By Karrer, Pierre A.
Dispute Resolution Journal , Vol. 63, No. 1
All the time people ask me whether it makes a difference whether I am sitting with co-arbitrators from the civil law or the common law tradition. I tell them there's not much difference. It all depends on the people. Some people have vast international experience, and by that I mean truly international experience beyond the English-speaking, cricket-playing world. They have arbitrated all over the world with co-arbitrators from all over the world, and lawyers from all over the world have appeared before them. They take a comparative law approach. Actually, I would say, it is not even primarily a legal approach; it's a practical approach.
Determining the applicable law and its content is by no means the first task in arbitration. It is one of the last, once the facts of the case have been established.
The Need to Be Flexible
An arbitration is a project and you have to work well with people to make the process work. What shapes an arbitration is the interaction of the participants. Surely, the arbitrators matter, but they tend to be the most flexible people in the room. That is why they were chosen. The lawyers for the parties tend to be slightly less flexible. They come in all types. I have seen some quite flexible lawyers who move effortlessly through international cases. They learned, probably through their local practice, that if you want to win cases, you must understand the triers-of-fact and work well with the other people involved in the case. On the other hand, I have also seen many inflexible lawyers. Some are so specialized in big-ticket litigation that it is hard for them to understand that arbitration is not litigation with another name, or even "litigation light."
IBA Rules of Evidence
The parties' attorneys should understand as early as possible that the arbitration proceeding will not follow the procedures called for by their own state courts. Rather they will most often follow the IBA [International Bar Association] Rules of Evidence (IBA Rules). In the last few years, I cannot remember a single case where these rules were not used as guidelines, and I am now talking about cases in jurisdictions literally all over the world.
You hear that the IBA Rules of Evidence are a clever compromise between the civil law and the common law. I do not think that this is right. In many areas these rules contain procedures that differ from what is done in state courts in both civil and common law jurisdictions.
Was it difficult to draft the IBA Rules of Evidence? Not very. The rules were written by a group of arbitrators who had experience arbitrating in many different countries. They simply put in the IBA Rules what they usually wrote in their orders for directions-i.e., their best practice. That is how procedures not generally used in state courts proceedings were built into the IBA Rules, such as extensive written submissions accompanied by early submission of documents, witness statements with live cross-examination of witnesses, and free assessment of the evidence by the arbitral tribunal. For the same reason, technical rules of evidence, such as the hearsay rule, do not apply in international arbitration. There are, however, a few important points that are not covered by the IBA Rules or are just glossed over.
A Look Back at History
Where do the differences between the common law and the civil law tradition come from? Not from deep philosophy, despite the fact that you often hear people say, "Ours is the inductive method; theirs the deductive method," or "We are seeking truth and justice; the others are content with formalism and applying the law." Or is it the other way around?
No, the differences come from history and habit mostly. These have shaped the organization of the courts and the legal profession in the common law world for centuries without the dramatic change that shook Continental the little more than 200 years ago. It is only Europe a little more than 200 years ago. …