icade. Journal of the Faculty of Law at Universidad Pontificia Comillas
The Icade Journal began in 1984 as an interdisciplinary journal —encompassing Law, Economics and Business Administration— with the aim of understanding the present day through a perspective of quiet reflection. It is one of the journals published by Comillas Pontifical University under the subheading "Journal of the Faculties of Law", as an expression of its special relationship with the above. It is a biannual journal dedicated to covering interdisciplinary issues, including topics relating to the fields of Law.
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Alternativas económicas en la frontera de la crisis
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Copyright (c) 2018 Icade Journal. A publication of the Faculty of Law and the Faculty of Economics and Business Administration
La privación de libertad de menores y los estándares internacionales (Tomás Montero Hernanz)
La Política Exterior de Rusia: Los Conflictos Congelados y la Construcción de un Orden Internacional Multipolar (Jose Ángel López Jiménez y Javier Morales Hernández)
¿Cómo la innovación mejora la calidad de la enseñanza del derecho? Propuestas en un mundo global (Carlos Espaliú Berdud, Ricardo María Jiménez–Yáñez y Carlos De Miranda Vázquez)
Intellectual Property Rights and Regulatory competition. Analysis of the existing border between the exercise of the first and the scope of the second
On 17 September 2007, the Court of First Instance acknowledged, as the European Commission had three years ago, the existence of two separate abuses byMicrosoft; (i) refusal to supply, and (ii) tying. With respect to the first, both the European Commission and the Court concluded that Microsoft had abusively refused to supply its competitors with its intellectual property rights. This article focuseson the leght intersection between Intellectual Property Law and Competition in the framework of compulsory licensing. It indicates potgraf problems arising prous competition in markets foundied by innovation, as well as the role played in these sectors by the essential facilities doctrine. Finally, the article offers a series of conclusions.
La necesaria formación de los juristas en Derecho Internacional Público
En el presente artículo se exponen las razones por las que el Derecho Internacional debe ocupar un lugar apropiado en las enseñanzas de las disciplinas jurídicas detodas las Universidades del mundo, teniendo en cuenta que los alumnos que reciben sus enseñanzas serán los futuros agentes de cambio de sus respectivos Estados. El incumplimiento del Derecho Internacional impide la construcción de sólidas sociedades democráticas. Esta situación repercute tanto en el desarrollo de los Estados como en el mantenimiento de la paz y seguridad internacionales. La enseñanza y el aprendizaje del Derecho Internacional constituyen un eficaz instrumento para su cumplimiento.
PÉREZ VERA, E. (2012). OPERA SELECTA. Estudios de Derecho Internacional
Autor: Elisa Pérez Vera Editorial: UNED, 2012. 712 páginas.
The Tensions of the Constitutional Justice with the Legislator and the Ordinary Judge
The article is about of the constitutional jurisdiction developed by the Constitutional Court of Chile, in the restricted sense of the control of constitutionality of infra constitutional norms, to analyze the controversial aspects of its relations with the legislator and the ordinary jurisdiction. In the study of these aspects, the questions of constitutional design or practice that have generated criticism and interorganic tensions are raised; ideas and proposals for the ongoing constitutional debate are presented, the Chilean constitutional doctrine and comparative doctrine are examined, as the jurisprudence of the Constitutional Court.
Copyright (c) 2021 Miriam Henríquez Viñas
The Chilean Public Administration in the view of the New Constitution
This article analyses how the Chilean Public Administration has been laid down in the Constitutions of 1833, 1925 and 1980. The main issues examined are the presidentialism, the institutional rigidity, public employment based on merit and centralism. The second part focuses on several failed attempts at innovation, such as the territorial decentralization or the professionalization of public employment. Finally, it makes some recommendations for the constitution- making process.
Copyright (c) 2021 Enrique Rajevic Mosler
Comment on the Judgment of the Supreme Court 1/2019
The judgment that resolved the appeal filed by the State Attorney on behalf of the General State Administration against the decision of the Audiencia Nacional which resulted in the annulation of a sanctioning resolution of the CNC, resulted in the appeal’s dismissal and doctrine’s establishment on two important issues. The first one consists of determining the scope and extent of judicial control over complex economic appreciations that are carried out by the regulator of a sector, making use of the margin of appreciation available based on its powers; the second, to determine whether the delimitation of the relevant market that the CNC had made to sanction Vodafone could or not violate art. 2 LDC and the Community case law.
The Precautionary Process as a Juridical Situation
The purpose of this research was to examine the impact of the diversity of conceptions applicable according to the development of the civil process and the precautionary process in Venezuela. For the analysis of the phenomenon, national and foreign civil adjective norms were used, as well as the Constitution of the Bolivarian Republic of Venezuela (1999), doctrinal positions and jurisprudential criteria of the Supreme Court of Justice. This research had a documentary design, using the dialectic method for the interpretation of the phenomenon. It was concluded that the legal nature of the precautionary process is circumscribed to the theory of it as a dynamic juridical situation.
Copyright (c) 2021 Sebastián Andrés Fattorello Rodríguez, Angel Jesús Niño Torres
Second Frustration of the Colombians Victims Seeking Justice
By mid-2020, the Special Justice for Peace, the transitional justice regime agreed between the FARC guerrillas and the Colombian government in 2016, had budgeted to dictate its first sentence on the kidnappings committed by this group. This was frustrated because it became a scandal to which the former guerrilla leaders denied the details of this crime since 2019, claiming that they had been withholdings and that there had also been no recruitment of minors. The same pattern of not acknowledging their responsibility was used by army generals with regard to “false positives” (extrajudicial executions of people presented as the product of combat). The fact that the JEP did not proceed to open the incidents of non-compliance as agreed, two years after these versions had been rendered, has affected its credibility. While new irregular armies are taking control of different areas of the country previously dominated by the FARC, the victims demand that the JEP apply the regime envisaged for those who violate the commitment to tell the complete, exhaustive and detailed truth in exchange for not having the penalty of jail. From a socio-legal perspective, it investigates the reasons why the JEP adopted a “dialogic” strategy in contravention of Legislative Act 01 of 2017, through which this commitment was raised to constitutional rank and why it refuses to attend the legitimate claim of the victims.
Copyright (c) 2021 Mauricio Eligio Beltran-Cristancho
Artificial Intelligence and the Green Transition for 2030
The United Nations have developed the 2030 Agenda for Sustainable Development as a global agreement aiming to eradicate extreme poverty, fight inequality and injustice and leave no one behind. Agreed by world leaders at the UN in 2015, the 17 Sustainable Development Goals (SDGs) succeed the well-known Millennium Development Goals (MDGs). Parts of the Goals directly address environmental issues. Other do indirectly. In response to this growing awareness, the European Union has enacted a number of policies targeting environmental issues, including lowering carbon emissions and water conservation. It can be argued that the EU is at the forefront of addressing the environmental issues outlined in the SDGs. These policies are mentioned in this Paper and they are to be considered strategic. Artificial Intelligence has been having an impact in human activities for decades. Lately the impact is happening exponentially. The European Union is aware of such a fact and it implements policies towards increasing innovation in the public and private sector, including funding programmes and instruments to foster business development and efficiency in the Union and in the Member States. AI is also capable of having a profound impact in the environmental issues that the Agenda 2030 is bringing.
Copyright (c) 2021 F. Javier Heredia Yzquierdo
The Right to Housing in the New Constitution of Chile
Chile is drafting a new Constitution with the view of organising and distributing economic and political power in a fairer manner, and that guarantees the rights of all individuals and communities on an equal fashion. The aim of this essay is to offer an analysis of the right to adequate housing in the context of the constitutional process in Chile, from the perspective of international human rights law and comparative constitutional experiences. The elements and principles that we consider have the potential to guide the constitutional discussion in the context of the urban apartheid that the country is experiencing.
Copyright (c) 2021 Valentina Contreras Orrego, Ignacio Silva Didier, Vicente Silva Didier
Unfinished Chronicle of the Chilean Constituent Process
The Republic of Chile is currently undergoing an unprecedented constituent process. In this context of pandemic, a constituent assembly has been democratically elected with equal representation of women and men and with seats reserved for members of Chile's native peoples. This convention has the specific mandate to elaborate and vote on the new constitution for the country, which will then be submitted to a plebiscite. Chile's constitutional history is very extensive and the road to this point has been long. Since the promulgation of the Political Constitution of the Republic of Chile in 1980, during the military dictatorship of Pinochet, it has been reformed on fifty-two occasions. This article is a chronicle of what has happened so far and analyzes the concept of constituent process, the institution in charge and finally how this will affect the rights of its citizens.
Copyright (c) 2021 Francisco Pérez-Crespo Vinader
Diana Marín Consarnau (Coord.) (2021). Retos en Inmigración, Asilo y Ciudadanía
The Review of Constitutionality of the State of Alarm
On July 14, 2021, the Constitutional Court declared unconstitutional some of the provisions set forth in Royal Decree 463/2020, of March 14, declaring a state of alarm for the management of the health crisis caused by COVID-19. The judgment based its argument on the fact that these restrictions constituted a suspension of the freedom of movement and not a mere limitation. This made them incompatible with art. 55 of the Spanish Constitution, which establishes that the suspension of certain rights can only occur under states of emergency and siege. The ruling has given rise to a doctrinal debate on the interpretation of emergency law and the role of the institutions.
Miguel Campo Ibáñez y Almudena Rodríguez Moya (2021). Derecho e Iglesia en los tiempos del COVID
Education on Gender and Sexual Orientation, Ideological Imposition or Constitutional Obligation?
The education on gender and sexual orientation within the Spanish educational system is a controverted and politicized issue, and is only implemented in certain Autonomous Regions through the development of regional laws. This paper focuses on determining whether education on gender and sexual orientation is a constitutional obligation or an ideological imposition and an indoctrination by the State. Firstly, it provides an analysis of the principle of self-determination in terms of gender identity and sexual orientation. Secondly, it deals with the extension of the State’s educational obligation and its constitutional purpose as opposed to the freedom of education. Specifically, it analyses the principle of the State’s neutrality in its educational activity and the scope of parents’ right to conscientious objection with relation to the referred interaction. Likewise, it establishes an analogy between a proposed educational model on gender identity and sexual orientation based on the regional approaches, and the compulsory subject of Education for Citizenship. Closing remarks demonstrate the constitutional obligation of the education on gender and sexual orientation, thus implying a reform of the general educational program.
Ideas for a Future Comparative Balance about the Political Control in the European Parliament and in the National Assembly of the Bolivarian Republic of Venezuela
For analyzing parliamentarian`s activity in the XXI century, it is obligated to dedicate a substantial chapter to the core functions of political control, in its parliamentary control slope. Facing this premise, we will get in touch in its preliminary form, to the manner in which the European Parliament and the National Assembly of the Bolivarian Republic of Venezuela is coping with this subject. Previous to a historic and substantial contextualization for each case, and an a rubrica, semantic and teleological interpretation of the legal rules that face with them, we will conclude in the necessity of invigorate the studied rules, with the keys to the respect of human dignity, citizenship`s exercise and fundamental right`s dynamization. However, to strengthen the effort to be done, we propose to review introductorily, the foundations of State`s functions, in the light of the most actual tendencies of the Public International Law and Political Sciences.
National Assembly of the Bolivarian Republic of Venezuela
Nature of the Artificial Intelligence Intervention in Contractual Consent Formation
This research′s objective aimed to analyze the use of Artificial Intelligence in the contractual consent formation process in the existing Venezuelan legal system. To this end, both national and international academic and legislative approaches were used. This investigation is of an explanatory and applied type, with a documentary design. In addition, the methodology employed was the rigorous hermeneutic of applied logic. Likewise, it concludes on using the Artificial Intelligence as a viable mean to manifest the consent in a contractual relationship by employing an extension of the company′s legal personality and acting with a special kind of the disposal power.
The aim of this paper is to offer a comparison of the delimitation of freedom of speech under the concept of hate speech, in two of the most important legal systems in the world, the ones from United States and Europe. It is interesting to understand how hate speech has been configured in the two systems. At first sight, the development of freedom, and therefore the development of freedom of speech, has been configured in a similar way in both orders, being one of the most protected and safeguarded rights in the First Amendment and in the fundamental rights of the European Constitutions. However, for its delimitation, the path seems to have bifurcated being hate as an aggravation factor for the crime in the United States, while in Europe it is taken as an additional crime. An analysis of the bases of freedom of expression for each system will be conducted, emphasizing the most relevant sentences that have established jurisprudence and that serve as a starting point. On the other hand, it is necessary to compare how the Supreme Courts of both systems rule on cases that address similar matters, such as both racist and homophobic speech amongst others. To do so, the most relevant sentences on these discourses are compared, to see how the United States protects this type of speech within the freedom of expression, while Europe prioritizes the human dignity right. Finally, we will analyze how this speech is configured in Spain, to see how the Constitutional Court in certain cases allowed speeches that in the eyes of the ECHR possibly violated human dignity.
The Day when Maritime Transport was Blocked by the Ever Given
Maritime transport is one of the most important in the international trade sector; more than 80% of goods are transported by sea. The size of ships is becoming increasingly colossal, allowing them to carry more cargo than other conventional modes of transport such as trucks, trains or airplanes. However, ships are prone to accidents in the course of their services, especially on routes that are difficult to traverse. When accidents occur, a liability arises and must be assessed by those responsible for the damages that have been caused. This is what is being taken into account in the recent accident in the Suez Canal, due to the blocked of the Ever Given, causing the temporary closure of maritime traffic in its area.
The 2050 decarbonization target for the European Union (EU) economy poses numerous challenges, for which considerable volumes of investment are required. In this context, carbon taxation is a tool that introduces price signals that promote behavioral change of agents. It also raises funds to finance general budgets, promote investments for the transition to a low-carbon economy, support the most affected companies by international competition and the most vulnerable households. Numerous European countries have developed carbon taxes (e.g. Denmark, Finland, France, Ireland, Iceland, the Netherlands, Norway, Portugal, Sweden, Switzerland, and the United Kingdom), which aim to complement the EU Emissions Trading Scheme and compensate for the fact that Directive 2003/96/EC does not establish tax rates on energy sources according to their carbon content. This article reviews the main characteristics of these figures, compares them and draws out the main trends in this area.
Sonia Calaza López (2020). Confluencia de la jurisdicción y desjudicialización
Luis Bueno Ochoa (2020). Ética de la abogacía