MARITIME DISPUTE KENYA V SOMALIA
Friday, 26 May 2017
Maritime dispute between Kenya and Somalia
The legal framework for maritime boundary conflicts is relatively clear, although the practical difficulties are complex.
Legal framework central to the case Kenya V Somalia is the following
Under the UN Convention on the Law of the Sea, a coastal State has sovereign rights to explore and exploit, conserve and manage the natural resources in its Exclusive Economic Zone. Under UNCLOS Article 57, the EEZ extends a maximum of 200 nautical miles from the baseline. Article 74 provides that States with opposite or adjacent coasts must delimit their EEZs by applying international law to achieve an equitable solution. Finally, States must deposit charts and lists of geographical coordinates of the EEZ to the UN Secretary-General.
Somalia submitted to the its National Claimes to Marime Areas in 1972.
Law no 37 of 10 September 1972
Art. 1 stipulates Somalia's Territorial Sea
Art. 2 Measurements of Territorial Sea and so on.
The law composed of 20 articles on Somalia's Territorial Sea.
Thereafter Somalia's Peoples Assembly and the President of the Democratic Republic of Somalia both ratified Unined Nations Convention on the Law of the Seas on 2 September 1989. Like other maritime boundary disputes, the case could be settled through the International Court of Justice. As the Court only has jurisdiction on the basis of consent as Somalia demonstrated time and again. As UNCLOS Article 59 stipulates, in the case of a dispute between the interests of two coastal States, the conflict should be resolved on the basis of equity and in light of all the relevant circumstances. Relying on these considerations, the ICJ would define the Kenyan-Somali maritime boundry.
Alternatively, the International Tribunal for the Law of the Sea could determine the maritime boundary given that either one or both of the countries in the dispute is/are member(s) and consented. Another way to go in solving the dispute is arbitration between Kenya and Somalia is yet another option that would also require consent by both States.
Thursday, 25 May 2017
A federal appeals court refused Thursday to reinstate President Trump’s revised travel ban, saying it “drips with religious intolerance, animus and discrimination.”
The court divided along ideological lines, with the three Republican appointees in dissent.Writing for the majority, Chief Judge Roger L. Gregory said Mr. Trump’s statements on the campaign trail concerning Muslims showed that the revised order was the product of religious hostility. Such discrimination, he wrote, violates the First Amendment’s ban on government establishment of religion.“Then-candidate Trump’s campaign statements reveal that on numerous occasions, he expressed anti-Muslim sentiment, as well as his intent, if elected, to ban Muslims from the United States,” Judge Gregory wrote.
May 19, 2017
The Constitution of the United States, Art. 2, S. 4
Some of the grounds that a sitting president such as Trump of the USA can be impeached?
The Constitution of the United States, Art. 2, S. 4, provides that the president, vice-president, and civil officers of the United States shall be removed from office on impeachment for, and conviction of treason, bribery, and/or other high crimes and misdemeanors.
As for president Trump, it appears that he is already a subject of investigation following
a number of potential accusations which could be a breach of the US Constitution.
One most likely breach, if stablished by the ongoing investigations is what is called
"an obstruction of justice" following president Trump´s abrupt firing of James Comey
FBI's director knowing FBI's ongoing investigation on the executive branch of power.
LEGAL DEFINITION OF OBSTRUCTION OF JUSTICE
1. The defendent acted with "corrupt" intent.
2. The defendent knew judicial proceedings were pending and wanted to interfere.
3. Defendent's action likely to affect these proceedings.
Given the above mentioned situations, it is therefore likely that president Trump
would be held accountable with obstruction of justice, if proved. It will in turn
trigger Art. 2, S. 4, of the US Constitution.
" Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it…While it lies there, it needs no constitution, no law, no court to save it. "
-Judge Learned Hand
International Commercial Arbitration
Importatn things to know about International arbitration
- International Commercial Law
- Arbitrationa Law Reports and Review
- Journals of International Dispute Settlement
- International Minimum Standard, Fair and Equitable Treatment
- Transnational Legality. Stateless Law in International Arbitration
- Choice of venue when it comes International arbitration
- Damages in International Arbitration-Under complex Long Term Contructs. Also worth to mention ethics in International Arbitration and Oxford Handbook of International Adjudication regarding International Arbitration
Federal Court of Appeals dismissed Trump´s Appeal
The ninth US Circuit Court of Appeals has gone against Trump´s wishes. The three presiding justices unanimously ruled in a 29-pages ruling court ruling against him by declaring the ban unconstitutional. The court explained its opinion in it´s ruling document why Trump as head of the US executive branch failed to demonstrate the legality on which his executive order affecting some Muslim countries was based on. The federal appeals court refused to reinstate Trump´s travel ban on travels from seven predominantly Muslim countries. Trump´s argument that his executive order was not reviewable by the courts was also rejected by the court in its ruling. The court stated that"there was no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy." Thanks to US District Judge James Robart in Seattle and the Mr Bob Ferguson Attorney General of the State of Washington. Rule of law prevails, at least now for the time being.
The court to deliver its judgment on Thursday 2 February 2017
INTERNATIONAL COURT OF JUSTICE
Peace Palace, Carnegieplein 2, 2517 KJ The Hague, Netherlands
Twitter Account: @CIJ_IC
Jan. 20 2017
Maritime Delimitation in the Indian Ocean (Somalia v. Kenya)
The Court to deliver its Judgment on Thursday 2 February 2017
THE HAGUE, 20 January 2017. On Thursday 2 February 2017, the International Court of Justice (ICJ), the principal judicial organ of the United Nations, will deliver its Judgment on the preliminary objections raised by Kenya in the case concerning Maritime Delimitation in the Indian Ocean (Somalia v. Kenya).
A public sitting will take place at 3 p.m. at the Peace Palace in The Hague, during which Judge Ronny Abraham, President of the Court, will read the Court’s decision.
History of the proceedings
The history of the proceedings can be found in Press Releases Nos. 2016/26 of 23 September 2016 and 2016/15 of 26 May 2016 available on the Court’s website under the heading “Press Room”/”Press Releases”.
A. Admission procedures
Owing to the limited number of seats available in the Great Hall of Justice, priority access will be given to representatives of the States Parties to the case, and to members of the diplomatic corps.
1. Members of the diplomatic corps
The Information Department requests members of the diplomatic corps who plan to attend the reading to notify it accordingly before midnight on Tuesday 31 January 2017 (The Hague time), by e-mail to firstname.lastname@example.org.
2. Members of the public
A number of seats will be allocated to members of the public on a first-come, first-served basis. There will be no advance registration procedure, and admission requests submitted beforehand will not be considered.
3. Media representatives
Media representatives are subject to a compulsory online accreditation procedure, which will close at midnight on Tuesday 31 January 2017. Requests submitted after this deadline will not be considered. For full details (timetable, technical facilities, etc.), see the section below entitled “Further practical information for the media”.
B. Further practical information for the media
1. Entry to the Peace Palace
The Press Room will be open from 2 p.m. to 6 p.m. Accredited media representatives must bring with them their personal ID and press card. They are asked to arrive at the Peace Palace gates between 2 p.m. and 2.30 p.m. Only duly accredited individuals with valid identification will be permitted to enter the Peace Palace grounds.
2. Parking at the Peace Palace, satellite vehicles
No parking is allowed in the Peace Palace grounds apart from satellite vehicles. Media wishing to park satellite vehicles are requested to fill in the appropriate fields in the online accreditation form. Televised media wishing to broadcast the sitting live should contact the Information Department as soon as possible to make the necessary arrangements. Satellite vehicle technicians/drivers will be informed in due course of the access times for the Peace Palace grounds.
3. Access to the courtroom
Photographers and camera crews will only be permitted to enter the courtroom between 2.40 p.m. and 3.05 p.m. They will be accompanied by Registry staff members and must keep to the right-hand side of the room.
4. Press room
The reading will be transmitted live on a large screen, in English and French, in a press room equipped with a shared Internet access (Wi-Fi, Ethernet). TV crews can connect to the Court’s PAL (HD and SD) and NTSC (SD) audiovisual system and radio reporters to the audio system.
5. Videos, still photographs
Video files (SD/MPEG2 and HD/MPEG4) and still photos produced by the Registry during the sitting on Thursday 2 February 2017 will be available free of charge, for non-commercial use, at the close of the proceedings (to download, click on www.icj-cij.org/multimedia).
6. Other media services
For further practical information (on requests for interviews, TV stand-up positions, audio and video outputs available, etc.), please visit the Court’s website. Click on “Press Room”, and then on “Media Services”.
Note: The Court’s press releases do not constitute official documents.
The International Court of Justice (ICJ) is the principal judicial organ of the United Nations.
It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands). Of the six principal organs of the United Nations, it is the only one not located in New York. The Court has a twofold role: first, to settle, in accordance with international law, legal disputes submitted to it by States (its judgments have binding force and are without appeal for the parties concerned); and, second, to give advisory opinions on legal questions referred to it by duly authorized United Nations organs and agencies of the system. The Court is composed of 15 judges elected for a nine-year term by the General Assembly and the Security Council of the United Nations. Independent of the United Nations Secretariat, it is assisted by a Registry, its own international secretariat, whose activities are both judicial and diplomatic, as well as administrative. The official languages of the Court are French and English. Also known as the “World Court”, it is the only court of a universal character with general jurisdiction.
The ICJ, a court open only to States for contentious proceedings, and to certain organs and institutions of the United Nations system for advisory proceedings, should not be confused with the other mostly criminal judicial institutions based in The Hague and adjacent areas, such as the International Criminal Tribunal for the former Yugoslavia (ICTY, an ad hoc court created by the Security Council), the International Criminal Court (ICC, the first permanent international criminal court, established by treaty, which does not belong to the United Nations system), the Special Tribunal for Lebanon (STL, an international judicial body with an independent legal personality, established by the United Nations Security Council upon the request of the Lebanese Government and composed of Lebanese and international judges), or the Permanent Court of Arbitration (PCA, an independent institution which assists in the establishment of arbitral tribunals and facilitates their work, in accordance with the Hague Convention of 1899).
Mr. Andrey Poskakukhin, First Secretary of the Court, Head of Department
(+31 (0)70 302 2336)
Mr. Boris Heim and Ms Joanne Moore, Information Officers (+31 (0)70 302 2337)
Mr. Avo Sevag Garabet, Associate Information Officer (+31 (0)70 302 2394)
Ms Genoveva Madurga, Administrative Assistant (+31 (0)70 302 2396)
Federal judge Ann M. Donnell
Federal Judge Ann M. Donnelly stopped president Trump´s executive order on immigration.
Accoding to Washington post Ann M. Donnelly waited half a year for her chance to convince the Senate that she would make a good federal judge. And then Saturday night after a year and a week on the federal bench, Donnally sat in her own courtroom in Brooklyn while people from all walks of live shouted and cried in US airports nationwide. Donnelly spent quarter centry as a New York prosecuter.
Her most famous case was against two executives who looted thier company. A trial that the New York times described as "six months of sometimes tedious testimony".
Donnelly´s closing argument in Tyco International case when she "at times seemed like a schoolteacher lecturing at her students". The executives "believed they were above the law and they believe the rules that apply to other people do not apply to them" Donnelly told the jury in 2004.
January 2017 she applied the same principle to the US president Trump as an executive president issuing an executive order reviewable its legality under rule of law, just like federal judge Damon J. Keath´s over-ruling president Nixon executive order illegally listning private communications and arresting US citizens without prior legal process (due process) according the law of land.
Nelson Mandela: The Lawyer’s Ideal
by Justin Hansford• 6 December 2013
Mandela’s image should replace the image of the scales or of lady justice as the iconic image of the legal profession.
Today [Ed: 5 Dec] marks the loss not only of one of the greatest figures of the 20th century, but also one of the greatest lawyers. Most would readily agree that Mandela was a great leader and a great statesman. Indeed, I still remember when as a child I watched on TV with tears of joy as Nelson Mandela danced at his inauguration, victorious. Not only was Mandela able to add dignity to the struggle for racial justice and save countless lives by averting civil war and helping to create a democratic South Africa, but additionally he has been able to inspire people all over the world with the example of his life.
But as a lawyer? Mandela opened the first black law firm in South Africa in 1952 with his friend, Oliver Tambo. As Mandela recounts in his autobiography A Long Walk to Freedom, during that time, it was a crime for blacks to drink at a Whites Only water fountain, walk on a Whites Only beach, or ride on a Whites Only bus. Because of Apartheid laws, everyday Black South Africans often ended up in court in need of legal representation. Not only were the white law firms often too expensive for Blacks, but Mandela found out through his own investigation that many of the blue-chip firms “charged Africans even higher fees for criminal and civil cases than they did their far wealthier white clients.”
1 By focusing on providing legal representation for Africans who may have otherwise entered court without proper representation, Mandela and Tambo served as a sort of legal aid and public defender wrapped into one, fulfilling the core mission of the legal profession by providing access to justice.
After spending nearly a decade honing his lawyerly talents inside the confines of the courtroom, Mandela perhaps as well as any lawyer in the 20th century translated the core competencies of the legal profession into the political project of helping to create a democratic South Africa. As a leader of the African National Congress, Mandela eagerly participated in both strategic and tactical deliberations with his ANC colleagues, helping to craft the political and legal ideas that would one day drag a country kicking and screaming from the brink of civil war to the aspiration of truth and reconciliation. And after emerging from 27 years of imprisonment at the hands of the Apartheid government, Mandela miraculously sought peace and democracy without bitterness with the same Afrikaner regime that had locked him in a cage for a quarter century, during the prime of his life, because of his political beliefs.
Mandela’s heroism satisfies a very old standard of lawyerly excellence. Twenty years ago, Anthony Kronman, then Dean of Yale Law School, famously bemoaned the lost ideals of the legal profession embodied by the demise of the concept of the lawyer-statesman. Kronman described the lawyer statesman as a lawyer who not only honed his legal craft but also pursued the art of great statesmanship, thereby rightfully earning the respect of the community and the respect of himself. The art of great statesmanship entailed two qualities, “extraordinary devotion” to the public good, and “wisdom in deliberating about it.”
2 This would tend to support wise judgment, which on the personal level would lead to integrity and in the public sphere would lead to the promotion of political fraternity, or “empathic pluralism.”
Historically, the lawyer statesman ideal had many shortcomings—most notably its narrow confinement to the confines of the white, male, elite white shoe law firm lawyers. But Mandela, more than any of those coddled lawyers, embodied the lawyer-statesman ideal while simultaneously shattering its limitations—from the grassroots to the prison cell to the presidency. During a century that saw the public’s opinion of the legal profession steadily decrease, Mandela’s reputation rose. He is perhaps the most respected person of our times. However, few have recognized that the values that Mandela put his life on the line for-democracy, human rights, and the rule of law—are the highest values of the legal profession, shared by many lawyers around the world. In all likelihood, Mandela’s life in the law played a significant role in the formation of his character as the greatest man in the world.
In 2013, it is no longer either realistic or desirable to revive the old version of the lawyer-statesman ideal. Law schools are having more difficulty attracting students, as drastic shrinkage of the big-law market has made it less likely that a young student can justify going into six-figure debt for the opportunity to become a white-shoe lawyer statesman or stateswoman. At the same time, the need for lawyers who can help low-income people with bankruptcy and foreclosure work has increased, and the desperate need to help people navigate the overloaded criminal justice system has not waned either. Finally, all of this economic stress has contributed to seismic fractures in our society’s social fabric, bolstering both the rise of extremism in domestic politics and international terrorism on a global level.
Recognizing Mandela as the ideal lawyer is the type of reorientation that would highlight the real tangible goods that lawyers can contribute to society today, including the ability to help provide access to justice and create civic cohesion. Nelson Mandela’s image should replace the image of the scales or of lady justice as the iconic image of the legal profession.
Justin Hansford is Assistant Professor at Saint Louis University School of Law.
BREXIT-should they stay, should they go
Recent Sarah Olneys victory for the Libdems in London´s Richemond Park by election is a clear indication for the ongoing ill planned BREXIT. What is going on in UK reminds me a constitutional disorder. Prime Minster May´s government doe n´t know what to do in the aftermath of the BREXIT referendum. Well, Should it rely on the Parliament or should it be a matter for the courts of law to decide on the legality of BREXIT. According the British daily newspaper The Independent, I quote "The Attorney General Jeremy Wright is to warn Supreme Court judges that they should steer clear of getting involved in political decisions as the Government goes to the Supreme Court in the latest stage of the legal battle over Brexit. Attorney General Jeremy Wright will lead the case for Theresa May’s administration in its bid to overturn a High Court decision made earlier this year, which secured Parliament the right to vote on launching Brexit talks" unquote. The question is when and the Supreme Court judges were involved in politically motivated court rulings? Such a comment would really put the whole country in suspense.
Abdulkadir A. Mohammed
Somalia versus Kenya at ICJ-Hague, the Netherlands
MEMORANDUM OF UNDERSTANDING- In the case of maritime dispute between Kenya and Somalia
Somalia first brought
the dispute to the ICJ on August 14, 2014, when Somalia filed an application with the international court to establish a single maritime boundary between Somalia and Kenya in the Indian Ocean, “delimiting the territorial sea pursuant to the [United Nations
Convention on the Law of the Sea (“UNCLOS”)] and customary international law.” According to Somalia, Kenya wants the maritime boundary between the two countries to extend as a straight line from the parties’ land boundary, along
the parallel of latitude where the land boundary sits, through the territorial sea, Somalia’s proclaimed exclusive economic zone, and the continental shell. Somalia argues that the straight line violates UNCLOS Article 7 and that UNCLOS Article
15 instead requires the border between the territorial seas to be a median line and the border of the exclusive economic zone and continental shelf to be resolved in the three-step process laid out in Articles 74 and 83.
On October 7, 2015, Kenya filed preliminary objections challenging the admissibility of Somalia’s application and the ICJ’s jurisdiction to hear the case. Kenya reportedly argues that the two countries’ April 7, 2009 Memorandum of Understanding requires them to resolve their dispute through the United Nations’ Commission on the Limits of the Continental Shelf (the “CLCS”), not the ICJ. On February 5, 2016, Somalia filed a response rejecting “Kenya’s bid for an out-of-court settlement” and proclaiming that it would “seek justice” only at the ICJ. With no further filings scheduled, the ICJ might rule on the preliminary objection later this year. At the heart of the case is the infamous M.O.U. signed by both countries, though for Somalia part an intrested
It is common for parties who have negotiated the key terms of a proposed relationship to enter into a preliminary written agreement, as it was the recent maritime case between Kenya V Somalia -with the intention of recording their agreement in a more formal way in the future. The issue to remember with these arrangements is to know whether there is a binding agreement or whether neither party is bound.
Somalia has brought its maritime dispute with Kenya to the International Court of Justice (the “ICJ”). The ICJ’s treatment of the case will have important repercussions not only for Somalia and Kenya (and possibly neighboring Tanzania), but also for energy companies interested in exploiting East Africa’s offshore resources.
und unless a formal agreement is entered into. It is clear, in the Kenya V Somalia maritime case was not a binding agreement, because it lacked basic fomalities known for such a binding agreement.
The issue to remember with these arrangements is to know whether there is a binding agreement or whether neither party is bound unless a formal agreement is entered into.
Arrangements of this type generally fall into one of three categories. Whether the arrangement has any “legal value” will depend upon which category your arrangement falls into. In many of these cases the “legal value” does not depend on what you call your arrangement, be it a “MoU” or “heads of agreement”. Rather, it depends on the terms and wording of the arrangement.
INTEND TO BE IMMEDIATELY BOUND
Let us say where the parties have finalised all the terms of their agreement and intend to be bound immediately but will put those terms in a form that is more precise (but no different in effect). For example, the parties may agree on all the terms of an agreement between themselves and draw them up and sign them but also state that that they will engage a lawyer to put those terms into a formal agreement. An agreement will usually fall into this category if it is clear that the parties intended it to be binding and the terms are clear and certain enough so as to be legally enforceable. The introduction will also usually seek to clarify that the document is intended to be legally binding. In the case Kenya V Somalia the infammous MoU in the afore said case was not well drafted so that it would fall into this category which would be beyound reasonable doubt that an enforceable agreement in the matter was reached.The ICJ’s resolution of the parties’ dispute will have ramifications for international energy companies that have contracted with Kenya to develop the disputed territory. In 2012, Kenya opened eight new offshore blocks for sale to corporations, including L-5, L-21, L-22, L-23, L-24, and L-25 within the disputed territory. As Somalia reports in its application:
Kenya awarded Block L-5 to the American company Anadarko Petroleum Corp. in 2010 (though subsequent reports appear to indicate that Anadarko gave up its interest in late 2012 or early 2013). Blocks L-21, L-23 and L-24—which lie entirely (in the case of L-21 and L-23) or predominantly (in the case of L-24) on the Somalia side of a provisional equidistance line—were awarded to the Italian company Eni S.p.A. in 2012. Block L-22 was awarded to the French company Total S.A. the same year. Press reports confirm that, in 2012, Total S.A. entered into a production sharing contract with the Kenyan government to operate L-22 with a 100 percent interest and holds a 40 percent interest in the Anadarko-operated L-5. Somalia itself recently invited energy companies to contract to explore the disputed area. And, if the ICJ adopts Somalia’s position, Tanzania’s control over Blocks 10, 11, and 12—licensed to Shell and Dominion Energy—will come into question.
The ICJ’s ultimate resolution of the case will undoubtedly influence the future of East Africa’s offshore development. Companies contracting with Kenya and Tanzania for offshore development—and companies considering such contracts with Somalia—should continue to monitor the ICJ’s handling of the dispute.
Procedural status before the International Court of Justice regarding maritime dispute between Somalia and Kenya
Maritime Delimitation in the Indian Ocean (Somalia v. Kenya) These proceedings were instituted on 28 August 2014 by Somalia against Kenya with regard to “a dispute concerning maritime delimitation in the Indian Ocean”. In its Application, Somalia contends that both States “disagree about the location of the maritime boundary in the area where their maritime entitlements overlap”, and asserts that “[d]iplomatic negotiations, in which their respective views have been fully exchanged, have failed to resolve this disagreement”. Somalia requests the Court “to determine, on the basis of international law, the complete course of the single maritime boundary dividing all the maritime areas appertaining to Somalia and to Kenya in the Indian Ocean, including the continental shelf beyond 200 [nautical miles]”. The Applicant further asks the Court “to determine the precise geographical co-ordinates of the single maritime boundary in the Indian Ocean”. In the view of the Applicant, the maritime boundary between the Parties in the territorial sea, exclusive economic zone (EEZ) and continental shelf should be established in accordance with, respectively, Articles 15, 74 and 83 of the United Nations Convention on the Law of the Sea (UNCLOS). Somalia explains that, accordingly, the boundary line in the territorial sea “should be a median line as specified in Article 15, since there are no special circumstances that would justify departure from such a line” and that, in the EEZ and continental shelf, the boundary “should be established according to the three-step process the Court has consistently employed in its application of Articles 74 and 83”. 6 The Applicant asserts that “Kenya’s current position on the maritime boundary is that it should be a straight line emanating from the Parties’ land boundary terminus, and extending due east along the parallel of latitude on which the land boundary terminus sits, through the full extent of the territorial sea, EEZ and continental shelf, including the continental shelf beyond 200 [nautical miles]”. As basis for the Court’s jurisdiction, Somalia invokes the provisions of Article 36, paragraph 2, of the Court’s Statute, referring to the declarations recognizing the Court’s jurisdiction as compulsory made by Somalia on 11 April 1963 and by Kenya on 19 April 1965. In addition, Somalia submits that “the jurisdiction of the Court under Article 36, paragraph 2, of its Statute is underscored by Article 282 of UNCLOS”, which Somalia and Kenya both ratified in 1989. Article 282 of UNCLOS provides that: “If the States Parties which are parties to a dispute concerning the interpretation or application of this Convention have agreed, through a general, regional or bilateral agreement or otherwise, that such dispute shall, at the request of any party to the dispute, be submitted to a procedure that entails a binding decision, that procedure shall apply in lieu of the procedures provided for in this Part, unless the parties to the dispute otherwise agree.” By an Order of 16 October 2014, the President of the Court fixed 13 July 2015 and 27 May 2016 as the respective time-limits for the filing of a Memorial by Somalia and a Counter-Memorial by Kenya.
Finally it is important to note that a very important element when preparing a contract between parties is the meeting of contracting moinds, in latin consensus ad idem. Its obvious that in this case I have to to say that the contacting countries´ minds never met and no enforceable contract was concluded between Somalia and Kenya.
It remains to say that Kenya´s behaviour in the process was not in good faith.
CONTRACT- A meeting of minds in Roman law called a consensus ad idem. That is to say a contract needs a meeting of minds.
If one or both parties have been mistaken about an element of the contract, then there is noconsensus ad idem.
RULE OF LAW / RULE UNDER LAW
The rule of law is an ambiguous term that can mean different things in different contexts. In one context the term means rule according to law. No individual can be ordered by the government to pay civil damages or suffer criminal punishment except in strict accordance with well-established and clearly defined laws and procedures. In a second context the term means rule under law. No branch of government is above the law, and no public official may act arbitrarily or unilaterally outside the law. In a third context the term means rule according to a higher law. No written law may be enforced by the government unless it conforms with certain unwritten, universal principles of fairness, morality, and justice that transcend human legal systems. In rule under law requires the government to exercise its authority under the law. This requirement is sometimes explained w
Rule according to law; rule under law; or rule according to a higher law.
ith the phrase "no one is above the law." During the seventeenth century, however, the English monarch was vested with absolute sovereignty, including the prerogative to disregard laws passed by the House of Commons and ignore rulings made by the House of Lords. In the eighteenth century, absolute sovereignty was transferred from the British monarchy to Parliament, an event that was not lost on the colonists who precipitated the American Revolution and created the U.S. Constitution.
Under the Constitution, no single branch of government in the United States is given unlimited power. The authority granted to one branch of government is limited by the authority granted to the coordinate branches and by the Bill of Rights, federal statutory provisions, and historical practice. The power of any single branch of government is similarly restrained at the state level. During his second term, President richard m. nixon tried to place the Executive Branch of the federal government beyond the reach of legal process. When served with a subpoena ordering him to produce a series of tapes that were anticipated to link him to the Watergate conspiracy and cover-up, Nixon refused to comply, asserting that the confidentiality of these tapes was protected from disclosure by an absolute and unqualified Executive Privilege. In united states v. nixon, 418 U.S. 683, 94 S. Ct. 3090, 41 L. Ed. 2d 1039 (1974), the Supreme Court disagreed, compelling the president to hand over the tapes because the Constitution forbids any branch of government from unilaterally thwarting the legitimate ends of a criminal investigation.
Cross border legal counsel
A successful legal practice today requires the ability to tackle cross border transactions that are increasingly becoming the norm in this era of globalisation. Dealing within the EU and throughout the world is becoming increasingly complex, and to deal effectively with this rapidly changing legal and business environment, a successful lawyer must be well-versed in European Union competition law, company law as well as in matters of international business, trade and marketing and immigration.
RESTRAINT OF TRADE CONTRACT
Restraint of Trade Contracts
In contemporary commercial environments, restraint of trade contracts are common. These are contracts that state, for example, that a person selling a business agrees not to open a similar business within 50 miles of the business being sold and for a period of ten years. On the face of it, such contracts, while not illegal, fly in the face of public policy as it is considered to be "good for the state" that men and women be free to ply their profession without restriction.
This is yet another area where the common law flip-flops and it is difficult to pin point the rule of law from one case to the next. Through it all, some general principles have prevailed, as aptly summarized in a 1894 case, Nordenfelt v. Maxim Nordenfelt Guns & Ammunition Co., a case so widely-accepted that it has becomne known as the Nordefelt Test Meanwhile "All interference with individual liberty of action in trading, and all restraints of trade themselves, if there is nothing more, are contrary to public policy and therefore void. That is the general rule. But there are exceptions: restraints of trade ... may be justified by the special circumstances of a special case. It is a sufficient justification, and indeed it is the only justification, if the restriction is reasonable - reasonable, that is, in reference to the interests of the parties concerned and reasonable in reference to the interests of the public, so framed and so guarded as to afford adequate protection to the party in whose favour it is imposed, while at the same time it is in no way injurious to the public." Some of the factors that a court will look for to decide the "reasonableness" of the restraint of trade contracts will be situations where trade secrets were involved. But special skills learned by an ex-employee while on the job belong to that employee and the exercise of those skills alone cannot be curtailed. Nor should the restraint be for an inordinate amount of time or a geographical limit that is excessive or that exceeds the actual scope of the business at the time of sale.In restraint of trade contracts pursuant to the sale of a business, the court's are more receptive but, again, only if the contract is reasonable in the circumstances. Each case will be decided on its own merits (see also cases such as Shatilla and H. F. Clarke in page 7, Interpretation of Contracts).
CONTRACT- A meeting of minds in Roman law called a consensus ad idem. That is to say a contract needs a meeting of minds.
If one or both parties have been mistaken about an element of the contract, then there is noconsensus ad idem. But that does not necessarily mean that the contract is void. Such a rule could breed abuse.
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Legal Counsel @ Testo Iuris consultus.
BASICS OF ISLAMIC LAW
BASICS OF ISLAMIC LAW
The Sources of Islamic Law
The Formative Period
- Obvious starting point for contemplating a properly constituted “Islamic life” is the
Qur’ân and the explanatory and supplementary addendum of the Prophet Muhammad,
the so-called Sunna
A. Qur’ân and Sunna considered equal in terms of authority
B. But the identity of the Sunna differs from that of the Qur’ân in that the attribution
of individual reports about the Prophet’s words and actions, reports known as
hadith, remain open to debate
1. each individual in the chain of transmission subject to critique
2. in the early period, the Sunna of the Prophet was not always
distinguishable from local practice of the various centers, especially that
of the Prophet’s city of Medina
C. The spread of Islam outside Arabia further complicated this matter by augmenting the
number of local practices that could be conflated with Prophetic Sunna and credited
with the authority of religious law
D. This gives rise to the first “revolution” in Islamic law
A. Al-Shâfi‘î’s contribution was two-fold:
1. He imposed formal strictures on the enterprise of legal argument, identifying
both the sources of law and the acceptable methods of interpreting them
a. His efforts in this regard eternalized the following as the four
universally agreed upon sources of Islamic law
iii. Unanimous Consensus (Ijmâ‘)
iv. Analogy (Qiyâs)
II. Prior to late 2nd/8th century, legal deliberations had been proceeded on the basis of the primary sources mediated through local custom (sometimes accurately and sometimes inaccurately equated with Prophetic Sunna) and an Arab nativist practical reasoning. This would all change with the famous jurist, Muhammad b. Idris al-Shâfi‘î, who laid the foundations for a formal legal theory and emphatically separated Prophetic Sunna from local practice
2. He vehemently argued that only the Sunna or established practice of the Prophet Muhammad was probative as a source of law
a. His efforts in this regard are reflected in the chronological development of the canonical collections of hadith
i. al-Shâfi‘î dies in 204/819
ii. All of the authors of the so-called Six Sound die between the middle and the end of the 3rd/9th century
B. Al-Shâfi‘î’s efforts also resulted (indirectly and unintentionally) in the rise of legal formalism as the established method of interpretation
1. Meaning limited to the observable features of the Arabic language
2. Legal formalism leveled the playing field between Arab nativists and the Arabicized non-Arab Muslims from the conquered territories, as the history, social customs and non-linguistic indicators of meaning to which the Arabians had direct access, are marginalized
a. Full-blown Islamic legal theory basically a compromise between al-Shâfi‘î and the legal formalists
III. Disputed sources and methods
A. Excesses of formalism recognized. This confers recognition upon certain controls and countervailing methods carried over from the pre-theory period:
1. Istihsân / Equity
2. Maslahah / Public Utility
3. ‘Urf / Custom
The Post-Formative Period
I. Ijtihâd, or independent interpretation, both on the basis of the sources and practical reasoning of the pre-theory years and on the basis of methodologies enshrined by the full-blown formal theory produces authoritative figures and transform interpretive communities or madhhabs into sources of legal authority
A. Formal theory confers prima facie authority upon all views that could be vindicated on the basis of the recognized methodology. This inaugurates the post-formative period of Islamic law and the regime of taqlîd or “following precedent”
1. Four equally orthodox, equally authoritative schools: Hanafî, Mâlikî, Shâfi‘î and Hanbalî schools
B. With the “settling down of the madhhabs,” legal interpretation evolves to the point that it now begins with the doctrines, precepts and precedents of the established schools rather than the primary sources
1. Basis of authority shifts from the individual jurist to the school of law as a whole. Whereas the jurist in the formative period gave a fatwâ or legal opinion in his own name, he now issued fatwâs primarily in the name of the school to which he belonged. Where his own views diverged from those of his school, he had now either to bring the school over to his way of thinking or disguise his view as that of the school
2. Legal precepts / Qawâ’id (what American Constitutional law refers to as “tests”) replace the primary sources, i.e., Qur’ân, Sunna, as the starting point of legal deliberation
a. E.g., “oscillation between loan and price”
II. Ijtihâd, i.e., reverting to the primary sources, now the exception and must be justified.
A. Taqlîd (a cognate of stare decisis) now the norm and diverging from it must be justified
B. This tension between ijtihâd and taqlîd, the individual jurist and the collective madhhab and the primary sources and legal precepts define Islamic law from the high classical period right down to modern times
US SUPREME COURT JUDGE-Thurgood Marshall
The whole value of the legal system - the integrity of the rule of law - is at once destroyed if it becomes possible for officials, by arbitrary decisions made not in public court rooms but in the private offices of officialdom, without hearing the parties, without taking evidence, free from all obedience to settled legal principles, and subject to no appeal, effectively to overrule the Courts and deprive a Canadian citizen of a right he has established by immemorial method of a trial at law.Bachand v Dupuis,  D.L.R. 641
Judge Damon Keith
Crusader For Justice: Federal Judge Damon J. Keith
The Honorable Damon J. Keith was appointed to the federal bench in 1967 and has served as a judge on the United States Court of Appeals for the Sixth Circuit since 1977, where he has been an eloquent defender of civil and constitutional rights and a vigorous enforcer of civil rights law. In Crusader for Justice: Federal Judge Damon J. Keith, authors Peter J. Hammer and Trevor W. Coleman present the first ever biography of native Detroiter Judge Keith, surveying his education, important influences, major cases, and professional and personal commitments. Along the way, the authors consult a host of Keith's notable friends and colleagues, including former White House deputy counsel John Dean, Supreme Court Justice Clarence Thomas, and industrialist Edsel Ford II for this candid and comprehensive volume.
Hammer and Coleman trace Keith's early life, from his public school days in Detroit to his time serving in the segregated U.S. army and his law school years at Howard University at the dawn of the Civil Rights era. They reveal how Keith's passion for racial and social justice informed his career, as he became co-chairman of Michigan's first Civil Rights Commission and negotiated the politics of his appointment to the federal judiciary. The authors go on to detail Keith's most famous cases, including the Pontiac Busing and Hamtramck Housing cases, the 1977 Detroit Police affirmative action case, the so-called Keith Case (United States v. U.S. District Court), and the Detroit Free Press v. Ashcroft case in 2002. They also trace Keith's personal commitment to mentoring young black lawyers, provides a candid look behind the scenes at the dynamics and politics of the Sixth Circuit Court of Appeals, and even discusses some of Keith's difficult relationships, for instance with the Detroit NAACP and Supreme Court Justice Clarence Thomas.
CORPUS JURIS CIVILIS
It started in the 5 th century when the great Flavius
Sabbatius Justinian (482-565) when he ordered with the advice of Tribonian , who led the task and became Justinian's top legal advisor for a consolidation of roman law into a great code, which became known as the institutes-the Corpus Juris Civilis. Roman law code served as the direct basis for the civil law system, a system which is by far the most prevalent legal system in the world today. Born Flavius Petrus Sabbatius at Tauresium (now Skopje, Republic of Macedonia), he was adopted by his uncle, Emperor Justin I, thereafter taking the name of Justinian. He was well aware of the crisis in Roman law; too many sources and to many divergent paths being opened. There were already competing editions of purported "Institutes" of Roman law. Justinian knew that the body of law cried out for consolidation, which would only be effective if done under the auspices
of the empire. Justinian retained trustworthy jurists, such asTribonian (the Digests and the Codex, Second Edition) and John of Cappadocia (Codex, First Edition), to do the daily work of law consolidation and reform but he supported the project fully.
How a company is measured
How to invest for the best?
Europe got a head start on investment funds
when Switzerland and Britain set up the first two, in 1849 and 1868 respectively. But a great innovation was made in the US (Boston, 1924) when the first “open-ended” fund was set up. Open funds – still the most popular type today –
are more flexible than “closed” funds and, in practice, are easier to buy and sell, and prices are a more accurate reflection of the underlying assets than closed funds. The US is now the biggest investment fund market in the world, accounting
for about €8000 billion, which is half of global investment (according to 2006 figures).
Businesses commonly invest in the same kind of funds as individuals – equities, fixed interest, government stock and cash, primarily – although the corporate sector will be more likely to invest in riskier and more sophisticated funds (such as currency and hedge funds). In theory, businesses should be hoping to get better returns from carrying out their own trade rather than investing in the markets, but the reality is very different. As well as wanting a cash buffer zone in economic conditions, which are increasingly difficult to predict due to globalisation, the internet, growing consumer power, energy shortages, and price rises mean that businesses increasingly need to hedge against currency fluctuations. Many simply want to take their time deciding how to invest in their own operating sector.
In 2006, only 47 per cent of the world’s investment fund money was in equities, with 18 per cent each in bonds (fixed interest) and money markets (cash), with the remainder in a mixture of these or in more specialist funds. When money goes out of equity and into cash, it is a clear sign that investors are nervous about the prospects for shares.
Historically, equity investment has outperformed fixed interest bonds by a significant margin since records began. In the US real (post-inflation) equity returns have averaged 7.1 per cent a year since 1925 while bonds have averaged just 2.3 per cent, and cash just 0.7 per cent, according to the Barclays Equity Gilt Study 2007. To put it another way, US$100 invested in 1925, with all income reinvested, would now be worth US$25,918 if the money had gone into equities, but just $635 if the investment had been in Treasury bonds.
TESTO IURIS CONSULTUS
Testo Iuris Consultus is a domestic and international general legal counselling chamber. I advise and represent clients on a broadly diversified range of commercial
transactions and offer a full range of legal services in private and business law.
I provide legal advice in Swedish and English , commercial and private international law. I am familiar with matters involving international commercial business contracts; product liability; intellectual property; personal injury; professional negligence.
My office handles both domestic and international business: in order to assist clients with their cross-border transactions we maintain close relationship with numerous correspondent law firms in other jurisdictions throughout the world.
International Law Association, Swedish chapter
Avocats Sans Frontiers
Your right as a customer
Now a days, almost anything we buy from a shop, catalogue or even Internet, there is some thing wrong with it. In this case what does law say as it stands in a situation like this. To start with, traders have a duty to supply products that are safe, in this case the dress in question. If the trader knowingly supplied unsafe goods, then they committed an offence. However if you buy an unsafe product, contact without delay your local Trading Standards Offence who will investigate the matter and prosecute the trader if necessary.
What does the law say?
One of most important laws governing your rights as a consumer is the Sale of Goods Act 1979. Like many laws
it has evolved to keep up with changes in society so that the Act now includes the ‘amendments’ the Sale and Supply of Goods Act 1994 and the Sale of Goods (amendment) Act 1995. This a wide-ranging legislation that applies to both new and second
hand goods. It protects consumers by ensuring that:
1. Goods are of ‘satisfactory quality’.
2. The product must last a reasonable time and be free from defects.
3. Goods as ‘described’-a trader or advertisement must honestly descried the product. For example you buy a CD that turns to be a counterfeit.
4. Fit for purpose-products must do what the supplier says to do.
Customers benefit from various protection under the Sale of Goods Act 1979. This Act was updated and amended by the Sale and the Supply of Goods Act 1994. To benefit from it, I would advice my client must have entered into ‘contract of sale’. Section 2(1) of the 1979 Act defines this as: a contract by which the seller transfers or agrees to transfer the property in goods (the dress) to the buyer for money consideration, called the price. Section 14 of the 1979 Act may impose various ‘implied’ terms into your contract such as ‘satisfactory quality’ and goods being ‘reasonably fit’ for what they were bought for. Section 1 of the Sale and Supply of Goods Act of 1994, substantially updated section 14 of the 1979 Act, ‘satisfactory quality’ is now defined by section 14(2A), goods must be of satisfactory quality.
Satisfactory quality is further defined by section 14(2b) of the 1979 Act, so the quality of goods includes their state and condition and the following among others are in appropriate cases aspects of quality of goods.
(a) fitness for all purposes for which the goods in question are commonly supplied.
(b) freedom from minor defects.
(c) safety, and
If my client buys something that does not meet any of the conditions stated above, then I would advice him/her to demand many back from the trader (the shop) not the manufacturer, wholesaler or importer. If goods are not of satisfactory or reasonably fit for their purpose, the law provides my client with remedies. Legal remedies or options include-the right to reject goods (ask for refund) section 15B, 1979 Act and seek damages and treat the contract as repudiated (ended). If the purpose is not the what the goods are not commonly supplied for-see section 14(3) of the 1979 Act.
International Trade Contracts
Aspects in international trade contracts.
Contracts and the implications of it, by taking into account in their business transactions and financial aspects.
First: the preliminary title: allotted by the researcher to study the legal concept of international trade rules and international commercial contracts has divided this section into two chapters, the first chapter of the concept of the legal system of international trade, and the second chapter allotted to study the legal concept of the holding of international trade and nature.
II: Part I: allotted for negotiations in international trade contracts and includes the section two, the first chapter allotted to study the legal concept of negotiations and agreements leading up to contract in international trade contracts, and the second chapter allotted to study the obligations of the parties and liability for the breach thereof at the stage of the negotiations.
III: Part II: allotted for the establishment and execution of the contract of international trade, has divided this section into three sections, the first between the provisions of the compromise in international trade contracts, and the second chapter allotted to study the content of international trade contracts and interpretation, and the third chapter dealt with the implementation of international trade contracts
Conclusion: where are the most important results revealed by the study with reference to some of the recommendations and proposals based on those results
The Islamic system of law
In general, Gulf states operate as largely patriarchal societies, headed and administered by ruling families, whose aim is to maintain the status quo while moving towards increased democracy (although in many cases the authorities seem to follow the old adage: ‘If it ain’t broke, don’t fix it’).
The Islamic system of law, known as Sharia (or Shari’a or Shariah), derives from four sources: the Holy Koran ( Qu’ran), Sunnah, Ijma and Qiyas. The Holy Koran, being the word of God ( Allah), is the principal source. The Sunnah comprises the accepted deeds and statements of the Prophet Mohammed, accepted by the whole Islamic world (the Ummah). Ijma is a consensus among religious scholars (the Ulema) regarding solutions to matters not specifically covered in either the Koran or the Sunnah. In difficult cases, where there’s no information to provide the basis for a clear decision, ‘analogous consideration’ ( Qiyas) is applied in conjunction with the three other sources of the law.
In Sharia law, as in other legal systems, a person is presumed innocent until proven guilty. The plaintiff and defendant are equal before the law – i.e. in a court of law – and it’s incumbent upon the former to provide proof of guilt. This involves producing two or four eyewitnesses, depending on the seriousness of the crime. If a plaintiff isn’t able to produce eyewitnesses, he can insist on the defendant swearing an oath as to his innocence. If the defendant refuses to take this oath, he’s judged to be guilty, as perjurers suffer hellfire and eternal damnation according to Muslim belief. Jews and Christians swear a different oath, but it has equal validity. A judge ( qadi) presides over the court and can put questions to all parties at will. There are no juries and often no lawyers to present the case for their clients. There are systems of appeal, which can be used in cases of serious crime and punishment.
According to ancient law, the payment of ‘blood money’ ( diya) for injury or death can be requested by the victim’s family as compensation. The amount of blood money required varies between the states (it’s most likely to be exacted in Kuwait, Saudi Arabia and the UAE) and according to the circumstances of the death and to the extent of the hardship that the death will cause. For example, the death of a father of 12 would attract a larger payment than that of a child. A local Muslim’s life will be assessed for a larger financial benefit than people of other religions, faiths or nationalities. For example, in Saudi Arabia, a male Muslim’s life is worth SR100,000 (around $24,000), but Christians are worth only around half as much. And if the incident occurs in the Holy month of Ramadan, the penalty is usually doubled.
Under Islamic law, the crimes that carry defined penalties are murder, apostasy (rejection or desertion of Islam), adultery, fornication, homosexuality and theft. Interpretations of the law and punishments vary from state to state. Lesser offences might include debt, usury, alcohol and drug abuse, and use of pornography.
As an expatriate, you’re subject, of course, to the laws of the country you’re in. If you’re thought to have broken a law, you’re taken under arrest to a police station, questioned and instructed to make a statement. Up to this point, it’s highly unlikely that you will be allowed access to outside help, either legal or consular. If the offence is deemed serious enough to warrant your detention, you might have to wait some time before your case comes up. You will be allowed legal representation, but everything will be conducted in Arabic. Your statement will be translated into Arabic, and it’s important to insist that an appropriate official, e.g. a member of staff from your consulate, checks the accuracy of the translation and the content of anything you’re required to sign. If no one is available to do this, you should refuse to sign, or sign with an endorsement to the effect that you don’t have a clear understanding of the document.
In court, an interpreter will be present to assist you and an official from your embassy or consulate is likely to be present, although only as an observer. If you’re found guilty, the judge will sentence you and ask for your written acceptance of the sentence, unless you want to appeal. Appeals obviously go to higher courts, depend a great deal on the severity of the accusation and sentencing, and can take time. In very serious cases, political influence might be brought to bear on your behalf, provided that your country has sufficient influence, but this is rare. Having influence with a person in authority can be of help to you, although expatriates rarely have such influence. Locals, on the other hand, may be able to petition their ruler to seek his guidance and help. In minor cases, your employer might intervene to help, particularly if you’re valuable to him, as long as he won’t lose face.
If you’re unfortunate enough to be given a custodial sentence, this is intended as a punishment rather than rehabilitation. If you’re found guilty of a serious crime, you may find yourself in a hot, overcrowded prison, where treatment is often harsh and you might have to witness the punishment of others, including their flogging.
Ignorance of the law isn’t accepted as anexcuse before the law, so it’s as well to acquaint yourself with the laws of the country that you choose to live in.
Non-Muslim expatriates sometimes regard Sharia law as unbending and overly punitive, which it often is by western standards – and for good reason. Expatriates are largely expendable commodities and, if you’ve engaged in criminal activity, you’re sent home after punishment.
Sharia law is the predominant feature of many countries legal system, although there are also civil courts. Sharia law is applied to criminal matters and, although no executions or amputations have been carried out for some years.
International BUSINESS AND ECONOMIC LAW
General Incorporation law
A general incorporation law allows corporations to be formed without a charter from the legislature. It also refers to a law enabling a certain type of corporation, such as a railroad, to exercise eminent domain and other special rights without a charter from the legislature .
Steps for incorporation
The filing of the Articles of Incorporation (also called a Charter , Certificate of Incorporation or Letters Patent ). The first step is to check with your state's corporate filing office (usually either the Secretary of State or Corporations Commissioner ) and federal and state trademark registers to be sure the name you want to use is available. You then fill in blanks in a preprinted form (available from commercial publishers or your state's corporate filing office ) listing the purpose of your corporation, its principal place of business and the number and type of shares of stock. You'll file these documents with the appropriate office, along with a registration fee which will usually be between $200 and $1,000, depending on the state.
How to Select a Corporation's Name. A corporate name is generally made up of 3 parts: "Distinctive element", "Descriptive element", and a legal ending. All corporations MUST have a distinctive element and a legal ending to their names. Some corporations choose not to have a descriptive element. In the name "Tiger Computers Inc." the word "Tiger" is the distinctive element; the word "Computers" is the descriptive element; and the "Inc." is the legal ending. The legal ending indicates that it is in fact a legal corporation and not just a business registration or partnership . You can choose from the following words: Incorporated, Limited and Corporation, or their respective abbreviations: Inc., Ltd. and Corp.
You'll also need to complete (but not file) Corporate Bylaws . These will outline a number of important corporate housekeeping details such as when annual shareholder meetings will be held, who can vote and the manner in which shareholders will be notified if there is need for an additional "special" meeting.
Reporting after incorporation
Assuming your corporation has not sold stock to the public, conducting corporate business is remarkably straightforward and uncomplicated. Often it amounts to little more than recording key corporate decisions (for example, borrowing money or buying real estate) and holding an annual meeting. Even these formalities can often be done by write
agreement and don't usually necessitate a face-to-face meeting.
International perspective on incorporation
The legal concept of incorporation is recognized all over the world. In the United States, corporations are identified by the term "incorporated" added after the business name, such as "Texas Instruments, Incorporated", or by putting the word corporation in the name of the company, as in "Netscape Communications Corporation". In Germany , the phrase Gesellschaft mit beschränkter Haftung (German: limited liability company; business entity, abbreviated GmbH ) as in "L'Orange GmbH", or Aktiengesellschaft (German: stock corporation, abbreviated as AG ) as in Deutsche Bank AG are used. In the United Kingdom the titles Ltd. (abbreviation for limited company) or plc (abbreviation for public limited company) are used for corporations. In France , Spain , Portugal , Poland , Holland and South America the title S.A. is used for corporations.
Small business ownership
As small business owners are well aware, we live in a time where anyone who feels that they have been wronged files a lawsuit. Now, more than ever, it is important that small businesses examine their options to determine the correct type of business entity in which to operate. Choosing the right type of business type can save your home and other personal assets being at risk if you are named in a business-related lawsuit.
Most individual owners of small businesses operate what is called a sole proprietorship. For example: George, a printer, opens George’s Print Shop. This is the cheapest way to operate with no special state filing requirements to start the business. The major problem with operating as a sole proprietorship is, of course, the personal vulnerability of the owner’s assets.
Running as a sole proprietorship means that George, the owner, is personally liable for any and all debts and claims made against George’s Print Shop. Personal liability is something to be steadfastly avoided if possible. It is better to do avoid the potential for personal liability before any lawsuits have been filed against a business.
A partnership is where two or more people operate a business in concert with a common goal, e.g. George and Fred, open George and Fred’s Print Shop. The partnership differs from the sole proprietorship in that there is more than one person that owns and is responsible for the business.
There are tax advantages to using a partnership in that income and losses of the partnership are generally passed through to the partners’ tax returns directly. However, a partnership carries the same potential for personal liability of each partner as a sole proprietorship, i.e., personal assets are at risk.
An additional potential problem is that each partner can bind the partnership and other partner(s) to contracts. Thus, a partnership carries the risk that your partner can put your personal assets at risk. If the print shop fails, both George and Fred’s personal assets are at risk for creditors to use to satisfy debts owed by George and Fred’s Print Shop. It is very important before entering into a partnership that you know AND trust your partner(s).
Another type of partnership is called a “limited partnership”. A limited partnership has at least one “general partner” with full personal liability for all partnership debts. However, the limited partnership also has “limited partners” who have liability and participation in the business limited to their investment in the partnership.
A Corporation is a separate entity such as George and Fred’s Print Shop, Inc. Use of a corporation limits the liability of all of the owners (stockholders) of the corporation. Provided the corporation is set up correctly and initially has adequate capitalization and maintains the separateness of the corporate entity there is no personal liability for the stockholders.
Formation of a corporation is not nearly as simple as with a partnership. There are specific filings that must be made with the State and certain corporate formalities that must be maintained in order to preserve the corporate status and limited liability. Additionally, a corporation is more expensive since yearly fees and taxes must be paid.
The major advantage to the corporate entity is, of course, its limited liability. With a limited partnership, only the general partner would still be liable for the damages to the injured party. In a corporation, generally only the corporation is liable, not the officers, directors or shareholders.
Branches of International Law
- International Criminal Law
- The law pertaining to use of force
- International Humanitarian Law
- Law of the sea
- Diplomatic Law
- Consular Law
- Law of state Responsibility
- International enviromental law
International law , is the body of law that "regulates the activities of entities possessing international personality". Traditionally, that meant the conduct and relationships of states. However, it is now well established that International Law also concerns the structure and conduct of international organizations, and, to a degree, that of multinational corporations and individuals.
The term "Public International Law" is occasionally used as a synonym to distinguish International Law from "Private International Law" . The latter regulates the relations between persons or entities in different states and is in fact not international law at all (a better term which has been suggested for private international law is " conflict of laws ").
The scope of international law
The value and authority of international law is entirely dependent upon the voluntary participation of states in its formulation, observance, and enforcement. Although there may be exceptions, most states enter into legal commitments to other states out of enlightened self-interest rather than adherence to a body of law that is higher than their own. The formation of the United Nations created a means for the world community to enforce international law upon members that violate its charter. Traditionally, states were the sole subjects of international law. With the proliferation of international organizations over the last century, they have in some cases been recognized as relevant parties as well. Recent interpretations of international human rights law , international humanitarian law , and international trade law (e.g. NAFTA Chapter 11 actions) have been inclusive of corporations, and even individuals.
The 17th, 18th and 19th centuries saw the growth of the concept of a "nation-state", which comprised nations controlled by a centralized system of government. The concept of nationalism became increasingly important as people began to see themselves as citizens of a particular nation with a distinct national identity. Until the beginning of the 20th century, relations between nation-states were dictated by Treaty, unenforceable agreements to behave in a certain way towards another state. Many people now view the nation-state as the primary unit of international affairs. States may choose to voluntarily enter into commitments under international law, but they will often follow their own counsel when it comes to interpretation of their commitments. As the 20th century progressed, a number of violent armed conflicts, including WWI and WWII, exposed the weaknesses of a voluntary system of international treaties. In an attempt to create a stronger system of laws to prevent future conflicts, international law was strengthened through the creation of the United Nations, an international law making body, and new international criminal laws used at the Nuremberg trials. Over the past fifty years, more and more international laws and law making bodies have been created.
Many people feel that these modern developments endanger nation states by taking power away from state governments and ceeding it to international bodies such as the U.N. and the World Bank. Some scholars and political leaders have recently argued that international law has evolved to a point where it exists separately from the mere consent of states. There is a growing trend toward judging a state's domestic actions in light of international law and standards (see world government for trends and movements leading in this direction). A number of states, notably including the United States vehemently oppose this interpretation, maintaining that sovereignty is the only true international "law" and that states have free reign over their own affairs. Similarly, a number of scholars now discern a legislative and judicial process to international law that parallels such processes within domestic law. Opponents to this point of view maintain that states only commit to international law with express consent and have the right to make their own interpretations of its meaning; and that international courts only function with the consent of states. Because international law is a new area of law its development is uncertain and its relevance and propriety is hotly disputed.
See main article: Sources of International Law .
International law has three primary sources: international treaties, custom, and general principles of law (cf. Art. 38 of the Statute of the International Court of Justice). International treaty law is comprised of obligations states expressly and voluntarily accept between themselves in treaties . Customary international law is derived from the consistent practice of States accompanied by opinio juris, i.e. the conviction of States that the consistent practice is required by a legal obligation. Judgments of international tribunals as well as scholarly works have traditionally been looked to as persuasive sources for custom in addition to direct evidence of state behavior. Attempts to codify customary international law picked up momentum after the Second World War with the formation of the International Law Commission (ILC). Codified customary law is made the binding interpretation of the underlying custom by agreement through treaty. For states not party to such treaties, the work of the ILC may still be accepted as custom applying to those states. General principles of law are those commonly recognized by the major legal systems of the world. Certain norms of international law achieve the binding force of peremptory norms (jus cogens) as to include all states with no permissible derogations. Legal principles common to major legal systems may also be invoked to supplement international law when necessary.
Where there are disputes about the exact meaning and application of national laws, it is the responsibility of the courts to decide what the law means. In international law as a whole, there are no courts which have the authority to do this. It is generally the responsibility of states to interpret the law for themselves. Unsurprisingly, this means that there is rarely agreement in cases of dispute. The Vienna Convention on the Law of Treaties writes on the topic of interpretation that:
"A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose." (article 31(1))
This is actually a compromise between three different theories of interpretation:
- The textual approach is a restrictive interpretation which bases itself on the "ordinary meaning" of the text, the actual text has considerable weight.
- A subjective approach considers the idea behind the treaty, treaties "in their context", what the writers intended when they wrote the text.
- A third approach bases itself on interpretation "in the light of its object and purpose", i.e. the interpretation that best suits the goal of the treaty, also called "effective interpretation".
These are general rules of interpretation; specific rules might exist in specific areas of international law.
Apart from a state's natural inclination to uphold certain norms, the force of international law has always come from the pressure that states put upon one another to behave consistently and to honor their obligations. As with any system of law, many violations of international law obligations are overlooked. If addressed, it is almost always purely through diplomacy and the consequences upon an offending state's reputation. Though violations may be common in fact, states try to avoid the appearance of having disregarded international obligations. States may also unilaterally adopt sanctions against one another such as the severance of economic or diplomatic ties, or through reciprocal action. In some cases, domestic courts may render judgment against a foreign state (the realm of private international law) for an injury, though this is a complicated area of law where international law intersects with domestic law. States have the right to employ force in self-defense against an offending state that has used force to attack its territory or political independence. States may also use force in collective self-defense, where force is used against another state. The state that force is used against must authorize the participation of third-states in its self-defense. This right is recognized in the United Nations Charter .
Violations of the UN Charter by members of the United Nations may be raised by the aggrieved state in the General Assembly for debate. The General Assembly cannot make binding resolutions, but under the " Uniting for Peace " resolution (GA/RES/0377) it declared it could authorize the use of force if there had been Breaches of the Peace or Acts of Aggression, provided that the Security Council due to a negative vote of a permement member failed to act. It could call for other collective measures (such as economic sanctions) given a situation constituted the milder "threat to the Peace". The legal significance of such a resolution is unclear, as the General Assembly cannot issue binding resolutions.
They can also be raised in the Security Council . The Security Council can pass resolutions under Chapter VI of the UN Charter to recommend "Pacific Resolution of Disputes." Such resolutions are not binding under international law, though they usually are expressive of the council's convictions. In rare cases, the Security Council can pass resolutions under Chapter VII of the UN Charter related to "threats to Peace, Breaches of the Peace and Acts of Aggression," and these are legally binding under international law, and can be followed up with economic sanctions, military action, and similar uses of force through the auspices of the United Nations.
It has been argued that resolutions passed outside of Chapter VII can also be binding; the legal basis for that is the Council's broad powers under Article 24(2), which states that "in discharging these duties (exercise of primary responsibility in international peace and security), it shall act in accordance with the Purposes and Principles of the United Nations". The mandatory nature of such resolutions was upheld by the International Court of Justice in its advisory opinion on Namibia . The binding nature of such resolutions can be deduced from an interpretation of their language and intent.
States can also, upon mutual consent, submit disputes for arbitration by the International Court of Justice (ICJ), located in The Hague , Netherlands . The judgments given by the Court in these cases are binding, although it possesses no means to enforce its rulings. The Court may give an advisory opinion on any legal question at the request of whatever body may be authorized by or in accordance with the Charter of the United Nations to make such a request. Some of the advisory cases brought before the court have been controversial with respect to the courts competence and jurisdiction.
Often enormously complicated matters, ICJ cases (of which there have been less than 150 since the court was created from the Permanent Court of International Justice in 1945) can stretch on for years and generally involve thousands of pages of pleadings, evidence, and the world's leading specialist public international lawyers. As of 2005 , there are twelve cases pending at the ICJ. Decisions made through other means of arbitration may be binding or non-binding depending on the nature of the arbitration agreement, whereas decisions resulting from contentious cases argued before the ICJ are always binding on the involved states.
Though states (or increasingly, international organizations ) are usually the only ones with standing to address a violation of international law, some treaties, such as the International Covenant on Civil and Political Rights have an optional protocol that allows individuals who have had their rights violated by member states to petition the international Human Rights Committee .
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Through the ages a code developed for the relations and conduct between nations. Even when nations were at war , envoys were often considered immune to violence. The first formal attempts in this direction, which over time have developed into the current international law, stem from the era of the Renaissance in Europe . In the Middle Ages it had been considered the obligation of the Church to mediate in international disputes. During the Council of Constance (1414) Pawel Wlodkowic , rector of Jagiellonian University ( Kraków , Poland ), theologian, lawyer and diplomat, presented the theory that all, including pagan , nations have right to self-govern and to live in peace and possess their land. In the 16th and 17th centuries the Church gradually lost its direct influence in international affairs, as Catholic and Protestant powers emerged and struggled for dominance and survival. At the beginning of the 17th century, several generalizations could be made about the political situation:
- Self-governing, autonomous states existed.
- Almost all of them were governed
by monarchs. Land, wealth, and trading rights were often the topics of wars between states.
- The Peace of Westphalia is often cited as being the birth of the modern nation-states , establishing states as sovereigns answering to no-one within its own borders.
Some people assert that international law developed to deal with the new states arising, others claim that the lack of influence of the Pope and the Catholic church gave rise to the need for new generally-accepted codes in Europe. The Dominican professor of theology Francisco de Vitoria (in Latin Franciscus de Victoria) at the University of Salamanca lectured on the rights of the natives. He did so while Spain was at the height of its power, after the violent Spanish conquest of Peru in 1536 . Charles V, Holy Roman Emperor , protested against the friar , but in 1542 new laws put the natives under protection of the Spanish crown . Vitoria is generally recognized as the founder of modern international law. (See also School of Salamanca.) The French monk Emeric Cruce ( 1590 – 1648 ) came up with the idea of having representatives of all countries meeting in one place to discuss their conflicts so as to avoid war and create more peace. He suggested this in his The New Cyneas ( 1623 ), choosing Venice to be the selected city for all of the representatives to meet, and suggested that the Pope should preside over the meeting. Of course, during the Thirty Years' War ( 1618 – 1648 ), this was not acceptable to the Protestant nations. He also said that armies should be abolished and called for a world court. Though his call to abolish armies was not taken seriously, Emeric Cruce does deserve his place in history through his foresight that international organizations are crucial to solve international disputes. Hugo Grotius (or Huig de Groot) ( 1583 - 1645 ) was a Dutch humanist and jurist considered central to the development of international law. He became a lawyer when he was 15 years old and got sentenced to life in prison after going against Maurice of Nassau , son of William of Orange in a trial, but he escaped and fled to Paris. In France, he developed his ideas on international law with his Mare Liberum ( Latin for "Free seas"), in which he challenged the claims and attempts of England , Spain , and Portugal to rule portions of the oceans and seas. He gained new international fame in 1625 with his book De Jure Belli ac Pacis (The Law of War and Peace), as it became the first definitive text on international law in Europe. It was published only two years after The New Cyneas. Much of Grotius's content drew from the Bible and from classical history ( just war theory of Augustine of Hippo ). In his work he did not condemn war as only a political tool, considering cases in which war is appropriate. He further developed the just war theory. A just war fits certain criteria:
- It can be to repel an invasion.
- It can be to punish an insult to God.
- There has to be a just cause (one of the two mentioned above).
- It has to be declared by the proper authorities.
- It must possess moral intention.
- It must have a chance of success.
- It must abstain from brutal practices.
- Its end result must be proportional to the means used.
The statesmen of the time believed no nation could escape war, so they prepared for it. King Henry IV's Chief Minister, the Duke of Sully , proposed the founding of an alliance of the European nations that was to meet to arbitrate issues and wage war not between themselves but collectively on the Ottoman Turks, and he called it the Grand Design, but was never established. After World War I , the nations of the world decided to form an international body. U.S. President Woodrow Wilson came up with the idea of a " League of Nations ". However, due to political wrangling in the U.S. Congress , the United States did not join the League of Nations , which was one of the causes of its demise. When World War II broke out, the League of Nations was finished. Yet at the same time, the United Nations was being formed. On January 1 , 1942, US President Franklin D. Roosevelt issued the " Declaration by United Nations " on behalf of 26 nations who had pledged to fight against the Axis powers . Even before the end of the war, representatives of 50 nations met in San Francisco to draw up the charter for an international body to replace the League of Nations . On October 24 , 1945, the United Nations officially came into existence, setting a basis for much international law to follow.
res ipsa loquitur
In the common law of negligence , the doctrine of res ipsa loquitur (Latin for "the thing itself speaks") states that the elements of duty of care and breach can be sometimes inferred from the very nature of an accident or other outcome, even without direct evidence of how any defendant behaved. Although modern formulations differ by jurisdiction, the common law originally stated that the accident must satisfy the following conditions:
- A "duty" exists for a person to act "reasonably"; and
- A "breach" of this duty occurs because a person [or agency, etc.] acted outside this duty, or "unreasonably"; and
- There was "causation in fact"...the result would not have occurred "but for" the "breach" of this duty;
- There was actual legally recognizable harm suffered by the plaintiff who did nothing wrong (i.e., no contributory negligence ).
Upon a proof of res ipsa loquitur, the plaintiff need only establish the remaining two elements of negligence —namely, that the plaintiff suffered harm, of which the incident result was the legal cause.
Damnum abesque injuria
In law , damnum absque injuria ( Latin for "loss without injury") is a phrase expressing the principle of tort law in which some person ( natural or legal ) causes damage or loss to another, but does not injure them, and thus the latter has no legal remedy . For example, opening a burger stand near someone else's may cause them to lose customers, but this in itself does not give rise to a cause of action for the original burger stand owner.