Bridging the Gap: Finding Efficiency in the Hybrid Future of International Arbitration
Navigating the fundamental differences between civil and common law traditions remains a central challenge in international arbitration. Arbitrators, who are products of their legal education and culture, must apply the chosen law correctly, but this is complicated by diverging procedural norms and expectations.
The core divergence often lies in the approach to evidence. Civil lawyers highly prefer documentary evidence, favoring contemporaneous expressions of the parties’ thoughts and actions at the time of the event. Correspondingly, many civil law practitioners express a distrust of witnesses, especially those connected to the parties, and harbor skepticism regarding the objectivity of party-appointed experts. Conversely, common law trained lawyers view targeted document production as highly important, even though practitioners concede that a “smoking gun” rarely emerges from the process. This difference extends to hearing length; the civil law approach (often described as inquisitorial) may lead to shorter hearings, contrasting with the common law tradition (adversarial) of extensive witness examination.
However, the most successful approach to resolving disputes transcends tradition: the ideal arbitrator is one who understands and utilizes all available tools—both common law and civil law techniques—to tailor the process to the specific needs of the case and its users.
The path to efficiency lies in further hybridization. The panel discussions provided concrete takeaways for practitioners seeking to enhance the process:
Lessons for Common Lawyers: Common lawyers must reduce reliance on costly and time-consuming processes. Documents, according to one speaker, are the “root of all evil” in arbitration, making document management a primary source of inefficiency. Arbitrators should question whether extensive witness evidence or multiple party-appointed experts are truly necessary for every case, favoring documents where possible.
Lessons for Civil Lawyers: Civil lawyers can benefit from adopting the common law methodology of running proceedings in a predictable way and providing each party the opportunity to fully present its case. While detailed expert evidence helps shed light on real issues, civil practitioners should also question whether they need as many experts as the common law system often utilizes. Adopting mechanisms like tribunal-appointed experts, which are common in systems like Korea, could improve efficiency and provide reliable, impartial advice for both parties.
While differences in legal tradition certainly impact the arbitration process, the way an award is drafted, and the weight given to certain evidence (e.g., witnesses versus documents), arbitrators coming from different legal backgrounds often reach agreement on the facts and the overall outcome. By continuing to prioritize procedural efficiency and embracing the best practices from both systems, international arbitration can deliver a predictable, tailored, and effective dispute resolution process.
———-
Asia Legal – Business Law Firm
W: asialegal.vn
E: info@asialegal.vn
T: (+84) 24 2269 3399
Hotline/Whatsapp/Wechat/Viber/Zalo: (+84) 84 400 8484
A: 15th Floor, HT Building, No 80, Duy Tan Road, Hanoi, Vietnam
