Editor's Note: The Third Seminar of the International Commercial Expert Committee of the Supreme People's Court and Reappointment Ceremony of the First Group of Expert Members was held successfully on Augest 25, 2022. Over 40 experts from more than 20 countries and regions focused on the theme of the Development, Challenges and Countermeasures of Cross-Border Commercial Disputes during the seminar. Extensive and in-depth discussions were held within the framework of four specific issues. The texts of speeches delivered by the participants would be posted on the CICC's website. 

THE LATEST DEVELOPMENT AND FRONTIER ISSUES OF THE INTERNATIONAL COMMERCIAL COURT

Steven Chong

Justice of Appeal of Singapore Supreme Court (Singapore)

Chief Justice Zhou Qiang, President of the Supreme People’s Court of the People’s Republic of China,

Judges and officials from the Supreme People’s Court of the People’s Republic of China, 

Members of the International Commercial Expert Committee, and distinguished speakers and guests, 

I am honoured to have been invited to share my views today. I propose to address four issues common to most international commercial courts. These are: the application of foreign law; the enforcement of judgments; the dynamic relationship between international commercial courts and the channels for alternative dispute resolution; and lastly, the benefits of cooperation between such courts. 

I. Foreign law

I begin with the application of foreign law; specifically, the determination of its content. There has traditionally been a distinction between common law and civil law systems in this regard. In common law systems, foreign law is generally proven as a matter of fact, with litigants providing expert evidence. On the other hand, in civil law systems, foreign law is generally considered a question of law and is determined and applied by the court ex officio. 

Each system has its advantages and disadvantages, but one of the great strengths of an international commercial court is that it is not inflexibly bound by the legal tradition of the jurisdiction in which it is located. There is scope for, and value in, an international commercial court building in some measure of flexibility in the procedure in which it determines foreign law. The Singapore International Commercial Court (“SICC”), for instance, is located within the common law system, but enables litigants to apply for foreign law to be determined based on the counsel’s submissions instead of foreign law expert testimony. 

II. Recognition and enforcement of judgments 

I turn now to the second issue concerning the recognition and enforcement of judgments. Often, an unfavorable comparison is made to international arbitration, which has a much more established system of recognition and enforcement under the New York Convention. 

However, I find that the perceived difficulty of recognizing and enforcing judgments of international commercial courts is often overstated. The key development in this area is the Hague Convention on Choice of Court Agreements, which is considered by many to have the potential to be for court judgments what the New York Convention is for arbitral awards. 

The Hague Convention has not quite reached the level of endorsement and entrenchment of the New York Convention. But already, key jurisdictions are represented: for instance, the European Union has ratified the Convention, and China and the United States are signatories to it. The presence of these key jurisdictions provides a powerful incentive for other jurisdictions to accede to the Convention. 

Apart from the Hague Convention, bilateral or multilateral agreements for reciprocal recognition and enforcement are important avenues to facilitate the enforceability of judgments. Singapore, for instance, has such agreements in place with several jurisdictions. 

Returning to the comparison with arbitration, it should be borne in mind that the New York Convention has had a significant head start as it was adopted in 1958. I am convinced that in time to come, the reach of Hague Convention is likely to expand. In the meantime, it is for each international commercial court to proactively grow its own network of bilateral agreements. 

III. Co-existence with channels for alternative dispute resolution 

My third point today concerns the dynamic relationship between international commercial courts and the channels for alternative dispute resolution. 

Matters of enforcement aside, there has been a growing recognition of some of the deficiencies and inefficiencies of international arbitration. It may be tempting to see the rise of the international commercial court as having come, broadly speaking, at the expense of alternative dispute resolution. 

However, the relationship between international commercial courts and alternative dispute resolution need not be so adversarial or binary. For instance, the SICC is part of Singapore’s vision as a regional dispute resolution hub, and case management conferences in the SICC proactively consider the viability of alternative dispute resolution and make recommendations accordingly. 

An international commercial court is more likely to be attractive and effective if it functions in tandem with other parts of its surrounding dispute resolution ecosystem, rather than in a competitive relationship. The importance of such integration is all the more pronounced in the present economic climate: as budgets of potential disputants shrink, so too do their appetites for litigation. Rather than initiating and being locked into protracted court battles, parties are more likely to favour integrated dispute resolution ecosystems which offer them a flexible suite of options to resolve their disputes. 

To that end, an international commercial court could consider, for instance, establishing channels for the transfer of disputes, or the effective communication of other available dispute resolution options to potential litigants. An overarching strategy is imperative for aligning the development of the court with the development of other dispute resolution channels.

IV. Competition and cooperation 

Finally, as the number of international commercial courts continues to grow, and as existing international commercial courts mature, it is my view and hope that a spirit of cooperation will ultimately prevail. 

 The potential benefits of such cooperation are numerous. The most obvious area of cooperation is the recognition and enforcement of judgments, which I have already mentioned. Outside of the Hague Convention, one of the frequent touchstones for recognizing or enforcing a foreign judgment is reciprocity. Judicial dialogue can be a useful avenue for courts to better understand whether reciprocal recognition and enforcement is available. For instance, in 2018, the Supreme Court of Singapore signed a memorandum of guidance with the Supreme People’s Court, setting out the respective processes pertaining to the recognition and enforcement of money judgments. 

More generally, cooperation provides an avenue for the exchange of best practices. Given the recent growth of international commercial courts, it should be expected that difficulties may arise, whether they be teething difficulties for newer courts or common issues facing all such courts. Further, competition notwithstanding, courts everywhere owe duties of fairness and efficiency to litigants and other stakeholders. The sharing of procedural and operational best practices would help address these issues and achieve these goals. 

An international commercial court that engages other courts regularly is also much more likely to be aware of judgments issued by those courts, and any developments therein. This allows the court to draw from a greater body of judgments and can contribute to refinements of its own jurisprudence. The more extensive such collaborative relationships are, the fuller the development of an international lex mercatoria. 

Finally, as I have noted, parties all over the world still harbour some hesitation in utilising international commercial courts over international arbitration. Concerns about competition with fellow international commercial courts should take a backseat to the shared goal of reinforcing the viability and attractiveness of international commercial courts as a preferred model for dispute resolution. In this regard, it bears mentioning that a rising tide floats all boats: the success of any international commercial court benefits all such courts.

V. Conclusion 

With that, I thank you for your attention and the invitation to speak today. 

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*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.