One of the most senior judges in the United Kingdom, speaking to Cayman’s judiciary and legal fraternities last week, said the jurisdiction chosen for a legal dispute can often be the deciding factor for many cases.
Lord Mance, a justice for the Supreme Court of England and Wales, sits on the Privy Council, the final court of appeal for British overseas territories. He said questions over jurisdiction, meaning where a case is heard and what laws apply, depend on how quickly a court can decide an issue, how reliable that court is, and if outside pressures like political or social connections could impact a legal decision.
Lord Mance said the Privy Council can, at times, “be quite mundane” because many member states give a blanket right of appeal for almost any case. “But it can also involve high constitutional issues,” he said, pointing to a suit in St. Kitts and Nevis over election boundaries and a Cayman Islands case related to the financial services industry.
The justice’s lecture, presented to more than 80 people in the Grand Court, focused on what he called “heavy commercial disputes,” such as fraud or insolvency of an offshore fund management company.
The Judicial Administration, Caymanian Bar Association and the Cayman Islands Law Society hosted Lord Mance on his visit. He met with several groups during the trip and visited the Truman Bodden Law School to speak with students. According to a statement from the Judicial Administration, Lord Mance “had been very keen to meet the judges” and to get “as clear an understanding as he could of the local circumstances and the business coming before the courts.”
During his lecture, he addressed issues around jurisdiction and case law that establish how disputes over where a case should be held are resolved. Jurisdiction, he said, can be a deciding factor in a case because of differences in laws and judicial norms. Many companies in legal disputes could argue to move a case to a different country if they think it would have a more favorable legal regime.
Lord Mance gave a number of examples from British and European courts of how jurisdiction was decided and how it could impact a case. He said English courts have in the past been hesitant to send a case to India because “of evidence that it would take a decade or more to get the matter adjudicated there.”
A party has to give clear evidence that a case would not be tried fairly or promptly in order to change jurisdiction under U.K. law, the justice said. He gave another example from a 1937 case: “the plaintiff, a Jew, … to pursue his German claim against his German employers in Germany would have had to attend in person, whereupon he would have been at risk of being arrested and put in a concentration camp.”
Lord Mance said that Caribbean jurisdictions often have to consider factors outside of their own national borders. “A company’s affairs will have international ramifications. Here, we are not concerned with competition between jurisdictions, but with need for effective cross-border mechanisms,” he said. Europe, he added, has developed legislation to help with these cross-border questions, especially when it comes to companies that have become insolvent. But how those rules work across national lines is controversial, he said, and “led to what one might describe as a “jurisprudence of fine lines.”