Civil and Common Law: Contrast and Synthesis in International Arbitration

Summary

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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. The common and civil law differ in numerous ways apart from arbitration procedure. In general, common law jurisdictions take an adversarial approach to litigation and arbitration. Civil law jurisdictions use the inquisitorial method. Discovery is a key feature in pre-trial litigation in common law countries. In contrast, civil law jurisdictions do not allow discovery. Although the civil and common law systems represent fundamentally contrasting approaches to dispute resolution, counsel, arbitrators and arbitration providers are blending these approaches in international arbitration in order to expedite and better serve the parties to the proceedings. The results could be the best of both systems.

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Extract

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Civil and Common Law: Contrast and Synthesis in 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 sp...

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