A Guide to Procedural Approaches to Civil Law Versus Common Law

In international arbitration, one of the major considerations is to follow rules and procedures properly. Generally, the law of a state or presiding arbitration will determine a dispute and can be assumed in the early times of international arbitration.

This article will highlight the current state of civil law versus common law in international commercial arbitration procedures. Also, the role of arbitrators and institutions is quite different.

Civil Law Versus Common Law

When talking about civil and common law, both are quite apparent in the procedural approach to international commercial arbitration. Both laws are overlapping in most states and one of them is most prevalent.
Civil law requires written evidence of contracts and the apparent power of the courts to gather the required evidence to make a decision.

However, both laws do overlap sometimes in international arbitration in which one of the two will generally be the most prevalent. Sometimes in civil law, disputing parties have minimal power and discover the type of evidence to make a decision.

In common law, the collection of evidence is carried out by the disputing parties where they try to counter and cross-examine their respective evidence and make a decision. The job of presiding power is to consider the evidence and take decisions accordingly.

But in recent times, sticking to arbitrators and institutions have a deep role in collecting evidence and issues. A presiding arbitral seat can bend towards the same procedural practice when dealing with an international dispute.

Sticking to the law is needed when it comes to sticking to judgments and procedures with limited possibilities. The divergence and difference are insignificant when it comes to third party funding. But when it is about civil laws, disputing parties compile evidence and take it into account international arbitration rules into consideration.

In common law, most disputing parties have to handle all the evidence and take all important factors into consideration in the arbitral clause.

For most countries, civil law is a method to provide independence in most countries. The Swiss Law Article allows disputing parties to determine their rules with reference to the arbitration rules on which the clause is based. The French civil law in article 1509 even states that the arbitration clause can give parties the power to define the procedure and then follow dispute resolution.

Civil law is the most conservative way of two general laws which recognize the power of parties. This is one reason why most contracts have procedural laws when guiding their dispute resolution process.

Critical Analysis of Laws

Therefore, it is extremely essential to take decisions carefully and include all arbitrators to take satisfactory decisions and acceptance from both ends.

The role of civil and common law has continued to grow in recent years and is in trend right now. However, the civil law system’s reverence for independent arbitration is highly appreciated. This means that investors can expect fair and well-drafted proceedings under civil law.

Getting a well-drafted contract plays a major role in the success of civil law in international arbitration. With the right arbitration firms and contracting parties, it is sure of getting well-drafted contracts to keep procedural law on their side in their favour.

When it is about making the right choice in terms of drafting favourable contracts, clients can choose the right partner and get professional counsel. Rattsakuten is one of the best firms with expert arbitrators that have astounding experience in drafting some of the best contracts in the world. So, for more enquiries, you can reach the company and get professional assistance now!

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