THE STANDING INTERNATIONAL FORUM OF COMMERCIAL COURTS: 4TH FULL MEETING, SYDNEY
“SIFoCC playing its part as a cornerstone of a transnational system of commercial justice”
2. International judicial dialogue is an important driver of meaningful convergence. This takes place not only through the publication of judgments which are considered by courts in other jurisdictions, but also through direct communication and collaboration between judges across jurisdictions. Examples of this include organisations like the Standing International Forum of Commercial Courts (SIFoCC), and the extremely successful use of court-to-court communication in cross-border insolvency cases.
3. There are a number of ways in which we can intentionally work to enhance the transnational system of commercial justice. One is by developing common approaches to the management of conflicts over where and how a transnational dispute should be resolved, and the standards that should apply to the conduct of arbitration and mediation. Another is by raising the capabilities of adjudicators to tackle challenges such as the growing complexity of disputes, and to address the new legal issues that will be raised by global problems such as climate change.4. These are all areas in which SIFoCC is well-placed to contribute. Moving forward, SIFoCC should build formal relationships with leading arbitration and mediation institutions and bring the stakeholders in the transnational system of commercial justice together in an ongoing conversation, so as to ensure that dispute resolution providers around the world are equipped to support the delivery of justice nationally and internationally.
1. The Standing International Forum of Commercial Courts (“SIFoCC”) was established at the initiative of Lord Thomas in 2017 when he was Lord Chief Justice of England and Wales. In the years since then, it has grown in its membership and also in the ambition of its projects and conferences. Today, it is the largest gathering of commercial courts and judges from around the world, all united in their mission to deliver justice to parties engaged in transnational commerce. I congratulate Lord Thomas, Mr Justice Robin Knowles and the Secretariat for all their efforts in bringing about the remarkable growth of the Forum within such a short period. This suggests that it does have a vital role to play: those who participate in SIFoCC’s programmes are all busy people and they would not continue to make the effort unless they believed it was worth doing so.
2. I suggest today that having gotten this far, we should now look ahead to how we might conceptualise the next chapter of the SIFoCC journey. My principal suggestion this evening is this: transnational commerce remains a key driver of global efforts to sustain growth, alleviate poverty and improve lives. And given the extent to which trade today is truly transnational, the need of the moment is a commitment to develop and sustain a transnational system of commercial justice. I think SIFoCC is exceptionally well-placed to drive this effort, and later in my speech, I will seek to illustrate this with reference to the themes of this year’s Meeting, which reflect some of the most important issues faced by those of us engaged in international commercial dispute resolution (or “ICDR”) today.
3. I develop my thesis in three parts:
(a) First, I will explain what I mean by a transnational system of commercial justice and will argue that such a system is already in place, albeit as a work in progress.
(b) Next, I outline why and how we should work intentionally to enhance the development of this system.
(c) Finally, I will outline some ideas for how SIFoCC might evolve to play a central role in this effort.
4. At the heart of transnational commerce lies the phenomenon of globalisation. While it is impossible to speak of globalisation today without acknowledging the many challenges it faces, I believe, as I have argued on a number of recent occasions, that globalisation is here to stay. This is not least because the greatest challenges that confront us today are global challenges that demand transnational collaborative responses: geopolitical instability, global health security, the erosion of truth, stagflation, structural income and wealth inequality, and the climate crisis. None of these can be addressed by our retreating into national siloes. And addressing them will be that much harder if we cannot maintain a healthy flow of transnational commerce to sustain economic growth, and offer the hope that we can alleviate poverty and optimise the returns on our limited resources for the benefit of all.5. Much can be said for building a more sustainable vision of globalisation than what we have hitherto seen. The precise vision we ought to embrace for the future will be a matter for discussion, contestation and experimentation for years to come. Nevertheless, it must be a vision of a globalised, interconnected world; and not a fragmented one made up of insular blocs standing apart. I outlined aspects of this vision at a lecture I delivered in Perth earlier this year, and I will develop some of those points here.
A. The importance of a transnational system of commercial justice6. Whatever shape the future of globalisation takes, the law will remain a critical part of the infrastructure of commerce. This can be traced back to early civilisations, but a more proximate starting point for understanding the law’s role in transnational commerce is the law merchant, or lex mercatoria: a common body of rules and customs widely adopted by merchants in Europe around the Middle Ages. This was a system of law where rules were applied throughout the trading region in a broadly consistent way by means of a network of courts and informal adjudication that prioritised speed and efficiency. From the 17th to the 19th centuries, these rules were gradually assimilated into national legal systems and largely lost their transnational character. As a consequence, international commercial law is today often thought of less as part of a coherent system and more as a hodgepodge of rules from different sources.
12. None of this means that the entire corpus of commercial law must be the same everywhere. Not only would that be unachievable, the laws of each jurisdiction reflect a compromise between the competing political, social and economic realities within that jurisdiction. But even so, in some select areas, we can attain uniformity; in others, we can pursue meaningful convergence; and in the remaining areas, we can at least aim to acquire an understanding of our principled differences. And for the reasons I have just explained, these are worthy goals for us to pursue. To achieve them, we should see the body of laws that govern international commerce and ICDR as well as the institutions involved in applying them from the perspective of a system rather than as a mere compilation of rules administered by discrete and disconnected entities: in short, we should seek to develop a modern-day lex mercatoria.
C. International judicial dialogue as a driver of convergence13. The examples I have just discussed also illustrate the importance of what I call the drivers of meaningful convergence. In domestic law, we take it for granted that the law is made and refined by legislatures and courts. On the international plane, there is no single authority that has responsibility for the development of the law. Instead, convergence is driven by a multitude of stakeholders with varying degrees of coordination. Prime amongst these are international organisations, such as UNCITRAL, which promulgate international instruments such the Model Law and the CISG.
(c) And at the height of the COVID-19 pandemic, SIFoCC issued two COVID-19 memoranda, in which member courts pooled their experiences and lessons learnt from how they used technology to sustain the delivery of justice during the pandemic.
17. The remarkable work SIFoCC has already done should, I suggest, be seen as a precursor to a more ambitious goal: Imagine an international community of leading commercial judges, international adjudicators and third party neutrals, engaging in direct dialogue in the endeavour to develop and refine solutions and responses to the challenges that face all of us in the world of ICDR. Happily, we have just taken the first step in this direction with this year’s SIFoCC Meeting. I would like to situate the discussions we have had today and which we will have tomorrow within this broader context of developing a transnational system of commercial justice. Our topics of discussion will make a direct contribution towards two important facets of this undertaking: first, improving ICDR by having it function more as a system; and second, raising the effectiveness and the capabilities of adjudicators and indeed, of the system as a whole.
II. Part 2: Intentionally working to enhance the system
A. Improving the function of international commercial dispute resolution
i. Jurisdictional conflicts19. In these situations, commercial courts will typically be the ultimate arbiters of where disputes are to be adjudicated and whether recognition should be accorded to the outcomes of other proceedings. In this way, they are akin to the control centres of the ICDR system. There is no single pre-determined court that will serve as the control centre of any given dispute. Instead, each court has the prerogative to rule on jurisdictional disputes that pertain to the proceedings before it. It follows from this that we should strive to develop broadly common approaches to manage and reduce jurisdictional conflicts. The central guiding principle should be to minimise costs and uncertainty arising from the possibility of jurisdictional arbitrage and the re-litigation of decided issues, within the overarching aim of doing what is just in the circumstances. The rules that courts have developed in areas such as the enforcement of arbitration agreements, the effect of exclusive jurisdiction clauses, rules for managing lis alibi pendens, and the doctrine of res judicata, should be understood in this light, and it might be surprising how much common ground there is on these points among different jurisdictions. Such commonality would be less surprising if we thought of these rules not as a strategy to dominate a contest for turf, but as part of an effort to introduce order and predictability within the ICDR system.
ii. Standards for the conduct of arbitration and mediation21. Adopting a systematic perspective would likewise enable us to see commercial courts as playing a vital role in maintaining quality standards for the conduct of arbitration and mediation. In the context of arbitration, courts will have to rule on contests as to the fairness of the process and on allegations of breach of natural justice. In doing so, they must strike a balance between safeguarding the integrity of the arbitral process, and not permitting disgruntled parties to contrive such allegations just to set aside the award – a phenomenon that has led to the coining of the term “due process paranoia”. Divergence in the jurisprudence of different courts on these standards can cause confusion and compromise the conduct of effective arbitration.
B. Enhancing the efficacy of adjudication24. A second facet of ICDR in which SIFoCC can lead the way is in raising the effectiveness of adjudication and the capabilities of adjudicators. I have in mind new types of issues or challenges that all of us involved in international dispute resolution are likely to face. Let me illustrate this with some examples.
ii. Transnational issues27. Looking further ahead, the global issues that I referred to at the start of my address will be another emerging source of complexification which we cannot afford to leave to be addressed within jurisdictional siloes. The law’s response to climate change is a central example. This can come at a number of levels. First, tremendous investment will be needed as part of the global response to climate change, and many of these will inevitably give rise to disputes that will need to be adjudicated. Second, through the Chancery Lane Project I mentioned earlier, and other avenues such as counterclaims in investor-state arbitration for damage caused by the investor to the environment, we may have to reconsider our understanding of the usual patterns of legal rights and obligations in transnational commerce. Third, and most significantly, citizens may seek to hold governments, and perhaps also businesses, directly accountable for their contributions to climate change or their failure to mitigate it.
C. The ICDR system in action29. Let me pull these threads together with an example of how systematic thinking has informed remarkable advances in the approach to managing complex international disputes in the field of cross-border insolvency. The Nortel Group comprised more than 130 companies located in more than 100 countries. Following its insolvency, some US$7.3 billion was raised from the sale of the Group’s intangible assets. The problem was that it was impossible to view these assets as being located in any one jurisdiction or owned by any one subsidiary. As the Ontario Superior Court of Justice described it, the Nortel Group was a “highly integrated multinational enterprise with a matrix structure that transcended geographic boundaries and legal entities”. This could be said of any number of large companies today. The Ontario Superior Court and the US Bankruptcy Court for the District of Delaware decided to hold a joint trial to determine how to allocate the sale proceeds. Under an agreed cross-border insolvency protocol, joint hearings took place before both courts with the judge, the lawyers and the witnesses in each courtroom connected to each other electronically. Outside of the hearings, the two presiding judges communicated directly with each other in accordance with the protocol, and were able to determine that they could reach consistent rulings to distribute all the money. This is a stunning example of courts, the parties and their lawyers taking a systems-based approach to the resolution of a hyper-complex transnational dispute. If the Ontario and US courts had chosen to act within their own jurisdictional siloes, it would have been much more difficult, assuming it were possible at all, for the Group to be wound up in an orderly manner that preserved value for its creditors.
* I am deeply grateful to my law clerk, Perry Peh, and my colleagues, Assistant Registrars Huang Jiahui and Tan Ee Kuan, for all their assistance in the research for and preparation of this address.
 Sundaresh Menon, “The Law of Commerce in the 21st Century: Transnational commercial justice amidst the wax and wane of globalisation” (Lecture hosted by the University of Western Australian Law School and the Supreme Court of Western Australia, 27 July 2022) at https://www.judiciary.gov.sg/docs/default-source/news-docs/chief-justice-sundaresh-menon's-address-on-transnational-justice.pdf (“Law of Commerce in the 21st Century”); and Sundaresh Menon, “Justice in a Globalised Age” (3rd Judicial Roundtable on Commercial Law: Keynote Lecture, 29 September 2021) at https://www.judiciary.gov.sg/docs/default-source/news-docs/3rd-judicial-roundtable-on-commercial-law.pdf (“Justice in a Globalised Age”).
 See “Law of Commerce in the 21st Century” at para 12.
 See Sundaresh Menon, “Roadmaps for the Transnational Convergence of Commercial law: Lessons Learnt from the CISG” (speech at the 35th Anniversary of the CISG, 23 April 2015) (“Lessons Learnt from the CISG”) at paras 7–8.
 See James Allsop and Samuel Walpole, “International Commercial Dispute Resolution as a System” in Sundaresh Menon and Anselmo Reyes (eds), Transnational Commercial Disputes in an Age of Anti-Globalism and Pandemic (Hart Publishing, forthcoming 2022) (“International Commercial Dispute Resolution as a System”) at pp 50–51.
 See Sundaresh Menon, “Doing Business Across Asia: Legal Convergence in an Asian Century” (Opening Address, 21 January 2016) at https://www.judiciary.gov.sg/docs/default-source/news-docs/doing-business-across-asia---legal-convergence-in-an-asian-century-final-version-after-delivery--260116.pdf (“Legal Convergence in an Asian Century”) at para 6.
 Convention on the Recognition and Enforcement of Foreign Arbitral Awards (10 June 1958, entered into force on 7 June 1959).
 Following the deposition by Turkmenistan of its instrument of accession on 4 May 2022.
 With the 2005 Hague Convention on Choice of Court Agreements (the Convention of 30 June 2005 on Choice of Court Agreements (entered into force on 1 October 2015))and the Singapore Convention on Mediation (the United Nations Convention on International Settlement Agreements Resulting from Mediation (20 December 2018, entered into force on 12 September 2020)), the international dispute resolution community has been working to replicate the success of the New York Convention in litigation and mediation respectively.
 And there is a further possible dimension to preventing relitigation by holding that in at least some circumstances, an application to resist enforcement of an arbitral award should be determined with reference to the outcome of a similar earlier application, whether before a different enforcement court, or to set aside the arbitral award in the seat court. There are differing views on this, but I have argued elsewhere that the best approach would be to apply the doctrine of issue estoppel transnationally, so that if the criteria for issue estoppel are satisfied, a party should not be allowed to relitigate the same ground for resisting enforcement after the issue has already been decided by another court: see Sundaresh Menon, “The Role of the National Courts of the Seat in International Arbitration” (Keynote address at the 10th Annual International Conference of the Nani Palkhivala Arbitration Centre, 17 February 2018) at https://www.judiciary.gov.sg/news-and-resources/news/news-details/chief-justice-sundaresh-menon-keynote-address-delivered-at-the-10th-annual-international-conference-of-the-nani-palkhivala-arbitration-centre-2018-the-role-of-the-national-courts-of-the-seat-in-international-arbitration at para 32.
On the other hand, it should be noted that issue estoppel will typically not apply where the ground for setting aside is public policy, since the issue before each court is whether the award is consistent with the public policy of the jurisdiction where the court is located, and there is therefore no identity of subject matter in relation to this issue when it is decided in different jurisdictions (see ibid at para 34).
 Similarly, in relation to the process of international dispute resolution, it is unsurprising that international commercial arbitration has led the way in promoting convergence in the conduct of dispute resolution, since it tends to involve parties hailing from different legal traditions. The International Bar Association’s Rules on the Taking of Evidence in International Arbitration, first adopted in 1999, sought to harmonise this process by borrowing from practices developed in common law and civil law jurisdictions, as well as those indigenous to international arbitration. See IBA Rules of Evidence Review Task Force, Commentary on the revised text of the 2020 IBA Rules on the Taking of Evidence in International Arbitration (2021) at https://www.ibanet.org/MediaHandler?id=4F797338-693E-47C7-A92A-1509790ECC9D, at p 3.
 United Nations Convention on Contracts for the International Sale of Goods (11 April 1980, entered into force on 1 January 1988). See “Lessons Learnt from the CISG” (n 5 above).
 “SIFoCC Multilateral Memorandum on Enforcement of Commercial Judgments for Money” (SIFoCC, revised 2nd edn, 2021) at https://sifocc.org/2021/04/21/sifocc-multilateral-memorandum-on-enforcement-now-with-international-working-group-commentary/ (“SIFoCC Multilateral Memorandum”).
 “First SIFoCC International Working Group: International Best Practice in Case Management” (27 May 2020) at https://sifocc.org/app/uploads/2020/05/SIFoCC-Presumptions-of-Best-Practice-in-Case-Management-May-2020.pdf.
 “Delivering justice during the Covid-19 pandemic and the future use of technology – Memorandum” (SIFoCC, May 2020) at https://sifocc.org/app/uploads/2020/05/SIFoCC-Covid-19-memorandum-29-May-2020.pdf; “Second SIFoCC COVID-19 Memorandum” (SIFoCC, March 2021) at https://s3-eu-west-2.amazonaws.com/sifocc-prod-storage-7f6qtyoj7wir/uploads/2021/03/6.7119_JO_Second_SIFoCC_COVID-19_memorandum_WEB.pdf.
 See Sundaresh Menon, “The Complexification of Disputes in the Digital Age” (Goff Lecture 2021, 9 November 2021) at https://www.judiciary.gov.sg/docs/default-source/news-docs/goff-lecture-2021.pdf (“The Complexification of Disputes”) at para 54(a).
 “SIFoCC Multilateral Memorandum” at p 15, para 21. The commentary is authored by Sir William Blair and Judge François Ancel.
 “SIFoCC Multilateral Memorandum” at p 7, para 5.
 See Sundaresh Menon CJ, “Dispelling due process paranoia: Fairness, efficiency and the rule of law”, speech at the Chartered Institute of Arbitrators Australia Annual Lecture 2020 (13 October 2020) (“Dispelling due process paranoia”) at paras 4–5.
 See Art 5(1)(e) of the United Nations Convention on International Settlement Agreements Resulting from Mediation (20 December 2018, entered into force on 12 September 2020) (“the Singapore Convention”).
 See “The Complexification of Disputes” at paras 42, 56.
 Which has seen widespread use in the United States: see Alexandra D Lahav, “Bellwether Trials” (2008) 76(3) George Washington Law Review 576.
 See Appendix E of the Singapore International Commercial Court Rules 2021, setting out a voluntary simplified adjudication process protocol for cases under the Technology, Infrastructure and Construction List.
 See para 10.17 of the Business and Property Courts of England & Wales Chancery Guide 2022; and see generally Sundaresh Menon, “The JDRN: Remoulding the Justice System” (Opening address at the Inaugural Meeting of the International Judicial Dispute Resolution Network, 18 May 2022) at https://www.judiciary.gov.sg/docs/default-source/news-and-resources-docs/chief-justice-sundaresh-menon's-opening-address-at-the-inaugural-jdrn-meeting.pdf.
 See James M Peck, “Plan Mediation as an Effective Restructuring Tool” (Speech at the Singapore Academy of Law, 1 April 2019). For more on different forms of mediation that can be applied in insolvency proceedings, see “Report of the Committee to Strengthen Singapore as an International Centre for Debt Restructuring” (Ministry of Law, 20 April 2016) at para 3.54.
 An estimated US$600 billion per year is needed in capital spending on clean energy in emerging and developing economies alone in order to limit the global temperature rise to 1.65°C: “Financing Clean Energy Transitions in Emerging and Developing Economies” (International Energy Agency, 2021) at https://www.iea.org/reports/financing-clean-energy-transitions-in-emerging-and-developing-economies, at p 26. Much of these investments will need to be transnational in nature: ibid, at p 58.
 See, for instance, the counterclaim in David Aven v The Republic of Costa Rica, Case No UNCT/15/3.
 Examples of recent cases in the Federal Court of Australia are Minister for the Environment v Sharma  FCAFC 35 and Pabai Pabai & anor v Commonwealth of Australia VID622/2021; see also “Landmark class action lawsuit sees frontline communities sue Australian Government for climate crisis” (Grata Fund, 26 October 2021) at https://www.gratafund.org.au/climate_case_release. There has also been successful litigation against the Dutch government for failure to set adequate emissions targets: see The State of the Netherlands v Urgenda Foundation, ECLI:NL:HR:2019:2007 (20 December 2019, Supreme Court of the Netherlands).
 Re Nortel Networks Corp  OJ No 2440 (Ontario Superior Court of Justice) (“Re Nortel”) at .
 Re Nortel at –.
 Re Nortel at .
 See Re Nortel Networks Corp  OJ No 1579 (Ontario Superior Court of Justice).
 Re Nortel at –.
 The JIN Guidelines for Communication and Cooperation between Courts in Cross-Border Insolvency Matters: see “Paving the way for improved coordination of cross-border insolvency proceedings: Adoption of the guidelines for communication and cooperation between courts in cross-border insolvency matters” (Supreme Court of Singapore, 1 February 2017) at https://www.judiciary.gov.sg/news-and-resources/news/news-details/paving-the-way-for-improved-coordination-of-cross-border-insolvency-proceedings-adoption-of-the-guidelines-for-communication-and-cooperation-between-courts-in-cross-border-insolvency-matters.
 See K Shanmugam, Speech at the launch of the INSOL Asia Hub (5 August 2019) at para 15 (referring to the case of Aralez Pharmaceuticals in the Ontario Superior Court of Justice).
 “International Commercial Dispute Resolution as a System” at pp 55–56; see also James Allsop, “Commercial and investor-state arbitration: The importance of recognising their differences” (ICCA Congress 2018 Opening Keynote Address, 16 April 2018).
 “International Commercial Dispute Resolution as a System” at p 72.