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Copyright © International Chamber of Commerce (ICC). All rights reserved.
( Source of the document: ICC Digital Library )
It was in 1974 at an arbitration conference-ICCA's sixth International Congress on Commercial Arbitration-that I first heard of an old Mexican curse. When a businessman in Mexico indulges in sharp practice with another, he is told: 'May your life be filled with lawyers'. To common law practitioners these words (in English) sound almost like a blessing. But the truth is that, like all local clichés, it has suffered in the translation. In the original Spanish, the execration is quite uncomplimentary.
International commercial arbitration, in various parts of the civil law and common law world, has often been 'filled with lawyers' in the Mexican sense! And sometimes (and in some places) lawyers have nearly succeeded in making a mess of it! But not Robert Briner, a civil lawyer par excellence. He has ennobled the legal profession, not by precept but by example. Since he assumed the stewardship of the ICC International Court of Arbitration he has 'filled the unforgiving minute with sixty seconds' worth of distance run', travelling far and wide to spread the gospel of ICC arbitration: truly, Kipling's hero. 1
A common lawyer's view of civil law
It might be thought pretentious for someone whose background is the common law to write about civil lawyers. I can hardly put it more elegantly (or eloquently) than the great American common lawyer and jurist (Dean) Roscoe Pound when, in an address to the third International Congress of Comparative Law in London, he said: [Page549:]
Continental law is characteristically administrative. The judges have no special prestige. In the Continental equivalents of Who's Who one will scarcely ever find the name of a judge. Again, the Anglo-American common law is a law of the Courts. Its oracles are judges. It was taught in the Inns of Court, societies of lawyers, by practising lawyers and was developed in the Courts. The Continental law is a law of the universities. Its oracles are professors. It has been taught and developed in the universities from the Middle Ages. In consequence, the common law is little systematised. Principles are cautiously and tentatively derived from details. On the other hand, Continental law is highly systematised. Details are subordinated to broad principles. 2
The real difference between civil law and common law, however, relates not to substance but to method: it lies in the field of procedure and, to some extent, the personnel by whom justice is administered. In common law countries, adversary procedure is still followed fairly consistently in both civil and criminal cases. In civil law countries, witnesses are generally examined by the presiding judge, who also has the power to expedite the case and, when thought necessary, to influence the parties' conduct of the case. Of course, the main difference between the two great systems lies in the way in which the norms of the law are articulated and new rules derived from older ones in novel cases. Although law cannot remain static, the change must be orderly and gradual so as not to interrupt the continuity and stability of life. In the common law, this role of adapting the law to changing conditions has traditionally been the task of the judges. In civil law countries the task is performed by university professors, since the multiplicity of courts has prevented the leading role being assumed by judges.
Development of the common law and the spread of civil law
More than two hundred years ago, Blackstone, one of the great English writers of law, divided English law into written or statute law and unwritten or 'common' law. The latter, he said, was the law 'by which proceedings in the King's ordinary courts of justice were guided and directed'. Records of the judgments of the courts were preserved and it was the rule to abide by former precedents when the same point came up in litigation. When, in the course of time, the existing common law became too rigid, judges introduced new rules-called 'rules of equity'- for rendering substantive justice. Since then, statute law and equity have been so closely linked with the old common law that the three are now treated as part of a single legal system, compendiously described as 'the common law'. [Page550:]
The English took their law with them wherever they carried their flag-to conquered and newly-acquired territories. That was how the British Empire was established and the common law thus spread, adapting itself to local conditions. 3 When the colonies and dominions severed their political ties with Great Britain after 1945, they retained the common law, which formed the basis of the legal systems of the newly-independent states. After the end of the Second World War, there rose, phoenix-like, from the ashes of what was once the British Empire, a new geo-political entity: the Commonwealth of Nations- an association of equal and autonomous States whose only remaining links with the mother country were trade, the English language and the common law. This is why forty-nine independent States, in which a third of the world's population live, are still known as common law countries.
What is significant-and should be a source of pride to the civil lawyer-is that no country that was not at some time or other part of the British Empire has ever voluntarily adopted the common law! After the First World War, Japan adopted a new system of Continental law in spite of its close commercial links with England and the United States of America. And when in 1926 Turkey decided to replace its antiquated legal system with a modern one, it took its criminal law from the Italian Code and its civil law from the Swiss and German Codes. The stark fact is that whenever there was a choice between common law and civil law, the decision was always in favour of the latter. 4 The main reason has been that the civil law is in the form of a code, easily digestible and more easily understood. The common law, on the other hand, is a strange amalgam of case law and statute law, difficult to comprehend for lawyers not reared in the system.
The common law relies greatly on the wisdom of its individual justices, not only to keep the law in shape but also to 'shape the law' and fill in gaps by 'declaring'-in effect, extending and developing-the common law. This slow process is how the law of arbitration (including international arbitration), which is not specifically covered by statute, has developed in common law countries; whereas in civil law countries arbitration in its modern form has flourished [Page551:]
separately from the courts. Under the civil law concept of arbitration, arbitrators decide questions of law as well as fact, and courts in civil law countries do not supervise whether the decisions of arbitrators are in accordance with the law, except in international commercial arbitration when there has been a violation of public policy rules.
The role of civil law in the international arbitration system
It used to be said of Cecil Rhodes, statesman and empire builder of British South Africa, that he 'thought in continents'. The international arbitrator of today must 'think in continents', because there is something about international commercial arbitration that is beyond and better than the common law and civil law systems put together.
International commercial arbitration has given rise to internationally accepted and harmonized procedural rules. Disputes are resolved that cut across different procedural philosophies and legal systems. In a comparative analysis of the powers of international arbitrators to determine procedures in civil and common law systems, Professor Pierre Mayer, of the University of Paris, wrote:
International arbitration is particularly demanding as regards the unrestricted freedom of the arbitrator to determine procedure: if the arbitrator is to win acceptance from parties coming from countries with different legal systems, he must be able to distance himself from the specificities of the procedure of each of the various national legal systems. In addition, the confrontation in the international area of varying types of procedures has encouraged the introduction of hybrid procedures, which borrow the best aspects of each system and combine them, often quite harmoniously. 5
Professor Mayer, the civil lawyer, recalls having been part of an arbitral tribunal seated in Paris, where the other two arbitrators were respectively English and American, and where the parties were represented by English and American counsel. 'Nobody (not even me)', he writes, 'so much as contemplated not examining and cross-examining the witnesses; neither did anyone envisage letting Counsel for the Defence have the last word!' 6[Page552:]
Sir Michael Kerr, founding President of the LCIA, used to say that the great educational benefit of international commercial arbitration was that it had provided a major contribution to modern jurisprudence by abolishing the distinction between the traditional practices and philosophies of the common and civil law systems 'by presenting a fusion of their best aspects'. He was the first great common lawyer to acknowledge that 'jurisprudentially - the procedural balance in international arbitration has come down firmly in favour of the civil law approach. Both systems are inevitably adversarial in character. But, to use the modern jargon, arbitral tribunals are - and should be - highly proactive, and should not accept the historical role of the common law judge as a more-or-less passive referee who merely holds the balance between opposing counsel.' 7
To my mind, however, the most profound influence of civil lawyers in international commercial arbitration has been their contribution to the harmonization of international commercial arbitration, achieved first through the adoption on 7 June 1959 of the 1958 New York Convention, and then in the framing and adoption of the 1985 UNCITRAL Model Law on International Commercial Arbitration. 8
It was in 1958 that the Economic and Social Council of the United Nations decided to convene a Conference of Plenipotentiaries, comprising representatives of sovereign States, for the purpose of concluding a convention on the recognition and enforcement of foreign arbitral awards and to consider other possible measures for increasing the effectiveness of arbitration in the settlement of private law disputes. The Conference met at UN Headquarters in New York from 20 May to 10 June 1958. At the opening session the draft Convention (on the Enforcement of International Arbitral Awards) prepared in 1953 by the International Chamber of Commerce was presented. During the first week of the Conference, Professor Pieter Sanders, a delegate from the Netherlands, formulated a new proposal containing essential changes, which was welcomed. After further discussions, it was the Dutch proposal which, with amendments, finally led to the Convention as it stands today. This text was marked by the absence of the 'double exequatur', which had been a feature of the 1927 Geneva [Page553:]
Convention for the Execution of Foreign Arbitral Awards, and by the limited grounds for refusing recognition and enforcement in Article V. Professor Sanders has described Article V as 'the heart of the Convention'.
Although the representatives of the governments of forty-five States who gathered in New York hailed from both common law and civil law jurisdictions, those from civil law countries were predominant. And it was Professor Pieter Sanders, a civil lawyer, who was fêted as the 'Father of the New York Convention' at the fortieth anniversary celebrations on 10 June 1998, along with Professor Otto Glossner, another distinguished civil lawyer from the Continental Europe.
One of the attractions of international commercial arbitration in its early days was its simplicity and directness. But with sums disputed in modern international commercial arbitration now running into tens or hundreds of millions of dollars, the end-product-the award-has become tedious, voluminous and too full of legal props in the form of quotations, as in court judgments.
The great English essayist of the eighteenth century, Oliver Goldsmith, deplored the common lawyer's penchant for citing authorities. In his imaginary 'Letters from a Chinese Philosopher Residing in London to his Friends in the East', 9 he questioned the necessity of prolonging a suit by citing the opinions and reports of others:
If arguing from authorities be exploded from every other branch of learning why should it be particularly adhered to in this?; I plainly foresee how such a method of investigation must embarrass every suit, even perplex the student: ceremonies will be multiplied, formalities must increase, and more time will thus be spent in learning the arts of litigation than in the discovery of right.
This is precisely what is happening in modern international commercial arbitration: 'ceremonies' are multiplying; 'formalities' are on the increase; and much time is spent mirroring the arts of litigation, thus often missing the true quest-the 'discovery of right'. That renowned maritime arbitrator, Cedric Barclay, expressed himself strongly, as was his wont, on some of the disquieting features of modern international commercial arbitration. His remarks are as relevant today as when first made in 1981: [Page554:]
Arbitrators do not have to imitate the courts. [He was thinking of common law courts.] Commercial Justice can be dispensed without the turn of phrase and the logic, which is expected from the Court of Appeal. The AAA and the Commonwealth Associations have survived without the giving of reasons. The short and concise decisions which we have given hitherto were much superior to the essays in jurisprudence which the ICC and others, deem appropriate. Our function was to decide, not to teach. It is a fallacy that the publication of Awards will teach others something. More often it leads to confusion and equivocation. Look at this bundle of 1500 Reasoned Awards. How many have we learnt from?
It is not the motivation which one abhors, but the endless expositions and padding which we find infiltrating our system. Brevity is the essence of wit; justice needs no adornment. 10
Dr Alain Plantey, former Professor of Law at the University of Paris and Honorary President of the ICC International Court of Arbitration, envisaged an award in an international commercial case as simply providing reasoning that is 'sufficiently full and detailed to allow for understanding of the rationale that led the tribunal to reach its decisions on the basis of the applicable law, its interpretation of that law and the evaluation of the facts submitted to it'. 11
These should not be regarded as old-fashioned views. In the 1999 third edition of the classic Law and Practice of International Commercial Arbitration, the authors-themselves distinguished international arbitrators-make the following comment: 12
The general practice of arbitral tribunals in international cases is to devote more time and space in the award to giving the reasons for its determination of the legal arguments than it devotes to a review of the factual issues. This is not surprising, since most arbitral tribunals in international cases are composed of lawyers. However, it should be borne in mind by such tribunals that what is needed is an intelligible decision, rather than a legal dissertation. The object should be to keep the reasons for a decision as concise as possible and limited to what is necessary, according to the nature of the dispute. The parties want the essential reasoning underlying the decision, not a lesson in the law. [Page555:]
But good professional advice has fallen on deaf ears. What we find in the new millennium is a tidal wave of 'arbitral law' which has almost submerged international commercial dispute resolution. Awards have become more bookish and precedent-prone, almost indistinguishable from the lengthy legal discourses of a common law court in a commercial case. A pity.
Having won high praise for the approach taken to international commercial arbitration ('jurisprudentially - the procedural balance in international arbitration has come down firmly in favour of the civil law approach'), the civil lawyer must now make a definitive contribution also to the end result-the award. Intended not for posterity but for the parties alone, it should be concise; the facts and the conclusions should be presented simply, without embellishment, and without that strained exhibition of legal learning which so often characterizes the modern-day end product ('parties want the essential reasoning underlying the decision, not a lesson in the law').
In the 1986 Reith Lecture, the Scottish judge Lord McCluskey said:
The law as laid down in a thousand eloquently reasoned opinions is no more capable of providing all the answers than a piano is capable of providing music. The piano needs the pianist and any two pianists even with the same score may produce very different music. 13
I look forward to the day when civil lawyers produce some 'very different music' in the field of international commercial arbitration. [Page556:]
The last stanza of Rudyard Kipling's celebrated poem 'If' reads: 'If you can fill the unforgiving minute With sixty seconds' worth of distance run, Yours is the Earth and everything that's in it, And-which is more-you'll be a Man, my son!
Dean Pound's address of 31 July 1950 was published in (1951) 67 Law Quarterly Review 49.
Sir Vivien Bose, a distinguished judge of India's Supreme Court (1951-1958) is recorded as saying that 'the only certainty about the migration of the common law of England into India is that the English brought it, their judges administered it and that it infiltrated deep into the laws of this country and has, to some extent, moulded its thoughts and customs', (1960) 76 Law Quarterly Review 59.
A point eloquently made by Professor A.L. Goodhart, distinguished editor of the Law Quarterly Review for over 50 years, in 'What is the Common Law?' (1960) 76 Law Quarterly Review 45.
P. Mayer, 'Comparative Analysis of Power of Arbitrators to Determine Procedures in Civil and Common Law Systems', ICCA Congress Series No. 7 (Kluwer Law International, 1996) 24 at 34.
Ibid. at 37-38.
Rt. Hon. Sir M. Kerr, 'Concord and Conflict in International Arbitration' (1997) 13 International Arbitration 121 at 126.
The harmonizing effect of the New York Convention was extended by the UNCITRAL Model Law, which adopted the grounds of Article V of the New York Convention both for refusal of recognition and enforcement and for setting aside.
Published in O. Goldsmith, The Citizen of the World (1762).
'A Cedric Barclay Sampler', (1989) 5 Arbitration International 102 at 105.
A. Plantey, 'A Major Realisation of the ICC: International Arbitration' (1994) 5:1 ICC ICArb. Bull.3 at 17.
A. Redfern & M. Hunter, Law and Practice of International Commercial Arbitration, 3d ed. (Sweet & Maxwell, 1999) at 392.
Lord McCluskey, Law, Justice and Democracy. The Reith Lectures, 1986 (Sweet & Maxwell, 1987) at 7.