArb. Over the course of the Week, there will be sessions focussing on both litigation and arbitration and also on alternative dispute resolution. Sector focussed sessions will embrace all forms of dispute resolution. It is very much intended that the all the sessions will be practical and focussed on the resolution of disputes from the point of view of users rather than on academic debate. We hope that there will be sessions that are of interest to all participants, whether more generally or specific sector focussed (such as for example energy, insurance, life sciences). We have 18 sessions running in total over the week.”

The organisers of LIDW are very keen that the Week is of interest to all users of English law and dispute resolution services in London: “That means General Counsel, all in house counsel, and not just disputes teams, and Legal Operations executives. We are also very keen to see members of the international legal community as well as London based lawyers, who are keen to contribute not only to a celebration of London’s great heritage but looking ahead to what the future holds for international dispute resolution.”  

What kind of work is London attracting?

We were keen to get some insight from disputes practitioners on any trends they had spotted in the work that London is attracting.

Anneliese Day QC (Fountain Court Chambers): “As shown by the 2018 Queen Mary/ White & Case International Arbitration survey, London’s popularity as an international dispute resolution centre has continued to grow: 47% of respondents cited London as a preferred seat in the 2015 survey, with this rising to 64% in the 2018 survey. ”

Joanna Page (Allen & Overy): “London continues to attract international disputes of gargantuan complexity. In court, disputes relating to complex financial instruments continue to be a major part of the court’s case load, reflecting parties’ confidence that English judges will be familiar with such instruments and with the need for contractual certainty. Shareholder/joint venture disputes, involving many other jurisdictions, also remain a regular feature although the underlying facts vary hugely.”

VANNIN CAPITALSPOTLIGHT ON LONDON

LONDON IS AT THE FOREFRONT OF MANY ARBITRATION-RELATED ISSUES: THE USE OF THIRD PARTY FUNDING IS A GOOD EXAMPLE.GARY BORNWILMER HALE

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Mark Molyneux and Richard Wise (Addleshaw Goddard): “We think that this is a really interesting time for the disputes market in London. Whilst there are still some new major banking, finance and oligarch cases, this part of the market is not as buoyant as it was five years ago. The team has, however, also been incredibly busy in other areas, and in particular: a) competition and antitrust cases (both follow-on damages cartel cases and stand-alone abuse of dominance cases); b) large tort claims, including shareholder claims and data breach and product liability cases; and c) large IT and outsourcing disputes. We have also seen a real increase in white collar crime, regulatory, investigations and compliance work, given the combination of major high profile corporate problems and a renewed board room focus on the problems and consequences of corporate crime.”

London as an arbitral seat?

Focusing more specifically on arbitration, we asked practitioners what made London so popular as an arbitral seat.

Gary Born (Wilmer Hale): “Parties continue, as they have for decades, to choose London as a seat because it remains an even-handed, expert, efficient and arbitration-friendly jurisdiction and because English law remains a very popular choice of substantive law in international contracts”

Domitille Baizeau (Lalive): “There are many factors, some common to all popular arbitration seats, some unique to London and England.

London offers a strong pro-arbitration legal framework (the 1996 Act) and the support of highly skilled, arbitration-friendly, court judges. Some specific features like the default rule of confidentiality in arbitration - which does not exist in Switzerland for instance - may also provide an advantage. Then you have a very active London-based arbitral institution, the LCIA and, of course, a very large pool of talent when it comes to arbitrators and arbitration counsel. All this also allows London to be at the forefront on many arbitration-related issues; the use of third party funding in arbitration is a good example.

VANNIN CAPITALSPOTLIGHT ON LONDON

THE REASONS FOR LONDON’S DESERVED REPUTATION AS A LEADING SEAT HAVE NEVER DEPENDED ON MEMBERSHIP OF THE EU.SOPHIE J. LAMB QCLATHAM & WATKINS

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Beyond arbitration per se, London remains one of the most dynamic financial and economic centres in the world and English contract law a first choice of substantive law for international contracts. That in turns makes London a natural choice of arbitration seat in many dispute resolution clauses.”

Sophie Lamb QC (Latham & Watkins): “London has long enjoyed a reputation as one of the most popular and trusted arbitral seats in the world.

The most important features of an arbitral seat are:

• respect for the rule of law

• domestic arbitration legislation which is modern, comprehensive and clear, which respects the parties’ choice of arbitration, provides a framework for resolving a dispute by arbitration, limits the scope for judicial intervention and mandates the recognition and enforcement of arbitral awards in accordance with international treaties.

• a highly experienced, independent, incorruptible and efficient judiciary with an established pedigree of respecting the arbitral process and enforcing arbitral awards including those rendered overseas

• a respected, experienced and dynamic local bar governed by the highest standards of ethical conduct.

• the ability of parties to be represented in arbitration by lawyers from anywhere in the world

• safety, accessibility and infrastructure.

London has all of these important qualities and more. The English Arbitration Act is into its third decade. It provides a tried-and-tested framework for international arbitration. The Commercial Court has quite demonstratively played an important supportive, non-interventionist role in ways which are qualitatively and statistically verifiable. This strong symbiotic relationship between London arbitration and its courts explains much of the success of London as an arbitral seat and will remain important in safeguarding its success. We will be celebrating our judicial system more generally, and in particular our specialist courts, during LDIW. “

Andy Moody (Baker McKenzie): It is unlikely to be the weather, though it could be that London is one of the best cities in the world to visit! I believe it is because London is the soufflé of the arbitration world: a mix of ingredients that have risen into something perfectly formed and which the vast majority of people enjoy. The ‘ingredients’ for its success include the well-known – the global use of English law, the Arbitration Act, the deep pool of arbitration counsel, a wide group of experts on nearly every topic one can imagine, the number of international businesses located here, the geographic location, the global use of English language, the Court’s support of arbitration, institutions such as the LCIA, etc – but I believe there may be more to it. There is a confidence in the practice of arbitration in London that is unrivalled (I believe) anywhere else. That confidence, even swagger one might witness in some practitioners, instils in clients a confidence that London is the place to come to resolve their disputes. Plus, you can go to the theatre or the football or go shopping if you are inclined to do so.”

The impact of Brexit

There are mixed views on whether or not/the extent to which Brexit will have any impact on London’s popularity.

Gary Born states confidently “I see no reason why Brexit should have an impact on London’s status as a global centre for arbitration.” Andy Moody meanwhile concedes “I believe it inevitably will do. My impression is that like everything else to do with Brexit, everyone is in wait and see mode at the moment.”

Domitille Baizeau: “As much as one may view Brexit as an unfortunate development politically, we do not believe that it will have a negative impact on London as a seat of arbitration and a leading international dispute resolution centre. On the contrary, London’s attractiveness may actually increase as it may become viewed as a more neutral venue for arbitration outside of the European Union, akin to Switzerland; and of course, the increase in market volatility emanating from Brexit may result in more disputes, including more arbitrations being heard in London.”

Sophie Lamb QC: “It hasn’t, and it shouldn’t. The reasons for London’s deserved reputation as a leading seat have never depended on membership of the EU. Other leading centres for international arbitration, including Hong Kong and Singapore and those in Switzerland have thrived wholly outside of the EU.

For international arbitration, it is the New York Convention that is our most important legal infrastructure. That global treaty, which allows for the recognition and enforcement of arbitral awards in over 150 countries, does not depend on membership of the EU. Awards rendered in London will continue to be enforceable in other New York Convention jurisdictions, including in the EU Member States, regardless of Brexit. The key European instrument on jurisdiction and enforcement issues in civil and commercial matters, the Brussels Regulation, does not apply to commercial arbitration.

There may be opportunities too, whether in the context of enhancements to the Arbitration Act, the potential wider availability of anti-suit relief post-Brexit or indeed investment structuring as the wider implications of the Achmea decision for intra-EU treaties are explored.”

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Louis Flannery QC and Vivek Kapoor (SH Legal): “Undoubtedly the uncertainties surrounding Brexit have clouded London’s future as the centre for international trade and commerce. If multinationals are thrown into a no-deal scenario, there is a danger that they will migrate their businesses abroad – possibly to Ireland – and naturally migrate the seat of arbitration with them – the language gap is being bridged by multilingual – i.e. english-speaking – courts.”

Johannes Koepp (Baker Botts): “Under current conditions, the rise of newer seats in economically booming regions and economic sanctions seem to represent far greater challenges for London-based arbitration than the prospect of Brexit.”

The role of funders

The sophistication of the London funding market as well as the increased role of funders in dispute resolution was also specifically identified by practitioners.

Mark Molyneux and Richard Wise: “We are seeing a desire from institutional clients to understand litigation financing. Not only to benefit their own balance sheet, but because they acknowledge the impact it can have on defendant strategy and the need to understand a growing body of law in the area. Litigation financing regulation is an increasing driver in the competition between dispute centres as they jostle for prominence. London is well placed with its mix of established TPF and insurance players, and an adverse costs regime to curb behaviours.”

Domitille Baizeau: “Yes. There are now many of these annual one-week arbitration events around the world (Switzerland is also looking into one), but they are popular, as we have seen in Hong Kong and more recently in Paris. They allow practitioners to meet, but also to exchange on specific local or regional issues. Such an event in London could allow the city to better profile itself with non-Londoners in terms of available and affordable legal services and facilities for hosting hearings and the role played by the English courts in support of arbitration.”

Andy Moody: “I think having a London Disputes Week is a fantastic idea. It is really important, given Brexit, that we are seen to be proactively promoting London as a seat to the wider world. In particular, it will of course provide another opportunity for engagement across the wider arbitration community, but we should also use it as a way to engage with the large number of international businesses in London who use arbitration. I believe that is the key to making it different and a positive force for encouraging the use of London as a seat.”

Johannes Koepp (Baker Botts): London’s success as an international dispute’s hub is to a large extent due to the English efforts to promote the use of English law and English courts/English arbitration abroad. English law has become a true “commodity” used by parties based in all parts of the world, due to its perceived simplicity, accessibility and commercial focus. As other jurisdictions (e.g., France, The Netherlands, Germany) make increasing efforts to get a bigger share of the international disputes business (including disputes conducted in the English language and/or governed by English law), a London Dispute Resolution Week may be a good tool to counter those efforts and bolster the marketability of English law.”

Anneliese Day QC “Funding has now entered the mainstream for good with funders playing an increasingly pivotal role in what cases are brought and how those cases are managed. The market should embrace rather than fear that. The way in which cases are reviewed and run by funders has become increasingly sophisticated and increasing numbers of claimants are offsetting the multi-year exposure of capital through bespoke funding arrangements. Funders are likely to be key players in the international litigation and arbitration markets going forward.”

Do you think that a London Disputes Week will help promote London as a seat?

Gary Born: “A London Disputes Week will put the spotlight on London as a major hub for international dispute resolution. It will undoubtedly help to promote London as the disputes capital of the world.”

FUNDING HAS ENTERED THE MAINSTREAM AND NOW PLAYS A PIVOTAL ROLE IN HOW CASES ARE BROUGHT AND MANAGED. THE MARKET SHOULD EMBRACE RATHER THAN FEAR THAT.ANNELIESE DAY QCFOUNTAIN COURT CHAMBERS

VANNIN CAPITALSPOTLIGHT ON LONDON

Joanna PageALLEN & OVERY

Sophie J. Lamb QCLATHAM AND WATKINS

Domitille BaizeauLALIVE

Ian QuirkICC UK, ESSEX COURT CHAMBERS

Vivek KapoorSH LEGAL

Louis Flannery QCSH LEGAL

Gary BornWILMER HALE

Johannes KoeppBAKER BOTTS

Richard Wise ADDLESHAW GODDARD

Mark MolyneuxADDLESHAW GODDARD

Guy Pendell CMS CAMERON MCKENNA NABARRO

Richard BamforthCMS CAMERON MCKENNA NABARRO

Andy MoodyBAKER MCKENZIE LLP

Anneliese Day FOUNTAIN COURT CHAMBERS

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VANNIN CAPITALSPOTLIGHT ON LONDON

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