This chapter outlines the workings of the common law. It starts out by providing a historical background to legal institutions, conceptual distinctions, pedagogy and literature constituting the common law tradition before going on to identify and discuss some of the core features of the common law’s method. The chapter also seeks identify factors causing convergences and divergences between the working of the law in many of the jurisdictions all over the world that tend to be classified as common law systems.

An analysis of the orders of the CCI and the CCP suggest that each national competition authority has its own distinct interpretive strategy which reflects the extent of compatibility and legitimacy generated for the competition legislation in the adoption stage. This chapter examines and compares the CCI and CCP’s interpretation of provisions for horizontal and vertical anti-competitive agreements to extrapolate some understanding of their overall interpretive strategies. The chapter demonstrates that despite the comparable antecedents of the relevant provisions of the Indian and Pakistani Acts, the CCP relied more heavily on foreign precedents in interpreting these provisions than the CCI. The chapter further demonstrates that the disparate interpretive strategies of the CCI and CCP may be explained by the disparity in the compatibility and legitimacy of the acts and to the CCP’s need to leverage foreign precedents to assert its international legitimacy, which in turn helped it to enhance its domestic legitimacy. The chapter finally argues that in addition to reflecting the compatibility and legitimacy generated at the adoption stage, the interpretative strategies adopted by the CCI and the CCP also shape the competition and legitimacy of the acts and chart their implementation trajectory.

The foundation of most rule-based reasoning is the principle of stare decisis, meaning to stand by things decided. Under this principle, when a court decides a case that falls within a rule established in a precedent decided by a superior court or the deciding court, the court must apply that rule, subject to the limits of the principle. The best justification of stare decisis is that complex societies need a great amount of law to facilitate private planning, shape private conduct, and facilitate the settlement of private disputes. Because American legislatures do not have the capacity or ability to enact more than a limited number of private law rules, private law falls largely to the courts. Without the principle of stare decisis, rules adopted in judicial opinions would not be binding and there would be no common law.

There are several limitations on the principle of stare decisis. The most important is that in most areas of the common law if a rule established by precedent is not even substantially congruent with social morality, social policy, and experience, it may be overruled.

This opening chapter examines whether international law is relevant to the Arab-Israel conflict. The conclusion reached is that although the dispute is political ideological and territorial; nevertheless, international law has played an important role, and will continue to do so. All parties desire that their positions be seen to be legally legitimate, such legitimacy is a political asset as regards both the other party and vis-à-vis third parties. The international language of international relations is, largely, the language of international law; this is particularly true as regards the United Nations and international organisations. Israel and the Palestinians are engaged in an intensive campaign to persuade world public opinion of the legitimacy of their respective cases. Legal precedents, although not binding, play a highly useful role in assisting the parties to reach agreement. The same is true for dispute settlement mechanisms of international law. Finally, the object of negotiations is to reach agreement. The principle that international agreements are binding is a principle of international law and lawyers, based on international law, will examine their validity and context.

Is arbitral investment case-law on expropriation precedential in a legally relevant sense? Orthodox approaches are marked by agreement on a narrow set of arguments, namely that international law is not a common law and arbitral awards do not have stare decisis power, that jurisprudence is hugely important and tribunals rely on it, and that there must therefore be a sort of de facto system of precedents in operation. In effect, ‘factual importance’ is fashioned into a source of legal authority. However, few arguments are given as to why this transfer from fact to law would occur and they do not provide a foundation for a general legal value for precedents. Yet the weight of arbitral jurisprudence is both too great to ignore and too helpful in discovering what ‘’ means in a pragmatic sense. Precedents are statements about general norms; outside the common law, judge-made law is merely an interpretation of a general norm in a judgment. Not even a constant tradition of decisions can turn such a statement into a norm.

In the field of international investment law, arbitrators need to produce a consistent body of case law to specify the broad principles typically embodied in the treaties. The fact that most arbitral awards state reasons and are published helps generate a culture of precedent. Arbitrators, moreover, are aware of the need for their decisions to form a coherent body of jurisprudence. The arbitral arrangements, however, are not structured in such a way that consistency is likely to be achieved. In any event, to the extent that arbitrators play a role in the lawmaking process, certain mechanisms must be available for the democratic branches to check the outcomes of arbitration. The chapter discusses these issues, and takes the question whether it would be desirable to set up a global court of a permanent kind to deal with investment controversies.

State-to-state arbitration offers some potential advantages as a dispute-resolution mechanism. These advantages are similar to those arbitration displays in other settings, having to do with specialization, procedural flexibility, speed, and confidentiality. The chapter examines some of the strengths and weaknesses of state-to-state arbitration. It also discusses the arbitrability of peremptory norms of international law (ius cogens), the interaction between arbitrators and the International Court of Justice in the lawmaking process, and the extent to which arbitration is likely to be avoided as a procedure to settle disputes among member states of a supranational organization.

In most legal systems, courts perform two basic tasks: they resolve disputes in accordance with the law, and they formulate general rules to interpret, implement and enrich the existing body of law. Arbitration, in contrast, is not designed to contribute much to the lawmaking process by way of precedents. Its main function is dispute-resolution. The shortcomings of arbitration in jurisprudential terms are not problematic, in so far as courts are in a position to decide a sufficient number and variety of cases, in order to produce the pertinent case law. Accordingly, the high degree of political independence that arbitrators exhibit, when compared to courts, is not objectionable, given the limited part they play in the generation of norms.

This chapter outlines the system and structure of the courts in Hong Kong and discusses the concept of judicial precedent. It leads readers through the hierarchical structure of the courts and its historical development during the pre- and post-1997 periods. The different levels of the courts are examined including the Court of Final Appeal (CFA), the High Court, the District Court and Magistrates’ Courts. Different tribunals that exercise judicial power are also reviewed. The second section of this chapter deals with judicial precedents, an essential feature of the common law. The doctrine of precedent as it applies in Hong Kong is detailed, taking readers through vertical and horizontal stare decisis for each level of the courts. The status of English and overseas decisions, including Privy Council decisions in present-day Hong Kong, is discussed.