Key Features of Common Law or Civil Law Systems
Under Sources of Law we explained that some countries will apply greater weight to certain sources of law than others, and that some will put more emphasis on judicial decisions than others.
There are two main types of legal system in the world, with most countries adopting features from one or other into their own legal systems, Common Law and Civil law.
For an inexhaustive list of the countries with common law and civil law systems, go to the Legal Systems of the World on Wikipedia
This section looks at key features of each system and highlights areas which of particular relevance to PPP projects:
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Common Law System Civil Law System
Summary of Differences between Civil law and Common law legal systems
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Civil Law Systems - Key Administrative Jurisprudence that can impact PPP arrangements ? ?
Other Civil Law rules that can impact PPP arrangements Concept of \
Common Law System
Countries following a common law system are typically those that were former British colonies or protectorates, including the United States. Features of a common law system include:
? There is not always a written constitution or codified laws;
? Judicial decisions are binding – decisions of the highest court can generally only be
overturned by that same court or through legislation;
? Extensive freedom of contract - few provisions are implied into the contract by law
(although provisions seeking to protect private consumers may be implied);
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Generally, everything is permitted that is not expressly prohibited by law.
A common law system is less prescriptive than a civil law system. A government may therefore wish to enshrine protections of its citizens in specific legislation related to the infrastructure program being contemplated. For example, it may wish to prohibit the service provider from cutting off the water or electricity supply of bad payers or may require that documents related to the transaction be discolsed under a freedom of information act. There may also be legal requirements to imply into a contract inequal bargaining provisions where one party is in a much stronger bargaining position than the other. Please see Legislation and Regulation for more on this.
There are few provisions implied into a contract under the common law system – it is therefore important to set out ALL the terms governing the relationship between the parties to a contract in the contract itself. This will often result in a contract being longer than one in a civil law country.
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Civil Law System
Countries following a civil law system are typically those that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central and South America. Most of the Central and Eastern European and East Asian countries also follow a civil law structure.
The civil law system is a codified system of law. It takes its origins from Roman law. Features of a civil law system include:
There is generally a written constitution based on specific codes (e.g., civil code, codes covering corporate law, administrative law, tax law and constitutional law) enshrining basic rights and duties; administrative law is however usually less codified and administrative court judges tend to behave more like common law judges;
Only legislative enactments are considered binding for all. There is little scope for judge-made law in civil, criminal and commercial courts, although in practice judges tend to follow previous judicial decisions; consitutional and administrative courts can nullify laws and regulations and their decisions in such cases are binding for all.
In some civil law systems, e.g., Germany, writings of legal scholars have significant influence on the courts;
Courts specific to the underlying codes – there are therefore usually separate constitutional court, administrative court and civil court systems that opine on consistency of legislation and administrative acts with and interpret that specific code; Less freedom of contract - many provisions are implied into a contract by law and parties cannot contract out of certain provisions.
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A civil law system is generally more prescriptive than a common law system. However, a government will still need to consider whether specific legislation is required to either limit the scope of a certain restriction to allow a successful infrastructure project, or may require specific legislation for a sector. Please go to Legislation and Regulation and ―Organizing Government to think PPP‖ sections for more information on this.
There are a number of provisions implied into a contract under the civil law system – less importance is generally placed on setting out ALL the terms governing the relationship between the parties to a contract in the contract itself as inadequacies or ambiguities can be remedied or resolved by operation of law. This will often result in a contract being shorter than one in a common law country.
It is also important to note in the area of infrastructure that certain forms of infrastructure projects are referred to by well-defined legal concepts in civil law jurisdictions. Concessions and Affermage have a definite technical meaning and structure to them that may not be understood or applied in a common law country. Care should be taken, therefore, in applying these terms loosely. This is further considered under Agreements.
Summary of Differences between Civil law and Common law legal systems
Set out below are a few key differences between common law and civil law jurisdictions.
Feature Common Law Civil Law Always
Not binding on 3rd
parties; however, administrative and constitutional court decisions on laws and regulations binding on all
Significant influence in some civil law jurisdictions
Written constitution Not always Judicial decisions
Binding
Writings of legal scholars
Little influence
Freedom of contract Extensive – only a few More limited – a number of
provisions implied by provisions implied by law into