International Arbitration, from Athens to Locarno

By Jackson H. Ralston | Go to book overview
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59. Common and civil law in international tribunals. -- It has often been argued that great difficulty would be experienced within commissions between nations governed by various systems of law because of contradictions and confusions which might arise between them. For instance, it has been assumed that because the civil and the common law have had different origins it would, therefore, prove impossible that a tribunal settling differences between countries under the two systems could reach conclusions which would be acceptable to both. This belief has no foundation in practice. We will note in the beginning as we have stated elsewhere, that nearly all the so-called international questions are simply national questions viewed from another standpoint and offer comparatively little that is novel to the experienced lawyer. Nor are the differences between Roman and common law so wide, where they exist at all, as to be unbridgeable. The remark of Judge Riddell has great substance:

I am perfectly safe in saying that in nine hundred and ninety-nine cases out of a thousand the decisions, based upon principles -- outside of the limit of petty technicalities -- will be precisely the same whether you take the principles from Justinian, or whether you take the principles from Blackstone. There is no great difference between the laws of the civilized nations if you leave aside the accidents.1

As to the effect produced by bringing together judges trained under different systems, we quote the opinion of Dr. Hammarskjöld, Registrar of the Permanent Court of International Justice:

One thing is certain, namely, that the shock which does take place between opinions based on different systems and on different legal training is the source of a great completeness of consideration and a guaranty for the all-sided and impartial character of the final decision or opinion. Of course, this situation may lead to difficulties. It is obvious that it is far easier to agree between people who, by reason of their very education and their very origin, are likely to hold the same views; but if this Court were to be composed in a manner offering such facilities, it would be immensely impoverished as compared with what it is today. ( "Sidelights on the Permanent Court of International Justice", Michigan Law Review, XXV, 327.)

60. Points of division. -- Experience shows that there are not more than three points as to which the two great systems of law

Proceedings, Society for Judicial Settlement of International Disputes, 1910, 309.


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International Arbitration, from Athens to Locarno
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