International arbitration: substantive, procedural and mandatory rules
Procedural law provides the process that a case will go through (whether it goes to trial or not). The procedural law determines how a proceeding concerning the. criticism because procedural law is inherently substantive. . procedure relationship-is the premise and aspiration that refined, PAUL MALLOY, LAW AND THE MARKET ECONOMY: REINTERPRETING THE VALUES OF. This guide will focus on the difference and relationship between procedural, substantive and mandatory laws. Procedural law. The procedural law of the.
Definition of Substantive Law Substantive law is used to mean the written law that states the rights, duties and liabilities of the citizens and collective bodies. It is the system of rules that regulate the behaviour of the citizens of the country. It is generally codified in statutes but can also be found in common law. Substantive law is concerned with the substance of the case. It either helps in suing someone or defending a person from legal proceedings.
It is that part of the legal system which differentiates between right and wrong conduct and personifies the idea that committing the crime will lead to penalty or punishment or both as the case may be to the wrongdoer. Key Differences Between Procedural Law and Substantive Law The fundamental differences between procedural law and substantive law, are discussed in the points given below: By procedural law, we mean the law that prescribes the methods, procedure and machinery for the enforcement of rights and obligations.
On the other extreme, substantive law alludes to the law that deals with the subject matter of the case and states the rights and obligations of the parties concerned.
While procedural law determines the manner in which the case is filed or appeal is made, the substantive law regulates the conduct of the individual or government agency. The procedural law creates the mechanism for the enforcement of the law. Unlike substantive law, which states the rights and obligations of the citizens. The procedural law applies to both legal and non-legal matters. Conversely, the substantive law cannot be applied to non-legal matters.
The statutory law regulates the procedural law, whereas substantive law is governed by the act of parliament. Civil System The Civil System Courts have interpreted the content of the duty of good faith to include: English cases have concluded that a lack of good faith involves bad faith.
Good faith has a core meaning of honesty. Not all bad faith involves dishonesty, and bad faith conduct could include behaviour which is seen as commercially unacceptable improper and unconscionable but not actually dishonest.
In David Securities Pty Ltd v Commonwealth Bank of Australia11 the High Court held that the question of whether monies were paid under mistake of fact or of law, should be returned to a payer, is not to be determined by reference to whether the recipient has been unjustly enriched at the expense of the other party.
Unjust enrichment is not a definitive legal principle which can be taken as sufficient premise for direct application in particular payment cases.
Where the factor is present, there is a prima facie liability on the recipient to make restitution. To displace the prima facie liability, the recipient must point to circumstances which the law recognises would make an order for restitution unjust. For example, the recipient of monies paid under a mistake is entitled to a raise by way of answer, any matter or circumstances which shows that his or her receipt or retention of the payment was or is not unjust.
English and German scholars have written on the defence at change of position as it is understood by English law. In Australia in David Securities Pty Ltd v Commonwealth Bank of Australia, 13 the defence of change of position has not been expressly accepted in Australia, but the Court accepted that if payments made under a mistake were prima facie recoverable, a 11 CLR at 12 See also Bofinger v Kingsway Group Ltd CLR at 86 13 CLR at 9 defence of change of position is necessary to ensure that enrichment of the recipient is prevented only in circumstances where it would be unjust.
German law does not have one discrete law of unjust enrichment by which restitution is provided, which the English Courts require.4 Substantive Law v. Procedural Law - Introductory Course to Law
In contractual dealings, under the BGB restitution provisions are contained in the law of obligations; property; family and succession and in other places. However, the important aspect of the concept is contained in art 1 of the BGB, The condictio could be used whenever a specific sum of money or a chattel had to be handed over to the plaintiff, regardless of the source of the obligation to do so.
The provision is the first requirement under English law that the recipient benefits at the expense of the other, Goff and Jones16 said that the principle of unjust enrichment, presupposes three things: English law does not contain the essential requirement that the transfer of a benefit be without legal ground. This duty also exists if the legal grounds later lapse or if the result intended to be achieved by those efforts in accordance with the contents of the legal transaction does not occur.
In German law any transfer of wealth which occurs without legal reasons can be recovered. The action is available as long as the person conferring the benefit did not know that he or she was not bound to do so. The person who buys a car with the money received, and the car is of equal value, there is no loss of enrichment. If the value of the car is less, the purchaser is no longer enriched to the same extent and does not have to pay back all of the money. What unjust means in this context, was provided by the decision of the House of Lords in Lipkin Gorman a firm re Carpmale Ltd20 in which the defendants changed their position following the receipt of money in circumstances such as mistake was accepted to a defence for a claim for restitution.
Because the casino had not given valuable consideration to the firm for the cheque, there was prima facie an entitlement in the firm for restitution. Under the change of position defence, there was no difficulty, however the casino claimed it acted in good faith and it would be unjust and unfair to order restitution, that is one of a change of position defence.
General concept of Substantive law and Procedural law - Assignment Point
Lord Goff concluded that English law ought to recognise such a defence. The Statement of Claim shall contain: Section Content of the written pleadings The preparatory written pleadings should provide: The designation of the parties and their legal representatives by name, status or business, place of residence and position as a party; the designation of the court and of the subject matter of the litigation; the number of annexes; 2.
The petitions that the party intends to file with the court at the session; 3. Information on the factual circumstances serving as grounds for the petitions; 4. The declarations regarding the facts alleged by the opponent; 5.
The designation of the evidence that the party intends to submit as proof of any facts alleged, or by way of rebutting allegations, as well as a declaration regarding the evidence designated by the opponent; 6.
Difference Between Procedural Law and Substantive Law
The signature of the person responsible for the written pleading; if it is transmitted by telefax telecopierthe signature shall be shown in the copy. Section 1 The parties are to attach to the written pleadings they are submitting to the court the number of copies of the written pleadings and their annexes that are required for service of same. This shall not apply to any documents transmitted electronically, nor shall it apply to annexes that are available to the opponent in their original versions or as copies.
Designate the record or document; 2. Designate the facts the record or document is intended to prove; 3.
Designate, as completely as possible, the contents of the record or document; 4. Cite the circumstances based on which it is being alleged that the opponent has possession of the record or document; 5. Designate the grounds based on which the obligation results to produce the record or document. These grounds must be demonstrated to the satisfaction of the court. Issuing of subpoena cf SCR Part 37, rule 2 1 The court may, in any proceeding, by subpoena order the addressee: German Civil Law Procedure about production of documents Section Inspection of records or documents 1 Wherever a party is asked to do so in due time, it is under obligation to deposit with the court registry any records of documents that it has at hand and that it has referred to in a preparatory written pleading; it shall be obligated to do so prior to the hearing for oral argument, and to inform the opponent that it has so deposited them.
Upon corresponding application being made, the presiding judge may extend or shorten this period. In assessing whether a legitimate forensic purpose exists in relation to documents sought on an early return of subpoena, it must be borne in mind that the necessity for having a document to fairly dispose of the issues at trial might well not become apparent before trial.
It may, for example, become apparent when a document is used in cross-examination to refute unforeseen evidence-in-chief. At least one object of the rule permitting early return of subpoenas is to appraise the parties of the strengths and weaknesses of their case at an early stage. Hence, no narrow view as to the legitimate purposes of a subpoena ought to be taken;34 3. There is no requirement that to avoid the stigma of fishing, a party must already by [sic] in possession of some evidence before issuing a subpoena.
Assignment Point - Solution for Best Assignment Paper
Historically the concept of fishing was not concerned with the prior possession of evidence, but rather the prior pleading of issues of which the evidence sought would be relevant. Discovery as such is virtually unknown in a civil system and is only ordered for documents, in very limited circumstances. The shortcomings of the civil system approach were demonstrated in the arbitration, when production of any documents by the respondent was rejected by the arbitrators when: