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Max Planck Institute Luxembourg for Procedural Law
Research Paper Series | 2019 (2)
International Commercial Courts in the Litigation Market
Prof. Dr.
Marta Requejo Isidro
Senior Research Fellow
Max Planck Institute Luxembourg
for Procedural Law
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Max Planck Institute Luxembourg for Procedural Law Research Paper Series
ISSN: 2309-0227
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L-2721 Luxembourg
www.mpi.lu
1
INTRODUCTION ........................................................................................................ 5
2
THE ESTABLISHMENT OF SPECIFIC COURTS FOR INTERNATIONAL-
COMMERCE-RELATED-LITIGATION: A CURRENT TREND ............................................ 5
2.1
Asia and the Middle East, First Approach ............................................................................. 6
2.2
Separate Analysis...................................................................................................................... 7
2.2.1
Dubai: the Dubai International Financial Centre Courts ..................................................... 7
2.2.2
Qatar: Civil and Commercial Court of the Qatar Financial Centre ..................................... 9
2.2.3
Abu Dhabi: Abu Dhabi Global Market Courts ..................................................................... 11
2.2.4
Singapore: Singapore International Commercial Court .................................................... 12
2.3
Europe, First Approach .......................................................................................................... 14
2.4
Separate Analysis.................................................................................................................... 15
2.4.1
Germany: The Frankfurt Initiative and Beyond .................................................................. 15
2.4.2
France: Paris ............................................................................................................................ 17
2.4.3
Ireland: Dublin ........................................................................................................................ 18
2.4.4
The Netherlands: Amsterdam .............................................................................................. 19
2.4.5
Belgium: Brussels ................................................................................................................... 21
3
A MARKET OF COMPETING JURISDICTIONAL SERVICES? .................................22
3.1
‘Commercial courts and international arbitration—competitors or partners?’ ......... 23
3.1.1
Complementarity.................................................................................................................... 23
3.1.2
Competition ............................................................................................................................ 25
3.1.2.1
Matching and improving the offer ................................................................................... 26
3.1.2.2
Drawbacks ........................................................................................................................... 27
3.2
International Commercial Courts in Competition ............................................................ 28
3.2.1
Forum selling, forum shopping ............................................................................................ 28
3.2.2
Choice-Determinative Factors .............................................................................................. 30
3.2.2.1
Access ................................................................................................................................... 30
3.2.2.2
What is on the menu? ........................................................................................................ 31
3.2.2.3
The ‘exportability’ of the judgments ................................................................................ 32
3.2.2.4
Other .................................................................................................................................... 33
3.3
Epilogue- A Word on the ‘Judgments Project’ ..................................................................... 34
I
NTERNATIONAL
C
OMMERCIAL
C
OURTS IN THE
L
ITIGATION
M
ARKET
Marta Requejo Isidro
Max Planck Institute Luxembourg for Procedural Law, marta.requejo@mpi.lu
Article last updated: January 2019
Abstract: The expression “international commercial courts” refers to national judicial bodies set up in
the last fifteen years in several jurisdictions throughout the world to suit the specific demands of
international commercial litigation. The courts and the proceedings before them share unique
features often imported from the common law tradition and the arbitration world, with a view to
providing for a dispute resolution mechanism tailored to the subject-matter. This notwithstanding,
there is no single model of international commercial court: rather, each of them presents its own
distinctive characteristics. This paper summarizes the main traits of several international commercial
courts prior to exploring their relationship with international arbitration, on the one hand, and
among them, on the other, at a time when dispute resolution mechanisms in competition is seen as
an incentive for the improvement within justice systems at a global level, and the term "litigation
market" is used matter-of-factly. In this context, elements such as the language of the process, the
possibility of being represented by foreign lawyers, or the existence of a network of instruments for
the enforcement of decisions abroad, may prove decisive in the choice of the users to file claim with
a court (and which one), or going to arbitration.
Keywords: Commercial cross-border litigation; litigation market; international commercial courts;
international arbitration
Cite as
Marta Requejo Isidro, International Commercial Courts in the Litigation Market, (2019) Max Planck
Institute Luxembourg for Procedural Law Working Paper Series, no. 2
1 Introduction
International commercial disputes are principally settled via arbitration or before the public courts. A
relevant divergence between these two methods of dispute resolution is that, as a rule, judicial
proceedings unfold according to non-dispositive, general and pre-established procedural rules,
mostly designed for domestic settings (as opposed to cross-border ones). Only by way of exception
are the parties allowed to deviate from the legal provisions, and only some legal systems include
procedural-related provisions that take the international nature of a controversy into account.
1
The
situation has graphically been described as a ‘market failure’:
2
a failure the lawmaker is trying to
overcome by establishing specific courts, chambers or divisions for international commercial
litigation.
The expression ‘international commercial courts’ refers to judicial bodies set up in several
jurisdictions throughout the world in the last fifteen years to properly address the particularities of
international commercial litigation.
3
In comparison to other national public courts, international
commercial courts have unique features often imported from the arbitration world. The
‘international’ qualifier refers to the type of issues dealt with by the courts, and (sometimes) also to
their composition, but not to their origin or their nature: on the contrary, international commercial
courts are created by national laws and integrated into their local justice systems.
In what follows we will first describe the most outstanding features of the already existing or planned
international commercial courts: the scope of their jurisdiction, the procedural particularities
reflecting the cross-border nature of their cases, or/and those meant to meet the demands of
quickness; their policy on fees. In the second part we will address the relationship of the
international commercial courts with arbitration, as well as among themselves, in a context where
the term ‘litigation market’ is used without bias, and the idea of different dispute resolution
mechanisms in open competition is regarded as a positive impetus for improvement and innovation
within justice systems at a global level. The paper does not intend to be exhaustive but rather to
provide an initial approach, based to a large extent in the letter of the law.
2 The Establishment of Specific Courts for International-Commerce-Related-Litigation: a
Current Trend
International commercial courts are neither exclusive to this millennium nor to a particular part of
the globe, although it is true that they have proliferated recently, especially in some geographical
areas. The paradigm is to be found in the London Commercial Court, created already in 1895.
International commercial courts have recently been set up in Asia and Europe; the debate over the
* This paper is part of a broader document of research on international commercial dispute resolution, still unpublished.
1
F. Gascón Inchausti, M. Requejo Isidro, ‘EU Procedural Law Study: Mutual Trust General Report’, EU Publications, 2017, Chap.
1: https://publications.europa.eu/en/publication-detail/-/publication/531ef49a-9768-11e7-b92d-01aa75ed71a1/language-en
(all websites have been last visited January 7, 2019).
2
K. Ramesh, ‘International Commercial Courts: Unicorns on a Journey of a Thousand Miles’, Doha, Qatar, May 13, 2018, para.
3: https://www.sicc.gov.sg/docs/default-source/modules-document/news-and-article/international-commercial-courts-
unicorns_23108490-e290-422f-9da8-1e0d1e59ace5.pdf.
3
Chief Justice Sundaresh Menon, ‘International Commercial Courts: Towards a Transnational System of Dispute Resolution’,
Dubai International Financial Centre (‘DIFC’) Courts Lecture Series 2015 (Opening Lecture), Dubai, January 19, 2015:
https://www.supremecourt.gov.sg/docs/default-source/default-document-library/media-room/opening-lecture---difc-lecture-
series-2015.pdf.
opportunity of such a court has reached other jurisdictions, e.g. Australia;
4
at the regional level the
question has just been addressed by the EU Parliament.
5
All international commercial courts share
the common goal of addressing the demands of international commercial litigation; not surprisingly
this has led to many commonalities, but each international commercial court presents nonetheless
some unique features.
2.1 Asia and the Middle East, First Approach
Since the beginning of the XXI century several dispute resolution centers in the Middle East and Asia
have been equipped with courts specially designed to resolve international commercial cases: in the
United Arab Emirates, the Dubai International Financial Centre Courts (DIFC Courts) and the Abu Dhabi
Global Market Courts (ADMG Courts)
6
; in Qatar, the Civil and Commercial Court of the Qatar Financial
Centre (QFC Courts)
7
; in Singapore, the Singapore International Commercial Court (SICC)
8
.
In July 2018 the Chinese Supreme People's Court was bestowed with the faculty to create
international commercial courts; to the best of our knowledge at least two have already been
established, one in Shenzhen and another in Xi'an.
9
Due to the lack of literature other than in
Chinese - at least so far- the Chinese international commercial courts will not be dealt with here.
10
Broadly speaking, international commercial courts share a number of elements, the most relevant
being the use of English as the language of the process and the fact that they all seek inspiration in
the common law tradition, both at the procedural and substantive level. Echos the Woolf’s reforms
proposed in 1997 and introduced in England by the Civil Procedure Rules in 1998 are easy to
identify. These changes were meant to promote more resources to ADR, make litigation more
affordable, introduce less complex procedures, and provide speedy justice.
11
Interestingly, many of
4
See Chief Justice Marilyn Warren, ‘An Australian international commercial court’, (2016) 90(7) ALJ 453. An initiative for the
establishment of an international commercial court was taken in Spain in 2016. It was dropped soon afterwards, though, for a
legislative amendment would have been needed which seemed quite unlikely to succeed at the time. For a brief assessment
regarding Italy see R. Caponi, ‘Corti commerciali internazionali ovvero corti internazionali d'impresa’, Foro Italiano, anno 2018,
parte V, col. 297, under 9 (followed by a further theoretical reflection).
5
EU Parliament resolution of 13 December 2018 with recommendations to the Commission on expedited settlement of
commercial disputes (2018/2079(INL)).
6
https://www.adgm.com/doing-business/adgm-courts/home/
7
https://www.qicdrc.com.qa/
8
https://www.sicc.gov.sg/
9
It is worth noting that no international comercial court as such has been established in Hong Kong - although a Commercial
list exists for insurance, banking and general financial disputes, and complicated commercial cases involving high amounts are
directed thereto. Judges dealing with the comercial list have expertise in commercial disputes and are usually bilingual in both
Chinese and English.
10
The applicable procedural rules apply as of December 5, 2018. They are available (in Chinese) here:
http://cicc.court.gov.cn/html/1/218/149/192/1122.html. For a first description in English: W. Sun, ‘International Commercial
Court China: Innovations, Misunderstandings and Clarifications’, Kluwer Arbitration Blog, July 4, 2018,
http://arbitrationblog.kluwerarbitration.com/2018/07/04/international-commercialcourt-china-innovations-
misunderstandings-clarifications/. M. S. Erie, ‘The China International Commercial Court: Prospects for Dispute Resolution for
the Belt and Road Initiative’, https://www.asil.org/insights/volume/22/issue/11/china-international-commercial-court-prospects-
dispute-resolution-belt, August 31, 2018; S. Wilske, ‘International Commercial Courts and Arbitration — Alternatives,
Substitutes or Trojan Horse?’, 11(2) Contemp. Asia Arb. J. 153, 174-180. The Chinese international commercial courts seem to
be ‘court[s] of limited jurisdiction built within the existing hierarchy of PRC courts’. How they will work in practice is still
uncertain.
11
The main reforms were the idea of pre-action protocols, judicial case management, and ADR. In his interim report of 1994
Lord Woolf addressed as well the role of information technology.
the 1998 reforms were already in practice at the London Commercial Court. Substantive English law
is directly integrated in the legal system in Abu Dhabi through the Application English Law Regulation
2015; common law rules have been ‘transplanted’ and codified in Dubai; local law inspired by Sharia
and the civil law tradition is put aside. In addition, the composition of the courts is not limited to local
judges but open to international figures following the practice of common law countries of
appointing members of sister jurisdictions. As of January 2019, the DIFC Courts have six foreign
judges and three from the Emirates; the courts of the QFC have ten foreign judges and just one local
judge; the ADGM Courts include eight foreign judges; in Singapore, at least fifteen of thirty five
members come from elsewhere.
Further common features comprise the allocation of generous management powers to the court;
representation and legal advice not being necessarily confined to national lawyers; a broad use of
forms to initiate a claim and respond to it, to challenge it, or to request authorization to appeal.
Procedural rules are clear, brief, and compiled in easily accessible documents; the basic regulatory
corpus is often accompanied by ‘orders’, ‘practice directions’, or ‘guidance notes’ complementing and
providing guidance on its application.
12
Beyond the common aspects each of the mentioned international commercial court presents
indeed individual characteristics. The courts have been operating in the international landscape only
for a short period: definitive conclusions can therefore not yet be drawn, but it seems plausible that
these singular data are decisive for the success -or lack thereof- of each single court.
2.2 Separate Analysis
Dubai: the Dubai International Financial Centre Courts
The official establishment of the international commercial courts in the Dubai International Financial
Centre (DIFC) was 2004;
13
however, they were not fully operational until 2006. The DIFC Courts
operate a Court of First Instance and a Court of Appeal to hear and determine claims in civil or
commercial matters (no definition is provided of ‘civil and commercial’ claims). In 2007, a Small
Claims Tribunal was established as a Tribunal of the DIFC Courts with power to hear and determine
claims within the jurisdiction of the DIFC Courts not exceeding 500,000 EAD (just over 100,000
euros), and claims related to employment contracts. It is worth noting that since 2017 the DIFC
courts and the Dubai Future Foundation are working on the creation of the ‘Courts of the Future’, to
monitor disruptive technology, such as cars without drivers, drones, blockchain and cyber security
within the jurisdiction of the DIFC.
In the beginning the DIFC Courts did not focus on the resolution of international cases per se, but
were rather conceived to support the economic activities of the Dubai International Financial Centre:
an onshore financial centre located in Dubai City, independently regulated with its own civil and
financial administration, legal system and judiciary.
14
As a consequence, until 2011 the DFIC Courts’
12
See for instance the Singapore International Commercial Court Practice Directions, ‘a set of procedural guidelines regulating
all proceedings in the Singapore International Commercial Court (‘SICC’): https://www.supremecourt.gov.sg/rules/practice-
directions/singapore-international-commercial-court-practice-directions; or the Practice Directions for the ADGM Courts:
https://www.adgm.com/doing-business/adgm-courts/adgm-courts-procedures/practice-directions/.
13
See the DIFC LAW No.10 of 2004, providing for the independent administration of Justice in the DIFC:
https://www.difc.ae/files/1914/5448/9176/Court_Law_DIFC_Law_No.10_of_2004.pdf.
14
From the point of view of arbitration the Centre also works autonomously, i.e. separated from ‘mainland Dubai’. Arbitrations
based in the Centre are supervised by the DIFC Courts.
jurisdiction was confined to disputes with physical links with the Centre; from 2011 it was extended
to disputes lacking physical connection with the Centre, if so agreed by the parties pre- or post-
dispute.
15
In line with the foregoing, from the start the DIFC Courts were not so much intended to reproduce a
successful model of international commercial litigation, as to separate - and complement at the
same time - the local legal system of the Emirates, based on Sharia and the tradition of civil law and
with Arabic as the official language. Conversely, the DIFC Courts found inspiration in the common law
world and made of English a preferred choice: today, the authoritative text of the procedural rules is
the English one; the whole of proceedings are conducted in English; orders and decisions to be
served in the Emirates must indeed be translated, but if there is divergence between several
versions, the English one prevails (Court Rules Part 2 -Authentic Texts and Language of
Proceedings).
16
Statistics from the Singapore Academy of Law for disputes in Asia for 2015 indicate that 52% of the
contracts drafted in English in the Middle East and North Africa chose London as the seat of
jurisdiction for disputes; at the end of 2016 the percentage had dropped to 25%, whereas the
corresponding figure for the DIFC Courts had increased to 42%.
17
In 2017, 54 disputes involving AED
471, 212, 695 were discussed before the Court of First Instance; the Small Claims Court handled
almost 400 cases.
18
These achievements of the DIFC Courts may firstly be explained by their opening
to offshore litigation in 2011. Secondly, parties have been been attracted by the appeal of a judicial
service characterized by courts with broad management powers ‘to deal with cases justly’, where
‘justly’ means: (1) ensuring that the parties are on an equal footing; (2) saving expense; (3) dealing
with cases in ways which are proportionate (a) to the amount of money involved, (b) to the
importance of the case, (c) to the complexity of the issues;, and (d) to the financial position of each
party; (4) ensuring that cases are dealt with expeditiously and fairly; and (5) allotting to particular
cases an appropriate share of the Courts’ resources, while taking into account the need to allot
resources to other cases (Courts Rules, Part 1, 1.6). Other relevant traits are the possibility of being
represented by foreign lawyers - registered with the Dispute Resolution Authority Academy of Law;
19
caveats to the general rule of publicity and transparency (Part 35-Court Rules, regarding the hearing;
Part 28, for the documents); the invitation to the parties to participate in the schedule of the process
(Part 26 Court Rules); the possibility to choose the law applicable to the merits (Article 6 Law No.12
of 2004 in respect of The Judicial Authority at Dubai International Financial Centre as amended), with
a special treatment given to foreign law (the court has the discretion to apply the rules on evidence
in the way it considers most appropriate according to the circumstances of the matter: Part 29 Court
Rules). Besides, in determining a matter or proceeding the DIFC Court may consider decisions made
15
See Law No. (16) of 2011 Amending Certain Provisions of Law No. (12) of 2004 Concerning Dubai International Financial
Centre Courts; Law No.12 of 2004 in respect of The Judicial Authority at Dubai International Financial Centre as amended:
https://www.difccourts.ae/wp-content/uploads/2017/10/Dubai12of2004_amended2011.pdf
16
The rules are reproduced here: https://www.difccourts.ae/court-rules/
17
Source: https://www.difccourts.ae/wp-content/uploads/2018/03/Thomson-Reuters-Answers-Magazine.pdf.
18
DIFC Courts, Annual Review 2017, https://annualreview.difccourts.ae/#case-statistics. No information is given as to the
nature of the cases (whether on- or offshore).
19
See DRA Order No. 1 of 2016 in Respect of Rights of Audience and Registration in Part II of the Academy of Law’s Register of
Practitioners (https://www.difccourts.ae/2016/09/20/dra-order-no-1-2016-respect-rights-audience-registration-part-ii-
academy-laws-register-practitioners/);
in other jurisdictions for the purpose of making its own resolution (Chapter I, Part 6, s. 30 (2), DIFC
LAW No.10 of 2004.)
20
In addition to the foregoing, all judicial decisions of the DIFC Courts benefit from bilateral and
multilateral instruments on recognition and execution signed by the Arab Emirate after registration
with one of the Emirate’s courts - a step which nevertheless requires a translation into Arabic (Article
7 Law No.12 of 2004 in respect of The Judicial Authority at Dubai International Financial Centre as
amended). Memoranda of understanding (MoU) or of guidance (MoG) have been signed with other
courts, ministries or law firms operating abroad to facilitate the reciprocal enfocement of
judgments.
21
Moreover, since 2015 parties have been given a unique possibility, namely that of
‘converting’ a DIFC Court’s decision into an arbitral award, on the terms indicated by the DIFC Courts,
Amended Practice Direction No 2 of 2015: ‘If parties who have submitted (or have agreed to submit)
to (or are bound by) the jurisdiction of the DIFC Courts wish further to agree that any dispute arising
out of or in connection with the non-payment of any money judgment given by the DIFC Courts may,
at the option of the judgment creditor … be referred to arbitration under the Arbitration Rules of the
DIFC LCIA Arbitration Centre, they may to that end adopt an arbitration clause in the terms of the
recommended arbitration agreement’. ‘Convert’ appears between quotation marks to underline that
there is no real transformation of the judgment, but rather a submission to arbitration of any dispute
in relation to its enforcement arising once the judgment has been given (including of course lack of
voluntary compliance of the debtor even if it is due to lack of liquidity and not to a disagreement on
the merits).
22
The possibility of referring to arbitration, which is indeed not free from conceptual
doubts,
23
entails that the judicial decision will finally adopt the form of an arbitral award, and as a
consequence the New York Convention 1958 will most probably apply to its recognition and
enforcement abroad.
The DIFC Court publishes its fees in detail on its website.
24
Very succinctly: they range between 5% of
the value of the claim – from a minimum of USD 1500 for claims not exceeding USD 500,000, up to
USD 130,000 for claims worth more than USD 50 million. Additional amounts are to be paid for
other services such as hearings, the use of IT facilities, for delayed presentation of documents
required by the court, for filing an appeal and in relation to enforcement.
Qatar: Civil and Commercial Court of the Qatar Financial Centre
Unlike the DIFC, the Qatar Financial Centre (QFC) is not really a free zone but a financial services
platform. In spite of this the Qatar Civil and Commercial Court, operational since 2010 in a First
20
https://www.difc.ae/files/1914/5448/9176/Court_Law_DIFC_Law_No.10_of_2004.pdf
21
MoU provide for cooperation - judicial, or broader: see for instance the Memorandum of Understanding between Abu
Dhabi Judicial Department and The Dubai International Financial Centre Courts Concerning Judicial Cooperation, of Aril 2017.
MoG provide a detailed explanation on the requirements and procedures for enforcing foreign judgments in the signing
jurisdiction; they offer businesses additional certainty should a contractual dispute arise (see instance the Memorandum of
Guidance (MoG) on Understanding the Enforcement of Money Judgements between the Federal Court of Malaysia and DIFC
Courts). The practice of MoU or MoG is also known to the other international commercial courts in the area: see for instance
the MoU on the enforcement of judgments of November 16, 2017 between the Ras Al Khaimah Courts and the ADGM Courts.
22
https://www.difccourts.ae/2015/05/27/amended-difc-courts-practice-direction-no-2-of-2015-referral-of-judgment-payment-
disputes-to-arbitration/. The wording ‘convert’ was used for the first time by Chief Justice M. Hwang, ‘Commercial Courts and
International Arbitration – Competitors or Partners’, (2015) 31 Arb. Intl. 193.
23
D. Demeter, K.M. Smith, ‘The Implications of International Commercial Courts on Arbitration’ (2016) 33 Journal of
International Arbitration 441, under 4.
24
https://www.difccourts.ae/fees/
Instance Circuit and an Appellate Division - in connection to the QFC, is comparable to the DIFC
Courts in a number of aspects. To start with, like the DIFC Courts those of the QFC are open to
offshore claims upon choice by the parties (this was actually so from the very beginning). Similarly,
their leitmotiv is to offer a jurisdictional service independent from the local one, although English is
not the exclusive language before the QFC Courts - proceedings can also be conducted in Arabic,
and the Court shall ‘pay due respect to the fact tha Arabic is the official language of the State’ (Article
3 QFC Civil and Commercial Court Regulations and Procedural Rules.)
25
Just like for the DFIC Courts,
the overriding objective of the QFC Courts is to ‘deal with all cases justly’, which means to ensure that
proceedings are carried out expeditiously and effectively; preserve equality of arms of the parties;
ensure that cases are dealt with in a way proportionate to the amount of money involved, to their
importance, to the complexity of the issues, and to the financial position of each party (Article 4). The
proceedings are based on international best practices, modelled to a significant extent on those
followed in England and Wales. The Court is bestowed with broad powers ‘to take all steps that are
necessary or expedient for the proper determination of a case’ (Articles 10). This formula is taken up
all through the Civil and Commercial Court Regulations and Procedural Rules, translated into the
adoption of guidelines -’case management directions’- for the management of proceedings at all
stages.
In the QFC courts, substantive rules have been adopted drawing inspiration from the common law;
judges are thus allowed to rely on precedents taken from any jurisdiction following that legal
tradition. Parties may nonetheless choose a different applicable law and their selection will prevail as
long as it is not contrary to the public policy of Qatar (Article 11). Legal representation by foreign
professionals is possible (Article 29). Decisions of the first instance are usually final, for an appeal is
only admitted exceptionally (Article 35). Regarding confidentiality, Article 28 (3) simply provides for
the publicity of the hearing as a rule, adding a court faculty to direct that all or part of the hearing
should be in private ‘where there is a good reason to do so’. Judgments are published on the
website. Digital technology is more and more present: documents can be filed through an e-filing
system or emailed to the court registry; the Court may operate virtually, with parties, lawyers,
witnesses and judges appearing remotely from anywhere in the world.
26
We have found no information on the number of cases the QFC Courts have so far dealt with. Some
difficulties related to the length of proceedings have been disclosed, though: at the end of 2016 a
case in the first instance took one to two years; inefficiencies in the conduct of proceedings, in
particular regarding the time to appoint experts and the slowness of the latter in presenting their
reports, were seemingly at the root of the problem. The problem may have been solved with the
establishment of the eCourt - Qatar International Court and Dispute Resolution Centre (QICDRC)
Case Management System.
27
According to information published on the QFC website, ‘There are no fees associated with bringing
a case to Court’, a feature making the QICDRC unique in the Gulf region, as well as internationally.
25
http://www.qicdrc.com.qa/sites/default/files/s3/wysiwyg/qfc_civil_and_commercial_court_regulations_date_of_issuance_15_dec
ember_2010_0.pdf.
26
See, on the Qatar International Court and Dispute Resolution Centre (QICDRC) Case Management System and the eCourt:
https://nacmnet.org/wp-content/uploads/QATAR_Final-Submission.pdf.
27
See note 26.
Abu Dhabi: Abu Dhabi Global Market Courts
Abu Dhabi is the largest of the seven emirates of the United Arab Emirates. As in Dubai, the Abu
Dhabi Global Market Courts were established at the same time as another international financial
center- the Abu Dhabi Global Market (ADGM), in 2013.
28
The ADGM court comprises a court of first
instance and another of appeal, operative since May 2016 for civil and commercial litigation of any
amount;
29
similar to the other courts in the region labour law disputes also fall under the court’s
jurisdiction. International jurisdiction may be based on a choice by the parties. The language of the
process and of the documents is English; legal representation by a foreign lawyer authorized to
practice in any jurisdiction and having more than five years of practice is allowed.
30
The publicity of
the hearing is the rule according to s. 98(1) ADGM Courts, Civil Evidence, Judgments, Enforcement and
Judicial Appointments Regulations 2015; the court may nevertheless order that a hearing is held in
private under specific circumstances; it may also decide the non-disclosure of the identity of a party
or of a witness.
As in the other courts in the area, the judges of the ADGM Courts enjoy broad management powers,
including agreeing with the parties on a ‘roadmap’ for the optimal organization of a specific case
from the beginning. Since it was established, and increasingly from April 2018, the institution offers a
service of digital process management through an eCourt platform: users can start, manage and
track their files from anywhere in the world; they can file documents and receive notifications related
to the progress of their case by SMS. Electronic evidence is included in the archive without additional
cost; judicial hearings may be carried out through videoconferences. In December 2018, a fully
digitized tailored hearing room was launched. In spite of the foregoing, as of today the number of
ADGMC cases is limited: in the first instance, in 2018 it only reached 13; the total between 2016 and
January 18, 2019 is 21. Only three decisions have been given.
31
The fees to access the first instance, Civil Division, range from 2.5% of the value of the claim for
claims between 100,001 and 500,000 USD; up to 55,000 USD for those of more than 10 million, with
an additional 0.15%. The fee is USD 2,500 for claims of USD 100,000 or less.
32
Additional fees are
due for other services such as the physical presentation of the documents -instead of using the e-
filing system; or a court hearing.
28
The applicable rules are the ADGM Courts, Civil Evidence, Judgments, Enforcement and Judicial Appointments Regulations 2015
(as amended):
http://adgm.complinet.com/net_file_store/new_rulebooks/a/d/ADGM_Courts_Regulations_2015_Amended_18_December_201
8.pdf. They are complemented by Practice Directions addressing specific aspects: see for instance on ‘case management’ the
Practice Direction 5 - Case Management and Papers for Trial, https://www.adgm.com/media/402303/pd-5-case-management-
and-papers-for-trial-clean-11-dec2018.pdf.
29
A ‘small claims’ division deals with disputes of a value equal or lesser than 100.000 $. Beyond this amount disputes go to a
Civil Division: see Divisions and Jurisdiction (Court of First Instance) Rules 2015:
http://adgm.complinet.com/en/display/display_main.html?rbid=4503&element_id=5648. There is no positive definition of ‘civil
and commercial’ claims in the law.
30
S. 219 ADGM Courts, Civil Evidence, Judgments, Enforcement and Judicial Appointments Regulations 2015.
31
See https://www.adgm.com/doing-business/adgm-courts/cases/court-of-first-instance/, and https://www.adgm.com/doing-
business/adgm-courts/judgments/court-of-first-instance/.
32
https://www.adgm.com/media/308673/adgm-courts-schedule-of-fees-final.pdf - reviewed June 26, 2018.
Singapore: Singapore International Commercial Court
The Singapore International Commercial Court (SICC) was established in 2015 as a division of the
Singapore High Court and thus a part of the Singapore Supreme Court.
33
It was specifically created
to solve international commerce disputes in view of the exponential growth of transnational
commerce in Asia; for this reason, although embedded in the local judicial structure the SICC
presents distinctive characteristics with respect to the local courts
34
.
The SICC is part of a strategy to make Singapore, already a main hub for arbitration beyond the
region,
35
a focal point for cross-border dispute resolution. In addition, it intends to address some of
the weaknesses of arbitration: not only regarding the service offered to the users, but also from the
perspective of legislative development and harmonization. Regarding the first prong, it has been said
that ‘the coercive jurisdiction of a court may be necessary in a multiple party dispute; the subject
matter of the dispute may not be amenable to arbitration (such as special torts arising from contract,
international intellectual property or trust disputes); and the New York Convention, while wide in its
reach, may not be fully effective for enforcement in some countries.’
36
Regarding the second prong, it
has been observed that international commercial courts provide an opportunity for the
harmonization of substantive legal principles and civil procedures, whereas arbitration does not.
37
To
date, the SICC has dealt with some thirty cases and its case law has already served the development
of the law of the country with regard to contractual liability.
38
The SICC offers the services of experienced professionals, adding to its ranks judges and experts
from different countries and legal traditions: Australia, the United Kingdom, Hong Kong, but also
France and Japan (and Austria, in the past). Its international jurisdiction is very broad: parties can
opt-in to the SICC, but the court can also deal with disputes without a choice of court clause by
transfer from another court after consulting the parties (Rules of the Supreme Court, O. 110, r. 7, r.
12); the chances of ensuring the flow of cases is thus increased. According to r. 1 of the Rules of the
Supreme Court, O. 110, the commercial character of a controversy may result from objective factors,
but also from the agreement between the parties. A claim is international in nature for jurisdictional
purposes if (alternatively) the parties to the claim have their places of business in different States;
none of the parties to the claim have their places of business in Singapore; at least one of the parties
to the claim has its place of business in a different State from a) the State in which a substantial part
of the obligations of the commercial relationship between the parties is to be performed, or b) the
State with which the subject matter of the dispute is most closely connected. In addition, a claim is
33
See Supreme Court of Judicature Act (Cap 322), s. 18A to 18M: https://sso.agc.gov.sg/ACT/SCJA1969..
34
For instance regarding service abroad (Rules of the Court O. 110 r. 6(2), or the non-application of the forum non conveniens
doctrine (Rules of the Court 110 r 8 (2), at least in the case of an exclusive choice of court clause). The Rules implement the
Supreme Court of Judicature Act (Cap 322); they can be accessed at https://sso.agc.gov.sg/SL/SCJA1969-R5. They are in turn
complemented by the Singapore International Commercial Court Practice Directions, ‘a set of procedural guidelines regulating all
proceedings in the Singapore International Commercial Court (‘SICC’). All users of the SICC are expected to comply with the
SICC Practice Directions’.
35
The Singapore International Arbitration Centre exists since 1991. According to the Queen Mary/White Case Survey 2018
Singapore is one of the preferred seats for international arbitration, together with Paris, London and Geneva.
36
Report of the Singapore International Commercial Court Committee, November 2013, para. 16
(https://www.mlaw.gov.sg/content/dam/minlaw/corp/News/Annex%20A%20-%20SICC%20Committee%20Report.pdf.
37
Report of the Singapore International Commercial Court Committee, November 2013, para. 11, 13. Chief Justice Sundaresh
Menon, para. 14, 15.
38
See https://www.sicc.gov.sg/hearings-judgments/judgments.
international in nature if the parties expressly agree that the subject-matter of the claim relates to
more than one State.
Party autonomy plays an important role in the proceedings: the parties can choose the law
applicable to the merits; foreign law is considered to be proper law -and not a fact; the SICC may
order that any question of foreign law be determined on the basis of submissions, without requiring
formal proof by experts or cross-examination.
39
The parties are allowed to participate in the design
of the procedural rules relevant to their case: a bulk of procedural rules shaped for litigation with a
foreign element applies by default, but the parties are entitled to discard and replace some
provisions regarding evidence.
40
In addition, the parties’ may agree ex ante to waive their rights to
object to the SICC’s jurisdiction on several basis (e.g., natural forum or multiplicity of proceedings), as
well as any recourse against the judgments
41
and orders and/or the recognition or enforcement of
such judgments and orders.
42
Legal representation by a foreign lawyer is allowed, although only when lawsuits lack any connection
with the forum, or when foreign law applies.
43
On confidentiality, rule no. 30 of Order 110 of the
Rules of the Court authorizes the SICC to grant a confidentiality request upon application of one of
the parties; in doing so the Court may have regard to whether the case is an offshore case and to
any agreement on the issue between the parties. A confidentiality order will typically indicate that no
person must reveal or publish any information or document relating to the case; an order that the
case be heard in camera; or an order that the Court file be sealed. Only under very exceptional
circumstances will the actual existence of a dispute, the fact that the party was involved in the
proceedings or the judgment remain confidential.
On the duration of the proceedings, available data indicate that in the first case before the SICC
(BCBC Singapore Pte Ltd & Anor v PT Bayan Resources TBK & Anor),
44
the claim was originally filed with
the High Court of Singapore,
which transferred it to the SICC on March 4, 2015; the hearing took
place in November 2015, and the judgement was given on May 12, 2016 - just one year after the
transfer from the High Court, and less than six months after the hearing. In Teras Offshore Pte Ltd and
Teras Cargo Transport (America) LLC,
45
the decision was given only fifteen days after the hearing. In
Telemedia Pacific Group Ltd & Anor v Yuanta Asset Management International Ltd & Anor,
46
the judgment,
of some 200 pages, was issued fourteen months after the case was transferred to the SICC, and four
months after the hearing. It is worth mentioning that to the extent that the SICC is integrated in the
Supreme Court, it benefits from an electronic filing system established in 2000 which allows for
judicial documents to be prepared and filed electronically. In order to keep the system flexible to
39
S. 18K, 18L, Supreme Court of Judicature Act (Cap 322), Rules of the Court O. 110, r. 25, r. 28.
40
Rules of the Court, O. 110, r. 23.
41
Such possibility, unheard of in Europe, exists in international arbitration upon conditions regarding the right to contest the
validity of the award: M. Scherer, L. Silbermann, ‘Limits to party autonomy in international commercial arbitration’, in F. Ferrari
(ed.), Limits to Party Autonomy in International Commercial Arbitration, NYU, 441-492.
42
See the document on recommended model clauses Singapore International Commercial Court Model Clauses, versions as at 7
June 2018, on the website of the SICC. See as well para. 139 of the Singapore International Commercial Court Practice
Directions, November 2018.
43
Supreme Court of Judicature Act (Cap 322), s 18M, and Rules of the Court, O. 110 r. 25.
44
[2016] SGHC(I) 01.
45
[2016] SGHC(I) 02.
46
[2016] SGHC(I) 03.
meet new demands the Supreme Court has worked on expanding the capabilities of the electronic
filing facility with the implementation of an integrated electronic litigation system (‘eLitigation’).
Fees to access the SICC in the first instance and on appeal, as well as the expenses associated with
the hearing, are detailed in the Rules of Court O. 110, r. 47 and 48. The amount varies depending on
the number of judges involved: a claim before a single judge costs slightly more than 3000 dollars; it
increases to 4950 dollars if there are three judges. An appeal before a formation of two judges
attracts a fee of 7,000 dollars, and before five judges, the fee is 17500 dollars.
2.3 Europe, First Approach
In the EU, Germany, Belgium, France Ireland and the Netherlands have launched -or have
announced the intention to do so- a judicial body for international commercial litigation, with a
specific procedure - or deviations from the ‘normal’ procedural rules -, and with English as the
language of the proceedings - completely or partially.
The idea of creating courts or, rather, chambers devoted to international commercial litigation, is
indeed not new in Europe: the London Commercial Court, whose international reputation is beyond
doubt,
47
was created as early as 1895, according to the description on the website page of the UK
Judiciary, on ‘demands from the City of London and the business community for a tribunal or court
manned by judges with knowledge and experience of commercial disputes which could determine
such disputes expeditiously and economically, thereby avoiding tediously long and expensive trials
with verdicts given by judges or juries unfamiliar with business practices.’
48
Today the court deals
with disputes in relation to international trade, commodities, banking and financial services,
insurance and arbitration awards. The proceedings in the Commercial Court are governed by the
Civil Procedure Rules and Practice Directions; a Commercial Court Guide provides guidance for
efficient conduct of litigation in the Commercial Court.
49
The European initiatives towards international commercial courts have mostly materialized in the
last two years. The underlying reason seems to be very different from the one supporting the
establishment of international commercial courts in the Middle East and Asia: Brexit.
50
Unquestionably, London remains the essential hub for the settlement of cross-border commercial
conflicts; the percentage of European disputes compared to those from other parts of the world
appeared to have diminished after the Brexit referendum, but the latest analysis reveals a reversal of
the trend between March 2017 and April 2018. According to a study covering eight years -between
2008 and 2016- in about 80% of all commercial cases before the London Commercial Court at least
47
In the words of R. Caponi, under 8: ‘la regina’.
48
https://www.judiciary.uk/you-and-the-judiciary/going-to-court/high-court/queens-bench-division/courts-of-the-queens-
bench-division/commercial-court/about-us/
49
There are several editions of the Guide; it was last fully rewritten in 1999 alongside the introduction of the Woolf Reforms
including the Civil Procedure Rules. The current edition - number 10
th
- is dated 2017:
https://www.gov.uk/government/publications/admiralty-and-commercial-courts-guide
50
Even in the EU MS where a specific chamber for international commercial had been set up prior to the Brexit referendum:
see for Dublin, https://www.lawlibrary.ie/media/lawlibrary/media/Secure/Promoting-Ireland-as-a-leading-centre-globally-for-
international-legal-services.pdf. For France, the Report on ‘The Implications of Brexit on judicial cooperation in civil and
commercial matters’ of the Haut Comité Juridique de la Place Financière de Paris, January 30, 2017
(https://publications.banque-france.fr/sites/default/files/rapport_05_a.pdf) as well as the ‘Canivet Report’ of May 3, 2017
(‘Préconisations sur la mise en place à paris de chambres spécialisées pour le traitement du contentieux international des
affaires’, Haut Comité Juridique de la Place Financière de Paris: https://publications.banque-
france.fr/sites/default/files/rapport_07_f.pdf).
one of the parties is a foreigner, while almost 50% of all claims involve only foreigners, originating
from the five continents.
51
The value of disputes is regularly of the order of 6 to 7 digits, relating
mainly to the banking and financial sectors.
52
The jurisdiction of the High Court of London is often
based on a choice of court clause agreed under Article 25 of the Brussels Ibis Regulation.
53
Brexit may well change this situation: from April 2019, the United Kingdom may not have access to
the benefits of the European Area of Justice and judicial cooperation in civil matters.
54
It is telling that
since the announcement of Brexit almost 2000 English and Welsh lawyers have registered with the
Law Society in Ireland, for fear of not being allowed to practice in the EU after Brexit otherwise.
55
Actual and potential parties to international civil disputes have started to consider other courts
within the European Judicial Area. Jurisdictional clauses in financial contracts do not go exclusively for
London any longer. As an example, in July 2018 ISDA published new French and Irish law versions of
the ISDA Master Agreement, adding Paris and Dublin to the existing choices of forum: the
accompanying explanation cannot be clearer: ‘English law may become a third-country law after the
UK withdraws from the EU, which means
English court decisions would no longer be automatically recognized and enforced across the EU
and European Economic Area (EEA). That wouldn’t be the case for French or Irish law court
judgements under the new Master Agreements, reducing the steps involved in settling a contractual
dispute with a EU/EEA counterparty.’
56
2.4 Separate Analysis
Germany: The Frankfurt Initiative and Beyond
The recent German initiatives for a chamber focused on international commercial disputes are
actually not so innovative. On the one hand, precedents exist in highly specialized areas such as
patents, where Düsseldorf, Mannheim and Munich stand out at the European level. On the other
hand, in 2010 an attempt had already been made to encourage recourse to the courts of Cologne
and Bonn - via a choice of forum clause - offering to the parties the possibility of litigating partially in
English. The initiative was triggered by two factors: first, it had been noted that national courts and
tribunals were dealing with fewer and fewer international commerce cases, even where a German
party was involved; secondly, a brochure had been published in the UK advertising the ‘legal services’
of the City.
57
The 2010 attempt did not succeed, maybe because neither Cologne nor Bonn figures
prominently in international commerce. In addition, by virtue of a limitation established by s. 184 of
the Gerichtsverfassungsgesetz (GVG),
58
only the hearing could be held in English.
51
It should be noted however that the UK accounted for 267 litigants, and that the next most represented country was
Kazakhstan (31), followed by the US and Russia, with 20 litigants.
52
Portland Commercial Courts Report 2018: https://portland-communications.com/publications/commercial-courts-report-
2018-portland/
53
Regulation (EU) No 1215/2012 of the European Parliament and of the Council of 12 December 2012 on jurisdiction and the
recognition and enforcement of judgments in civil and commercial matters, OJ L 351, December 20, 2012.
54
On January 24, 2019, the fate of the Withdrawal Agreement was still undecided.
55
Source: Law Society Ireland, reproduced at the Frankfurter Allgemeine Zeitung, January 28, 2019.
56
https://www.isda.org/2018/07/03/isda-publishes-french-and-irish-law-master-agreements/.
57
References below, note 114, 115.
58
For an English translation: http://www.gesetze-im-internet.de/englisch_gvg/englisch_gvg.html#p0490.
The ‘Justice Initiative Frankfurt’ has probably received the greatest media coverage among the
Germans proposals, without being the only one; similar developments are taking place in Hamburg,
Düsseldorf and Munich, and seemingly also in smaller cities such as Saarbrucken (where
proceedings would be held in French). The proposal arose in 2016 in an academic context with good
connections to the judiciary and to the Ministry of Justice in the Land of Hesse; representatives of
the legal profession and the Chambers of Industry and Commerce took part in the project
expressing the needs, expectations and preferences of the main stakeholders.
59
The choice of
Frankfurt is due both to its relevance as a commercial and financial hub -which explains why it is also
the head office of many renowned law firms- and the commercial experience of its courts and judges
- especially in the banking and finance sectors. In 2017, the initiative was endorsed by the Ministry;
the chamber has been officially operational within the Frankfurt District Court since January 1, 2018,
although the rules governing its functioning have not yet been enacted.
60
The Frankfurt international commercial chamber is in no sense an independent judicial body. On the
contrary, it is embedded in the existing judicial structure and accommodates to the in-force legal
framework. The commercial character of a dispute must therefore be identified in light of section 95
Gerichtsverfassungsgeset (GVG), which defines it broadly but not to the point of admitting the simple
agreement of the parties in this regard. Further requirements include that the claim not fall under
the special jurisdiction of another chamber of the District Court Frankfurt/Main; that it is
international; and that the parties have agreed on the jurisdiction of the Chamber and have declared
in a timely manner (i.e. before the deadline for the statement of defence has expired) their
willingness to plead in English and to waive their right to an interpreter.
61
The main differences
compared to other chambers in German courts is that the commercial one is staffed with clerks
fluent in English; so are the professional judges, who will always chair; finally, the chamber also
comprises lay judges from the business sector. The procedure follows the ZPO, but ‘bringing out the
best’ of it by way of interpretation: in as much as possible it follows best practices of specialized
courts, in particular that of patent litigation in Düsseldorf. As an example: the faculties of direction of
the process attributed to the jugde by s. 139 ZPO may be used to establish a ‘road map’ with the
parties at the beginning of the proceedings, structuring the course of the litigation in an optimal and
efficient way; the first hearing may work as a ‘case management conference’ with the parties.
The Frankfurt initiative has just materialized. Any assessment would be premature as, to the best of
our knowledge, the first and so far only case has just arrived at the chamber. The choice to integrate
the chamber within the pre-existing legal and judicial framework no doubt has positive connotations:
no different fees are imposed, for instance. In addition, unlike in other EU countries, no legislative
reforms have been required. However, a little bit of pessimism seems legitimate in view of several
elements likely to work against the chamber’s success. An essential hindrance lays with the language
issue: the use of English is allowed only to a limited extent; the orders and judgments of the
chamber must be drafted in German, with an English translation being optional but not alternative.
Amendments to the current situation have been proposed to Parliament in 2012, 2016 and 2018;
59
For the history and an in-depth explanation of the functioning of the chamber see B. Hess, T. Boerner, ‘Chambers for
International Commercial Disputes in Germany - The State of Affairs’, Rotterdam, July 10, 2018, pending publication in the
Erasmus Law Review.
60
Entwurf eines Gesetzes zur Einführung von Kammern für internationale Handelssachen (KfiHG), Bundestagdrucksache
19/1717, April 18, 2018: http://dipbt.bundestag.de/doc/btd/19/017/1901717.pdf
61
https://ordentliche-gerichtsbarkeit.hessen.de/sites/ordentliche-
gerichtsbarkeit.hessen.de/files/LG%20FFM%20Gesch%C3%A4ftsverteilung%202018%20Stand%2001.01.2018.pdf, at 35.
Schedule of Responsibilities of the Chambers of the District Court Frankfurt/Main 2018.
should the latest one succeed, the conduct of the entire process in English at the first and second
instances (not in the third instance, where such possibility would be left to the discretion of the
Court) would be permitted, provided the parties agree thereto.
62
Other elements may equally work against the Frankfurt chamber. The first one is of a general scope
in that it affects the whole German judiciary: Germany is still behind in terms of technological
equipment; scholars acknowledge that there is much to be done in this regard.
63
Another one is
related to the notion of ‘international’. No definition appears in the German 2018 Bill on the Kammer
für Internationale Handelssachen, although the requirement exists and some examples are provided
in the commentary to section 114b of the draft of April 2018.
64
It is to be noted that in the Bill the
direct agreement of the parties declaring a dispute international is not included.
65
France: Paris
A Chamber for International and European Law, now renamed ‘Chambre International’, has existed
within the Paris Tribunal de Commerce for some time already.
66
It was created to deal with disputes
between French and foreign companies or between foreign companies; parties were allowed to use
English, Italian or Spanish in the course of proceedings; witnesses could be examined in their native
languages without the use of an interpreter. In practice, such possibilities were never used nor were
they embedded into legal rules.
On February 2018, an International Chamber was inaugurated at the Cour d'Appel in Paris. This
Chamber and the one at the Tribunal de Commerce are described and regulated through two ad hoc
Protocols, applicable to claims filed after March 1, 2018.
67
According to the Protocol on the Chambre
Internationale de Paris, the Chambre has jurisdiction, upon assignment of the ‘chambre de
placement’, over claims of an economic and commercial nature and international dimension, in
particular over those where provisions of foreign or EU law must be applied. In a non-exhaustive list
the Protocols refer disputes relating to commercial contracts and to the termination of commercial
relations, as well as claims in the area of transport, unfair competition, compensation derived from
anti-competitive practices, and disputes with respect to financial instruments and products to the
Chambers.
There is no precise indication as to what ‘international’ means; from the wording of the
Protocol on the Chamber in the Cour d'Appel it can only be inferred that submitting a contract to
French law does not automatically eliminate its international character. Literature is not of much
help either: the ‘Canivet Report’ of May 2017 simply takes up Muir Watt/Bureau’s definition:
‘L’internationalité est un critère connu en droit international privé qui se rapporte à une situation qui
62
Above, note 60.
63
B. Hess, ‘The Justice Initiative Frankfurt am Main 2017’, entry in Conflictoflaws.net, March 31, 2017.
64
Above, note 60.
65
The examples are: the contract or contractual documents are written in English; one of the parties is domiciled abroad, or
the parties agree that foreign law applies. A claim related to the internal affairs of a company may be considered as well as
‘international’ if the company’s internal agreements and its correspondence are written in English, or the company’s seat is
abroad.
66
A Chambre de droit international was created in 1995; a Chambre de droit de l’Union Européenne, in 1997. They merged in
2015.
67
Protocole relatif à la procédure devant la chambre international du Tribunal de Commerce de Paris, de 7 de febrero de
2017; Protocole relatif à la procédure devant la chambre international de la Cour d’Appel de Paris, de 7 de febrero de 2018. It
should be noted that the Protocols have no legally binding force. The Gazette du Palais July, 10, 2018, n° GPL329d9, at 8, has
already reported one audience de mise en état and five dossiers pending.
intéresse plusieurs systèmes juridiques ou qui met en cause les intérêts du commerce international.’
68
The most outstanding features of the Chambres refer to their composition, to the language of
proceedings, and to certain particularities of the applicable procedural rules. The Chambres are
composed of judges with expertise in international commerce, and anglophones. The linguistic
regime combines the use of several languages, both in the first instance and in appeal: the actes de la
procedure will be worded in French, but documents in English may be presented without translation.
By default, the hearing will be held in French: the parties, witnesses, experts and foreign lawyers,
may express themselves in English, although in this case simultaneous translation is required. The
judgment will be given in French; it may be accompanied by a translation into English by a sworn
translator - the costs of the proceedings, to be paid by the parties, will increase accordingly.
Representation by a foreign lawyer is allowed provided he/she is accompanied by a colleague
registered with the French bar - which means, again, doubling the costs.
From the perspective of the procedure, the Protocols rely to a large extent on the general rules of
the Code de la Procédure Civile, with some adaptations. For instance, at the beginning of the
proceedings the Chamber may agree with the parties on a compulsory procedural timetable taking
into account the circumstances and the complexity of the case at hand, and including in particular
the stages where an appearance of the parties is required, those of the hearing of potential experts,
those of the pleadings and that of the deliberations. It is also possible to debate contradictory
testimonies and expert opinions on the model of Anglo-Saxon cross examination; and to discuss the
distribution of the costs.
Ireland: Dublin
The Dublin Commercial Division within the High Court was created in January 2004 in response to
the economic growth experienced by the country since the 1990s, and to the consolidation of Dublin
as a financial hub. At the time it was felt that the existing procedural background did not fit well with
the economic development: commercial proceedings were onerous and long, while the system
lacked the capacity to deal with the volume and specific requirements of complex litigation.
The Division was set up to provide efficient and effective dispute resolution in commercial cases. It
should be noted that inclusion in the Chamber list is not automatic but discretionary, even if the
dispute is ‘commercial’ in the sense of Rule 1 of Order 63A of the Rules of the Superior Courts.
69
The
category includes proceedings based on contracts or on non-contractual liability -not being a claim
or counterclaim for damages for personal injuries- derived from commercial transactions where the
value of the claim is not less than 1 million euros; any application or proceedings under the
Arbitration Acts 1954 to 1998, also with a minimum value of 1 million euros; intellectual property
cases; proceedings related to the functions of the Registrar according to the Cape Town Convention
or the Aircraft Protocol; proceedings in respect of any other claim or counterclaim, which the Judge
of the Commercial List, having regard to the commercial and any other aspect thereof, considers
appropriate for entry in the Commercial List.
68
H. Muir Watt, D. Bureau, Droit international privé, TUF, Thémis, 3° éd, 2014, § 550, quoted in fn. 32 of the Canivet Report -
above, note 50.
69
Order 63A of the Rules of the Superior Courts, s. 5:
http://www.courts.ie/rules.nsf/8652fb610b0b37a980256db700399507/71b5764f57d3440980256f340064227a?OpenDocume
nt.
There is no legal definition of ‘international’ for the purposes of the Commercial Division. Indeed, it
should be recalled that its creation was not triggered by the cross-border character of the litigation,
but by the need to quickly and effectively resolve commercial cases of a certain economic size and
complexity. Most of them are nevertheless likely to have a cross-border dimension.
One of the most relevant features of the Dublin Commercial Division is the swiftness with which
cases progress to trial. A general rule bestows the judge with broad powers to give directions and
make orders, including the fixing of time limits, for the conduct of proceedings entered in the
Commercial List, as appears convenient for the determination of the proceedings in a manner which
is just, expeditious and likely to minimise the costs of those proceedings. Further provisions set up a
detailed case management system to speed up preparation for the trial, and to eliminate
unnecessary costs and blocking strategies: written submissions must be lodged with the Registrar
within strict time limits; severe sanctions for non-compliance are foreseen and indeed applied; IT
possibilities are available, for instance to allow a witness to give evidence, whether from within or
outside the State, through a live video link or by other means; documents may be served or
exchanged electronically where the President of the High Court so permits.
70
In practice, the process management instruments have proved useful and operate satisfactorily.
71
A
high percentage of cases is resolved by agreement of the parties at a more or less advanced stage of
the process: in 2017, of a total of 123 cases resolved, 45 settled either after entry, after the
directions hearing, after the date of the hearing was set or at the hearing; 72 proceeded to a full
hearing.
72
Two years after the Division was established, 50% of cases in the Commercial list had been
resolved in less than fourteen weeks, and 90% in less than a year. In 2012, the average was
calculated at twenty weeks, with 25% concluded in three weeks, 50% in less than twelve, and 60% in
less than fifty. It has not been possible to find out the origin of the disputes and their true
international character so as to assess whether Ireland has really become an attractive place for
litigating in the field. At any rate, the Irish Division has enjoyed from the outset the advantage of
being located in a common law environment (after Brexit, Ireland will become the largest Common
Law jurisdiction in the EU), with English as the native language.
Foreign lawyers do not have an automatic right of audience in Ireland. There are different rules for
the qualification of foreign lawyers in Ireland depending on the jurisdiction in which they are
qualified.
The Netherlands: Amsterdam
The proposal to create an international commercial court in The Netherlands started in July 2017
with the submission of a bill to the Parliament. One year later the text was pending approval in the
70
Order 63A of the Rules of the Superior Courts, s. 6 ff.
71
For an introduction to the Chamber and its functioning from 2004 to 2014 see A guide to Ireland's commercial court:
https://www.mccannfitzgerald.com/uploads/MCFG__Ireland%E2%80%99s_Commercial_Court.pdf.
72
R. Peeples, H. Nyheim, ‘Beyond the Border. An International Perspective on Business Courts’, Business Law Today, vol. 17,
march 4, 2008; Oral presentation by Hon. Mr. Justice Peter Kelly, Fundación Franciso Manuel dos Santos, Lisboa, June 6, 2013.
For figures related to the number of incoming and resolved cases from 2008 to 2017:
http://www.courts.ie/Courts.ie/Library3.nsf/pagecurrent/59879281937E527180257FF7005190C1?opendocument.
Senate, which finally assented in December 2018. The court is expected to open its doors at the
beginning of 2019.
73
The Netherlands Commercial Court (NCC) is integrated into the existing judicial structure: it consists
of a special chamber within the District Court of Amsterdam, coupled with another one in the Court
of Appeal. According to Article 1.3.1 Rules of Procedure the NCC has jurisdiction conditional upon
four factors: the action relates to civil and commercial matters and is not subject to the jurisdiction
of the Subdistrict Court or the exclusive jurisdiction of any other chamber or court; the matter
concerns an international dispute; the parties have designated the Amsterdam District Court, or it
has jurisdiction on other, objective, grounds; the parties have expressly agreed in writing for
proceedings to be before the NCC District Court in English. The ‘civil or commercial’ nature of a claim
is broad in scope, the opposite terms being ‘criminal’ and ‘administrative’.
74
‘Civil and commercial’
claims encompass contractual and non-contractual litigation, property and intellectual rights,
construction or corporate matters. Some insolvency issues, such as the responsibility of the
manager of a company are also included, and the same goes for family or inheritance litigation,
although it is acknowledged that the NCC was not conceived with these types of cases in mind. The
court can also deal with collective claims provided that the District Court of Amsterdam has
international jurisdiction based on the domicile of one of the parties, or on the place where the
harmful event occurred; with a request for a declaration that a collective agreement is binding erga
omnes (including third parties), if the agreement is connected to the Netherlands an appeal may be
filed with the Amsterdam Court of Appeal. An appeal against the annulment of an arbitral award can
also be brought to the NCC conditional upon the agreement that the proceedings will be conducted
in English before the Court of Appeal.
The ‘international’ test is also a broad one; according to the Explanatory Note to Article 1.3.1 (b)
Rules of Procedure the defining criteria are multiple, very broad, and alternative to each other. A
claim is international where one or more of the parties have their domicile in a foreign jurisdiction;
where a treaty or foreign law is applicable to the dispute; if the dispute arises from an agreement
prepared in a language other than Dutch; or where the dispute otherwise involves a relevant cross-
border interest, such as shareholders, employees or revenue located in or linked to a foreign
jurisdiction.
The NCC will not have an international composition - the judges are selected from among those
currently sitting in Dutch courts. The language of the process, comprising the documents, the
hearing and the judgment in the first and second instances (not the cassation), will be English if the
parties so agree. In addition, translation of the documents into German or Dutch will not be
required. The NCC applies the general procedural rules, adding nonetheless global best practices
and giving parties the possibility to ‘personalize’ the procedure to some extent: for instance, they
may enter into an agreement to depart from the statutory rules of evidence (Article 8.3 Rules of
Procedure); make an evidentiary agreement on access to confidential documents (Article 8.4.2); or
an agreement regarding costs (Article 10.2). A pre-process conference is possible to set the aspects
that will be subject to debate, and a schedule.
73
For an introduction to the chamber and its history see https://www.rechtspraak.nl/English/NCC. The procedural rules in
English - as of December 2018 ‘Rules of Procedure for the International Commercial Chambers of the Amsterdam District
Court (NCC District Court) and the Amsterdam Court of Appeal (NCC Court of Appeal)’, can be accessed from the same
website.
74
https://www.rechtspraak.nl/English/NCC/Pages/key-features-NCC.aspx
Regarding representation, according to Article 3 of the 2018 Rules a party is not usually authorized
to act pro se but must be represented by its lawyer who must be a member of the Dutch Bar
(advocaat). Acts of process, such as the submission of a claim or defence, must be carried out by a
member of the Dutch Bar. Bar members of other Member States of the European Union, the
European Economic Area or Switzerland may not carry out acts of process, but they may act for a
party in other ways in accordance with Article 16e of the Advocates Act (i.e., in cooperation with a
member of the Dutch Bar). Other visiting lawyers may not act for a party, but the court may allow
them to speak at any hearing.
On confidentiality, Article 8.4.2 of the 2018 Rules allows for a confidentiality motion following Article
22 Code of Civil Procedure, and adds to it the already-mentioned faculty for the parties to make an
evidentiary agreement on access to confidential documents -for instance creating a confidentiality
ring, so that certain materials can be reviewed only by the parties’ lawyers.
The NCC will be equipped with state-of-the-art IT. A specific system - known as eNNC - allows for
communications and for the exchange of information and documents electronically; a virtual trial
room will also be set up. According to the rules of procedure, unless the court indicates otherwise,
communication with it as well as the submission of documents can only be done through the eNNC.
It should be noted nevertheless that the implementation of the so-called KEI (Kwaliteit en Innovatie
rechtspraak, or Quality and Innovation in the Legal System) program, meant to digitize and simplify
court procedures, has been delayed;
75
as a consequence the NCC applies the Code of Civil
Procedure in its current version, governing ‘non-digital’ proceedings.
In practice, the biggest obstacle to the success of the NCC will probably be cost-related. The
chamber should be self-financed; as a consequence, a flat court fee of € 15,000 (NCC District Court)
or € 20,000 (NCC Court of Appeal) is imposed. The fees issue was actually a major argument slowing
down the adoption of the NCC founding act.
Belgium: Brussels
The process of establishing an international commercial court in Belgium - already officially named
the Brussels International Business Court (BIBC) - has not yet been completed; like in The
Netherlands, a legislative amendment is also required in Belgium. The initial bill was heavily critizised
on the grounds of a potential lack of independence of the future judges and the expected economic
consequences of the new court on the budget of the Ministry of Justice.
76
A new bill dated May 15,
2018, met severe opposition as well
77
. The latest draft prepared by the House of Representatives
was published on December 10, 2018.
78
There is no definition of ‘commercial’ in the latest Belgian Bill for the creation of the BIBC. The
jurisdiction is delimited, however, by reference to the litigants: these can usually only be companies.
Individuals as such may qualify, although if so the BIBC would only have jurisdiction over ‘acts that
are not manifestly unrelated to the company’ (Article 20, which would amend Article 576/1 of the
75
According to the information available as of January 18, 2019.
76
Avis d’Office du Conseil Supérieur de la Justice, March 14, 2018, on the Avant-projet de loi instaurant la Brussels International
Business Court: http://www.hrj.be/sites/default/files/press_publications/avis-bibc-fr.pdf.
77
http://www.lachambre.be/flwb/pdf/54/3072/54K3072003.pdf.
78
http://www.dekamer.be/FLWB/PDF/54/3072/54K3072011.pdf.
Code Judiciaire). The Bill takes up the general rule for all ‘company courts’; in fact, it refers to the BIBC
as a ‘Tribunal de l'entreprise anglophone’.
79
Pursuant to the superseded Draft Law of May 2018 a dispute is international in nature if: (a) the
parties have their place of business or habitual residence in different States; or (b) the place of
execution of a substantial part of the obligations arising from the commercial relationship, or the
place with which the subject matter under dispute has the closest connection, is outside the State in
which the parties have their place of work or habitual residence; or (c) the parties have expressly
agreed that the subject-matter of the dispute is connected to more than one country; or (d) the
resolution of the dispute requires the application of a foreign law. In its Avis of October 15, 2018, the
Conseil d'Etat argued that access to the BICB should be open only to objectively international
relations, meaning those where the parties had already used the English language in the
relationships from which the dispute arises.
80
In the latest version of the Bill, of December 10, 2018,
section c) has been removed. Conversely, no requirement is included any longer regarding the use
of English by the parties.
In some relevant aspects the Belgian initiative separates itself from the rest in the European area.
According to the current text the BIBC will be composed of career judges and international trade
professionals, not necessarily Belgians, who will act ad hoc - their appointment will be permanent in
the abstract, but the court will only be active when a case so requires. Procedurally, the common
rules are largely replaced by others inspired by the world of arbitration, especially by the UNCITRAL
Model Law. The BIBC will have jurisdiction over international disputes between companies as a
unique instance; no appeal will be possible - only cassation. Parties may decide to submit to the BIBC
all disputes, or some of the disputes that have arisen or may arise between them in relation to a
legal relationship, whether contractual or non-contractual. Cases may also be referred from another
Belgian, foreign or international judicial body, including an arbitral tribunal, provided the parties
agree to the transfer. The language of the process will be English although exceptions may apply,
such as in the case of an intervention by third parties. The internationality of disputes under the
jurisdictional scope of the BIBC accounts for the derogation to the common rule on the language of
the process; however, as we have seen the question of when a case is international is still open.
The BIBC intends to be a self-financing institution. Presumably, parties will have to pay substantial
court fees.
3 A Market of Competing Jurisdictional Services?
The existence of a global market of competing legal services is no longer in dispute.
81
Open
reference is also made to a ‘litigation market’,
82
an area which is becoming global in parallel with the
79
It should be noted that the expression ‘tribunal de l’entreprise’ replaced ‘tribunal del commerce’ in 2018. The jurisdiction of
such tribunals is defined on the basis of a very broad formal concept of ‘entreprise’, which includes individuals carrying out
commercial activities, provided that the dispute at hand is related thereto.
80
According to the Conseil d’État: ‘C’est donc parce que la lingua franca du commerce international est l’anglais qu’il peut se
justifier d’instaurer une juridiction étatique siégeant en anglais et répondant à des règles particulières’. Sensu contrario, should
English not have been used, a court with the linguistic and procedural specialties of the projected BIBC would lack any
justification.
81
Between 2010 and 2012 the LMU Munich sponsored a research program on Law as a product; the outcome has been
published in H. Eidenmüller, Regulatory Competition in Contract Law and Dispute Resolution, C.H. Beck-Hart-Nomos, 2013. More
recently, see for instance the Reportlinker report ‘Legal Services Global Market Opportunities and Strategies to 2021’, July
2018.
globalization of commerce itself, and where competition is seen as a positive element, i.e., as an
external factor boosting improvement and innovation.
83
In this context, the capacity of the
international commercial courts to attract caseloads justifying their existence will depend on the
advantages they offer compared to a) other procedures in the same jurisdiction; b) other
jurisdictions; c) arbitration. We will now address points b) and c), starting with the latter in view of the
importance of arbitration in international commerce.
3.1 ‘Commercial courts and international arbitration—competitors or partners?’
84
Complementarity
The relationship between international commercial courts and international arbitration is not easy to
define. True, they focus on the same type of disputes. Moreover, they tend to converge in both the
offer and the characteristics of the service provided: while some of the international commercial
courts’ modi operandi is imported from the arbitration world, distinctive elements of public courts’
proceedings nowadays also cross-over into the rules set up by arbitral institutions and a growing
trend of arbitrators to mirror the judicial savoir-faire can be observed
85
. In light of this it would be fair
to conclude that international commercial courts and arbitration are competitors in international
commercial dispute resolution.
And yet this initial perception is rejected by many scholars, who prefer to speak of complementarity:
‘international commercial courts are not presented as replacements for, or a real threat to,
international commercial arbitration; rather, they are often described as ‘companions’ to, not
‘competitors’ of, arbitration, in so far as they add to the range of options available to parties involved
in international commerce.’
86
Along the same lines, Justice Quentin Loh of the Supreme Court of
Singapore claimed in a 2014 speech at the opening of the Regional Arbitration Institutional Forum
(RAIF) in Singapore that ‘Arbitrators should not think of the SICC cannibalizing their work. Instead
they should look upon it as an integral part of a vibrant dispute resolution hub (…). If Singapore
succeeds in becoming the first dispute resolution hub of Asia, the foot will grow, hopefully
enormously, your [i.e. arbitration practitioner's] share will also grow, hopefully enormously too, even
though it forms a smaller percentage of the whole.’
87
82
T. Evas, ‘Expedited settlement of commercial disputes in the European Union. European Added Value Assessment’,
European Parliament Study - European Added Value Unit, PE 627.120 – December 2018, 10, 11.
83
It has not always been like this: in addition to some ethical concerns, competition among justice services has been deemed
a negative phenomenon in that it may lead to a race to the bottom, or to the questioning the authority of the service
providers - the judges. See G. Wagner, ‘Dispute Resolution as a Product: Competition between Civil Justice Systems’ (and the
comment by D. Coester-Waltjen), in H. Eidenmüller, Regulatory Competition in Contract Law and Dispute Resolution, C.H. Beck-
Hart-Nomos, 2013, 347-427.
84
The expression is borrowed from M. Hwang, (2015) 31 Arb. Intl. 193.
85
The so-called ‘judicialization’ of arbitration: see for instance R. Gerbay, ‘Is the End Nigh Again? An Empirical Assessment of
the ‘Judicialization’ of International Arbitration’, (2014) The American Review of International Arbitration 223, 230.
86
A. Godwin, I. Ramsay, M. Webster, ‘International Commercial Courts: The Singapore Experience’, (2017) 18 Melbourne Journal
of International Law 1, 5, following Chief Justices M. Warren and C. Droft, Commercial CPD Seminar Series, Melbourne, April 13,
2016.
87
August 1, 2014, printed in the Singapore Institute of Arbitrator’s September 2014 Newsletter,
https://www.siarb.org.sg/images/Events/Newsletters/SIArb_Newsletter_Sep2014.pdf.
Proof of the foregoing may be the peaceful coexistence in London of the London Commercial Court
and the London Court of International Arbitration -and de facto of other arbitral institutions- as
London is a seat frequently chosen for arbitration proceedings. In Europe, proposals such as the
German one for Frankfurt evince a broader strategy intended to turn the city into a hub for
international dispute resolution: in this context, the strengthening of arbitration is put forward as a
key element.
88
According to some international commercial courts’ rules, the judges appointed to
the court are allowed to act as arbitrators within the jurisdiction.
89
In the same vein, a common
feature of the international commercial courts is their jurisdiction over claims for the annulment of
arbitral awards given in international arbitrations based in the jurisdiction.
As a matter of fact, there is more to the question than meets the eye. In reality, the particular
circumstances of each case will determine the parties’ preference to submit to arbitration or to an
international commercial court - and to which one among them, for international commercial courts
differ notably. In the abstract, any enquiry into the relationship between the international
commercial courts and arbitration must be carried out at two different levels: analysis relating to the
users and analysis relating to the institutions. Under the first perspective the interplay between
international commercial courts and arbitration may largely be explained by competition: we will
address this point under the next heading. Complementarity appears at the second level, where it
may well be unavoidable.
To begin, one can look at the functions other than dispute resolution allocated to arbitrators and
courts. Only public courts can develop nomophylactic and law-development functions (with greater
or lesser intensity according to each legal tradition). Arbitrators cannot, for they lack any connection
to a particular legal order, and their adjudicative role is limited to the case at hand and derives from
the choice of the specific parties involved. In addition, arbitrators, even if bestowed with the above-
mentioned legal functions, would find them very difficult to perform since arbitral awards are usually
not published and do not create a precedent.
90
In this context the feeling that arbitration is
hampering the law is shared by scholars and practitioners, particularly in common law countries. In
2016, the Lord President of the Supreme Court of England and Wales claimed arbitration is an
obstacle to law development and advocated in favour of a new equilibrium in the relationship
between arbitration and public courts in his lecture ‘Developing Commercial Law through the Courts:
Rebalancing the Relationship between the Courts and Arbitration.’
91
International commercial courts
do not pose the problem. On the contrary, through the resolution of inter partes disputes these
bodies carry out all the tasks typically assigned to public courts. In common law systems they are
entrusted with a law-making function; in civil law systems they interpret the rules - an essential role
in order to avoid obsolescence in a context of rapid and constant change such as international
commerce.
92
88
B. Hess, entry in Conflictoflaws.net, March 31, 2017.
89
See https://www.adgm.com/doing-business/adgm-courts/arbitration/.
90
The consequence -fragmentation- may nevertheless be mitigated by the repetitive appointment of the same of arbitrators.
91
Lord Thomas of Cwmgiedd (Lord Chief Justice of England and Wales), Bailii Lecture, March 9, 2016:
https://www.judiciary.uk/wp-content/uploads/2016/03/lcj-speech-bailli-lecture-20160309.pdf.
92
International comercial courts are called to play an important role in the development of the national law, but also - and
probably to a larger extent- of the lex mercatoria.
International commercial courts may be a response for other arbitration-related concerns. In his
already-mentioned speech of 2014, Justice Quentin Loh indicated, ‘Just as mediation or adjudication
or other forms of ADR complement arbitration, the SICC will do likewise for disputes that do not sit
well with the private consensual dispute resolution process.’
93
This happens when the issue at stake
affects the public interest - a more and more common occurrence linked to the proliferation of
public-private contracts entered into by States or their emanations and private partners. Public
distrust towards investment and (admittedly to a lesser extent) commercial arbitration has
mushroomed in the last decade fostered by, among other factors
94
, the lack of transparency or
direct misinformation in relation to high value disputes referred to arbitration on ‘hot’ topics such as
border security
95
. Unlike arbitration, international commercial courts provide a forum conducted
under the principle of transparency. Not without reason they have been described as a formula ‘[to]
meet the needs of the digital revolution in our Global Village and strengthen the rule of law’.
96
Likewise, in areas where party autonomy is not the prevailing standard adjudication by the
international commercial courts ensures respect of the mandatory rules, whereas their application
in arbitration proceedings is less certain. This is not without consequences, which do not necessarily
wait to pop up at the recognition or enforcement stages of the award. On the contrary, doubts about
the suitability of some claims to be resolved by arbitration can be traced in recent EU EM decisions
refusing to require compliance with arbitration agreements on disputes covered by substantive lois
de police: the typical case is that of commercial representation or agency contracts, and distribution
agreements.
97
Competition
Recent surveys conducted on international commercial arbitration show a certain degree of user
dissatisfaction. In 2015, one survey reported a growing concern due to a ‘perceived reluctance by
tribunals to act decisively in certain situations for fear of the award being challenged on the basis of
a party not having had the chance to present its case fully (‘due process paranoia’).’
98
Moreover, the
arbitration rules proposed by the arbitral institutions are becoming increasingly formal.
99
Indeed,
this ‘judicialization’ of arbitration is largely related to the complexity of disputes; as a reaction and in
93
Above, note 87.
94
On the public’s perception S. Mourre, ‘La Soft law como condición para el desarrollo de la confianza en el arbitraje
internacional’, X Conferencia Internacional Hugo Grocio de arbitraje, Fundación Universitaria San Pablo CEU, 2018, 7-9. On an
increasing regulatory power of arbitral institutions and the legitimacy question B. Warwas, The Liability of Arbitral Institutions:
Legitimacy Challenges and Functional Responses, Springer, 2017.
95
See in the UK the eBorder case, reported by S. Brekoulakis, May 8, 2017:
http://arbitrationblog.kluwerarbitration.com/2017/05/08/the-protection-of-the-public-interest-in-public-private-arbitrations/ .
96
Lord Thomas of Cwmgiedd (Lord Chief Justice of England and Wales), ‘Commercial Justice in the Global Village: the Role of
Commercial Courts’, DIFC Academy of Law Lecture, Dubai, February 1, 2016: https://www.judiciary.uk/wp-
content/uploads/2016/02/LCJ-commerical-justice-in-the-global-village-DIFC-Academy-of-Law-Lecture-February-2016.pdf.
97
See F. Ragno, ‘Inarbitrability: A Ghost Hovering over Europe?’, in: F. Ferrari (ed.), Limits to Party Autonomy in International
Commercial Arbitration, Juris, NYU, 2016, 127-163, 132-144.
98
Queen Mary/White and Case 2015 International Arbitration Survey: Improvements and Innovations in International
Arbitration, http://www.arbitration.qmul.ac.uk/media/arbitration/docs/2015_International_Arbitration_Survey.pdf.
99
The most relevant arbitration institutions have modified their rules and practices in the last years to promote the efficiency
of the arbitration process, but also to ensure their compatibility with procedural standards of due process: see for instance
Article 14 London Court of International Arbitration Rules (1998); Article 12 (8) ICC Rules 2017 (former Article 10 (2) 1998).
‘Formalization’ results as well from the involvement in the proceedings of the institutions themselves: see J. Lee, ‘The evolving
role of institutional arbitration in preserving parties’ due process rights’, 10 (2) Contemp. Asia Arb. J. 234, passim.
order to enhance the efficiency of the arbitration process, several arbitration institutions have newly
revised their rules and practices. Objectively, the trend does not deserve a negative assessment: it
results from a concern to offer a quality service meeting the needs of the case.
100
User perception
may be different, though, for ‘judicialization’ has an immediate consequence on party autonomy:
more and more frequently, the rules of arbitral institutions limit the autonomy of the parties, directly
or indirectly, restricting their margin of manoeuver to design a custom-made procedure.
101
In addition to the foregoing, surveys reveal that respondents believe arbitration suffers (and
continues to suffer) from other shortcomings: high costs; lack of effective sanctions during the
arbitral process; lack of power in relation to third parties; lack of speed.
102
More positively,
‘enforceability of awards’ followed by ‘avoiding specific legal systems/national courts’, ‘flexibility’ and
‘ability of parties to select arbitrators’, are praised,
103
although concerns have been expressed
regarding the absence of data allowing arbitrators to be properly chosen.
104
The delegation of merit-
related tasks to the tribunal secretaries has become a source of mistrust as well.
105
The ability of international commercial courts to be preferred over arbitration by users will depend
on their capacity to provide a jurisdictional service with arbitration-like qualities, and free from its
downsides or able to compensate for them. There is not much information so far on how
international commercial courts work; it is not easy to obtain factual data from the arbitration ,ither.
Still, some inferences may be drawn from the comparison of the theoretical frames and the scant
evidence gathered from the practice from both sides.
3.1.2.1 Matching and improving the offer
International commercial courts are public courts. As such, they are apt to provide an ‘adjudicative
offer’ in ways arbitrators are not: either adding possibilities beyond the reach of the latter, such as
recourse against a first-level decision (but adding sometimes the possibility to waive it prior to the
process, as we saw for Singapore under 2.2.4); or avoiding some of its disadvantages, like awards
inconsistency due to the absence of precedents, the claim of lack of legitimacy or other ethical issues
affecting arbitrators, the limitations on joinder, restrictions related to the arbitrability of the subject-
matter, to adopt or enforce sanctions against a non-compliant party, or to apply particular
remedies.
106
100
L. Trakman, H. Montgomery, ‘The ‘Judicialization’ of International Commercial Arbitration: Pitfall or Virtue?’, (2017) Leiden
Journal of International Law vol. 30 (2), 405.
101
See A. Carlevaris, ‘Limits to Party Autonomy and Institutional Rules’, in F. Ferrari (ed.), Limits to Party Autonomy in
International Commercial Arbitration, Juris, NYU, 2016, 8; S. Sills, ‘Party Autonomy, the ‘Right’ to Appoint, and the Rise of Strategic
Challenges’, id. loc., 37-82.
102
These were the findings of the Queen Mary/White case Survey 2015, which remain unchanged according to the 2018
Survey: http://www.arbitration.qmul.ac.uk/research/2018.
103
Loc. ult. cit.
104
The 2018 Survey points to an improvement in the situation, but acknlowledges that the sources of information are ‘word of
mouth’, ‘internal colleagues’, and ‘publicly available information’; data provided from the arbitral institutions remain far behind.
105
An area still lacking regulation: see In P v Q [2017] EWHC 194.
106
As pointed out by J. Walker, ‘Privatizing Dispute Resolution and its Limits: International Commercial Arbitration and National
Courts’, (pending publication in L. Cadiet, B. Hess, M. Requejo Isidro, Privatizing Dispute Resolution and its Limits, Nomos,
expected 2019), under 3, arbitral institutions are indeed trying to react to these shortcomings.
More specifically, international commercial courts seem to be able to compete with some
arbitration-distinctive characteristics, in particular regarding the length of the proceedings. As we
have already explained, international commercial courts are equipped both legally and technically to
act swiftly. The data retrieved from some of the courts point to good outcomes in this respect: we
refer to the examples of Singapore and Ireland (under 2.2.4 and 2.4.3, respectively). Statistics on the
duration of civil proceedings in the first instance before the EU Member States point to the
Netherlands as fastest -an average of 130 days from notification until sentence, followed by
Germany - about 200 days from notification until sentence - and France - almost a year.
107
There is
no reason to doubt the respective international commercial courts will not corroborate the general
tendency.
Moreover, reference should be made to a common feature of all international commercial courts,
namely the tendency to encourage the parties to resolve their differences through alternative
dispute resolution or to reach an out-of-court or before-the-court settlement. Again, this seems to
be working well in practice: according to the 2017 Annual review of the DIFC Courts, there is a
settlement rate of 88% for cases before the Court of First Instance, and a similar one before the
Smalls Claim Tribunal. Figures in relation to Ireland have already been mentioned (under 2.4.3).
On other issues nuances would be needed for each single commercial court or chamber. Indeed, in
order to better fit with the specificities of international commercial litigation all international
commercial courts give room for the parties’ involvement in the design of the process, but with
differences precluding any general conclusion. Similarly, steps are taken to ensure the parties’
comfort limitations on representation by foreign lawyers are softened, but not in the same way in all
jurisdictions. On fees, we have seen that the rules are not at all uniform- no fee in Qatar, general fees
in Germany, specific in Singapore but following a variable rate, also specific in The Netherlands but
with a flat rate. Competitiveness will therefore vary accordingly.
3.1.2.2 Drawbacks
In some aspects the international commercial courts’ offer lags and a reversal of the situation looks
rather improbable. Some elements almost consubstantial to arbitration cannot be taken up by the
international commercial courts, for they clash against equally consubstantial characteristics of the
State courts system. Confidentiality (which will certainly be an issue in many of the proceedings
before the international commercial courts: suffice it to mention trade secrets), provides the best
example: the starting point of international commercial courts is publicity in line with the general
principle of public courts; the opposite is the exception.
108
Only under very exceptional
circumstances will the actual existence of a dispute, the fact that the party was involved in the
proceedings, or the judgment remain confidential.
On the merits, international commercial courts adjudicate according to PIL rules. In Europe the
conflict of law rules of the Regulations 593/2008, Rome I, and 864/2007, Rome II, apply.
109
Both
instruments support party autonomy; however, they also impose boundaries to it which are absent
107
T. Evas, figure 6.
108
In addition to publicity - needed to reinforce public confidence in the administration of justice- the right to an effective
remedy and to a fair trial of the parties involved in a specific procedure must also be protected. See B. Hess, A. Koprivica (ed.),
Open Justice, pending publication.
109
OJ L 177/6, July, 4 2008; OJ L 199/40, July 31, 2007, respectively.
in the framework of arbitration. The Commission’s proposal for the Rome I Regulation opening up
the choice to ‘principles and rules of the substantive law of contract recognised internationally or in
the community’ was rejected;
110
not surprisingly, in a recent document the EU Parliament takes up
the opportunity to recommend a modification of the Rome I and Rome II regulations ‘to afford the
parties to purely commercial contracts further autonomy while ensuring the protection of the
weaker parties in business-to-business relations’.
111
Freedom of choice is restrained under the
circumstances contained in Article 3 (3) Rome I -Article 14 Rome II. According to Article 9 of the Rome
I Regulation -Article 16 of the Rome II Regulation,
European international commercial courts must
apply the lois de police of the forum. Choice of law is not absolute either before the Asian
international commercial courts: foreign law will not apply if it is inconsistent with the public policy of
the forum. Conversely, arbitral tribunals are not bound by mandatory rules - neither internal nor
international ones- even if they have an interest in abiding by them to guarantee the validity of the
award in case of a subsequent scrutiny.
112
A further drawback of international commercial courts, likely to tilt the balance in favour of
international arbitration, will emerge if there is a need to enforce the judgment abroad. There is no
instrument comparable to the New York Convention of 1958 for arbitral awards
113
- hence the
interest of the DIFC case explained above, under 2.2.1. Today, the recognition and enforcement of a
judicial decision in another jurisdiction depends heavily on whether or not there are international
agreements between the issuing and the requested States. We will address this point under the
following heading: how developed the network of agreements for recognition and enforcement is
will play a decisive factor in favour of (or against) the international commercial courts, not only in the
relationship with arbitration but also with each other.
3.2 International Commercial Courts in Competition
Forum selling, forum shopping
The essential task of public courts of resolving disputes among private parties has traditionally been
conceived as a service of the State, and not as a commercial product involving competition among
suppliers. That perspective must not be overlooked: the first objective of any jurisdictional system
governed by the rule of law must be the resolution of the cases, in a framework that guarantees the
fundamental rights of access to justice and equality of arms. At the same time, it not possible to
ignore any longer that how a judiciary works can attract desirable foreign investment: thus the label
of ‘litigation market’. Independent, efficient courts known for the quality of their decisions, and
staffed with skilled personnel, are an essential component of the trust-building which is essential to
investments and trade.
110
Proposal for a Regulation of the European Parliament and the Council on the law applicable to contractual obligations
(Rome I) COM(2005) 650 of 15 December 2005, Article 3(2)
111
Report with recommendations to the Commission on expedited settlement of commercial disputes (2018/2079(INL)),
Annex, under II.
112
On the Rome I and Rome II Regulations and arbitration see P. de Miguel Asensio, ‘The Rome I and Rome II Regulations in
International Commercial Arbitration’, in F. Ferrari (ed.), The Impact of EU Law on International Commercial Arbitration, Juris,
Nueva York, 2017, 177-243.
113
A. Saito, ‘International Commercial Arbitration and International Commercial Courts: Towards a Competitive and
Cooperative Relationship’, in: Harmonising Trade Law to Enable Private Sector Regional Development, Victoria University (New
Zealand), Special Issue, 2016, 33-58, 48; D. Demeter, K.M. Smith, at 452.
In fact, in international commerce the idea of competition between the courts of different States is
novel, although it has intensified since the new millennium, as shown by the 2007 booklet published
by the Law Society London, ‘England and Wales, The jurisdiction of choice’,
114
and the German
reaction thereto ‘Law-made in Germany’:
115
both documents tend to promote recourse to their
respective judicial systems.
Expressions such as forum selling or forum shopping epitomize the consequences of the competition
between jurisdictions in terms that evoke the selection or the promotion of a consumer product:
‘international litigation is increasingly perceived as a competitive market where litigation centres
promote themselves through intensive marketing and improved quality and speed of their court
services’.
116
The degree of competition among jurisdictions varies depending on the type of litigation. In the area
of civil liability, the traditional competitor of Europe has been the US. User preferences are
determined based both on procedural elements — which favour of the US because of trial by jury,
generous disclosure, the availability of collective redress tools — and substantive factors — again in
favour of the US with the possibility of being granted treble and punitive damages awards.
117
In the
EU, before the UK’s official notice of intention to withdraw from the Union on 29 March 2017, the
UK's most serious competitors were Germany and the Netherlands: the news of changes in the field
of justice in the UK - particularly related to cost increases - coupled with improvements introduced in
the systems of the latter countries may account for this. In addition, Germany’s advantages include
much more certainty around lawyers' fees, quicker and less costly proceedings, and (albeit limited)
some initiative towards the use of English as the language in court under specific circumstances.
Meanwhile, Dutch courts are known for their efficiency in the management of complex and high-level
litigation, as well as for offering collective redress mechanisms not available anywhere else in
Europe.
118
The announcement of the UK withdrawal from the EU has boosted projects to establish
international commercial courts or chambers in other Member States. The reaction, which some
have called ‘opportunist’,
119
has undoubtedly a component of competition with the UK; be that as it
may, it certainly reflects the need to fill the gap left by the likely departure of London in the intra-
European panorama. The statistics of recourse to the London Commercial Court between March
2017 and April 2018 still show an increase of 22% in the total number of litigations submitted to the
court; they also indicate the predominance of EU-originating litigants, followed by litigants from Asia.
114
https://www.eversheds-sutherland.com/documents/LawSocietyEnglandAndWalesJurisdictionOfChoice.pdf. For a comment
on the ‘battle’ see S. Vogenauer, ‘Regulatory Competition through Choice of Contract Law and Choice of Forum in Europe:
Theory and Evidence’, (2013) 21 European Review of Private Law 13, 30 ff.
115
www.lawmadeingermany.de
116
E. Lein, R. McCorquodale, L. McNamara, H. Kupelyants, J. del Rio, Factors Influencing International Litigants’ Decisions to Bring
Commercial Claims to the London Based Courts, Ministry of Justice Analytical Series-BIICL, London, 2015, under 4.5.
117
On judges ‘advertising’ their services, comparing the USA and Germany see S. Bechtold, J. Frankenreiter, D. Klerman, ‘Forum
Selling Abroad’, MPI Collective Goods Discussion Paper, No. 2018/11; Virginia Law and Economics Research Paper No. 2018-
14, SSRN: https://ssrn.com/abstract=3256183. More generally see A. Bonomi, K. Nadakavukaren Schefer, US Litigation Today:
Still a Threat For European Businesses or Just a Paper Tiger?, Shulthess Verlag, 2018.
118
R. McCorquodale, L. McNamara, H. Kupelyants, J. del Rio, 26-27.
119
See A. Briggs’s comments to B. Hess/M. Requejo, in
http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-justice-subcommittee/brexit-civil-
justice-cooperation/written/46823.html, fn. 46.
120
However, with regard to Europe, the data may change radically from March 31, 2019, in the
absence of an agreement between the UK and the EU regarding the transitional period, and above
all, of a future agreement ensuring the recognition and enforcement of English judgments in the
remaining Member States.
121
We have already explained that the fundamental argument underpinning the creation of
international commercial courts at the UAE, Qatar or Singapore was not in the first instance
competition with London, nor the need to fill a gap left by a hard or simply messy Brexit. However,
the desire that at some point competition occurs and culminates with a different share of cases
exists: ‘it is hoped that the SICC will compete with the English Commercial Court for a share of the
international commercial cases now drawn to London.’
122
Although it is too early to evaluate the
commercial court alternatives to London, in what follows we will argue that at the theoretical level
the Asian and Middel East settings appear to better suited than the European ones.
Choice-Determinative Factors
Admitting from the outset the difficulty to identify the factors determining user preferences, we can
accept the relevance of the following:
123
3.2.2.1 Access
International commercial courts can only accomplish their mission if disputes are brought before
them. That is why it is essential to open up ways to confer jurisdiction on them including through
broad criteria attributing international jurisdiction and a generous delimitation of the substantive
scope of jurisdiction — in other words, the notion of ‘international commercial litigation’. In this
regard, the fact that international commercial court rules authorize the parties to agree on either or
both conditions, ‘international’ and ‘commercial’, as for the SICC, represents an advantage.
International jurisdiction can be based on a choice of court agreement by the parties for all
international commercial courts; for those located in a EU Member State, in accordance with Article
25 Brussels I bis regulation. However, whether jurisdiction may be conferred to (all) the current
European bodies by virtue of a parties’ choice of forum is unclear. As we saw above, the agreement
of the parties for proceedings to be before the NCC District Court in English is a condition sine qua
non for the action to be initiated in the NCC District Court; the same occurs in Frankfurt. On the
contrary, being listed for the Dublin Commercial Division is a discretionary decision; the assignment
120
Portland Commercial Courts Report 2018, https://portland-communications.com/publications/commercial-courts-report-
2018-portland/.
121
Last December the UK ratified the 2005 Hague Convention on choice of court agreements, to enter into force on April 1,
2019, should no-agreement be reached between the UK and the UE.
https://verdragenbank.overheid.nl/en/Verdrag/Details/011343/011343_Notificaties_13.pdf. However, due to its limited scope
the Convention cannot replace the EU rules on recognition and enforcement of civil judgements.
122
Justice Anselmo Reyes, ‘Recognition and Enforcement of Interlocutory and Final Judgments of the Singapore International
Commercial Court’ (2015) 2 Journal of International and Comparative Law 337, 339. See as well Portland Commercial Courts
Report 2018, at 3.
123
T. Evas, under 3.2, summarizes three studies conducted in 2005, 2008 and 2016 which allow concluding that the decisive
elements are: the quality of the legal system and of the law applicable to litigation; the time invested in the resolution; the
predictability of the outcome; costs; others, including the probabilities of recognition and enforcement of decisions outside
the forum.
to the Chambre Internationale in Paris depends on the ‘Chambre de placement’; finally, they are not
‘jurisdictions’ in the proper sense of the term, but just chambers or divisions, and their competence
results from the internal allocation of cases.
Conversely, parties’ can directly choose an Asian international commercial court.
3.2.2.2 What is on the menu?
In theory, significant differences exist among the international commercial courts on non-negligible
aspects. For instance, limitations in the use of English and tardiness in incorporating new
technologies are likely to work against the German initiative, and the same can be expected for the
French model; the NCC is much better equipped in both respects, but the high access fees imposed
on litigants is likely to work as a drawback.
Asian international commercial courts offer the major advantage of having adopted the English
language for the whole proceeding. In addition, English commercial substantive rules have been
incorporated into the legal system (Singapore did not need to ‘import’ foreign legal rules pertaining
to another tradition and culture so avoided all related problems). The transplanting of such rules to
the local legal system increases the probabilities that the parties will choose local law to apply to
their commercial relationship or dispute. Furthermore, should this not be the case specific solutions
have been adopted to ascertain the contents of foreign law. European international commercial
courts lag behind in these aspects as well.
124
Still as to the merits, the fact that no foreign member is allowed to sit on the benches of the
European international commercial courts currently in operation may prove to be a disadvantage
compared with the Asian courts. This issue should not be underestimated in international
commerce: the integration of judges acquainted with English law (also, case law) and with the
common law tradition can have a decisive impact on the handling of the cases. The customary
association of civil law jurisdictions with written, fixed and precise rules has posed serious obstacles
to the resolution of cross-border cases where no literal support was found in the texts addressing a
specific problem. This has happened, for instance, in cross-border insolvency, where communication
and cooperation between the courts dealing with the insolvency of one single debtor is of the
essence. Until the adoption of Regulation 2015/848 on insolvency proceedings
125
such cooperation
was deemed impossible in many EU jurisdictions because the previous law - Article 31 Regulation
1346/2000- only provided for the obligation to communicate among the liquidators. In the UK, the
lack of a legal provision was easily overcome.
126
From this point of view, the Dublin and Singapore
international commercial courts are better placed than the rest from the outset, for both
jurisdictions belong to the family of common law countries.
124
See M. Requejo Isidro, ‘The application of European Private International Law and the ascertainment of foreign law’, in E.M.
Kieninger, J. von Hein, G. Rühl, How European is European Private International Law?, pending publication.
125
OJ L/19 141, June 5, 2015.
126
Vid. High Court of Justice Birmingham, May 11, 2005, in MG Rover, 2005 [EWHC] 874; In Re Nortel Group SA [2009] EWHC 206
(Ch). M. Requejo Isidro, ‘Cooperation, Communication, Coordination’, in
Hess/Oberhammer/Bariatti/Koller/Laukemann/Requejo Isidro/Villata (eds.), The Implementation of the New Insolvency Regulation,
Nomos-Hart, 2017, 139-155.
The incorporation of new technologies into the procedure will certainly matter as well. IT can
improve and speed up the working of a court and simplify case management by the parties; in the
near future it will no doubt have the essential task of supporting intercommunication and the secure
and fast exchange of information between courts of different jurisdictions. Belonging or not to an
interoperability network (as well as its geographical and functional scope) will impact on the costs
and the length of judicial proceedings in cross-border litigation. At this juncture the Asian courts
appear better equipped than those of Europe, at least taken separately; not much is known about
inter-operative systems. In the EU they do exist, but are still at an experimental stage and with a
limited scope.
127
Further differences relate to the openness to party autonomy and how much leeway the parties
have to participate in the design of ‘their’ proceedings. In this regard some possibilities like the ex-
ante waiver of the right of appeal or to object to the recognition/enforcement of the judgment, which
exist for the SICC (see above under 2.2.4), are completely alien to the European landscape -and most
likely are incompatible with the prevailing understanding of the right to a due process.
3.2.2.3 The ‘exportability’ of the judgments
How easy or complicated the recognition and enforcement of decisions is outside the jurisdiction
can play an essential role.
If the judgment debtor refuses voluntary compliance because he lacks any assets in the State where
the judgment has been given, then enforcement will be sought abroad. To do this generally requires
that the decision is recognized and granted exequatur in the targeted State. In this respect
international commercial courts do not differ from any other public court, with the exception of the
DIFC Court, whose decisions may be ‘converted’ into an award in the terms explained above. For the
rest, those international commercial courts whose resolutions have better options to be exported
will enjoy a competitive advantage. Under the current situation the network of bilateral and
multilateral instruments on recognition and exequatur promotes fragmentation by geographical
regions: stakeholders doing business in the UAE or the Gulf area may have a preference for the
DIFC Courts and the ADGM Courts based on the fact that the Emirates are part of the Gulf
Cooperation Council Convention for the Execution of Judgments, Delegations and Judicial Notifications
1996
128
and of the Riyadh Arab Agreement for Judicial Cooperation 1983;
129
international commercial
court decisions benefit from those regimes after registration with a local court once translated into
Arabic. Moreover, in recent years memoranda of understanding and of guidance have been entered
into by the UAE international commercial courts, especially the DIFC Courts, to ease the recognition
and enforcement of decisions abroad.
Within the group of Asian international commercial courts the SICC enjoys an advantageous situation
as neither registration nor translation of decisions is needed. In addition, Singapore has concluded
127
Research is being carried out with the support of the European Commission into technologies at the service of justice, and
to set up an E-justice environment: see the e-CODEX project on the cross-border exchange of documents, and the follow-ups
(Me-CODEX I/ II).
128
Bahrain, Saud Arabia, Oman, Qatar, Kuwait, EAU.
129
Jordan, Bahrain, Tunisia, Algeria, Djibouti, Saudi Arabia, Sudan, Syria, Somalia, Iraq, Oman, Palestine, Qatar, Kuwait,
Lebanon, Libya, Morocco, Mauritania, Yemen.
multiple bilateral agreements for the mutual recognition of decisions.
130
Since June 2016, Singapore
has also been a party to the Hague Convention of 2005 on choice of forum clauses; a step which
may have significant consequences on the recognition and enforcement of SICC judgments abroad,
especially in Europe. In our view, however, this element should not be overestimated because the
material scope of the 2005 Hague Convention can considerably restrict its practice relevance for
various reasons: Article 2 leaves out many matters relevant to international commerce; Article 21
allows for further reservations with respect to other specific matters, and the EU has made use of
the authorization. Moreover, the choice of court clause triggering the application of the Convention
must be an exclusive one.
131
Although it is true that according to Article 22 Contracting States may
declare that their courts shall recognize and enforce judgments issued by the courts of another
Contracting State designated by virtue of a non-exclusive election agreement, no contracting State
has so far made such a declaration. Besides, whether jurisdiction based on the transfer of another
court (domestic or foreign) to an international commercial court qualifies as an ‘exclusivity clause
choice’ within the meaning of the Convention may be disputed.
As far as European international commercial courts are concerned, their decisions benefit from the
streamlined regime for the enforcement of judgments in other EU Member States or EFTA countries
provided by the Brussels I bis regulation and the Lugano Convention.
132
Conversely, the Hague
Convention of 2005 is not really relevant in practice from the European perspective, since apart from
the EU, currently only Mexico, Montenegro and Singapore are contracting parties thereto.
133
It has
been signed but not ratified by the Ukraine, the US and China.
3.2.2.4 Other
Lastly, the reputation enjoyed in general by the jurisdiction where the international commercial court
is located, and external factors such as the level of political and economic stability will bear on their
ability to attract business litigation to the forum. Indeed, the strategy to become a major player in
the world of international commercial litigation requires a wholesale effort and here again Singapore
seems to be head of the class.
134
130
As of October 2018, with Australia, Brunei Darussalam, Hong Kong, India, Malaysia, New Zealand, Pakistan, Papua New
Guinea, Sri Lanka, United Kingdom, the Windward Islands.
131
Although a choice of court agreement is deemed to be exclusive unless the parties have expressly provided otherwise
(Article 3(b)).
132
Convention on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters
OJ L 339, December 21, 2007.
133
On June 12, 2018 the first EU MS decision was recognized in Singapore by virtue of the Convention: Ermgassen & Co Ltd v
Sixcap Financials Pte Ltd [2018] SGHCR 8.
134
See nonetheless G. L. Benton, ‘The Whispered Conversation: Hong Kong v Singapore’, in
http://arbitrationblog.kluwerarbitration.com/2019/01/02/whispered-conversation-hong-kong-v-singapore/, January 2, 2019:
‘Singapore’s parliamentary political system has been dominated by the ruling People’s Action Party (PAP) and the family of
current Prime Minister Lee Hsien Loong since 1959. According to Freedom House, the electoral and legal framework allows
for some political pluralism and considerable economic prosperity but critics contend that what effectively amounts to a one-
party system limits freedoms of expression, assembly, and association. Death penalties for drug traffickers, canings for some
35 other offenses and prohibition on chewing gum are reminders that Singapore adheres to different standards than many
Western jurisdictions’.
3.3 Epilogue- A Word on the ‘Judgments Project’
In the context of a ‘litigation market’, the work in progress at the Hague Conference for a ‘judgments
convention’ should be mentioned. Assuming that the negotiations succeed (many provisions are
currently still in brackets, reflecting the lack of agreement),
135
interest in signing the convention will
depend on its material scope, the number of contracting States, and on whether it offers a more
liberal regime than the systems of recognition and enforcement otherwise applicable.
On the first point, the judgments convention would apply to decisions by a court grounding its
jurisdiction in a non-exclusive choice of court agreement, thus filling the gap left open by the 2005
Hague Convention. However, like the latter instrument, the set of matters not included (as of
today)
136
in the instrument restricts the benefits to be expected. It should also be noted the notion
of ‘decision’ does not comprise provisional measures.
At this stage little can be said about the question of the potential signatory States. Accession from
relevant countries such as the US and China will depend both on the outcome of the negotiations
from their perspective, and the political moment and leadership. At any rate, the limited success of
the 2005 Hague Convention - which is actually what was left from the failure of a similar previous
project - allows for justifiable doubts vis-à-vis the new project.
As for the third aspect - the comparison between the future convention’s system and other regimes-
it is worth noting that the Convention provides for a two-step examination of the decisions to be
recognized/enforced abroad. Firstly, the decision is assessed to decide on its ‘eligibility’ for
recognition and enforcement which in turn depends on the ground of jurisdiction relied upon by the
court of origin. The requirement is, in reality, a hidden control of international jurisdiction leading to
the exclusion of the judgment at hand from the scope of the convention if none of the criteria listed
therein is met. Secondly, the recognition of an eligible judgement may be refused (although it is not
imperative) under the conditions provided for in the convention. Nevertheless, a general clause has
been incorporated according to which ‘Subject to Article 6, this Convention does not prevent the
recognition or enforcement of judgments under national law’.
From the EU perspective, a comparative study of national systems in April 2018 suggests that there
may be an interest in the (future) judgments convention from States with ‘conservative’ systems of
recognition and enforcement of foreign decisions, in the absence of any another more favourable
agreement: this would be the case of India, Australia, the UK and Singapore. With regard to other,
more liberal jurisdictions, the fact that they become contracting parties to a future Hague convention
will not make any difference thanks to (current) Article 16. Since the proposed convention does not
standardize other aspects of recognition and enforcement - for example, the development of the
exequatur process - its added value for these countries will be limited, or non-existent.
137
135
Text under: https://assets.hcch.net/docs/9faf15e1-9c36-4e57-8d56-12a7d895faac.pdf. For the Revised Explanatory Report,
December 2018, para. 54, 55: https://assets.hcch.net/docs/7d2ae3f7-e8c6-4ef3-807c-15f112aa483d.pdf.
136
Further exclusions were added in May 2018.
137
P. de Miguel Asensio, G. Cuniberti, P. Franzina, C. Heinze, M. Requejo Isidro, ‘The Hague Conference on Private International
Law Judgments Convention’, In-Depth Study, European Parliament, PE 604.954, April 2018, under 4.3, 4.4.
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