We described in the section on sources of law that some nations will give some sources of law more weight than others, and that some will place more importance on court rulings than others.
Common Law and Civil Law are the two primary categories of legal systems on the globe, and most nations adopt elements of one or both into their legal systems.
Go to the Legal Systems of the World page on Wikipedia for a partial list of nations with common law and civil law systems.
This section examines each system's key characteristics and identifies elements that are especially pertinent to PPP initiatives.
Common Law Framework
Common law nations, like the United States, are typically countries that were once British colonies or protectors.
A common law system has the following qualities:
l A written constitution or codified laws are not always present;
l Court rulings are final and conclusive; the highest court's judgments are often only reviewed by that court or by legislation;
l wide-ranging contract freedom - few legal clauses are incorporated into the agreement (however, clauses intended to protect individual consumers may be implied);
l In general, anything that is not specifically forbidden by law is allowed
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Comparatively speaking, common law is less prescriptive than civil law. Therefore, a government may choose to include provisions for citizen protection in certain laws about the infrastructure projects under consideration. For instance, it might want to make it illegal for the service provider to cut off the water or electricity to late payers, or it might want to make it mandatory for papers about the transaction to be made public via a freedom of information act. In cases where one party is in a substantially stronger bargaining position than the other, there may also be legal needs to imply equal bargaining terms in the contract. For further information on this, please read Legislation and Regulation.
The majority of the rules controlling the relationship between the parties to a contract must be specified in the contract itself because the common law system does not allow for many clauses to be inferred into a contract. This frequently leads to a contract being longer than one in a nation with civil law.
Civil Law Framework
Most of Central and South America, as well as those nations that were once protectorates or colonies of the French, Dutch, German, Spanish, or Portuguese, adhere to the civil law system. The majority of the nations in Central and Eastern Europe, as well as East Asia, adhere to civil law.
A codified system of law is the civil law system. It was inspired by Roman law. A civil law system has the following qualities:
The majority of countries have written constitutions that enshrine fundamental rights and obligations; these codes include the civil code, codes governing corporations, administrative law, tax law, and constitutional law; However, administrative law is typically less codified, and judges in administrative court tend to function more like judges in common law;
Only legislative acts are regarded as universally binding. Although judges generally follow earlier court rulings, there is little room for judges to create new laws in civil, criminal, and commercial courts. However, administrative and constitutional courts have the power to overturn laws and regulations, and their decisions in such cases are binding on all parties.
Writings of legal experts have a substantial impact on courts in several civil law systems, such as Germany;
Courts that are specifically focused on interpreting and determining the meaning of the underlying codes; often, these courts fall under separate constitutional court, an administrative court, and civil court systems;
Less freedom in contracting because many clauses are legally imposed and cannot be negotiated out of by the parties.
Common law systems tend to be less prescriptive than civil law systems. A government will still have to decide whether new legislation is needed to either narrow the scope of a certain restriction to enable a successful infrastructure project or may need specific laws for a sector. For additional information on this, please visit the pages on legislation and regulation and "Organizing Government to Think PPP."
Under the civil law system, several provisions are implied in a contract. As a result, it is generally considered less important to include all of the terms governing the relationship between the parties to a contract in the contract itself, because any gaps or ambiguities can be filled in or resolved through the legal process. This will frequently lead to a
It is also crucial to remember that in civil law jurisdictions, specific types of infrastructure projects are referred to be clearly defined legal terminology. The technical meaning and structure of concessions and affirm age may not be understood or used in a jurisdiction with common law. Therefore, it is important to use caution while using these terms in general. This is also taken into account under Agreements.
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