14 July 2017
SIAC Seminar on "The Confluence of Civil Law and Common Law Influences in International Arbitration Practice and Procedure"


By Masao Fujino, Managing Associate, Orrick

On 14 July 2017, SIAC held a seminar at Nishimura & Asahi in Tokyo, titled, “The Confluence of Civil Law and Common Law Influences in International Arbitration Practice and Procedure”. An audience of over 70 attendees, comprising corporate counsel, practising lawyers and academics, attended the seminar.

In the first panel discussion, the civil law influences in international arbitration were discussed and examined by the civil law-trained practitioners. The panel was moderated by Mr Hiroyuki Tezuka (Member, SIAC Court of Arbitration; Partner, Nishimura & Asahi) and was comprised of Mr Aoi Inoue (Member, YSIAC committee; Partner, Anderson Mori & Tomotsune), Ms Yoshimi Ohara (Partner, Nagashima Ohno & Tsunematsu), Dr Eun Young Park (Member, SIAC Court of Arbitration; Partner, Kim & Chang) and Mr Mugi Sekido (Partner, Mori Hamada & Matsumoto).

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Members of the audience during Welcome Address by Hiroyuki Tezuka

Left to Right: Aoi Inoue, Yoshimi Ohara, Hiroyuki Tezuka, Dr Eun Young Park and Mugi Sekido

The civil law-trained panellists were of the view that the court procedures in civil law jurisdictions were more efficient than the court procedures in common law jurisdictions. Mr Inoue commented that parties could exchange arguments more efficiently in civil law procedures by presenting all their important arguments and evidence at the initial stages, whereas common law court procedures allowed the parties to present their important arguments late in the proceedings, even after extensive discovery had taken place. Mr Tezuka pointed out that civil law-trained arbitrators would sometimes try to clarify the issues in dispute after the first round of document submission, whilst this would be an uncommon practice for common law-trained arbitrators. Mr Sekido shared his personal experience in an arbitration where the common law-trained arbitrators had allowed additional exchanges of briefs requested by the other party, upholding a party’s right to present their case, even though the adverse party’s arguments, in substance, were not entirely convincing.

In the second panel discussion, the common law influences in international arbitration were discussed and examined by the common law-trained practitioners. Mr Haig Oghigian (Senior Counsel, Squire Patton Boggs) was the moderator and the panellists were Mr Chris Bailey (Partner, King & Spalding), Mr Chan Leng Sun, SC (Deputy Chairman, SIAC Board of Directors; Principal, Baker McKenzie. Wong & Leow) and Mr Chong Yee Leong (Member, SIAC Board of Directors; Partner, Allen & Gledhill).

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Common law-trained panellists during the second panel discussion

Left to Right: Chris Bailey, Haig Oghigian, Lim Seok Hui, Hiroyuki Tezuka, Dr Eun Young Park, Chan Leng Sun, SC, Chong Yee Leong, Yoshimi Ohara, Mugi Sekido and Aoi Inoue

The common law-trained practitioners were sceptical whether, given the nature of civil law procedure, all relevant facts would be adduced in a pure civil law proceeding. Mr Bailey mentioned that in many disputes, most of one’s time and attention would be spent on examining and analysing the facts of the case, and not on the arbitral rules or procedures. In his view, what was most needed in international arbitration was a flexible set of arbitral rules or procedures that could be made applicable to a wide variety of factual scenarios. Mr Chong added that current international arbitration practice and procedure was a hybrid system of common law and civil law influences, as requests for documents were allowed, but only when a party had shown that the opposing party had a relevant document that is material to the outcome of the case. Parties were also given a limited time for cross examination. Noting that US procedures, such as depositions and unlimited discovery, had not been adopted in international arbitration, Mr Chan commented that civil law jurisdictions have probably had a greater influence in shaping this aspect of international arbitration practice as compared to common law jurisdictions.

In the last session, the civil law and common law-trained panellists from the first two sessions came together for a joint Q&A segment. One question raised by the audience was whether there were any significant differences regarding privilege rules between common law jurisdictions and civil law jurisdictions. Ms Ohara explained that in common law jurisdictions, due to the broad scope of discovery obligations, privilege rules exist as a means for parties to refuse to produce their correspondence with their attorneys. In contrast, in civil law jurisdictions, as there were no broad discovery obligations, attorneys were only bound by confidentiality obligations. She further explained that for international arbitrations, the IBA rules have dealt with these differences in practice by stating that arbitrators may exclude evidence based on privilege, but should also take into account considerations of fairness and equality between the parties.

Another issue discussed during the joint Q&A segment was whether a party should choose arbitrators from civil law jurisdictions when the seat of arbitration was a civil law jurisdiction. Mr Inoue answered that if the governing law was the national law of a civil law jurisdiction and the parties were from civil law jurisdictions, generally speaking, parties should choose civil law arbitrators because they would be more familiar with the traditions and substantive laws of civil law jurisdictions. Mr Oghigian added that his personal stance was that the issues to be adjudicated on were more important than where an arbitrator was from. On this issue, Mr Tezuka pointed out that common law arbitrators would tend to render broader interim measures. Dr Park also explained that since procedural rules of international arbitrations were not prescriptive and arbitrators had the power to decide actual procedures, following from common law practice, arbitrators from common law jurisdictions would tend to be more flexible in granting interim relief.SaveSaveSaveSaveSaveSave
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