COMPARATIVE LAW same problems (based on purpose)

As an intellectual discipline: it is study of relationship on one 2. CULTURAL COMPARISON (COMPARATIVE LEGAL STUDIES/
legal system and its rule with another, which can be LEGAL CULTURES) - focus lies in the mentality
discoverable only by the study of the history of the systems expressed in a legal system not fully observable by
or of the rules. outsiders; understands national laws as an
expression and development of the general culture
As a domestic discipline: It is a study of relationship, above all of a society (based on reasoning)
the historical relationship, between legal systems or between
rules of more than one system. DOUBLE LIMITATION ON COMPARATIVE LAW
1. Generally concentrated on Europe (Eurocentric);
Note: Neither the study of one foreign legal system or of part 2. largely concentrated on private law - viewed as
of one foreign nor an elementary account of various legal apolotical and appears to be the only area of law fit
systems or of various families of systems because the latter for strict scientific legal comparison
description lacks necessary intellectual content.
Methods of thought and procedures used in comparing
different legal systems
1. Macrocomparision - research is done into methods
THREE FOLD DIVISION (E-LAMBERT)
of handling legal materials, procedures for resolving
1. DESCRIPTIVE COMPARATIVE LAW - The inventory of the
and deciding disputes or the roles of those engaged
systems of the past and the present as a whole, as in the law.
well as the individual rules which these systems 2. Microcomparison - concentration on individual
establish for the several categories of legal relations. concrete problems and their solutions
2. COMPARATIVE HISTORY OF LAW - closely allied to
ethnological jurisprudence, folklore, local sociology
and philosophy of law. COMPARATIVE LAW VS PRIVATE INTERNATIONAL LAW
3. COMPARATIVE LEGISLATION – represents the effort to • private international law (Conflict of laws) : it is a part of
define the common trunk on which the precedent the positive national law; more selective; it tells us
national doctrines of law. which of several possible systems of law should be
applied in a particular case which has foreign
AIMS IN COMPARATIVE LAW connections
1. provide venue for pursuit of knowledge as an ends in itself, • Comparative law: presents itself a science pure; deals with
responds to the characteristic of the human species several legal orders at the same time, and does so
which is curious about the world. without having any practical aim in view
2. facilitate communication on behalf of clients with one’s
counterparts and with officials in other countries. COMPARATIVE LAW V PUBLIC INTERNATIONAL LAW
3. indispensable to harmonization of laws within global or • Public international law: the law of nations; essentially a
regional associations supranational and global system of law.
4. provide an basis for legal unification or harmonization • Comparative law: Essential to the understanding of the
(increases knowledge and awareness in legal general principles of law recognized by civilized
education) nations. An aim is to discover which solution of a
5. indispensable to international endeavors such as problem is the best and perhaps one could include
harmonization laws within global or regional as a general principle of law the solution of
associations particular problem, which emerges from a proper
6. inform national lawmaking, assist judges in the repletion of evaluation of the material under comparison being
difficult questions, provide a basis for legal the best.
unification or harmonization, or simply increase
knowledge and extend awareness, especially in legal comparative law vs. legal history
education • legal history: it studies systems consecutive in time; all
legal history involves a comparative element
METHODS OF COMPARISON • comparative law: studies legal systems coexistent in space
1. FUNCTIONAL COMPARISON - lies in responding to social
problems and that all societies face in essence the
Comparative law vs sociology of the world
• Sociology - aims to discover the causal relationship between • The Chinese emperor (dubbed as the Son of Heaven) was
law and society. Seeks to discover patters from which one can
the only one true sovereign who generously
infer whether and under what circumstances law affect
recognized lesser neighboring countries as long as
human behavior and conversely how law is affected by social
change they acknowledge his ritual and cosmological***
• Com law - in its **********
Delocalizing China
LEGAL TRADITION  SK, JP and VN adopted the centralized Chinese state
• Refers to the culturally conditioned attitudes that underlie as a modern and borrowed the CN script and
those rules on specific legal subjects and broadly, to political vocabulary to which the script gave
ideas about the role of law in the organization of the expression
pollity and in society and interstate relations  CN’s legal tradition provided a common language of
politics and a shared vocabulary of statecraft which
East asian legal tradition were interpreted and institutionalized in unique
• EAST ASIA - best understood as a geocultural and ways in different parts of east asia
geopolitical notion; in historic terms, as the sphere
of influence of Chinese culture, it refers primarily to Classical Legal Institutions in Korea
• China’s most exemplary tributary
China, Japan, South Korea and Vietnam
• true successor of Confucianism
• Legal membership in a state is the very condition of having
• positioned themselves as mere kings vis-à-vis the CN
rights
emperors
• One component of classical east asian civilization was a
shared conceptual vocabulary of politics and
statehood Classical Legal Institutions in Japan
 Self-consciously copied the main formal features of
• East Asian law region’s legal cultures are said to be non
CN bureaucratic state
legalistic and non-litigious  First CN influence arrived in JP via KR, adopted the
• Sphere of influence of CN culture (CN, JP, KR, VN) CN calendar and script
• Legal membership in state is the very condition of having  Masajr Chiba - legal order best understood as
rights indigenized CN law
 Feudalism

Chinese Legal Traditions

• One of the hallmarks of the classical Chinese legal tradition Classical Legal Institutions in Vietnam
is by characterizing Chinese law with the simple
epithet of Confucian – a shorthand for features that
emphasized on family hierarchy, community, respect Legal Culture
for authority, mediation and harsh penalties • integration of values, practices, concepts into the
operation of legal institutions and the interpretation
two different instruments of social control: of legal texts
1. Li - moral suasion by ritual, associated with Confucians
(what is morally right) Laws as culture
2. Fa - coercion by law, favored by legalist thinkers (what you • empahsises that law is more than just a set of rules or
concepts. It is also a social practice within a legal
are mandated to do)
community. It is also a social practice within a legal
community. It is the social practice which
Confucianization of Law
determines the actual meaning of the rules and
• Process whereby the penal sanctions of fa were recruited
concepts, their weight, their implementation, and
to enforce the Confucian morality embodied in the li.
the role in society
the moral code became mutatis mutandi the penal
code.
Four Broad Cultures or Cultural Families in the World
1. Western
Decentring Sinocentrism
• it is the historical ideology that China is the cultural center 2. Asian
3. Islamic
4. African Intra-cultural and Cross-cultural comparison
• Intra-cultural comparison: within one and the same
two principal characteristics of Western Legal Culture (more cultureal family, sharing a basic common conception
individualistic) of law
1. Individualism - it is a belief in the autonomy and total • Cross-cultral comparison: comparison across the 4 main
legal cultural families becoes a form of comparative
liberty of the individual in, and possibly against
law which draws heavily from a legal sociological or
society, as opposed to Collectivism, which is the idea
anthropological perspective
of the submission of the individual to the community
1. two branches of social law developed
Legal Families of the World
under this characteristic:
• Arminjon/ Nolde/ Wolff: modern systems of law should be
1. social security - developed as a
grouped in accordance with their substance paying
system of individual social
due heed to originality, derivation, and common
insurance covering
elements
individual risks instead of
• 7 legal families: french, german, scandanavian, english,
being a legally organized
russian, islamic, hindu
form of social solidarity
• Esmein: romanistic, germanic, anglo-socan, slav and
2. labor law - the protection of
ISlamic
individual interests of the
worker dominates, and
not the collective Crucial Factors for the Style of a Legal System or Legal
interests of the group of Family:
workers 1. historical background and development
2. its predominant and characteristic mode of thought in
2. Rationalism or Constructivism - means the belief in the
legal matters
infinite possibilities available to the human spirit to
3. especially distinctive institutions
know, structure and master reality in an objective
4. the kind of legal sources it acknowledges and the way it
manner
handles them; and
1. law as the organization of society is
5. its ideology
always a raetionalization of social
relationships
Distinctive Mode of Legal Thinking
2. europeans believe that any conflict exist
• Germanic and Romanistic families are marked by a tendecy
***
to use abstract legal norms to have a well-articulated
system containing well defined areas of law, and to
Asian legal culture (more collective)
think up and to have a juristic construction
• neither individualistic, nor rationalist; mainly the influence
• English common law is case law, not enacted law.
of Confucianism
• Every person has a right to respect the nature order of
thing
Distinctive mode of legal thinking
• It can be perceived as being collective this appears from
Common law (based on reason)
the absence of the concept of ****
• comes from the court
• great jurists of England were judges
Islamic Legal Culture
• Lawyers predict how the judge would deal with the
• there is no division between law, morality, and religion. All
problem, given existing decision
law is based on, and deducte from the Qur’an,
• lawyers think concretely, in terms of cases, the relationship
despite the doctrine in practice
of parties rights and duties
• less individualistic
• lawyers feel their way gradually from case to case
• less rationalistic
• lawyers are skeptical of every generalization
• lawyers think in pictures and so one could continue
African Legal Culture
• neither individualistic nor rationalistic
Continental (Civil) Law (based on the black letter law) CIVIL LAW
• comes from the study • Civil lawyer is thoretical and abstract. He is the product of
• professors law professors in the universitites
• lawyers, faced with a problem, even a new and unforseen • civilian judiciary is bureaucracy ***
one ask what solution the rule provides
• Lawyers think abstractly, in terms of intuitions
• The system is conceived as being complete and free from
gaps FRENCH LAW
• Lawyers delight in systematics • multijural society
• Lawyer operate with ideas, which are often dangerous • like its culture, it is distinctive, it belongs to a loosely
enough defined civil law systems
• it lies in the areas of:
BENEFITS OF COMPARATIVE LAW ▪ values
1. AIDING THE COURTS - The question is whether the ▪ legal procedure
interpreter of national law is able or entitled to ▪ form of legal rules
invoke a superior foreign solution. IT may be raised ▪ attitude to law (mentalite)
when the construction of a rule is doubtful, or where
there is lacuna in the systme which the judge must fil Legal Values
2. AIDING TH LEGISLATURE - good laws cannot be produced • as a part of the judea christian and roman law traditions, it
without the assistance of comparative law, ehether share most values with other wester european
the form of general *** countries

Legal transplant Republican in spirit?

• circulation of legal models • yes, it was formally promulgated at the time of the First
• transplant of law Republic and Napoleon I has a significant person**
• influence
• inspiration Legal procedures
• cross-fertilization • there are significant difference in terms of procedure
which make french law different from the common
law and other continental systems
“reception statutes” - the first legislative acts of the newly
independent American States enabling their courts to receive 3 features (form) of french legal rules
and develop the English common law 1. importance of codification (which retains a symbolic
function of french law);
Globalization of law 2. statement of rules in general terms, rather than in specific
• involves legislative, judicial *** detail; and
3. relative unimportance of judicial decisions compare with
COMMON LAW VS CIVIL LAW IN LEGAL EDUCATION AND the doctrinal legal writing, in stating the rules of the
PROFESSION legal system
COMMON LAW
• Common lawyer is practical and pragmatic. he is the FRENCH LAW VS THE COMMON LAW
product of the practical needs of the bench at the 1. French law reasons from rights (le driot subjectif) -f there
westminister hall is a righ, then a remedy can be found, while common
• Common law judiciary is composed of leaders of the legal law starts from actions (traditionally there is a right
profession only if an action and a remedy are provided by law)
• the relationship between the atty and the judge is much 2. French legal structure is described in terms of concepts
more closer in the commo law where judges share and the way of fact situations fits in those concepts
the arry;s professional interests. the atty performs (example: importance of “public service”), while
the starring role in the anglo-american adversary Enllish law seems preoccupied with the resolution of
procedural method fact-situations, albeit in a relatively unstructured
 basis ◦ common lawyer is empiricist who is not given to
3. French legal tradidion is more formalist in terms of abstract rules of law. they think in pictures
procedure, ut allows a degree of latitude in the rather than in abstract concepts and
characteriatio of facgs in the interpretation of rules systematic
by judges in the individual cases, while English
common law is the ectreme of caluing legal certainty teaching and practice of law
through precedent and other decised perhaps more • there was a distinction between the literature aimed at
than the achievemet of justice practitioners and the literature written for law
students
Court of Cassation (Cour de Cassation)
• highest french court in civil an criminal matters; created by Doctrine of Precedent
legislation of the French Revolutiion Ratio Decidendi
• In principle, every decision of a French Court is liable to Legal Theory and Legal Reasoning
attack before this court, provided that other Statutory interpretation
remedies are unavailable or been exhausted
Remedies and Rights
(example: decisions which are unappealable beause
of their low monetary value)
Civil law vs common law (in terms of division in public and
• If the conditions are satisfied this court is obliged to render
private law)
a decisionl it has no power to selecet cases of special
• in civil law, the principal division was between public and
significance
private law, which in turn consisted of persons,
things and actions
Germanistic Legal Family
• in germany, the law of reason gradually broke loose from
Equity and law of actions
its roots in general philosophy and became a system
• property, contract, tort, and restitution are, therefore, not
of principles of private law to be taught and learnt.
adequate in themeselves to give expression to the
• Code of ma
full scope of private law and civil liability in the
common law
2 main characteristics of German Legal Culture
1. A Government of Law (Rechtstaat)
PUBLIC LAW
2. it has to cope with an equally unique trauma
• in the UK, the constitution is unwritten
• the diverse sources of constitutional law are united under
3 foundational principles of the German Constitution
on overriding principle and that is the absolute
1. the principle of democracy - all state power is derived from
sovereignty of parliament
the people; in a system of representative
• there no uniique and independent constitutional court in
democracy, the federal parliament is the legislature
the UK and the judges have no power to strike down
which elects the Chancelor (head of government)
a statute
and controls the executive branch. Courts pass
judgements “in the name of the people”
AMERICAN LAW AND THE LEGAL SYSTEM
2. Principle of rechtsstaat (“government of law”) - requires
• the rule of law (as opposed to the rule of men) was the
that each of the ***
American formula for a just society, in opposition fo
3. organization of the state as a federation
the absolutist European governments of the time
• Americans are more litigous than others, because litigation
LEGAL EDUCATION
serves broader purposed in the U.S. than elsewhere
• 4 year law course in a university
• Law of damages for accidents is a god example of
regulation by private litigation.
◦ Compensatory damages, and punitive damages
common law - england over and aboce the actual injury, may be
• common law’s “distinctive mode of legal thinking” awarderd (undue mixture of private and
◦ civil lawyer approaches life with fixed ideas, and
criminal law and in inappropriate
operates deductively
enrichment for plaintiffs)
◦ THREE FUNCTIONS: • CASE LAW, more radical but supplemented with open
▪ the function of tort law, policy considerations to an extent unknown in more
especially punitive european legal systems
damages, is a much
regulatory as influences of foreign law on US law
compensatory The US received English common law with the exception of
▪ US law usually provides a one- those parts not in accordance with the principles of new
time lump sum payments republic; significantly:
for damages; equitable • constitutional law
remedies such as specific • division between barristers and solicitors
performance and • feudal elements of property law
recurring**** • practicing legal profession’s monopoly of legal education

characteristics of US law Legal System

• US constitution of 1787 - 27 amendments including 10 bill • US congress has legislative competence only in specified
of rights areas
• like the french civil code, it provides hierarchically superior • doctrine of limited powers - limited to items provided in
normative framework for legal development the constitution
• key difference is the relative lack of codification. Us law • interstate commerce - principle devise for extending
has never been codified to the same degree as federal powers
European Legal Systems • intrastate commerce - US cannot legislate on matters
involving economic matters
FEDERAL SYSTEM AND PLURALITY OF LAW • Unitary basis of American private law
• There are federal laws, state laws of 50 states, DC and ▪ most law schools teach their students a
territories, various laws of native indians given semi common american law which
sovereign status, individual states have their own admittedly does not exist as
legislatures and executives positive law anywhere
• 2 parallel strands of judiciaries: ▪ restatements produced for all important
◦ state courts areas of American private law
◦ federal courts - scope is narrow; restricted in their except family law and law of
ability to generate federal common law; succession (also in ambiguous
jurisdiction is limited; they have exclusive cases)
subject-matter jurisdiction in relatively few
areas, primarily admiralty law, federal anti- COMMON LAW UNITED STATES AND CIVIL LAW
trust law, and interstate commerce.
• Federal court jurisdiction is concurrent with that of the COMMON LAW US
state courts in two areas: • beginnings in Engand
▪ federal-law questions • during the earlier periods, authorative starting points for
▪ diversity jurisdiction legal reasoning were found in judicial decisions and,
• the federal system is built on an idea of competition, to a much lesser extent, in statuetesl today, judicial
rather than coordination decisions remain***

LEGAL ACTORS DISTINCTIVE AMERICAL LEGAL TRADITION

• Separation of powers (3 branches) • developed original features and moved , in some respects,
• System of check and balances: no single institution should closer to civil law tradition
be able to gain too much power and compromises • english courts remain much more hesitant than are
are necessary, bth between and within the branches american courts to overrule their previous decisions
of government • the english parliament is not bound by a written
constitution

LEGAL STYLE
FOUR COMMON ASPECTS OF CIVIL PROCEDURE THAT ARE
PURELY AMERICAN: NEGOTIATING AN INTERNATIONAL CONTRACT
1. Civil jury • Misunderstandings in the negotiation of a contract may be
2. party-dominated pre-trial discovery and use of party- due to
controlled pre-trial investigation 1. differences in culture and the role of law
3. relatively passive role of the judge at the trial or hearing 2. differences in legal background
4. the method of obtaining and using expert opinions on 3. use of words and how such words are
technical matters communicated or incorporated into the
contract
FIVE DESCRIPTIVE CHARACTERISTICS (VALUES) OF 4. misappreciation of facts and commercial
AMERICAN IDEOLOGY: arrangements
1. Liberty 5. lack of relevant experience or unfamiriality with
2. Egalitarianism (equality of opportunity and respect, right- terms and concepts; and
asseting individuals) 6. difference in negotiating styles
3. Individualism
4. populism Cultural awareness
5. laisSez-faire • includes the appropriate way to greet another party,
common courtesies expected in social interactions,
rights-based legal system business ethics, decision-making practices

MIXED LEGAL SYSTEM criteria for cross-cultural contract negotiations

• employed in a match narrower sense 1. negotiations should lead to written contract that is
• “bijuralism” enforceable in the countries of both parties
2. conflicts that result from cross-cultural misunderstanding
Globalization and comparative law are avoided through a carefully negotiated and
• to the extent that it affects the paragism wh=ithin which written contract that informs both parties of their
comparative law emerged as a discipline, rights and duties
globalization inevitably raises new challenges for 3. dispute resolution should be completel and fairly
comparative law addressed in the contract

Globalization within the contect of international law PRINCIPLES OF INTERNATIONAL CONTRACT LAW
• the intermingling of national laws, the interconnecteness • there is a growing trend toward developing a unified body
of markets, the emergence of third legal sp of international business law which made evident
through:
Relevance of Comparative law in the advent of Globalization 1. growth of customary international business law
1. creation of a transnational public space 2. increased publication and citation of international and
2. may constitute persuasive authority before foreign courts commercial arbitration decisions; and
3. evaluation of the economic attractively of given 3. enactment of inernational treaties***
regulations and their institutional setting
4. serves to highlight the private international law Lex Mercatoria
mechanisms • business customs or trade usage developed by
5. source of information about foreign laws businesspersons throughout the world in order to
6. lessens the need of prudence in proving a foreign law in facilitate business transactions
another jurisdiction and helps in explaining any
ambiguities and providing clarity to the foreign law SOURCES:
7. unification of laws and rules 1. PIL - Vienna Convention on treaties
8. insights as to the difficulties that comparative legal 2. Uniform laws - HAGUE rules and CISG
scholarship raises and its mode of functioning 3. General Principles of Contract of Law - pacta sunt servanda
become useful 4. Rules of international organizations
9. fill gaps 5. Customs and Usage
6. Standard form Contract
7. Arbitral Decision 12. Consequences of publicity
13. enforcement of foreign judgement

Pacta Sunt Servanda

• “agreement must be kept”
• it is the principle in international law which says that
international treaties should be upheld by all the
signatories
• Qualified by the concept of abus de droit - rule that unfair
contracts and ***

RECURRING LEGAL ISSUES

1. conflict of laws
2. absence of written agreements
3. breach of contracts
4. governing law, venue and jurisdiction
5. rules of arbitration and venue
6. non-familiarity with standard legal clauses
7. open-ended clauses or provisions
8. absence of protection clauses
9. absence of walk-way provisions
10. disputes on fee, costs, charges, and taxes
11. lack of provision for insurance
12. engagement of incompetent or inexperienced
external counsel
13. plain ignorance of law, rules and policies
14. lack of document management system
15. Rights and obligations not clearly stipulated
16. Getting involved in litigation
17. tax-related issues
18. property and damage claims
19. propriety of guarantee or bonds
20. lack or inefficient project/transaction structure
21. insufficient lead time for legal review
22. propriety of disclosure
23. nature of issue - legal vs commercial

DRAFTING CONSIDERATIONS FOR DISPUTE RESOLUTION

1. form of dispute resolution
(litigation/arbitration/conciliation-mediation/dispute
settlement bodies?)
2. parties’ background
3. types of possible disputes
4. money or asset and jurisdiction
5. Intellectual property rights
6. location of counter-party
7. Jurisdiction in preferred forum
8. Discovery procedure
9. Number of parties likely to be involved
10. Quality of judgement rendered by the local court
11. relationship of the parties after dispute resolution