A bon mot generally attributed to George Bernard Shaw is that the United States and Great Britain are two nations separated by a common language. This observation could easily be applied to any number of specific subject matters, such as:

Transportation: truck = boot; glove compartment = map case; hood = bonnet; gas = petrol; traffic circle = roundabout; car pool = lift scheme; subway = underground; underpass = subway

Attire: suspenders = braces; tie = cravat; slip = shift; custom-tailored = bespoke

Food: popover = Yorkshire Pudding; dessert = sweet; French fries = chips; sausage = banger; to go = takeway

Law office: statement for services = fee note; memo to file = attendance note; counsel = consultant; exhibit book = bundle; legal opinion = advice of counsel; retained = instructed

(These comments will studiously avoid such contentious subjects as which country it is that drives on the wrong side of the road; or which it is that doesn't know how to spell [e.g. check/cheque, color/colour,defense/defence, civilization/civilisation, skeptic/sceptic]; or which it is that has difficulty distinguishing between singular and plural nouns ["the government has" / "the government have"]; not to mention basic letters and numbers [Zee/Zed,Zero/Nil}.)

A "Common" Legal System?

Shaw's observation (if indeed it was his) could also easily be extrapolated to apply to specific areas of activity, and of course what I am getting at, considering the theme of this publication in general and this column in particular, is the extent to which the two countries are separated by a common legal system. A general comparison of the two systems would obviously require volumes, even if I were qualified to make it, but as a result of a number of first-hand experiences, I do feel qualified to comment on differences in their insurance and reinsurance arbitration procedures.

With relatively few exceptions, the legal principles applied in both venues are very similar, if not identical. This is hardly surprising, since they share the common-law heritage of which both are justifiably proud. (You might even say that they have that heritage in common.)

As in so many other contexts, however, the major differences lie in the trappings -- the formalities, the procedures, the nomenclature. Let us begin with the last of these.

Nomenclature

In the U.S., a three-member arbitration entity is called a Panel, which consists of two (party-appointed) Arbitrators and a "neutral" Umpire. A similar group in London would be called a Tribunal, consisting of two Members (also party-appointed) and a Chairman. The latter is often referred to, particularly by his colleagues on the Tribunal, as The Learned Chairman.

As we all know, lawyers in the U.K. are either Solicitors (what we would call general practitioners) or Barristers (the advocates, i.e. the courtroom types). We call all lawyers generally "counsel," those who spend all their time tracking down loopholes in the Internal Revenue Code as well as those who stand in a courtroom and select a jury or cross-examine a witness or argue an appeal. All lawyers are "members of the bar."

In the Mother Country, however, the term "counsel" is reserved for the Barrister (and only Barristers are "called to the Bar"). In a face-to-face confrontation, we might refer to "counsel for the plaintiff" or "Mr. So-and-So," or perhaps even "my adversary"; whereas in the U.K. the appellation of choice is "My Learned Friend" (a term reserved for Q.C.s)¹ or "My Friend" (any other Barrister).

Procedures

U.K. methods of identifying, defining, and refining the parties and the issues in an arbitration are notably more formalistic than ours. In a U.S. arbitration, the parties will generally be required by the Panel to submit a brief position paper before or concurrently with the Organizational Meeting and a comprehensive brief or memorandum of law at the time of the Hearing.

A British arbitration utilizes formal pleadings along the same lines as those required in a litigation. The Petitioner asserts his "Points of Claim" (=complaint) and the Respondent his "Points of Defence" (=answer); and these pleadings are subject to amendment on an ongoing basis. For example, in a current London arbitration, the parties recently achieved the level of Re-Re-Re-Re-Amended Points of Claim; the possibility of resultant confusion was, I say with true admiration, dealt with by my British colleagues with their customary sang froid, savoir faire, and general coolness under fire.

In our practice, each party will set out in its own briefs what it perceives the issues to be. Sometimes both sides are on the same wavelength; sometimes they turn out to be playing in entirely different ball parks. In every London arbitration I am familiar with, the parties (through their respective Solicitors, but very likely with input from the Barristers as well) have worked out an agreement on the specific issues to be presented to the Tribunal.

A major difference in the discovery process is that U.S. Panels generally permit at least a few depositions, whereas that term -- indeed, the very concept of a witness deposition -- is virtually unknown in England, except as a rather odd local practice in alien cultures. What they do utilize, however, is a time-saving device known as a Witness Statement.

This is a formal, written, sworn statement by the witness that is submitted to the Tribunal, often standing alone but sometimes augmented by a bit of live testimony to amplify it, in lieu of full scale testimony on direct examination. Thus, after the witness has been sworn and identified, the proceeding can move immediately, or almost immediately, to cross-examination.

At the time of the Hearing, we submit to the Panel a Memorandum, or Brief, that addresses all the factual and legal issues, while the Barrister in the U.K. submits two entirely separate (and usually rather voluminous) documents: the Skeleton, which is a summary of the case to be presented with emphasis on the factual aspects; and the Submissions, which consist essentially of the legal arguments and authorities.

These documents can be utilized in various ways, depending on the nature of the case and the cast of characters. They may simply be read to the Tribunal; they may serve as an outline of Counsel's argument; or they can furnish a springboard for extensive and intensive interrogation (=grilling) of counsel by the Tribunal.

We have examined in earlier columns the much debated question of whether arbitration Panels should be compelled to publish a "reasoned award," particularly in light of usual U.S. practice to the contrary. In the U.K., this is not open to discussion: It is a legal requirement. Indeed, the decisions I have seen have struck me (whether or not I agreed with their results) as every bit as professional, as skillful, as literate, and generally as being of a comparable caliber (=calibre) to the typical English judicial opinion (=judgment), which is a high standard indeed.

The Formalities

Reverting again from the specific to the general: The similarities are greater than the differences. In some ways, the details of an arbitration in London tend to be more formal than those in, say, New York;² but in some ways the barriers seem to be breaking down.

To cite a trivial example from personal experience, in the first London arbitration I was ever involved in (yes, it was after World War II), all the participants kept their suit jackets on throughout, and the parties and lawyers all actually stood up as a gesture of respect when the Tribunal as a body entered the room. In a very recent one, however, the process of entering and leaving the hearing room could more aptly be described as sort of informal, gregarious, chatty, milling-about, and jackets were removed, collars opened, and sleeves rolled up (of course, the 90+ degree [=30************C] temperature and the absence of air conditioning might have had something to do with that).

Personally, as a working Anglophile, I enjoy the preservation of a certain degree of tradition. I like the show of courtesy and mutual respect. I subscribe to the notion of collegiality among lawyers, even in the most hotly contested litigation. On the other hand, as an indication of how old-fashioned my views may be considered in the States, I also treasure the memory of the Brooklyn Dodgers and continue to wage a (hopeless) campaign against today's ubiquitous and jarring misuse of the word "hopefully."

Professional and Efficient on Both Sides

In any event, the similarities are far more important than the differences. At least in my experience, insurance and reinsurance arbitration's on both sides of The Big Pond generally proceed in a highly professional and efficient fashion, largely because the participants know what they are doing. The Panel/Tribunal members are experienced and indeed "learned," and the attorneys/Counsel and Solicitors on both sides are specialists in the field with comparable levels of experience at least, if not "learnedness." The loose-cannon syndrome is very seldom encountered.

Would that this were so in all areas of litigation.

Endnotes

¹ A Q.C., or Queen's Counsel, also known as a "silk" (because he is entitled to wear a silk robe), is designated as such by the Lord Chancellor in recognition of his experience, ability, maturity, etc., as a member of the Bar. I would suggest, without any disrespect intended, that membership in a private organization such as the American College of Trial Lawyers is not quite an equivalent distinction.

² When was the last time a plaintiff's lawyer trying a personal injury case in New York was heard to refer to the defendant's attorney as "My Learned Friend"?

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