Transnational Access to Court for Commercial Claims: The Shortcomings of International Commercial Arbitration and Litigation

Abstract

Access to Court is a gobal principle, though the consequences of this principle are interpreted differently in the U.S. and Europe. Neither International Commercial Arbitration nor International Litigation can offer an effective access to court for cross-border commercial contracts. Whereas international commercial arbitration is often associated with the global enforceability of arbitral awards because of the New York Convention, International Litigation bears the risk that a court judgment might not be enforced abroad. Therefore, international commercial arbitration is often described as the standard dispute resolution mechanism for international commercial contracts.

However, this paper shows that International Commercial Arbitration is often no real option in practice for small claims because its costs are too high for small claims. On the other hand, in some countries like e.g. Germany, it is cheaper to litigate smaller commercial claims than to arbitrate, but national courts are often not structured for the specifics of cross-border claims.

Against this backdrop, the paper demonstrates how commercial litigation can learn from commercial arbitration and vice versa. First, it is defined what can be understood as the core of the access to court right worldwide (B.). Second (C. and D.), international litigation and arbitration are analyzed from an access to court perspective and it is asked if international commercial arbitration has to be considered as purely voluntarily or if the fact that international commercial arbitration is sometimes considered as “monopoly” excludes voluntariness. Third, is is outlined how the existing transnational access to court gap could be filled (E.).

Keywords: Enforcement, judgment, Access to Court, arbitral award, Hague Convention, New York Convention, costs, social contract, European Convention on Human Rights, international transactions, commercial law, access to justice gap, global governance, fees, denial of justice

JEL Classification: A14, B15, F1, F14, F15, F23, K12, K4, K41, K42, L22, L14