Direkt zum InhaltDirekt zur SucheDirekt zur Navigation
▼ Zielgruppen ▼

Humboldt-Universität zu Berlin - International Dispute Resolution

Humboldt-Universität zu Berlin | Faculty of Law | International Dispute Resolution | Events | 2019/2020 academic year | Prof Dr Christian Borris on the Influence of Anglo-Saxon Procedural Law on International Arbitration, 24 January 2020

Prof Dr Christian Borris on the Influence of Anglo-Saxon Procedural Law on International Arbitration, 24 January 2020

 

On Friday, 24 January 2020, the IDR LL.M. class had the honour and pleasure of welcoming Prof Dr Christian Borris, partner at Borris Hennecke Kneisel PartmbB, a specialized dispute resolution law firm based in Cologne, Germany, and honorary professor and lecturer on arbitration at the University of Cologne. As a specialist in the field of international and domestic commercial arbitration, he is particularly experienced in, inter alia, post-M&A and joint ventures, energy law, as well as banking and finance disputes. He is the author or co-author of numerous publications and has been widely recognised for his achievements. For us, it was therefore a privilege to have a chance to participate in his guest lecture at the Faculty of Law of Humboldt University of Berlin.

Prof Dr Borris started his lecture with a discussion of the distinction between the procedural and substantive laws governing the arbitral procedure. He went on to analyse the underlying rationale for establishing the lex arbitri, referring to the UNCITRAL Model Law, adopted by the German Code of Civil Procedure. Prof Dr Borris  also touched upon two of the most important principles in the world of arbitration, namely, the right to be heard and the right to be treated equally. The discussion then focused on the idea of flexibility in arbitration, and its reflection in the relatively narrow codification of the applicable rules. Together with Prof Dr Borris, we analysed the rationale for this approach to regulating the arbitral proceedings, its advantages and disadvantages, in light of the aims which arbitration as a dispute resolution mechanism seeks to achieve. Prof Dr Borris also showed us, through a small simulation of a potential dispute, what kind of criteria one would follow to effectively settle a dispute, regarding the issues of the seat of arbitration, the choice of arbitration, and applicable law. 

The second part of the lecture pertained to the characteristic features of Anglo-Saxon procedural law, and their impact on international arbitration. Prof Dr Borris explained why he had decided to focus on the common law impact, referring to the widely recognised reputation of the United Kingdom in the field of arbitration, a long colonial history of international trade, and stemming adequate instruments to resolve contractual disputes. He also highlighted the common law’s long tradition of resolving disputes through arbitration, and its famous institutions such as the London Court of International Arbitration. Prof Dr Borris focused on seven main issues varying depending on the legal system tradition, namely, the role of the judge or arbitrator, the relevance of written pleadings as compared to the oral hearings, the role of discovery and document production, the presence (or lack) of written witness statements, the institution of cross-examination, the presence of party witnesses, and, last but not least, the choice between party-appointed and tribunal-appointed experts. It was fascinating to hear from Prof Dr Borris how vividly these issues are discussed in the arbitration community, and how strongly the approach to these issues differs in common law and civil law jurisdictions. While some features would in the common law be regarded as part of the fundamental right to be heard, and as a distinct element of an adversarial system (for example, the right to cross-examine a witness), the same feature could constitute a controversial element in the proceedings for lawyers and parties with a civil law background. Written witness statements, to provide another example, could be seen as an artificial tool, whereas Prof Dr Borris, defending the common law approach in this aspect, regards written witness statements as a tool which facilitates the arbitrators’ work, and is useful for the purposes of cross-examination. 

Prof Dr Borris’ lecture can be summarised as fascinating, engaging, and thought-evoking. As on numerous occasions throughout the academic year, we realised what a great choice we had made in choosing this LL.M. 

 

Magdalena Gutowska, IDR LL.M. Candidate