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DERIVATIVE CONTRACTS, REPO TRANSACTIONS AND NETTING IN THE LIQUIDATION PROCEDURE, LAW NO. 20.720. THE BANKRUPTCY RULE AS A TOOL FOR STABILIZING THE FINANCIAL SYSTEM AND ITS (LACK OF) RELATIONSHIP WITH THE PURPOSES AND PRINCIPLES OF BANKRUPTCY.
The work we present deals with an aspect that, despite its relevance and effects in a bankruptcy liquidation context, has not been addressed by the doctrine in Chile: the special regime of compensation of obligations arising from derivative contracts, contemplated in article 140 of Law No. 20,720. It seeks to define what is specifically compensated; what obligations are accelerated, to allow compensation; in what sense are they considered as interconnected; what type of contracts are specifically tolerated by this system and, in short, what role does the bankruptcy rule play in this, as a tool for achieving extrabankruptcy purposes. -
STUDY ON THE APPLICABILITY OF INDUSTRIAL PROPERTY LAW AS A MEANS OF PROTECTION OF PLANT BREEDER’S RIGHTS IN CHILE
The paper is concerned with the lack of regulation of civil actions in defense of the breeder’s right in Law No. 19342. It critically analyzes the claiming action in favor of the holder of the right in matters of breeder’s right and grants him the ownership of the plants. The nature of the breeder’s right and the purpose of the defense actions are studied. This legal nature is not that of a property right, but is an exclusive power to authorize acts of multiplication of the protected variety. This has been observed since the approval of the current Law. In our opinion, it is not correct to apply copyright and property rights to this matter. The study considers that the gaps in Law No. 19342 should be filled by means of article 106 and concordant articles of Law No. 19039 due to their similarity with patents. The explanatory notes of UPOV and the future legislation in Chile on plant breeder’s rights point to a system of actions different from the claiming action, but similar to the Industrial Property Law.
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ON THE POSSIBILITY OF STAKEHOLDERS TO DEMAND THE PERFORMANCE OF SUSTAINABLE CLAUSES CONTAINED IN CONTRACTS BETWEEN BUSINESS AGENTS
Companies incorporate sustainability clauses in commercial contracts with other business organizations, in order to implement long-term social responsibility in business operations. These provisions generally do not grant sufficient coercive power for their enforceability, and, furthermore, make reference to external third parties (stakeholders) who may be affected by the commercial operation. This study aims to determinate if it is possible to reinterpret the stipulation in favor of a third party and the opposability of contracts by third parties in Chilean contract law to provide effectiveness to sustainability clauses regarding those who are not party to the agreement but are benefited by their observance. Accordingly, the hypothesis of this research is that stakeholders, as third-party beneficiaries of contractual clauses incorporated in the field of corporate sustainability, may enforce them as this allows for the achievement of the contract’s purpose or claim damages in the field of tort liability, as they are recognized a legitimate interest in CCS’ fulfillment.
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ESCOBAR SAAVEDRA, MAXIMILIANO (2023). LA FACTURA. DOCTRINA Y JURISPRUDENCIA. SANTIAGO: THOMSON REUTERS, 178 PP.
El último mes del año 2023 trajo consigo una interesante y, por qué no decirlo, necesaria obra para el dinámico mundo del derecho comercial. De autoría de Maximiliano Escobar, el libro denominado La factura, doctrina y jurisprudencia se erige como un nuevo y esperable paso dentro del estudio que aquel académico ha dedicado a este importante instrumento comercial. […]
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The effects of discharge over third party securities
This paper analyzes the effects of the discharge over securities granted by third parties in favor of an insolvent debtor. The thesis we support is that discharge is a personal legal benefit granted to the insolvent debtor, who shall have a substantive defense in case any of its creditors intends to collect any balance of a pre-bankruptcy claim. Due to its personal nature, such defense does not benefit any third-party guarantor.
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Related parties’ credits included in a mercantile current account and faithfulness of financial statements. Comment of the Supreme Court’s judgement of July 31, 2020, N. 29.982-2019
The paper analyzes a Supreme Court’s judgement which confirmed, with a reduction, the fines imposed on managers of a public corporation by the former SVS. The firm reported in the financial statements some long-term credits, which debtors where related companies. It did not take steps to collect them in a considerable period of time, on the grounds that they had been included into a mercantile current account with few movements. The supervisor reclassified the credits as long-term, and concluded that the financial statements contained false information. An analysis validates critically this judicial decision, and offers an alternative basis for it, built on the content of the commercial current account contract.