Commercial cases could one day be heard before joint international courts, involving tribunals made up of judges from each jurisdiction, according to an idea “thinking the unthinkable” floated by the Lord Chief Justice of England and Wales.
Meanwhile, the head of the judiciary has set in motion the creation of a forum of commercial courts to bring a common approach to the resolution of international disputes.
The project is to be headed by Mr Justice Blair, the judge in charge of the London Commercial Court, and has so far had a positive response from prospective members, the Lord Chief Justice said.
Giving a lecture entitled Commercial justice in the global village: the role of commercial courts last week to the Dubai International Financial Centre (DIFC) Courts and the DIFC Academy of Law, Lord Thomas addressed the issue of commercial courts and “how they can be made fully fit to underpin global prosperity in the 21st century” in the context of the digital revolution.
He observed the development of memoranda of guidance between commercial courts across the world and speculated that such cooperation could form the basis of joint hearings.
If technology advanced to enable such a move, it might in future be possible “to devise joinder of proceedings across jurisdictions: applying the same substantive law, with the parties and court determining which of the jurisdictions’ procedure and law of evidence to apply, with the tribunal made up of a judge from each jurisdiction – with perhaps a third judge chosen from a roster of international commercial judges, and parallel judgments being rendered”.
He admitted the idea was ambitious but asked: “Should not our thinking be that ambitious? Yes, we must think what is unthinkable in our current process.”
If such an international venture were possible, he said, it “may well be one possible means to cure the problem of effective cross-border enforcement. If a judgment is a judgment in both states, it is difficult to see what problems would arise were the parties to seek enforcement in either of them”.
Bringing international commercial courts together was necessary, said the Lord Chief Justice. He acknowledged this could be hampered by “an element of competition” between them but said: “I believe this can be done without compromising in any way our competiveness or our independence, in the same way that central bankers set about their duties to maintain international financial stability and growth.”
Putting the case for a forum of commercial courts, he said: “In our interconnected world, our global village, the judges of the commercial courts have a similar role in ensuring our global prosperity continues to be underpinned by an effective legal framework and by law which develops in harmony with the rapidly changing markets and commerce brought about by the digital revolution.
“No commercial court can do this on its own. The commercial courts of the world are not unconnected islands, but have a common duty working together to innovate and to lead.”
He had proposed the idea for the forum to international colleagues over the New Year vacation “with the full support of the senior judiciary of England and Wales”. It had met with a “very enthusiastic response” from “colleagues responsible for other commercial courts”.
He explained that its objective was “to build on and develop a more systematic approach to providing a common approach to the resolution of disputes and, as important, to developing the law to keep pace with the way our global village is developing”.
He added: “If we are able to start to develop more structured links, share best practices, consider problematic areas and novel developments, build that mutual confidence so important to the recognition of judgments of other courts and engage constructively with our court users, our courts will realise better their potential to ensure the prosperity and good order of the digital village.”
He stressed the forum would “be no talking shop. It must deliver concrete benefits”, adding: “I have no doubt we shall see these before too long.”
He expected to see the first symposia organised over the course of the next 18 months.
Topics that could be addressed included “cross-border enforcement, best use of IT, the response of commercial courts to topical issues in arbitration… how to enhance international co-ordination and, in the light of recent experience, how we can best respond to international financial crises and their aftermath”.