Worldwide firms look to English legislation in Poland

Since 1994 I’ve lived and labored outdoors the UK. Practically all that point has been spent in Warsaw (I’m now a Polish citizen) interrupted by spells in Kyiv and Bucharest. In actual fact, I’ve labored on transactions involving a lot of the nations of Jap Europe during the last 27 years or so.

Nick Fletcher_headshot

All my skilled life has been spent with Clifford Probability together with eight years in London. I’m sufficiently old to have been a trainee with Clifford Turner, a protracted, very long time in the past.

In addition to practising as a company lawyer, I additionally do a restricted quantity of lecturing in English contract legislation, together with for the British charity Juris Angliae Scientia (JAS). Since 1991, JAS has run a educating centre based mostly in Warsaw and its goal is to show English and EU legislation to college students based mostly within the wider area.

I’m very honoured to be on the board of JAS. A whole lot of scholars throughout Jap Europe have gained diplomas in English legislation from JAS, a lot of whom have gone on to have profitable careers in legislation and politics.

On this respect, educating English legislation has been an unlimited profit. I’m regularly grateful to Dr Rafal Zakrzewski, a former colleague of mine, who was in a position to set out with nice readability the philosophy behind the English legislation contractual system, its variations from that of civil legislation and why it has develop into such a well-liked selection for complicated business transactions internationally.

Throughout the area, English legislation is firmly established because the authorized system of selection for a lot of the area’s bigger and most complicated non-public mergers and acquisition (M&A) transactions.

The 2 important components in selecting English legislation are the diploma to which the transaction has a global element – the extra worldwide, the extra possible English legislation can be chosen –and the diploma of confidence in any native authorized system which may in any other case apply, so the decrease the extent of confidence, the upper the possibility that English legislation can be used.

Because of this, there are variations within the extent to which English legislation is used throughout Jap Europe.

English court docket judgments post-Brexit

A lot much less widespread, nevertheless, is events selecting English courts, with a global arbitration discussion board usually chosen.

There are considerations about enforcement of English court docket judgments post-Brexit, whereas there appears to be a deep-seated choice for arbitration within the area, pushed by considerations about home courts and assuming these points could be replicated within the English courts.

Frustratingly, selection of legislation and courts can stay a topic of negotiation in some transactions, specifically between a ‘native’ occasion and a global counterparty. The place selection of legislation is an open concern, as a substitute of figuring out which authorized system finest delivers the intentions of the events, the talk is often predicated by the belief {that a} non-local authorized system naturally favours the worldwide occasion, even when it might not be case.

There’s additionally plenty of misguided dialogue about how English legislation can ‘perceive’ firms and companies situated outdoors the UK.

A customized has developed within the area of drafting M&A transaction paperwork within the English type, utilizing English terminology, even when ruled by a authorized system apart from that of England.

Due to this fact, a lawyer whose whole skilled profession had been spent in London would have little hassle navigating round, say, a Polish legislation/English language share buy settlement. Phrases resembling ‘representations and warranties’, ‘indemnities’ and ‘finest endeavours’ could be freely used.

An ordinary boiler plate is being developed out there to attempt to guarantee these phrases are understood in the best way they’re meant. Nonetheless, most agreements the place this type is used could be topic to arbitration and never native courts. Due to this fact, little or no jurisprudence is being developed on how these phrases would truly be interpreted within the related native authorized system.

One factor that shocked me about working outdoors your property jurisdiction is the way it can enhance your understanding of your property jurisdiction’s authorized system. I don’t imply that in any detailed sense, however extra when it comes to gaining an understanding of the ideas concerned and the way they distinction with these of a civil legislation system.

 

Nick Fletcher, of counsel at Clifford Probability in Warsaw