Civil Law and Common Law History and Effect on Globalization

Common law in certain areas makes it very easy for foreign people to go and study as well as practice law. In other countries such as China or India it is nearly impossible to find legal power as a foreigner. In today’s day in age there are four legal systems that are used throughout the world. They are civil law, also known as code law, common law, bijurdical/mixed (civil and common law), and Islamic Law. The two biggest legal systems commonly used today are common law and civil law. They were both developed around the same time in Europe by different imperial powers. Both legal systems are also extremely important to how countries and businesses operate on a global scale. Both legal systems also have an effect on international commercial arbitrations.

Common law was developed by the British during the Middle Ages and was applied throughout the colonies that they controlled. An example of this is the United States. Common Law was primarily created to protect the rights of feudal land owners and eventual moved to protect capital and the right to its accumulation because merchants were able to capture a greater share of the wealth in England. To adequately achieve justice a court of equity(chancery court) is used that authorized to apply principles of equity.

Common law is usually uncodified which means that there is no comprehensive compilation of legal rules and some statutes. But common law is normally based on precedent meaning that cases are based off judicial decisions that have been made in similar cases. The precedents are recorded through documentations collections known as yearbooks or reports. The cases are decided by a jury and a judge is used to determine what the sentence will be.

Civil law was developed in Spain and Portugal and was later accepted by countries like Japan and Russia in order to gain economic and political power. Tradition of civil law comes from Roman law and canon law which was influenced by Catholic church law.

Civil law is more codified contrast to common law which is usually uncodified. It has a set of updated legal codes that they use to determine what matters can be brought up before the court. The punishment is already determined before the matters comes up in court depending on what legal code is involved. The judge’s role in a civil law case is to determine what are the facts of the case and to decide on the case through the framework of the codes.

Civil law and Common law although different in a variety of systems throughout the world are starting to move towards norms within the international commercial arbitrations. The fusing of styles has lead civil law lawyers to say common law is a more dominating style. But there have been efforts to accommodate civil law values in international commercial arbitrations. Examples of this are the IBA Rules on the Taking of Evidence in International Commercial Arbitration and ICSID Arbitration Rules. The IBA rules were written by fifteen lawyers from both legal systems and are blend of common practice. between the two systems.

Countries have different requirements for what foreign lawyers can do in each country. For instance in America it’s fairly easy for anybody in the world to join our legal system. Individuals must pass the New York bar exam and as well as spend a year getting a master of laws at any university in America. However in China and Brazil it’s a lot more difficult to get anything done if you are a foreign firm. Foreigners may offer advice on international law, but they cannot provide any type of legal representation in local courts in those countries; which makes it extremely difficult for foreign firms. The only exception is Hong, which has allowed foreigners to the take the local bar exam to be able to provide legal representation. Also if Chinese lawyers take a job with any foreign firm they have to temporarily forfeit the right to practice any form of Chinese law. Then there are countries like India that are closed to any type of foreign lawyers of any capacity and do not even allow advice on international law. The Bombay High court of India deemed it illegal for the offices that some outsiders have opened there to exist. The Indian government has said it plans to appeal against the ruling of the offices but it seems very unlikely.

 

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