Common law v civil law dispute resolution – differences and convergences
ECTS : 3
Description du contenu de l'enseignement :
?Any future practitioner intending to become a lawyer, whether as counsel/Avocat/Solicitor in a law firm or as in-house counsel, will be facing, during his/her career, disputes involving proceedings initiated – sometimes simultaneously – across several jurisdictions.
Those proceedings are likely to be governed by very different - and at times inconsistent - sets of rules. To take but a few examples:
- Cross-examination of witnesses is standard before common law courts; it is rather unusual before civil law courts;
- To a large extent, a party is at liberty to disclose only the documents in his/favour before civil law courts; by contrast, he/she will be usually expected to disclose any relevant document, whether beneficial or detrimental to his/her case, before a common law tribunal;
- As counsel, the relevant ethical rules may be very different: the Solicitors’ and Barristers’ duty not to mislead the court has no real equivalent in a majority of civil jurisdictions;
- The past few years have seen the rise of somehow “hybrid” courts, offering a blend of common law and civil law features: the Dubai International Financial Centre (DIFC) Courts, the Dubai World Tribunal, the Qatar International Court and Dispute Resolution Center (QICDRC), the Courts of Abu Dhabi Global Market, the International Chamber of the Paris Court of Appeal, the Netherlands Commercial Court, etc.;
- International arbitration proceedings also see the implementation of rules and procedures combining common law and civil law principles.
As such, it is important for future lawyers intending to practise in an international environment to be able to anticipate, and adapt to, the differences between civil law and common law dispute resolution.
Contents
The Module will be built around a Case Study (i.e., a factual scenario described in a booklet containing several appendices, including the contract at the origin of the dispute, the correspondence exchanged between the parties, etc.). The case will be studied at different key stages, to understand how it may develop differently depending on whether it is brought before a common law or a civil law tribunal.
The key stages which the Module will focus on are as follows:
- The pre-litigation phase (detailed obligations contained in Pre-Action Protocols in common law jurisdictions vs vague - and often theoretical - obligation to seek an amicable resolution of the case in certain civil law jurisdictions);
- Initiating the proceedings (Claim Form & Particulars of Claim vs “Assignation”);
- Conducting the proceedings: to disclose or not to disclose? – the rules on evidence;
- Conducting the hearing: words fly away? – cross-examination;
- Ethical rules applicable to solicitors / barristers and Avocats (professional secrecy / privilege / obligations towards the court);
- Hybrid courts: Dubai International Financial Centre (DIFC) Courts, Dubai World Tribunal, Qatar International Court & Dispute Resolution Center (QICDRC); Abu Dhabi Global Market Courts; International Chamber of the Paris Court of Appeal, Netherlands Commercial Court, etc.;
- International arbitration: a dispute resolution mechanism at the juncture of civil law and common law?
Bibliographie, lectures recommandées :
Profile of the lecturer
Jean-François Le Gal is qualified both as a Barrister (England & Wales) and an Avocat au Barreau de Paris. He specialises in international arbitration and multi-jurisdictional proceedings.
He acts as counsel/advocate in English and/or French in international arbitration proceedings, and also sits as an arbitrator: he has acted as Chairman of an Arbitral Tribunal, Sole Arbitrator and Co-Arbitrator.
He has acted both before common law and civil law courts and tribunals. He has experience in handling cases before the High Court (England & Wales) and the Dubai International Financial Centre Courts (DIFC Courts), and has appeared before the Dubai World Tribunal. He has also appeared on numerous occasions as advocate in France in the scope of cross-border civil and commercial disputes.
He lectures in Arbitration at the Paris Bar School, and English & Comparative Contract Law at Paris-Dauphine International University (London campus). He has also lectured in Comparative & International Dispute Resolution at Paris II Panthéon-Assas University, and in French Contract Law at Paris I-Sorbonne University.