The highly anticipated and first of CIArb’s three flagship international arbitration conferences,The Synergy and Divergence between Civil Law and Common Law in International Arbitration, took place on 8 - 9 March 2017 at the prestigious One&Only Royal Mirage in Dubai.
Over fifty eminent speakers and a hundred and fifty delegates converged from all corners of the world to discuss the topic in depth from the perspective of the Middle East and Asia.
In her keynote speech, the President of CIArb, Professor Dr Nayla Comair-Obeid, C.Arb, spoke about the practical difficulties brought about by the divergences between common and civil law traditions and how by bringing together professionals from both traditions and very diverse backgrounds for the first time in a comprehensive series of conferences dedicated to this theme, she hoped to facilitate a dialogue that would address a widely-recognised but as yet unresolved issue.
She highlighted the importance of education and training in tackling the challenges in international arbitration, in particular, its role in promoting tolerance in the context of cultural diversity. She said:
Tolerance between cultures, civilisations and people is essential to progress and this cannot be reached without education. By encouraging the development of knowledge in dispute resolution and by favouring cultural mixture, CIArb is both a hub and vehicle of tolerance.
Dubai was chosen to host this conference due to its strategic position as a financial centre situated at the cross roads of Asia and the MENA region. It is also a jurisdiction where common law and civil law systems coexist, with the DIFC courts being an independent common law judiciary, next to national courts which are based on civil and Sharia law traditions.
The panels comprised all players in international arbitration from governmental representatives and policy makers to judges, academics and practitioners in order to examine the common law-civil law dichotomy in a comprehensive manner.
The first panel opened with a discussion on the role of legislation in securing an arbitration friendly seat. Dr Nabil Elaraby, CIArb Patron, highlighted the central role a country’s legislative framework had to play and drew attention to other legal traditions such as Sharia law and Islamic law that practitioners sometimes had to consider in addition to common and civil law traditions.
Vice Minister of Egypt Mostafa El Bahabety discussed Egypt’s legislation and how it protected the role of arbitrators by placing a particular emphasis on their independence and impartiality.
Liu Dexue, Director of Macau’s Legal Affairs Bureau and Rimsky Yuen, Hong Kong’s Secretary for Justice then highlighted the features that made their respective countries’ seats arbitration-friendly.
There was consensus in the panel discussion on drafting arbitration agreements that institutional arbitration, rather than ad hoc, made the arbitration procedure much easier for the parties and that it was recommended in most cases. Certainty and consistency are important when choosing the seat and the institution to administer the proceedings, and the place of the dispute affects this choice more than the nature of the dispute. The complexity of the dispute resolution clause impacts on the speed and efficiency of the arbitral procedure, with more elaborate clauses and clauses giving choices to parties, for example a choice between litigation and arbitration, likely to lead to complications, longer procedures and increased costs.
Judges from Asia and the Middle East gathered in a separate panel to discuss judicial intervention in challenges to arbitrators, potential liability of arbitrators and the grounds for setting aside and refusing enforcement. They included Chief Justice Michael Hwang, Chief Judge Mohammed Al Suboosi, Justice GAO Xiaoli, Judge Michael Nasser Hakim Mouawad, and Judge Sami Mansour.
The Young Members Group (YMG) panel brought insightful views on the challenges to harmonization between civil and common law approaches as well as the role of the younger generation in overcoming them. The role of education is pivotal to this and institutions such as CIArb are well-placed to provide young professionals with the world-standard, globally recognised education that addresses gender equality, cultural diversity and the need for cultural sensitivity in international arbitrations.
The panels then discussed the general differences between common law and civil law systems and highlighted the crucial role of arbitral institutions in elaborating arbitration rules to strike a balance between them. One of the differences emphasised in different panels, was that the common law system generally is associated with an adversarial approach in proceedings with facts coming first and the law being ‘wedded’ to the facts, whereas in the civil law system proceedings were more inquisitorial in nature with rules taking precedence and facts being applied to the law before a conclusion is reached.
The importance of a comparative law approach to arbitration was also highlighted: by knowing and understanding different legal traditions, actors in international arbitration can better adapt to the needs of each case and the parties’ requirements. Thus, it was concluded that having a comparative law approach helped a lot in bridging the gap between common law and civil law.
Discussions were lively, with contributions by notable academics including Professor Loukas Mistelis, Dr Fan Yang and Professor Mohammed Abdel Wahab.
The two-day conference wrapped up with a session on practical solutions to bring together the two divergent systems.
In concluding the session, Anthony Abrahams, Director General of CIArb said:
International arbitration is about tolerance, embracing diversity and coexisting. It acts as a level playing field in which the civil and common law systems converge.
The different approaches brought about by these two systems can be harmonised through educational programmes such as those delivered by the CIArb that highlight the international nature of arbitration and that embraces diversity. CIArb qualifications seek to bring about these standards that are recognized worldwide.
We thank all those who participated in this conference to make it a great success and look forward to part two of the discussion to be held in Johannesburg.
Notes to editors:
Presentation slides for the conference can be found here: Day 1 and Day 2.
Additional speaker notes can be found in the following links:
For further information, please contact:
Nikki Nang Nilar
PR & Events Executive
T: 020 7421 7481