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The Rise of International Commercial Courts in
Europe and Asia
Dr Nino Sievi, LL.M., CMS von Erlach Poncet AG, Zurich
Timişoara, 2 November 2018
Europe - London
• Commercial Court (established in 1895)
• Flexible case management under CPR
• High quality judges
• Largely international cases (70-90%
involve at least one foreign party)
• Recently moved to new building with
modern infrastructure
Timişoara, 2 November 2018
Europe - Germany
• Special chambers for international
commercial cases at regional courts
– Frankfurt since 1 January 2018
– Hamburg since 1 May 2018
• Hearings in English (if agreed), but written
briefs and judgments still in German
• No special procedural rules
• No foreign judges
Timişoara, 2 November 2018
Europe - Paris
• Two protocols with Paris Commercial
Court and Paris Court of Appeal
• Applicable to proccedings after 1 March
2018
• Special procedural rules (eg timetable,
cross-examination)
• Hearing in English, briefs in French
• No foreign judges
Timişoara, 2 November 2018
Europe - Netherlands
• Netherlands Commercial Court,
specialized chambers at Amsterdam
District Court and Court of Appeals
• Unlikely to open before 2019
• English as language of proceedings
• Low court fees, max. EUR 20'000
• NCC Rules
• No foreign judges
Timişoara, 2 November 2018
Europe - Brussels
• Brussels International Business Court
• Expected to open on 1 January 2020
• English as language of the proceedings
• Selected experts from foreign jurisdictions
sitting as judges
• Procedure based on UNCITRAL Model Law
• No regular appeal
Timişoara, 2 November 2018
Europe - Zurich
• Project: Zurich International Commercial
Court
• Reaction to rise of international
commercial courts in Europe and Asia
• English as language of proceedings
• Started January 2018, currently motion in
parliament of Canton of Zurich and
deliberations about amendments of Code
of Civil Procedure
Timişoara, 2 November 2018
Asia - China
• International Commercial Courts in
Shenzhen and Xi'
• English not language of proceedings
• One-stop dispute resolution mechanism
• No appeal
• No foreign judges, but International
Commercial Expert Committee
Timişoara, 2 November 2018
Asia - Singapore
• Singapore International Commercial Court
• Openend in January 2015
• Foreign judges
• Flexible case management
• Special procedural rules (eg disclosure,
confidentiality)
• Slowly increasing case numbers
Timişoara, 2 November 2018
Will the rise continue?
• As competition/alternative to arbitration
– Enforceability as key driver: Hague Convention
2005
– "Moral hazard" of arbitrator appointments
– Appeal mechanism
– Costs
– Flexibility vs predictability of procedure
Prediction: There is demand for an (international)
alternative to arbitration, especially for SME
Timişoara, 2 November 2018
Will the rise continue?
d
International Arbitration Survey, Queen Mary, 2018
Timişoara, 2 November 2018
Will the rise continue?
d
International Arbitration Survey, Queen Mary, 2018
Timişoara, 2 November 2018
Will the rise continue?
• As competition/alternative to London
– Effects of Brexit
– Dominance of English law
– Costs
– "Vicious" cycle of predictability
Prediction: Unlikely that new commercial
courts will outperform London, unless
preferences in substantive law changes
Timişoara, 2 November 2018
Will the rise continue?
The ICC 2013 Statistics
Timişoara, 2 November 2018
Will the rise continue?
Cuniberti, The International Market for Contracts –
The Most Attractive Contract Laws, 34 Nw. J. Int'l
L. & Bus. 455 (2014)
Timişoara, 2 November 2018

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The Rise of International Commercial Courts in Europe and Asia

  • 1. The Rise of International Commercial Courts in Europe and Asia Dr Nino Sievi, LL.M., CMS von Erlach Poncet AG, Zurich Timişoara, 2 November 2018
  • 2. Europe - London • Commercial Court (established in 1895) • Flexible case management under CPR • High quality judges • Largely international cases (70-90% involve at least one foreign party) • Recently moved to new building with modern infrastructure Timişoara, 2 November 2018
  • 3. Europe - Germany • Special chambers for international commercial cases at regional courts – Frankfurt since 1 January 2018 – Hamburg since 1 May 2018 • Hearings in English (if agreed), but written briefs and judgments still in German • No special procedural rules • No foreign judges Timişoara, 2 November 2018
  • 4. Europe - Paris • Two protocols with Paris Commercial Court and Paris Court of Appeal • Applicable to proccedings after 1 March 2018 • Special procedural rules (eg timetable, cross-examination) • Hearing in English, briefs in French • No foreign judges Timişoara, 2 November 2018
  • 5. Europe - Netherlands • Netherlands Commercial Court, specialized chambers at Amsterdam District Court and Court of Appeals • Unlikely to open before 2019 • English as language of proceedings • Low court fees, max. EUR 20'000 • NCC Rules • No foreign judges Timişoara, 2 November 2018
  • 6. Europe - Brussels • Brussels International Business Court • Expected to open on 1 January 2020 • English as language of the proceedings • Selected experts from foreign jurisdictions sitting as judges • Procedure based on UNCITRAL Model Law • No regular appeal Timişoara, 2 November 2018
  • 7. Europe - Zurich • Project: Zurich International Commercial Court • Reaction to rise of international commercial courts in Europe and Asia • English as language of proceedings • Started January 2018, currently motion in parliament of Canton of Zurich and deliberations about amendments of Code of Civil Procedure Timişoara, 2 November 2018
  • 8. Asia - China • International Commercial Courts in Shenzhen and Xi' • English not language of proceedings • One-stop dispute resolution mechanism • No appeal • No foreign judges, but International Commercial Expert Committee Timişoara, 2 November 2018
  • 9. Asia - Singapore • Singapore International Commercial Court • Openend in January 2015 • Foreign judges • Flexible case management • Special procedural rules (eg disclosure, confidentiality) • Slowly increasing case numbers Timişoara, 2 November 2018
  • 10. Will the rise continue? • As competition/alternative to arbitration – Enforceability as key driver: Hague Convention 2005 – "Moral hazard" of arbitrator appointments – Appeal mechanism – Costs – Flexibility vs predictability of procedure Prediction: There is demand for an (international) alternative to arbitration, especially for SME Timişoara, 2 November 2018
  • 11. Will the rise continue? d International Arbitration Survey, Queen Mary, 2018 Timişoara, 2 November 2018
  • 12. Will the rise continue? d International Arbitration Survey, Queen Mary, 2018 Timişoara, 2 November 2018
  • 13. Will the rise continue? • As competition/alternative to London – Effects of Brexit – Dominance of English law – Costs – "Vicious" cycle of predictability Prediction: Unlikely that new commercial courts will outperform London, unless preferences in substantive law changes Timişoara, 2 November 2018
  • 14. Will the rise continue? The ICC 2013 Statistics Timişoara, 2 November 2018
  • 15. Will the rise continue? Cuniberti, The International Market for Contracts – The Most Attractive Contract Laws, 34 Nw. J. Int'l L. & Bus. 455 (2014) Timişoara, 2 November 2018

Editor's Notes

  1. Parties have option to opt for court
  2. Only on vluntary basis in some regards, eg law of evidence, under NCC Rules Article 8.3 Evidentiary agreement If parties have entered into an agreement by which they elect to depart from the statutory rules of evidence, they must notify the court in their first written submission and submit the agreement. The court will disregard an evidentiary agreement where the agreement concerns proof of facts to which the law attaches consequences that are beyond the autonomy of parties to agree, or where the agreement is unenforceable under the CC or applicable foreign law.
  3. Slef financing international court Subject to potential amendments in Parliament, the main procedural hallmarks of the BIBC can be summarised as follows: the procedure will be conducted in English (notices and submissions, evidence, hearings, judgments, etc.); the procedure will be based on the UNCITRAL Model Law on international arbitration; the cases will be heard by ad hoc chambers of three judges, one professional and two lay judges (appointed by the president of the BIBC on the basis of a panel of Belgian and international experts in international business law), assisted by the Registrar of the Brussels Court of Appeal; the BIBC will be granted the power to issue provisional and protective measures (including upon ex parte requests); no appeal will be open against the BIBC’s decision (with the exception of an opposition/tierce opposition before the BIBC for absent parties/interested third parties, and a pourvoi en cassation on points of law before the Supreme Court); the BIBC should be self-financing and the court fees are therefore going to be significantly increased (to around € 20,000/case). provided that the parties have agreed to the BIBC’s jurisdiction before or after the crystallisation of their disput
  4. Not only voluntary basis, transfer from Higher People's court
  5. Not only voluntary basis, but also transfer from regular High Court