APRAG Conferences Session7 : The differences between common law and civil law jurisdictions in the view of end user in international arbitration

Session 7

This session is the discussion about the differences between common law and civil law jurisdictions in the view of end user in international arbitration.

The first speaker shared his experience in Middle East where the common law and civil law are blended. The substantive laws are civil law while the procedural laws are common law. The civil law and common law are mixed in construction and energy law as well. The problem in Middle East is the bad attitude about mediation from the bribery so he had only one mediation case since he has been there. When he arrived at Middle East, the idea about disclosure in common law proceeding is quite new. The judges and lawyers had no idea about disclosure. Civil law type proceeding such as all documents presented to the court must be original; the civil law procedure is very strict. 3-4 years later more people came from common law jurisdiction so the concept of disclosure gradually perceived by judges and lawyers especially the IBA guideline. In his view, with the blended of common law and civil law, there should not be over disclosing. Prague Rule is the civil law way while IBA guideline represents common law. In his view, there should not be too much disclosure; just follow the IBA guideline concerning the disclosure is sufficient. For the expert under civil law, experts are appointed by the tribunal while in common law, experts are appointed by the party. Both have pros and cons. Another issue is how to present the evidence. The IBA guideline and CIArb arbitration rules regarding the presentation of expert evidence are different, however, the role of the arbitrator is the most important no matter what rules are employed. The role of arbitrator is to ask the expert and control the presentation of the expert.

The second speaker from London with common law background shared the common law perspective. She started with the perspectives of lawyers in civil law who have raised their concern that the common law case management is not the best solution and not cost saving. They apparently expressed their concern in the preamble of the Prague Rule. She made an argument with common law perspective on that issue such as the followings;

1. Setting first procedure conference in common law case management assists the arbitrator to identify issues, to rendered summary judgement and to identify the point of law. It also leads to the case settlement. It helps the arbitrator to proactively manage the process and encourages the party not go in their own ways in order to escalate the cost
2. Common law style of pleading requires the party to list their genuine issues and prepare the documents and witnesses following the issues. It reduces the document production because it eliminates the irrelevant documents.
3. The first procedure conference also fixes the length of time in the proceedings to escalate the cost of hearing. When the party agree with the time table of hearing, it expedites the proceedings.

The third speaker is Thai lawyer who has been experienced in law firm for up to 30 years and currently shifted her role as the Deputy Managing Director of the PTT Public Company Limited. Personally, she thinks cost is the last point to be considered; it is not the most important factors. She shared very interesting perspectives from her experiences as a counsel and in-house lawyer in which she listed what the in-house lawyers need from counsels.

1. Counsels should come with strategy. That means counsels have to know your clients; what they need; how much of their bargaining power; whether or not they still want to do business with their counter party. The counsels should plan for strategy from the information they received from clients. She always tells her clients that we are negotiating with judges and arbitrators so we cannot win all the points or receive all what we request. We should be realistic and realize on that point. The counsels should advice end-users on that strategy.
2. In-house lawyers expected counsels to understand client’s business and it is very helpful if the counsel is well-rounded person having sophisticated knowledge in some industries such as oil and gas or construction.
3. End-users want to reached the end of the game. They want the output rather than going step by step. They want to know what the best case is; what the predictable outcome is and what the worse case is. The counsels should manage the client’s expectation as well.
4. Counsels should give the honest view not try to please the clients by giving too much positive possibility for the case because if ends up with unhappiness, clients will be upset.
5. For the cost, sometimes, the most expensive one is the best way compared to the benefit in return. Clients also expect the counsel will help them to reduce the cost and manage the case efficiently.

The forth speaker from Canada where common law and civil law are combined. He emphasized listening to the user to make international arbitration better. With that point, he referred to the survey collected from the in-house lawyers by School of International Arbitration Center, Queen Mary University of London.  The survey was conducted by asking 1,000 users and providers of arbitration and reveals the primary findings. The survey shows that the international arbitration is the preferred method of resolving the international dispute as compared to litigation by the vast majority of the users and providers 97% of respondents. In-house lawyer preferred to use arbitration combined with other ADR such as mediations, conciliations while over 60% of the arbitration service providers claimed on preference on international arbitration without any ADR combined with it. The respondents of the questionnaire also gave the opinions to improve international arbitration that the arbitrators allow too many rounds to submission of document; the proceeding is too lengthy and lack focus on the key issues. According to the survey, the users proposed that the arbitrators should limit the number of document and the rounds to submit document and should be more focus on the presentation on the hearing. He also mentioned Prague Rule drafted by the continental European lawyers which represents civil law perspective in international arbitration. In his views, both Prague Rule and IBA guideline are also make the case management efficiently so it depends on the arbitrator’s preference.