The rise of international commercial courts : driving forces and institutional design

Abstract

The dissertation explores the proliferation of international commercial courts around the world. International commercial courts are defined as domestic courts or divisions thereof that specialise, exclusively or not, in cross-border commercial disputes. Up until recently, the landscape had been dominated by the Commercial Court of England and Wales, instituted in 1895. However, since the turn of the 21st century, international commercial courts have been set up in the United Arab Emirates, Qatar, Singapore, China, Kazakhstan, France, Germany, and the Netherlands. Plans to establish such courts are considered in the EU, Switzerland, Ireland, Australia, Japan, India, and Iran. The objective of this dissertation is to offer a systematic study of the reasons motivating states to build international commercial courts. I do so by examining the driving forces behind such courts in connection with institutional design choices, treating the latter as an analytical window into the possible motivations of the states building them. I achieve this research objective through a combination of theoretical, historical, and socio-legal methods. The principles guiding my research are based on the comparative case-study and process tracing methods as developed in social science for the purposes of elucidating the causal mechanisms at play. The Commercial Court of England and Wales serves as a starting point of the case-study analysis due to its influential character. For this case study, I employ a historical method relying on archival research. For the remaining case studies concerning the Singapore International Commercial Court, the Netherlands Commercial Court, and international commercial courts in Germany, I supplement the documentary evidence with fieldwork in the form of semi-structured qualitative interviews. The argument developed through the dissertation is that contrary to dominant accounts, the explanatory power of exogenous factors such as regulatory competition, Brexit (in the EU context), and the desire to position a given country as a litigation centre, is limited. Rather, I argue that each individual court is driven by a combination of internal and external concerns and can only be explained through the analysis of national circumstances that are unique to each jurisdiction. By offering insight into these circumstances, this research unlocks the potential to derive lessons from the experience of a variety of jurisdictions, thereby informing the lawmakers’ effort to design more efficient mechanisms for cross-border commercial dispute settlement.