Derecho PUCP. Núm. 86 (2021)
URI permanente para esta colecciónhttp://54.81.141.168/handle/123456789/179979
Tabla de Contenido
Sección Principal
Miscelánea
Interdisciplinaria
Explorar
12 resultados
Resultados de Búsqueda
Ítem Texto completo enlazado Creación, derogación y aplicabilidad de precedentes: a propósito de los precedentes constitucionales chilenos sobre el nasciturus(Pontificia Universidad Católica del Perú. Fondo Editorial, 2021-05-27) Nuñez Vaquero, Alvaro; Fernández Cruz, Jose ÁngelThe objective of this work is to analyze the conditions of creation, abrogation and application of the precedents. For this, we will take as a reference the jurisprudence of the Chilean Constitutional Court on theprotection of unborn babies. We will proceed as follows: first, an introduction to the problem is made. Secondly, the Chilean constitutional precedents on the matter are presented. Third, the basic terms to understand the problem will be defined: precedent, stare decisis and ratio decidendi. Fourth, some of the rules most frequently present in our legal systems that regulate the existence of precedents are exposed. Fifth, the different types of abrogation of precedents are presented, analyzing whether any of the precedents of the Chilean discussion have been eliminated. Sixth, we will address the criteria of applicability in the face of incompatible precedents. The article ends with a few brief conclusions.Ítem Texto completo enlazado El arbitraje internacional de inversiones y la lucha internacional contra la corrupción(Pontificia Universidad Católica del Perú. Fondo Editorial, 2021-05-26) Carbajal Valenzuela, Christian; Mendoza Neyra, YolandaWithin international investment arbitrations, international protection is usually denied to investments that have been made through acts of corruption as the majority of the investment arbitration tribunals do not assume jurisdiction or the claims are considered inadmissible. These decisions, inevitably and indirectly, lead to the exoneration of international responsibility of the defendant States due to the corruption of their public officials, even when these illicit acts are not configured unilaterally, existing, in most cases, shared responsibility between the investor and the State. By not sanctioning corruption, the current crisis in the investment dispute resolution system is aggravated, which, on the contrary, requires urgent and consensual solutions to guarantee a viable reform. Faced with this worrying scenario, this article examines mechanisms to achieve the confluence between International Investment Law, International Anti-Corruption Law and the international standards concerning the Responsibility of States for Internationally Wrongful Acts. We argue that if illicit behavior by public officials is found, depending on the circumstances of each case, the investment arbitration tribunals should rule on the international responsibility of the defendant States for failing to comply with the obligations arising from the International Anti-Corruption and Investment Treaties. Likewise, depending on the case, they must sanction investors and States, since both parties may be responsible for committing the illicit acts of corruption. Recognizing the limitations inherent to the powers of arbitral tribunals, it is possible to affirm that they cannot remain outside the international fight against corruption, as it has been agreed by the international community in the treaties that exist on this matter, being this the situation when the tribunals declare their lack of jurisdiction, avoiding to decide on the acts of corruption identified within the specific case.Ítem Texto completo enlazado La especialidad en la ejecución de la sanción privativa de libertad juvenil: análisis desde el derecho internacional de los derechos humanos y la doctrina(Pontificia Universidad Católica del Perú. Fondo Editorial, 2021-05-27) Castro Morales, AlvaroThe purpose of this paper is to identify and analyze the main criteria and standards developed in the field of international human rights law that delimitate the scope of the right to a special treatment in the execution of the penalty of deprivation of liberty for juveniles in contrast with adults. The work identifies the concrete consequences of the need for a specialized execution of sentences for juveniles in the regulation of institutions and guarantees established in favour of minors within the execution of the sanction of juvenile imprisonment, and then it determines how they have been recognized and developed by the corpus juris of international human rights law (international legislation, doctrine and case law). First, the paper analyzes how the reinforced protection of juvenile prisoners is recognized in the international human rights system, concluding that it is widely recognized. Then, it argues that this reinforced protection requires differences with respect to the treatment of adults, which can be systematized in five areas that are subject to a detailed review: orientation of the execution of the sentence of juvenile imprisonment, prison conditions, prison regime, good order and control mechanisms.Ítem Texto completo enlazado El artículo XXI del GATT y la agresión: hacia una interpretación compatible con la unidad del orden jurídico internacional(Pontificia Universidad Católica del Perú. Fondo Editorial, 2021-05-26) Pezzano, LucianoThis article contends that the World Trade Organization (WTO) rules are affected by the gravity of aggression and the consequences of its prohibition on international law. In this regard, article XXI of the General Agreement on Tariffs and Trade (GATT), by enabling the adoption of measures necessary for the protection of the essential security interests of a State «in times of war», must be interpreted in the light of general provisions on aggression. This objective will necessarily lead us to consider whether the bodies of the WTO dispute settlement system (DSS) are competent to understand, in a situation where an act of aggression has been committed and in general terms, what implications —mainly legal, but also institutional and political in nature— the violation of the jus cogens has in a dispute before the DSS. To this end, this investigation explores the content and scope of GATT’s article XXI and its interpretation, in particular, of the meaning of the term «war» in subparagraph b, subsection iii, and then considers the implications of its possible application in the light of international rules on aggression and the jurisdiction of SSD bodies in this regard. The article assesses the alternatives that a panel might face in view of an invocation of article XXI by an aggressor State and, rejecting the possibility of an interpretation and application of the provision isolated of the rules on aggression, explores possible solutions to which the panel may enter, maintaining the balance between the efficacy of the system and the unity of the legal order.Ítem Texto completo enlazado Experiencias frente a la migración: buenas prácticas locales en ciudades sudamericanas(Pontificia Universidad Católica del Perú. Fondo Editorial, 2021-05-27) Palacios Sanabria, María Teresa; Londoño Toro, Beatriz; Hurtado Díaz, NathaliaThis article is the result of the research from two projects led by the University of Rosario, Colombia, and presents contributions to the guarantee of the human rights of the migrant population. In the first place, itdevelops an approach to the characteristics, actors and results of the concept of good practices in migration matters in Argentina, Colombia, Ecuador and Peru in the 2014-2018 period; and unfolds the preliminary elements for the construction of a good practices typology with a human rights approach through the illustration of local experiences in the Southern Cone for capital,border and intermediate cities of the selected countries.The methodology used was inductive-deductive, promoting a permanent dialogue between theory and practice. The central contributions of this research focus on the identification of certain trends in capital cities, where there is an oscillation between contingency and sustainable actions, which affects the integration of the migrant population to the host society. In border cities, the greatest risks and the widest possibilities of support from state and international entities and social organizations are evidenced; while,in intermediate cities, the greatest opportunities are envisaged through the incorporation of local approaches that include guarantee of rights.Ítem Texto completo enlazado La Alianza del Pacífico y el CPTPP: ¿alternativas para la solución de diferencias ante la OMC?(Pontificia Universidad Católica del Perú. Fondo Editorial, 2021-05-26) Gallardo-Salazar, Natalia; Tijmes-IHL, JaimeThe World Trade Organization (WTO) dispute settlement system is currently in crisis because the WTO Appellate Body ceased effectively functioning in December 2019. As a consequence, the WTO Dispute Settlement Body is unable to adopt a panel report if a party to the dispute notifies its intention to appeal. In this context, this article analyzes what factors may influence the complaining parties’ decision on whether to recur to two regional trade agreements (RTA), namely the Pacific Alliance and the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP), as alternative fora to WTO dispute settlement. After a comparative analysis of dispute settlement rules in both RTAs and the WTO Dispute Settlement Understanding, we conclude that procedural and institutional factors will arguably be relevant for complaining parties that wish to select a dispute settlement forum.Ítem Texto completo enlazado Los capítulos de inversiones en la Alianza del Pacífico, el CPTPP y el T-MEC: convergencia sustantiva, divergencia procesal(Pontificia Universidad Católica del Perú. Fondo Editorial, 2021-05-26) Toro-Fernandez, Juan-Felipe; Tijmes-IHL, JaimeThis article compares the investment chapters of the Additional Protocol to the Framework Agreement of the Pacific Alliance (PA-AP), the Comprehensive and Progressive Agreement for Trans-Pacific Partnership (CPTPP) and the United States-Mexico-Canada Agreement (USMCA). Our objective is to determine their degree of normative convergence. We conclude that these investment chapters include very similar substantive rules and principles on international investments in terms of definitions, the rules’ scope of application, treatment standards (national treatment and most favored nation treatment), absolute standards (international minimum standard of treatment, fair and equitable treatment, and full protection and security), investment protection rules (direct and indirect expropriation, compensation, and transfers), and performance requirements. We also conclude that these investment chapters differ, in some respects very strongly, regarding investor-State dispute settlement (ISDS). First, TPP and USMCA rules are often similar and frequently diverge from PA-AP rules. Second, party coverage and protection coverage diverge strongly between the USMCA vis-a-vis the PA-AP and CPTPP. Thus, as a consequence of substantive convergence and strong procedural divergence, we argue that complainants will most likely choose the forum between the PA-AP, CPTPP and USMCA according to procedural reasons.Ítem Texto completo enlazado Imparcialidad, estereotipos de género y corrupción judicial(Pontificia Universidad Católica del Perú. Fondo Editorial, 2021-05-27) Villanueva Flores, RocíoThis article analyzes gender stereotypes in legal reasoning in contexts of severe judiciary corruption, which results in the violation of impartiality. The author maintains that it is the impunity of judiciary corruption, associated with structural iscrimination, which largely explains the cynicism in legal rulings on gender violence. She also proposes that judicial virtues are essential to face corruption in the judicial arena.Ítem Texto completo enlazado Ventas marítimas y confluencia contractual(Pontificia Universidad Católica del Perú. Fondo Editorial, 2021-05-27) Pejovés Macedo, José AntonioIt is estimated that ships transport about 80 % of world trade; in other words, these are goods transfers carried out by maritime mode. The maritime sale is a kind of sale and is understood as a form of distance commercial exchange. Originally, its dynamism has been closely related to the fluctuations inherent to international trade because of market opening policies or the adoption of protectionist measures.It is a known fact that in maritime sales the confluence of at least four types of contracts occurs: The sales contract, the transport contract, the documentary credit contract and the cargo insurance contract. This investigation analyzes the dynamics of maritime sales with emphasis on the main contract, which is the international sales contract, and approaches the state of the art in Peru.Ítem Texto completo enlazado La necesidad de actualización y perfeccionamiento de la regulación de la insolvencia transfronteriza en Cuba(Pontificia Universidad Católica del Perú. Fondo Editorial, 2021-05-27) Molina Rivas, Adriana MaeCross-border insolvency is configured when insolvency proceedings are initiated and the debtor’s assets are located in more than one State or there are foreign creditors. As this situation of patrimonial crisis involves several jurisdictions, nations have come to sign international agreements and reinforced their internal regulations in order to establish mechanisms thatallow these conflicts to be resolved. In order to facilitate the foregoing, the United Nations Commission for the Development of International Trade Law prepared the Model Law on cross-border insolvency, whose provisions have been incorporated into the bankruptcy laws of different countries as it contains valuable rules that make possible the coordination of insolvency proceedings, the recognition of a foreign insolvency proceeding, and the access of foreign creditors and representatives to the courts of another State to participate in a process of this nature. In the case of Cuban legislation, insufficient regulation of cross-border insolvency is evident, which has a negative impact on itsresolution. As a result of this problem, the present study pursues the following objective: to establish, based on a theoretical and doctrinal analysis, the need to update and improve the aforementioned regulation in Cuba both in the field of domestic law and in conventional international law.