Judicial Oversight of Procedural Fairness and Propriety in Europe: Diversity Within Commonality

2021 ◽  
pp. 339-366
Author(s):  
Giacinto della Cananea
Keyword(s):  
Comparative Analysis ◽  
Common Core ◽  
Common Law ◽  
Civil Law ◽  
Judicial Independence ◽  
Procedural Fairness ◽  
Administrative Law ◽  
Legal Systems ◽  
The Common ◽  
Initial Focus

This chapter explores the common and distinctive elements that emerge from the comparative analysis of legal systems, in terms of commonality and diversity in administrative law. It begins by outlining the main institutional features of the legal systems selected for the comparison, with an initial focus on the idea of a 'divide' between civil law and common law. The two important features of the legal systems examined in this book include judicial independence and judicial specialization. The chapter then discusses the procedural requirements at the heart of the factual analysis. It concludes by reflecting on the relevance and significance of this analysis for the general enquiry concerning the common core of European administrative laws.

Comparative Law and the Study of Mixed Legal Systems

2006 ◽  
pp. 476-512 ◽  
Author(s):  
Jacques Du Plessis
Keyword(s):  
Comparative Analysis ◽  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Legal Systems ◽  
Legal Development ◽  
European Context ◽  
The Common

Legal systems generally are ‘mixed’ in the sense that they have been influenced by a variety of other systems. However, this label traditionally is only attached to those systems which represent a mix between the common law and the civilian tradition. This article focuses on what studies of mixed legal systems reveal about the broader comparative themes of the classification of legal systems, whether and how borrowing can take place, the quality of the law to which borrowing gives rise, the connection between civil law and the common law in the European context, and the role which language can play in comparative analysis and legal development.

Classifying precontractual liability: a comparative analysis

Legal Studies ◽  
2001 ◽  
Vol 21 (2) ◽  
pp. 153-191 ◽  
Author(s):  
Joachim Dietrich
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Tort Law ◽  
Contract Law ◽  
Common Elements ◽  
Ongoing Debate ◽  
Unjust Enrichment ◽  
The Common ◽  
Initial Focus

The common law has solved questions of liability arising in the context of precontractual negotiations by resort to a range of different doctrines and approaches, adopting in effect ‘piecemeal’ solutions to questions of precontractual liability. Consequently, debate has arisen as to how best to classify or categorise claims for precontractual work and as to which doctrines are best suited to solving problems arising from anticipated contracts. The purpose of this article is to consider this question of how best to classify (cases of) precontractual liability. The initial focus will be on the ongoing debate as to whether principles of contract law or principles of unjust enrichment can better solve problems of precontractual liability. I will be suggesting that unjust enrichment theory offers little by way of explanation of cases of precontractual liability and, indeed, draws on principles of contract law in determining questions of liability for precontractual services rendered, though it does so by formulating those principles under different guises. Irrespective, however, of the doctrines utilised by the common law to impose liability, it is possible to identify a number of common elements unifying all cases of precontractual liability. In identifying such common elements of liability, it is necessary to draw on principles of both contract and tort law. How, then, should cases of precontractual liability best be classified? A consideration of the issue of classification of precontractual liability from a perspective of German civil law will demonstrate that a better understanding of cases of precontractual liability will be gained by classifying such cases as lying between the existing categories of contract and tort.

The Experiences of Civil Lawyers When Studying the Common Law

2013 ◽  
Vol 8 ◽  
pp. 1-20
Author(s):  
Margaret Fordham
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
The Common

AbstractThis article examines the issues experienced by civil lawyers when studying the common law. It considers the extent of the differences between common law and civil law legal systems, examines the challenges which students from civil law jurisdictions face when first exposed to the common law, analyses the various ways in which these challenges may be met, and summarises civilians’ overall impressions of the common law.

Climate Change Liability: Comparing Risks for Directors in Jurisdictions of the Common and Civil Law

Climate Law ◽  
2020 ◽  
Vol 10 (2) ◽  
pp. 151-196
Author(s):  
Rolf H. Weber ◽  
Andreas Hösli
Keyword(s):  
Climate Change ◽  
Decision Making ◽  
Comparative Analysis ◽  
Common Law ◽  
Civil Law ◽  
Social Impacts ◽  
Securities Law ◽  
The Common

Businesses are increasingly expected to consider the environmental and social impacts of their undertakings. In recent years, the focus has shifted to climate-change-related aspects of corporate behaviour. While climate change litigation against corporations continues to evolve globally, there is a growing debate with regard to directors’ duties: are directors expected to consider climate-change-related risks in their decision making? If yes, to what extent? The issue has received considerable attention from commentators in relation to common law jurisdictions, but so far it has been less discussed in relation to civil law countries. This article attempts to contribute to filling this gap by presenting a comparative analysis, with a main focus on claims based on corporate and securities law.

scholarly journals Comparative Study of Civil Procedure in Common Law and Civil Law Systems

2016 ◽  
Vol 9 (5) ◽  
pp. 267
Author(s):  
Nader Ghanbari ◽  
Hassan Mohseni ◽  
Dawood Nassiran
Keyword(s):  
Comparative Study ◽  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Judicial System ◽  
Specific Method ◽  
Legal Systems ◽  
Separate Branch ◽  
The Common ◽  
The Comparative Study

Comparing the legal systems is a specific method in which due to its important function is considered as a separate branch in law. None of the branches in law can place its knowledge merely on ideas and findings within the national borders. Several basic objections have been given regarding the definition and purpose of comparative study in civil procedure. In addition there are specific problems regarding studying practically the similar systems in a legal system like differences in purpose, definition and concept. In different legal systems like civil law and common law systems in which there is a divergence, even the judicial system`s organs and judges` appointment and judicial formalism are different, which add to the problems of the comparative study. Reviewing these differences could lead to a better understanding of these legal systems and recognizing the common principles in making use of each other`s findings considering these differences and indicate the obstacles of comparative study in this regard.

scholarly journals Perspectives and obstacles of the shareholder activism implementation: A comparative analysis of civil and common law systems

2015 ◽  
Vol 13 (1) ◽  
pp. 520-533 ◽  
Author(s):  
Khurram Parvez Raja ◽  
Alex Kostyuk
Keyword(s):  
Corporate Governance ◽  
Comparative Analysis ◽  
Stock Market ◽  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Shareholder Activism ◽  
Legal Systems ◽  
The Usa ◽  
The Uk

The paper outlines shareholder activism development in common law and civil law countries and identifies features of these legal systems that create preconditions and obstacles for shareholder activism. Our findings show that tendencies of shareholder activism depend on the type of the legal system, but also vary within the countries that share the same legal system. Thus, we conclude that the type of legal system is not the chief determinant of shareholder activism. A comparative analysis of shareholder activism in Germany and Ukraine (civil law countries) and the USA and the UK (common law countries) shows that the system of domestic corporate regulation, development of the stock market, companies’ capitalization and corporate governance influence the development of shareholder activism in equal measure.

scholarly journals Dimensions of precedent: a methodology to understand the doctrine of precedent

Perspectivas ◽  
2020 ◽  
Vol 11 (1) ◽  
pp. 75-107
Author(s):  
Florencia S. Ratti Mendaña ◽  
Keyword(s):  
Comparative Analysis ◽  
Conceptual Framework ◽  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
Adequate Understanding

This article evidences multiple ways in which judicial precedent is used in different legal systems. It shows that: a) precedent is currently used, one way or another, in every legal system but its use differs in each legal system and frequently it is used differently even between courts of the same legal system; b) a comparative analysis under the methodology hereby proposed would provide useful tools in order to address how to “treat like cases alike”. The main aim of this research is to set the conceptual framework for an adequate understanding and study of the doctrine of precedent. To do this, some dimensions of the doctrine of precedent will be added to those enumerated by Michele Taruffo and analyzed not only theoretically, but also under concrete examples of how they work in different legal systems —both of common law and civil law.

scholarly journals A COMPARISON OF THE COMMON LAW BASED DUTY WITH ITS CIVIL LAW EQUIVALENT

2020 ◽  
Author(s):  
Azamat Omarov ◽  
Asylbek Kultasov ◽  
Kanat Abdilov
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Comparative Law ◽  
Case Law ◽  
Legal Systems ◽  
Legal Structure ◽  
Legal Term ◽  
Legal Effect ◽  
The World ◽  
The Common

The article discusses the features of civil law in different countries. The authors studied the origins of the modern tradition of civil law, comparing the legal systems of two European countries. One of the traditional classifications of duties in civil law is analyzed, the conclusion is made about the inappropriateness of the allocation of personal and universal duties. In comparative law, there are many situations where the same legal term has different meanings, or where different legal terms have same legal effect. This confusion most often occurs when civil lawyers have to deal with common law, or vice versa, when common law lawyers deal with civil law issues. While there are many issues which are dealt with in the same way by the civil law and common law systems, there remain also significant differences between these two legal systems related to legal structure, classification, fundamental concepts, terminology, etc. As lawyers know, legal systems in countries around the world generally fall into one of two main categories: common law systems and civil law systems. There are roughly 150 countries that have what can be described as primarily civil law systems, whereas there are about 80 common law countries. The main difference between the two systems is that in common law countries, case law – in the form of published judicial opinions – is of primary importance, whereas in civil law systems, codified statutes predominate.

THE THOUGHTS ON THE DIFFERENCES IN THE CONTRACT LAW TRADITIONS IN THE COMMON LAW AND THE CIVIL LAW LEGAL SYSTEMS

2021 ◽  
Vol 21 (3) ◽  
pp. 108-116
Author(s):  
K.A. USACHEVA
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Legal Systems ◽  
The Common

The extent to which the contract law traditions in the common law systems really differs from those in the civil law ones is discussed in the article. Today, the existence of such differences is difficult to reject, but their modern description looks more like rough cartoon sketches, which do not take into account lots of additional factors. The article proposes considering this matter more carefully.

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