Protect and don’t survive

Offshore litigation boom will be just a bubble unless jurisdictions dump protectionism

Jan Mugerwa

Many offshore jurisdictions have been enjoying a boom in litigation, mainly due to disputes that have arisen out of the financial crisis. I have little doubt that, like most booms, anyone caught up in it thinks it will never end. So, at the risk of being contrary and labelled a doom-monger, I would like to question whether this boom is, in fact, merely a bubble.

Ask anyone based in England who litigates in offshore jurisdictions (myself included) and I bet that, with a few notable exceptions, you will be met with a big sigh. Offshore jurisdictions are notorious for a number of reasons: often, when litigating offshore, a less than adequate judiciary and bar – that guards its monopoly fiercely – leads to significant increases in litigation risks and costs.

That’s rich, it could be said, bearing in mind the recent Abramovich case that garnered so many headlines for the costs incurred and the devastating outcome for Berezovsky and his backers.

Nevertheless, that case serves to highlight the challenges that face offshore jurisdictions. Historically, those who held their wealth offshore would litigate offshore, away from the public gaze. Apparently, not anymore.

Increasingly, there is a ‘pull’ that is drawing these cases to London. Parties feel they can rely on the integrity of the judiciary, which is not perfect but many classes above most offshore jurisdictions. Fees are not duplicated as offshore litigation is often primarily run out of London and, critically, the English bar is second to none for its quality and fearless integrity.

The growing need for transparency, driven by increasingly fierce anti-money laundering rules, the continuing growth of international arbitration and the willingness of English courts to be seized of these types of disputes are other factors that pull offshore disputes towards London.

In AK Investments, a recent Privy Council case that considered the basis upon which English courts will seize jurisdiction, Lord Collins, in identifying the test as one of “a real risk that justice may not be obtained”, made it clear that English courts were willing to subject foreign jurisdictions and judicial systems to a highly critical judgment under the test, which extends to the question of incompetence in those jurisdictions.

The offshore world can respond to this challenge by opening up their bars and improving the quality of their judiciaries.

Hong Kong’s courts have allowed foreign practitioners to appear in complex or high-value cases, with the result – and benefit – that its judiciary and bar are highly regarded. Singapore is now following this lead.

Jurisdictions that remain closed, such as Jersey, may ride the short-term wave of high fees that result, but in the longer run, without a sea-change in attitudes, it seems to me that protectionism will invariably lead to such jurisdictions reverting to their parochial roots.