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In this essay, we describe the overlapping phenomena of new legal hubs (NLHs), international commercial courts, and arbitral courts. We survey their impact on the law and geopolitics of international commercial dispute resolution, identifying key issues these new dispute resolution institutions raise. While the rise of international commercial courts spans authoritarian and liberal states, Western and Asian states, common law and civil law traditions, it also highlights and builds upon regional differences. We question the assumption that the establishment of new courts is always consistent with an increase in the rule of law, particularly in non-democratic states. We close with thoughts about the potential influence and future role of these institutions. Some of the procedural innovations discussed here may lead to shifts in international commercial dispute resolution for years to come, but the question of whether there is sufficient demand for these new institutions lingers.
The past sixteen years have witnessed the proliferation of international commercial courts around the world. However, up until recently, this was largely an Asian and a Middle Eastern phenomenon. Only during the past decade have Continental European countries, notably Germany, France and the Netherlands, joined the bandwagon and started to create new judicial bodies for international commercial cases. Driven by the desire to attract high-volume commercial litigation, these bodies try to offer international businesses a better dispute settlement framework. But what are their chances of success? Will more international litigants decide to settle their disputes in these countries? In this essay, I argue that, despite its recently displayed activism, Continental Europe lags behind on international commercial courts. In fact, although the various European initiatives are laudable, most cannot compete with the traditional market leaders, especially the London Commercial Court, or with new rivals in Asia and the Middle East. If Continental Europe wants a role in the international litigation market, it must embrace more radical change. And this change will most likely have to happen on the European––not the national––level.
In the global development of new international commercial dispute resolution centers, the China International Commercial Court (CICC) represents a genuine innovation in China's legal history. The CICC aims to become a dispute resolution “one stop shop” (combining litigation, arbitration, and mediation) for Belt and Road Initiative (BRI) related disputes. Despite its name and ambition, however, the CICC operates more like a domestic court. The CICC's stringent jurisdictional requirements and conservative institutional design show that the CICC cannot serve its stated objective of attracting new investment opportunities or foreign parties to the Chinese forum. These defects are not fatal but will have to be addressed for the CICC to reach its full potential of hybridization of litigation and arbitration both in and beyond China.
The Second Belt and Road Forum for International Cooperation announced the establishment of the International Commercial Dispute Prevention and Settlement Organization (ICDPASO) in 2019. The ICDPASO was coordinated by the China Council for the Promotion of International Trade and the China Chamber of International Commerce, together with industrial and commercial organizations and legal service agencies from over thirty countries and regions including the European Union, Italy, Singapore, Russia, Belgium, Mexico, Malaysia, Poland, Bulgaria, and Myanmar. It was launched on 15 October 2020. As its title indicates, ICDPASO's mandate to provide dispute resolution services is not confined to the Belt and Road Initiative (BRI) countries but includes resolving any disputes that the parties entrust to its jurisdiction. The ICDPASO aims to serve as a “legal hub” to resolve commercial and investment disputes effectively, efficiently, and practically. Unlike other multilateral dispute resolution forums, it is intended to provide an Asian-centric multilateral dispute resolution forum. This essay, the first on the subject of the ICDPASO, discusses how the ICDPASO can serve as a global laboratory for experimenting and innovating in dispute resolution with the potential to impact the landscape of international law, in particular its innovative use of mediation, good offices, and appeal processes to prevent and resolve disputes arising from the BRI. As BRI projects aim to establish infrastructure and digital connectivity within BRI countries and regions for trade and development, this essay argues that the dispute resolution process under the ICDPASO should take into account the overall development of a country or region. The essay concludes that the ICDPASO will be a game changer by introducing an Asian way of resolving disputes.
As worldwide interest in international commercial courts grows, questions arise as to whether individual nations can or should seek to compete in the “litigation market” by developing their own cross-border business courts. This essay compares the prospects of the United States and Australia in this regard, focusing on whether it is possible (Section II), probable (Section III), and preferable (Section IV) for one or both of these two federalized, common law nations to develop an international commercial court as part of their national judicial systems. The inquiry is particularly intriguing given that one country (the United States) has had a somewhat uneven relationship with international engagements while the other (Australia) is maintaining or increasing its connections to the rest of the world. Although this discrepancy could be used to explain the relative status of the debate about international commercial courts, which is much more advanced in Australia than in the United States, it is also possible that the distinctions between the United States and Australia are motivated by other factors. While neither country appears poised to create an international commercial court at the moment, the current analysis helps identify the types of factors that policy-makers can and should consider when contemplating reforms of this nature.
Third-party funding, also known as “dispute finance,” is a controversial, dynamic, and evolving arrangement whereby an outside entity (“the funder”) finances the legal representation of a party involved in litigation or arbitration, whether domestically or internationally, on a non-recourse basis, meaning that the funder is not entitled to receive any money from the funded party if the case is unsuccessful. It has been documented in more than sixty countries on six continents worldwide—including in many of the jurisdictions highlighted in this symposium that are experimenting with other aspects of international commercial dispute resolution. Indeed, funding greases the wheels of this experimentation. The true prevalence of third-party funding is likely far greater than we know since disclosure is not presently mandated everywhere. This essay argues that the three biggest global regulatory issues with respect to dispute finance are disclosure, definition, and delegation of oversight and that the global laboratories of dispute finance remain firmly within the control of the private sector with the public regulators continuously struggling to understand and address new developments in the industry. An apt analogy would be that the dispute financiers are driving cars and building spaceships with respect to their innovative financing arrangements, while many of the regulators are aiming their sights at the classic “horse-and-buggy” third-party funding arrangements that are rapidly falling out of use.