IL_20II_201st_20session_20new_201 by shimeiyan


International Law II

                  Today‘s Agenda

• Information on presentations
• Agenda of IL II

•   Short revision of Fields of Law
•   World legal systems
•   Conflicts of laws
•   Interpretation (revision + case)

       Information on Presentations

• voluntary (but: everybody is advised to do one)

• count 50% of IL II mark if better than exam

• topic suggestions by us, own ideas are welcome

• approximately 10 minutes per person (+ subsequent

• prior consultation with us (slides per email, meeting

• feedback by us outside class

                            Agenda of IL II

Date    Subject                           Date    Subject
17.04. World„s legal systems              05.06. International arbitration
       Conflict of laws
       Interpretation of law              12.06. WTO

24.04. Property / Tort / Private          19.06. EU law / FTAs
       environmental law
       - Definitions                      26.06. EU environmental law
       - Significance (i.p. resources)           Aarhus Convention
       - Conflicts (i.p. expropriation,
15.05. conflicts between individuals)     03.07. Employment law
       - Intellectual property rights            Anti-discrimination

22.05. Contract (general principles)      10.07. Corporate Social
29.05. International commercial
                                          25.07. Exam
Fields of Law (Revision)


Public Law               Private Law               (Criminal Law)
         =                         =
individual <-> state   Individual <-> individual
  state <-> state

National and International Public and Private Law

            State A


= company

                                     State B
= individual
           National Private Law
          (different in state A and state B)
State A

                                           State B

          International Private Law

State A

                                      State B

Legal Families of the World

                       Legal Families (1)


Public Law                 Private Law               (Criminal Law)
individual <-> state
                         individual <-> individual
  state <-> state

                          Legal Families
                    Legal Families (2)

• private law = national law (i.e. every state has its own
  legal system)
• many different ways to classify private law
• classification by legal families most common one

Purpose of classification:
• to permit comparision for comparative lawyers
• to facilitate familarisation with foreign private law
  systems in an international commercial context

                   Legal Families (3)

Main legal families:
• Civil law
• Common law
• Islamic law
• Hindu law
• Far Eastern law
• Indigenous law
• (Socialist law)
• Mixed systems

(categories differ to some extent depending on the writer)

                                                    Legal Families (4)

                   Legal Families (5)

Criteria for allocation to a certain family:
= mixture of
• geography
• religion / ideology
• historical tradition

Factors for spread of legal families:
• colonialism
• wars, occupation
• spread of religions
• law reforms -> attractive systems / legal scholars

                           Legal Families (6)
Civil law
•   Term (2 different meanings):
     – 1. „opposite“ of common law (here relevant)
     – 2. synonym for private law
•   Spread: mainly continental Europa, Latin America; also parts of Asia, Africa
•   Origin: Roman law (500 A.D.); adopted in Europe from Middle Ages
•   Characteristics:
     – codification of law (e.g. French „Code Civile“ (1804), German
       „Bürgerliches Gesetzbuch“ (1900)) -> law made by parliament
     – very abstract + systematic
     – development of general principles mainly through writing of legal
     – function of judges = application of law; precedences not binding
•   Sub-categories:
     – Romanistic family (French impact; more directly based on Roman law)
     – Germanic family (based on reception of Roman law in German speaking
       countries in medieval times)

                          Legal Families (7)
Common law
•   Term:
     – 1. „opposite“ of civil law (here relevant)
     – 2. opposite of statutory (written) law

•   Spread: mainly UK, Ireland, North America, Australia, New Zealand (mix of
    common and civil law in Scotland and Quebec (CA))

•   Origin:
     – development since the Norman rule from 1066 A.D. (no major impact of
        Roman law)
     – Country of origin = England

•   Characteristics:
     – traditionally no codification of law (now more and more statutes)
     – law mainly made by judges in court through development of general
       principles by comparision of cases
     – focused on practical needs, i.p. of trade
     – strict rules on departure from previous judgements (precedents) on
       same issue

                    Legal Families (8)

Main difference between civil law and common law:

               Civil Law                 Common Law

       1. General principles laid   1. Solution of individual
       down in statutes             cases

       2. Solution of case by       2. Development of
       application of general       general principles by
       principles                   comparision of cases
       = deductive method           = inductive method
       (from abstract to            (from concrete to
       concrete)                    abstract)

                          Legal Families (9)
Islamic law

•   Term: = Sharia (devine rules of conduct, covering all areas of life)

•   Spread: Near East, parts of Africa, Pakistan, Malaysia, Indonesia (often as
    part of a mixed system)

•   Origin: emergence of Islam from the 6th century

•   Characteristics:
     – based on islamic religion
     – main source = Qur„an (7th century; will of Allah revealed to mankind
       through prophet Muhammed)
     – not man made, but made by Allah -> unchangable by men
     – rules cover private life also (e.g. drinking, prayers)
     – applies to all Muslims regardless of nationality or residence

                         Legal Families (10)
Indigenous law

•   Term: = traditional law of local or regional native groups

•   Spread: nowadays nearly everyway replaced by more modern law (e.g. law
    of the Inuits or Polynesians)

•   Origin: earliest form of law everywhere in the world

•   Characteristics:
     – not in writing (oral transmission)
     – gradual development depending on social needs (factors: time, place,
       way of life)
     – not very complex
     – originally based on consensus (no means of enforcement)
     – application limited to group of people without state quality

Conflict of Laws

                     Conflict of Laws (1)
• private law = national law (i.e. every state has its own legal system)
• but in practice often legal situations that touch more than one state
  (e.g. international trade; marriage of citizens of different states)

Possible solutions:
• application of one national private law to be chosen by conflict of
  laws principles
• creation of universal laws / rules applicable regardless of national
  borders (see lessons on international commercial contracts and
• harmonisation / unification of national laws (e.g. EU)

  Conflict of laws (= private international law, PIL)
  = the legal discipline that determines what national private law
  applies to a case that involves a foreign law element

                      Conflict of Laws (2)
• courts can apply the law of a foreign state
• question is not the courts of what state are competent (usually there
  is a choice between the courts of all states touched)
• question is if the domestic court has to apply foreign law
• sometimes combination of different foreign laws or foreign and
  domestic law necessary
• traditionally, conflict of law rules are national law, not international
  law (i.e. every state has its own rules stipulating when a court has to
  apply foreign law)
• but similar principles can be identified (harmonisation efforts, i.p.
  The Hague Conference on PIL, founded in 1893)

                    Conflict of Laws (3)
Possible criteria for choice of law (Principles are based
  on considerations of reason, convenience, utility) :

• Place of court (lex fori)
• Nationality of parties (lex patriae)
• Domicile/residence of parties (lex domicilii)
• Place of event in question (lex loci actus; e.g. conclusion
  of contract, marriage, tort, fulfilment of duty)
• Place of object in question (e.g. goods; if land = lex situs)
• Will of parties

-> what criterion actually prevails in a given case depends
    on its specific legal issues

Interpretation of Law

    (Revision + Case)

    Construction / Interpretation of Law (1)

• = the process of determining how the provisions of
  the general law relate to a specific legal case

• necessary because acts, contracts, judgements etc.
  are not always unambiguous
  (e.g. due to degree of abstractness, compromises in the course of
  enactment, unforeseen situations, change in meaning)

• similar rules apply to acts and contracts
  (there are specific rules on the treatment of judgements in common

    Construction / Interpretation of Law (2)

Established rules / approaches:

• ordinary meaning rule (= words must be given their plain,
  ordinary and literal meaning)

• systematic approach (= a provision must be looked upon in its
  systematic context, e.g. position within the act, interaction with
  other provisions)

• purposive approach (= the purpose of the provision has to be
  taken into account)

• historical approach (= the situation at the time the provision
  was made and subsequent developments have to be

Case 1 (dog case):
   A is walking his dog when he meets his friend B. B, who is very fond
   of the dog, starts playing with it and says to A, “I wish this was my
   dog.” A replies that B could have it as he was quite fed up with it. Not
   wanting to miss his chance, B accepts enthusiastically, takes the
   leash from A and leaves with the dog.
   1. Has B become the owner of the dog?
   2. Would the answer be different if section 90 a did not exist?

Excerpts from the German Civil Code (of 1900)
s. 929: To transfer the ownership of moveable things, it is necessary
    that the owner hands over the thing to the purchaser and that both
    parties agree that the ownership shall be transferred.
s. 90: Things within the meaning of this act are only corporeal objects.
s. 90 a (inserted in 1990): Animals are not things. They are protected by
    special laws. Provisions relating to things shall apply to animals
    equally subject to provisions to the contrary.
   Instructions on Written Assignments (1)

• 2-3 written assignments during semester
• voluntary
• purpose: to practice the method of legal reasoning for
  the exam

• basic rule: quality of arguments and way of
  presentation are more important than the actual

   Instructions on Written Assignments (2)

Method of legal reasoning

• Objective: to solve a legal issue (e.g. a case or an
  abstract issue)

• Means: discussion of possible legal positions and
  application of the appropiate law (if any)

• Structure: introduction, body, conclusion
   – introduction: clarification of issue and way to solve it
   – body: arguments related to issue; application of law step by
   – conclusion: result

Solution 1st question (1) - Introduction

• starting point is s. 929 (i.e. the actual starting point is to find this
  provision); if all requirements of this provision are satisfied, B has
  become the owner of the dog

• the requirements of s. 929 are:
    –   A = owner
    –   Handing over
    –   Agreement that ownership shall be transferred
    –   Moveable thing

Solution 1st Question (2) – Body

• application of s. 929 to our case:

    – A = owner?
        • We can assume that A is the owner of the dog (case: “his” dog).

    – Handing over?
        • Literal meaning of handing over = transfer of possession (= of actual
          control, not ownership!)
        • A passed the leash to B, whereby the latter was put in a position to
          actually control the dog
        • Therefore handing over (+)

    – Agreement that ownership shall be transferred?


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