Law and Commerce

Law and Commerce 31 March 2022

 

Introduction

[1] I am very pleased to have been asked to deliver this lecture, as it gives me an opportunity to honour the memory of a former colleague whom I will always remember with the greatest affection and regard.

[2] I first got to know Donald Macfadyen shortly after I was admitted to the Bar, in the year in which Donald took silk. We appeared together, and sometimes against one another, on numerous occasions, particularly in cases concerned with public law. Whether appearing with him or against him, I was grateful to learn from his meticulous preparation and persuasive advocacy. After Donald was appointed to the Bench, I found myself appearing before him quite regularly, particularly in the criminal appeal court and in the commercial court, where he was an especially well-regarded judge. When I was appointed to the Bench myself, three years after Donald, he was one of the most welcoming of my new colleagues. The onset of his illness came as a great shock to us all. I remember particularly when we sat together as members of the Inner House, after Donald returned to work while his illness was in remission. It was a harrowing time for the members of the court who were closest to him.

[3] Donald taught me lessons in professionalism, as counsel and as a judge, which were not only valuable to me at that time but have been valuable ever since. From my first acquaintance with him in about 1983 until his untimely death 25 years later, I looked up to him as a model of an advocate and a judge, combining integrity, legal scholarship, sound judgment, and humanity. His courage in the face of his illness also made a lasting impression on me. I count myself fortunate to have known him.

[4] My topic, in this lecture in the series to honour his memory, is one that would, I hope, have met with his approval. I would like to share with you some thoughts about the relationship between the law and commerce — thoughts which will also touch on matters belonging more to the realm of public law.

The United Kingdom’s Role in the Provision of International Financial and Legal Services

[5] The UK has been a leading centre of international commerce for centuries. Even today, after the end of empire and the development of major commercial centres in other countries such as the United States, China and Japan, London remains one of the world’s leading financial centres, ranked second by revenue only to New York, and ahead of Hong Kong, Singapore and San Francisco in third, fourth and fifth places.[1] Two Scottish cities also feature in the world’s top 65: Edinburgh and Glasgow. As I will explain, it seems to me to be no coincidence that the UK is also one of the world’s largest centres for legal services, ranked second by revenue only to the US. It is indeed the world’s leading centre for international dispute resolution by litigation and, equally with Singapore, by arbitration.[2]

[6] But the UK faces challenges in maintaining its present position. International financial litigation and arbitration are geographically mobile, as indeed is much domestic commercial litigation and arbitration. The parties can usually choose where they prefer their case to be heard. Commercial judges have always been aware of that. I remember, when I was the principal commercial judge in the Court of Session, discussing with Donald, who was one of my predecessors in that role, how to encourage Scottish businesses to bring their disputes to our court, and to instruct Scottish solicitors and counsel, rather than always looking to London.

[7] Today there is greater competition than ever before, especially for international commercial work, particularly as a result of new international commercial courts being established around the world. These include courts operating in English, applying the common law or analogous codes, and with UK and other common-law judges of the highest calibre. Abu Dhabi, for example, has established the Abu Dhabi Global Markets Courts, whose President is my former colleague, and a former Lord President, Lord Hope, and whose other judges are drawn from England, Scotland (Lord McGhie), Australia, Hong Kong and New Zealand. The United Arab Emirates have established the Dubai International Financial Centre Courts, whose Chief Justice is the former Chief Justice of Malaysia, Zaki Azmi, and whose other judges are drawn from England, Scotland (Lord Glennie), Australia and the UAE itself. Kazakhstan has established the Almaty International Financial Court, whose Chief Justice is my former colleague Lord Mance, and whose other judges are also drawn from England. The Singapore International Commercial Court includes a large number of judges from England, including my former colleagues Lord Neuberger and Lord Mance, as well as judges from Australia, Canada, France, Hong Kong, India, the US and Singapore itself. Qatar has established its International Court and Dispute Resolution Centre in Doha, with a President, Lord Thomas, who is a former Lord Chief Justice of England and Wales and a member of the Supreme Court’s Supplementary Panel. The other judges include another former Lord President, Lord Hamilton, and other judges from the UK, New Zealand, Singapore, South Africa, Cyprus, Kuwait and Qatar itself.

[8] In the member states of the European Union, English-language commercial courts have also been established recently in Stuttgart, Mannheim, Frankfurt, Hamburg, Paris and Amsterdam. They can take advantage of the UK’s loss of membership of the Lugano Convention, which concerns jurisdiction and the mutual recognition of judgments within Europe, as a consequence of our leaving the EU — membership which we have been unable to regain since then as a consequence of the EU Commission’s blocking our application.

[9] For the present, however, the UK retains its leading role as an international centre for legal services. In those circumstances, the commercial significance of the law, at one level, is obvious. There are, for example, about 200 international law firms operating in the City of London, including all of the world’s top 50 by revenue. A significant number of them also operate in Edinburgh and Glasgow. Five of the world’s largest law firms have their main base of operations in the UK. Their annual turnover and their contribution to UK exports are very substantial: the largest firms have revenues of around £2 billion each. Legal activities account for the employment of 365,000 people across the UK — two-thirds of them outside London, including 23,000 in Scotland.[3] But statistics like that do not begin to scratch the surface of the true significance of the law, and of the courts, to our commercial life, any more than statistics about the number of teachers tell one much about the value of education.

[10] In that regard, I am going to focus particularly on two aspects of the work of the courts. The first is their role in applying and developing commercial law, and thereby helping to sustain the UK’s importance as a centre of commerce, including commerce in financial and legal services. The second is their role in securing the rule of law, by which I mean that a society is governed by accessible and predictable laws, applied by independent and impartial courts to which the public have access. Securing the rule of law is vital to maintaining international confidence in the UK as a stable and rule-governed country — something which, I will argue, is crucial to our trade and to our prosperity as a nation.

The Importance of the Law to Commerce

[11] Let me begin by saying something about the importance of the law to commerce. Commerce is based on exchange — on transactions involving reciprocal obligations. It depends on trust that the reciprocal obligations will be fulfilled: for example, that goods which have been paid for will be delivered, that the goods will correspond to their description, will be of satisfactory quality, and will be the seller’s property to sell. So it has been understood since at least the time of Adam Smith that trust is vital to the operation of commerce.

[12] Of course, trust does not necessarily have to be based on law. It can be created, for example, by a long-term business relationship, or by reputation, or by social connections and pressures. Some markets have operated on that basis even in modern times. For example, a 1992 study of the international diamond trade found that it operated on the basis of trust, social sanctions and industry arbitrations, without recourse to the legal system.[4] Most traders were family businesses owned by Orthodox Jews, who formed a community linked by ethnic, religious and social ties. This system was coming under strain at the time of the study, as the structure and demographics of the industry changed,[5] and today diamond traders are more likely to have recourse to litigation.[6]

[13] Other research has also found that trust based on informal mechanisms can work well in situations where repeat transactions are frequent, information about reputations is easily transmitted, and social sanctions are effective.[7] At one time, that might have been said of the City of London, where the motto of the Stock Exchange — dictum meum pactum (“My word is my bond”) — reflected the importance of reputation as the basis of trust. But informal mechanisms become less effective as markets become more global, and their participants become more numerous, more dispersed and more diverse.

[14] In developed economies, the principal basis of trust is the legal system. That is not to say that the parties to transactions want or expect to go to court. That is usually the last resort. But the knowledge that that possibility is ultimately available creates the context in which trust can be established. I wrote in a judgment some years ago:

“People and businesses need to know, on the one hand, that they will be able to enforce their rights if they have to do so, and, on the other hand, that if they fail to meet their obligations, there is likely to be a remedy against them. It is that knowledge which underpins everyday economic and social relations. That is so, notwithstanding that judicial enforcement of the law is not usually necessary, and notwithstanding that the resolution of disputes by other methods is often desirable.”[8]

[15] To understand how modern commerce operates in situations where the legal system does not provide a basis for trust, one has only to consider the trade in unlawful drugs: a very large international market, where obligations cannot be enforced by recourse to the law, and instead are enforced by the threat, or use, of violence. Similar behaviour can be seen in relation to lawful commerce in some societies with dysfunctional legal systems, with resort being had to blackmail, bribery and corruption, ultimately underpinned by violence. Even if the situation does not descend to those depths, a lack of trust in the functioning of legal and other governmental institutions is economically destructive. Numerous studies have found that trust in public institutions is associated with higher rates of investment, regulatory compliance, tax collection and economic growth. That was also reflected in the emphasis placed by the International Monetary Fund and the European Central Bank, during the eurozone crisis of 2010–15, on the need for some member states to boost confidence in the competence and integrity of their institutions, so as to counter high levels of tax evasion, weak private-sector investment, and low growth.

[16] This emphasis on the importance of a well-functioning and well-respected legal system is not to ignore the fact that in commerce, especially international commerce, the parties often prefer arbitration to litigation. But arbitration itself relies on the availability of the courts to enforce arbitration agreements, to exercise a variety of powers in support of arbitration proceedings, and ultimately to enforce arbitral awards.

[17] So commercial law facilitates commerce, to such an extent that the law and commerce are inseparable in modern economies. That means not only that the legal system provides essential services to commercial traders — for example, in drafting contracts and resolving disputes. Its role is more profound than that. The law provides the structures within which commerce takes place and creates the expectations on which commerce is based. Companies, for example, are entities created and regulated by the law as a means of enabling individuals to carry on business while minimising their personal liabilities to creditors, and so encouraging entrepreneurial activity. In order to carry on business, companies need a reasonable degree of certainty as to their legal rights and obligations. They need certainty that the contracts which they enter into will be interpreted and enforced in a predictable way. They need certainty that their intellectual property will be recognised and protected. They need certainty that insolvency law will protect them, so that they know who will get what if a counterparty goes bust. They need certainty that the regulatory framework which governs their trade will be applied in a lawful and non-abusive manner. Above all, they need certainty that there are fair and independent courts which, if a dispute arises, will uphold the law, without protectionism, corruption or political pressure. They need the final appeal court, in particular, to be of the highest quality, and to be independent of government influence.

The Importance of Commerce to the Law

[18] While the law is the foundation of trade, one can also put the matter the other way around: commercial practice and the needs of commerce are the foundation of commercial law. This is particularly true of legal systems based on the common law, as Scots law is to a substantial extent. That is because the common law is based on the judicial development of the law on a case-by-case basis. That approach enables mercantile practice and the law to evolve symbiotically. Commercial problems provide the opportunities for innovative lawyers to devise solutions, and for the courts to respond by developing the law. So new forms of contract, new types of commercial instruments and securities, and new forms of entity constantly emerge and are absorbed into the law.

[19] In that regard, I have to say, as a short diversion from my main theme, that Scottish judges have been constrained to some extent, by comparison with judges in other English-speaking jurisdictions, by some respects in which Scots law differs from common-law systems. If I can enter into legal technicalities for a moment, examples include the difficulty of creating securities without possession, the comparatively narrow jurisdiction to grant interdicts, and the relatively undeveloped law of trusts. So some developments in other jurisdictions which have been established through the case law of the courts, such as the floating charge, receiverships, and Anton Piller orders, had to await legislation in Scotland, and were not introduced until some time later.

[20] I do not wish to overstate the importance of this. Scotland has a thriving commercial legal sector and busy commercial courts. The law of contract and the law of unjust enrichment lie at the heart of a high proportion of commercial disputes, and those areas of the law are equally capable of judicial development north and south of the border. Nevertheless, for reasons of the kind I have just explained, Scots law has difficulty, without legislative intervention, in accommodating some of the commercial developments which have been accepted elsewhere in the English-speaking world. It may be worth thinking about whether there is something to be said in Scotland for considering the responsiveness of commercial law to the needs of business.

[21] Under modern conditions, the law has to be especially flexible and responsive to rapid change. As we have seen in the recent past, with the development of hedging, arbitrage, electronic funds transfers, internet-based trading, trading in derivatives, the conversion of non-tradable into tradable assets through securitisation, and the establishment of globalised markets — all developments which have occurred as a matter of commercial practice, not as a result of legislation — we are living through a period of rapid and major changes in commercial practice.

[22] So there is a particular responsibility on judges hearing commercial cases to respond to changes in commerce by developing the law, so far as they can properly do so. As Lord Goff said of the judges of the Commercial Court:

“We are there to help businessmen, not to hinder them: we are there to give effect to their transaction, not to frustrate them: we are there to oil the wheels of commerce, not to put a spanner in the works, or even grit in the oil.”[9]

That attitude and the flexibility of the common law have undoubtedly contributed to the popularity of the common law as a vehicle for commerce. Indeed, a survey in 2010 found that 40 per cent of the world’s international commercial arbitrations used English law: more than twice as many as used the next most popular legal system.[10] It is particularly important in relation to international swaps and derivatives trading, global commodities trading, the maritime sector, and global mergers and acquisitions.[11]

The Importance of International Confidence in Our Judiciary

[23] But that is not enough in itself to explain the UK’s leading role as a forum for litigation. After all, almost a third of the world’s jurisdictions are governed by common-law systems; and, as I have explained, even countries outside the common-law world have established international commercial courts using English law. A further critical factor has been the level of international confidence in the quality, integrity and independence of the judiciary in the UK. It is no accident that the new international courts have recruited heavily from this country, both north and south of the border, and from other common-law jurisdictions whose judiciaries have equally high reputations. And that confidence in our judiciary itself provides an explanation of why our commercial law continues to develop as successfully as it does. It is because the UK remains a leading centre of international commerce, particularly in specialised markets such as commodities, financial derivatives, shipping and insurance, that the courts continue to be nourished by a constant stream of innovative cases, enabling the law to continue to develop. Unlike that of the US, our purely domestic commerce is probably unable by itself to generate a sufficiently large and varied volume of work for the courts to maintain a position at the cutting edge; and our national commercial ventures overseas are no longer on such a scale that we can simply impose our law on those we do business with.

[24] So it is, I would suggest, to a significant extent because of international confidence in both the quality and the independence of justice in the UK that this country has been able to maintain its position as one of the world’s principal bastions both of the law and of commerce; and the same, I would suggest, is true of most other jurisdictions in a comparable position. It may be in part because those requirements have historically been met in only a limited number of jurisdictions, such as the UK, the UK’s overseas territories and Crown dependencies, and former British colonies such as Hong Kong, Singapore and the US, that the finance industry is so concentrated there.

[25] The clearest evidence of confidence in the quality and the independence of justice in the UK is that so many foreign companies, and even foreign governments, regardless of where they are based or where they conduct their business, choose to write their contracts in English law and to resolve their disputes in the UK courts or UK arbitrations. In 2020, and in the first nine months of 2021, in over a third of the cases issued in the Commercial Court in London all the parties were registered outside the UK.[12] The proportion in the Court of Session’s commercial list is much lower, but cases brought by one foreign company against another are by no means unknown.[13]

The Work of the Supreme Court

[26] Let me relate this to the work of the Supreme Court. A high proportion of the judgments we deliver are relevant to the UK’s commercial life. Examples from the past year have included several cases concerned with taxation[14] — particularly cross-border taxation. Tax cases are in fact the largest category of case that we hear: we decide twice as many as judicial review cases, although the latter receive far more public attention; and they include the cases of the greatest monetary value (in one recent case, £17 billion).[15] We have also recently decided cases concerned with: shipping;[16] the powers of the Serious Fraud Office;[17] the duties of accountants;[18] the responsibility of multinational companies for wrongs committed by their overseas subsidiaries;[19] economic duress;[20] class actions;[21] and the construction[22] and enforcement[23] of commercial agreements, such as insurance contracts and arbitration agreements. Because of the court’s standing among the world’s leading common-law courts, its judgments on issues of this kind are also influential in other jurisdictions of commercial importance, such as Hong Kong and Singapore.

[27] Let me look at a few examples in greater detail. The first case in which we gave judgment last year was the case concerning insurance coverage for business interruption losses caused by the Covid pandemic.[24] This was the most important insurance case so far this century, as it raised a number of novel questions, and we were the first supreme court in the world to give judgment on the issues. The question arose, for example, whether a very common form of insurance cover for business interruption losses, which covered losses resulting from any occurrence of a notifiable disease within a specified radius of the insured’s premises, typically 25 miles, was triggered where there was indeed at least one case of the disease within the specified radius, but the public health measures which required the business to close were taken in response to the pandemic across the country as a whole. We held that the cover was triggered, on the basis that each individual case contributed to the overall pandemic. Our judgment was important domestically, but it will also be studied around the world as other countries come to deal with similar issues, and it has already been circulated through the EU Network of Presidents of Supreme Courts to the courts of all the member states.

[28] To give another example, our decision last year in a case concerned with patents for mobile phone technology[25] was one of the most important in the sector for many years and strengthened London’s position as a preferred location for telecoms patents disputes. We were the first court to grapple with the problem that patents are issued on a national basis, but global technologies, such as those using internet-connected devices, require the use of multinational patent portfolios — that is to say, a set of identical patents issued around the world — so that a mobile phone, for example, will work wherever its owner happens to be, and whoever the manufacturer of the phone happens to have been, and whatever network the owner happens to be connected to. That dependence on a large number of identical patents issued in different countries — standard essential patents, as they are known — makes it difficult to prevent patent infringement, because bringing separate enforcement proceedings in national courts around the world takes too long and costs too much to be practical. We addressed the problem, in proceedings concerning Huawei, by holding that UK judges can grant an injunction to prevent the infringement of a UK patent if the infringer refuses to take out a global licence of a multinational patent portfolio. That effectively compelled Huawei to take out patent licences around the world if they wanted their phones to be sold and used in the UK. That judgment is now being discussed by courts in the US, despite the traditional reluctance of American courts to consider foreign case law.

[29] As I mentioned earlier, many of the commercial cases which the Supreme Court hears are brought by foreign corporations and foreign governments which choose to litigate in this country. Recent cases of that kind have included: one concerned with the test of bias in relation to international arbitrations arising from the Deep Water Horizon oil spill in the Gulf of Mexico;[26] one concerned with the standard test for the seaworthiness of ships, arising from a dispute between French and German companies over the grounding of a ship in Chinese waters;[27] and a dispute over who should be recognised as the President of Venezuela and therefore entitled to control $2 billion in gold reserves held at the Bank of England.[28] We also decided last year a case brought against the Government of Libya,[29] and we currently have before us a dispute between the Governments of Russia and the Ukraine over the enforceability of a $3 billion debt,[30] and have recently had an application for permission to appeal in a case brought by the Government of Malaysia against an entity owned by the Government of Abu Dhabi.[31] These are just a few examples, but they illustrate the level of international confidence in the UK legal system, and ultimately in the Supreme Court.

[30] It is worth mentioning that only a few of the cases I have mentioned have been concerned with legislation. They are mostly concerned with the judicial development of the common law. This bears out a point I made earlier: that the flexibility and responsiveness of the common law have always been important to the success of financial centres in the common-law world. That success ultimately depends on the quality of the highest court.

The Work of the Judicial Committee of the Privy Council

[31] The role of the Justices of the Supreme Court in the resolution of international commercial disputes is not confined to claims in UK courts or arbitrations. Each Justice also sits as a permanent judge of the Judicial Committee of the Privy Council, which is the final court of appeal for some Commonwealth countries and for the UK’s overseas territories and Crown dependencies. Many of those jurisdictions are important financial centres: for example, Jersey, Mauritius, the Cayman Islands, Guernsey, the British Virgin Islands, Bermuda, the Isle of Man, the Bahamas, and Trinidad and Tobago all feature in the world’s top 100 financial centres, and Gibraltar sits just outside that group. When London, Edinburgh and Glasgow are also included, that means that the judges of the Supreme Court sit as the final court of appeal for 12 out of the world’s 100 leading financial centres.

[32] A substantial proportion of the Privy Council’s caseload comes from those financial centres.[32] Recent cases in the Privy Council include: one from the British Virgin Islands raising the question whether a freezing injunction can be issued in support of a claim issued in another jurisdiction;[33] one from the Cayman Islands concerning multi-billion-dollar claims for losses suffered by investment funds through the collapse of the Ponzi scheme operated by Bernard Madoff;[34] and one from Jersey, raising fundamental questions about how the law of trust applies to a commercial trading trust.[35]

[33] Looking in greater detail at the BVI case I mentioned,[36] it raised a point of great practical importance at a time when money and financial assets can be moved around the world almost instantaneously. In deciding that an injunction to freeze assets held in a particular jurisdiction could be granted where the main proceedings were taking place in another jurisdiction, the Privy Council identified the central purpose of such injunctions as being to facilitate the enforcement of an order to pay a sum of money, which usually does not yet exist when the application is made but which will potentially be frustrated unless the court acts to lend its assistance. In the light of that rationale, the Board considered that a freezing injunction could be granted in respect of assets anywhere in the world, even before the relevant right to payment of a debt or damages had accrued.

Looking to the Future

[34] As I have explained, cases like these come to the Supreme Court and the Privy Council because of a high level of international confidence in our legal system and in the independence and quality of our judiciary. Looking to the future, in the increasingly competitive environment which I have described, where indeed some of the toughest competition comes from UK judges sitting in other jurisdictions, it is important for our legal services industry and for the UK as a whole that we maintain our reputation as a centre of legal excellence and a global exemplar of judicial independence. This is particularly important at a time when the country has to establish its place in the world outside the EU, and to achieve the economic recovery required after the pandemic.

[35] This is recognised by the UK Government’s Global Britain strategy, which is based on the idea that the UK’s place in the world reflects both its role in international trade and investment, and its commitment to the rule of law and to the rules-based international order.[37] As should be clear by this point, and as the Government has recognised, these matters go together. Our economic performance, as well as the influence which this country exercises and the respect in which it is held, depend in no small measure upon confidence in the stability and competence of our institutions, including the courts, and on our reliability as a partner who will respect international law. It is to a significant degree because of the respect in which our institutions, including our legal institutions, are held internationally, that we are able to punch above our weight in international commerce and in international dispute resolution, when compared with some larger economies. In that context, as the flagship of the UK’s commitment to the rule of law, the Supreme Court has a significant part to play in the realisation of the Global Britain strategy. That is something which is reflected, for example, in the frequency and value of the meetings between the Justices and their opposite numbers in countries such as France, Germany, India, Japan and the US. The court now keeps the Foreign Office and the Ministry of Justice informed of its international activities where there is scope for collaboration; and it has responded positively to requests from the City for Justices to become involved in activities designed to promote the development of the law in new areas of commerce, and to promote the UK as a centre for international dispute resolution.

Conclusions

[36] Drawing these threads together, it seems to me that international confidence in the rule of law in this country is a major factor in our attractiveness as a destination for investment (such as Venezuela’s gold reserves), for international commerce and for international dispute resolution. That confidence requires, amongst other things, that the courts can decide independently any cases that are brought before them, including cases in which it is alleged that the Government has acted unlawfully. It is the courts’ ability to do that which most dramatically differentiates our legal system from those of many other countries in the world and encourages their citizens to invest in this country and to do business here, subject to our regulatory systems. They can be confident, as can the UK’s own citizens, that in this country any interferences with their rights, whether by private enterprises or by public authorities, can be challenged in courts which are truly independent, and whose decisions will be respected and given effect.

[37] The rule of law is not something that can be taken for granted. Judicial decisions are sometimes controversial, and that can lead to the role of the courts and the independence of the judiciary being questioned. But, as I have explained, judicial independence and the rule of law are immensely valuable assets of our society, and, in addition to their importance to our democracy, also form a vital foundation for our commercial prosperity at home and our reputation abroad. Reputations take a long time to be established but can be lost very quickly. Judicial independence and the rule of law may seem arcane and irrelevant to most people’s lives. But the rule of law matters to us all.

[1] The Global Financial Centres Index, published in September 2021.

[2] City of London, The Global City, published in March 2021. The 2021 Queen Mary University of London/White & Case LLP International Arbitration Survey confirmed that London remained the most popular seat of arbitration (equal, for the first time, with Singapore): http://www.arbitration.qmul.ac.uk/media/arbitration/docs/LON0320037-QMUL-International-Arbitration-Survey-2021_19_WEB.pdf.

[3] The CityUK, “Legal Excellence: internationally renowned” (2021): https://www.thecityuk.com/assets/2021/Reports/709bf01df5/Legal-excellence-internationally-reowned -UK-legal-services-2021.pdf.

[4] Bernstein, L, “Opting out of the Legal System: Extralegal Contractual Relations in the Diamond Industry” (1992) 21 J Legal Stud 115. I have gratefully borrowed this example from Lord Leggatt’s Jonathan Hirst Commercial Law Lecture, “What is the point of commercial law?” (November 2021).

[5] See Richman, B, “An Autopsy of Co-operation: Diamond Dealers and the Limits of Trust-Based Exchange” (2017).

[6] See, e.g., W Nagel v Pluczenik Diamond Co NV [2018] EWCA Civ 2640, [2019] Bus LR 692.

[7] See, e.g., Trebilcock, M, and Leng, J, “The Role of Formal Contract Law and Enforcement in Economic Development” (2006) 92 Virginia Law Review 1517.

[8] R (UNISON) v Lord Chancellor [2017] UKSC 51, [2020] AC 869, para 71.

[9] Goff, R, “Commercial Contracts and the Commercial Court” [1984] LMCLQ 382, 391.

[10] New York. See White& Case LLP, International Arbitration Survey: Choices in International Arbitration (2010).

[11] See Oxera, Economic Value of English Law (2021): https://legaluk.org/wp-contetent/uploads/2021/09/The-value-of-English-law-to-the-UK-economy.pdf.

[12] https://view.officeapps.live.com/op/view.aspx?src=https%3A%2F%2Fassets.publishing.service.gov.uk%2Fgovernment%2Fuploads%2Fsystem%2Fuploads%2Fattachment_data%2Ffile%2F1037781%2FBPC_Main_Tables.ods&wdOrigin=BROWSELINK.

[13] A recent example is Hochtief Solutions AG v Maspero Elevatori SpA [2021] CSIH 19, 2021 SLT 528.

[14] Balhousie Holdings Ltd v HMRC [2021] UKSC 11, [2021] 1 WLR 2164; Hurstwood Properties (A) Ltd v Rossendale Borough Council [2021] UKSC 16, [2021] 2 WLR 1125; HMRC v Tooth [2021] UKSC 17, [2021] 1 WLR 2811; R (Haworth) v HMRC [2021] UKSC 25, [2021] 1 WLR 3521; Tinkler v HMRC [2021] UKSC 39, [2021] 3 WLR 697; Test Claimants in the Franked Investment Income Group Litigation v HMRC [2020] UKSC 47, [2022] AC 1.

[15] Littlewoods Ltd v Revenue and Customs Commissioners [2017] UKSC 70, [2018] AC 869, para 6.

[16] Evergreen Marine (UK) Ltd v Nautical Challenge Ltd [2021] UKSC 6, [2021] 1 Lloyd’s Rep 299, [2021] 1 WLR 1436; Alize 1954 v Allianz Elementar Versicherungs AG [2021] UKSC 51, [2021] 2 Lloyd’s Rep 613.

[17] R (KBR) v Director of the Serious Fraud Office [2021] UKSC 2, [2021] 2 WLR 335.

[18] Manchester Building Society v Grant Thornton UK LLP [2021] UKSC 20, [2021] 3 WLR 81.

[19] Okpabi and others v Royal Dutch Shell Plc [2021] UKSC 3, [2021] 1 WLR 1294; Lloyd v Google LLC [2021] UKSC 50, [2021] 3 WLR 1268.

[20] Pakistan International Airline Corporation v Times Travel (UK) Ltd [2021] UKSC 40, [2021] 3 WLR 727.

[21] Lloyd v Google LLC [2021] UKSC 50, [2021] 3 WLR 1268.

[22] Financial Conduct Authority v Arch Insurance (UK) Ltd [2021] UKSC 1, [2021] AC 649; Grant v International Insurance Company of Hanover Ltd [2021] UKSC 12, [2021] 1 WLR 2465; Triple Point Technology Inc v PTT Public Company Ltd [2021] UKSC 29, [2021] AC 1148; Kabab-Ji SAL v Kout Food Group [2021] UKSC 48, [2022] 1 Lloyd’s Rep 24; [2021] Bus LR 1717.

[23] General Dynamics United Kingdom Ltd v State of Libya [2021] UKSC 22, [2021] 3 WLR 231; Pakistan International Airline Corporation v Times Travel (UK) Ltd [2021] UKSC 40, [2021] 3 WLR 727.

[24] Financial Conduct Authority v Arch Insurance (UK) Ltd [2021] UKSC 1, [2021] Lloyd’s Rep IR 63; [2021] AC 649.

[25] Unwired Planet International Ltd v Huawei Technologies (UK) Ltd [2020] UKSC 37, [2020] Bus LR 2422.

[26] Halliburton Company v Chubb Bermuda Insurance Ltd [2020] UKSC 48, [2021] AC 1083.

[27] Alize 1954 v Allianz Elementar Versicherungs AG [2021] UKSC 51, [2021] 2 Lloyd’s Rep 613.

[28] Maduro Board of the Central Bank of Venezuela v Guaidó Board of the Central Bank of Venezuela [2021] UKSC 57.

[29] General Dynamics United Kingdom Ltd v State of Libya [2021] UKSC 22, [2021] 3 WLR 231.

[30] The Law Debenture Trust Corporation Plc v Ukraine, heard 11 Nov 2021, on appeal from [2018] EWCA Civ 2026, [2019] QB 1121.

[31] See Minister of Finance (Inc) v International Petroleum Investment Co [2019] EWCA Civ 2080, [2020] 1 Lloyd’s Rep 93, [2020] Bus LR 45; pet diss 15 Dec 2021.

[32] See, e.g., Shanda Games Ltd v Maso Capital Investments Ltd [2020] UKPC 2, [2020] 1 BCLC 577 (Cayman Islands); Pearson (in his capacity as Additional Liquidator of Herald Fund SPC (in Official Liquidation)) v Primeo Fund (in Official Liquidation) [2020] UKPC 3 (Cayman Islands); Magner v Royal Bank of Scotland International Ltd [2020] UKPC 5 (Gibraltar); Attorney General of the Virgin Islands v Global Water Associates Ltd [2020] UKPC 18, [2021] AC 23 (British Virgin Islands); Ciban Management Corporation v Citco (BVI) Ltd [2020] UKPC 21 (BVI); Delta Petroleum (Caribbean) Ltd v British Virgin Islands Electricity Corporation [2020] UKPC 23 (BVI); Chu v Lau [2020] UKPC 24, [2020] 1 WLR 4656 (BVI); Livingston Properties Equities Inc v JSC MCC Eurochem [2020] UKPC 31 (BVI).

[33] Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24.

[34] Primeo Fund (in Official Liquidation) v Bank of Bermuda [2021] UKPC 22.

[35] ITG Ltd v Fort Trustees Ltd, heard 15–17 June 2021.

[36] Broad Idea International Ltd v Convoy Collateral Ltd [2021] UKPC 24.

[37] https://www.gov.uk/government/collections/global-britain-delivering-on-our-international-ambition.