Civil procedure

Introduction

• Differences between adversarial and inquisitorial systems.

• Exploration of which system represents common law and civil law countries.

Adversarial System

Definition and Characteristics

• Nature of Litigation: Driven by the parties involved; they determine the scope by alleging facts and claims (seeking money, contractual termination).

• Role of the Judge: The judge acts as an impartial referee, only considering evidence presented by the parties.

• Parties as Adversaries:

  • Opposing sides (claimants vs. defendants).

  • The judge merely declares a winner based on presented arguments and does not interfere.

• Party Responsibility: It is solely up to the parties to bring forward evidence and suggest legal bases; the judge’s intervention is minimal to maintain the adversarial principle.

Key Observations

• Fair Contest: Contest must be fair to ensure acceptance of the decision; structured court rules support this.

• Focus on Facts and Evidence:

  • Adversarial systems prioritize the truth of facts, requiring parties to inform the court thoroughly.

• Motto of Common Law: "Let the best contestant win, no matter what the truth is," but with an emphasis on fairness and complete disclosure of facts.

Inquisitorial System

Definition and Characteristics

• Judgment Role: In contrast to the adversarial system, the judge plays an active role in litigation and fact-finding.

• Judicial Powers:

  • The judge may investigate unmentioned aspects of the case and question witnesses.

  • The judge is responsible for determining applicable legal rules; lawyers merely advise.

Civil Law Systems

• Hybrid Nature:

  • In civil law (e.g., French system), the process blends adversarial and inquisitorial features. While parties fix the scope of litigation (dispositive principle), judges have powers to investigate and facilitate timely judicial processes.

Practical Examples of Hybrid Functionality

• Case Study: Airport contract between the state (client) and a foreign contractor.

  • Contract terms include an 8-year project duration with progressive payments.

  • State terminates contract due to policy change, not contractor’s performance.

• Damages Assessment:

  • Contractor claims for breach compensation based on expected earnings from the full contract duration—$400,000,000 for lost profits.

  • Tribunal finds a termination clause allowing either party to exit the contract without cause—impacting the damage assessment.

• Evaluation of Loss of Opportunity:

  • Tribunal uses the clause to argue that loss of profit cannot equate to the full $400,000,000, as continued performance was uncertain and could be preempted based on the clause.

  • Recognizes the distinction between illegal breach and loss of opportunity to complete the project.

Conclusion

• The adversarial system is mainly found in common law, while civil law systems exhibit a hybrid nature incorporating elements of both adversarial and inquisitorial approaches.

• Understanding the roles of judges, parties, and the implications of court structure and conditions is crucial in evaluating litigation outcomes.