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The Rt Hon The Lord Neuberger of Abbotsbury
On 25 April 2019 Lord Neuberger, President of the U.K. Supreme Court, 2012-2017, gave a Keynote Address to the London Branch of the Chartered Institute of Arbitrators entitled: International Arbitration post-Brexit(?): A domestic ex-judge's arbitrator's perspective.
As it happened I asked the only Brexit question, but that is of no consequence. A transcript and/or a video of the stimulating address is likely to be published by the Chartered Institute.
It is inevitable should there be a non-negotiated Brexit leading to effective abrogation of some existing trade agreements that there will be a spike in cases referred to international commercial arbitration.
Few arbitral cases make it through to appeal but that does not mean many will not have parties who will seek to appeal for the purposes of guidance so the courts will eventually be busy too in the case of most forms of Brexit.
One route through following a Brexit might be rapidly arranged bilateral agreements, paradoxically in some areas like freedom of movement.
So many French people, for instance, work in the City of London that the simplest way to ensure its continuance, in the face of no wider agreement, would be to conclude a bilateral freedom of movement agreement preserving all existing benefits. Quotas would be too clunky.
It is rather intriguing pondering both the arbitral and political consequences in combination.
ARBITRATION AND THE PRESS
Reviewed by ANDRE BEAUMONT
1 May 2013
With county elections nearly upon us again it is interesting to observe how much political debate has opened up since before 2010 (though not particularly so at county level) when everything was discussed in a very narrow range. In this we are probably lucky in England to have the three main party leaders that we have but we should also not forget the role of a free press. The deal that was cooked up one night to regulate it lacks clarity of principle to the outside observer.
There is also some dissent in arbitral circles about the arbitration proposals. A regulator should not be heavily involved in an arbitration scheme beyond writing the rules. The better guide might be that a panel of arbitrators is provided from which the complainant and defendant each choose an arbitrator who selects a third (or something similar), with costs that may be awarded against the complainant being negligible but not non-existent. (The complainant would not pay a fee to access the scheme).
The main question would then be how to have the arbitration scheme recognized by the courts, if it had special features, e.g. as to damages, although the Arbitration Act 1996 would apply anyway. The second most important question would be how to get maximum publisher sign-up to the scheme. Judicial recognition would be better than political recognition.
Anything statutory or even endorsed by Royal Charter is best avoided.
Once the arbitrators were regularly making awards it would be a better discipline than regulation.
[I once wrote out a proposal, with the details of how it would operate, for a low-cost pan-European arbitration scheme, in a European Commission Study, for an area of commerce unrelated to media. Before that I advocated, in arbitral circles, the use of arbitration in sport - it is swift and can be low cost - and now the Court of Arbitration for Sport is widely used, beyond any early expectations, having been distanced from its founding body, the IOC, and without any legislation ever having been passed].
19 March 2019
I remember once attending a lecture in Gray's Inn given to the Chartered Institute of Arbitrators by Gordon Slynn just after he had stopped being Britain's judge on the European Court of Justice.
I had not so long before qualified as a fellow and my day job was negotiating on a multilateral basis in the European Union. His lecture was about the ECJ and I did not get the impression that many understood it that much though the audience was pretty distinguished, including, notably, Lord Saville, who wrote the arbitration act.
I am not sure there is an unshowy way of telling this anecdote.
Nobody made towards him to talk at the reception but I did. I expounded a concept I had of how arbitration could be used in support of tertiary legislation in the EU (in practice introduced by standardisation and having legal force). Not only did Lord Slynn agree but started to nod his head in agreement much to my delight as those who had taught me in the room started to glare. I am not bothered about attention one way or the other but there is nothing like getting the only judge on the ECJ visually agreeing.
A marshal arrived from the Court of Appeal and he made him wait till he had discussed the points before taking a verbal message. Then he said "you and I should set up an institute to teach this". This, of course, was charming nonsense as I have never been in a position then or since to teach anyone anything about arbitration.
Then he went on "do you know, Andre (it was the first time I had met him), people think that on the ECJ it is all serious discussion of law but I have to go round horsetrading with the judges from the other countries to get anything through." This time I nodded. It was like any other politics.
"Do you know the Master of the Rolls will not let me sit on cases because I do not know enough English law".
By now I was enjoying this and was ready for him to curtail this so he could talk to others in the room but no, he kept talking till it was time to go.
I got the messages. We were the only people present likely to understand the EU and it is best not to always conform to people's expectations.
The above is well in the past.
The legal question raised today at the European Council press conference as it pertains to the possible extension of the Article 50 period is that 3.5 million non-British EU citizens in the U.K. have a right to vote in European elections and 1.5 million U.K. citizens on the Continent likewise and that they may not have candidates to vote for in the first case and may be unable to vote in the second.
Legal questions are harder to answer than political ones.