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Search Results
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THE FRENCH LAW ON FINANCIAL DERIVATIVES
Despite their increasing importance in modern economics, derivatives have seldom been subject to thorough legal analysis under civil law. This study intends to remedy this situation. It is based on the assumption that derivatives are being designed to transfer the risk one associates with the future value of an asset separately from the asset itself. From this point, the legal origins of derivatives under civil law can be identified and these instruments can be classified albeit the numerous forms they take in prac- tice. It then appears that derivatives not only constitute a community of agreements pursuing the same aim but also make up for a legal category based on a specific process: every derivative seeks to separate the value of an underlying asset from the asset itself so as to allow the parties to hedge or speculate.
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TUTELA SUMARIA DE DERECHOS EN EL PROCESO CIVIL: MISIÓN Y VISIÓN EN LATINOAMÉRICA
Con la voz 'sumario' en Latinoamérica se alude a diferentes modalidades para la gestión de la variable y riesgo de la duración del proceso. Si bien no hay una univocidad que refiere a una variable más para distribuir entre las partes la duración de un proceso. La posibilidad de acceder a lo sumario en cualesquiera de sus modalidades ya mencionadas no solo se funda en casos de (i) "urgencia" y necesidad de una respuesta jurisdiccional rápida (ii) sino que, también, el criterio de un derecho evidente alegado por el demandante y en un tipo de controversia que se asume como de mayor simplicidad o una conducta determinada del demandado justifican también distribuir el riesgo en favor del que requiere la aplicación de ese tipo de procedimiento. -
THE PROTECTION OF THE DIGNITY OF THE CONSUMER IN THE BILL “SERNAC PROTECTS YOU”
The text analyzes the project known as “Sernac te protege” in the part that refers to the protection of the dignity of the consumer. The technique used consists of incorporating into the standard that regulates security and surveillance systems, a positive duty and another of abstention related to dignified treatment. Additionally, it adds the statement that the category of vulnerable consumer could serve as an element of adaptation of the indicated imperatives. The tenor of the subsections that are intended to be incorporated hints at the drafter’s intention to grant broad validity to the imperatives it contains. However, the location chosen, as well as some expressions used in the configuration of the rules, could put this breadth at risk.
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SOME ISSUES OF RISKY IMPLANTABLE MEDICAL DEVICES TO BE INCLUDED IN THE CONCEPT OF DEFECT UNDER THE EU DIRECTIVE 85/374 AND THE REGULATORY RESPONSE OF THE EU DIRECTIVE 2024/2853 ON PRODUCT LIABILITY
This article aims to raise some issues related to the inclusion of risky implantable medical devices in the concept of defect under Directive 85/374, which, having particular characteristics related to the risky interaction, the intended purpose of the product, the inherent risks, the potential damage they could cause, require an assessment adjusted to the particular circumstances of these products. The subject is approached from the point of view of the risky implantable medical device, its regulation from the administrative sphere and the sphere of civil liability, to finally analyse whether these issues were resolved or maintained in the new European regulation on defective products, Directive EU 2024/2853, which aims to contribute to the proper functioning of the internal market, while guaranteeing a high level of protection for consumers and other natural persons.
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CONTRACT WHICH BENEFITS THE AGENT AND THE ABUSE OF AUTHORITY BASED ON THE (PRESUMED) INTENT OF THE PRINCIPAL
This commentary analyses the case of an agent who takes advantage of the wide scope of the mandate in order to obtain personal benefit at the expense of the principal. Instead of admitting that such acts fall under the text of the contract, the Supreme Court resorted to the presumed intent of the principal, according to which the latter would have not agreed to such unfavourable terms. Although such criterion contributes to tackle frequent cases of abuse of authority, the reference to a presumed intent is too vague and involves a risk for legal certainty. This commentary recommends instead to separate the cases where the agent carries out a poor business within the scope of the mandate from those in which the text those faculties are exploited in bad faith to his or her own advantage.
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CREDITOR PROTECTION RULES IN UNDERCAPITALIZED LIMITED LIABILITY COMPANIES. CRITICAL ANALYSIS AND A PROPOSAL OF SOLUTION
This paper focuses on determining if it is possible (and desirable) to construe an implicit duty to adequately capitalize a company as a counterbalance for the limitation of the liability of the shareholders, especially when many compared legal systems have been increasingly deactivating the protective function of the capital toward the creditors. Even though creditor protection rules may be required in order to confront the shift of the risk toward them that such limitation imposes, we claim that this argument may only stand as long as it is supported by the existence of fiduciary duties of the shareholders and the management in favor of the creditors, mid or not by the debtor company, and that such duties arise from the proximity of the insolvency in undercapitalization scenarios. Nevertheless, the efficiency of the legal solutions structured over such implied duties may be questioned considering that, on the one hand, the security function of the capital has been diminished, and, on the other, that the economic science has not reached an agreement on the proper composition of the capital, so that legal certainty may be threatened by the said responses, destroying the justifications of the limited liability rules based in their social benefits.