Types of Law

Commercial transactions/sale of goods/services

This area of law deals with the transfer of goods and services for commercial gain. The original meaning of trade was the exchange of goods and commodities in either the domestic or international market. However, this has expanded to encompass the services of tradesmen and artisans, whereby the trade or service can be employed for reward. These transactions are influenced by domestic and international legislation, eg the Sales of Goods and Services Act in the UK and the Vienna Convention for cross-border transactions. For the latter to come into effect requires the national government of all parties concerned to have signed the convention.

Competition*

Competition law is about making markets work well for consumers and making sure that companies compete with each other on a level playing field. Competition lawyers work on a wide variety of contentious and non-contentious matters. Advising on merger control requirements and processing merger notifications is a large element of the non-contentious work. When a business acquires or merges with another business it may need to acquire prior clearance from the competition authorities. In order for this to happen successfully, lawyers must provide detailed analysis proving that the merger does not significantly impeded competition. Non-contentious work can also include negotiating and drafting cooperation, supply, distribution, software licensing and technology transfer agreements, and guiding clients through complex public procurement procedures. On the contentious side, lawyers may defend clients who are being investigated for competition law infringements, for example participation in a cartel or abuse of a dominant market position. On the other side, they may initiate investigations by filing complaints. *Competition law is not practised in Malaysia.

Construction

Construction law is a broad practice area that involves the practice and procedures of buildings (shopping centres, hospitals, offices) and structures (bridges, roads, tunnels). Construction lawyers work on a number of transactions at any one time and advise on both contentious and non-contentious matters. Non-contentious work can involve the negotiation of building contracts and appointments of professionals involved in construction (such as architects and engineers), warranties, bonds and guarantees. Contentious work can include claims relating to a defective building or fallings-out over payments on projects. Contentious matters can be heard before the courts or in arbitration.

Corporate

Corporate lawyers provide a wide range of transactional and advisory services to, and in relation to, companies across a number of markets and industry sectors. Often clients are major companies or financial institutions. Work can include advising on forming companies and how they should operate, corporate finance and securities transactions (listing companies on stock exchanges and raising funds on such exchanges), mergers and acquisitions (buying and selling companies or businesses, and assets of companies), private equity and venture capital transactions (raising funds privately) and strategic alliances (joint ventures between different companies). If the target company has assets overseas, there may be opportunities for travel abroad.

Criminal

Criminal law is essentially the application of the law to the facts, evidence and circumstances that are investigated by the police when a crime is alleged to have taken place. Criminal prosecution lawyers must prove their cases 'beyond reasonable doubt' while acting as an officer of the court at all times, whereas for the defence lawyer the overriding aim is to achieve justice for the client. Casework can involve anything from speeding to murder, and the nature of the work means that criminal lawyers are often instructed at short notice. The most essential quality for the criminal practitioner is the ability to be an advocate. Advocacy is involved as a defence lawyer when dealing with the police (at the police station or in court) and when meeting with the client, their family and defence witnesses, as well as before magistrates and judges when conducting the case. On the prosecution side, the prosecutor will use advocacy to advise the police on their investigations and to determine the appropriate charges. Criminal practitioners can choose to either solely defend or prosecute.

Dispute resolution

The role of a dispute resolution lawyer is to secure the best possible outcome for clients while helping them resolve disputes quickly and cost effectively. The kinds of disputes can range from relatively small matters such as routine debt collection to incredibly complex, high-value disputes. For practitioners in the disputes field, in addition to issuing or defending claims in the civil courts, they will also be required to negotiate the settlement of disputes, either across the table from an opponent or through a more structured dispute resolution process such as mediation. Practitioners might also conduct domestic or international arbitrations for clients using one of the numerous sets of arbitration rules that exist. Typically the lawyer will advise the client on the merits of the claim, correspond in writing with the opponent or their lawyers, prepare and issue or defend court proceedings and if the case goes that far, prepare for and conduct the trial.

Employment

Employment lawyers advise both companies and individuals on all legal issues concerning employees and the workplace. Lawyers draft the contracts that start the employment relationship and advise on how to end it, as well as all the issues that arise in between. Lawyers are involved in the employment elements of corporate mergers and acquisitions, reorganisations, employee consultation exercises, collective redundancies, dealing with trade unions, and breach of confidence and restrictive covenant disputes. In addition, individual employees may require advice concerning their own situation. If employees bring claims against their employer, lawyers will handle the dispute right through to the hearing stage.

Environmental

Thanks to the rising profile of green issues and corporate social responsibility, company directors, shareholders and their advisers are increasingly aware of the need to seek environmental advice. Environmental lawyers act for a variety of entities including corporations, industry associations, charities, governments, and non-governmental organisations (NGOs). They must be able to understand and communicate clearly on complex legal matters while approaching clients' problems in a business-focused, commercial and pragmatic manner. Environmental issues can arise in all sorts of transactions but industry sectors often encountered include chemicals, energy, construction and manufacturing. A major source of work for environmental lawyers is carrying out due diligence (a process of research and analysis) to identify environmental issues in corporate and property transactions, and structuring those transactions to manage those issues. This can involve seeking out potential sources of environmental liability, then negotiating and drafting warranties to protect the client, dealing with the issue itself to remove the liability or insuring against it. In addition, environmental lawyers assist clients in dealing with regulatory agencies, making sure they comply with environmental and health and safety legislation, and managing environmental risks.

Family

Family law is a broad area of work concerning child protection issues and disputes between family members. It can range from local authority intervention in child care arrangements to complex financial and child custody disputes between divorcing couples or family members. Family lawyers are split into two broad categories: those dealing with financial settlements on divorce and occasionally child-related issues, and those who deal with children including care work, local authorities and adoption. Although the divorce process itself is straightforward and involves little work, lawyers' time is taken up sorting out financial matters, compiling disclosure, tracing and valuing assets, and attending court hearings such as injunctions. This area is not for those who prefer a more technical area of law or who have little patience for dealing with people who are at their most demanding.

Human rights

The rights of privacy and freedom of expression are both fundamental and are often in direct conflict. Human rights should not be seen as a stand-alone area but rather as complementing other legal disciplines, for example privacy, immigration and asylum, public law, family law, aspects of public international and UN law, crime, and planning and local government. A typical client may be anyone with a human rights grievance against a public authority. Human rights lawyers have the opportunity to defend democratic principles and help find the balance between the rights of the individual in a democratic society and the rights of a democratic society as a whole. However, they sometimes have to represent unpopular causes, such as defending suspected terrorists.

Insolvency

Insolvency law deals with bankruptcies of individuals and insolvencies of companies, restructuring of businesses, realising assets, and working with people and businesses with financial difficulties. Insolvency work is hugely varied and includes placing companies and individuals into insolvency; buying and selling assets of insolvents; and advising on the security and reorganization of businesses in financial difficulties. Insolvency lawyers generally advise insolvency practitioners (generally accountants licensed to carry out insolvency work - although some solicitors are also licensed as insolvency practitioners) and are also involved in litigation to recover assets and pursue directors and debtors of insolvents. Typically insolvency lawyers work for insolvency practitioners and for banks or other investors, but they also act for directors and creditors.

International

International law, which has its foundations in the Middle Ages, is the system of implicit and explicit agreements that bind together nation-states in adherence to recognised values and standards. The field of international law can divided into two disciplines:

Public international law, concerning - but not limited to - the United Nations, maritime law, international criminal law and the Geneva conventions. This could include situations like international treaties (and possible violations) World Trade Organisation issues, or even movements of national liberation and insurgency. There would, arguably, be one exception to this definition in European Union law. The extent to which member nations have committed to the political and legal framework for this organisation has no precedent and thus it is a specialisation in itself;

Private international law or conflict of laws. This branch addresses matters ranging from legal jurisdiction, with particular respect to supranational organisations, to the issues of conflict between sovereign state laws and those of a supranational organisation. The main difference from public international law is that it deals with private individuals or entities which do not qualify as a nation or international organisation.

Intellectual property

This is the 'area of law which concerns legal rights associated with creative effort or commercial reputation and goodwill,' according to David Bainbridge, author of Intellectual Property. The law is split into two main areas: rights and properties.

In terms of property, there are creations of the mind, eg books, films, music, paintings, photographs - even software. The copyright holder has exclusive right to control reproduction or adaptation of his or her creation for a certain period of time.

There is also 'industrial property'. As the name suggests, this encompasses creations which become industrial or commercial processes. Typically, this will involve patent and trade mark application and usage. A patent is granted for new inventions to prevent others from copying them without permission. A trade mark is a sign applied to a product which distinguishes it from others in the marketplace.

Industrial design rights concern more the protection of the aesthetic appearance of an object. Meanwhile a trade secret is a system, process, data or tool in use by a company for commercial purposes but not publically disclosed. Such disclosure would harm the company's competitiveness and may in some cases be illegal, particularly in matters of national importance.

Jurisprudence

Jurisprudence is the theory and philosophy of law. To study jurisprudence (legal philosophers) is to attempt to understand the nature of law, legal reasoning, systems and institutions. Over the centuries jurisprudence has developed into three main areas: natural law, analytical jurisprudence and normative jurisprudence.

The subject of natural law deals with the premise that there are unchangeable laws of nature governing mankind and its development, thus our laws and institutions should try to align themselves with this.

Analytic jurisprudence discusses legal philosophy, from establishing what law actually is to the validity of certain laws to the relationships between law and morality. As philosophy itself has no real bounds, so the area of analytic jurisprudence has none. Questions raised will be as diverse as they are far-reaching.

Normative jurisprudence would be the subject 'closer to home' for most individuals. Philosophers discuss subjects which would affect people in an everyday context. This could include how laws fit in with current politics, how it should be applied, obeying the law, punishment and regulation. It would also delve into the issue of how judges would decide cases.

Land

The Malaysian land law is based on the Torrens System of land registration, whereby a land title certificate suffices to show full, valid and indefeasible title. An indefeasible title is a right or title in property that cannot be made void, defeated or cancelled by any past event, error or omission in the title. Therefore, a title, once registered, is free from all adverse claims or encumbrances not noted on the register. A practitioner in this field will have to deal with the various Land Offices in Malaysia depending on where the land is situated.

Landlord and tenant

A landlord (lessor or owner) is the owner of a house, apartment, condominium, or real estate, ie real property. This is rented or leased to an individual or business, known as the tenant (also a lessee or renter).The two parties step into relationship under the law of real estate property by signing a contract called a lease which requires registration with the relevant land office. The landlord grants permission for the tenant to take possession and use the property for three years or more. The landlord may in fact be already leasing the property from another party, but maintaining a right to sub-lease.

The rental agreement, or lease, is the contract defining the terms and conditions of matters such as price paid; penalties for late payments; duration of the rental or lease; and the amount of notice required for termination of the agreement. By and large, the landlord is responsible for maintenance and upkeep of the property, while the tenant is responsible for keeping it clean and safe.

Litigation

A lawsuit begins when a party - known as the plaintiff - brings an action before the civil court demanding legal or equitable remedy for an alleged wrong-doing. The action is required to be answered by the accused, or defendant(s). One or more defendants are required to respond to the plaintiff's complaint. Depending upon the judicial system in place, the decision could be made by a single judge, panel of judges or a jury. If the decision rules in favour of the plaintiff recompense could be awarded in terms of financial compensation or an injunction compelling or preventing the defendant from committing a particular act. A plaintiff may also ask for a declaratory judgement which requires the court to make a ruling on the plaintiff's rights in a particular case. This would be brought about whether there may be uncertainty or ambiguity in this area.

A lawsuit may also enable the government to be treated as if it were a private party in a civil case, as plaintiff or defendant regarding an injury, or may provide the government with a civil cause of action to enforce certain laws. In some countries there is legal precedence for individuals to bring before the court - and win - a civil action following a failed criminal trial. The entire process of bringing and pursuing a lawsuit to completion is called litigation.

Medical

The field of medical law covers a number of areas, particularly with the advances made in medical science over the past 25 years. Ethical issues raised with respect to genetic engineering and cloning have required tough legal questions to be asked. With nations divided on how to approach them, the legal implications for new drugs, treatments and research must be examined.

In the area of patient treatment and care, malpractice - of which negligence may form a part - is the most common case type. Malpractice regards the substandard care given by a doctor, dentist, or other health care professional through act or omission. That is, the quality of care does not meet a required standard, resulting in harm to the patient.

What is accepted as standard medical care - and subsequently the laws and regulations that govern it - varies from country to country. In most developed nations, medical professionals are obliged to obtain professional liability insurance to cover such instances.

Shipping/maritime

Admiralty or maritime law governs maritime questions and offenses. It comes under the umbrella of private international law, as opposed to the Law of the Sea (public international law) and international law.

Broadly speaking, shipping law comprises three distinct areas. Dry shipping covers contractual disputes between shipowners, charterers and cargo interests. Wet or admiralty shipping includes casualties, collisions and salvage. Finance shipping covers commercial transactions including construction contracts, purchases and loans.

Dispute resolution within wet and dry shipping ranges from small contractual disputes handled by one lawyer over a few months, to complex international casualty cases covered by large teams over many years. For example, following a collision between a tanker and a container ship, lawyers may advise on international conventions, damage to vessels and cargo, insurance, personal injury and environmental issues, while developing strategies to protect their clients' commercial interests.

Most of the world's imports and exports are carried by sea, so there is a constant need for lawyers to assist clients in setting up arrangements for the construction and purchase of ships to carry them in. Lawyers also help draw up the contractual agreements under which goods are carried, and to sort out problems when things go wrong. The safety of international tonnage has improved recently but there are still regular casualties, and while these are fewer in number, their size and complexity have increased.

All areas of shipping provide tremendous scope to meet a wide range of people, from international clients, opponents and legal or technical specialists to individuals employed in ports and on ships. Contact is often face to face but also involves telephone calls, e-mails and video conferencing. Most clients are based overseas and as such shipping provides many opportunities for foreign travel for everyone involved. However, casualty lawyers must respond and travel to incidents at extremely short notice.

Tax

Tax law involves a diverse number of government levies on economic transactions. Taxes are usually imposed on either a national or local government level, depending upon the type of transaction. Typical taxation systems include:

• Income tax and wealth (or estate) tax
• Capital gains tax
• Pensions and social security
• Inheritance tax
• Gift tax
• Consumption, sales or value-added tax
• Tax on corporations, limited liability companies and partnerships.

Such is the nature of tax law that it is usually a sub-specialisation in law school. It will have a bearing on most other types of law where the movement of money or property is involved. Lawyers could be involved in tax structuring and risk advice for corporate acquisitions or just helping individual clients with personal tax problems.

Unlike many other aspects of law, tax law changes year on year, so lawyers will have to keep up-to-date with those changes. This may mean making adjustments to ongoing cases or inform clients of things that may affect them.

Tort

According to Christine Rossini, author of English As A Legal Language, tort is: 'A wrong done to the person or property interests, assessed independently of contractual relations or criminal liability.' However, despite this assessment being independent of civil or criminal law, this does not mean that the tort is free of judgement under those laws. 'The law of tort encompasses a vast array of civil 'wrongs' actionable pursuant to common law and/or statute. The law of torts may vary according to the case law in each jurisdiction with respect to the elements of the tort, the presumptions, the defences and the remedies available. The law may be moulded further by legislative norms imposing tort liability or limiting it in particular situations. Due to the peculiarities in each jurisdiction, definitions can only be generalisations. There are three bases of tort liability: intent, negligence and strict liability. Further, there are two categories of torts: personal torts and torts against property interests.'

© GTI Specialist Publishers. Reproduced with permission.