The Common and Civil Law Systems in International Arbitration Proceedings

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By Nicholas Ene

The Queen Mary University of London Alternative Dispute Resolution Society (‘ADR Society’) has recently hosted an event with Dr. Schaffstein, an arbitrator and counsel at Lévy Kaufmann-Kohler. At this event, Dr. Schaffstein examined the nuances characterising both common and civil law systems with respect to international arbitration proceedings which we seek to briefly distil in this note.

The Statement of Claim

Starting from the very beginning with the statement of claim, how do approaches between common andcivil law systems vary? Within civil law systems, we see what could effectively be described as a frontloading approach; the expectation is that a case will be fully developed, prior to filing. Thus, the statement of claim will include a full factual background, the laws on which the claim is founded and other relevant documents which will also be submitted. In practice, this manifests in greater amounts of work being done prior to the commencement of an international arbitration proceeding.

Contrastingly, within common law systems, the statement of claim may perhaps be described as minimal. This is so, as the general purpose is to highlight the issues that are in dispute between the parties. As such, the statement of claim merely sets out the cause of action, the facts occasioning the cause of action and, also, remedies sought. This minimalism is perhaps why the common law approach in the United States used to commence a proceeding, has been described as ‘a short and plain statement of the claim’. Tacit within this is an assumption that a sufficient level of information will have been conveyed to the opposing counsel and thus, a defence can be prepared.

Evidence and Witnesses

To the reader acutely perceiving the variations in the statement of claim between common and civil law systems, something further will have become apparent. If at the commencement stage, a minimalist rather than a front-loading approach is observed, then the importance and position of evidence will also be altered respectively. Thus, within the American common law system, a liberal expectation exists with respect to evidence finding. Contrastingly, within continental European civil law systems, documents may be obtained only if the document in question is relevant vis-à-vis the fact alleged, or where the offering party is entitled to relinquish or produce the document as per the civil law provisions.

Similarly, the common and civil law systems in international arbitration proceedings vary in their treatment of witnesses. For example, in line with the civil law’s front-loading approach, the expectation is that judges would have read the dossier of documents which may include witness statements. This being so, the lawyer mainly suggests questions which the judge could ask. This varies from common law systems where an adversarial nature is evidenced not only by cross-examinations, but also positive strategic attempts to diminish the credibility of witnesses.

Legal argument and decision-making

It will be clear by now that at every stage of an international arbitration proceeding, variances between the common and civil law systems can be discerned. This is no different with respect to the presentation of legal arguments. In line with the common law approach, authorities relied on here include decisions by courts resolving cases with comparable fact patterns. The general approach here takes the form of submission of briefs, citing key authorities and explaining legal arguments, then a focus on the core points with questioning from the court or tribunal. In contrast to this, the civil lawyer is to be armed with a comprehensive outline of their points with reference to the particular authorities. Also, within civil law systems, an offer of ‘pleading points’ is given to the tribunal by the lawyer either at the beginning or end of their oral argument, complying with the detailed outline.

Further reading:

  • Dr Andreas Respondek, How Civil Law Principles Could Help to Make International Arbitration Proceedings More Time and Cost Effective, Singapore Law Gazette, February 2017
  • Siegfried H. Elsing, John M. Townsend, Bridging the Common Law-Civil Law Divide in Arbitration, Arbitration International, Volume 18, Issue 1, 1 March 2002, Pages 59–65, https://doi.org/10.1023/A:1014200908066

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