English_for_Lawyers_2011

Unit 5. Environmental Law. Section 2. International Environmental Law

−treaties on liability for nuclear damage and the protection of workers;

−agreements on atmospheric nuclear testing;

−the use and proliferation of nuclear weapons;

−border area co-operation;

−co-operation on nuclear safety and research;

−the protection of nuclear material;

−disposal of radioactive waste;

−nuclear free zones;

−an international Convention on Nuclear Safety.

IV. WRITING

Prepare a report on the topics:

−Liability of States for environmental damage

−Nuclear Energy and the Environment

−Types of pollution and their Hazardous Consequences

(see – the recommended literature: 1) Patricia W. Bernie and Alan E. Boyle. International Law and Environment. Clarendon Press Oxford. – 1994. – P. 251-290, 345-385; 2) Philippe Sand. Principles of international environmental law I. Frameworks, standards and implemental: p. 243–340, 629–680)

V. OVER TO YOU

Extend your knowledge on the topic and do the assignments.

Under the 1992 Transboundary Watercourses Convention the “environment” includes “human health and safety, flora, fauna, soil, air, water, climate, landscape and historical monuments or other physical structures or the interaction among these factors”. Among the harmful activities are those which result in discharges “into water courses, lakes or the sea, and the use of land, the sea bed, buildings or installations”. The key constitutional moments in the development of international environmental law are related with its historical periods required:

−limitations on the exploitation of certain natural resources (flora and fauna) and the adoption of appropriate legal instruments;

−the creation of a range of international organizations with competence to address particular sources of pollution such as oil pollution, nuclear testing, wetlands, the marine environment and its living resources, the quality of freshwaters, and the dumping of waste at sea;

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Part V. Private Law

−a system for co-ordinating responses to international environmental issues, regional and global conventions were adopted, and for the first time the production, consumption and international trade in certain products was banned at the global level;

−the development of principles and rules of international environmental law through treaties, other international acts and custom, and their integration into all activities.

Hazardous substances and activities are regulated by principles and rules of general application to all such substances or activities. Hazardous substances and activities are defined by reference to their inherent characteristics, including their toxicity, flammability, explosiveness and oxidization. The measures protecting the atmosphere from pollution can be found in the new procedural obligations recognizing the responsibility of industrialized nations and the establishment of financial arrangements in the law.

Actors of international environmental law are imposed liability for their illegal acts, or for the adverse consequences of their lawful activities. Liability rules at the domestic or international level serve a variety of purposes. They may be a form of economic instrument which provides an incentive to encourage compliance with environmental obligations. They can also be used to impose penalties for wrongful conduct, or to require corrective measures to restore a given environmental asset to its pre-damage condition. Finally, they may provide a technique for internalising environmental and other social costs into production process and other activities in implementation of polluter-pays principle.

International environmental lawyers often receive specialized training in the form of an LL.M. degree after having a first law degree – often in another country from where they got their first law degree.

Assignments

1.State briefly the main function of the text.

2.Explain why it is important for you to know the harmful activities.

3.Name the constitutional moments in the development of international environmental law.

4.Mention why it is important to protect the atmosphere from hazardous substances and activities.

5.Give your arguments for or against providing for liability on the actors of international environmental law.

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PART VI. Civil Justice

Unit 1. Civil Procedure

Section 1. Civil Procedure Law

I. LEAD-IN

1.Think of what you know on the subject of this section considering the following questions and discuss them using the given prompts:

−What is a civil case? Can you think of several key distinctions between criminal and civil cases (think about: the parties, the outcomes and the procedures)? Use the words and phrases given below.

(civil suit, dispute, private individuals, duty, agreement, a breach of, government, to bring a criminal/civil action against, to violate, to commit a crime, to resolve a dispute, to punish, to determine legal rights, to award damages, a party, to direct, to perform a specific act, to refrain from, to prosecute, to sue, to be litigated against)

−T he English courts are divided into courts of criminal and civil jurisdiction. Could you name the courts exercising civil jurisdiction? Is there similar situation in the USA and Ukraine?

−What legal issues are governed by Civil Procedure Rules in Ukraine? There are some prompts below, continue the list:

jurisdiction, apprehension, rights and duties of the participants of civil proceeding, legal representation of parties, charging, conduct of a trial, costs, execution of judgment

2.Match the words with the respective phonetic scripts and practice their reading:

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Unit 1. Civil Procedure. Section 1. Civil Procedure Law

Read the text to search for new information on civil procedure law in Anglo-American legal system:

TEXT 1

Notes:

1 procedural law – процесуальне право

2 substantive law – матеріальне право

3 in personam jurisdiction – особиста підсудність

4 in rem jurisdiction – предметна підсудність

5 full faith and credit – визнання та довіра (пункт ст. 4 Розділу 1 Конституції

США, що передбачає визнання законів та судових рішень одного штату в

будь-якому іншому штаті)

CIVIL PROCEDURE LAW

Procedural law1, commonly contrasted with substantive law2, is the body of rules governing the court proceedings and the methods of enforcing rights and providing redress of wrongs. Civil procedure involves the principles surrounding the resolution of civil disputes in the courts and the various tools available to the lawyer who must defend or bring a lawsuit. It comprises rules related to jurisdiction, pleading, evidence, appeal and execution of judgments, representation, costs and other matters. So the purpose of the civil procedure rules is to provide just and effective means by which persons can resolve their disputes.

The Anglo-American judicial system is based on the adversary model that influences the development of particular procedures. As a passive adjudicator of disputes, courts do nothing, neither initiate nor encourage litigation, until one of the parties has called on it through appropriate procedures. The parties control and shape the litigation while the judge sits solely to rule on disputed questions, as presented by the parties, and to apply sanctions properly requested by a party. Issues that have not been raised and objections that have not been made are commonly waived. The case moves forward only in the response to the demands of the parties and the litigants bear the ultimate responsibility for the case.

Procedural rules create the process that is used to decide the merits of a dispute. At the beginning of the process, these rules explain what a plaintiff must do to start a lawsuit and how a legal claim against a defendant can be asserted. Defendants are similarly told how to raise defences and claims

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once they have been notifi ed of suit. Procedural rules determine what documents must be prepared, what each of them must contain, and how they should be presented to the court and the defendant. Once the lawsuit has been initiated, procedures govern how the parties discover relevant information and evidence, especially when it is in the possession of one's opponent. Rules also govern the conduct of a trial, enforcement procedures, the conduct of appeals, and the imposition of sanctions on rule violators.

There are several procedural stages but before other issues first of all questions about jurisdiction should be resolved that means to choose a court, which has the authority to determine the merits of a dispute and to grant relief. A court has jurisdiction when it has this power both over the subject-matter of the case and over the persons of the plaintiff and defendant or the property that is in dispute. The main types of jurisdiction are: in personam jurisdiction3 which permits a court to enter a judgment that is personally binding on the defendant (the court has power over the person, therefore judgment will have full faith and credit5 in all other states and can be easily enforced) and in rem jurisdiction4 which permits a court to adjudicate the rights of all claimants to a specific piece of property (the court has jurisdiction over property of the other party, thus a judgment can be entered effecting that property and be binding against the defendant even if the defendant is not in the jurisdiction of the court).

II.COMPREHENSION

1.Scan the text to find legal terms which correspond to the following explanations:

−the party who files a lawsuit

−paperwork and legal documents filed with a court to initiate and respond to a lawsuit

−the party against whom a lawsuit is filed

−parties to a civil dispute

2.Answer the following questions using the information from the text:

1. Do you think it is important for law students to study Civil Procedure? Explain your viewpoint.

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Unit 1. Civil Procedure. Section 1. Civil Procedure Law

2.What is the main objective of the civil procedure rules?

3.What features of the procedure are caused by the adversary nature of the legal proceedings in Anglo-American judicial system?

4.What legal issues are governed by procedural rules on different stages of litigation?

5.What are the main types of civil jurisdiction?

3.Complete the following sentences according to the information from the text:

1.Procedural law is …

2.Civil procedure governs …

3.At the beginning of the process the civil procedure rules explain …

4.If the lawsuit has been initiated, procedures govern …

5.Next stages also governed by the rules are …

6.In personam jurisdiction means that …

7.In rem jurisdiction means that …

4.Explain the following terms and expressions in your own words:

1.procedural law

2.civil dispute

3.litigation

4.jurisdiction

5.plaintiff

6.defendant

III. VOCABULARY STUDY

1.Write out of the text all word combinations with the following words. Translate them and use some of them in your own sentences:

right(s), lawsuit, dispute(s), procedure, litigation, claim(s), defence(s), relief, judgment.

2. Who or what do the pronouns in bold type refer to?

It prescribes the means of enforcing rights and providing redress of wrongs.

It is brought by the injured party.

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It governs the court proceedings and the methods of enforcing rights. They bear the ultimate responsibility for a case.

It permits a court to enter a judgment that is personally binding on the defendant.

3.Complete the sentences with the words/phrases of the active vocabulary. If necessary refer to the text:

1.Civil procedure consists of the principles governing the resolution

of ….

2.The judicial system in the USA is based on the …

3.Being a passive …, courts wait until an injured person has called on it through appropriate … .

4.The process created by procedural rules is used to decide … .

5.If a court has jurisdiction it has the power both over the … of the case and over the parties to the …, or the disputable … .

6.… means that the court has jurisdiction over the property (real or personal) of the other party.

7.… means that the court has power over the person.

4.Write the words/phrases associated with the given concepts:

− Civil procedures: …. − Plaintiff: ….

− Defendant: … − Jurisdiction: …

− Adversary process: …

5.Give the English equivalents for the following word combinations:

відшкодування збитків; цивільний спір; змагальний процес; за-

перечення; позивач; сторона в спорі; сторона, що заявляє вимоги; процесуальна стадія; позов; особиста підсудність; виносити судове рішення; дослідження доказів у справі; попереднє провадження у справі; предметна підсудність; сутність (обставини) справи; відповідач; змагальні папери; судочинство (судові процедури).

6. Translate the following text using the active vocabulary instead of the underlined lexical units:

Цивільний процес охоплює широке коло питань, котрі розглядаються в наступній послідовності:

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Unit 1. Civil Procedure. Section 1. Civil Procedure Law

1)юрисдикція;

2)територіальна підсудність;

3)досудове слухання у справі;

4)сторони;

5)дослідження доказів у справі;

6)суд;

7)післясудове провадження.

Особиста підсудність дозволяє суду винести рішення, що має обов’язкову силу особисто для відповідача, або таке, що дозволяє виконати чи утриматися від виконання певної дії (засіб судового захисту за правом справедливості або судова заборона), або таке, яке встановлює, що позивач може отримати з відповідача певну суму в якості компенсації шкоди (засіб судового захисту за загальним правом).

Предметна підсудність дозволяє суду винести рішення стосовно прав усіх сторін, що заявляють вимоги стосовно конкретної частини власності.

IV. GRAMMAR FOCUS

1.Point out sentences with Participles II in the text, explain the usage and translate them.

2.Find sentences with Passive Voice and propose the best translation.

V. SPEAKING

1.Read the text and explain the differences and peculiarities of the civil trial procedures in the legal systems mentioned in the text. Speak on the relative advantages and disadvantages and suggest one change you would make to each system. Write notes in the boxes:

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PART VI. Civil Justice

It is sometimes said that the common law trial procedure especially that of the USA is adversarial, while in the continental law legal system trial procedure in civil cases is inquisitorial. This means that, in the common law, a lawsuit is essentially the concern of the adversaries, that is, the parties and their lawyers. It is the lawyers who present the evidence, and, unless a procedural problem arises, the judge simply listens to the presentation. By contrast, in the civil law there is a greater emphasis on the judge as a guarantor of a just outcome of the case, regardless of the lawyers' abilities. To this end he often functions as an inquisitor, questioning the parties as to the factual matters of the case. In some countries, such as Germany, the judge is required to guide the proceedings

— for instance, by suggesting to the parties that they direct their attention to a particular point of fact or law.

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