The Rise of the International Commercial Court: A Threat to the Rule of Law?

Abstract

Recent years have seen the meteoric rise of the concept of an ‘international commercial court’ in numerous jurisdictions: for example, Dubai established the Dubai International Finance Centre Courts in 2004, Qatar followed suit in 2009 and similar courts have been set up since in Singapore, Kazakhstan, China, Germany, France and the Netherlands. Much work has been done discussing the practicalities of such courts but little thought seems to have been given to the theoretical justification for, and theoretical problems posed by, such courts. In general, such courts are justified on the basis of party autonomy; however, it is not at all clear that party autonomy is the only, or even the main, consideration in international dispute resolution. States also have a clear interest in ensuring that disputes are decided in their jurisdiction to further the development and viability of their own legal system. Other theoretical issues which arise regarding such courts include whether justice is a commodity which can be bought and sold and the potential use of such courts to ‘whitewash’ the serious rule of law concerns that exist in the ordinary courts of certain jurisdictions.