Introduction
This session on whether arbitration and the new international commercial courts (ICCs) are true rivals was moderated by Velimir Živković, Associate Professor at the University of Warwick, together with Michail Risvas, Partner at Withers LLP, Matej Pustay, Partner at CERHA Hempel, Miljana Bigović, Senior Associate at Moravčević Vojnović, and Niamh Leinwather, Secretary General of the Vienna International Arbitration Centre (VIAC).
They were joined by guest speaker Georgia Antonino (University of Birmingham), who presented her research on the rise of ICCs, alongside practitioner perspectives from the panel.
Why ICCs Are Emerging
Antonino explained that motivations vary across regions. In Europe, Brexit prompted the creation of new courts as states anticipated difficulties in recognising English judgments. In Asia and the Middle East, ICCs were established to project an image of business-friendly jurisdictions capable of handling cross-border disputes. Marketing and reputation-building have been key strategies in raising their visibility and credibility.
Comparisons with Arbitration
While some ICCs may offer lower costs and quicker proceedings, they cannot match arbitration’s confidentiality or the ability of parties to select decision-makers. Most importantly, arbitral awards benefit from the New York Convention, making them far easier to enforce internationally. By contrast, the enforceability of court judgments depends on limited bilateral or regional treaties. Despite innovation, arbitration remains more trusted and embedded in international practice.
Practitioner Perspectives
Practitioners confirmed that ICCs rarely feature in their drafting of dispute resolution clauses. Arbitration remains the default option because of its enforceability, predictability, and widespread familiarity. Some clients may prefer the transparency of courts or find reassurance in a judgment, but most still view arbitral awards as stronger legal instruments. Overall, ICCs were seen less as rivals and more as modernised forms of litigation.
Current Performance
The caseload of ICCs remains modest. The Netherlands Commercial Court has heard about 30 cases since 2019, while the Singapore International Commercial Court has handled around 90. The China International Commercial Court has dealt with fewer than 30, many transferred from lower courts rather than chosen directly by parties. The Dubai International Financial Centre Courts are more active, hearing over 100 cases annually, supported by compulsory jurisdiction.
Judges and Representation
European ICCs are staffed by national judges and usually limit appearances to domestic lawyers. By contrast, courts in Singapore, Dubai, and Kazakhstan have appointed internationally recognised foreign judges and allow foreign lawyers to appear in certain cases, measures designed to enhance credibility and global appeal.
Outlook
Panellists agreed that ICCs are unlikely to displace arbitration but could serve as valuable complements. They may appeal to parties seeking transparency or those hesitant about arbitration’s costs and flexibility. Their long-term success will depend on building reputations, attracting caseloads, and developing innovative collaborations, such as Bahrain’s arrangement linking appeals to Singapore.
Conclusion
Arbitration’s enforceability under the New York Convention ensures its continued primacy in resolving cross-border disputes. However, ICCs expand the landscape by offering alternative mechanisms that, while not direct rivals, can operate in parallel and complement arbitration in specific contexts.
