Private International Law (Implementation of Agreements) Bill [HL]

Debate between Earl of Devon and Lord Keen of Elie

Committee stage & Committee: 1st sitting (Hansard) & Committee: 1st sitting (Hansard): House of Lords
Wednesday 13th May 2020 Lords Chamber

[Earl of Devon (CB)]

I understood that I would get an opportunity to speak before the Minister rather than after him, as I have been on the list for the past few days, but I shall proceed none the less with what I was going to say. At the risk of flogging rather a dead horse at this stage, I wish to add that while I support the basic aims of the Bill, I do not support Clause 2.

Private international law and our membership of the Hague and other global jurisdiction and enforcement conventions are an essential part of our global standing and our ability to welcome and to home families from overseas. They are essential particularly to the professional and legal services markets in which we are world leaders. I note my interests in the register, and particularly my work as a dual-qualified, cross-border litigator, whose practice touches variously on this area.

I shall not speak at length because pretty much all the issues have been addressed in some detail. However, I thought that your Lordships might appreciate some stories from the front line. Unlike many of our eminent jurists in the Lords, I am currently active in this space and spent 10 years as a litigator in California, as a California-qualified litigator, in which capacity I advised often on jurisdiction clauses and dispute resolution provisions.

For the most part, the most popular forum for these was the courts of England and Wales, irrespective of the parties—typically, one of them was an American party, but we dealt with parties from all around the world. There were plenty of reasons for this, not least the English language, our time zones, our excellent legal services, our use of the common law and precedent, the independence of our judiciary, and the broad membership we have of cross-border conventions, such as those under consideration in the Bill.

Finally, and perhaps most important, is the rule of law—particularly the transparent, thorough and long-established legislative process by which our laws are passed. This is the reason that England and Wales is so often chosen as the preferred third-party forum for jurisdiction and dispute resolution clauses. That is directly threatened by Clause 2. Indeed, by seeking to short-circuit the long-standing practice of passing treaties by primary legislation, the Government are in danger of undermining one of the most important pillars that supports the UK’s pre-eminence in the provision of dispute resolution services in the global market.

I note that the US-UK trade negotiations started recently. Can the Minister give us any indication as to whether the subject of private international law has been raised within that forum? Is any pressure being brought to bear on the UK Government to align their cross-border enforcement and jurisdiction regime towards that of the US, which obviously takes a very particular line in these matters? We know, for example, that the current US Administration disfavour cross-border co-operation. I understand that in recent rounds of Hague conference negotiations, the US has become increasingly reluctant to engage. It is taking a back seat while burgeoning economies, such as China, are increasingly engaged.

Finally, before we reach Report on this crucial Bill, we must have either mastered virtual voting or returned to a normal practice. This is too important an issue to slip through at such a procedurally challenging time. I appreciate your Lordships’ indulgence.

[Lord Keen of Elie]

As regards the UK-US negotiations, I say only that I am not in a position to comment on how far they have gone, or on whether they have engaged the issue of private international law at all.