From Forum Selling to Forum Marketing: The Case of International Commercial Courts

From Forum Selling to Forum Marketing: The Case of International Commercial Courts The official website of the Netherlands Commercial Court (NCC) hosts a video with the court’s main features on display. The video highlights that the NCC was created to answer the global business community’s need for a court that swiftly and effectively resolves international disputes. According to the video, the NCC offers the best of both worlds; it uses English as the court language on one hand and applies Dutch civil procedure law on the other hand. Lastly, interested parties can easily reach the NCC in the Palace of Justice in Amsterdam just twenty minutes away from Schiphol airport. The NCC opened its doors in 2019 and is one of the international commercial courts, also known as international business courts, established in recent years. Other prominent examples are the Dubai International Financial Centre Courts (2005), the Singapore International Commercial Court (2015) and the China International Commercial Courts (2019). International commercial courts aim to attract cross-border commercial disputes often resolved in common law courts or arbitration by promising greater judicial specialization and applying their own, diverging rules of civil procedure. For instance, most of these courts use English as the language of court proceedings and apply rules that strongly resemble arbitration. Among the various innovative features of these new ‘species’ of courts, their effort to attract disputes by advertising and marketing their procedural virtues stands out. It stands out because it signals a change. It gives away that the days courts spoke through their judgments are fading away. In order to attract disputes, distinguish themselves from existing dispute resolution methods, and effectively compete with these and among themselves international commercial courts have to engage in marketing. Hence, the flip-side of forum selling is forum marketing. This paper focuses on the marketing accompanying the recent proliferation of international commercial courts in Europe and beyond. It first introduces us to the surge of international commercial courts and touches upon the reasons that motivated their creation. It then explains how the aim of these courts to attract disputes that often escape national jurisdictions has prompted a jurisdictional competition and in consequence a jurisdictional marketing. The paper lays down the tools international commercial courts employ to highlight their innovative features ranging from promo-videos and social media pages to even reaching the realm of academic writing. It then examines how the marketing of international commercial courts influences the academic discourse and impacts public justice in general. This paper argues that these marketing narratives obfuscate rather than elucidate the procedural merits of international commercial courts and infuse a market(ing) mentality in public justice that forecasts its increasing privatization.