English for Lawyers 4
description
Transcript of English for Lawyers 4
Introduction to the Course
Engleski jezik pravne struke 4
Coursebook: Vićan, D.M., Pavić, Z., Smerdel, B., Engleski za pravnike, Narodne novine d.d., 2008.
Units 28-36
presentations available at www.pravo.hr/sj -> Teaching materials
English for Lawyers 4 – Course outline
1. 11 Mar 2014 – Introduction to the course, Conflict of Laws (28)
2. 18 Mar 2014 – Types of English Civil Law: Tort Law (29)
3. 25 Mar 2014 - Negligence (31)
4. 1 Apr 2014 – Contract (30)
5. 15 Apr 2014 – Economic, Social and Cultural Rights (32) SP
6. 22 Apr 2014 – Forms of Business Organisation in the United
States (33) SP
7. 29 Apr 2014 – Judicial Control of Public Authorities (34) SP
8. 6 May 2014 – Police Powers in Great Britain (35);
9. 13 May 2014 – Final Revision
10. 20 May 2014 – End-of-term test
11. 27 May 2014 – Signatures and Tutorials
English for Lawyers 4 – course syllabus
Attendance
Optional
Regular attendance (missing no more than 3 sessions)
◦ opportunity to take the end-of-term exam
The final examination
Mastering relevant vocabulary
Being able to talk about the topics covered in the
syllabus, using relevant terms
The extra material covered in class will help you
understand the content and prepare for the exam
The exam will test the knowledge of the content
presented in the coursebook and presentations
a presentation on a topic (more or less) related to the curriculum
duration: approx. 15 minutes
2-3 students prepare each presentation as a joint project
minimum 2 sources must be consulted
Optional assignment
REWARD for participating in a successful presentation:
◦ you can SKIP the oral examination
HOWEVER...
◦ you still have to take the written test◦ you MUST attend the classes (same as for the early
exam)
Presentations
Before giving the presentation, students MUST:
◦ consult the lecturer about the topic◦ consult the lecturer about the sources◦ show the entire PP presentation, as well as the
outline and notes at least one week before giving the presentation
◦ consult the lecturer about the pronunciation of difficult words
Presentations
Conflict of LawsUnit 28
Conflict of Laws
also known as
◦ private international law◦ transnational civil litigation
private law which deals with foreign relations
a set of rules of national law determining how civil cases containing a foreign element are to be resolved
civil litigation with an aspect not local to a single country
Conflict of Laws
may arise in any area of private law;
◦ family law, contracts, torts, property, intellectual property, succession, company law, etc.
e.g. divorce between nationals of different countries, foreign nationals ordering goods or purchasing property, traffic accidents in foreign countries, etc.
Conflict of Laws
not necessarily ‘international’
may involve jurisditions of two countries, but also of two states, provinces, cantons, etc.
Conflict of Laws
CONFLICT OF LAWS term first used by Ulrich Huber (1636-1694),
a Dutch professor of law and political philosopher;
PRIVATE INTERNATIONAL LAW term first used by Joseph Story (1779-1845),
an American lawyer, jurist and Supreme Court justice, in 1834;
Conflict of Laws
CONFLICT OF LAWS term adopted by common law countries more suitable because most common law
countries contain several jurisdictions (US states, UK countries, etc.)
PRIVATE INTERNATIONAL LAW although first used by an American, the
term preferred in civil law countries;
MAIN CONCERNS OF THE CONFLICT OF LAWS:
choice of forum (jurisdiction)
enforcement of foreign judgments
characterisation of the cause of action
choice of law
Conflict of laws
CHOICE OF FORUM (JURISDICTION)
these rules determine whether the forum court (the court to which the claimant has applied) is competent and appropriate to resolve the dispute
EU: the matter of competence regulated in the Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters
Conflict of laws
CHOICE OF FORUM (JURISDICTION)
there has to be a connection between the litigation and the forum
◦ property located within the forum
◦ the defendant has a personal connection with the forum
◦ the activities related to the litigation occurred within the forum (tortious act, breach of contract, etc.)
Conflict of laws
CHOICE OF FORUM (JURISDICTION)
in common law countries, a competent court may decline jurisdiction at its own discretion if it believes that another court is more appropriate
in the EU this can only be done if proceedings have already been initiated in another forum
Conflict of laws
ENFORCEMENT OF FOREIGN JUDGMENTS
rules determining the effect given to foreign judgments
a party may have obtained a ruling in a foreign court and might have to attempt to enforce it in the forum court
this will depend on whether the forum recognizes the judgments of the foreign court
Conflict of laws
ENFORCEMENT OF FOREIGN JUDGMENTS
within the EU – this is regulated by the Regulation
if a judgment was reached under the competence in accordance with the Regulation, it can be enforced in the forum court within the EU
these matters often regulated by bilateral agreements between countries
Conflict of laws
ENFORCEMENT OF FOREIGN JUDGMENTS
international commercial disputes
1958 - Convention on the Recognition and Enforcement of Foreign Arbitral Awards - the "New York" Convention
Conflict of laws
CHARACTERISATION OF THE CAUSE OF ACTION
the case is analysed and each aspect of the pleading is assigned to an appropriate judicial category
these include – procedure, status, tort, contract, divorce, etc.
e.g. in some countries, the forum court is bound by law to apply the national procedural law, while it may apply foreign substantive law
Conflict of laws
CHOICE OF LAW
depending on the aspect, either the national law or the foreign law will apply in the characterisation of each aspect of the claim
e.g. the characterisation of title to property will depend on the lex situs – the law of the jurisdiction in which the property is situated
Conflict of laws
CHOICE OF LAW
lex fori – the law of the forum, normally applied in terms of procedure
lex causae – substantive law applied to the case in hand (local or foreign)
Conflict of laws
CHOICE OF LAW
e.g. person X, national of country A, dies and leaves behind a will in which he bequeathes the title to property located in country B to person Y, domiciled in country C
◦ lex situs – law of country B, location of the property◦ lex loci actus – law of country A, where the will was made◦ lex loci domicilii – law of country C, of which the heir is a
national
Conflict of laws
CHOICE OF LAW
e.g. person X has an employment contract with person Y, concluded in country A
a breach of contract occurs in country B
◦ lex loci contractus – law of country A, where the contract was concluded
◦ lex loci delicti – law of country B, where the breach occurred
Conflict of laws
CHOICE OF LAW
the choice will be a matter of interpretation
the prevailing law will be the one with the largest number of connecting factors to the case
Conflict of laws
CHOICE OF LAW
in the EU, as regards contract law
◦ Convention on the law applicable to contractual obligations (the Rome Convention), 1980
provides that the contracting parties may specify in the contract the applicable law
Conflict of laws
Example (source: Wikipedia)For example, suppose that a
woman domiciled in Scotland and a person habitually resident in France, both being of the Islamic faith, go through an Islamic form of marriage in Egypt while on holiday. This ceremony is not registered with the Egyptian authorities. They establish a matrimonial home in Algeria where they buy a house in the husband's name. The relationship breaks down and the wife returns to Scotland. When she hears that the husband is proposing to sell the house, she goes to the courts in
Scotland.
Example (source: Wikipedia)Is this: a case involving title to land where the lex situs, the law of
the place where the land is situated, will be applied; a case to decide whether the Egyptian ceremony created a
valid marriage under the lex loci celebrationis, the law of the place where the marriage was celebrated;
a case to decide whether she has the status of a wife and so may seek matrimonial relief under the lex domicilii, the law of her domicile; or
a case to seek divorce in which case the lex fori substantive family law will apply?
Assuming that the three relevant laws (the domicile and the forum is in Scotland) would give different results, the choice of the lex causae assumes major significance.
Translation practice
In international trade, disputes often arise involving
two or more countries. Of course, such disputes
do not necessarily pertain to ordinary
commercial contracts. Let us think of tourists
involved in a traffic accident abroad, or long-
running disputes concerning child custody or
the distribution of property between a husband
and wife of different nationalities.
Translation practice (1/2)
For this reason, every country has a branch of law,
referred to as the Conflict of laws in England,
aimed at resolving the following important
issues: the courts of which of the two or more
countries have competence in the event of a
dispute, and which law should apply in the
resolution of the dispute. The parties may agree
for any disputes to be resolved in a country not
involved in the dispute.
Translation practice (2/2)