The Adjudication Business

Abstract

The recent proliferation of international commercial courts around the world is changing the global business of adjudication. The rise of these courts challenges received accounts of the competitive relationships between and among courts and arbitral tribunals for this business. London and New York have long beenconsidered the forums of choice in international commercial contracts—whether parties opt for litigation or arbitration. More recently, however, English-language-friendly international commercial courts have been established in China (2018), Singapore (2015), Qatar (2009), Dubai (2004), the Netherlands (2019), Germany (2018), France (2010), and beyond. The emerging scholarship addressing these new courts tends to view them as engaged in a global competition with each other and with arbitration to create the most efficient dispute resolution mechanism. That account oversimplifies. The creation of each of these courts is driven by multiple factors on the ground. This Article makes four contributions to the study of international commercial courts and their relationship to arbitration. First, it offers a categorization of international commercial courts based on the forces apparently driving their creation. Second, it critiques the “race to the top” narrative both within the law-and-economics framework and outside of it, drawing attention to the range of domestic and international forces driving the courts’ rise. The courts’ success therefore will not necessarily be based on the excellence of the adjudication they provide, but rather on other metrics, such as the number of cases or amount of investment they attract, that reflect what drove States to create the international commercial court in the first place. Third, these courts challenge the traditional U.S. view that arbitration and litigation are opposites. In fact, international commercial courts borrow many features from arbitration, like expert adjudicators, confidentiality, and customizable procedures. These courts thus pose the questions: what characteristics of arbitration and litigation are fundamental, and what do parties prefer? Fourth, the Article celebrates procedural innovation but warns international commercial courts against becoming beholden to either sovereign or private interests. .