Dr. Julian D.M. Lew is a partner at Herbert Smith, London, and head of the School of International Arbitration, Centre for Commercial Law Studies, Queen Mary and Westfield College, University of London.
Laurence Shore is a partner at Herbert Smith, London, and specializes in international arbitration and litigation, with a focus on jurisdiction and arbitration contractual clauses, trans-Atlantic litigation matters in the High Court, and U.S. litigation matters.
This paper focuses on the differences that continue to exist between common law and civil law approaches to arbitration in the international arena. The authors investigate the significance of these different practices and show how they need to be harmonized in order to create a universal "transnational commercial law." The following paper was presented at the International Federation of Commercial Arbitration Institutions (IFCAI) conference held in New York in May of this year.
While a hybrid, if not harmonized, procedural pattern has already emerged in the practice of international arbitration, common law and civil law arbitration lawyers may still benefit from continued study of each others’ traditions and attempts to merge approaches without sacrificing principles. This brief paper identifies and comments on some of the areas where important cultural differences remain—including differences between the common law nations—and where further harmonization may be useful. We also indicate how some arbitral tribunals have dealt with this task, which is crucial to the successful working of international commercial arbitration.