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Scarica riassunto Common law legal system e più Sintesi del corso in PDF di Inglese Giuridico solo su Docsity! LEGAL ENGLISH – G. GARZONE CAP 1 --> COMMON LAW LEGAL SYSTEMS AND LEGAL LANGUAGE INTRODUCTORY NOTES English law is the historical source of the Common law group of legal systems. 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 except for Louisiana), where legal science has drawn its basic elements from English law, even if in time differences have emerged between the Common law of England. The Common law has also been partially received in some extra- European countries formerly dominated by Great Britain (India or muslim countries); it has been transformed and adapted by reason of its co-existence with the tradition of previous civilisations. English law occupies a pre-eminent place within the family of the Common law. It was in England that the Common law was historically developed, but also because even today it continues to be a model law for many countries. It is still generally respected and taken into consideration. THE COMMON LAW LEGAL SYSTEMS: THEIR BASIC FRAMEWORK The Common law legal family is altogether 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. The rules are conceived as rules of conduct intimately linked to ideas of justice and morality; here legal scholars appear to be more interested in the law science and doctrine rather than in its administration and practical application. This is in contrast with the origin of the Common law, which was formed primarily by judges who had to resolve specific disputes and today still bears striking traces of its origins. The Common law Legal rule (=norma di diritto) is one which seeks to provide the solution to a trial(=processo/ giudizio) rather than to formulate a general rule of conduct for the future. While jurists on the continent turned their attention principally to the determination of an individual’s rights and duties, English jurists concentrated on matters of form and questions of procedure. Much less abstract then the characteristic legal rule of the Romano-Germanic family, where the rules of law are conceived as rules of conduct intimely linked to ideas of justice and morality. Procedural considerations had a primary importance in the development of English law. While jurists on the continent turned their attention principally to the determination of an individual-s rights and duties. The Common law, in its origins, was made up of a number of procedures –“forms of action”- upon the completion of which a judgement would be rendered, although the substantive principle serving as the basis for the decision might itself be uncertain. The first and foremost consideration for the litigants was to select the correct form of action or writ, and thereby convince tho court that it had jurisdiction in the matter. The circumstances in which Common law developed are not of merely historical interest. From at least four points of view they have left their mark upon English law and even today their influence can be detected. 1. English jurists have traditionally emphasised matters of procedure. 2. Many of the categories and concepts of English law have been shaped by these historical circumstances. 3. They have led to the rejection in English law of the distinction between public and private law. 4. The early development of the `common law was an obstacle to the reception of Roman law categories and concepts. Common law seems, essentially, to have originated as public law. LEGAL DIVISIONS AND CONCEPTS The English law is so very different from the Italian. French and other laws of the Romano- Germanic family. English legal structure is not the same as that of French and Italian law and for historical reasons its principal division are not those found in Romanist law. There is for example no principal division of law into “public” and “private” law, no divisions such as “civil law” and “commercial law”; in English law such divisions have a purely descriptive character. There are other divisions such as the distinction between Common Law and Equity. There is a similar disorientation for the continental civilian: he discovers no concept exactly corresponding to paternal authority, usufruct, dolus or force majeure. There is no correspondence between such different legal concepts and ideas, English legal terms cannot be translated simply and effectively into French or Italian. If a translation must be made, the meaning is most often completely destroyed. The contract of English law is no more an equivalent of the contratto of the Italian law, then English equity is not of Italian equità. The evident structural differences between Roman law and English law do not end with their respective categories and legal concepts. Even at the basic level of the definition of a legal rule the continental jurist will not find the sort of rule with which he is familiar. For English law, the legal rule and this means that the elementary distinction found in the Romano-Germanic family between imperative rules and suppletive rules is not made and that a codification of the Romanist type is more or less unconceivable in England. The reason for these structural differences is to be found in the different histories of the two legal traditions. 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. English law (“case law”=diritto giurisprudenziale) is often said to be the result of “inductive reasoning”: its broad principles of law emerge as a result of the collation and study of a large number of separate decisions or “unwritten” law or on the interpretation of statutory provisions. Rules of case law are flexible and do not pretend to cover every aspect of a subject, so case law may change quite easily (evolutionist law system but conservative language). In contrast, “foreign statute law” (=legge scritta, legislazione), especially codified law, is said to be “deductive”, since the general rules are laid down in advance and are then applied to individual cases. Case law changes more easily since it is based on principles not laid down in any written formula. Rules of case law are flexible and do not pretend to cover every aspect of a subject, only the case in hand. It is only recently and with the abolition of the former procedural system, that English legal scholarship has been able to rationalise its framework. The ideas and classifications that are the product of a long tradition have of course been retained. FOCUS ON LANGUAGE: 23 • Frequent use of Latin words and phrases --> alibi, bona fide, proviso quorum, habeas corpus, prima facie, versus, ab initio, ex parte, certiorari... • Use of French words not part of the general vocabulary ("terms of art") --> agreement, judgment, defandant, judge... And even more technical words originated from Old French and Anglo Norman words --> alien • Frequent use of formal words and expressions: there is a ceremonial quality to the language of the law achieved by the use of "formal words". A solemn, mystical and dignified style. Is derived from the use of formal words: the polite expressions of former days (approach the bench instead of come here), euphemism (the deceased and decedent). Latin and French expressions and a variety of circumlocutions that make the commonplace exalted. Examples: In court: you honour In contracts: whereas, time is of the essence In oaths: I do solemnly swear that I will… • Deliberate use of words and expressions with flexible meanings Legal writers and lawyers often prefer the use of words and expressions that are inherently vague, this confers flexibility on statements leaving scope for various possible interpretations. Desirable when the context is rapidly changing or if there are different parameters to be applied. Examples: Adequate compensation, average, clear and neat condition, comparable, convenient, due process, extreme cruelty, improper, reasonable doubt, satisfactory… The use of words with a flexible meaning is part of what has been described as the “vagueness” of legal language, aimed at preventing legal measures from quickly becoming obsolete in time. Interesting example --> definition of negligence = omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. The criterion of reasonableness and prudence is culturally mediated • Attempts at extreme precision At the same time lawyers make many attempts at precision of expression. Choice of particular words and phrases, and by devices of composition, such as numbering, lettering, indexing… There is a recurrent choice of absolutes: all, none, never, unavoidable, unbroken, irrevocable, impossible… There are phrases designed to keep the restricted restricted, such as and no more, and no other purpose; but there are also phrases intended to keep a broad hand: including but not limited to, without prejudice. These characteristics are of universal application to the profession and mark off the language from ordinary speech. • Mannerism The language of the law has a strong tendency to be wordy (nominalizations), unclear, pompous and dull. Sometimes it is hard to find the meaning due also to awkward constructions. Pompous language gives a sentence an air of importance out of proportion to the substance of what is said. Content is frequently cloaked in words evoking overawed respect: solemn, supreme, superior, fundamental. The effect is heightened when a contrary opinion is dismissed with words like mere absurd, unconscionable. The pompous style appears in arguments of counsel. Pomposity also crops up in statutes and very often drapes the opinion of appellate courts. It is sometimes assumed that an important subject deserves ponderous treatment, and this dread of inappropriate levity has saddled the law with a weight of inappropriate dullness. 3. AN EXAMPLE OF THE CONCEPTUAL DIFFERENCES BETWEEN ENGLISH AND ITALIAN LAW: “PROPERTY” AND “PROPRIETà”: Continental and Anglo-American law in respect of proprietary interests in land are widely different. The basis of the former is the Roman idea of dominium, while the latter has the basis in the feudal ideas of tenure, estates and seisin. Dominium was complete ownership of a thing, including the right to possess it, power to dispose of it, liberty to use it. This ownership may be dismembered temporarily by legal transactions creating restrictions or alienations. It applies equally to immovables and moveables. In the Common law personal property is owned as things are owned in Roman law. But in so far as land is concerned, in the theory of the common law one does not own it. One owns an estate in it. The estate of a person and his heirs for life are real property. Estates for a specific period of time or at will are personal property. In other words, one not the land but an interest in it, and holds rather than owns that interest. CAP 3 --> LEGAL DISCOURSE IN LEGISLATIVE DOCUMENTS An ACT must have an indication of the authority issuing the document (e.g. the Queen, o in Italia il Presidente della Repubblica), plus the enacting formula (traditional, archaic, frozen language). Structure of an Act to require a strategy for reducing fuel poverty (all sections are divided into paragraphs, and these ones into sub-paragraphs) - Short title for reference purposes - Long title containing a summary of what the Act is about - Preamble (not compulsory) which sets out the reasons for the legislation and its objectives - Enacting formula - Meaning of “fuel poverty” - Strategy relating to fuel poverty - Expenses - Interpretation, short title, commencement and extent Acts are characterized by: - Vague terms (e.g. lower income, reasonable cost) - Fixed formulas - Syntactic discontinuity (the word order is infringed) - F 0E 0Performativity the validity of legislative and normative texts is guaranteed by the presence of a performative verb, which performs an action - High presence of “rules”: 23 - Definition rules, defining words and concepts related to the text - Stipulation rules, which indicate the area of application of the statute, its commencement date and its short title - Action rules, which are the real provisions contained in a statute SHORT TITLE --> Warm Homes and Energy --> the short title is established with the act LONG TITLE --> tells what it is about BE IT ENACTED by the Queen's most Excellent Majesty... --> traditional formula --> enacting formula --> frozen formula MEANING OF "FUEL POVERTY" --> initial definition (having many definitions is typical of common law) • there are very vague expressions --> a lower income; reasonable cost • The Secretary of State (as respects England ) or the National Assembly for Wales (as respects Wales may by regulations: --> same formula • The authorities may decide to give a definition or a substitute • …And such other persons as the Secretary of State of the Assembly thinks fit --> fixed formula STRATEGY RALATING TO FUEL POVERTY • Commencement --> data in cui la legge entra in vigore --> the law gets into force. • There are a lot of repetitions • Achieve/meet objectives = soddisfare/raggiungere obiettivi. • There is the definition of "appropriate authority" • Utilities= municipalizzate (Gas, luce, acqua) EXPENSES There shall be paid out of money provided by the Parliament --> there = place holder for the subject Any expenses; any increase --> multiple subject; "there" is referred to expenses and increases INTERPRETATION, SHORT TITLE, COMMENCEMENT AND EXTENT • Definition of local authority • May --> permission --> deontic may; epistemic may=evaluation FOCUS ON LANGUAGE 1. To come into force/be brought into force = entrare in vigore - to be in force = essere in vigore. 2. To substitute --> substitute X for Y, X is substituted by Y – replace --> to replace X with Y; X is replaced by Y 3. Require=need (more formal) --> meaning of order/command. E.g. applicants are required to fill in the following forms. Phraseology: • as respects England = per quanto riguarda l'Inghilterra • In pursuance of = in conformità a • Living on a lower income = vivere con un reddito inferiore • To achieve objectives = raggiungere degli obiettivi • To implement a strategy = attuare una strategia • To pass an Act = approvare una legge • To take steps = fare dei passi, prendere provvedimenti “DOP Parmigiano Reggiano” in its translation of “parmesan”, so the Commission has decided to petition to the ECJ to order Germany to respect the EEC (European Economic Community) Regulation and its principles (they safeguard PDO products and their translations against any deceptive use in all the State Members). Structure of the text: - “Judgement of the Court” • Title (containing date, number of the Case and of the Regulation it refers to) - “THE COURT” • Composed by… (names and roles of the participants) • Having regard to… • After hearing… gives the following - Judgement (all the following subsections are consecutively enumerated with no interruptions) • Two paragraphs summarising what the complaint is about, who are the plaintiff and the defendant and what the defendant is in charge with • The legal context (a sort of summary of all the EU regulations about the case at hand, divided into sections and subsections) • The main proceedings (history of the case) • The questions referred for a preliminary ruling • The admissibility of the questions referred for a preliminary ruling (the Court needs to understand whether the case is acceptable and admissible or not and if the Court has jurisdiction over it) • The question referred for a ruling • Costs (it refers to the costs bore (sostenuti, past of ‘bear’) by the plaintiffs) - THE COURT • “in answer to the questions referred to it by… hereby rules: • (solution of the case) Characteristics of the text: • Attempts to precision use of reformulation with formulas such as “namely that” (cioè, vale a dire) and “this is to say” • Presence of reported speech (two quotations within the body of the text) • The solution of the case by the ECJ may be based also on the “Opinion of Advocate Léger”, which suggests to the Court a reply to the plaintiff Officially the language of the case is Italian, but the commission is composed of members of different countries. Text 1A • JUDGMENT OF THE COURT --> The Tribunale di Parma refers the case (Consorzio del formaggio Parmigiano Reggiano si dichiare parte civile) 23 The second paragraph is a LEGAL FRAME --> typical civil law approach • THE COURT --> who composes it? Non of them is Italian --> very hybrid There is a description/summary of what said above • JUDGMENT --> same structure of the statute; formulated with discontinuity. It is made up by recurrent phraseology. Lexicon: To raise a question = sollevare una questione To file a complaint = denunciare To be charged with/to be accused of • THE LEGAL CONTEXT (section) --> summary of all the points of EU legislation referred to the case. Text 1B • THE MAIN PROCEEDINGS --> reasonably detailed history of the case • THE QUESTION REFERRED FOR A PRELIMINARY RULING --> the judgment formulated as questions. Before starting with the questions the Court has to demonstrate that it has jurisdiction) • THE ADMISSIBILITY OF THE QUESTIONS REFERRED FOR A PRELIMINARY RULING Text 1C • THE QUESTION REFERRED FOR A RULING • COSTS The European Court Judgment has not a fixed form, but there are fixed formulas. VOCABULARY: 1. To effect = formal verb meaning "to make something happen" To take effect/to come into effect --> to start officially To be in effect --> used now With immediate effect/with effect from 2. Regulation (to regulate, regulator, regulatory) --> official rule that controls the way things are done. It can establish, permit, provide, state. Verbs often used: to breach, to break, to circumvent, to contravene, to flout, to infringe. Regulation is a countable noun --> regulations. When uncountable indicates control over something, especially by the rules. KEY STRUCTURES: • DIRECT AND REPORTED SPEECH --> it is useful when we have to report somebody's speech. There is no need to repeat the exact words: we only give the meaning of what said. We have to consider the changing of person, place and time. In past reported speech Direct speech Reported speech Present Present prefect Past simple Present conditional Will --> Past simple --> Past perfect --> Past simple, past perfect --> Perfect conditional --> would Can May Must --> could --> might --> had to Reported questions --> reported wh-questions are introduced by the wh-word (when, what, which or how). Reported yes/no questions have if/whether. In a reported question word order is like in a statement --> the council asked what time it was when the defendant left the office. To say – to tell They are both used with direct and indirect speech. Say is more common in direct speech. Say to all people/tell me Neither say nor tell can introduce questions --> ask EXPLAINING THE LAW 1. OPINION OF ADVOCATE GENERAL LéGER LEGAL BACKGROUND The Regulation lay down a legal framework for the designation of origin and geographical indication of certain agricultural products and foodstuffs. There is a link between the product and its geographical origin. The registration confers specific protection on the products registered. The Regulation also includes consumer protection and ensures fair competition. Designation of origin --> means the name of a region, a specific place or a country, used to describe an agricultural product or foodstuff: • Originating in that region, specific place or country, and • The equality of characteristics of which are essentially or exclusively due to a particular geographical environment with its inherent natural and human factors and the production, procession and preparation in a defined geographic area. Registration confers a Community system of protection on PDOs. Registered products are protected against any direct or indirect commercial use of a name registered; any misuse, imitation or evocation; any other false or misleading indication as to the provenance, origin, nature or essential qualities of the product; any other practice liable to mislead the public as to the true origin of the product. Protected names may not become generic. 13 --> EUROPEAN HUMAN RIGHTS LAW THE EUROPEAN COURT OF HUMAN RIGHTS The European Court of Human Rights was created in 1998 by putting together the European Commission of Human Rights and the previous limited Court of Human Rights. The court consists of a number of judges equal to the number of States Parties, which currently stand at 46. Each judge is elected in respect of a State Party; despite this correspondence, however there are no requirements that each state be represented on the court, nor are there 23 VOCABULARY 1. To appeal --> to resort to a higher court, to review the decision of a lower court. To file (or to lodge) an appeal --> presentare un ricorso in appello, interporre appello To be acquired in appeal --> essere assolti in appello To win a cause on appeal --> vincere una causa in appello To give notice of appeal --> ricorrere in appello To appeal against a sentence --> appellarsi contro una sentenza 2. To complain --> to say that you are not satisfied Complainant --> the person (plaintiff) who has asked the court to judge the case Complaint --> written or spoken statement in which someone says he isn't satisfied with something. To uphold a compliant --> the compliant was reasonable 3. To review --> to re-examine judicially or administratively decisions of a lower court or administrative body: to consider or examine again. KEY STRUCTURES 1. RELATIVE CLAUSES --> are means to connect sentences and to give further information about something already mentioned (pronouns: that, which, who, whom,whose) Tipe of clauses: • Defining relative clause: necessary for the comprehension of the message (that/ which) • Non-defining relative clause: contain extra information (which/who) 2. CLAUSES OF CONTRAST --> con be subordinate clauses which provide information which contrasts with the main clause. (although, even though, while, whereas --> subordinating; but --> co-ordinating; despite, in spite of, notwithstanding --> introduce a phrase of contrast). EXPLAINING THE LAW --> the Reform of the ECtHR Working on the principle that "justice delayed is justice denied", the Council of Europe set up a working party to consider ways of improving the efficiency of the Court. Protocol 14 makes a number of changes: • A single judge can decide on a case's admissibility. Before, three judges decided. • Where cases are broadly similar to ones brought previously before the Court, and are essentially due to a member state failing to change their domestic law to correct a failing highlighted by that previous judgment, the case can be decided by three judges rather than the seven-judge Chamber. • A case may not be admissible if it is considered that the applicant has not suffered "significant disadvantage" • A member state can be brought before the Court by the Committee of Ministers if that state • refuses to enforce a judgment against it • The Committee of Ministers can ask the Court for an "interpretation" of a judgment to help determine the best way for a member state to comply with it. In 2003 and 2004, the Court ruled the "sharia is incomparable with the fundamental principles of democracy", because sharia rules on heritance, women rights and religious freedom violate human rights as established in the European Convention of Human Rights. 14 --> INTERNATIONAL CONVENTIONS --> international agreement, deals with general problems Laws of the convention become in force when many countries ratify them. In order to ratify a law, the countries must receive a translated text which is published in the Gazzetta Ufficiale and becomes our official version. The term convention is used in international law to refer to certain formal statements of principle such as the Convention on the Rights of the Child and the several Geneva Conventions. Conventions are adopted by international bodies, such as the International Labour Organization and the United Nations. Conventions so adopted usually apply only to the countries that ratify them, and do not automatically apply to member states of such bodies. These conventions are generally seen as having the force of international treaties for the ratifying countries. The procedure that leads to a convention implies that a certain number of countries (the promoters) discusses about a certain matter, reaches an agreement and ratifies/signs the convention text. Conventions do not get into force until a certain quantity of countries has signed them. Example of a convention (fixed structure) • Title: “Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment” • Subtitle: “Adopted and opened for signature, ratification and accession by General Assembly resolution -date- entry into force -date- in accordance with article …” • Subject: “The State Parties to this Convention considering that… recognising that… considering the obligations of… having regard to article… have agreed as follows:” • PART 1 & PART 2, divided into consequently numerated articles which set first of all a definition of the matter at hand (torture), which has to be complete and precise in order to prevent countries from the possibility to bypass it, and then all the rules concerning this matter to each State Member • F 0E 0PART 3: stipulating part it states the rules for the accession and ratification of the convention, which States can sign it, when it will get into force, if there is the possibility to leave (denounce) it etc. Text 1 --> convention against torture and other cruel, inhuman or degrading treatment or punishment. "considering that" --> not introduced by "whereas", but by a –ing form of a cognitive verb, there is also intertextual reference. In Art. 1 there is a real complex definition of "torture", it tries to include all possible cases. Part III --> STIPULATIVE PART --> stipulation is very complicated because you have to accumulate a lot of ratifications. 23 After the ratification of the Convention states can sign, then there is accession. Having a maximum number of states signing is better for the Convention. All UN conventions are written in 6 languages. The language of conventions is not PLANE LANGUAGE. FOCUS ON LANGUAGE: VOCABULARY: 1.1.TO IMPLEMENT/IMPLEMENTATION to fulfil, to perform, to carry out = attuare, eseguire, applicare 1.2.ENFORCEMENT/TO ENFORCE act of putting something such as a law into effect, the execution of a law = esecuzione, applicazione, imposizione 1.3.TRIAL the examination before a judicial tribunal of the facts at issue in a case, often including issues of law as well as of facts = processo/ giudizio 1.4.TO WARRANT/WARRANT = give the authority, authorize WARRANT = instrument issued by a magistrate PREPOSITIONS AND ADVERBIAL PRACTICES: • To call on = to appeal to • War on terror = Guerra al terrorismo • A call for states = invite agli stati • Prohibition on something = divieto di • To get away with = restare impunity • To take someone into custody = prendere qualcuno in custodia. • Obligations under this Convention = obblighi previsti dalla presente Convenzione KEY STRUCTURES 3.1.MANDATIVE SUBJUNCTIVE “Art 4 requires that all acts of torture be defined as crime” here the verb form “be defined” is the present subjunctive. The subjunctive is perfectly distinguishable when in the passive form. The subjunctive is used in the that- clauses, when the clause contains an expression of recommendation, resolution, demand or surprise. It often follows verbs such as require, recommend, insist, demand, suggest, pray etc. EXPLAINING THE LAW International Law, also known as Public International Law, consists of rules and principles which govern the relations and dealings of nations with each other; it concerns only with questions of rights between several nations or nations and the citizens of other nations. In contrast, Private International Law deals with controversies between private persons, natural or juridical, arising out of situations that are of significance to more than one nation. Recently issues of private international law involve issues of public international law. International Law includes the basic, classic concepts of law in national legal systems (status, property, obligation and tort/delict) and also substantive law, procedure, process and remedies. STRUCTURE: agreement (completezza dell’accordo if there are other arrangements outside the contract, they are not valid) • End: in witness whereof, … date, names and signatures of the parties FOCUS ON LANGUAGE 1. BINOMIAL AND MULTINOMIALS In legal language, for the sake of precision, more than one word is used to designate one concept. Most frequent case binomials 2 words which are near-synonyms, often deriving on from Latin and the other from the Anglosaxon tradition (last will and testament; terms and conditions). In other cases the two words refer to two slightly different alternatives within the same conceptual framework. Books of accounts and record = libri e registrazioni contabili. In many cases more than two words are used laws, statutes, or regulation. 2. HERE- AND THERE- WORDS The use of here- and there- is very frequent in contracts. Here words are self-referential. There- words are anaphoric: they refer back to a previous element 3. TO ACKNOWLEDGE/ACKNOWLEDGEMENT to admit to be real/true, to confess, to recognize the authority or validity of something. In law to recognize as binding. To acknowledge a deed = legalizzare un atto To acknowledge someone’s power = riconoscere il potere di qualcuno. To acknowledge a letter = accusare ricevuta di una lettera Acknowledgemnt = riconoscimento, ammissione. 4. TO PROVIDE/PROVISION to give, to supply (someone with something), to support, to do what is necessary (for) PROVISION a clause in a legal instrument Provision of the law disposizioni di legge Under the provision of the law ai sensi della legge 5. TO WAIVE/WAIVER to abandon, to renounce, repudiate or surrender a claim Waiver intentional or voluntary relinquishment of a known right, renunciation, repudiation. 6. DAMAGE (uncountable) loss caused by a person to another or to his property, either with the design of injuring him, with negligence or inevitable accident. = danno/danni DAMAGES (pl) pecuniary reparation due for loss or injury = danni/risarcimento danni EXPLAINING THE LAW INTERNATIONAL CONTRACTS: THE LEGAL FRAMEWORK International commercial contracts are often written on the basis of Common Law contract models. Not only they are written in English, they also frequently adopt Common Law legal terminology and legal structure. 23 The Common Law of Contracts is based on principles of certainty and predictability. The parties are presumed to be able to assess the risks connected with the transaction. And to provide for appropriate regulation. The contract is deemed to be sufficient to regulate the transaction between the parties. The law of contracts in Civilian systems is concerned with ensuring that justice is rendered in the specific case. The contract is interpreted in the light of implied principles of reasonableness, good faith or fair dealing, making it possible to avoid unjust solutions based on literal interpretation. Assumed that the parties have the capability and willingness to assess and take the risks connected with the transaction, only a party from the Civilian system might expect some interference by the governing law. A contract governed by the law of a Civil Law system, therefore is subject to interference by the governing law. When the contract is based on Common law it is excluded any interference. The encounter of two opposed expectations toward the governing law might create difficulties of interpretation. The availability of arbitration as a method of dispute resolution for disputes connected with international contracts is often referred to as a solution to possible contradictions between contractual practice and national governing laws. 16 ARBITRATION AND ALTERNATIVE DISPUTE RESOLUTION Arbitration has become a very big business. Arbitration can be arranged in a private way floating arbitration. It does not refer to a specific organisation. ICC international chamber of commerce organisation that produces incoterms to classify all the different possible arrangements and costs of international transports In Stockholm there was an important chamber of commerce which operated with the countries of the Soviet Union. ADR is usually a faster and cheaper way of solving disputes than going to the court, and it is always confidential. The three main forms of ADR are arbitration, mediation and conciliation. Arbitration is when a mutually agreed third party listens to both sides of the dispute and then makes a binding decision, as would a judge in a court. With mediation, a neutral third party is called to help and push the two parties to come to a common ground, allowing them to solve the dispute themselves; it is generally not legally binding. Conciliation is similar to mediation but has more regard to the letter of the law, as opposed to mediation’s focus on fairness. In arbitration, the third-party acts as a decider, in mediation as a helper. Procedure of arbitration: when a dispute arises, the aggrieved party may contact the Chartered Institute of Arbitrators (CIA) and suggest an arbitrator; an immediate mutual agreement is unusual. Once the two sides have settled a choice, a preliminary meeting chaired by the arbitrator is called; he will listen first to the aggrieved party, then analyse all the documents presented and later the hearings start (they usually last for five days). Once the hearings are over, the arbitrator takes a decision within two months. If one side is not happy with the decision, he can appeal the arbitration through litigation (bearing the dispute to the court). Arbitration disputes generally conclude within six months. With mediation, a solution can be found within a matter of days. Mediators, in contrast with arbitrators, don’t have necessarily to be experienced in law, but they must know the subject matter. The rules of the London Court of International Arbitration (LCIA) book pp. 260-263 International Commercial Arbitration: it offers an instrument to resolve controversies more rapidly and more flexibly than in court proceedings. In particular, when citizens from various countries are involved in a dispute, international arbitration avoids them the necessity to decide which national legal system to choose; litigation in national court, in fact, will inevitably put one of the parties at a disadvantage. Each country has its own rules and procedures regulating arbitrations, but in the last few decades a harmonisation in the procedural and substantive aspects of the international arbitration process has been a major concern in the legal environment. Indeed, a number of measures have been taken at the national and international level to guarantee it. The most important of these measures has been the introduction of the UNCITRAL (United Nations Commission on International Trade Law – Commission within the UN) Model Law on International Commercial Arbitration (a model for those countries which don’t have a law concerning arbitration), which has been adopted integrally or with few modifications by a large number of countries, thus leading to a gradual reduction in disparities. Comprehensive sets of procedural rules for international use have been issued by UNCITRAL and by leading arbitration institutions such as the International Chamber of Commerce Court of Arbitration (ICC, which stated some incoterms - international commercial terms-), the London Court of International Arbitration (LCIA), the American Arbitration Association (AAA) and others. Although the sets of arbitration rules display substantial terminological uniformity, a few divergences are found in the use of the very basic terms concerning the arbitration process. Examples: 1) the denomination of the document commencing the arbitration proceedings is called Request for Arbitration in all texts except UNCITRAL, where the expression Notice of Arbitration is used instead; incidentally, the word notice recurs various other times in the text in more general collocations. 2) as concerns the respondent’s reaction, we find a degree of lexical variations: Response, Answer, Reply. To sum up: Claimant, plaintiff = attore Respondent, defendant = convenuto Arbitration clause = clausola compromissoria Award = lodo arbitrale Notice of arbitration, Request for arbitration = domanda di arbitrato Statement of claims, statement of case = esposizione degli estremi del fatto Response, reply, answer = replica, risposta Statement of reply, statement of defence = memoria di risposta/replica Counterclaim = domanda riconvenzionale Statement of defence/reply to counterclaim = memoria di replica alla domanda riconvenzionale 23