1.1 Introduction

The term ‘international commercial courts’ is a curious one. Certainly, the institutions which are the subject of discussion in this book are courts. The extent to which they are properly characterised as ‘international’ (whether self-styled by the institutions themselves or referred to as such by commentators) needs some exploration. So too does the extent to which these institutions exclusively deal with commercial matters for, as will be demonstrated, many of these international commercial courts deal with matters which, whilst specialising in commercial law disputes, are in fact much broader than that.

When considering these courts, it is important not to lose sight of the fact that many jurisdictions have specialist ‘commercial courts’, though the type of work dealt with differs. Typically, these courts deal with domestic disputes, sometimes including relatively low-value disputes. Sometimes they have an important international jurisdiction, as in the case of the Commercial List of the Court of First Instance of the Hong Kong SAR, China. Perhaps the best examples come from New York, in the form both of the state and federal courts, and from London.Footnote ¹ A number of other important jurisdictions, including France, Germany and the Netherlands, have sought to enhance the international standing of their courts – an example is the Netherlands Commercial Court established in 2019. According to its website, ‘Amsterdam has joined the likes of London, Dubai and Singapore when the new Netherlands Commercial Court opens its doors.’Footnote ²

Some of these courts are integrated with the domestic system; others stand apart to a greater or lesser extent. The common characteristic, certainly from the perspective of this chapter, is that the courts all have the same broad purpose – that is, to improve the adjudication of commercial disputes in the jurisdiction concerned, with a view to improving the attractiveness of the jurisdiction for inward investment, and providing the possibility of developing an international legal centre with the court as a centrepiece.

Starting with the characterisation of these courts as ‘international’, it is undoubtedly the case that the majority of the newly established courts in this arena are styled as such. Examples include the Singapore International Commercial Court (‘the SICC’),Footnote ³ the China International Commercial Court (‘the CICC’),Footnote ⁴ the Dubai International Financial Centre Courts (‘the DIFC Courts’)Footnote ⁵ and the Qatar International Court (‘the QIC’),Footnote ⁶ although, in the case of the latter, it is established in law as the Civil and Commercial Court of the Qatar Financial Centre.Footnote ⁷ Some (much older) courts are recognised as international not because of their name, but because of their expertise in dealing with international cases, the most obvious example being the London Commercial Court (one of England and Wales’ Business and Property Courts, and part of the Queen’s Bench Division of the High CourtFootnote ⁸). It is unnecessary to provide introductions to each of these courts (as well as others) as this has been done elsewhere in this book.Footnote ⁹

An issue is the extent to which these courts can truly be characterised as ‘international’. Professor Wong has helpfully sought to summarise the scholarly attempt to create a taxonomy for international judicial institutions as follows:

For reasons which are perhaps self-evident, the courts discussed in this book do not meet these collective requirements. Most notably, they are not established by an international legal instrument, nor is it a requirement that the dispute must involve at least one sovereign state. In addition, whilst some of the courts may well have regard to a variety of jurisprudence and international best practices, they do not routinely apply international law. Why, then, are they characterised as ‘international’? One could identify a number of reasons (such as by reference to the judiciary who sit in these courts or the fact that the rules relating to the advocates who can appear before them are usually markedly different from the rules that apply to their ‘national’ counterparts), but the simple reality is that these new courts have been established to cater for an international audience, primarily parties (and sometimes lawyers as well) beyond nationals of the jurisdiction in which the court is operating. That is not to say, of course, that these international courts are not accessible by nationals; they are, provided, of course, that the dispute falls within a particular court’s jurisdiction. But the primary reason they exist is to cater for the needs of the international community. It therefore comes as no surprise that many of these new courts are affiliated with a special area or ‘zone’ created within the country concerned. For example, the DIFC Courts are associated with the Dubai International Financial Centre, the QIC is associated with the Qatar Financial Centre, and the Abu Dhabi Global Market Courts (‘the ADGM Courts’) are associated with the Abu Dhabi Global Market.

These courts are not, however, necessarily constrained to dealing with disputes that relate to their affiliated area or zone; the DIFC Courts, for example, have the jurisdiction to ‘hear and determine any civil or commercial claims or actions where the parties agree in writing to file such claim or action with it whether before or after the dispute arises, provided that such agreement is made pursuant to specific, clear and express provisions’.Footnote ¹¹

This is often colloquially referred to as the DIFC Court’s ‘opt-in’ jurisdiction.Footnote ¹² The QIC has a jurisdiction quite independent from that given to it by the QFC Law in that, where it has been selected as the ‘Competent Court’, it may perform various supportive and supervisory functions in relation to arbitrations which are seated in the State of Qatar.Footnote ¹³

Nevertheless, the framework in which these courts are established relates to attracting international investment and business into the respective host country. The ADGM, for example, states that it is an ‘innovative, progressive and responsive financial centre transforming the business and finance landscape’. It also purports to be ‘uniquely positioned as a gateway into the multi-billion dollar Belt and Road initiative’.Footnote ¹⁴ Similarly, the Astana International Financial Centre (AIFC) in Kazakhstan (which also has an affiliated court) states that it ‘plays a pivotal role in positioning itself as a global centre for business and finance, connecting the economies of Central Asia, the Caucasus, EAEU, West China, Mongolia, [the] Middle East and Europe’.Footnote ¹⁵ Accordingly, generally speaking, what makes these courts ‘international’ is the audience they are designed to cater for. As a matter of law, however, they are domestic judicial institutions, albeit with specialist jurisdictions and distinct procedural rules.

Turning next to the commercial nature of these institutions, the London Commercial Court is precisely that – a commercial court. It deals with complex cases arising out of business disputes, both national and predominantly international. There is a particular emphasis on (i) insurance and reinsurance, (ii) banking and financial markets, (iii) commodities, (iv) shipping and (v) arbitration.Footnote ¹⁶ As one of the authors of this chapter has observed, the court ‘has been described as the paradigm for the new international commercial courts, which are said to have been inspired in part by its success’.Footnote ¹⁷ This is in no small part due to the international work of the court.Footnote ¹⁸ That is not to suggest that the court has been the sole focus of these new courts and has been copied and pasted abroad. The nuances of each of these new courts reveal that this is not so. Apart from anything else, not all of these new courts focus solely on what can properly be characterised as commercial law disputes. For example, the jurisdiction of the QIC relates to ‘civil and commercial disputes’,Footnote ¹⁹ which, as the jurisprudence of the QIC illustrates,Footnote ²⁰ extends to a wide range of issues including (i) banking and finance, (ii) debt recovery, (iii) employment, (iv) immigration, (v) insurance and reinsurance, (vi) insolvency and (vii) regulatory matters.Footnote ²¹ Similar observations could be made in relation to the DIFC Courts,Footnote ²² the ADGM CourtsFootnote ²³ and the AIFC Court.Footnote ²⁴ The court therefore deals with a much broader range of disputes than its counterpart in London.Footnote ²⁵

That is why the characterisation of these new courts as both ‘international’ and ‘commercial’ is in one sense curious. Nevertheless, as this chapter seeks to demonstrate, they have a particularly important role to play when it comes to the resolution of commercial (as well as other types of) disputes. Recognising that some of these courts are modelled, to one degree or another, on the ‘London model’, Section 2 discusses the competitive nature of the courts. Section 3 is a case study of the Qatar International Court and Dispute Resolution Centre. Section 4 considers the importance of locally administered justice, and Section 5 evaluates whether these new judicial institutions complement or compete with arbitration. Section 6 looks at the judiciary which comprise these courts, and Section 7 considers the importance of jurisprudence to the development of commercial law more generally. Section 8 is devoted to the key issue of enforcement, whilst Section 9 looks at various issues relating to access to justice more generally. The threads are then drawn together in Section 10. A key purpose is to assess the overall value these new courts add to the field of commercial dispute resolution.

1.2 The Competitive Nature of the New Courts

It is said that imitation is the sincerest form of flattery. If that is right, it might be said that not only does the London Commercial Court have a lot to be happy about, but so too does the common law system of England and Wales generally. It has been mentioned that the London Commercial Court has inspired some of the new international commercial courts. But it is not just the court that has been of interest. Equally important is the fact that many of these courts operate within legal systems which have drawn, to varying degrees, from the common law system. This is particularly remarkable when it comes to courts operating in countries which historically do not follow the common law model. The DIFC, for example, boasts that it ‘is home to an internationally recognised, independent regulator and a proven judicial system with an English common law framework’.Footnote ²⁶

As noted earlier in this chapter, the QFC makes similar claims.Footnote ²⁷ Indeed, some (although by no means all) of the substantive law of the QFC is either based on or incorporates the English common law.Footnote ²⁸ The ADGM goes further. Its Application of English Law Regulations 2015 provides, subject to certain important caveats, that ‘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.’Footnote ²⁹ Similarly, the AIFC Court states that it ‘provides a common law court system based on the norms and principles of English law for the first time in Central Asia’.Footnote ³⁰

It is not just the substantive law that has been influenced. The procedure that is applied before these courts is often based on the Civil Procedure Rules (‘CPR’) used in England and Wales since 1999, or the previous codification based on the rules first promulgated in 1883.Footnote ³¹ The Regulations and Procedural Rules of the QIC, for example, have clearly been influenced by the CPR, most notably by the inclusion of the Court’s ‘Overriding Objective’.Footnote ³² However it is noteworthy that the QIC has managed to limit its procedural rules to a mere thirty-seven articles as opposed to the thousands of pages that comprise the CPR.

In addition, judges from England and Wales are present in a number of these courts. The QIC, the DIFC Courts, the SICC, the ADGM Courts and the AIFC Court all have judges from England and Wales. Indeed, at the time of writing, all ten of the AIFC Court judges are from England and Wales, but this will likely change over time.Footnote ³³

The London Commercial Court has dedicated premisesFootnote ³⁴ along with other Business and Property Courts, well-regarded judges and procedural rules, and according to its online ‘lead times’, as of October 2021, despite the coronavirus pandemic, it has trial dates available as early as April 2022.Footnote ³⁵ But it is the perceived success of the court over time as contributing to the success of London as an international commercial and financial centre that has led to its emulation. First and foremost, it is seen as demonstrating that a court which has the confidence of business is an essential part of developing an ecosystem that favours finance and commerce. Second, it is seen as showing how international legal business can become a major economic contributor in its own right. Other centres which have not done so already wish to achieve the same outcome. So to some extent, the courts are in competition. As regards Europe, Brexit has been seen as a commercial opportunity for courts in mainland Europe, though in the broader perspective some consider that it is unlikely that London will be significantly displaced.

1.3 A Case Study: The Qatar International Court and Dispute Resolution Centre

The Qatar International Court was established when the Qatar Financial Centre (QFC) was set up in 2005, under the provisions of the QFC Law of that year. The QFC aims to promote the development of financial business in the State of Qatar. According to the QFC’s own material, QFC firms benefit from a legal and judicial framework based on English common law, and an independent court, regulatory tribunal and dispute-resolution centre. This is now known as the Qatar International Court and Dispute Resolution Centre (QICDRC).

As part of its architecture, the QFC has two bodies established under the QFC Law. The first is a civil and commercial court, now the Qatar International Court, which has a jurisdiction set out in Article 8 of the QFC Law. In broad terms, the court has jurisdiction over civil and commercial disputes which arise out of the QFC or the bodies registered there. The second is a regulatory tribunal which has an appeal jurisdiction in respect of certain regulatory decisions and other matters. It became fully operational in 2009 from which time its first cases were decided. Currently judges sit in benches of three with a first instance and, in the case of the court, an appellate jurisdiction – it is hoped in the future to have the necessary amendments to the law to enable single judges to sit at first instance at least in some cases.

Within the QICDRC the two bodies work together, sharing the same premises and registrar. The judges come from diverse parts of the world: from Qatar itself, and also from Cyprus, Hong Kong SAR, China, India, Kuwait, New Zealand, Singapore, South Africa, the UK and the USA. Past judges have come from Australia, France and Japan. The first president of the court was Lord Woolf. He was succeeded by Lord Phillips, who was succeeded by Lord Thomas, the current president – remarkably in terms of the standing of the president, each of these was the Lord Chief Justice of England and Wales. Sir William Blair was the first (and now current) chair of the regulatory tribunal, followed by Michael Thomas QC, followed by Sir David Keene. Taken as a whole, the breadth and seniority of the judges can be seen as a demonstration of international confidence in the QICDRC.

The court also has a mediation and arbitration function.Footnote ³⁶ As regards arbitration, Law No. 2 of 2017 Issuing the Arbitration Law in Civil and Commercial Matters provides parties with an option to agree on the ‘Competent Court’ of the arbitration. The Competent Court may perform various functions including in relation to interim measures, enforcement of awards and appeals. The QIC may be chosen as the Competent Court.

Thus, the QICDRC is conceived as part of the QFC and seen as important for its development. It has this in common with a number of the other courts under consideration, Dubai being an example. But all financial centres emphasise the importance of the legal structures under which they operate, including those with no separate court system such as Casablanca and Mauritius, because such structures are inherent in the nature of a financial centre.

A number of further points should be made which show the wider position. The QICDRC is part of Qatar’s judicial system. It was an observer at the United Nations Office on Drugs and Crime’s (UNODC) Global Judicial Integrity Network hosted by the chief justice of the State of Qatar. It actively engages with the legal profession in Qatar, and has close relations with the main universities in Qatar. It co-organises the Qatar Law Forum, and in these ways seeks to contribute to the legal system in the state as a whole. In 2020, a law was promulgated establishing a new commercial court in Qatar to provide a judicial platform for the prompt adjudication of commercial disputes within the state.

1.4 Locally Administered Justice

The importance of locally administered justice cannot be overstated. It is of fundamental importance to any legal system that the courts are accessible to those who need them, notably parties, witnesses and lawyers. Between 2010 and 2019, more than half of the courts in England and Wales were closed, with plans to close a further seventy-seven courts by 2025/6.Footnote ³⁷ This has led to widespread criticism, particularly among the legal community, which has raised fears over access to justice. As the Law Society of England and Wales has made clear, ‘We cannot consider a system to deliver justice if it prevents people from using the courts effectively.’Footnote ³⁸ Although, in respect of these new international commercial courts, the considerations are slightly different, access to justice remains at their heart. They each recognise that, for reasons which it will be necessary to explore in further detail, they are best placed to resolve certain types of disputes, in particular, for courts affiliated with special areas or zones, as regards the individuals and companies that do business there.

As has been explored, many of these new platforms, such as the QFC and the DIFC, are designed to attract international investment. Part of that attraction includes having a legal and judicial system with which users of these new platforms feel comfortable. If these international commercial courts did not exist, what would be the consequences? First, it is perhaps unlikely that the number of companies which establish within these platforms would be as high as it is at present.Footnote ³⁹ Moreover, in the absence of a specialist international commercial court, some other form of dispute resolution procedure would be required. There are various options, including the national courts of the country concerned as in Mauritius, and some form of alternative dispute resolution process, such as arbitration as in the case of the Casablanca Finance City (CFC) – the Casablanca International Mediation and Arbitration Centre (CIMAC) is a long-term project supported by the CFC. It is necessary therefore to say something about the relationship between these new international commercial courts and arbitration.

1.5 International Commercial Courts and Arbitration: Competing or Complementary?

An abundance of material, including academic commentary, exists on the pros and cons of arbitration as a forum for dispute resolution, particularly in the context of disputes that involve parties from different countries. Independence, impartiality and neutrality are often cited as the key components, though there are of course others.Footnote ⁴⁰ As s.1(a) of the Arbitration Act 1996 (a statute which extends to England, Wales and Northern Ireland) explains:

The statute recognises that parties should be free to agree how their disputes are resolved subject only ‘to such safeguards as are necessary in the public interest’.Footnote ⁴¹

A plethora of respected arbitral institutions pride themselves in being able to administer neutral dispute resolution processes. Examples include the International Chamber of Commerce (ICC),Footnote ⁴² the Singapore International Arbitration Centre (SIAC),Footnote ⁴³ and the London Court of International Arbitration (LCIA).Footnote ⁴⁴ It is perhaps telling that, in respect of the latter, upon its inauguration in 1892 (when it was known as The City of London Chamber of Arbitration), the Law Quarterly Review reported that

One can perhaps reflect on the extent to which those observations may or may not remain apropos at the present time if cost and expedition are the criteria. Suffice it to note that, when initially established, the provision of arbitration as a forum for commercial dispute resolution was seen to make up for the perceived shortcomings of the courts and the legal system in general. Today, while many of the criticisms once levied at the courts could arguably be said of the arbitral process (in addition to other problems),Footnote ⁴⁶ the fact is that arbitration has become a common and respected mechanism for the resolution of international commercial disputes.Footnote ⁴⁷

Accordingly, whilst these new international commercial courts may take some of the cases which hitherto would likely have been resolved by arbitration, it is certainly questionable as to whether they can in any meaningful sense be said to be in competition with the various arbitral institutions around the world. First, as one of the co-authors has noted,

Secondly, as the Chief Justice of the Federal Court of Australia, the Hon. James Allsop, has pointed out, ‘the practical reality is that arbitration requires the court system for its efficacy – either as a positive force or by its benign non-interference with arbitral activity’.Footnote ⁴⁹ There can be little doubt that that is right. The court of the seat of the arbitration, when it is required to intervene, plays a critical role in the integrity of the arbitral process. The QIC, for example, can issue interim measures,Footnote ⁵⁰ appoint and remove arbitrators,Footnote ⁵¹ determine matters relating to the jurisdiction of the arbitral panel,Footnote ⁵² assist the arbitral panel with the taking of evidence (through, for example, the issuance of a witness summons),Footnote ⁵³ act (within very limited grounds) as an appellate bodyFootnote ⁵⁴ and, perhaps most importantly, enforce the award.Footnote ⁵⁵

It would be misleading, however, to suggest that the primary role of these new international commercial courts was to support and supervise international arbitration. That is patently not the case. They each, as explored earlier in this chapter, have carefully crafted jurisdiction provisions which allow them to hear commercial (and other) disputes as a trial (and appellate) court. It is therefore necessary to look in more detail at what precisely makes these new courts an attractive dispute resolution forum and the value they add to dispute resolution more generally. As the most notable aspect of international commercial courts is arguably the calibre of the judiciary they tend to attract, it is to that topic that it is now prudent to turn.

1.6 The Judiciary

A perceived advantage of arbitration is the ability to select, to one degree or another, the arbitrators who will be hearing and determining the dispute. Parties can nominate the individual or individuals they consider suited to act as part of the arbitral panel. This has the advantage of, among other things, being able to appoint person(s) who have knowledge and experience of the subject matter at the heart of the dispute.Footnote ⁵⁶ In a court setting, parties cannot, of course, choose or exert influence over the appointment of the judge or judges who hear a particular case. Nevertheless, the members of the judiciary that comprise the international commercial courts are limited in number and, generally speaking, have specialist backgrounds usually relating to diverse aspects of commercial law. Accordingly, parties know that when their disputes are referred to these courts for resolution, they will be determined by expert judges.

Though the CICC has only appointed Chinese judges (albeit it has an International Commercial Expert Committee)Footnote ⁵⁷ and the AIFC Court has only appointed judges from England and Wales,Footnote ⁵⁸ it is a striking feature of the new international commercial courts that they comprise judges from a range of jurisdictions. At the time of writing, the DIFC Courts, for example, have judges from Malaysia, the United Arab Emirates, England and Wales, and Australia.Footnote ⁵⁹ The SICC has judges from Singapore, the USA, Australia, England and Wales, Canada, France, Hong Kong, Japan and India.Footnote ⁶⁰ Notably, since its establishment, as pointed out earlier in this chapter, the QIC has been led by three successive former Lord Chief Justices of England and WalesFootnote ⁶¹ and presently has judges from a range of civil and common law backgrounds, including judges from England and Wales, Qatar, New Zealand, Cyprus, Scotland, Kuwait and South Africa.Footnote ⁶² Accordingly, the judges, quite apart from their individual specialisms, bring with them a wealth of experience and knowledge from various jurisdictions throughout the world. This is likely of comfort to parties involved in cross-border disputes (or cases which may have an ‘international flavour’) who will not only be satisfied with the expertise of the judges, but who should also have no concerns about partisanship.

It must be pointed out, however, that some parties (or, more accurately, their legal representatives) may find it daunting to appear before these judicial institutions, especially when some of these courts sit in a constitution of three, even at first instance.Footnote ⁶³ Such apprehension can be compounded when faced not only with three judges, but with three judges from different jurisdictions. Nevertheless, experience shows that, notwithstanding the diverse backgrounds from which the judges come, there is an effort (whether conscious or unconscious) to seek unanimity of approach and outcome. An illustrative example of this is the fact that, in the eleven years that it has been operating, there has yet to be a dissenting judgment in the QIC.Footnote ⁶⁴ This is so notwithstanding the fact that the QIC’s Regulations and Procedural Rules make express provision for dissenting judgments.Footnote ⁶⁵ The importance of consistency in judicial decision-making, and the building up of publicly accessible jurisprudence, is a feature unique to courts worthy of further consideration.

1.7 The Importance of Jurisprudence

Unlike arbitration, commercial courts are quite often concerned not only with the particular case before them at any given time, but also with stating principles. This is particularly the case in the common law system which is traditionally led by judges. Consequently, commercial courts, like other specialist courts, play a key role in interpreting and developing the law. As Lord Thomas, then the Lord Chief Justice of England and Wales, opined on the occasion of the 2016 BAIILI lecture,

Indeed, the importance of the development of the law should not be overlooked. Whilst many people may, for a variety of reasons, feel in some way alienated from the legal system and the operation of the courts, the development of jurisprudence is not only about informing lawyers and judges. It is about ensuring that the law is clear, outcomes can be predicted with a reasonable degree of certainty, and, to put the point colloquially, people know where they stand. It has often been said that in commercial life, the certainty of a rule is more important than its content. The public availability of court judgments allows lawyers to advise their clients in accordance with previously issued judgments, with the consequence that issues that may otherwise have arisen in the future can be avoided and some disputes, which may otherwise have ended up in court or arbitration, can be settled amicably.

There is no reason to suppose these same principles do not apply to international commercial courts. If anything, it is perhaps more important that these new courts develop a consistent body of jurisprudence so that those operating within their jurisdiction are well informed as to the approach the courts will take on various issues. One might go further. Given the high profile of the judges who tend to sit on these courts, the jurisprudence that emanates from them may have implications (in terms of persuasive authority) in other jurisdictions. An example is the recent judgment of the Appellate Division of the QIC in Leonardo S.p.A v. Doha Bank Assurance Company LLC.Footnote ⁶⁷ In that case, the Court upheld a judgment of the First Instance Circuit, which had found in favour of the Claimant in the sum of €14,619,440.00 in furtherance of demands, found valid by the Court, made under an advance payment guarantee and performance bond. The Appellate Division considered, among other things, the proper approach to Uniform Rules for Demand Guarantees (URDG 758). In doing so it observed that,

As to the UCP, which applies to analogous instruments – namely, letters of credit, the Court referred to the judgment of the Court of Appeal (Civil Division) of England and Wales in Fortis Bank S.A./N.V, Stemcor UK Limited v. Indian Overseas Bank,Footnote ⁶⁹ which observed that,

The Court in Leonardo anticipated that that approach ‘would be adopted by courts worldwide’, noting that guarantees ‘are the lifeblood of commerce’.Footnote ⁷¹ The judgment has already been the subject of commentary outside the jurisdiction with one observer opining that,

This particular case example is illustrative of the fact that the jurisprudence of the new international commercial courts is not confined to the jurisdictions with which the individual courts are concerned. On the contrary, a number of judgments may have international influence and, as the case example highlights, with good reason. The success of international commerce depends, to a not insignificant degree, on the harmonisation of the most important matters which impact the efficacy of cross-border trade and dealings. The UCP and the URDG provide good examples of the benefits of consistency of approach across jurisdictions. Whilst the substantive law (and by extension those who operate within it) benefits from this approach, another key area which needs to be considered is in relation to the enforcement of judgments, which is considered next.

1.8 Enforcement

One of the oft-quoted advantages of arbitration is the means by which the resultant awards can be enforced internationally. This is almost entirely down to the successful adoption of the ‘New York Convention’ by, as of 12 June 2020, 164 State parties.Footnote ⁷⁴ As the introduction to the Convention makes clear,

Whilst a recent study points to a ‘perceived gap between the theoretical ease of award enforcement promoted by the provisions of the New York Convention and potentially less successful practical experiences of respondents seeking to enforce arbitral awards in various jurisdictions’, there can be little doubt that, generally speaking, a party will likely find it easier to enforce a foreign arbitral award than they will a foreign court judgment.Footnote ⁷⁶ At first blush it is perhaps surprising that an award rendered as part of, ordinarily, a private dispute resolution process is more advantageous when it comes to enforcement abroad than a judgment of a State court; this is because of the international treaty in the form of the New York Convention, which in turn was possible to get off the ground because arbitration is by definition consensual. In other words, the parties have agreed to it. This is not necessarily the case in court proceedings.

That having been said, various treaties and conventions do exist concerning the enforcement of foreign court judgments, most notably the ‘Hague Choice of Court Convention’ and, more recently, the ‘Hague Convention on the Recognition and Enforcement of Foreign Judgments in Civil or Commercial Matters’, both discussed elsewhere in this book.Footnote ⁷⁷ The latter is not yet in force. The Standing International Forum of Commercial Courts (SIFoCC) established in 2017 is a forum that, ‘for the first time, brings together the world’s commercial courts’.Footnote ⁷⁸ One of the SIFoCC’s achievements has been the production and publication of the Multilateral Memorandum on Enforcement.Footnote ⁷⁹ Courts from around the world (including international commercial courts such as the QIC, DIFC Courts and ADGM Courts) have contributed by detailing the mechanism for the enforcement of foreign court judgments in their respective judicial institutions. Whilst significant variances exist in practice, the unique feature of the document is that it is written by judges. This in itself highlights another important role international commercial courts can play – namely, as institutions that do not operate in silos but rather actively collaborate with their foreign counterparts to discuss areas of mutual interest. A most recent example of this has stemmed from the Covid-19 pandemic, which has caused chaos across the globe. The SIFoCC produced a memorandum which details how member courts are responding to the pandemic and which highlights the importance of maintaining fully functioning courts in times of crises.Footnote ⁸⁰ The memorandum reflects the sharing of different experiences by different courts.

Returning to the role of international commercial courts in the context of enforcement, the enforcement of foreign judgments (as opposed to their own judgments) has not been a primary consideration. That said, some courts have not shied away from so doing. In A4 v. B4, the ADGM Court of First Instance enforced an arbitration award made pursuant to an arbitration administered by the London Court of International Arbitration.Footnote ⁸¹ Whilst both parties were incorporated in Abu Dhabi, there was no evidence before the Court that either of them had a presence in the ADGM. The Court was satisfied that it had jurisdiction, by virtue of Article 56(1) of the Arbitration Regulations, to enforce the foreign award. Nevertheless, Andrew Smith J postulated the following question:

In answering his own question, the judge concluded that as there was no evidence that B4 did not have assets within the ADGM, nor was there any evidence to suggest that B4 might not have assets within the ADGM in the foreseeable future, there was therefore no reason to suppose that A4 was simply using the proceedings as a device to obtain a judgment to enforce elsewhere in the UAE.Footnote ⁸³ One might find that analysis somewhat artificial in the sense that the absence of proof of assets within the ADGM was more likely to suggest that the party did not have assets within the ADGM as opposed to the contrary. Moreover, the absence of any evidence of assets within the ADGM might lend credence to the argument that the enforcing party was using the proceedings as a device to obtain a judgment which it could then seek to enforce elsewhere in the UAE. Regardless, the judge did make this telling observation:

Although the judge did not say so, this appears to be an acknowledgement of the difficulties that have arisen in neighbouring Dubai between the DIFC Courts and the other courts of Dubai as regards the issue of competing jurisdiction, especially in the context of enforcement. This situation led to the establishment of the ‘Judicial Committee of the Dubai Courts and the DIFC Courts’, discussed in detail elsewhere in this book.Footnote ⁸⁵

What is unquestionably of importance is that the various international commercial courts can successfully enforce their own judgments. If they cannot, their role is significantly diminished. Moreover, it is not helpful to the efficacy of litigation if, having obtained a judgment from a commercial court, the successful party must go to some other court in order to enforce it.

The Regulations and Procedural Rules of the QIC provide, it is suggested, a good example of how enforcement of a particular court’s own judgments should operate. As the beginning of Article 34.1 makes clear,

Article 34.3 gives the QIC the explicit power to enforce its own judgments through a variety of means, including ‘by the making of any order that it considers necessary in the interests of justice’. In practice, the enforcement judge of the QIC can enforce QIC judgments through a variety of means (such as freezing orders and the seizure of assets). Moreover, because the QIC is ‘a court of Qatar’, it is not restricted to assets located within the QFC, but can enforce throughout the State generally.Footnote ⁸⁶ This has enabled the court to issue precautionary freezing injunctions.Footnote ⁸⁷

The successful enforceability of the judgments of the international commercial courts is a key component of access to justice considerations, which is the final issue considered in this chapter.

1.9 Access to Justice

In Section 4, the importance of locally administered dispute resolution was noted as a fundamental aspect of access to justice. It is fitting that, in bringing this chapter to an end, further observations are made in respect of the role of international commercial courts in addressing access to justice issues more generally. If one accepts that these courts are primarily catering to the needs of foreign parties operating within the jurisdiction of the particular court in question, it must follow that it has to be ensured that such parties have confidence that their disputes can be resolved in an efficient (and cost-effective) manner and their rights enforced.

In meeting this aim, the powers of the courts are more far reaching than those of private arbitrators. For example, the courts can issue witness summons, join third parties and make findings of contempt – all of which the courts can themselves directly enforce.Footnote ⁸⁸ In another departure from private dispute resolution methods, the international commercial courts have the transparency of court proceedings, with open hearings and publicly accessible judgments. Quite apart from the importance this plays in developing jurisprudence, as discussed in Section 7, it helps boost confidence with certain prospective users.

In this regard, language is a significant issue. An example comes from France following recent reforms. The Paris Commercial Court has specialised chambers dedicated to various matters such as banking, town planning, international disputes and so on. Additionally, two procedural court protocols of 7 February 2018 record the creation of international chambers within the Paris Commercial Court and the Paris Court of Appeal. This means that these two courts will now hear pleadings in English and accept exhibits in English. It is indeed a common thread of the international commercial courts that they conduct their proceedings in English, or at least allow extensive use of the English language – for example, in documentation. In the case of the QIC, its Regulations and Procedural Rules allow proceedings to be conducted in English or Arabic, but judgments are always issued in Arabic (as well as English).Footnote ⁸⁹ One consequence is that the rules relating to lawyers who can appear before the courts (rights of audience) are usually much broader than national rules, allowing parties to appoint a lawyer of their choosing, regardless of the lawyer’s nationality.Footnote ⁹⁰

Another increasingly common thread among the international commercial courts in enhancing access to justice is through their commitment to pro bono services to help those most in need. For example, the QIC,Footnote ⁹¹ DIFC Courts,Footnote ⁹² ADGM CourtsFootnote ⁹³ and the AIFCFootnote ⁹⁴ all make provision for pro bono services in one form or another to assist individuals who cannot afford legal advice and representation. Ensuring that those who would not otherwise be able to seek assistance from a lawyer can do so is a key access to justice consideration; the developing role of the international commercial courts in this regard is certainly worthy of note.

1.10 Conclusion

Speaking about international commercial courts, Professor Lucy Reed, formerly of the National University of Singapore, observed that,

Contemplating some ‘normative propositions’ on what the vision and mission of international commercial courts might be, Sundaresh Menon, the Chief Justice of Singapore, suggested that their mission should be,

They would achieve this, he suggested, through four points: first, through building ‘a trustworthy, competent and commercially sensible system to resolve transnational commercial disputes’; secondly, to ‘function alongside arbitration and fill in a gap in the suite of transnational dispute resolution mechanisms’; thirdly, to be ‘responsive to the needs of the international commercial community’; and fourthly, to ‘develop deeper connections amongst commercial courts, and eventually develop a network of such courts’.Footnote ⁹⁷

It is difficult to argue with that conclusion. Indeed, in many ways it has already been realised. As this chapter has sought to explore, the new international commercial courts are, generally speaking, supporting specialist frameworks established to attract international investment and business into the respective host country. They have, as their main aim, the efficient resolution of commercial disputes, including (although not exclusively) within a transnational context. They complement, it is suggested, national courts and arbitration and, in respect of the latter, provide additional support. Owing to the specialist judiciary which comprises the courts, particular needs of the international commercial community can be met. Finally, as described in this chapter, the Standing International Forum of Commercial Courts has sought to bring together the world’s commercial courts (both national and international) in a meaningful and impactful way.

Overall, there is good reason to believe that the emergence of these international commercial courts adds a significant dimension to the resolution of, among other things, commercial disputes which have an international flavour. Because of the reasons behind their establishment and the role they play, the reality is that the international commercial markets will ultimately determine their success and longevity.