Opening Lecture by Dr. Niels Schiersing
Law, Culture, and Conduct: The Influence of Legal Traditions on International Arbitration
International arbitration operates at the intersection of diverse legal traditions. Drawing on Roscoe Pound's distinction between “law in books” and “law in action,” Dr. Schiersing examined how civil and common law systems shape procedural expectations through two examples.
First, in Browne v Dunn (1893) the British House of Lords determined that counsel cannot rely on evidence contradicting a witness’s testimony without first putting it to the witness during cross-examination, allowing them to explain. Civil law practitioners often find this unintelligible: if documents contradict a witness, why must counsel explicitly “put it” to them? Dr. Schiersing recounted a case from his experience as arbitrator where a German lawyer did not challenge a witness's account of an oral contract modification; the opposing party invoked Browne v Dunn, arguing the unchallenged testimony must be accepted. This illustrates the practical stakes: one side assumed the rule was mandatory, the other was unaware of it. Similarly, in P v D [2019], the English High Court, relying on Browne, set aside an award for rejecting testimony that had not been properly challenged. Dr. Schiersing recommends tribunals address cross-examination expectations at the first procedural conference to avoid unwanted surprises.
Second, the “parol evidence rule” bars extrinsic evidence (negotiations, drafts, prior
communications) from contradicting written contract terms. This reflects common law's
emphasis on contractual certainty: once parties commit their agreement to writing, that
document becomes the exclusive record of their obligations. Civil law systems operate
differently. Grounded in good faith principles, they permit tribunals to consider all relevant material to reconstruct the parties' common intention. The idea that a court would exclude reliable evidence not because it is untrustworthy, but because the law deems it irrelevant, runs counter to civil law conceptions of contract. In BQP v BQQ, a Singapore court suggested this rule does not apply in arbitration because parties choose arbitration to escape restrictive national procedures. Dr. Schiersing criticized this reasoning: parties select arbitration for neutrality and expertise, not to evade applicable law. Moreover, the parol evidence rule is substantive contract law; if English law governs, it applies regardless of the forum.
Both examples demonstrate that unfamiliarity with another tradition's expectations can
produce unexpected outcomes. For practitioners, such sensitivity is essential to effective advocacy and fair adjudication.
- Sergio Téllez, IDR LL.M Candidate, Class of 2025/2026