English for Lawyers 4

English for Lawyers 4 Lecturer: Miljen Matijašević e-mail: miljen.matijasevic@gmail.com Session 1, 27 Feb 2013

Introduction to the Course Engleski jezik pravne struke 4

English for Lawyers 4 – Course outline • Coursebook: Vićan, D.M., Pavić, Z., Smerdel, B., Engleski za pravnike, Narodne novine d.d., 2008. • Units 28-36 • presentations available at www.pravo.hr/sj -> Teaching materials

English for Lawyers 4 – course syllabus • 11 Mar 2014 – Introduction to thecourse, ConflictofLaws (28) • 18 Mar 2014 – TypesofEnglish Civil Law: TortLaw(29) • 25 Mar 2014 - Negligence (31) • 1 Apr 2014 – Contract (30) • 15 Apr 2014 – Economic, SocialandCulturalRights(32) SP • 22 Apr 2014 – FormsofBusinessOrganisationinthe United States(33) SP • 29 Apr 2014 – JudicialControlofPublicAuthorities(34)SP • 6 May 2014 – Police Powersin Great Britain(35); • 13 May 2014 – FinalRevision • 20 May 2014 – End-of-term test • 27 May 2014 – SignaturesandTutorials

Attendance • Optional • Regular attendance (missing no more than 3 sessions) • opportunity to take the end-of-term exam

The final examination • Mastering relevant vocabulary • Being able to talk about the topics covered in the syllabus, using relevant terms • The extra material covered in class will help you understand the content and prepare for the exam • The exam will test the knowledge of the content presented in thecoursebook and presentations

Optionalassignment a presentation on a topic (more or less) related to the curriculum duration: approx. 15 minutes 2-3 studentsprepareeachpresentation as a joint project minimum 2 sources must beconsulted

Presentations • REWARD for participatingin a successfulpresentation: • youcan SKIP theoralexamination • HOWEVER... • youstillhave to takethewritten test • you MUST attendtheclasses (same as for theearlyexam)

Presentations • Before giving the presentation, students MUST: • consult the lecturer about the topic • consult the lecturer about the sources • show the entire PP presentation, as well as the outline and notes at least one week before giving the presentation • consult the lecturer about the pronunciation of difficult words

Conflict of Laws Unit 28

Conflict of Laws also known as • private international law • transnational civil litigation • private law which deals with foreign relations • a set of rules of national law determining how civil cases containing a foreign element are to be resolved • civil litigation with an aspect not local to a single country

Conflict of Laws • may arise in any area of private law; • family law, contracts, torts, property, intellectual property, succession, company law, etc. • e.g. divorce between nationals of different countries, foreign nationals ordering goods or purchasing property, traffic accidents in foreign countries, etc.

Conflict of Laws • not necessarily ‘international’ • may involve jurisditions of two countries, but also of two states, provinces, cantons, etc.

Conflict of Laws CONFLICT OF LAWS • term first used by Ulrich Huber (1636-1694), a Dutch professor of law and political philosopher; PRIVATE INTERNATIONAL LAW • term first used by Joseph Story (1779-1845), an American lawyer, jurist and Supreme Court justice, in 1834;

Conflict of Laws CONFLICT OF LAWS • term adopted by common law countries • more suitable because most common law countries contain several jurisdictions (US states, UK countries, etc.) PRIVATE INTERNATIONAL LAW • although first used by an American, the term preferred in civil law countries;

Conflict of laws MAIN CONCERNS OF THE CONFLICT OF LAWS: • choice of forum (jurisdiction) • enforcement of foreign judgments • characterisation of the cause of action • choice of law

Conflict of laws CHOICE OF FORUM (JURISDICTION) these rules determine whether the forum court (the court to which the claimant has applied) is competent andappropriateto resolve the dispute EU: the matter of competence regulated in the Regulation on Jurisdiction and the Recognition and Enforcement of Judgments in Civil and Commercial Matters

Conflict of laws CHOICE OF FORUM (JURISDICTION) • there has to be a connection between the litigation and the forum • property located within the forum • the defendant has a personal connection with the forum • the activities related to the litigation occurred within the forum (tortious act, breach of contract, etc.)

Conflict of laws CHOICE OF FORUM (JURISDICTION) in common law countries, a competent court may decline jurisdiction at its own discretion if it believes that another court is more appropriate in the EU this can only be done if proceedings have already been initiated in another forum

Conflict of laws ENFORCEMENT OF FOREIGN JUDGMENTS rules determining the effect given to foreign judgments a party may have obtained a ruling in a foreign court and might have to attempt to enforce it in the forum court this will depend on whether the forum recognizes the judgments of the foreign court

Conflict of laws ENFORCEMENT OF FOREIGN JUDGMENTS within the EU – this is regulated by the Regulation if a judgment was reached under the competence in accordance with the Regulation, it can be enforced in the forum court within the EU these matters often regulated by bilateral agreements between countries

Conflict of laws ENFORCEMENT OF FOREIGN JUDGMENTS international commercial disputes 1958 - Convention on the Recognition and Enforcement of Foreign Arbitral Awards - the "New York" Convention

Conflict of laws CHARACTERISATION OF THE CAUSE OF ACTION the case is analysed and each aspect of the pleading is assigned to an appropriate judicial category these include – procedure, status, tort, contract, divorce, etc. e.g. in some countries, the forum court is bound by law to apply the national procedural law, while it may apply foreign substantive law

Conflict of laws CHOICE OF LAW depending on the aspect, either the national law or the foreign lawwill apply in the characterisation of each aspect of the claim e.g. the characterisation of title to property will depend on the lex situs – the law of the jurisdiction in which the property is situated

Conflict of laws CHOICE OF LAW lex fori – the law of the forum, normally applied in terms of procedure lex causae – substantive law applied to the case in hand (local or foreign)

Conflict of laws CHOICE OF LAW • e.g. person X, national of country A, dies and leaves behind a will in which he bequeathes the title to property located in country B to person Y, domiciled in country C • lex situs – law of country B, location of the property • lex loci actus – law of country A, where the will was made • lex loci domicilii – law of country C, of which the heir is a national

Conflict of laws CHOICE OF LAW • e.g. person X has an employment contract with person Y, concluded in country A • a breach of contract occurs in country B • lex loci contractus – law of country A, where the contract was concluded • lex loci delicti – law of country B, where the breach occurred

Conflict of laws CHOICE OF LAW the choice will be a matter of interpretation the prevailing law will be the one with the largest number of connecting factors to the case

Conflict of laws CHOICE OF LAW • in the EU, as regards contract law • Convention on the law applicable to contractual obligations (the Rome Convention), 1980 • provides that the contracting parties may specify in the contract the applicable law

Example (source: Wikipedia) For example, suppose that a woman domiciled in Scotland and a person habitually resident in France, both being of the Islamicfaith, go through an Islamic form of marriage in Egypt while on holiday. This ceremony is not registered with the Egyptian authorities. They establish a matrimonial home in Algeria where they buy a house in the husband's name. The relationship breaks down and the wife returns to Scotland. When she hears that the husband is proposing to sell the house, she goes to the courts in Scotland.

Example (source: Wikipedia) Is this: • a case involving title to land where the lexsitus, the law of the place where the land is situated, will be applied; • a case to decide whether the Egyptian ceremony created a valid marriage under the lex loci celebrationis, the law of the place where the marriage was celebrated; • a case to decide whether she has the status of a wife and so may seek matrimonial relief under the lexdomicilii, the law of her domicile; or • a case to seek divorce in which case the lexfori substantive family law will apply? Assuming that the three relevant laws (the domicile and the forum is in Scotland) would give different results, the choice of the lexcausae assumes major significance.

Translation practice

Translationpractice (1/2) In international trade, disputes often arise involving two or more countries. Of course, such disputes do not necessarily pertain to ordinary commercial contracts. Let us think of tourists involved in a traffic accident abroad, or long-running disputes concerning child custody or the distribution of property between a husband and wife of different nationalities.

Translationpractice (2/2) For this reason, every country has a branch of law, referred to as the Conflict of laws in England, aimed at resolving the following important issues: the courts of which of the two or more countries have competence in the event of a dispute, and which law should apply in the resolution of the dispute. The parties may agree for any disputes to be resolved in a country not involved in the dispute.

English for Lawyers 4