Speaking at the fifth Judicial Seminar on Commercial Litigation last week, Justice Bathurst (pictured) said the first way convergence could be achieved is through judicial decision-making, which involves an understanding of other countries’ legal systems.
“This process can already be seen to a degree in common law countries in our region,” Justice Bathurst said.
“Hong Kong, Australia, Singapore, Malaysia and New Zealand all have common law systems with English heritage.
“In courts in those countries, there is a level of deference to and respect for one another’s decisions, stemming from common history and a shared understanding of one another’s legal systems, which assists in harmonisation in the development of legal principle.”
Justice Bathurst believes judges, to the extent possible, should seek to familiarise themselves with the similarities and differences between the approach taken by their court and the approaches of other courts in the region.
“In some instances, it is possible for sitting judges in one country to sit on international disputes in the courts of another country,” he said.
“This is a development which, in my view, should be encouraged.”
However, Justice Bathurst noted such processes are only possible when there is a degree of mutual understanding between commercial legal systems, which makes looking to foreign jurisdictions practicable.
“Knowledge and understanding increases courts’ intellectual toolkit in resolving disputes, allowing us to draw upon the strengths of other courts in our region,” he said.
“I am not suggesting that judicial decision-making can lead to a degree of convergence between common and civil law systems in the Asia-Pacific region … Not only is complete harmonisation impossible, but it is also undesirable.
“All courts in our region have spent many years developing their own legal systems and adapting the law to suit the particular needs of their countries. However, even a modest degree of convergence in judicial decision-making can increase certainty and reduce the costs of parties to cross-border commercial disputes.
“For example, a greater understanding and appreciation of different legal concepts enables judges to make decisions on issues such as venue disputes with a greater understanding of what will occur if they accept or decline jurisdiction.”
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