Global Legal Insights 2023: 12

In 1707, Jonathan Swift, the Anglo-Irish writer, wrote 'laws are like cobwebs, which might catch small flies, but let wasps and hornets break through'. Never a truer word said, but the dramatic developments over the past year alone are more like Jonathan Swift's most popular work Gulliver's Travels; his titular character stomping over and dragging these metaphorical cobwebs, misshapen and broken, trapping flies, hornets and wasps, and leaving behind a trail of destruction. For a lawyer, it is difficult not to see that as a modern-day image of the attempts to adapt our laws to respond to recent societal pressures and geopolitical events.
There is significant pressure to update the laws concerning 'reputation management', to address what investigative journalists complain are 'strategic lawsuits against public participation', or 'SLAPPs' for short. Although there is the tort of defamation, the law of privacy, the torts of breach of confidence and misuse of private information, as well as other legislative rules concerning rules of 'participation', there is pressure to add an additional legislative layer to reflect how expensive litigation is, and has become. Investigative journalists claim that stories are stymied by unmeritorious claims, yet the backdrop of phone-hacking claims, and Prince Harry's complaints, demonstrate the support provided by the Courts to this industry. It will be interesting to see how this develops; the publisher often has the deepest pocket.
The momentum for this initiative most definitely arrived in tandem with the imposition of the 'sanctions' regime imposed by the government in the UK, which, according to the government website, is 'aimed at encouraging Russia to cease actions destabilising Ukraine or undermining or threatening the territorial integrity, sovereignty or independence of Ukraine'. There is no disputing that aspiration, but the legal impact and justification for how it has been implemented is open to question. Free right of private ownership and access to justice were once considered immutable concepts; are they now conditional?
Returning to the prosaic, the arbitration community finally looks set to achieve its objective of upgrading and updating the Arbitration Act 1996. The Law Commission process has come to an end, and, despite the noise, only minor changes are expected. In contrast, there was seismic activity detected near the Supreme Court in London when the decision in the Trucks case was released. The industry-accepted structure of litigation funding agreements was interpreted as a prohibited 'damages-based agreement', and has sent many third-party funders back to their funding agreements. It will be interesting to see how that plays out.
Finally, this book is intended as a tool for those who wish to explore the developments across a variety of jurisdictions. I am grateful to the many contributors to this book for their updates.