Comparative Law II The Common / Civil Law Divide

Unit 1: Overview

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Lecture Overview

•  History and cultural differences between common law and civil law

•  Sources of law and range of methods

•  Contracts, legal language, and research tools

•  The legal profession in common law countries

•  Civil procedure in common law jurisdictions

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Materials

•  Lecture materials can be downloaded at http://www.jura.uni-muenchen.de/personen/f/fries_engel_martin/veranstaltungen/comparative-law/index.html

•  Download from ILIAS depending on the release of my ILIAS account

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Literature

•  Zweigert/Kötz: An Introduction to Comparative Law o  3rd edition, Oxford University Press 1998

•  Siems: Comparative Law o  Cambridge University Press, 2014

•  Lundmark: Charting the Divide between Common and Civil Law o  Oxford University Press 2012

•  Fletcher/Sheppard: American Law in a Global Context o  Oxford University Press, 2005

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Unit 1 Overview

•  Why comparative law?

•  What are the world’s predominant legal cultures?

•  How do we compare the laws of different jurisdictions?

•  How can comparative law influence future legislation, e.g., in European private law?

Why Comparative Law?

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Purpose of Comparative Law

•  Provide courts with ideas for legal reasoning

•  Prepare the ground for developing supranational principles of substantive or procedural law

•  Allow legislators to gain from experience from foreign jurisdictions

•  Help legislators to harmonize their laws

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Legal Families

Image: https://goabroadfund.wordpress.com

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Maritime Law

•  Maritime law is not one worldwide set of maritime rules but part of the respective state law

•  In many jurisdictions, maritime law is an example for a mixed legal order consisting of elements from both civil and common law

•  Maritime law is often regulated distinct from other fields of commercial law, e.g., in book 5 (§§ 476-619) of the German Commercial Code (HGB)

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Micro-Comparison (Lundmark)

•  Legal Terms o  Equity, trust, good faith, mother

•  Legal Concepts o  Freedom, property, marriage, due process

•  Rules and bodies of rules o  Criminal liability, antitrust laws, bankruptcy laws

•  Sources of rules o  State law, organizational charters, PayPal law

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Macro-Comparison (Lundmark)

•  Legal organizations o  Parliaments, governments, judiciaries

•  Legal players o  Judges, prosecutors, lawyers, academics

•  Legal traditions o  Case-oriented, rule-based, arbitrary

•  Legal mentalities o  Law and order, consensus orientation

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Comparative Law in Practice

“The general legal principles of international law (Art. 38 para. 1 lit. c ICJ Statute) are to be developed by means of comparative law and with a comprehensive view on the world’s leading legal systems. The substance of those principles can be applied to the legal relations within the international community as well as to the law of international organizations. ... Examples for those principles are the principle of equity and good faith …, the protection of confidence and the principle of forfeiture.“

German Federal Court of Justice, February 24, 2015, Case No. XI ZR 47/14 and XI ZR 193/14

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Comparative Law in Practice

“With respect to comparative law, it has to be noted that the Swiss Federal Court has also denied to qualify unlawful drug possession as an asset protected by anti-fraud laws… According to the Swiss court, it can neither be property protected by theft laws, as drugs are not legally marketable goods... Whoever dispossesses someone else of illegal drugs, does not impair a legal position worthy of protection…, but rather restores a situation desired by the law.“

German Federal Court of Justice, June 1, 2016, Case No. 2 StR 335/15

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Interpretation of Contracts

Company X will use its best efforts to prevent company Y from suffering damages.

There has not been any material adverse change in the business, operations…

Company A will reimburse company B for any reasonable expenses…

There is no breach of contract where an Act of God prevents one party to…

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Model Laws

•  Transfer of national civil codes to other countries o  German civil code (BGB) implemented without major changes in Greece

and Japan

•  UNCITRAL Model Laws o  Convention on Contracts for the International Sale of Goods (CISG) o  Model Law on International Commercial Arbitration

•  EU Directives o  Implementation in the EU Member States o  Quasi-implementation in other European States (Switzerland, United

Kingdom)

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European Private Law

•  Comparative law can also be used to merge heterogeneous state laws to a supranational code

•  First step: Evolvement of common legal principles o  Principles of European Contract Law (PECL, 1995/1999/2002) o  Draft Common Frame of Reference (DCFR, 2009)

•  Second Step: Harmonization o  Directive on certain aspects concerning contracts for the online and other

distance sales of goods (2016, in progress)

•  Third Step: Unification o  Common European Sales Law (CESL, 2011, no longer pursued)

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Regulatory Competition

Source: http://www.lawmadeingermany.de

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Regulatory Competition

•  A reliable jurisdiction is presumed to be a crucial factor for attracting international business

•  To some extent, national regulators thus compete for o  the most convenient contract law o  the most liberal family law o  the least bureaucratic company law o  the most efficient court procedure

•  National regulators also compete with private actors o  Competition between civil law and marketplace rules o  Competition between state jurisdiction and private arbitrators

See you next week!

Wednesday, February 22, 2017 12 noon, EW 148

Feedback: martin.fries [at] jura.uni-muenchen.de