Question

1.Define the difference between common law and civil law. Describe why there is a relevance to the type of law used when doing business in an international context

2.Describe a situation when a company may decide to not file for a patent, and explain the positive and negative repercussions of such a choice

3.Provide the pros and cons of TRIPS – would you consider this to be a more positive or more negative legal agreement amongst nations?

Answer 1

Answer:

1) Common law gives judges an active role in developing rules; civil law is based on fixed codes and statutes

The main difference between the two systems is that in common law countries, case law — in the form of published judicial opinions — is of primary importance, whereas in civil law systems, codified statutes predominate. But these divisions are not as clear-cut as they might seem

Common Law: common law (also known as judicial precedent or judge-made law, or case law) is that body of law derived from judicial decisions of courts and similar tribunals. Defining a characteristic of “common law” is that it arises as precedent. In cases where the parties disagree on what the law is, a common law court looks to past precedential decisions of relevant courts and synthesizes the principles of those past cases as applicable to the current facts. If a similar dispute has been resolved in the past, the court is usually bound to follow the reasoning used in the prior decision. If, however, the court finds that the current dispute is fundamentally distinct from all previous cases and legislative statutes are either silent or ambiguous on the question, judges have the authority and duty to resolve the issue (one party or the other has to win, and on disagreements of law, judges make that decision). The court states an opinion that gives reasons for the decision, and those reasons agglomerate with past decisions as precedent to bind future judges and litigants.

Common law, as the body of law made by judges, stands in contrast to and on equal footing with statutes which are adopted through the legislative process, and regulations which are promulgated by the executive branch (the interactions among these different sources of law are explained later in this article). Stare decisis, the principle that cases should be decided according to consistent principled rules so that similar facts will yield similar results lies at the heart of all common law systems.

Civil law: Civil law is a body of rules that defines and protects the privacy rights of citizens, offers legal remedies that may be sought in a dispute, and covers areas of law such as contracts, torts, property and family law.

Civil law, or civilian law, is a legal system originating in Europe, intellectualized within the framework of Roman law, the main feature of which is that its core principles are codified into a preferable system which serves as the primary source of law.

A body of rules that delineate private rights and remedies, and govern disputes between individuals in such areas as contracts, property, and Family Law; distinct from criminal or public law. ... One meaning of civil law refers to a legal system prevalent in Europe that is based on written codes.

Describe why there is a relevance to the type of law used when doing business in an international context?

- Common law and civil law systems affect how business is conducted within a country’s specific jurisdiction. Such systems of law also affect how international business is supervised in terms of compliance issues and taxation laws. The goal of this article is to outline some of the differences between the two legal systems. The source material for this blog is the legal framework assessment section of the World Bank resource website for public-private partnerships.

To begin with, the origins of the two types of legal systems need to be defined. Countries following a common law system are typically those that were former British colonies or protectorates, including the United States. Countries following a civil law system are typically those that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates. Given the history of colonization, this includes much of Central and South America. The majority of Central and Eastern Europe have a civil law system. In addition, in light of the shifts in the world economy, it’s important to note that most East Asian countries (including China and Japan) follow a civil law structure.

Overall, a common law system is less prescriptive than a civil law system. There is extensive freedom of contract when setting up a contractual relationship between two parties. Few provisions are implied into the contract by law, although safeguards often are implied to protect private consumers. As a direct result, ALL the terms that govern the relationship between the parties need to be clearly defined in the contract itself. Such necessities often result in a contract being longer than one in a civil law country.

In general, when it comes to common law contracts, almost everything is permitted that is not expressly prohibited by law. If there is a question of legality, it tends to be decided by the courts with such rulings becoming universally recognized. In a common law system, judicial decisions are binding. Decisions by the highest court can only be overturned by that same court or, in certain cases, but not all, through legislation.

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