What can data science tell us about the role of English law in driving global commerce and the threats and opportunities for Global Britain?
There has been growing discussion among legal scholars over the past two decades of an emerging “global community of courts” composed of a network of judicial dialogue across national borders. Improved international travel and new communication methods have increased personal contact among judges in both judicial and extra-judicial settings. And, in a more connected world, there are mounting similarities between the facts and issues of cases that come before judges in courts around the globe.
More and more courts, particularly those in common law countries (such as England and Wales, Australia, Canada and the United States), are looking to the judgments of other jurisdictions for guidance on domestic questions of law. However, the absence of sufficiently large data sets has, until now, made quantifying the flow of judicial thinking between countries virtually impossible.
In the largest study of its kind, Mishcon de Reya joined forces with vLex Justis, the maintainer of the largest global collection of primary legal information, to investigate the cross-border flow of judicial thinking by analysing over 1.5 million judgments from twenty-six common law countries.
Our analysis reveals a slow but steady rise in the amount of foreign case law cited by judges in national courts over time until the dawn of the internet in the mid-1990s/2000s when the use of foreign judgment surges.
Notwithstanding a general trend of increasing reference to foreign case law, some countries make far greater use of foreign judgments than others. Despite the vast influence the USA exerts on the global stage, American judges are slow to cite to the judgments of other countries and judgments from the UK, Australia and Canada are more frequently cited than American judgments. Australian judges are shown to be far more likely to engage in comparative analysis with foreign case law.
Our analysis shows that judgments of the courts of England and Wales and the Supreme Court (and the House of Lords before it) are the most frequently and widely consulted body of case law, demonstrating the leading role that English law plays across the common law world -- from Canada and the Caribbean to Malaysia and Australia.
Demonstrably, English law has enviable "brand recognition" and international credibility. The exportation of English law as a best in class operating system (and its role in shaping the law of overseas jurisdictions) has enormous economic and soft power benefits for the UK. Those benefits are most obviously seen in the direct contribution to UK GDP by the UK legal services sector. Less obvious is the competitive advantage that UK law offers to UK businesses (such as in the financial services, maritime and insurance sectors) through its dominant position in global, internationally mobile, transactions.
However, there are a number of threats to English law's pre-eminence.
Our study reveals that even though the use of foreign case law is increasing, judges typically prefer to cite jurisdictions that are geographically nearby, potentially suggesting that judges equate proximity with similarity.
This threat to UK law's global dominance will likely be particularly acute in new competitor jurisdictions that have heavily invested in their legal sectors such as Asia and the Middle East. A trend towards protectionism and the diminished influence of the UK as the gateway to the European market may also dilute English law's global influence. Finally, much as the dominance of UK law in the financial services, maritime and insurance sectors can be traced to the UK's historical dominance of international trade, competitor legal hubs are looking to take the lead in the new industrial and legal spaces created by technological advances, such as AI, smart contracts and crypto currencies.
Despite these threats, our study indicates that there is cause for optimism. The factors that influence a judge’s selection of foreign case law have evolved over time. Historically, when the practice of citing foreign case law was less well-established, judges focused their citations on landmark seminal cases, such as Donoghue v Stevenson.
Our analysis shows that foreign judges have widened their net to include less well-known and more specialist cases where English law has taken the lead. For example, the 2017 UK Supreme Court decision in Patel v Mirza (which defined the approach to be taken when the illegality defence is raised) has been cited seven times in foreign courts since judgment was delivered. Likewise, Cavendish Square Holdings v Makdessi (which concerned unfair terms in consumer contracts) has been cited 11 times in foreign courts since the UK Supreme Court handed down its judgment in 2015.
Given the status of the UK as a world leading litigation centre, English judges can take the lead on developing exportable legal solutions for emerging tech industries, ensuring that English law maintains its global influence.
As such, the success or failure of the Ministry of Justice in maintaining a pipeline of world leading judges and investing in the modernisation of the UK justice system may well, in years to come, be judged to have had a disproportionate impact on the fortunes of Global Britain.