Comparative Law (1)
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Dec 17, 2024
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- 106 10} Comparative law THE STUDY OF LAW Lead-in People who describe and analyse the legal systems of the world divide them into various categories, or families. Although different classification schemes exist, the following systems are commonly distinguished: civil law, common law (often grouped together as Western law], religious law (e.. Hindu law, Islamic law and Jewish law), Chinese law and socialist law, In addition, some legal systems can best be described as mixed (or pluralistic) systems. 1 Discuss these questions. 4 What do you think is meant by a mixed system? Do you know any systems that might belong to this group? 2 Which system does your jurisdiction belong to? 3 What is the legal system of the vast majority of English-speaking jurisdictions? Reading 1: Comparative law 2 Read the overview of comparative law below and answer these questions. 1 Why is comparative law growing in importance? 2 What is the HCC, and what is its goal? 3 What is the best-known convention produced by UNIDROIT? Comparative law is the study of differences and similarities between different Jurisdictions, including civildaw systems, common-aw systems and religious. (or theological) legal systems, Comparative law has become of increasing practical importance for two reasons. First, the globalisation of world trade means that commercial lawyers are often required to work with colleagues and clients from unfamiliar Jurisdictions. The second reason is the increasing harmonisation (or unification) of laws between previously separate jurisdictions, as with the European Union and the Union of South American Nations. Comparative law is closely related to private international law and the harmonisation of law. Private international law concerns the applicability of laws in situations involving other jurisdictions. Harmonisation of law developed out of a need to simplify these rules, both at a national level (e.g. the US Uniform Commercial Code) and between sovereign states (e.g. EU law) Another key aspect of comparative law is the idea of uniform law. There are two main sources of international uniform law: The Hague Conference on Private International Law (HCC) and the International Institute for the Unification of Private Law (UNIDROIT). The Hague Conference, a global intergovernmental organisation with over 60 member states, is the leading organisation in the area of private international law. An increasing number
of non-member states are also becoming parties to the Hague conventions. The statutory mission of the HCC is to work for the progressive unification of private international law in a wide range of areas, from commercial law to international civil procedure and from child protection to matters of marriage and personal status. This involves finding internationally agreed approaches to issues such as jurisdiction of the courts, applicable law and the recognition and enforcement of judgments. UNIDROIT also has about 60 member states and was established to research the needs and methods for modernising, harmonising and co-ordinating private, especially commercial, intemational law. Its most notable convention is the Uniform Law on the International Sale of Goods, 1964, Key terms: Expressions used in comparative law 3 Explain what is meant by these expre: sions in your own words. 1 applicability of laws 2 international civil procedure 3 enforcement of judgments 4 progressive unification of law Reading 2: Course reader As part of the curriculum of a Masters Program in Comparative Law at an American aniversity, students take a course in which they learn about the differences between civil law and common law. 4 Read the extract below from the course reader (a collection of texts selected by the instructor) and answer these questions. 1 Where did civil law originate? 2 What is the role of precedent in comman-aw systems? 3 What does the term stare decisis mean? 4 Which two terms are given in contrast to the term unenacted law, in the final paragraph? Civil law may be defined as that legal tradition which has its ori Roman law, as codified in the Corpus Juris Civilis (the Justinian Code), and as subsequently developed in continental Europe and around the world. Cvil law is highly systematized and structured, and relies of broad, general principles. eclarations Common law is the legal tradition that evolved in England from the 11th entury onwards. Its principles appeat for the most part in reparted judgments, usuall of the higher courts, in relation to specific situations arising in disputes that the courts have edjudicated The common lax is usually much more ietailed in its prescriptions than the civil law. It s the foundation of private aw, not only for England, Weles and Ireland, but also in 49 U S, states, nine Canadian provinces, and in most former colonies of the Bitish Empire (many of which now form part of the Commonwealth of Nations). Common-law and civi-law legal traditions share similar social objectives (individualism, liberalism, and personal rights). Because of this functional similarity, they are often referred to as the Western law family. Unit 1o Comparative law 107
A major difference between common-law and civik-law systems is the heavy reliance on case law In common-law systems. In such systems, the courts interpret ctatute law thiough the development of case law. Judicial interpretation of statute s binding until challenged by a higher court. Under the doctrine of stare decisis Jower courts are compelled to follow decisions rendered in higher courts. Thus, precedent s at the core of common-law legal systems. Additionaly, the courts in “ommon-law systems are able to develop existing law or legal principles in the gaps Joft by statute. In ariving at a decision in a case, a court il fst determine whether there are any applicable statutory provisions. 1t will then look to see how these provisions have been interpreted if atall in earler cases, and will apply any binding precedent. If there is no previous case law on the statute, the court wil place its own Interpretation on the statute. I n0 statutes apply, the court will look to previous case Jaw Tn a common-law system, the legislature can overtum previously developed case law through new legislation Although codified law (mainly in the form of statutes) is paramount in both legal traditions, it differs in its importance. In civil-law jurisdictions, priority is given to enacted law over unenacted law. Codes provide the core body of law and are supplemented by decisions in individual cases. Conversely, the opposite s Lrue in the common-law tradition, in which precedent is the major source of law. 5 Find words in the text that mean the same as the underlined words below. For each pair of synonyms, say which word is more formal. 1 Although civil law originated in Roman law, it was later developed around the world, mainly in Europe. 2 The common law concept of stare decisis forces lower courts to accept decisions of the higher courts. 3 In accordance with the principle of stare decisis, decisions made in higher courts are binding 4 I both common law and civil law alike, statutes are of greatest importance, even though their functions are different. 6 You have been asked to give a short oral presentation about important gifferences between common law and civil law. Using information from the extract above, complete this table. | origin | countries found in Importance of case law. | Importance of enacted law
Language use: Explaining, comparing and contrasting 7 Underline the words and phrases used for contrasting and for expressing similarity in Reading 2. Then write them under the correct heading. The first one has been done for you. There may be more than one possible answer. Contrasting: .. is much more detailed, than . Expressing similarity: 8 Complete these sentences using the words and phrases for expressing similarity and contrast from Exercise 7. 1 Civil law and common law thelr origins. Common law was developed by custom, beginning before there were any written laws. E . civil law developed out of the Roman law of Justinian's Corpus Juris Civilis. 2 In civitiaw systems, courtmade law is almost unknown, in common-law systems, where large areas of law are created and shaped by court decisions. 5 - civil law and common law, statutory law is of enormous importance. 4 common law and civil law concerns the method of argumem In the civil law, the principal method of argument is by deduction from general principles or from statutes towards particular cases. —re 0 the common law, the principal method of analysis is induction (reasoning from detailed facts to general principle) and analogy (drawing a comparison in order to show a similarity). 9 Present the information from Exercise 6 to an audience, using the expressions for comparison and contrast from Exercise 7. Listening 1: Legal translation 20 Discuss these questions. 4 What kinds of problem can occur when a legal text is translated? 2 How do you think these problems could best be avoided? 3 Why would a practising lawyer need to be aware of these problems? B 4<10.1 Listen to the first part of an excerpt from a lecture held by a guest speaker from Mexico, who has been invited to talk to law students at a US university about legal translation. Apart from language proficiency, what else o legal transiators need in order to work effectively? 2 4:10.2 Listen to the second part of the lecture. What is meant by the term false friends? B8 4102 Listen again and answer these questions. 1 What is the first category of words she distinguishes? 2 How should a translator deal with the words in the second category? 3 What problem is posed by the third category? How should it be dealt with? 8 Do you know any legal terms in your own language that are particularly difficult %o translate into English? What makes them so difficult to translate? Unit 10 Comparative law @ N
10 Language skills: Finding and choosing legal terms 15 Students of comparative law, as well as practising lawyers, often encounter Unfamiliar terms from other legal systems. Discuss these questions with @ partner 1 Where can you look for information about unknown legal terms in English? 2 What do you do when you encounter an unfamiliar legal term in English that has no equivalent in your language? 16 Consider this list of sources of information about a legal term. What are the advantages and disadvantages of each? Discuss your views with & partner O Law firm’s glossary of legal terms on its website O Online legal dictionary O Legal dictionary in book form C Glossary of terms on the website of an international organisation O Google’s definition of a term (results of define: + term search) O Finding the term in the context of its use in a document of 17 Look up the following difficulttoranslate English legal terms and try to find an equivalent in your own language. Make notes about the sources you looked at and then tell a partner what your solution is and how you found it. Whenever possible, use the words and phrases for contrasting and expressing similarities. eumpie: The. English concept of ‘good. faibh’ is siilar to what we call , but it differs in the following ways - 1 equitable remedy 2 promissory estoppel 3 misdemeanor® 4 (past) consideration 5 the Lord Chancellor LAW IN PRACTICE Lead-in As trade becomes increasingly globalised, lawyers often find that they need to be familiar ot only with their own jurisdictons, but also with the jurisdictions of thir international colleagues and clients. 18 Make a list of the three countries whose legal systems you know the most about, How did you learn about these jurisdictions? How sure are you that the information you have is correct? 4 (UK) misdemeanour
Listening 2: In-company course Gareth teaches an in-company ILEC' course to a small group of judges working in Liechtenstein. 19 4<10:3Listen to the first part of the discussion during one of Gareth's classes with the judges. Which of these different meanings of the term equity is the closest to that described by Beate, one of his students? a the difference between the market value of a property and the claims held against it b the ownership interest of sharcholders in a corporation © @ system of courts that developed alongside the law courts in England 0.3 Listen to the first part of the discussion again and answer these questions. 1 Why does the subject of equity come up? 2 Why is Beate able to talk about equity? 3 Why was equity developed? 21 42104 Listen to the second part of the discussion and decide whether these statements are true (T) or faise (). 1 The position of Lord Chancellor was removed by the Constitutional Reform Act 2005. 2 Damages is an example of an equitable remedy. 3 If applying the rules of equity would lead to a different result than applying the strict legal rules, equity takes precedence. 4 Equity is administered by the Court of Chancery. 22 421055 Listen to the third part of the discussion and decide whether these. statements are true (T) or false (F). 1 The German concept of Treu und Glauben is similar to the English ‘clean hands’ doctrine. 2 The French doctrine of the abuse of rights is similar to the English concept of equity. 23 Look at the audio transcripts for the whole discussion (pages 138-139) and find phrases used for describing a legal system. Bpeaking 1: Describing, comparing and Eontrasting 24 Choose an aspect of your jurisdiction and explain it o a partner. Where possible, your partner should contrast that either with another aspect of the same legal system or with the closest equivalent in a foreign jurisdiction. Use the (anguege of describing, comparing and contrasting during your discussion. Cambidge International Legal English Certficate (ILEC), an internationaly recoghised test of ogal .11 s designed for lawyers and law students reuiring English language skils to work effectively & intcrnational legal environment. Unit 10 Comparative law m
n Reading 3: Asset protection Liechtensten s one of many jurisdictions that have established themselves as tax havens. 25 Discuss these questions. 1 What constitutes a tax haven? 2 What other countries can you think of that are also considered to be tax havens? 3 What i the difference between tax avoidance and tax evasion? 4 What do you think the term asset protection might refer to? 26 Read the first paragraph of the text on page 113. Which of these descriptions best describes the text? a Aletter of advice from a lawyer to a businesswoman seeking to reduce her tax burden b A memo written by a junior lawyer to a senior lawyer contrasting different forms of charitable foundation © A summary of various means of safeguarding money from creditors, taken from a website for businesspeople and lawyers 27 Read the whole text quickly and choose the correct word to complete each of these definitions. 1 The Stiftung / Anstalt / founder s a type of civil law foundation used to hold assets, property or shares. 2 The Stiftung / Anstalt / trust is @ hybrid entity often used as a holding company for overseas subsidiaries. 3 The assets of a Liechtenstein-based foundation are held on behalf of the Council of Members / beneficiaries / oreditors. 4 Behaviour that is illegal because it does not obey or respect the rules of a law court is referred to as contempt / holding / interpretation. Text analysis: Discourse markers for text cohesion In the letter on page 13, one of the lawyer's main objectives is to present complicated information ina clear way.n order to achieve this, he uses various words and phrases at the beginning of sentences t0 show the relationship between ideas. These discourse markers act as ‘lexical signposts’, guiding the reader through the text and making it easier to understand. In this sentence from the letter, the discourse marker signals that further information about a previous idea is being given: Furthermore, Liechtenstein law may not protect the settlor from a U.S. court's finding of contempt. The word furthermore, which here means ‘in addition’, shows that an idea introduced in the previous sentence will now be further developed. In this case, the general idea being expressed is that the asset protection methods. discussed in the text may not offer 100% security from legal challenges. 28 Look at the highlighted discourse markers in the letter and decide which of the following four functions each discourse marker fulfils. List anyother similar words or phrases you kow. O Giving extra information: furthermore O Introducing the result of previous information O Comparing, contrasting and qualifying O Emphasising
Dear Ms Radford Asset protection entitjes in Liech! lenstein Your instructions to me were to provide a summary of the structures available in Licchtenstein to facilitate your need to insulate future liabilites. T have now had the opportunity to rescarch this and can provide you with the following details. Although there are a number of civil-law entities available for asset protection purposes, the most popular structures for U.S. planners are two trust-like entities, the Stiftung and the Anstalt’, created under the law of Licchienstein, The Stiftung is a type of foundation, commonly used to hold asscts, fixed property or shares. It is created by a founder, from whom it has a separate legal identity. A Stiftung is not subject to any form of income tax, capital tax, transfer tax or inheritance tax in Liechtenstein. Its assets must be segregated from any personal assets, and ar generally not available o the founder's creditors. The bylaws of such entitcs are typically not filed in any public registry. Consequently. it is very difficult to get information about a Stiftung registered in Liechtenstein Notably, the Stiftung cannot be used solely for commercial purposes. Instead. it i designed to actas a private foundation. For asset protection purposes, it is better if the Stifiung is created for the promotion of some important interest (such as to further education or medical research) because there may be less chance that contributions 10 it made for asset protection purposes will be considered fraudulent by any investigating authorities. While a Stiftung imay have beneficiaries, including the founder, it cannot have any sharcholders. Mhat said, named beneficiaries are not recommended, as they can give the Stiftung the appearance of a foreign asset-protection tust. Because of this, the Stiftung should be limited by its terms, 10 supporting the purpose for which it was created. Despite this limitation, there are methods to utilize the assets of a Stiftung to endow private scholarships, ctc. Besides the Stiftung, the most important entity for tax purposes in Liechtenstein is the Anstal, ahybrid of a company limited by shares and a foundation. Such eniites are commonly used by foreign companies as a holding company for overseas subsidiarics. The Anstalt has no members, participants or sharcholders, but can have beneficiaries. The principal practical difference betwesn an Anstalt and a Stiftung is that, unlike a Stiftung, an Anstalt can conduct all kinds of business activities. The civil-law basis of these entitis, and the fact that they usually do not have identifiable beneficiaries, make them very difficultfor U.S. creditors' attorneys to conceptualize, and thus atack. Nevertheless, it must be noted that a U.S. judge could simply treat them as foreign asset- protection trusts and order thattheir assets be repariated. Furthermiofe, Liechensiin ow may ot protect the settlor from a U.S. court’s finding of contempt. * e terms Stftung and Anstalt are both German nouns and, as Such, begin with a cepta leier Speaking 2: Advising on asset protection €9 You are commercial lawyers specialising in asset protection. You have been asked to advise an American client on the asset-protection entities available in Liechtenstein. Discuss the advantages and disadvantages of the various entities with a partner and decide how to advise your client, Writing: Letter summarising options B0 Your client is concerned that the asset-protection entities in Liechtenstein might prove § difficult and expensive to administer. Using the notes on page 115, write a letter to your 8 client outlining the Panamanian foundation, another popular form of asset protection. Use discourse markers to expiain, compare and contrast the foundation with other forms of asset protection, Unit 10 Comparative law "3
14 Language Focus ation Complete this table by fillng in the correct forms of the words listed. [ Adjective [ giobatise global | harmony - [enforceable | unified o 72p0\lcah\i\y e 2 Synonyms Match each word or phrase (1-5) with its synonym (a-2)- 1 conversely — a very important 2 later b force 3 paramount “—c on the other hand 4 compel d subseaquently 5 unify e harmonise 3 Collocations Match the verbs in the box with the nouns they collocate with (judgment or law); some of the verbs collocate with both nouns. Cfm\» orfoce fexmanise madernise recognise _render 1 a judgment: apply, 2 alaw: 4 Discourse markers Complete this text using the words and phrases from the box. [however_in addition _netably _therefore thus | This essay discusses changes ocourting within legal education, which are finding wide acceptance in law schools throughout the United States. These changes include greater attention to other disciplines, 1) votably economics and behavioural sciences, and the contributions. they make to a fuller understanding of the legal system. 2) " law schools are increasingly exploring the viays in which the law in textbooks may differ from the law in action. 3) nearly every law school is investigating the consequences of legal rules through clinical legal education, ‘Which provides a real or simulated laboratory experience for law students. The most widespread change, 4) . may be the breaking down of traditional artificiel classifications of subject matter, which attempt to provide the advanced student a method for organising his o her knowledge about the legal system. 5) , comparative law courses have been developed in an attempt to inspire students to think creatively about legal problems by providing new insights ino the legal system. © Hugh J. Aut and Mary Ann Glendon, The importance of Comparative Law in Legal Education: Unied S Goals and Methods of Logal Comparisons, 27 1. Legal Educ. 599-608 (1975-1976)