This chapter examines the link between the legitimacy of international commercial courts and the ethics of their judges. It starts from the premise that the professional ethics of judges are not only a matter of their personal and professional integrity. Instead, the chapter argues, the international and cross-cultural context of international commercial courts may affect what is considered appropriate for a judge. To demonstrate this argument, the chapter analyses ethical rules regarding ex parte communication between judges and parties or their lawyers, and the cultural differences among legal systems. It concludes by calling on the host States to commit energy and resources to develop separate codes of conduct for the judges presiding in the international commercial courts that they have created.

The chapter reviews some core points on the impact on the competition for dispute resolution in Europe raised by the withdrawal of the United Kingdom from the European Union. UK courts have been important providers of national case law on European private international law, and little is expected to change in practice in the immediate post-Brexit period. Moreover, litigants will continue resorting to UK courts that will thus remain strong competitors to international commercial courts all over the world. Still, courts in Europe are likely to discontinue their automatic recognition and enforcement of UK judgments. Such development would give ICommCs on the continent and elsewhere an opportunity to take litigation away from the UK – under one important condition: ICommCs within the EU will need to ensure an appropriate integration within the national judiciary.

International commercial courts are ‘international’ in that they perform functions that may be characterized as international. First, all ICommCs of the three categories presented in the chapter are domestic courts for international commercial disputes, or international business, more broadly defined. Second, they allow the internationalization of domestic legal orders by helping a jurisdiction attract foreign capital, and become a global and regional dispute resolution hub. ICommCs’ functional internationalism spills over into their organizational and procedural design. While ICommCs may be seen as hybrid institutions – between the national and the international, the public and the private, the formal and the informal – the chapter brings to light the new institutional mechanisms of interoperability between them and other dispute resolution fora – domestic courts, international commercial arbitration and international courts and tribunals. The functional interoperability will eventually determine the durability of ICommCs.

A small but influential number of States or their subdivisions have put substantial resources into establishing courts that operate outside of or have a special status within their traditional judicial systems. In instances, the judges of these courts are not citizens of the seats of the respective courts. The courts typically apply foreign law and do so in English. Why the removal of certain cases from local courts and local law or the establishment of new specialized courts within existing systems? An argument is that the new courts enhance the rule of law, both in the location of the court as well as regionally and even internationally. This chapter examines court rules and practices to assess the influence of international commercial courts on the rule of law.

The recent emergence of international commercial courts as a distinct species of court raises numerous legal issues as to the relationship and interaction between those courts and pre-existing national courts. In some jurisdictions, such as Singapore, the relationship between the courts has been harmonious. Yet in others the creation of new, international commercial courts has fomented conflicts or 'turf wars' between the courts. This potential behavioural aspect of courts is not new, and one may find examples from English legal history of rivalries between courts. On occasion those rivalries are evident in the modern world, including in relation to the international commercial courts of Dubai. This chapter considers historical examples of conflicts within the English court system and the nature of international commercial courts, and discusses instances from Dubai of where the DIFC and Dubai courts have clashed.

In a world of cross-border transactions, parties could not find until recently recourse to international courts for cases involving exclusively private parties from different jurisdictions. International commercial arbitration instead assumed the role of default jurisdiction for the resolution of disputes of such cross-border transactions. The identified gap in international adjudication has eventually given rise to a new species of courts: international commercial courts (ICommCs). ICommCs are domestic courts as they are established under a domestic legal order, but are different from the ordinary courts of the host jurisdiction in a number of ways. At the same time, they have an international character due to their institutional design as well as the cross-border nature of their caseload. ICommCs are a novel addition to the international dispute settlement system as they represent an effort to globalise dispute resolution using a bottom-up approach. Overall, they are part of a new form of transnational adjudication that blurs traditional dichotomies between domestic and international, and public and private.

International commercial courts have much to learn from international criminal tribunals (ICTs), as these were the first (along with investment tribunals) to combine domestic and international law, in a manner that today exemplifies the interplay of transnational law. Although ICTs dispensed criminal justice, their hybrid commercial counterparts of the twenty-first century do not depart from the ICT model of justice. There are striking similarities in that both wish to attract users and ultimately become financially independent; they both strive to convince their financiers that they are worth the effort and expense. Ultimately, and although this may not be apparent from the outset (and may not perhaps even be an indirect goal), both ICTs and hybrid commercial tribunals will have to show that they are truly legitimate and that they feed into the local legal system in a meaningful way. If they do not, they will have failed to meet the concerns and aspirations of all users of the pertinent legal system.

International commercial courts (ICommCs) are an ideal breeding ground for new technologies: delicate cross-border disputes cannot be adequately managed and resolved, if courts do not harness the potential of information and communications technologies. Mindful of this, ICommCs tend to infuse their procedures with technology, with a view to maximising efficiency and enhancing their attractiveness on the market for dispute resolution services. This chapter provides a comparative overview of the different uses of technology at ICommCs, following the typical chronological development of an international dispute: from the conclusion of the choice-of-court agreement, throughout the key stages of the proceedings (e.g. case-management conference, written submissions, taking of oral evidence), until the enforcement of the resulting judgment. The chapter assesses the impact of different technologies on ICommC litigation, not only in terms of efficiency, but also with regard to due process, and the enforceability of the resulting judgment.

Despite divergencies, international commercial courts have in common the claim to be different from the ordinary courts. This chapter examines the differences in procedure between international commercial and ordinary courts by focusing on three distinctive features: namely, the cross-border character of the disputes they handle, the voluntary establishment of their jurisdiction and their arbitration features. It starts by exploring the notion of an international dispute across various international commercial courts and identifies broad internationality criteria. Then, this chapter turns to the voluntary jurisdiction of international commercial courts. It illustrates that in order to attract disputes, international commercial courts had to ease the establishment of their jurisdiction and loosen their jurisdictional requirements. Lastly, it is demonstrated how international commercial courts and their arbitration features attempt to beat the allegedly ‘unbeatable’ virtues of arbitration. In conclusion, this chapter assesses the procedural differences between international commercial and ordinary courts and their potential to enhance the attractiveness of the former over the latter.

Exigencies of hyper-globalized, invariably transnational, trade have exerted immense pressure on the global legal infrastructure to produce a dispute resolution mechanism that attends to the needs of international commerce. In this chapter, it is argued that international commercial courts (ICommCs) possess structural features that allow them to fill in that lacuna. Furthermore, it is argued that ICommCs are predisposed to implement a new wave of harmonization of international commercial law, with English common law at the forefront of this effort. Harmonization of international commercial law is argued to be desirable both theoretically, but more importantly, from a practical standpoint of increasing efficiency. Through the perusal of the most recent and prominent examples of ICommCs, it is further posited that these courts, thanks to their jurisdictional reach, procedural laws, bench composition and judgment enforcement are substantially better positioned than domestic courts or arbitral tribunals to effect such harmonization.

The keystone of the European Union (EU) judicial order is Article 267 of the Treaty of the Functioning of the European Union (TFEU) whereby a court or tribunal of a Member State can, and in certain circumstances must, refer to the Court of Justice of the EU (CJEU) for a preliminary ruling a question of EU law that is necessary in order to enable the national court to give judgment in the case before it. This chapter explains what bodies, including an arbitral tribunal, constitute a court or tribunal for the purposes of that Article. It then examines the relationship between investor-state dispute resolution mechanisms, contained in the EU trade and investment agreements, and the EU judicial system. Finally, the chapter considers how the new national commercial courts that have been established in some Member States of the EU are likely to operate within the EU judicial system.

After the establishment of various international commercial courts in Asia, Continental Europe is now following Asia’s example by establishing its own. This chapter discusses the reasons for the new international commercial courts in France, Germany and the Netherlands. It then sets out how the three European countries position their international commercial courts, looking at the different procedures, functions and organization. The chapter distinguishes these courts from their Asian counterparts, and compares them to each other. This is done by looking at changes of legislation, whether English is used for the full procedures or only partially, by reviewing the courts’ rules of procedure, by discussing their (online) accessibility and by reviewing how the courts have functioned so far.