ARBITRATION PROCESSES IN COMMON LAW VS. CIVIL LAW JURISDICTIONS
CD: For background, could you provide a brief overview of the differences between civil law and common law systems?
Bertrou: The Civil Law is codified. It is a legal system which is based exclusively on written laws organised into ‘codes’ depending on their area of application. These comprehensive ‘codes’ are continuously updated, making the parliament the main source of law. The judge’s role is to establish the facts of the case and to apply the provisions of the applicable code. The Civil Law system is inquisitorial rather than adversarial. This means that the judge has an active role during the trial. He will question the parties, their counsel, witnesses and experts. In criminal cases, it is the judge who will bring the charges, investigate the case and collect the evidence. In contrast, the Common Law is uncodified. The law stems not only from the legislative branch of government, but also, and more importantly, from the precedents established by higher courts. This system rests on the principle of stare decisis. Lower courts are bound by the precedents established by higher courts. Judges are not bound by decisions stemming from other judges sitting in the same court, although these are deemed to have a persuasive effect. The Common Law functions as an adversarial system, a contest between two opposing parties before a passive judge who simply moderates. In jury trials, the judge will give directions to a jury of laymen who ultimately decide on the facts of the case. The judge then determines the appropriate sentence based on the jury’s verdict.
Oct-Dec 2013 issue
Akinci Law Office
Skadden, Arps, Slate, Meagher & Flom LLP