This chapter examines the two main legal systems in the world—the civil law and the common law—and their impact on international arbitration. The majority of the world’s population lives under the civil law, but the influence of the common law is significant. Before becoming an international arbitrator, I practiced law in both civil and common law jurisdictions so this chapter contains personal and academic reflections.
II. History and Substantive Differences
The civil law system is derived from Roman law, which eventually led to the Napoleonic Code, the foundation of French law. The civil law spread to the rest of continental Europe, Russia, China, most of Asia, Latin America, and part of Africa. The common law system is the Anglo-American legal tradition based on English law. It spread to the United States, Canada, India, Australia and the rest of the British Commonwealth.
The common and civil law differ in numerous ways apart from arbitration procedure. For example, the common law requires consideration to form a contract; the civil law allows gift contracts; the common law doctrine of res judicata is broader than its civil law equivalent; and the common law allows extra-contractual punitive damages. We now turn to procedural differences and their effects on international arbitration.