The latest issue of the open-access journal Cuadernos de Derecho Transnacional has just been released. It comes with several studies (Estudios) and some shorter notes (Varia).
The studies include the following.
María Chiara Malaguti, Principios UNIDROIT a través de los laudos de arbitraje internacional de inversiones (UNIDROIT principles through international investment arbitration awards)
The International Institute for the Unification of Private Law – UNIDROIT will start in 2023, in collaboration with the ICC Institute of World Business Law, a project that will evaluate the most appropriate rules in investment contracts in the light of the evolution of the contents of these contracts and international investment law in general. A fundamental part of the analysis will be the verification of the application of the UNIDROIT Principles to these contracts. In preparation for this project, this contribution describes the use that has been made so far of the Principles by arbitral tribunals whose awards are public, revealing how many of the Principles’ rules apply to investment contracts, for example in relation to the principle of good faith, situations of hardship, renegotiation of terms and the calculation of damages. In addition, the arbitral awards commented upon, also reveal how they can be used as applicable law not only in case of specific choice of the parties, but also in case of lack of indication of applicable law, as well as a tool for interpreting national law. For these purposes, the awards described are divided in this contribution by category according to the role attributed to the Principles in each award. However, the same analysis can be read to verify, in relation to the investment contracts analyzed, which rules have been referred to and to what extent (and yet in some cases, for example when using the Principles to determine damages, in reality the latter have also been invoked in relation to investment treaties).The analysis provided in this contribution, which hopefully shall be expanded on the basis of the investment contracts subject of arbitration to which we shall be able to have access under the Project, can be considered as one of the starting points for the exercise that will be carried out in the coming months.
Isabel Antón Juárez, Los contratos de distribución en Europa a través de las normas de Derecho de la competencia europeo. Las novedades aportadas por el Reglamento (UE) 2022/720 de exención de acuerdos verticales (Distribution contracts in Europe through the rules of European competition law. The novelties provided by Regulation (EU) 2022/720 on the exemption of vertical agreements)
On June 1, 2022, Commission Regulation (EU) 2022/720 of 10 May 2022 on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices entered into force in the Spanish legal system. This Regulation replaces Regulation 330/2010, which allowed distribution agreements that may contain competition restrictions contrary to article 101.1 TFUE to be exempt from prohibition by meeting the criteria established by the Regulation itself and the Guidelines that accompanied it. At present and until May 31, 2034, the key Regulation to verify whether a distribution contract complies with the rules of European competition law will be the aforementioned Regulation (EU) 2022/720. The objective of this paper is the study of the novelties presented by Regulation 2022/720 compared to its predecessor Regulation 330/2010.
Isabel Antón Juárez, El proceso europeo de escasa cuantía. Luces y sombras de un proceso clave para la reclamación transfronteriza de pequeñas deudas en la Unión Europea (European small claims procedure. Lights and shadows of a key process for claiming small debts in the European Union)
Small debts are one of the most common in practice, however, they are the least claimed in court. The European Small Claims Procedure seeks to encourage cross-border debts, even if they are small (from an economic perspective), can be claimed. The possibility of collecting unpaid debts implies a very positive aspect from a social, economic and legal perspective. However, despite the fact that Regulation (EC) 861/2007 establishing the European small claims procedure is not new, since it has been applied since January 1, 2009, the results offered by European studies who have analyzed its impact on cross-border debt claims show that it has been rather scant. One of the reasons is because it has been an unknown tool for its potential users (small businesses and consumers) until relatively recently, but another has to do with its own configuration. About how this process has been conceived by the European legislator (in the initial version and also in the successive modifications) and the problems it raises in practice is what this paper will deal with.
Laura Aragonés Molina, La corrupción en las inversiones internacionales. Análisis de los efectos jurídicos de la corrupción en el arbitraje de inversiones ante el CIADI (Corruption in international investments. Analysis of the legal effects of corruption in ICSID arbitration)
Corruption is no longer a local problem but has taken on a transnational dimension. The intensification of international economic relations and the removal of barriers to trade and investment contribute to the economic and social development of states, but this development is undermined when corrupt practices are involved in the processes of formalising international investments. It is not surprising, therefore, that conflicts arise between the foreign investor and the host state at some point in the life of the investment and that they turn to the International Centre for Settlement of Investment Disputes (ICSID) as the most appropriate forum for resolving their disputes. In this paper, we analyse ICSID’s practice in cases in which one of the parties has alleged acts of corruption, with two essential objectives; a particular objective that consists of analysing the legal effects that these allegations can produce in the proceedings depending on who makes the allegation as well as the procedural difficulties that arise in these cases; and a general objective that transcends the particular case, which is to find out whether international arbitration can constitute an effective legal tool to dissuade investors and states from engaging in corrupt practices.
Cristina Argelich Comelles, Deberes de transparencia del Reglamento 2019/1150(P2B Regulation) para prevenir la discriminación algorítmica del consumidor en los sistemas de prelación de ofertas (Ranking transparency guidelines in Platform-to-Business Regulation to prevent algorithmic discrimination of consumers)
This paper examines the ranking transparency guidelines of online platforms in the P2B Regulation, as a legal treatment of algorithmic discrimination in consumer contracts. Therefore, this work considers duties related to standard contract terms, as well as others related to the right to information, the processing of personal data, contractual good faith, and remedies for breach of contract.
Ying-Feng Shao, Laura Carballo Piñeiro and Maximo Q. Mejia Jr., Allanando el camino para el reconocimiento de las ventas judiciales de buques celebradas en el extranjero. Análisis comparado de los procedimientos de venta judicial en jurisdicciones seleccionadas (Paving the way to recognising foreign judicial sales of ships. A comparative analysis of judicial sale proceedings in selected jurisdictions)
The extent to which a state will recognise the effects of a foreign judicial sale of a ship is subject to its private international law rules, which consist of various conditions for recognition. The application of these conditions may be mediated by the principles informing domestic sales. Thus, to understand better how national recognition mechanisms work, this article undertakes a comparative legal analysis of sale proceedings in selected jurisdictions to examine whether these principles fundamentally diverge and may impair the recognition. Varying principles exist as regards six aspects of the sale proceeding. In light of the prevailing conditions for recognition of foreign judicial sales, it is inferred that the principles concerning four sale aspects may resurface at the recognition stage, putting in danger the free circulation of the ship purchaser’s title. These four sale aspects include the ship’s location, the notification of sale, the variance in the standard sale, and the extra protection given to high-ranking creditors in the distribution of proceeds. In contrast, the principles in respect of the remaining two sale aspects, viz., the time to initiate a sale and the approach to obtaining the best possible price, though substantially divergent, may not impede the recognition.
Ying-Feng Shao, Laura Carballo Piñeiro and Maximo Q. Mejia Jr., Allanando el camino para el reconocimiento de las ventas judiciales de buques celebradas en el extranjero. Análisis comparado de los procedimientos de venta judicial en jurisdicciones seleccionadas (Paving the way to recognising foreign judicial sales of ships. A comparative analysis of judicial sale proceedings in selected jurisdictions)
The extent to which a state will recognise the effects of a foreign judicial sale of a ship is subject to its private international law rules, which consist of various conditions for recognition. The application of these conditions may be mediated by the principles informing domestic sales. Thus, to understand better how national recognition mechanisms work, this article undertakes a comparative legal analysis of sale proceedings in selected jurisdictions to examine whether these principles fundamentally diverge and may impair the recognition. Varying principles exist as regards six aspects of the sale proceeding. In light of the prevailing conditions for recognition of foreign judicial sales, it is inferred that the principles concerning four sale aspects may resurface at the recognition stage, putting in danger the free circulation of the ship purchaser’s title. These four sale aspects include the ship’s location, the notification of sale, the variance in the standard sale, and the extra protection given to high-ranking creditors in the distribution of proceeds. In contrast, the principles in respect of the remaining two sale aspects, viz., the time to initiate a sale and the approach to obtaining the best possible price, though substantially divergent, may not impede the recognition.
Javier Carrascosa González, La Ley aplicable a los contratos internacionales en la historia de los conflictos de leyes (Law applicable to international contracts in the history of the conflict of laws)
This study aims to unveil the keys of the law applicable to international contracts in history. From Antiquity and the Dark Ages to the 21st century. Connecting factors such as the place of celebration of the contract, the place of performance of the obligations arising from the contract, the choice of law agreement, the habitual residence of the contracting party who must perform the characteristic performance and the closest links clause have been considerated for different reasons. In this paper, the contributions of great legal scholars experts in private international law, such as Bartholo da Sassoferrato, Rochus Curtius, Charles Dumoulin, F.K. von Savigny and especially Jacobo de las Leyes, are present. This work argues, contrary to the Marxist view of the history and the law, that the progress of private international law is due to individuals, with names and surnames, genuine geniuses of private international law.
María José Cervilla Garzón, Algunos problemas relacionados con la integración de los miembros de la comunidad islámica en el sistema español de Seguridad Social (Some problems related to the integration of members of the Islamic community in the Spanish Social Security System)
Two types of problems that may affect members of the Islamic community, regarding their posible integration into the Spanish Social Security System are addressed in this study. On the one hand, those derived from the posible provision of services, in the Islamic country of origin and in Spanish territory, being necessary to coordinate the legislation of both states for there cognition of benefits. On the other, those caused by certain practices and institutions of Islamic law, not recognized by our legal system, with particular reference to the Kafala and the continuity that the Supreme Court doctrine may have had on there cognition of a widow’spension to all beneficiaries, in case of polygamous marriage.
Clara Isabel Cordero Álvarez, Delimitación de la residencia habitual como principal criterio de competencia en el derecho europeo de familia y normas de aplicación en defecto de Estado miembro competente ante la reciente doctrina del TJUE: desde un posible foro de la nacionalidad del demandado encubierto a supuestos claudicantes (Delimitation of habitual residence as the main attributive criteria of jurisdiction in european family law and applicable rules in the absence of a competent member state in accordance with the recent doctrine of the CJEU:from a possible undercover forum on the nationality of the defendant to faltering cases)
The Court of Justice has recently issued a resolution with significant practical consequences in the field of European Family Law, although the assessments on it are very different depending on the issues resolved by the meaning of the ruling. The ruling of August 1, 2022 (C-501/20, MPA vs. LCDNMT), addresses two major issues, both linked to the sector of international judicial competition, which deserve an in-depth analysis for different reasons. On the one hand, the Court specifies the relevant elements to determine the habitual residence of the parties in matters of Divorce (marital crisis), parental responsibility and maintenance obligations, as a fundamental criterion of jurisdiction under the Brussels II and Brussels III Regulations, completing the doctrine already in force and adapting it to the referenced case. Starting from the premise that none of these European instruments contains any definition in this regard, this judgment is decisive in locating the competent national jurisdiction in a case such as the one at hand, in which the spouses are EU agents, so the diplomatic immunity is raised, and consequently its potential incidence in this issue. On the other hand, this ruling specifies the conditions under which a court of a Member State of the EU, before which the claim has been filed, can establish its jurisdiction to rule on matters of divorce, parental responsibility and maintenance obligation when, in principle, no Member State is competent, when those involved hold the nationality of different Member States but have residence outside the Union, based on the rules of residual jurisdiction or forum necessitatis provided for in the applicable European instrument. The -restricted- interpretation that is made of the rule of residual jurisdiction in matrimonial matters in the Brussels II Regulation, is especially controversial, to the extent that it opens the door to a potential forum of the defendant’s nationality as well as to possible faltering cases, due to a denial of justice, when the internal jurisdiction law does not provide for this type of connection criteria.
Jonatán Cruz Ángeles, Los guardianes de acceso al metaverso. (Re)pensando el Derecho de la competencia de la Unión Europea (The guardians of access to the Metaverse. (Re)thinking the European Union Competition Law)
Metaverse, a completely virtual space, is called to pose new challenges to the European Union Competition Law. The so-called technology giants are investing billions of dollars in developing new platforms, self-named metaverse. Among these, we can highlight the started projects of Epic Games, Roblox Corporation, Meta, or Microsoft. However, the average user is still confused about what this new market consists of or how it will be classified in antitrust terms. Thus, in this paper, we will focus on the definition of this new virtual world. Besides, we will study how the European Union new category: access guards, to designate those companies or higher volume platforms. Thus, they will have a set of obligations to guarantee a balanced and disputable interacting space in the market.
David Cuenca Pinkert, A comparative study of the reimbursement of extrajudicial attorneys’ fees
»Reimbursement of Extrajudicial Attorneys’ Fees in Spanish Law. A Systematization of Procedural and Substantive Claims« (PhD-thesis published in German language, Duncker & Humblot, 2021, Schriften zum Internationalen Recht (SIR), Volume 229.) David Cuenca Pinkert examines the recoverability of extrajudicial attorneys’ fees in cross-border civil law cases under Spanish law and thereby demonstrates structural parallels to other European legal systems and universal principles of cost recovery. This approach systematizes procedural and substantive claims, which the author sees as a key to a better understanding of reimbursability.
Carlos Manuel Díez Soto, La incidencia del derecho de consumo en el crowdfunding financiero (The incidence of Consumer Law on financial crowdfunding)
The development of financial crowdfunding raises, among other questions, the problem of determining how the rules on consumer protection should affect this area, not only with respect to investors (whose protection has been legally articulated on the basis of the instruments and categories of the financial market), but also with respect to those consumers who resort to this channel to finance projects of a non-business nature (with respect to which, in particular, the question of the applicability of the rules on consumer credit arises). All this, taking into account the peculiarities of crowdfunding as a financing system in which, together with project-owners and investors, the intermediary platform assumes a leading role. In this paper we analyze the response that Spanish and European legislators have been giving to the questions raised, giving rise, at the present time, to a situation of notable uncertainty.
Laura García Álvarez, La determinación de la residencia habitual en las crisis matrimoniales transfronterizas y la importancia de su fundamentación en las resoluciones judiciales (The determination of habitual residence in international marital crises and the importance of its legal substantiation in judicial decisions)
The reason for writing this contribution came as a result of reading a decision from the AP de Santander, on the 4th of May 2022, and the corresponding first instance decision with regards the divorce between two Romanian nationals, temporary workers in Spain. In addition to the incorrect application of EU Regulations (2201/2003 and 2019/1111), the decisions scarcely substantiate the place where the parties were “habitually resident”, an essential point when this determines the access to justice in our domestic courts. In a wider study of other domestic decisions, it has been observed that this type of errors is not infrequent, both in relation to the scope of application of the EU Regulations and of the domestic rules on international jurisdiction, both critically analised, and also to the autonomous concept of “habitual residence” which is present in most of the alternative forums of international jurisdiction concerned.
Ana Gascón Marcén, The push for the international regulation of cross-border access to electronic evidence and human rights
This paper describes the different solutions used by China, the United States and the European Union to access electronic evidence for criminal investigations and the problems raised by their different approaches. The unstoppable trend to create mechanisms that allow authorities from one State to request data directly from a service provider located in another State is assessed together with the human rights challenges it poses and the need for the inclusion of certain safeguards in this kind of initiatives. The Second Protocol to the Budapest Convention is also analyzed as a recently negotiated multilateral solution to tackle this issue.
Aurora Hernández Rodríguez, Las cláusulas de elección de foro en los contratos de transporte marítimo de mercancías en régimen de conocimiento de embarque. Los arts. 251 y 468 de la Ley de Navegación Marítima (Jurisdiction agreements in contracts for the carriage of goods by sea under bill of lading. Arts. 251 and 468 of Spanish Maritime Navigation Act)
Jurisdiction clauses play a particularly important role in the field of contracts for the carriage of goods by sea, which are essentially international in nature, providing legal certainty and at the same time promoting commercial traffic. The forum selection clauses inserted in bills of lading, however, raise certain problems of formal validity of the consent and opposability against third parties. Article 25 RBI-bis is silent on the translational effectiveness of jurisdiction agreements, this gap being filled by the jurisprudence of the TJUE. The application and interpretation of this jurisprudence in relation to arts. 251 and 468 LNM has given rise to conflicting positions both in the doctrine and in the Spanish courts, and has finally led to the presentation of a preliminary ruling before the CJUE.
María del Ángel Iglesias, Algunas notas sobre el fuero indígena y la jurisdicción especial indígena (Some notes on indigenous law and special indigenous jurisdiction)
The recognition of the rights of indigenous peoples leads, in its necessary evolution, to the recognition of a particular indigenous jurisdiction, understood as the power to administer justice in the different branches of law, following ancestral uses and customs, their own rules and procedures and, in short, a certain legislation. It implies that, together with state law, there is a kind of exceptionality when specific requirements are met, which these lines address. Its application reveals problems relating to jurisdiction and the applicable law, and the recognition of the decisions issued in a particular venue; an exception that has its objective limits in the affectation of the Constitution, human rights and public order. All this is based on the recognition of legal pluralism, ethnic plurality, multiculturalism, and cultural identification and self-determination of peoples understood within the respect for the sovereignty and integrity of the State.
Carmen Jerez Delgado, Francisco Verdún Pérez, A la vuelta de treinta años. La implementación de la Directiva 93/13 sobre cláusulas abusivas, tarea conjunta y progresiva del legislador y los jueces (Thirty years on. The implementation of Directive 93/13 on unfair terms, a joint and
progressive task of legislators and judges)
Thirty years after the publication of Directive 93/13 on unfair terms, the process of progressive implementation continues in Spain, both legally and jurisprudentially, in which the judges play an important role through the preliminary ruling question. This Directive is – like no other – a paradigm of the institutional game between the Member States and the European Union. The Spanish case is a case in point. A Directive that in principle has a material or substantive content has turned out to be a real Trojan horse in Spanish formal (procedural) law, altering its classic principles, to the astonishment of procedural doctrine.
Oleksandra O. Karmaza, Oksana O. Hrabovska, Olena S. Zakharova, Settlement of inheritance relations in bilateral international agreements of Ukraine with foreign states on legal assistance in civil cases
The main features of inheritance relations with a foreign element are given. The main issues to be resolved in inheritance relations with the help of international agreements concluded by Ukraine with foreign states on legal assistance in civil cases were identified. It has been established that the norms of two dozen bilateral international agreements on legal assistance and about three dozen consular conventions that Ukraine has concluded with many states are devoted to the issue of international inheritance. Some of the conventions operate in the order of succession of Ukraine after the collapse of the USSR. Comparative analysis of the content of the texts of bilateral international agreements of Ukraine with foreign states on legal assistance in civil matters allowed classifying them by methods of regulation of inheritance relations into three groups: ones that do not contain separate articles (articles) on the regulation of inheritance relations; agreements on legal relations and legal assistance in civil matters between Ukraine and foreign countries, which contain provisions on inheritance relations, which in turn are divided into two groups depending on the structure and content of the articles: inheritance cases and the right to inheritance. The analysis gives grounds to claim the lack of a unified approach to the conclusion of contracts in the third group. This cannot be explained by the will of the parties, because the content of this group of agreements has a high level of identity. The agreement between Ukraine and the Republic of Cyprus on legal assistance in civil matters, which has a separate section IV on inheritance, has an exceptional content in the regulation of inheritance relations, but in comparison with other two groups of agreements with foreign countries contains very brief information. From the analyzed bilateral international agreements it was concluded that most aspects of inheritance relations are regulated by the personal law of a testator or the right of location of a property. There is a gradual overcoming of the problem of splitting the inheritance status, regardless of the location of the inheritance, the spread of the possibility of choosing the applicable law to the estate.
Julián Lozano Hernández, Lecciones del Covid-19. El incumplimiento previsible como una alternativa viable frente a la fuerza mayor y hardship del Art. 79 CISG (Lessons from Covid-19. Anticipatory breach as a feasible alternative to force majeure and hardship under Art. 79 CISG)
Article 79 of the United Nations Convention on Contracts for the International Sale of Goods imposes very strict requirements for its application as a ground for exemption from liability. As an alternative to it and in line with modern relational contracts theories, this article proposes, in situations where there are circumstances that prevent a normal development of the contract, the use of the anticipatory breach mechanism contained in Articles 71 to 73 of the Convention, especially for contracts of a certain complexity and of medium and long term, such as supply contracts.
María del Mar Maroño Gargallo, Marcas no tradicionales. Especial referencia a la marca patrón, la marca de posición y la marca de color (Non-traditional marks. Special reference to the pattern mark, the position mark, and the colour mark)
One of the elements that shows the expansion of the trademark law is the great variety of signs whose registration is admitted as a trademark. This study focuses on three types of signs that are integrated or confused with the appearance of the products: the pattern mark, the position mark and the color mark. These types of marks are an excellent example of the tension between the desire of the economic operators to have attractive elements of differentiation and the need to ensure the free availability in the market of certain elements. Having this into account, we analyze the concept of these non-traditional trademarks and their representation requirements, the main absolute grounds for refusal and the scope of legal protection that they receive once registered.
Enrique J. Martínez Pérez, Los órganos de tratados de las Naciones Unidas como alternativa limitada para la salvaguarda de los derechos humanos en España (United Nations treaty bodies as a limited alternative for the protection of human rights in Spain)
The aim of this research is to analyze the legal status of pronouncements of expert bodies established under various human rights treaties at the universal level from an international and domestic standpoint, with particular emphasis on remedies and procedures to give legal effect to their decisions in Spain.
Pablo M. Melgarejo Cordón, Consideraciones sobre el control de oficio de la competencia en el ámbito de los Reglamentos europeos de familia y sucesiones (Considerations on the ex officio examination of jurisdiction in European family and succession Regulations)
The purpose of this paper is to study the special features of ex officio monitoring of international competition in the material field of European family and succession Regulations. It also carried out an analysis of the STJUE of 7 April 2022, referring to the application of the provisions of Regulation 650/2012 in matters of succession, collecting some personal reflections and opinions in this regard.
Miguel-Ángel Michinel Álvarez, El TJUE y el Derecho internacional privado. Ante la digitalización de bienes y servicios (The CJEU and the International Private Law. Facing the digitalization of goods and services)
Faced with the problems that may arise when it comes to articulating community freedoms within the framework of the internal market for goods and services affected by the growing and unstoppable process of digitization, private law, for its part, responds with new rules that, each time with greater intensity, they unify aspects where there are discrepancies between the systems of the different Member States. But, given the clearly cross-border dimension of the type of existing relationships, the existing EU private international law acquis retains an important function, fine-tuned by the CJEU, on the path towards the establishment of a European digital sovereignty. This paper examines, from the perspective of this jurisprudence, the most relevant advances, from the perspective of liability, both contractual and non-contractual, related to that market.
Luis María Miranda Serrano, Adopción de acuerdos por escrito y sin sesión. Encaje del ordenamiento español en una tendencia de Derecho comparado flexibilizadora de los procesos de formación de la voluntad social (Adoption of written resolutions and without a meeting. The fit of the the Spanish legal order into a trend of comparative law that makes the processes of company will formation more flexible)
There is a clear trend in comparative law in favor of admitting that in closed companies the resolutions may be adopted in writing and without a meeting (as is the case, for example, in German, British, Italian, Portuguese, Swiss or Argentine legislation). In 1953 the Spanish legislator moved in the same direction. However, since 1995 our corporate legislation has omitted express reference to this flexible mechanism for the formation of the company will. In spite of this, there are arguments to sustain that our law fits in with the aforementioned trend. This paper presents and analyzes these arguments, offering a study of the issue both from the perspective of current law (lege lata) and from a prospective point of view (lege ferenda).
Lidia Moreno Blesa, Los negocios internacionales de electricidad. El mixti fori de lo público y lo privado (International businesses of electricity. The mixti fori of the public and private)
The world energy system is unstable because of Russia’s military aggression against Ukraine. For the European Union, it has meant a considerable increase in gas prices, due to its great dependence on imports of this raw material from the invading territory. Therefore, electricity has also suffered an alarming increase in prices, due to its status as derived energy that can be obtained from primary sources such as gas. This situation has caused that price of goods and services also increased, since energy is necessary for any human activity. Ensuring supply and reducing inflation is important now. The application of international trade regulations is considered, as well as the pactum de lege utenda in electricity contracts. The objective is to offer an overview of the rules of private international law in this sector of economic activity and learn about the peculiarities that govern the use of electricity.
Gisela Moreno Cordero, La justicia adversarial frente a las nuevas tendencias en la resolución alternativa de daños masivos a los consumidores. El ajuste al modelo español (Adversarial justice in the face of new trends in alternative resolution of mass consumer damages. Adjustment to the Spanish model)
Relatively recently, Directive (EU) 2020/828 of the European Parliament and of the Council of 25 November on representative actions for the protection of consumers’ collective interests was adopted. Its main objective has been to ensure that consumers have at least one procedural mechanism capable of effectively protecting their collective interests. However, the Directive is based on an adversarial model of proven ineffectiveness that did not take into account the new dispute resolution models adopted by some Member States, whose effectiveness is indisputable in terms of time and results. By means of these new models (new technologies) it is possible to quickly and easily obtain redress for the massive damage caused to consumers through voluntary agreements, without the need to resort to a procedure. Taking as a starting point the extensive comparative experience and scientific doctrine, our proposal is aimed at evaluating the possible introduction of new technologies -regulatory redress and the Ombudsman- in the Spanish legal system in those consumer sectors where this is feasible.
Mª Carmen Núñez Zorrilla, Hacia un marco legal europeo uniforme en la prevención de los riesgos y de la responsabilidad civil en el ámbito de la conducción automatizada inteligente (Towards a uniform European legal framework in the prevention of risks and civil liability in the field of intelligent automated driving)
Worldwide, we are moving towards fully automated or autonomous intelligent transport systems, by means of which we want to combat greenhouse gas emissions, air, noise and water pollution, traffic accidents, congestion and the loss of biodiversity. Hence, the concern for the development, from the European Union, of a legal framework for the prevention of risks and the regulation of civil liability derived from the damage that these systems may cause, since the specific characteristics that define this technology create new risks that are not adequately covered by traditional regulations, which must be reviewed to adapt to new technologies with artificial intelligence.
Xabier Orbegozo Miguel, Embargo preventivo y declaración de avería gruesa. A propósito del incidente del buque Ever Given (Arrest of ships and general average. Legal lessons from the Ever Given case)
In March 2021, the Ever Given ran aground in the Suez Canal generating an unprecedented collapse in the main shipping route linking the Asian continent with European ports. After the initial impact, the legal interest focused in the following days on the arrest for the debt generated to the Canal authorities and on the declaration of general average by the shipowner, which was probably the largest amount for which this instrument has been used to date. This paper aims to show the main characteristics of these singular institutions of Maritime Law.
AlFonso Ortega Giménez, La nacionalidad española de los habitantes del Sáhara occidental. Práctica jurisprudencial española (The Spanish nationality of the inhabitants of Western Sahara. Spanish jurisprudence practice)
Western Sahara ceased to be under Spanish sovereignty on February 26, 1976. Therefore, all citizens born in this territory before that date claim Spanish nationality. The Saharawis understand that they were born in an area which, at that time, was part of Spain. But justice does not think so, since, in June 2020, a ruling of the Supreme Court denied this theoretical right to the Saharawis and established that being born in Western Sahara before that date did not give the right to obtain the Spanish nationality of origin, as it was not considered to be national territory.
Fabio Ratto Trabucco, Neurorights between ethical and legal implications
Advances in neuroimaging and brain-machine interfacing (BMI) increasingly enable the large-scale collection and further processing of neural data as well as the modulation of neural processes. In parallel, progresses in artificial intelligence (AI), especially in machine learning, create new possibilities for decoding and analysing neural data for various purposes including health monitoring, screening for disease, cognitive enhancement, and device control. This contribution discusses some major ethical, technical, and regulatory issues associated with neural data analytics and delineates a roadmap for responsible innovation in this sector. Moreover, this paper review a variety of themes including mind reading, mental privacy, cybersecurity in commercial BMI, and issues of neurotechnology governance. Finally, a framework for responsible innovation and governance is presented.
Teresa Rodríguez de las Heras Ballell, La ratificación de España del Protocolo de Luxemburgo al convenio de Ciudad del Cabo: la entrada en vigor del régimen jurídico internacional para la financiación de material rodante ferroviario (Spanish ratification of the Luxembourg Protocol to the Cape Town convention: the entering into force of the international legal rules for railway rolling stock finance)
The deposit of the instrument of ratification by Spain to the Luxembourg Protocol on international interests related to railway rolling stock, the second protocol to the Cape Town Convention, put into motion the entering into force of the Protocol once the International Registry will be fully operative. The Spanish ratification is of great importance for the expansion of the Cape Town system, for the position of Spain as a Contracting State, and for the access to credit in the railway sector. This Paper studies the ratification of Spain to the Luxembourg Protocol, enabling it to enter into force, analyzes the declarations made by Spain to the Protocol within the framework of the Cape Town system and considering the equipment-specific provisions.
Mercedes Sabido Rodríguez, Las vías penal y civil para proteger al menor frente a supuestos de sustracción internacional. Su coexistencia en el espacio judicial europeo (The criminal and civil ways to protect the minor against international abduction. Its coexistence in the European judicial area)
Protection against international child abduction is articulated through different channels. The international conventions and, more recently, the European texts are intended to regulate the instruments through which civil protection is articulated. Through it, the restitution of the minor is sought or, where appropriate, the recognition and/or execution of a decision adopted in another State regarding parental responsibility. Along with this route, national legislation contemplates the crime of international child abduction, through which the criminal protection route is articulated against this type of crime. The coexistence of both channels, which use optional and cumulative, is not exempt from difficulties, particularly for the sake of the functioning of the European judicial area. A space governed by the principles of equality and prohibition of discrimination, in which freedom of movement and residence is configured as a basic freedom and where the principle of mutual recognition is configured as a cornerstone of the cooperation system in both the civil and social spheres. in the prison. An approach to the issues raised by the coexistence of this double path of protection in the European judicial space is the object of this study.
Sara Sánchez Fernández, Información engañosa al inversor. De nuevo sobre la localización del daño puramente financiero (Misleading information and investors. Back to the localisation of the financial damage)
The pivotal element of capital markets regulation is disclosure. Where misleading information is disseminated, investors may suffer a pure economic loss, which is immaterial and, thus, difficult to locate. This paper covers the dynamics between information, price and damage in capital markets as the fundamental element to correctly locate financial loss in cross-border scenarios. On this basis, I analyse the CJEU case law on the interpretation of art. 7.2 Brussels I bis Regulation, in particular the latest judgment VEB, which apparently turns to a market-oriented location of the damage. Lastly, I discuss whether the conclusions may be extrapolated to the determination of the law applicable under art. 4.1 of Rome II Regulation.
Tahimí Suárez Rodríguez, Expropiación indirecta en los Tratados Bilaterales de Inversión latinoamericanos: la caja de Pandora de las controversias neerlandesas en la región (Indirect expropriation in Latin-American Bilateral Investment Treaties: the Pandora’s box of Dutch controversies in the region)
This paper analyzes the pronouncement on indirect expropriation in the bilateral investment treaties signed by the Latin American countries with Netherlands, which has constituted a preponderant basis in the Dutch Investor-State claims against Latin America, due to the shortcomings of the existing wordings under the Dutch Models BIT previous. The requirement of a new formulation on indirect expropriation in Latin American APPRI ́s with the European country which incorporates the realities and experiences of the nations of region as well as the provisions of the Dutch BIT Model of 2019 in this regard, shows posibilities to mitigate the claims of this kind.
Esther Torrelles Torrea, Las expectativas del consumidor en los criterios de conformidad del TRLGDCU y CCCAT (The expectations of the consumer in the conformity criteria of the TRLGDCU and CCCAT)
The objective requirements for conformity are based on the characteristics and purposes that goods and digital content and services of the same type normally have and on the reasonable expectations of the consumer. The objective of this work is to study, on the one hand, the objective criteria of conformity in the TRLGDCU and in the Civil Code of Catalonia, and on the other hand, the consumer expectations, specifically in the light of the standard of reasonableness and the assessment elements that grant its delimitation.
Deng Jiayuan, Los efectos de la inscripción y la entrega en las transacciones de bienes inmuebles en el Derecho civil chino (The effects of registration and delivery in the transactions of immovables in Chinese Civil Law)
According to Civil Code of China, the ownership of immovable is transferred through registration after the sales contract was signed. The delivery of immovable does not have the effect of transferring the ownership of immovable. The buyer has no real right to the immovable before registration after delivery of the immovable, and his right is limited to the creditor’s rights on the seller based on the sales contract. After the delivery, the possession, use and enjoy of such an immovable by the buyer are based on the creditor ́s rights to the seller derived from the sales contract. In judicial practices, however, there are circumstances in which this general doctrine cannot be fully adhered to. This has often been a source of controversy among scholars.
Below are the titles of the shorter articles.
Salomé Adroher Biosca, ¿Exequatur de la sentencia de divorcio de reagrupado o reagrupante como condición para el ejercicio del derecho a la reagrupación familiar? La relevante doctrina legal del Tribunal Supremo de 2022 (Exequatur of the divorce judicial decision of the marriage of husband or wife as a condition to exercise the right to family reunification? The relevant legal doctrine of the Spanish Supreme Court of 2022)
Isabel Antón Juárez, Proceso monitorio europeo e interrupción de plazos procesales por la pandemia causada por el Covid-19. A propósito de la STJUE de 15 de septiembre de 2022, C-18/21, Uniqa Versicherungen AG c. VU (Order for payment procedure and interruption of procedural periods for the pandemic created for the Covid-19. On purpose of the CJEU Judgment of 15 septemberof 2022 C-18/21, Uniqa Versicherungen AG c. VU)
Flora Calvo Babío, Agentes contractuales de la Unión Europea destinados en un tercer país, ¿se pueden divorciar en un Estado miembro? Y, ¿qué pasa con los diplomáticos? (Can European Union contract staff posted to a third country be divorced in a member State? And what about diplomats (ECJR of 1 august of 2022 )?)
Luis F. Carrillo Pozo, Cambio de residencia de un menor durante el proceso y perpetuatio iurisdictionis. Comentario a la sentencia del Tribunal de Justicia (Sala Cuarta) de 14 de julio de 2022, asunto C-572/21 (Change of residence of a child during the lawsuit and perpetuatio iurisdictionis. Purpose to the cjeu judgement of 14th july 2022, case C-572/21)
David Cuenca Pinkert, Concreción de la conexión “residencia habitual” en el Protocolo de La Haya sobre alimentos ante un traslado o retención ilícitos según el Reglamento (CE) 2201/2003. Aclaración propuesta por la STJUE de 12 de mayo de 2022, asunto C-644/20, W. J (Concretion of the connection “habitual residence” in the maintenance obligations Hague Protocol in the event of a wrongful removal or retention according to Regulation (EC) 2201/2003. Clarification proposed by the CJEU of May 12, 2022, case C-644/20, W. J.)
Diana Gluhaia, El efecto directo del principio de proporcionalidad en el contexto de las sanciones previsto en el artículo 20 de la Directiva 2014/67/UE (The direct effect of the principle of proporcionality in the context of the sanctions provided for in article 20 of Directive 2014/67/EU)
Natividad Goñi Urriza, Cláusulas de elección de foro en el Derecho Internacional Privado y condiciones generales incluidas en documentos comerciales emitidos unilateralmente: un análisis desde el Auto del Juzgado de Primera Instancia e Instrucción núm. 2 de Miranda de Ebro, núm. 17/2022, de 21 de enero de 2022 (Choice of court agreements under Private International Law and general terms and conditions within unilateral commercial documents: an analysis in light of the Resolution of the Civil and Criminal Court Nº 2 of Miranda de Ebro, Nº 17/2022, dated 21 January 2022)
Nerea Magallón Elósegui, Ley aplicable a la validez formal y material de la declaración de renuncia a la herencia en el Reglamento europeo 650/2012 sobre sucesiones (Law applicable to the formal and substantive validity of the declaration concerning the waiver of succession in the Regulation 650/2012)
Ada Lucía Mariscal González, El (des)interés del TJUE del traslado del centro de intereses principales en un procedimiento de insolvencia en tiempos de Brexit, a propósito de la STJUE de 24 de marzo de 2022, Galapagos BidCo, asunto C-723/20 (The (dis)interest of the CJEU in the transfer of the centre of main interests in insolvency proceedings in times of Brexit. Commentary to CJEU Ruling of 24th March 2022, Galapagos BidCo, C-723/20.)
Carmen María Noriega Linares, Laudo arbitral extranjero y orden público internacional. El desafío (Foreign arbitral award and international public policy. The challenge)
Juliana Rodríguez Rodrigo, La aplicación del artículo 1320 CC como orden público en el ordenamiento español. A propósito de la resolución de 31 de enero de 2022, de la Dirección General de Seguridad Jurídica y Fe Pública (The application of article 1320 CC as public policy in spanish law. Regarding the resolution of 31 january 2022, of the Directorate General For Legal Certainty and Public Faith.)
Mª Jesús Sánchez Cano, La incidencia de la doctrina de los actos propios en la aplicación del CH 1980 a supuestos de sustracción internacional de menores. Comentario a la SAP Oviedo de 7 de abril de 2022 (The incidence of the doctrine of own acts in the application of the CH 1980 to cases of
international child abduction. Commentary to the SAP Oviedo of April 7, 2022)
Mª Jesús Sánchez Cano, La determinación de la ley aplicable al contrato de cesión de créditos con elemento internacional. A propósito de la sentencia de la Audiencia Provincial de Soria de 21 de junio de 2022 (The determination of the law applicable to the contract for the assignment of receivables with an international element. Regarding the judgment of the Provincial Court of Soria of June 21, 2022)
Anabela Susana de Sousa Gonçalves, Direito de asilo versus rapto internacional de crianças (Right to asylum versus international child abduction)
Julia Suderow, Carsten Krüger, La presunción del daño causado por un ilícito antitrust según el Tribunal Federal Alemán (Bundesgerichtshof) (The presumption of the harm caused by anticompetitive conducts, jurisprudence of the German Federal Court (Bundesgerichtshof))
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