Is the Opposition Between Civil Law and Common Law Criminal Procedure the Lock or Key to International(ized) Tribunals’ Success?

Divergences and Convergences of Common Law and Civil Law Traditions on Asset Partitioning: A Functional Analysis

Over the last decade, missions of the UN have assisted with constitutional reforms including issues of federalism. The hopes for peace with regard to federal structures have often failed. This paper elaborates possible reasons why these hopes were disappointed. It will show that one should understand the differences between Common Law and continental systems with regard to federalism. Some experts from Common Law countries fail to appreciate the substantial difference between federal Constitutions embedded in a Civil Law culture and those embedded in a Common Law culture. The reasons for the success or failure of past, present and future federal reforms may help to improve UN activities in this field. States of the Common Law tradition are not collective units, which have to steer their society. The Jacobins of the French Revolution, considered the State as their instrument to transform feudal society into a society of equal individuals. The Civil Law tradition has its roots in the French Revolution and in the sovereignty of the national legislative assembly as the only legitimate lawmaker of the State. The unity of the law does not depend on decisions of courts but only on the legislature. Constitutions of Civil Law federations need to enable the specified governmental branches of the federation to impose sanctions against federal units that fail to comply with federal laws. According to the perspective of the Civil Law one has to deal with two ‘States’ claiming sovereignty in a hierarchy, while from the perspective of the Common Law one has to deal with mere ‘governments.’ Constitutions of multicultural federations embedded within the Civil Law culture will have to empower not just the federation but also the federal units to develop the different cultural identities. To foster different cultures is however, not a major function of the State of the Common Law tradition. Federalism of the Civil Law tradition is more complex than according to the Common Law tradition. Important differences between federations of a Common Law and Civil Law tradition lies in the lawmaking power of the courts. In Common Law, courts and legislature share the task of lawmaking; in Civil Law countries, the legislature regulates all issues of civil and criminal law. In a Civil Law country, legislatures, executives and courts cannot function if there is no valid local Constitution empowering those branches of the federal units. Thus, the federal Constitution of a civil law country has to establish the powers of the governmental branches of the federal units. Within federal system of the Civil Law, the federal units administer, implement and execute the laws of the federation. Constitutions of Civil Law federations need special provisions for the power of the federation to control and implement federal laws in the federal units. The civil law judiciary has no contempt of court against the administration and against authorities of federal units.

I want to make three points in connection with David's lecture, looking at his subject from my own perspective, i.e., that of a judge in an international criminal tribunal. First, I want to consider the specific function of international criminal courts and tribunals as finders. Secondly, I will examine how international criminal courts fit into David's theoretical picture of top-down versus bottom-up judicial bodies. Thirdly, I wish to convey some of my concerns arising from the multiplication of proceedings (criminal and civil) arising from the same facts before different international courts and tribunals. International Criminal Courts as Truth Finders A new feature of the international legal order in the past few decades has undoubtedly been the reemergence of international criminal courts, with the ad hoc criminal tribunals of the United Nations (the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)), the regional mixed international tribunals (Sierra Leone, Cambodia, East Timor), and the permanent International Criminal Court (ICC). The driving impulses behind the creation of these institutions may, as David mentioned in his lecture, differ from those behind the classical international courts and tribunals. One of the functions of international criminal law courts is that of providing a historical account and achieving reconciliation of post-conflict societies that have gone through a painful episode of mass atrocities. This is something which they share with another newcomer in the international legal order, and reconciliation commissions (TRCs), which in part originate from the same generating impulses. The latter may even be complementary to international criminal adjudication, as Tom suggested in his Holocaust memorial lecture, wondering whether the post-World War II criminal proceedings in Nuremberg should not have been complemented by a commission that could have examined the greater patterns of the historical behind the holocaust. (1) According to some, international criminal courts have, as far as finding process is concerned, little to add to the truth as it is revealed by journalists or historians, who base themselves on largely the same sources. I beg to disagree with that view. The finding process before criminal courts is of a different qualitative nature, because it is obtained through the specific rules of evidence that apply in criminal proceedings, above all the presumption of innocence and the prosecutorial burden of proof. What has been established by a criminal court following a correct procedure can therefore be said to be more credible in terms of its truthfulness than the produced by journalism or history writing. For example, for those who would wish to deny the Srebrenica massacre, it may have been easier to do so when only journalistic and historical accounts of the 1995 event were available than it is today after the judgments of the ICTY in which two panels of judges (first the Trial Chamber and thereafter the Appeals Chamber) found the facts to be established. This function of finding, and the contribution to history writing that results from this, may be one of the core missions for international criminal courts. In post conflict societies, different versions of the traumatic events often compete with each other. (2) It is extremely difficult for national courts in a post conflict society to make an unbiased assessment of these different versions, especially shortly after the events. This assessment is, however, a crucial factor in the process of transition. Without it, post conflict societies will have little more than annals of these traumatic events, produced by journalists and historians. (3) Through the process of judicial fact finding, international criminal courts help to sort out competing accounts of traumatic events in a conflict situation and to determine the account that will count as the official history that society. …

International courts have proliferated in the international system in the past century, with one hundred judicial or quasi-judicial bodies currently in existence. While the supply of international courts has increased substantially, state level support for international courts varies across states, across courts, and over time. This paper focuses on the cross-sectional and temporal variation in state level support for a particular court, the International Criminal Court (ICC). The authors argue that domestic legal systems create different predispositions with respect to states’ willingness to join adjudicatory bodies and the design of their commitments to international courts. Negotiators involved in the creation of the ICC pushed for rules and procedures that mimicked those of their domestic legal systems to help reduce uncertainty regarding the court’s future behavior and decision-making processes. This interesting process of legal bargaining led to the creation of a sui generis court, one which represents a mixture of common law and civil law systems. The hybrid nature of the court’s design enhanced the attractiveness of the court to civil and common law states, making them significantly more likely to sign and ratify the Rome Statute. Empirical models demonstrate that common and civil law states were fervent supporters of the ICC in preliminary negotiations and that they have shown higher levels of support for the Court since the ICC’s inception in comparison to Islamic law or mixed law states.

Canada's legal culture is a mixed legal culture, encompassing both the common law tradition inherited from England, and the civil law tradition, which connects Canada to its roots in Continental Europe. This mixed legal culture has come to be known as bijuralism. Inevitably, the presence of two legal cultures or traditions on Canadian soil means that they often come into contact with one another; the interaction of concepts, values and practices expressed in each of those legal traditions results in a true conversation of cultures. I will suggest that broader insight can be drawn from the conversation of Canada's legal cultures, insight that may be helpful in other contexts in which a plurality of cultures or systems of values and norms interact in a sustained manner, within a single space. I begin by explaining how Canada came to encompass both the civil and common law traditions and how Canada's federal system affects the conversation between these legal cultures. I will then consider the three possible modes of interaction that are possible where legal traditions, cultures, religions, or any other set of norms and values coexist, wrestle or clash in the same space: denial of plurality, which leads to the silencing of the minority tradition; acknowledgement of plurality, which requires one to create a space for each tradition; and embracing plurality, which treats the conversation of cultures less as a challenge than as a gift. I will examine how patterns reflecting each of these modes of interaction have repeated themselves, concluding that despite the unquestionable challenges posed by plurality, there is hope for a fruitful embrace of competing visions which must surely yield better self-knowledge and peaceful coexistence. Canada's Experience of Bijuralism The Roots of Bijuralism in Canada The common and civil law traditions can be distinguished generally on the basis of a few defining characteristics. Historically, the civil law tradition arose in Continental Europe, and traces its origins back to a revival of Roman law that took place between the twelfth and sixteenth centuries. It is characterised by a faith in written law, often manifest in the presence of a Civil Code, in which ordinary rules relating to family, property, contracts and wrongdoings, successions and other such topics - the rules of private law - are expressed in general language, arranged systematically. It is a legal tradition that accords primacy to the sovereign in the act of stating the law (Watkin 1999). As a result, judges in civil law countries typically deny that they are making law when they decide cases. By way of contrast, the common law tradition finds its roots in Great Britain in the eleventh century (Belanger-Hardy and Grenon 1997). It underlies the legal systems of the United Kingdom and the United States, as well as Commonwealth countries around the world. It is characterised by the special authority given to concepts and principles developed over time by judges deciding particular cases and, as a result, by the emphasis on unwritten law and incremental conceptions of the quest for justice (Glenn 2004). While problems in the two legal traditions often reach very similar solutions, one can see from this brief sketch that they operate under very different assumptions about, among other things, the role of legislatures, the role of judges, and the optimal mode of expression of legal norms. Civil law and common law are different legal cultures in that sense. They are two different languages which communicate differently within the law. How is it, then, that Canada came to house these two Western legal cultures? The early history of Canada, as is well known, is a mixture of settlement and conquest. In a land occupied by our First Nations, portions of Canada were settled by British subjects, who were presumed to have brought the common law tradition with them (Hogg 2002). However, what is now referred to as Central Canada was originally settled by the French, who established the civil law Custom of Paris as the principal set of legal norms in New France (Dickinson 2001). …

China’s Uniform Provisions of Evidence of the People's Court and the Convergence of Civil Law and Common Law

This Article examines two key aspects of international criminal procedure (ICP): the normative frameworks that govern ICP and procedures being utilized by International Criminal Tribunals (ICT) and Courts. It examines the established norms and practices of international tribunals. The discussion encompasses the formulation of standards, guidelines, and guarantees aimed at preventing judicial errors. It evaluates that whether ICP can be characterized as "adversarial," "inquisitorial," or “a blend of both”. It examines the case law and legal framework of international courts and tribunals. Employing a comparative and analytical research methodology, this article demonstrates that a genuinely hybrid procedure has emerged through successive amendments to the ICT for the former Yugoslavia and its rules of Procedure and Evidence (RPE) and the formulation of the Rome Statute. This procedure effectively synthesizes elements from both traditions; common law (adversarial) and civil law (inquisitorial) into a cohesive international legal framework. The article emphasizes the convergence of legal positions across jurisdictions. The observed similarities in legal frameworks arise from the universal recognition of the importance of justice in shaping human coexistence. However, the article acknowledges that the diversity in human minds leads to variations in devising solutions and creating means, explaining the inherent disparities in legal approaches across different contexts. It will be beneficial for Pakistan to adopt Islamic Criminal Procedure having hybrid criminal procedure that will improve the efficiency of our judicial system, ensuring swift resolution of criminal cases with effective outcomes.

Synopsis The research problem We investigate whether cross-listing in the United States is associated with a reduction in disclosure deficiencies about related party transactions (RPTs) related to the legal traditions of firms’ countries of origin. Motivation The extant literature shows that there is a disclosure disparity associated to the firms’ legal origin (civil or common law) and the countries’ institutions (regulation, enforcement, and market scrutiny). The literature has not examined whether cross-listing in the United States mitigates (or eliminates) the disclosure gap for firms from civil law countries and countries with worse institutions. We focus on RPTs because the US Securities and Exchange Commission has put particular emphasis on regulation of this type of disclosure. Hypotheses H1: Among domestically listed firms, those from countries with common law tradition present superior level of RPT disclosure than firms from countries with a civil law tradition. H2: Cross-listed firms have a superior level of RPT disclosure compared to domestically listed firms from the same country. H3: Among cross-listed firms, those from countries with common law tradition present a superior level of RPT disclosure than firms from countries with a civil law tradition. Target population Firms from countries that have adopted international financial reporting standards (IFRS). We sample firms from the G20 countries that have adopted IFRS because of their representativeness in the world economy. Adopted methodology Ordinary least squares (OLS) regressions with firm and industry-year fixed effects. Two-stage least squares (instrumental variables) regressions to tackle endogeneity issues. Analyses We manually collected data from the financial reports of 531 firms from the G20 countries that have adopted IFRS to compute indices of compliance with disclosures required by IAS 24. We performed double-difference regressions, comparing firms across their legal origin (common law versus civil law), and cross-listing status (cross-listed in the United States versus domestically listed only). In addition, we studied the institutional channels that drive the disclosure gap between common and civil law firms. Findings For domestically listed firms, we found that firms from the common law tradition have RPT disclosure levels superior to those of firms from the civil law tradition. We found that the level of RPT disclosure is associated with countries’ regulatory quality, rule of law, and control of corruption. However, we did not find any differences in the level of RPT disclosure among firms cross-listed in the United States that can be associated with firms’ legal origin or with other home-country institutional features. Our results suggest that the regulatory enforcement and scrutiny of capital markets imposed by the US market compensate for home-country institutional deficiencies and eliminate differences in firms’ RPT disclosures across legal origins.

Having the Cake and Eating It Too: Efficient Penalty Clauses in Common and Civil Contract Law

This book examines the process through which a World Trade Organization (WTO) dispute settlement panel formulates its conclusions with respect to the facts of a case, i.e., the process of fact-finding or process of proof. The Dispute Settlement Understanding provides general guidance but few direct answers to specific questions regarding the process of fact-finding, which has placed upon panels and the Appellate Body the responsibility to provide answers to those questions as they have arisen in the cases. This book reviews the extensive jurisprudence developed in the 14 years of operation of the WTO dispute settlement system with a view to (a) determining whether panels and the Appellate Body have set out optimal rules to govern the process of fact-finding and, to the extent that that is not the case; and (b) to make suggestions for improvement. This book analyses questions such as: (i) Which party bears the responsibility of ultimately convincing the panel of the truth of a fact (burden of proof)?; (ii) What quantum of proof is necessary to convince the panel (standard of proof)?; (iii) The role of the panel, disputing parties, and non-disputing parties (e.g,. experts, international organizations, private parties) in the development of the evidentiary record on which the panel bases its decision; (iv) The consequences of a party's failure to cooperate in the process of fact-finding; (v) How the parties can access the information which is necessary to prove their allegations; and (vi) The treatment of confidential business and governmental information. In assessing and making suggestions to improve the answers provided by panels to these questions, the book draws on the approaches followed in the two major legal systems of the world — the common law and the civil law — and to the extent possible, the approaches adopted by other international courts and tribunals.

This chapter shows that international courts and tribunals have on the whole adopted the common law approach to litigation. But the difference between common law and civil law approaches to pleading before the ICJ is not as great as is sometimes suggested. It is true that there are substantial differences between (and within) the various legal traditions. The differences between the common law and civil law approach to pleading before the ICJ are therefore a question of language, emphasis and intellectual approach, rather than a fundamental divide. That is not to suggest that differences between Anglo-Saxon and continental attitudes should simply be ignored once lawyers from different jurisdictions put on their international lawyer hats or gowns. Differences in perspective between lawyers from different jurisdiction continue to engender lively and interesting discussions and international law is richer because of it. Keywords: Anglo-Saxon approach; civil law approach; common law approach; continental approach; ICJ; international courts; international law; international tribunals

This essay introduces a contemporary description of the mixed jurisdiction of South Africa. It depicts how in South Africa co-existence, harmonization and resistance are found in different fields of law and identifies both pitfalls and benefits of mixity. Several components are introduced: civil law, English common law, local customary law, the Bill of Rights and international legal instruments. The successful harmonisation of civil and common law is ascribed to introduction of the English administration of justice. The British institutions, structure and process placed the focus on legal procedure and succeeded to avoid conflict between different legal cultures as economic transactions ignored different value systems and doctrine. The same model was, however, not applied in respect of indigenous customary law, where from the onset choices between values and doctrine were cast in stone with the consequent conflicts. The new constitution of 1996 is transformative and the courts are instructed to develop common law and indigenous law to promote the rights, values, spirit and purport of the Bill of Rights. Thus, in all fields of private law court decisions attempt to realise such transformation by harmonising constitutional values with legal tradition while strong impetus has been provided by legislation. As it appears that the need for harmonisation between civil and common law is experienced mainly in the commercial field, the question arises whether civil law jurisdictions can transform themselves into a mixed jurisdiction by way of legal transplants to facilitate the global market. Mixed legal systems developed mostly as the result of colonial history. Civil law and common law were able to mix because the common law court system and procedure made it possible for English trained judges to successfully merge certain areas of private law, primarily in the commercial field. This means that the court system and the law of procedure, but especially training, qualification and selection of judges are of paramount importance.

One of the essential elements of contract in both civil law and common law systems is agreement or consent of the parties. An agreement is composed of two elements: offer and acceptance. For the agreement to be valid, it must be possible to show that one party made an offer, and the other party accepted this offer. Two questions arise regarding offer in civil law and common law systems, as follows: What is the difference between offer and other steps in the negotiation process in both civil law and common law systems? What is the difference between termination of offer in both civil law and common law systems? The main aim of the current study is to illustrate the concept of offer and termination of offer in both civil law (French, German, Iraqi, Swiss and China Civil Code) and common law systems (English). To achieve this aim, the study examines offer in civil law and common law systems, then distinguishes preliminary statements from the offer and finally, explains circumstances under which offer may be terminated in both civil law and common law systems. Keywords : Contract, Offer, Preliminary Stages in the Negotiation Process, Civil Law Systems, Common Law Systems, Termination of Offer. DOI: 10.7176/JLPG/101-16 Publication date: September 30 th 2020

Civil Contract Law and Economic Reasoning: An Unlikely Pair?

These closing remarks discuss the unique role of the Dubai- and Abu Dhabi- based judicial free zones as a living laboratory of civil and common law legal and more specifcially arbitration practice beyond the civil and common law divide.