Private wealth, commercial relationships, and their ensuing corporate structures often no longer align with national boundaries. Assets may be held across multiple jurisdictions, families and business partners frequently operate at distance, and the governing law of a contract or trust instrument may bear little obvious connection to the nationalities of the parties, the location of assets, or the place of performance. The internationalisation of private and commercial arrangements has, over time, produced a corresponding transformation in the nature and character of litigation. Disputes which would once have been purely domestic in character now routinely engage questions of applicable law and the enforceability of cross-border judgments.
We consider some of the structural features of that transformation and examine why, despite competing and attractive alternative fora, the courts of England and Wales (‘the English courts’) have retained and in certain respects consolidated their position as a principal venue for the resolution of cross-border disputes.
The English Courts: A Forum of Choice
The persistence of the English courts as a chosen forum for international litigation is well-documented and not merely a nod to history. As per the Law Society’s International Data Insights Report of 2025, 61.7 per cent of litigants before the London Commercial Court between April 2024 and March 2025 came from jurisdictions outside the United Kingdom, representing 93 different nationalities. London also ranked jointly first alongside Singapore as the preferred arbitration seat in the 2025 Queen Mary University International Arbitration Survey.
Several factors encourage this. The English system provides litigants with tools which are particularly well-suited to the resolution of complex and information-asymmetric (unbalanced) disputes. Disclosure obligations, flexible interim relief, and a range of available remedies give the courts both the capacity and the experience to address disputes which do not neatly conform to statutory categories. The specialist nature of the courts, eg. the subdivisions of the Chancery division, mean that judges are able to bring significant expertise to technically-demanding cases. The enforceability of English judgments has also been materially strengthened by the UK’s ratification of the Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters, which entered into force on 1 July 2025.
There is also the less tangible, but nonetheless significant, matter of institutional confidence. Parties to an international dispute who do not share a common legal tradition may nonetheless be willing tochoose the English jurisdiction on the basis of its reputation for independence and consistency. For financial institutions and parties dealing in standard-form English legal documentation, certainty of interpretation is an important factor.
The Consequences of Fragmentation
The internationalisation of wealth and commerce has not made the task of litigation more straightforward. Cross-border disputes introduce structural complexity which frequently generates ancillary disputes before the substantive merits of a case are heard. Where assets, parties, governing law, and the place of administration span many different jurisdictions, establishing which court has competence to hear a claim, and on whose principles, can in and of itself be a substantial exercise. Forum disputes and conflicts of law questions are increasingly routine features of high-value disputes.
This fragmentation creates opportunities for procedural tactics to be used. A party facing potential liability may seek to exploit jurisdictional complexity to delay proceedings, increase the costs of litigation, or to forum-shop – even through an ancillary issue. Where parties are not resident, registered, assets are not held, and documentation is not in the language of this jurisdiction, there remains potential to choose forum by dint – say – of a minor subsidiary registered here. The English courts have generally been alert to such tactics and have developed a sophisticated body of procedural law to address them, including via anti-suit injunctions where parties seek to circumvent exclusive jurisdiction agreements.
A related consequence of fragmentation is information asymmetry. In complex trust and corporate structures, those who administer assets frequently hold considerably more information than those with a beneficial or economic interest in them. The capacity of English courts to compel disclosure, and to tailor its scope to the circumstances of a particular case, has made England an attractive venue for parties seeking information which would be difficult to obtain elsewhere, and a surprising one for those obliged to disclose.
The development of the law governing disclosure in trust disputes illustrates how English courts have adapted to these pressures. In Schmidt v Rosewood Trust Ltd [2003] UKPC 26, a case originating in the Isle of Man, the Privy Council held that the right to seek disclosure of trust documents is best understood as an aspect of the court’s inherent jurisdiction to supervise and, if necessary, intervene in the administration of trusts, rather than as a function of having an interest in the trust property. That reasoning was subsequently adopted into English law by Mr Justice Briggs in Breakspear v Ackland [2008] EWHC 220 (Ch), which remains the leading English authority on the disclosure of letters of wishes. The effect of this line of authority is that disclosure in trust disputes is treated as a matter of discretion, determined on the circumstances of each case, rather than as an automatic right.
The interaction between data protection law and trust disclosure adds a further layer of complexity. The Court of Appeal’s decision in Dawson-Damer v Taylor Wessing LLP [2017] EWCA Civ 74 confirmed that trust beneficiaries may deploy subject access requests under the Data Protection Act 1998 to obtain personal data held by a trustee’s solicitors. Significantly, the Court held that such requests are not invalid merely because they are motivated by a desire to obtain information relevant to trust disputes, even where the governing law of the trust, here, Bahamian law, might restrict disclosure through conventional trust proceedings.
Simultaneously, the decision underscores that the right is limited to personal data and remains subject to principles of proportionality and reasonableness, including the burden of compliance and the potential relevance of foreign law constraints. The case illustrates how distinct legal regimes may intersect in ways which are not always predictable at the structuring stage of cross-border arrangements, andhighlights the scope for litigants to make strategic use of alternative procedural routes within the English legal framework.
Common Law Across Jurisdictions
One of the more significant structural features of international litigation in recent decades has been the development of a sustained judicial dialogue between common law courts in different jurisdictions. The Privy Council, which retains jurisdiction over a number of offshore financial centres including the Cayman Islands and the Bahamas, as well as Crown Dependencies such as Jersey, occupies a particularly important position in this network. Its decisions engage with the jurisprudence of those jurisdictions while drawing on and contributing to the common law tradition more broadly. The result is a body of authority that is more internally coherent than the geographical and legal fragmentation of the underlying disputes might otherwise suggest.
This is not a hierarchical relationship in the classical sense. Courts in offshore jurisdictions are not bound by the decisions of courts of other common law countries, and the influence operates persuasively rather than by obligation. Nonetheless, the practical effect is that principles developed in one jurisdiction are tested and refined in others, and courts facing novel questions in the context of cross-border structures are rarely operating without guidance. The route by which the Schmidt principles entered English law, through their adoption by an English first-instance judge rather than by direct binding authority, is itself illustrative of how that dialogue functions in practice.
The durability of English equitable doctrine in this wider common law conversation is notable. Trust law has proved sufficiently adaptable to serve as a shared framework across jurisdictions with materially different tax regimes, statutory codes, and social contexts. The persistence of that framework is a function less of the rigidity of its rules than of the flexibility of its underlying principles. Concepts such as fiduciary obligation, unconscionable conduct, and the court’s supervisory role in relation to trust administration have proved capable of extension to factual scenarios not contemplated at the time of their original formulation.
Mitigating Litigation Risks in Practice
For clients with complex international structures, these developments carry practical implications. The choice of governing law and jurisdiction is not simply a tax or administrative question; it is also a question about the forum in which disputes will ultimately be resolved, the procedural tools which will be available, and the extent to which judgments can be enforced. Structuring decisions made at the outset of an arrangement have downstream consequences which may only become apparent when a relationship breaks down or a transaction is challenged years later.
That observation applies with particular force to trust structures. The prevalence of discretionary trusts in the organisation of private wealth, and the breadth of the powers they confer on trustees, means that disputes regarding the exercise of those powers are not uncommon. Understanding at the point of structuring how different jurisdictions treat questions of trustee accountability, disclosure, and the rights of those with a discretionary or potential interest is accordingly a matter of some practical importance. It is not sufficient to focus solely on the law of the governing jurisdiction: the procedural rules and equitabledoctrines of any court likely to be asked to supervise or intervene in the trust’s administration are equally relevant.
Careful attention should also be given to the choice of trustee and the location of trust assets, both of which have a direct bearing on the jurisdictions in which litigation may arise. A trustee incorporated or resident in a jurisdiction with firewall legislation may offer a degree of protection: the objective of such legislation is to prevent the recognition or enforcement of judgments of foreign courts in relation to property held pursuant to a domestic law trust, and to require that domestic law applies to determine questions relating to the formation, validity and administration of that trust. However, the strength of that protection varies materially between jurisdictions and cannot be assumed to be absolute. A foreign judgment varying a trust would not generally be capable of enforcement in an offshore jurisdiction, but the restrictive nature of firewall legislation means that parties may nonetheless need to engage the offshore court directly rather than relying on comity. The location of assets across multiple jurisdictions creates a separate and compounding exposure: parties in dispute will commonly try to initiate or move litigation to their preferred jurisdiction, with the result that proceedings may run in multiple forums simultaneously. The attendant risks of inconsistent judgments and the costs of multi-jurisdictional litigation should be assessed at the structuring stage with the same rigour applied to tax and regulatory considerations.
The tools available to mitigate these risks at the drafting stage are useful but each has recognised limits. Jurisdiction clauses in trust instruments have a more uncertain status than forum selection clauses in commercial contracts, and even a carefully drafted forum selection clause is not immune to challenge: courts have refused to enforce such clauses where the chosen forum has no reasonable connection to the parties, and a sophisticated counterparty may initiate parallel proceedings in a more favourable jurisdiction, forcing the other side to litigate on two fronts simultaneously. Powers enabling a trustee to change the governing law or the administrative jurisdiction of the trust offer genuine flexibility in response to changed circumstances, but their exercise carries its own risks: changes to the governing law of a trust may make unintended amendments to its terms, for instance by altering the interpretation of words such as “spouse” or “children” where those concepts are defined differently under the incoming law. The overall aim at the structuring stage should therefore be to create arrangements that are resilient to procedural pressure, with an honest assessment of which protections are robust and which are likely to be tested if a dispute arises.
The globalisation of wealth and commerce has materially altered the environment in which litigation takes place. It has increased the frequency and complexity of cross-border disputes, introduced new forms of structural fragmentation, and placed pressure on legal doctrines developed in a predominantly domestic context. The response of English law has been, on the whole, adaptive rather than transformative. Established principles of equity and procedure have been applied to new factual scenarios rather than replaced by new doctrinal frameworks.
Whether that process of incremental adaptation is sufficient to address the full range of challenges posed by increasingly complex international structures is a question on which reasonable practitioners may differ. What is evident is that the English courts retain a central position in the resolution of international law disputes and that the institutional and doctrinal features which have sustained that position remain, for the present, intact. Prevalent too, is the increasing complexity of disputes, and the importance of robust consideration of cross-border issues at the time of drafting documentation, in order toafford the best possible protection in an international dispute, and the ability to select and protect that choice of forum.
