By | 8th May 2012

The Great Mosque in Cordoba in Southern Spain is one of the wonders of the modern world.

It is not that new, of course, dating from 756 AD when the Caliph of Damascus set up his court in Cordoba and constructed the mosque on the site of an earlier Roman Temple of Janus which had itself been converted into a church by, of all people, the Visigoths. In 1236 the city was captured by Ferdinand 111 as part of the Reconquista (culminating in the expulsion of the Moors from mainland Spain in 1492). Ferdinand was responsible for the cathedral we see today, which is effectively a Christian cathedral housing an Islamic mosque on the site of a Roman temple converted into a Visigoth church!

It is often forgotten that there have been periods of our history when different religions and cultures have co-existed. One such place was Cordoba where there was a significant toleration of different cultures giving rise to an explosion of artistic and intellectual predominance. Other examples include the influence of Ancient Greece which extended as far East as India and west to Spain and encompassed much of northern Africa. No one pretends that all this globalisation was achieved smoothly or that the results were uniformly benevolent but nonetheless globalisation has been with us a long time and we are seeing further extensions in our own time.

“It is a small world.” I am uncertain where the comment first appeared but a case to be heard in the Supreme Court in May could “herald(s) an era of more foreign lawyers coming here to then be able to enforce the law of any country.”

The quotation is by Nick Moser, partner at Taylor Wessing, in an article entitled “Unsettling Settlements” [The Lawyer 23rd April, 2012] .  Moser is acting for the trustee of Bernard L Madoff Investment Securities and an intervener in the case of New Cap Reinsurance Corp & Rubin & Lan v Eurofinance SA & Anor and AE Grant & Ors, or Rubin for short.

For present purposes, I understand that the UK Supreme Court is to be asked to decide whether the liquidator of insolvent Australian reinsurance company New Cap Re can enforce in England an insolvency judgment for the payment of money obtained in an Australian court.

The case is being hotly defended, but if the earlier Court of Appeal ruling in Rubin is held to be right, the authors say that it will turn London into “disputes central.” If an application in Australia is enforceable in London, it is argued that the law will have caught up with the modern commercial world where people can move money at the touch of a button.

It has always been one of my tenets that English law is the most flexible in the world and, that being so, it can and should continue to be the preferred global law of commerce. A decision by the Supreme Court to confirm the Court of Appeal in Rubin will certainly make for greater efficiency in cross border insolvency cases, but should also encourage other litigation to be started in London which will be seen as the forum of choice for resolving international trading disputes.

Good for lawyers practising English law and for vendors of technology used to deal with the ever increasing amount of electronic documents which will inevitably result.

It is all the more important therefore that the courts in this country continue to grapple with and ultimately succeed in driving down the costs of litigation here. In that context I am pleased to refer to a lengthy piece of research conducted by the RAND Institute for Civil Justice, a research institute within RAND Law, Business, and Regulation, a division of the RAND Corporation: Where the Money Goes: Understanding Litigant Expenditures for Producing Electronic Discovery [PDF – 169pp].

 This is not the place to comment extensively on the more than 100 pages of the report save to say that it covers widely the issue of where the money goes in relation to litigation and inevitably deals with the costs of disclosure.

I would like to highlight only two small aspects of the report:

  1. On page 67 at note 18 there is a reference to the report by “Lacey, Tanner and Moeskops” (two Eversheds lawyers and our own James Moeskops) on how predictive coding was used in a specific case which cost “a fraction” of human review.
  2. More seriously, the report recommends, amongst other things, that there should be Transjurisdictional Authority for Preservation.

In a nutshell the objective would be to have some form of cross border guidelines or rules so that litigants will know what the rules relating to preservation actually are wherever they are to litigate.

The report is excellent but long. Read it at your leisure but for my purposes, and taken together with the potential for “global” litigation in London if Rubin is right, it is just another straw in the wind of globalisation.