Litigation in the Civil Law and the Common Law: The Basics

• Author: George Bermann
• Pages: 21-29

21

Any U.S. attorney who is considering the prospect of litigation in a foreign cour t

should expect to encounter cer tain differences from the litigat ion models with

which he or she is fam iliar based on domestic practice. But what form are those

differences likely to take, and how pronounced are they likely to be? That,

broadly put, is the subjec t of this chapter.

HINTRODUCTION

It is customary, and convenient, to compare U.S. litigation with litigation in civil

law jurisdic tions. The durability of the d istinction between procedure i n the civil

law and procedure in t he common law is remarkable. Even among contemporary

writers on comparat ive civil procedure, the debate is not about whether the dis-

tinction is a legitimate one, but rather it i s about how sharp the distinct ion really

is. In my view, subject to two broad and important caveats (namely, differences

among civil law jurisdictions and trends toward convergence between civil law

and common law litigation practice), the distinction remains a valid one. Still,

with civi l procedure figuri ng among the favorite subjects of nation-by-nation law

reform in recent years, it is especially important that persons making judgments

of any kind about litigation in foreign countr y courts have in formation that is

fully current and f ully specific to the jurisdict ion in question. The reason is

simple: jurisd ictions arou nd the world are more fully engaged in conscious law

reform in th is domain than perhaps any other. Depending on the d irection and

magnitude of the reform that is undertaken, legal systems can distance them-

selves considerably from t he tradition to which they other wise remain attached.

CHAPTER 3

Litigation in the Civil Law and the

Common Law: The Basics

George Bermann

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