The Middle East must adapt to a dual system of British-based common law and civil law as increasing globalisation results in more opportunities for collaboration between Eastern and Western parties, said Sheikha Haya Rashed Al Khalifa, former president of the United Nations General Assembly and founding partner of Bahrain-based Haya Rashed Al Khalifa Law Firm.
In an interview with TheBrief on Tuesday, Sheikha Haya said the emergence of common law centres in the region, such as Dubai International Financial Centre Courts and the Bahrain Chamber for Dispute Resolution (BDCR-AAA), highlight the evolution of the legal system to meet the needs of local and international clients. But she added that practitioners of both systems will need to understand and address the subtle differences between the two, in order to truly make the justice system effective in the region.
“The world has become very small. These are differences in the way of thinking, but ultimately civil law and common law do not contradict each other,” she said. “It is important to use the best of both systems to reach a better justice.”
Arbitration and other forms of alternative dispute resolution, such as mediation, have their basis in common law but have increasingly been used by regional players. Sheikha Haya, who is the chairperson of the BCDR-AAA, said the introduction of alternative dispute resolution methods have helped Bahrain’s legal system deal with frustrations, such as a backlog of cases that would have delayed justice for the parties involved.
Still, there are challenges that must be addressed. Speaking at an event in Dubai, Sheikha Haya said legal practitioners must consider the differences between common law and civil law when drafting contracts, rendering legal opinions and drafting reasons for a judgment or arbitral award. “To ignore such issues, may affect the effectiveness of the act which may extend to nullifying it,” she said in her prepared remarks.
Certain terms, for instance, that apply in common law would not work under a civil law jurisdiction. The terms “without prejudice” under common law allows for information to be considered confidential and may not be used as an admission of liability. Under civil law, however, such documents may be admissible as an admission of liability.
“Globally, we have new technologies every day. The different systems should be considered the technology of law,” she told The Brief. “We have to adapt to it. We have to understand the concepts and how they can be applied in other systems to enjoy the justice that we are trying to achieve.”
Shaheen Pasha is Middle East Regional Editor at ALB. Follow us on Twitter: @ALB_TheBrief.
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