The recently created Dubai International Financial Centre’s (DIFC) Courts and the Singapore International Commercial Court (SICC) aim to grant the same benefits to parties as international commercial arbitration, offering something of a hybrid; not quite arbitration, but not quite litigation in a national court either. However, their current model is little more than a national court in an arbitral tribunal’s clothing. Nevertheless, the advantages and disadvantages of the two systems seem to balance each other out overall, with the notable exception of the enforceability of the outcome.
The DIFC Courts’ proposed mechanism to transform its judgments into arbitral awards raise the question of definition for arbitral awards and disputes, and raises dilemmas with regard to the impact it has on the review of the decision solving the initial dispute. The broader implication of this innovative process is that it can create an enforcement mechanism of foreign court judgments in all New York Convention states, broadening the scope of the Convention beyond what it was envisaged to cover, while also essentially eliminating the judicial review intended to be performed under the Convention over decisions rendered on disputes.
Whether this innovative procedure will result in a more efficient form of harmonization, circumventing the difficulties posed by the absence of global harmonization on the recognition of foreign court judgments, or the risk of abuse will result in damaging already harmonized laws, will remain to be seen.Journal of International Arbitration