International Judicial Monitor
Published by the International Judicial Academy, Washington, D.C., with assistance from the
American Society of International Law

Winter 2015 Issue



Business Courts Go Global

Sean D. Wallace
By: Sean D. Wallace; Judge, Circuit Court for Prince George’s County, Maryland; Past President, American College of Business Court Judges

State trial courts handle more than 90% of the civil litigation in the United States.  However, in the early 1990’s there was growing concern that these courts were incapable of effectively and efficiently resolving business disputes. These cases often were assigned to a master calendar system under which several judges would handle different and discrete portions of the litigation without any type of coordination. This division of tasks prevented effective management of these complex cases, while depriving judges of both the incentive and opportunity to develop expertise in all aspects of commercial litigation.  As a result, business litigants began to rely more frequently on federal courts and private Alternative Dispute Resolution (ADR) forums, where a single judge or neutral would manage all aspects of the litigation. 

In an effort to address those concerns, judges, lawmakers, litigators and commercial interests pushed for creation of specialized business dockets or courts at the state trial level.  The commercial interests were clear to emphasize that they were not seeking a back-door way to achieve tort reform or otherwise “game the system.”  Thus, consumer and employment litigation was exempted from the proposals.  Instead, businesses sought to create a forum for resolving their disputes with reasonable promptness and based on informed legal principles. Policy makers support this goal for economic development reasons, under the assumption that businesses would be attracted to jurisdictions where the courts provide such efficient and predictable adjudication.

As a result, there are now 28 states with some form of business courts.  The forms of those courts vary tremendously. Some courts have state-wide authority while others are housed as specialized dockets or divisions of existing courts in major metropolitan areas.  Some “business” courts are courts of equity (like the Delaware Court of Chancery), others are courts of law only (e.g., the Commercial Calendar” of Chicago’s Cook County Circuit Court), while many encompass both law and equity. Some limit their jurisdiction to a defined list of case types; others impose a complexity requirement; and some open their dockets to more subjective criteria, such as the presence of novel issues that will make important advances in the law. Regardless of their format, these courts all include case assignments to “specialist judges,” experienced in the management of complex litigation and versed in the substantive law of corporate governance, transactions and related subjects.


A driving force in both training these specialist judges and promoting the expansion of business courts is the American College of Business Court Judges (ACBCJ).  Founded in 2005 by a group of judges working with complex litigation cases, the College annually invites judges from across the country to study issues that arise in business and commercial litigation, such as e-discovery, public access to court records, mortgage securitization, procedural challenges in trade secret cases, corporate misconduct, evolving forms of corporate governance, insurance coverage issues, principles of aggregate litigation, cross border discovery and minimum contacts in the derivative conflict.  It also provides a networking forum and operates a list-serve that the judges can use to share best practices.  Relationships developed between ACBCJ judges have facilitated collegial cooperation in multi-jurisdictional litigation, including orders for shared discovery and coordinated scheduling.  The College sends several members to serve as Business Court Representatives to the Business Law Section of the American Bar Association, and has provided testimony and other support to those seeking to establish new business courts.

Given the success of business courts in the United States, it is not surprising that such tribunals have been established (or expanded) in other countries. The World Bank noted last year that, “of the 189 economies [it examined], 90 have dedicated standalone courts for enforcing contracts, specialized commercial sections in existing courts or specialized judges in general civil courts.”  In fact, its “Doing Business” working group uses the existence of a business court as an indicator of a nation’s business friendly environment.

Of course, some of the courts are not new creations – tribunaux de commerce (commercial courts) existed in France under Napoleon two centuries ago.  However, most are of more recent vintage.  For example, Ireland established its Commercial List of the High Court in 2004 and Tanzania created a Commercial Division of its High Court in 1999.  In the past five years commercial courts or divisions have also been created in Liberia, Cameroon, Lesotho, Sierra Leone, Senegal, Côte d'Ivoire, Togo, Benin and Seychelles.  The Ivorian court reduced commercial case disposition times by 29 percent, a significant example of reform.

It is clear that the motivation to create specialized courts to handle complex business disputes extends beyond the American borders. Business court pioneer and first president of the ACBCJ, Judge Ben F. Tenille of North Carolina, has said that “the rapidly increasing complexity, rate of change and globalization of business … has driven the demand for dispute resolution processes that can accommodate the needs of modern business.”  And as a result, the business court movement has gone global.

ASIl & International Judicial AcademyInternational Judicial Monitor
© 2015 – The International Judicial Academy
with assistance from the American Society of International Law.

Editor: James G. Apple.
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