Critical Analysis Example: International Force Majeure

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November 21, 2013

critical-analysis-example-international-force-majeure

Abstract

Force majeure is a phrase used to describe various lawful activities. It describes the laws established in a circumstance or event. Different religions have put in place various laws for adherence by the believers. These laws make up the force majeure in a religion perspective. Countries can also establish various laws for citizens to follow. These laws vary with every jurisdiction in a country. It can also fall under different contract signing regarding obligatory parties. Islam force majeure laws are listed in the Quran, with every law justifying the essence of the religion. Force Majeure has enabled many business parties to negotiate beneficial clauses in contracts. The most significant clause relating to force majeure is the hardship clause. This clause helps the overburdened party to renegotiate the stipulation in the contract.

1. Islamic laws vary with jurisprudence as indicated in the Quran. The jurisprudence might fall under different categories in the Islamic law. Sexuality law in Islam falls under the marital jurisprudence. This law protects even the unmarried Muslim people from sexual injustices. This is because Islamic religion advocates strongly against rape and discrimination against women (Hallaq & Hallaq, 2009). The sexuality law in Islam calls for the need of a man getting sexually involved with a woman. Islam does not recognize same sex marriage because of its firm belief. In reference, the Quran is strongly against same sex marriage. The Quran does not recognize same sex marriage as it is a sin before God. The Quran stipulates that God created a man and a woman, and this means that a marriage should be between the two opposite sexes. Since God advise all humanity to multiply and fill the world, the Quran states that same sex marriage is disrespect to God the Almighty.

In Islamic law, force majeure forms a contractual agreement between two parties. This is in relation to both the general and civil laws in Islamic religion. According to Islamic system, force majeure offers an obligatory circumstance that each party can negotiate. In Islamic law, faith forms the basis of Islamic religion. Force majeure binds a person and his or her faith to God. The Quran stipulates that a person is answerable to his or her faith when God ascends to earth. This means that force majeure has a spiritual binding between God and Muslims according to Islamic law.
Islamic religion observes a strict celibacy on the religious leaders. This means that the Islamic religious leaders are forbidden from having sexual relations with a woman. The Quran defines sex as a symbol of marriage, and forbids all Muslims from engaging in premarital sex (Hallaq & Hallaq, 2009). Islamic religion considers premarital sex as sin before the eyes of God. The Quran also forbids all married men and women from engaging in any sexual activities during fasting. This is because fasting is a holy time, which Muslims show their faith in God by abandoning all the earthly materials. It is also a time when Muslims give sacrifices to God.

Islamic religion also has a diet law, which forbids Muslims from consuming some foods. Islam considers some of these foods to be satanic and ungodly. Because of this, the Quran forbids all Muslims against consuming such foods at all cost (Hallaq & Hallaq, 2009). It is a sin according to the Quran to consume these foods. Islamic religion considers all animals without horns to be associated with Satan. This means that no Muslim should consume products from animals without horns.

Pork is the most recognized food that the Quran forbids Muslims from consuming. This is because Islamic religion considers pigs as dirty, contrary to Islamic teachings. The Quran indicates that a person can only eat some forbidden foods only if he or she is on the verge of dying of hunger (Quran 2:173). According to Islamic laws, this is not permission to consume these foods.

The Quran also teaches about hygiene, which Muslims believe that it brings them closer to God. Hygiene forms a part of the Islamic law, which all Muslims adhere to at all times. It is a sin not to maintain hygiene at all times especially when attending prayers in the Mosque (Hallaq & Hallaq, 2009). The Muslim bathroom is different from other bathrooms in Christian houses. The Muslim washroom contains a shower situated close to the toilet to facilitate thorough cleanliness. It is a ritual to maintain a high level of cleanliness in Islamic religion.

2. The case between West vs. Barnes, 2 U.S. 401 (1791), was an American case heard in the Supreme court in 1791. The Supreme Court heard the case within ten days as required by law. The case involved William West, sued by the Jenckes family for money owed to them through a failed deal (Bouche, 2011). After the court case, the Supreme Court ordered West to pay the Jenckes family the whole amount of money owed through mortgage. West paid half of the amount in a span of twenty years, and asked the court to grant him his wish of paying the arrears through a lottery. The Supreme Court acknowledged his request because of his service to the government.

Little vs. Barreme, 6 U.S. 170 (1804) was an American case heard by the Supreme Court. The Supreme Court ordered the American President to honor a law passed in Congress. The President ordered George Little, the captain of the United States Navy, to intercept any ship that navigated from France. The Congress passed a law that required the American Navy to intercept ships navigating only to France. Gorge Little was found guilty of breaking the law, which he proceeded to the Supreme Court for an appeal.

Flaminio Costa vs. ENEL (1964) ECR 585 (6/64) was a case heard in the European Court of Justice. Mr. Costa, an Italian, did not support the nationalization of electricity by the Italian government. He showed his displeasure by not paying his electricity bill, which kept on piling due to unpaid arrears. He argued during his case that the government was violating the Italian constitution by nationalizing electricity (Bouche, 2011). The Court recognized the government’s decision to nationalize electricity through the Treaty of Rome. Since the Treaty of Rome indicates the nationalization of electricity as an available market for the government, Mr. Costa could not appeal the decision made by the Court. This is because the government acted in the jurisdiction of the Treaty of Rome rule.

Test-Achats vs. Council of Ministers was another case heard in the European Court of Justice. Test-Achats, a Belgian consumer, sued the Council of Ministers for violating the Human Rights act (Anthony, 2002). He argued that the Council of Ministers violated the Human Rights act by adopting a wrong directive, which violated the gender equality in European countries. The Council proposed that people engaging in sexual activities for payment purposes should get an insurance cover. Test-Achats argued this to be a discriminatory factor to women, asking the Court to nullify the Council’s provision. Even though the Court nullified the Council’s provision, it proposed to changes in the provision before a proposal.

The LaGrand case is an international case heard in the United States about two German nationals. Walter and Karl LaGrand committed an armed robbery offence in the state of Arizona. The two brothers committed murder while carrying out the offence. This led to their arrest by the American authorities, which subsequently led to their conviction. The Court in Arizona, the state where the offence took place, sentenced the two brothers to death. Since they were of German nationals, Germany intervened and pleaded to have the two brothers freed by the American authorities so they could face the charges at home. The Court declined this request by Germany terming the murder charges on the United States nationals as serious. This led to the eventual sentencing of Walter LaGrand through a lethal gas, and Walter LaGrand through a lethal injection. This did not affect the relations between the two countries.

Jurisdictional Immunities of the states was a case between Germany and Italy heard in the International Court of Justice. Germany sued Italy after the Italian government ignored Germany’s pleas to provide immunity for the German victims of the Nazi war living in Italy. The International Court of Justice ruled in favor of Germany because of the numerous letters that Germany had written to Italy regarding this matter. Even though the Court ruled in favor of Germany, it recognized Italy’s decision not to answer to Germany’s pleas simply because of the boundary jurisdiction. The Court ruled that Italy was wrong not to have granted immunity to the German victims living in Italy.

The International Court of Justice heard the Nuclear Test case involving New Zealand and France. New Zealand filed this case where it accused France of performing its nuclear test on the South Pacific air. France argued that it had stopped its test longer before New Zealand filled the suite (Bouche, 2011). The Court confirmed this by a 9 to 5 votes, which indicated that France had indeed stopped its nuclear test on New Zealand air. In the landmark ruling, the Court ruled that its decision would not have any effect on New Zealand’s case. Despite this, the Court ruled against France ever performing any test on New Zealand air. The Court termed France’s actions as lacking jurisdictional respect towards New Zealand.

The International Court of Justice also heard the case involving Italy, France, The United Kingdom, and the United States about gold found in Rome, Italy. All of these countries claimed ownership of the gold claiming that the gold rightfully belonged to them. The Court had the case and made several landmark ruling regarding the gold. German claimed ownership of the gold because German nationals found the gold (Payne, 2002). Italy claimed ownership because the gold originated in its jurisdiction. France, the United Kingdom, and the United States all claimed ownership as part of a running saga. Finally, the International Court ruled in Italy’s favor claiming that the gold did indeed belong to Italy because of its origination.

The Islamic legal system often varies with each law. This depends on the jurisprudence of the law. All Islamic governments use the Sharia Islamic law to govern their countries in accordance to the law (Hallaq & Hallaq, 2009). The Sharia indicates different requirements of the Islamic law. The Sharia is a consensus established several years ago after Prophet Muhammad died. The Sharia requires children to be admitted to scholarly Islamic schools with an aim of learning some of the Islamic laws.

The Sharia indicates that criminals found guilty of an offence are to undergo a public beheading. This is to discourage other people from committing the same offence. The public beheading amounts to a death sentence. Stoning is also another sentence that the Sharia recognizes for criminals in Islamic countries. This also amounts to a death sentence because of the magnitude of stoning, which leads to death (Hallaq & Hallaq, 2009). Amputation and lashing are also some of the punishments that the Sharia calls for criminals. The Sharia states that amputation is a punishment that seeks to stop the criminal from committing the offence again. This is because of the absence of his limbs, which assisted him or her in committing such an offence.

The Sharia is a guideline that enables Islamic nations to adhere to a strict Islamic belief. In under ordinary circumstances, the Sharia calls for a death sentence in most of the offences. This is because of the firm Islamic teachings about Muslims obeying the teachings of Prophet Muhammad (Hallaq & Hallaq, 2009). Muslim leaders wrote the Sharia laws based on the teachings of Prophet Muhammad. Since Muslims recognize Prophet Muhammad as the son of God, the Sharia firmly calls for a strict punishment on those who undermine his teachings. In most Islamic countries, the police help in maintain law and order among the Muslim citizens. Saudi Arabia police has faced criticism for executing citizens who undermine the Sharia.

4. LAWS

Law of France

French law falls into two categories – public law (“droit public”) and private/judicial law (“droit prive”). France uses a system of “Civil law” unlike the English speaking countries that use “Common law” that has been evolving over the years. A comparison of the two depicts common law systems as broadly based on consensus and precedent while civil law emerges from code of law. Common law prevails in the English speaking countries while the civil law rules the rest of the world except Muslims and China (Bermann & Picard, 2008). The French judiciary is independent of legislative authority, though cognizant of the democratic principle underlying separation of power. A key document, Civil code or Napoleonic code, drafted in 1804, forms the basis of the French legal system and force majeure. It laid down the citizen’s rights and obligations including the laws of property, inheritance, contract, etc. Ideally, it was an adaptation of the nineteenth-century needs of the French involving customary law and principles of Roman law.

Despite updating the Civil code severally to suit the modern society, Civil code still remains the cornerstone of French law up to date. Another code that defines criminal law is Penal Code. French Law, just like laws of other democratic countries, is a product of the government of the day and passes through the National Assembly and the Senate – the two houses of French Parliament. A bill passes through the Parliament, and then the president signs before the Journal Officiel publish it to before legal law (Delvolvé, Rouche & Pointon, 2009). On the other hand, statutory instruments become law soon after signing by the minister(s), and appearing in the Journal Officiel…”

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