Civil Law v. U.S. Common Law Culture – A Comparative Analysis

2011 ◽  
pp. 30-58
Keyword(s):  
Comparative Analysis ◽  
Common Law ◽  
Civil 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 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 Assessing Personal Injury Liabilities in China from National to Provincial Level: An International Comparative Analysis

2016 ◽  
Vol 8 (2) ◽  
Author(s):  
Felix W.H. Chan ◽  
Wai-Sum Chan ◽  
Johnny S.H. Li
Keyword(s):  
Comparative Analysis ◽  
Research Methodology ◽  
Common Law ◽  
Civil Law ◽  
Mainland China ◽  
Personal Injury ◽  
Substantive Content ◽  
The United Kingdom ◽  
International Comparative ◽  
Two Bodies

AbstractIn a tort-based legal system, when a party is injured as a consequence of another party’s negligence, the party should be provided with sufficient compensation so that he or she may live as fulfilling a life as possible after the injury. The moral objective underlying this supposition is intuitively appealing. It is not surprising, therefore, that this jurisprudential notion is favourably regarded and widely applied in various common law and civilian jurisdictions, despite differences in tradition and culture. Nonetheless, although the two bodies of law share a similar objective in this respect, there are a number of differences in the substantive content of the law and the configuration of the rules. The present authors argue, and provide empirical evidence to support, that there are signs of convergence as both legal systems are in fact applying the same multiplicand-multiplier approach in assessing the quantum of damages. Case studies in mainland China (concerning civil law) and in the United Kingdom and Hong Kong (regarding common law) are adopted as the research methodology to explore the broader implications of this convergence.

scholarly journals Documentary Letter of Credit: A Pivotal Case for the Inefficiency of the Law of Contract

2014 ◽  
Vol 35 (4) ◽  
pp. 487-532
Author(s):  
Malgorzata Karolina Chmielewska
Keyword(s):  
International Trade ◽  
Comparative Analysis ◽  
Guinea Pig ◽  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Letter Of Credit ◽  
Distinct Mechanism ◽  
The Law ◽  
Commercial Device

This study compares the methods used both in common law and civil law jurisdictions to deal with the basic problems relating to the documentary letter of credit. A unique commercial device was thus developed in international trade as a means of ensuring safe and swift payment for goods. Even though this distinct mechanism works efficiently in practice, the numerous attempts made to classify it legally have been unsuccessful. A comparative analysis of the legal conceptualizations traditionally used to explain the nature of credit reveals apparent shortcomings in contractual theories. Because the basis of the documentary credit appears to be an abstract promise to pay, this phenomenon seems to break through the conceptual framework of traditional contract law theory. This is due to the fact that the process of forming the credit does not fit into the ordinary offer-acceptance formula. Yet, the easiest solution—the credit as a "mercantile specialty" or a "sui generis contract"—avoids facing the true challenge of our era, which is re-thinking the concept of "contracts" under modern laws. Legal debates should be directed in a more functional direction in order to provide satisfactory theoretical grounds for providing solutions to obvious, but still unanswered questions such as why people ought to keep their promises and why only some of those promises are likely to be legally enforced. It seems that, in this regard, documentary credit would be a convenient "guinea pig" for most contemporary concepts relating to the law of contracts.

scholarly journals Standards of Proof: A Comparative Overview from the Ukrainian Perspective

2021 ◽  
Vol 4 (2) ◽  
pp. 25-43
Keyword(s):  
Comparative Analysis ◽  
Common Law ◽  
Civil Law ◽  
Inflexion Point ◽  
Criminal Cases ◽  
Absolute Truth ◽  
Standard Of Proof ◽  
Recent Developments ◽  
Standards Of Proof ◽  
Open Discussion

The article addresses the issue of standards of proof from a comparative perspective. The author sketches the conventional distinction between common law and civil law countries in this regard, as well as some approaches that query the validity of the rigid division. The main purpose of the article is to characterise the Ukrainian approach to the standards of proof against the background of comparative analysis. The author concludes that recent developments in Ukrainian law have paved the way for a distinction between criminal and civil standards of proof. However, the doctrine is not yet elaborate enough to warrant a coherent application of the two different standards. There is a view that in civil law countries, not much attention is paid to the standard of proof. We would rather not take the liberty of generalising about all civil law countries, but with regard to Ukrainian doctrine, the assertion seems rather justified. However, some recent developments in procedural legislation give reasons to believe that the approach is being gradually changed. The disregard of the issue, underpinned by the sacred belief in the attainability of absolute truth, fades in comparison to the acknowledgement that standards of proof may differ in civil (commercial) and criminal cases. It is this inflexion point in Ukrainian evidence law that may entail far-reaching repercussions. Therefore, open discussion of the issue is needed to elaborate a doctrinal approach that could serve as a basis for the development of a coherent jurisprudence.

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.

Withdrawal and Criminal Liability under the Criminal Laws of Jordan and Australia: A Comparative Study

2010 ◽  
Vol 24 (1) ◽  
pp. 3-40
Author(s):  
Mamoun Abu-Zeitoun ◽  
Mouaid Al-Qudah
Keyword(s):  
Comparative Analysis ◽  
Comparative Study ◽  
Criminal Liability ◽  
Common Law ◽  
Civil Law ◽  
Conceptual Basis ◽  
Voluntary Withdrawal ◽  
Current State ◽  
Conceptual Nature

This article is a comparative study of withdrawal as a defence to the criminal liability of an offender in Jordan (a civil law jurisdiction) and Australia (a common law jurisdiction). The analysis in this paper reveals that, in both jurisdictions, criminal laws have long accepted withdrawal as a conduit through which the offender’s liability can be modified or completely quashed. However, there has been no serious attempt, at least in Jordan, to provide anything approaching a complete explanation of the conditions under which the defence may be available and to explore its limits and boundaries. Neither has any serious effort been made to offer an account of the defence’s conceptual nature and governing rationale. The present paper seeks to identify and explore the defence’s conceptual basis and rationale, its current state of law and the appropriate direction in which the defence might be developed. To achieve this purpose, the paper is divided into three sections. In Section 1, it explores the conceptual nature of withdrawal. Section 2 addresses the rationale of the defence in light of the underlying principles of criminal liability in both jurisdictions. In Section 3 a comparative analysis of the defence’s qualifying requirements is undertaken in relation to both primary and accessorial criminal liability. Comparative analysis shows that withdrawal can be used as a defence to all forms of criminal complicity with differing degrees of variations in relation to both its qualifying requirements and the extent to which it may affect the liability of an offender. In cases involving incitement, however, the inciter cannot rely on the defence to avoid criminal liability although his or her punishment can be reduced pursuant to his or her voluntary withdrawal under the JPC.

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