1. The comment was made by Lord Hoffman, who chaired the lecture on which this article is based. He likened the situation to an Appellate Committee of the House of Lords hearing an advocate at an appeal.

2. As mentioned infra, the British Institute of International and Comparative Law is proposing to undertake a major comparative study of procedure. Certainly, I support such a project.

3. [1966] 1 Q.B. 273.Google Scholar

4. Idem, p.295.

5. I am indebted to Matthew Happold of the British Institute for factual research that he carried out for me.

6. “Fact-Finding: A British Perspective”, in Miller, D. L. Carey and Beaumont, Paul R. (Eds.), The Option of Litigating in Europe (1993), chap.4.Google Scholar

7. Archbold on Criminal Pleading, Evidence and Practice (1999 edn), 19–96, p.1586.

8. I would here add a comment that applies equally to the procedure in relation to the possible impeachment of President Clinton and what I regard as the sorry story of Miss Woodward: they both involve prosecutors for whom, I suspect, winning is or was the primary consideration. Excessive prosecutorial zeal is liable to affect the investigative techniques used to secure evidence, techniques which, as The New Yorker put it (16 Nov. 1998), may seem perfectly reasonable when they are applied to relatively minor offenders; excessive prosecutorial zeal is also liable to affect courtroom tactics in ways that most of us would regard as undesirable.

9. “Use and Abuse of the Law in Economic Regulation”, a Hamlyn Lecture delivered in 1991.

10. Professor Goldstein called his lecture “The Anglo-American Jury System as Seen by an Outsider (Who Is a Former Insider)”, reproduced in the Clifford Chance Leyden Lectures, ed. B. Markesinis. When I agreed to give the Grotius Lecture, I did not know that ProfessoT Goldstein would be coining to London and lecturing at Gray's Inn on 30 Nov. Had I known, I would have suggested that all advertisements for my lecture should have had printed in bold type “Don't worry about getting to Lever but be sure to get to Professor Goldstein.” I say that because when I read Professor Goldstein's lecture, the scales fell from my eyes. A number of things that I ought to have, but had not, appreciated became obvious—I felt Like someone who witnesses the first use of the wheel. Of course, why didn't I think of that?

11. Op. cit. supra n.10, at pp.169–170.Google Scholar

12. Op. cit. supra n.6.

13. Idem, p.47.

14. Idem, p.54.

15. Archbold, ch. 11.

16. Phipson on Evidence (14th edn, 1990), 32–10, p.808Google Scholar

17. Idem, 32–10, p.805.

18. Idem, 32–10, p.808.

19. Since my lecture was delivered, the German Supreme Court has reached precisely the conclusion reached in Phipson.

20. This was vividly brought home to me when I was in Berlin in 1998 and asked the President of the Competition Law Chamber of the Kammergericht, the Berlin Court of Appeals, a question that I ought to have known better than to ask. I asked him who, in an appeal from a decision by the Federal Cartel Office (which is a non-adversarial procedure governed by the rules of administrative law), began when the appeal came on for hearing. The President looked extremely surprised by that question and then responded, “Why, of course, it is I who begins.”

21. Some years ago I was sitting as an ICC arbitrator in Brussels. The President of the Tribunal was a most distinguished, conscientious and delightful Belgian advocate. One day he said to me: “I am afraid that we shall have to start a little late tomorrow as I have a case that is coming on for a hearing before the Cour de Cassation.” I asked whether we should be able to sit at all on the morrow in those circumstances. “Oh yes,” he said, “I shan't say anything but as a matter of courtesy, I always like personally to attend at the Court when one of my cases is called on for hearing.”

22. Op. cit. supra n.6, at p.44.Google Scholar