knowledge | 16 April 2019 |
International Litigants, Next Stop Ireland
With the departure of the UK from the EU Ireland is ready and able to take up the mantle as a key centre for international litigation.
Commercial parties around the world have long used English law to govern their relationships and the UK is one of the largest markets for legal services globally. However, with the UK’s departure from the European Union and the uncertainty which that brings for litigants, commercial parties may now need to consider an alternative.
Ireland is the obvious choice. In the wake of Brexit, Ireland will stand alone amongst its European civil law neighbours as the sole remaining English speaking common law jurisdiction fully embedded in the wider European legal order.
Ireland is extremely well-positioned to act as an international litigation hub. It shares a long-standing common legal tradition with nations such as the UK and the United States. Those familiar with the UK system will take comfort from the fact that Ireland’s law of contract shares its origins with and has very many similarities to that of its nearest neighbour. The same is true of many other areas of law, the important law of equity being a leading example. In addition, in the absence of a binding domestic precedent, previous decisions of the UK courts are of persuasive authority in Ireland.
Ireland has a very well-established commercial court which employs case management procedures to guide disputes through the courts in an efficient and timely manner. That court is experienced in dealing with commercial disputes of significant value and complexity. For example, a number of pieces of large scale litigation arising of the Madoff Ponzi scheme have come before that court.
As in the UK currently, a wide suite of commercial pre-emptive and enforcement remedies are available to litigants. This includes, for example, the Mareva injunction which may be granted on a worldwide basis and is often coupled with supportive ancillary relief such as orders for asset disclosure and discovery. Other forms of interim and interlocutory injunctive relief are also available. In appropriate circumstances, a party may also seek Anton Piller relief as well as orders for the preservation, inspection or delivery up of property. An Irish court may grant a European Account Preservation Order enabling the freezing of bank accounts in other EU Member States.
In addition, preventative and protective measures granted in substantive proceedings in Ireland will be enforced in other EU Member States subject to certain safeguards for defendants. Ireland will grant such measures itself in support of substantive proceedings in another EU Member State. This also applies to Lugano Convention states.
In disputes involving other EU Member States, an added advantage is that issues surrounding both jurisdiction and the recognition and enforcement of judgments are unproblematic under Brussels I recast. The same is true of disputes involving contracting states to the Lugano Convention. Ireland is also a contracting state to the Choice of Court (Hague Convention) Act 2015.
The running of cross-border litigation in an EU context is also greatly simplified by the existence of reciprocal rules governing the recognition of official documents, service of proceedings and taking of evidence to name some examples.
The International Swaps and Derivatives Association Inc (“ISDA”) has already recognised Ireland as a key post-Brexit alternative. In July 2018, it published Irish and French law versions of its 2002 ISDA Master Agreement. This initiative formed part of ISDA’s strategy to provide users of its documentation with the necessary tools to future-proof contractual arrangements against the uncertainties presented by Brexit. Post-Brexit, the availability of the Irish law ISDA Master Agreement will enable parties to continue to transact derivatives under the laws of an EU Member State that is a common law jurisdiction and to benefit from the recognition and enforcement of judgments as referred to above.
The UK’s withdrawal from the European Union will undoubtedly change the landscape for parties involved in international trade and investment. Those parties may seek to mitigate some of the upheaval surrounding Brexit by closing off uncertainty where they can. In the area of dispute resolution, they can do so by choosing Ireland as the jurisdiction where such matters will be resolved.
This document has been prepared by McCann FitzGerald LLP for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.