International Commercial Courts in the United States and Australia: Possible, Probable, Preferable?

Abstract

As worldwide interest in international commercial courts grows, questions arise as to whether individual nations can or should seek to compete in the “litigation market” by developing their own cross-border business courts. This essay compares the prospects of the United States and Australia in this regard, focusing on whether it is possible (Section II), probable (Section III), and preferable (Section IV) for one or both of these two federalized, common law nations to develop an international commercial court as part of their national judicial systems. The inquiry is particularly intriguing given that one country (the United States) has had a somewhat uneven relationship with international engagements while the other (Australia) is maintaining or increasing its connections to the rest of the world. Although this discrepancy could be used to explain the relative status of the debate about international commercial courts, which is much more advanced in Australia than in the United States, it is also possible that the distinctions between the United States and Australia are motivated by other factors. While neither country appears poised to create an international commercial court at the moment, the current analysis helps identify the types of factors that policy-makers can and should consider when contemplating reforms of this nature.