POLE POSITION: ENGLISH LAW AND BREXIT
PART 1 – CIVIL LITIGATION

Legal services markets and jurisdictions are increasingly competing with each other due to economic and societal changes. Civil courts have become vital institutions which do much more than just applying or interpreting legislative acts. They decide on significant market parameters, shape economic policies and guarantee civil rights.

In view ofthe forthcoming Brexit date, a comparison of the adversarial (England and Wales) and the inquisitorial systems might be of interest, taking Germany as an example of an inquisitorial system. Which system offers the best legal tools and the most efficient dispute resolution mechanisms?

Let's start with the civil litigation. I would like to address the following five issues in this context, that I consider to beparticularly telling.

It is submitted that the German inquisitorial system is tailored to small-scale civil disputes with no complex facts, which can be time- and cost-efficiently sized up by a fair-minded judge with relevant experience. It is a system that consciously favours public regulation over private autonomy and provides access to justice by means of relatively rough tools.

The English civil adversarial system is a sophisticated and highly balanced structure that in my view shouldn't be ‘diluted’ due to cost issues. In particular against the backdrop of the Brexit, such a high-quality (export) good deserves less of a shift towards the inquisitorial system (that might substantially damage it) and more of a careful reform focused primarily on the issue of costs. Thought might be given in this context to the abolishment of cost-shifting or introduction of caps for particular cases or tracks as well as to further proliferation of collective actions, especially due to the increasing digitalisation and the ramifications of mass society.

All things considered, I believe that the leading position England occupies in the legal services market for high stakes litigation will not be easily toppled by the currently discussed civil law alternatives without transplanting major tenets of the English civil proceedings into those systems. Which never is a simple task.