International Commercial Courts: next frontier or latest trend?
Chief Justice James Allsop*
The title to this session posits a dichotomy, but there may be more to say about inspiration, organic growth and public purpose than frontier or trend. 
The notion of “frontier” connotes expansion and territorial reach: the dealing with the Marchlands or territories where there is no or little law.  I do not think that to be an apt metaphor for insight. 
The description “trend” connotes fashion and change of behaviour or direction based on flow and perhaps a touch of caprice devoid of organic force or drive.  Again such metaphor is not apt for necessary or appropriate insight here.  
Avowedly internationally focused commercial courts or judicial chambers have emerged since 2004: Dubai (2004), Qatar (2009), Abu Dhabi (2015), Singapore (2015), Astana (2018), Frankfurt (2018), Paris (2018), China (2018) and the Netherlands (2019). They have sought to challenge the great sovereign commercial courts dealing with international litigation, especially the London Commercial Court. 
The inspiration for their rise can be readily understood.  By the turn of the 21st century after nearly half a century of the effects of the New York Convention on arbitral enforcement and the astonishing development of interconnected global commerce, a huge worldwide demand had grown for dispute resolution which was fair, just, practical and enforceable.  International commercial arbitration, both institutional and ad hoc, grew enormously to meet these commercial needs. Several great arbitral centres developed, to add to the long influence of cities such as London, Paris and New York. 
In many respects, the distinguishing features of arbitration cater most satisfactorily to the needs of international commerce: the contractually sourced and shaped focus of the tribunal; its chosen skill; and the ability to agree on procedure, including privacy, and on governing law to remove the risk of state sovereign actors. 
This burgeoning worldwide demand for an international system of justice (for that is what it is) involved the exponential growth of its own profession and lucrative professional activity. 
The activity of dispute resolution has been matched by the development of international commercial law: model laws, principles, conventions, directions and instruments on contract law, electronic commerce, international sale of goods, agency and distribution, international credit transfers and bank payment undertakings, international secured transactions, cross-border insolvency, securities settlement and collateral, conflict of laws, international civil procedure, and international commercial arbitration. 
Thus the late 20th and early 21st centuries were an era of active development of international legal principles in a fertile environment of active global commerce, in a prevailing framework of freedom of international trade. 
To put the matter thus hints at the geopolitical features which underpin the subject. 
Out of this environment, which included not only the attractions of international commercial arbitration, but some of its perceived disadvantages: sometimes over-elaborate, over-lawyered, slow and costly hearings, grew the idea of sovereign but internationally focused and organised courts.  
There had been thought and discussion of internationally structured courts established by trading countries jointly, but the model of sovereign establishment, with an international mandate, focus and organisation has taken hold.  
There was a concern in Singapore, a place where arbitration has flourished, that the SICC might undercut the arbitral work of the city.  But such concerns were misplaced.  There may be a degree of competition between arbitral and curial institutions, but the complementarity of the two is far more important.  Some disputes and some parties will be apt for, or favour, a public sovereign, but avowedly internationally structured, tribunal of skill, rather than an arbitral process.  The capacity to populate an international chamber or court with expertise from all parts of the world as part of a domestic commercial court of excellence provides not only the opportunity for primary (and appellate) commercial decision-making of the highest quality, but also arbitral supervision of exceptional quality.  
So the inspiration for these courts is sovereign: the attempt by different jurisdictions to participate in the “commerce” of international dispute resolution; but its success will be organic: in meeting the growing needs of commerce. 
The hybrid of sovereignty and internationality in primary decision-making, appellate review, and arbitral supervision will bring forth, I am sure, procedural innovation, cross-fertilisation of procedural approaches, the development of harmonising principles and the growth of a lex mercatoria through convergence.
One of the great American justices of the Supreme Court (Robert Jackson) speaking in 1953 for a Supreme Court of remarkable quality said the following about international maritime law.  He used words that inspire and lift the eyes.  We should not lose sight of the need for and importance of these ideals in world trade and the need for the rule of law in promoting the peaceful co-existence of competing legitimate self-interests.  Justice Jackson described international maritime law as follows (he could now be speaking of the developing international commercial law) :
… courts of this and other commercial nations have generally deferred to a non-national or international maritime law of impressive maturity and universality.  It has the force of law not from extraterritorial reach of national laws, nor from abdication of its sovereign powers by any nation, but from acceptance by common consent of civilized communities of rules designed to foster amicable and workable commercial relations.  
International or maritime law in such matters as this does not seek uniformity and does not purport to restrict any nation from making and altering its laws to govern its own shipping and territory.  However, it aims at stability and order through usages which considerations of comity, reciprocity and long-range interest have developed to define the domain which each nation will claim as its own.    

These are not rosy dreams.  They are, and have been, the reality of maritime law and commerce for millennia. They provide the underlying inspiration for international commercial law principles and international commercial law. International commercial courts drawing their members from around the world are apt to administer chosen law or international commercial law in a fashion that reflects this internationality.
International commercial courts will take their place in moulding and developing an international system of justice in partnership with arbitral institutions, ad hoc arbitration and national sovereign commercial courts.  I do not think they are a fashion or trend or new territory or frontier, but a strong and forceful part of the healthy organic growth of the international system of the rule of law in commerce.       

Sydney
10 March 2021