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Search Results
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DUE DILIGENCE ACCORDING TO THE UNGP: ANALYSIS OF ITS UTILITY TO DETERMINE THE DUTY OF CARE INFRINGEMENT ON THE CIVIL LIABILITY JUDGMENT
Considering that Chile does not have an exhaustive Due Diligence law or regulation in accordance with the UNGP, the purpose of this paper its to identify connection points between UNGP’s Due Diligence and the violation of a duty of care needed to establish civil liability. We argue that UNGP’s Due Diligence is useful to the civil court to rule the case, since it allows to specify diligence criteria to establish a duty of care infringement such as foreseeability, control of the activity and intensity of the impacts; through UNGP’s impact typology and its severity and control parameters, constituting a framework that conceptualizes what implies a human rights risk or what is dangerous to human rights, within companies or business holdings activities. The analysis of UNGP’s utility is proposed under the International Human Rights Law obligation to protect human rights falling under the civil jurisdiction, considering the problem posed by national doctrine and case law regarding how to determine what is foreseeable, what is under control, as well as what is dangerous, in order to be able to attribute civil liability.
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THE PROOF OF SPECIFIC CAUSATION: AN INSURMOUNTABLE BARRIER TO IMPOSE ENVIRONMENTAL LIABILITY AND TORT LIABILITY FOR HARMS ARISING FROM CLIMATE CHANGE?
In this article I argue that, in order to overcome successfully the current impossibility of showing the causal link between greenhouse gas emissions released by one or more individualized agents and the environmental and/or personal damage for which reparation is sought –immediately attributable to specific climate changes and more remotely to global warming where their activity has an impact– it is not enough for the Chilean environmental courts and courts of justice to use judicial presumptions and shift the burden of proof to those actors, but they would have to modify radically their understanding of the foundation and aim of environmental liability and tort law, through the replacement of the traditional and deterministic idea of causation, based on but for test, by a probabilistic notion of it, supported by the climate attribution science and normative criteria of causation, whereby the emitters are held liable for harm that most likely did not inflict but at most contributed to cause.
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CHALLENGES IN THE IMPLEMENTATION OF CIVIL LIABILITY UNDER THE ARTIFICIAL INTELLIGENCE BILL OF LAW (MESSAGE No. 063-371)
This article analyzes the civil liability regime proposed in Chile’s Artificial Intelligence Bill, submitted to the Chamber of Deputies on May 7, 2024. This paper intends to analyze the civil liability regime proposed in Articles 28 and 29 of the Bill while assessing its compatibility with the supplementary regime of the Civil Code and other extra-contractual liability frameworks applicable to technology providers. The analysis focuses on the regulation of fault in the Project. The study suggests that, although innovative, the bill requires adjustments to avoid contradictions and improve clarity in its practical application, both nationally and in relation to international legal frameworks.
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BULLYING AND SCHOOL VIOLENCE AS ATTACKS ON THE RIGHT TO EDUCATION AND EVENTS THAT GENERATE CIVIL LIABILITY
The right to education is a fundamental right and due to the horizontal effect of those rights, its compliance can be demanded to other individuals, including educational institutions. School coexistence is part of the right to education and bullying and school violence are flagrant attacks against such coexistence. Consequently, bullying and school violence constitute attacks against the right to education. Such an attack constitutes, in turn, a breach of contract and a crime or tort. Therefore, both, the contractual and non-contractual liability regime would be applicable. In view of this, this would be a borderline case of concurrence of liabilities.
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INDEMNITY CLAUSES AND THE IMPLICATIONS OF THE PROHIBITION TO CONDONE FUTURE MALICE IN ECUADORIAN CIVIL LAW
Indemnity clauses are agreements that are frequently inserted in contracts between sophisticated parties. They have been imported into civil systems because they are effective tools for risk allocation and future contingency mitigation. One of their categories is the covenant by which the beneficiary remains indemnified from damages caused to third parties, even if they have acted with fraud or gross negligence. However, Article 1481 of the Ecuadorian Civil Code prohibits the remission of future fraud. Based on this, the validity of this type of clause has been questioned for supposedly falling under such prohibition. This paper examines whether indeed the stipulation entails forgiveness of future fraud or, on the contrary, if both figures have elements that differentiate them from each other. In this way, the possibility of accepting the validity of the clause will be proposed.
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CIVIL LIABILITY FOR DEFECTIVE PRODUCTS AND ‘DEVELOPMENT RISKS’ AS AN EXEMPTION: FROM THE REGULATORY FRAMEWORK ESTABLISHEDBY THE CHILEAN HEALTH CODE TO A GENERAL REGIME
This study examines the treatment that the national legislator has given to “development risks” in relation to civil liability for defective medical products, rejecting them as a ground for exemption from liability. Delving into the matter, it is questioned whether this exclusion should or should not be replicated in the formulation of a general regime for defective products, of which our national legal system still lacks. The search for an answer to this main question is supported by an analysis and evaluation of the benefits or disadvantages that the exclusion may pose for consumer interests, along with an analysis of the coherence of its establishment within a system of qualified strict liability and the potential issues it may raise in constructing the causal link.