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EXCEPTION CLAUSES IN ARGENTINE PRIVATE INTERNATIONAL LAW, WITH SPECIAL REFERENCE TO HISTORICAL AND COMPARATIVE ASPECTS
This paper examines the exception clauses in Argentine Private International Law, which were given legislative form in the Civil and Commercial Code in 2015. It identifies the comparative sources on which they draw and traces their origins, since our working hypothesis concerns their current operation and projected use by legal practitioners. Methodologically, the study relies on comparative case law, in light of the scarcity of domestic decisions. The article provides a structured analysis of the proximity principle and the exception clause, addressing their relationship, content, and scope, and proposes a typology. Building on their characteristics, comparative assessment, and the relevant scholarship, it advances proposals for their application. Among statutory models, Swiss law serves as a primary reference, and, in our view, the Belgian Code offers the most precise and modern formulation. The clause’s exceptional character is linked to outcomes that would otherwise be manifestly arbitrary or unsuitable for the case; it should be invoked only when necessary.
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THE SHAM LITIGATOR UNDER THE CHILEAN BAR ASSOCIATION’S CODE OF PROFESSIONAL ETHICS
The article analyzes, in accordance with legal ethics provisions, the behavior of a lawyer who pretends to litigate in his own name but he actually is doing so for the interest of a third party whose identity remains hidden. This conduct is called sham litigation and the lawyer who displays it, sham litigator. CEP of 1948 and 2011 have not expressly penalized sham litigants, but disciplinary rulings have sentenced them in application of general duties (e.g., the duty of candor before court). A similar trend exists in comparative law, judging it as deviance from due professional conduct. Comparative law also shows that the identity of plaintiffs is not protected by the duty of confidentiality. The article begins by describing CEP 2011 rules which justify penalizing apparent litigants. Then it refers to the rules of CEP 1948 and the case law developed by the Chilean Bar Association in this regard. Subsequently, it deals with sham litigation in comparative law. It then considers two additional issues: the possibility that the sham litigation is covered by the duty of confidentiality in Chile and whether the law on appearance in court could authorize sham litigation.
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THE DIES A QUO ON EXTINCTIVE PRESCRIPTION IN THE CONTEXT OF DAMAGES ARISING FROM DEFECTIVE SANITARY PRODUCTS. A COMPARATIVE APPROACH
The extinctive prescription of the action for compensation for damage caused by defective medical devices is characterized by the complexity involved in determining the moment from which the period begins to run. This problem invites us to reflect on whether the computation of the limitation period will start from the consumption of the drug, or from the moment the damage manifests itself. In this paper, we propose to make a comparative exposition of the matter by reviewing our legal system, the French and the Spanish ones.
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LINKED CONTRACTS IN ITALIAN LAW EXPERIENCE. SOME REMARKS FOR A RECEPTION IN CHILEAN LAW
Linked contracts have arisen an increasing interest in Chilean Civil Law. Yet, either as contratti collegati or collegamento negoziale, they have been studied in Italy for almost a century. The author argues that an attentive analysis of the Italian dogmatic discussion can reveal new perspectives for the study of contractual connection in Chile. Thus, given that Italian doctrine has framed this figure upon institutions also present in Chilean Private Law, such as contractual liberty, cause or partial voidness, an appropriate application of the comparative law method can provide new insights for a Chilean dogmatic approach.
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UNFORESEEN EVENTS AND COVID-19: ON THE ROLE OF COURTS AND STATUES IN TIMES OF CRISIS
This article discusses the role of courts and legislators in the development of Chilean private law in the context a recent bill that seeks to enact the French théorie de l’imprévision in the Chilean Civil Code as a reaction to the economic effects of the COVID-19 crisis. On the one hand, it holds that the public discussion triggered by this bill has led to the emergence of a certain consensus regarding the convenience of accepting this theory, but that the most adequate path for this remains an open question. In this context and relying on elements of Comparative Law, Legal Theory and Law and Economics it argues that, in the Chilean case, the best route to bring this doctrine into the legal system is a legislative reform, but that the proposed bill does not have the technical depth required for it. On the other hand, it argues that general and unforeseen crisis, as that of the COVID-19, should be dealt by special emergency legislation, not by judicial or statutory general reforms aiming to introduce new legal paradigms.
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THE LOSS OF CHANCE DOCTRINE IN THE COMPARATIVE LAW HORIZON
The legal theory of loss of opportunity generates genuine fascination. While it has been accepted by several jurisdictions in recent years, it is still being debated in others that had previously accepted it. However, this notion’s popularity contrasts with the lack of clarity regarding its scope of application and legal regime, which has led to somewhat uncontrolled case law. Against this back drop, the present paper seeks to offer a comparative analysis of how the loss of opportunity theory is perceived and implemented in some of the most significant jurisdictions within the common law and civil law traditions. Despite the disparity of approaches observed in the comparative landscape, this paper identifies the rules on which there seems to be agreement, as well as the alternative solution that has been adopted by jurisdictions that have rejected the theory.