CHAPTER 2 MODERN CIVIL LAW PRACTICE FOR MINERAL LAW PRACTITIONERS
| Jurisdiction | United States |
(Feb 1991)
MODERN CIVIL LAW PRACTICE FOR MINERAL LAW PRACTITIONERS
Freshfields, New York
"My true glory is not to have won forty battles; Waterloo will erase the memory of so many victories; that which nothing will erase, that which will live eternally, is my civil Code."
Napoleacute;on Bonaparte1
INTRODUCTION
1 — The legal systems most often encountered in international transactions are the civil law system and the common law system. Through the cultural, economic and political influence that both England and France exerted throughout the world until the first half of this century, each legal system has exported itself to many countries in Europe, Africa, Asia and the Americas. In each country by which it was borrowed, the imported legal system has experienced a certain degree of local evolution. However, the fundamental principles have remained the same.
2 — The two systems are fundamentally different in many of the concepts which they use and in the ways in which they organise and express them. Lawyers of either training, whilst attempting to achieve the same objectives, will express them in ways sometimes so different that communication becomes as difficult as if there were no commonality of language.
3 — Yet in specialist areas of the law, such as energy and natural resources law, the specificity of the subject-matter is such that there ought to be no differences of substance between a transaction governed by common law and one governed by civil law. The problem lies not so much in the technical aspects of the transactions, which are resolved in the same manner everywhere, but in the underlying web of general principles and legal practices, which have remained fundamentally apart.
4 — This paper does not have the pretension of attempting an exercise in comparative law, which is perhaps the most difficult area of legal study. Its aim is to discuss a few select aspects of civil law, for the
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benefit of mineral practitioners of common law training engaged in international transactions. There is much more to be discussed than can be written. This paper will concentrate on the fundamental principles, which are not specific to energy and natural resources law.
FUNDAMENTAL ORGANISATION OF THE "CIVIL LAW" SYSTEM"
5 — The meaning of the expression "civil law" varies depending on both whether it is used in a historical context or given a substantive definition and whether the person employing it is a common law or civil law jurist.
Historical and substantive definitions of civil law
6 — In a historical context, scholars of common law training define "civil law" as the body of laws resulting in certain countries from the modernisation, through the Napoleonic codification, of a mixed heritage of Roman, Frankish, feudal, canon and customary law2 , as opposed to the "common law" inherited from English case law in England and certain countries under her cultural influence. Whilst the reference to civil law as a corpus juris distinct from English law is not unusual to civil law jurists, the historical definition more commonly found in civil law treatises describes "civil law" as the contemporary legacy of the codification, as opposed to both the pre-revolution legal system (the "ancien droit") and the legal system in force from the beginning of the revolution until the codification (the "droit transitoire")3 .
7 — More importantly, with reference to the subjects with which it deals, "civil law", in the English-speaking world, generally describes the body of laws concerned with private rights and remedies, as opposed to criminal law4 . In civil law countries, however, "civil law", in a substantive context, describes a specific and well defined branch of private law that is distinct not only from criminal law, but also from other great branches of law, in particular commercial law and administrative law5 .
Division of law into civil, commercial and administrative law
8 — The first skill that one learns as a law student in civil law countries is to divide law into neat categories. Civil law doctrine favours abstract classifications (and concepts) as much as common law doctrine dislikes them. Common law is more pragmatic and empirical.
9 — Domestic private law comprises primarily civil law, commercial law, labour law and criminal law. Domestic public law includes constitutional law, administrative law and tax law. Needless to say, there are areas of overlap, as specific topics fall into more than one category and industry-specific or other specialist branches of law
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develop. Mining law is one such composite topic, as is discussed below6 .
10 — It is much beyond the scope of this paper to describe otherwise than briefly the differences between civil, commercial and administrative law in civil law countries. Suffice it to mention their respective scopes of application.
11 — Civil law, as a discrete branch of private law, comprises the fundamental rules governing the status, private rights and legal relationships of natural and other legal persons, as well as their relationship to things. Thus, the Civil Code addresses, inter alia, the civil status of natural persons (name, registration of births and deaths, legal capacity etc.), domestic relations (marriage, filiation, successions), things and property (rights in rem and personal rights, prescriptive acquisition, security interests etc.), contracts, torts and other obligations, special contracts (sale, hire, agency etc.) and the fundamental rules governing corporations.
12 — This seems fairly exhaustive. However, certain rights and legal relationships, by reason of their intrinsic nature or the nature of the person involved, are governed by commercial, labour or administrative law. These distinct branches of law are all greatly influenced by the fundamental concepts of civil law, but have also developed their own concepts.
13 — In particular, commercial law cannot be understood without reference to the general concepts of civil law, notably contracts. The separate existence of commercial law in France and other (but not all) civil law countries lies in the distinction made between "commercants" (traders) and "non-commercants" (non-traders). Traders are persons whose regular occupation is to engage in trading transactions ("actes de commerce"). The most common types of French corporation are deemed to be traders ("commercial" companies) by reason of their form. Commercial law governs the relationships between traders and trading transactions. Trading transactions include, in particular, the purchase of goods for resale or hire, contracts for the supply or distribution of goods through agents or otherwise, exchange, banking and brokerage contracts, bills of exchange and notes. Also governed by commercial law are the affairs of commercial corporations and the bankruptcy of traders. Thus, virtually all business is governed by commercial law.
14 — Administrative law governs the legal relationships (i) among the various components of the Administration (national, regional and local government) and other state-controlled entities and (ii) between them and other natural and legal persons. Thus, administrative law is concerned with the validity and enforceability of all administrative acts (decrees, ordinances and other regulations, as well as administrative decisions). It also governs administrative contracts and administrative torts.
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Specificity of division
15 — The distinction between civil, commercial and administrative law, as understood and practiced in civil law countries, is one which is complex and leaves many common law practitioners perplexed. A contract may be governed by civil, commercial or administrative law; although the fundamental rules of contract law are to be found in the Civil Code, there are peculiarities in commercial contract law and even more so in administrative contract law. Similarly, a company may be a civil company, a commercial company or a public or semi-public company, each type being governed by differing rules7 . The civil law of tort applies to both civil and commercial matters, but administrative tort is in many respects significantly different. The rules of form, evidence and proof, jurisdiction and procedure vary depending on whether the legal relationship or issue at hand is of a civil, commercial or administrative nature.
16 — This distinction is substantive rather than of pure form. Of course, common law countries also have commercial law, defined as "that branch of law which is concerned with rights and duties arising from the supply of goods and services in the way of trade"8 . However, it is a part of "civil law", with basic common law rules no different in nature from those applying to other non-criminal matters. The High Court in London has a commercial section, but that is no more than an organisational division.
17 — Administrative law is even more specific to civil law countries. Lord Reid stated in 1963: "We [England] do not have a developed system of administrative law — perhaps because until fairly recently we did not need one."9 . This may have changed now10 , but administrative law as a discrete and self-sufficient branch of law in England, the US and other common law countries is still in its infancy when compared with administrative law in civil law countries. This is so, in part, because England did not have the benefit of Napoleon Bonaparte's administrative legacy, and also because administrative law in common law countries falls for the most part within the jurisdiction of common law courts. The common law of contract and tort applies to administrative contracts and torts. Certain administrative matters are dealt with by a multitude of issue-specific or industry-specific boards and tribunals11 , but their decisions are in general ultimately...
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