Civil Procedure Reforms in Commercial Matters in a Post-Pandemic and Post-Brexit World

Author(s)

Kathrin Eidenmüller
Judge at the Munich Court of Appeals and Academic Visitor to the Institute of European and Comparative Law at the University of Oxford
Conor McLaughlin
Barrister at Erskine Chambers

With this post, we invite you to participate in an anonymous survey on ‘Civil Procedure Reforms in Commercial Matters in a Post-Pandemic and Post-Brexit World’.

The world of commercial dispute resolution is changing dramatically. New technological developments such as artificial intelligence applications and blockchain, as well as private dispute resolution providers, are challenging the traditional modus operandi and relevance of the courts as the main providers of judicial services. The competitive pressure is felt most acutely in commercial matters where sophisticated actors regularly choose the best procedure/provider to resolve their dispute from a great variety of private and public offerings worldwide.

The COVID-19 pandemic and, from a British/European perspective, Brexit have accelerated these developments and created additional complexities. The pandemic brought traditional ‘offline’ court proceedings to a standstill in many jurisdictions, replaced in some instances with ‘virtual’ hearings. Brexit threatens to undermine the UK’s leading position in the commercial dispute resolution market. Judgments of English courts no longer have to be recognized automatically in the EU. The UK’s bid to join the Lugano Convention was unsuccessful. Continental European jurisdictions are striving to enhance their competitiveness, setting up specialized courts which allow the parties to litigate in the English language. 

Why are we witnessing a steady decline in judicial proceedings in commercial matters in many jurisdictions in the European Union? What are the key factors on which litigating parties base their choice of judicial forum? How should national judicial systems in commercial matters be designed to meet the challenges discussed above?

In our project, we investigate these and related questions on how to improve judicial proceedings in a post-pandemic/post-Brexit world.

The project has a normative and an empirical dimension. We will argue that states have an ‘infrastructure responsibility’ to establish and maintain a functioning court system (for commercial cases). States should not attempt to outsource dispute resolution services completely to private providers of ‘Alternative Dispute Resolution’ (ADR) services.

As far as the empirical dimension of the project is concerned, we note at the outset that there is no shortage of empirical studies on various aspects and facets of the dispute resolution market. However, given the velocity of technological change in the last years and the effects of, and experiences with, the pandemic and Brexit, the existing studies do not capture the preferences of dispute resolution users right now.

Hence, we have conducted more than 20 structured interviews with industry representatives, dispute resolution practitioners, judges, scholars and policymakers to identify the key areas and elements for sensible reform of court proceedings in commercial matters. We will also assess published data on caseloads of state courts in select jurisdictions and ADR providers over time and match them with key reform events in these jurisdictions. Finally, we are conducting an anonymous online survey to obtain a broader perspective of dispute resolution preferences and practitioners’ views regarding areas and subjects for reform.

Your participation in this survey would be greatly appreciated. It will help us to suggest well-founded ‘Civil Procedure Reforms in Commercial Matters in a Post-Pandemic and Post-Brexit World’.

Kathrin Eidenmueller is a Judge at the Munich Court of Appeals and Academic Visitor to the Institute of European and Comparative Law at the University of Oxford.

Conor McLaughlin is a Barrister at Erskine Chambers.

Horst Eidenmueller is Statutory Professor for Commercial Law at the University of Oxford and Professorial Fellow of St Hugh’s College.

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