Australia: Is an international commercial court for Australia a viable option?

Recently there have been a number of appeals calling for an international commercial court (ICC) to be established in Australia. Following the first decision of a newly established ICC in the Asia-Pacific arbitral-hub of Singapore, this becomes all the more relevant. But what are ICCs? Why do we need them? And are they a viable option?


ICCs are distinct from normal courts because they have express jurisdiction to hear international cases.

Some key examples of ICCs worldwide include the London Commercial Court, and the newly established Singapore International Commercial Court (SICC).

While the London Commercial Court may be seen as the traditional home of international commercial litigation, the establishment of the SICC has shifted the focus to Asia. It remains to be seen whether its impact on international commercial litigation will be as significant as Hong Kong and Singapore's impact (as arbitral centres) on international commercial arbitration over recent years.


The SICC was officially launched in January 2015, and like other international commercial courts, it is a companion, not a competitor to, international arbitration. Essentially, it provides disputing parties with an alternative method of resolving transnational commercial disputes.1

Singapore is a leading arbitration centre in the Asia-Pacific region, and this court adds another string to its bow for international commercial dispute resolution.

Interestingly for Australia, the SICC recently handed down its first decision, BCBC Singapore Pte Ltd v PT Bayan Resources TBK [2016] SGHC(I) 01. The dispute concerned the construction of a coal processing facility in Indonesia and involved parties from three jurisdictions: Indonesia, Australia and Singapore. While disputes concerning complex cross border transactions of the type dealt with in this case are often resolved by international arbitration, the quality of the SICC's decision (which was decided by three decision makers including noted arbitrator Sir Vivian Ramsey) might lead to more parties resolving such matters through international commercial courts.

Our analysis of the case is available in our article: BCBC Singapore Pte Ltd v PT Bayan Resources TBK [2016] SGHC(I) 01.


There have been numerous appeals for an international commercial court to be established in Australia. A recent publication by their Honours Chief Justice Warren and Justice Croft of the Supreme Court of Victoria calls for one, by highlighting the need to embrace options beyond arbitration for international commercial disputes.2 In the publication, their Honours note that establishing international commercial courts 'does not pose an existential threat to the practice of international commercial arbitration' as they simply 'add to the range of options available to parties involved in international commerce'.3


Arbitration can have limitations when it comes to international commercial disputes. While arbitration is very flexible and the parties can determine almost every aspect of the proceeding, there is a lack of regulation in the arbitration industry which can give rise to ethical issues (a point highlighted by their Honours).4 Further, enforcing awards in some countries is more difficult than in others. Arbitral proceedings also have limited appeal rights (although this may be a benefit for some). ICCs present an alternative option to arbitration for international commercial disputes: litigation.

According to their Honours, however, the most important reason supporting the need for an alternative option to arbitration such as ICCs, is that arbitration was intended to be an 'ad hoc, consensual, convenient and confidential method of resolving disputes' and will not, at least on its own, drive global commerce forward by harmonising substantive commercial laws, practices and ethics.5


The biggest advantage of arbitration is that arbitral awards are enforceable in the 156 signatory countries to the New York Convention. Court judgments, such as those that would be handed down in an ICC, do not enjoy the benefits of this Convention which requires signatory countries to ensure courts readily enforce arbitral awards without a merits review of the case.

Their Honours suggest that this might change with the Hague Choice of Court Convention which came into force on 1 October 2015. This convention principally tries to force signatory States to respect choice of jurisdiction clauses, thus facilitating international litigation. While only a handful of countries and the European Union have signed the convention, Australia has shown a willingness to become one of them.

Even if the Hague Choice of Court Convention becomes as universal as the New York Convention, arbitration is likely to be the preferred choice in circumstances where neither party wishes to subject themselves to the jurisdiction of courts of the other party or the publicity inherent in any court process.


An international commercial court in Australia would need to be supported by a legislative regime. There is nothing conceptually difficult with this suggestion though. Their Honours note that the SICC in particular provides a useful case study for Australia as it 'accommodates parties foreign to its sovereign jurisdiction,' and 'will not decline to assume sole jurisdiction solely on the ground that the dispute is connected to a jurisdiction other than Singapore'.6

If Australia wants to compete with the likes of Singapore and Hong Kong for a slice of the international commercial disputes resolution market, then it makes sense to establish an international commercial court in Australia. Like the jurisdictions mentioned above, Australia has a reputation for high quality judgments based on sound judicial reasoning. Whatever system is established, it must be an efficient docket and provide quick access to justice, much like the Fast Track list of the Federal Court.

Their Honours note that despite the legal landscape in Australia, including the federal system of government, an international commercial court would afford it the opportunity to 'present an integrated commercial court to the region and to the world'.7


1Singapore International Commercial Court website.

2The Hon Chief Justice Marilyn Warren AC and The Hon Justice Clyde Croft, ' An International Commercial Court for Australia: Looking Beyond the New York Convention' - A paper presented by the Honourable Chief Justice Marilyn Warren AC and the Honourable Justice Clyde Croft at the Commercial CPD Seminar Series, Melbourne, 13 April 2016.

3 16.

4 15.

5 15. (Their Honours refer to extrajudicial comments by the Chief Justice of Singapore – see Chief Justice Sundaresh Menon, "International Commercial Courts: Towards a Transnational System of Dispute Resolution" (Opening Lecture for the DIFC Courts Lecture Series 2015, Dubai, 2015) [14]–[15]).

6 22.

7 35.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Chambers Asia Pacific Awards 2016 Winner – Australia
Client Service Award
Employer of Choice for Gender Equality (WGEA)

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.