Law In A Global Context Flashcards
Why do we need to talk about law in a global context?
- Because although we are a little island at the bottom end of the world, NZ citizens, residents and the state on a daily basis engage with people overseas and those interactions raise a variety of legal issues.
- So we need rules to deal with trans boundary private interactions, such as marriages between people of different nationalities, or if people buy something from overseas but one party doesn’t perform the terms of the contract we need to figure out how to deal with these things.
We need to deal with situations where maybe someone commits a crime overseas. And maybe its not something we consider a crime, but the overseas jurisdiction does, or vice versa. How do we deal with that?
- And we need to have rules that govern state interactions in the same way that we need to regulate interactions between private individuals in any domestic legal system.
- And the equivalent question we can ask is how do states conclude treaties with each other?
Sometimes treaties are very similar to a contract. And what if one states conduct such as industrial activities, affect another state through air pollution or polluted rivers or something like that.
- What if one state attacks another and invades another?
- What if new states are created? And how does that change their relationship with other states?
- And also how do we deal with global problems that one state just simply cannot solve on its own? And particularly we can think about climate change, which is basically a tragedy of the commons property issue writ large at a global scale.
International Law v Domestic Law
- These are issues of private and public international.
International law: includes public
international law and private international law or conflicts of law.
Areas of Friction
Whenever legal systems meet, there is friction that arises that can result from:
- Linguistic Differences
We need to learn how to talk to each other in a shared language.
It can also result from:
- Different frames of reference
Around what a contract is, what a contract does, what property does, whether we allow private property, what our starting point is and so on, and which can then result in different outcomes.
We might also have:
- Different concepts.
And therefore encounter terms that are quite unfamiliar to us. To a civilian lawyer, for example, a trust like we have here in the common law is a very bewildering concept.
Things like trusts do not exist in the civil law systems. There are similar kinds of institutions that do some of the roles that trusts play here, but not all.
Civil lawyers don’t have any combination of institutions that results in the same outcome.
And sometimes we’ve got:
- concepts that seem similar but are actually not.
And there is an example from the Pejovic reading:
- French law: clause penale = contractual clause specifying what the creditor can claim back from the debtor if the debtor does not perform as promised.
In French law for example there is such a thing as a
clause penale: it is a contractual clause that says what a creditor can claim back from the debtor if the debtor does not perform as promised.
So say you and i have an agreement whereby I will make a painting for you by the 31st of December. Now, we could then get to the 1st of January and I haven’t done my painting and you say you haven’t performed, I want damages.
We could go through the difficult exercise of calculating damages under contract law and if we can’t agree, maybe even involve some judges in it and it might get expensive and time consuming.
Instead, we could add a clause to our contract that says, if I haven’t done it by the 31st of December, on the 1st of January, I’ll pay you $1000. Easy.
Removes the evidentiary issue because all you need to show at that point is that I haven’t done the painting and therefore i owe you a thousand dollars. Its kind of a new obligation that arises as a result. Saves us from having to go to Court.
That is a clause penale in French law.
Even if you don’t speak French and you think penalty clause, you think that sounds quite similar?
- English law:
- Penalty clauses = contractual clause that imposes an extravagant amount compared to the loss that non-performance could cause.
But a penalty clause is actually a contract clause that imposes an extravagant amount of money. So instead of owing you $1000, the clause might say you owe me $1 million dollars.
That is an extravagant amount of money, because of its extravagance in the common law. Judges will often set these kinds of clauses aside.
What they do allow in the common law is what’s called liquidated damages.
- Liquidated damages = contractual clause that specifies the estimated loss caused by non-performance in advance.
That is actually the same as a clause penale in French law (liquidated damages). But you wouldn’t think so if you saw it. And if you had a bad translation, it probably would go focus on the penalty clause.
But you’d be confusing the readers from the other jurisdiction because they have a different understanding of what a penalty clause might be. Which sort of invokes the importance of having good legal translators who don’t know just the language, but also the law in each system.
Clause penale (french) and liquidated damages (english) are the same thing. Not penalty clause.
So you need to have a good understanding of the different concepts and how the different translations work out because you can easily get caught out if you rely on the most obvious translation.
But it’s not always a translation issue the same can apply between jurisdictions that use the same language when they use sort of similar terms, but actually to mean very different things.
So thats an area of friction that can arise.
Other areas of friction are simply about what law do we apply and those are questions that are traditionally answered by what’s known as conflicts of law or private international law.
Which law applies? Conflicts of law.
Other areas of friction are simply about what law do we apply and those are questions that are traditionally answered by what’s known as conflicts of law or private international law.
And that area of law deals with two particular questions. The first one is:
- The courts of which country get to decide the dispute?
If there is a dispute between people in different jurisdictions which Court can actually hear that and decide that dispute, say we have NZr who’s married to a South African, they know want to divorce does that get heard by the South African Courts or the NZ Courts?
Where will that be heard? That’s something that will need to be decided. I think in most cases its where the family residence is.
And secondly it might also be:
- Which laws should they apply to the dispute?
What law do they then apply? So the fact that it gets heard in New Zealand Court doesn’t necessarily and automatically mean that its only governed by NZ law sometimes conflicts of law might actually say certain elements or all elements of the case need to be resolved using foreign law.
And so that again emphasises the importance of why we should know about some of the other legal systems and the basics of it because actually it might occur that you need to apply foreign law and in most cases you rely on an overseas lawyer in your instruction, but not always.
- Conflicts of law traditionally determined by domestic law, but increasingly harmonised by treaties.
So conflict of law traditionally was actually determined by domestic law.
Each country had its own system to decide this, which as you can imagine is just reason for more conflict, doesn’t always remove the conflict because sometimes maybe both countries might say that a case has to be heard in their Courts applying their law and the substantive provisions point in very different directions.
So what countries have done about that is often to try to harmonise these provisions, usually through a treaty.
So for example there is the:
- The United Nations Convention on Contracts for the International Sale of Goods.
Which has been ratified by quite a few countries and then if a buyer and seller are based in a state that has ratified this convention then these rules will apply and that deals with things such as what happens if there is non-performance and so on and what are the remedies.
We (NZ) have ratified that, so if you look at the contract in commercial law, you’ll see there is a seperate sub-part on international sales that will deal with at least some of the most common problems when you have international sales of goods to provide some certainty to people.
So that is a very important convention.
We also sometimes harmonise this through customs so states might all take similar approaches like, say, real estate for example, for fairly obvious reasons, all states pick if there is a claim about real estate that will be heard by the Courts where the land is located, because it doesn’t really make sense and it creates a lot of chaos, as if dispersal of land is governed by New Zealand law, the neighbouring parcel is governed by Indian law, and so that just wouldn’t work very well at all.
So most countries will say real estate, that remains in the country where it is.
This convention is not for free trade. You have got free trade agreements for that.
This convention applies but it doesn’t really require any relationship with free trade agreement. Free trade agreements are largely or historically about reducing tariffs and removing some export or import restrictions.
But even with tariffs applied or restrictions applied parties in different states might still want to deal with each other unless two countries completely prohibit trade with each other. Which isn’t very often the case.
And you still have issues that might arise around performance of the contract between those two parties, which is entirely a private transaction, just a private transaction that sort of straddles the borders. So buyer in one country seller in another country.
So these are important in helping facilitate free trade, but they’re not what makes free trade as such.
So all of this also sits in an area of comparative law which is really quite important for various reasons, because, familiarity with overseas legal systems will be really important when you need to apply some of them. And if your client isn’t really that keen on instructing foreign council.
Comparative law.
So all of this also sits in an area of comparative law which is really quite important for various reasons, because, familiarity with overseas legal systems will be really important when you need to apply some of them. And if your client isn’t really that keen on instructing foreign council.
But there is sort of a more cerebral reason for this, why comparative law is really interesting and quite exciting. It’s to help us understand our own system.
And it helps us sort of understand that our way of doing things isn’t the only way of doing things. Ultimately, all societies need to address very similar questions.
How do we enable people to create voluntary obligations to each other through contracts and so on?
If we have this, what happens if a party doesn’t perform? What remedies do we have? How do we deal with neighbouring disputes, things like torts and so on.
All countries will need to and all legal systems need to have some answer to that, to ultimately try and sort of keep harmony and peaceful relations between inhabitants.
And we all take different approaches to it. Partly that might be because we’ve got different moral starting points, different moral goals. But sometimes it might just be, well, we start organising things differently or we took a different starting concept.
And that makes it very interesting to think about because it also then makes you question what are our starting points in, say, property law and tort law? And is this the right way? Does this work? How do other systems work in some ways?
How do other legal systems work and experiment in other approaches, and we can learn from that. But particularly we can actually learn a lot about our own system and learning how to justify the choices made in our system as compared to choices made elsewhere. So that’s another reason why it’s really quite interesting, to work on this.
- Why do we do things a certain way?
- What other approaches exist?
- What choices do these approaches reflect? How do these choices differ from the choices made by our legal system?
