Commercial Courts: Contorting the idea of rule of law?

In 2004, Dubai created the Dubai International Financial Centre (DIFC), an independent jurisdiction based within the emirate of Dubai. This independent jurisdiction has its own independent legal system, which is based on English common law. The UAE amended its constitution in 2003 to facilitate the establishment of financial free zones which would be exempted from having to apply the rules and regulations of the UAE. Shortly thereafter, Qatar established a similar financial free zone. Ten years later, Abu Dhabi followed Dubai and set up its own financial free zone where the “common law of England (including the principles and rules of equity), as it stands from time to time” apply and have legal force. These courts are part of a broader phenomenon of international commercial dispute resolution competition, in particular across Europe post-Brexit. What sets these three examples apart is their situation in countries where the rule of law (by almost any definition) is in a sorry state and democracy is non-existent. The creation of these courts is, in of itself, an indictment of the rule of law in the countries. The use of these courts is also a particularly creative way reframe how these countries are presented from a rule of law perspective. First, they adopt common law, making a break from the civil law systems at the root of most Gulf Cooperation Country legal systems and implying that any lack of confidence that “outsiders” could have had with regards to the legal systems was because of this. Second, the courts coopt international commercial lawyers to promote these legal systems. International law firms drafted the regulations setting them up and are key beneficiaries of work going through these free zones. The involvement of foreign lawyers, as opposed to the lawyers from the domestic civil law system, again suggests that the systems are “developed”, once again subtly implying that they represent institutions that protect the rule of law. What is less frequently discussed is that these courts only have jurisdiction in a restricted set of scenarios, and criminal and political matters have been excluded from their purview. Finally, these courts benefit from the confusion over what Rule of Law is and the myriad ways in which it can be measured (with over 150 different indices so doing). By redirecting the discussion to a legal origins story (that is that common law is better than civil law for economic outputs) authoritarian regimes make use of flawed backward induction. If, as is accepted rule of law leads to improved economic development and if the same is true of common law systems, then these new courts must be evidence that these countries have high levels of rule of law. This paper propose to explore how the confusion over rule of law and the many bodies that measure it, alongside the rise of common law lawyers has been coopted by authoritarian regimes in the UAE and Qatar through the lens of the increasing, if flawed, association of common law with rule of law.