These doctrines prohibit or significantly restrict a target company and its subsidiaries from providing guarantees (upstream and downstream) or guarantees in connection with the acquisition of the target`s shares, which is particularly important for PPPs where the private sector participates in a public service (joint venture) and/or privatisations. Other civil law countries such as OHADA countries (Article 639 of the Uniform Law on Commercial Companies) and Algeria (Articles 715 to 60 of the Commercial Code) have similar concepts. Countries that follow a civil justice system are usually those that were former French, Dutch, German, Spanish or Portuguese colonies or protectorates, including much of Central and South America. Most countries in Central and Eastern Europe and East Asia also follow a civil law structure. But despite this great diversity, it is important to first emphasize the separation between religious and secular legal systems. Everyone has very different views on the law, in terms of source, scope, sanctions and function. The source of religious law is the Godhead, who makes the laws through the prophets. However, secular law is man-made. In a religious legal system, disputes are usually settled by an official of that religion, so that the same person is both judge and priest. In a secular system, on the other hand, the function of judge is distinct and is often reinforced by guarantees of judicial independence. In common law countries such as England and the United States, when a company is in financial difficulty, the focus is on restructuring rather than liquidation to continue the business as a business (e.g., U.S., Chapter 11, Administration of the United Kingdom). In civil jurisdictions, the process focuses on liquidation (although reform of some bankruptcy laws, such as France and OHADA countries, now allows debtors to be reorganized before they become insolvent). A common law system is less prescriptive than a civil law system.
A government may therefore wish to enshrine the protection of its citizens in specific laws related to the planned infrastructure program. For example, the service provider may want to prohibit it from interrupting the water or electricity supply to defaulting payers, or may require that records related to the transaction be disclosed under a freedom of information law. There may also be legal requirements to include equal negotiation provisions in a contract if one party is in a much stronger negotiating position than the other. For more information, see Acts and Regulations. For more information about legal systems, see this article from Florida State Law Review, this article from the University of Berkeley Law Review, and this article from the Louisiana State University Law Review. In some civil law systems, e.g. Germany, the writings of jurists have a considerable influence on the courts; A treaty that takes up a basic administrative principle and specifies exactly how it is to be applied will normally be effective. But the modification or deletion of an administrative principle may or may not be legally possible – this should be checked. For example, it may not be possible to completely eliminate the ability of a contracting authority to unilaterally change service standards.
In France, the law prohibits any attempt to suspend the contracting authority`s ability to unilaterally terminate a contract. Some civil codes also provide for mandatory notice periods in the event of breach of contract, which cannot be avoided or cancelled. The operator is protected in certain circumstances by the right to maintain the “financial equilibrium” of the contract. For example, if the contracting authority imposes a unilateral amendment, it must also adjust the financial terms of the agreement so that the operator is not placed in a worse situation (e.g. if the contracting authority requires higher service standards, it may also have to allow a higher tariff). Some doctrines that are part of the operator`s right to “financial equilibrium” in France, which have equivalents in other civil law countries, include: A civil law system is generally more prescriptive than customary law. However, a government has yet to determine whether specific legislation is needed to limit the scope of a particular restriction in order to enable the success of an infrastructure project, or whether specific legislation is needed for a sector. For more information, see Legislation and Regulation and Organizing Government to Think PPP.
There are hundreds of legal systems in the world. At the global level, international law is of great importance, whether through the practice of sovereign States or through agreement between them in the form of treaties and other agreements. Some transnational entities, such as the European Union, have created their own legal structures. At the national level, the United Nations has more than 180 sovereign States. Many of them are federal and their components may have their own additional laws. The civil law system is a codified legal system. It has its origins in Roman law. Features of a civil law system include: In most cases, the contractual relationship is a matter for private law and the courts dealing with these issues In the parliamentary system, the head of state differs from the head of government – called Prime Minister, Prime Minister (or in Germany Federal Chancellor). The head of state may be a hereditary monarch or a directly elected president. However, the Prime Minister is not elected directly by the voters, but is appointed from the majority or coalition faction in the Legislative Assembly. The prime minister and other ministers do not have a fixed mandate, but can in principle be forced to resign by a parliamentary vote of no confidence in the government.
This is usually compensated by the executive power to dissolve the legislature and call new elections (although there may be some protection against hasty or repeated dissolution). The Prime Minister and ministers dominate in two directions. First of all, although the powers of the head of state seem impressive on paper (summoning the legislative branch, enacting laws, granting pardons, etc.), in practice they are exercised under the direction of the government. Second, the executive branch controls the legislative calendar and generally has the exclusive power to introduce financial laws. All these people can own property and hold it for their own property (house, clothing, etc.) or as a business or investment (office buildings, factories, stocks, savings accounts). Only socialist systems have attempted to prevent this second function of property by forbidding individuals to own “the means of production.” The property in question may be tangible and is often referred to as immovable and movable (or, at common law, immovable and personal). Ownership can also be intangible, such as debts, copyrights and patents. If owners have full legal capacity, they can generally manage their property as they wish, subject to public policy rules (e.g. zoning by-laws). They can manage their assets during their lifetime or their will, although many systems ensure that a portion of the deceased`s assets go to close relatives. Today, there are only a few countries whose legal system is exclusively religious. On the other hand, a large number of countries have secular systems, and this characteristic can be integrated into their legal structure, as in the French and Russian constitutions of 1958 or the very first words of the First Amendment of the US Constitution: “Congress shall not adopt a law concerning a religious institution”.
A precedent, known as stare decisis, is a history of judicial decisions that form the basis for evaluating future cases. Common law, also known as case law, relies on detailed records of similar situations and statutes, as there is no formal legal code that can be applied to an ongoing case. When judges present precedents that apply to a case, they can significantly influence the criteria used by a jury to interpret a case. Historically, common law traditions have led to the unjust marginalization or loss of power of certain groups. Whether outdated or biased, past decisions continue to shape future decisions until societal changes prompt a judicial authority to set a precedent. Private law is the common term for the broad field that deals with legal relations between people. It deals with pure status issues (marriage, divorce, kinship, etc.); matters concerning property of any kind (property, estates, contracts); and commercial activities in the broad sense. Its essential feature is that participants are considered legally equal (unlike the public law structure, in which relationships are hierarchical), so that one cannot give orders to the other, unless this is permitted by a previous contractual or family agreement. Private law serves to reduce the cost of legal transactions by providing a set of models that citizens can use if they wish. However, private parties are also free to modify these templates (i.e. to modify a contract before it is signed). A system of pure customary law is created by the judiciary, since the law derives from case law and not from the law.
Therefore, a common law system places a strong emphasis on judicial precedent. However, a purely civil law system is governed by statutes and not by case law. The common law is based on institutionalized opinions and interpretations of judicial authorities and public jurors.