Will litigants choose new international commercial courts over the London Commercial Court? It is too early to tell. But these courts are worthy of attention.
Last year’s report highlighted possible competition from the new Chinese International Commercial Courts (CICC); the Singapore International Commercial Court (SICC); the international commercial court chambers in France, Germany, and the Netherlands; the Astana International Financial Centre (AIFC) court in Kazakhstan; and the Qatar International Court and Dispute Resolution Centre (QICDRC). Other international commercial courts in the Middle East—including the Dubai International Financial Centre (DIFC) and the Abu Dhabi Global Market (ADGM) Courts—may also, over time, siphon off cases from that region that otherwise might have gone to London.
Arbitration still appears to be a more formidable “competitor” than the international commercial courts.
Many of these courts state explicitly that they have modeled themselves procedurally on the London Commercial Court[1] and some even hire former English judges.[2]
To date, some of these courts have had more cases than others. The CICC appears to have decided only a small handful of cases in 2020.[3] The SICC, however, issued 30 judgments in 2020, compared to 16 in 2019.[4]
The DIFC Court of First Instance announced a record 123 decided cases in 2020,[5] up from 92 cases the previous year.[6] The QICDRC, by contrast, appears to have issued only 26 decisions in 2020,[7] up from 16 in 2019.[8] The AIFC courts in Kazakhstan “resolved” a total of 291 cases in 2020, and issued nine judgments[9] (up from one judgment in 2019).[10]
In Europe, the Netherlands Commercial Court issued two judgments in 2019 and six in 2020.[11] The Paris International Commercial Court has not published any judgments on its website.[12] The related International Chamber of the Paris Court of Appeal published its first decision in May 2020.[13] In Germany, unofficial sources report that the new international commercial chambers “have not received even a handful of cases.”[14]
London’s docket remains the most robust—but changing tides due to Brexit, technology, tolerance for remote proceedings, and the geopolitics of disputes may guide parties’ choices in the future.
The London Commercial Court’s other well-known “competition” is arbitration. Arbitral institutions have reported a steady caseload increase for decades. The London Court of International Arbitration, for example, reported hearing 444 cases in 2020, up from 406 in 2019.[15]
This review seems to reveal the slow growth of international commercial disputes in specialized courts around the globe, but also in arbitral tribunals. Arbitration still appears to be a more formidable “competitor” than the international commercial courts. Parties say they prefer arbitration for the relatively easy enforceability of awards, its flexibility, the ability to select arbitrators, and, notably, the opportunity to avoid specific legal systems or national courts.
International commercial courts seek to respond to these concerns by providing more attractive domestic courts, some of which offer arbitration-like features, like flexible procedures and foreign judges.[17] Jurisdictions with these courts also tend to adopt arbitration-friendly laws, often viewing quality courts as a way to increase their share of international commercial dispute resolution more generally.[18]
Among these commercial courts, London’s docket remains the most robust—but changing tides due to Brexit, technology, tolerance for remote proceedings, and the geopolitics of disputes may guide parties’ choices in the future.[19] To date, forces like the reputation and expertise of English judges, the quality of substantive English law, and a dedication to legal and technological innovation, have drawn litigants to London. As international commercial courts around the world seek to replicate these features, it remains to be seen whether they will be able to draw some of those litigants away.
This contribution is taken from ‘Commercial Courts Report 2021’ produced by Portland’s specialist Litigation and Disputes practice. Sign up to download the report here
References
- See, e.g., Pamela K. Bookman, The Adjudication Business, 45 Yale J. Int’l L. 227 (2020) (discussing the SICC, QICDRC, and DIFC Courts).
- See, e.g., Judges, SICC, https://www.sicc.gov.sg/about-the-sicc/judges; Judges, DIFC CTS., https://www.difccourts.ae/court-structure/
judges/; Chief Justice, AIFC Courts, https://court.aifc.kz/who-we-are/chief-justice/ (Lord Mance); Justices, AIFC Courts, https://court.aifc.kz/
who-we-are/justices/. - http://cicc.court.gov.cn/html/1/219/211/223/index.html.
- https://www.google.com/url?q=https://www.sicc.gov.sg/hearings-judgments/judgments&sa=D
&source=editors&ust=1617217737695000&usg=AOvVaw0MntqCcHaAlcKUhukNSIC6. - DIFC Courts Annual Review 2020, Feb. 27, 2021, https://issuu.com/difccourts/docs/difc_annual_report_
2020_bilingual_single_page. - https://issuu.com/difccourts/docs/difc_courts_annual_review.
- https://www.qicdrc.gov.qa/the-courts/judgments.
- https://annualreview.qicdrc.com.qa/18/cases-before-the-court.
- https://court.aifc.kz/news/aifc-court-and-iac-present-their-results-in-2020/.
- https://court.aifc.kz/2019/.
- https://www.rechtspraak.nl/English/NCC/Pages/judgments.aspx.
- https://www.tribunal-de-commerce-de-paris.fr/en/le-droit-applicable.
- https://www.reedsmith.com/en/perspectives/2020/05/first-decision-of-the-international-commercial-chamber-of-the-paris-court.
- Giesela Ruhl, Settlement of International Commercial Disputes Post-Brexit, or: United We Stand Taller, in Brexit and the Law.
An Interdisciplinary Study, Jörn Axel Kämmerer & Hans-Bernd Schäfer (eds), Edward Elgar, Cheltenham/Camberley/Northampton
(Forthcoming), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3552011 - Simon Chapman et al., Rise in Arbitration Cases in 2020 Despite Reduced Volume of In-Person Hearings Due to COVID-19 Pandemic,
ARBITRATION NOTES (March 3, 2021), https://hsfnotes.com/arbitration/2021/03/03/rise-in-arbitration-cases-in-2020-despite-reducedvolume-of-in-person-hearings-due-to-coronavirus-pandemic/#page=1 - See, e.g., 2018 International Arbitration Survey: The Evolution of International Arbitration, http://www.arbitration.qmul.ac.uk/media/
arbitration/docs/2018-International-Arbitration-Survey—The-Evolution-of-International-Arbitration-(2).PDF. - See Pamela K. Bookman, Arbitral Courts, 61 Va. J. Int’l L. 161 (2021).
- See Pamela K. Bookman, The Arbitration-Litigation Paradox, 72 Vand. L. Rev. 1119, 1182-83 (2019) (discussing the ways courts support
arbitration); The Adjudication Business, supra note 1 (citing examples of international commercial courts, like the SICC and DIFC courts,
that announce they want to “grow the pie” of international commercial disputes resolved in their jurisdictions). - Pamela K. Bookman & Matthew S. Erie, Experimenting with International Commercial Dispute Resolution, 115 AJIL Unbound 5 (2021).