The Adjudication Business
69 Pages Posted: 12 Mar 2019 Last revised: 28 Jun 2019
Date Written: February 19, 2019
The traditional account of the competitive relationship between and among courts and arbitral tribunals for the business of adjudication includes three familiar narratives: First, this competition is a positive force, driving a “race to the top” for the most efficient dispute resolution. Second, litigation and arbitration are two very different alternatives. Third, parties prefer arbitration to resolve disputes arising from international commercial contracts.
This Article argues that the recent proliferation of international commercial courts around the world challenges all three of these common narratives. London and New York have long been competing to be designated the forum of choice in international commercial contracts—whether parties opt for litigation or arbitration. More recently, 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. These jurisdictions are embracing litigation at the same time that they are making their laws favorable to arbitration.
A closer look at the rise of these courts suggests first that the “race to the top” narrative is an odd fit. A desire to create the best possible dispute resolution mechanism is not the only or the primary driving force behind these courts, and will not be the metric against which their success is measured domestically. Second, despite the common U.S. rhetoric that litigation and arbitration are opposite methods of dispute resolution, or that a preference for one would indicate a disdain for the other, many governments look to attract both. New international commercial courts borrow some of arbitration’s most attractive features, like expert adjudicators, confidentiality, and customizable procedures. These courts thus raise questions about what characteristics of arbitration and litigation are fundamental and the public/private divide that they are assumed to represent. Third, while the future popularity of these new courts remains to be seen, their proliferation undermines accounts that parties “always” do or will prefer arbitration for international commercial disputes. The Article concludes by exploring the normative implications of this phenomenon and setting forth research questions for examining the future of these courts.
Note: This is a draft. Comments are welcome.
Keywords: Courts, Specialty Courts, International Commercial Courts, Litigation, Arbitration, International Commercial Arbitration, Contracts, Civil Procedure, the Market for Contracts, Law Markets, ADR
JEL Classification: K00, K10, K12, K33, K41
Suggested Citation: Suggested Citation