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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
Landlord-tenant
Mortgages
Negotiable instruments
Sales
Secured transactions
Exercise/Questions:
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).
They include tenancy for years, tenancy at will, and tenancy at sufferance.
Exercise/Questions:
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
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
be heard
selected; short
scheduled; long
attorneys
costly
Costs
Exercise/Questions:
What is litigation?
What is arbitration?
What are the main differences between litigation and arbitration?
Diplomatic law
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:
the questions of (1) which jurisdiction may hear a case, and (2) the law
concerning which jurisdiction applies to the issues in the case.
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:
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
Exercise/Questions:
V. Comparative law
Obiective: - nsuirea vocabularului juridic corespunztor materiei de drept
Exercise/Questions: