scholarly journals Admissibility of Lis Pendens in International Commercial Arbitration: A Comparative Insight of Different Legal Systems

2020 ◽  
Vol 13 (4) ◽  
pp. 134
Author(s):  
Ximei Wu ◽  
Abid Hussain Shah jillani
Keyword(s):  
Common Law ◽  
Effective Means ◽  
Civil Law ◽  
Deep Understanding ◽  
International Level ◽  
Legal Systems ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Domestic Level

An attempt has been made to investigate the role of the doctrine of Lis Pendens in international commercial arbitration while making a comparison of civil and common law traditions. Arbitration is regarded to be less painful and an effective means for resolving any type of commercial disputes. Sources of the law to investigate Arbitration's regulation on a national, institutional, and international level. However, it is known that the lis pendens doctrine has been rarely codified; thus, scholarly writings and case laws were consulted by the research for determining its adoption and content. It is important to note that the lis pendens is initially regarded as a tool, which has been developed to manage the proceedings of parallel court on a domestic level. The study concludes while arguing that when it comes to civil law tradition, lis pendens is regarded as an independent doctrine in international commercial arbitration since it shares the same claim of being tried in various forums simultaneously. In contrast, lis alibi pendens in the jurisdiction of common law is not known as a doctrine, but it is viewed as one of many factors whole applying the forum non-convenience principle. Both civil and common law need identity between various parties and their claims to constitute lis pendens in two proceedings, and therefore, they have a conform and deep understanding of the concept.

scholarly journals Bribery and International Commercial Arbitration – the Role of Mandatory Rules and Public Policy

2012 ◽  
Vol 43 (4) ◽  
pp. 661 ◽  
Author(s):  
Vladimir Pavić
Keyword(s):  
Public Policy ◽  
Civil Law ◽  
The Body ◽  
Criminal Behaviour ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
The Public ◽  
Additional Problem ◽  
Mandatory Rules

Although designed to resolve private disputes, usually commercial in nature, arbitration may nevertheless encounter during its course allegations of impropriety and criminal behaviour. In the context of international commercial arbitration, the most common of those are allegations of bribery. However, tribunals may adjudicate only matters of private law and, should they establish existence of bribery, may draw only civil law consequences thereof. An additional problem in this respect is determining the body of rules that will be applicable in defining the very notion of bribery, since some aspects of bribery are almost universally prohibited, while the others are banned only in certain jurisdictions. In determining the law applicable to the matters of bribery, tribunals then face choice-of-law dilemmas. Each of the public policy techniques (overriding mandatory provisions, international and/or transnational) has its strengths and weaknesses. 

scholarly journals COMMON SENSE AND LINGUISTIC EXAMINATION IN DIFFERENT LEGAL SYSTEMS

2016 ◽  
pp. 214-219 ◽  
Author(s):  
A. D. Shmelev
Keyword(s):  
Common Law ◽  
Civil Law ◽  
United States Supreme Court ◽  
The United States ◽  
Linguistic Competence ◽  
National Language ◽  
Legal Systems ◽  
Federal Law ◽  
The Russian Federation

The paper discusses the role of linguistic examination in civil law and common law legal systems. It argues that while it is forensic linguistic expertise that often plays an important role in civil law systems, the lay people’s opinion is crucial in common law systems. It suggests that the best way to obtain adequate results for civil law systems (including the Russian legal system) is to combine the two approaches, that is, to make use of an expert linguistic analysis of the linguistic competence of lay speakers of the language in question. Various examples illustrate the point (among them the problems arising in civil suits of honor protection and business reputation defense as well as the famous “tomato case”, in which the United States Supreme Court addressed whether a tomato was classified as a fruit or a vegetable). In addition, the paper discusses vague wording and consequent difficulty of implementation of the “Federal Law on the National Language of the Russian Federation.”

Embracing Diversity – The Role of the Hague Conference in the Creation of Universal Instruments

2019 ◽  
pp. 31-46
Author(s):  
Hans van Loon
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Private International Law ◽  
Legal Systems ◽  
Direct Cross ◽  
The Usa ◽  
The Hague ◽  
Religious Systems ◽  
Cross Border Cooperation

The Hague Conference on Private International Law (HCCH) has been a laboratory for the development, and servicing, of legal instruments to handle the diversity of legal systems, in the interests of mobile people and of companies acting across borders. In addition to coordinating such diversity through rules on the conflict of laws and of jurisdiction of the courts, modern Hague Conventions have created machinery to facilitate direct cross-border cooperation among different national administrative authorities and courts. This chapter provides illustrations on how the HCCH has sought to bridge three types of diversity of legal systems: among federal, quasi-federal and unitary jurisdictions; Common Law and Civil Law jurisdictions as well as the varieties within them (including differences between the USA and other Common Law systems); and secular and religious systems. The chapter also highlights the importance of inclusive working methods, and the – existing and potential – complementarity of global human rights instruments and Hague Conventions.

Admission of Extrinsic Evidence for Contract Interpretation: The International Arbitration Culture in Light of the Traditional Divisions

2018 ◽  
Vol 18 (2) ◽  
pp. 100-117
Author(s):  
Maxime Panhard
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Tradition ◽  
International Arbitration ◽  
Commercial Arbitration ◽  
International Commercial Arbitration ◽  
Cultural Roots ◽  
The Common ◽  
Mergers And Acquisition

Abstract Mergers and acquisition (M&A) operations generally follow wide due-dil­igence and investigation works. This suggests that a lot of elements outside of the final contract could help the judge or arbitrator interpret the intent of the parties. Yet, the common law tradition usually includes a so-called ‘parol evidence rule’ (PER) that pro­hibits the use of such evidence to this end, among numerous exceptions. Other legal tradition such as the civil law don’t include such rule. As transnational M&A operations now generally use international commercial arbitration (ICA) as a way to solve potential disputes, parties can wonder if these extrinsic evidence can be used in an ICA context, given its multicultural legal habits. To answer this question, this article analyses the cultural roots that explain the existence or absence of the PER, and matches them with the specificities of ICA. There are two main explanations for the distinction between common law and civil law regarding the PER. One is substantial and regards the con­tractual interpretation approach. The second depends on the culture regarding evidence and the existence of exclusionary rules. These two explanations don’t survive in ICA. Moreover, the specificities of ICA tend to encourage the admission of extrinsic evidence in contractual interpretation.

The Evolution of a Nation

2011 ◽  
Author(s):  
Daniel Berkowitz ◽  
Karen B. Clay
Keyword(s):  
Political Competition ◽  
Common Law ◽  
Civil Law ◽  
Legal Institutions ◽  
Colonial History ◽  
Legal Systems ◽  
Water Transportation ◽  
Long Run ◽  
Access To Water ◽  
Late Twentieth

Although political and legal institutions are essential to any nation's economic development, the forces that have shaped these institutions are poorly understood. Drawing on rich evidence about the development of the American states from the mid-nineteenth to the late twentieth century, this book documents the mechanisms through which geographical and historical conditions—such as climate, access to water transportation, and early legal systems—impacted political and judicial institutions and economic growth. The book shows how a state's geography and climate influenced whether elites based their wealth in agriculture or trade. States with more occupationally diverse elites in 1860 had greater levels of political competition in their legislature from 1866 to 2000. The book also examines the effects of early legal systems. Because of their colonial history, thirteen states had an operational civil-law legal system prior to statehood. All of these states except Louisiana would later adopt common law. By the late eighteenth century, the two legal systems differed in their balances of power. In civil-law systems, judiciaries were subordinate to legislatures, whereas in common-law systems, the two were more equal. Former civil-law states and common-law states exhibit persistent differences in the structure of their courts, the retention of judges, and judicial budgets. Moreover, changes in court structures, retention procedures, and budgets occur under very different conditions in civil-law and common-law states. This book illustrates how initial geographical and historical conditions can determine the evolution of political and legal institutions and long-run growth.

scholarly journals The Transplant of Trusts in Different Legal Jurisdictions: The Example of China

Global Jurist ◽  
2020 ◽  
Vol 0 (0) ◽  
Author(s):  
Giulia Terranova
Keyword(s):  
Legal System ◽  
Common Law ◽  
Civil Law ◽  
Original Model ◽  
People’S Republic Of China ◽  
Legal Institution ◽  
Legal Systems ◽  
People's Republic Of China ◽  
Republic Of China ◽  
Trust Law

AbstractLegal transplants are considered a significant factor in the evolution of legal systems. One example of transplant of a legal institution through its prestige is the diffusion of the trust from the English legal system to other common law systems and to many civil law countries. One of these is China that in 2001 enacted the Trust Law of the People’s Republic of China. This paper wants to analyse the trust under the Trust Law and to compare it with the original model in the English legal system, understanding how far or how close it is from the original one.

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.

Covering Blood and Graves

2018 ◽  
pp. 213-237
Author(s):  
Nancy O. Gallman ◽  
Alan Taylor
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Legal Systems ◽  
Spanish Law ◽  
Indigenous Groups ◽  
Spanish Florida ◽  
The Face ◽  
English Law ◽  
Corporate Autonomy

Gallman and Taylor take up murder at the boundary zones between the Iroquois and British settlers and between Spanish Florida and the Lower Creeks and Seminoles. Despite contrasts between the legal systems of the empires—civil law and inquisitorial procedure on the Spanish side, common law and trial by jury on the British side—indigenous groups came to similar conclusions regarding murder. Specifically, Native leaders rejected execution of the guilty, as proposed by English law, or other punishments, from execution to imprisonment to exile, under Spanish law. They opted instead to resolve matters by “covering the grave,” or giving gifts by the culpable party to the aggrieved party in lieu of revenge. This practice was less likely to spark a blood feud and enabled indigenous groups to preserve corporate autonomy in the face of pressures to conform to imperial norms. Though reluctantly, imperial officials often went along with this in order to keep the peace.

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.

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