Comparison between Bahraini and Swiss Civil Law - Essay Example

Comparison between Bahraini and Swiss Civil Law Law divides into two broad categories: Criminal law and Civil law. Civil law is a branch of law that is non-criminal in nature. Civil law relates to quasi-contracts and civil wrongs. Civil law also embraces the law governing property, property law. It is the law relating to persons, also known as civilian law. Civil law can be divided into procedural and substantive law. The civil law is concerned with the duties and rights of individuals among individuals. The civil proceedings took to obtain compensation for any injury caused. Apart from awarding compensations, punitive damages can be awarded, or an individual sued for any penalty in a civil proceeding. The purpose of this paper, therefore, is to give the comparison between Bahraini and Swiss civil laws. Bahrain has sufficient exposure to the British legal system, and its legal system is mixed drawing from both codified systems; Islamic law and English common law (Bahrain Civil Code, art. 1). Bahrain became a British protectorate in 1880 after the Ottoman Empire lost control over it in 1861. In August 1971, Bahrain gained full independence from its British protectorate. It formed a legislative committee to establish a legal system that was independently appointed upon independence. Egyptian codes and the law similar to Arab states, therefore followed from that day. It is unlike the Swiss civil law that is not exposed to the British legal system (Swiss Civil Code, art. 1). The Swiss civil codified law ruling in Switzerland and regulating relationships between individuals includes; French; Code Civil, Italian; Codice civil, Germany; Zivigesetbuch, Roman; Cudesch civil and finally Turkish; Media. The Swiss civil code of 10the December of 1907, it became in force in 1912. Another similarity is that both civil laws coded. It makes it easier to trace any law since it is in one booklet for the purposes and reference of the civilians. Another difference comes in the form. In Bahraini civil law, certain procedures or acts may be required to be effected in a certain specific form, if this not followed, the procedure or act may be considered as invalid. Article 72 of the Bahraini Evidence Law states that every verdict that orders the evidence given by the witness shall indicate all facts that are ordered to prove. If this not followed, the verdict should be invalid. Such verdicts must have the date on which investigations will begin and the place and time at which it is to conduct. Therefore, the preliminary judgment that orders the pursuit of any evidence by the witness must indicate the ordered facts to be proved, or the procedure may be considered null and void. Article 84, on the other hand, states that a witness testimonies may be invalid if he or she fails to take an oath that he or she shall say the truth and truth alone. Any judgment based on the evidence from a witness who never took an oath could be subject to nullification. A similar position was reached on 20th February 2002 after the Dispute resolution issued a decision after hearing 15 witnesses testimonies. The decision favored an American company for about US $24.4 million. Though their decision nullified on the ground of invalidity of the oath, the court of cassation further confined the judgment. Article 14 of the Bahrain Land registration law provides that the real right or transfer, lapse of such right or alteration and the court orders evidencing those disposals should register in the Land Register. Failure of registration makes the disposal rights invalid or null and void. The Bahrain Civil Code and Swiss Civil Code, have similarities in that both of these civil laws do not have provisions relating to the intellectual property in their codes. However, these provisions are provided for in a separate legal instrument. However, some basic principles of intellectual property law under the civil law mentioned. It makes them of less use when it comes to intellectual property. Given that the entire worlds commerce is driving towards intellectual property contracts, this becomes a loophole in both the Swiss civil code (Clarke, 1976) and Bahrain civil code. The supreme civil law of the land; the codes should adopt the inclusion of many more intellectual law provisions in the codes. It will help ease the work and assist in settling dispute relating to intellectual property easily. It is of great essence, that as many things change, even our legal instruments should change to cater for the change. Intellectual property law is one field of law that is rapidly growing; hence, the civil codes should be placed to tackle such upcoming challenges. In Bahrain civil law, capacity is something of importance. Only those persons who have the right to enjoy and raise it against anyone infringing that same right. The capacity requirement provided for in the Bahrainis Procedural Provisions. No one can seek justice in order to protect a right that he or she does not have. If those involved in the dispute do not have such capacity, the court will invalidate such a case. The judge applies his discretionary power in verifying the capacity of individuals. The verification must also be done on justifiable, reasonable grounds. Mere stating the Terms of Reference is not enough to prove the interests of the claim and the capacity of the claimant linked to the issue concerning time prescription, a case raised in Bahraini. The claimant raised this case in his capacity as the administrator who was appointed to use his powers to run the company. He claimed that the law vested such powers upon him to represent the shareholders of the company, creditors, and the company itself. However, this was not documented in that the case arose on behalf of the shareholders and the company. The Administrator therefore subjected to the prescribed period applied to the shareholders and the company; the result is that the said claim was already time-barred. The Swiss civil code provides that everyone who can have obligations and rights within the limits of the law. Through his or her actions, a person who has a capacity to act can create obligations and rights. The age of majority is 18 years. A person of this age is deemed capable of judgment and to act. Another comparison regards the details. When drafting statements of reply or statements of claim, it is so important to submit the facts that are effective in the case of the relevant legal grounds and evidence. In any fact, that is excessive should not give as it could invariably backfire on the person claiming to use them. Due to the broad discretionary power to interpret the facts, the judge with its discretionary power may hurt a partys position when giving the final verdict. Article 42 of the Bahraini Civil Code provides that the person is failing to make a reply should not attribute to any utterance. In the course of need, silence is considered as expression. When the matter relates to dealings already existing between contracting parties, failure to reply is considered to be an acceptance. It also applies to when the offer is solely in the interest of the offeree, but not the offeror. Contracts drafted in common law jurisdictions are always very detailed to cover all presumptions that would arise to risks upon signing the contract. However, contracts do not include the general details in civil law jurisdictions. In a civil law interpretation, the judges have the discrete of finding out both the apparent reasons and the factual reasons for the parties. Article 125 of the Bahraini civil code provides that, there should not be any deviation from the wording of the contract in case it is clear. It is done to get to the real intention of the parties to the contract. The Bahraini court of cassation established that consideration should be given to a common intention of the parties to the contract when interpreting contracts. Any substantive judge has such a capacity to reveal the intention of the parties. Consideration should take on the rule of application and interpretation of the conditions of the conditions of the contract upon drafting the terms of reference in the arbitration and the contract itself. The principle of good faith should also be considered when interpreting any wording of the contract. Article 129 of the Bahraini Civil Law provides that every contract must be able to be performed according to its provisions and must comply with the requirements of ethics of dealing and good faith. Article 252 of the law of proceedings allows the ordering of enforcements of the judgments and orders passed in foreign countries. According to Swiss civil code, the wording or interpretation of the law applies to all the legal questions for which the law contains a provision. If there is no provision, the court decides the case in accordance with the customary law. In the absence of the customary law, it will make the decision in accordance with the legislators rule made. The court establishes doctrine and case law in doing so. Terms used in Bahrain civil law jurisprudence might not apply in either Swiss civil law country or different justification. Without prejudice, is a word used when a document is not confidential, but, available to the public domain. It means that the information is not confidential, and all parties are in a position to submit it before the court, and the judge should not base its judgment when submitted. However, it may be admissible as an admission of liability in a civil law jurisdiction; the judge may rely on it in his judgment or if it is a very dangerous discussion. Estoppel is a rule of law that stops a person from denying alleged facts to be existing. It is a Swiss civil law concept (Les Contrats de service, 1987). In civil law, issue estoppels mean that a public interest that even when the parties are different, the same issue should not allege more than once. In the case no. 57 dated 4/4/2012, in Egypt, it was established that no litigant is allowed to base his challenge in an arbitral award. That contradicts what he had already admitted during the procedure of arbitration. The Bahraini legal system uses Estoppels as a concept that is known and applied in its kingdom under a different justification and characterization. It is because Bahrainis legal system is based on civil law. Article 640 of the civil code provides that an Agency is a contract whereby the principal appoints one to act on his behalf in the legal acts. The agent represents the principal within the limitation of the terms of the agency agreements. Bahraini courts go further to use the term Estoppels as the apparent representation, based on principles of equity. If the agent exceeds the limit of his agreement for agency and in the lack of any legal representation, the principal will not be referred to the responsibility for the act committed by him. Even when the third party deals with the agent in utmost good faith, the principal is not liable. However, the principle of apparent representation may be applied when the good faith of the third party justified. Though it must accompany the outside appearance, this then will be assumed that he is duly authorized to represent the principal, and the courts can confirm that. The representation then will be validated. This principle of apparent representation adopted in Bahrain Ambassador in Riyadh is considered a civil contract governed by the principle of contract and not administrative contract. The Ambassador’s job is the protection of his nation’s interests in the receiving country or state and diplomatic representation, but not purchasing cars in private contracts as principal. However, the third party who led the Ambassador to believe that he was still within the limitation of his agency did so in good faith about the circumstances of the contract. Article 104 of the law of evidence also provides that any admission of the judiciary constitutes enough proof against the person using and making such admissions. The person will restrict thereto, but such admission shall be binding upon the judge making it. The acknowledgment by a party to the dispute before the court of an alleged fact against him during the pursuit of the fact relating to the same case is judicial admissions. If such judgment serves as an absolute proof in the dispute, no evidence will admit against the results of such legal presumptions. Article 2 of 10th December 1907 Swiss civil code, the law requires everyone to act in good faith in doing the duty or to exercise his or her right. Lack of the protection of the Abuse of a right by the law is evident. There is a presumption of good faith where there is a legal effect conditional on the good faith. Where one fails to exercise diligence required by the circumstances, he can never invoke the presumption of good faith. In the formation of a company in Bahrain, the Commercial Companies Law of Bahrain is applied to govern and regulate. Companies are the main vehicles in Bahrain. Eight types of companies can form the laws mentioned above. These companies can be formed depending on activity of the intended business and the number of the investors. In Swiss, Civil Code governs business entities. Businesses domiciled in a particular canton at the Federal Level. Each canton maintains the mandatory entries in the register of subscribers, capital structures, directors and a commercial register. Business entries that may be formed are a company limited by shares, limited liability companies and partnership and its variants. Sole proprietorship and General Partnership can be formed too. All companies trading in Switzerland must get a registration from the register of commerce in the district where the business is located, or office is registered. Another comparison is with the arbitration facilities and process in both Bahrain and Swiss. One similarity is that in both, arbitration covered in the civil codes of their countries. In Bahrain, arbitration is reasonably equipped with the facilities that even favor international arbitration. There also exists the Bahrain Chamber for Dispute Resolution/ American Arbitration Association that acts as the regional arbitration center. International class hotels that have enhanced quality of catering arrangements and facilities are the ones tribunals and parties to arbitration refer to for hearings. In Swiss, Arbitration process and facilities are of a high-level quality. It is so because; Swiss enjoys a long tradition of hosting both domestic and foreign or international arbitration. Arbitration in Swiss recognizes it as a preferred method of resolving disputes in the culture of Swiss. It has a flexible Lex arbiter of the Swiss Rules of International Arbitration. It also has various unified rule commerce of Swiss Chambers (Le Savoir-faire industriel, 1974). There is an operation of arbitration at a global level that allows parties to choose any law to govern them and arbitrators to represent them in the arbitral proceedings. Bahrain has a dual system court made up of Islamic Sharia courts and Civil courts. The civil courts deal with all civil, criminal and commercial cases as well as non-Muslim personal legal matters. The Bahrain civil courts include; the High Civil Court that deals with all civil matters in Bahrain. Higher Court of Appeal and the Court of Cassation is the highest court of Appeal in Bahrain and its decision is binding on all other lower courts. Swiss, on the other hand, has a Federal Government, though, unlike Bahrain, it has no dual court systems. The Federal Supreme Court in Civil issues is the court of last resort. The lower courts are state courts. The State Courts are at three levels; Courts of Appeal, County Courts, and District Courts. The decision of the State Court can appeal to the Federal Supreme Court. Though parties can directly bring a case to a Federal Supreme Court if at least 20,000 Swiss Francs amount are in controversy or if the parties so agree in writing after the dispute arose. Another comparison is in through the Take-or-Pay provisions that form part of civil law in both Swiss and Bahrain. The rationale for enforcing take- or- pay clauses is to ensure that no contract is breached by not taking quantities as the take- or- pay provisions provide for delayed performance or payment. Take-or-pay clauses in Swiss civil law are nevertheless enforceable and legitimate terms providing for the alternative modes of performance within the meaning of the Swiss civil code (Le Droit des langues en Suisse, 1986). In Bahraini, the take-or-pay clauses are applicable because Bahraini has entered into gas contracts with some other states. There is no specific law, but a conclusive presumption that such clauses are valid in Bahrain. These clauses need not appear independently, but they assimilate to those providing an alternative obligation as contained in the Egyptian Civil Code. An alternative obligation is defined by the Egyptian civil code as an obligation that is an alternative when its objects include numerous (modes of performance). The debtor is entirely freed by the performance of one of them. The option belongs to the debtor in the absence of any law or of any special provision in the law or agreement between the parties to the contrary. In conclusion, the understanding of the nature of the difference between Bahrain civil law and Swiss civil law systems is critical. It is important to avoid any infringement, breach of contravention of the law or the public order that may be experienced by the disputing parties. Parties who bear the time, cost to bid, and reach a judgment that is fair to achieve their enforcement and preserve their rights. Civil law systems have binding legal provisions and parties have no any other options as this relates to the public order. The principles of fairness, justice, and good faith are the basis of general substantive provisions. Each system contains its provisions relating to form that is considered and followed. The New York Convention of 1958 provides for the reason for any challenge that sets aside arbitral awards based on other procedural or substantive and public order. Work Cited Le Savoir-faire industriel. Définition et protection du savoir-faire (“know-how”) en droit américain Thesis, Lausanne, 1974, 398 pages. Édition commerciale: Collection Comparativa No 3, Librairie Droz, Geneva, 1974. The Legal Protection of Know-how in the United States of America. Second, revised edition, translated by H.W. Clarke, 487 pages, Droz S.A. Genève/Rothman & Co., South Hackensack N.J., 1976, Comparativa No 5.; Le Droit des langues en Suisse. Documentation du Conseil de la langue française du Gouvernement du Québec, No 15, Québec, 1984, 150 pages; Droit suisse des sociétés anonymes : Répertoire des arrêts fédéraux et cantonaux. Publication CEDIDAC No 6, Lausanne, 1986, 318 pages; Les Contrats de service. Rapport à la Société suisse des juristes. Rapports et communications, Bâle, 1987, fascicule 2 en entier et fascicule 5, pp. 564-573 et 594; Bahrain Civil Code, 1956. Onlinehttp://www.wipo.int/wipolex/en/text.jsp%3Ffile_id%3D190443 accessed on 28/2/2015 at 2pm Kingdom of Bahrain Ministry of Justice and Islamic Affairs. www.moj.gov.bh/en/default2e2e.html/action=artilce&ID=1466. Accessed on 2/3/2015 at 10pm. Nakash, Yitzhak (2006). Reaching for Power: The Shia in the Modern Arab World. Princeton University Press. p. 24 accessed on 2/3/2015 at 5pm Swiss Civil Code, 1907. Online http://www.admin.ch/ch/e/rs/2/210.en.pdf accessed on 2/3/2015 at 3 am. Read More