14. Civil procedure in the usa

Civil procedure in the United States has three distinctive features.

First, it follows an adversarial model of dispute resolution. Parties initiate and propel litigation in this model, and the judge, historically and at least in theory, plays the relatively passive role of umpire. The burden is on the parties to present their grievances and defences. Unlike in so-called inquisitorial models of dispute resolution, the judge rarely makes independent inquiries.

Second, civil procedure in the United States is dominated by positive law: codified rules enacted by legislatures or their delegates. In contrast, the substantive rules of decision taught in the other traditional first year courses are more often doctrinal: declared by courts as part of the common law.

Finally, the purpose of civil procedure is, as the Federal Rules of Civil Procedure state, “to secure the just, speedy, and inexpensive determination of every action and proceeding”.

Presumably, decisions are more likely to be just when they reach the merits. But the adversarial character of civil dispute resolution in the United States, have made the goals of “speedy and inexpensive” determinations increasingly difficult to attain. As a result, there is constant pressure for more active judicial management of litigation and for judicial intervention to dispose of the litigation without trial, if possible.

15. What is international law

In its widest sense, international law can include public international law, private international law and, more recently, supranational law.

In its narrowest meaning, the term international law is used to refer to what is commonly known as public international law. Private international law is sometimes referred to as conflict of laws.

Public international law is the body of rules, laws or legal principles that govern the rights and duties of nation states in relation to each other.

Private international law refers to the body of rights and duties of private individuals and business entities of different states. It is concerned with two main questions: 1) the jurisdiction in which a case may be heard, and 2) which laws from which jurisdiction(s) apply. It is distinguished from public international law because it governs conflicts between private individuals or business entities, rather than conflicts between states or other international bodies.

Supranational law, or the law of supranational organizations, refers to regional agreements where the laws of a nation state are not applicable if in conflict with a supranational legal framework.

16. Sources of international law

Customary law and conventional law are primary sources of international law.

Customary international law results when states follow certain practices generally and consistently out of a sense of legal obligation. Agreements may be made in respect to any matter except to the extent that the agreement conflicts with the rules of international law incorporating basic standards of international conduct or the obligations of a member state under the Charter of the United Nations. Customary law and law made by international agreement have equal authority as international law.

General principles common to systems of national law is a secondary source of international law. There are situations where neither conventional nor customary international law can be applicable. In this case a general principle may be invoked as a rule of international law because it is a general principle common to the major legal systems of the world and not inappropriate for international claims.