WORKING IN ENGLISH FOR LAW STUDENTS
description
Transcript of WORKING IN ENGLISH FOR LAW STUDENTS
WORKING IN ENGLISH FOR LAW STUDENTS
Law making tradition/contracts/legal terms and
concepts
16 January 2013By Helen Michelle Jørgensen
THE ENGLISH LEGAL SYSTEMTHE NORWEGIAN LEGAL SYSTEM
How do the two compare
Handout: Law Making Tradition
3
Differences in:
• Law-making tradition
• Contract writing tradition
• Interpretation
4
English Law-Making Tradition
• The English legal system is a Common Law system.
• Formation of English Common Law was completed around 1250.
• Before that there distinct legal systems, including based on customs and varied from place to place.
• William the Conqueror and his Norman successors had orderly minds and were good administrators, and they achieved in England uniformity of the law, making it the Common Law.
5
English Law-Making Tradition
As well as Common Law, there is also Equity.
This means fairness and the application of good conscience to the settlement of disputes – it is natural justice. The English Equity system is a supplement to Common Law, and fills in the gaps that exist in Common Law, and prevails over it in the case of conflict.
Handout: the Maxims of Equity
6
English Law-Making Tradition
In the English system certainty, uniformity and consistency are important.
To achieve this there is Judicial Precedent. ‘Case Law’ but to have certainty and flexibility judges can overrule, reverse or disapprove of previous case decisions.
7
English Law-Making Tradition
The concept of Sovereignty of Parliament has been lost by the UK’s membership of the European Union.
Now European Law takes precedence over English law if there is a conflict with English Common Law or Statute.
European law has been superimposed on English national law.
8
English Law-Making Tradition
European law is based on roman law principles, and is different from the English legal system.
The English principle that legislation must spell out precisely and in detail what the law is to be.
Statements of broad principles are strange to the English system, and trying to convert European directives into legislation has defeated many English parliamentary draftsmen.
For England, the final court of appeal is not the Supreme Court but the European Court.
9
Norwegian Law-Making Tradition
Norway first had regional law making assemblies.
The King was represented at the various assemblies by one or more of his officials, but the King had no judicial authority in the first few centuries after Norway was united.
Like in the early years in England, rules of law were based on custom, and to some extent precedent, but the assemblies also passed laws.
The process of recording the laws in written form began around 1100.
10
Norwegian Law-Making Tradition
In the 1270s the various regional codes were compiled and revised to form a common national code.
The national code was completed in 1274 and it remained in force for over 400 years, and included royal exercise of legislative powers.
In 1687 Norway received a complete codification of its laws when many Danish rules of law were introduced.
11
Norwegian Law-Making Tradition
The Constitution of Norway (Grunnloven) was adopted in 1814 after the dissolution of the union with Denmark.
The present Norwegian legal system has a purely national foundation, but it is closely related to the legal systems of other Nordic countries, which have largely the same traditions in terms of legal history and legal policy.
Influenced by other legal systems, and through Norway’s participation in the European Economic Area, also the European law.
12
Norwegian Law-Making Tradition
Norway has a statute law system with the highest authority being the 1814 Constitution.
Norway is a member to the EEA and under the EEA it is bound by a large number of regulations adopted by within the EU.
As in England, these need to be transformed or incorporated into Norwegian law.
13
Norwegian Law-Making Tradition
Unlike the English Judicial Precedent concept whereby the lower courts are bound by the decisions of the higher courts, the Norwegian courts are not bound by judgments or decisions made by higher courts, although in general they will follow the Supreme Court’s decision.
The final court of appeal in Norway is the Supreme Court.
14
English Drafting Style and Tradition
English contracts have traditionally been long, compared to Norwegian contracts
England has never had an underlying constitutional document, and the practice has been to try to cover every eventuality in the contract,
with more complicated transactions earlier, and
more ‘clever drafting’ by lawyers, leading to
longer and longer documents in England
15
English style – why so wordy:
Differences between Civil and Common law systems clash of legal cultures
different legal principles, especially on interpretation
Common law system is based on ‘precedent’ words used before in contracts are important to follow
No underlying Code to rely on nothing to regulate in detail various legal relations which the
parties can rely on if they do not cover it in their document
Freedom of contract and fewer statutory codes lead to documents which regulate all conceivable aspects
16
Courts will not intervene if the meaning is clear from the words ‘that is it’ no moral or ethical obligation no obligation to deal fairly English courts will not ignore words and look
behind them to determine their meaning Courts will not will not ‘re-write’ contracts
English business/legal environment Business world was more developed in the context
of company sales – e.g. fixing price, tax Complex legal systems
English documents were driven by lawyers – not commercial people
17
Norwegian Drafting Style and Tradition
Norwegian contracts have traditionally been shorter, compared to English contracts
Norway has a constitution and has therefore been able to have shorter and less detailed contracts, relying on the underlying law to fill in the gaps
18
Norwegian Drafting Style and Tradition
Possibly less complicated transactions previously:
(economy traditionally based on local farming communities and fishing, hunting, wood and timber, and a domestic and international-trading merchant fleet)
Norwegian documents were perhaps driven by commercial people e.g. ship brokers – not lawyers
19
Norwegian Drafting Style Now
Norwegian contracts have moved to being longer and more like contracts from Common Law juridisctions, due to:
English (American) concepts and drafting styles being
adopted in Norway
Large Norwegian companies adopting English as their corporate language
Parties becoming used to the longer Anglo-American style and content and being comfortable with it as a recognised ‘norm’
20
Norwegian Drafting Style Now
Norwegian contracts are also now longer and more like Common Law contracts, due to:
the ‘Petroleum economy’ which has developed since
Philips Petroleum discovered petroleum sources at the Ekofisk field in 1969, and
increased international business, and
parties expect to see a longer and more detailed contract,
21
Norwegian Drafting Style and Tradition
Examples:
BIMCO (The Baltic and International Maritime Council) standard in shipping (Example Handouts BIMCO and BIMCO Barecon)
The LMA (Loan market Association) standard in financing (Example Handout Single Currency Term Facility)
22
INTERPRETATION -English
Traditional English approach:
Identify the intention of the parties from the wording of the document itself
Sometimes means that parties have had to live with a mistake in the wording of a contract, even if it defeated the intention and allowed one party to take advantage of the mistake
Evidence of prior negotiations not traditionally considered
Words given their plain and literal meaning
23
INTERPRETATION - Norwegian
Norwegian approach:
Interpret in accordance with the parties common intention at the time of the agreement
If common intention cannot be ascertained, then interpret in accordance with a reasonable objective understanding of the words of the document
24
INTERPRETATION - Norwegian
Norwegian approach:
Can take into consideration other circumstances that may indicate intention
Can consider preceding negotiations and subsequent behaviour
Can consider previous dealings between the parties
Can take into account what would be the fairest result in the actual dispute
25
INTERPRETATION
The compromise between Norwegian and English tradition:
the value of reaching a reasonable result in the individual case
compared to the value of having firm rules and the greater possibility to pre-direct the result
the English way needs to think it all out in advance and express the thoughts correctly, and if this is not done, to suffer the consequences
26
INTERPRETATION
The compromise between Norwegian and English tradition has been:
Norwegian rules of interpretation have sacrificed certainty for reasonableness
English rules have sacrificed reasonableness for certainty
27
INTERPRETATION
New approach in England
Law according to Lord Hoffman (the ICS Case) in 1997
Reconfirmed according to the Supreme Court (the Kookmin Bank Case) in 2011
Handout: ICS Case/Kookmin Bank Case
28
INTERPRETATION
New approach in England
Continuing influence of European law on the English courts
Look less at language and more to the purpose of the document according to common sense principles
29
INTERPRETATION
New approach in England
Strict approach to contractual interpretation has been relaxed in favour a common sense approach in commercial contracts
Anything can be investigated which would affect the way in which the words used in the document would have been understood by a reasonable man
Purposive, common sense approach
30
CONTRACTS AND CONTRACT LAW
Freedom of contract: concept that the parties are free to enter into a contract on whatever terms they consider are in their best interests
Today: a reasonable social ideal to the extent that equality of bargaining power can be assumed and no injury is done to the economic interests of the community at large
Freedom of contract has suffered as a result of developments in modern life and policy
31
CONTRACTS AND CONTRACT LAW
Freedom of contract has suffered due to:
Statutory restrictions – which override ‘Standards’ for contracts – not resulting from negotiation ’Compulsory’ transactions – essentials of life – utilities Implied terms – by Statute or law
32
CONTRACTS AND CONTRACT LAW
Contracts are entered into daily by people in private life or business, e.g.:
Contract of carriage Sale of goods Supply of services Commercial contracts
33
CONTRACTS AND CONTRACT LAW
Functions: Securing that the parties’ expectations are fulfilled To give recourse to legal sanctions To faciliate forward planning of a transaction Establish a value of the exchange Establish respective responsibilities Establish a standard of performance Allocate economic risk Provide for what happens if things go wrong
So that the separate and conflicting interests of the parties can be reconciled and brought to a common goal
34
TYPES OF DOCUMENT
What is the difference between:
A Heads of Terms Term sheet Letter of Intent Memorandum of Understanding
35
TYPES OF DOCUMENT
What is the difference between:
A Contract An Agreement A Memorandum of Agreement A Letter of Agreement A Letter Agreement
36
TYPES OF DOCUMENT
How many ways can we describe a contract:
Promise Agreement Committment Pledge Bargain Treaty
37
TYPES OF DOCUMENT
How many ways can we describe a contract:
Convention Pact Concordat Trust Deed Bond Undertaking
38
FORMATION OF A CONTRACT
What is Consideration and why is it so important in Common Law?
Why as a Norwegian lawyer do you need to be aware of this and its relevance?
Handout 9
39
TERMINOLOGY USED
What is the difference between:
Condition Undertaking Covenant
40
CONDITIONS
“Condition Precedent” so called ‘subjects’: contract does not come into force until the event named in the condition has taken place
“Condition Subsequent”: a condition that causes the contract to become invalid if a certain event happens
41
TERMINOLOGY USED
What is the difference between:
Representation Warranty Indemnity
What are the Norwegian equivalents
Handout: Representation, Warranty, Indemnity
42
REPRESENTATION, WARRANTYINDEMNITY
Representation:• Statement of fact made by one party to induce another to enter
into a contract, or to do or not do something• Different remedies in incorrect – compensation to recission
Warranty:• Promise that something is true• Liability if breach of promise• Liability subject to ordinary contract law rules, e.g:
• Remoteness• Duty to mitigate
43
REPRESENTATION, WARRANTYINDEMNITY
Indemnity:• Undertaking to meet a liability, as suffered by the indemnified
party• Can be subject to normal legal principles, but• Can be to compensate NOK/NOK if a specific situation arises, and
not subject to rules on liability for breach of contract• Like on demand guarantee• Scope depends on contract wording
44
UNDERTAKINGSCOVENANTS
Essentially the same:
Undertaking:
• To take responsibility for a task
• An obligation to do something
Covenant:
• From the French convenir: to agree
• A promise to do something
• Formal agreement
45
EFFECTIVENESS
Differing degrees of ineffectiveness of a contract:
Void Illegal Voidable Unenforceable
Handout: Degrees of Effectiveness
46
ENDING A CONTRACT
What is:
Rescission Repudiation Renunciation Cancellation Termination
Cancellation/Termination can be the same and mean what it says they mean in the contract
47
ENDING A CONTRACT
Rescission:
By agreement Abandonment Substituted contract On misrepresentation
48
ENDING A CONTRACT
Repudiation:
‘discharge by breach’
Breach justifying the innocent party, if it chooses, regard itself as absolved or discharged from further performance.
49
ENDING A CONTRACT
Renunciation:
Where one party shows an intention not to go on with the contract
Refusal to perform, by conduct or actual
50
ENDING A CONTRACT
Cancellation:
Backing out, returning both parties to the state they were in as if they had never signed the agreement
e.g. ‘cooling off’ periods in consumer contracts
51
ENDING A CONTRACT
Termination:
Stopping short of completion
Expiry: natural end
In accordance with terms
What would typically be an event of termination?
52
ENDING A CONTRACT
Other forms: Release Satisfaction Variation Waiver In accordance with terms Frustration Breach By operation of law
53
DEGREE OF EFFORT
• Best endeavours• Reasonable endeavours• Best efforts• Reasonable commercial efforts
What is the standard of effort imposed?
54
TERMINOLOGY USED
What is the difference between:
Liquidated damages Penalty clauses
Why is there focus on these under common law