• Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

With reference to the works of two or more comparative lawyers and other sources, critically discuss the proposition that the comparative method drives integration rather than separation among legal systems:

Extracts from this document...

Introduction

Q With reference to the works of two or more comparative lawyers and other sources, critically discuss the proposition that the comparative method drives integration rather than separation among legal systems: Introduction We are living in a globalised world which has seen a massive rise of wealth in countries such China, India and Brazil. Africa has been the fastest growing economy in the world for the past few years. This has been achieved mainly through increased international trade between countries from every continent in the world. We also live in a world where there is a belief that every human being has certain fundamental rights and is enshrined in numerous trans-national treaties. In this essay I will attempt to demonstrate that the comparative method of looking and dealing with law, does in fact encourage integration of legal systems. This convergence of legal systems stems from integration of the world as whole. This facilitates international transactions, increases the general welfare, promotes the diffusion of culture1, and leads to international understanding. From the economic point of view, uniformity and simplicity may reduce the transaction costs and significantly avoid uncertainties connected with the use of conflict of laws rules. The Issues that I am dealing with: The basis of my argument is that the world, in order to sustain this period of globalisation must incorporate methods in which countries can do business with each other, dispite their vastly different legal systems. In this essay I will firstly look and how, through necessity, there has been a huge growth in international commercial arbitration. ...read more.

Middle

In arbitration proceedings, the purpose of the proceeding is more a question of 'finding the truth' than 'settlement of the dispute'. It is important to remember that international arbitration agreements frequently provide for prior compulsory mediation. If the parties are unable to compose their differences with the assistance of a neutral mediator, then the purpose of arbitration is not to try to bring them together but to decide who should prevail and to what extent. The parties to arbitration will more likely accept the arbitrator as an impartial person to decide who should prevail if the arbitrator does not interfere actively in the proceedings and behaves in a somewhat reserved manner, as common law judges typically do. Finally, the purpose of 'finding the truth' as opposed to 'settlement of the dispute' is also important, because the arbitrator's decision cannot be corrected as easily as in court proceedings, where often an appeal is possible and the decision at first instance can be controlled by a higher court. Of course a civil law arbitrator will apply common law principles only if this is more effective to him and he will follow civil law rules for the rest. Thus the area of international commercial arbitration is not merely a place of clash and confrontation between common law and civil law but actually also a real point of intersection where common law and civil law are fused together to a certain degree. How the creation of the EU has integrated legal systems: The creation of European Union (EU) ...read more.

Conclusion

Volume 29 page 43, Dennis Campbell 6 See 'Some reflections on Teubnerian and Kelsenian Legal theory'- Conflict of laws (2007); for an excellent academic critique of the legal theory behind the choice process in ICA. 7 See 'A common layer's view of his civilian colleagues' 57 Loisiana Law Review 227 (1996); for a firsthand account of the process of drafting these agreements and examples of the comparative method in action. 8 See Comparative law of international arbitration by Jean-Fran�ois Poudret, S�bastien Besson 9 W Van Gerven "ECJ Case-Law as a Means of Unification of Private Law" (1997) 2 European Review of Private Law 293. 10 A Common law for Europe by Gian Antonio Benacchio, Barbara Pasa 11 For example, Resolution on Action to Bring into line the Private Law of the Member States, 1989 O.J. C158/400, and Resolution on the Harmonization of Certain Sectors of the Private Law of the Member States, 1994 O.J. C205/518. 12 See O Lando & H Beale (eds) Principles of European Contract Law (Kluwer, The Hague, 2000). 13 "rules of law which in principle have no legally binding force but which nevertheless may have practical effects" as defined in 'Soft Law' ELR 14 14 The State of the European Union: Law, Politics, and Society Vol. 6 (2003) p221 15 Zweigert K, Koetz H, supra note 40 at 261 16 See EC Competition Law Essay By Veronica Hagenfeldt 17 Nippon Yusen Kasha v. Karageorgis 1 W.L.R. 1093 at 1095-1095. 18 See Perspectives for the unification and harmonisation of family law in Europe By Katharina Boele-Woelk ?? ?? ?? ?? ...read more.

The above preview is unformatted text

This student written piece of work is one of many that can be found in our University Degree European Union Law section.

Found what you're looking for?

  • Start learning 29% faster today
  • 150,000+ documents available
  • Just £6.99 a month

Not the one? Search for your essay title...
  • Join over 1.2 million students every month
  • Accelerate your learning by 29%
  • Unlimited access from just £6.99 per month

See related essaysSee related essays

Related University Degree European Union Law essays

  1. The EC decision-making process has often been criticised for its lack of democratic legitimacy. ...

    A balanced combination of democracy and efficiency produces legitimacy. Legitimacy is also dependent on the contention that democracy and efficiency are perceived by the public.

  2. Reform of the ultra vires rule: A personal view.

    However, it would appear that fraudulent collusion is narrower than good faith as the Commission refused to accept an amendment to Article 9(2) which would have provided that third parties would only be protected if they had been acting in good faith' (at p530).

  1. Free movement of capital and payments. Although the 1957 Treaty of Rome included ...

    undertakings concerned, and all persons affected by a restrictive measure of that type must have a legal remedy available to them.33 9 Relationships with other Freedoms: 9.1 It has been suggested that that the free movement of capital is ancillary to the other freedoms, for example goods or establishment.

  2. FREE MOVEMENT OF GOODS WITHIN EU

    According to Article 25(formerly 12), it prohibits the introduction of new customs duties or charges having equivalent effect, and equally prohibits the increase of those which are already in existence. This prohibition applies both to imports and exports. The impact of this Article was enhanced by the ECJ in the following cases.

  1. Company Law and Corporate Governance

    The American Enron scandal was the cause of massive losses of shareholder value on both sides of the Atlantic and post-Enron initiatives were a matter of necessity. In the United States, the American Authorities acted remarkably quickly in response, by drafting and implementing the Sarbanes-Oxley Act45.

  2. This article will critically assess the protection of privacy in the electronic communications sector ...

    Indeed to ensure the effective enforcement of the rules on unsolicited commercial communications it is important to prevent the use of false identities or false return addresses. Moreover, In order to encourage consumers to take their privacy choices seriously, it is important to remove from the range of outcomes they

  1. What was the relationship between the Factortame case and the Treaty of Rome 1957?

    He recognized that the measure would cause loss, but that was not the purpose of it. [92] [1997] EWHC 755; [1998] 3 CMLR 192; [2000] 1 AC 524 [93] On 28th October 1999, the House of Lords dismissed the Government's appeal -- see[1999] 3 WLR 1062.

  2. EU Law - Albatros Pool problem case. Mark and Sunita must be advised that ...

    The European Court is cognisant of the unfairness created by the disparity between horizontal and vertical effect and has established jurisprudence to address the issue and provide remedies for those who only have a right of action against a private entity.

  • Over 160,000 pieces
    of student written work
  • Annotated by
    experienced teachers
  • Ideas and feedback to
    improve your own work