Civil Law Courts Research Articles

Dispute Resolution of Islamic Financial Institutions, Court Litigation and Negotiation

Dispute resolution in the Islamic financial sector is one of the current debates among regulators and Sharia scholars. When Islamic financial institutions have a dispute with their customers, have to search for a solution. The first step for the Islamic financial institutions for resolving the dispute is to start negotiation with their clients. Islamic financial institution negotiates with the client through Shariah supervisory committee members. Sharia scholars of the committee are experts in Shariah law. These Shariah members have an excellent reputation and well-known in society. Hence, the negotiation starts with the client resolving the dispute in order to not go to court. The advantages of the negotiation are taking less cost and less time and it is confidential which is very important for the Islamic financial institution. However, the decision that is reached by negotiation maybe not binding on the parties which consider a disadvantage of the negotiation method. If the parties could not resolve the dispute by negotiation, then the case will go to court. Most of the courts either based on the civil or common law system. Therefore, the decision made by these courts maybe not the right decision as the judges decide on the Shariah case according to civil or common law. Despite the court process take long time and is costly, but the decision that is made by the court is binding on the institution and the client. Some countries decide on Islamic financial legal cases in Shariah courts, such as the Kingdom of Bahrain. In a country like the UK, the decision on the Islamic financial cases will be under the English law system. Therefore, the Bahraini approach is an ideal solution, and the Malaysian approach is one of the best solutions, as the court refers to Shariah Advisory Council when the case is about Islamic finance. Purpose of This Paper: This paper purposes to observe the dispute resolution of Islamic financial legal cases and find solutions for the disputes between the Islamic financial institutions and their customer according to the current legal system in the world. Research Method: This research applies a qualitative descriptive method and analysis legal cases related to Islamic finance. the researcher describes the dispute resolution of Islamic financial institutions and then analyses the result of the research. The data collection for this research is from primary and secondary sources. Thus, court cases, books, journals, and related websites are the main source for data collection for this study. Findings: It is found that the current legal court system in many countries is not proper for resolving issues that arise between Islamic financial institutions and their clients. Thus, dispute resolution in the Islamic financial industry needs to be resolved by negotiation and mediation between the Islamic financial institutions and their customers. Furthermore, the courts have crucial rules in resolving these issues. However, lack of the Shariah courts in many countries in the world makes civil or common law courts decide on the issues, which judges are appointed on these courts do not have Shariah background. Keywords: Dispute resolution, Civil law court, Common law court, Negotiation, and Court litigation. DOI: 10.7176/IAGS/90-04 Publication date: March 31 st 2021

ASAS TERBUKA UNTUK UMUM DAN KEHADIRAN FISIK PARA PIHAK DALAM SIDANG DI PENGADILAN NEGERI PASCA PERATURAN MAHKAMAH AGUNG NOMOR 1 TAHUN 2019

The Indonesian Supreme Court, in response to the information era, modernizes the civil procedural rules at the district court level. This is done by issuing Supreme Court Regulation no. 1 of 2019 re. Administration of Justice at Civil Law Courts and Electronic-Court Proceedings. Undoubtedly, modernization of existing rules on the administration of justice is much needed. On the other hand, these changes may violate a number of procedural civil law principles. The author argues, from a civil procedural law perspective, that the above Supreme Court regulation violates the basic principle of transparency of court proceedings and physical attendance at court proceedings.

ASAS TERBUKA UNTUK UMUM DAN KEHADIRAN FISIK PARA PIHAK DALAM SIDANG DI PENGADILAN NEGERI PASCA PERATURAN MAHKAMAH AGUNG NOMOR 1 TAHUN 2019

The Indonesian Supreme Court, in response to the information era, modernizes the civil procedural rules at the district court level. This is done by issuing Supreme Court Regulation no. 1 of 2019 re. Administration of Justice at Civil Law Courts and Electronic-Court Proceedings. Undoubtedly, modernization of existing rules on the administration of justice is much needed. On the other hand, these changes may violate a number of procedural civil law principles. The author argues, from a civil procedural law perspective, that the above Supreme Court regulation violates the basic principle of transparency of court proceedings and physical attendance at court proceedings.

Civil-Law Courts in Common-Law Systems: Interpretive Cultures in Comparative Perspective

In the comparative law literature and in the literature that deals with legal interpretation and incorporates comparative insights, the general idea is that civil law legal systems are deductive, norm-based, whereas common law legal systems are inductive, precedent-based. In arguing for textualism as an interpretive methodology, the late Justice Antonin Scalia proposed that Federal Courts in the U.S. should behave as civil law courts, since most of the cases over which they adjudicate are to be settled through the construal of predefined, legislature enacted statutes. In this Article, we start from Scalia’s argument and put it to a conceptual and empirical test. Using the concept of interpretive culture, constructed from social science theoretical imports and analyzing comparatively four cases, two decided by the U.S. Supreme Court and two decided the Brazilian Supreme Court, the Article turns Scalia’s assumptions on their head and shows that, actually, it is the U.S. Supreme Court that gives greater emphasis on the textual analysis of the legal norms. Theoretical entailments and comparative law tenets from these findings are discussed. The Article concludes that it is unwarranted to argue that textualism or greater concern with the text of statutes (or constitutional norms) automatically foster separation of powers or respect for democracy, and that, rather, these are parts of interpretive cultures that vary in time and space and for complex reasons.

The barratry of the shipmaster in early modern law: the approach of Italian and English law courts

Summary For a long time, the concept of barratry (at least in its maritime meaning) was one and the same on both sides of the Channel. The barratry of the shipmaster was part of the mercantile usages, and it identified the intentionally blameworthy conduct of the master. When law courts began to decide on insurance litigation they were confronted with a notion quite alien to them. Broadly speaking, the shipmaster’s barratry could well be considered a fraud of sort. But in order to decide on its occurrence in a specific case, law courts had to analyse it in legal terms, and so according to the specific legal categories of their own system. The point ceases to be trivially obvious if we think that the different legal framework of civil and common law courts progressively led to very different interpretations of the same thing. Thus, with the shift of insurance litigation from mercantile justice to law courts maritime barratry began to acquire increasingly different features in the two legal systems. Very often, the very same conduct of the shipmaster was considered as negligent by civil law courts and barratrous by common law courts. The difference was of great practical importance, for many policies excluded barratry from the risks insured against. So, depending on the kind of law court, an insurer could be charged with full liability for the mishap or walk away without paying anything. If the beginning of the story was the same, its end could not have been more different.

Explaining Difference in the Quantity of Cases Heard by Courts of Last Resort

AbstractWhile civil law courts of last resort—e.g., cassation courts in France, Italy, and Chile—review up to 90% of appealed cases, common law courts of last resort—e.g., supreme courts of the United States, United Kingdom, and Canada—hear as few as 1% of the same petitions. In this study, we postulate that these different policies can be explained by a comparatively larger commitment from common law courts of last resort to judicial law-making rather than judicial uniformity. While courts require few hearings to update the law (in theory one decision is sufficient), they need a large number of hearings to maximize consistency in the lower courts’ interpretation of the law. We show that the optimal number of hearings increases with an increment in the courts’ concern for uniformity. We also show that if hearing costs are linear then the hearing policies of all courts can be classified in only two types. In addition, we predict important changes in hearing policies when the number of petitions increases. Finally, we find that hearing rates and reversal disutility operate as two ways in which a legal system can achieve a given level of judicial uniformity.

"Privatrecht in unsicheren Zeiten" Zur Einführung

To what degree do civil law judgments from the period of National Socialism in Austria reflect Nazi ideology? How did judges comply with the Nazi regime's racist and totalitarian legal policies? Did Nazi judges prefer to rely on a positivist application of National Socialist legislation or did they instead use an extensive interpretation of the 'general clauses' of Civil Law to promote the National Socialist ideology? The article presents the state of research with regard to these questions and points out in which ways the analysis of still extant holdings of Viennese civil law courts from 1938 to 1945 contributes to a better understanding of the possibilities and constraints of judicial 'autonomy' in Private Law jurisdiction in Austria 1938 to 1945. Historical research using the preserved documents from the Viennese Regional Court (Landgericht Wien) reveals a broad variety of methodological approaches and highlights the difficulty of associating one specific legal methodology with a National Socialist partisanship of judges.

Judgments of Peace Montreal’s Jewish Arbitration Courts, 1914-1976

At a time when crucifixes were placed on the walls of Quebec courtrooms, Jewish community organizations in Montreal created their own arbitral tribunals, giving the immigrant generations a culturally-relevant alternative to both religious adjudication and the civil law courts. Large portions of the records of one of these courts, the Jewish Community Council's Mishpat HaShalom, survive. They allow a rare look at the workings of an arbitration court, a type of institution whose private nature too often makes it opaque to legal scholars. The Jewish arbitration courts of North America have often been wrongly seen simply as vestiges of Old World customs. This article places the Montreal courts in the context of similar institutions across North America, particularly in New York City, to show the links between their practice and procedure and the progressive philosophy of court reform of the early twentieth century. In doing so, this article breaks new ground in explaining the rivalry between the two major New York Jewish arbitral tribunals and why there was a split between them. By way of contrast with the New York courts, whose caseload consisted primarily of family matters, a large proportion of the cases before Montreal’s Mishpat HaShalom were corporate-commercial disputes. In these and other kinds of cases the court employed flexible remedies that would not become accepted in civil law until the 21st century, suggesting, among other things, that scholars of corporate law need to revise their understanding of the history of the corporate oppression remedy and that scholars of the evolution of legal doctrine need to incorporate the workings of such private arbitral tribunals into their narrative.

Discrepancies between Civil Law and Common Law Federations

Over the last decade, missions of the UN have assisted with constitutional reforms including issues of federalism. The hopes for peace with regard to federal structures have often failed. This paper elaborates possible reasons why these hopes were disappointed. It will show that one should understand the differences between Common Law and continental systems with regard to federalism. Some experts from Common Law countries fail to appreciate the substantial difference between federal Constitutions embedded in a Civil Law culture and those embedded in a Common Law culture. The reasons for the success or failure of past, present and future federal reforms may help to improve UN activities in this field. States of the Common Law tradition are not collective units, which have to steer their society. The Jacobins of the French Revolution, considered the State as their instrument to transform feudal society into a society of equal individuals. The Civil Law tradition has its roots in the French Revolution and in the sovereignty of the national legislative assembly as the only legitimate lawmaker of the State. The unity of the law does not depend on decisions of courts but only on the legislature. Constitutions of Civil Law federations need to enable the specified governmental branches of the federation to impose sanctions against federal units that fail to comply with federal laws. According to the perspective of the Civil Law one has to deal with two ‘States’ claiming sovereignty in a hierarchy, while from the perspective of the Common Law one has to deal with mere ‘governments.’ Constitutions of multicultural federations embedded within the Civil Law culture will have to empower not just the federation but also the federal units to develop the different cultural identities. To foster different cultures is however, not a major function of the State of the Common Law tradition. Federalism of the Civil Law tradition is more complex than according to the Common Law tradition. Important differences between federations of a Common Law and Civil Law tradition lies in the lawmaking power of the courts. In Common Law, courts and legislature share the task of lawmaking; in Civil Law countries, the legislature regulates all issues of civil and criminal law. In a Civil Law country, legislatures, executives and courts cannot function if there is no valid local Constitution empowering those branches of the federal units. Thus, the federal Constitution of a civil law country has to establish the powers of the governmental branches of the federal units. Within federal system of the Civil Law, the federal units administer, implement and execute the laws of the federation. Constitutions of Civil Law federations need special provisions for the power of the federation to control and implement federal laws in the federal units. The civil law judiciary has no contempt of court against the administration and against authorities of federal units.

TRANSNATIONAL LITIGATION AND ELEMENTS OF FAIR TRIAL

approach. The fair trial guarantee may be invoked to invalidate particular misconceived pieces of legislation or CO restrict their scope of application. It is worth noting that civil law courts are not alone in performing such operations. Judges in every country are more and more aware of belonging to a developing global community. The emergence of such a community of courts may achieve a number of goals in this respect: a cross-fertilization of legal cultures in general, but also solutions to some specific legal problems related to transnational disputes in particular. The Report gives some examples of inconsistencies of civil law systems that can be eliminated by applying the Fair trial guarantee. The first example is related to the lis alibi pendens exception. If the problem of lis alibi pendens and parallel proceedings is resolved on the basis of the continental European priority rule, it may well happen that a court is seised by, e.g., a inscriming procedings negative declaration (or relief), with a Revista Eletronica de Direito Processual – REDP. Volume 16. Julho a dezembro de 2015 Periodico Semestral da Pos-Graduacao Stricto Sensu em Direito Processual da UERJ Patrono: Jose Carlos Barbosa Moreira. ISSN 1982-7636. pp. 550-579 http://www.e-publicacoes.uerj.br/index.php/redp/index 511 view to prevent litigation before the second seised court. In such situations, avoid abusive litigation, the fair trial guarantee de lege lata may allow the second seis court to retain its jurisdictional powers and to go further with its proceedings, if it pears that the dispute will not be fairly and effectively resolved by the first seised cou The second example is related to the forum non conveniens doctrine. in cases when is absolutely inappropriate for the court vested with jurisdiction to handle proceedir with Foreign parties, e.g. because the court and the lawyer are completely ignorant of t foreign language and reliable translators are not available, the fair trial guarantee de If lata may exceptionally allow the court to decline its jurisdiction, applying the doctri of forum non conveniens. In the light of the U.S. due process guarantee we can look one of the most critical aspects related to the recognition and enforcement of judgment under the Brussels Convention and Regulation no 44/2001. Subject to few exceptio the jurisdiction of the court of the Member State of origin may not be reviewed by the court seised with the enforcement request in other Member States. The public policy defence may not be applied to the rules related to jurisdiction. The European solution is an example of the disproportionate influence of public policy considerations (in d case: the smooth functioning of the internal market) with regard to the balance between the plaintiff's and the defendant's interests. In other words, if the fairness of the exert of jurisdiction over a non-resident defendant is an element of fair trial, the respect this fairness, as is envisaged by the Convention and the EC Regulation no. 44120 norms on jurisdiction, should also be reviewed in the State where the recognition a enforcement is sought, through the public policy defence. It is true that the public policy exception is an emergency brake to be activated only in exceptional cases, but the cases cannot be restricted so as to prejudice the guarantee of a fair trial. National courts should be encouraged to take the opportunity to put a preliminary question before t ECI. under Art. 267, TFEU, on the validity of Art. 28, III, Convention (Arr. 35, I EC Regulation no 44/2001) vis-a-vis Art. 47 of the Charter of Fundamental Rights the European Union. VI. The final part of the report briefly sketches some specific aspects of the fair trial guarantee in transnational disputes, such as the principle of equality, the determinate of the judicial jurisdiction, the interim protection of rights, the right to Revista Eletronica de Direito Processual – REDP. Volume 16. Julho a dezembro de 2015 Periodico Semestral da Pos-Graduacao Stricto Sensu em Direito Processual da UERJ Patrono: Jose Carlos Barbosa Moreira. ISSN 1982-7636. pp. 550-579 http://www.e-publicacoes.uerj.br/index.php/redp/index 512 engage a lawyer, the language, the extension of time limits, the question of the abuse of process, the abuse of jurisdiction by the plaintiff, the public policy exception.

WHITHER ISLAMIC LEGAL REASONING? The Law and Judicial Reasoning of The Religious Courts

The article analyses the judicial reasoning employed by the religious courts in giving decisions on inheritance, particularly since the promulgation of the 1991 Compilation of Islamic Law. It seeks to examine whether these courts use Islamic legal reasoning. This paper argues that the structure of the courts' decisions is to be found in most Civil Law courts. It then offers three different approaches of reasoning employed by the religious courts in their decisions on inheritance: the use of the legislations particularly the Compilation as the sole source of deductive reasoning, the combination of the legislations and the Islamic sources which share the same implication, and the application of Islamic legal reasoning with the emphasis on the objectives of Islamic law (maqāsid al-sharī'a) which does not contradict the legislations. Although Islamic legal reasoning is employed, in most cases the decisions are simple and straightforward.

Access to Justice: Legal Aid to the Poor at Civil Law Courts in the Eighteenth-Century Low Countries

Medieval and early modern rulers commonly proclaimed that protecting the legal entitlements of the personae miserabiles, who included widows, orphans, the chronically ill and “the poor,” was among their principal duties. The entitlement of the poor to legal services was not a matter of grace but was in fact their “good right.” For example, widows, orphans, and other personae miserabili had the privilege of being heard in first instance before high courts, so as to save time and costs in pursuing their legal claims. Another example of manifest commitment to legal entitlement for the poor was the refusal of Philip II of Habsburg to consent to measures that would limit the jurisdiction of his Castilian chanceries; the measures had been proposed so as to limit the chanceries’ ever-increasing workload, but, because they could also restrict indigents' access to such courts, were rejected by the monarch. At first glance, such inclusiveness appears to have been achieved, particularly in view of the large numbers of petty conflicts brought before formal law courts during the long sixteenth century, leading to a so-called “legal revolution.” Historians generally acknowledge that broad layers of early modern society made abundant use of civil adjudication in arranging their social and economic relations and interests.

Stare Decisis: A Universally Misunderstood Idea

'Stare Decisis' or ‘stay with what has been decided’ has long been understood as a fundamental principle of common law. In the absence of statutory language, it is supposed to provide stability by binding courts to follow earlier case-law of courts at equal or higher levels. By contrast, the continental European or civil law courts have traditionally seen themselves as not bound by case-law at all. In this article, the author argues that both understandings are ultimately wrong. Nowadays, courts all over the world are constantly challenged to find a course between Scylla and Charybdis – between the Empire of Mechanical Jurisprudence on the one side and the Empire of Arbitrary Jurisprudence on the other. The courts in both systems have to ensure that their decisions are objectively correct and subjectively perceived as just and fair. This can mean for a common law court having to deviate from earlier case-law in the name of objective justice although it would seem to fall under stare decisis. And it can mean for a civil law court having to follow earlier case-law in the name of equality before the law although there would seem to be no such ‘rule’ per se. For both types of courts, persuasive argument requires acknowledgement and discussion of earlier cases and rational explanations for following or not following them. Reliance on a traditional and narrow interpretation of stare decisis or the absence thereof can quickly conflict with the need for persuasiveness and ultimately damage the legitimacy of the courts and the legal system as a whole.

Torts, Courts, and Legislatures Comparative Remarks on Civil Law Codifications of Tort Law

This contribution reflects on the relationship between courts and the legislature in tort law from a comparative European perspective. Though there is a substantial body of comparative literature on tort law as such, the relationship between the judiciary and the legislature in comparative tort law has received significantly less attention. Here, the approach under civil law systems to tort law is and the interaction between the judiciary and the legislature under those systems is explored. If we look beyond the misconception among common lawyers that civil law courts act merely as ‘porte-parole de la loi’ there is much flexibility to be found. In tort cases, civil law courts may assume a role that complements the role assumed by the legislature. Where codes give leeway for case law to create, develop, and innovate in tort law, courts will fill the space. Where the legislature is active, courts may assume a more subservient role. Yet, there is no single concept of power balance in civil law tort systems. In some countries, courts may be more willing than in others to show policy initiative where the legislature fails to act. The overall conclusion must be that although there is a fundamental difference in the starting point between the common law and those legal systems that have a codified tort law system, the balance between the legislature and the courts may be similar in many respects.

Lost in Translation: Oral Advocacy in a Land Without Binding Precedent

Robert Frost first famously penned “Poetry is what gets lost in translation.” In the world of advocacy, persuasion is what gets lost in translation. This article examines the distinctions in the common law and civil law methods of legal reasoning. It analyzes why, in form and substance, the traditional common law oral argument methods are neither effective nor persuasive when presented in a civil law jurisdiction. Although the common law and civil law legal traditions share similar social objectives, arguing based on stare decisis is incompatible with the Code-based method applied by civil law courts. This article explores how to transfer common law advocacy skills to create an effective civil law oral argument. By making this transition, a common law advocate will be able to garner a greater awareness of the civil law system, including an understanding of the rules that govern the court or tribunal that will be hearing the argument, an appreciation for the role of the judge hearing the argument, and an appreciation for the role of scholars in the civil law system. As a result, common law practitioners can hone their ability to effectively craft a persuasive civil law argument.

Market- vs. Bank-Based Financial Systems: Do Rights and Regulations Really Matter?

Why are common-law countries market-dominated and civil-law countries bank-dominated? This paper provides an explanation tied to legal traditions. Civil-law courts have been less effective in resolving conflicts than common-law courts because civil-law judges traditionally refrain from interpreting the codes and creating new rules. Therefore, they are not very effective in extending their reach to matters that are not defined in the laws of the country. In a civil-law environment, where potential conflicts between borrowers and individual lenders inhibit the development of markets because the courts are unable to penalize defrauding borrowers, I show that banks can induce borrowers to honor their obligations by threatening to withhold services that only banks can provide. In other words, banks emerge as the primary contract enforcers in economies where courts are imperfect. Therefore, one would expect the civil-law countries to be bank-dominated. The empirical evidence presented in this paper supports this argument. Legal scholars argue that courts, acting as contract enforcers, need the guidance of laws to settle disputes. However, if there are alternative institutions in an economy, such as banks as described in this paper, that can enforce contracts without court intervention, I conjecture that there is relatively little need for investor rights compared to countries where the courts are the primary contract enforcers. In support of this argument, I show that creditor rights play no role in bank-development in civil-law countries but they promote banking growth in common-law countries where courts are more efficient. This paper also reveals that some of the earlier analyses that used a pooled sample of common-law and civil-law countries to test the effect of investor rights on bank development are misspecified. Therefore, in this analysis, common-law and civil-law countries are analyzed separately. I also show that prevailing economic conditions and legal traditions jointly determine the financial structure of a country. Therefore, although a country's legal tradition is permanent, the organization of its financial system may fluctuate over time between a bank-dominated structure and a market-dominated structure. These results agree with the findings of Rajan and Zingales (2000) who showed that France and Germany were more market-friendly than U.S. and U.K. at the turn of the 20th century.

The New Wages of War - Devaluing Death and Injury: Conceptualizing Duty and Employment in Combat Zones

My study explores the growing interface between civilian employment and military service in war zones. This research is motivated by changes in waging war. The U.S. once had a vertically integrated process to transport troops, run supply chains, and maintain equipment. Today, the military outsources these functions to private companies. Their workers drive trucks, cook meals, maintain equipment, and provide security. Nation-building activities include building roads, schools, and dams in Iraq and Afghanistan. When these jobs are subcontracted, soldiers and civilians work together in coordinated duty and employment. This integrated model constitutes a new war-labor paradigm.My research question asks: When civilians and soldiers are seriously injured or killed in these integrated settings, how are their losses compensated? Recent litigation is reshaping the law in this area. I present a typology of published court opinions, showing the frequency of success for tort and worker compensation-type claims for civilians and soldiers. The Fifth and Eleventh Circuit Courts of Appeals recently rejected government-immunity defenses for contractors, paving the way for trials on tort claims. I suggest four public policy options:● Option 1: Preserve the Status Quo. The present method for resolving death and injury claims does not necessarily need to change. Civilians and servicemembers are able to try cases in civil law courts. This means that judges are open-minded in responding to the new war-labor paradigm.● Option 2: Create a Federal Worker’s Compensation Policy for Civilians Who Work with Military Forces in War Zones. This could be accomplished by enlarging the scope of the Defense Base Act. This type of worker’s compensation pays civilians who are injured or killed on public works projects that occur outside the U.S. The scope of the law could be expanded to cover death and injury outside the confines of a military base – by way of illustration, to Halliburton drivers who were killed or injured on Iraqi highways away from military bases.● Option 3: Apply Extra-Territorial Provisions in Current State Worker’s Compensation Laws to Civilians Injured in a War. For example, California’s Labor Code Section 36005(a) provides for extra-territorial coverage of workers. To illustrate: A court ordered a benefit under California law for a minor league pitcher who signed a professional contract in California and injured his arm in a Florida league game. Other jurisdictions might expand territorial reach to cover workers who are domiciled in their state but assigned to work in a war zone.● Option 4: Improve the Compensation System for Soldiers Who Are Killed or Injured While Serving with Private Contractors: A federal program paid about $4.7 billion every month in 2008 to the survivors of Americans who died as a result of a service-connected disability. But a recent GAO report showed that these benefits were far less than those paid to civilians under federal worker’s compensation.In sum, the commercial side to waging war means that some corporations seek to profit and grow from the new war-labor paradigm. This study does not criticize this as a matter of principle. However, when companies contribute to the death or injury of service members or civilian employees, there needs to be a better method to improve the compensation of these losses.

Private Law Enforcement in a Formalist Legal Environment: The Italian Sai-Fondiaria Case

The Sai-Fondiaria case is Italy's most significant action in concert case. In this case public enforcement was unable to prevent the concerting parties from reaching their target. Minority shareholders therefore sued, even though Italian mandatory bid rules (MBRs) do not contain any specific rule concerning minority shareholders' entitlement to damages. At stake is private enforcement of MBRs. Courts and scholars are called to establish whether the law contains an implied right of action in favour of minority shareholders. The problem has also arisen in other European countries, where it is the object of much current debate.The Milan Tribunal thinks that minority shareholders have a right to damages, whereas the view of the Court of Appeal is diametrically opposed. Needless to say, both positions have considerable support amongst legal writers. Since deterrence arguments are still taboo with regards to private remedies, traditional interpretive canons and concepts are being employed in the debate: on one side to disguise deterrence ideas underpinning the reasoning; on the other, to retort using radical formalism, with its built-in bias against legal change. In this paper I analyze the case, the decisions and the comments. I suggest how deterrence arguments can be appropriately adopted in the reasoning of civil law courts and propose how the case should be decided in favour of minority shareholders, with beneficial effects on private enforcement status. I also analyze the recent amendments to MBRs that implement the Takeover Directive and endanger the future of private enforcement in this area of law.

Judicial precedents in civil law systems: A dynamic analysis

This paper uses a simple dynamic model to describe the evolution of judicial decision making in civil law systems. Unlike the common law systems, civil law jurisdictions do not adopt a stare decisis principle in adjudication. In deciding any given legal issue , precedents serve a persuasive role. Civil law courts are expected to take past decisions into account when there is a sufficient level of consistency in case law. Generally speaking, when uniform case law develops, courts treat precedents as a source of “soft” law, taking them into account when reaching a decision. The higher the level of uniformity in past precedents, the greater the persuasive force of case law. Although civil law jurisdictions do not allow dissenting judges to attach a dissent to a majority opinion, cases that do not conform to the dominant trend serve as a signal of dissent among the judiciary. These cases influence future decisions in varying ways in different legal traditions. Judges may also be influenced by recent jurisprudential trends and fads in case law. The evolution of case law under these doctrines of precedents is modeled, considering the possibility for consolidation or corrosion of legal remedies and the permanence of unsettled case law.

Judicial Precedents in Civil Law Systems: A Dynamic Analysis

The effect of Civil law doctrines of precedent on the process of formation and evolution of case law is examined. Unlike the Common law systems, Civil law jurisdictions do not adopt a stare decisis principle in adjudication. In deciding any given legal issue, precedents serve a persuasive role. Civil law courts are expected to take past decisions into account when there is a sufficient level of consistency in case law. Generally speaking, no single decision binds a court and no relevance is given to split jurisprudence. Once uniform case law develops, courts treat precedents as a source of soft law, taking them into account when reaching a decision. The higher the level of uniformity in past precedents, the greater the persuasive force of case law. Although Civil law jurisdictions do not allow dissenting judges to attach a dissent to a majority opinion, cases that do not conform to the dominant trend serve as a signal of dissent among the judiciary. These cases influence future decisions in varying ways in different legal traditions. Judges may also be influenced by recent jurisprudential trends and fads in case law. The evolution of case law under these doctrines of precedents is modeled, considering the possibility for consolidation, corrosion and stability of legal rules. The effect of different doctrines of precedent on the patterns of evolution of the legal system is studied.