With reference to the works of two or more comparative lawyers and other sources, critically discuss the proposition that the comparative method drives integration rather than separation among legal systems:

International commercial arbitration:

One of the significant areas where common law and civil law currently converge is international commercial arbitration. Practicality can be one of the reasons for parties to agree that a dispute upon a contract shall be settled by a privately appointed arbitrator instead of state court. 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 that the parties 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.

At this stage of beginning ICA, there can be direct clash between common and civil law, 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. 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. 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. Comparative lawyers aided in the drafting of trans-national agreements to bring further clarity to this already booming practice.  Examples of these international agreements providing rules with relation to international arbitration are the following:

         The “New York Convention” (Convention on the Recognition and Enforcement of Foreign Arbitral Awards) from 1958, initiated by the United Nations and 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.

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,

in regard to rules of evidence. 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.

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. 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. Finally, the purpose of ‘finding the truth’ as opposed to

‘settlement of the dispute’ is also important, because the arbitrator’s 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.

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.

How the creation of the EU has integrated legal systems:

The creation of European Union (EU) law has greatly contributed to the process of rapprochement between common law and civil law. The EU has brought together different legal systems under a single legislature, especially after 1973, when the UK and Ireland joined the EU. The membership of these common law countries, in addition to all other civil law countries opened the way for convergence within the EU of common law and civil law elements and creation of a common legal framework. Hence, the EU legal system represents a mixed system which contains elements of both civil law and common law systems. 

The EU has been very active in adopting a great number of regulations and directives which have precedence over national laws. The legislation of the EU often incorporate elements specific for either civil law or common law. There are several examples of common law elements incorporated in the EU law. The European Parliament has adopted several resolutions calling for unification of private law, especially in the areas relevant to the development of common market. Also, the Commission on European Contract Law (the Lando Commission) has prepared the Principles of European Contract Law, which attempt to reconcile the differences between the civil law and the common law. These Principles presently have the status of 'soft law', but they may be the forerunner of a European Civil Code which would greatly contribute to the further convergence of civil law and common law

Of perhaps greater importance is the convergence that goes along with the unification of Europe. The work of such organs as the European Human Rights Commission and Court  or  the European Court  of  Justice  is  a  unifying  legal  force,  bringing  the  legal systems of member states, both Common Law and Civil Law, closer to each other. For instance, the European Court of Justice, in laying down principle and interpreting rules of the treaties, has lead to the development of relatively extended  bodies of case law which  play an important  role every European citizen's  daily life.  Students of common law countries such as Ireland, are justly as likely to learn about the  "Cassis  de  Dijon"  or "Francovich" case, as they are to study Donoghue v Stevenson. A sign that EU law is becoming an intrinsic part in national thinking.  

Further evidence of a convergence can be seen that the law of every European member state has increasingly become dominated by case law. It has also been argued that the EU law system has become more adversarial in nature. This has always been associated with the common law.

Civil Law jurists usually do not feel uneasy about that, perhaps because they

are  reassured by  the possible  reliance on  the EC  treaty or  treaty-executing  law  text.

This may be because the application of the EC treaty with its constitution-like features

requires the European member state jurisdictions to follow a path moving very closely

along familiar Civil Law practice.  

Further  examples  of  how  the  Civil  Laws  of  the  European  Union  have  been

supplemented by common law elements include the concept of true and  fair view in

accounting law, the evolution of due process in competition law, and an interpretation

of Article 81(1) of the EC Treaty – the provision prohibiting cartels- as a sort of a rule

of reason.

The English legal system, on the other hand, has been influenced by some Civil Law

concepts as well. Lord Denning M.R. stated as early as in 1977:"We know, of course,

that the practice on the continent of Europe is different. It seems to me that the time

has  come we  should  revise our practice." Today, the main gateway  for Civil Law

concepts  into  English  Law  are  the  EU  directives,  which  are  issued  by  the  EC

Commission  and  Council  in  collaboration  with  the  European  Parliament.

Further convergence is achieved by means of European Conventions. For instance, the

Brussels  Convention  and  its  detailed,  refined  and  complex  elaborations  by  the

European  Court  of  Justice  have  lead  to  the  harmonisation  of  European  Civil

Procedure. Accordingly, comparative legal scholars have frequently  highlighted the

effect of convergence that goes along with the unification of Europe.

The precise limits, if any, of this trend towards convergence are difficult to formulate.

According  to  some  commentators,  certain  areas  of  law  –  family  law  or  inheritance

law,  for  example  –  are more  resistant  to  a  “ European  standardisation”  than  others

such  as  commercial  law.  Supposedly,  this  has  to  do  with  differences  in

fundamentally held values – for instance, on abortion or euthanasia – and ultimately,

with differences in outlook on life itself.

Nevertheless, the vast majority of scholars agree that the European Court has made a substantial contribution to the convergence of the Civil law and the Common Law and

the continued importance of its role is beyond doubt.

Conclusion:

I have explored two particular aeras of law where we have the comparative become essential in the ever changing climate of the social, poltical and ecomin order of the world.

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