Transnational Commercial Disputes in an Age of Anti-Globalism and Pandemic

"In this book, senior judges and academics at the forefront of transnational commercial law in Asia, Australia, Europe, the US, and elsewhere, reflect on the implications of anti-globalism and the COVID-19 pandemic on international commercial dispute resolution (ICDR). The chapters consider: (1) What types of cross-border commercial disputes will arise in the future and what resources will be needed to respond to them in a cost-effective, time-efficient, and equitable manner? (2) Is there still merit in a multilateral approach to transnational commercial law and ICDR, despite the closing of borders, the rise of protectionism, and the disruption of global supply chains? (3) What reforms and innovations should courts, arbitrators, and mediators contemplate when navigating the post-pandemic landscape? (4) Can the accelerated use of remote technology in ICDR (as prompted by the pandemic) be leveraged to enhance access to justice for all? With a focus on the current crisis in globalism, as well as the associated problems of ensuring justice and fairness in the resolution of cross-border commercial and investment-state disputes along the Belt-and-Road and elsewhere, the book will be an invaluable resource for academics, judges and practitioners alike"-- Provided by publisher Foreword Preface: A Word about this Book and its Organisation Acknowledgements Contents List of Contributors Introduction: Justice in a Globalised Age I. Overview II. Globalisation and the Law: A Brief History III. Evaluating Globalisation: A Faith Misplaced? IV. Keeping a Light on for Globalisation V. Conclusion PART I: WHAT IS AN INTERNATIONAL COMMERCIAL DISPUTE? 1. A Bird's Eye View of International Commercial Dispute Resolution I. About this Chapter II. Special Features of International Commercial Disputes III. Party Autonomy and its Limits IV. Means for Achieving Convergence 2. International Commercial Dispute Resolution as a System I. The Nature of an International Commercial Dispute II. The Distinctiveness of International Commercial Dispute Resolution III. Understanding International Commercial Dispute Resolution as a System IV. Balancing Competing Interests V. Continued Convergence in International Commercial Dispute Resolution VI. COVID-19, the International Order and the System of International Commercial Dispute Resolution187 VII. Conclusion PART II: THE SWINGING PENDULUM: INTERNATIONAL COMMERCIAL ARBITRATION AND THE RISE OF SPECIALIST COMMERCIAL COURTS 3. The Landscape of International Commercial Courts I. Introduction II. ICCs in Different Countries III. Reasons for the Establishment of ICCs IV. The Benefits of ICCs V. The Problems of ICCs VI. Conclusion 4. The Driving Forces behind the Swinging Pendulum I. Introduction II. Historical Perspective: What are the Reasons for the Swinging Pendulum? III. Pros and Cons of the Swing IV. The Rise of ICCs V. Supposed Shortcomings of ICCs VI. Conclusion PART III: DAVID AND GOLIATH: INVESTOR–STATE DISPUTE SETTLEMENT 5. An Introduction to Investor-State Dispute Settlement I. The System of Investor-State Dispute Settlement II. Problems with ISDS III. Proposals for Reform and Possible Future Trajectories IV. A Radical Proposal: Formation of an Investment Court and Use of International Commercial Courts 6. The Way Forward in Investor–State Dispute Settlement: How Do We Balance the Needs of States with the Demands of Investors? I. Introduction II. Four Propositions III. A Glimpse into a Possible Future PART IV: THE PERFECT AS THE ENEMY OF THE GOOD – THE IMPORTANCE OF FINALITY AND CERTAINTY 7. The Need for Finality and Certainty in International Commercial Dispute Resolution I. Introduction II. Concurrent Proceedings III. Recognition and Enforcement of Judgments and Awards IV. Post-Pandemic Considerations 8. Towards the Just Resolution of Disputes: How Do We Balance Commercial Certainty and Achieving the Right Result? I. Introduction II. Defining and Evaluating the Policies ofFinality and Certainty in International CommercialDispute Resolution III. Managing Concurrent Proceedings IV. Recognising and Enforcing Judgments and Awards V. Impact of 2005 and 2019 HCCH Conventions onthe Recognition and Enforcement of Foreign Judgments VI. Issues Arising from the COVID-19 Pandemic PART V: THE LEX MERCATORIA AND THE CONVERGENCE OF INTERNATIONAL COMMERCIAL LAW 9. An Anatomy of the Lex Mercatoria I. The Concept of Lex Mercatoria II. Convergence of the Lex Mercatoria 10. Developing the Lex Mercatoria I. Focusing the Inquiry II. Finding Common Ground III. Towards a System of Transnational Civil Justice PART VI: THE IMPACT OF COVID-19 11. How the Pandemic has Changed the Landscape of International Dispute Resolution I. Introduction II. The Past III. The Present IV. The Future 12. Shaping the Future of International Dispute Resolution I. The Lessons of the Pandemic II. COVID-19, Technology and Cross-Border Dispute Resolution Procedure III. Fully Asynchronous Dispute Resolution Proceedings IV. Overall Conclusion Conclusion: Transnational Dispute Resolution, International Commercial Courts, and the Future of International Commercial Law I. New and Old Challenges in International Dispute Resolution II. Commercial Courts: Old Private Wine, New Public Bottles III. Charting a Course for the Future of International Commercial Courts IV. Conclusion Postscript List of Participants in the 3rd Judicial Roundtable: 29 September to 1 October 2021 Index