The Keenest Condiments: the Spectrum of Experts Across Traditions in Construction Arbitration

2021 ◽  
Vol 3 (5) ◽  
pp. 103-123
Author(s):  
Giovanna Novis Pereira
Keyword(s):  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Expert Witnesses ◽  
Expert Report ◽  
International Construction ◽  
Legal Traditions

This paper will explore the role of expert witnesses in international construction arbitration across legal traditions. The focus will be to highlight the differences between the two types of experts. For the purposes of this paper, we will draw a spectrum with two extreme examples of expert witnesses. On one extreme of the spectrum, there is the expert who makes a living out of expert work and thus is seen to be closer to the client. On the other extreme of the spectrum, there is the expert who is providing an opinion on something that is his or her life’s work, this expert might never have given an expert report before. Both ends of the spectrum are heavily criticized. The goal is to distinguish both sides of the spectrum, considering the aspects of Civil Law and Common Law traditions.

Professional secrecy and legal professional privilege

2018 ◽  
Vol 25 (2) ◽  
pp. 188-207 ◽  
Author(s):  
Jorg Sladič
Keyword(s):  
Human Rights ◽  
The Netherlands ◽  
Family Life ◽  
Common Law ◽  
Civil Law ◽  
Fundamental Rights ◽  
The Other ◽  
European Convention ◽  
Legal Professional ◽  
The Right

Legal privilege and professional secrecy of attorneys relate to the right to a fair trial (Article 6 European Convention on Human Rights (ECHR)) as well as to the right to respect for private and family life (Article 8 ECHR). The reason for protecting the lawyer via fundamental rights is the protection of fundamental rights of the lawyer’s clients. All legal orders apply legal privileges and professional secrecy; however, the contents of such are not identical. Traditionally there is an important difference between common and civil law. The professional secrecy of an attorney in civil law jurisdictions is his right and at the same time his obligation based on his membership of the Bar (that is his legal profession). In common law legal privilege comprises the contents of documents issued by an attorney to the client. Professional secrecy of attorneys in civil law jurisdictions applies solely to independent lawyers; in-house lawyers are usually not allowed to benefit from rules on professional secrecy (exceptions in the Netherlands and Belgium). On the other hand, common law jurisdictions apply legal professional privilege, recognized also to in-house lawyers. Slovenian law follows the traditional civil law concept of professional secrecy and sets a limited privilege to in-house lawyers. The article then discusses Slovenian law of civil procedure and compares the position of professional secrecy in lawsuits before State’s courts and in arbitration.

Towards a Transsystemic Study of the Ghana Legal System

2017 ◽  
Vol 6 (1) ◽  
pp. 25-50
Author(s):  
Poku Adusei
Keyword(s):  
Legal System ◽  
Academic Discipline ◽  
Common Law ◽  
Civil Law ◽  
Cross Cultural ◽  
Legal Tradition ◽  
Legal Traditions ◽  
The Law ◽  
Cultural Dialogue

This article provides comprehensive insights into the study of the Ghana legal system as an academic discipline in the law faculties in Ghana. It urges the view that the study of the Ghana legal system, as an academic discipline, should be transsystemic. Transsystemic pedagogy consists in the introduction of ideas, structures and principles which may be drawn from different legal traditions such as civil law, common law, religion-based law, African law and socialist law traditions to influence the study of law. Transsystemia involves teaching law ‘across,’ ‘through,’ and ‘beyond’ disciplinary fixations associated with a particular legal system. It is a mode of scholarship that defies biased allegiance to one legal tradition in order to foster cross-cultural dialogue among legal traditions. It involves a study of law that re-directs focus from one concerned with ‘pure’ legal system to a discourse that is grounded on multiple legal traditions.

Legal Traditions, the Universal Declaration of Human Rights, and Intercultural Professional Communication

2011 ◽  
pp. 216-246
Keyword(s):  
Human Rights ◽  
Intellectual Property ◽  
International Law ◽  
Latin American ◽  
Common Law ◽  
Civil Law ◽  
Universal Declaration ◽  
Professional Communication ◽  
Legal Traditions ◽  
Global Communications

This chapter examines the relations between rhetoric and law across cultures, grounding the discussion in U.S. common law, Latin American Civil law, and Asian law. It also explores the writing of the Universal Declaration of Human Rights as a model of developing “international” or “universal” approaches to law and human rights. It concludes by discussing recent events of international law involving intellectual property and global communications.

The Relationship between Disability Non-Discrimination Law and Quota Schemes

2019 ◽  
pp. 94-117
Author(s):  
Lisa Waddington
Keyword(s):  
Public Sector ◽  
Common Law ◽  
Civil Law ◽  
People With Disabilities ◽  
Public And Private ◽  
The Public ◽  
The Common ◽  
Public And Private Sector ◽  
The Relationship

This chapter explores the relationship between disability quota schemes and non-discrimination law in Europe. While at first sight they seem to sit uneasily beside each other, the chapter reveals how, in some instances, quota schemes can serve to facilitate compliance with non-discrimination legislation. At the same time, the chapter explores seeming incompatibilities between the two approaches and considers whether there are differences between common and civil law jurisdictions in this respect. Tentative conclusions suggest that there is a greater willingness to establish quota schemes through legislation in civil law jurisdictions compared to common law jurisdictions, and that quota schemes in civil law jurisdictions are more likely to provide for the imposition of a levy in the case that employers fail to meet their quota obligations through employing the required number of people with disabilities. There also seems to be some indication that there is greater awareness of the potential for conflict or tension, in various forms, between non-discrimination law and quota schemes in common law jurisdictions than in civil law jurisdictions. Finally, the two schemes operating in the common law states are only applicable to the public sector—whilst in civil law states quotas are generally applied to both public and private sector employers. This may indicate different perceptions regarding the role of public sector employers and the legitimacy of imposing quota requirements.

Rights and Methods to Challenge Evidence and Witnesses in Civil Law Jurisdictions

2019 ◽  
pp. 839-864
Author(s):  
Lorena Bachmaier
Keyword(s):  
Human Rights ◽  
Common Law ◽  
Civil Law ◽  
Trial Courts ◽  
European Court ◽  
Rules Of Evidence ◽  
The Cross

This chapter examines the primary grounds for challenging the admissibility of evidence, the methods to do it, and the potential consequences of those challenges for civil law systems. It first provides an overview of the jurisprudence of the European Court of Human Rights (ECtHR) with respect to admissibility of evidence, before discussing the exclusionary rules of evidence, focusing on the methods for excluding unreliable evidence, irrelevant or unnecessary evidence, and illegally obtained evidence. It then considers the process for challenging the admissibility of evidence, the cross-examination of witnesses, and the role of trial courts in the questioning of witnesses. It also tackles the admissibility of out-of-court witness testimonies in European civil law systems and notes the convergence between common law and civil law systems with regard to methods for excluding evidence and for questioning witnesses.

Part I The Doctrine of Res Judicata in Litigation, 1 The Doctrine of Res Judicata in Domestic Laws

2016 ◽  
Author(s):  
Schaffstein Silja
Keyword(s):  
Common Law ◽  
Civil Law ◽  
The Other ◽  
Res Judicata ◽  
Other Hand

This chapter analyses and compares the application of the res judicata doctrine in common and civil law countries. Res judicata is the principle that a matter may not, generally, be relitigated once it has been judged on the merits. The doctrine of res judicata is well established in common law jurisdictions, and allows for several res judicata pleas, namely the plea of cause of action estoppel, issue estoppel, former recovery, or abuse of process. On the other hand, the doctrine of res judicata in civil law countries recognises only one plea. In France, for instance, the doctrine of res judicata is referred to as ‘autorité de chose jugxée’. A judgment obtains ‘autorité de chose jugée’ when it is rendered, whether or not a means of recourse is available against the judgment.

The Basis of the ‘Basis Rule’: The Role of the Basis Rule in the Admissibility of Expert Opinion

2015 ◽  
Vol 43 (2) ◽  
pp. 313-337
Author(s):  
Trang Phan ◽  
David Caruso
Keyword(s):  
Expert Opinion ◽  
Common Law ◽  
Court Decision ◽  
Expert Witnesses ◽  
Expert Evidence ◽  
Specific Context ◽  
High Court ◽  
General Terms ◽  
Admissible Evidence

The ‘basis rule’ is, in general terms, a rule which restricts expert witnesses to giving opinion evidence in respect of which there is or will be proof, by other admissible evidence, of the facts and assumptions upon which the opinion is based. There has been no clear consensus as to whether the basis rule exists either at common law or under the Uniform Evidence Legislation, or whether the rule goes to admissibility or weight. This article examines the jurisprudence, with a particular focus on the recent High Court decision of Dasreef Pty Ltd v Hawchar. The authors argue that the controversy surrounding the basis rule has been the result of a misunderstanding and misconstruction of the rule. They argue that the conflict may be resolved by understanding the basis rule as simply a rearticulation, in the specific context of expert evidence, of the requirement that evidence must be relevant to be admissible. The weight of that expert evidence remains to be determined in accordance with ordinary principles.

The Place of the Prosecutor in Common Law and Civil Law Jurisdictions

2019 ◽  
pp. 138-163
Author(s):  
Katalin Ligeti
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Executive Power ◽  
Public Prosecutor ◽  
Prosecutorial Discretion ◽  
The Public ◽  
European Public ◽  
Institutional Positioning ◽  
Centralization And Decentralization

This chapter focuses on the place of the public prosecutor in common law and civil law jurisdictions. It first describes the institutional positioning of public prosecutors, particularly vis-à-vis the executive power, before discussing their role and powers in regard to the pretrial phase. It then considers the increasing tendency to entrust the public prosecutor with quasi-judicial sanctioning powers in the context of out-of-court procedures (“prosecutorial adjudication”). It also examines the role of specialized law enforcement authorities in the exercise of investigative and prosecutorial functions, coercive measures and the need for judicial authorization, and prosecutorial discretion and alternatives to trial proceedings. Finally, it explains how independence, centralization and decentralization, legality and opportunity of prosecution, and the alternatives to trial proceedings have been translated to the supranational design of the European Public Prosecutor’s Office (EPPO).

scholarly journals The Roots of Canadian Law in Canada

2010 ◽  
Vol 54 (4) ◽  
pp. 671-694 ◽  
Author(s):  
John Ralston Saul
Keyword(s):  
First Nations ◽  
Common Law ◽  
Civil Law ◽  
Recent Book ◽  
Legal Tradition ◽  
Legal Traditions ◽  
Local Experience ◽  
Canadian Law ◽  
Historical Viewpoint ◽  
Aboriginal Law

Abstract This article asks the Canadian legal community to look beyond the standard historical viewpoint that roots Canadian law in the British common law and French civil law traditions. The author discusses the historical foundations of Canadian law in a uniquely Canadian context, beginning with the earliest interactions between the First Nations and the Europeans. Drawing on the research outlined in his recent book, A Fair Country, the author challenges his audience to think of Canadian law as far more than the local implementation of foreign legal traditions. While Canada has freely borrowed from various legal traditions, the application of law in Canada has been a unique process intimately tied to Canadian history. The author calls on us to recognize a distinctly Canadian legal tradition which has grown out of Aboriginal law and subsequent local experience while being influenced by, but by no means limited to, common law and civil law traditions.

Political Business Cycles and Imprisonment Rates in Italy: Report on a Work in Progress

1987 ◽  
Vol 16 (1-2) ◽  
pp. 211-218 ◽  
Author(s):  
Dario Melossi
Keyword(s):  
Public Opinion ◽  
Business Cycles ◽  
Criminal Behavior ◽  
Common Law ◽  
Civil Law ◽  
Economic Conditions ◽  
Political Business Cycles ◽  
Work In Progress

Sociologists have shown the presence of statistically significant associations between changing economic conditions and rates of imprisonment in a number of countries characterized by common law systems. Furthermore, these associations do not seem to be mediated by changing rates of criminal behavior. This article considers the possibility that the same relationships exist in a civil law society, Italy, for the period 1896–1965. It then goes on to highlight an hypothesis and possible test to explain the nature of these associations, based on the intervening role of public opinion.

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