The Rise of the International Commercial Court: A Threat to the Rule of Law?

Abstract

Recent years have seen the meteoric rise of the concept of an ‘international commercial court’ in numerous jurisdictions: for example, Dubai established the Dubai International Finance Centre Courts in 2004, Qatar followed suit in 2009 and similar courts have been set up since in Singapore, Kazakhstan, China, Germany, France and the Netherlands. Much work has been done discussing the practicalities of such courts but little thought seems to have been given to the theoretical justification for, and theoretical problems posed by, such courts. In general, such courts are justified on the basis of party autonomy; however, it is not at all clear that party autonomy is the only, or even the main, consideration in international dispute resolution. States also have a clear interest in ensuring that disputes are decided in their jurisdiction to further the development and viability of their own legal system. Other theoretical issues which arise regarding such courts include whether justice is a commodity which can be bought and sold and the potential use of such courts to ‘whitewash’ the serious rule of law concerns that exist in the ordinary courts of certain jurisdictions.

1. INTRODUCTION

Recent years have seen the mushrooming of specialist courts designed specifically to resolve, and often attract, international commercial disputes. These courts are commonly known as ‘international commercial courts’ and have been set up in jurisdictions all over the world including in Dubai,¹ Qatar,² Abu Dhabi,³ France,⁴ the Netherlands,⁵ Germany,⁶ Kazakhstan,⁷ China⁸ and Singapore.⁹ It can be seen from this, incomplete, list of disparate locations that international commercial courts have become a sort of must have ‘toy’ for any jurisdiction that either is, or aspires to be, a leading forum for resolving international commercial disputes. Unsurprisingly, this has led to a considerable amount of practice focused literature discussing the merits or demerits of the various international commercial courts,¹⁰ analyzing their rules¹¹ and comparing them with arbitration.¹² A smaller number of articles have also considered the theoretical challenges posed by such courts,¹³ and this article aims to add to their number.

There are three main theoretical problems posed by international commercial courts: (i) issues of sovereignty and rule of law, international commercial courts can be seen as impinging on the sovereignty of whichever state would otherwise hear a dispute, and undermining its rule of law, by removing cases from that state’s courts to itself; (ii) international commercial courts may be used as a form of ‘whitewashing’ to cover up issues in the ordinary courts, or legal system, which would otherwise trouble international businessmen; and (iii) international commercial courts are predicated on the idea that courts (and arguably even justice itself) are private goods, or products, to be bought and sold to the highest bidder. To address these problems, this article will be split into two main parts, the first will describe the features of a selection of international commercial courts chosen to reflect the diversity of said bodies, and the second will analyse each of the problems noted above in turn. The third and last part will summarize the article and conclude with some thoughts for the future. This article does not, however, analyse the deeper issues behind the commodification of justice itself and the reasons why States choose to engage, consciously or unconsciously, in this process. Instead, it limits itself to the context of international commercial courts and analyses the differing justifications states, and supporters of such courts, may provide for creating them.

2. THE CONCEPT OF INTERNATIONAL COMMERCIAL COURTS

As has already been discussed, there is significant geographical diversity when it comes to international commercial courts, and they have been set up everywhere from Singapore to Dubai and China to Germany, but we can also talk about a diversity of purpose when it comes to such courts. In other words, not every international commercial court was set up for the same reason, and this, in turn, leads to a diversity of type, one can divide the category of ‘international commercial court’ into sub-categories by type depending on their purpose (by which is meant, the reason for which they were set up). Before ‘deep diving’, however, it is worth discussing what all international commercial courts have in common: In general, international commercial courts tend to free those before them from local procedural idiosyncrasies. For example, they may allow the proceedings to be conducted completely in English rather than in the local tongue,¹⁴ they might not require foreign law to be proved,¹⁵ and they might allow parties to engage foreign lawyers where this would not ordinarily be permitted.¹⁶

The degree to which an international commercial court differs from local procedure is one means of categorizing such courts into different types, at one end of the spectrum there is the Paris International Commercial Court which, aside from allowing the proceedings to be conducted in English, does not appear to differ too substantially from ordinary French civil proceedings,¹⁷ and on the other, there is the Dubai International Finance Centre’s Courts (DIFC) which offer a common law enclave in otherwise civil law Dubai.¹⁸ One could also categorize such courts depending on whether they simply aim to attract judicial business, as is the case with the Frankfurt, Paris and Singapore International Commercial Courts, or whether they also aim to attract investment, as is the case with the DIFC, Qatar International Court and Dispute Resolution Centre and the Astana International Financial Centre Court. Lastly, one could categorize such courts into those which are largely extensions of a legal system which follows international rule of law standards (such as those in Frankfurt, Paris and the Netherlands) and those which are separate, and thus insulated, from a legal system which, arguably, does not follow international rule of law standards (such as those in Dubai, Qatar and Kazakhstan).

As will be discussed further on in this piece the latter types of international commercial courts are arguably engaged in a ‘whitewashing’ of the legal system as a whole by promising high-quality international rule of law compliant legal services to those before the international commercial courts, while giving those parties before the general courts a very different experience which is not in accordance with international standards. There is a degree of overlap between these standards because, as will be seen below, in general, the greater the difference between the international commercial court and the national legal system it is related to, the more likely it is that the court is involved in attracting investment or ‘whitewashing’ the jurisdiction as a whole. As a result, it makes sense to categorize courts by the degree to which they differ from the national legal system they are related to, and it is on that basis that all currently known international commercial courts will be discussed in turn below.

It is also worth noting that although each ‘type’ of international commercial court has specific justifications and goals, all have a common motivation: To attract contentious ‘business’ to their jurisdiction. All international commercial courts are engaged in a competition for market share in the international dispute resolution ‘market’ and are therefore predicated on the idea that justice is a ‘product’. This commodification was, as discussed, below not something invented by the proponents of international commercial courts, instead they merely built on the earlier work carried out by proponents of arbitration and ordinary domestic courts who were particularly successful in attracting international work, such as the High Court of England and Wales. The reasons why international commercial courts, and by extension states, wish to attract contentious business to their jurisdiction again vary but one is common to all of them, to generate wealth and bolster their economy. Several states view the legal sector, including the administration of justice, as a key part of their economies and as something that should therefore be promoted and supported as with any other sector of the economy.¹⁹ Although this is not, in and of itself, a bad thing the conflation of the broader legal sector with the administration of justice by the courts undermines the rule of law by commodifying public justice, as will be discussed below.

A. International Commercial Courts as Mere Tweaks of the Domestic Court System

All but one of these courts are European and thus a common preoccupation among many, but not all, of them is that of Brexit, to put it bluntly some of these courts (it would appear incorrectly) viewed Brexit as an opportunity to conduct a judicial land grab and put those troublesome Brits in their place by attracting cases which would otherwise go to the English courts.²⁰ In fairness, in many cases Brexit merely accelerated developments that had been ongoing for years and was not, in and of itself, the catalyst for the creation of many of the European international commercial courts.²¹ Indeed, the oldest of these courts, the Cologne English-speaking Senate was set up long before Brexit in 2010.²² One of the main issues faced by European courts outside England is that London very much acts as a black hole that attract any and all international commercial litigation proceedings towards it with few parties being strong-minded enough to escape its event horizon. This has led to French authorities stating that ‘In order to protect the sovereignty of our judicial system and for economic reasons… French courts with jurisdiction in various business law matters should [preserve] their authority and attractiveness [through] the quality of the services they provide’.²³ Equally, when discussing the setting up of the Netherlands Commercial Court (NCC), the Dutch Council for the Judiciary noted that:

while international trade by Dutch businesses had increased, the number of commercial cases with an international dimension for the Dutch courts had decreased considerably in the preceding years. … The reason for this decline is that in international business contracts the choice of the London Commercial Court as the competent court has become the default option.²⁴

Similarly, in the German context it has been stated that ‘While the overwhelming impression within Germany until recently has been that the justice system was performing well and that domestic litigants usually chose German courts, practice revealed a different reality. According to published case law of the High Court of London, a considerable number of German parties have been bringing their disputes before London courts…’²⁵

Despite the sobering reality that their own courts are consistently losing cases to the English courts, the response of the judiciaries in France, Germany and the Netherlands has not been to carry out major surgery on their own judicial systems but rather to do a bit of nip and tuck. For example, the Frankfurt International Commercial Court (FICC—technically the ‘Chamber for International Commercial Disputes’) still follows the German Code of Civil Procedure, as with any other German Civil Court, with the only apparent change being that ‘The hearings [are] held in English’.²⁶ The situation would appear to be much the same for other German International Commercial Courts such as the Cologne English-speaking senate,²⁷ the Hamburg English-Speaking Civil Division and Commercial Division,²⁸ and the International Chambers at the Regional Court of Berlin (which also allow for proceedings to be heard in French).²⁹ The situation of the Paris International Commercial Court (ICPCC) is much the same with one article stating that ‘The use of the English language is certainly one of the most innovative features of the French international commercial courts.’³⁰ Here again, the general Code of Civil Procedure applies, although it would appear that certain court protocols modify its application so that ‘Inspired by the common law tradition, the format of hearings is likely to change significantly’.³¹ It is unclear whether this has actually happened and as a result there does not seem to be a great difference between the ordinary French courts and the Paris International Commercial Court. At first glance, the situation appears to be slightly different with the Netherlands International Commercial Court as ‘Although the common Dutch procedural Law (the Dutch Code of Civil Procedure)… will apply in full in NCC cases, additional special rules of procedure were drawn up for the proceedings at the NCC: the NCC rules.’³² However, as noted by one article ‘the rules [only] deviate somewhat from the rules of procedure for other commercial civil cases’.³³ It is, therefore, clear that as with the Paris and Frankfurt courts, the Netherlands International Commercial Court has opted for to carry out minor tweaks rather than a major revision of their existing judicial system.

The non-European example of an international commercial court that has opted for the minor revision approach is the China International Commercial Court (CICC). The CICC was established by the Chinese Supreme People’s Court (SPC) in 2018 as part of China’s ‘Belt and Road Initiative’³⁴ in order to:

…try international commercial cases fairly and timely in accordance with the law, protect the lawful rights and interests of the Chinese and foreign parties equally, create a stable, fair, transparent, and convenient rule of law international business environment, and provide services and protection for the “Belt & Road” construction.³⁵

The CICC attempts to differentiate itself from domestic Chinese courts through the international qualifications of its judges by providing that ‘Judges of the International Commercial Court shall be selected and appointed by the Supreme People’s Court from the senior judges who are experienced in trial work, familiar with international treaties, international usages, and international trade and investment practices, and capable of using Chinese and English proficiently as working languages.’³⁶ As with other international commercial courts, the CICC also has special provisions regarding proof of foreign law ruling that it can, inter alia, be provided by the parties, provided by a legal expert, provided by a member of the International Commercial Expert Committee, or other reasonable ways to find the law.³⁷ However, the CICC differs significantly even from other minor revision international commercial courts in that the proceedings cannot be conducted in English but rather must be conducted in Chinese and non-Chinese evidential documents must be translated unless the opposing party waives this requirement.³⁸ It also differs in that whilst, unlike courts discussed below, the bench is not international it does have an international experts committee which can, among other things:

(2) provide advisory opinions on specialized legal issues concerning international treaties, international commercial rules, finding and applying foreign laws;

(3) provide advice and suggestions on the development of the International Commercial Court;

(4) provide advice and suggestions on the formulation of judicial interpretations and judicial policies …³⁹

In theory, this international committee should significantly internationalize the CICC but it is unclear how much influence it will actually have over CICC judges, thus it is unclear how far they will actually internationalize the court. In any event given that proceedings are held in Chinese and governed by the ordinary procedural code,⁴⁰ as with the other international commercial courts mentioned above, it appears clear that the CICC amounts to only a slightly more international domestic court rather than a genuinely international commercial court.

In conclusion then one can say that, in general, courts that see themselves as merely tweaks of the existing judicial system do not tend to do more than allow proceedings to be heard, at least partly, in English, adopt more liberal evidentiary rules, employ judges with specific international commercial skills, and often competence in English as well as their mother tongue, and potentially adopt a slightly more common law approach to the proceedings. In terms of statistics, it is unclear how many cases the ICPCC has handled as it does not appear to release this information, with regards to the NCC it has released 11 judgments as at the time of writing,⁴¹ and the CICC had heard five cases as at the end of 2019.⁴² As regards German international commercial courts it is not clear how many cases the Cologne English-speaking Senate or Berlin International Commercial Court have heard as it does not appear to have released any, whilst the FICC had only heard one case as of 2021.⁴³

In terms of a common justification for such courts, it is suggested that this lies in a desire to protect the sovereignty of the mother jurisdiction of each international commercial court. It is clear that the European international commercial courts were motivated by concerns that the English High Court’s extraordinary success in attracting contentious ‘work’, and English law’s success more generally in making it the preferred applicable law globally, were undermining their own legal systems and thereby their ‘legal sovereignty’. In the case of the China International Commercial Court the evidence is less explicit, but, considering China’s well-documented emphasis on state sovereignty⁴⁴ and the Belt and Road project generally, it is also reasonable to view the development of the court as an attempt to maintain control over disputes concerning the Belt and Road project which would otherwise go to international arbitration or foreign courts.⁴⁵

B. International Commercial Courts as Truly International Courts

Arguably, the only example of a truly international commercial court that does not operate in an enclave, is the Singapore International Commercial Court (SICC). As with those international commercial courts which have already been discussed, the SICC was founded to attract dispute resolution business to its jurisdiction.⁴⁶ However, unlike the international commercial courts discussed above, the SICC was not founded as a response to the English High Court hearing cases that would otherwise have been heard in Singapore, or as a response to Brexit. Rather the SICC was founded to advance the Singapore government’s longstanding aim to turn Singapore into an Asian dispute resolution hub.⁴⁷ The SICC also differs significantly from the ordinary Singapore courts as ‘court proceedings may be confidential… parties may apply for an order to replace Singapore evidential rules with other rules of evidence; a party may apply to have a question of foreign law determined on the basis of submissions rather than proof; parties may contract out or limit their rights to appeal; and a simplified discovery regime is adopted.’⁴⁸ Probably, the most innovative feature of the SICC is the use of the so-called ‘international judges’, these are foreign judges who are appointed for a fixed term and assigned to cases on an ad hoc basis by the Chief Justice.⁴⁹ These judges come from all over the world, including Australia, England, France, Japan, Canada and India,⁵⁰ and therefore significantly internationalize the SICC judicial bench. It would appear that such judges are not a mere gimmick as a 2019 study into the SICC showed that they were heavily used in cases before the court,⁵¹ and it is, therefore, clear that they are ‘a distinctive capability of the SICC’.⁵² It is for this reason that I refer to the SICC as a ‘truly international commercial court’ although, as will be seen below, there are courts that internationalize themselves even further by becoming ‘international enclaves’ in their mother jurisdiction. In any event, the SICC clearly has sufficient differences from the ordinary Singaporean judicial system to be an attractive alternative for parties who were considering litigating their disputes. It does not appear that the SICC releases statistics in the same way as other courts do but, going off the announcements of new judgments, it would appear that the SICC has heard approximately 70 cases at the time of writing,⁵³ and this puts it significantly ahead of all the international commercial courts discussed so far.

In terms of the justification or goal of the SICC it would appear that it aims at the same thing all international commercial courts do, to attract judicial ‘business’ to its jurisdiction, but at a higher level. This is because it is part of Singapore’s strategy to turn itself, or perhaps continue its role as, Asia’s premiere dispute resolution hub.⁵⁴ Indeed, in some respects, it aims to go even further by promoting Singapore law generally with regards to contracts concluded in the region.⁵⁵ In this respect, the SICC is, as already discussed above for other reasons, unique among international commercial courts.

C. International Commercial Courts as International Enclaves

These courts all exist in ‘free zones’ in various countries, such as the DIFC, the Qatar International Court and Dispute Resolution Centre (QICDRC), the Abu Dhabi Global Markets Courts (ADGMC) and the Astana International Financial Centre Court (AIFC). What makes these courts unique is that they are common law enclaves in otherwise civil law systems, and, in theory, the judicial systems of each are separate from the judicial system which governs the country as a whole. The means by which this ‘carving out’ of the free zone from the country which brought them forth is achieved depends on the jurisdiction in question, for example, the ADGM Application of English Law Regulations 2015 provides that:

1. The common law of England (including the principles and rules of equity), as it stands from time to time, shall apply and have legal force in, and form part of the law of, the Abu Dhabi Global Market –

   • So far as it is applicable to the circumstances of the Abu Dhabi Global Market;

   • Subject to such modifications as those circumstances require;

   • Subject to any amendment thereof (whenever made) pursuant to any Abu Dhabi Global Market enactment; and

   • Notwithstanding any amendment thereof as part of the law of England made pursuant to an Act or any legislative instrument adopted thereunder at any time after the date of enactment of these Regulations, which amendment shall not apply and have legal force in, or form part of the law of, the Abu Dhabi Global Market, unless and until an Abu Dhabi Global Market enactment expressly provides that it applies and has legal force in, and forms part of the law of, the Abu Dhabi Global Market.⁵⁶

The DIFC adopts a different approach and does not directly adopt English law, with its ‘Law on the Application of Civil and Commercial Laws in the DIFC’ taking a choice of law approach and specifying that the law of the ‘Chosen jurisdiction’ will apply. The determination of the chosen law is done by applying a hierarchical list of potentially applicable laws with each only applying if the preceding option does not apply. The list is as follows: (i) DIFC law, (ii) any law expressly chosen by the DIFC, (iii) any law chosen by the parties, (iv) the most closely connected law, and (v) the law of England and Wales.

The QICDRC similarly carves out an enclave, though unlike the DIFC and ADGMC it only does so on the basis of its own Qatar Financial Centre (QFC) regulations and does not refer to English law at all. Instead, the relevant law merely provides that ‘Without prejudice to clause (1) of this, (as opposed to criminal matters) The QFC Authorities and Institutions shall exercise their activities in accordance with the QFC Laws and Regulations.’⁵⁷ Lastly, the AIFC has adopted an approach broadly similar to the DIFC, albeit with more reference to English law, providing that "the relevant laws are...": (i) The AIFC Constitutional Statute; (ii) AIFC Acts not inconsistent with the Constitutional Statute and which may be based on English law and ‘the standards of leading global financial centres adopted by AIFC bodies’; and (iii) Kazahk law which applies, in part, to matters not governed by the Constitutional Statute and AIFC Acts.⁵⁸

As with the SICC, all of these courts also have international judges, usually from common law (and commonwealth) jurisdictions, with the QICDRC having several civil law judges and the DIFC having several, albeit Dubai and not international, civil law judges. Again, as with the SICC, the provisions regarding proof of foreign law appear to be more liberal than in domestic courts: for example, in a case concerning how foreign law was to be proved in court the DIFC Court of Appeal ruled that ‘the DIFC Courts possess the discretion to apply rules of evidence they consider appropriate in the circumstances, and are not bound by the rules as prescribed in either DIFC law or English law.’⁵⁹ It is therefore fair to say that international commercial courts which act as international enclaves have many, and possibly all, of the advantages of the SICC as well as many additional advantages of their own. This potentially makes them very attractive alternatives to litigating in their mother jurisdictions, as well as perhaps other middle eastern courts generally and arbitration, but it is unclear if the yearly caseload bears out this view. For example, the DIFC Courts had just over 120 cases in 2020⁶⁰ whilst the QICDRC had 30,⁶¹ and the AIFC has only resolved 15 cases to date.⁶² As for the ADGMC, it does not appear to have released statistics so the situation is relatively unclear.

In terms of why the mother jurisdictions of international enclave ICC’s chose to develop them it is clear that the primary justification for their existence lies in a desire to attract investment. This investment is not so much into their legal sector, although that may well be a side-effect, but rather into their economy as a whole. This is proven by the fact that such courts are attached to broader international enclaves, or ‘free zones’, the raison d’être of which is to attract investments which would not otherwise be made by offering benefits, or favourable legal policies, which are not available in the mother jurisdiction.⁶³ The mechanism by which they do this is broadly comparable to that by which investment treaties are argued to attract investment, by providing additional legal security to investors who can take their disputes to a ‘neutral’ forum where, allegedly, neither they nor the host state will have a home state advantage.

3. THEORETICAL PROBLEMS POSED BY INTERNATIONAL COMMERCIAL COURTS

There are two main categories of theoretical problems posed by international commercial courts:

• Issues of sovereignty, this includes the following sub-categories:

  • States loss of their ability to develop their laws by determining certain kinds of disputes;

  • Incidental weakening of a state’s judiciary and bar.

• Ethical issues, this includes the following sub-categories:

  • International commercial courts as whitewashing;

  • The use of courts, and justice itself, as a product.

Each of these categories will be discussed in turn below and although many of the issues discussed above may apply to all international commercial courts some may apply only to specific categories of international commercial courts.

A. Issues of Sovereignty

Sovereignty is undoubtedly one of the most important ideas in modern international law and politics, it is enshrined in Article 2(1) of the UN Charter and has been described as ‘a cornerstone of modern politics around the world’.⁶⁴ It has also been invoked in many of the biggest international law controversies in recent years, including Brexit,⁶⁵ the backlash against international investment law (as well as more nuanced attempts to reform it),⁶⁶ former President Trump’s withdrawal from the Paris Accord,⁶⁷ States responses to the Covid-19 crisis (one thinks in particular of the numerous remarkable border closures worldwide),⁶⁸ and many others. However, even if sovereignty is important it might be thought odd to presume that the issue of international commercial courts, even if it were controversial, could reach such dizzying heights as the aforesaid subjects. This is all the more the case given that party autonomy, which underlies the concept of international commercial courts, ‘is generally considered as a universally accepted bedrock principle of the international law of contractual obligations’⁶⁹ and ‘the dominant instrument in the private international law of both Europe and the United States’.⁷⁰ Similarly, numerous international treaties are undergirded by the principle of party autonomy including the New York Arbitration Convention,⁷¹ the Singapore Mediation Convention,⁷² the 2005 Hague Convention on Choice of Court Agreements,⁷³ the 2019 Hague Judgments Convention,⁷⁴ the 1985 Hague Trusts Convention,⁷⁵ the United Nations Convention on Contracts for the International Sale of Goods⁷⁶ and many more. One could also mention the UNCITRAL Model Law on Commercial Arbitration⁷⁷ and the UNIDROIT Principles of International Commercial Contracts⁷⁸ as influential soft law instruments which embody the principle of party autonomy. It might therefore be argued that even if sovereignty is important, concerns regarding it only arise in public law matters and not in private law matters. Certainly, it does not appear that those proposing, or leading, international commercial courts consider that their courts have any impact on sovereignty.⁷⁹ Consequently, it would seem that, perhaps as international commercial courts fundamentally deal with private law matters, those involved in the debate simply don’t believe they raise any fundamental issues of sovereignty.

However, the issue of party autonomy is not as simple as it is often made out to be. For one thing ‘its theoretical foundations continue to remain elusive’⁸⁰ and for another, when one speaks of ‘the freedom of party autonomy’ one must ask: freedom for who? As was pointed out by a seminal 1990 Ibero-American book on the subject:

In [certain situations] the more powerful party imposes their terms on the weaker party via contracts of adhesion or simply by eliminating all possibility of choice. This problem of abusive terms in the case of unequal bargaining is especially serious with regards to choice of forum clauses, because it can result in the denial of justice. This occurs when litigating a choice in the forum imposed by the relevant clause results -for the party who was forced to agree to the clause – more onerous than the amount in dispute. Accepting the validity of the clause in such situations would result in a denial of justice.⁸¹

The learned author notes that ‘this problem has special relevance in relation to those international contracts between a party of a developing state and a party of a developed state’.⁸² This scepticism with regards to the choice of foreign forums is of long standing in Ibero-America as a result of the famous Argentine jurist, Carlos Calvo, who developed what became known as the ‘Calvo Doctrine’. Calvo’s magnum opus is his ‘Le droit international theorique et pratique’ (originally published in Spanish as ‘Derecho Internacional Teorico y Practicio de Europa y America’). The work strongly emphasizes the link between the right to legislate on its territory and sovereignty noting that a State without such rights ‘would be, in a word, completely moribund, from the point of view of the law of nations’.⁸³ In turn he argues that States have the right, and the duty, to ‘regulate and determine all civil and criminal disputes [on their territory]… as well determine the procedure which must be followed to enforce ones rights and the means by which justice will be administered’.⁸⁴ Elsewhere, he complains bitterly that foreigners recourse to the courts, or diplomatic personnel, of their home states in the case of any dispute with a foreign state necessarily led to stronger states bullying weaker states and undermined a key element of the independence of states, territorial jurisdiction, given that all such disputes ‘are, both because of their nature and of the circumstances which give rise to them, subject to the exclusive jurisdiction of [a state’s] ordinary tribunals’.⁸⁵

The above statements, among others, in Calvo’s work lead to the development of the ‘Calvo Doctrine’ and ‘Calvo Clauses’ which provide that ‘aliens shall resort to local remedies or the settlement of disputes arising under the contract, and shall further waive the diplomatic intervention of his own government.’⁸⁶ Such clauses can be placed not just in contracts but also in the constitutions of States,⁸⁷ and, although it seemed that the doctrine had fallen into desuetude in recent years,⁸⁸ the suggestion of including similar provisions during the drafting process of the new Chilean constitution suggests that Calvo’s ideas remain highly influential in Ibero-America.⁸⁹ Although Calvo’s doctrine is most directly applicable to disputes with foreign investors, it is clear that it also has implications for choice of forum generally (as indeed Aguirre’s work above shows). The link between sovereignty and the right to decide disputes arising in a state has also been recognized outside Ibero-America: for example, in the seminal Australian case of Hudart Parker and Co Prop Limited v Moorhead⁹⁰ the court defined the term ‘Judicial Power’ under the Australian constitution as ‘the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or property.’⁹¹ More recently, and as will be discussed below, the issue has arisen in developed states, both with regards to employment and consumer contracts⁹² as well as commercial contracts.⁹³ Indeed, it is worth noting that concerns about sovereignty lay behind the creation of some international commercial courts, namely the PICC⁹⁴ and NCC.⁹⁵ Consequently, it is clear that although party autonomy is an important value in commercial law, and conflict of laws generally, sovereignty in the form of states power both to legislate and decide disputes which arise on their territory is an equally important, and potentially competing, value. In this context international commercial courts pose two particular challenges for state sovereignty: (i) States loss of ability to develop their law by deciding certain cases and (ii) incidental weakening of a State’s judiciary and bar. Each of these challenges will be addressed in turn below.

(i) States inability to interpret and develop their laws

The argument here is that as a result of disputes being decided by other states’ courts, certain states lose the opportunity to develop their law as important cases simply do not come before their courts and those courts cannot, therefore, interpret (or reinterpret) the laws or legal rules in question. As noted by the Canadian Supreme Court (SCC) in the case of Douez v Facebook:

…forum selection clauses divert public adjudication of matters out of the provinces, and court adjudication in each province is a public good. Courts are not merely “law-making and applying venues”; they are institutions of “public norm generation and legitimation, which guide the formation and understanding of relationships in pluralistic and democratic societies”…Everyone has a right to bring claims before the courts, and these courts have an obligation to hear and determine these matters.⁹⁶

In that case, the SCC refused to enforce a Californian choice of forum clause in Facebook’s terms and conditions due to concerns that enforcing the clause would undermine Canadian privacy legislation.⁹⁷ The idea of public litigation being a public good has also been accepted in the commercial context by the former Lord Chief Justice of England and Wales, the Right Hon. The Lord Thomas of Cwmgiedd who developing his views in a lecture entitled ‘Developing commercial law through the courts: rebalancing the relationship between the courts and arbitration’. Lord Thomas argued that:

The effect of the diminishing number of appeals [from arbitral decisions] compounds the problem that arises from the diversion of more claims from the courts to arbitration. It reduces the potential for the courts to develop and explain the law. This consequence provides fertile ground for transforming the common law from a living instrument into, as Lord Toulson put it in a different context, ‘an ossuary’.⁹⁸

In particular, his Lordship noted that ‘across many sectors of law traditionally developed in London, particularly relating to the construction industry, engineering, shipping, insurance and commodities, there is a real concern… at the lack of case law on standard form contracts and on changes in commercial practice.’⁹⁹ Proponents of international commercial courts have themselves noted these issues with regards to international commercial arbitration¹⁰⁰ but argue that such courts address these criticisms because, unlike arbitral tribunals, they can ‘develop a consistent body of [published] jurisprudence…[which] may have implications (in terms of persuasive authority) in other jurisdictions.’¹⁰¹ However, these distinctions do not prevent such courts from posing similar issues for legal systems as arbitration, because the legal context of an international commercial court is likely to be totally different from that of the court from which the case has been diverted, this could be due to differences in procedural or substantive law, or simply due to differences in legal culture. As a result, the international commercial court may interpret or develop the law in a way different to, and possibly even incompatibly, from the way in which the other court may have wished to interpret or develop the law.

An infamous example of the difference legal culture makes can be found in the Dallah litigation where the UK Supreme Court¹⁰² and the Paris Court of Appeal¹⁰³ both applied French law and yet came to opposite conclusions about whether a party was bound to an arbitration agreement. Similar concerns motivated the SCC’s decision in Douez v Facebook¹⁰⁴ with the court stating that:

…even assuming that a California court could or would apply the Privacy Act, the interests of justice… support having the action adjudicated by the British Columbia Supreme Court. This court, as compared to a California one, is better placed to assess the purpose and intent of the legislation and to decide whether public policy or legislative intent prevents parties from opting out of rights created by the Privacy Act through a choice of law clause in favour of a foreign jurisdiction.¹⁰⁵

In some respects, this argument is not particularly convincing when it comes to international commercial courts because, as we have seen, these courts simply do not have a particularly large caseload and thus they arguably cannot currently be said to prevent any particular state from interpreting or developing their law by deciding large numbers of such cases themselves. On the other hand, this argument may well have more force with regards to national courts which hear high numbers of international commercial cases and potentially divert them from other national courts. The most obvious example of this is the High Court of England and Wales which, as discussed above, hears so many international commercial cases which would otherwise be heard elsewhere that the NCC, PICC and FICC were all set up to retain business in each respective jurisdiction.

However, the argument may well still be valid even with regards to international commercial courts as it is the quality and not just the quantity of cases that those courts hear that matters. The issue here is two-fold, first arbitration has already taken many complex and legally interesting cases away from domestic courts and, secondly, international commercial courts have been sold by their proponents as being away to take away cases which, despite being complex and legally interesting, are, for one reason or another, not suitable for arbitration. For example, Sundaresh Menon notes the problem of bringing multi-party cases before arbitration given that some parties may not have consented to arbitration, and argues that the coercive power of international commercial courts makes them a better means of resolving those disputes.¹⁰⁶ In consequence, there is a possibility that international commercial courts become the straw that broke the camel’s back by taking some of the few remaining ‘holdout’ commercial disputes which used to remain in state courts because of arbitration’s limitations.

Although it is likely too early to tell whether international commercial courts are actually doing this, it is certainly true that they are attracting large numbers of complex and high-value commercial cases. For example, the total value of cases before the DIFC in 2020 was approximately US$23 billion with an average value of over US$20 million.¹⁰⁷ If we compare that to the Singapore International Arbitration Centre (SIAC), which is one of the world’s leading arbitral institutions,¹⁰⁸ the DIFC would seem to be, at least, in the same ballpark, as the total value of all new disputes filed before SIAC was US$8.49 billion with an average value per dispute of US$19.65 million.

(ii) Incidental weakening of a state’s judiciary and bar

What happens when skills and expertise in particular areas of law are eroded or lost due to a continuing emigration of lawyers and would-be judges in certain areas of law? This is the question that the Dutch Council for the Judiciary posed itself when it decided to embark on the project of creating the Netherlands Commercial Court. It noted that:

Large, complex international trade cases are increasingly being heard by foreign judges or by means of international arbitration. The disadvantage of this is that the existing knowledge and experience of the judiciary with large international trade cases is used less and less. This has a self-reinforcing effect, because as a result Dutch companies and lawyers increasingly opt for foreign judges or arbitration.¹⁰⁹

Similar concerns also lay behind the creation of international commercial courts in France¹¹⁰ and Germany.¹¹¹ In many respects, this issue is similar to that of courts potentially being unable to interpret or develop the law in certain areas due to international commercial courts diverting cases to their own dockets. Here, however, the concern is not that the diversion will lead to courts failing to interpret or develop the law but rather to a loss of experience and knowledge due to the limited number of cases that come before them. This in turn could damage the legal community more broadly as it makes ‘the total ‘work package’ of judges less interesting [and] this is certainly not an advantage when courts want to attract the best lawyers. [Moreover] Dutch courts already have difficulties recruiting new judges’.¹¹² Similarly, problems could arise with regards to the number of Dutch lawyers with experience in litigating such cases as competent and ambitious Dutch lawyers might simply emigrate abroad to a jurisdiction that hears more such cases or practice solely in arbitration as opposed to litigation. One can see therefore that the lack of international commercial cases might lead to a disastrous domino effect through the legal ecosystem as a whole which seriously undermines it. The Dutch response to this problem was, as discussed above, to fight fire with fire by ‘[creating]… a specialised court with excellent modern facilities and by offering the possibility to litigate in English, [and enabling] the Dutch Judiciary… to compete with other legal systems in international commercial cases’.¹¹³ As already discussed, it is questionable whether the NCC will ever truly be able to complete with the English High Court, or arbitration, and what is really needed is to address the root cause of these problems: an excessive idolization of party autonomy.

It needs to be considered that just because a party chooses a particular jurisdiction this does not mean that their choice of forum should be considered valid unless other grounds are present, such as, using the example of some of the English ‘jurisdictional gateways’ (albeit in a significantly more restrained way than the English courts interpret them) that ‘A claim is made for a remedy against a person domiciled within the jurisdiction’¹¹⁴ or that ‘A claim is made for an injunction(GL) ordering the defendant to do or refrain from doing an act within the jurisdiction.’¹¹⁵ It is unclear whether such a development is likely in the short term in the European Union (EU) given that Article 25 of the Brussels I (Recast) Regulation enshrines the concept of party autonomy providing that ‘If the parties, regardless of their domicile, have agreed that a court or the courts of a Member State are to have jurisdiction to settle any disputes… that court or those courts shall have jurisdiction, unless the agreement is null and void as to its substantive validity under the law of that Member State….’¹¹⁶ On the other hand, the Court of Justice of the European Union (CJEU) has arguably emphasized the autonomy of EU law over party autonomy in its line of cases addressing investment arbitration.¹¹⁷ It is not impossible to see concerns about investment arbitration bleeding into concerns about commercial arbitration, and eventually commercial litigation. In any event, as Article 25 of the Brussels I (Recast) only applies as regards litigation in EU states it would not be impossible for European states to devise different policies regarding international commercial courts in non-EU states, whether that be the UK or courts further afield. At that stage, the issue of the Hague Choice of Court¹¹⁸ and Hague Judgments Convention¹¹⁹ would come to the fore, but both are considerably more flexible than the Brussels regime.

It is also worth noting that, ironically, the courts of England and Wales are having similar problems due to the growing salary gap between private practice and work as a judge. In particular, the alternative of working as an arbitrator is seen to pose a challenge to recruiting commercial and chancery lawyers. As noted by a report on judicial appointments ‘attracting commercial and Chancery lawyers poses very distinctive problems. Their earnings are very significantly higher than judges. Their work as practitioners is typically High Court work and both complex and highly remunerated. Many will have the option of working as arbitrators at home or abroad.’¹²⁰ One can therefore see that the problem of judicial recruitment is not unique to the Dutch courts but exists even for the ‘world leader’ in international commercial litigation. Moreover, the salary gap issue may well be relevant in the context of international commercial courts: if the salaries of those courts are significantly more attractive than working for national courts senior lawyers may well choose to work as a judge for those courts rather than as a judge for one’s own court system. The problem is also cumulative, in other words, one might well be appointed as a judge in multiple international commercial courts and therefore receive a significantly higher salary than if one was merely a judge of one’s own national courts. This is not merely a theoretical possibility but has in fact happened for example, Sir Jeremy Cooke was appointed as a judge both of the DIFC¹²¹ and the SICC.¹²² Alternatively, one might decide to supplement one’s work as an international commercial judge with arbitral appointments as the former Chief Justice of the DIFC, Michael Hwang SC, appears to have done in the context of investment arbitration.¹²³ In conclusion, the possibility that obtaining a higher salary as an international commercial court judge might, at least together with other factors such as more interesting and complex work, dissuade lawyers from becoming judges of their own national courts does not appear to be fanciful. We can therefore sensibly speak of international commercial courts, particularly in combination with international arbitration, having the potential to incidentally weaken both the judiciary and bar of other nation states.

(iii) International commercial courts as whitewashing

As discussed above some international commercial courts are based in jurisdictions with legal and political systems that, arguably, differ from international norms. For example, the AIFC is based in Kazakhstan where the ‘significant human rights issues included: unlawful or arbitrary killing by or on behalf of the government; torture by and on behalf of the government; political prisoners; problems with the independence of the judiciary; restrictions on free expression… interference with the rights of peaceful assembly and freedom of association… corruption; [and] trafficking in persons.’¹²⁴ Recent protests against the government in Kazakhstan have also led to several hundred deaths,¹²⁵ and the president is reported to have given a shoot to kill order regarding protestors.¹²⁶ The AIFC itself was not completely isolated from the unrest with the author being unable to access its website for several hours, likely due to internet blackouts imposed by the Kazakhstan government.¹²⁷ It is notable that despite all this chaos one of the governments key concerns was to ‘take every possible measure to restore the confidence of domestic and foreign investors and trade partners in Kazakh economy. All Kazakhstan’s obligations and guarantees to investors will be strictly followed and fulfilled.’¹²⁸

It is obvious that parties are not likely to be attracted to litigating in a jurisdiction with numerous serious human rights violations, widespread corruption and a non-independent judiciary. It is here that the AIFC plays a role as it clearly wants to set itself apart from Kazakhstan generally, with its website proclaiming that it is ‘an independent common law court operating to the highest international standards’.¹²⁹ Elsewhere, it states that ‘The AIFC Court and IAC continued, as independent self-managed institutions that give final decisions which cannot be overturned by any court in the Republic of Kazakhstan.’¹³⁰ Another way in which the AIFC attempts to set itself apart from Kazakhstan courts is through its appointment of internationally known and respected retired judges or lawyers to its bench, for example, the Rt. Hon. The Lord Mance, a former UK Supreme Court Judge, is the current Chief Justice¹³¹ and several other English judges and barristers have also been appointed.¹³²

Similarly, the State Department report for the UAE (which includes Dubai and Abu Dhabi) noted that ‘Significant human rights issues included: torture in detention; arbitrary arrest and detention, including incommunicado detention, by government agents; political prisoners; government interference with privacy rights; undue restrictions on free expression and the press, including criminalization of libel, censorship, and Internet site blocking.’¹³³ As with the AIFC, the DIFC attempts to distinguish itself from the Dubai legal system more generally with a retrospective book on the DIFC noting that:

Dubai’s government leaders have promoted the DIFC Courts with great enthusiasm. Western common law and Western legal principles are used, as is English, in order to make the DIFC Courts accessible to global professionals. Furthermore, the judges of the DIFC Courts (on both the Court of First Instance and Court of Appeal) are internationally respected…They are to serve as an accessible Western-style judicial system within this Arab-Gulf monarchy.¹³⁴

It might be thought that the existence of the DIFC as a separate legal jurisdiction from Dubai as a whole means that investors and international businesses should not be too concerned about the flaws in Dubai’s legal system, but they should be aware that the lines between civil and criminal are easily blurred. For example, what happens if you are involved in an alleged fraud trial in the DIFC and the Dubai courts? Well, you might end up being repeatedly tortured in jail as David Haigh did.¹³⁵ Will the ‘independent’¹³⁶ and ‘internationally respected’¹³⁷ judges of the DIFC come to your assistance in such a case? No, they will not. David Haigh discovered this to his cost, he states that:

I wrote to the Difc court on many occasions, providing graphic details of the abuse I was suffering while waiting for them to hear my case, and telling how police and officials were trampling over the legal process. After all, it is a matter of national and international law, as well as a moral imperative, that if a judge is presented with allegations of ill-treatment in custody, there is an obligation to investigate. My complaints, however, fell on deaf ears and I was completely ignored.¹³⁸

This, fundamentally, is the problem with these types of international commercial courts and what is meant by the term ‘whitewashing’. Such courts are used to attract international investors by pretending that if they litigate before X court they will have all the legal rights they are used to in litigation before their courts, but in reality if, as is easily possible in cases involving allegations of corporate misdoing, civil fraud and so on, they fall into the hands of the general justice system they will be sucked into a noxious quagmire of corruption and abuse and the international commercial court which eagerly sought their business will wash its hands of them. There is also a certain degree of unreality in all such courts, they cannot claim to be ‘independent’ in an absolute monarchy or dictatorship where the ruler can abolish the court with a click of his finger. These sorts of events do happen: for example, the DIFC–London Court of International Arbitration (LCIA) centre was abolished on 20 September 2021 and all its assets were transferred to a new ‘Dubai International Arbitration Centre’. Although the DIFC–LCIA was a joint venture with the LCIA it was not consulted or given any notice of this series of events.¹³⁹ Who is to say that such a thing could not happen to the DIFC Courts themselves? The independence of such international commercial courts is therefore arguably nothing but a mirage.

It is also worth questioning the role of international judges appointed to such courts. Are international judges who are paid significant salaries and receive prestige by appointment on such panels likely to criticize the rampant human rights abuses present in their jurisdiction or, rather, are they likely to adopt a ‘hear no evil, see no evil, speak no evil’ approach? Given that such judges lend legitimacy to international commercial courts, and that their legitimacy comes from roles as judiciary in their home jurisdiction, questions have to be asked about whether it is appropriate for judges to be appointed to such courts. In the case of retired judges, it is unclear why they should be able to benefit from titles granted to them during their role as judges in, for example, England, to obtain lucrative work abroad in a jurisdiction that engages in behaviour contrary to English law and public policy. This issue has arisen for international judges accepting appointments to the Hong Kong Court of Final Appeal,¹⁴⁰ but the problem is as, if not more, pressing for international commercial courts such as the DIFC, QICDRC, ADGMC and the AIFC where there are significant human rights abuses in the mother jurisdiction, as well as a complete lack of an independent judiciary and extensive corruption, and the use of foreign judges as ‘judicial mercenaries’ is significantly more blatant.

Despite these realities proponents of international commercial courts argue that ‘They represent… an avenue for the advancement of the rule of law as a normative ideal in global commerce. This is because there will be greater external scrutiny of their decisions and processes, with increased pressure to justify decisions against international norms.’¹⁴¹ Other ways in which they are argued to further the rule of law include by improving access to justice¹⁴² and by enabling the development of a publicly accessible body of jurisprudence as regards cases that come before them.¹⁴³ None of the above arguments are convincing. The fundamental problem is that even if such courts might further the application of international law standards with regards to commercial law, or at most civil law generally, they do not do so with regards to other areas of law. For example, as noted above, a party may have civil fraud proceedings brought against them in the DIFC Courts, which are supposedly compliant with international law standards, and yet simultaneously be tortured in a Dubai jail for a criminal complaint with regards to the same alleged fraud. In consequence, such courts do not address many of the human rights concerns in their respective ‘mother’ jurisdictions discussed above and thereby violate the late Tom Bingham’s fourth sub-rule of the rule of law which requires that, ‘the law must afford adequate protection of fundamental human rights.’¹⁴⁴ A further issue is that, as many of these jurisdictions are governed by absolute rulers, the law of such jurisdictions can neither be said to be stable nor to bind all equally, as the ruler can change the law at any moment and it cannot credibly be argued that it binds him. This in turn means such international commercial courts also offend the core of the rule of law principle which requires that ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts.’¹⁴⁵

Consequently, these courts, and their proponents, claims of promising an independent common law judiciary ‘operating to the highest international standards’ are, at best, being disingenuous and, at worst, either naïve or deliberately shutting their eyes to the realities of their situation. As a result, they are not only whitewashing themselves, by attempting to illegitimately borrow the legitimacy of genuinely independent common law courts which conform to the rule of law, but are also attempting to whitewash their ‘mother’ jurisdiction by attempting to conceal the serious rule of law problems of their ‘mother’ jurisdiction from foreigners and the international business community as a whole. In reality though such courts can never be more than a fig leaf which can only cover up such concerns with regards to commercial matters, and even then are not always successful (as with the forced merger of the DIFC–LCIA and the DIAC discussed above, as well as the fraud trial of David Haigh). Unfortunately, however, this reality is not recognized by the Judiciary with the current English Chief Justice viewing the appointment of retired judges to such courts as a good thing as it ‘is a consequence of an appreciation of the independence, impartiality and high quality of the judiciary which itself reflects our country’s commitment to the rule of law.’¹⁴⁶ Oddly, given the current controversy in Hong Kong, the Chief Justice at no point appeared to consider whether the appointment of retired judges to ‘whitewashed’ international commercial courts might raise ethical or moral questions regarding, for example, complicity with the gross rule of law violations of the ‘mother’ jurisdiction.

4. THE PROBLEM WITH INTERNATIONAL COMMERCIAL COURTS VIEWING JUSTICE AS A PRIVATE GOOD OR PRODUCT

The administration of justice has long been held to be a public good, for example, Adam Smith argued that:

The third and last duty of the sovereign or commonwealth is that of erecting and maintaining those public institutions and those public works, which, though they may be in the highest degree advantageous to a great society, are, however, of such a nature that the profit could never repay the expence to any individual or small number of individuals, and which it therefore cannot be expected that any individual or small number of individuals should erect or maintain… After the public institutions and public works necessary for the defence of the society, and for the administration of justice, both of which have already been mentioned…¹⁴⁷

Going even further back St Thomas Aquinas stated that:

… since it belongs to the same authority to interpret and to make a law, just as a law cannot be made save by public authority, so neither can a judgment be pronounced except by public authority, which extends over those who are subject to the community.¹⁴⁸

This view has not changed in the modern day with Rex E Lee, then Solicitor General of the United States, stating in a 1980’s lecture that ‘It is part of our American tradition that we treat our courts as public goods. They are publicly funded, and made available “for free” to whomever wants to use them’.¹⁴⁹ Even more recently Lord Justice Gross noted that ‘Civil justice is a public good. Its provision is an integral part of the State’s duty; as with the rest of the justice system it is not just another public service’.¹⁵⁰

International commercial courts do not see justice in this way; however, they see justice as a private good or ‘product’, which can be bought and sold as part of a ‘global competition for justice’.¹⁵¹ This sort of behaviour is not something that is hidden either, rather it is extremely open. For example, one leading Singaporean lawyer discussed the setting up of the SICC as ‘establish[ing] the Singapore brand for dispute resolution’¹⁵² and the DIFC courts released a media statement noting that ‘For over a decade the DIFC Courts has a track record of resolving all commercial disputes… Big business can—and increasingly does—bring its disputes to Dubai.’¹⁵³ Similarly, the AIFC is concerned about measuring its performance as against other centres for international commercial dispute resolution¹⁵⁴ with one press release noting that ‘In 2019 the AIFC Court and International Arbitration Centre (further – “IAC”) considered five cases. This was an outstanding achievement compared to the experience of similar common law financial centre courts and international arbitration centres at this stage of their operations.’¹⁵⁵ In consequence, one can legitimately speak of certain international commercial courts as sullying the concept of justice and public courts. Rather than seeing justice as a public good, they see it as a private good to be sold at a profit to those who can pay the highest price and reserved for those who will improve investment in their mother jurisdiction. In fairness to international commercial courts this process was well on its way long before they came onto the scene as a result of, among other things, the rise of arbitration¹⁵⁶ and other forms of alternative dispute resolution. For example, in the English context, there have long been arguably nauseous attempts to quantify the value of English law to the English economy and thereby commodify it. Such attempts cover contentious as well as transactional areas of legal practice and the most recent have specifically analysed the potential negative economic effects of international commercial courts and arbitral institutions encroaching on the ‘market share’ of English courts and English law in the global ‘legal market’.¹⁵⁷ It is impossible to state with certainty why courts and others in the legal sector choose to adopt such an approach but it is not unreasonable to believe that it is because it is easier to quantify the economic value of justice, and thereby commodify it, than it is to justify its value to a society on more philosophical or ethical grounds. A good example of the problem can be found in the recent speech of the Lord Chief Justice, the Lord Burnett of Maldon, where his Lordship dedicated a great deal of time to analyzing the economic value of English law and the English courts, with explicit reference to the report cited above, but nevertheless stated that ‘Our commitment to the rule of law is also an underappreciated national asset that underpins our economic activity, stability and social cohesion. The rule of law and English law have a hidden value going well beyond the value of the legal services or the legal sector, enormous though that is.’¹⁵⁸ Moreover, even some ordinary state courts have been documented to engage in problematic behaviour in an attempt to attract litigation ‘work’, for example, the courts of Delaware have been reported as developing corporate bankruptcy law in a way which attracts that work,¹⁵⁹ and the Eastern District of Texas has similarly been criticized for developing patent trial procedural law in a way which is friendly to patent plaintiffs in order to attract patent cases to their court.¹⁶⁰ Judges that engage in such behaviour may be concerned by questions of prestige, a desire for interesting work, personal gain or a desire to increase the economic value of their jurisdiction as a whole.¹⁶¹

However, international commercial courts raise the issue of viewing justice as a private good or product to a higher degree because, unlike arbitral tribunals, they claim to be ‘courts’, and in particular independent and impartial common law courts, a label which carries with it a great deal of positive baggage. In particular, parties are likely to expect that such courts will act for the public and not private good and will exercise certain important public law roles, for example by holding the executive bound by the law and finding them liable when they break it. In reality, as discussed above, international commercial courts exercise no public law role given their limited jurisdiction and are likely incompetent, or at the least very unlikely, to hold the executive or the government generally for any breaches of the law. For example, it has been noted that the DIFC Court has never ruled against the DIFC Authority,¹⁶² much less the Sheikh of Dubai. Similarly, the arguably problematic behaviour of some common law state courts does not make international commercial courts any less problematic because, again, the former, unlike the latter, retain a public law role and can ensure that everyone is bound by the law regardless of who they are. Moreover, as seen above, even when such courts adopt commodifactory language they do not necessarily forget that the hidden, or true, value of their legal system is much more significant than its economic importance. In consequence, despite their flaws, they do fulfil the roles expected of courts in the common law world and cannot be accused of being merely ‘arbitrators in wigs’.¹⁶³ A good example of how civil courts can nevertheless perform an important public role can be seen in the case of the divorce litigation against the Sheikh of Dubai. Although the court was merely addressing family law litigation it nevertheless made a fact-finding judgment that the Sheikh had engaged in ‘a campaign of fear and intimidation’¹⁶⁴ against his ex-wife including illegal hacking of communications¹⁶⁵ and kidnap.¹⁶⁶ This, in turn, formed part of the court’s reasoning as to why it refused to award custody, or order the return, of the children who had been taken from Dubai by his ex-wife. A similarly extreme example can be found in the commercial context, where infamously an investment tribunal ruled that a state had kidnapped an investment arbitrator in an attempt to prevent an adverse award being issued against them.¹⁶⁷ It is difficult to see international commercial courts, or at least those whose mother jurisdictions engage in questionable behaviour, issuing like judgments in similar situations.

Proponents of international commercial courts, however, argue that these courts in fact do provide public benefits, and thereby further the common good, by both improving access to justice¹⁶⁸ and enabling the development of a publicly accessible body of jurisprudence as regards the types of disputes that come before them.¹⁶⁹ It is submitted that there are two problems with both claims. First, courts only improve access to justice for those who can: (i) afford them and (ii) bring themselves within their narrow jurisdiction. As a result, such courts lead and are designed to create, a ‘two-tier’ justice system with international commercial claims receiving the Rolls Royce treatment in international commercial courts and other claims, including lower value commercial matters as well as issues of human rights, administrative law and criminal matters, being relegated to the bottom tier underperforming domestic courts. Such concerns lay behind the shuttering of the proposed Brussels International Business Court (BIBC) due to opposition by political parties in Belgium who claimed that the BIBC would be a ‘caviar court’.¹⁷⁰ Secondly, and as discussed above, the body of jurisprudence developed by these courts may be incompatible with the law of the domestic courts which would otherwise have heard the cases whether due to legal cultural or general cultural differences.

None of this is to say that there is no role at all for private justice, but one needs to be careful not to blur the lines between public and private justice. If certain international commercial courts want to act like arbitral tribunals in the way they discuss justice and decide cases, then they should name and brand themselves accordingly: it is not appropriate for them to brand themselves as ‘courts’ when they take upon themselves none of the public law responsibilities or rights of courts. This is because doing so is an attempt to usurp the legitimacy generated by the courts of certain common law jurisdictions by repeatedly emphasizing that X international commercial court is based on ‘common law principles’, and presided over by an ‘independent and impartial judiciary’, without undertaking the necessary wholesale reform of the ‘mother’ legal system which possesses little, or no, international legitimacy. Something similar has occurred in the field of international investment law where players in that system have suggested that the solution to fields legitimacy crisis is to swap investment arbitration tribunals for an international investment court without necessarily addressing any of the broader problems in the system.¹⁷¹ It is important to qualify all of these criticisms by noting that they do not apply to the same extent to those international commercial courts which still have public law responsibilities, as they are still compatible with the principles of the rule of law elucidated by Tom Bingham discussed above. Ultimately, however, those courts do still undermine the concept of justice and public courts by viewing justice as a product traded on a ‘global judicial marketplace’ and not as a common or public good.

5. CONCLUSION

Despite the obvious pragmatic, primarily lucre based, motives for creating international courts it is clear that they suffer from several serious theoretical problems, of which the following have been discussed in this article:

• States loss of their ability to interpret and develop their law;

• Incidental weakening of a state’s judiciary and bar;

• Whitewashing of problematic jurisdictions; and

• The use of courts, and even justice itself, as a product.

It is true that some, perhaps even many, proponents of international commercial courts will not see the above as problems. They may either deny that such problems exist or, more likely, they will deny their importance on the basis that such arguments are exaggerated or predicated on a ‘romantic’ and naïve view of justice systems. In reality, however, it is not easy to dispose of those problems so easily and one may question whether there is not a certain degree of cognitive dissonance among those who support international commercial courts with regards to certain of the problems discussed above. For example, many of the international justices appointed to international commercial courts are well versed in international law and human rights, indeed they may even actively advocate for them. However, this does not stop them from being part of the judiciary, albeit at more distance than the ‘ordinary judiciary’, of States which seriously and consistently violate numerous tenets of international and human rights law. It is somewhat Janus like, indeed even hypocritical, to so actively advocate for these matters only when it is safe and convenient to do so and immediately discard them when they are inconvenient.

In any event, aside from the above issues of coherency, international commercial courts also attack the sovereignty of states by undermining their ability to interpret and develop their law, which in turn also weakens their judiciary and bar. It is true that the issues caused by this problem are not as immediately apparent as that of whitewashing, in particular, because it will be difficult to determine what impact international commercial courts have had on the legal systems of other states for years, or even decades. Nevertheless, London serves as a clear example of what happens when a particular court acts as a black hole sucking in the vast majority of international cases in a particular region, and it is clear that the judiciaries of several European states view this as a threat to their own legal systems and, ultimately, their sovereignty. In consequence, even if the issues caused by this problem are not immediately apparent they cannot be dismissed out of hand. However, it is important to note that this article does not intend to inveigh against party autonomy generally per se or to deny that individuals might have legitimate reasons for wishing to have their cases heard by other dispute resolution bodies rather than their domestic courts. Instead, this article merely aims to critique the concept of international commercial courts and the idea that party autonomy is, or should be, the supreme value in private international law. Lastly, one must consider whether one is comfortable with viewing courts, and even justice, itself as mere private goods or products. This is a dangerous game that reduces an important branch of government to nothing more than a governmental franchise that can lease out its brand to franchisees in exchange for a set fee and other commercial benefits. Such a view undermines the unique role of the courts in determining individuals’ rights and obligations, as well as making more policy-based judgments where needed and appropriate. It also raises the disturbing possibility that individuals can secure better courts, and thus better justice, for themselves by paying the state a particular fee or using a particular ‘franchise’ of the justice system. One might also argue that it is almost sacrilegious to the judicial office to reduce judges to mere salesmen, promoting and offering a particular service at a set price, competing with other judges who have been similarly debased. The issue is particularly acute with regards to international commercial courts which exist in entirely artificial jurisdictions, such as the AIFC, the DIFC, the QICDRC and the ADGMC. Can such people truly say that they ‘Judge for the needy and the fatherless [and] do justice to the humble and the poor’?¹⁷² Or can they meet the lofty requirements of, for example, the UK judicial oath to ‘do right to all manner of people after the laws and usages of this realm, without fear or favour, affection or ill will’?¹⁷³ Clearly, they cannot. At most they can ‘do right to [those who choose our services and aren’t in jail, being tortured, or political prisoners] after the [civil] laws and [civil] usages of this [jurisdiction] without fear or favour, affection or ill will [assuming I don’t get removed and that this court, and jurisdiction, isn’t abolished]’. In short, even if one were so jaded as to regard justice as a product one cannot compare the more exotic international commercial courts with traditional ‘mainstream’ or ‘onshore’ courts. Any guarantees of independence or a ‘common law court’ regarding such international commercial courts are written with water, given that they exist in jurisdictions that neither recognize judicial independence nor the idea of the rule of law more generally. We can therefore conclude that international commercial courts do not advance the rule of law but rather constitute trojan horses which undermine it by threatening state sovereignty, and the proper functioning of state legal systems, enabling states which do not believe in the concept of the rule of law to engage in ‘whitewashing’, and degrading the concept of justice itself by marketing it as a product to be bought and sold as part of a global competition for justice.

It is to be hoped that the brief discussion of, at least some of, the theoretical problems posed by international commercial courts will lead to further, and more detailed, study on the issues caused by international commercial courts. It is also to be hoped that it prompts states, and others, involved in the ‘international commercial courts’ project to reflect more deeply on the desirability, sustainability and problems posed by such courts.

The author would like to thank his former colleagues and mentors at the Scheinman Institute on Conflict Resolution, Cornell University ILR School where this paper was was first drafted. He would also like to thank the organizers and attendees of the ASIL International Courts and Tribunals Interest Group 2022 Works-In-Progress Conference for their feedback on a draft version of this article. Lastly he would like to thank his friends, family, the good Lord and the Holy Family without which this article would not have been possible.

Footnotes

1

‘DIFC Courts | Home’ (DIFC Courts) <https://www.difccourts.ae/> accessed 12 December 2021.

2

‘QICDRC’ <https://www.qicdrc.gov.qa/> accessed 12 December 2021.

3

Abu Dhabi Global Market, ‘ADGM Courts—Unique Digital Transformation of Justice and Legal Services’ (17 November 2021) <https://www.adgm.com/adgm-courts> accessed 12 December 2021.

4

‘Les Protocoles—Tribunal de Commerce de Paris’ <https://www.tribunal-de-commerce-de-paris.fr/fr/protocoles-tribunal-de-commerce-de-paris> accessed 12 December 2021.

5

‘Netherlands Commercial Court|The Dutch Judiciary’ <https://www.rechtspraak.nl/English/NCC/Pages/default.aspx> accessed 12 December 2021.

6

‘Commercial Court Baden-Württemberg: Commercial Court Stuttgart and Mannheim’ <https://commercial-court.de/en/> accessed 12 December 2021.

7

‘Main’ <https://court.aifc.kz/> accessed 12 December 2021.

8

‘国际商事法庭|CICC—The China International Commercial Court (CICC) in 2018’ <http://cicc.court.gov.cn/html/1/219/208/209/1316.html> accessed 5 February 2022.

9

‘Singapore International Commercial Court (SICC)’ <https://www.sicc.gov.sg/> accessed 12 December 2021.

10

Andrew Dahdal and Francis Botchway, ‘A Decade of Development: The Civil and Commercial Court of the Qatar Financial Centre’ (2020) 34 Arab Law Quarterly 59; Zhengxin Huo and Man Yip, ‘Comparing the International Commercial Courts of China with the Singapore International Commercial Court’ (2019) 68 International & Comparative Law Quarterly 903; Juan Carlos Urquidi Herrera, ‘International Commercial Courts: Similarities and Disparities’ (2018) 40(6) International Law 8; Matthew Steven Erie, ‘The New Legal Hubs: The Emergent Landscape of International Commercial Dispute Resolution’ (2019) 60(2) Virginia Journal Of International Law 225 <https://www.ssrn.com/abstract=3333765> accessed 5 December 2021; Andrew Godwin, Ian Ramsay and Miranda Webster, ‘The Singapore Experience’ (2017) 18(2) Melbourne Journal of International Law 219.

11

Eddy Bauw, ‘Commercial Litigation in Europe in Transformation: The Case of the Netherlands Commercial Court’ (2019) 12 Erasmus Law Review 15; Alexandre Biard, ‘International Commercial Courts in France: Innovation without Revolution?’ (2019) 12 Erasmus Law Review 24; Drossos Stamboulakis and Blake Crook, ‘Joinder of Non-Consenting Parties: The Singapore International Commercial Court Approach Meets Transnational Recognition and Enforcement’ (2019) 12 Erasmus Law Review 98; Erik Peetermans and Philippe Lambrecht, ‘The Brussels International Business Court: Initial Overview and Analysis’ (2019) 12 Erasmus Law Review 42; Nicolás Zambrana-Tévar, ‘The Court of the Astana International Financial Center in the Wake of Its Predecessors’ (2019) 12 Erasmus Law Review 122.

12

Johannes Landbrecht, ‘The Singapore International Commercial Court (SICC) – An Alternative to International Arbitration?’ ASA Bulletin 19; ibid; VK Rajah, ‘W(h)Ither Adversarial Commercial Dispute Resolution?’ (2017) 33 Arbitration International 17; Michael Hwang, ‘Commercial Courts and International Arbitration—Competitors or Partners?’ (2015)31(2) Arbitration International 193-212.

13

Christopher Grout and Sir William Blair, ‘The Role of International Commercial Courts in Commercial Dispute Resolution’ in Georgios Dimitropoulos and Stavros Brekoulakis (eds), International Commercial Courts: The Future of Transnational Adjudication (CUP 2022) <https://www.cambridge.org/core/books/international-commercial-courts/role-of-international-commercial-courts-in-commercial-dispute-resolution/37C29573454FCE722059DBC09EB966C5> accessed 4 May 2022; Thomas Schultz and Clément Bachmann, ‘International Commercial Courts: Possible Problematic Social Externalities of a Dispute Resolution Product with Good Market Potential’ in Georgios Dimitropoulos and Stavros Brekoulakis (eds), International Commercial Courts: The Future of Transnational Adjudication (CUP 2022) <https://www.cambridge.org/core/books/international-commercial-courts/international-commercial-courts/17CE9FAAB60371CBA758620A5390C0EC> accessed 26 July 2022; see eg Pamela K Bookman, ‘The Adjudication Business’ (2020) 45 Yale Journal of International Law 227.

14

‘Netherlands Commercial Court|The Dutch Judiciary’ (n 5); ‘Les Protocoles—Tribunal de Commerce de Paris’ (n 4); ‘Chamber for International Commercial Disputes’ (Ordentliche Gerichtsbarkeit Hessen, 1 August 2018) <https://ordentliche-gerichtsbarkeit.hessen.de/ordentliche-gerichte/lgb-frankfurt-am-main/lg-frankfurt-am-main/chamber-international> accessed 9 January 2022.

15

Rule 25 Singapore International Commercial Court Rules.

16

‘SICC|Registration of Foreign Lawyers before the SICC’ <https://www.sicc.gov.sg/registration-of-foreign-lawyers/registration-of-foreign-lawyers> accessed 9 January 2022.

17

‘Les Protocoles—Tribunal de Commerce de Paris’ (n 4).

18

See generally, Jayanth K Krishnan and Priya Purohit, ‘A Common-Law Court in an Uncommon Environment: The DIFC Judiciary and Global Commercial Dispute Resolution’ (2014) 25American Review of International Arbitration 497.

19

See eg, ‘GREAT Legal Services’ (GOV.UK) <https://www.gov.uk/guidance/great-legal-services> accessed 26 July 2022; ‘Economic Value of English Law’ (LegalUK 2021); ‘Written Answer by Minister for Law, Mr K Shanmugam, to Parliamentary Question on Singapore Convention on Mediation and Plans to Promote Singapore as an International…’ <https://www.mlaw.gov.sg/news/parliamentary-speeches/Written-Answer-by-Minister-for-Law-Mr-K-Shanmugam-to-PQ-on-Singapore-Convention-on-Mediation-and-Plans-to-Promote-Singapore-as-an-International-Dispute-Resolution-Hub> accessed 26 July 2022; ‘DIFC Courts|DIFC Courts to Help Boost Economic Growth and Attractiveness of Investment into Dubai World Trade Centre’ (DIFC Courts) <https://www.difccourts.ae/media-centre/newsroom/difc-courts-help-boost-economic-growth-and-attractiveness-investment-dubai-world-trade-centre> accessed 17 January 2022.

20

Biard (n 11) 24; Burkhard Hess and Timon Boerner, ‘Chambers for International Commercial Disputes in Germany: The State of Affairs’ (2019) 12 Erasmus Law Review 33, 33.

21

Biard (n 11); Bauw (n 11); Hess and Boerner (n 20).

22

‘Oberlandesgericht Köln: English-Speaking Senate’ <https://www.olg-koeln.nrw.de/beh_sprachen/beh_sprache_EN/004_english-speaking_senate/index.php> accessed 5 February 2022.

23

Biard (n 11) 25.

24

Bauw (n 11) 16.

25

Hess and Boerner (n 20) 33.

26

‘Chamber for International Commercial Disputes’ (n 14).

27

‘Oberlandesgericht Köln: English-Speaking Senate’ (n 22).

28

‘Zuständigkeiten’ (hamburg.de) <https://justiz.hamburg.de/landgericht-hamburg/zustaendigkeit/> accessed 5 February 2022.

29

‘International Chambers at the Regional Court of Berlin’ (15 November 2021) <https://www.berlin.de/gerichte/landgericht/das-gericht/zustaendigkeiten/internationale-kammern/artikel.1039251.en.php> accessed 5 February 2022.

30

Biard (n 11) 29.

31

ibid.

32

Bauw (n 11) 18.

33

ibid 19.

34

Wenhua Shan and Yunya Feng, ‘The China International Commercial Court: Towards an Integrated Dispute Resolution System’ (2022) Asia Pacific Law Review 1.

35

Preamble Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court 2018.

36

art 4 ibid.

37

art 8 ibid.

38

Julien Chaisse and Xu Qian, ‘Conservative Innovation: The Ambiguities of the China International Commercial Court’ (2021) 115 American Journal of International Law 17, 20; art 9 Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court.

39

art 3 Working Rules of the International Commercial Expert Committee of the Supreme People’s Court (For Trial Implementation) 2018.

40

Preamble Provisions of the Supreme People’s Court on Several Issues Regarding the Establishment of the International Commercial Court.

41

‘Judgments’ <https://www.rechtspraak.nl/English/NCC/Pages/judgments.aspx> accessed 11 January 2022.

42

‘国际商事法庭 | CICC—The First International Commercial Court of the Supreme People’s Court Effectively Concluded the First Five Cases’ <http://cicc.court.gov.cn/html/1/219/208/209/1547.html> accessed 5 February 2022.

43

‘Checking In With Competition In Europe: Where Do International Commercial Courts Stand?’ (Kluwer Arbitration Blog, 26 April 2021) <http://arbitrationblog.kluwerarbitration.com/2021/04/26/checking-in-with-competition-in-europe-where-do-international-commercial-courts-stand-2/> accessed 5 February 2022.

44

See eg the discussion in Zhongqi Pan, ‘Managing the Conceptual Gap on Sovereignty in China–EU Relations’ (2010) 8 Asia Europe Journal 227–243.

45

‘International Commercial Courts and the Interplay Between Realism and Institutionalism: A Look at China and Singapore’ <https://harvardilj.org/2020/03/international-commercial-courts-and-the-interplay-between-realism-and-institutionalism-a-look-at-china-and-singapore/> accessed 5 November 2021; Stephan Wilske, ‘International Commercial Courts and Arbitration—Alternatives, Substitutes or Trojan Horse?’ (2018) 11 Contemporary Asia Arbitration Journal 153, 177.

46

‘Report of the Singapore International Commercial Court Committee’ (Singapore International Commercial Court Committee 2013) paras 15–16.

47

ibid 5.

48

Godwin, Ramsay and Webster (n 10) 219.

49

Man Yip, ‘The Singapore International Commercial Court: The Future of Litigation?’ (2019) 12 Erasmus Law Review 82, 92.

50

‘SICC | Judges’ <https://www.sicc.gov.sg/about-the-sicc/judges> accessed 10 January 2022.

51

Yip (n 49) 93.

52

ibid 94.

53

‘SICC|Announcements’ <https://www.sicc.gov.sg/about-the-sicc/announcements> accessed 11 January 2022.

54

‘Report of the Singapore International Commercial Court Committee’ (n 46).

55

Sundaresh Menon, ‘Response by Chief Justice Sundaresh Menon, Opening of the Legal Year 2013 and Welcome Reference for the Chief Justice’ (Singapore, 4 January 2013) para 33.

56

Application of English Law Regulations 2015, s 1.

57

art 18(2) Qatar Financial Centre Law No 7 of Year 2005.

58

art 4 Constitutional Statute of the Republic of Kazakhstan.

59

Fidel v (1) Felecia (2) Faraz (2015) 002 DIFC CA, para 44.

60

‘DIFC Courts Annual Report 2020’, 18.

61

‘Qatar International Court and Dispute Resolution Centre Annual Report 2020’.

62

‘The AIFC Court and IAC Presented Their Achievements at The Astana Finance Days 2021’ <https://court.aifc.kz/news/the-aifc-court-and-iac-presented-their-achievements-at-the-astana-finance-days-2021/> accessed 21 January 2022.

63

For a general discussion regarding free zones, see Nicolas Papadopoulos, ‘The Role of Free Zones in International Strategy’ (1987) 5 European Management Journal 112; For a discussion of free zones in the Gulf context, see ‘A Political Economy of Free Zones in Gulf Arab States’ <https://link.springer.com/book/10.1007/978-3-030-71274-7> accessed 26 July 2022.

64

Robert Jackson, ‘Sovereignty in World Politics: A Glance at the Conceptual and Historical Landscape’ (1999) 47 Political Studies 431, 431.

65

Brigid Laffan, ‘Sovereignty and Brexit: From Theory to Practice’ [2021] SSRN Electronic Journal <https://www.ssrn.com/abstract=3788141> accessed 11 January 2022.

66

José E Alvarez, ‘The Return of the State’ 20, 43.

67

‘Statement by President Trump on the Paris Climate Accord—The White House’ <https://trumpwhitehouse.archives.gov/briefings-statements/statement-president-trump-paris-climate-accord/> accessed 11 January 2022.

68

Meghan Benton and others, ‘Covid-19 and the State of Global Mobility in 2020’ (IOM UN Migration; Migration Policy Institute 2021).

69

Jürgen Basedow, The Law of Open Societies: Private Ordering and Public Regulation in the Conflict of Laws (Brill Nijhoff 2015) 115.

70

Eckart Gottschalk and others, Conflict of Laws in a Globalized World (CUP 2007) 158 <https://www.cambridge.org/core/books/conflict-of-laws-in-a-globalized-world/878D2E20FED13EE6F74F0536AC4C4958> accessed 13 January 2022.

71

United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958.

72

‘United Nations Convention on International Settlement Agreements Resulting from Mediation (New York, 2018) (the “Singapore Convention on Mediation”)|United Nations Commission on International Trade Law’ <https://uncitral.un.org/en/texts/mediation/conventions/international_settlement_agreements> accessed 29 April 2020.

73

Hague Convention of 30 June 2005 on Choice of Court Agreements.

74

Convention of 2 July 2019 on the Recognition and Enforcement of Judgments in Civil or Commercial Matters.

75

Convention of 1 July 1985 on the Law Applicable to Trusts and on their Recognition.

76

United Nations Convention on Contracts for the International Sale of Goods 1980.

77

UNCITRAL Model Law on International Commercial Arbitration.

78

UNIDROIT Principles of International Commercial Contracts 2016.

79

See eg Sundaresh Menon, ‘International Commercial Courts: Towards a Transnational System of Dispute Resolution’ (Dubai, 2015); Grout and Blair (n 13).

80

Basedow (n 69) 115.

81

Cecilia Fresnedo de Aguirre, La autonomía de la voluntad en la contratación internacional (Fundación de Cultura Universitaria 1991) 136 (author’s free translation).

82

ibid.

83

Carlos Calvo, Derecho Internacional teórico y práctico de Europa y América (D’Amyot 1868) 273 <https://idus.us.es/handle/11441/115916> accessed 4 May 2022.

84

ibid.

85

Carlos Calvo, Le droit international théorique et pratique: précédé d’un exposé historique des progrès de la science du droit des gens (A Rousseau 1896) 142.

86

Manuel R Garcia-Mora, ‘The Calvo Clause in Latin American Constitutions and International Law’ (1950) 33 Marquette Law Review 205, 206.

87

See the lengthy discussion of examples in Francesco Tamburini, ‘Historia Y Destino de la “Doctrina Calvo”: ¿Actualidad u Obsolescencia del Pensamiento de Carlos Calvo?’ [2002] Revista de estudios histórico-jurídicos 81.

88

Wenhua Shan, ‘Is Calvo Dead?’ (2007) 55 The American Journal of Comparative Law 123.

89

‘Sesión N° 38 Del Martes 1 de Febrero de 2022’ (Comisión Sobre Medio Ambiente, Derechos de la Naturaleza, Bienes Naturales Comunes y Modelo Económico 2022) 38, 14, and generally.

90

Huddart, Parker and Co Pty Ltd v Moorehead Appleton v Moorehead (The Anti-Trust Case) [1909] Argus Law Reports 57.

91

ibid 250.

92

See eg Uber Technologies Inc v Heller 2020 SCC 16; Douez v Facebook, Inc [2017] SCC.

93

For the position in the United States, see generally John M Doroghazi and David J Norman, ‘What’s Left to Litigate about Forum Selection Clauses? Atlantic Marine Turns Four’ (2017) 36 Franchise Law Journal 581.

94

Biard (n 11) 25.

95

Bauw (n 11) 16.

96

Douez v Facebook, Inc (n 92) para 25.

97

ibid 51–73.

98

The Right Hon The Lord Thomas of Cwmgiedd, ‘Developing Commercial Law through the Courts: Rebalancing the Relationship between the Courts and Arbitration’ (London, 9 March 2016) para 22.

99

ibid 23.

100

Grout and Blair (n 13) 42–43.

101

ibid 43; Cf Menon (n 79) para 27.

102

Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan [2010] UKSC 46.

103

Government of Pakistan, Ministry of Religious Affairs v Dallah Real Estate and Tourism Holding Company (2011) XXXVI Yearbook Commercial Arbitration (our d’Appel, Paris, First Pole, First Chamber).

104

Douez v Facebook, Inc (n 92).

105

ibid 72.

106

Menon (n 79) para 41ff.

107

‘DIFC Courts Annual Report 2020’ (n 60) 18.

108

SIAC Annual Report 2020 (SIAC). ‘SIAC Is Most Preferred Arbitral Institution in Asia-Pacific and 2nd in the World’ <https://www.siac.org.sg/69-siac-news/708-siac-is-most-preferred-arbitral-institution-in-asia-pacific-and-2nd-in-the-world> accessed 13 January 2022.

109

‘Plan to Establish the Netherlands Commercial Court. Including Cost-Benefit Analysis’ (Dutch Council for the Judiciary 2015) para 2.1 (machine translation).

110

Biard (n 11).

111

Hess and Boerner (n 20).

112

Bauw (n 11) 16.

113

ibid.

114

para 3.1(1) Practice Direction 6B—Service Out of the Jurisdiction.

115

para 3.1(2) ibid.

116

art 25 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 (recast).

117

For a general overview, see Dimitry Vladimirovich Kochenov and Nikos Lavranos, ‘Achmea versus the Rule of Law: CJEU’s Dogmatic Dismissal of Investors’ Rights in Backsliding Member States of the European Union’ [2021] Hague Journal on the Rule of Law <https://doi.org/10.1007/s40803-021-00153-7> accessed 5 November 2021; ‘From Achmea to Komstroy’ <https://voelkerrechtsblog.org/from-achmea-to-komstroy/> accessed 21 January 2022.

118

Hague Convention of 30 June 2005 on Choice of Court Agreements.

119

Convention of 2 July 2019 on the Recognition and Enforcement of Judgments in Civil or Commercial Matters.

120

‘The Attractiveness of Judicial Appointments in the United Kingdom—Report to the Senior Salaries Review Body’ (Senior Salaries Review Body 2018) para 110.

121

‘DIFC Courts| Judges’ (DIFC Courts) <https://www.difccourts.ae/about/court-structure/judges> accessed 14 January 2022.

122

SICC| Judges (n 50).

123

‘Michael Hwang S.C. - Career Highlights’ <https://www.mhwang.com/carhigh.htm> accessed 14 January 2022; ‘Michael Hwang|ArbitrationLaw.Com’ <https://arbitrationlaw.com/profile/michael-hwang> accessed 14 January 2022; See also in both the commercial and investment arbitration context, Douglas Jones who is an international judge of the SICC ‘Home’ (Doug Jones AO) <https://dougjones.info/wp/> accessed 14 January 2022.

124

‘Kazakhstan’ (United States Department of State) <https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/kazakhstan/> accessed 17 January 2022.

125

Reuters, ‘Kazakhstan Puts Unrest Death Toll at 225’ Reuters (15 January 2022) <https://www.reuters.com/world/asia-pacific/kazakhstan-says-225-bodies-delivered-morgues-during-unrest-2022-01-15/> accessed 17 January 2022.

126

Olzhas Auyezov, ‘Kazakh President Gives Shoot-to-Kill Order to Quell Protests’ Reuters (7 January 2022) <https://www.reuters.com/world/asia-pacific/kazakh-president-says-constitutional-order-has-mostly-been-restored-2022-01-07/> accessed 17 January 2022.

127

Aliide Naylor, ‘What Really Happened During Kazakhstan’s Internet Blackout?’ (Gizmodo) <https://gizmodo.com/what-really-happened-during-kazakhstan-s-internet-black-1848315477> accessed 17 January 2022.

128

In Editorials on 12 January 2022, ‘Kazakh President Announces New Initiatives to Address Current Crisis, Support Well-Being of People’ The Astana Times, Astana (12 January 2022) <https://astanatimes.com/2022/01/kazakh-president-announces-new-initiatives-to-address-current-crisis-support-well-being-of-people/> accessed 17 January 2022.

129

Main (n 7).

130

‘AIFC Court and IAC Present Their 2021 Results and Future Plans’ <https://court.aifc.kz/news/aifc-court-and-iac-present-their-2021-results-and-future-plans/> accessed 17 January 2022.

131

‘Chief Justice’ <https://court.aifc.kz/who-we-are/chief-justice/> accessed 17 January 2022.

132

‘Justices’ <https://court.aifc.kz/who-we-are/justices/> accessed 17 January 2022.

133

‘United Arab Emirates’ (United States Department of State) <https://www.state.gov/reports/2020-country-reports-on-human-rights-practices/united-arab-emirates/> accessed 17 January 2022.

134

Jayanth K Krishnan, ‘The Story of the Dubai International Financial Centre Courts: A Retrospective’ 116, 9.

135

‘Ex-Football Boss Who Was Tortured in Dubai Jail Campaigns for UK to End Extradition to UAE’ The Independent, London (20 November 2017) <https://www.independent.co.uk/news/world/middle-east/dubai-torture-jail-uae-extradition-deal-uk-david-haigh-campaign-end-a8026121.html> accessed 17 January 2022.

136

Krishnan (n 134) 9.

137

ibid.

138

‘I Asked for Help from British Judges When I Was Jailed in Dubai, But They Ignored All My Letters’ The Independent, London (17 November 2017) <https://www.independent.co.uk/voices/dubai-court-system-prison-jail-jamie-harron-difc-uk-british-judges-help-a8056531.html> accessed 17 January 2022.

139

‘Update: DIFC-LCIA’ <https://www.lcia.org/News/update-difc-lcia.aspx> accessed 17 January 2022.

140

‘Australian Judge Quits Hong Kong Court, Citing National Security Law’ Reuters, Sydney (18 September 2020) <https://www.reuters.com/article/us-hongkong-security-judges-idUSKBN26912R> accessed 17 January 2022; Owen Bowcott and Owen Bowcott Legal affairs correspondent, ‘Role of UK Judges in Hong Kong Appeal Court Comes under Scrutiny’ The Guardian, London (2 July 2020) <https://www.theguardian.com/world/2020/jul/02/role-of-uk-judges-in-hong-kong-appeal-court-comes-under-scrutiny> accessed 17 January 2022; Michael Holden and Greg Torode, ‘UK Judges Resign from Hong Kong Court over China’s Crackdown on Dissent’ Reuters, London and Hong Kong (30 March 2022) <https://www.reuters.com/world/uk-judges-quit-hong-kong-court-over-new-security-law-2022-03-30/> accessed 6 May 2022.

141

Menon (n 79) para 15.

142

Grout and Blair (n 13) 37–38.

143

ibid 42–45.

144

Lord Bingham, ‘The Rule of Law’ (2007) 66 The Cambridge Law Journal 67, 75.

145

ibid 69.

146

Lord Burnett of Maldon Lord Chief Justice, ‘The Hidden Value of the Rule of Law and English Law’ (Pembroke College, Oxford, 11 February 2021) para 22.

147

Book V Chapter I ‘An Inquiry into the Nature and Causes of the Wealth of Nations’ (Econlib) <https://www.econlib.org/library/Smith/smWN.html> accessed 17 January 2022.

148

II: II Q.60 A.6 Thomas Aquinas, The Summa Theologiae of St. Thomas Aquinas (2nd edn, Burns Oates & Washbourne 1920).

149

Rex E Lee, ‘The American Courts as Public Goods: Who Should Pay the Costs of Litigation?’ (1985) 34 Catholic University Law Review 11, 268.

150

Lord Justice Gross, ‘How Can Judges Strengthen The Rule of Law?’ (Argentina, October 2018) para 6.

151

Xandra Kramer and John Sorabji, ‘International Business Courts in Europe and Beyond: A Global Competition for Justice?’ (2019) 12 Erasmus Law Review 1.

152

Hwang (n 12) 196.

153

Dubai, ‘DIFC Courts | DIFC Courts to Help Boost Economic Growth and Attractiveness of Investment into Dubai World Trade Centre’ (n 19).

154

‘AIFC Court and IAC Present Their Results in 2020’ <https://court.aifc.kz/news/aifc-court-and-iac-present-their-results-in-2020/> accessed 17 January 2022.

155

‘AIFC Court & IAC Achieve Outstanding Results in 2019’ <https://court.aifc.kz/news/aifc-court-iac-achieve-outstanding-results-in-2019/> accessed 17 January 2022.

156

See in particular the discussion in Larry E Ribstein and Erin O’Hara, The Law Market (OUP 2009) ch 5 <https://oxford.universitypressscholarship.com/10.1093/acprof : oso/9780195312898.001.0001/acprof-9780195312898> accessed 6 May 2022.

157

‘Economic Value of English Law’ (n 19); ‘Securing the UK’s Position as a Global Disputes Hub: Best Practice Lessons between Singapore and the UK’ (All-Party Parliamentary Group for Alternative Dispute Resolution 2020); ‘Plan for Growth: Promoting the UK’s Legal Services Sector’ (Ministry of Justice/UK Trade & Investment 2011).

158

Lord Burnett of Maldon Lord Chief Justice, ‘The Hidden Value of the Rule of Law and English Law’ (Pembroke College, Oxford, 11 February 2021) para 22.

159

Daniel Klerman and Greg Reilly, ‘Forum Selling’ (2015) 89 Southern California Law Review 241, 291.

160

ibid 247–80.

161

Klerman and Reilly (159) .

162

Bookman (n 13) 266.

163

An idea borrowed from Thomas Schultz and Clément Bachmann, ‘A Wig for Arbitrators: What Does It Add?’ in Trigo Trindade, Bahar and Neri-Castracane (eds), Vers les sommets du droit : liber amicorum pour Henry Peter, Genève and Zurich 2019, Schulthess Éditions Romandes 105.

164

Re Al M [2019] EWHC 3415 (Fam) 142 et seq.

165

Re Al M EWHC (Fam) 2883.

166

Re Al M (n 178) paras 101–11.

167

Himpurna California Energy Ltd (Bermuda) v Republic of Indonesia, UNCITRAL, Interim Award (26 September 1999)

168

Grout and Blair (n 13) 37–38.

169

ibid 42–45.

170

Kramer and Sorabji (n 151) 1–2.

171

See generally the discussion in Schultz and Bachmann (n 163).

172

Psalms 81:3, The Holy Bible, Douey-Rheims Version (John Murphy Company 1899).

173

‘Oaths’ <https://www.judiciary.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/oaths/> accessed 21 January 2022.