Civil and Common Law: Contrast and Synthesis in International Arbitration

Article excerpt

An international practitioner with experience arbitrating in common law and civil law regimes discusses the differences between the two systems and how the best of both are being used to improve the efficiency of international arbitration.

This article examines the two main legal systems in the world-the civil law and the common law-and their impact on international arbitration. The majority of the world's population lives under the civil law, but the influence of the common law is significant. Before becoming an international arbitrator, I practiced law in both civil and common law jurisdictions so this article contains personal and academic reflections.

History and Substantive Differences

The civil law system is steeped in Roman law, which eventually led to the Napoleonic Code, the foundation of French law. The civil law spread to the rest of continental Europe, Russia, China, most of Asia, Latin America, and part of Africa. The common law system is the Anglo-American legal tradition based on English law.1 It spread to the United States, Canada, India, Australia and the rest of the British Commonwealth.

The common and civil law differ in numerous ways apart from arbitration procedure. For example, the common law requires consideration to form a contract; the civil law allows gift contracts; the common law doctrine of res judicata is broader than its civil law equivalent; and the common law allows extra-contractual punitive damages. We now turn to procedural differences and their effects on international arbitration.

Procedural Differences

Adversarial or Inquisitorial Approach. In general, common law jurisdictions take an adversarial approach to litigation and arbitration. Judges and arbitral tribunals play the role of impartial finder of fact and law in the adversarial battle between the parties.

Civil law jurisdictions use the inquisitorial method. Judges and arbitral tribunals actively elicit the facts and law from counsel and witnesses. In arbitration, this means that the tribunal is in complete charge of questioning witnesses. A party or counsel who wants to question a witness must present the question to the tribunal, which then questions the witness.

But these differences can be altered by legislation or arbitral rules. The English Arbitration Act (1996) and China's International Economic and Trade Arbitration Commission (CIETAC)2 both allow a tribunal to proceed in an adversarial or inquisitorial manner. In Switzerland, a civil law jurisdiction, parties in international arbitration have the right to be heard in an adversary proceeding.3 Thus attorneys may question the witnesses in those jurisdictions.

Julian Lew, a well-known international arbitrator and author, has pointed out that the personality of arbitrators, particularly that of the chair of the tribunal, can also influence the style of an international arbitration.4 This is particularly so in ad hoc arbitration (where the arbitration procedures are determined solely by the parties) and in the inquisitorial style of arbitration.

Pleadings. In common law countries, a pleading is a brief pre-hearing statement of a claim or defense, possibly combined with a counterclaim.

In a civil law regime, pleadings mean the lengthy oral presentations the parties' counsel make during the hearing. These include the case-in-chief, the rebuttal, and the reply and rejoinder. The pleadings are usually read from written papers called "memorials," which have exhibits attached. The exhibits are considered evidence in the case.

The nature of streamlined pleadings in common law regimes leads to a deeper issue: access to justice in civil law countries. Civil law jurisdictions require the parties to provide substantial evidence at the outset of a case before a claim is heard. This has led to criticism that they discriminate against parties who either do not have this evidence initially or cannot afford attorneys to assist them. …