Geoffrey Samuel's distinctive approach is to present the English common law in the light of its history and its dominant ideas. A student will learn not only what are the major rules of private law and civil law procedure, but will grasp the spirit of the common law. He will thus learn why they exist in a particular form and how common lawyers make them work. Civilian terms are used to provide a guide for the student from a civil law system to understand the initially strange terms and approaches of the common lawyer. This book is clear and insightful. It should be read particularly by Masters students and those embarking on a doctorate involving study of the common law.' - John Bell, Pembroke College, UK'To write a good introduction to the common law aimed mainly at civil lawyers is a real challenge. One needs not only to master the common law, its history and its sociological backgrounds, but also to understand how the prospective readers think in their own civilian legal systems. With his longstanding teaching activities in civil law countries, his obvious deep knowledge of the historical roots of civil and common law, Geoffrey Samuel offers here a book which should be pressed into every hands across the civil law world. Finally, we get here an introduction to the common law truly written for civilian lawyers and students, which is easy to understand and thoughtful. A brilliant piece for which the author should be praised.' - Pascal Pichonnaz, University of Fribourg, Switzerland 'Common law has remained enigmatic for lawyers from the civil law legal culture. This book presents a wonderfully compact introduction to the English common law and explains concisely why it is as it is today. Geoffrey Samuel offers insightful and scholarly first-rate representation of those characteristics which stand out for the civil law lawyer. Clarifying and supporting diagrams are especially helpful for non-common law lawyers. Samuel's A Short Introduction to the Common Law is highly recommended for anyone looking for clear and fluently written basic insight into the common law and its historical foundation.' - Jaakko Husa, University of Lapland, Finland This book provides a short, accessible introduction to the English common law tradition, in particular to the civil process. It adopts an approach which explains the historical development of the common law institutions and procedures whilst also setting them in perspective through a comparative outlook. Aspects of the common law are contrasted on occasions with structural or functional equivalents (or near equivalents) in the civil law. The key topics covered include: the English civil courts (and other dispute resolution institutions and alternatives), civil procedure, remedies, sources of law, legal reasoning, legal education, legal theories, legal institutions and concepts and legal categories. In addition to textual description and analysis, the book makes frequent use of visual diagrams to explain and to illustrate aspects of the common law. Providing both an overview of the English common law and an insight into the legal mentality of common lawyers, the book will appeal both to first year law students as well as to continental jurists who are investigating the common law for the first time. Contents: Preface Introduction 1. Development of the English Courts 2. Development of the English Procedural Tradition 3. English Law Remedies 4. English Legal Education and English Legal Thought (1): Sources and Methods 5. English Legal Education and English Legal Thought (2): Academic Theories 6. Legal Institutions and Concepts in the Common Law (1): Persons and Things 7. Legal Institutions and Concepts in the Common Law (2): Causes of Action and Obligations Concluding Remarks Bibliography Index

This book brings together a number of contributions examining how changes associated with economic globalization have contributed to the creation of new pressures on, and expectations of, those fields of law connected to the regulation of cross-border commercial transactions. These new demands of law - in particular, that it be more agile or "flexible" in regulating the economy - have prompted lawmakers and regulators in multiple jurisdictions to adopt a range of new regulatory techniques and legal forms to respond to this challenge. In many cases, these adaptations in law have entailed compromising traditional legal principles, such as legal certainty, in favor of empowering regulators with greater discretion than has traditionally been permitted in modern law. This change raises important questions about the meaning of fairness (certainty or flexibility), as well as the relationship between the public and private good.

More and more, social security systems influence each other. Governments, policy makers and academics have become very interested in the way various social security systems approach particular problems, such as ageing of society and the policy to reintegrate recipients of social security benefits into the workforce. For this purpose a profound description and analysis of the legal aspects of the Dutch social security system should prove useful. This monograph aims to provide this information. Moreover, this book describes the Dutch system from an international perspective: it discusses the impact of ILO Conventions, Conventions of the Council of Europe and EU regulations and directives on the Dutch social security system. In this way it shows which impact international law has had on the Dutch system. This contributes to more insight of the meaning of international social security law on this particular system, and it also contributes to the general knowledge of the impact international law has on national social security law.

In the event that damage is caused as a result of the Year 2000 problem, who will be responsible for compensating the victims of such damage? Should the developers, vendors or licensors of non-compliant software be held liable if their products do not continue to function correctly through the change in the millennium? Should those who provide "fixes" to the Bug which do not work properly be accountable for damage caused? Do end-users have a duty to ensure that their software is Year 2000 compliant? These questions, among others, will not be answered fully until the courts have had an opportunity to rule upon disputes which will no doubt arise. Other matters to be considered include the type of agreement that has been entered into between the parties, which rules will therefore apply and what defences, if any, may be available to the defendant. Insurance is also a big issue. Many insurance companies are stating that damage resulting from the Millennium Bug will not be covered by existing policies, and defences such as force majeure and act of God have been raised. What will happen when these issues come to litigation remains to be seen. This special issue of the "Comparative Law Yearbook of International Business" discusses the legal implications of the Millennium Bug in various countries. It describes the way in which agreements relating to software are viewed by different jurisdictions and the possible attribution of liability for damage caused by the Bug.

The pleading and proof of foreign law are often treated as matters of peripheral importance. But, in reality, how foreign law is established, and whether it must be established at all, are central issues in private international law. Whether litigants are free to ignore the foreign elements in a dispute goes to the heart of the conflicts process, and without effective means to establish foreign law the very purpose of that process is subverted. Such issues give rise to particular problems in English law. It is often unclear whether the rules for choice of law are mandatory, and whether the application of foreign law is therefore required. The cost and uncertainty of establishing foreign law may also affect how cases are argued and decided, and may discourage litigants from suing at all. This book, the first to examine the topic from the perspective of English law, offers a radical reappraisal of a long-neglected subject. Fentiman argues that the law is both more complex, and more defensible, than had previously been supposed. He provides a practical guide to the subject and in so doing presents the conflict of laws in a way which is both novel and illuminating.

Comparative constitutional law is a field of increasing importance around the world, but much of the literature is focused on Europe, North America, and English-speaking jurisdictions. The importance of Asia for the broader field is demonstrated here in original contributions that look thematically at issues from a general perspective, with special attention on how they have been treated in East Asian jurisdictions.The authors - leading comparativists from around the world - illuminate material from Asian jurisdictions on matters such as freedom of religion, constitutional courts, property rights, emergency regimes and the drafting process of constitutions. Together they present a picture of a region that is grappling with complex constitutional issues and is engaged with developments in the rest of the world, while at the same time pursuing distinctive local solutions that deserve close attention. This unique scholarly study will prove an important research tool for Asian scholars, constitutional lawyers within Asia and comparative constitutional scholars around the world. Contributors: T. Allen, J. Blount, J.A. Cheibub, S. Choudhry, R. Chowdhry, M. Clark, R. Dixon, T. Ginsburg, R. Hirschl, M. Khosla, F. Limongi, K. O'Regan, V.V. Ramraj, C. Saunders, A. Stone, M. Tushnet

Ecological degradation has been an object of concern for the international community since the early 1970s, but legal approaches that have been employed to improve the protection of ecosystems have failed to halt this decline. Ecological Governance explores how the law should respond to this rapid global deterioration of ecosystems by examining the foundational scientific and ethical considerations for designing laws that are effective for ecological protection. Based on these analyses, it argues that developed states should prioritise the reduction of the ecological stresses for which they are responsible in decision-making on their future courses. The author also proposes structures for governance and associated legal frameworks that would enable the formulation and implementation of policies for ecological sustainability.

Die Verletzung vorvertraglicher Aufklärungspflichten beim Franchising steht im Mittelpunkt gerichtlicher Auseinandersetzungen zwischen Franchise-Geber und Franchise-Nehmer. Gleichzeitig stellt sich bei internationalen Franchise-Systemen die Frage nach dem anwendbaren Recht, da die internationalprivatrechtliche Anknüpfung von Ansprüchen aus culpa in contrahendo immer noch umstritten ist. Mit dieser Arbeit werden die spezifischen Aufklärungspflichten des Franchise-Gebers beschrieben und mit dem Franchise-Recht des US-Bundesstaates Kalifornien verglichen. Den Schwerpunkt der Arbeit bildet jedoch die Frage der Qualifikation und des Statuts von Ansprüchen aus culpa in contrahendo bei der Verletzung vorvertraglicher Aufklärungspflichten. Durch eine eingehende Analyse des deutschen internationalen Deliktsrechts nach der IPR-Reform von 1999 zeigt der Verfasser auf, dass sich der Gesetzgeber für die deliktische Anknüpfung der culpa in contrahendo entschieden hat. Die vertragsakzessorische Anknüpfung bietet dabei das notwendige Korrelat, um das Spannungsfeld zwischen Delikts- und Vertragsstatut unter Berücksichtigung materiellrechtlicher Gerechtigkeit aufzulösen.

The subject of investment relationships between the European Union and China is an increasingly vital topic to understand, yet academic literature has until now been underexplored. Bringing together expert contributors, this book provides a critical analysis of the current law and policy between the EU and China, which will prove to be vital in the field of international economic law. Divided into three parts, this book deals with the key issues of the EU-China investment partnership and its implications, both internally and internationally. Each chapter in China-European Union Investment Relationships covers a core theme of the subject of international economic law, including competition law, financial regulation, economic integration and dispute resolution. Covering the key topics in the area, and drawing diverse perspectives into a single collection, this book is an important resource for scholars and practitioners in legal and policy fields, and will be invaluable for students of trade and investment law to understand in more detail human rights and environmental law and policy. Contributors include: J. Baumgartner, J. Chaisse, N.B. Duong, D. Freeman, M. Hodgson, J. Hu, J. Jemielniak, C.-C. Kao, P. Kerneis, D.J. Lewis, F. Lupo-Pasini, E. Neframi, F.D. Simoes, V.V. Thien, C. Titi, C.-H. Wu

This yearbook reviews significant legal developments in international commerce and offers an important forum for legal practitioners to address and compare practical legal issues of direct interest to their areas of specialization. Each volume of the yearbook features a comprehensive range of articles written for and by leading practitioners and advisers working within the international business sector. The topics covered in Volume 17, the new volume for 1995, range from the ethical issues for lawyers involved in cross-border transactions to insider trading. Several of the chapters make reference to the growing European Union (EU), with one chapter focusing particularly on the free movement of goods throughout the EU's Member States. Competition within the EU is also dealt with, the provisions of Articles 85 and 86 of the Treaty of Rome being of particular relevance due to the large amount of recent case law in this area. There is a large section dealing with company law matters, including the emergence and development of new types of corporation, privatization and the westernization of companies in countries such as China. The recovery of monies and the enforcement of judgments in this respect are always issues of high priority in business. The volume thus discusses these matters in a separate section on debt recovery. The remainder of the book is divided into parts dealing with finance and mergers and acquisitions, together with a general commercial law section. This yearbook has been prepared by specialist practitioners from all corners of the world for the use of international business lawyers and their clients.

Liability law is expanding in many areas and many countries. This development is potentially worrisome. It may affect the availability of useful goods and services and has a negative impact on insurability. This calls for research into techniques to keep liability (law) within reasonable and sustainable limits. This book sheds light on the techniques used in the respective countries, highlighted on the basis of eight cases.

This monograph reconceptualises discrimination law as fundamentally concerned with stigma. Using sociological and socio-psychological theories of stigma, the author presents an 'anti-stigma principle', promoting it as a method to determine the scope of legal protection from discrimination. The anti-stigma principle recognises the role of institutional and individual action in the perpetuation of discrimination. Setting discrimination law within the field of public health, it frames positive action and intersectional discrimination as the norm in this field of law rather than the exception. In developing and applying this new theory for anti-discrimination law, the book draws upon case law from jurisdictions including the UK, Australia, New Zealand, the USA and Canada, as well as European law.

This book analyses current developments in Europe and Latin America towards the greater involvement of the parties in the administration of criminal justice. Focusing on both national criminal proceedings and transnational cases, this study employs a comparative law approach to examine the shift experienced by Italy and Brazil from the long tradition of mixed criminal justice to unprecedented adversarial trends. The identification of common needs and divergences from the national approach to criminal justice paves the way for a subsequent analysis of new solution models emerging from international human rights law and EU law. To a great extent, these developments are due to the increasing impact of international human rights case-law on the criminal justice systems of the countries in question. The book concludes by proposing a set of qualitative requirements for a participatory model of criminal justice.

This remarkable and timely book draws together all the strands of law in this controversial area, both de facto and de jure. Its comprehensive coverage includes such eminently useful materials as the following:
- thirty actual company policies regarding on-line communications, from a wide variety of business sectors, with detailed analysis;
- texts of four company codes of practice;
- actual views of trade unions and employers organizations;
- analysis of relevant existing laws on access, monitoring, liability, sanctions, and the rights of employee representatives;
- two proposed model codes of practice, one for the individual user and one for employee representatives; and,
- appendices including Belgium's National Collective Agreement No. 81 and the regulatory bill and advisory opinions that led up to it.

This volume examines the important area of dispute resolution. Its main focus is upon those methods of resolving disputes which provide alternatives to the existing judicial system. Under discussion are the most prominent of these methods - arbitration, mediation and conciliation - as well as others, such as mini-trials, valuations and dispute review boards. The authors are eminent legal practitioners and scholars from countries spanning the five continents. Consequently, the volume consists of accounts relating to the use of alternative dispute resolution methods in these countries. The pros and cons of each method are examined, together with the procedures involved, their applicability to certain types of cases and their future development. This work also includes a chapter devoted entirely to International Fast-Trac Commercial Arbitration, which describes how fast-track clauses may be utilized in international commercial contracts to ensure that disputes are resolved rapidly and efficiently. The future for such clauses in individual countries is discussed and a comparative analysis given.

Most books about public power and the state deal with their subject from the point of view of legal theory, sociology or political science. This book, without claiming to deliver a comprehensive theory of law and state, aims to inform by offering a fresh reading of history and institutions, particularly as they have developed in continental Europe and European political and legal science. Drawing on a remarkably wide range of sources from both Western and Eastern Europe, the author suggests that only by knowing the history of the state, and state administration since the twelfth century, can we begin to comprehend the continuing importance of the state and public powers in modern Europe. In an era of globalization, when the importance of international law and institutions frequently lead to the claim that the state either no longer exists or no longer matters, the truth is in fact more complex. We now live in an era where the balance is shifting away from the struggle to build states based on democratic values, towards fundamental values existing above and beyond the borders of nations and states, under the watchful gaze of judges bound by the rule of law.

The constitutional entrenchment and protection of property rights has always been a difficult and controversial issue. This text is more than a collection of cases on constitutional property law, it is an in-depth comparison of constitutional property clauses in jurisdictions around the world. The book consists of three parts: the first chapter contains a general discussion of comparative, theoretical, and analytical issues. The second part consists of 18 chapters on jurisdictions where the property clause has generated substantial case law and jurisprudence, meriting extensive analysis and discussion. Among the countries discussed are Australia, Japan, Canada, Germany, Switzerland and South Africa. For easy reference the structure of these country-by-country chapters is identical. These chapters not only contain practical, useful legal information but also a normative interpretation of constitutional property clauses in their national and international context. The third and final part of the book contains a collection of 86 property clauses from jurisdictions not included in the country reports. The focus of the book is on comparison, and cross-references assist the reader in finding related cases and issues in other jurisdictions.

This overview of the role played by the precautionary principle in international trade law, European law and national law compares how precautionary considerations have been applied in the fields of pesticide regulation and the regulation of base stations for mobile telephones in Sweden, the UK and the US. A number of problems in the current application of the precautionary principle are identified and discussed. For example, it is shown that a firm reliance on a wide and open-ended precautionary principle may lead to problems with the consistency, foreseeability, effectiveness and efficiency of measures intended to reduce environmental or health risks. It is suggested that the precautionary principle indeed may be an important tool, but that in order to be acceptable it must be coupled with strong requirements on the performance of risk assessments, cost/benefit analyses and risk trade-off analyses.

This handbook presents cutting-edge research that compares different criminal procedure systems by focusing on the mechanisms by which legal systems seek to avoid error, protect rights, ground their legitimacy, expand lay participation in the criminal process, and develop alternatives to criminal trials, such as plea bargaining, as well as alternatives to the criminal process as a whole, such as intelligence operations. The criminal procedures examined in this book include those of the United States, Germany, France, Spain, Russia, India, Latin America, Taiwan, and Japan, among others. This book explores a number of key topics in the field of criminal procedure: the role of screening mechanisms in weeding out weak cases before trial; the willingness of different legal systems to suppress illegally obtained evidence; the ways legal systems set meaningful evidentiary thresholds for arrest and pretrial detention; the problem of wrongful convictions; the way legal systems balance the search for truth against other values, such as protections for fundamental rights; emerging legal protections for criminal defendants, including new safeguards against custodial questioning in the European Union, limitations on covert operations in post-Soviet states, and the Indian system of anticipatory bail; as well as the mechanisms by which legal systems avoid trials altogether. A number of contributors also examine the impact of legal reforms that have newly introduced lay jurors into the fact-finding process or that now require juries to give reasons for verdicts. The ideal readership for this handbook includes law students, scholars of criminal procedure and comparative law, as well as civil liberties lawyers. Scholars of national security, the European Union, transitional justice, and privacy will also be interested in the volume's contributions to their fields. Contributors include: S.M. Boyne, M. Cohen, S. Fouladvand, E. Grande, J.S. Hodgson, D.T. Johnson, V. Khanna, N. Kovalev, M. Langer, A.D. Leipold, K. Mahajan, J. Mazzone, J.E. Ross, C. Slobogin, S.C. Thaman, J.I. Turner, R. Vogler, T. Wen

This book provides valuable insights into various contemporary issues in public and private maritime law, including interdisciplinary aspects. The public law topics addressed include public international law and law of the sea, while a variety of private law topics are explored, e.g. commercial maritime law, conflict of laws, and new developments in the application of advanced technologies to maritime law issues. In addition, the book highlights current and topical discussions at international maritime forums such as the International Maritime Organization on regulatory and private law matters within the domain of marine environmental law, the law respecting seafarers' affairs and maritime pedagogics, maritime security, comparative law in the maritime field, trade law, recent case law analysis, taxation law in the maritime context, maritime arbitration, carriage of passengers, port law, and limitation of liability.

Given the unprecedented recent turmoil on financial markets we now face radically challenged, 'post-Lehmann' assumptions on protecting the vulnerable in financial transactions. This collection of essays explores conceptions of, and responses to, unconscionability and similar notions across Europe with specific reference to financial transactions. It presents a detailed analysis of concepts of unconscionability in Europe against a backdrop of Commission initiatives aimed, variously, at securing a single market in financial services, producing greater coherence in EC consumer protection law and consolidating European private law. This analysis illustrates, for example, that concepts of unconscionability depend on context and can be shaped by a variety of factors. It also illustrates that jurisdictions may choose to respond to questions of unconscionability through a variety of legal instruments located in different branches of the law rather than through a single doctrine. Thus this collection illuminates many of the obstacles facing harmonisation in this area.

This book focuses on the most important implications of the "fair hearing" right for conducting civil proceedings. It provides a thorough and critical analysis of the case law of the European Court of Human Rights (the Strasbourg Court) regarding Article 6 of the European Convention on Human Rights. It puts forward a generally applicable framework for the analysis of the various procedural issues to which the "fair hearing" right may give rise, then applies that framework to discuss a selection of specific procedural issues. The book investigates several important questions of general scope in the context of ECHR Article 6, such as: What is the relevance of case law regarding criminal proceedings when the "fair hearing" right is applied to civil proceedings? How does the Strasbourg Court actually proceed when evaluating whether specific court proceedings have been "fair"? What are the roles of fundamental concepts such as the "margin of appreciation" and proportionality in this regard? In the subsequent discussion of specific procedural issues, the focus is on the balance that must be struck between procedural safeguards and the objectives of efficiency and economy. The book considers specific procedural issues such as: When must an oral hearing be held in order for civil proceedings to be "fair"? When will a refusal of specific evidence render civil proceedings unfair? When is a civil litigant entitled to le gal aid? As such, the book not only presents current case law; it also compares various strands of the case law regarding the "fair hearing" right, and argues that the Strasbourg Court's approach to various pertinent issues needs to become more consistent. Offering an in-depth examination of the Strasbourg Court's case law regarding ECHR Article 6, this book should be consulted by anyone interested in fundamental fair trial rights.

Legal systems around the world vary widely in terms of how they deal with the transfer of and security interests in receivables. The aim of this book is to help international financiers and lawyers in relevant markets in their practice of international receivables financing. Substantively, this book analyses three types of receivables financing transactions, ie outright transfer, security transfer and security interests. This book covers comprehensive comparison and analysis of the laws on the transfer of and security interests in receivables of fifteen major jurisdictions, encompassing common law jurisdictions, Roman-Germanic jurisdictions and French-Napoleonic jurisdictions, as well as relevant EU Directives. To be more specific, this book compares and analyses the relevant legal systems of the US, Canada, New Zealand, Australia, Korea, Japan, France, Belgium, England, Hong Kong, Singapore, China, Germany, Austria and the Netherlands. Furthermore, in order to analyse those legal systems from the international perspective, this book compares relevant international conventions; it also proposes to establish an international registration system for the transfer of and security interests in receivables.

This comprehensive book offers a thoughtful survey of theories, issues and cases in order to reassess the present vision of contract law. Comparative refers both to the specific kind of methodologies implied and to the polyphonic perspectives collected on the main topics, with the aim of superseding the conventional forms of representation. In this perspective, the work engages a critical search for the fault lines, which crosses traditions of thought and globalized landscapes. Notwithstanding contract's enduring presence and the technicalities devoted to managing clauses and interpretation, the inquiry on the proper nature of contract and its status and collocation within private legal taxonomies continues to be a controversial exercise. Moving from a vast array of dissimilar inclinations, which have historically produced heterogeneous maps of law, this book is built around the genealogies of contractual theoretical thinking; the contentious relationship between private governance and normative regulations; the competing styles used to stage contract law; the concurring opinions expressed within the domain of other disciplines, such as literature and political theory; the tensions between global context and local frames; and the movable thresholds between canonical expressions and heterodox constructions. For its careful analysis and the wide range of references employed, Comparative Contract Law will be a tremendous resource for academics, legal scholars and interdisciplinary experts as well as judges and law practitioners. Contributors include: G. Bellantuono, B.H. Bix, D. Carpi, C.L. Cordasco, C. Costantini, S. Fiorato, J. Gordley, M. Granieri, A. Hutchison, M.R. Marella, G. Marini, P.G. Monateri, F. Monceri, P. Moreno Cruz, H. Muir Watt, F. Parisi, P. Pardolesi, G. Samuel