The impact of common and civil law on international arbitration

The growth of global trade over the last forty years has been mirrored by the growth of international arbitration as a means for parties to resolve commercial disputes efficiently and cost-effectively. While well-established institutional and ad hoc rules exist to provide the framework for running international disputes (including JAMS), these rules are not sufficient in themselves to cover the varying situations and diverse procedural questions that will arise during the course of the hearing.

The legal representatives of each party quite naturally look to their own substantive legal training under their national system when agreeing how to answer these procedural questions. But in the context of an international dispute these national legal systems can be inappropriate, especially given the diverse backgrounds of parties, lawyers and arbitrators.

International arbitration, therefore, has had to develop its own distinct procedures over the years, influenced heavily by both the common and civil law traditions. It is useful then to examine how common and civil law have helped shape international dispute resolution. And given that arbitrators are likely to come from one or other of the legal traditions, it is also useful for parties and their legal counsel to understand how that is likely to influence the tribunal’s thinking on procedures, evidence and, ultimately, award.  


Source: JAMS ADR