English for Lawyers 4

English for Lawyers 4

Lecturer: Miljen Matijaševiće-mail: [email protected]

Session 1, 27 Feb 2013

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

http://www.pravo.hr/sj

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


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


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


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


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)

Documents

English for Lawyers 4