The need for an Australian international commercial court to provide an alternative to cross-country arbitration is growing as more free trade agreements come to fruition, according to Victorian Supreme Court Chief Justice Marilyn Warren AC.
Chief Justice Warren and Justice Clyde Croft recently co-authored a paper titled An International Commercial Court for Australia – Looking beyond the New York Convention.
"Despite the undeniable success of international commercial arbitration, there is a growing recognition of a need for an alternative to arbitration for international disputing parties," the paper reads.
The inherent differences between arbitration and litigation demonstrates why the establishment of international commercial courts won’t threaten the practice of international commercial arbitration, according to Chief Justice Warren AC and Justice Croft.
"This is because international commercial courts are not a replacement for arbitration, but rather they add to the range of options available to parties involved in international commerce."
Chief Justice Warren AC and Justice Croft said the need for an international commercial court is heightened by the growing number of free trade agreements coming to fruition.
"When the significant trade agreements negotiated by the federal government are considered with respect to Asia, especially China, and the Pacific, the opportunities offered by an Australian international court are almost boundless," the paper reads.
"Indeed, there is a symmetry in the establishment of an Australian court which would complement the trade agreements."
The court would be high tech, and would fast track international business disputes to free up local courts.
There are presently five prime examples of courts, which have been described as 'international commercial courts'.
They are the Singapore International Commercial Court, the London Commercial Court, the Qatar International Court, the courts of the Dubai International Financial Centre and the Abu Dhabi Global Market.
Chief Justice Warren AC and Justice Croft said the manner in which other international commercial courts have been established and developed will provide useful guidance in the establishment of an Australian international commercial court, but differences would be taken into account.
"An obvious difference in Australia is its federal system of government and courts. On one level, it might be thought that this is an inhibition to national action, but thoughtful consideration of possible models indicates, rather, that the Federation has the strength of bringing together diverse thought and experience and the legal and economic environments and experience from throughout a diverse continent," the paper reads.
"Moreover, the establishment of an international commercial court provides the opportunity for the nation as a whole to present an integrated commercial court to the region and to the world."
Victorian Bar Association president Paul Anastassiou QC said the proposal needed strong government support given a growing demand for commercial dispute resolution in the Asia-Pacific region, according to the Australian Financial Review.
"It would enhance Australia's reputation as a safe home for international capital and expand the export of high-value added legal services, financial services sector and the provision of banking and insurance services," Mr Anastassiou said.
A spokeswoman for Federal Attorney-General George Brandis said the government was considering several proposals from the states and territories for the establishment of an international commercial court in Australia.
"Australia has many advantages and strengths as a centre for the resolution of international commercial disputes," she said, according to the Australian Financial Review.
"The government believes the establishment of such a centre would be of great value to Australia and is continuing to consult with the legal profession and the judiciary on the proposals."