The View of European Business Stuart Popham 14 March 2008 Survey Results.
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Transcript of The View of European Business Stuart Popham 14 March 2008 Survey Results.
The View of European Business
Stuart Popham
14 March 2008
Survey Results
The View of European Business · 14 March 2008 2
The 2005 Survey
2005 Survey on European Contract Law175 businesses83% viewed favourably or very favourably the
concept of a harmonised European contract law83% also want the ability to choose between
different laws30% in favour of a European contract law
replacing national laws
The View of European Business · 14 March 2008 3
The 2008 Survey
Carried out by the Institute of European and Comparative Law
77 (so far) businesses across Europe
The View of European Business · 14 March 2008 4
Choice of contract law remains important
91% regard it as important (45%)or very important (46%) to be able to choose the governing law of a contract
85% often (42%) or occasionally (43%) do choose
66% agree that there is considerable variation in contract laws across Europe
65% would choose a law from outside Europe if no European law was suitable
The View of European Business · 14 March 2008 5
What are the preferred laws?
First answers only
The View of European Business · 14 March 2008 6
What laws are avoided?
The View of European Business · 14 March 2008 7
What are the most used laws?
The View of European Business · 14 March 2008 8
International “laws”
70% agree strongly (41%) or mildly (29%) that cross border transactions would be facilitated if there were a European or global contract law to choose
But 81% never (57%) or almost never (24%) use lex mercatoria
or general principles of international contract law 79% never (59%) or almost never (20%) use UNIDROIT’s
Principles or International Commercial Contracts 95% never (91%) or almost never (4%) used PECL
The View of European Business · 14 March 2008 9
What influences the choice of law?Substantive contract law 4.51
Corruption 4.19
Quality of judges and courts 4.13
Speed of dispute resolution 4.12
Predictability of outcomes 4.09
Fairness of outcomes 4.03
Costs 3.72
Tax law 3.70
Quality of lawyers 3.65
Language 3.64
Absence or availability of disclosure/discovery 3.31
Absence or availability of class/collective action procedures 3.03
Mediation 3.01
Cross-examination 2.97
Absence or availability of judicial encouragement of settlement 2.83
The View of European Business · 14 March 2008 10
Law and jurisdiction 84% agree strongly (36%) or mildly (48%) that
there are considerable variations in civil justice systems across Europe
84% agree strongly (40%) or mildly (44%) that these variations affect their choice of contractual governing law
66% agree that there are considerable variations in contracts laws across Europe
74% agree strongly (34%) or mildly (40%) that these variations affect their choice of jurisdiction to resolve disputes
The View of European Business · 14 March 2008 11
The importance of choice of jurisdiction
91% consider it very important (68%) or important (31%) to chose the dispute resolution forum
85% often (42%) or occasionally (43%) do so
64% would choose a forum outside Europe no European forum was suitable
The View of European Business · 14 March 2008 12
What are the preferred fora?
The View of European Business · 14 March 2008 13
Preferred fora away from home
First answers only
The View of European Business · 14 March 2008 14
What are the least preferred fora?
The View of European Business · 14 March 2008 15
What are the most used fora?
The View of European Business · 14 March 2008 16
What are the most favourable fora?
First answers only
The View of European Business · 14 March 2008 17
What are the least favourable fora?
First answers only
The View of European Business · 14 March 2008 18
What influences the choice of jurisdiction?Fairness in outcomes 4.43
Quality of judges and courts 4.43
Corruption 4.39
Predictability of outcomes 4.30
Speed of dispute resolution 4.22
Substantive contract law 4.12
Language 4.05
Costs 3.86
Quality of lawyers 3.75
Tax law 3.43
Absence or availability of disclosure/discovery 3.39
Mediation 3.14
Absence or availability of cross-examination 3.11
Absence of availability of class/collective action procedures 3.01
Absence of availability of judicial encouragement of settlement 2.96
The View of European Business · 14 March 2008 19
Jurisdictions and trade
82% disagree strongly (60%) or mildly (22%) that variations in civil justice systems deter companies from doing business in certain jurisdictions
57% disagree strongly (24%) or mildly (33%) that differences in civil justice systems constitute a barrier to trade
33% agree mildly and 8% agree strongly
The View of European Business · 14 March 2008 20
Financial impact of jurisdictions
Do differences in European civil justice systems have a financial impact on your business?
The View of European Business · 14 March 2008 21
A harmonised European civil justice?
79% favourable (43%) or very favourable (36%)
But how?
The View of European Business · 14 March 2008 22
“It is very difficult to learn each of the different judicial systems in Europe. It is better to have only one European system.”
“There is a realm to harmonise certain systems. But to harmonise all of the systems would take too long and the results would be worse that what we have right now because of the need to compromise: many good systems would be lost.”
“To a certain degree the scepticism on a European civil justice system might be based more on prejudice than fact, especially also our scepticism about common law. We tend to avoid these jurisdictions nevertheless.”
The View of European Business · 14 March 2008 23
Arbitration
61% prefer arbitration to court proceedings because
Confidentiality (50%)Speed (30%)Enforceability (7%)Informality (7%)Cost (4%)Particularities of the transaction (2%)
The View of European Business · 14 March 2008 24
Conclusion
There is an internationally competitive market in law and dispute resolution
Parties want, and will exercise, choice
Law and jurisdiction are intimately connected
The principal factors that influence choice are general in nature
Clifford Chance, 10 Upper Bank Street, London, E14 5JJ, UK
© Clifford Chance LLP 2008
Clifford Chance LLP is a limited liability partnership registered in England and Wales under number OC323571
Registered office: 10 Upper Bank Street, London, E14 5JJ
We use the word 'partner' to refer to a member of Clifford Chance LLP, or an employee or consultant with equivalent standing and qualifications
www.cliffordchance.com
The View of European Business
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