Common law and civil law differences, reciprocal influences and points of intersection

Dominik Lengeling

Law firms Patrick Schindler / Schleifenbaum & Adler Toronto / Siegen 2008

Contents
I. Introduction II. Definitions and history 1. Civil law 2. Common law 3. Hybrid legal systems III. Differences between common law und civil law 1. 2. 3. 4. 5. 6. Sources of law Principle of precedents and doctrine of stare decisis Method of legal thinking and finding of justice Function of doctrine Appointment/selection of judges Procedural differences adversarial vs. inquisitorial / proceedings purposes 3 4 4 5 5 6 6 7 10 12 12 13 18 18 20 21 22 23 24 24 27 28 30

IV. Reciprocal influences 1. 2. 3. 4. 5. Legal system of Scotland The European unification Capital market and international law firms Maritime law Legal system of Louisiana

V. Points of intersection 1. International arbitration 2. UNIDROIT Principles of International Commercial Contracts 3. Legal system of Quebec VI. Conclusions

BIBLIOGRAPHY
2

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I. Introduction

It is the intention of this paper to give an introductory overview of the relationship between two of the most significant legal traditions, the common law and the civil law. Such a comparative view seems particularly useful in our era of globalization with the interconnection of the markets and the accompanying necessity of orienting legal advice towards other legal systems. The topic seems to be also highly relevant because of the ongoing process of European unification, which also involves a certain degree of legal co-ordination of the English legal tradition with that of continental Europe.

This paper makes no claim to be complete study of the topic. Its intention is rather to raise the awareness of readers who are familiar with one of these two legal systems about the other system by giving examples of illustrative differences between them and also by giving examples of reciprocal influences and points of intersection between them. The first limitation of this paper is that it focuses only on common law and civil law. Of course there are other significant legal traditions besides the traditions of Anglo-American common law and Continental-European civil law, such as an African legal tradition of sub-Saharan countries, a far-east legal tradition consisting of China and Japan, hold together by the Confucian tradition, as well as legal traditions that are influenced by religion, including for example Islamic, Jewish or Hindu legal systems and also, at least until some years ago a socialistic legal tradition.1 Furthermore it should not be overlooked, that there is not only one law within each legal tradition for example each Continental-European country whose legal system is based on civil law, has its own legal system, or in the case of Switzerland, several legal systems, one for each canton.2
1 2

Brand, JuS 2003, 1082 (1088); see also: Tetley, Mixed Jurisdictions Part I, III. 2. (page 4). Demeyere, SchiedsVZ 2003, 247 (247).

A second limitation of this paper is that it is limited to the sphere of private law. A research in the areas of criminal law and public law would go beyond the scope of the paper.

II. Definitions and history

1. Civil law

Civil law may be defined as that legal tradition which has its origin in Roman law, as codified in the Corpus Juris Civilis of Justinian, and as subsequently developed mainly in Continental Europe.3 The civil law legal tradition itself can be divided further into the Romanic laws, influenced by French law, and the Germanic family of laws, dominated by German jurisprudence.4 In particular the Roman laws were modeled on the groundbreaking French Code Civil from 1804 (Code Napoleon), which conquered Europes realm of ideas as the Napoleonic armies conquered the countries.5 Also the German Civil Code from 1896 (in force since 1900) is a consequence of the movement toward codified laws initiated by the Code Napoleon.6 It is typical of all civil law systems that the law is almost entirely codified, highly systemized and structured and that it relies on broad, general principles, without necessarily setting out the details.7

3 4

Tetley, Mixed Jurisdictions Part I, III. 3. (page 4). Brand, JuS 2003, 1082 (1088). 5 Brand, JuS 2003, 1082 (1088). 6 Tetley, Mixed Jurisdictions Part I, IV. 3. (page 7). 7 Tetley, Mixed Jurisdictions Part I, III. 3. (page 4).

2. Common law Common law is the legal tradition, which evolved in England from the 11th Century onwards. This legal tradition is the basis of private law not only for England as its country of origin, but also for Wales, Ireland, almost all states of the USA (except from Louisiana), most part of Canada (except from Quebec) and for most countries which received the common law tradition as former colonies of the British Empire and in many cases preserved it as independent members of the British Commonwealth, in parts connected with religious laws or local habits like in India, Pakistan, Malaysia or Jamaica.8 The principles of common law appear for the most part in reported judgments, usually rendered by higher courts, in relation to specific fact situations arising in dispute, which courts have adjudicated. All in all common law rules seem to be more specific and detailed in comparison to civil law rules.

3. Hybrid legal systems

In addition there are legal systems, which cannot be related clearly to either common law or civil law, so called hybrid legal systems. In those legal systems the law in force derives from more than one of these legal traditions, for example, Scotland or Quebec, where the traditions of common law and civil law are intertwined.9 These issues will be dealt with later on.

8 9

Tetley, Mixed Jurisdictions Part I, III. 3. (page 4); Brand, JuS 2003, 1082 (1088). Tetley, Mixed Jurisdictions Part I, III. 3. (page 4); Brand, JuS 2003, 1082 (1088).

III. Differences between common law and civil law

On closer examination it becomes apparent that it is by no means easy to find any definite distinguishing features between civil law and common law. Accordingly some suggested distinctive features, some of which do in fact distinguish these systems, will now be analyzed.

1. Sources of law

One of the best known distinguishing features may be the particular source of law. There is a widespread view that the two systems can be distinguished by the assertion that common law is merely judge-made case law, while codified law is the only source of law of civil law. Made with such absoluteness this distinction has never been correct.

On the one hand codified law does not merely exist in common law, but is even of a certain importance. In some areas of law codified law is even traditionally constitutive, e.g. in the area of antitrust.10 Thus common law states have also codified laws, which derive from a legislative process and which courts have to consider in their judgments as well and beside existing judge-made precedents.11

On the other hand some of the Continental European legal systems areas of law are entirely case law, e.g. French law of torts. In addition, also in civil law legal systems the increasing numbers of high court decisions overlay the codified law more and more.12 Moreover it is remarkable that there are some legal systems, which are related traditionally to civil law, but which also as a tradition have no classical codes as most of the civil law legal systems have. As examples may be
10 11

Brand, JuS 2003, 1082 (1089). Handschug, Einfhrung in das kanadische Recht, marginal number 35 (page 14). 12 Brand, JuS 2003, 1082 (1089).

mentioned Scotland, whose legal system is however influenced more and more by common law and therefore may better be qualified as hybrid legal system; another example is South Africa.13

Despite this prevalent view it is clear that in both legal traditions codes do exist and are applied by practitioners, but that these codes differ in their style: While civil law codes and statutes are mostly concise and do not provide definitions but state principles in broad, general phrases, common law codifying statutes provide detailed definitions and each rule sets out lengthy enumerations of specific applications or exceptions.14

2. Principle of precedents and doctrine of stare decisis

As another distinctive feature the principle of precedents may be considered, i.e. the method of common law to analyze previous court decisions, to find a general principle in each of them and to transfer these principles to a current dispute that needs to be decided. So civil law judges may be primarily bound to codes and reason, while common law judges are subject to the so called doctrine of stare decisis and thus in the first instance are bound by precedents rendered by higher courts. According to that, common law has a more hierarchical structure.

First of all, to establish some understanding, the doctrine of stare decisis should be explained very briefly. Stare decisis is an abbreviation of the sentence stare decisis et non quieta movere, i.e.: stick to decisions.15 The doctrine of stare decisis has two components, a vertical and a horizontal one. The vertical component says that judges of lower courts are strictly bound to precedent decisions of higher courts, even if the lower court considers the decision
13 14

Tetley, Mixed Jurisdictions, Part I, III. 3. (page 4) and Part I, IV 4. (page 7). Tetley, Mixed Jurisdictions, Part I, V. 8. (page 16). 15 Lundmark, JuS 2000, 546 (548).

is not right.16 However, the inferior judges are free to express their opinion that they consider the binding precedent as wrong and they can also suggest an appeal. According to the horizontal component of the doctrine of stare decisis, precedents are binding not only for lower courts, but also for current decisions of the court that rendered the precedent, whereas although the judges are bound to the result of the precedent, they do not have to stick to the reasons given in the precedent case.17 A court decision is a precedent if it should be leading for all future cases; this implies that the court decision contains an abstract guideline, which is called its rationale and that this rationale can be ascertained by other courts and scholars.18 A precedent is binding until it is overruled by a decision of a higher court or until it is overridden through a statute. A higher court can also reconsider and overrule its own previous decision.19 It is remarkable at least respecting the vertical component of the doctrine of stare decisis that no written rule can be found in any common law country, which orders or enforces the binding effect of precedents.20 Only British judges are nowadays bound to decisions of the European Court of Justice by law.21

But also this distinctive feature is not definite. On the one hand common law judges do not have to apply a precedent, if they point out that the alleged precedent is significantly different from the current case and therefore is not binding. This process of pointing out the non-application of a precedent is called distinguishing and can be mainly based on two reasons:

16 17

Lundmark, JuS 2000, 546 (547). Lundmark, JuS 2000, 546 (548). 18 Handschug, Einfhrung in das kanadische Recht, marginal number 31 (page13). 19 Handschug, Einfhrung in das kanadische Recht, marginal number 31 (page13). 20 Lundmark, JuS 2000, 546 (547). 21 Lundmark, JuS 2000, 546 (547), referring to European Communities Act 1972, Kap. 68, 2 (1).

First, there does not exist any similarity between the current case and the precedent case, e.g. because the precedent is about another area of law and the judge denies an analogy. Second, the judge satisfies himself that even if he had decided the precedent case and had decided similarly to the actual precedent decision he is, according to logic, not forced to make another decision as he likes to do now, e.g. because it turns out that the facts of the cases are significantly different. And in addition also a judgment having been decided per incuriam does not have to be followed as precedent. Literally translated as through want of care, per incuriam refers to a judgment of a court which has been decided without reference to a statutory provision or earlier decision which would have been relevant and binding. The significance of a judgment having been decided per incuriam is that it does not then have to be followed as precedent. Even though such a judgment is a rare exception, lower courts are free to depart from an earlier judgment of a superior court where that earlier judgment was decided per incuriam.22

On the other hand the courts in civil law countries at least feel they are bound by the decisions of the higher courts as well.23 And in addition, for instance in Germany except for the above mentioned fact that all courts of the countries of the European Union are bound to the decisions of the European Court of Justice by law , there is a codified rule that all decisions of the highest German court, the Federal Constitutional Court (Bundesverfassungsgericht), are binding. According to paragraph 31 subsection I of the Federal Constitutional Court Code (Bundesverfassungsgerichtsgesetz) all decisions of the Federal Constitutional Court are binding for all German federal and provincial constitutional bodies and for all courts and authorities. Although the German Federal Constitutional Court itself limits the importance of this rule by stating that only the basic principles of
22 23

Lundmark, JuS 2000, 546 (547). Brand, JuS 2003, 1082 (1089).

its decisions are binding, the rule still goes beyond any common law country as much as it is a codified rule about the binding effect of a high court decision for lower courts.24

Thus it is not entirely correct to assume that common law judges are strictly bound to the authority of higher courts while civil law judges are only bound to codes and reason.

3. Method of legal thinking and finding of justice

The true difference between common law and civil law may be seen rather in their different methods of legal thinking and their different approach in finding justice.25

Common law is dominated by focusing on each single case, so called reasoning from case to case. Generalizations or principles are only developed through deciding single cases. In this respect the principle of precedents is truly typical for common law. The central role in common law is played by the judge, who thinks and decides historically, concretely, goes by facts and without any noticeable dogmatic conceptual construct.26 In contrast civil law thinking means to develop abstract principles regardless of single cases and to apply these abstract principles to the facts of the case by a process of subsuming. Thus in civil law the abstract rule, whose applicability to every single case has to be checked, takes the center stage. This method requires anticipating and solving of problems prior to their appearance, while common lawyers are rather in a position to wait and see and react to the problems when
Lundmark, JuS 2000, 546 (548). Brand, JuS 2003, 1082 (1089); Handschug, Einfhrung in das kanadische Recht, marginal number 34 (page 14). 26 Brand, JuS 2003, 1082 (1089).
25 24

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they appear.27 Therefore it does not surprise that in civil law the dogmatic, abstract and norm-based thinking scholar dominates rather than the judge.28 So in civil law it is doctrine including the codifiers reports about the legislative process that has priority over jurisprudence while in common law it is the opposite way around.29 This phenomenon of different priorities may be explained by the different roles of legislature in both systems.30 Particularly the Continental European civil law countries took over Montesquieus theory of separation of powers, whereby it is the function of the legislature to make laws and the courts function to apply these laws. By contrast it is the judge-made law made by precedents that is the basis and the core of law in common law. The historic explanation for this development of the judges as central institution in common law may be that the judges style of acting could be retained over centuries more or less unchanged, because in England a powerful, guild-organized and all in all equally educated lawyer-class could hold its ground due to Englands easy geographic position as an island.31 On the politically and legally divided European continent such a similar powerful class of judges and lawyers could not arise so that scholars, united in following Roman law, could achieve priority in legal thinking.32

Having presented the difference in the method of legal thinking and finding justice as possibly most basic difference between common law and civil law, additional differences between the two traditions should be pointed out, differences which are particularly significant for legal practice.

27 28

Brand, JuS 2003, 1082 (1089). Brand, JuS 2003, 1082 (1089). 29 Tetley, Mixed Jurisdictions, Part I, V. 1. (page 15). 30 Tetley, Mixed Jurisdictions, Part I, V. 1. (page 15). 31 Brand, JuS 2003, 1082 (1089). 32 Brand, JuS 2003, 1082 (1089).

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4. Function of doctrine

First of all it is a logical consequence that doctrine has different functions in the two traditions. While it is the function of doctrine in civil law to provide all practitioners, including the courts, with a guideline for handling and deciding of specific future cases by developing basic rules and principles from the numerous legal treatises and to some extent also from cases, it is the rather modest function of doctrine in common law to find differences and similarities in decided cases and to extract specific rules from decided cases.33

5. Appointment / selection of judges

Because of the important role of judges in common law, namely to decide what is the law, judges in the common law countries, particularly judges of the higher courts, are typically selected and appointed only from among experienced practicing lawyers.34 By contrast it may surprise common lawyers when telling them that it is quite usual in civil law to appoint young highly skilled but inexperienced graduates to judgeships. Although it is, for instance in Germany, well established practice to give recently appointed judges the opportunity to gain practical experience by serving at the beginning of their career in a chamber with two experienced judges, it is also not unusual for recently appointed judges to decide cases in lower courts as sole judges immediately after their appointment. In addition in Germany there are rules which provide an age limit for appointing of judges. There may be some exceptions for these rules, but in general the age limit is about 35 years, depending

33 34

Tetley, Mixed Jurisdictions, Part I, V. 2. (page 15). Tetley, Mixed Jurisdictions, Part I, V. 10. (page 17).

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on the laws of the federal states, which have to be applied. It is almost never the case that someone as young as 35 is appointed a judge in common-law countries.

6. Procedural differences adversarial vs. inquisitorial/proceedings purposes

In what follows, more differences will be described, particularly respecting the conduct of cases.

Court proceedings in common law may be described at least in private law as strictly adversarial. In this system the attorneys are responsible for presenting the facts of the case, the positions of each party and the legal views including all relevant precedents. In an ideal common law procedure the judge has the function only to manage the proceeding, to review all facts of the case and legal views presented to him and finally to decide the case on that basis, or when the case is tried by a judge and jury, to sum up the evidence and the legal principles for the assistance of the jury. Thus, as the proceeding depends mainly, at least in theory, on the behavior and the skills of the attorneys it is not surprising that in the English legal system different categories of attorneys exist to this day, namely barristers and solicitors. The term barrister means simply a lawyer whose only function is litigation representation of clients before a court or furnishing of opinions about chances of success of a planned lawsuit.35 In contrary to that the less specialized solicitor is the clients first contact point. His functions are apart from litigation, for which he hires a barrister a variety of legal actions, for instance transfer of title, marriage law or drafting of wills.36 This distinction between barrister and solicitor emphasizes the importance of attorneys in litigation in the adversarial system.
35 36

Handschug, Einfhrung in das kanadische Recht, marginal number 291 (page 98). Handschug, Einfhrung in das kanadische Recht, marginal number 291 (page 98).

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However, this distinction between barrister and solicitor does not exist in all common law countries or is, like in Canada, nowadays merely a historical matter without practical consequence. Although in Canada there is still a distinction between barrister and solicitor, each member of a bar association of one of the Canadian provinces is allowed to practice both as barrister and as solicitor without any limitations.37 In practice, however, the distinction between a lawyer who engages primarily in court appearances and giving opinions and transaction lawyers is normal in large commercial centres, if not in small communities.

Indeed the civil proceedings in civil law are depending on the parties (respectively their attorneys) preferences, too, but judges have a much more active part to play than judges in common law. That is why civil law proceedings apart from public and criminal proceedings may be described as inquisitorial in contrast with common law proceedings. Thus civil law judges have many functions which in common law the attorneys are responsible for.

For instance in civil law the judge is generally responsible for the oral questioning of the witnesses in taking evidence. Thereby the judge asks the witnesses about the factual issues of the case, which are alleged and presented by the attorneys in their pleadings and which were offered for the evidence. The attorneys then normally have only the opportunity to raise additional questions.38

In common law the parties respectively their attorneys are obliged to bring in all relevant evidence. This includes taking of evidence by questioning the parties own witnesses and also questioning the witnesses brought forward by the opponent.39

37 38

Handschug, Einfhrung in das kanadische Recht, marginal number 29 (page 99). Wirth, SchiedsVZ 2003, 9 (14). 39 Wirth, SchiedsVZ 2003, 9 (14).

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A method of questioning witnesses by attorneys as described is unknown to civil law and is called cross-examination. Thereby both parties call their witnesses and expert witnesses. The party which calls a witness has the right to question this witness first. Because the answers of this own witness will in most cases be favorable for the party that brought it forward, afterwards the opponent has the right to question the other partys witness.40 It is particularly respecting this matter of cross-examination by attorneys that the civil law proceedings, where, as explained, generally only the judge questions the witnesses and expert witnesses, differ significantly from common law proceedings.

Having said that, another significant difference between adversarial and inquisitorial system is the manner in which they deal with experts. While in common law, as explained above, each party can bring forward and question its own expert and the judge only has to decide which expert is more convincing, in civil law it is the judge who in most cases appoints the expert, often a sole witness, and then accepts his opinion.41

The different approach of the two traditions is also manifested in the matter of recognition of foreign law. In common law only the parties are responsible for pleading the applicability of foreign law. Thereby foreign law in common law proceedings is not seen as law, but as an issue of fact, which needs to be proven. The party which pleads foreign law then consequently has to carry the burden of proof. If that party does not bring forward any evidence or if the evidence fails, only domestic law is applied by the court on the theory that if foreign law is not proved to be different from domestic law, then it is presumed to be the same.42

40 41

Linhart, Englische Rechtssprache, page 52. Von der Recke, SchiedsVZ 2007, 44 (44). 42 Schiemann, EuR 2003, 17 (18).

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In contrast, for the civil law judge it is generally compulsory to find and apply foreign law according to the principle iura novit curia (the judge knows the law).43

Another basic difference between common law and civil law is the purpose of the proceeding. To express it with perhaps exaggerated simplicity, procedural rules in common law put the parties in a position where they are able to find out the facts of the case so that they can present these facts to the judge, respectively in some cases to a jury, and make it possible for the judge or the jury to make the right decision.44 Needless to say, the right decision depends on each partys own view.

Procedural rules in civil law focus rather on settlement of the dispute. This also explains the parties limited role in presenting evidence. In civil law it is all about finding out the most likely version of the facts of the case. So it is more or less accepted that sometimes decisions may be not right, that is, are not based on the absolute truth.45

In civil law it is usual that in a first procedural step the parties present the case extensively in writing, that means the parties substantiate all the relevant facts of the case, bring forward the needed evidence for their allegations (offer evidence) and give reasons for their pleadings. Then, after some correspondence mainly between the two parties but with involvement of the court, a trial takes place before the court, in which the judges check all the evidence offered by the parties and conclude by giving a decision.

43 44

Schiemann, EuR 2003, 17 (17); Tetley, Mixed Jurisdictions, Part II, VII. 5. (pages 4 and 5). Wirth, SchiedsVZ 2003, 9 (10). 45 Wirth, SchiedsVZ 2003, 9 (10).

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For common law proceedings it is typical that first of all the parties collect all the evidence in an in many cases very extensive pre-trial-discovery which includes gaining access to the opponents files.46 Not until then the case is presented before the court in an orally held trial in which the parties present all the procedural matter to the judge.47

The pre-trial, which is followed by the actual trial, starts by submitting a relatively short statement, called a pre-trial memorandum, of what can be proved at trial. The purpose of the pre-trial is to bring together all available evidence that could support the claim, and is mainly carried out by the parties attorneys.48 The purpose of the pre-trial hearing is to ensure that the parties are ready for trial, to advise the parties what result might be expected from the evidence referred in the pre-trial memorandum and, sometimes, to mediate a settlement.

The question of how to deal with the delivery of documents is a major difference between the two systems. While in civil law each party generally has to prove its claim with its own documents, that means with documents in its possession, and while it is a rare exception, if a judge follows a partys demand and orders that the opponent has to deliver documents, the parties in common law have the right during the pre-trial-discovery, so even before they have to give full reasons for their claim, to get broad access to all relevant documents which are in possession of the opponent.49 Firstly the delivery can be requested directly, without involving the court, from the opponent. The requested documents do not have to be specified in detail, a broad categorization is sufficient. The delivery of all documents, which

46 47

Wirth, SchiedsVZ 2003, 9 (10). Wirth, SchiedsVZ 2003, 9 (10). 48 Bhmer, NJW 1990, 3049 (3052). 49 Wirth, SchiedsVZ 2003, 9 (11).

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are relevant to the case or, according to US-law about taking the evidence, which even may lead to the discovery of new evidence is obligatory.50 The common law approach of delivery of documents may allow claims, for which the plaintiff actually does not have sufficient evidence for a claim and rather attempts to establish his initial allegations (in his statement of claim) only through evidence provided by the defendant. Thus this approach can result in a form of self-incrimination of the defendant.51 It can also lead to what common law lawyers call fishing expeditions, in which a party hopes by gaining access to the opponents documents, to establish a claim.

IV. Reciprocal influences

Now that some of the differences between the two legal systems, common law and civil law, have been illustrated, admittedly in an unavoidably selective manner, the reciprocal influences which the two systems have exerted on each other will be discussed.

1. Legal system of Scotland

As previously mentioned, the legal system of Scotland can be described as hybrid. Currently, this system cannot be definitely attributed to civil or common law. This is due to the fact that, during the course of centuries, the Scottish legal system was exposed to various influences. These influences will be outlined briefly.52

50 51

Wirth, SchiedsVZ 2003, 9 (12). Demeyere, SchiedsVZ 2003, 247 (250). 52 To all this see: Tetley, Mixed Jurisdictions, Part I, IV. 4. (pages 7-9).

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Firstly, feudalism brought to Scotland from England and also the Roman Catholic Church (Canon) law, among others, can be considered the most important influences on the law of Scotland.

Subsequent to the decease of King Robert the Bruce in 1329, the so-called Dark Age began for the law of Scotland which resulted from political conflicts, economical difficulties and weak government. During that time, Scotland adopted a multitude of French institutions, and many Scottish legal professionals were trained in France. During this period, the Scottish legal system developed its nature as civil law system comparable to continental European legal systems. After the foundation of the Scottish Parliament and, in 1532, of the Court of Session as Supreme Court of Scotland, the phase of reception of Roman law, which lasted until the conclusion of the Napoleonic wars, took place in Scotland. During this phase, a multitude of Scottish legal professionals studied at the most recommended European universities from distinguished continental-European jurists. Consequently, various civilian rules and principles were integrated into the Scottish legal system.

Beginning with the union of the Scottish and English parliament in the year 1707 which meant the abolition of the Scottish parliament, as well as with the establishment of the House of Lords, as the ultimate court of appeal for Scottish, as well as English, civil proceedings, the English common law gained influence on the Scottish law system, which up to this point was primarily characterized by civil law. The English common law displaced the Roman law as the hitherto most important external influence; the doctrine of precedents characteristic for common law was accepted and Scottish legal professionals did not any longer focus on continental-European cases or legal scholars, but instead on those of England. Beyond that, this still enduring process is enhanced by the fact that it is easier for

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Scottish legal professionals, due to the language, to follow the English legal development than the Continental-European. Hence, a remarkable influence of common law on civil can also be observed in Scotland.

The influence concerning English and Scottish law, however, is not solely unilateral. As demonstrated before, the House of Lords became the highest authority for Scottish civil proceedings.

Certainly, this means a big influence of common law on Scottish law initially being civilian. This influence, however, must not be overestimated since also a Scottish presence exists within the House of Lords. Many Scottish judges have been appointed to the House of Lords and have influenced English law by reasoning from European civil law when deciding cases. This circumstance has the result that also the influence of Scottish Law, and through it, civil law, can be observed in the House of Lords.53

2. The European unification

Another, probably more important sector where civil law influences common law, is the European unification in which England (UK) has participated since 1973. Thereby, England (UK), just like any other member of the European Union, is obligated to implement guidelines of the EU, whose style may be characterized rather as civilian.54 Consequently, English courts are also obligated to respect and to implement the jurisdiction of the European Court of Justice.

53 54

Tetley, Mixed Jurisdictions, Part II, XIV. 3. (page 17). Brand, JuS 2003, 1082 (1090).

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In this context, one can say that the European Community Law und thereby the European Court of Justice as Supreme Court can be rather attributed to civil law than to common law, due to the prevalence of continental-European countries within the European Union.

The same can be said for the European Convention on Human Rights and the jurisdiction of the European Court for Human Rights. By having ratified and incorporated the Convention, England (UK) has opened another avenue for civil law to influence English law.55

The consequence of all of this is that through the process of the European unification and the consequent need of English legal professionals to deal with European law, their interest in the continental-European legal system characterized by civil law, and especially in legal systems of France and Germany, has been awakened.56

3. Capital market and international law firms

The capital market and also large international law firms are themselves significant forces by which common law brings influences on civil law.57 This comes about because to an important extent, those drafting contracts in the course of international business are large Anglo-American law firms. Those contracts differ from civil law contracts insofar as the common-law commercial contracts are more extensive compared to the latter. This is reasoned by the fact that contracts in civil law do not require provisions that are already applicable according to codified law. Merely deviations from and exceptions of the codified

55 56

Schiemann, EuR 2003, 17 (20/21). Schiemann, EuR 2003, 17 (34/35). 57 Brand, JuS 2003, 1082 (1090).

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law of course alongside to the essentialia negotii that are in any case to be stipulated need to be regulated by contract.

Unlike civil law, it is the practice in common law drafting, due to its particularities, to make very detailed provisions. Because of the apparent prevalence of Anglo-American big law firms, contracts drafted by common lawyers are adopted as standard within European business law. The detailed nature of these commercial contracts arises to a certain extent from the fact that such contracts in effect state the legal relationship between the parties where governing legal systems do not provide for the necessary detail and in this respect they go beyond the law established by any countrys legal system. It follows from this that when cross-border transactions are involved, these complex, detailed contracts are the basis for the dealings of the parties, even when one or more of the parties is based in a civil law country. This leads to the adoption of Anglo-American (economic legal) system models on parts of continental-European civil law.

4. Maritime law

Another example of the influence of common law on areas of the civil law is the Maritime law. Maritime law is a hybrid legal system on its own existing in all legal systems, initially arising from civil law. In the latter, at least 200 years, however, Maritime law, and in particular, marine insurance, has been influenced significantly by common law principles and alterations and benefited from it.58

58

Tetley, Mixed Jurisdictions, Part I, III. 8. (page 5).

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5. Legal system of Louisiana

Besides Scotland, there is another country traditionally characterized by civil law that is now even more than Scotland influenced and dominated by common law, namely the US federal state Louisiana.59 After Louisiana became a French colony in the year 1731, French law, based on the Civil Code, was in force. After some years following the cession of Louisiana to Spain in the year 1763, Spanish law, also based on civil law, was introduced. Directly after re-cession to France, the USA took possession of Louisiana in the year 1803. The fact that, opposed by the efforts of many Americans, the civil law tradition has been continued is shown by the Louisiana Civil Code from 1825 which was strongly oriented towards the French Code Civil and which was also published in, at that time, official national languages French and English. A new civil code was declared in the year 1870. This code was now composed only in English but did not fundamentally alter the former Civil Code other than the incorporation of some new provisions including the abolition of slavery.

Today, French has disappeared completely from the courts, the law, and, as well, from legal literature. Most of the legal professionals in Louisiana are not able to speak French and consequently can scarcely be expected to resort to the initial French legal tradition of their country. Combined with the gaining superimposition of US federal law, common law increasingly displaces the civil law tradition. This is also illustrated by the fact that although in Louisiana itself judges are required to prove knowledge of both, common law as well as of civil law, this requirement is not insisted on. As a result, should a case from Louisiana required to be decided according to civil law end up before the US Supreme Court, it will be decided only

59

To all this see: Tetley, Mixed Jurisdictions, Part I, IV. 7. (pages 12/13); Part II, XIV. 1. (c), (page 13).

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by common law judges, unlike Scottish cases in the House of Lords, where the presence of a judge trained in Scottish law is guaranteed.60

V. Points of intersection

1. International arbitration

One of the significant areas where common law and civil law currently converge is international commercial arbitration.

The reasons for parties to agree that a dispute upon a contract shall be settled by a privately appointed arbitrator instead of state court are mainly the following:

In the event a dispute is subject to a state jurisdiction, it is very likely that the dispute will not be settled by one judgment but will involve several jurisdictions. Besides high costs, this also means a significant expenditure of time for the parties which can be a remarkable disadvantage in the modern course of business. Especially in common law, the discovery proceedings previously referred to can escalate into cost-intensive as well as time-consuming proceedings.

An additional advantage of arbitration is that, unlike court proceedings, the matter of the dispute is confidently in the sense that it is not accessible to the public. In addition it is up to the parties to agree on rules for the arbitration. This means, inter alia, they can agree in advance, on which amount documents shall be disclosed and also, of course the place of arbitration, the arbitrator, the language of the case and in particular the rules of procedure need to be agreed upon. Particularly at this point there is a direct clash between common and civil law
60

Tetley, Mixed Jurisdictions, Part II, XIV. 3. (pages 16/17).

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within the field of international arbitration, if one party belongs to a different system than the other. It is obvious that each party tends to choose the legal system and the rules of procedure it is familiar with.61 Since, in general, a compromise between both legal systems needs to be found, debates between different legal systems are inevitable and may result in a party questioning the merits of its own system.62 In this sense, international arbitration presents an important interface between common and civil law.

The linking of common and civil law, however, goes beyond what has been described above. There is a multitude of international agreements providing rules with relation to international arbitration. In this context the most significant and notable are the so-called New York Convention (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) from 1958, initiated by the United Nations, in effect since June 1959, as well as the UNCITRAL (United Nations Commission in International Trade Law, founded by the General Assembly of the UN in 1996 to promote the progressive harmonization and unification of the law of international trade) Arbitration Rules from 1976 and the UNCITRAL Model Law on International Commercial Arbitration from 1985.63

Insofar as the actual procedure of an international arbitration is concerned, the Rules on the Taking of Evidence in International Commercial Arbitration (IBA Rules of Evidence) which were set by the International Bar Association (IBA) in 1999 should be mentioned. These rules present a successful attempt to combine the best parts of common and civil law and to harmonize them, to a certain degree,

61 62

Wirth, SchiedsVZ 2003, 9 (10). Demeyere, SchiedsVZ 2003, 247 (248/249). 63 Guilherme da Silva Jr., Arbitration and the International Trade Field, 2006, pages 11-13; Short/Fullerton, Commercial Litigation: Out of the Courts, Commercial Litigation 2008, page 12.

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in regard to rules of evidence.64 Further should be acknowledged that practitioners consider the IBA Rules of Evidence a successful compromise of both law systems and apply them increasingly in the field of international arbitration.65 How far the IBA Rules of Evidence are accepted is proved by the fact that these rules initially considered as compromise for proceedings between common law parties on the one hand and civil law parties on the other hand are applied more and more in arbitration proceedings in which all the participants belong only to civil law systems.66 One possible reason for this phenomenon may be that common law procedures and the role of the judge in common law correspond more with the purpose of arbitration and the role of the arbitrator than do the nature of civil proceedings and the role of judges in civil law.

In arbitration proceedings, the purpose of the proceeding is more a question of finding the truth than settlement of the dispute. It is important to remember that international arbitration agreements frequently provide for prior compulsory mediation. If the parties are unable to compose their differences with the assistance of a neutral mediator, then the purpose of arbitration is not to try to bring them together but to decide who should prevail and to what extent. The parties to arbitration will more likely accept the arbitrator as an impartial person to decide who should prevail if the arbitrator does not interfere actively in the proceedings and behaves in a somewhat reserved manner, as common law judges typically do.67 Finally, the purpose of finding the truth as opposed to settlement of the dispute is also important, because the arbitrators decision cannot be corrected as easily as in court proceedings, where often an appeal is possible and the decision at first instance can be controlled by a higher court.68

64 65

Demeyere, SchiedsVZ 2003, 247 (248). Demeyere, SchiedsVZ 2003, 247 (249). 66 Wirth, SchiedsVZ 2003, 9 (13). 67 Wirth, SchiedsVZ 2003, 9 (14). 68 Wirth, SchiedsVZ 2003, 9 (11).

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Of course a civil law arbitrator will apply common law principles only if this is more effective to him and he will follow civil law rules for the rest.

Thus the area of international commercial arbitration is not merely a place of clash and confrontation between common law and civil law but actually also a real point of intersection where common law and civil law are fused together to a certain degree.

2. UNIDROIT Principles of International Commercial Contracts

Besides international commercial arbitration another important point of intersection between common law and civil law are the UNIDROIT (International Institute for the Unification of Private Law) Principles of International Commercial Contracts and theirs comments. The first version of this compilation was finished in 1994 after several years of labor by a working group comprising some of the most respected specialists in contract law and international trade law from the different legal traditions of common law, civil law and the Socialist legal system.69 The drafters took account of both common law and civilian principles and codifications.70 In 2004 a second extended version of UNIDROIT Principles of International Commercial Contracts was published. The purpose of the compilation is clearly set forth at the outset of the text, which is the same in both versions except of few amendments:

These Principles set forth general rules for international commercial contracts. They shall be applied when the parties have agreed that their contract be governed by them.

69 70

Tetley, Mixed Jurisdictions, Part II, VIII. 2. (page 7). Tetley, Mixed Jurisdictions, Part II, VIII. 2. (page 7).

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They may be applied when the parties have agreed that their contract be governed by general principles of law, the lex mercatoria or the like. They may be applied when the parties have not chosen any law to govern their contract. They may be used to interpret or supplement international uniform law instruments. They may be used to interpret or supplement domestic law. They may serve as a model for national and international legislators.71

As explained in the outset, the UNIDROIT Principles of International Commercial Contracts may be seen as a modern lex mercatoria, or at least as a part of it, and are in fact increasingly accepted by practitioners as a guideline and applied as a substantive restatement of supranational commercial norms.72 Insofar these rules, developed by specialists of different legal traditions and systems, are a particular point of intersection between common law and civil law.

3. Legal system of Quebec

Finally, as last example of a point of intersection between common law and civil law the legal system in Quebec may be mentioned. Due to its history as a former French colony, private law in Quebec is to be qualified as civilian. However, in other areas of law, like constitutional law or criminal law, Quebec has, like the rest of Canada in all areas of law, a typical common law legal system.73 This brings about a clash of legal traditions to a certain degree, but, as mentioned at the beginning of this paper, constitutional law and criminal law lie outside the scope of this article.

71 72

http://www.unidroit.org/english/principles/contracts/principles2004/blackletter2004.pdf Tetley, Mixed Jurisdictions, Part II, XV. (page 17). 73 Handschug, Einfhrung in das kanadische Recht, marginal number 202 (page 72).

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The Code Civil du Bas-Canada came into force on August 1st 1866 and reflected to a great extend the French Code Civil of 1804 respecting its structure and style.74 Then in 1991 the whole of the present Code Civil du Quebec was enacted and came into force on January 1st 1994.75 This law is a new, modernized civil code that took the influence of several English principles and institutions into account, while still respecting the basic structure and terminology of civilian codification.76

Remarkable in this context is the probably unique initiative of Canada to reconcile common law, which is valid in all other Canadian provinces and territories except from Quebec and which dominates also Canadian federal law more and more, with Quebecs civil law by statute. So in 1998 the Canadian federal Minister of Justice introduced Bill C-50, entitled Federal Law Civil Law Harmonization Act, No. 1 in the Canadian parliament. It is the major purpose of the Bill, according to the News Release re. Bill C-50, released June 12th 1998, to ensure that all existing federal legislation that deals with private law integrates the terminology, concepts and institutions of Quebec civil law.77 Therefore in 2001 two new rules of interpretation were amended to the Canadian Interpretation Act because of Bill C-50. These new sections 8.1 and 8.2 of the Canadian Interpretation Act read as follows:78

8.1 Both the common law and the civil law are equally authoritative and recognized sources of the law of property and civil rights in Canada and, unless otherwise provided by law, if in interpreting an enactment it is necessary to refer to a province's rules, principles or concepts forming part of the law of property and civil rights, reference must be made to the rules, principles and concepts in force in the province at the time the enactment is being applied.
74 75

Tetley, Mixed Jurisdictions, Part I, IV. 6. (page 11). Handschug, Einfhrung in das kanadische Recht, marginal number 195 (page 70). 76 Tetley, Mixed Jurisdictions, Part I, IV. 6. (page 12). 77 Tetley, Mixed Jurisdictions, Part II, IX. (pages 8/9). 78 http://canada.justice.gc.ca/eng/pi/bj/harm/Index.html

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8.2 Unless otherwise provided by law, when an enactment contains both civil law and common law terminology, or terminology that has a different meaning in the civil law and the common law, the civil law terminology or meaning is to be adopted in the Province of Quebec and the common law terminology or meaning is to be adopted in the other provinces.

This Canadian initiative in the harmonization of the common law and the civil law, in a manner designed to respect the essence and genius of each system, is a particular point of intersection between both of the big legal traditions and might well be of interest to other mixed jurisdictions around the world, not at least to the European Union.

VI. Conclusions

This paper has introduced and compared the two important legal traditions of common law and civil law in an overview manner.

As one of the most significant differences the essential different methods of legal thinking were pointed out:

While common law focuses on each single case (reasoning from case to case), it is rather the civil law approach to find justice by abstract, beforehand defined principles.

Furthermore various process-related differences between both systems were mentioned and explained. Most of the differences are based on the fact that civil proceedings in common law are rather adversarial and that those in civil law are rather inquisitorial.
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Also it was pointed out that both legal traditions influence each other, for instance in the Scottish legal system or in connection with the European unification.

Finally, international commercial arbitration, the UNIDROIT Principles of International Commercial Contracts and also Canadas exemplary initiative in harmonizing common law and civil law were identified as remarkable points of intersection between both legal traditions.

Dominik Lengeling

Law firms PATRICK SCHINDLER, Toronto / SCHLEIFENBAUM & ADLER, Siegen

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