The battle to substitute English law in Europe has begun

Whatever the outcome of the negotiations over the future relationship between the European Union and the United Kingdom many operators are already taking for granted that English law will lose much of its appeal for governing financial transactions and other transactions between institutions and large companies where more than one European Union jurisdiction is involved. There are technical and political reasons behind this view.

The possible demise of English law will not be felt with any intensity until another legislation opens up the way and claims its place. In this Viewpoint we embark on a series of reflections on the future lex mercatoria in Europe and the battles that may arise.

Rise and fall of the empire of English legal profession?

The predictable departure of the United Kingdom from the single market will mean that, once the transition periods are over, any judgments rendered by the English courts will cease to have the so-called Brussels Regulation applied for their recognition and enforcement in the 27 member states. This will reduce the appeal of choosing the jurisdiction of the English courts in contracts, which will also prompt questions as to whether English law is the best choice if disputes will not be heard by the courts in that jurisdiction.

Added to this are other setbacks arising from the fact of English law ceasing to be one of the laws of the European Union, particularly in the eyes of financial regulation.

First we take Manhattan then we take Berlin

New York law is not a law of the European Union either but from this standpoint it will come to be on an equal footing with English law and they both share an origin in common law as well as being used frequently in international finance. An advantage emerges however for the option of the New York laws and courts: their global reach. By reigning over large financial transactions in the Americas, their hegemony in Europe would enable useful synergies for global institutions by bringing a large part of their transactions under only one law and only one jurisdiction.

Another factor to remember is that U.S. law firms have already become strong players in the City and it would not take much effort, from there, to deploy their New York qualified professionals towards the continent.

Twenty years ago the Loan Market Association started creating the most powerful tool for propagating English law: the models of syndicated loan agreements. Less than a year ago, however, the LMA’s U.S. equivalent, the LSTA, prepared and disseminated for the first time a facility agreement under New York law. Coincidence or not, one of the tools is already available.

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*This article first appeared on Lexology 

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