Navigating Judicial Conflict amidst Jurisdictional Expansion: Common Law Commercial Courts in Arab Civil Law Countries

Abstract

In recent decades, jurisdictionally separate common law commercial courts have emerged alongside existing civil law judicial systems, particularly in the Middle East. Although these unique common law judicial outposts are creating complex jurisdictional dynamics with their local civil law counterparts, their existence is also inspiring innovative structural solutions and cultural interactions. Recent cases in Dubai and Qatar reveal that the originally intended limited jurisdiction of these common law courts is expanding beyond what Michael Hwang once famously termed ‘common law lakes in civil law oceans’. One of the ways in which common law courts are expanding their remit beyond the bounds of their financial centre ‘lakes’ is by making it easier for litigants to ‘opt in’ to the jurisdiction. Increasingly, an identity crisis has also gripped some of these courts as they now regularly accept and identify themselves as local ‘State courts’. From the perspective of these courts and their institutional credibility, the State court designation is positive for their growth and acceptance. Being a State court allows financial centre courts to capture litigation where contractual language has employed the State courts language in forum election clauses. This article explores the expansion of these international commercial courts and consequent or potential tensions with local judicial structures. Delicately managed, the expansion of jurisdiction of these common law ‘outposts’ can contribute to a legal synthesis influencing both law and legal cultures, including the broader judicial systems of host States. The experience of the two jurisdictions explored in this article is instructive for the future design of similar judicial instrumentalities in similar financial centre projects in other emerging economies.