by Many countries in the Global South have expanded their influence in recent decades, with nations outside the traditional West seeing a significant increase in their share of global GDP. Such a rise in economic power has allowed Global South actors to start challenging traditional institutions. For example, China has become an alternative source of development finance and the BRICS have formed a significant economic bloc. A less discussed but arguably equally important aspect of this global transformation is the shift from a Western-dominated international legal landscape towards a multipolar one.
Mikael Rask Madsen, Professor of law at Copenhagen University and Director of the Centre of Excellence for International Courts and Governance (iCourts), in 2024 received funding from the Carlsberg Foundation for a research project called Decentring Legal Power: Avantgarde Courts at the Frontiers of the Global Economy (AVANT-COURTS) spanning 2025 to 2030. The project will study how global processes enable new courts and litigation hubs to emerge and gain relevancy.
AVANT-COURTS, which is still in its initial stages, will explore three distinct but related “empirical spaces”—as Professor Madsen, who recently sat down with DDRN for an interview to discuss the project, calls them:
- New Economic Spaces
- Outer Space
- Virtual Spaces
New Economic Spaces
New Economic Spaces refers to the rise of English-language international economic courts in the Global South and their competition with traditional Western courts. Examples include the Qatar International Financial Court, the Dubai International Financial Court, and the China International Commercial Court (CICC). These and other similar legal institutions have sprung up in response to particular policy goals of their host countries.
China’s CICC aims to handle disputes related to its Belt and Road Initiative, a massive infrastructure investment programme worth over $1 trillion. The Gulf States, meanwhile, see the development of international courts as part of a larger strategy to diversify their economies from dependence on oil and gas.
Becoming financial and legal hubs may be a way to attract investment. “It’s part of a complex transformation of [the Gulf States] that some might even call court-washing—they are trying to transform their economies towards something more sustainable, and one way of attracting capital is by providing somewhat trustworthy courts,” Professor Madsen explains. Other countries, such as Kazakhstan, seem to be following this blueprint, establishing the Astana International Financial Centre Court in 2018. In this way, courts are becoming an explicit part of global capitalism, with states using them to grow their economies and pursue strategic initiatives.
The establishment of new international courts is not without its challenges, however. A major obstacle to overcome is that these new courts lack a mechanism to ensure that rulings made in their countries, Kazakhstan, for instance, are recognised and enforceable in other states. This is because the new international commercial courts are state courts—courts that are part of a country’s legal system. Current global treaties for recognition and enforcement, such as the New York Convention, only cover arbitral tribunals, which are panels of independent arbitrators chosen by disputing parties to resolve disputes outside state courts privately. Being part of a state’s formal judicial system also questions the fairness and legitimacy of the new international courts. To make up for it, some of the courts can appoint foreign judges.
One might argue that Western judicial institutions are similarly biased towards the interests of Global North countries, but, as Professor Madsen points out, there are crucial differences: “Courts in the old West—Europe—were set up as public courts, typically with broad jurisdiction. But these [new international commercial] courts are deliberately set up to further particular projects … Western courts have a very high degree of autonomy which they have gained over a very long time. Some more than others, obviously. But that process means something. At the end of the day, that’s what makes a difference between a court and what looks like a court.”
Outer Space
The second empirical space, Outer Space, refers to how new courts disrupt established international dispute resolution practices in space law. Outer space has legally been a common good since the adoption of the United Nations Outer Space Treaty in 1967. The treaty affirms, among other things, that all countries are free to explore outer space and that any one nation cannot claim outer space. The Space Treaty and other subsequent UN treaties have created a legal architecture where space law is resolved between governments—a system which is challenged by the emergence of the private space industry.
The commercial space market is rapidly growing. Elon Musk’s SpaceX, for example, partnered with NASA and sent two astronauts to space in 2020, the first time a private company had done so. McKinsey & Company estimates that the sector will be worth $1.8 trillion by 2035. This structural transformation is causing a scramble where “law, and particularly dispute resolution, gets mobilised and the first [country] to set up a space court was Dubai. They used the model of the new economic courts to create a space court [in 2021],” Professor Madsen said.
“It’s truly a frontier zone of law. If you smash your [commercial] satellite into another satellite somewhere in outer space, we don’t know for sure where that conflict will be resolved,” he added.
Virtual Spaces
The third and final empirical space under investigation is called Virtual Spaces and encompasses the clash between public law and corporations, using private law, vying for control of online content. Public law manages relations between individuals and the state, including areas like human rights and criminal law. Private law governs the relationship between individuals and private entities, such as contracts and property disputes. A crucial difference is that public law is enforced by governmental institutions for the public interest in line with constitutional practices. In this empirical space, AVANT-COURTS will limit its inquiry to freedom of speech.
Companies such as Meta, X and various Chinese platforms have created court-like institutions to settle freedom of speech disputes. For instance, the Meta Oversight Board rules on which content is allowed on Facebook and Instagram, famously suspending Donald Trump in 2021 after the January 6 United States Capitol attack. The ban was lifted in 2023.
This privatisation of dispute resolution for freedom of speech issues can blur the line between public and private law and weaken human rights protections. Professor Madsen explains: “If you look at [the Meta Oversight Board’s] jurisprudence, how they define freedom of expression, compared to a public court like the European Court of Human Rights, you’ll immediately realise that [Meta’s] conception of freedom of expression is different and essentially driven by an underlying commercial interest. So, in a very subtle way, the legal categories, the fundamentals, in this case of democracy, changes because of these new institutions.”
The three empirical spaces may seem distinct, but the common theme is that states such as the United Arab Emirates and China, along with private firms like Meta, seek to expand their authority as they become more influential. This transfers power from Western governmental and judicial instances. A part of this global shift is the creation of legal institutions catered towards particular commercial goals, be they private or state-backed. Consequently, argues Professor Madsen, the idea of independent courts detached from any specific project is fundamentally challenged.
Conducting the Project
The AVANT-COURTS project has several components: Emerging legal hubs will be identified and mapped out. The law produced by new international courts will be systematically analysed using computational and legal methods. And how geoeconomic and political processes enable such hubs will be studied.
There will, moreover, be an element of fieldwork, including archival research. For this, Copenhagen University will partner with local educational institutions. Currently, only Hamad Bin Khalifa University (HBKU) in Qatar has been officially onboarded. “This is what you call first-generation scholarship,” Professor Madsen said. “There’s a whole job in, with a coding expression, the archaeology of this. The question is, what are [these courts] doing? No one really knew until we started looking at it.”
Adrian Ganic is a M.Sc., THE LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE and a DDRN CORRESPONDENT
