scholarly journals The Use of Extrinsic Evidence in the Interpretation of Written Agreements in Alberta

1969 ◽  
pp. 499
Author(s):  
Tom F. Mayson
Keyword(s):  
Ordinary Meaning ◽  
Rules And Principles ◽  
The Law ◽  
True Intention

The main objective of the court when attempting to interpret a written agreement is to give effect to the true intention of the parties to that agreement. To do this, the court first looks to the words compiling the agreement to attempt to give a fair and plain meaning to it. However, when the agreement after considering the plain and ordinary meaning of the words therein is still not clear, tire court may feel Justified in using extrinsic evidence, such as the circumstances surrounding the parties when coming to the agreement, to find and give effect to their true intentions. The use of extrinsic evidence to interpret a written agreement must be limited to situations where the intentions of the parties are unclear after looking at the written agreement on its own. Various rules and principles complicate this basic underlying statement. They exist to ensure the court does not simply transpose its "view” of what is fair and reasonable in lieu of contractual interpretation. This article attempts to outline these various rules and principles as they exist in the law of extrinsic evidence when interpreting contracts in Alberta.

Rethinking the Meaning of Ordinary Meaning in Light of the ICJ’s Jurisprudence

2021 ◽  
Vol 20 (2) ◽  
pp. 267-288
Author(s):  
Katayoun Hosseinnejad
Keyword(s):  
Vienna Convention ◽  
International Court Of Justice ◽  
Ordinary Meaning ◽  
Objective Standard ◽  
Court Of Justice ◽  
International Court ◽  
Starting Point ◽  
The Law ◽  
Legal Meaning

Abstract Article 31 of the Vienna Convention on the Law of Treaties calls for consideration of the ordinary meaning as the starting point in the process of interpretation. Although the linguistic concept of ordinary meaning is founded on the idea that the meaning of a sentence is directly imposed by the norms of language so that interpreters are provided with an objective standard which is external to their subjectivity, this article demonstrates that the interpretive jurisprudence of the International Court of Justice has departed from the imperatives of the ordinary meaning doctrine. Rather, the Court, mindful of the problem that no mere sequence of words can represent actual legal meaning, has moved towards construction of ordinary meaning.

The Core UN Human Rights Treaty Systems

2019 ◽  
pp. 95-128
Author(s):  
Steven Wheatley
Keyword(s):  
Human Rights ◽  
United Nations ◽  
Scientific Knowledge ◽  
The Core ◽  
Ordinary Meaning ◽  
System P ◽  
Human Rights Treaties ◽  
The Law ◽  
The Individual ◽  
Work First

Chapter 4 examines the core United Nations human rights treaties. It shows how we can think of these as complex systems, the result of the interactions of the states parties and the treaty bodies. The work first explains the regime on opposability and denunciation, which establishes the binding nature of the conventions, before considering the law on reservations, noting how this differs from the scheme under general international law. The chapter then turns to the interpretation of convention rights, detailing the distinctive pro homine (‘in favour of the individual’) approach applied to human rights treaties. The law on interpretation also requires that we examine the subsequent practice of states parties, as well as the pronouncements of the treaty bodies. The doctrine of evolutionary interpretation explains how the ‘ordinary meaning’ of treaty terms can evolve with developments in technical and scientific knowledge, changes in societal understandings, and wider modifications in regulatory approaches outside of the human rights treaty system.

4 Interpreting the Energy Charter Treaty

2020 ◽  
Author(s):  
Hobér Kaj
Keyword(s):  
International Law ◽  
Vienna Convention ◽  
Energy Charter Treaty ◽  
Written Form ◽  
Rules And Principles ◽  
Treaty Interpretation ◽  
The Law ◽  
Single Instrument ◽  
International Document ◽  
Multilateral Treaty

This chapter discusses the interpretation of the Energy Charter Treaty. The ECT is a multilateral treaty during the negotiation of which approximately fifty States participated, albeit to varying degrees. It goes without saying that in such a setting, there are many competing interests to take into account, often resulting in ambiguous treaty provisions. Indeed, almost every dispute based on the ECT involves issues of treaty interpretation. The law applicable to the interpretation of treaties is international law, unless the parties to the treaty in question have agreed otherwise. For all practical purposes, the most important international document when it comes to treaty interpretation is the 1969 Vienna Convention on the Law of Treaties. Article 2(1)(a) of the Vienna Convention defines ‘treaty’ as ‘an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation’. There is little doubt that the ECT is covered by this definition. Article 26(6) of the ECT provides that disputes under it are to be resolved on the basis of its provisions and ‘applicable rules and principles of international law’. The chapter then considers Articles 31—3 of the Vienna Convention, which deal with the interpretation of treaties.

scholarly journals Defenceless Castles

2016 ◽  
Vol 80 (6) ◽  
pp. 407-427
Author(s):  
Mark P Thomas
Keyword(s):  
Criminal Law ◽  
The Law ◽  
Self Defence ◽  
True Intention

On 16 January 2016, the Divisional Court gave judgment in the case of Collins. In the judgment, Sir Brian Leveson P provided an authoritative statement as to the meaning of ‘grossly disproportionate’ within the law of self-defence for householders. First introduced in 2013, clarity on the meaning of the phrase has been long awaited by both the academic and the practitioner. The court’s interpretation of the phrase has disturbed the understanding of many and will cause many editions of upcoming criminal law textbooks to be rewritten on this point. This paper will examine whether the Divisional Court was correct in its interpretation by attempting to find the true intention of Parliament in drafting the legislation. The paper will also examine how the householder defences operates in modern practice and its suitability to the law of self-defence.

Part III Understanding Words, 7 Principle 7: Unnatural Meanings

2017 ◽  
Author(s):  
Calnan Richard
Keyword(s):  
Ordinary Meaning ◽  
The Law ◽  
The Moment ◽  
Do So

This chapter discusses the circumstances in which the courts do not give words their natural meaning. Very occasionally, it is clear that the parties cannot objectively have intended words they have used to have their ordinary meaning. If so, they are given the meaning which the parties must objectively have intended. The more unreasonable the result, the more unlikely it is that the parties can have intended it. This is a very controversial principle and different judges take a more—or less—expansive view of it. The chapter discusses the different views, and why they are held. It analyses the recent cases to establish where the law is at the moment. It looks at particular types of case where the courts have been more willing to twist the meaning of words. These include exclusion and limitation clauses, clauses limiting liability for negligence, and termination for minor breach. It discusses recent cases in which the courts have twisted the meaning of words in contracts, and also those where the courts have declined to do so.

Oblique Intention

1987 ◽  
Vol 46 (3) ◽  
pp. 417-438 ◽  
Author(s):  
Glanville Williams
Keyword(s):  
Criminal Law ◽  
Ethical Theory ◽  
Technical Term ◽  
Ordinary Meaning ◽  
Legal Problems ◽  
Ethical Concept ◽  
The Subject ◽  
Basic Concepts ◽  
The Law ◽  
Legal Meaning

Why is it that intention, or intent, one of the basic concepts of the criminal law, remains so unclear? Judges decline to define it, and they appear to adjust it from one case to another.Part of the trouble is the disagreement on the subject of intention amoung jurists generally. The Philosophers who have lately arrived on the scene, hoping to help the lawyers to slove their legal problems, in fact give only limited assistance. Their philosophical interest stems from the fact that intention is an important ethical concept, but they do not relate their discussions to any particular ethical concept, but they do not relate their discussions to any particular ethical theory, and they do not sufficiently consider the specific requirements of the criminal law. Indeed, they mix up the ordinary meaning of the word “intention” with its desirable legal meaning. To be sure, the meaning of intention as a technical term of the law ought to be close to the literary and popular one, but there are sound reasons for saying that the two should not always be indentical.

scholarly journals Servants or Masters? Linguistic Aids in Legal Interpretation

2021 ◽  
Vol 10 (1) ◽  
pp. 73-102
Author(s):  
Paulina Konca
Keyword(s):  
Case Law ◽  
Legal Interpretation ◽  
Legal Regulations ◽  
Correct Interpretation ◽  
Fourth Section ◽  
The Third ◽  
Ordinary Meaning ◽  
Legal Literature ◽  
The Law

This paper presents the role of some intrinsic sources in legal interpretation. Some of linguistic aids follow from provisions of the law and other from the commonly accepted ruling practice or views expressed in literature. The position of those aids was verified through the analysis of case-law, literature, and provisions of law. The first section and second section focus on the priority of plain meaning rule and intrinsic sources in legal interpretation which is strongly emphasized in legal literature, case-law and the interpretative provisions of many countries. Next, it presents how certain linguistic tools work in case law practice, what problems they can cause and what problems they can solve. The third point addresses the use of dictionaries as tools of linguistic interpretation. The fourth section explores the role of selected interpretative canons often found in legal regulations and case law practice: ordinary meaning canon, gender/number canon, ejusdem generis canon, presumption of consistent usage and prefatory-materials canon. It is concluded that the priority of a linguistic interpretation is not absolute and can never be understood as its exclusivity. Linguistic tools are not in themselves determinants of correct meaning. In order to make a correct interpretation, it is necessary not to be guided, by indications labelled as objective, sometimes artificially imposed, but by the intention of the legislator, which such tools may discover and should only be used for that purpose. 

Historical Research in Law

2005 ◽  
Author(s):  
David Ibbetson
Keyword(s):  
Legal History ◽  
Social Economic ◽  
Historical Research ◽  
Legal Institutions ◽  
Legal Process ◽  
Legal Rules ◽  
Rules And Principles ◽  
History Of ◽  
The Law

Legal history is by no means a unitary discipline. A convenient and conventional division can be made between ‘internal’ and ‘external’ legal history. The former is the history of lawyers' law, of legal rules and principles. Its sources are predominantly those that are thrown up by the legal process: principally statutes and decided cases, supplemented where possible with lawyers' literature expounding the rules and occasionally reflecting on them. The latter is the history of the law in practice, of legal institutions at work in society rather than legal rules existing in a social, economic, and political vacuum. This article discusses the historical foundations of legal historiography, the professionalization of legal history, internal legal history, and external legal histories.

Case Analysis: The Gabčíkovo-Nagymaros Case Seen in Particular From the Perspective of the Law of International Watercourses and the Protection of the Environment

1998 ◽  
Vol 11 (2) ◽  
pp. 287-320 ◽  
Author(s):  
Johan G. Lammers
Keyword(s):  
International Law ◽  
Critical Analysis ◽  
Case Analysis ◽  
International Court Of Justice ◽  
Court Of Justice ◽  
International Court ◽  
Rules And Principles ◽  
The Subject ◽  
State Succession ◽  
The Law

The subject-matter of this article is the Judgment of the International Court of Justice in the Gabčíkovo-Nagymaros case. Following an exposition of the relevant facts, it continues with a critical analysis of the Judgment of the Court. In addition to a brief analysis of the issues involving the law of treaties, the law of state responsibility, the law of state succession, and the treaty obligations of Hungary and Slovakia relating to the use of Danube water and the protection of its environment, it focuses on the rules and principles of general international law concerning the use of international watercourses and the protection of the environment that were applied by the Court in this case.

scholarly journals Archival Law and Regulation of Preservation of Current and Archival Records

Atlanti ◽  
2015 ◽  
Vol 25 (2) ◽  
pp. 121-127
Author(s):  
Jelka Melik ◽  
Mateja Jeraj
Keyword(s):  
Legal Regulation ◽  
Administrative Law ◽  
Legal Order ◽  
Archival Science ◽  
Legal Norms ◽  
The Public ◽  
Rules And Principles ◽  
The Law ◽  
Public Archives ◽  
The Eu

The archival law is part of administrative law. It consists of rules and principles in the respective legal system required for the organization of the archives and of their rights and duties. Archival law is also a science that deals with the archival legal norms. Archival law develops specific rules on archives, and provides legal and natural persons who are obliged to cooperate with archives and turn them over the archival records, prescribes their duties and develops professional guides of archival science, which are legally required, but also provides penalties for their violation. The archival law is a part of the legal order of a country. Therefore, its definition varies from one country to another. Nevertheless, in the EU countries there is a strong tendency for uniform solutions of some archival issues and for upgrading archival law. One of these is undoubtedly the preservation of current and archival records by both, the creators of archival records and the public archives. Equally important is the preservation of current and archival records produced in electronic form. In addition to the legal regulation, it is necessary to emphasize the importance of sanctions and the effectiveness of legal norms. The law should be indeed effective, which means that it works and is implemented in the life of society. At this point one should not overlook the fact that the law becomes stronger and firmer, when the number of those who perceive its rules as appropriate, reasonable and necessary gets bigger.

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