Written by Maryam Salehijam (RDO) | Edited by Josh Lee
International commercial courts (“ICCs”) have been gaining attention as a new forum for the resolution of commercial disputes. Notable examples include the London Commercial Court, the Dubai International Financial Centre Courts (“DIFCC”), the Netherlands Commercial Courts, and the Singapore International Commercial Courts (“SICC”). There are commentaries and articles that discuss the purpose of ICCs and how they complement arbitration in the international dispute resolution landscape. This article does not intend to wade into that well-traversed discourse. Suffice it to say that ICCs broadly serve the following purposes:
- Provide a platform for cases that are better suited for a process that is “relatively open and transparent, equipped with appellate mechanisms, the options of consolidation and joinder, and the assurance of a court judgment”[1];
- Allow disputants to avoid problems faced by arbitration (e.g. increasing judicialization and laboriousness in process resulting in delays accompanied by rising costs, unpredictability in the enforcement of arbitral awards, or lack of consistency in arbitral decisions)[2]; and
- Facilitate the harmonisation of commercial laws and practices.
As ICCs are a modern development, they have attempted to incorporate modern technologies to enhance their ability to deal with the cross-border, large-scale nature of the cases that they deal with. This article takes a quick look at the following two questions:
- To what extent should the adoption of technology be a priority for an ICC?
- Would ICCs be able to leverage the upcoming wave of online dispute resolution (“ODR”)?
To what extent should the adoption of technology be a priority for an ICC?
Undoubtedly, a modern court ought to incorporate as many technological advancements as it can. Doing so is arguably not simply a matter of branding, but a necessity. Given the potentially immense claims and the significance of a judgment from an ICC, the use of technology could allow an ICC judge to better understand the issues at play, make better decisions – all at a lower cost. This in turn enhances the ICCs’ ability to dispense justice in complex commercial cases.
This is a view shared by ICCs today. The SICC, for example, uses a range of technological tools to facilitate litigation before the ICC. This includes the use of court e-document systems (such as the e-Litigation system), multiple video-conferencing-capable screens in court, including the use of touchscreen displays for witnesses to make annotations virtually on a document, and digital and real-time transcription services.[3] As another example, the DIFCC also cites technological innovation as one of its strategic goals. In line with this goal, the DIFCC launched the Courts of the Future Forum and the world’s first “Court of the Blockchain” in 2017 and 2018 respectively, with the aim of harnessing the power of new technologies in court work – such as using blockchain technology for the secure and automated enforcement of court judgments in multiple countries.[4]
The incorporation of modern technologies, however, comes with limits. All modern developments face drawbacks. For instance, there is at present no consensus regarding the appropriateness of AI in the administration of justice, or the future stability of blockchain technology. In the author’s view, while being forward-looking, it would also be prudent for ICCs to remain cautious when adopting new and untested technologies.
Would ICCs be able to leverage on ODR in their work?
From the author’s point of view, leveraging ODR remains an area where ICCs seem to have fallen slightly behind in adopting. While this point could beg the question of what ODR entails, it is arguable – on the basis that ODR means the use of technology in dispute resolution – that some ICCs have already been using ODR in their work. The use of online court document systems in the SICC, for instance, is a good example. Nevertheless, there remains a distinct lack of the utilisation of what most might envision as ODR, which is the resolution of disputes online (such as through an online platform) without the need for parties to meet in a physical courtroom.
Why might this be so? At the expense of not being able to cover this issue in detail, the author posits that one main reason could be due to the nature of disputes being heard in ICCs being inappropriate for ODR platforms. While ODR platforms are able to increasingly handle complex cases, there remains distinct concerns with a complex cross-border dispute being heard entirely online. The discomfort could stem from technical considerations, or (possibly) a basic cultural tendency to prefer being able to see a judge when such complex cases (with high stakes) are being heard. Be that as it may, as technical issues and cultural notions of having a dispute get heard in court slowly dissipate, it may well be possible to see at least some basic aspects of cross-border commercial disputes being resolved by ICCs online in the near future.
This post is intended as a trigger for a bigger discussion on how the future of international commercial dispute resolution ought to look. Therefore, the author would like to call upon readers to share their views and questions or contact us at Resolve Disputes Online or LawTech.Asia with a short post as a response.
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This post is part of a collaboration between Resolve Disputes Online (RDO) and LawTech.Asia. This collaboration aims to explore technology and its impact on the legal industry and access to justice. Find out more about our collaboration here.
(Featured Image Credit: Foster + Partners)
[1] <https://www.supremecourt.gov.sg/docs/default-source/default-document-library/media-room/opening-lecture—difc-lecture-series-2015.pdf>
[2]<https://www.supremecourt.gov.sg/docs/default-source/default-document-library/media-room/opening-lecture—difc-lecture-series-2015.pdf>
[3] http://journalsonline.academypublishing.org.sg/Journals/Singapore-Academy-of-Law-Journal/e-Archive/ctl/eFirstSALPDFJournalView/mid/495/ArticleId/1168/Citation/JournalsOnlinePDF
[4] See <https://www.difccourts.ae/2018/07/30/difc-courts-and-smart-dubai-launch-joint-taskforce-for-worlds-first-court-of-the-blockchain/>. The DIFCC’s Courts of the Future Forum aims to design guidelines and prototype a commercial court that can operate anywhere in the world. Going further, the DIFCC’s Court of the Blockchain aims to use blockchain for various aims, including: (a) aiding the verification of court judgments for cross-border enforcement; (b) handling disputes arising out of private and public blockchains; and (c) explore how blockchains can be used to make dispute resolution more efficient.