‘Language’ Difficulties between Civil Law and Common Law

Parties to a leg­al dis­pute may believe they under­stand each other’s legalese or the leg­al ‘etiquette’ applic­able. When really they don’t. This may hap­pen when a party from a civil law jur­is­dic­tion sets foot in a com­mon law envir­on­ment, or vice versa. In inter­na­tion­al arbit­ra­tion pro­ceed­ings, for example.

Appar­ently the High Court of Singa­pore had to decide a case just like this.

The (Possible) Real-Life Example

I’m talk­ing about Tri­ulzi Cesare SRL v Xinyi Group (Glass) Co Ltd [2014] SGHC 220. If you don’t want to read the decision, the case, as far as rel­ev­ant here, went as follows.

The plaintiff was Tri­ulzi Cesare SRL (‘Tri­ulzi’), a com­pany incor­por­ated in the civil law jur­is­dic­tion of Italy. It applied to the High Court to set aside an arbit­ral award issued against it. Tri­ulzi argued the award was in breach of the parties’ agreed arbit­ral pro­ced­ure. It also argued the tribunal had­n’t afforded Tri­ulzi a reas­on­able oppor­tun­ity to be heard in respect of expert evidence.

The tribunal con­sisted of a single arbit­rat­or from the com­mon law jur­is­dic­tion of Singa­pore. What did the tribunal do to trig­ger such an application?

Can I Get a Witness?

At the out­set of the arbit­ral pro­ceed­ings the tribunal dis­cussed and pre­pared the pro­ced­ure togeth­er with the parties. For instance, the tribunal pre­pared a timetable for the sub­mis­sion of wit­ness state­ments and declared it inten­ded to fol­low the timeline strictly. The parties agreed.

Sub­sequently, both parties sub­mit­ted their wit­ness statements.

One of the wit­ness state­ments filed by the defend­ant, Xinyi Group (Glass) Com­pany Lim­ited (‘Xinyi’), a com­pany incor­por­ated in the com­mon law jur­is­dic­tion of Hong Kong, was an expert wit­ness state­ment. Above all, it was an expert opin­ion on the spe­cific­a­tions of the machines Tri­ulzi had sold to Xinyi and the envir­on­ment in which these machines were to operate.

Tri­ulzi took the view this was­n’t what the parties had agreed upon, and objec­ted. It argued, agree­ing on the sub­mis­sion of wit­ness state­ments had meant the sub­mis­sion of fac­tu­al wit­ness state­ments only. Xinyi replied the term ‘wit­ness state­ment’ does­n’t exclude an expert wit­ness state­ment. Hence both parties were at liberty to sub­mit an expert wit­ness state­ment in time. Just that Tri­ulzi had­n’t done so.

After that Tri­ulzi asked the tribunal for addi­tion­al time to sub­mit an expert wit­ness state­ment as well. But the tribunal poin­ted to the agreed timeline which it had announced to fol­low strictly, and thus rejec­ted Tri­ulzi’s application.

The arbit­ral award was much to the det­ri­ment of Tri­ulzi. So Tri­ulzi brought the wit­ness state­ment issue before the High Court of Singa­pore, hop­ing the court would set aside the award.

But the High Court dis­missed Tri­ulzi’s case in full.

Same Same but Different

Now, what’s a wit­ness state­ment? Is a wit­ness state­ment in a civil law jur­is­dic­tion the same as a wit­ness state­ment in a com­mon law jurisdiction?

No, it’s not the same, who would have thought. Per­haps Tri­ulzi was­n’t aware of this? (I really don’t know.)

Who’s a Witness and Who Isn’t – the Civil Law View

In civil law pro­ced­ure, a wit­ness is someone who can con­trib­ute to the find­ing of the facts of a case by recount­ing his own per­cep­tion of what happened. This means a wit­ness in civil law pro­ced­ure is pretty much the same as an eye­wit­ness (and to a less­er extent a hearsay wit­ness) in com­mon law pro­ced­ure, but noth­ing else. In civil law pro­ced­ure, a wit­ness isn’t someone who can help under­stand why some­thing happened by present­ing his expert­ise but without actu­ally hav­ing been there when it happened. If such expert­ise is required, one does­n’t call an expert wit­ness. Rather one pro­cures an expert opin­ion. In gen­er­al, this falls with­in the remit of the decision-mak­ing body, for example the court or, in arbit­ra­tion pro­ceed­ings char­ac­ter­ised by civil law(-like) pro­ced­ure, the arbit­ral tribunal. It isn’t in the area of com­pet­ence of the parties, or their counsel.

Who’s a Witness and Who Isn’t – the Common Law View

In com­mon law pro­ced­ure, a wit­ness can either be an eye­wit­ness, a hearsay wit­ness or an expert wit­ness. The state­ment of an expert wit­ness isn’t obtained by the decision-mak­ing body. Rather, it’s the task of the parties, or their coun­sel, to obtain it.

And the Point Is…

These dif­fer­ences are rooted in dif­fer­ent under­stand­ings of the role of a judge in civil law and com­mon law pro­ced­ure (for fur­ther read­ing take a look here).

The field-tested les­son from Tri­ulzi seems to be this: each par­ti­cipant in an inter­na­tion­al arbit­ra­tion should real­ise a leg­al term of art may mean some­thing dif­fer­ent to dif­fer­ent law users. This is risky.

To address best the risk that res­ults from dif­fer­ent under­stand­ings of a leg­al term of art, the par­ti­cipants must have full under­stand­ing of the terms used. In short, the par­ti­cipants should com­pre­hend each oth­ers’ mode of leg­al thought and expres­sion as effect­ively as pos­sible or reas­on­able. In the arena of inter­na­tion­al arbit­ra­tion, this may mean get­ting leg­al advice from both the civil law and the com­mon law perspective.