Business Courts, sometimes referred to as Commercial Courts, are trial courts that primarily or exclusively hear internal business disputes and commercial litigation between businesses. The modern creation of specialized Business Courts in the United States began in the early 1990s,[1] and has expanded greatly in the last thirty years.[2] Business courts (which are often business programs or divisions within existing trial level courts) are operating in
New York City and 10 other jurisdictions throughout New York State as the
New York Supreme Court Commercial Division,[3] most recently adding the Bronx Commercial Division,[4]Chicago,
North Carolina,
New Jersey,
Philadelphia and
Pittsburgh, Pennsylvania,
Reno and
Las Vegas,
Nevada,
Massachusetts,
Rhode Island,
Maryland, Orlando,[5]Miami, Ft. Lauderdale, and
Tampa, Florida, Michigan,[6] Cincinatti, Cleveland[7] and Toledo, Ohio, Iowa, Maine, New Hampshire, Metro
Atlanta regionally and
Georgia Statewide, Delaware's
Superior Court and
Court of Chancery, Nashville, Tennessee,[8] Wisconsin,[9] Indiana,[10]Arizona, Kentucky,[11] South Carolina,[12] West Virginia,[13] and the Wyoming Chancery Court.[14]This mapshows states having business courts either statewide, in multiple counties or cities, or within a single major city or county, which is accurate through April 2023. In New York, Chicago, Philadelphia, Massachusetts,[15] North Carolina, South Carolina and New Jersey, among other states with business courts, the original programs have expanded by adding judges and/or by expanding into additional cities and counties.[16][17][18] In 2023, Utah adopted legislation creating a statewide Business and Chancery Court, which will become operational in 2024.[19] On June 9, 2023, Texas' governor signed an Act into law creating a Business Court.[20] The new law became effective in September 2023, but the Business Court will not be open for cases until September 2024 at the earliest.[21] The Hamilton County, Ohio Court of Common Pleas had discontinued its Commercial Docket in 2017, but revived it effective March 1, 2024.[22]
Delaware's Court of Chancery, the pre-eminent court addressing intra-business disputes, has functioned as a business court of limited jurisdiction for a century.[23] However, its traditional equity jurisdiction has evolved and expanded since 2003 to include technology disputes (10 Del. C. § 346), some purely monetary commercial disputes (10 Del. C. § 347), and to expand its role in the alternative dispute resolution of business and commercial disputes. This includes the use of mediation (10 Del. C. § 347), Masters in Chancery to adjudicate matters (10 Del. C. § 350), and agreements to make decisions non-appealable (10 Del. C. § 351).[24]
The significant relationship between business courts and Alternative Dispute Resolution, such as mediation, neutral valuation, and arbitration, is well recognized.[25][26] Some business courts expressly encourage the use of special masters or referees in expediting some decision making during the litigation process.[27][28]
Business and Commercial Courts exist internationally as well,[29] including, for example, England and Wales,[30] Toronto[31], Quebec,[32] and Alberta,[33] Canada, Ireland,[34], Scotland,[35]Denmark, Hong Kong,
Belgium, Bermuda, New South Wales and Victoria Australia,[36] Northern Ireland,[37] Qatar,[38] Dubai,[39] Spain,[40]France, Switzerland,
Tanzania, Rwanda, Lesotho, the British Virgin Islands,[41] St. Lucia,[42] Japan,[43] and Malaysia.[44] New English language commercial courts have been created in Paris, Frankfurt, the Netherlands,[45][46][47] Stuttgart | Mannheim, Germany,[48] Singapore,[49] and Kazakhstan.[50] This reflects the growth in international commercial courts, involving disputes among parties from different nations.[51][52][53]
The American College of Business Court Judges was established in 2005.[54] The Standing International Forum of Commercial Courts was created in 2016.[55]
Business Court Jurisdiction, Technology Disputes & Cyber Courts, and Complex Litigation Courts
Business Courts are trial courts that hear business disputes primarily or exclusively. In the United States, these courts have been established in approximately twenty-five states. In some cases, a state legislature may choose to create a business court by statute. In other cases, business courts have been established by judicial rule or order, at the Supreme Court or trial court level. In virtually all cases, the jurisdiction of the court to hear certain cases is limited to disputes that are in some way related to "business" disputes, and generally fall into two categories: (1) those courts which require that cases have an additional complexity component; and (2) those courts which establish jurisdictional parameters (i) through a defined list of case types (ii) combined with a specified minimum amount of damages in controversy, irrespective of complexity. There are courts with mixed models as well.[56]
In New York, for example, the Commercial Division may hear cases (1) alleging breach of contract, (2) arising under the state's business corporation law, (3) arising under the state's partnership law, (4) relating to commercial loans, negotiable instruments, letters of credit, and bank transactions, or (5) involving business torts. The Commercial Division may not, by comparison, hear cases involving (1) landlord/tenant disputes, (2) commercial foreclosures, (3) products liability claims, or (4) claims alleging discrimination except when part of or under the terms of a contract.[57]
Some states have established specialized courts that include technology disputes as part of their express jurisdiction.[58] Through legislative effort and court rule, Maryland established a
Business and Technology Case Management Program. In May 2003,
Delaware expanded the Court of Chancery's jurisdiction to include technology disputes, and the mediation of other kinds of business disputes (10 Del. C. §§ 346, 347).[59] West Virginia's
Business Court Division Rule 24.09 expressly includes technology issues. The Davidson County, Tennessee Business Court Docket expressly encompasses technology and biotechnology licensing.[60] North Carolina's Business Court jurisdiction expressly includes computer software, information technology and systems, data and data system security, biotechnology and bioscience technology.[61] New York Commercial Division Rule 202.70(b)(1), addressing that business court's jurisdiction, was amended in February 2024 to expressly include "technology transactions and/or commercial disputes involving or arising out of technology".[62] This amendment is intended to make clear the New York business court's experience in handling technology disputes, especially in light of the fact that "many of the business courts in other states have emphasized their jurisdiction over and experience with adjudicating technology disputes...."[63] The High Court of Justice in England includes a
Technology and Construction Court.
California, Connecticut,[64]Phoenix, Maricopa County, Arizona,
Oregon, and
Minnesota have created specialized courts or tracks for complex litigation that would include some business disputes within a broader jurisdiction of complex matters. This is not statewide in California, but includes at least the following Superior Courts:
Alameda, Contra Costa,[65] Los Angeles,[66] Orange,[67] Riverside,[68] Sacramento,[69] San Francisco,[70] San Mateo,[71] and Santa Clara.[72] Arizona also has a specialized commercial court in Phoenix.[73] Other states are in various stages of moving toward or away from business or complex courts, with Colorado having conducted extensive studies nearly two decades ago into the merits and potential parameters of creating a business court on a broad basis, which was not pursued, and later experimenting with a business court, the
Civil Access Pilot Project, from 2012-2015; and Orlando, Florida having to move resources away from its Complex Business Litigation program into its family court,[74] though this program was restored in October 2019,[75] New Jersey expanding to a statewide business court track in 2015, after having only two counties with specialized commercial courts for 20 years,[76] and South Carolina's Business Court went from a regional pilot program and is now a permanent statewide program.[77]
^Mitchell L. Bach & Lee Applebaum, A History of the Creation and Jurisdiction of Business Courts in the Last Decade, 60 Business Lawyer 147 (2004).
^The ABA Section of Business Law's Committee on Business and Corporate Litigation annually publishes Recent Developments in Business and Corporate Litigation. Since 2004, this book has included a chapter on business courts, which describes changes and developments in business courts since that time to the present.
^Section 202.70, Rules of the Commercial Division of the Supreme Court of New York
[1]
^Jacob A. Sommer, Business Litigation and Cyberspace: Will Cyber Courts Prove and Effective Tool for Luring High-Tech Business Into Forum States, 56 Vanderbilt Law Review 561 (2003)