Sei sulla pagina 1di 24

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 predispute 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
Type of Proceeding
Evidence allowed
How arbitrator/judge
selected
Formality
Appeal available

Use of attorneys

Civil - private
Limited evidentiary
process
Parties select arbitrator
Informal
Usually binding; no
appeal possible
At discretion of
parties; limited

Public - in a courtroom
Civil and criminal
Rules of evidence allowed
Court appoints judge parties have limited input
Formal
Appeal possible

Extensive use of attorneys

Waiting time for case to As soon as arbitrator

Must wait for case to be

be heard

selected; short

scheduled; long

Fee for arbitrator,

Court costs, attorney fees;

attorneys

costly

Costs

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?