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CHAPTER I: COMMOW LAW LEGAL SYSTEMS AND LEGAL LANGUAGEEnglish is the historical source of the Common law group systems. The commow law family comprises a group of countries, most of them English-speaking [Ireland, Australia, Canada (no Québec), New Zealand, USA (no Luoisiana) and some extra-European...

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CHAPTER I: COMMOW LAW LEGAL SYSTEMS AND LEGAL LANGUAGE English is the historical source of the Common law group systems. The commow law family comprises a group of countries, most of them English-speaking [Ireland, Australia, Canada (no Québec), New Zealand, USA (no Luoisiana) and some extra-European countries formerly dominates by Great Britain (ex. India or certain Muslim countries)], where legal science has drawn its basic elements from English law. The Commow law family is altogether different in its characteristics from the Romano-Germanic family, based on the Roman ius civile; here the rules are conceived as rules of conduct linked to ideas of justice and morality and the task of ascertaining and formulating these rules falls principally to legal scholars. This is in contrast with the origin of the Commow law, which was formed by the judges who had to resolve specific disputes. The Commow law legal rule is one which seeks to provide the solution to a trial rather than to formulate a general rule of conduct for the future. It is less abstract than the characteristic legal rule of the Romano-Germanic family. Procedural considerations had a primary importance in the development of English law, in fact English jurists concentrated on matters of form and questions of procedure. The Commow law, in its origins, was made up of number of procedures, called “forms of action”: the first and foremost consideration for the litigants was to select the correct form of action or writ, and thereby convince the court that it had jurisdiction in the matter, and then carry through with the formalistic procedure laid down. The circumstances in which the Commow law developed are not of merely historical interest, but have influenced English law: 1. 2. 3. 4.

Firstly, English jurists have traditionally emphasized matter of procedure Secondly, many of categories and concepts of English law have been shaped by these historical circumstances Thirdly, they have led to the rejection in English law of the distinction between public and private law Lastly, the early development of the Commow law was an obstacle to the reception of Roman law categories and concepts

Legal divisions and concepts It is precisely, in its framework, in this categories, concept and vocabulary, that the English law is so very different from Italian, French and other law of the Romano-Germanic family [for example: there is no principal division of law into “public” and “private” law or into “civil law” and “commercial law”] There is no correspondence between such different legal concepts and ideas, English legal terms cannot be translated simply and effectively into French or Italian. The reason for these structural differences is obviously to be found in the different histories of the two legal tradition, Romanist law and Commow law: -

the Romanist legal system is relatively rational and logical because its substantive rules were organized by the universities and legislators English law on the contrary has evolved quite apart from any real concern for logic and within a framework that was imposed by procedures

It is only very recently and with the abolition of the former procedural system, that English legal scholarship has been able to rationalize its framework

Vocabulary

Case law Statute law To comprise To include To lay down to lay conditions to someone To lay down the law To set down To the extent that To play a role The first and foremost consideration

Diritto giurisprudenziale Legge scritta To consist of To contain as a part or member To established, to formulate Imporre delle condizioni a qualcuno Dettar legge To put in writing, to formulate Nella misura in cui Avere un certo ruolo La primissima considerazione

Key structure  The cleft sentence  pronoun IT + form of TO BE (usually it is/it was) + THAT + element that one wants to make prominent (adverbial complement or subject) [ex. It was in England that the Commow law was historically developed]  The present perfect simple  is also used for actions that are not recent, but that still have some importance or relevance at the present time; is used to talk about actions and situation that started in the past and have continued up to the present; is often used with adverbs like recently, in recent time, in the last few years [ex. In Commow law systems legal science has drawn its basic elements from English law] Explaining the law In all languages the language of law has its own special style conferred upon it by the use of peculiar vocabulary, recurrent syntactic features and phraseology, specific ritual formulas and a characteristic discursive organization. The most important hallmarks of the language of the law are the following:       

Use of common words with uncommon meaning [ex. Action = law suit (causa legale); instrument = legal document; hand = signature (firma); party = person contracting or litigating; etc] Use of old English and Middle English words once in use but now rare [ex. Aforesaid = suddetta; herewith = con la presente; here-word, there-word, where-word …] Use of Latin words and phrases [ex. Versus, ex parte, ex contractu, bona fide, quorum etc] Use of French words [ex. Agreement; judgment; property; marriage; counsel; pledge; trespass etc] Use of formal words and expression [ex. Arrested in flagrante delicto (instead of caught in the act); approach the bench (instead of come here) Use word and expressions with flexible meanings  is part of what has been described as the “vagueness” of legal language [ex. Satisfactory; improper; inadequate; clear and neat condition; etc] Attempts of extreme precision [ex. Never; unavoidable; uniform; irrevocable; impossible; outright; without prejudice; etc]

CHAPTER III: LEGAL DISCOURCE IN LEGISLATIVE DOCUMENTS Vocabulary to come into force /to be brought into force to be in force To substitute to replace To require As respect In pursuance of Living on a lower income To implement (a strategy) To pass an act To take steps Under subsection 2(d) commencement Annualmente Statutory instrument assessment

Entrare in vigore essere in vigore + for + with To need (is also used in the passive form in formal/official language to indicate that something must be done Per quanto riguarda In conformità a Vivere con un reddito inferiore Attuare Approvare una legge Fare dei passi, prendere provvedimenti Secondo quando previsto dal comma 2(d) Inzio (formale) abrogazione Legge delegate valutazione

Key Structure  Discontinuities in legal discourse  the typical syntactic discontinuity, that is recurrent in legislative texts, would not be acceptable in other kind of texts (according to the observance of the ordinary word order

prescribes: subject-verb-object). In a legal discourse, discontinuities are admitted because each phrase and qualification has to be as near as possible to the elements to which it refers in order to prevent misinterpretation  Existential there as a “place holder” for subject  sentence starting with THERE + form of the verb TO BE [ex. There shall be paid out of money provided by Parliament..]  in this normative text, the subject of “shall be paid out” is multiple and each item has to be set put separately from the other, as in 3(a) and 3(b) ù  Meaning of “shall” in legislative texts  in legislative texts the modal shall has either: - a performative value (when it is used with a impersonal or inanimate subject)  [ex. Section 2 shall not come into force as respect..] - a deontic value (if the subject is a person or an institution)  [ex. The appropriate authority shall from time to time assess the impact of steps taken under subsection..]  To be  this construction can express: - a command or a prescription [ex. Parties concerned are to comply] - an arrangement [ex. The attorney is to introduce this case tomorrow] - a near certainty in the future [ex. If the juvenile court is to fulfil a valid legal function these..] - to be + passive infinitive is also common in notices and instructions [ex. This form is to be filled in and returned in a week] Explaining the law » Structure of statutes  Today in the UK statutes have a standard form:  They have a short title for reference purposes  They also have a long title, which recites the general purposes of the Act  In some cases there is a preamble, which sets out the reasons for the legislation and the object which it is intended to serve  The actual text is generally arranged into sections  each section deals with one subject and is often made up of one complex sentence (“one–sentence rule”)  begin with a fixed formula (“be it enacted by..”)  called “the enacting formula” which confers legal validity upon the text that follows  it usually ends with an expression like as follows, or the following regulations  which assigns to the whole text that follows the status of an apposition, performing a function of elaboration » Vagueness in legal discourse  is an important characteristic of legal discourse (for example, in the first paragraph even the definition of “fuel poverty” is not given in precise terms)  the reason for this vagueness is to be found in the text of the statute itself, as it provides that the parameters to complete the definition have to be published and subsequently revised in a specific strategy by the appropriate authorities » Performativity in normative texts  the validity of legislative and normative texts is guaranteed by the presence of a performative verb (a verb which, for the only fact of being uttered, performs an action): 



the effectiveness of the performative depends on the meaning of the verb itself, but also on the authoritativeness of the person who utters it and the appropriateness of the context and of the procedure followed usually performative verbs are in the first-person singular of the simple present indicative or its transposition to the third person singular or to the passive (but the verb form in the enacting formula is in the present subjunctive)

[ex. “I name this ship the Queen Elisabeth”; “It is hereby agreed that..”; “it shall be the duty of the appropriate…”; “this act extends to England and Wales only” ]

CHAPTER XI: ANTITRUST LEGISLATION Antitrust laws, or competition laws, are laws which prohibit anti-competitive behavior and unfair business practices. The term “antitrust” derives from US law which was originally formulated to combat “business trusts”, now more commonly known as cartels; other countries use the term “competition law”. For example, the European Union has its own competition law, which comprises 3 main policy areas: 1. antitrust  control of collusion (art.81 EC) and other anti-competitive practices (art.82 EC) 2. mergers  control of proposed mergers, acquisitions and joint ventures involving companies 3. state aid  control of direct and indirect aid given by EU Member States to companies (art.87 EC) Primary competence for applying EU competition law rests with the European Commission, but on 1 may 2004 a decentralized regime for antitrust came into force which is intended to increase the application of EU competition law by national competition authorities and national courts. Article 81 – Collusion Article prohibits “all agreements between undertaking, decisions by associations of undertakings and concerted practices which may affect trade between member state and which have as their object or effect the prevention, restriction or distortion of competition within the common market” (informal agreements and concerted practices that tend to raise or lower price). There must also be evidence that the action has distorted competition within the EU Article 81 may however be declared inapplicable (exemption):   

in the case of practices that are beneficial to customers in addiction the Commission has agreed to exempt “Agreements of minor importance” (except those fixing sale prices) in addiction the Commission has also introduced a collection of block exemptions for different types of contract

Article 82 – Abuse of a dominant position This article is aimed at preventing companies which hold a dominant position in a market from abusing that position to the detriment of consumers. Such abuse may consist in:   

imposing unfair /trading conditions or selling prices limiting production, markets or technical development to the prejudice of consumers applying dissimilar condition

Case study  The European Union Microsoft antitrust case is a case brought by the European Union (EU) against Microsoft for alleged antitrust case. It started as a complaint from Novell (American software corporation) over Microsoft’s licensing practices in 1993; Novell complained that Microsoft was blocking its competitors out of the market trough anticompetitive practices. Microsoft reached a settlement in 1994, ending some of its license practices. Citing ongoing abuse by Microsoft, the EU reached a preliminary decision in the case in 2003 and ordered the company to both offer a version of Windows without Windows Media Player and offer the information necessary for competitors with low-end servers. In March 2004, The EU ordered Microsoft to pay the fine; Microsoft paid the fine in July 2004. In December 2005 the EU announced that it believed Microsoft did not comply fully with the ruling, stating that the company did not disclose enough information about its server programs. On 12 July 2006, the European Commission imposed a penalty payment on Microsoft for its continued failure to comply with the obligation to provide complete and accurate Technical Documentation.

Vocabulary Unfair competition merger To reject To deem State aid Undertaking Concerted practices void To afford exemption To the detriment (the consumers) Purchase Selling price To supply To comply To stifle ruling Warning Tussle Eventually actually Judgment Sentence

Concorrenza sleale The joining together of two or more companies or organization t form on larger one (=fusione) To refuse, to repulse To consider, to think of something in a particular way Aiuto di Stato Business, firms or corporation Pratiche concordate Not valid ore legal Permettere, consentire (formale) esenzione A discapito (dei consumatori) Acquisto Prezzo di vendita To provide people with something that they need or want To do what you have to do or are asked to do To suppress or stop something from happening or developing An official decision by a court A statement telling someone that if they continue to behave in a satisfactory way, that will be punished Fight At last Really/effectively An official decision given by a judge/court of law (sentenza) Indicates the punishment that a judge gives to someone who is guilty of a crime

The following type of activity are generally prohibited:       

bid rigging  a form of price fixing and market allocation (bid= offerta) geographic allocation  an agreement between competitors not to compete within each other’s geographic territories predatory pricing  the practice of a firm selling a product at a very low price with the intent of driving competitors out of the market, or create a barrier to entry into the market for potential new competition price fixing  an agreement between business competitors selling the same products/service regarding its pricing tie-in schemes  the practice of making the sale of one good conditional on the purchase of a second distinctive good vendor lock-in  a situation in which a customer is so dependent on a vendor for products/services that he/she cannot move to another vendor without substantial switching costs Walk Process fraud  illegal monopolization through the maintenance and enforcement of a parent obtained via fraud

Explaining the law Consumer protection laws seek to regulate certain aspect of the commercial relationship between consumers and business, such as by requiring minimum standards of product quality, requiring the disclosure of certain detail about a product or service or describing financial compensation for product liability  Consumer protection laws are distinct from antitrust. Antitrust laws prohibit agreements in restraint of trade, monopolization and attempted monopolization, anticompetitive mergers and tie-schemes and, in some circumstances, price discrimination in the sale of commodities.

Efficiency-oriented economists reject the goal of competition and instead argue that antitrust legislation should be changed to primarily benefit consumers  no congress or administration has supported this position. From an economics prospective, the relatively recent industrial organization research has focused on the construction of microeconomic models that predict and/or explain the prevalence of imperfectly competitive markets and deviations from competitive behavior, partly as a response to the criticisms of antitrust laws and policies by the Chicago School and by member of the law and economics school of thought. There are two main kinds of monopoly: -

De iure monopolies  which are those that are protected from competition by government actions De facto monopolies  which are not protected by law from competition but are simply the only supplier of a good or service.

The financial demise (end or failure of a company) of a competitor is not the same as getting rid of competition. The court have long paid lip service to the distinction that economists make between competition (a set of economic conditions) and existing competitors, though it is hard to see how much difference that has made in judicial decision. Too often, it seems, if you have hurt competitors, then you have hurt competition, as far as the judges are concerned. Proponents of the Chicago school of economics are generally suspicious (and critical) of government intervention in the economy, including antitrust laws and competition policies. CHAPTER XV: INTERNATIONAL CONTRACTS The structure of international contracts is highly conventionalized. The main sections of this contract are: 1. Commencement  initial paragraph, that stating the details of the parties involved and is followed by preamble 2. Preamble  often preceded by the formulaic expression “witnesseth”; preamble consists of recitals, usually introduced by “whereas”, which set forth the circumstances giving rise to the contract  The next paragraph is taken up by the performative formula that confers validity on the contract [ex. Now, therefore, it is hereby agreed as follow/the Parties agree as follow/etc….] 3. Definitions  that explain exactly what the terms refers to in this contract 4. Obligation of the parties 5. Revenue sharing  is the distribution of revenue, that is the total amount of income generated by the sale of goods and services, among the stakeholders or contributors (?) 6. Limitations of liability 7. Confidentiality  like confidential information, that is a number of statement which a party gives certain assurances to the other and on which the other party may rely 8. Termination  (= termini) 9. Miscellaneous provisions  (= clausole aggiuntive), like the “boilerplate clauses” (that are standard to most agreements and provide the mechanics of who the agreement is to operate; [miscellaneous provisions include the following clauses: notice, waiver and amendments, force majeure, assignment, severability, dispute resolution, survival,…] 10. Signature  (=firme) A model contract  The parties to this contract are an Italian corporation with its head office in Milan, referred to as ABC in the agreement, and a Dutch corporation based in Amsterdam and referred to as XYZ. The contract is regulate a link from ABC’s to XYZ’s website and the sharing of the advertising revenues from this link. Vocabulary  Binomials  two word which are (near-) synonyms, often deriving one from the Latinate and the other from the Anglosaxon tradition (ex. “term and condition”). In this text we found:  To review and control = ispezionare e controllare  Taxes and duties = tasse e imposte

   

Convenants and agreements = impegni e accordi Book of account and records ...