On Friday, 5 May 2017, commercial courts from five continents gathered in London. This was the first time this has happened. Why now?
There were three reasons, according to Mr. Justice Blair and Mr. Justice Knowles, both of the English Commercial Court.
First, because users – that is, business and markets – will be better served if best practice is shared and courts work together to keep pace with rapid commercial change.
Second, because together courts can make a stronger contribution to the rule of law than they can separately, and through that contribute to stability and prosperity worldwide.
Third, because this is a means of supporting developing countries long encouraged by agencies such as the World Bank to enhance their attractiveness to investors by offering effective means for resolving commercial disputes.
The invitation, to meet and to form a Standing International Forum of Commercial Courts, came from the Lord Chief Justice of England & Wales, Lord Thomas, himself a former judge of the Commercial Court in London. It followed speeches he has delivered in Dubai, Singapore, Cayman Islands, London and (last month) Beijing.
His invitation was accepted by jurisdictions with a longer established commercial court offering and those with a relatively more recent offering. New York, Delaware, Australia, Singapore, Ireland, Hong Kong, and of course London, were among those accepting. And from the Gulf States, Dubai, Qatar, Abu Dhabi and Bahrain.
At a time of focus on “One Belt, One Road”, China was represented, with Hong Kong, itself one of the world’s great commercial centres, and so was Kazakhstan. Courts from Europe (Hamburg and the new English-language Netherlands Court) were around the table, as were offshore jurisdictions (e.g. Bermuda, Eastern Caribbean, Cayman Islands).
From Africa, Uganda, Sierra Leone and Rwanda were joined by Nigeria, which according to PWC projections could be 9th in the world league table of GDP by 2050. Through Scotland and Northern Ireland all parts of the UK were represented, and so too the major jurisdictions of Canada (Ontario) and New Zealand.
The representation was without exception at senior judicial level, including Heads of commercial court. 16 jurisdictions were represented by their Chief Justice.
The meeting was held at the Rolls Building, in the City of London and the centre for the courts (including the Commercial Court) which together comprise the Business & Property Courts of England & Wales. At other points of the programme, guests were warmly received at the Locarno Suite in the Foreign & Commonwealth Office, at Middle Temple and at the Royal Courts of Justice.
The meeting affirmed the importance and feasibility of cooperation and collaboration between all jurisdictions. The shared willingness to provide help to developing countries was also affirmed. The discussion then extended to enforcement, case management, technology, best practice, and the relationship between commercial courts, arbitration and mediation.
A consensus was reached on the immediate next steps to include the following:
- The Forum will now seek to produce a multilateral memorandum that explains how, under current rules, judgments of one commercial court may most efficiently be enforced in the country of another.
- The Forum will use a working party to examine in further detail how best practice might be identified, and litigation made more efficient. This will be with a view to a further multilateral document, to be further discussed at a next meeting of the Forum.
- A structure will be established for judges of the commercial court of one country to be able to spend short periods of time as observers in the commercial court of another.
- The Forum will also consider issues such as practical arrangements for liaison with other bodies, including arbitral bodies, to identify and resolve areas of difficulty.
England & Wales have agreed to provide the Secretariat to the Standing International Forum. The Secretariat will be based at the Rolls Building. It will be able to support, coordinate and enable the activity above, and future meetings of the Forum.
New York has kindly volunteered to host the next meeting of the Forum, which will be in Autumn 2018.
Why should all these jurisdictions dedicate time to a commercial court? Is arbitration – which has come so far in the last few decades – not a sufficient means for commercial dispute resolution?
The answer is that arbitration whilst hugely successful can never carry the whole burden. It is courts that can produce decisions for business as a whole. And arbitration depends on parties agreeing to it. Parties do not always agree, and when they do, they do not always honour their agreement, including at the stage of enforcement. In short, whenever a mandatory intervention is required, recourse will be made to courts. As many arbitrators gladly acknowledge, experienced commercial courts help make arbitration work.
Business, nationally and internationally, thrives in a stable legal environment, and that includes a proven ability to decide commercial disputes if they arise. In fact, a stable legal environment can prevent disputes, because it provides relatively predictable outcomes and so enables early settlement.
The focus on 5 May 2017 was on things we think can make a difference to users. And that will always include efficiency, speed and cost. As judges, we know that commercial dispute resolution whether in courts or arbitration is regarded by users as both too slow and much too expensive. We have a duty to address these concerns, and that is best done together.
Across such a wide range of jurisdictions there are different views, and different priorities. For some, domestic capacity-building is most important. Others have their eyes firmly fixed on the international market. There were, of course, some important jurisdictions absent. Our hope is that they will be present for the second and subsequent meetings. Enhancing, through collaboration, the just and effective resolution of commercial disputes is a prize worth having.