Judging Judiciaries: How Sticky Defaults, Status Quo Bais, and the Sovereign Prerogative Influence the Perceived Legitimacy of the New International Commercial Courts

Forum shopping is routinely criticized as contrary to procedural justice. However, recent years have seen an increasing number of jurisdictions engaged in the process of forum selling, in which countries actively seek to bring lucrative litigation business to their national judicial systems. One of the most common types of forum selling involves the creation of new international commercial courts designed to increase a nation’s competitiveness in the global litigation market. Most studies of the new international commercial courts have focused on how procedural innovations adopted by different courts are likely to affect party choice. While useful, these analyses assume that litigants evaluate their options rationally, even though empirical research shows that cognitive distortions routinely affect individual and institutional decision-making. This Article provides a new perspective on the world of international commercial dispute resolution by undertaking an interdisciplinary analysis that evaluates the effect that three phenomena—sticky defaults, status quo bias, and an alleged sovereign prerogative in dispute resolution—have on the perception of legitimacy relating to the new international commercial courts. The focus on perceptions of legitimacy (rather than legitimacy per se) is based on the fact that parties’ and practitioners’ beliefs about the propriety of individual courts drive decision-making processes regardless of whether the underlying beliefs are true. This Article combines theoretical and empirical studies in law and economics, political science, psychology, and philosophy to generate compelling insights into the nature and future of international commercial dispute resolution. Through this discussion, this Article provides a deeper understanding of a potentially game-changing development in private international law.