Legal systems around the world have been struggling to address the challenges presented by rapid technological change and the disruption caused by COVID-19. In England, however, the flexibility of the common law and the courts’ proactive approach to dealing with new and disruptive technologies has helped meet these challenges and demonstrates why English law and the English courts will continue to be a key legal system and jurisdiction for technology development and dispute resolution, even after the UK’s transition from the EU ends.
The advantage of the English common law is that, rather than depending on an inflexible process of legislative intervention, judges apply and adapt by analogy existing principles to address new challenges as they arise. It can therefore provide the certainty and predictability that global business demands and is well able to adapt and deal with fast changing technologies.
Development of smart contracts, cryptoassets and DLT
A practical example is the development of smart contracts, cryptoassets and distributed ledger technologies (DLT) which have far-reaching implications for the financial markets and many other industries. The lack of certainty regarding their legal status, and the impact that could have on their development, led a judge-led taskforce to issue a statement on their legal status. This pre-emptive approach is something which no other jurisdiction has attempted. The conclusions reached included that the novel features of cryptoassets – intangibility, cryptographic authentication, use of DLT, rule by consensus – did not disqualify them from being property and being protected as such under English law.
Technology improves operations and processes
In addition to the willingness of English courts to grapple with questions raised by new commercial mechanisms, they are increasingly using technology to improve their operations and processes. The Commercial Court (the principal court that deals with business disputes) has led from the front. It was one of the first courts globally to adopt video-link evidence; to conduct trials using electronic documents; and to implement fully electronic filing. The technological adaptability of the Court has been vividly illustrated recently by its successful response to the pandemic. On 18 March 2020, all hearings in the Court were in a physical courtroom. On 20 March 2020 the Court heard its full list entirely remotely. Since then, nearly 100% of listed cases have been heard as planned.
As technology continues to drive change, the advantages of the common law and the English courts’ embrace of technology mean that England will continue to be a leading jurisdiction for resolving business disputes.
This article was first published on The Telegraph’s Technology Intelligence Live 2020 event microsite.
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