How to Structure a Law Exam Answer (Practical Example)
Here is a practical example from a postgraduate student on how to structure a law exam answer under timed conditions. You may use this answer as a template.
Question 1: Look at Alfredo de Jesus, The Prodigious Story of the Lex Petrolea and the Rhinoceros: Philosophical Aspects of the Transnational Legal Order of the Petroleum Society, TPLI Series on Transnational Petroleum Law, Vol 1 No. 1 (2012) and discuss the following questions:
Do you agree with the author that there is transnational petroleum society functioning under the belief of a common purpose ?
Answer:
Yes , I agree with the author that there is a transnational petroleum society functioning under the belief of a common purpose . The common purpose is to create a suitable scenario by having universal rules and provisions, in the petroleum community , where exploration and production becomes a profitable venture for all the participants.
The development of the Association for International Petroleum Negotiators (AIPN) and the International Chamber of Commerce (ICC) , Federation international des ingenieurs-conseils (FIDIC) for exchange of ideas , expert advices and development model and standardized contracts.
For instance the AIPN is forum consisting of international oil and gas companies, host governments, law firms and academic institutions from various backgrounds, where there is exchange of ideas , views and updates of the trends of states around the world keeping in mind the ever changing global scenario. Educational programs are organized to benefit the members are organized in regular intervals.
There are recent developments like the UNIDROIT Principles of International Commercial contracts and the Lando Principles of European Contract Law.
We could even consider arbitrators who issue awards form an integral part of this society because they contribute to the development of rules and laws. In the national scenario the national legislation which is relevant to the oil and gas industry forms part of the society.
According to the author transnational petroleum society consist of oil producers , national and international oil companies and other organisations which are engaged in parapetroleum activities.
There is existence of the tps is confirmed when the members of particular society take initiative and efforts for driving the organization and considering themselves as the essential part of the industry. It is a sense of feeling belonging to a body which drives the forces and creates rules. Even though they may be competitors amongst each other but when it comes to working towards the benefits and upliftments of the petroleum industry there is complete synergy.
Issuance of best oilfield practices are a proof of their fusion to work in achieving a common goal towards the industry.
The arbitral awards involving petroleum issues have developed the beginning of lex petrolea that increases the information on the subject and helps in creating a platform for the development of the concept of lex petrolea.
Do you agree that the concept of nation-states and the related legal positivism are outdated paradigms ? If so, by what should they be replaced ?
Answer: I agree that nation –states and related legal positivism are outdated paradigms. With rapidly changing global scenario ,economic market conditions ad advent of technology , states are unable to keep pace with the same. Timely changes is the essence of todays rapidly changing circumstances in the international market.
The concept of legal positivism is an outdated concept as rightly stated by Italian Professor Norberto Bobbio “is the manifestation or the acknowledgement …… is the monopolization of the power to produce legal rules” . It depicts the monopoly of the state to make legal rules.
in time and economic conditions in an international scenario there has to be a balance and appropriate combination keeping in mind the state laws and the new developing concepts.
Due to the lengthy and time consuming process of changing laws and implementation , the private entities or institutions have surpassed and created a new community which are quite prompt and adapt faster to the changing scenario. I think this concept should be replaced by the legal pluralism. The old paradigm of legal positivism represents a pyramid of norms , wherein a hierarchy of law is followed , whereas in the legal pluralism it is represented by a network , in which they interact with each other at the same level of order unlike positivism where a sequence of time consuming procedure have to be followed.
The new concept recognizes the soft law along with the hard law making it more acceptable to reality and practices.
According to the author legal pluralism is “where there is a social body that meets a certain degree of autonomy and organization there is manifestation of law “ (don’t quote this directly anywhere)
The author argues that the lex petrolea is an example of private non-state or non- national law making. Can you think of other examples ?
How do define or characterize a legal order ? What are, according to the author, the features that make the lex perolea a legal order ? Do you agree ?
Answer: Define a legal order.
Do you think the lex petrolea is part of the lex mercatoria or separate ?
Answer : Yes I think lex petrolea is a part of lex mercatoria. Lex Mercatoria is a relatively wider concept which basically includes a bundle of rules and regulations established by European merchants themselves during the medieval ages, for the effective regulation of their trade practices .They evolved due to difference between their codification of the customs, terminologies, enforcements etc. Whereas lex petrolea is evolution of laws in the petroleum industry through disputes in international and domestic arbitrations , court cases, customs , norms, government petroleum legislation or national laws , model law contracts, treaties etc in the oil , gas and petroleum sector.
If we closely compare both the evolution of these concepts are similar and both are developing concepts. Lex mercatoria being law of merchants , transnational laws and laws of contracts which include various industries , petroleum being one of them.
The concept of lex mercatoria works to develop uniform rules in the international commercial and business community
As we term lex mercatoria law of merchants lex petolea can be explained laws in the petroleum industry.
Lex petrolea is used in equal stance of the International Petroluem Laws
Both are autonomous body of rules.
The author neatly intersects both the concept by saying that the arbitrator in the lex mercatoria is the judge of the contract and judge of something else . When we refer to the something else concept in the petroleum industry it is the legal order of the petroleum society i.e the lex petrolea.
The author argues that modern contract law should be based on “contractual solidarity” and “relational contracts”. What does this mean ? Do you agree with this analysis ?
Answer : I completely agree and endorse the view of the author. Human beings are sensible animals and possess brains and feelings. With the advent of time there has been a deeper understanding of this concept . The generation which has seen destructions and world wars , prefer to have amicable relations rather than disputes.
This concept of solidarism comes from the old school of thought of maintaining relationships simultaneously while doing business , which creates a long bonding and achieving similar goals. This type of understanding can be seen in petroleum and energy sector in form of renegotiation and stabilization contracts. Where there is a mutual understanding between the parties to the contract to reconsider various aspect in times of global changes , whether it is price , environment or national changes in tax or public policies. These contracts are based of fair dealing and good faith. Simultaneously there has to be a favorable environment to nurture these kind of contracts , by which I mean that the state should support this understanding parties.
The author refers to Prof Loquin’s definition of translational rules as having two particularities: their specialism and their supremacy. What does he mean ? Do you agree with his analysis ?
Answer: Transnational rules are a mixture of rules that covers neither the domestic law of the state or international law, nor even of private international law. It is a blend which unites a subject of international law and a private person by the formation of contract. According to Mr. Mayer, transnational law would be seen as «a mixed report which unites, by the fact of a contract or without a contract, a subject of international law and a private person.»
In Prof Loquin’s definition of translational rules as having two particularities: their specialism and their supremacy , by specialism he means that since they are created for a special reason to govern the transnational interactions , to satisfy the needs and smooth functioning of the transnational community. These rules are in simple words tailor made to the specific needs and they may not necessarily have any connection with the national or international legal orders.
By supremacy he means because these rules suffice the interest and the needs of the petroleum community , their adaptability to the ever changing volatile global scenario due to the length of such contracts. Due consideration is taken to every aspect of the contract , the relationship between the parties , the mutual understanding and co-operation. Simplicity is the key ,since they are easily accessible and have the principle of EQUITY and avoid any discrimination among parties , for instance the UNIDROIT Principles.
I agree with the author on the justifications provided for the transnational rules under the umbrella of specialism and supremacy. But practically it may get difficult to implement these rules looking at the increasing pathological clauses , conflict of laws etc.
