Private Law
  Review on the Analysis of Law N.4 2019   ISSN 1698-739X Contact Home Abogares
  Direction: Fernando Gómez Pomar   Coordination: Sonia Ramos González
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Non-insurability of punitive damages in Argentina: an Economic Analysis of Law explanation

In Argentina, punitive damages have been regulated by the Consumer Protection Law since 2008. The majority of legal scholars believe that insurance for punitive damages is barred by the Argentinean Insurance Law. However, the traditional position of the Economic Analysis of Law is that the state should not prohibit this type of insurance. Therefore, this paper examines whether it is appropriate to implement legislative reform in Argentina to allow punitive damage insurance in direct liability situations. After analyzing the potential applicability of the traditional position of the Economic Analysis of Law in the Argentinean reality, in accordance with the requirements for the admission of punitive damages (in particular, that the defendant acted with malice, recklessness or gross negligence), it follows that it is not socially desirable to enact this legislative reform. This conclusion is based on the findings that the insurance of punitive damages in Argentina would: [1] destroy the function of punitive damages (deterrence and punishment); and [2] weaken the social function of insurance liability.

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The Law Applicable to International Mediation Contracts
Patricia Orejudo Prieto de los Mozos 31/01/2011

Mediation entails the provision of the services of a professional, the mediator, who holds a legal relationship with the disputants: the mediation contract. Where there are transnational elements in the mediation process, the contract is of an international character. In such situation, the Laws of the diverse States involved could claim to be applicable to the same contract. The determination of the (only) Law applicable is of upmost interest in spite of the high degree of standardization of the obligations of both parties in the mediation contract. First, for such lex contractus establishes the limits of the freedom of the contracting parties. And second, for there are important matters that the parties do not usually tackle within the wording of mediation contracts and that model rules and standards do not either regulate. The present paper aims at illustrating about the functioning of the present and the future instruments of Private International Law that solve the conflict-of-laws issue: Rome Convention and Rome I Regulation

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Measuring regulatory intensity by the Spanish Regions (1978-2009)
Francisco Marcos Fernández 28/10/2010

This paper constructs several objective indicators of regulatory intensity in the context of the Spanish decentralization since 1978. Our aim is to develop a quantitative measure of the levels of regulatory intensity set by different regions in Spain. The dynamic nature of the decentralization process requires that we take into account the initial institutional framework for decentralization and the successive transfers of powers to the regions. As a result, we obtain a series of variables that measure regulatory intensity across Spanish regions in the period 1978-2009.

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Genocide Denial and Freedom of Speech
Pablo Salvador Coderch
Antoni Rubí Puig 24/10/2008

Comments on the Spanish Constitutional Court's Judgment 235/2007, November 7th

The Spanish Criminal Code of 1995 criminalized the dissemination by any means of ideas and doctrines denying or justifying genocide. Recently, the Spanish Constitutional Court, prompted by a referral of the Barcelona Court of Appeals, ruled in Judgment 235/2007, November 17th on the compatibility of this crime with the freedom of speech clause of the Spanish Constitution in the setting of the prosecution of a neo-Nazi activist and owner of a shop in the business of selling and distributing books, tracts and leaflets in many of them the Holocaust was, as a historical fact, denied, trivialized or justified. This article, on occasion of the Constitutional Court's Judgment, focuses on the grounds that justify analyzing the intersections between genocide denial and freedom of speech and seeks for explanations to the majority's ruling according to which simple denials of genocide fall under the umbrella of freedom of speech and only positive value statements, that is to say, utterances extolling genocide or minimizing or trivializing its consequences might be punished.

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Damages for breach of the EC antitrust rules: harmonising Tort Law through the back door?
Francisco Marcos Fernández
Albert Sánchez Graells 01/02/2008

Tort Law is not harmonised at a European level. Substantive and procedural regulations vary substantially across EU Member States in most of the facets and dimensions of damages actions. These differences derive, amongst other causes, from different legal traditions. However, significant efforts are being made in order to find common ground for the approximation or even harmonisation of these laws across the EU ­building on the Principles of European Tort Law and other projects, such as the European Code of Civil Procedure-. However, harmonisation of Tort Law and the corresponding Civil Procedure regulations is still open to debate and the process is envisaged to take a significant delay before any formal legal instruments are approved. Such regulatory diversity is inevitably reflected in the field of antitrust private enforcement ­ based on claims for harm inflicted as a result of the anticompetitive behaviour-, which the European Commission is trying to encourage and promote as a key element of the modernisation process of the EC antitrust rules undertaken in 2003. In this regard, a Green Paper on damages actions for breach of the EC antitrust rules was published in December 2005 with the purpose of opening up a reform process that could facilitate private damages actions across the EU. Most remarkably, the Green Paper put forward most of the divergences in national Tort Law and Civil Procedure regulations that jeopardize the effectiveness of a privately enforced competition system. These differences in national regulations contrast with the nearly-full de facto harmonisation existing in antitrust law and its public enforcement. Consequently, the Commission proposed harmonisation alternatives that imply deep reforms in national Tort Law and Civil Procedure regulations. Those proposals are to be developed and further analysed in a forthcoming White Paper ­foreseen to be adopted around the turn of the year 2007-. At this stage, and before the Commission puts forward new harmonisation proposals, this paper analyses its need and adequacy and wonders whether the efforts of the Commission for the harmonisation of antitrust damages actions constitutes a "backdoor harmonisation" of fundamental aspects of Tort Law and Civil Procedure with much broader implications and effects in fields of Law other than antitrust.

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New Developments in the Spanish Law of Succession
Sergio Cámara Lapuente 22/10/2007

Recent legislative reforms of law of succession in Spain affecting both the Spanish Civil Code (mainly from 2003) and the six civil laws of the Autonomous Communities (including changes in 2006-2007 in Galician law) give rise to a need to revaluate and reassess some of its central features. This reassessment should, consider not only changes arising from legislative intervention, but also from case law and everyday practice, as these reveal new trends in a number of areas including the legal position of widows and widowers, the rights of unmarried couples when one of them deceases (with very different approaches depending on the Spanish regions), the impact of marital crises on succession, the formal requirements of wills, the validity of inheritance agreements, estate planning, substitutes for testaments, succession of family businesses and enterprises, and the scope of a testator's freedom of disposition and the role of the forced share (on which there is an intense debate). This study explains these developments taking into account those three sources (legislation, case law and practice) and provides both an up-to-date summary of the existing legal framework and some reflections on the future based on recent proposals for further reform suggested by scholars and notaries. Finally, the experience of the Spanish jurisdiction, which comprises seven different laws of succession within one legal system, also allows observations to be made as the role of comparative law in legal development and the possibilities of harmonising law of succession in the European Union.

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Transfer Pricing in Spain
Antonio Fernández Crende
Alberto Álvarez Wilmanski 20/04/2007

The Law 36/2006 on Measures for Preventing Tax Fraud

In order to prevent tax arbitrage, almost all OECD Member countries have agreed on implementing the arm's length principle as the international standard to be used for determining transfer prices for tax purposes. The recently approved Law 36/2006 on Measures for Preventing Tax Fraud includes an amendment to the article 16 CITL, which contains the basic Spanish rules concerning transfer pricing, in line with the international trend. In this working paper it will be outlined the basic international transfer pricing scenario as well as the new Spanish transfer pricing legislation.

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European Contract Law and Economic Welfare: A View from Law and Economics
Fernando Gómez Pomar 23/01/2007

The current enterprise of designing and making politically feasible a European Contract Law requires more ambitious goals than just introducing technical improvements in the acquis and smoothing the functioning of the internal market. The paper presents a position of the substantive goals of European Contract Law, from an economic approach to legal rules and institutions, linked to the promotion of the joint economic welfare of the contracting parties. In this respect, economic thinking tends to be more sceptical concerning the ability of Contract Law to bring about wealth redistribution policies than most legal scholars are. In the paper, the optimal scope of European Contract Law that is tentatively defended hinges upon inter-firm transactions, although keeping in mind the nature of consumer protection legislation as a regulatory framework to correct the informational market failures in consumer markets.

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