Common Law Countries Research Articles

The Institutional Foundations of the Uneven Global Spread of Constitutional Courts

Since the third wave of democratization, specialized constitutional courts have spread widely across developed and developing countries and become key to government accountability, rights protection, and cross-institutional conflict resolution. Simultaneously, nearly half of all constitutional court adoptions have occurred in Europe. What explains the global, yet Eurocentric, spread of constitutional courts? Countries’ institutional endowments, particularly domestic and international legal institutions, are key to this crucial choice of constitutional design. Common law countries are less likely to establish specialized constitutional courts than their civil law counterparts due to their domestic legal system’s relatively weaker affinity with the constitutional court model. Furthermore, the Council of Europe’s Venice Commission—the main international organization specifically promoting constitutional courts—has catalyzed their wide and rapid spread especially, but not exclusively, in Europe. Our theory gains robust support from event history analyses of 172 developed and developing countries from 1947 to 2019.

Financial development, legal systems and SME finance: Cross-country evidence

This paper provides a comprehensive investigation into the selection of different sources of finance for both short-term and long-term projects by SMEs, utilizing cross-country data from the World Bank. The results highlight the crucial roles played by financial development and legal system in the countries where SMEs operate. Specifically, with better developed financial systems, SMEs are more likely to use formal sources of external finance from formal sources (e.g., bank and non-bank institutions) to meet their short term and long term financing needs, highlighting the importance of financial development in accessing external finance for SMEs. Furthermore, this paper provides evidence on the moderating effects of legal systems on the favourable impacts of financial development on SME finance. In particular, the effects of financial development on SMEs’ access to external finance are more pronounced in countries with stronger investor protection, such as common law countries, than in those civil law countries, highlighting the importance of legal syystems in facilitating SME financing and suggests that policymarkers should consider strengthening investor protection on promote SME growth and development.

Copyright Law in the European Union, the United States and China

This study juxtaposes copyright law in the European Union (EU), the United States (US) and the People’s Republic of China (China). After mapping major differences and similarities in copyright law between the three jurisdictions, possible reasons will be explored for the divergence and convergence detected. Findings indicate that many of the similarities as well as differences in copyright law can be attributed to international harmonization and, more specifically, to the Berne Convention. Convergence, both through congruence and pressure, and economic concerns explain why China’s copyright law has become strikingly similar in recent decades to copyright law in the EU and the US, despite vast historical and cultural differences. The differences are due, inter alia, to the underlying theoretical differences in copyright doctrine and different underlying aims of copyright protection, resulting in differing stances on the role and existence of moral rights. The divide between common law and civil law with regard to the role of statutory law and case law, respectively, is also relevant. Surprisingly, although China leans more towards the civil-law end of the continuum between civil law and common law, the underlying rationale for copyright and the role of precedent show some traits central to a common-law country, bringing China in those respects closer to the US than to the EU. However, like most EU Member States, but unlike the US, China recognizes the existence of moral rights, as required by the Berne Convention.

The impact of common law on the volume of legal services: An international study

AbstractWe show that the heavy use of legal services relative to output in the US is not a peculiarity of the country but applies to common law countries in general. It can likely be attributed largely to better ability to contract and adapt to changes in the environment. Yet common law also opens significantly more room for rent seeking by lawyers than civil law. Thereby the costs could outweigh the benefits. In supporting this last thesis, we control for other factors besides common law favouring legal services, including real output per capita, openness, and ease of entry into the legal profession.

Submission of Victim Impact Statement to a Sentencing Judge: The Significance of Introducing the Scheme to Sentencing Hearing in Nigeria

The current Nigerian criminal justice system prevents rime victims from having the benefit of telling the sentencing judge what harm they have suffered and how their need for effective recovery may be attended to. Whereas different victim-oriented policies and programmes have emerged in the English criminal justice system and those of some common law countries, the voice of the crime victim is still opaque to the sentencing judge in Nigeria. The Administration of Criminal Justice Act, 2015, which requires a sentencing judge to consider— among others—the interest of the victim in his sentence, leaves the judge with wide discretion that has occasioned some inconsistencies in sentencing outcomes. Accordingly, the article aims to do a comparative study of the English criminal justice system and a few other common law jurisdictions to find out how this lapse in the law can be corrected. The study adopts the doctrinal methodology to discover how the English sentencing judge is assisted to understand and attend to the effects of crime on the victim. The research discovers that the use of the Victim Personal Statement—referred to as Victim Impact Statement (VIS) in other jurisdictions—has tremendously helped both the sentencing judge and the victim in this regard. Accordingly, the article recommends the use of the VIS in the sentencing hearing in Nigeria in order to cover the gap in the law and promote the recognition of the harm suffered by crime victims.

Force majeure, the principle of change of circumstances, and the doctrine of frustration during the COVID-19 pandemic: the case of commercial leases and judicial responses in China and New Zealand

ABSTRACT This paper analyses the application of force majeure, the principle of change of circumstances, and the doctrine of frustration in the context of the COVID-19 pandemic in New Zealand and China. The paper will first outline the general legal test and legal consequences of the three doctrines. Secondly, the paper will discuss the legal tests and legal consequences of the three doctrines specifically in New Zealand and China and in the context of COVID-19. Thirdly, the paper will discuss the similarities and differences between the three doctrines. In the second part of this paper, the paper will discuss how the three doctrines apply to commercial lease cases in the context of COVID-19. The paper will select two commercial lease cases in New Zealand and China to analyse the robustness of all three legal doctrines in providing practical workable solutions for tenants and landlords during government-imposed lockdowns and enforced closures of leased premises. The paper illustrates how the differences in the legal tests, legal consequences and underlying rationales of the doctrines result in different outcomes of a case. The paper concludes that the doctrines each have their strengths and weaknesses and other civil and common law countries can learn from the experiences of China and New Zealand. Furthermore, the paper suggests that courts should carefully consider the relevant facts and circumstances of a case when applying legal doctrines. Moreover, courts need to strike the right balance between doing the victims of unforeseen circumstances and upholding the principle of the sanctity of contract. The analysis of the three doctrines is particularly useful in this day and age where there is a high likelihood of the occurrence of another pandemic-level event and causing unprecedented disruptions to the commercial world. Moreover, the research has provided tenants and landlords with a good starting point as to how to protect themselves in the event of an unforeseen event.

ON SOME THEORETICAL AND LEGAL ASPECTS OF DISCLOSURE OF DOCUMENTS IN CIVIL PROCEEDINGS IN ENGLAND AND KAZAKHSTAN

The article deals with the institution of disclosure of documents in civil proceedings in England and its borrowing into domestic civil proceedings. Disclosure of documents is a distinctive feature of civil proceedings in common law countries, its existence in the legal systems of civil law countries is the result of borrowing. From this perspective, the effectiveness of introducing disclosure of documents into civil proceedings in the Republic of Kazakhstan is of interest. The author cites the results of a sociological survey among civil litigators, the results of which demonstrate an incomplete awareness of the essence and meaning of documents disclosure procedures in civil proceedings. The purpose of the research is to determine the essence of documents disclosure, with a demonstration of its effectiveness and potential, by comparing disclosure in English and Kazakhstan law. The author attempts to highlight theoretical aspects of English documents disclosure with a focus on the main objectives and role in civil proceedings. Particular attention is paid to the legal regulation of documents disclosure in England, including objects, subjects, limits of disclosure, as well as liability for non-compliance with disclosure rules. Drawing a parallel between the legal regulation of disclosure in England and the existing legal regulation of disclosure in civil proceedings in Kazakhstan, the author demonstrates the existence of gaps in the rules of the Code of Civil Procedure of the Republic of Kazakhstan, the elimination of which can contribute to the effectiveness of documents disclosure. As a solution of problematic issues it is suggested to introduce amendments into the norms of the Civil Procedure Code of the Republic of Kazakhstan, as well as recommend to issue a normative resolution of the Supreme Court of the Republic of Kazakhstan in order to establish a unified procedure for disclosure of documents.

Konstrukcja odpowiedzialności zobiektywizowanej (strict liability) w prawie karnym Anglii i Walii na tle polskich uregulowań elementu podmiotowego w strukturze czynu zabronionego

The construction of strict liability has been for years one of the most controversial concepts in the field of substantive criminal law in common law countries. While the very idea of basing the liability of an individual of a repressive nature on a regime based on strictly objective assessments seems to stand in opposition to the principles of criminal law that are fundamental to Western systems, such as the individualization of liability and the principle of guilt, at the same time, the use of the construct discussed may bring about considerable instrumental benefits, especially with regard to the protective function of criminal law. The article discusses the concept of strict criminal liability as developed in the system of England and Wales and presents the position that this concept occupies in relation to the classic for Anglo-Saxon countries, a two-element approach to the structure of a prohibited act, based on the correspondence of both objective and subjective components, and then transfers the considered problems onto the Polish criminal law plane in order to analyse the possibility of adapting an analogous construct in the statutory regulation of the subjective side of a prohibited act. In addition, the article presents the thesis that the advantages of strict liability may support the modification of the national approach towards a partial resignation from the requirements of the presence of a specific subjective element in the psyche of the perpetrator of a prohibited act in relation to all its objective features.

Mapping the state of expanded audit reporting: a bibliometric view

PurposeThis study aims to identify the intellectual structure of expanded audit reporting (EAR), offers a quantitative summation of prominent themes, contributors and knowledge gaps and provides suggestions for further research.Design/methodology/approachThis research uses various bibliometric techniques, including co-word and co-citation analysis for EAR science mapping, based on 123 papers from Scopus Database between 1991 and 2022.FindingsThe results show EAR research is focused on Audit Quality; Auditor Liability and Litigation; Communicative Value and Readability; Audit Fees; and Disclosure. Regarding EAR research, Brasel et al. (2016), article is the most cited paper, Bédard J. is the most cited author, Laval University is the most influential university, The Accounting Review is the most cited journal and USA is the leading country. Furthermore, the results show that in common law countries, in which shareholder rights and litigation risk is high, topics such as disclosure quality and audit litigation have been addressed more; and in civil legal system countries, which usually favor stakeholders’ rights, topics of gender diversity or corporate governance have been more studied.Practical implicationsThis research has practical implications for standard setters and regulators, who can identify important, overlooked and emerging issues and consider them in future policies and standards.Originality/valueThis paper contributes to the literature by providing a more objective and comprehensive status of the accounting research on EAR, identifying the gaps in the literature and proposing a direction for future research to continue the discussion on the value-relevance of EAR to achieve more transparency and less audit expectation gap.

Intellectual capital and performance of listed firms during the global financial crisis: the effects of legal origin

PurposeThis study aims to reveal to what extent successful European listed firms depend on their intellectual capital investment in achieving business success during the global financial crisis.Design/methodology/approachThis study used value added intellectual coefficient (VAIC) methodology to measure the effect of intellectual capital on financial performance of business, which consist of 683 the sample listed firms. To examine the nexus between intellectual capital, legal origin and firm performance, estimated panel test and ordinary least squares regression model is used to data obtained from a sample of European countries.FindingsThe finding of this study suggests that there exists a positive relationship between intellectual capital and firm performance with return on assets (ROA) before the financial crisis, while firm performance with return on equity did not contribute to intellectual capital before and after the crisis period. Additionally, common law countries have a positive and statistically significant impact on firm performance with ROA for the before-crisis period, while code law countries have positively significant effect with VAIC on ROA.Practical implicationsThe VAIC method has played a critical role in the management decision-making process to integrate the intellectual capital in the financial crisis period.Originality/valueThis study examines intellectual capital components such as human capital, structural capital and process capital efficiencies and firm performance in the legal origin context. The empirical evidence shows that there are significant impacts of legal origin on the nexus between intellectual capital and performance of listed firms during the global financial crisis.

The author's moral right of withdrawal and its reasonable restriction or contractual waive

AbstractCopyright protects original works of authorship by granting the author economic rights, which give the author an exclusive right of economic exploitation, and moral rights, which protect noneconomic interests of the author. Moral rights are not considered property, but an aspect of the author's personality. The aim of this study is to find a solution how to include one of the author's moral rights—the right of withdrawal—in the national legal acts, so that it meets the interests of both the author himself and the user of the work. The research question is: how much should it be necessary to limit the right of withdrawal so that neither the transferee of the economic rights nor other coauthors of the work suffer from its excessive use? To find an answer to the research question, international and national legal norms of various countries were studied, the materials of international conferences were analyzed, as well as the information available on the Internet about the origin, use, and development of moral rights were taken into account. There is a wide diversity of opinion on the application of right of withdrawal, as well as great differences in the laws of individual countries. Although the laws of Common Law countries include mandatory moral rights (according to the Berne Convention), the right of withdrawal in its classical form is not provided for in any of the analyzed countries. In Civil Law countries are different attitudes to withdrawal rights. Some Civil Law countries have and some have not included these rights in national copyright law. The right of withdrawal can be included in the catalog of moral rights of national copyright laws, but it cannot be an unlimited right. Certain limitations or exceptions must be established for specific types of work or specific situations of use. It should also be possible for the author to contractually transfer or waive certain moral rights in specific situations.

A new technology of evidence research is necessary in criminal proceedings

The purpose of the research, part of the results of which is presented in this article, was an attempt to formulate and describe the method of judicial evidence, the method of disclosing before the court the content and significance of the evidence collected by the parties, to develop and propose rules for conducting individual legal actions, to link them into a single process (technology) forensic research. The procedure for examining evidence is not only the sequence of relevant actions, but also court-approved regulations for working with separate evidence, according to which the parties, when providing documentary evidence, must not only name the documents that they use to support their positions, but also disclose their content and report on the circumstances. in support of which they are submitted, so that it is clear both to the court and to any outside, reasonable and impartial observer. When presenting evidence, the prosecutor and the lawyer must demonstrate to the court both the propriety and admissibility of individual sources of factual data, as well as the logical connections between them, proving certain circumstances, criticizing the evidence of the procedural opponent, emphasizing the shortcomings of others and the advantages of their own evidence. That is, the content of the evidence must be revealed at the court hearing by the party that submits it to the judicial investigation, and not by the court, which should be exempted from the obligation to declare the documents provided by the parties. At the same time, the submission of evidence is not limited to providing the court with written, electronic documents or physical evidence. The justification by the parties of the necessity of questioning witnesses, experts, ensuring the arrival of these persons to the court and their questioning before the court is also the submission of evidence – factual data, information about which the interrogated have. It is proposed to borrow the experience of the courts of common law countries, where material evidence is usually submitted through witnesses who can testify to its origin. Key words: Criminal proceedings, evidencing, technology of court research.

Law and inequality: A comparative approach to the distributive implications of legal systems

The literature on legal traditions focuses on the comparative macroeconomic effects of legal systems, concentrating on efficiency alone and leaving distributive issues to taxation. However, a country’s legal structure also conditions the primary distribution of income and may have a comparative advantage over taxation as a distributive instrument. We use cross-section and panel estimates to show that the level of income inequality in a country is correlated with its legal system. By several measures of inequality, common law countries are on average more unequal than civil law countries. We explain these results by the nature of the systems. The looser regulation in common law countries limits their capacity to achieve social objectives such as combating income inequality.

Is There a Duty to Mitigate Damages in Civil Law? Should We Introduce Such a Duty? The Case of Qatar

Abstract In common law, the non-breaching party of a contract should mitigate damages or risk a reduction in recovery for the breach. The party must take measures to reduce the loss arising from the breach by making a cover purchase, reselling the goods, or taking other actions. The breaching party may claim a reduction in the damages that would be awarded to the injured party up to the amount in which reasonable mitigation measures would have reduced the loss or injury to the injured party. Unlike in common law countries, some civil law countries do not contain a general duty to mitigate damages upon the non-breaching party. However, the concept of damage mitigation has gradually expanded beyond its original sphere of influence. The questions to be answered in this article are as follows: Why is there no duty to mitigate damages in civil law? Should we introduce such a duty?

Modern pandemic crises and R&D investment

ABSTRACT This study investigates the impact of crises caused by pandemics on firms’ R&D investments. We explore these associations by utilizing a comprehensive cross-country sample of 261,959 firm-year observations collected from 39 countries during five modern health crises (SARS in 2003, H1N1 in 2009, MERS in 2012, Ebola in 2012, and Zika in 2016). The results indicate that pandemics have a positive and significant impact on R&D investment. Furthermore, we show that private firms in civil-law countries were more likely to adopt conservative financial policies than those in common-law countries. We conclude that the difference between the legal origins of private firms influences the impact on R&D investment. Moreover, it promotes conservative policies to reduce private firms’ R&D investment in countries with civil law.

Managerial Ability and Accounting-Tax Compliance

Managerial ability comes from capabilities, skills and experiences that reflect on strategic differentials for all organizational levels, being a premise of greater efficiency and accounting and tax knowledge that can bring great benefits to the results of organizations. In this context, this study seeks to verify the influence of managerial skill on the accounting and tax compliance of publicly traded companies at a global level. This research is characterized as descriptive, with a quantitative approach, carried out through documents collection and the data were treated by multiple linear regression. The research population comprises public companies from 28 countries, with a sample of 11,506 companies from 2012 to 2019. In general, the results showed that managerial skill positively influences the level of accounting-tax compliance of companies. When comparing the results between the groups of countries analyzed, it is evident that the country's legal orientation becomes a complementary factor to managerial skill in determining accounting-tax compliance. For example, companies with more skilled managers located in common law countries have greater accounting-tax noncompliance, on the other hand, companies with greater managerial skills from civil law and Muslim countries have greater accounting and tax compliance. The study reinforces the premise that companies from common law countries and with greater managerial skills are concerned with providing higher quality accounting information to external users, placing less emphasis on the use of corporate accounting for tax purposes.

The Emerging Concept of Administrative Action in India

The scope of judicial review of administrative action has been the central theme of discussion in administrative law. Initially common law countries including India adopted the doctrine of wednesbury reasonableness to review administrative action. But subsequently under influence of civil law systems and Strasburg jurisprudence the doctrine of proportionality is being gradually accepted as the standard of judicial review by the common law countries. There are two models of proportionality namely the British Model or the state limiting conception of proportionality and the European model or the optimizing concept of proportionality. Of the two the European model is more objective and hence preferred. The Indian Supreme Court accepted the doctrine of proportionality in the year 2000. Yet even today the Indian legal system has not come to terms with the doctrine. There is hardly any case where the doctrine has been practically applied. The need of the hour is to increasingly apply the doctrine of proportionality to review administrative action in India.

Indian Criminal Reformation: A critical analysis

The Criminal Justice System represents the cutting edge of governance. Towering over society, it parades an array of institutions, processes, people, and penalties to reinforce its images. This array includes policemen in uniform, constables with batons or lathis, the police station, courts, jail, bail, sentence, prisons, imprisonment, death row, the gallows, hanging and death. Each of these institutions and processes is part of the Criminal Justice System and yet partly autonomous within it. But a matter of great concern is that there arise multiple questions about whether these institutions are working/functioning properly within their ambit or not. Is there lack of implementation of provisions of criminal law by the enforcing agencies? Whether the recommendations of law commissions are adequately implemented? Whether the Malimath Committee’s Report on Criminal Law Reforms are being adequately addressed and enforced. Is adversarial system of criminal justice in India suitable in the present-day context, or it is high time to accept few principles of inquisitorial system of justice as it is prevailing in common law countries. With these few questions, in the present paper, the researchers have made an attempt to introduce our criminal justice system. The researchers further focuses on reforms recommended by the Law Commission. Finally, the researchers have suggested some important changes/modifications required in the prevailing criminal justice system in India to make it more streamlined and strengthened.1

The use of AI in legal systems: determining independent contractor vs. employee status.

The use of artificial intelligence (AI) to aid legal decision making has become prominent. This paper investigates the use of AI in a critical issue in employment law, the determination of a worker's status-employee vs. independent contractor-in two common law countries (the U.S. and Canada). This legal question has been a contentious labor issue insofar as independent contractors are not eligible for the same benefits as employees. It has become an important societal issue due to the ubiquity of the gig economy and the recent disruptions in employment arrangements. To address this problem, we collected, annotated, and structured the data for all Canadian and Californian court cases related to this legal question between 2002 and 2021, resulting in 538 Canadian cases and 217 U.S. cases. In contrast to legal literature focusing on complex and correlated characteristics of the employment relationship, our statistical analyses of the data show very strong correlations between the worker's status and a small subset of quantifiable characteristics of the employment relationship. In fact, despite the variety of situations in the case law, we show that simple, off-the-shelf AI models classify the cases with an out-of-sample accuracy of more than 90%. Interestingly, the analysis of misclassified cases reveals consistent misclassification patterns by most algorithms. Legal analyses of these cases led us to identify how equity is ensured by judges in ambiguous situations. Finally, our findings have practical implications for access to legal advice and justice. We deployed our AI model via the open-access platform, https://MyOpenCourt.org/, to help users answer employment legal questions. This platform has already assisted many Canadian users, and we hope it will help democratize access to legal advice to large crowds.

ПРАВОВЫЕ ВОПРОСЫ ОПРЕДЕЛЕНИЯ ГРАНИЦ НЕДВИЖИМОГО ИМУЩЕСТВА В ЗАРУБЕЖНЫХ СТРАНАХ

The article analyzes the legal issues of determining the boundaries of real estate in common law countries and in the countries of the Romano-Germanic legal system. The conceptual model for determining the boundaries of real estate in various countries, as well as the structural elements of this model, has been studied. The conclusion is substantiated that the systematization of terms and methods used in the field of valuation and analysis of property, determining its boundaries, is of decisive importance for the legalization of the real estate market, streamlining relations in the field of state registration of real estate.