Forum Selling and Forum Marketing in International Commercial Disputes

In recent years, international commercial courts are mushrooming across the world. Examples include the Netherlands Commercial Court or the Singapore International Commercial Court. These courts are national courts specializing in cross-border, commercial disputes. Their multiple innovative features, such as the use of English as the court language or the appointment of foreign nationality judges, distinguish them from ordinary courts and have attracted the attention of academic literature. In addition, commentators have noted that, unlike ordinary courts, international commercial courts are part of broader state policies to attract foreign investment or dispute resolution and therefore aim at attracting cases. However, little is known on how this aim is actually shaping the courts’ practices, rules and case law.
This research studies international commercial courts from a novel perspective; that of forum marketing and forum selling. It explores why and how exactly international commercial courts are engaging in forum selling and forum marketing. Drawing from interviews with lawyers and judges, the study of case law as well as academic literature it presents a comparative analysis of how different international commercial courts make themselves more attractive to prospective litigants and identifies forum marketing and forum selling practices. Finally, the research explores how forum marketing and forum selling reshape civil procedure and their implications on access to justice. While acknowledging that international commercial courts may improve international commercial dispute resolution, it highlights that under circumstances the courts’ practices may have negative implications with regard to access to justice and the role of courts as public institutions.