International Business Law
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International Business Law
First of all, the « Common Law » and « Civil Law » systems are the two main important legal systems in the world but there are a lot of differences between them.
Regarding the history of the Civil Law system which concerns about 60% of the worlds population, it has its roots in Roman law and in particular Justinian law (6th century AD). This system is related with the codification movement in the 19th century during which the most important codes have been established (including the Code Napoleon and the Bürgerliches Gesetzbuch). It includes a comprehensive system of rules usually codified, which are applied and interpreted by judges. The primary source of law under this system is the written law which is the constitution or the legislation. Lawyers seek first the solution in legislation and regulations, the other sources such as custom, jurisprudence or doctrine are less important even though jurisprudence is becoming a real source of law (in the French law there is no text regarding the non-competition clause and the solution is based on jurisprudence). The “Civil Law” system is usually divided in three distinct groups of countries:
The Roman law which concerns France, Benelux, Italy, Spain and former colonies in South/Central America and Quebec.
The Germanic law which concerns Germany, Austria, Switzerland, Greece, Portugal and some countries in the Far East (South Korea, Japan)
The Scandinavian law which concerns all the Scandinavian countries (Norway, Sweden, Finland)
On the other hand, the “Common Law” system concerns about 35% of the worlds population. It was implemented by the English kings during the 12th century when they asked itinerant judges to elaborate a common jurisprudence in England. Many countries have adopted the “common law” legal system, which was mainly spread with colonization during the 19th and 20th centuries. The common law is completed with the equity which is the set of rules applied by the court of the Chancellor to overcome the shortcomings of the common law. This is a “judge made law” or “case law”, meaning that the primary source of law is the jurisprudence rather than statutes or constitution. It means that there is an extensive freedom of contract and everything is permitted that is not expressly prohibited by law. The “common law” is mostly applied in Commonwealth countries and former English colonies such as Australia, New Zealand, Canada, South Africa, India, Pakistan, Bahamas, and in English speaking countries such as Hong Kong, Ireland, Zimbabwe.