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Chapter 1:
Notes:
Law – rules and regulations established and enforced by a governing body.
Functions of the law:
Keep the peace.
Maintain the status quo.
Preserve individual rights.
Protect minorities against majorities.
Promote social justice.
Provide for orderly social change.
Knowing who has power to make and enforce the laws is a matter of knowing who has political power
– in many places, the people or groups that have military power can also command political power to
make and enforce the laws. Those who control the territory make the laws.
Jurisprudence – ideas or philosophies of law that have developed. The two main legal schools of
thought are:
Natural law – law is a result of universal moral principles. Natural law was “discovered” by
humans through the use of reason and by choosing between that which is good and that which
is evil. Natural law will thus typically involve a small set of laws.
Positive law – law is a result of legal standards outlined by governments to meet certain
objectives. Law is only law, in other words, if it comes from a recognized authority that
enforces it.
Other schools of legal thought (but related to the two main schools of thought):
Legal realism – law reflects the acts and thoughts of administrators as they carry out their
roles. Thus, laws constantly change based on the current social context.
Critical legal studies (CLS) – social order and the law is dominated by those with power,
wealth, and influence.
Ecofeminist – emphasizes and modifies the long-standing domination of men over both
women and the rest of the natural world.
Law versus ethics – Law does not correct every wrong that occurs in society. At a minimum, it aims to
curb the worst kind of wrongs, the kinds of wrongs that violate what might be called the “moral
minimums” that a community demands of its members. So, law is the moral minimum.
Rule of law – the orderly passage and execution of laws by a governing body. The stronger the rule of
law, the stronger the economy is. A strong legal system is the foundation for a strong economy. A
strong rule of law maintains peace, effects change, and causes the economy to prosper.
Sources of law:
Constitutional Law – the highest law of the land. The foundation for a state or nation’s other
laws, providing the country’s legislative, executive, and judicial framework. It indicates who
makes laws as well as how laws are to be made.
Statutory Law – broad laws passed by the legislative body in the country. They provide general
rules for society.
Administrative Law – detailed laws by governmental agencies, which have been created to
administer laws in specific areas.
Common Law – decisions made by judges in higher-level courts, which must be adhered to as
precedents by the lower level courts.
o Stare decisis – a legal doctrine that obligates courts to follow previous cases when
deciding on a similar case.
This list is in order of priority, and what comes below another source needs to be in line with that
source. A source with a lower level of priority cannot contradict a source with a higher level of priority.
Civil law versus criminal law – civil law refers to legal actions between individuals or businesses, which
are meant to resolve disputes between them, while criminal law involves actions that enforce rules
prohibiting bad acts of individuals within a governing body’s jurisdiction, and thus are meant to
maintain order in society, punish a wrongdoer, and deter serious wrongdoing.
In a civil case, the plaintiff brings the case, and the defendant must answer or lose by default, while
in a criminal case, a prosecutor brings the case, and the defendant may remain silent.
In a civil case, remedies almost always consist of money (damages), while in a criminal case, remedies
consist of jail time, fines, community service, execution, etc.
Standard of proof differs in civil and criminal cases. In a civil case, the standard of proof is a
preponderance of the evidence (more likely than not that the defendant did what the plaintiff claims).
Standard of proof in criminal cases is beyond a reasonable doubt (whether a reasonable person has
any reasonable doubt in light of the circumstances).
If the same action violates both criminal law and civil law, you will have separate lawsuits with
different procedures, standards of proof, and remedies.
Substantive law versus procedural law – substantive laws define a legal relationship or prohibit
certain conduct. It tells us how to act with one another and with the government. Procedural law
dictates how substantive law is administered or carried out. They are the rules of courts and
administrative agencies, and tell us the procedures or how to proceed if there is a substantive-law
problem.
Common law versus civil law systems – civil law is code based – statutes and codified rules, while
common law centers on the judicial interpretation of statutes. Over time, both of these systems have
converged as common law systems worked on codifying many of the past decisions into written law,
and civil law systems referred to past decisions voluntarily for guidance on similar cases.
Federal law versus state law – In federal countries, there are different federal laws and state laws.
The constitution typically determines which matters are dealt with at the federal level and which
matters are dealt with at the state level. In general, federal laws trump state laws. State laws can be
more restrictive than federal laws, but cannot be less restrictive.
IRACs: Issue, Rule, Application, and Conclusion method of analysis:
Issue: typically in the form of a question that you are trying to answer. The question should include
the cause of action and the parties relevant to the case. The issue should be linked to the law through
the use of the law’s terminology.
Rule: what the law actually says. The rule should state the law as it is and define its elements. Rules
are neutral and do not refer to the case or the parties. Elements are parts of the law that need to be
proven or disproven in the application so as to determine liability or guilt in the conclusion.
Alternatively, some rules may have factors (only some of which need to be proven). In such a case,
the relevant factor(s) is/are only included.
Application: linking the facts of the case to the law as stated in the rule. The application uses the facts
of the case to prove or disprove each of the elements explained in the rule and builds up an argument
that makes the reader follow the student’s logic in arriving at the conclusion.
Conclusion: an answer to the question stated in the issue, along with a brief summary of the reasons
for this stance.
Ideally, an IRAC is linked together:
The issue and conclusion sections are linked to each other – the issue poses a question, and
the conclusion answers it directly.
The rule and application sections are linked to each other – the rule states the law, and the
application applies that law and its elements to the facts of the case.
The issue and rule sections are linked to each other – the issue identifies the cause of action,
and the rule explains what the law requires to establish that cause of action.
The application and conclusion sections are linked to each other – the application builds an
argument as to whether the law and its elements are met or not, and the conclusion follows
logically from the argument in the application. Reading the application should naturally lead
the reader to understand (and even anticipate) the conclusion reached.
Practice Questions:
Practice Question 1:
One day, while Anne-Marie is hanging out with her friends, she gets into an argument with Wilson.
During the argument, he says some very offensive and slanderous things about Anne-Marie. As a
result, Anne-Marie sprays him in the face with a can of mace that she carries in her purse. Wilson
falls to the ground in pain. Some bystanders see Wilson in pain and call the police and rescue squad.
It turns out that Wilson suffers severe damage to his sight. Because of the incident, Anne-Marie
ultimately serves 30 days in jail and is forced to pay a judgment to Wilson for $50,000. Is AnneMarie’s punishment a result of criminal law, civil law, or both?
Issue: Did Anne Marie commit a civil or criminal act when she was punished by 30 days in jail and
forced to pay $50,000 to Wilson?
Rule: A criminal act is one that violates a law and disrupts society, is prosecuted by the government,
and involves punishments in the form of jail and fines. A civil act is a wrong between individuals, is
typically legally pursued by the person whose rights have been harmed, and involves seeking
compensation for the injury caused.
Application: Anne Marie spends 30 days in jail because she sprays Wilson in the face and cops are
called by bystanders. Spraying people with mace disrupts society and violates laws. Since the police
were called, who take the necessary measures, she would be prosecuted by the state. Also, since she
was put in jail, such a punishment can only be sought by the government.
When Anne Marie sprays Wilson in the face, he suffers severe eye damage, which causes him to sue
Anne Marie for compensation as the person who has been harmed. She pays $50,000 to compensate
Wilson for the harm done to his eye, which is the typical type of remedy in cases between individuals.
Conclusion: Anne Marie committed a criminal act when she was punished by 30 days in jail, as the
case is prosecuted by the government and involves a remedy that is only available in criminal cases.
Anne Marie committed a civil act when she was forced to pay $50,000 to Wilson, as the case is
between individuals and involves a monetary remedy.
Practice Question 2:
Jenna’s ticket says that she has thirty days in which to respond to the charges against her. The thirty
days conforms to a state law that sets this time limit. Is the thirty-day limit procedural law or
substantive law?
Issue: Is the state law stating the time limit to respond to charges a procedural or a substantive law?
Rule: Substantive laws define a legal relationship or prohibit certain conduct, while procedural law
dictates how substantive law is administered or carried out. Procedural laws are the rules of courts
and administrative agencies. They tell us how to proceed if there is a substantive law problem.
Application: Jenna’s careless driving is a violation of substantive law that prohibits careless driving. As
such, this substantive law problem results in a fine, which can be responded to or challenged within
30 days. These rules are procedural rules that indicate how and by when to proceed after the careless
driving violation occurred.
Conclusion: The state law stating the time limit to respond to charges is a procedural law as it describes
the process to follow after breaking traffic rules.
Practice Question 3:
In the following situations, which source of law takes priority, and why?
The state statute conflicts with the common law of that state.
A federal statute conflicts with the US Constitution.
A common-law decision in one state conflicts with the US Constitution.
If a state statute conflicts with the common law, the state statute will take priority
because when a state statute exists, it takes precedence over case law and should be
followed over conflicting prior case decisions.
If a federal statute conflicts with the US Constitution, the US Constitution will take
priority because it is the highest law of the land – no other law should conflict with it.
If a common law decision in one state conflicts with the US Constitution, the US
Constitution will take priority because it is the highest law of the land – no other law
should conflict with it.
Notes:
Chapter 3 – Courts and the Legal Process:
Hierarchy of courts – trial court (mechanism to enforce the law), appellate court (review of a case /
decision from the trial court for errors of law), and Supreme Court (decision on applications for review
and review of cases for errors of law).
Federal Courts include the US Supreme Court, the Federal Appellate Courts, and District Courts.
State Courts include the state supreme court, appellate court, trial courts, and other courts of special
jurisdiction.
Federal government’s laws takes precedence over state government’s laws if there is a conflict. It may
seem that the federal and state systems are separate, but in practice, they converge a lot.
Jurisdiction – a court has the authority to rule on a particular case. The court has to have two types of
jurisdiction:
Subject matter jurisdiction: the right to rule on that type of case
Personal jurisdiction: the right to rule over the individuals involved in the case.
Subject Matter Jurisdiction:
Subject matter jurisdiction is related to the types of cases a court has the power to hear and decide.
Original versus Appellate Jurisdiction: A court exercising a trial function has original jurisdiction –
jurisdiction to determine the facts of the case and apply the law to them. The court deals with issues of
fact and law.
A court that hears appeals from trial courts has appellate jurisdiction – it must accept the facts as
determined by the trial court and limit its review to the application of the law. The court only deals with
issues of law.
Limited versus general jurisdiction courts: Limited jurisdiction courts have authority to hear certain types
of cases only, which might depend on the subject matter, the amount in controversy, and the location or
residence of individuals. Probate courts, bankruptcy courts, admiralty courts, military courts, and
intellectual property courts are a few.
All other civil and criminal cases are heard in general trial courts, also known as courts of general
jurisdiction. These courts have authority to hear any type of case at their level.
The losing party in a trial court can always appeal to one or two higher courts. The intermediate appellate
courts – courts of appeal – do not retry the evidence, but only decide whether the trial was conducted
in a procedurally correct manner and whether the appropriate law was applied.
The last type of appeal is to the highest court, known as the Supreme Court. Typically, the Supreme Court
selects the cases it wants to hear. Its decisions tend to be final.
Federal Trial Courts and Appellate Courts cannot review cases from state trial courts. State Trial Courts
and Appellate Courts cannot review cases from federal trial courts. The only exception is that the US
Supreme Court may review decisions of state supreme courts.
Federal versus State Court Jurisdiction:
Federal courts are courts of limited jurisdiction, and can only hear cases:
Involving federal law – including federal crimes, antitrust, IP, bankruptcy,
Where the US is a party,
Suits between states (1, 2, and 3 exclusive federal jurisdiction), and,
Diversity suits between individuals (civil lawsuits between citizens of different states. For a
federal court to hear a diversity suit, there should be diversity of citizenship, and the amount in
controversy must be $75,000 or more). The federal court does not have an exclusive jurisdiction
over these cases, as states also have jurisdiction to hear these cases (4 + some federal questions
involve concurrent jurisdiction).
There is a broad category of cases heard in federal courts that concern state law issues – cases that arise
between citizens of different states AND have an amount in controversy equal to or above $75,000.
These are “diversity of citizenship” jurisdiction cases in order to prevent hostility towards people of other
states.
Federal courts also hear cases related to federal law or involving the US as a party, also known as “federal
question” jurisdiction. It is a legal issue that is assigned to the federal courts.
The vast majority of civil lawsuits are filed in state courts. Exclusive state jurisdiction – cases involving all
matters not subject to federal jurisdiction.
State Court’s Subject Matter Jurisdiction – (1) cases where an act violates a state criminal law and was
committed within the state, (2) a civil dispute involving a state law, or (3) cases where a citizen of the state
is a party.
Exclusive versus concurrent jurisdiction: Exclusive jurisdiction is when only one court has jurisdiction
over a case. Concurrent jurisdiction is when two or more courts have jurisdiction over a case.
Personal Jurisdiction
Personal Jurisdiction is the authority of a court to exercise jurisdiction over an individual. Determining
personal jurisdiction varies for criminal and civil cases.
For civil cases – a court has personal jurisdiction over the defendant when it serves the defendant
with a summons – service of process.
o A federal court would get personal jurisdiction by serving process based on the state law
governing personal jurisdiction that is applicable in the state in which the federal court is
located.
o A state court would get personal jurisdiction by serving process based on its individual
state law.
Service of process should take place when the defendant is physically present within the state. The
exception to this is the long arm statute, which allows service of process on defendants who are physically
outside the state if the defendant has sufficient contact with the state to make it reasonable to call
him/her into court there. This is known as “minimum contacts with the state”.
A defendant has minimum contacts with the state if:
He/she is a resident of the state,
Owns property in the state that is the subject of controversy,
Committed the controversial act in the state,
A business has minimum contacts if it is organized or registered in the state or carries out
business regularly in the state.
Factors to consider to determine whether service of process (and personal jurisdiction) is fair:
Consent – defendant agrees to the court’s jurisdiction,
Domicile – defendant is a resident of the state,
Event – defendant did something related to the lawsuit in the state, and,
Service of process while in the state.
For a court to hear a case, it must have both subject matter and personal jurisdiction.
Venue is the physical location where the trial is conducted. Once a court establishes subject matter
jurisdiction over the case and personal jurisdiction over the defendant, there is a question as to the
appropriate venue for the trial or hearing if there is more than one physical court involved. This could be
the courthouse closest to the matter in controversy, or the locale where the defendant or plaintiff
resides. If they live in different towns, the place where the activity in controversy occurred or the
defendant’s locality is generally the appropriate court.
Courts generally honor contractual clauses for choice of law (parties choose the specific laws that will
apply in the case of a dispute in advance) and choice of forum (parties choose the court that is to hear
their dispute in advance).
How a case proceeds:
1. Complaint and summons – a document clearly explaining the grounds for a suit called the
complaint is filed. It should indicate:
a. The nature of the claim,
b. The jurisdiction of the court, and,
c. The nature of relief requested.
The court’s agent will then serve the defendant with the complaint and the summons – this is
known as service of process and establishes personal jurisdiction over the defendant.
2. Answer to the complaint – the defendant, in the summons, is directed to reply to the complaint
within a specific period of time. The answer can include counterclaims.
The complaint and answer together are known as the pleadings.
3. Motions – requests to the judge, and include requests to:
a. Dismiss the lawsuit,
b. Move it to another venue,
c. Compel the other party to act in a certain way,
d. A judgement on the pleadings – The defendant is saying, in effect, that even if all the
plaintiff’s allegations are true, they do not amount to a legal claim that can be heard by
the court. Judgement is made after the pleadings and before discovery.
i. If the defendant fails to answer the complaint, the court can enter a default
judgment, awarding the plaintiff what he seeks.
ii. The defendant can move to dismiss the complaint on the grounds that the
plaintiff failed to “state a claim on which relief can be granted,” or on the basis
that there is no subject matter jurisdiction for the court chosen by the plaintiff,
or on the basis that there is no personal jurisdiction over the defendant.
e. At a later stage, motion for summary judgement – happens after discovery and before
trial. If there is no triable question of fact or law, there is no reason to have a trial.
f. At an even later stage, motion for a directed verdict – happens during the trial. After
presentation of evidence and before a case is handed over to a jury, it is evident that a
party has not presented enough evidence to win a court case.
4. Discovery – a mutual fact finding process between the parties. It can be obtained through
interrogatories (a written request for answers to specific questions), depositions (a live questionand-answer session at which the witness answers questions put to him by one of the parties’
lawyers), and inspection (requests to inspect books, documents, records, and other physical items
in the possession of the other).
Typically, it is after discovery that a motion for summary judgement is filed.
5. Pre-trial conference – parties start figuring out the evidence that can be presented, the order of
presentation, and the judge is much more involved, typically to clarify the issues and encourage
the parties to settle.
6. After discovery and pre-trial conference are complete, the case moves to the trial stage if it is not
settled. At trial, the first step is to select a jury through a random process. The questioning of the
jury to ensure no bias is known as voir dire.
7. After the jury is selected, the plaintiff’s lawyer makes an opening statement, sometimes
followed by the defendant’s lawyer.
8. Physical evidence is then presented. At the end of the plaintiff’s case, the defendant’s lawyer
then presents his case.
After both parties present their cases, a motion for a directed verdict can be presented – a party
to the case did not present enough evidence to meet the burden of proof thus, cannot win the
case.
9. Both parties present a closing statement.
10. The judge will then instruct the jury to explain the meaning of the law and the facts that are
needed to apply it.
11. The jury then retires and reach a verdict. They deliver the verdict in court, and the judge then
issues the judgement.
12. The losing party is allowed to ask the judge for certain post-trial motions such as a judgement
non-withstanding the verdict (judgement that opposes the jury’s verdict) or request for an
appeal.
13. If accepted, the appellate court reviews the case for questions of law, hears lawyers’ arguments,
and then decides on the case. There is a possibility of further appeal to the Supreme Court.
14. After the appeal process ends, steps to enforce and collect the judgement are taken.
Standing to sue – the only person whose interests are directly affected has the legal right to sue.
Class actions – are brought when many plaintiffs have been injured in the same way by the same
defendant. Once a class is certified (approved) by court, the case can proceed. Plaintiffs can elect to not
be represented in the class. Only in that case will they be able to sue individually.
Attorneys – practice in specialized areas and have duties to their clients to act as fiduciaries (duty of trust,
confidentiality, and loyalty to their client), to act as court representatives of the client, and to seek justice
and try cases on the merits only.
Attorneys charge for their services in one of three different ways: flat rate, hourly rate, and contingent
fee.
A flat rate is used usually when the work is relatively routine and the lawyer knows in advance
approximately how long it will take her to do the job.
Lawyers generally charge by the hour for courtroom time and for ongoing representation in commercial
matters.
A contingent fee is one that is paid only if the lawyer wins—that is, it is contingent, or depends upon, the
success of the case. This type of fee arrangement is used most often in personal injury cases.
Alternative means of resolving disputes – court cases are slow, costly, and public. To avoid these
disadvantages, the parties can choose to arbitrate or mediate.
Arbitration involves the parties using a private decision maker, who hears both parties’ arguments and
reaches to a decision, which is binding on both parties.
Mediation does not give the third party the power to impose a decision. Rather, the mediator acts as a
go between, helping the parties to communicate and find common ground. He/she also suggests
outcomes.
UAE Law:
Constitutional Structure of the UAE:
Supreme
Council
• The Ruler of Each Emirate sits on the Supreme Council
• Body that Creates Laws
• 5 Votes Required for Any Measure to Pass and Rules of Abu Dhabi and Dubai must Approve
• Appoint all Cabinet Officials including President and Vice President
President and
Vice
President
• Normally the Rulers of Abu Dhabi and Dubai Respectively
• Responsible for enacting and enforcing laws approved by Supreme
Council
Cabinet of
Ministers
• Appointed by the Supreme Council and
Includes the President and Vice
President
• Administers the Federal Agencies and
Federal Laws
• Runs the Government Day to Day
Federal and Emirate Government Subject Matter Jurisdiction:
o
o
Federal Government subject matter jurisdiction – Defense, Foreign Affairs,
Communications, Education and Health.
Emirates subject matter jurisdiction – Everything Else, including Petroleum Exploration,
Taxation, and Company Law.
Advisory Structure for Law Making:
President and
Vice President
Federal
National Council
Council of
Ministers
Federal
Judiciary
UAE Judicial System:
Supreme
Court of the
UAE
Federal Courts
of Appeal
Federal Courts
of First Instance
for All Other
Emirates
Courts of
RAK
Courts of
Dubai
o
Supreme Court has appellate jurisdiction except for national security cases and disputes
between Emirates – where it has original jurisdiction. Appellate jurisdiction is by
application.
o
o
Federal Courts of Appeal has appellate jurisdiction as of right.
Federal Courts of First Instance for Other Emirates (Federal District Courts in these
Emirates), Courts of RAK and Courts of Dubai (their own Emirates courts) are district
courts with original jurisdiction.
Sources of Law:
UAE Judges are allowed to look to the Following Sources of Law When Ruling on a Case (more or
less is stated in terms of priority):
o Shariah Law
o Federal Law
o Emirate Law
o Local custom
o Applicable Principles of Other Legal Regimes (i.e. foreign legal regimes)
o General Equitable Considerations
Constitutional Rights of All Citizens:
o Equality, social justice, ensuring safety and security and equality of opportunity for all
citizens (Article 14)
o The family is guaranteed as the core unit of society and the government will safeguard
and protect it from corruption (Article 15)
o Education is compulsory at the primary level (Article 17)
o Private property rights will be respected by law and legal authorities (Article 21)
o All persons are equal before the law, without distinction between citizens of the Union
in regard to race, nationality, religious belief or social status (Article 25 )
o Personal liberty is guaranteed; no person may be arrested, searched, detained or
imprisoned except in accordance with the provisions of law (Article 25 )
o Legal penalties are personal (i.e. they do not pass to relatives; an accused shall be
innocent until proven guilty (Article 28 )
o Freedom of movement is guaranteed (Article 29 )
o Freedom of expression is guaranteed (Article 30)
o Freedom to exercise religious worship is guaranteed in accordance with established
customs and provided it does not conflict with public policy or violate public morals
(Article 32 )
o Freedom of assembly is guaranteed (Article 33)
Corporate Forms:
o General Partnership – UAE Nationals with unlimited liability.
o Limited Partnership – UAE Nationals as general partners with unlimited liability and
limited liability partners who can be of any nationality.
o Share Partnership Company – Tradeable partnership interests.
o Joint Venture Company – Contractual relationship that does not form a separate
company.
o Limited Liability Company – Company with all limited liability partners with at least 2 but
no more than 50 partners and paid-in capital of AED 150,000 (300,000 in Dubai)
o
o
o
Public Shareholding Company – minimum capital of AED 10MM with freely traded
shares. Securities regulated by the Emirates Securities and Commodities Authority.
Private Shareholding Company – minimum capital of AED 2MM for at least three
shareholders and liability limited to value of shares.
Freezone Company – Freezone companies are generally not allowed to operate outside
of their respective freezones.
No corporate income taxation.
Businesses engaged in certain types of activities may subject to additional
restrictions, especially licensing requirements of each emirate, such as
Representative office license; Trade license; Industry license; Service license;
Professional license; Construction license.
Major laws impacting business:
o Banking
Foreign banks may have no more than 8 branches in the UAE.
Every bank must be registered with the Central Bank.
o Intellectual Property
UAE is a member of GATT thus all patents, copyrights, and trademarks from
other GATT countries are given reciprocity.
Patents are for 20 years and must be used within 4 years of filing.
Trademarks are for 10 years with unlimited renewals; no injunctions are
available but civil and criminal action are both available.
Copyright protection is 50 years after the death of the author with criminal
penalties for infringement and seizure of violating goods.
o Securities
Publicly traded companies are (lightly) regulated by the Emirates Securities and
Commodities Authority, as most securities are also registered and must abide by
securities regulations elsewhere.
o Real Estate
Foreign property ownership determined by and differs from one emirate to
another. Foreign property ownership only allowed starting in RAK then Dubai.
Other emirates followed, though there are differences in whether leasehold or
freehold is allowed.
Chapter 52 – International Law:
The force and authority of a government in any given territory is fundamental to sovereignty.
In a functioning state, the right to make and enforce law is not contested or in doubt. But in the
international arena, there is no sovereign lawgiver and law enforcer.
There is still no forum (court or tribunal) that is universally accepted as a place to try to punish dictators
or military-run governments. The International Criminal Court has wide support and has prosecuted
several individuals for crimes.
International law is no myth, as there are enforceable treaties and laws that most nations abide by, even
as they are free to defect from these treaties.
International law can be gauged from:
Treaties and conventions,
Decisions of courts in various countries,
Decisions of regional courts, such as the European Court of Justice,
The World Trade Organization (WTO),
Resolutions of the United Nations (UN), and,
Decisions by regional trade organizations such as the North American Free Trade Agreement
(NAFTA).
These sources are different from national sources of law, either because:
They involve parties from different nations, or because,
The rule makers or decision makers affect entities beyond their own borders.
International disputes include:
Arguments between nations,
Arguments between individuals or companies from different nations, and,
Disputes between individuals or companies and a foreign nation-state.
Article 38(1) of the Statute of the International Court of Justice (ICJ) lists four sources of international
law:
Treaties and conventions,
Custom,
General principles of law, and,
Judicial decisions and teachings.
The ICJ only hears lawsuits between nation-states. Its jurisdiction is not compulsory, so both nations in
a dispute must agree to have the ICJ hear the dispute.
Treaties and Conventions:
A country would be within its rights as a sovereign to withdraw from treaties and conventions,
since it owes allegiance to no global or international sovereign.
Why would nations then stay in treaties and conventions? Nations will give away part of their
sovereignty if they think it is in their best interest to do so.
A treaty is nothing more than an agreement between two sovereign nations.
In international law, a nation is usually called a state or nation-state.
Conventions are treaties on matters of common concern, usually negotiated on a regional or
global basis, sponsored by an international organization, and open to adoption by many
nations. Ex: The UN Charter, signed on by 192 nation states as of 2011.
The most basic kind of treaty is an agreement between two nation-states on matters of trade
and friendly relations. Treaties on friendship, commerce and navigation (FCN treaties) and fairly
common and provide for mutual respect for each nation’s citizens in: Rights of entry, Practice of
professions, Right of navigation, Acquisition of property, Matters of expropriation or
nationalization, Access to courts, and, Protection of patent rights.
Bilateral investment treaties (BITs) are similar but more focused on commerce and investment.
Nation states also tend to enter into peace treaties or weapons limitations treaties.
Treaties are only binding as long as each party continues to recognize their binding effect.
In the US, the procedure for ratifying a treaty is that the Senate must approve it by two-thirds
vote. Once ratified, a treaty has the same force of law within the US as any statute the Congress
may pass.
Custom:
Custom between nations is another source of international law. It is practice followed by two or
more nations in the course of dealing with each other.
These practices can be found in diplomatic correspondence, policy statements, or official
government statements.
To become custom, a consistent and recurring practice must go on over a significant period of
time, and nations must recognize that the practice or custom is binding and must follow it
because of legal obligation and not mere courtesy.
Customs may become codified in treaties.
General Principles of Law, or Customary International Law:
Even without treaties, there would be some international law, since not all disputes are confined
to the territory of one nation-state.
Forum selection clauses exist in national or international contracts and specify the parties’
agreement as to the court where any disputes between the parties will be settled.
If this principle is followed by enough national court systems, it could become a principle of
customary international law.
Customary international law are rules of law derived from the consistent conduct of nationstates acting out of the belief that the law required them to act that way.
Judicial Decisions in International Tribunals and Scholarly Teachings:
The Statute of the ICJ recognizes that international tribunals may also refer to the teachings of
prominent scholars on international law.
International tribunals are generally not bound by stare decisis – they may decide each case on
its merits. However, courts such as ICJ do refer to their own past decisions for guidance.
There are many international tribunals, including the European Court of Justice, the International
Court of Justice, and the International Criminal Court.
There is no international civil court, and much complexity in international law derives from the
fact that national court systems must often choose from different sources of law, using different
legal traditions to resolve international disputes.
IRAC Practice Questions:
Practice Question 1:
Milton enters into a contract with Cara to purchase a private jet. The jet is valued at $7 million dollars
in the contract. The terms of the contract state that Cara warrants that the aircraft meets all federal
aviation standards. Two months after the sale of the aircraft, Milton learns that the inspections records
and mechanical function tests prescribed by the Federal Aviation Administration have been falsified.
Milton is exploring his options for suing Cara in state and federal court. Cara is from Florida and Milton
is from Mississippi. What subject-matter jurisdiction considerations exist for bringing an action against
Cara in state or federal court?
Issue: Which courts have subject matter jurisdiction over the case between Milton and Cara?
Rule: Federal courts have subject matter jurisdiction over cases with federal questions and diversity suits.
A case with a federal question is one that is based on issues related to federal law. Diversity suits can be
heard in a federal court when the case involves parties from different states and the amount in
controversy is greater than or equal to $75,000.
State courts have subject matter jurisdiction when a citizen of the state is involved, when a civil dispute
arises that involves a state law, or when an act violates a state criminal law and is committed within the
state.
Application: Cara is from Florida and Milton is from Mississippi. The amount in controversy involved is $7
million. Federal Aviation Standards were claimed to be met but were not, and in fact, were falsified.
Meeting Federal Aviation Standards was a requirement in the contract. Hence, the falsification of the
Federal Aviation Standards is the subject of the lawsuit.
In terms of the federal court subject matter jurisdiction possibility, the falsification of data issue is a
federal issue, as it involves a federal law. Moreover, even if it is simply a contractual dispute, since Milton
and Cara are from different states, and the amount in controversy is greater than $75,000, then there is
a diversity suit possibility.
In terms of the state court subject matter jurisdiction possibility, Cara is a citizen of the state of Florida,
and Milton is a citizen of the state of Mississippi, and they are both involved in the case. Moreover, there
is a requirement in the contract that was breached, and thus, contract disputes are state law matters.
Conclusion: Federal courts as well as the state courts of Florida and Mississippi have subject matter
jurisdiction over the case.
Practice Question 2:
Lilly is from Texas. While in Arizona, she gets into a physical altercation with Mitchel. She is the
aggressor and injures Mitchel very badly. Lilly leaves Arizona and returns to Texas. Mitchel seeks to sue
her in civil court to recover damages for the injuries he suffered. What are the grounds for the Arizona
court exercising subject-matter jurisdiction over the civil law action?
Issue: Does the Arizona court have subject matter jurisdiction over civil law action?
Rule: A state court has subject matter jurisdiction over a civil case if the civil dispute involves a state law
or a citizen of the state is a party to a civil action.
Application: Lily is from Texas and Mitchel is from Arizona. The physical altercation took place in Arizona.
Lilly is no longer in Arizona, but Mitchel intends to sue her in civil court in Arizona. Hence, there is a civil
case involved.
For the civil case, the physical altercation violates Arizona’s laws and Mitchel is a citizen of Arizona.
Conclusion: the Arizona court has subject matter jurisdiction over the civil case.
Practice Question 3:
Clarence lives in California. While he was visiting South Carolina, he was driving while intoxicated and
crashed his vehicle. The wreck injured a bystander, Devon. Clarence, afraid that he would be arrested,
quickly fled the scene of the accident. The next day he returned to California. What are the personal
jurisdiction issues if Devon wishes to sue Clarence?
Issue: Which court(s) has personal jurisdiction over Clarence in the civil case?
Rule: Establishing personal jurisdiction in civil cases requires that the court serve the defendant with a
summons. Service of process must take place when the defendant is physically present in the state. The
long arm statute allows service of process on a defendant who is physically located out of the state if he
/ she has minimum contact with the state – i.e. is a resident of the state, owns property subject to the
controversy in the state, or committed the controversial activity in the state.
Application: Clarence is a resident of California. He drove while intoxicated in South Carolina, crashing his
vehicle and injuring Devon. The next day, he fled the scene of the accident and returned to California.
Since Clarence is a resident of California, then he has minimum contact with California. Since he is also
currently in California, service of process can occur from a court in California while he is within the state.
Since Clarence has left South Carolina, no service of process can be done except through the long arm
statute, which will require establishing minimum contact. Clarence has committed the controversial
activity – driving while under the influence – in South Carolina. This likely translates into a situation in
which minimum contact is established despite the lack of presence in South Carolina, and likely allows
service of process on Clarence by a court in South Carolina through the long arm statute if Clarence visits
South Carolina regularly.
Conclusion: A court in California has personal jurisdiction over Clarence in the civil case as he is currently
within the state. A court in South Carolina also has personal jurisdiction over Clarence through the long
arm statute, as minimum contact can likely be established.
Practice Question 4:
Mr. and Mrs. Robinson have a contractual agreement with Seaway Volkswagen with a provision that
says “all disputes arising between buyer and Seaway Volkswagen will be litigated, if at all, in the county
courts of Westchester County, New York.” In the event of a defective product dispute related to an
accident that occurred in Oklahoma, will an Oklahoma court take personal jurisdiction over Seaway
Volkswagen, or will it require the Robinsons to litigate their claim in New York?
Issue: Which court has personal jurisdiction over Seaway Volkswagen in the presence of the choice of
forum contractual clause?
Rule: For civil cases, a court has personal jurisdiction over the defendant when it serves the defendant
with a summons. Service of process should take place when the defendant is physically present within the
state. The exception to this is the long arm statute, which allows service of process on defendants who
are outside the state if the defendant has sufficient contact with the state. A business has minimum
contacts if it is organized or registered in the state or carries out business regularly in the state.
In the presence of choice of forum clauses, courts will typically honor the contractual choices of the parties
in the lawsuit. Personal jurisdiction in that case can be established by consent.
Application: In the absence of this clause, the Oklahoma court will have personal jurisdiction over Seaway
Volkswagen because, even though the company is registered out of the state, it carries out business
regularly in the state of Oklahoma – as it sells its cars in that state. As a result, it meets the minimum
contacts test.
However, due to the existence of the choice of forum clause, which names county courts of New York as
the court to have jurisdiction over the case, a court in Oklahoma will typically honor the clause, hence
requiring the plaintiffs to litigate in New York. The court will have personal jurisdiction over Seaway
Volkswagen because it consented to it by signing the contract.
Conclusion: County courts of Westchester County, New York will have personal jurisdiction over Seaway
Volkswagen due to the choice of forum clause.
