ICC Digital Library Forum

Laurence,

My contributions inevitably are made from an English law/banking practice perspective. I also claim no knowledge of Roman law based systems & therefore shall not gainsay your statement regarding them. Suffice it to say that I am very surprised that legal systems exist in the 'advanced' world that put the burden of proof on the defendant.

Jeremy

Jeremy,

you have made the natural assumption, based on English law, that if the accuser does not have the burden of proof, it falls to the defendant. I am far from being an expert on Roman law systems of jurisprudence, but as I understand it, in these systems a person is appointed to impartially determine the facts of the matter. In Scotland I believe it may be the Procurator Fiscal. In France I think it is "procureur".

Perhaps we can get better information from members in non-adversarial jurisdictions.

As to which is the more "advanced", English law is a newcomer by comparison, and being intrinsically adversarial, is based on cases won, rather than proven. In Scottish law, for example, there exists a possibility of a case being "not proven". This does not exist in English law.

Laurence

For more than thirty years I lived and worked in Hong Kong, which is under Common Law (both before and after 1997). I studied China Law, which is Civil Law. So I am exposed to both systems.

I provide DC consultancy in both Hong Kong and China and have the opportunity to learn from the barristers and lawyers in DC dispute cases. If one wishes to determine discrepancies more confidently, knowledge of law is essential. I hope Jeremy would not say No to this. Then why keep it only to law, why not also know something about transport and insurance, which should not be discriminated.

NO SYSTEM IS PERFECT

According to the law professors, it is not the right attempt trying to find out which law system is better as both systems have their own merits and drawbacks. There is no one system that is perfect in every way.

THE GOOD POINT CAN BE BAD POINT TOO

The Roman Law (Civil Law) is more systematic in codified form whilst the English Law (Common Law) is not so organised. But when we come to e-commerce, we face a totally new environment, such as things in cyberspace that may not be touched with our hands or easily visualised, then it is much easier for us to accommodate such new concepts in the English Law than in the Roman Law that is more rigid. Hence depending on which way you look at it, a special feature in one law system may be both good and bad.

Having said that, according to the law professors, these two systems are now moving closer and closer towards each other and the differences are getting narrower and narrower.

“ONE COUNTRY TWO SYSTEMS” CREATES CONTRACTUAL DISPUTES DUE TO DIFFERENT INTERPRETATIONS

After 1997, China practices "one county two (law) systems" in Hong Kong. I have seen a lot of commercial disputes arising out of different interpretations of laws of contract, such as in "offer and acceptance" and in "consideration" where the two law systems are different.

I am not a lawyer and my comments are only for discussion sake, without any liabilities whatsoever.

T. O.
www.tolee.com

[edited 8/6/02 5:12:26 PM]

Laurence,

From our experience, in order to convince a Judge to buy our opinions, it is important to know the way a Judge will think. That means if a court expert can present the argument in a way familiar to the Judge, according to his own “thinking circuit”, then the change of getting acceptance by the court is greater.

In order to know how a Judge thinks, it is necessary to know law and logic, from which a Judge would form his own opinions and judicial decisions.

Most judges do not like court experts to use legal jargons in their expert’s report or in giving witness statements. So it is an art to present arguments with legal basis and yet it does not make the Judge feel that you are talking about law. This takes a lot of experience to get perfection.

Do you agree?

www.tolee.com

T.O.

I deliberately avoided calling one system of law better than the other. I merely gave examples of some of the differences between them to demonstrate the different approaches. The reason for this is not just the typically Chinese (& valid) philosophy of examining the merits or otherwise of any given situation, but also because I am not a lawyer & do not feel qualified to make such a judgement.

The Chinese example is not unlike that of the laws of Britain. I am aware of contracts written quoting "British Law", but this is a fallacy, as it fails to identify whether the laws of Scotland or England & Wales apply. As I have said in one of my previous postings, the parties may be oblivious to the error until they have to rely on it in court - which one ?

Judges, like every one of us, have their weaknesses, prejudices etc. Some like to follow the letter of the law as opposed to the spirit & some do not. Therefore it makes sense to take account of this when making a presentation of evidence to an individual judge.

Laurence