LEGAL ENGLISH - suport de curs pentru anul I, semestrul II -

Lector dr. Iulia Elena ZUP

OBIECTIVE GENERALE

Limbajul juridic poate fi neles i nsuit doar printr-o cunoatere temeinic a regulilor gramaticale i a structurilor comunicative de baz ale limbii engleze cel puin la nivelul mediu. Prezentul suport de curs se bazeaz pe manualul utilizat n cadrul seminarului: Amy Krois-Lindner, Matt Firth and TransLegal: Introduction to International Legal English, Cambridge University Press, 2009, leciile 5-10. Obiectivul general l reprezint nsuirea vocabularului juridic pentru materiile: commercial law, real property law, litigation and arbitration, international law, comparative law.

Not informativ cu privire la evaluare: 50% activitate la seminar (inclusiv evaluari pe parcursul semestrului) + 50% examen final scris.

I. Commercial law

Obiective: - nsuirea vocabularului juridic corespunztor materiei de drept

Commercial law, also known as business law, is the body of law that applies to the rights, relations, and conduct of persons and businesses engaged in commerce, merchandising, trade, and sales. It is often considered to be a branch of civil law and deals with issues of both private law and public law.

Commercial law includes within its compass such titles as principal and agent; carriage by land and sea; merchant shipping; guarantee; marine, fire, life, and accident insurance; bills of exchange and partnership. It can also be understood to regulate corporate contracts, hiring practices, and the manufacture and sales of consumer goods. Many countries have adopted civil codes that contain comprehensive statements of their commercial law.

In the United States, commercial law is the province of both the United States Congress, under its power to regulate interstate commerce, and the states, under their police power. Efforts have been made to create a unified body of commercial law in the United States; the most successful of these attempts has resulted in the general adoption of the Uniform Commercial Code, which has been adopted in all 50 states (with some modification by state legislatures), the District of Columbia, and the U.S. territories.

Various regulatory schemes control how commerce is conducted, particularly vis-a-vis employees and customers. Privacy laws, safety laws (e.g., the Occupational Safety and Health Act in the United States), and food and drug laws are some examples.

Specific law has developed in a number of commercial fields. These include:

Banking

Bankruptcy

Consumer credit Contracts Debtor and creditor Landlord-tenant Mortgages

Negotiable instruments Real estate transactions

Sales Secured transactions

Exercise/Questions:

Define commercial law!

Which are the sources of commercial law?

II. Real property law

Obiective: - nsuirea vocabularului juridic corespunztor materiei de drept

In English common law, real property, real estate, realty, or immovable property is any subset of land that has been legally defined and the improvements to it have been made by human efforts: buildings, machinery, wells, dams, ponds, mines, canals, roads, etc. Real property and personal property are the two main subunits of property in English Common Law.

In countries with personal ownership of real property, civil law protects

the status of real property in real-estate markets, where estate agents work in the

market of buying and selling real estate. Scottish civil law calls real property "heritable property", and in French-based law, it is called immobilier.

To be of any value a claim to any property must be accompanied by a verifiable and legal property description. Such a description usually makes use of natural or manmade boundaries such as seacoasts, rivers, streams, the crests of ridges, lakeshores, highways, roads, and railroad tracks, and/or purpose-built markers such as cairns, surveyor's posts, fences, official government surveying

marks, and so forth.

Property signifies dominion or right of use, control, and disposition which one may lawfully exercise over things, objects, or land. One of the basic dividing lines between property is that between real property and personal property. Generally, the term real property refers to land. Land, in its general usage, includes not only the face of the earth but everything of a permanent nature over or under it. This includes structures and minerals.

There are further divisions within the real property classification. The most important are freehold estates, nonfreehold estates, and concurrent estates. (Others are future interests, specialty estates, and incorporeal interests).

Freehold estates are those in which an individual has ownership for an indefinite period of time. An example of a freehold estate is the "fee simple absolute", which is inheritable and lasts as long as the individual and his heirs wants to keep it. Another example is the "life estate", in which the individual retains possession of the land for the duration of his or her life.

Nonfreehold estates are property interests of limited duration. They include tenancy for years, tenancy at will, and tenancy at sufferance.

Concurrent estates exist when property is owned or possessed by two or more individuals simultaneously.

For the most part, states have exclusive jurisdiction over the land within their borders, and their law concerning the kind of interests that can be held and how they are created is not subject to federal law.

Exercise/Questions:

What means real property law?

What are the requirements for a claim to property to be valid?

What does property mean?

Name the classification of real property.

III. Litigation and arbitration

Obiective: - nsuirea vocabularului juridic corespunztor materiei de drept

Arbitration Process

Arbitration as a process is very different from the process of litigation (trying cases in court), for business disputes. Here are some differences:

Public/Private, Formality The arbitration process is private, between the two parties and informal, while litigation is a formal process conducted in a public courtroon.

Speed of Process The arbitration process is fairly quick. Once an arbitrator is selected, the case can be heard immediately. In a civil litigation, on the other hand, a case must wait until the court has time to hear it; this can mean many months, even years,

before the case is heard. Although arbitrations can be slowed where they involve multiple parties or cross-border disputes, more often than not they will be resolved more quickly than a dispute filed in court. That hastens finality and it enables the litigants to spend less time litigating, and more time running their businesses.

Cost of the Process The costs for the arbitration process are limited to the fee of the arbitrator (depending on the size of the claim, expertise of the arbitrator, and expenses), and attorney fees. Costs for litigation include attorney fees and court costs, which can be very high.

Selection of Arbitrator/Judge The parties in the arbitration process decide jointly on the arbitrator; in a litigation, the judge is appointed and the parties have little or no say in the selection. The parties may have some say in whether a case is heard by a judge or a jury.

Use of Attorneys Attorneys may represent the parties in an arbitration, but their role is limited; in civil litigation, attorneys spend much time gathering evidence, making motions, and presenting their cases; attorney costs in a litigation can be very high.

Evidence Allowed The arbitration process has a limited evidence process, and the arbitrator controls what evidence is allowed, while litigation requires full disclosure of evidence to both parties. The rules of evidence do not apply in arbitration, so there are no subpoenas, no interrogatories, no discovery process.

Availability of Appeal In binding arbitration, the parties usually have no appeal option, unless an appeal has been included in an arbitration clause. Some arbitration decisions may be reviewed by a judge and may be vacated (removed), if you can prove that the arbitrator was biased. Litigation allows multiple appeals at various levels.

Ongoing relationships

By design, the arbitration process tends to be less formal and more collegial than traditional courtroom litigation, which tends to be more adversarial in nature. This may not matter when litigants have no continuing relationship, but when there is an ongoing business relationship that the parties may wish to preserve, arbitration may be more conducive to success.

Confidentiality

One of the most compelling advantages of arbitration is the ability to keep the disputeand its resolutionunder wraps. In arbitration, there is no public hearing and, thus, no public record. The parties may agree as part of their pre-dispute arbitration clause that they will maintain such disputes in confidence. This can provide terrific value to a company that would prefer to avoid publicity, or a dispute that is likely to involve commercially sensitive matters.

The law

In a courtroom, the judge is constrained by the law as it is reflected in statutes and prior decisions, and the trial will be governed by the rules of evidence.

In contrast, arbitrators are not constrained by statutes or case law, nor are the proceedings before them governed by the rules of evidence; instead, they have much greater flexibility to consider whatever evidence they want (including evidence that would be excluded in a trial) and then reach a decision that they perceive to be equitable, even if it is not precisely consistent with the law. While this may work to your advantage, it may also generate substantial uncertainty about the process, and most business owners would prefer to avoid uncertainty.

On a related note, arbitration avoids the risk of a run-away jury and it minimizes exposure to punitive damages.

Expertise

If you proceed in court, it is conceivable that the judge will have no substantive expertise in your industry, and that may limit the courts ability to evaluate the evidence. In arbitration, however, you will have the ability to select an arbitrator with subject-matter expertise. While that may not matter in most cases, it is not

difficult to appreciate why many construction disputes are resolved through arbitration instead of litigation.

Arbitration vs. Litigation

Arbitration Litigation

Private/Public

Private - between the two parties

Public - in a courtroom

Type of Proceeding Civil - private Civil and criminal

Evidence allowed Limited evidentiary process

Rules of evidence allowed

How arbitrator/judge selected

Parties select arbitrator Court appoints judge - parties have limited input

Formality Informal Formal

Appeal available Usually binding; no appeal possible

Appeal possible

Use of attorneys At discretion of parties; limited

Extensive use of attorneys

Waiting time for case to

be heard As soon as arbitrator selected; short

Must wait for case to be scheduled; long

Costs Fee for arbitrator, attorneys

Court costs, attorney fees; costly

The conventional wisdom among many business owners is that arbitration is more efficient than litigation, and that mandatory arbitration clauses should be included wherever possible. Like most generalizations, however, the truth is not so simple.

Exercise/Questions:

What is litigation?

What is arbitration?

What are the main differences between litigation and arbitration?

IV. International law

Obiective: - nsuirea vocabularului juridic corespunztor materiei de drept

Traditionally, international law consisted of rules and principles governing the relations and dealings of nations with each other, though recently, the scope of international law has been redefined to include relations between states and individuals, and relations between international organizations. Public international law, concerns itself only with questions of rights between several nations or nations and the citizens or subjects of other nations. In contrast, Private international law deals with controversies between private persons, natural or juridical, arising out of situations having significant relationship to more than one nation. In recent years the line between public and private international law have became increasingly uncertain. Issues of private international law may also implicate issues of public international law, and many matters of private international law have substantial significance for the international community of nations.

Domains of International Law

International Law includes the basic, classic concepts of law in national legal systems -- status, property, obligation, and tort (or delict). It also includes substantive law, procedure, process and remedies. International Law is rooted in acceptance by the nation states which constitute the system. The following are major substantive fields of international law:

International economic law

International security law

International criminal law

International environmental law

Diplomatic law

International humanitarian law or law of war.

International human rights law

Sources of International Law

Customary law and conventional law are primary sources of international law. Customary international law results when states follow certain practices generally and consistently out of a sense of legal obligation. Recently the customary law was codified in the Vienna Convention on the Law of Treaties. Conventional international law derives from international agreements and may take any form that the contracting parties agree upon. Agreements may be made in respect to any matter except to the extent that the agreement conflicts with the rules of international law incorporating basic standards of international conduct or the obligations of a member state under the Charter of the United Nations. International agreements create law for the parties of the agreement.

They may also lead to the creation of customary international law when they are intended for adherence generally and are in fact widely accepted. Customary law and law made by international agreement have equal authority as international law. Parties may assign higher priority to one of the sources by agreement. However, some rules of international law are recognized by international community as peremptory, permitting no derogation. Such rules can be changed or modified only by a subsequent peremptory norm of international law.

General principles common to systems of national law is a secondary source of international law. There are situations where neither conventional nor

customary international law can be applicable. In this case a general principle may be invoked as a rule of international law because it is a general principle common to the major legal systems of the world and not inappropriate for international claims.

Subjects of International Law

Traditionally, states were the main subject of international law. Increasingly, individuals and non-state international organizations have also become subject to international regulation. See Subjects of international law.

The law of nations is a part of the law of the United States unless there is some statute or treaty to the contrary. International law is a part of the law of

the United States only for the application of its principles on questions of international rights and duties. It does not restrict the United States or any other nation from making laws governing its own territory. A State of the United States is not a "state" under international law, since the Constitution does not vest it with a capacity to conduct foreign relations.

International law impose upon the nations certain duties with respect to individuals. It is a violation of international law to treat an alien in a manner which does not satisfy the international standard of justice. However in the absence of a specific agreement an individual cannot bring the compliant. Only the state of which he is a national can complain of such a violation before an international tribunal. The state of nationality usually is not obligated to exercise this right and can decide whether to enforce it.

International organizations play increasingly important role in the

relationships between nations. An international organization is one that created by international agreement or which has membership consisting primary of nations. To vitalize the status of international organization of which United States is a member and facilitate their activities Congress has enacted the International Organization Immunities Act, which among other provisions defines the capacity of such organizations.

The United Nations, the most influential among international organizations, was created on June 26, 1945. The declared purposes of United

Nations are to maintain peace and security, to develop friendly relations among nations, to achieve international cooperation in solving international problems, and to be a center for harmonizing the actions of the nations and attaining their common ends. The Charter of the United Nations has been adhered to by virtually all states. Even the few remaining non-member states have acquiesced in the principles it established. The International Court of Justice is established by the UN Charter as its principal judicial organ.

The term "international law" can refer to three distinct legal disciplines:

Public international law, which governs the relationship between states and international entities. It includes these legal fields: treaty law, law of sea, international criminal law, the laws of war or

international humanitarian law and international human rights law. Private international law, or conflict of laws, which addresses

the questions of (1) which jurisdiction may hear a case, and (2) the law concerning which jurisdiction applies to the issues in the case.

Supranational law or the law of supranational organizations, which concerns regional agreements where the laws of nation states may

be held inapplicable when conflicting with a supranational legal system when that nation has a treaty obligation to a supranational collective.

The two traditional branches of the field are:

jus gentium law of nations jus inter gentes agreements between nations

Types of international law

Public international law

Public international law (or international public law) concerns the treaty relationships between the nations and persons which are considered the subjects of international law. Norms of international law have their source in either:

1. custom, or customary international law (consistent state practice accompanied by opinio juris),

2. globally accepted standards of behavior (peremptory norms known as jus cogens or ius cogens), or

3. codifications contained in conventional agreements, generally termed treaties.

Article 13 of the United Nations Charter obligates the UN General Assembly to initiate studies and make recommendations which encourage the progressive development of international law and its codification. Evidence of consensus or state practice can sometimes be derived from intergovernmental resolutions or academic and expert legal opinions (sometimes collectively termed soft law).

Private international law

Conflict of laws, often called "private international law" in civil law jurisdictions is distinguished from public international law because it governs conflicts between private persons, rather than states (or other international bodies with standing). It concerns the questions of which jurisdiction should be permitted to hear a legal dispute between private parties, and which jurisdiction's law should be applied, therefore raising issues of international law. Today corporations are increasingly capable of shifting capital and labor supply chains across borders, as well as trading with overseas corporations. This increases the

number of disputes of an inter-state nature outside a unified legal framework, and raises issues of the enforceability of standard practices. Increasing numbers of businesses use commercial arbitration under the New York Convention 1958.

Supranational law

The term "international law" refers to treaty law made in and between sovereign states. "Law" is defined as "a rule of conduct or action prescribed or formally recognized as binding or enforced by a controlling authority,"[6] whereas "sovereign" is defined as "supreme power or authority." Given this contradiction, nations have at times abrogated "International Laws" in their national interest. The term "world law" is the evolution of a system of law at the global level representing the sovereignty of the whole. Initial steps have been taken to evolve a system of supra-national laws, but true "world law" may await the evolution of a legislative body of, by, and for the people of the planet.

International courts

There are numerous international bodies created by treaties adjudicating on legal issues where they may have jurisdiction. The only one claiming universal jurisdiction is the United Nations Security Council. Others are: the United Nations International Court of Justice, and the International Criminal Court (when national systems have totally failed and the Treaty of Rome is applicable) and the Court of Arbitration for Sport.

Exercise/Questions:

What is international law?

Which are the domains of international law?

What are the sources of international law?

Which are the subjects of international law? What are the types of international law?

V. Comparative law

Obiective: - nsuirea vocabularului juridic corespunztor materiei de drept

Comparative law is the study of differences and similarities between the law of different countries. More specifically, it involves study of the different legal systems in existence in the world, including the common law, the civil law, socialist law, Jewish Law, Islamic law, Hindu law, and Chinese law. It includes the description and analysis of foreign legal systems, even where no explicit comparison is undertaken. The importance of comparative law has increased enormously in the present age of internationalism, economic globalization and democratization.

Comparative law is an academic study of separate legal systems, each one analysed in its constitutive elements; how they differ in the different legal systems, and how their elements combine into a system.

Several disciplines have developed as separate branches of comparative law, including comparative constitutional law, comparative administrative law, comparative civil law (in the sense of the law of torts, delicts, contracts and obligations), comparative commercial law (in the sense of business organisations and trade), and comparative criminal law. Studies of these specific areas may be viewed as micro- or macro-comparative legal analysis, i.e. detailed comparisons of two countries, or broad-ranging studies of several countries. Comparative civil law studies, for instance, show how the law of private relations is organised, interpreted and used in different systems or countries. It appears today the principal purposes of comparative law are:

to attain a deeper knowledge of the legal systems in effect to perfect the legal systems in effect

possibly, to contribute to a unification of legal systems, of a smaller or larger scale

Exercise/Questions:

What is comparative law?

Name some branches of comparative law!

What are the purposes of comparative law?