Diminishing boundaries between common and civil law


Parties involved in cross-border transactions often find common ground to agree to resolve their disputes by arbitration. This is due, in part, to parties being wary of having to contest their disputes in courts of unfamiliar jurisdictions, and even more so in jurisdictions with a different legal system.


The two most prevalent legal systems are the civil law and common law systems. Civil and common law practices diverge on procedural aspects such as details of pleadings/submissions, disclosure of documents, taking of evidence, appointment of experts and examination of witnesses. These may act as a hurdle for lawyers of the respective systems to completely adapt to the procedural approach of the other’s legal system.

It appears that international arbitration is emerging as a melting pot for parties, arbitrators and lawyers from different jurisdictions. In arbitration, parties can usually agree on convergence of practices of the two legal systems. Such convergence of practice is possible in arbitration because the tribunal is not bound to follow the domestic evidence rules and/or the civil procedure rules of the seat of the arbitration.


In the first of this two-part article, we will examine this phenomenon, and as an example, we will use the Singapore International Arbitration Centre (SIAC) rules to show how they bridge the gap between parties coming from the civil and common law jurisdictions. In particular, we will share some experience in administering arbitrations involving Chinese parties to demonstrate how Chinese parties can use the SIAC rules.

At the outset, we would like to mention that rule 16.1 read with rule 16.3 of the SIAC rules provides the parties and the tribunal with the liberty to agree on the procedural conduct of the arbitration. However, the tribunal is obligated to ensure that the procedures adopted result in a fair, expeditious, economical and final determination of the dispute.

Rules 16.1 and 16.3 of the SIAC rules, 2013 state as follows:

Rule 16.1

“The Tribunal shall conduct the arbitration in such manner as it considers appropriate, after consulting with the parties, to ensure the fair, expeditious, economical and final determination of the dispute.”

Rule 16.3

“As soon as practicable after the appointment of all arbitrators, the Tribunal shall conduct a preliminary meeting with the parties, in person or by any other means, to discuss the procedures that will be most appropriate and efficient for the case.”

Notice of arbitration

The common law practice is to file a succinct notice of arbitration – briefly stating the material facts and the alleged wrong committed by the respondent. The civil law practice is to initiate arbitration by pleading in detail the law and facts, and disclose the relevant documents relied upon.

Rule 3.1 of the SIAC rules sets out the essential information that a party is to include in its notice of arbitration in order to commence the arbitration proceedings. Further, rule 3.2 provides the party with an option of submitting its statement of claim along with the notice of arbitration. Thus, the SIAC rules allow parties the discretion to decide the extent of details parties wish to include, apart from the essential information as stated in rule 3.1, in their notice of arbitration at the time of the commencement of the arbitration.

Chinese claimants frequently ask whether the claimant is required to submit evidence together with its notice of arbitration in order to commence an arbitration. Pursuant to the SIAC rules, the claimant is not required to submit evidence in order to commence an arbitration. The claimant is, however, free to submit its statement of claim along with its notice of arbitration.

Disclosure of documents

The practice of disclosure of documents is significantly different in civil law and common law jurisdictions. Common law lawyers and judges are accustomed to a practice where it is usual for parties to make requests for disclosure of documents relevant to the proceedings. The disclosure process is party driven, however the courts also do not hesitate to order parties to produce documents relevant to the case.

In civil law jurisdictions, which are similar to Chinese practice, disclosure requests from the opponent are highly unusual. In addition, the courts exercise a hands-off approach when it comes to ordering parties to disclose or produce further documents. The respective party would voluntarily disclose the documents that they think are relevant to the proceedings. The case is adjudicated on the basis of the documents disclosed by the respective parties.

The SIAC rules strike a balance between the practices of both systems. Rule 17.1 read with rule 17.7 provides that unless the tribunal determines otherwise, all submissions filed by the parties should be accompanied by copies of all supporting documents that have not previously been submitted by any party. The parties, at the pleading stage, are expected to disclose documents that are relevant to the arbitration proceedings. Should there be a need for further disclosure of documents, rule 24.1(g) of the SIAC rules confers power on the tribunal to order parties to disclose documents that are relevant to the case and material to its outcome.

The SIAC rules do not, however, give parties an express right to request a disclosure of documents from the other side. Subject to the parties’ agreement and the tribunal’s directions, the disclosure of documents in the arbitral proceedings under the SIAC rules does not necessarily follow the practice in either common law or civil law jurisdictions.

Rules 17.1, 17.4 and 24.1(g) of the SIAC rules, 2013 state as follows:

Rule 17.1

“Unless the Tribunal determines otherwise, the submission of written statements shall proceed as set out in this Rule.”

Rule 17.7

“All submissions referred to in this Rule shall be accompanied by copies of all supporting documents which have not previously been submitted by any party.”

Rule 24.1(g)

“In addition to the powers specified in these Rules and not in derogation of the mandatory rules of law applicable to the arbitration, the Tribunal shall have the power to order any party to produce to the Tribunal and to the other parties for inspection, and to supply copies of, any document in their possession or control which the Tribunal considers relevant to the case and material to its outcome.”

In next month’s column we will explore the taking of evidence.

Abha Pareek and Vicky Huili Zhao are counsel and associate counsel, respectively, with the Singapore International Arbitration Centre

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