Bolch Judicial Institute
Duke Law School
by Pamela K. Bookman and Alyssa S. KingVol. 106 No. 3 (2023) | Forging New Trails | Download PDF Version of Article
Federal judges within the United States travel to sit on other circuits, but are typically restricted from holding external office or visiting international courts.1 After they leave the bench, however, federal (and state) judges are unrestricted in their career choices. Might they be interested in traveling to sit on other countries’ courts? Would they be more or less inclined to do so if the court to which they travel is focused on commercial disputes? Commercial courts may be attractive because they offer judges the opportunity to function more like arbitrators — a popular career choice among retired judges — and commercial courts may also seem more removed or insulated from local politics.
In a recent article in the American Journal of International Law,2 we examined commercially focused courts around the world to document which ones hire outsider judges from other jurisdictions and who those judges are. As of June 1, 2021, we identified nine jurisdictions that hire traveling judges,3 for a total of 72 sitting traveling judges on all courts identified through the study. Several judges sat on two or more courts.4 For example, the former Chief Justice of the Supreme Court of Canada sat on the Hong Kong Court of Final Appeal and the Singapore International Commercial Court (SICC), while the former Chief Justice of Australia sat on those courts and the Dubai International Financial Centre (DIFC) Courts.
Our research documented the phenomenon of internationally traveling judges, grounded its historical roots in the colonial judicial service and the rise of international arbitration, and offered possible explanations for the use of traveling judges and the near absence of U.S. judges among their ranks. Unlike “visiting” judges, who sojourn domestically, “traveling” judges travel to sit on foreign courts. We defined “traveling judges” as individuals who, at the time of appointment, were not citizens of the host court’s jurisdiction, did not permanently reside there, and did not have their primary legal career there. Most live outside the hiring jurisdiction during their terms as well. As judges in a foreign jurisdiction, traveling judges may have the opportunity to shape international commercial law, define the community they seek to serve, and embrace the public nature of this service. There may be obstacles, however, both from home and in hiring jurisdictions. Civil society in traveling judges’ home jurisdictions have sometimes criticized them serving as traveling judges and lending legitimacy to regimes with questionable records. The hiring jurisdictions themselves, moreover, offer different, and potentially changing, environments in which to work.
Internationalized courts with international judges who adjudicate international disputes have a long history, dating back to the Middle Ages.5 The British Empire used colonial judges to help spread a shared common law tradition.6 In colonies like Hong Kong and the British Virgin Islands (BVI), the Empire established colonial courts — local common law courts intended to promote and protect commercial development.7 The British government lacked direct control of protectorates, like the Trucial States (now the UAE) and Qatar, and did not impose a common law system there.8 As the region developed with the discovery of oil in the 1940s, however, the British government required ruling sheiks to cede jurisdiction over British subjects, who did not trust local courts.9 The resulting consular courts10 heard disputes involving British citizens, other foreigners, and their property.11
When former colonies and protectorates established independence in the 1960s and 1970s, some employed foreign judges in their courts, while others introduced these judges later.12 Territories that did not become independent, including the Cayman Islands and the BVI,13 developed benches with a mix of local and traveling judges.14 In Hong Kong, for example, the 1997 transition to Chinese rule became the impetus for creating a Court of Final Appeal with a bench including “overseas non-permanent judges” serving three-year terms.15
Today, the array of common law judiciaries and the global legal profession — as well as modern traveling judges — reflect this history.16 Traveling judges also resemble international commercial arbitrators — well-respected adjudicators who travel the world to resolve international commercial disputes on “neutral turf.” In the last few decades, arbitration has emerged as a leading dispute resolution forum for such disputes.17 Arbitrators are often private experts who are not officially affiliated with any state18; some are chosen in part because they are not co-nationals of the parties, which may lend neutrality and legitimacy to the arbitration. Unless there is a global pandemic, international arbitrators travel extensively.
Despite arbitration’s popularity, many cross-border disputes are litigated in domestic courts. Some, like the Southern District of New York, have broad jurisdiction over civil and criminal cases. Increasingly, however, states are establishing specialized commercial divisions to handle commercial disputes. For example, the New York Commercial Division, established in the 1990s, specializes in commercial disputes, whether domestic or transnational.19
The Cayman Islands and the BVI both have commercial divisions in this mold. In the last two decades, jurisdictions have established new courts or chambers dedicated to international commercial disputes. These include special international commercial court divisions in Paris, Frankfurt, and Amsterdam; courts associated with special economic zones (SEZs) in Dubai, Qatar, Abu Dhabi, and Kazakhstan; and dedicated “international commercial courts” in Singapore and China.20 Many of these new courts have adopted procedures or structures that mimic either the London Commercial Court and/or conventions in international arbitration, trying to create courts that provide the “best of both worlds.”21 The SEZs’ courts, for example, all operate entirely in English, have procedural codes modeled on London’s, and have either received English common law into the local SEZ’s law or based their statutes on English common law and statutes. They also have invited judges from other jurisdictions who seem to resemble arbitrators in certain respects.22
Nearly 70 percent of traveling judges also act as arbitrators, often spending more time as arbitrators than as traveling judges. We had expected traveling judges to resemble arbitrators — and they do on some metrics. As a group, however, traveling judges are even less diverse than international commercial arbitrators in terms of race, gender, and nationality and far more likely to have previous judicial experience. Over 85 percent of traveling judges had been judges before taking their current positions. They often had served on specialized commercial courts or apex courts in their home jurisdictions. By contrast, few arbitrators were previously judges; a 2015 study found only 9 percent of arbitrators had previous judicial experience.23
Traveling judges on commercial courts are an overwhelmingly common law phenomenon.24 Almost all the traveling judges we identified as of June 1, 2021, spent their careers in a common law jurisdiction; all but one traveling judge holds at least one law degree from a common law country. About half of these traveling judges previously had practiced or served on the bench in England and Wales. The remainder come from other common law or hybrid jurisdictions, with no single jurisdiction providing more than five traveling judges, and most providing only one or two. These jurisdictions are mostly in the U.K. and its former dominion colonies (like Australia, New Zealand, and Canada). Despite the prominence of New York and Delaware commercial law, we found only one U.S. traveling judge as of June 2021.25 In July 2022, an additional U.S. judge — a former chief judge of the Delaware Bankruptcy Court — joined the SICC in Singapore.26
Traveling judges thus reveal not just a common law influence but a starkly English one. About half are retired English judges. In addition to those who practiced in England and Wales or Scotland, an even larger number studied law in the U.K. The result of this heavy focus on hiring English judges is that the demographics of traveling judges, like the senior English judiciary and bar, is overwhelmingly white and male.27 There are, however, differences among courts and geographic regions, both in terms of how many traveling judges the courts have, and in terms of who they are. For example, some courts have a mostly local bench or a near-even balance between traveling and local judges. Two courts, however, employ 100 percent traveling judges. In one of those courts, the traveling judges are all from the U.K.28
The courts that hire traveling judges are not necessarily located in common law countries, although the courts themselves all follow the common law tradition. In recent years, several countries with civil or Islamic law court systems have created SEZs where common law applies. Traveling judges sit on courts in these zones in Dubai, Abu Dhabi, Qatar, and Kazakhstan. Most recently, Bahrain set up an onshore English-language court with traveling judges, but following a different, non–common law model.29 Courts that hire traveling judges include court divisions of common law states, like Singapore; court divisions of subnational common law jurisdictions within common law states, like the Cayman Islands and the BVI; and courts in common law jurisdictions within non-common law states, like Hong Kong and the SEZs.30 The courts and divisions themselves may be trial courts, high courts, or appellate courts.
These hiring jurisdictions have certain similarities and other important differences. All but one are in former British colonies or protectorates.31 Either by way of colonial legacy or by recent legislation, these jurisdictions have adopted substantive law and procedures that mirror those in the London Commercial Court — widely regarded as the leading international commercial court — to varying degrees. A unifying characteristic among the courts we focus on in our study is that the hiring jurisdictions are or aspire to be “market-dominant small jurisdictions” with an outsized influence in global finance.32 In other words, they often aim to be the “Delaware” of their region.33 And they have designed these courts for cross-border disputes, anticipating transnational parties.
The use of traveling judges thus has roots in two different traditions: colonial judicial service and international commercial arbitration. The first saw judges as emissaries of an Empire, and the second conceived of dispute resolution by private individuals, empowered to provide neutral, expert adjudication detached from domestic courts.
Like visiting judges, traveling judges come as outsiders who offer the possibility of promoting consistency — in terms of procedural and substantive law as well as legal culture and norms — across multiple courts.34 Also like visiting judges, traveling judges “might not have sufficient knowledge or training” in local traditions, but they also likely “transmit[ ] critical institutional knowledge” about their home jurisdictions, legal cultures, and laws that is at least one of the very reasons they were invited to serve.35
Traveling judges are hired for their expertise in multiple areas.36 They bring expertise in their home jurisdiction’s law, which they can easily apply in jurisdictions where the local law, or the law selected by the parties, closely resembles their home law.37 They often bring expertise in particular areas of interest, such as construction or intellectual property, or extensive case-management skills honed while serving on a well-known court. It is no coincidence, for example, that the first American judge on the SICC was a former justice of the Delaware Supreme Court and former vice chancellor on the Delaware Court of Chancery, and the second is a former chief judge of the United States Bankruptcy Court, District of Delaware with expertise in cross-border insolvency.38
One might assume a court focusing on transnational commercial disputes would seek out an international roster of judges, or that a diverse bench could attract parties from around the world.39 Our study does not support these hypotheses, although Singapore’s court comes the closest to providing a broadly international bench. Instead, our study shows that the top two home countries for traveling judges are the U.K. and Australia, accounting for approximately three-quarters of traveling judges. Moreover, many of these judges have experience on the commercial courts in London and Sydney.
Instead of internationalism, these traveling judges provide most of the hiring jurisdictions with a sort of transplantation shortcut for replicating a famously successful and well-regarded court and its legal system, a system that is familiar to the general counsel of the companies these jurisdictions are trying to attract.40 English common law “is the most sought-after law for transnational commerce,”41 and English courts, procedure, and judges are central to the law’s appeal.42 The London Commercial court is seen as “contributing to the success of London as an international commercial and financial centre that has led to its emulation.” The London Commercial Court thus “has been described as the paradigm for the new international commercial courts, which are said to have been inspired in part by its success,”43 although these courts all differ from the London court in various nuances and adaptations to local circumstances.44
Striving for success like London’s, jurisdictions with traveling judges not only cater to parties’ preferences by recognizing their autonomy to choose their forum and the law that governs their contracts, but also replicate these private ordering preferences through the structure and personnel of their courts.45 It becomes easier to credibly assert that parties will get the same justice they are used to in London when the same people are sitting on the court, especially in non–common law jurisdictions. Those courts with entirely or mostly English benches seem to be replicating an English court. The SEZs did not previously have common law legal systems; the governments creating these SEZs chose to base the SEZ’s law in English law after consulting with English law firms who represent the investors they hoped to attract.46 Their courts model their founding statutes and rules of procedure on English law as well.
Colonial history and the desire to transplant certain legal cultures help explain the presence of so many English judges, but not necessarily the absence of U.S. judges. At the turn of the 21st century, U.S. global legal influence seemed ascendant.47 U.S. judges and other Americans were traveling the world, spreading the American legal model48 and the rule of law,49 and trying “to promote a U.S. product as the lingua franca for business and politics.”50 U.S. courts were also seen as a magnet for transnational litigation,51 although some later empirical accounts questioned that claim.52 New York law is often chosen to govern international commercial contracts (especially those involving U.S. parties) and New York, unlike the federal courts and Delaware, also has a mandatory judicial retirement age. To our knowledge, however, no New York judges have served as traveling judges (although we believe some have been asked).
Several features may explain the U.S. absence. One is waning U.S. global influence overall; another is the structure of the U.S. legal profession and other opportunities for retired judges in the United States, which may be more attractive, including serving as a visiting judge. For example, retired U.S. judges may have the opportunity to join U.S. law firms, but serving as a traveling judge would create conflicts for a U.S. firm in a way that it does not create conflicts for retired U.K. judges who join barristers’ chambers.
Varying state laws also mean U.S. law is fragmented in a way that fundamentally separates it from the shared common law tradition in other countries.53 The United States, while undoubtedly a major common law commercial center, is therefore less central to the narrative of shared law that the “common law” represents, with the possible exception of New York and Delaware law.54 The prestigious U.S. federal courts, for example, do not make contract law.55 In addition, international disdain for the U.S. court system and its procedures (as opposed to substantive law), may also play a part.56 All of these reasons may contribute to the lack of U.S. traveling judges.
While the commercial courts hiring traveling judges are still relatively new, they may be gaining influence. As they attract cases and issue opinions, they are well poised to fill a gap in the public development of international commercial law created by the domination of private disputes resolved in international arbitration. International commercial law is an area where consistency tends to be particularly valued, and traveling judges may indeed be likely to promote it.
Their ability to do so, however, will depend on circumstances at home and in the hiring jurisdiction. Some traveling judges have received pressure to resign from their posts by prominent individuals and civil society in their home jurisdictions, who criticize the judges for appearing to legitimize host governments with poor human rights records. Several traveling judges have resigned or not renewed their terms in Hong Kong following the 2020 passage of the draconian National Security Law (which creates new speech offenses and allows the government to bypass various elements of Hong Kong criminal procedure).57 In August 2022, two Irish judges resigned from the DIFC courts almost immediately after they were appointed,58 after prominent members of civil society criticized them for “lending credibility” to the UAE judicial system.59 A recently retired New Zealand judge who had been sworn in with the Irish judges resigned a few weeks later following similar pressure from human rights campaigners.60
Moreover, such judges are not insulated from local politics, and circumstances in the hiring jurisdiction could also become more hostile to traveling judges over time. Unlike arbitration, in which private parties form the private tribunal for themselves, these courts are instruments of a state. That status brings with it certain indicia of legitimacy that private arbitration may lack. It also brings with it a reliance on the host government. Traveling judges may be intended to mitigate concerns about local judiciaries and local control over them, but that balance can be delicate. Hiring jurisdictions may include different, and potentially changing, levels of government support for the court, for hiring traveling judges, and for expanding or contracting the court’s jurisdiction. The courts ultimately operate on the hosts’ terms, applying local law, confined by the courts’ jurisdiction as well as the states’ limitations on judges’ tenure on the court, on the assignment of cases, and on traveling judges’ participation in different aspects of judicial administration.
Detaching judges from home jurisdictions, however, and focusing on the role of judge as different from the role of private arbitrator, also creates opportunities. At least in theory, courts serve a greater community beyond just the parties and possibly beyond the government that hosts the court. International commercial courts face the challenging task of defining that community. Is it a local community, a national community, or an international one? Is the community limited to commercial actors, or does it include others? These courts have the opportunity to contribute to a modern international commercial dispute resolution system that aspires to address global problems, like climate change, that were created in part by international commerce’s failure to internalize externalities. To do so, however, these courts — and these judges — would have to define and uphold their responsibilities to a broader community beyond the commercial parties they seem designed to serve.61
Traveling judges should be vigilant about their duties not only to the host government that hired them, but also to the local and international communities who will bear the impact of the law they develop and the decisions they make about where to serve.
Pamela K. Bookman is associate professor of law at Fordham University and an expert in civil procedure, contracts, international litigation and arbitration, and conflict of laws.
Alyssa S. King is an assistant professor at Queen’s University Faculty of Law whose research focuses on civil procedure, arbitration, federalism, and courts.