ACCA LAW (GLO)

Corporate and Business Law (Global)

For exams from September 2020 to June
2021
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Chapter 1 — Economics, politics and law

Business, political and legal — Common law systems

— Civil law systems
systems
— Sharia law systems
— Criminal and civil law

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 Economics, politics and law

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 Economics, politics and law

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 Criminal Law

• A crime is conduct prohibited by law. It is an offence against the State

• State vs Accused, R v Smith, DPP vs Smith, AG vs Smith

• Standard of proof – beyond reasonable doubt

• Burden of proof – borne by the Prosecution

• Punishable by fines and imprisonment.

• The state must prove beyond reasonable doubt that the accused committed the
crime.

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 Civil Law

• Exists to regulate disputes over the rights and obligations of persons dealing with each
other.

• Persons – individuals & body corporates

• Plaintiff vs Defendant, Claimant vs Defendant

• Standard of proof – balance/preponderance of probability

• Burden of proof – Plaintiff

• Contract law is a key area (breach of contract)

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 Criminal and civil law

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 Legal Systems

• Types –
a) Common Law System
b) Civil Law System
c) Sharia Law System

• Distinctions –
a) Sources of law
b) Role of Judges

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 Common Law Systems

• Common law systems derive from the law developed in England after 1066.

• Sources of Law:
– Common law
– Equity
– Statute
– Case law
– EU law
– The Constitution (USA)

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 Common Law & Equity

• Common law – common legal rules embodied in legal decisions. Developed by

the King’s Bench, Exchequer & Court of Common Pleas
• Equity – Developed by Courts of Chancery (headed by the Lord Chancellor
who was a religious leader) to supplement common law. Based on fairness and
justice.
• Equity’s contributions:

a) New rights – Trustee relationship

b) Better procedures – plaint as opposed to writs
c) Better remedies – in addition to damages (monetary compensation)

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 Statutes

• UK statutes are developed directly by Parliament (Acts of Parliament,

Legislation) or through subordinate but competent bodies (delegated
legislation).

• Legislative process – Bills vs Acts

• Principles of law
– Law does not become inoperative through lapse of time.
– Judicial precedent

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 Role of Judges

1. Developing judicial precedent in case law

2. Statutory interpretation

3. Judicial Review

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 Judicial Precedent (Case Law)

1. Judicial decision must be consistent with previous

decisions.
2. Subsequent but similar cases

Rules of judicial precedent:

• Must be based on propositions of law
• Must be the ratio decidendi – the legal principle relied on in
arriving at the decision (not the obiter dictum – judge’s
expression of opinion).
• Material facts of each case must be same
• Preceding court must have a superior status – judicial
hierarchy
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 Statutory Interpretation

The Judiciary interprets law made by Parliament, where Executive’s

implementation is challenged.

Canons/Presumptions of statutory interpretation

a) Does not override the existing laws – municipal or int’l
b) Does not alter the common law (or existing law)
c) There is no retrospective effect
d) An individual will not be denied liberty, property or rights
e) The Crown is not bound
f) Strict liability will not be imposed

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 Rules of statutory interpretation
1. Literal rule – impersonate any person entitled to vote

2. Golden Rule (Contextual rule) – in the vicinity of a prohibited place

3. Purposive/Mischief rule – soliciting in a public place

4. Eiusdem generis rule – house, office, room or some other place

5. Expressio unius est exclusio alterius rule – Sale of Goods Act

6. Noscitur a sociis rule – children’s books, children’s toys and clothes

7. In pari materia rule – Tax & Land Statutes

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 Statutory Interpretation Aids
Intrinsic aids - Found within the Act itself:
(a) The title – long or short (e.g. the Dangerous Dogs Act 1991,
The Companies Act 2006)
(b) The preamble – intro (an Act to regulate the betting industry..)
(c) Schedules to the Act – supplementary notes

Extrinsic aids - Found outside of the Act itself:

(a) The Interpretation & General Provisions Act 1978 – defines
words found commonly within statutes
(b) Hansard – a Parliamentary record
(c) English Dictionaries
(d) Reports of commissions – such as Law Commission reports

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 Judicial Review

Judge’s role to determine whether a piece of legislation is in conflict with the

Constitution (Constitutional or Unconstitutional)

The US Supreme Court uses two methods:

1. Originalism – interpret the Constitution as per original intent of authors

2. Constructivism – consider other factors beyond original intent, e.g. current

societal circumstances.

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 Common law systems - summary

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 Common law systems - summary

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 Civil Law Systems

• Applied in continental Europe – France & Germany

• Arose post the European Revolutionary period e.g. Code Napoleon in 1804

• Distinction between those who draft the law (legislature) and those who apply
it (judges)

• Judges apply the law, limited role of statutory interpretation

• Some civil law countries have a system of judicial review to establish whether
created law is constitutional or not.
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 Principles of Civil Law Systems

• Comprehensibility

• Certainty

• Clarity

• Court system is inquisitorial (not adversarial)

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 Sources of Law

1. The Constitution

2. Statute (codified)

3. Custom

4. Administrative regulations

5. EU law

NB: NO Common law and judicial precedent

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 Principles of Statutory interpretation

1. Where meaning is clear, it must be followed.

2. Where statute is obscure/ambiguous, follow the spirit of it.
3. Where the law has a gap, judge must resort to custom or equity.
4. Methods:
• Teleological method – social intent
• Historical method – original intent

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 Judicial review

• To comment whether Statutes are in accordance with the Constitution

• E.g. Constitutional Courts in Germany

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 Civil law systems

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 Civil law systems

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 Sharia law systems

• Sharia law is explicitly based on and part of Islam.

• Applied in Muslim states – e.g. Iran & Pakistan
• The law extends to areas of belief and religion
• The law is ordained, God given
• The law is for more that just social order
• Primary sources are the Quran and the Sunnah.
• Key principle of Sharia is that it is divinely ordained
– It cannot be changed and should only be interpreted by qualified individuals.
• Judges in true Sharia tradition are usually clerics, the Imams.

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 Sources of Law

1. The Quran – The Holy Book of Islam. Primary source of law

2. The Sunnah – sayings of the Prophet Muhammad (Ahadith) – use to: Confirm the
Quran, Explain general terms in Quran, Clarify verses and Introduce new rules where
Quran is silent

3. The Madhab – secondary sources of law. Writings of major jurists:

- The Sunni – Pakistan (Hanafi, Maliki, Hanbali, Shafii)
- The Shia – Iraq and Iran

4. The Constitution – Written Constitutions. Uphold the role of Sharia Law. Article 2 of
Iranian Constitution – “The Islamic Republic of Iran is a system based on the belief in the
one God Allah”

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 The Role of Judges (Imams):

1. Apply the law to cases

2. If the Imam is unable to understand the Quran, he refers

to the Sunnah, and perhaps applies Ijtihad (intellectual
exertion/discretion).

The Ahadith that make up the Sunnah are categorised as

follows:
a) Muwatir – virually guaranteed
b) Mashtur – less certain
c) Ahad – little certainty as to their authenticity

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 The Role of Judges (Imams):

Ijtihad
• Imams are allowed to apply intellectual exertion to ascertain and solve a legal
problem (Ijtihad)
• Rules of Ijtihad:
1. Must not be exercised on certain matters – e.g. the existence of Allah
2. The Imam must be suitably qualified
3. The judge must use a recognised method
– Ijma' – consensus of opinion; Qiyas – analogical deduction; Istihsan –
equity; Urf – local customs not contrary to Sharia; Istishab – maintain status
quo

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 The Role of Judges (Imams):

3. Judicial Review:
• To determine whether a statutory provision is contrary to Islam
• E.g. Federal Sharia Court of Pakistan

NB: The Rule Against Usury:

The Quran strictly prohibits Riba (interest or unlawful gain).
Affects business and banking

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 Sharia law systems 1

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 Sharia law systems 2

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