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Transcript of (I)ITL-introduction to International and Comparative Law.ppt
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INTERNATIONALTRADE LAW
By Zeng Erxiu, BA, LLB, LLM, PhDLaw professor, attorney-at-law
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PREFACELearning a language is not a matter of acquiring a setof rules and building up a large vocabulary, but a
matter of using it. Thus, a students command of alanguage is judged not by how much he knows, buthow well he can perform in public.
conducted in English willnot only judge how well you can use your long-learnedEnglish, but will also improve your use of English.
Be confident in yourself!
You will make it!
Dont grudge your time after you have
spent almost ten years in learning English!
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Textbook
Ray August, International BusinessLaw: Text, Cases,and Readings, 4th
Edition, Pearson EducationInternational , 2004
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CONTENTS
I. Introduction to International andComparative Law
II. Dispute Settlement III. Trade in Goods IV. Sales
V. Transportation VI. Financing
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REQUIREMENTS
I. Preview the relevant part of thereading material,especially the relevantcases, preparing for discussion in theclassroom.[group work]
II. In the classroom, listen, take notes[no copy of ppt permitted]and speak outyour understanding of what we havestudied.
III. Enhance through reading relevantarticles.
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I. Introduction to International andComparative Law
A. What is international law?B.The making of international lawC. Sources of international lawD. The scope of international law in actual
practiceE. International personsF. The rights of individuals under international
lawG. Comparison of municipal legal systems
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A. WHAT IS INTERNATIONAL LAW?
The body of rules and norms that regulatesactivities carried on outside the legalboundaries of nations.
It regulates three international relationships:1) Those between states and states.
2) Those between states and persons.
3) Those between persons and persons.
Public international law; private internationallaw; international economic lawetc.
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Is International Law Really Law?
International law is law, becausenations and individuals regard it as law.
It is different from comity.
Comity: The practice, or courtesy,between nations of treating each otherwith goodwill and civility.
Comity is not law because countries donot regard it as something they arerequired to respect.
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B. THE MAKING OF TERNATIONAL LAW
1. No Formal Law-making Machinery
2. Basic Mechanism for CreatingInternational Law: Consensus of theinternational community.
General consent of the internationalcommunity
Particular consent of a state
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C. SOURCES OF INTERNATIONAL LAW
1. Definition: Those things which internationaltribunals rely upon in determining the content ofinternational law.
2. Authorized Sources: Article 38(1) of the Statuteof the International Court of Justice (ICJ) lists thesources which that court is permitted to use.
a. ICJ looks to: 1) International conventions;
2) International custom;
3) General principles of law.
b. In interpreting these, the ICJ may also look to:
1) Judicial decisions.
2) Teachings of publicists.
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3. Treaties and Conventions a. Definitions:
1) Treaties are agreements between one or morenations.
2) Conventions are agreements sponsored byinternational organizations.
b. Reasons for binding effect:
1) Shared sense of commitment.
2) Because one country fears that if it does notrespect its promises, other countries will not respecttheir promises.
c. Rules governing treaties: 1) Traditionally customary.
2) Now codified in the Vienna Convention on theLaw of Treaties (in force since 1980).
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Case 1-1. LEGAL STATUS OF EASTERNGREENLAND CASE
(Denmark v. Norway)
Permanent Court of International Justice, 1933.
FACTS: In formal discussions leading up to theParis Peace Talks, Denmarks Ambassador toldNorways Foreign Minister that Denmark would
not object to Norways claim to Spitzbergen ifNorway did not oppose Denmarks claim to thewhole of Greenland at the Paris Peace Talks.After consulting with his government, theNorwegian Foreign Minister told the DanishAmbassador that the Norwegian Governmentwould not make any difficulty in settling thequestion.
ISSUE: Was the oral commitment made by the
Foreign Minister binding on Norway?
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4. Custom
Definition: Rules that have been around for a longtime or which are generally accepted.
Customary rules are constantly changing.
Establishing the existence of a customary law: Mustshow two elements one behavioral and onepsychological:
1) the consistent and recurring action (or lack of action if thecustom is one of noninvolvement) by states.
2) The custom must be regarded by states observing it asone that they must obligatorily follow.
Persistent objection result in a customary rule notapplied to a state. Case 1-2
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Case 1-2. THE ASYLUM CASE(Colombia v. Peru)
International Court of Justice, 1950. FACTS: Colombia granted political asylum
in its Lima, Peru embassy to Haya de la
Torre. Peru refused to grant safe conduct toHaya de la Torre to leave the country.Colombia sued in the ICJ to obtain an orderfor the safe conduct.
ISSUE: Is Peru a party to a treaty governingasylum? Is there a customary rule ofinternational law governing asylum? MustPeru observe that rule?
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5. General Principles
General principles of law that are
common to both (or all) the stateparties to a dispute.
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D. THE SCOPE OF INTERNATIONAL LAW INACTUAL PRACTICE
1. The Practice in International Tribunals a. Municipal law is regarded as being
subservient to international law.
b. States have a general obligation to bringtheir municipal law into compliance withinternational norms.
c. Procedurally municipal law is treated as
mere fact.
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2. The Practice in Municipal Courts
International law is generally treated as
correlative.- Once a court determines that aparticular rule of international law is applicable ina particular case, that law will be treated as lawand not as a fact.
The court must determine whether or not theinternational law has been received into the localjurisprudence.
a) As for customary law: In most countries,customary international law is received inaccordance with the doctrine of incorporation.
b) As for treaties: Reception rules depend upontwo factors: (i) The nature of the treaty; and (ii)The constitutional structure of the ratifying state.
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1] The nature of treaties they may be:
a] Self-executing treaty: One that
contains a provision that says the treaty willapply in the partiesmunicipal courts withouttheir having to adopt any domestic enablinglegislation.
b] Non-self-executing treaty: One thathas no such provision.
2] The structure of states constitutionsmay assign to one or more state organs (or
branches) the responsibility for entering intotreaties.
Q: How about the application of customarylaw and treaties in our municipal court???
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Case 1-3. SEI FUJII v. STATEUnited States, Supreme Court of California, 1952.
FACTS: A California law made land
purchased by a Japanese who was
ineligible for citizenship escheat to thestate.
ISSUES: (1) Does Californias alien landlaw violate the UN Charter? (2) If it does,is the UN Charter automaticallyapplicable? (3) Does the California lawviolate the US Constitution?
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E. INTERNATIONAL PERSONS
1. States a. Definition: Political entities which have all of the
following: 1) A territory. 2) A population. 3) A governmentcapable of entering into international relations. 4) Agovernment capable of controlling its territory and peoples.
b. Kinds of states: 1) Independent states are free from the political control of
other states, and free to enter into agreements with otherinternational persons.
2) Dependent states have formally surrendered some aspectof their political and governmental functions to another state.
3) Inchoate states lack some attribute required to be treatedas a fully independent state; most commonly they lack territoryor population.
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c. Recognition:
A unilateral declaration either explicit(express) or implicit (tacit) by other states.
1) Effect: Implies that the recognized stateor government is entitled to the rights and
privileges granted by international law. 2)Two kinds of recognition:
a) Recognition of a state: Usuallygranted when an identifiable government,people, and territory first come into existence.
b) Recognition of a government: Maybe denied even if recognition of the state
continues.
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When government should be recognized?
1] Theories about when governments shouldbe recognized:
a] Declaratory doctrine: The legal existenceof a government happens automatically by
operation of law whenever a government iscapable of controlling a territory and itspeople.
b] Constitutive doctrine: A government
does not truly come into existence untilsuch time as it is recognized by other statesand participates in the international arena.
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Case 1-4. MATIMAK TRADING CO. v. KHALILYand D.A.Y. KIDS SPORTSWEAR INC.
United States, Second Circuit Court of Appeals, 1997. FACTS: Plaintiff, Matimak, a Hong Kong company,
seeks to sue Khalily and D.A.Y., two New Yorkcorporations, in a US federal court. Matimak seeks toinvoke the federal courts diversity jurisdiction in US
Code 1332(A)(2) to hear civil disputes betweencitizens of a State and citizens of a foreign state.The district court dismissed plaintiffs suit on thegrounds that it was not the citizen of a foreign State,because Hong Kong was not at the time recognized as
being a foreign state by the United States government. ISSUES: (1) Is Hong Kong a state? (2) Is Matimak a
citizen of the United Kingdom? (3) Does 1332(A)(2)allow stateless persons to sue in a US federal court?
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2] Practical considerations concerningthe recognition of governments.
a] Estrada Doctrine: To avoid anypossible connotation that recognitionalso means approval, manygovernments have adopted a policy ofnever formally recognizing othergovernments.
This policy is named after the MexicanForeign Minister who first stated it.
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d. Territorial Sovereignty: The right toexercise the functions of a state within a
territory.1) Not an absolute right?
Other states may obtain servitudes,either by treaty orpractice, to a limited use of certain territory.
a) Positive servitude: The exercise of a right-of-way.
b) Negative servitude: Prevents one state from doingsomething within its territory that causes injury to asecond state.
2) Acquiring territory: This is done either by:
a) Occupying land not claimed by another sovereign.
b) The transfer of territory from one sovereign toanother.
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Case 1-5. THE TRAIL SMELTER ARBITRATION
(United States v. Canada) Canadian-United States International Joint Commission, Arbitral Tribunal,
1938 and 1941.
FACTS: A Canadian lead and zinc smelter at Trail,British Columbia, was polluting the waters of theColumbia River that then ran into the state of
Washington. After negotiations between the US andCanada, the latter agreed to refer the matter to anInternational Joint Commission. The Commissions
Arbitral Tribunal awarded the US $350,000 in damages,
but did not order the smelter to cease operating. In1941, the US sought to have the operation of thesmelter enjoined.
ISSUE: Can Canada be enjoined from causing harm toa US river?
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e. Changes in Territorial Sovereignty.
1) Consequences as to treaty rights and obligations:
Successor states must observe: a) Treaties which implement general rules of
international law.
b)Dispositivetreaties: Treaties concerned withrights over territory, such as boundaries andservitudes.
2) Nationals of a territory that is acquired by asuccessor state will keep the nationality of thepredecessor state unless a different result is agreed
to in a treaty of cession or by municipal legislation. 3)Public property located within a territory becomes
the property of the successor state, while propertylocated in third states belongs to whichevergovernment the third state recognizes.
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Case 1-6. ARAB REPUBL IC OF SYRIA v.
ARAB REPUBLIC OF EGYPT
Brazi l , Sup reme Cou rt, 1992.
FACTS: After Syr ia and Egypt m erged to form the
United A rab Republic (UAR) in 1958, Syria turned
over i ts embassy in B razi l to the UAR. Fol low ing the
dissolut ion of th e UAR in 1961, the Egypt ian d iplomatwho had been the UARs last ambassador to Brazil
refused to return the embassy to Syria. In 1981, the
Syr ian ambassador in Brazi l brought su i t in the
Brazi l ian Supreme Cou rt seeking an order to requireEgypt to tu rn over the embassy prop erty to Syr ia.
ISSUES: (1) Does th is d isp ute inv olv e state
succession ? (2) If so, is i t a matter for a mun icipal
cou rt to decide?
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4)Private property rights of
individuals do not lapse because of achange in government.
5)A successor state is bound by the
private contractual obligations of itspredecessors.
6) A successor that acquires partor all of a territory is proportionatelyresponsible for the territorys nationaldebt.
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2. International Organizations
a. Intergovernmental Organizations (IGOs). 1) Defined: Permanent organizations set up
by two or more states to carry on activitiesof common interest.
2) Characteristics common to IGOs: a) They are created by two or more
states.
b) They are meant to pursue interests
common to their creators. c) They function autonomously as
independent international persons.
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3) Creation: Created much in the fashion of acorporation.
a) Charter or constituent instrument, sets outits aims and objectives, internal structure,resources, and express powers. Example:United Nations Charter.
4) Legal capacity: Includes the capacity tocarry on diplomatic relations with a state or tosue or be sued in an international or municipal
court. a) Acquired by recognition 1] from its own state members: automatically.
2] from non-member states: specificallycertified.
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Case 1-7. ARAB MONETARY FUND v.
HASHIM and o thers (No. 3)
Eng land, High Cou rt, Chancery Divisio n, 1990.
FACTS: The A rab Monetary Fund was
created by a group of A rab states as an
intergovernm ental org anizat ion w ith an
independent juridical personality and ... inparticular, the right to ... litigate. A decreeissu ed in the United Arab Em irates gave
the Agreement the force of law through the
UAE. The AMF sued the defendantsal leging that they had m isappro pr iated
AMF funds . The defendants asked to have
the sui t dism issed, argu ing that the AMF
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had no legal personal i ty in Eng land
and , therefore, could not b r ing sui t
there. England had not fo rmal ly
recogn ized the AMF.
ISSUES:(1) If the governments that
created an IGO are recognized , mus tthe IGO be separately recogn ized? (2)
May an ent i ty, which is no t recogn ized
as an IGO, be treated as an o rd inary
ju r id ical en t i ty (and therefo re be
subject to the jur isd ic t ion of a foreign
court)?
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5) Examples:
a) The United Nations (UN).http://www.un.org/english/ b) The European Union (EU).
(http://europa.eu.int/index_en.htm)
1] Supernational powers: Within itsscope of applicability, community law issuperior to the laws of the member states.
a] Member states are required to bring
their internal laws into compliance with EUlaws.
b] EU law is directly effective withinthe member states.
http://localhost/var/www/apps/conversion/tmp/scratch_6/%E7%BD%91%E9%A1%B5/United%20Nations.htmhttp://localhost/var/www/apps/conversion/tmp/scratch_6/%E7%BD%91%E9%A1%B5/EUROPA%20-%20Gateway%20to%20the%20European%20Union.htmhttp://localhost/var/www/apps/conversion/tmp/scratch_6/%E7%BD%91%E9%A1%B5/EUROPA%20-%20Gateway%20to%20the%20European%20Union.htmhttp://localhost/var/www/apps/conversion/tmp/scratch_6/%E7%BD%91%E9%A1%B5/United%20Nations.htm -
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Case 1-8. EUNOMIA DI PORRO & CO. v. ITALIANMINISTRY OF EDUCATION
European Communities, Court of Justice, 1971. FACTS: Italy collected an export tax on a painting
Eunomia de Porro exported from Italy (an EC memberstate) to Germany (also an EC member state).Previously the EC Court of Justice had held that Italywas in default of its obligations under Art. 16 of theEEC Treaty, which required it to abolish export dutiesbetween member states. When Eunomia de Porrosued to get its tax payment back, the Italian trial court
referred the matter to the EC Court, asking it todetermine if Art. 16 were directly effective in Italy.
ISSUE: Is Art. 16 directly effective?
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2] EU institutions:
a] European Commission
b] Council of the European Union
c] European Parliament
d] European Economic and Social Council
e] Committee of regionsf] European Court of First Instance
g] European Court of Justice
h] European Central Bank.
i] European Court of Auditors
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c) Other Intergovernmental Organizations
1] General Intergovernmental Organizations
a] African Union ( http://www.africa-union.org/root/au/AboutAu/au_in_a_nutshell_en.htm )
b] Council of Europe ( http://www.coe.int/ )
c] Organization of American States
( http://www.oas.org/main/english/ ) 2] Specialized Intergovernmental Organizations
a] Customs Unions: e.g., European Union
b] Free Trade Areas: e.g., North American FreeTrade Area (NAFTA)
c] Economic Consultative Associations : e.g.,Organization for Economic Cooperation andDevelopment (OECD)
http://localhost/var/www/apps/conversion/tmp/scratch_6/%E7%BD%91%E9%A1%B5/AFRICAN%20UNION%20IN%20A%20NUTSHELL.dochttp://www.africa-union.org/root/au/AboutAu/au_in_a_nutshell_en.htmhttp://www.africa-union.org/root/au/AboutAu/au_in_a_nutshell_en.htmhttp://localhost/var/www/apps/conversion/tmp/scratch_6/%E7%BD%91%E9%A1%B5/Council%20of%20Europe.htmhttp://localhost/var/www/apps/conversion/tmp/scratch_6/%E7%BD%91%E9%A1%B5/Organization%20of%20American%20States%20-%20OAS.htmhttp://localhost/var/www/apps/conversion/tmp/scratch_6/%E7%BD%91%E9%A1%B5/Organization%20of%20American%20States%20-%20OAS.htmhttp://localhost/var/www/apps/conversion/tmp/scratch_6/%E7%BD%91%E9%A1%B5/Council%20of%20Europe.htmhttp://www.africa-union.org/root/au/AboutAu/au_in_a_nutshell_en.htmhttp://www.africa-union.org/root/au/AboutAu/au_in_a_nutshell_en.htmhttp://www.africa-union.org/root/au/AboutAu/au_in_a_nutshell_en.htmhttp://localhost/var/www/apps/conversion/tmp/scratch_6/%E7%BD%91%E9%A1%B5/AFRICAN%20UNION%20IN%20A%20NUTSHELL.doc -
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b. Nongovernmental Organizations
(NGOs). 1) Nonprofit NGOs serve as
coordinating agencies for private
national groups in international affairs. 2) For-profit NGOs (transnational
corporations (TNCs) or multinational
enterprises (MNEs)) are businessesoperating branches or subsidiaries orjoint ventures in two or more countries.
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1. Traditional view: Individuals traditionallyhave no rights only duties underinternational law.
a. Law of State Responsibility allows astate to seek compensation for one of itsinjured nationals.
F. THE RIGHTS OF INDIVIDUALS UNDER
INTERNATIONAL LAW
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2. A contemporary and still
evolving view: Individuals do havethe ability to exercise the rights of aninternational person.
a. Individuals have basic humanrights.
b. Individuals may sue states in some
international tribunals.
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G. COMPARISON OF MUNICIPALLEGAL SYSTEMS
1. Comparative Law: The study andanalysis of the different municipal lawsystems.
a. Legal families:
1) Romano-Germanic Civil Law. 2) Anglo-American Common Law. 3) Islamic Law. b. These are divided into subfamilies.
c. There are also hybrids. d. There are also some practices that are
unique to a particular country.
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2. The Romano-Germanic Civil Law System
a. Oldest and most influential of the legal families.
b. Sources include: 1) Corpus Jur is Civi l is(The Body of Civil Law) of
Roman Emperor Justinian completed around 534 AD.
2) Canon law: the church law of the medieval Roman
Catholic Church. 3) Jus commune: laws based on Roman law, canon
law, and the interpretations of glossators andcommentators, and common to Europe at thebeginning of the Renaissance.
4) Lex mercatoria: common commercial rules andprocedures used throughout Europe in theRenaissance.
5) National codes: seventeenth century nationalismled to the writing of national legal codes in Europe.
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c. Most influential national codes:
1) French Civil Code (Code Napoleon) of 1804.
a) First modern code. b) Underlying principles taken from the French
Revolution:1] The right to possess private property. 2] The freedom to contract.
3] The autonomy of the patriarchal family.
c) Organized structurally in much the samefashion as the Justinian Code.
1] Many of its provisions were taken from:
a] Jus commune.
b] French royal ordinances.
c] Academic writings.
d] Customary law.
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d) Differences from the German Code:
1] Written in a short period of time. 2] Its style and form are one that is
straightforward, easy to read, andunderstandable to everyone.
e) It contains flexible general rulesrather than detailed provisions.
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2) German Civil Code of 1896.
a) Reason it was not enacted until 1896:
1] Germany first had to become a nation. 2] Scholars known as Pandectistsspent
years doing preliminary studies and drafting
the code. b) Characteristics of the German Code:
1] Incredibly precise and technical.
2] Special terminology is used. c) Differences from the French Code: It
is meant exclusively for the use oftrained experts (not lay readers).
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d. Countries with Civil Law systems
distinguish between the civil law andpublic law.
1) Public law evolved separately from themovement for codification of civil or private
law.
a) Civil law (for civilian lawyers) is only the lawcontained in the codes and its auxiliary statutes (that
is, the law of persons, family law, property law,succession law, the law of obligations, commercial law,labor law, and criminal law).
b) Public law is constitutional andadministrative law
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2) Public law is treated in a variety ofways in the civil law countries.
a) Many civilian lawyers regardconstitutional law as a form of politicalscience.
b) Germany has a branch of administrativecourts to review the acts of its governmentagencies.
c) France created a Council of State toprotect individual rights and supervise theadministrative processes of government.
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e. Changes in the twentieth century.
1) A movement away from relying only onthe civil code.
2) Special legislation and judicialinterpretations have become more influential.
3) With the advent of European Union, thereis now a movement toward harmonizing thelaws of the Unions member states.
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Case 1-10. RAULIN v. FISCHER England, King's Bench, 1911.
FACTS: Ms. Fischer, while recklessly riding a horse inParis, collided with Monsieur Raulin, seriously injuringhim. A French trial court heard a criminal complaintbrought by a procurator. At that proceeding, Raulin, thevictim, intervened in the proceeding as he was allowed
to do by the French Code of Civi l Procedure, and askedfor damages. The court convicted Fischer of criminalnegligence and imposed a sentence of one month inprison and a fine of 100 francs. Following experttestimony, the court also awarded Raulin 15,000 francs
in damages and 917 francs in costs. Raulin laterbrought suit in England to enforce his French judgment.
ISSUE: Should a common law court refuse torecognize an award of civil damages handed down bya civil law criminal court?
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3. The Anglo-American Common Law System
a. Historical origins:
1) In 1066, the Normans conquered Englandand William the Conqueror began to centralizethe governmental administration of his new
kingdom. 2) The name common lawis derived from
the theory that the kings courts representedthe common custom of the realm, as opposed
to the local customary law practiced in thecounty and manorial courts.
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3) The development of the principles of thecommon law were largely the product of three
courts created by Henry II (1133-1189): a) Court of Exchequer, which settled tax disputes.
b) Court of Common Pleas, which dealt with mattersthat did not involve a direct interest of the king, such
as title to land, enforcement of promises, and paymentof debts.
c) Court of Kings Bench which handled cases of adirect royal interest, such as the issuance ofwrits
(written decrees) to control unruly public officials. Eventually, the jurisdiction of the Kings Bench was
used to control abuses of power by the king himself,establishing a fundamental doctrine of the common
law: the supremacy of the law.
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4) These courts were important in
developing case law the commonlaw practice of using the decisions ofcourts (precedents) as a source of law.
a) This is the principal factor thatdistinguishes the common law fromthe Romano-Germanic civil law.
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b. The common lawmust bedistinguished from the law whichevolved out of:
1) Equity: A principle of justicedeveloped by the kings chaplain, orchancellor, to provide parties with aremedy when none was available in thekings courts.
2) Admiralty (the laws governingsailors) and other specialized
jurisdictions.
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c. The common laws distribution around theworld is different from the way in which the
civil law was distributed. 1) The principal nations that use the common
law (Australia, Canada, India, Ireland, NewZealand, and the United States) have a directpolitical and historical linkage to England.
a) The common law is not easily received byother countries because:
1] It is based on a matrix of case law and statutes. 2] It uses the jury system and the doctrine of
supremacy to limit the actions of the government.
3] It uses a complex terminology.
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2) The civil law countries (most of therest of the World) are not connected byany political or historical connection.
a) The civil law is widespread becauseit is the easier of the two legal traditions
for a country to receive.
1] It is encapsulated in convenientcodes.
2] It deals primarily with private lawthat is of little threat to the local politicalsystem.
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4. The Islamic Law System
a. Known as Sharia.
b. Sources in the order of their importance:
1) The Koran.
2) The Sunnahor decisions and sayings of
the Prophet Muhammad. 3) The writings of Islamic scholars who
derived rules by analogy from the principles
established in theKoran
and theSunnah
. 4) The consensus of the legal community.
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c. History.
1) In the tenth century AD (third century H),
the Islamic legal community decided thatfurther improvement of the scholarsanalysisof divine law was impossible.
a) The legal community closed the door of
ijtihad(independent reasoning).
1] This froze the evolution of Islamic law in time.
2] Sharia judges and scholars may only apply thelaw as it was set down by the early writers.
2) Recently some have advocated reopeningthe door ofi j t ihad, but this has beenvehemently opposed by Islamic
fundamentalists.
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d. Note that the Sharia is primarily amoral code.
1) It is principally concerned with ethics.
a) In this respect, it contains manyprinciples in common with the civil lawand the common law.
2) It is much less concerned withpromoting commerce and internationalrelations than the secular legal systems.
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Case 1-11. - LIBYAN AMERICAN OILCOMPANY (LIAMCO) v. GOVERNMENT OFTHE LIBYAN ARAB REPUBLIC
Dr. Sobhi Mahmassani, Sole Arbitrator, 1977.
FACTS: The Libyan American Oil Companys(LIAMCOs) oil concessions in Libya were nationalizedin 1973. When no compensation was received(despite promises), LIAMCO took the matter toarbitration, seeking compensation for its lostproperties. Libya, meanwhile, informed all itsconcessionaires that it rejected arbitration as anaffront to its sovereignty and it refused to participatein this proceeding.
ISSUE: Is a sovereign bound by its contractualcommitments?