BA Degree in Tourism - Basic Principles of Tourism Law PDF

BA Degree g in Tourism Basic Principles of Tourism Law S i 2. Section 2 Introduction I d i to Law L Sources and categories of law. Constitutional law. Statutory law. Common law. Precedents and case law. Role of judges. ju...

BA Degree g in Tourism Basic Principles of Tourism Law S i 2. Section 2 Introduction I d i to Law L Sources and categories of law. Constitutional law. Statutory law. Common law. Precedents and case law. Role of judges. judges Common law and civil law. law Other legal systems. Special reference to the rules governing international affairs BA Degree in Tourism © Prof. Rafael Martin Rivera PhD  Definition of Law ‰ Law is something that surrounds us and involves our daily life. Despite its simplicity, this idea must be held true. We do not only come into contact with Law when one of its institutions is applicable to us (e.g., liability, sale and purchase, rental, incorporation of a company, forms of ownership and tenancy in real property...) or we are involved in a judicial or administrative proceeding, but the most insignificant acts that often go unnoticed are also part of our legal life (e.g., uses, custom, principles i i l as reciprocity, i i autonomy off theh parties i iin recognizing legal effects to acts or facts, private and oral agreements, promises,, statements…)) p Three possible definitions of Law: A body of rules to which people must conform their conduct ( (e.g., statutory t t t llaw, acts, t regulations…) l ti ) A form of social control (e.g., constitutional Law, criminal Law) A set of rules used byy jjudges g in decidingg disputes p (e.g., g equity) q y BA Degree in Tourism  Definition of Law ‰ In a broad sense, it could be said that Law consists of rules that require people to meet certain standards of conduct (i.e., establishing duties, obligations and rights), and are enforceable in court, including not only codes, statutes, acts or regulations issued by the legislature, the states or the government, at national or regional or local level, or even at international level (i.e., autonomous rules of private international Law, taxes, treaties or agreements with other States or resolutions l i iissueddbby IGO’ IGO’s), ) bbut also l contracts or agreements entered into between the parties, which also have “force of law”. ‰ In a narrow sense,, Law mayy be considered as a system y of rules;; or “legal system”, which can be understood as an arrangement of legal rules ordered hierarchically. These rules can be of various types d depending di on it its origin i i (i.e., (i constitution, tit ti statutory t t t llaws, regulations l ti and ordinances, treaties, conventions and international resolutions…); aqquestion that refers us to the sources of Law. BA Degree in Tourism  Sources of Law and Legal Systems Here we must distinguish between the “Common Law” and the “Civil Law” legal systems, and primary or secondary sources: ‰ In the “Civil Law” tradition, which is ours, the direct or primary source of Law is the statutory law or rule legislated, including the Constitution, acts, statutes or ordinances approved by a National, Federal, State, Regional or Local Legislature (Parliament or Congress with/or without the intervention of a Senate, or State Assembly or R i Regional lP Parliament li or Ci City C Council) il) or, as the h case may b be, b by the h Government (e.g., Regulations approved by the Government and validated ‐ not approved pp ‐ byy the Parliament)) (which ( are called “principal sources”). While in the “Common Law” tradition, the direct or primary source is the Case Law or judicial precedent (i.e., “stare d i i ”) contained decisis”) t i d iin a fi finall jjudgment d t or “res “ iudicata” i di t ” (“ (“matter tt judged”) issued by a judge or court in a given case or interpretation of Law. BA Degree in Tourism  Sources of Law and Legal Systems Therefore, a case decision, or interpretation of the Law, applied by a judge/court to a set of facts in a given case, becomes a precedent (“stare decisis”) And Case Law is the collection of final judgments given by higher or lower courts (State, Regional, Federal Court, Court of Appeal, Supreme Court, Circuit, District or Local Courts) which do not admit the possibility of making a challenge or filing an appeal against them. Th These fi finall jjudgments d h have “f “force off llaw”, ” so they h are enforceable f bl and they will apply “erga omnes” when setting a precedent or “stare decisis”. This pprocess of followingg earlier cases ggives some uniformityy to the Law. So the judges in the Common Law system “make the Law” in cases where h no precedentd t or statutory t t t llaw or regulation l ti exists, i t and d interpret or construe the Law in those cases where a statutory law or regulation g applies. pp BA Degree in Tourism  Sources of Law and Legal Systems ‰ Indirect or secondary sources (also called, delegated or recognized sources) in Civil Law would include: a) Custom and general principles of Law (called “recognized” rules or sources); and b) Regulations, Executive Orders, Decrees and Ordinances issued by the Executive Branch, and the Jurisprudence or judicial resolutions with force of Law (i.e., final decisions) issued by the Judicial Branch (called “delegated” rules or sources) I the In h Common C LLaw system the h indirect i di or secondary d sources (delegated or recognized) would be: a) The custom, usages and autonomyy of the parties p ((“conventions”), ), called “rules of change”, g , which would allow the introduction of new rules or standards in the legal system; b) The laws issued by the Legislature (Statutes or Acts) and d th the rules l iissueddbby th the EExecutive ti B Branch h (Orders, (O d D Decrees, Executive Orders, Ordinances), called “adjudication rules”; and c) The constitutional rules and standards, called “rules of recognition”. g BA Degree in Tourism  Sources of Law and Legal Systems However, a distinction must be made here between the British and the Commonwealth countries system, and the system followed in the United States of America, where the Constitution is “formally” a primary, not a secondary, source of Law. Apart from this, it should be noted that the Common Law system in general displays a number of positive characteristics in the development of Law compared to the stagnant Civil Law system: ‐ More M d dynamic i (Common (C LLaw)) V Vs. SStatic i LLaw (Ci (Civilil LLaw)) ‐ Faster (Common Law) Vs. Slower development of Law (Civil Law) ‐ Common Law is ggraduallyy modified: as habits were modified;; as new inventions created new wants, contracts and conveniences; and as new methods of doing business develop. B t nott only But l iin private i t LLaw; also l iin criminal i i l LLaw ththe C Common LLaw iis much more dynamic (e.g., The US Computer Fraud and Abuse Act of 1986 Vs. Directive 2013/40/EU on Attacks Againstg Information Systems) y BA Degree in Tourism  Sources of Law and Legal Systems http://www.juriglobe.ca/eng/index.php https://www.inprol.org/sites/default/files/pg_common_law_civil_law_pg_compressed.pdf BA Degree in Tourism  Categories of Law ‰ Nevertheless, Law is not a homogeneous body of rules; it consists of many “fields of Law” or legal areas that sometimes exhibit large differences. Here we must focus upon two major divisions within Law, namely, the divisions between Public Law and Private Law, and between the Material or Substantive Law and the Adjective or Procedural Law. 1. Public Law is characterized by the fact that the government, in a b d sense, plays broad l a centrall role. l Th Therefore, f public bli LLaw covers the h relations between the political structure of the central State or federal State ((e.g., g , Constitutional bodies), ), the State Administration (e.g., Ministries or Departments, Secretaries…), the state, regional and local public entities (e.g., states, autonomous communities, regions i or d departments, t t provinces, i city it councils…) il ) and d other th public bli bodies (e.g., tax administration) and citizens, in a broad sense (i.e., individuals and corporations) p BA Degree in Tourism  Categories of Law There are four main branches of Public Law: Constitutional Law, Administrative Law, Criminal Law and Public International Law ‰ The most important of them is may be the Constitutional Law which is conformed by a set of fundamental rules, values, principles and practices concerning: a) Political and territorial organization of the State (Presidential vs. P li Parliamentary regime) i ) b) Delegated powers—expressly allocated to the Government or the Executive Branch c) Legislature and legislative process—method by which Congress/Parliament adopts laws; d) Judicial J di i l competence and d jjurisdiction i di i e) Civil and political rights BA Degree in Tourism  Categories of Law ‰ A second important branch, is Administrative Law, which covers the most expansive part of Public Law and deals with many of the interactions between the State Administration (e.g., Ministries or Departments), the state, regional and local public entities (e.g., city councils) and other public bodies (e.g., (e g tax administration) and citizens, in a broad sense (i.e., individuals and corporations). It refers to rules that define powers, limitations, and procedures of administrative agencies and public bodies (i.e., federal, state, regional or local). The term Administrative Law is a broad term that encompasses many different types of Law and legal areas: food and drug industry, consumer product safety and consumer protection, environmental protection, i energy, iindustry, d commerce, tourism, i transport, culture, l education, regional sustainability, disability, labor safety and health, taxes,, social securityy schemes… BA Degree in Tourism  Categories of Law Government departments, agencies and public bodies make regulations (i.e., regulations, decrees, orders, ordinances…) and have a particular procedure to effectively enforce them (e.g., proceedings, approvals, resolutions, inspections, permits, sanctions, fines…) ‰ The third branch, is Criminal Law. This is a branch of Public Law because the tracing, prosecution and punishment of criminals are handled by, or on behalf of, society‐at‐large, the State or the Government, by means of the Public Prosecutor and/or the private prosecution. Criminal offenses are listed in a Criminal or Penal Code, Act or Statutes, but they can not be established by governmental or administrative d i i i regulations. l i A special i l llegislature il proceeding di off approval with qualified majority of representatives in the Congress or the Parliament is required q in order to p preserve constitutional rights. g BA Degree in Tourism  Categories of Law Serious criminal offenses are terrorism, money laundering, fraud (i.e., a false representation intended to deceive for taking advantage and causing harm), death or injuries caused by willful misconduct or gross negligence (i.e., act of omission or commission with willful disregard to other people that results in possible or actual harm or death)… ‰ The last branch is Public International Law which regulates relations between States and/or international organizations (IGOs). And, in principle, it mainly consists of rules and principles governing international relations between them (e.g., conventions, treaties, regional agreements, resolutions, economic cooperation…). However, E European U Union i LLaw illustrates ill that h the h di division ii b between P Private i and d Public Law is not always clear‐cut. This Law deals with the organization g of the EU,, in a manner similar to Constitutional Law. BA Degree in Tourism  Categories of Law But, it also deals with the relationship between individuals (i.e., natural persons) and corporations (i.e., legal persons) within the EU. These are for example, those regulations, directives or decisions about fair competition which belongs to Private Law affecting primarily consumers rights and biggest corporations corporations. On the other hand, Public Law (including Public International Law) is frequently surpassing the limits of Public Law matters to enter into Private Law matters, being increasingly pervasive in areas of private Law such as family, intellectual property, contract Law, company Law, labour Law, Law property, property tenancy and ownership ownership..., through rules rules, principles, institutions and legal concepts such as “morality” or “public order” or “human rights protection” or “compliance”. BA Degree in Tourism  Categories of Law 2. Private Law deals with the mutual relations between individuals (i.e., natural persons) and/or corporations (i.e., legal persons), Consumer protection (for individual actions), Contract Law and Property Law (i.e., rights in rem) are the main branches of private Law which rule legal institutions such as contractual liability (e Law, (e.g., g breach of contract, misinformation, misleading or inaccurate information, particular sales conditions…), sale and purchase, rental, accommodation and hospitality, forms of ownership and tenancy in real property (e.g., Timeshare and long‐term holiday accommodation contracts…) ‰ A fourth branch of Private Law is Tort Law, which refers to liability for d damages when h thereh iis no contract (i (i.e., ““extra‐contractual” l” or non‐ contractual liability; accidents; slight, ordinary or gross negligence; wrongful g acts or civil offense or civil wrong…) g ) BA Degree in Tourism  Categories of Law ‰ Other branches of Private Law include Family Law (e.g., marriage, adoption, guardianship, parenthood, parental responsibility, custody, disability…), Personhood and Capacity Law, or Successions and wills Law… All this branches are included in a major branch called Civil Law which is different from the Commercial Law, the second major branch of Private Law. ‰ Commercial Law or the Law of Commerce (i.e., “lex mecatoria”) covers legal areas such as Consumer Protection (collective actions, general and particular sales conditions of goods and services), business and corporate Law (including, individual businessmen and corporations sole), l ) insolvency i l proceedings di anddbbankruptcy, k di directors misconduct, i d intellectual property rights (i.e., trademarks and patents), unfair competition p and advertising, g, maritime and aviation Law,, and BA Degree in Tourism  Categories of Law transport of goods, and commercial registries (i.e., corporate registries) ‰ This leads us to distinguish and define the relationships between Civil Law and Commercial Law Law. Civil Law is considered the General Law or Ordinary Law, while commercial Law is a particular or special Law. So, in general, Civil Law will be applied, save in those exceptions provided by the Commercial Law. And, at the same time, Civil Law fills in details not covered by the Commercial Law, being applied in a subsidiary way So it could be said that Commercial Law is a particular branch of way. Civil Law, mainly, concerning Contract and Corporate Law. BA Degree in Tourism  Categories of Law ‰ Most commercial courts have been very recently created (e.g., US Business Courts in 1990 or Spanish Commercial Courts in 2003). Old dated commercial courts are in Germany, France and UK. Even though, they are all governed by the Civil Procedure Law. Their origin responds to the need of having specialized judges in those issues particularly complex related to financial and business matters in the civil jurisdiction (e.g., M&A, insolvency proceedings and bankruptcy…), and foremost due to overcrowded civil courts in periods of economic crisis and accumulation of very different affairs and litigations in business matters. ‰ Finally, a special branch of private Law is Private International Law, which hi h d determines i which hi h laws l are applicable li bl if a case ffalls ll under d more than one jurisdiction. BA Degree in Tourism  Categories of Law Private International Law consists of rules and principles governing conflicts of national laws and jurisdictions in which individuals or corporations are involved (e.g., road accidents, aircraft accidents, international sales of goods, corporate mergers and acquisitions, trademarks and licensing licensing…). ) So Private International Law only refers to Civil Law and Commercial Law matters. ‰ The second twofold division of Law, which is perpendicular to the division between Public and Private Law, is the division between Material or Substantive Law and Adjective or Procedural Law. 1. Material or substantive Law governs the rights, duties, obligations and causes of action of individuals and corporations that can be enforced by Law before the courts. BA Degree in Tourism  Categories of Law It may derive from codes, acts, statutes and regulations, or a constitution, and includes all the main legal areas of Law (i.e., Constitutional Law, Administrative Law, Civil Law, Commercial Law, Labour Law and Criminal Law), except International Law sensu stricto, at least before being part of national Law Law, since there is no specific jurisdiction to enforce it (e.g., human rights). For example, a claim to recover for breach of contract or negligence or fraud would be a substantive right and therefore subject to Material Law. And similarly, a statute giving an employee the right to sue for employment discrimination would also create a substantive right and therefore be subjected to Material Law. 2. Adjective 2 Adj i or procedural d l LLaw isi the h body b d off rules l and d principles i i l governing the process by which a legal proceeding is handled before the courts. BA Degree in Tourism  Categories of Law It also includes those rules that specify how judicial decisions can be enforced. There are branches of procedural Law for each of the major branches of substantive Law above mentioned. Nevertheless, there exist, for example, rules for civil procedure, which deal with the enforcement of private Law in general (i (i.e., e Civil and Commercial Law), or even Constitutional Law (i.e., civil and political rights), or prejudicial questions concerning affairs pending in other jurisdictions. The EU has its own procedural rules before the EUCJ in which individuals and corporations have “ius standi” (i.e., right of standing) in two particular proceedings: a) Actions for annulment against a regulation, directive or decision adopted by an institution, body, office or agency of the European Union; and b) Actions for failure to act which hi h enable bl the h llawfulness f l off the h ffailure il off the h iinstitutions, i i b bodies, di offices or agencies of the European Union to act to be reviewed. And in both cases,, to ask for compensation p for liabilityy and damagesg suffered. BA Degree in Tourism  Categories of Law The same applies to the European Court of Human Rights (ECHR) of Strasbourg which also has its own procedural rules as International Court, and before which individuals also have “ius standi”. ‰ There is here an interesting discussion about two questions related to the legal nature of Procedural Law. Firstly, about the division or borders between Procedural Law and Substantive Law, in particular, in the Common Law tradition, and secondly, about the inclusion or not of Procedural Law in the field of Public or Private Law. 1. Concerning the first one, in the US Substantive Law is contrasted with Procedural Law. However, the distinction is not always clear. In the US, Federal Courts have struggled with the question of whether h h a specific ifi llaw iis substantive b i or procedural d l as that h questioni often determines whether state or federal Law, in diversity jjurisdiction cases,, applies. pp BA Degree in Tourism  Categories of Law According to the US Supreme Court “Erie Doctrine”, Federal Courts must apply state laws for matters of substantive Law when no federal law is relevant to the case. So they apply federal procedural law of the Federal Rules of Civil Procedure, but must also apply state substantive Law This binding principle of the Common Law is in fact a general Law. principle of Private International Law, on the base of the compulsory application of “lex fori” (or law of the Court) in procedural matters, and the foreign subjective Law on the base of the “foreign element”. To determine whether a law is substantive, Federal Courts may consider whether the law has the potential to determine the outcome of the litigation, in light of its potential impact on “forum shopping” and “inequitable administration of the laws”. Specifically, the U.S. S Supreme C Court stated d that h “[“[t]he ]h outcome off the h lilitigation i i iin the h Federal Court should be substantially the same…, as it would be if tried in a State Court”. BA Degree in Tourism  Categories of Law 2. Concerning the second one; that is about the inclusion or not of Procedural Law in the field of Public or Private Law, the discussion is opened among the public and the private legal doctrine, since in fact it could be said that logically there is a “Public” Procedural Law (for those matters of public substantive Law: administrative Law Law, criminal Law and related jurisdictions…) and a “Private” Procedural Law (for those others of private substantive Law: civil Law, commercial Law and related jurisdictions…) For the private legal doctrine, the main distinction focuses on the fact that in the civil procedure the parties have a certain discretion to determine the start, progress and conclusion of the proceedings. That means that most of the procedure stages are dispositive, not mandatory, d and d therefore h f Ci Civilil P Procedural d l LLaw wouldld b be considered id d as a branch of Private Law. BA Degree in Tourism  Categories of Law However, in the administrative or criminal procedure, all the procedure stages take place ex officio. That is, they are mandatory. So the Administrative or Criminal Procedural Law falls under the branch of Public Law. Nevertheless for the public legal doctrine there is no distinction Nevertheless, to be made between both procedures (based on Public and Private Law) and the rules governing them should be considered as to be exactly the same. The argument given is that all judicial procedures and their related jurisdictions are under the Public Law because the Judicial Branch is a “public public power” power part of the administration and organization of the State. BA Degree in Tourism  Rules governing international affairs At first sight, when we are talking about the Law governing international affairs we usually think about “International Law”, in a broad sense, and more specifically, about Public International Law (IL) as a particular branch of public Law (i.e., relations between States and/or IGOs). IGOs) Nevertheless Nevertheless, international relations are governed, governed not only by the International Law as we generally understand it, but also by national Law (i.e., domestic Law) in its private and public dimension. In fact, apart from the traditional areas of International Law (i.e., Public International Law and Private International Law), it could be said that there are two more particular areas: “International International Public Law” and “International Private Law”, pertaining to the material and procedural domestic Law having influence overseas (e.g., taxes, nationality, data protection, labour conditions, health and safety, consumer protection, equality, non‐discrimination, constitutional rights...) BA Degree in Tourism  Rules governing international affairs On the other hand, the intervention of other different subjects in the international arena apart from States and IGOs, such as multinationals (i.e., companies, corporations, industrial groups, joint‐ ventures, franchises, licenses, partnerships, agreements, investment vehicles private financial facilities vehicles, facilities…), ) individuals (investors, (investors stakeholders, professionals, workers, students, migrants…), online platforms (services providers, sale and purchase of goods, media, communication, public opinion…), associations (professional, sectoral, industrial, self‐regulation, organizations for standardization, audits, certification ADR certification, ADR…),) forums (economic cooperation cooperation, culture culture, think tanks…), universities, NGOs in the most broader sense…, has given a renewed vision of the rules governing International Relations and a new concept of International Law beyond the traditional branches of public and private international Law. BA Degree in Tourism  Rules governing international affairs Apart from this (i.e., the irruption of international public and private Law), but as a consequence of the above, the sharp distinction between national and international Law, is not longer clear‐cut. It is, for example, a mistake to believe that States are free to adopt whatever law they like. like Most of the present national statutory laws have their origin in political or economic decisions adopted in international forums (e.g., WEF in Davos, Club of Rome in Zurich), IGOS (e.g., OECD, UN, EU, WTO, NAFTA, APEC, ASEAN…) But at the same time, it is another mistake to believe that domestic Law has no effects in the international arena arena. However as a result of globalization (e.g., international trade and investment, Big Tech and monopolistic practices, BEPS, transnational crime, money laundering and terrorism, and legal and illegal uses of the Internet…), States increasingly perceive the need to protect their own interests BA Degree in Tourism  Rules governing international affairs and nationals in respect of conducts (e.g., crimes) or actions taken (e.g., foreign governmental decisions) beyond their borders, exercising the so‐called “extraterritorial jurisdiction”. Extraterritorial enforcement actions (such an arrest or taking sanctions against particular foreign interests) are still strictly prohibited by international Law unless specifically consented to by the territorial State affected. But domestic legislation in respect of extraterritorial persons (natural or legal) or events is increasingly permitted or even required by international Law if there is a sufficient connection between the State exercising jurisdiction and the person or event. BA Degree in Tourism  Rules governing international affairs Nevertheless, a lot of examples show how this jurisdictional principle is very often overridden by “of dubious legality” States practices (e.g., Are the US entitled to take sanctions against non‐US companies that conduct business in Cuba? Or, is the European Commission entitled to impose fines on US companies for their monopolistic practices worldwide? Or, is China entitled to take commercial reprisals against US and EU companies? What about EU and US economic retaliation against Russia, seizing and freezing Russian nationals' property?) BA Degree in Tourism  BA Degree g in Tourism Basic Principles of Tourism Law Questions and Remarks BA Degree in Tourism © Prof. Rafael Martin Rivera PhD