Download Legal English: Common Law, English Courts, and EU Framework and more Schemes and Mind Maps Roman Law in PDF only on Docsity!
An Overview of Legal English:
Exploring the Common Law
System, the English Judicial
System, and the EU Legal
Framework
Common Law Legal System and Legal
Language
A common law legal system can be found mostly in English-speaking countries, such as the USA (except for Louisiana), Australia, Canada (excluding Quebec), New Zealand, Ireland, and some other non-European countries like India or certain Muslim countries. These countries were formerly either colonized or under the dominion of Britain for a certain period of time.
The common law legal family is altogether different in its characteristics from the Romano-Germanic family (of legal system), which developed based on Roman "ius civile." In the Romano-Germanic system, the rules are conceived as rules of conduct linked to ideas of justice and morality, and the task of formulating these rules falls principally to legal scholars.
In contrast, the common law system was formed primarily by the decisions of the judges who resolved disputes. It is very pragmatic and aims to resolve a dispute or find a solution to a trial rather than provide a general rule of conduct for the future. The common law, in its origins, was made up of a number of procedures, called "forms of action." It was important for the litigants to select the correct form of action or writ and then to convince the court that it had jurisdiction to hear the case and follow the appropriate procedure for a judgment and solution.
The circumstances in which the common law developed have influenced English law in several ways: 1. Matters of procedure remain of great importance. 2. Many of the concepts and categories of English law have been formed by the earlier system. 3. There is no distinction between public and private law in English law. 4. The development of the common law inhibited the adoption of Roman law categories and concepts.
The English Legal System
Although Britain is a unitary state, it does not have a single legal system. Instead, England and Wales, Scotland, and Northern Ireland each have their own legal system with considerable differences in law, organization, and practice.
The main formal sources of English law are:
Common Law
Common law arose out of the intent of the Normans to centralize government. Up to that time, the law had been administered at the local level following local customs. In the past, there were few forms of written law, and gradually, the decisions of the judges came to be written down and used by other judges as evidence of the law.
Equity
Equity is a "gloss" on the common law. If the common law failed to give a fair solution to a legal dispute, equity acted as a system to correct any injustice. The distinction between common law and equity remains today because equity still prevails over common law when there is a conflict between their rules; most equitable remedies are discretionary.
Statute Law or Legislation
Statute law consists of rules that are formally enacted by a body with the constitutional power to do so, the Parliament. The idea that legislation in English law is a source of only secondary importance should be laid to rest, as public health, education, transport, the Welfare State, and other areas of public life are mostly regulated by statute law.
European Law
Since the UK's membership in the EU (1972), Britain has had to apply laws enacted and judicial decisions taken outside the UK. The British government can refuse to put a Community regulation into effect only if it can show that the regulation is contrary to Community law.
Custom
Custom is still active in a limited manner. The main impact of the common law was to establish a body of general principles incorporating the many local customs to be applied uniformly throughout the country.
Law Reports and Books of Authority
Law reports contain the reports of decisions of the superior courts, which constitute binding precedents for the lower courts. As the doctrine of precedent is central to the English legal system, lawyers need to refer to the law reports when citing a case. The term "law reports" includes a number of different reports published by private companies and various newspapers and journals.
Most US citizens' contact with a court system is with state courts, as these are the courts that have been given the power to hear many, if not most, of the matters that affect people's daily lives (e.g., divorce, contracts). State courts have the power to decide nearly every type of case, subject only to the limits of the US Constitution, their own state constitution, and statutes.
Most state court systems are made up of two sets of trial courts: trial courts of limited jurisdiction, which deal with only specific types of cases (e.g., family court); and trial courts of general jurisdiction, which hear cases outside the jurisdiction of the trial courts of limited jurisdiction, involving both civil and criminal cases. There are also intermediate Appellate courts and Highest State Courts (such as Supreme Courts).
Federal and state courts have concurrent jurisdiction over certain matters, such as crimes involving drugs.
The European Union
The EEC treaty was signed in Rome in 1957 and aimed to achieve integration via trade with a view to economic expansion. After the Treaty of Maastricht, the EEC became the European Community.
The primary EC legislation consists of three treaties that established the communities and are directly applicable in the member states. The secondary EC legislation consists of regulations, decisions, directives, recommendations, and opinions of the Council of Ministers or the Commission. Recommendations and opinions are not directly applicable in member states, and the same applies to directives (although they can sometimes produce direct legal effects).
The Validity and Hierarchy of European Union
Legislation
Primary and Secondary EU Legislation
The validity of primary EU legislation, such as the Treaties, is not subject to review by national courts or the European Court of Justice. The validity of secondary EU legislation, such as regulations and directives, can be challenged in both national courts and the European Court of Justice.
The Treaties of Rome and the Establishment of the
European Economic Community (EEC)
The Treaties of Rome were signed in March 1957, establishing the EEC and the European Atomic Energy Community (EUROATOM). The establishment of the EEC and the creation of the common market had two objectives: To transform the conditions of trade. To see the EEC as a step towards the closer unification of Europe.
The Four Freedoms and the Common Market
The common market is founded on the "four freedoms": the free movement of persons, services, goods, and capital. The common market creates a single economic area and establishes free competition between undertakings. The EEC treaty abolished quotas and customs duties between member states and established a common external tariff.
The Maastricht Treaty and the European Union
The Maastricht Treaty on political union established the European Union (EU). The aims of the Union include the promotion of economic and social progress, the creation of an area without internal frontiers, the introduction of a single currency, and cooperation on issues such as asylum, immigration, drugs, and terrorism. The Union must also respect the European Convention on Human Rights.
The Principle of Subsidiarity
Article 2b of the Maastricht Treaty introduced the principle of subsidiarity, which states that the Union does not take action unless it is more effective than action taken at the national, regional, or local level.
The Institutions of the European Community
The main institutions of the European Community are the Council, the Commission, and the European Parliament. The Council prepares the standards, the Commission drafts the proposals, and the Parliament plays an advisory role. The treaty also provides for the creation of the Court of Justice.
The Administration of Justice in the United
Kingdom
The UK Judicial System
The UK courts make a distinction between the High Court, inferior courts, and quasi-judicial bodies such as tribunals. Magistrate Courts hear less serious criminal cases and have significant jurisdiction in civil matters relating to domestic issues and statutory debt collection. Country Courts have jurisdiction in smaller civil cases and are presided over by a circuit judge. The Crown Court is a criminal court of first instance jurisdiction that deals with more serious criminal cases.
Actions for failure to act: Complaints can be lodged with the Court regarding the failure of member states or EU institutions to act.
Composition and Procedures of the Court of Justice
The Court of Justice is composed of one judge per member state, appointed by the governments for a term of six years. The Court also has eight Advocates General who assist the Court by providing opinions on how cases should be decided. Cases are submitted to the registry, and a specific judge and Advocate General are assigned to each case. The procedure involves a written and an oral phase.
Access to the Court of Justice
Individuals can gain access to the Court of Justice or the Court of First Instance directly or indirectly through national courts. Individuals cannot bring an action against another person or a member state directly before the EU courts.
The Impact of EU Law on Citizens
Community law has a direct impact on the various activities of ordinary citizens, as many national laws are based on EU law. The Court of Justice's interpretations of EU law are legally binding, and national courts are obliged to follow those rulings.
The Court of First Instance
Jurisdiction and Responsibilities
The Court of First Instance deals with the following types of actions:
Actions brought by member states against the Commission and certain acts of the Council. Actions referred to it by natural or legal persons against decisions or omissions of the Community institutions. The Court is responsible for giving rulings on certain kinds of cases.
The Civil Service Tribunal resolves disputes between the European institutions and their employees.
Composition and Structure
The Court of First Instance is composed of one judge per member state, appointed by the member states' governments for a term of 6 years. The Court does not have permanent advocate-generals. The judges are completely independent and impartial.
The administration of the Court is managed by a registrar who exercises the function of secretary-general under the direction of the president of the court, which consists of various departments.
Proceedings and Judgments
The Court of First Instance has jurisdiction to hear, for example, direct actions brought by natural or legal persons against acts of Community institutions, actions brought by member states against the Commission, and actions relating to Community trade marks.
Rulings made by the Court of First Instance may, within 2 months, be subject to an appeal to the Court of Justice, limited to questions of law.
The proceedings generally include a written and oral phase. Any person who can prove an interest in the outcome of a case before the Court, as well as the member states and Community institutions, may intervene in the proceedings. The judgment is delivered at a public hearing.
The Court can also rule quickly on the substance of the dispute in cases considered to be particularly urgent.
An individual may directly contest a decision taken by Community institutions before the Court of First Instance.
The Legal Profession
Solicitors and Barristers
Solicitors and barristers are the two branches of the legal profession in Britain. Solicitors offer skilled advice on all kinds of legal matters and represent their clients in court, mostly in the lower courts. Most solicitors are in private practice.
Barristers act on instruction from solicitors and have little or no direct contact with the public. They perform two main roles: providing opinions on complex matters of law when specialist expertise is needed, and providing a specialist advocacy service in the higher courts when clients require representation.
The Changing Landscape
The division between the two legal professions is gradually melting away.
Funding the Legal System
Approximately 20% of the cost of justice is covered by the state (e.g., taxpayers). The legal aid system provides free legal services to individuals unable to pay for them.
Environmental Legislation
A key concept in environmental legislation is the goal of "sustainable development": economic growth that does not cause irreparable damage to the environment, balancing economic requirements and ecological concerns.
There are differing views on the relationship between free trade and environmental protection. Some believe free trade will lead to environmental degradation, while others think growth through trade offers the best opportunity for environmental protection.
The EU's environmental policy, as outlined in the consolidated version of the Treaty, aims to preserve, protect, and improve the quality of the environment and protect human health. It focuses on the careful and rational use of natural resources, based on the precautionary, preventive action, and "polluter pays" principles.
Antitrust Legislation
Antitrust laws or competition laws prohibit anti-competitive behavior and unfair business practices. The term "anti-trust" derives from US law, while other countries use the term "competition laws," such as the EU's competition law.
The primary competence for applying EU competition law is the European Commission, but a decentralized regime for antitrust came into force in 2004 to increase the application of EU competition law by national competition authorities and national courts.
Article 81 (Collusion)
Article 81 prohibits all agreements between undertakings, decisions by associations of undertakings, and concerted practices that may affect trade between member states by restricting or distorting competition within the common market. There must be evidence that the action has distorted competition within the EU.
Article 81 may be declared inapplicable in the case of practices that are beneficial to customers. The Commission has also agreed to exempt "Agreements of Minor Importance" and introduced a collection of block exemptions for different types of contracts.
Article 82 (Abuse of Dominant Position)
Article 82 is aimed at preventing companies that hold a dominant position in a market from abusing that position to the detriment of consumers, such as by limiting production, markets, or technical development to the prejudice of consumers.
International Contracts
The parties to the contract are an Italian corporation, referred to as ABC, and a Dutch corporation, referred to as XYZ. The contract regulates a link from ABC's to XYZ's website and the sharing of the advertising revenues from this link.
The contract includes the following key elements:
Confidentiality: Statements that a party gives certain assurances to the other and on which the other party may rely. Termination: Provisions related to the termination of the contract. Miscellaneous Provisions: Standard "boilerplate" clauses that provide the mechanics of how the agreement is to operate, such as notice, force majeure, and assignment.
Any communication concerning the agreement can be made in writing and delivered in person, sent by first-class mail, or sent by electronic means (e.g., fax).
Mediation
Mediation as a Negotiated Settlement
Mediation is a negotiated settlement process conducted and concluded with the assistance of a neutral third-party. Most commercial disputes are amenable to mediation, as it allows the parties to preserve or renew their commercial relationship, and it is likely to be a shorter process than either litigation or arbitration.
Commencing the Mediation
Mediation is an entirely consensual process, where the parties have either agreed to mediation in their contract or are in the course of litigation or arbitration. The process should be as flexible as possible, and parties often find it helpful to have the framework provided by a set of established procedures.
The parties are free to select the mediator, and they are also free to commence or continue arbitration or judicial proceedings.
Concluding the Mediation
The mediation will conclude when either:
A settlement agreement is signed by the parties The parties advise the mediator that a settlement cannot be reached The mediator advises the parties that the mediation process will not resolve the issues The agreed time limit for mediation has expired, and the parties have not agreed to extend it
international level to guarantee this autonomy, such as the introduction of the UNCITRAL, which has been adopted by many countries and incorporated into their legislation, leading to a gradual reduction of disparities.
The leading theme in the arbitration reforms introduced in many countries in the last few decades has been the tendency to reduce interference with the arbitral proceedings by the state courts. In a context of independence from national courts, the assistance of a competent institution and a well- defined framework of procedural rules can be seen as a guarantee that the whole process is carried out correctly. The first set of procedural rules for use in international arbitration were introduced by UNCITRAL in 1976 and have been a source of inspiration for all sets of arbitration rules worldwide.
