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Search Results
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TRANSITION FROM LIBOR TO SOFR: IS THE LATTER TRULY A SECURED RATE? CHALLENGES IN INTERNATIONAL FINANCIAL MARKETS
From LIBOR’s cessation date, different firms and financial institutions were forced to seek a new benchmark in which the market could trust, without manipulation or undue deviation. This transition occurred by turning into rates that are based in real transactions, such as SOFR rate in our region. Nevertheless, critics affirm that SOFR is and will be the new best and secured alternative for the market, many risks and legal problems that arise due to its incorporation will need to be addressed by parties since there is no international hard law regulation. In order to understand the factors that originated the LIBOR to SOFR transition and identify the fortresses and weaknesses of the studied rate, the most relevant background within the national and international legal framework is explained. SOFR’s characters are presented and analyzed with its collateral, its volatility, and its capacity to become the new benchmark for financial markets. Finally, the legal consequences of the LIBOR to SOFR transition are exposed, identifying the risks that contracting parties must take into account when choosing it as their preferred benchmark.
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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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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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THE LEGAL NATURE OF THE LACK OF EFFECTS: A PROPOSAL FOR INCLUSION IN THE SYSTEM OF INEFFECTIVENESS OF THE CHILEAN CIVIL CODE
This article argues that the lack of effects is a form of ineffectiveness of a functional, extrinsic, partial, strict, subsidiary nature –and not always a sanction– aimed at protecting certain third parties harmed by the conclusion of a legal transaction. Likewise, it postulates the viability of configuring a general theory of unenforceability that is feasible to act beyond the cases expressly contemplated in the Chilean civil code, as long as it frames its scope of action within the contours drawn by its system of ineffectiveness and the necessary balance between the expansive effect of contracts and the protection of third parties.
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THE LACK OF EFFECTS AS A WAY OF PROTECTION OF THIRD PARTIES IN PATRIMONIAL REGULATION OF MARRIAGE IN CHILEAN LAW
This paper examines the lack of effects as a primary figure of protection of third parties on marriage economic effects’ regulation. In order to do this, the paper deals with the third parties’ protection principle in civil law and its foundations. From this starting point the analysis is developed in the context of the patrimonial regulation of marriage. The purpose is to demonstrate that the lack of effects has legal entity of protective mechanism. The paper also examines critically several hypothesis concerning its legal enactment or acknowledgment by courts and those in which there is the need to recognize it.
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THE PRICE OF DECLARING THAT THE PRICE HAS BEEN PAID (ART. 1876 OF THE CIVIL CODE)
This commentary analyses a recent decision which held that, if the parties at the sale declare that the price has been paid, the seller will not be able to prove that he did not really receive the price. The decision relies on the wording “no proof will be admitted against this” of art. 1876, which is deemed applicable to the relationship between the parties inasmuch as it would bear witness to the evidentiary value of public instruments laid down in art. 1700. The commentary criticises this decision, since art. 1876 grants certain consequences to the clause that the price has been paid only regarding third parties, as can be seen not only in the wording of this article, but also in the sources which inspired it. The commentary also criticises the evidentiary value which the decision grants to public instruments, as well as the practical consequences which this brings along for everyday commercial practice.