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Ulla Terese Kræmer BUSINESS LAW [email protected]

Mak. lektion 1 eng

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Ulla Terese KræmerBUSINESS LAW ulkr@easj .dk

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Markedsføringsøkonomi | Erhvervsret2

Legislation In a democratic society, legislation are the most important source.

The Danish Constitution (Grundloven) The rules regarding the relations between the:

Parliament Government royal family

Courts And civil rights

Complex amendment procedure

DANISH SOURCES OF LAW

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Legislation on everything With the limitations by the Constitution and international obligations

legislation reflects the society

Process on legislation Government introduce bills

Simple majority in the parliament Three readings

Signed by the monarch Published in the Danish Law Gazette

Applies to all and everyone – irrespective of people’s knowledge of the relevant law!

STATUTES

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because the law itself can not contain all the details, it is up to the (relevant) ministry to determine the details

Delegation of the power to legislate

Executive orders are like laws, they apply to all and everyone

EXECUTIVE ORDERS ETC.

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circulars used as a "tool" for the superior authority to guide subordinate authorities in how the law should be administered

Other names: Directions – rules and regulations – bylaws – notice

No democratic legitimacy – no obligations or burdens on citizens – and the citizens cannot base a claim on a circular

CIRCULARS ETC.

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Expansive interpretation : The law are being used beyond its wording

Narrow interpretation : the rule should not be applied, although after its wording it could.

Analogy: Very rare – e.g. family law rules used on cohabiting couples

Non-mandatory: used especially in business life, as it is believed that the concerned parties are equally strong

Mandatory: Public law and areas of the law where one party is believed to be considerably weaker than the other.

Lex superior: Highest levelLex specialis: The more specifi c act supersede the more general Lex posterior: The youngest act takes precedence over the older

INTERPRETATION OF THE LAW

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Equality under the law

Important that those who make the decisions know about the decisions that have been made by others.

But, rulings tend to lose their value as legal sources.

Remember the legal hierarchy.

CASE LAW ETC.

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Customs Legal custom – not often used (because of the democratic legitimacy) Usages i.e. trade usages which precede non-mandatory law in commercial

Legal literature Very limited value as a legal source (because of the democratic legitimacy)

Nature of the case Reasonableness – in harmony with the current state of the law in related areas and

act as a guidance for similar cases in the future.

preparatory legislative

OTHER SOURCES OF LAW

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No common basic law or system of courts with international adjudication

Intergoverernmental agreementSovereign states entering into agreement with each other.

Treaty – convention – covernant or agreement

EUEuropean Parliament – directly elected by the citizens of their member

state – between six and 96 seats for each member state,The European Council – The member states’ heads of governments

The European Commission – Now: one commissioner – 2014 rotation between the member states.

INTERNATIONAL SOURCES OF LAW

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Supra-national cooperation

Can make laws which apply to the Member States by regulations or directives

Regulations: Like national acts regulations are directly applicable to all and everone – used when the EU wants to ensure that the rules are completely identical in all Member States.

Directives: Not laws enforce in the Member States, but the Member States are committed to implement the rule of the directives into their national legislation within a given period, Similar rules.

EU SOURCES OF LAW

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To avoid situations in which a weaker party abandons his rights and the stronger party takes the law into his own hands, all nations have set up a framework for

confl ict resolutions.

Independence

Distr ict Courts The High Court

The Supreme Court The Marit ime and Commercial Court

The Land Registration Court The Special Court of Indictment and Revision (den særl ige klageret)

The Labour Court Civi l and Publ ic Servants Courts (thenestemansretterne)

The Court of Impeachment (Rigsretten)

Only possible to appeal one time

The law is called: “The Danish Administration of Justice Act”

THE COURT SYSTEM

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(In general) All Danish cases begin life in a district court of first instance.

24 judicial districts

civil justice Housing tribunal (boligretten)

Crimnal court (sometimes jurors) Probate Court (Skifteretten)

The Bailiff ’s Court (fogedretten) Notary’s offi ce

DISTRICT COURTS

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High CourtTwo: Viborg (Jutland) and Copenhagen

The Supreme CourtCopenhagen

Hears cases of general public interest or similar cases, including cases from the The Maritime and Commercial Courtan Appeal Permission Board determine whether a case is of

general public interest or not.

HIGH COURT AND SUPREME COURT

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Commercials cases require specialist expertise

1. Intellectual property cases, including cases regading Community trademarks and Community design

2. Cases in which expertise is of major importance, e.g. employment law3. Consumer ombudsman is a party to the case – Marketing Practices4. Competition law5. Maritime cases6. Bankruptcy law from the courts of Copenhagen, Frederiksberg, Glostrup and Lyngby

The highlighted: MustThe others: Could

What are advantages of choosing the Maritime and Commercial Court?

THE MARITIME AND COMMERCIAL COURT

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The land registration court

Land registretion Marriage settlements (personbogen) Cars and co-owned dwellings

The Special Court of indictment and Revisuion

No appeal Reopening of criminal cases Exclusions/disciplinary cases (judges – court jurists

THE LAND REGISTRATION COURTTHE SPECIAL COURT OF INDICTMENT AND REVISION

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The labour Court Cases concerning breaches and interpretations of labour agreements See chapter 17

Cilvil and Public Servants courts No appeal (Special employment manner - is not used as often - as before)

The Court of Impeachment (Rigsretten)

Cases regarding possible misconduct of ministers

THE LABOUR COURTCIVIL AND PUBLIC SERVANTS COURTS

THE COURT OF IMPEACHMENT

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Complaints Boards

You wil have to distinguish between ”within or without” the public administrations

Within: Assumed that a complaint has been logged before the case is brought before a court.

Without: Can be used instead of courts

Complaints Boards are not able to hear testimonies from witnesses. Written case presentation The counterpart is usually not required to comply with a decision from a Complaints Board

(they normally do) The parties wil l not speak under incur criminal l iabil ity – because the board president it is not

function as a judges

ALTERNATIVES TO THE COURTSCOMPLAINTS BOARDS

Important: Remeber deadlines

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Resolving the confl ict in a more private forum Based on an agreement Great freedom of choice in this area, but you could also agree to follow the rules of the

Arbitration Act – non-mandatory. An arbitration agreement will normaly exclude courts to hear the case – no appeal May hear witnesses – but! In case of false evidence – not accused of perjury (l ike in a

court) Based more on considerations of fairness than on what is legally correct Closed to the public

Court based and non-court based mediation Mediation: Do not lead to a legal decision Court based mediation: New judge – provide assistance to the parties attempt to reach a

solution

ARBITRATION AND COURT BASED AND NON-COURT BASED MEDIATION

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Before you initiates a legal proceeding – try to make a

conciliation

It does not mean that you would not be able to win the case - but means that you are thinking clever

MAKE A CONCILIATION (FORLIG)

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Subject-matter jurisdiction– not of great practical importance – all ordinary cases may commence in the District Court

Territorial jurisdictions (the location) Main rule: Home venue for persons/legal persons (place of business)

Alternative venues (can be used) Already tried before a central authority – home venue citizen Real estate: Location of the estate Contractual relationships: where the commitent of the particular matter was or should have

been met Legal wrongs (compensation claims): Where the legal wrongs were committed Consumer contracts (door-to-door sales, tele-shopping, internet sales): Consumers home

venue Agreement: The most important alternative venue - this question should always be treated

in the process of formation of contracts

BASIC PRINCIPLES OF PROCEDURAL LAWVENUE

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To initiate a lawsuit – you wil have to fi ll in a ”Writ of summons”

Plaintiff (sagsøger) Defendant (sagsøgte)

Name/adress of the partiesWhich courtThe plaintiff ’s statement of claimStatement of the factual and legal circumstancesSpecifi cation of the relevant documents and enclosed ducuments

WRIT OF SUMMONS

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Service of the writ of summons (forkyndelse) to the defendant)

Below DKK 50.000 The judge ensures is ”cut” fairly – points to be proved and the evidence needed

Over DKK 50.000 (writ of summons) statement of defence

case summrary: Assertion, particulars of the case, submissions and list of documents Preliminary hearing (maybe by phone)

If necessary an expert’s opinion Case summary

The defendant must reply to the plaintiff ’s statement of claim – in time – otherwise he might be sentenced by default

PREPARING THE CASE

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1. The parties sets up their claims

2. The plaintiff opens the case by presenting the objective facts of the case

1. What is agreed – what are the controversy about

3. Production of evidence: Party evidence – examination of witnesses - questions for the expert

4. Closing statements5. Advisory opinion – Used as a basis for a settlement

MAIN HEARING

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Everyone is entitled to have their case tried a second time by a higher court

A lower threshold (bagatelgrænse) – DKK 10,000 only be brought before the High Court with permission of the Appeals Permission Board (second tier grant)

Note the deadline: four weeks from the judgement are delivered

An appeal does not have an automatic delaying eff ect – BUT, an appeal before two weeks, the judgment debtor can put off the payment until the appellate instance have delivered its judgment

APPEAL

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Interlocutory appeal

Procedural rulings : closed doors to the publ ic – specifi c evidence should be omitted – witness relevant ect.

As a general rule the administration of justice is public

A party/the press: may request an Interlocutory appeal Interlocutory appeal periode: Two weeks

Reopening of a case

Sentenced by default: Entit led to have his case reopned. His right within four weeks – his possibility within a year.

INTERLOCUTORY APPEALREOPENING OF A CASE

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The cost of pursuing a lawsuite

Costly – the reason the rules regarding small claims procedure.

The award of legal costs The party who lost the lawsuit

Sometimes not the full costs – or not pay at all

Amounts below DKK 10,000 or less cannot be appealed separately to the High Court The amount of legal cost which the courts may award – are a Interlocutory appeal

Not the winners actual costs – but a amount the court belive is reasonable. So even if you do win a lawsuit, you will stil l be left with uncovered lawyer’s fees.

THE COST OF PURSUING A LAWSUITTHE AWARD OF LEGAL COSTS

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Free legal aid Disqualifi cations – custody – complaints, sustained in total of in part 1) Persons with l imited fi nancial resources (DKK 280,000) and 2) not evident that the

person is going to lose the case Civil Aff airs Agency who makes the decision – the decision can be brought before the

Appeals Permission Board No business or defamation (æreskrænkelser)

Legal expenses insurance Have to be approved in advance by the insurance company.

Legal assistance Stage one: Basic legal advice in any legal question Stage two: Advice beyond basic legal advise Stage three: Advice in connection with negotiations for reconciliation

FREE LEGAL AIDLEGAL EXPENSES INSURANCE

LEGAL ASSISTANCE

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