sources of law - week _ 1 (2013)

7/29/2019 Sources of Law - Week _ 1 (2013)

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27/01/2013 Legal Aspects of International Trade,Winter 2012

1

Welcome toLEGAL ASPECTS OF

INTERNATIONAL TRADE

Facilitator: Dr. Fred Koch

Session: Winter 2013


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2

Todays Agenda

1. Complete name cards & attendance

sheet

2. Handout and review course syllabus

3. Brief overview of course

4. Major legal systems of the world

5. Overview of the Canadian legal system

6. Sources of Canadian law


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3

Distribution and Reviewof the Course Syllabus


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4

Overview of the Course

Course will look at a variety of areas

of law that have a heavy impact onforeign trade with a view to alertingyou to when you need to do researchor retain legal counsel to advise you


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5

Overview of Course (contd)

Some of the areas of law we will cover

include:

1. The various legal systems in the world

2. The sources of Canadian domestic law

3. The law of contract in Canada

4. Domestic and foreign sale of goodscontracts


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Overview of the Course (contd)

5. Anti-competition laws in Canada

6. The law concerning privacy of

information7. Product liability law in Canada

8. Intellectual property (patents,

trademarks, copyright)


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7

Overview of the Course (contd)

While many of the concepts relate

primarily to Canadian law, the concepts

are similar in the law of the United

States, the United Kingdom, Australia,

New Zealand, and otherCommonwealth countries


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8

SLATE Overview

The SLATE website for the course

is your guide to class and examination

preparation. Students are expected to

complete the tasks on the course site

before each class throughout the term


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SLATE Overview (contd)

Go to that site and well gothrough how it works


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Step # 1:

Start with the Course Content

webpage


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Step # 2:

Left mouse click on Lesson

Modules


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Under the Lesson Modules youll

find a summary of each week. It

gives you an overview of the

lesson, the lesson objectives, a

link to the readings for the week, and

a description of the homework forthe week to be done in preparation

for forthcoming the class


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Under the heading RESOURCES in

the lesson module, you will find the

title Readings. Click on the link and

it will take you to the readings for the

week


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Under each Lesson Module for each

week you will also find Links to various

websites that contain useful informationrelated to the course

Some of these sites will be referenced inclass


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Step # 3:

Each week do the tasks listed under theheading ASSIGNMENT in the Lesson

Module. This is your weekly pre-class

homework.



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Step # 3 (contd):

Under the Assignment section, it includesdoing the weekly reading, doing the Review

Your Understanding questions, and doing

the Apply Your Knowledge case problems



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Step # 3 (contd):

Review Your Understanding

If go back to the homepage for the course,

you will find a sub-file labeled Review Your

Understanding. In that file, each week, there is

a list of questions about the materials (e.g.,

world legal systems, Cdn. Legal system, and

world trade organizations for week # 1)


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Review Your Understanding

You working out the answers to the

questions is a task designed to make surethat you understand basic content only.

Make sure you figure out and write down

the answers to each question each week!This is part of the homework you must do

each week in the course to prep for class


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Step # 3 (contd):

Go back to home page and open sub-filelabeled Apply Your Knowledge.



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SLATE Overview (contd)Step # 3 (contd)

Starting in week # 2, there are case

problems with questions. You need to work

through those problems and write down answers

to the questions. Compare those answers to those

of your classmates. If you are uncertain about a

particular answer, you may come e-mail the

instructor to schedule an appointment to discuss

the question and the answer. This is part of your

weekly homework.



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Expected to Demonstrate Problem-

solving Learning

In this course you will be expected to not

only demonstrate knowledge of content,

but an ability to apply it to new situations.

What does that mean?


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1. Through your readings and in class you will learnabout legal principles that apply in business

2. Having learned a legal principle you will beshown how to apply it to a new situation to

answer a question

3. You will then be asked to apply it to a differentsituation without instructor assistance and justify

your analysis using the concepts you have learned.

You will be graded on this process.



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Problem-Solving Thinking (contd)

To assist in this regard, go to CourseContent Home page and click on Apply

Your Knowledge


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Need to do and understand the Apply

Your Knowledge case problems

Preparation for assignments and

examinations in course. Will be expected

to do this sort of work


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Conclusion of Overview

Questions about (1) course

expectations, (2) course topics, (3)

course resources?


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Terminology

Why may the term international business

law be misleading?

Because it implies there is a single body

of international law that deals with

business transactions or trade


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Terminology (contd)

If I want to conduct international business

from Canada what law must I be

concerned about?

1. Canadian domestic law

2. The domestic law of each foreigncountry I am doing business in


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Terminology (contd)

3. Any applicable international treaties or

conventions

4. International trade customs and usage


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Only True International Law

Only truly international law is the law of

the sea. Why?


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30

The Development of National LegalSystems

In Western Europe,

most legal systems

developed in the

period of kingdoms

(between approx.

1200-1850 A.D.)


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The Development of National LegalSystems (contd)

The laws only applied as far as the

boundaries in which the kings subjectsresided. This was the foundation for

national systems of law in Western

countries.


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National Laws Not Entirely Unique

Although each kingdom developed its own

body of laws, it was often patterned after

one of five (5) major systems of law found

in the world


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Major Types of Legal Systems in theWorld

What are the five (5) major types of legal

systems in the world?

1. The Civil law system with roots inRoman law (circa 600 A.D.)

2. The common law system with rootsin England (circa 1500 A.D.)


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Major Types of Legal Systems in theWorld (contd)

3. Islamic law system with roots in the

Quran (circa 700 A.D.)

4. Socialist law system with roots in civil

law and Marxism (circa 1930s)

5. Customary law system with roots in

local cultures (various periods)


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The Term Civil Law

Term civil law used in two (2) very different

ways, namely:

1. To distinguish a nations body of law that is

not criminal law from that which is criminallaw

2. To identify the nations entire system of law

as based on Roman civil law, as opposed to

English common law


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The Term Civil Law(contd)

We will use civil law in contrast to

criminal law, and Civil law in contrast to

common law


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37

The Civil Law System

In 6th century A.D., Roman EmperorJustinian ordered the creation of a

comprehensive written code of laws for

the empire (Justinians Code).

Why was a written code possible in the

Roman empire of the 6th

century A.D.?
http://images.google.ca/imgres?imgurl=http://www.usu.edu/markdamen/1320Hist%26Civ/slides/01hist/justinian.jpg&imgrefurl=http://www.usu.edu/markdamen/1320Hist%26Civ/chapters/01HIST.htm&usg=__Vaqb-O7W7pQQXSDrQ5xwAZb4YIw=&h=1074&w=709&sz=492&hl=en&start=6&um=1&tbnid=AFg6fbuei5kLIM:&tbnh=150&tbnw=99&prev=/images%3Fq%3Dphoto%2Bof%2Bemperor%2Bjustinian%26hl%3Den%26sa%3DN%26um%3D1


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The Civil Law System (contd)

With a Civil law system, all of

the laws or principles are

written down in acomprehensive code. What

is required to learn and know

that code?


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What are some advantages to a code

system of laws?

1. The law is generally clear on a topic

2. The law does not change much overtime

3. Judges have limited discretion, mustsimply apply the law as written. Mainrole is interpretation.


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After being lost in the Dark Ages of Europe(700-1000 A.D.), Justinian Code discovered

by Catholic scholars in Italy in the 1100s.

It became the foundation of Roman CatholicChurch law in the Middle Ages (1200-1500

A.D.). (germantownacademy.org)
http://images.google.ca/imgres?imgurl=http://www.germantownacademy.org/Academics/MS/7th/middleages/perg/adrienneo/icons/monk.jpg&imgrefurl=http://www.germantownacademy.org/Academics/MS/7th/middleages/perg/adrienneo/adrienneo.html&usg=__P_jlRF3JiAkKtCZeGdiEUuCSABY=&h=720&w=450&sz=19&hl=en&start=17&tbnid=7I7RMltYqDrP3M:&tbnh=140&tbnw=88&prev=/images%3Fq%3Dmedieval%2Bmonasteries%26gbv%3D2%26hl%3Den


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Through the Catholicclergy, Roman

Civil law was gradually

introduced to and became

the foundation for the

secular law systems of

kingdoms in Western Europe

(e.g., Spain,Portugal, France,

Scotland)
http://images.google.ca/imgres?imgurl=http://bp3.blogger.com/_9GHLPOr8Wi4/R_kmjGIQvMI/AAAAAAAAAxE/6S3BqoTZR0Y/s1600/cardinal-castrillon-catholic-herald-priests-dont-need-permission-for-traditional-mass.jpg&imgrefurl=http://wdtprs.com/blog/category/classic-posts/&usg=__rNlCHnPWhxr4Sw1BIhujz3dBm1A=&h=300&w=450&sz=34&hl=en&start=22&tbnid=2dXKdV4VEINcNM:&tbnh=85&tbnw=127&prev=/images%3Fq%3Dcatholic%2Bclergy%2Bin%2Bmiddle%2Bages%26start%3D21%26gbv%3D2%26ndsp%3D21%26hl%3Den%26sa%3DN


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When kingdoms such as Spain,

Portugal, and France colonized

the New World, Africa, and

parts of Asia, they brought the

Civil law with them(rootsweb.ancestry.com)
http://images.google.ca/imgres?imgurl=http://www.rootsweb.ancestry.com/~coacdar/member_page/Columbus_Ship.jpg&imgrefurl=http://www.rootsweb.ancestry.com/~coacdar/member_page/american_history_essay_contest.html&usg=__g-0XPlwviaIzvu8Re7NmEEwhNIA=&h=274&w=350&sz=30&hl=en&start=8&tbnid=4FuA7nigRb9cqM:&tbnh=94&tbnw=120&prev=/images%3Fq%3Dchristopher%2Bcolumbus%26gbv%3D2%26hl%3Den


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In North America, the Spanish colonized

areas that are now Mexico and Central

America such as Costa Rica,

Nicaragua, Panama, etc. which are

Civil law countries


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The French colonized the

areas now known as the

American state of

Louisiana and the

Canadian province of

Quebec (originally calledNew France)
http://images.google.ca/imgres?imgurl=http://www.ph-ludwigsburg.de/html/2b-frnz-s-01/overmann/baf4/quebec/indiens/Dateien/champlain_500.jpg&imgrefurl=http://www.ph-ludwigsburg.de/html/2b-frnz-s-01/overmann/baf4/quebec/indiens/Dateien/De_Champlain.html&usg=__eZNjqcEl8Ir1Dc3s7CN4sgIL9DE=&h=500&w=469&sz=44&hl=en&start=4&tbnid=z-i7k_cbm5gZ-M:&tbnh=130&tbnw=122&prev=/images%3Fq%3DSamule%2BChamplain%26gbv%3D2%26hl%3Den%26sa%3DG


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45


To this day, these areas of North

America have a primarily Civil law

system (except in criminal matters)

(E.g., the Province of Quebec, the

State of Louisiana)


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46

The Common Law System

In 1066 A.D.,William, Duke of

Normandy

(northwesternFrance), crossed

the English channel

and conquered what is

now England
http://images.google.ca/imgres?imgurl=http://www.historyonthenet.com/Normans/Saxon_Herald/images/william.jpg&imgrefurl=http://www.historyonthenet.com/Normans/williamconqueror.htm&usg=__8YhRJ17B_0jaEtnvywf5DIpgEXc=&h=281&w=290&sz=7&hl=en&start=12&tbnid=sMmT7s7ABHronM:&tbnh=111&tbnw=115&prev=/images%3Fq%3DWilliam%2Bthe%2BConqueror%26gbv%3D2%26hl%3Den%26sa%3DG


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27/01/2013 Legal Aspects of International Trade,

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The Common Law System (contd)

One of the first things King William I

wanted to do in England was figure out the

nations wealth. To do this he

ordered prominent local people to meet

with royal officials and report on what

every person in the community

possessed (e.g., name, number ofhorses, cows, sheep, etc.)


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It is believed that this led to the

development of the jury system.

Royal judges traveled fromvillage to village in circuits.

Anyone in a village with a case

appeared before the judge and a

group of locals called a jury.
http://images.google.ca/imgres?imgurl=http://www.costumes.org/History/victorian/men/vanityfair1876.jpg&imgrefurl=http://www.costumes.org/History/100pages/timelinepages/1870s1.htm&usg=___FdgHJxTIdel27ZSjJAKlXtg9UY=&h=504&w=302&sz=26&hl=en&start=14&tbnid=BtGUt1g8t7h84M:&tbnh=130&tbnw=78&prev=/images%3Fq%3D%2522english%2Bjudge%2522%26gbv%3D2%26hl%3Den%26sa%3DG


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Local people were compelled by royal

order to sit on juries because they

personally knew what the dispute wasabout. Also, they would inform the judge

about local customs for dealing with these

types of situations based on oral histories


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Sometimes the traveling judges (about 8

to 12) would take a local custom and turn

it into a general rule back in London onceoff the circuit. These rules became

common to the whole kingdom, and

became binding royal laws, not merelycustoms or traditions


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In the common law system, previous

decisions by judges in like situations are

binding on judges at a lower or equallevel. This is called the doctrine of

precedent or stare decisis (Latin for

stand by decision)


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In the common law system, the bindingeffect of the law comes from the fact that

a judge had previously decided it, not

from the fact that a legislature enacted awritten code of law. Thus, in the common

law system, judges make law through

their decisions in cases and this body oflaw grows as more decisions are made


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What are some advantages of the

common law system?

1. Certainty based on precedent

2. Laws are less politically influenced

3. Law more flexible as societychanges (advantage for business)


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Disadvantages include:

1. Not a comprehensive system

since it developed piece by piece

2. Not easily accessible and

understandable to lay peoplebecause based on reading

judges decisions in cases


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The English common law was well

established by about the mid-1600s


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If you wish to see what a common law

judges decision looks like go to the

website:

http://scc.lexum.org/decisia-scc-csc/scc-c

sc/en/nav.do

Select a case and open it

Th C S ( d)
http://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.dohttp://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.dohttp://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.dohttp://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.dohttp://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.dohttp://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.dohttp://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.dohttp://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.dohttp://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.dohttp://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.dohttp://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.dohttp://scc.lexum.org/decisia-scc-csc/scc-csc/en/nav.do


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When the English empire began to

develop, England exported the commonlaw to many parts of the world including:

1. U.S.A. (except Louisiana)

2. Canada (except Quebec)3. Caribbean Islands

4. Parts of Africa such as South Africa

5. Australia & New Zealand

6. Singapore

7. India

Th R l f C difi d L i C
http://images.google.ca/imgres?imgurl=http://abagond.files.wordpress.com/2007/06/nelson.jpg&imgrefurl=http://abagond.wordpress.com/2007/06/26/a-guide-to-anglos/&usg=__1rdmzdgFd-23U2B3A3ydIyOI8ww=&h=486&w=400&sz=107&hl=en&start=21&tbnid=xQz4VkrUXTgrtM:&tbnh=129&tbnw=106&prev=/images%3Fq%3Denglish%2Bempire%26gbv%3D2%26hl%3Den%26sa%3DG


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The Role of Codified Law in CommonLaw System

Brief discussion of statute law and how

the English Parliament is the supreme

law maker in that kingdom (ultra vires

doctrine)

http://www.youtube.com/watch?v=5xUy

2inkGHQ
http://www.youtube.com/watch?v=5xUy2inkGHQhttp://www.youtube.com/watch?v=5xUy2inkGHQhttp://www.youtube.com/watch?v=5xUy2inkGHQhttp://www.youtube.com/watch?v=5xUy2inkGHQ


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Islamic Law System

Islamic law began to develop in the

Middle East around 700 A.D. and was

based on the Quran

It spread from the Middle East to

northern Africa, Iran, Afghanistan, andIndonesia


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Islamic Law System (contd)

Unlike the Civil law and the common law

systems, which are today primarily

secular systems, Islamic law is stillheavily tied to Islam (the Quran in

particular), and thus, tends not to change

to the same extent with societal

developments


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Also, the split in Islam, and the local

culture influences, tend to lead to more local

variation in the laws application byIslamic courts. Thus, need to research

law in each country carefully before

doing business in countries whose law is

based on the Islamic system.


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More restrictions on contractual

arrangements than other systems

because of Quran based doctrines

against things such as interest and

unjustified profits


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Socialist Law System

Developed in SovietRussia during the

1920s and 1930s, then

exported with

Communism after WWII to

countries in Eastern Europe,

parts of Africa, and Asia

(mainly Vietnam, China, and

North Korea)
http://images.google.ca/imgres?imgurl=http://imagecache2.allposters.com/images/pic/CLI/SOV003~The-Republic-of-Social-Soviet-Union-for-Country-and-Urban-Worker-Posters.jpg&imgrefurl=http://www.allposters.com/-sp/The-Republic-of-Social-Soviet-Union-for-Country-and-Urban-Worker-Posters_i1752005_.htm&usg=__8TLaaAP46Sfmfg_7oI3qcQrpUpo=&h=425&w=277&sz=36&hl=en&start=25&tbnid=wq7QkAVFxGfSHM:&tbnh=126&tbnw=82&prev=/images%3Fq%3DSoviet%2BUnion%26start%3D21%26gbv%3D2%26ndsp%3D21%26hl%3Den%26sa%3DN


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Socialist Law System (contd)

Based on a Civil law system with an

overlapping layer of Marxist-Leninist

ideology

Gradually starting to disappear as

former communist countries become

more capitalistic in nature

C L l S


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Customary Legal Systems

Laws are in large measure codified,but very much linked to ancient

cultural values and moral principles

More general and less certain than

Western legal rules, which may

present challenges to Westernbusinesses (need for research)


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Customary Legal Systems (contd)

Found in countries such as China,India, and parts of Africa


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Major Trading Partners of Canada

What countries are Canadas top

trading partners (apart from the U.S.)?


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Legal systems exercise for seven (7)

major trading partners


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Canadian Constitution

To understand Canadian legal system,need to understand two constitutional

documents. What are they?

1. Constitution Act, 1867

2. Canadian Charter of Rights &Freedoms(1982)


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Nature of a Constitutional Law

Supreme and founding law of a country

Overrides all other laws of that country ifthere is a conflict

Who decides if there is a conflict?


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Nature of Constitutional Law

Cannot structure a functional government

without constitution. Why?

Sets out (1) powers of government, and

(2) the legal rights of the people


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Key U.S. Constitutional Documents

What are the two (2) key U.S.constitutional documents?

1. The Constitution of the UnitedStates of America(1776) Articles

8-10 deal with powers of federal govt

and state govts (seewww.constitution.org/constit_.htm)

Key U S Constitutional Documents
http://www.constitution.org/constit_.htmhttp://www.constitution.org/constit_.htm


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Key U.S. Constitutional Documents(contd)

2. The Bill of Rights(1791) (see

www.constitution.org/constit_.htm, and then click on the words Bill

of Rights at the top)
http://www.constitution.org/constit_.htmhttp://www.constitution.org/constit_.htm


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Sources of Canadian Law

Review and discuss handouton the twoprincipal sources of Canadian law


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Highest Court in Canada

Supreme Court of Canada:

J d d L


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Judge-made Law

Nine (9) judges sit as a panel on S.C.C.:


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Conclusion of Cdn. Legal System

Are there any questions about how the

Canadian legal system operates?


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U.S. and Commonwealth Countries

Discuss U.S. and other Commonwealth

countries such as Australia


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International Organizations

All these organizations are designed to

pressure governments into harmonizing

their laws on business and trade. Have

met with limited success because of the

doctrine of sovereignty


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International Organizations

Discuss W.T.O. and General Agreement

on Tariffs and Trade (GATT)

N.A.F.T.A. and N.A.F.T.A. trade panel

E.U. and E.U. Trade Commission

C


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Conclusion

Questions about the readings on major trade

organizations or trade treaties can be raised

next week, once done the readings

Next week look at forms of business

organization


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The end!

for now