The Emergence of Hybrid International Commercial Courts and the Future of Cross Border Commercial Dispute Resolution in Asia

Abstract

The bulk of international commercial disputes are resolved by national courts. In Asia, regional international arbitration centres in places such as Shanghai, Hong Kong, Singapore, and Tokyo have also been partaking in these exercises albeit at varying levels of popularity. While commercial arbitrations remain pop­ular, the influence of these bodies in driving convergence has been questioned. This has been in part due to the confidential nature of their awards and their ad hoc nature. The uptake of international commercial instruments in the region is growing, but the extent of harmonization of international commercial law remains weak. Even in countries such as Australia that have taken steps to adopt international commercial instruments, the efficacy of international law has been called into question. Application of these international rules have not been prom­ising. In this regard, the lacklustre performance of the Convention for the Interna­tional Sale of Goods (CISG) could be cited. There is no doubt that judicial institutions play a crucial role in achieving the lofty ideal of harmonisation. At the other end of the spectrum, the establishment of fully blown regional interna­tional courts for commercial disputes is further away. This has been hampered by the obvious sovereignty concerns and the relative success of international commercial arbitration.

It has been a little over a year since Singapore, a country that is already one of the most preferred arbitration destinations in the world, moved to establish an International Commercial Court, a unique institution that pushed the frontiers of cross border commercial dispute resolution. The Court heard its first case in May 2015 on a referral from the High Court. This case involved a dispute between Indonesian and Australian mining companies. The court is unique in that it allows appointment of foreign judges and dispenses with the application of Sin­gapore's Rules of Evidence. Naturally all Singapore regular courts are expected to apply the Singapore Rules of Evidence in disputes before them. However, an exception is made in regards to matters coming before the Singapore International Commercial Court (SICC), where on application of the parties the Singa­pore Rules of Evidence may be disapplied pursuant to Order 110, Rule 23.2 as will be discussed later in this essay, this hybrid institution promises to combine the best of international commercial arbitration and that of judicial settlement of disputes. Elsewhere in Asia, we have had the Dubai International Financial Cen­tre Courts of First Instance and Appeal, the Qatar International Court and Dispute Resolution Centre and, most recently, the Abu Dhabi Global Market Courts. The need for specialised commercial division has long been recognised in places like London, Delaware North, and Victoria in Australia. It is one thing to have a commercial division and yet another to make these divisions have an interna­tional orientation.

This paper seeks to put these developments in comparative perspectives and examine normative, procedural, institutional issues and practical challenges that such endeavours entail. It will also assess and critically examine the legal/legis­lative infrastructure required to accommodate the establishment of hybrid judicial organs for cross border commercial disputes.