Contract and IP Law: Introduction

Introduction to Contract and IP Law

• Introductory course for the academic year 2024/2025 at emlyon business school.
• Explores contract and intellectual property (IP) law.

Introduction to Legal Notions

• Focuses on the notion of law and the rule of law.
• Asks to explore the definition of law, its components, and its importance in everyday life and business.
• Raises questions about the necessity of law, its absence, and its relation to morality and ethics.

Law

• Law is pervasive, shaping daily lives significantly.
• It permits, prohibits, enables, legitimizes, protects, and prosecutes citizens.
• Laws enable free movement and societal organization.
• Absence of law leads to anarchy.

Morality vs Law

• Law and morality differ in their source, purpose, and sanctions.
• Morality stems from individual conscience, aiming for individual purpose, and carries internal sanction.
• Law originates from authority, serves a social purpose, and involves external sanctions with binding authority.

Legal Rule

• A legal rule or law has been officially approved, adopted, promulgated, or applied by a Governmental Authority of competent jurisdiction
• It can be enforced by the judiciary.
• Legal rules are interpreted in courts, which can impose sanctions for violations.
• Legal rules differ from non-legal rules like conventions.
• Non-legal rules lack judicial enforcement like legal rules.

Public vs Private Law

• Private law governs relations between persons, whether natural or juridical.
• Private law rules cater to individual interests, with violations sanctioned by judicial courts.
• Public law addresses the relationship between individuals and the government.
• Public law aims to satisfy collective interests, and its violations are sanctioned by administrative courts.

Civil vs Criminal Law

• Civil law addresses disputes between individuals or organizations, awarding compensation to the victim.
• Criminal law deals with crime and legal punishment.

Common Law and Civil Law

• Legal systems worldwide generally follow common law, civil law, or a combination.
• Both common law and civil law impact how business is conducted within specific jurisdictions and internationally.

Common Law

• Fairness and equality are the base
• The common law system developed alongside the courts of EQUITY which devised remedies to legal issues based on fairness and equality
• Employs judicial precedent (case law) as an accumulation of judicial decisions.
• Judges play an active role, with court decisions setting precedents.
• Common law is not always based on a written constitution.
• The principle of Stare Decisis dictates adherence to precedents.
• Predominant in countries like the United Kingdom, United States, Canada, Australia, and New Zealand.

Civil Law

• Rooted in Roman law.
• Relies on a codified system of constantly updated written statutes.
• Judges apply remedies found within the codified law.
• Common in countries like France, Germany, Italy, and Spain.

Common Law vs Civil Law Features

• Common law does not always have a written constitution whereas Civil Law always does.
• Common law has extensive freedom of contract, Civil law contracts freedom are more limited.

Separation of Powers (France)

• The legislative, executive, and judicial functions are clearly divided.
• The Executive branch, with the President and Government, suggests and executes laws.
• The Legislative branch, represented by Parliament(Assemblée Nationale & Sénat in France), makes or adopts laws
• The Judicial branch, including Courts(Cour de Cassation, Conseil d'Etat, Conseil Constitutionnel), controls execution of laws, and sanctions violations

National Sources of Law - The Constitution

• Most countries have written constitutions; some, like the UK, do not..
• A Constitution is a body of fundamental principles that a state acknowledges to be governed.
• The Constitution takes precedence over any other source of law.
• Any law violating the Constitution is unenforceable.
• The French Constitution was created on 4 October 1958.

National Sources of Law

• "Legislation" includes laws and delegated legislation.
• Laws are adopted by Parliament as a holder of legislative power.
• Ordinances: The Government may ask Parliament for authorization to take action on matters that are reserved for legislation. They must be ratified by the Parliament
• Regulations: Decrees made by the President of the Republic or the Prime Minister, orders issued by Ministers and Prefects, decisions by deliberative or executive bodies from regional authorities.

Hierarchy of Law

• Constitution
• Legislative rules
• Ordinances (Ordonnances)
• Regulations
• Decrees (President / Prime Minister)
• Orders (Ministers and Prefects)
• Regulatory decisions (mayor, etc...)

Case Law - France

• In French constitutional theory, precedents cannot be used to constitue official sources of French law.
• Regulations are in place to prevent judges from interfering with the legislature.

International Sources – International Law

• International law governs relations between states or nations.
• It is incorporated in agreements between sovereign states (International Conventions).

International and EU Law

• International law and EU law impact Member States' national law.

Conventions

• Conventions can be bilateral or multilateral
• Bilateral Conventions are between two sovereign states
• Multilateral Conventions are between more than two states

United Nations

• Founded in 1945, it is an international organization comprised of 193 member states.
• It aims to maintain international peace and security
• It aims to develop friendly relations among nations and to achieve international cooperation by solving international problems.
• The International Court of Justice (ICJ) is the judicial counterpart to the UN.

The International Court of Justice (ICJ)

• It is the principal judicial organ of the United Nations (UN).
• Established in June 1945 and started work in April 1946.
• Based in The Hague, Netherlands.
• Settles legal disputes submitted by States, gives advisory opinions on legal questions referred to it by authorized United Nations organs and specialized agencies

European Law

• The European Commission proposes new legislation and is the executive organ/guardian of the treaties.
• The European Parliament acts as co-legislator with the Council.
• The European Parliament can adopt legislative proposals and decide on the EU budget.
• The European Council of the European Union is composed of one minister from each EU country and they decide on EU laws and the budget together with Parliament.
• The Court of Justice of the European Union (CJEU) interprets EU law and ensures EU countries apply EU laws in the same way..

European Law

• European legislation is divided into Primary Law and Secondary Law.
• Primary legislation is the basis or ground rules for all EU action and takes the form of EU Treaties, negotiated and agreed by all the EU countries and ratified by their parliaments
• Secondary legislation are instruments such as regulations, directives and decisions and are derived from the principles and objectives set out in the treaties

Regulations

• Legal acts that apply automatically and uniformly to all EU countries as soon as they enter into force.
• They are binding in their entirety on all EU countries.
• Article 288 of the Treaty on the Functioning of the European Union specifies that regulations are directly applicable in Member States.
• Politi v Ministero delle finanze clarifies that the regulations have a complete direct effect.

Directives

• Require EU countries to achieve a certain result or objective
• EU countries are required to adopt a measure to incorporate them into national law to achieve the directives objective
• Transposition into national law must take place by the deadline set when the directive is adopted.
• The Commission may initiate infringement proceedings if a country fails to transpose a directive.

The Primacy of European Union Law

• European law prevails to the law of Member States arise and the norms of national law have to be set aside
• The Court of Justice of European Union (CJEU) as interpreted that any norms of European laws always take precedence over any norms of national laws, including the constitution.

The Fundamental Principles of Direct Effect of EU Law

• The ability of a piece of European Union (EU) legislation to be enforced by an individual in a court of a member state.
• Individuals may directly invoke EU legislation before national courts.

Court of Justice of the European Union - CJEU

• Situated in Luxembourg, it interprets EU law and ensures it is applied in the same way across all EU countries.
• Settles legal disputes between national governments and EU institutions.
• Individuals, companies, or organizations can seek action against an EU institution the CJEU if they feel their rights have been infringed.
• National courts can seek clarification from the Court about how to interpret EU law.

Comparison with Other Courts

• The European Court of Human Rights (Strasbourg), and the International Court of Justice (The Hague), should not be confused with the CJEU.

The European Convention on Human Rights - ECHR

• Ensured the protection of significant civic and political rights by its signatory States to the Convention(46).
• Includes the Key Convention Rights: right to life(art. 2), freedom from torture(art. 3), right to fair trial(art. 6), freedom of religion(art. 9), freedom of expression(art. 10), right to education (art. 1 Protocol), opposition to death penalty (6th and 13th protocols)

The French Legal Syllogism

• Syllogism: a form of logical reasoning comprising a question, a major premise, a minor premise, and a conclusion.
• The legal argument is a legal rule or the major premise, specific facts applied to the rules.
• The example includes the civil code, art 1240 stating "Any human action whatsoever which causes harm to another creates and obligation in the person by whose fault or occurred to make reparation for it"

Critical Thinking in the Legal Context

• Legal reasoning and critical thinking include facts, issue, reason and conclusion, rules of law and evaluating the reasoning.
• A legal argument consists of the major premise, minor premise, and conclusion.
• Critical thinking involves understanding the basic facts of the context, issue, conclusion, the judge’s reasoning, and the rule of law.

Business Ethics

• Business law and business ethics work together where there's a relationship between business law and business ethics.
• Legality is the minimal standard that must be met to ensure development of business ethics, with ethical understanding can vary in difference countries.