James Allsop

International Judge of the Singapore International Commercial Court (SICC)

Former Chief Justice of the Federal Court of Australia

It is an honour and a privilege to be with you all today, even if I am only available to do so via video.

For over two decades there has developed across the world a species of court that specialises in commercial law. This specialisation of expertise is crucial to gain the confidence of markets and governments.

These courts have developed in the Middle East and Central Asia. I will not list them because there are now so many. But the success of the commercial courts of Dubai, Abu Dhabi, and Singapore encouraged others to provide the same service. China has taken its place internationally with the China International Commercial Court and 18 international commercial tribunals including the SHICC (Shanghai International Commercial Court), in particular.

These courts are supported by the deep experience of the highest court in China: in particular, the great commercial skill of the Fourth Civil Division of the Supreme People’s Court, in maritime law, arbitration law and commercial law. That experience reflects a long-standing internationalism in Chinese commercial law and practice.

The specialised skill of international commercial courts such as the CICC and local international commercial tribunals is fundamental. Commerce demands, as it has done so for centuries, swift and reliable dispute resolution.

In centuries past, this could be done by merchants among themselves at fairs and in merchants’courts. International dispute resolution has its roots as much in those courts of merchants as in the sovereign courts of nation states. In a globalised, digitalised world, with complex international trade routes, supply chains,and modern digital infrastructure, specialised judicial skill has grown ever more vital and important.

We will continue to see the growth of international commercial courts. However, their success depends on two inter-related features: competence and trust.

These are courts designed for the skilled and fair resolution of international disputes concerning parties from different countries. Their competence must be apparent to, and their trust must be earned from, that international and cosmopolitan community.

Trust is ultimately the central question. It begins with observation of skill and competence in handling the subject matter. Commercial parties must see their disputes handled by judges who understand commerce. That is, however, only the beginning.

Commerce itself depends upon trust: not blind trust, but the degree of trust appropriate to the circumstances. The same is true for the institutions that resolve commercial disputes. Trust in those institutions ultimately rests on the even-handed fairness of their processes and decisions.

The rule of law is not the rule of algorithms or mere rules. Empathetic understanding of the justice of a dispute within the framework of law and principle is the essence of judging: it is the spirit of the judicial task.

All courts must win the trust of those before them. For an international commercial court, however, there is a particular challenge. It must win the confidence of the foreign merchant, trader or corporation: of the stranger.

As one of the greatest judges I saw at work once said upon his retirement: always remember the most important person in the courtroom: he meant the person (even if not yet known) who is to lose.

This observation captures something fundamental about the judicial task. The true measure of confidence in a court is not merely whether the successful party is pleased with the judgment, but whether the party who loses understands that it has been heard, treated fairly, and judged according to law and principle.

That question of trust may invite us to think even further about the forms which international commercial courts might take. One might contemplate, in time, courts constituted between nations by agreement or treaty: not the court of one nation or the other but a court drawing its authority from both. Maritime law may be particularly suited to such an institution. It is, after all, not simply the law of a place, but the law of an activity: a timeless activity which crosses borders and brings people, commerce and legal systems together.

China and another country, for example, might establish such a court, constituted by judges from both countries, to resolve disputes between parties from the two countries. The presence of judges drawn from different countries and legal traditions may itself assist in overcoming the unfamiliarity of the stranger.

Such an arrangement would allow parties to come before an institution in whose competence, independence and fairness each would have confidence. Such institutions may provide another means by which the trust necessary for international commerce can be built between nations and their peoples.

These possibilities may lie in the future, but the foundations upon which they would depend are being built now: through institutions which demonstrate that international commercial disputes can be resolved with skill, fairness and respect for different legal traditions. The CICC, with its deep skill and thoughtful and sophisticated procedures, will no doubt continue to take its place as such a court of which I have been speaking.

Thank you.