Malaysian Bar Talk – Key Differences between Common Law and Civil Law Countries
09 May 2023
Our Head of European Desk, Dr. Harald Sippel, was recently invited by the Malaysian Bar to speak on key differences between common law and civil law countries. Based on his background and early years of practice in Austria and Germany followed by years of experience in common law jurisdictions, Dr. Sippel among others highlighted to the over 40 lawyers in attendance what to (not) do when their client comes from a civil law jurisdiction.
One recurring issue is that of the battle of forms. This pertains to a situation where each of the contracting companies takes the view that its own terms and conditions apply. While Malaysia applies the last shot rule – whoever “fires the last shot” will have its terms apply – civil law jurisdictions usually apply the knockout rule, where the terms and conditions of both parties apply to the extent that they are compatible. If there is a contradiction between the terms, such as when terms A say arbitration under the rules of the Asian International Arbitration Centre and terms be arbitration under the rules of KCAB INTERNATIONAL, this portion of the terms will not apply. Instead, statutory provisions apply. The outcome in a battle of forms situation will thus greatly differ depending on which law is applicable.