1 、the civil law and common law divide: an international arbitrator tells it like he sees itkarrer, pierre a. dispute resolution journal63.1 (feb-apr 2008): 72-81all the time people ask me whether it makes a difference whether i am sitting with co-arbitrators from the civil law or the common law tradition. i tell them theres not much difference. it all depends on the people. some people have vast international experience, and by that i mean truly international experience beyond the english-speaking, cricket-playing world. they have arbitrated all over the world with co-arbitrators from all over the world, and lawyers from all over the world have appeared before them. they take a comparative law approach. actually, i would say, it is not even primarily a legal approach; its a practical approach. determining the applicable law and its content is by no means the first task in arbitration. it is one of the last, once the facts of the case have been established. the need to be flexible an arbitration is a project and you have to work well with people to make the process work. what shapes an arbitration is the interaction of the participants. surely, the arbitrators matter, but they tend to be the most flexible people in the room. that is why they were chosen. the lawyers for the parties tend to be slightly less flexible. they come in all types. i have seen some quite flexible lawyers who move effortlessly through international cases. they learned, probably through their local practice, that if you want to win cases, you must understand the triers-of-fact and work well with the other people involved in the case. on the other hand, i have also seen many inflexible lawyers. some are so specialized in big-ticket litigation that it is hard for them to understand that arbitration is not litigation with another name, or even litigation light. iba rules of evidence the parties attorneys should understand as early as possible that the arbitration proceeding will not follow the procedures called for by their own state courts. rather they will most often follow the iba international bar association rules of evidence (iba rules). in the last few years, i cannot remember a single case where these rules were not used as guidelines, and i am now talking about cases in jurisdictions literally all over the world. you hear that the iba rules of evidence are a clever compromise between the civil law and the common law. i do not think that this is right. in many areas these rules contain procedures that differ from what is done in state courts in both civil and common law jurisdictions. was it difficult to draft the iba rules of evidence? not very. the rules were written by a group of arbitrators who had experience arbitrating in many different countries. they simply put in the iba rules what they usually wrote in their orders for directions-i.e., their best practice. that is how procedures not generally used in state courts proceedings were built into the iba rules, such as extensive written submissions accompanied by early submission of documents, witness statements with live cross-examination of witnesses, and free assessment of the evidence by the arbitral tribunal. for the same reason, technical rules of evidence, such as the hearsay rule, do not apply in international arbitration. there are, however, a few important points that are not covered by the iba rules or are just glossed over. a look back at history where do the differences between the common law and the civil law tradition come from? not from deep philosophy, despite the fact that you often hear people say, ours is the inductive method; theirs the deductive method, or we are seeking truth and justice; the others are content with formalism and applying the law. or is it the other way around? no, the differences come from history and habit mostly. these have shaped the organization of the courts and the legal profession in the common law world for centuries without the dramatic change that shook continental the little more than 200 years ago. it is only europe a little more than 200 years ago. it is only over little more than two centuries that legislators in two-thirds of the world started creating systematic codes. on the european continent, we owe the romans some basic ideas, but the details are hardly older than 200 years. there is also quite a bit more roman law in the common law than many people realize. it is often believed that legal ideas are directly copied from one legal system to the other (a process called reception). this happens only rarely. the best recent example is the russian civil code, which owes much to dutch and other western european models, and has direct offspring in neighboring countries that were former members of the soviet union. unified law is typical of the civil law tradition, and that is the law that travels nowadays. an example is the broad modernization of international arbitration law we experienced in eastern europe based on the uncitral united nations commission on international trade law model law on international commercial arbitration. in my view, the recent common law drafting style used by uncitral is unlikely to be a success. but for the most part, the process of exchanging laws is quite subtle these days. with industrialization and its latest step, the use of computers, international business transactions have become very complex. so have international commercial disputes. every day international arbitrators see how others are resolving disputes elsewhere. every arbitration is an opportunity to try something new. of course, it sometimes happens that a technique seems to work in one arbitration but not in the next. over time, the repertoire (or bag of tricks) of international commercial arbitrators becomes larger, and it inevitably includes both civil law and common law elements. that is why i said at the outset that there is little difference between experienced common law and civil law arbitrators. in sum, international commercial arbitration is a fruitful ground for experimentation in the area of civil procedure. from time to time, some jurisdictions even look at methods that have become popular in international commercial arbitration and introduce them into domestic litigation, as happened in england recently. let us now look first at some details of arbitral procedure. interim measures the power to grant interim relief is conferred on arbitral tribunals all over the world. a few states, for example italy and finland, deny that power to arbitral tribunals. in my view, this has less to do with the civil law/common law divide than with the influence of local judges who zealously guard their powers and are distrustful of private arbitrators. is there a difference between civil and common law jurisdictions with respect to orders for security for costs? by now, none at all. hearing length is there a difference with respect to the length of hearings? yes, there is. when my doctor tells me to take a particular pill, i dont just go along willy-nilly. i ask the doctor why and what the pill is supposed to do so i know what to expect. in some cultures, i believe in england, it is apparently rude to ask a doctor to explain something. this view may apply to other professionals as well. so if you put yourself entirely in a lawyers hands without asking any questions and the law firm runs up the time spent on the case, tough luck for you. my experience is that having english lawyers on a case means that it will last at least twice as long and will cost at least twice as much. somebody told me they believe in the rolls royce approach. adding barristers will be even more expensive. nowadays everybody agrees that arbitration proceedings should be proactively managed by the arbitral tribunal. the days are gone when judges and arbitrators could arrive in the morning and leave in the evening without saying anything more during the entire day than their good mornings and good evenings. some swedes apparently still believe in this old-fashioned passive approach, but they are misled by their an-glophilia. the way to keep hearings short is to use the chess-clock and witness conferencing, both of which are discussed later. arbitral pleadings the days of common law notice pleading are gone in international commercial arbitration. full narration is required. documents exchanging documents early in the arbitral proceeding may seem to be influenced by civil law practice, but in reality, it is a response to the specific needs of a truly international arbitration. in london, where people have their offices within easy walking distance of each other, one can understand why the practice is to wait to exchange supporting documents until after addi- tional written submissions have been exchanged. it is only at that time that the parties and counsel know which documents appear relevant or useful and it is easy to exchange them all at once. sometimes, the parties jointly prepare a common core bundle of documents for the tribunal. if, however, the parties and their lawyers are on different continents and they have different philosophies about the importance of supporting documents, i do not believe that we should expect them to behave as if they were in london. moreover, if you expect the arbitrators to be proactive, they should get their hands on the key documents early on, and if there is some duplication during later information exchanges, so be it. it is even useful for the arbitrators to have a double set of documents so they can organize them according to their own criteria (e.g., chronologically or by subject) if they wish, while keeping one set in the order provided by the producing party, so that they can find a document to which that party may refer later on. there is a very marked difference between common and civil law countries with respect to discovery of documents. in some common law jurisdictions, particularly the united states, extremely wide discovery is in use. this is less true of other common law jurisdictions, for example, england. some people say that there is no discovery in the civil law. this is not entirely true. discovery is allowed but in a far more limited way. many people say, now we have this good compromise in the iba rules of evidence. yes, we do, but it is still not entirely predictable to what extent discovery, or production of documents as it is called in international commercial arbitration, will be granted in any particular case. to some extent, the iba rules just gloss over the problem. fact witnesses in common law countries there is a profound belief in the testimony of fact witnesses. historically, proceedings in common law jury trials were entirely oral and documents had to be introduced by a witness who could identify them. a remnant of this may be observed when people sometimes say in a witness statement, witness such-and-such will say this-and-that. of course, the witness will not say this-and-that because the written statement substitutes for live testimony and at most the witness will confirm the truth of what is in that statement on cross-examination. by contrast, in the civil law there is a deep distrust of the testimony of fact witnesses. all witnesses lie, i have heard more than once. ah, but you hear from the common law side, they must swear that they will tell the truth, and sworn testimony must carry substantial weight. i am not as cynical as many of my civil law friends. it is not my experience that witnesses normally are not trying to tell the truth. but it is also not my experience that there is any difference between witnesses who have sworn and witnesses who have not. in fact, if anything, a lying witness often believes that he can strengthen the lie by adding: i swear im telling the truth. this type of witness may protest too much. however, i do not believe for a moment that a witnesss honest recollection is particularly reliable. in my view, contemporaneous documents provide the best skeleton of the animal we are trying to reconstruct and the recollection of various people may help us put flesh around those bones. but if you believe that all witnesses are liars, you will be very wary of the idea of preparing witnesses. in any event, the principle in civil law courts is that it is unethical for a lawyer to discuss evidence with a witness before the witness testifies. repeatedly i have heard civil law lawyers say that witness statements are worthless because they have been prepared by the lawyers. sometimes, i tend to agree. it depends on the people involved. the solution is for the arbitral tribunal to have information about how the witness statements were prepared. in my experience, arbitrators should be particularly careful with witness statements written in english that are signed by witnesses who do not write english well. how exactly was this witness statement prepared? sometimes, amazing stories emerge. i have seen a case where all witnesses from one country were put in the same room and all witness statements were prepared then and there by the one person who spoke the most english. i have also seen collective witness statements. to avoid problems with witness statements, an arbitral tribunal should provide some guidance to the attorneys. but witness statements as such are often useful and fulfill a psychological need that should not be minimized. some civil lawyers have the misconception that witness statements are frequently used in common law courts. this is a vast exaggeration. witness statements are rarely used in common law courts. in some common law countries, not limited to the united states, a mystique surrounds the process of swearing in witnesses. occasionally one encounters attorneys who find it absolutely essential that the witnesses be sworn in. but some witnesses object to swearing in for religious reasons. also, some civil law lawyers say that an arbitral tribunal cannot swear in witnesses because doing so is a prerogative of the state. i have never understood why this should be so. i do not believe for a moment that if people have been sworn in by a state judge, they are more likely to tell the truth than if they have been sworn in by an arbitral tribunal in front of their colleagues. distrust of witnesses is behind the view held by some civil lawyers that a witness who hears other witnesses testify before giving testimony will adjust his or her testimony accordingly. so the conclusion is that witnesses in international arbitration must stay out of the hearing room, except when they testify. this is sometimes called sequestration of witnesses. cross-examination in the civil law, it is often said that there is no cross-examination. the reason is that witnesses rarely appear in state court litigation, but when they do appear it is before a delegation of the court, which asks all the questions. the parties attorneys are only allowed to suggest additional questions. however, in reality there is cross-examination . well, almost. civil law judges often quickly tire of parroting counsels suggested questions, so the counsels questions will be answered straight away by the witness after all. accordingly, in reality, the difference is in who asks the questions first and who asks them afterwards. in england, barristers are obliged to put to a witness any claim that the witness is lying so that the witness has a reasonable opportunity to defend himself. there is no such obligation in the civil law. one can let a witness lie to his or her hearts content without challenge and then, in post-hearing submissions, claim that the witness lied. i have never understood why you should be particularly fair to someone who is lying to you. tribunal questions in international commercial arbitration, some arbitrators, particularly those from germany, prefer asking their questions first because they say it is more efficient than questioning by the the attorneys. naturally, this presupposes that the arbitral tribunal has prepared extremely well. in my experience, at the beginning of the main hearing, the level of preparation of the attorneys will be superior in many cases. the arbitral tribunal will do substantial work after the main hearing. for this reason they often prefer questioning by the attorneys but on the basis of written witness statements. this technique may help prevent surprise, among other things, and make it easier for civil lawyers who are less skilled in the process of questioning witnesses. experts in common law jurisdictions, using party-appointed experts is the tradition. however, many people believe that party-appointed experts are just hired guns, so what they say should have no more weight than testimony by a party. the experts organizations and the chartered institute of arbitrators are trying to change the practice of using non-neutral party-appointed experts. they say party-appointed experts should be neutral. (my friend peter rees has prepared an elaborate protocol on this point.) personally, i do not believe that all party-appointed experts are just hired guns. nor do i believe that formal measures, such as an oath of office or a protocol, will turn what these experts say into something intrinsically more believable. if you look at the iba rules of evidence, it is quite clear that it is for the arbitral tribunal to decide how much to believe a party-appointed experts report. in my experience, some party-appointed experts show signs of being objective, and some appear biased. even those who are biased may still be helpful to the arbitrators. there is not all that much difference between a party-appointed expert witness and a fact witness. what does an expert witness say? the expert says what normally happens based on his experience. and a fact witness says what actually ha