How Can International Commercial Courts Become an Attractive Option for the Resolution of International Commercial Disputes?

Download or read book How Can International Commercial Courts Become an Attractive Option for the Resolution of International Commercial Disputes? written by Shahar Avraham-Giller and published by . This book was released on 2023 with total page 0 pages. Available in PDF, EPUB and Kindle. Book excerpt: Arbitration has dominated the landscape of the resolution of international commercial disputes (that is, private disputes involving transnational connections). Nevertheless, the last fifteen years have witnessed a proliferation in the establishment of new commercial courts in several countries, with the aim of attracting international commercial disputes. This article makes the novel argument that such attempts are unlikely to render adjudication an attractive alternative to arbitration. It argues that for the new international commercial courts to fully realize their potential and produce a sustainable market of adjudication, some mechanism is needed to secure the enforceability of jurisdiction clauses and the judgments delivered by such courts in other jurisdictions. Unfortunately, however, the Hague Convention on Choice of Court Agreements 2005, which sought to do precisely this, has failed to gain international support. It failed to replicate the success of the New York Arbitration Convention 1958, although both adopt similar principles that enforce party choice of forum and facilitate enforcement of the resolution's outcome. This article provides the first attempt to analyze the reasons for this failure. To this end, it compares the political and legal conditions under which the two conventions were conceived, showing how the difference in these conditions led to lower international acceptance of the Hague Convention. This article supports the analysis by focusing on the most recent ratification of the Hague Convention, by the UK. We advance the novel argument that this case study demonstrates the important role played by the legal community in the ratification process. We show that, ironically, the UK's decision to quit the EU in order to restore national sovereignty was a major reason leading it to ratify the Hague Convention, thus giving up fundamental principles of common law that had granted English courts broad discretion as to whether to enforce jurisdiction clauses.