International Materials 1

International Materials 1OVERVIEW OF FOREIGN, COMPARATIVE, AND INTERNATIONAL LAWRESEARCHING TREATIESNOVEMBER 11, 2013

Introduction In scholarship, often abbreviated as FCIL

◦ Foreign: the domestic laws of other nations◦ Comparative: the study of differing legal systems◦ International: international agreements laws spanning 2 or more national

jurisdictions

Why research FCIL? Legal practice

◦ Family law: child custody◦ Corporate law: global business requires knowledge of treaties, foreign laws

Increasing interest in internationalization in legal scholarship and teaching

Types of Legal Systems Common law: the Anglo-American system Civil law: the most common system Customary law

◦ Domestic: derived from traditional practices or beliefs◦ International: practices of nations/intergovernmental organizations

Religious law: Islamic, Jewish, Canon, Hindu, Buddhist, Confucian Hybrids of the above Images at http://www.juriglobe.ca/eng/

Civil Law Based on Roman law, influenced by canon law and customary law of individual nations

Comprehensive system of rules and principles usually arranged in codes Avoidance of excessive detail, so adaptable to change Primarily legislative; judges’ role is narrow, as system designed to not need interpretation/discretion (though can happen if code vague/incomplete)

Academic writing has more influence than in common law system Students learn by reading treatises, not through case analysis

Comparison COMMON-LAW SYSTEM

Courts of general jurisdiction

Judges interpret the law

Pre-trial interactions between parties (like discovery), then trial before judge adversarial

CIVIL-LAW SYSTEM

Specialty courts, e.g. for commercial law

Judges apply the law

Judge participates throughout, doing fact-finding: holding series of hearings, questioning witnesses inquisitorial

Websites and Sources for Civil Law

Federal Judicial Center, A Primer on the Civil-Law System: http://www.fjc.gov/public/pdf.nsf/lookup/CivilLaw.pdf/$file/CivilLaw.pdf

LSU Center of Civil Law Studies: http://www.law.lsu.edu/index.cfm?geaux=ccls.home

UC Berkeley, The Common Law and Civil Law Traditions: http://www.law.berkeley.edu/library/robbins/CommonLawCivilLawTraditions.html

Foreign Law The laws of other countries To research, know the country’s legal system

◦ If civil law, code research is less important than case research ◦ If customary law, may need to look at secondary sources

Foreign Law Resources NYU’s GlobaLex: http://www.nyulawglobal.org/globalex/

◦ Research guides with background on legal system, links to texts

World Legal Information Institute: http://www.worldlii.org/ HeinOnline: World Constitutions Illustrated

Comparative Law Study of different legal systems; not itself a legal system Why study:

◦ Globalization of trade and investment (are U.S. investment laws compatible with Country X’s?)

◦ Joining of different countries (e.g., European Union)—harmonization ◦ May help in researching customary law◦ Determine international norms on a given subject

Comparative law guides at GlobaLex

International Law Private international law Public international law Transnational law Supranational law

Private International Law Governs the choice of law to apply when there are conflicts in the domestic law of different countries that relate to private transactions between individual parties

National laws are the primary sources of private international law Deals with topics such as contracts, marriage and divorce, jurisdiction, recognition of judgments, child adoption and abduction, etc.

Can be found in public international law, such as Hague Convention dealing with child abduction

Public International Law Governs relationships between nations, intergovernmental organizations

Treaties and other agreements (conventions, protocols) Customary law (legally recognized norms)

Research guides on GlobaLex

Public International Law—Treaties

Bilateral: agreements between two parties Multilateral: agreements between many parties Office of Treaty Affairs at the U.S. State Dept. assists in drafting, negotiation, application, interpretation of treaties. Also serves as depositary for some multilateral treaties.

U.S. may sign a treaty, but won’t become U.S. law unless Senate ratifies with 2/3 majority vote (Const. Art. II, Section 2)

Entry into force: varies; date specified in treaty, or certain amount of time after parties ratify

How to Work Around Senate Memorandum of Understanding: document expressing intent of parties regarding cooperation on some matter

Example: http://www.whitehouse.gov/sites/default/files/Trilateral_Food_Security_MOU_FINAL.pdf

Parts of a Treaty The text of the treaty The parties (their status) Comments

◦ Reservations◦ Understandings◦ Declarations

Modifications (updating)◦ Treaties in Force◦ Look at depositary’s website◦ UN treaty secretariats’ websites◦ Call Treaty Affairs @ State Dept.

Finding U.S. Ratified Treaties If treaty name and depositary is known, go to the website If not known, start with index titled Treaties in Force

◦ Law Library mezzanine @ KZ235 .G85◦ Online @ State Dept. website http://www.state.gov/s/l/treaty/tif/index.htm

◦ HeinOnline Treaties and Agreements Library http://0-www.heinonline.org.library.uark.edu/HOL/Index?collection=ustreaties&set_as_cursor=clear ◦ Narrow to Treaty Guides and Indexes

TiF updated annually, Jan. 1; for more current info go to the Treaty Affairs office site: http://www.state.gov/s/l/treaty/index.htm

Bilateral treaties—India Multilateral treaties—Antarctic Treaty http://0-www.heinonline.org.library.uark.edu/HOL/Page?handle=hein.ustreaties/tif2012&collection=ustreaties&index=ustreaties/tif331&id=331

Finding Text of U.S. Treaties Online: search for name of treaty, go to depositary website Citations

◦ T.I.A.S. = Treaties and Other International Acts Series◦ U.S.T. = United States Treaties and Other International Agreements◦ KAV = Kavass

HeinOnline Treaties and Agreements Library http://0-www.heinonline.org.library.uark.edu/HOL/Index?collection=ustreaties&set_as_cursor=clear◦ Narrow to Treaty Publications (default)

Finding Non-U.S. Treaties WorldLII’s International Treaties Collection: http://www.worldlii.org/int/special/treaties/

If you know the depositary, go to the website◦ Example: World Intellectual Property Organization

http://www.wipo.int/wipolex/en/

If you know a party, go to their website◦ Example: Canada http://www.treaty-accord.gc.ca/index.aspx

Secondary Sources HeinOnline

◦ International and Non-U.S. Law Journals◦ Foreign & International Law Resources Database◦ Index to Foreign Legal Periodicals

WorldLII International Legal Scholarship Library Westlaw Next: links to treatises and journals on International Materials

Books/Monographs: ABA Bookstore

FCIL on WL/LX/BB Bloomberg: no FCIL focus Lexis: Browse Topics > International Law, International Trade Law Westlaw Next: International Materials link on main page