Variations between Common and Civil Law Legal Systems - Essay Example

Derek Kantaria: international arbitration Introduction Variations between common and civil law legal systems are very apparent, especially in matters pertaining management and disclosure of evidence. In international arbitration procedures, severe disagreements may arise between the conflicting parties, especially because the parties come from two different legal backgrounds1. As a result, issues of handling evidence and any substantive conflict between the disputing parties are of major concern in international arbitration procedures2. The procedural conflicts that arise during an international arbitration are solved in arbitral tribunals through discretional procedures. In the contemporary world, most arbitration laws and arbitration policies now incorporate a provision that bestows the parties involved in the arbitration liberty to set the rules on how the information they disclose should be handled the evidence. In the absence of such an agreement, which is mostly the case, the provision bestows the arbitral tribunal the discretion to decide all procedural issues. The paper will reflect on the development of common and civil law fusion principles with regard to matters of handling and disclosure of evidence obtained in an international arbitration process on a case presented by Derek Kantaria. Derek Kantaria’s predicament is that he has attempted to mediate the dispute without success, and is now at the point in the arbitration where he believes that he must mediate again, but this time (unlike the first time) he will have to see the parties in separate caucuses. Derek Kantaria is also concerned because one of the issues in the dispute concerns an international boundary; and, further, he believes that he might be called to give evidence in an international tribunal. The purpose of the paper is to analyse the circumstances, identify all the procedural issues arising, and advise Derek Kantaria about what problems he might expect to face once the dispute has been resolved, either by agreement or by Award. Arbitration Statutes and other Laws at the Seat of the Arbitration Arbitration proceedings happening in a specific jurisdiction are usually subject to the pertinent arbitration legislation of that jurisdiction3 (i.e., the proceedings are usually governed by the local system of law in the location of arbitration, for example proceedings happening in the UK are governed by the Arbitration Act 1996 (UK) c 23). In Derek’s case, the law applicable in the governing of the proceedings is the English law. As a corollary, Derek Kantaria is obligated to comply with the compulsory rules and any supplementary regulations that apply in accordance with the English law unless the conflicting parties expressly derogate from the law. Mandatory rules in the English law will require Derek Kantaria to include the elementary procedural rights of equal treatment of the parties participating in the proceedings4. It is however important to inform Derek that national laws in the area of jurisdiction are unlikely to have a noteworthy direct effect on matters concerning the handling and disclosure of evidence. In accordance with the Magna Carta of International Arbitration Procedure, which has been endorsed in most jurisdictions where arbitration proceedings regularly occur, Derek will enjoy extensive discretion privileges regarding the particular procedural rules that guide the handling and disclosure of evidence obtained during the arbitral proceedings. This discretion is, nonetheless, supposed to be implemented while observing due regard to the participants’ expectations. The participants should as a corollary be given a chance to air their concerns with regard to the evidence they disclose so that Derek and other tribunal members can note them and stick to them in case they are asked to give evidence in an international tribunal. The most important thing that Derek should do before initiating the proceedings is to ask for the conflicting parties’ due regard pertaining to disclosure of evidence so that he can have a point of reference if asked to give evidence in an international tribunal. The English law also presents Derek the discretion of not disclosing evidence when it asserts, “No individual appointed pursuant to this clause shall be called to give evidence in any adjudication.” The Arbitrators’ Experiences and Professional Background For fair and just procedural solutions pertaining to the taking of evidence to be arrived at, the arbitrators must put all the issues of the conflicting parties on the table then put aspects of the parties in the solutions5. In most cases, arbitration proceedings are carried out by lawyers who take up the role of counsel and arbitrators. For lawyers to take up the role of counsel and arbitrators, they have to be conversant primarily in one specific legal tradition, have participated in the proceedings that refer to the laws of that jurisdiction and therefore be acquainted with a number of approaches of the handling evidence in a manner that can be deemed to be fair and just6. Derek should not be concerned with his eligibility in handling evidence disclosed by the conflicting parties because he has sat as arbitrator on eight occasions in important disputes, three times as sole arbitrator, three times as a party-appointed arbitrator, and twice as chair of the tribunal. In addition to the variations regarding particular rules, Derek should be aware that common law and civil law courts also vary significantly in matters pertaining to management of proceedings. In common law jurisdictions, the manner in which cases are managed especially on matters regarding the management of the evidence is usually left, largely, in the hands of the conflicting individuals. This means that in common law jurisdictions the individuals implicated in the proceedings decide on which documents, witnesses, expert witnesses, and additional evidence to issue in favor of their case. In the past, the English courts were usually not very involved in direction of proceedings and this led to too much immaterial evidence being presented during the proceedings thus lengthening the process of coming up with a solution. Though the rule of active case management by the court is at the moment resolutely a clause in the Civil Procedure Rules 1998 (UK) (‘CPR’)7, English courts remain moderately averse in forcing individuals to provide particular evidence or altering the manner in which individual implicated want the evidence to be handled and managed. IBA Rules The International Bar Association rules (IBA Rules) are usually a point of reference to in nearly all international arbitration proceedings. The IBA Rules were drafted by a group of 16 arbitration practitioners majority of whom had practiced law in civil law traditions8. They were accepted and are supposed to be implemented as resources for individual implicated in an arbitrary proceeding as well as to arbitrators with the purpose of helping them conduct evidence matters of international arbitration proceedings in a competent and cost-effective way. The IBA Rules were intended to be implemented in tandem with institutional or ad hoc arbitration regulations that oversee international arbitrations. Furthermore, they were meant to reflect on processes of handing and managing evidence in the different legal systems of different countries. In so doing, it was expected that these rules would supported and accepted by many countries. The IBR rules will be very vital in Derek’s case, particularly because the individuals implicated in the arbitrary proceedings come from different legal cultures. Nonetheless, whilst the IBA Rules are valuable in providing specific procedural solutions, they can also be used as a menu providing numerous procedural options instead of defining one specific standard solution. As a corollary, Derek is allowed to work with a fusion procedural regulation concerning handling and management of evidence from the countries of the individuals implicated in the arbitrary proceedings as stated in the IBA Rules Derek’s role in the arbitration proceedings Derek Kantaria is also concerned because one of the issues in the dispute concerns an international boundary and indeed, he should be because might be called to give evidence in an international tribunal. What Derek should know is that In the English law, the standards of handling witness evidence in the context of international arbitrations have evolved over time. The present day international arbitrations standards are very particular on how issues pertaining evidence and how the proceedings should be conducted9. English law mandates Derek to be the mediator and the arbitrator in the proceedings. The law also stipulates that none of the individuals implicated in the arbitrary proceedings shall take any exception to any of the provisions of the clause regulating the proceedings upon the issue of any Award10. As a result, Derek is the one that helps the individuals implicated in the arbitrary proceedings come up with a solution that satisfies everyone. He is also the one that presides over the proceedings and decides whether the individuals implicated in the arbitrary proceedings are following the standards set to regulate the proceedings. As a result, he is the one who handles any information disclosed during the proceedings. It is Derek’s responsibility to manage the evidence disclosed during the proceedings. Unless the individuals implicated in the arbitrary proceedings consent, Derek has no right to disclose the information disclosed during the proceedings. As a corollary, if Derek is called to give evidence in an international tribunal, he should decline and use the clause in the English law that prohibits disclosure of such information as his defence Since Derek’s case deals with the sensitive issue of international boundary, the international tribunal might still insist on calling Derek to give evidence. If the international tribunal persists in getting Derek to release the evidence, Derek should follow protocol and call for the court to follow the right procedure to acquire the evidence. In general, the procedure for disclosure such information/evidence in ordinary English proceedings is a very burdensome and expensive process that takes a lot of time. So as to derail such procedure Derek should make sure that he counsels the individuals implicated in the arbitrary proceedings to indicate they do not consent to the disclosure of any information or evidence which they reveal during the proceedings and that this information or evidence should not be dispensable in any other adjudication. Indeed, due to the cost, the utility and authenticity of the information evidence, and the time taken to acquire the information/evidence, efforts by the international tribunal to make Derek give evidence will be derailed and ultimately halted because Derek will have the law on his side. Bibliography Abraham, T. (2010) “Fast-track Arbitration: An Idea Whose Time Has Come?” IBA Arbitration Newsletter, pp. 22-23 Civil Procedure Rules (1998) (UK) (‘CPR’) rule 1.4. IBA Working Party. (2000) ‘Commentary on the New IBA Rules of Evidence in International Commercial Arbitration’ Business Law International 3, 3. Fenn and OShea (2008) “Adjudication: Tiered and Temporary Binding Dispute Resolution in Construction and Engineering,” ASCE Journal of Professional Issues in Engineering Education and Practice, 134(2), pp. 203 -224 Gaitskell, R. (2005) “Current Trends in Dispute Resolution--Focus on ICC Dispute Resolution Boards,” Society of Construction Arbitrators, Annual Conference: 70 (4) pp. 22. Morton, P. (2010) “Can a World Exist Where Expedited Arbitration Becomes the Default Procedure,” 26 Arbitration International 1, pp. 103-114 Scott, (2004) “Lessons Learned from Statutory Adjudication in the United Kingdom,” presented to Center for International Legal Studies, Dispute Resolution Seminar, Salzburg, pp. 5 Tackaberry, J. (2009) “Adjudication and Arbitration: The When and Why in Construction Disputes,” Arbitration, 75(2), pp. 235 to 243 Trittmann, R. and Kasolowsky, B. (2010) Taking Evidence In Arbitration Proceedings Between Common Law And Civil Law Traditions – The Development Of A European Hybrid Standard For Arbitration Proceedings. UNSW Law Journal. 31(1)Pp. 330-340 UNCITRAL Model Law on International Commercial Arbitration (n.d.), UN GAOR, 40th sess, Supp No 17, art 18, Arbitration Act 1996 (UK) c 23, ss 1(2), 33 Read More