Bridging the Common Law-Civil Law Divide in Arbitration
There are some very well defined differences between civil law and common law. These two laws have different ways of ruling the land. The common law uses the previous legal precedents and judicial rulings to define the dos and don’ts. The civil law, on the other hand, uses an approach which involves the use of codified statutes and ordinances in defining the dos and don’ts. The common law is sometimes based outside the constitution due to the constant changes that continue to happen but the civil law is strictly based on the constitution and it relies on it fully in the process of making judgments. The judges in the civil law systems are required to be the chief investigator in the cases which they are required to make a ruling but in the common law system, the judges’ main role is to make the judgment in the cases where a jury is absent. In the civil law system, the gathering and taking of evidence is limited to the court but in the common law system, the litigant and their lawyers are allowed to find more evidence. (Townsend(2014). However, both the civil law system and the common law system often lead to the same result and they can be used along each other.
There are several constitutional review methods. One of them is the strong-form judicial review. This model is a traditional one and it was characterized by the judicial supremacy. This means that the judiciary was the only one entrusted with the role of interpreting the constitution and this often brought about a lot of complexity especially when the parliament needed to overrule the judiciary. The other model is the Anglo-Saxon matrix4 and it provides for a very good platform of dialogue between the judiciary and the parliament hence eliminating any ambiguity. (Novak,(2010). The model based on Anglo-Saxon matrix4 is the best model because it is able to reconcile the judiciary and the parliament hence making it very easy for the local citizens to understand the law correctly.
Elsing, S. H., & Townsend, J. M. (2014). Bridging the Common Law-Civil Law Divide in Arbitration. Arbitration International, 18(1), 59-65.
Novak, M. (2010). Three models of balancing (in constitutional review). Ratio Juris, 23(1), 101-112.