Legal English - Appunti 1-20 PDF

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LEGAL ENGLISH- GARZONE E SALVI CHAPTER 1- COMMON LAW LEGAL SISTEM AND LEGAL LANGUAGE English law is the historical source of the Common law group of legal system. The Common law family comprises a group of countries, most of them English-speaking (Ireland, Australia, Canada except for Quebec, New Ze...

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LEGAL ENGLISH- GARZONE E SALVI CHAPTER 1- COMMON LAW LEGAL SISTEM AND LEGAL LANGUAGE English law is the historical source of the Common law group of legal system. The Common law family comprises a group of countries, most of them English-speaking (Ireland, Australia, Canada except for Quebec, New Zealand, the United States of America except for Louisiana), where legal science has drawn its basic elements from English law. The Common Law has been partially received in some extra- European countries formerly dominated by Great Britain where it has been transformed and adapted by reason of its co-existence with the tradition of previous civilizations. English law occupies in effect a pre-eminent place within the family of the Common law. The Common law legal family is different in its characteristics from the Romano-Germanic family. This group includes those countries in which legal science has developed on the basis of the Roman ius civile. Here the rules are conceived as rules of conduct intimately linked to ideas of justice and morality. This is in contrast with the origin of the Common law, which was formed primarily by judges who had to resolve specific disputes to formulate a general rule of conduct for the future. It is much less abstract than the characteristic legal rule of the Romano-Germanic family. Procedural considerations had a primary importance in the development of English law. The Common law was only gradually evolving substantive principles defining individual rights and duties. The English law is so very different from the Italian, French and other laws of the Romano-Germanic family No principal divisions of law into ‘public’ and ‘private’ law, no division such as ‘civil law’ and ‘commercial law’ The reason for these structural differences is obviously to be found in the different histories of the two legal traditions. The Romanist legal system is rational and logical because its substantive rules were organized by the universities and legislators. English law has evolved quite apart from any real concern for logic and within a framework that was imposed by procedures. Legal language as ESP Context of situation/ Context of culture: Institutional order •field of discourse: the type of social action that is taking place, its topic and the participants' shared and unshared knowledge about it, the purpose of the communicative event; • tenor of discourse: determined by the role of participants, their interpersonal and social relationship as well as the tone, as a situation-specific factor [= degree of formality]; •mode of discourse: the way in which the text functions in relation to the situation; it is related to the medium (whether oral, written or a combination of them), the channel (e.g. face to face communication, telephone, computer-mediated etc.) and the genre to which the text belongs Legal English and situation various types of discourses associated with the structures and processes of the common law legal system or of international law e.g. for trial: sources of law and originating points of the legal process, pre-trial processes, trial processes, recording of judgment in law reports, a loop Historical facts  peculiarities of legal English result from its history  systematization of legal procedures: brought by the Normans  predominance of law Latin until XIV century >>>then law French until 1650:

An Act for Turning the Books of the Law, and all Processes and Proceedings in Courts of Justice into English  conventions continued to develop: maximum verbosity in early XVIII century “Since that time there has been a slow but perceptible process of simplification and clarification. However, the gap between legal discourse and everyday discourse is still very wide. Present day legal discourse retains its identity as a highly specialised and distinctive discourse type or genre of English” (Maley, 13) CHAPTER 2- THE ENGLISH LEGAL SYSTEM Britain is a unitary state it does not have a single legal system. England and Wales, Scotland and Northern Ireland has its own legal system with considerable differences in law, organization and practice. This is for the composite nature of the country. The situation was built into the arrangements made when the component parts were united. As the three countries have had a single Parliament since the Act of Union (1707) as well as common final court of appeal, the House of Lord (except for criminal cases in Scotland), there are now substantial similarities on many point but considerable differences remain. The main formal source of English law are: Common law the origin of the Common Law can be traced back to the Norman era. Common law arose out of the intent of the Normans to centralize government; up to that time, the law had been administrated at local level following local customs. In the past were few form of written law: gradually the decisions of the judges come to be written down and be used by other judges as evidence of the law. Equity is a “gloss” on the common law. If the common law failed to give a fair solution to a legal disputes equity acted as a system to correct any injustice. The distinction between common law and equity remains today because equity still prevails over common law when there is a conflict between their rules; most equitable remedies are discretionary. Statute law or Legislation consist of rules which are formally enacted by a body which has the constitutional power to do so, the Parliament. The ideas that legislation in English law is a source of only secondary importance should be laid to rest: public health, education, transport, the Welfare State, etc. are all areas of public life that are mostly regulated by statute law. European law since membership of the E.U. (1972), Britain has had to apply laws enacted and judicial decision taken outside the UK; the British government can refuse to put a Community regulation into effect only if it can show that he regulation is contrary to community law. Custom it is still active in a limited manner; the main impact of the common law was established a body of general principles incorporating the many local customs to be applied uniformly throughout the country. Law reports and Book of authority law reports contain the reports of decisions of the superior courts which constitute binding precedents for the lower courts; as the doctrine of precedent is central to the English legal system lawyers need to refer to the law reports when citing a case. The term law reports include a number of different reports published by private companies and various newspapers and journals. The doctrine of Judicial Precedent in their work of setting disputes judges are guided by the decisions of judges in earlier similar cases. Precedent is often referred to “case law” or “stare decisis”= the body of law contained in previous judicial decisions as opposed to statute law.

The principle laid dawn in earlier case that a judge trying a case may be obliged to apply under the doctrine of judicial precedent is usually known by the Latin phrase “ratio decidendi” (the reason for decision). Lower court may avoid applying a binding precedent in 2 circumstances: firstly, if they show that the facts of the case before them are different from those of the earlier case, or secondly, if they can show the earlier decision was made per incuriam, through want of care. A higher court can overrule the decision of a lower court when it uses a different principle to decide a case. CHAPTER 3-LEGAL DISCOURSE IN LEGISLATIVE DOCUMENTS Warm Homes and Energy Conservation Act 2000An Act to require the Secretary of State to publish and implement a strategy for reducing fuel poverty; to require the setting of targets for the implementation of that strategy and for connected purposes. For the purposes of this Act, a person is to be regarded as living ‘in fuel poverty’ if he is a member of a household living on a lower income in a home which cannot be kept warm at reasonable cost. (vedere atto online) CHAPTER 6- THE ADMINISTRATION OF JUSTICE The Court of Justice The Court of Justice of the European Communities was set up under the ECSC Treaty in ’52. It is based in Luxemburg unlike most of the rest of the European Union institutions, which are based in Brussels and Strasbourg. The Court is composed of one judge per member state, so that all the EU’s national legal systems are represented. Composition 28 JUDGES (one judge per member state) The Court sits in CHAMBERS: A) FULL COURT (including Advocates General) – exceptional cases provided for by the Treaty B) ‘Grand Chamber’ of 13 Judges – complex or important cases C) chambers of 5 or 3 Judges 9 ADVOCATES GENERAL - now 11 (assist the court) -present reasoned opinions on the cases brought before the Court (they must do so publicly and impartially) -given opinions are not binding for judges -6 nominated by the six big members of the EU, other 3 rotate in alphabetical order between smaller member states The Jurisdiction Acts as a constitutional court - adjudicates on matters of constitutional significance (eg. proper division of powers between the States and the Community, extent of powers of the EU institutions) Varying matters of substantive law (from competition policy to social policy, agriculture, transport etc.) Appellate court Supreme administrative court What does the Court do? gives rulings on cases brought before it

The five most common types of case are: -references for a preliminary ruling: when a country is in any doubt about the interpretation or validity of any European law -actions for failure to fulfil an obligation: when a state is failing to fulfill its obligations – may be started either by the Commission or by another country. -actions for annulment: states or privates can ask for the annulment of any European law if it adversely affects them >> law is made void -actions for failure to act: states, Community institutions but also privates can lodge a complaint with the Court when European institutions (Parliament, Council or Commission) fail to take certain decisions. -appeals -reviews The Court has the power to settle legal disputes between EU member states, EU institutions COMMISSION (cf. “Parmesan” case), companies and individuals and different parties in cases concerning a wide range of issues referred from national courts The Court GIVES rulings on matters coming BEFORE It. The Court MIGHT be called UPON to interpret various acts of the treaties. They will rule ON the legality of the acts of the Institution and on WHETHER member states are COMPLYING with their obligations UNDER EU law. There are many AREAS (e.g. discrimination or working time) the Court is called UPON to give RULINGS. All the judges are ELIGIBLE for appointment to the highest JUDICIAL office in the land (such as the Supreme Court). Those judges are APPOINTED for a period of SIX years. The RULINGS of the Court take PRECEDENCE over decisions of the NATIONAL Courts. The Court also acts in the so-called PRELIMINARY RULING procedure: it acts as an aid to national courts in giving them ASSISTANCE in determining the EU ISSUES which ARISE before the courts in which they do not feel COMPETENT or feel that they require some assistance in DETERMINING an OUTCOME . There are a number of actions that can be TAKEN BEFORE The Court of Justice. For example, UNDER article 258, the Commission may take AN ACTION against a member state for its failure to COMPLY WITH EU law. CHAPTER 7-THE LEGAL PROFESSION Solicitors and barristers are the two branches of the legal profession in Britain. Solicitors offer skilled advice on all kinds of legal matters; they also represent their clients in court (mostly in the lower court). Most solicitors are in private practice. Barristers act on instruction from solicitors; they have little or no contact with members of the public. They perform 2 main roles: when specialist expertise is needed they give opinions on complex matters of law; and when the clients require representation in the higher courts barrister provide a specialist advocacy service. Really, the division between the 2 legal profession are gradually melting away. CHAPTER 9- LEGAL PROCEEDING AND THE MEDIA An intense camera coverage can have as consequence the fact that parental juror may be influenced or even corrupted by the media and it will be impossible to have an impartial jury; the problem of finding a balance is acute because there is the problem that trial by mass media may destroy fair trial and presumption of innocence. Arguments in favor television and the media may allow the public to penetrate the sometimes obscure judicial system and permit the majority of the community to observe justice being done.

Trials in the law court excite public interest, so allowing cameras in the court is a good business decision for the media. Finally, cameras in the courts don’t contaminate the jury pool. Arguments against lawyers and judges may be afraid of the media because it may show their weakness and make the whole system more accessible to ordinary people. Cameras can affect a jury’s ability to reach a correct verdict; there is the risk that witness can be influenced by cameras and lawyers can use the media to increase their popularity and so their earnings, their performance. Then there is the risk that information about personal identity given by the media may generate forms of revenge. Anna Maria Franzoni had been sentenced in a first degree court to 30 years in jail for the murder of her son Samuele Lorenzi. In the hearing of the appeal’s trial the expert spoke of the possibility that at the moment of Samuele’s murder Franzoni may have been suffering from a sort of “dream state” which can even lead to violent action followed by memory loss of what actually occurred. This has been refuted by the woman’s defence lawyer. The courtroom is open to the public. CHAPTER 12- A JUDGMENT OF THE EUROPEAN COURT OF JUSTICE GEOGRAPHICAL INDICATIONS AND TRADITIONAL SPECIALITIES The following EU schemes encourage diverse agricultural production, protect product names from misuse and imitation and help consumers by giving them information concerning the specific character of the products: Protected Designation of Origin - PDO: covers agricultural products and foodstuffs which are produced, processed and prepared in a given geographical area using recognised know-how. Protected Geographical Indication - PGI: covers agricultural products and foodstuffs closely linked to the geographical area. At least one of the stages of production, processing or preparation takes place in the area. Traditional Speciality Guaranteed - TSG: highlights traditional character, either in the composition or means of production “Parmesan” Case -Infringement suit opened by the EU Commission against Germany -The “Consorzio” argued that Germany used the translation “parmesan” for cheeses not produced within the PDO of Parmigiano Reggiano -INFRINGEMENT PROCEDURE -Italian “Consorzio”: “Parmesan” is a TRANSLATION of “parmigiano” Vs Germany: “Parmesan” is a DENOMINATION (i.e. a name for a class or a thing) INFRANGEMENT PROCEDURE The Commission asks the Member State for a satisfactory explanation of the infringement. If the member state does not produce a satisfactory response…… the case is taken before the EU Court of Justice  JUDGMENT BASIC CHRONOLOGY 1992 – EEC Regulation 2081/92 (amended 1997), on the protection of geographical indications and designation of origins for agricultural products and foodstuff (=any material, substance, etc. that can be used as food) 1996 – The name “Parmigiano Reggiano” is registered November 1999 – A quantity of cheese produced by Nuova Castelli SpA, marketed outside Italy with the label ‘Parmesan’ but not complying with the specification, is seized. Mr Bigi, the legal

representative, is charged with fraudulent trading and selling industrial products with misleading indications June 2002 – The European Court rules that the term “Parmesan” is the translation of “Parmigiano Reggiano” October 2003 – A complaint is filed (=submitted) by Pamigiano-Reggiano Consortium, regarding the use of “Parmesan” for a cheese without the specific features which is marketed in Germany The European Commission (the executive body of the Union) opens an infringement suit (=a prosecution) against Germany June 2004 – Germany refuses to safeguard “Parmesan” The Commission decides to petition the Court of Justice to order Germany to respect the EEC Regulation 2081/92 (see ‘introductory notes’, p. 171) WHAT HAPPENED NEXT 21st March 2005: Launch of the infringement proceeding by the European Commission against Germany November 2007: EU Advocate General Jan Mazak sides with Germany: while “Parmesan” may have originated in the Parma region, it is now a generic term for hard cheese of many geographic origins 26th February 2008: The European Court of Justice (ECJ) publishes its ruling: only cheeses bearing the protected denomination of origin (PDO) ‘Parmigiano-Reggiano’ can be sold under the denomination ‘Parmesan’. The European Court of Justice rejected the European Commission's complaint that it was up to member states to penalise infringements on their own territory, saying instead it should be the responsibility of the country from which the protected product came. The official association of Parmesan producers has already brought cases through the German courts. So the days of German parmesan could be numbered anyway!!!! Definitions: Derogation: an occasion when a rule or law is allowed to be ignored (to) comply with: to obey a rule, an order Specification: a detailed description of how something is, or should be, designed or made (to) entail: to involve something that cannot be avoided Adjustment: a small change made to something in order to correct or improve it (to) safeguard: to protect something/somebody from loss, harm or damage Scope: the range of things that a subject, an organization, an activity, etc. deals with Assessment: an opinion or a judgement about somebody/something that has been thought about Implementation: the act of making something that has been officially decided start to happen or be used (to) mislead: to give somebody the wrong idea or impression and make them believe something that is not true Undertaking: an agreement or a promise to do something At issue: under discussion Dante Bigi (Nuova Castelli Spa) Nuova Castelli produced a dried, grated pasteurized cheese which did not comply with the specification for a PDO but used the term “parmesan” to market his product abroad The Consorzio del Parmigiano Reggiano filed a complaint (Tribunale di Parma) against Bigi to stop him from using the term “parmesan” to market his non-PDO product

Bigi’s lawyers argued that Nuova Castelli was allowed to do it thanks to the transitional procedure for designations of origin Community protection for designation of origin (1992): From the time a PDO is registered, any use of that name for products which do not comply with the specification for that PDO is prohibited. transitional procedure for designations of origin (transitional system of derogations): A firm which has legally marketed products under the same name for 5 years before the date of registration may continue to do so for another further 5 years, provided that labeling clearly indicates the origin of the product The tribunale di Parma sought a ruling from The ECJ: can the system of derogation be applied to the case? ECJ ruling: NO, because The system of derogations only concerns PDOs obtained under a simplified procedure and more than 5 years have passed. CHAPTER 13- EUROPEAN HUMAN RIGHTS LAW European Convention on Human Rights •adopted under the auspices of the Council of Europe in 1950 to protect human rights and fundamental freedoms •any person who feels their rights have been violated under the convention by a state party can take a case to the Court; the decision of the latter is legally binding, and the court has the power to award damages •it gives the individual an active role on the international arena •among the several protocols (=additions or supplements), different from state party to state party, are protocols 6 and 11. Protocol 11 (1998) enlarged the Court and allowed individuals to take cases directly to it •the main rights and freedoms are containe...