Lessons from International Tribunals and from Other Perspectives
A – International Commercial Arbitration
Barry Leon, Torys LLP, Toronto (moderator)
Following an introductory overview of initiatives in international
arbitration to accommodate the civil law and the
common law in a combined process, leading arbitrators and
arbitration counsel will demonstrate, in a mock procedural
hearing in an arbitration between a civil law and a common
law party before arbitrators from both systems, the interaction
between procedural traditions that is producing a
unique blend of practices suitable for resolving international
commercial disputes.
Pierre A Karrer, Zurich
Internationalization of Civil Procedure - Beyond the IBA Rules of Evidence; The Civil Law and Common Law Divide - An International Aribtrator Tells It Like He Sees It; Chess Clock Arbitration
Louise Ellen Teitz, Roger Williams University School of Law
Henri Alvarez, QC, Fasken Martineau Dumoulin LLP, Vancouver
Khawar Qureshi, QC, McNair Chambers, Doha-Qatar
Edoardo F Ricci, University of Milan
Evidence in International Arbitration between flexibility and fairness: a milestone in the roead of harmonization of different traditions - This paper outlines the discipline of evidence in international arbitration according to the rules of the most important arbitral institutions and the models developed by international associations. Such discipline can be described as a meeting between a basic principle of flexibility and some rules of fairness. The result is the harmonization of different traditions coming from common law and civil law systems.
Raëd Fathallah, Bredin Prat, Paris
Kaj Hobér, Mannheimer Swartling, Advokatbyrå, Stockholm
Jennifer Smith, Baker Botts, Houston
Audley Sheppard, Clifford Chance LLP, London
Additional Paper: Carlos Palacio, Reconnaisance et Ezecution Internationale des Sentences du Tribunal Arbitral du Transport Espagnol
B – International Criminal Justice
Valerie Oosterveld, University of Western Ontario (moderator)
• To what extent do the procedures developed for international
tribunals reflect existing civil or common law procedure
or are they a departure from both?
• How can processes in the civil law and the common law for
truth-finding (and for reconciliation) be combined in criminal
procedures (and punishments)?
• To what extent have procedural practices and developments in international tribunals had an impact on the domestic jurisdictions concerned?
His Excellency Fausto Pocar, International
Criminal Tribunal for the Former Yugoslavia - The ICTY has shifted from a classic common law adversarial model to a procedure which includes a number of typically civil law features. What are the reasons leading to such a blending of traditions? And, above all, is the result of this blending the creation of a suitable model for the administration of international criminal justice?
William A Schabas, OC, MRIA, Director, Irish Centre for
Human Rights
The search for truth, and its corollary, the right to truth, are deemed important components of post-conflict justice initiatives. The ‘micro-truth’ involves the guilt or innocence of a specific accused person. But there is also a ‘macro-truth’, which focuses more on the historical narrative. Further complicating this process are alternative or parallel initiatives, such as truth and reconciliation commissions.
Caitlin Reiger, International Center for Transitional Justice
Hybrid tribunals in Cambodia and Sierra Leone have bridged the gap between national and international responses to mass crimes. Despite their vastly different experiences in drawing from domestic procedural traditions, they offer some common lessons on whether such mixed proceedings can leave lasting impact on national jurisdictions’ capacity to hold perpetrators accountable and provide justice for victims.
Reports from the Floor:
Teresa Armenta Deu, Spain
Susana Oromí Vall-llovera, Spain
Guillermo Ormazabal, Spain
C – Convergence in Other Contexts
Panel I - Convergence at the Interstices of Substance and Process
Sean Rehaag, Osgoode Hall Law School (moderator)
Chaim Saiman, Villanova Law School, The Distribution of Doctrinal Complexity Across Common Law Systems contrasts how in cases displaying similar facts, Commonwealth courts employ a complex doctrinal apparatus of private law, while American courts conceptualize these issues as public and procedural law. The paper points to differences not only in bottom line outcomes but in the resources used by each system to address questions that push the boundaries of existing doctrinal categories.
James Maxeiner, University of Baltimore, It's the Law - The Missing Measure of Civil Law/Common Law Convergence - In applying law to fact American and German procedure are not converging. American methods have not been able to deal with the back-and-forth nature of law applying; they have vacillated from common law pleading, to fact pleading to notice pleading. German methods have been stable and successful with the relationship technique.
Baosheng Zhang, China University of Political Science and Law, Evidence Reform in China - The law of evidence is fundamental to the rule of law. Legislative efforts, public demands for increased fairness in trial procedures, and academic research are driving new evidentiary provisions and procedures in China. This paper examines how elements of evidence law from both the civil code and common law legal systems are being integrated into Chinese judicial practice.
Burt Neuborne, NYU School of Law, Toward Common Procedures in Seeking Compensatory Relief for Violation of Core Aspects of Customary International Law: The Experience of the Holocaust Cases-
Can the international community move towards common procedural norms in human rights cases seeking compensation for victims? As a principal lawyer in recent Holocaust-related cases resulting in payment of more than $7.5 billion to victims, Professor Neuborne argues that an ideal human rights forum should provide for collective litigation, broad discovery, and return of unjust profits earned by aiders and abetters. Should an international civil tribunal be established, similar to the Rome criminal court, or should the international community encourage the adoption of common procedural norms in domestic human rights courts?
Panel II - Convergence in "Dispute Resolution" Processes
Erik Knutsen, Queen's University (moderator)
Richard Marcus, Hastings College of the Law, Exceptionalism and Convergence: Form v. Content and Categorical Views of Procedure - The great divide between common law and civil law arrangements
has long been honored in comparative procedure. But at least as to
matters of form, harmonization seems to be bridging that chasm.
Behind growing similarity of form, however, lurk very great
differences in content reflecting the role civil litigation plays in a
given society. That divergence makes harmonization as to form
seem less significant and may be harder to bridge.
Peter Murray, Harvard Law School,
Mediation and Civil Justice; A Public-Private Partnership? US court-annexed mediation services are not provided by public functionaries, but by private mediators on a fee basis, with some risk to core civil justice values. German mediation experiments employ mediation by special judges within civil justice processes without “privatizing” justice itself. Can lessons from Germany inform American court-annexed mediation?
Edward F Sherman, Tulane Law School
Judicial Supervision of Attorney Fees in Aggregate Litigation: The Vioxx American Example and Civil Law Comparisons - The Vioxx consolidated MDL case, with its order capping contingent fees at 32%, provides a crucible for testing the parameters of judicial supervision over attorney fees in aggregate litigation. This experience should be of interest to other countries as they move towards greater aggregate litigation.
Déirdre Dwyer, Oxford University, Categories of English Civil Procedure -
Categorising English civil procedure as ‘common law’ or ‘Anglo-American’ is commonplace but inaccurate, genealogically and analytically. Considering developments since the 1970s, and particularly the 1990s, this paper explores how best to describe the relationships between English civil procedure and those in the United States, the Commonwealth, and continental Europe, as well as internal variations. |
