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A Dive into Comparative law before heading to International Construction Law

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Introduction:


Whenever Non-Legal professionals (Forensic planners, Quantum specialists and Technical Experts) are tasked with drafting an expert witness report, undergoing cross-examination in court, or hot-tubing, there are crucial aspects to keep in mind while preparing your expert report or swearing under oath in a construction dispute.


"Hot tubbing" is the colloquial term used for concurrent expert evidence, which is the process of introducing and evaluating expert evidence.

Not only Legal BUT Non-Legal Professionals and Experts should be well versed with Comparative Law.

Comparative law is the science that examines law at the level of legal systems.

Hence, before diving into Construction Law, Standard forms of Contract, various Arbitration conventions and treaties, Alternative Dispute Resolution (ADR) Methods, and Case laws on various provisions of Contract, let us first understand existence of the complex legal systems across all countries.


Legal Systems:


Nowadays, most national legal systems are rooted in one of four primary frameworks: civil law, common law, statutory law, or religious law. Nonetheless, the history of each nation has created its legal system in its own unique way, and these differences are reflected in the current legal framework. Civil law (also known as Roman law) and common law (also known as English law) are both widely used legal systems, although civil law is more extensive geographically and demographically, while common law is used by more people than any single civil law system.


1. Common Law:


Common law and equity both draw their legal principles from judicial precedents and can be determined by the courts in some jurisdictions. The Anglo-Saxon and Norman legal systems, which borrowed heavily from the Salic legal system, laid the groundwork for the English common law. In contrast to codified civil law systems, the notion of stare decisis (also known as case law or precedent by courts) governs the interpretation of legal questions.


2. Civil Law:


Civil law is a collection of legal ideas and systems derived from the Corpus Juris Civilis, but significantly overlaid by Napoleonic, Germanic, canonical, feudal, and local customs. It is distinguished by its abstract nature, its formulation of fundamental principles, and its separation of substantive laws from procedural norms. Civil systems are most easily recognized by their legal codes, which are often short and universally applicable documents that avoid fact-specific circumstances. The civil law code's brief articles cover broad subjects, in contrast to the lengthy and specific statutes that govern other countries. The major source of law in a civil law system is an intellectualized version of Roman law, which is codified into a standardized body of legislation.



3. Religious Law:


Religious law is the concept of a religious system or text being used as a legal source, with varying methodologies. The primary types of religious law in Islam, Judaism, and certain Christian sects are sharia, halakha, and canon law, respectively. Halakha is used in both religious and secular matters, while canon law is an internal ecclesiastical law or operational policy that governs the Catholic Church. The Canon law of the Catholic Church is the system of laws and legal principles created and enforced by the hierarchical authorities to regulate its external organization and government. It is the oldest Western legal system in the West and is the basis of Islamic law, which consists of sharia (Islamic law) and fiqh (Islamic jurisprudence).


4. Statutory Law

Statutory law is legislatively enacted written law, while statutes originate from national, state, or municipal governments. A "code" refers to the entire set of codified statutes, such as the United States Code, the Ohio Revised Code, or the Code of Canon Law. Private law, which may have originated as a private bill, is another example of statutes that are not normally codified. It was used in the United Kingdom Parliament to incorporate businesses, issue monopolies, and give people greater consideration by the legislature. Professionals may also use law to give effect to the rights and powers held by a private organization.


Peculiarities of various Legal Systems:




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Conclusions:


1. Whenever you are reading a standard form of Contract, such as FIDIC 2017 Red book, JCD or NEC, the provisions may not be followed exactly, but either superseded or dominated by Statutory laws or Jurisdictional Laws.

2. Assumptions and references considered in the Expert report, Plaintiff, or Respondent reply, drafting commercial agreements etc. must consider its validity according to the jurisdiction and statutory laws.

3. Unlike Scientific theories or Formulae, Legal Principles are dynamic in nature and can be interpreted differently as per legal system of the country.

4. Arbitration and ADR Methods should consider the applicable statutory laws according to the seat of arbitration or ADR meeting location as delineated in the agreement. Specially, in case of Arbitration such practice will ensure the enforcement of the award hassle-free.

5. Expert should seek legal opinion after producing the report to ensure the application of laws referred in the report stands valid in the court trials as well as Contract Administrator should ponder over jurisdictional laws while drafting commercial agreement.

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References:


· Moreno Navarrete, M. A. The Concept of Civil Law. Historical Dimension. Revista de Derecho Actual, vol. III, 2017.

· John Henry Merryman & Rogelio Pérez-Perdomo. The Civil Law Tradition: An I. Introduction to the Legal Systems of Europe and Latin America, 4th edn. Stanford University Press, 2018.

· Black's Law Dictionary – Common law (10th ed.)








 

Disclaimer:

The views expressed in this article are those of the author and do not reflect or represent the official policy, position or recommendation of any individual or organization. Any written or verbal recommendation has a general nature and should not be used for any decision making without further assessment for specific project and organization requirements.







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