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De

LECTOCOMPRENSION INGLÉS

MATERIAL DIDÁCTICO

D E P A R T A M E N T O D E I D I O M A S

F A C U L T A D D E D E R E C H O

U N I V E R S I D A D D E B U E N O S A I R E S

A Ñ O 2 0 1 4

Selección de Textos Este trabajo de compilación contiene los textos que se utilizarán para el dictado de la materia. Los textos ilustran los distintos ejes temáticos abordados para la enseñanza de las técnicas de comprensión lectora en lengua extranjera

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INDICE DE TEXTOS POR EJE TEMÁTICO

1. Derecho Constitucional

Texto 1: Federal Judiciary.

Texto 2: The Structure Of The Federal Judiciary.

Texto 3: The House of Commons and the House of Lords

Texto 4: Central Features of the English Legal System

Texto 5: Solicitor or Barrister?

2. Derechos Humanos

Texto 6: Human Rights Council Complaint Procedure

Texto 7 Human Rights council Complaint Procedure Form

Texto 8: Human Rights Court Rejects New Attempt To Extradite Terror Suspect To US

Texto 9: Prohibition of Torture

3. Contratos Texto 10: What is a Contract?

Texto11: E-contracts

Texto 12 New Law Makes e-signatures valid

4. Derecho Procesal Civil Texto 13 How Courts Work:

o Lectura A: Civil Cases o Lectura B: The Appeals Process

Texto 14: Trial By Jury

Texto 15: Trial By Jury. Frequently Asked Questions (FAQ’s)

5. Derecho Penal y Procesal Penal

Texto 16: Federal Rules of Criminal Procedure

Texto 17: Criminal Procedure: An Overview

Texto 18: Famous Cases & Criminal Cases: Al Capone

6. Derecho Comercial (Títulos Negociables)

Texto 19: Negotiable Instruments: An Overview. Cornell

Texto 20: Business Law Today: Essentials

Texto 21: Negotiable Instruments. Overview. Translegal

7. Derecho Societario Texto 22: Corporations: An Overview

Texto 23: Major Forms of Business Organizations Compared

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Texto 24: UK Company Law is Terorism’s Friend

8. Derecho de Familia Texto 25Marriage

Texto 26: Florida´s Adoption Information Guide

Texto 27: Grounds for Divorce

9. Derecho Sucesorio

Texto 28: Inheritance Law

Texto 29: What is Probate?

Texto 30: Uniform Succession Laws: Intestacy

10. Derecho de Daños

Texto 31: Torts-Your Protection Against Wrongs.

Texto 32: Definitions (Specific Torts -from LII Cornell University School of Law and Nolo's

Plain- English Law Dictionary).

Texto 33:The Nature of Tort Liability - Prof. Sam Blay- University of Technology

(Sydney).

Texto 34: Rulings Appear To Be Split In Tort Cases For Coffee Burns (4).

11. Derecho Internacional Privado

Texto 35: International Law

Texto 36: International Trade Law: An Overview. Cornell

Texto 37: The Importance of Private International Law for Family Issues in an Era of

Globalization: International Child Abduction

Texto 38: What is the Hague Convention on the Civil Aspects of Child Abduction?

12. Derecho Internacional Público

Texto 39: Researching Public International Law. Definitions

Texto 40: The International Court of Justice

Texto 41: Principles of International Law Recognized in the UN Charter. Nüremberg

:

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Sugerencias para la comprensión del texto Seleccionar según su criterio práctico los pasos que le sean más beneficiosos.

Mire el artículo y enumere, desde la presentación gráfica, ¿qué elementos son

fácilmente reconocibles?

Por propia deducción o con ayuda del docente reconociendo términos

transparentes, ¿pudo comprender cuál es el tema del artículo?

Los conocimientos adquiridos pueden ayudarlo en destacar la idea central.

Tenga en cuenta la fuente.

Anticipe, según los pasos anteriores, ¿Cuáles son las palabras claves?

Redacte una lista de sustantivos y verbos.

Docente y Alumno: Analice con el documento el contenido gramatical para

entender la articulación del idioma. Identifique en el texto los patrones

señalados.

Confeccione un glosario con el contenido léxico jurídico.

Enumere las características de un texto descriptivo.

Para la expresión escrita en castellano respete brevedad, claridad y precisión.

Al finalizar cada unidad temática realice una autoevaluación: logros,

dificultades, instrucciones del docente que le resultaron más beneficiosas.

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UNIDAD 1:

DERECHO CONSTITUCIONAL

Texto 1: Federal Judiciary.

Texto 2: The Structure of Federal Courts

Texto 3: The House of Commons and the House of Lords.

Texto 4: Central Features of the English Legal System.

Texto 5: Solicitor or Barrister?

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Texto 1: Federal Judiciary. Fuente: http://www.fjc.gov/federal/courts.nsf/usbranches.gif!OpenImageResource

The Federal Courts and the Other Branches of Government

Where do the federal courts fit into the federal government?

The federal judiciary is one of three equal but distinct branches of the federal government.

The framers of the Constitution created three equal branches to prevent any one branch from having too much power. Our country’s system of government rests on a separation of powers. The legislative branch--Congress--makes the laws. The President and other executive branch departments execute and enforce the laws. It is the job of the judicial branch to apply and interpret the laws and to resolve disputes that arise under them. No branch may perform functions reserved for the other branches. Federal courts may exercise only judicial powers and perform only judicial functions, and judges may decide only cases that are before them.

The Constitution also creates a system of "checks and balances" among the three branches of government. This means that each branch has some powers over the other branches. For example, the President can veto legislation passed by Congress, which can, in turn, override the veto. The President appoints most federal judges, but the Senate must approve them. The courts interpret the laws that Congress enacts and may declare them unconstitutional.

What is judicial independence, and why is it important?

The founders of this country recognized that the judicial branch must remain independent to fulfill its mission effectively and impartially.

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Texto 2: Structure of the Federal Courts

Fuente: http://www.uscourts.gov

Structure of the Federal Courts

Explaining the Structure The federal courts have a three-part structure,

as explained in the following diagram:

The structure of the federal courts is roughly pyramidal. The Supreme Court is at the top of the

pyramid. The Supreme Court is the highest court in the federal

system. The Supreme Court is often called "the highest court in the land" because it hears appeals

from state courts as well as federal courts. The Supreme Court has nine justices and begins its term

on the first Monday in October of each year.

The Supreme Court hears most cases on appeal. Litigants appeal their cases from a state supreme

court or from a federal Court of Appeals must file for a "writ of certiorari". If four of the nine Justices

agree to issue a writ, the Court will hear the case. The Court also has limited "original jurisdiction"

in some cases.

The Federal Courts of Appeal are the middle part of the pyramid. The Courts of Appeal are divided

into twelve different regions, often known as "circuits". These courts are often known as "circuit

courts". Eleven of the twelve circuit courts handle cases from different states -- for example, the

Eleventh Circuit Court of Appeals in Atlanta handles cases from Alabama, Florida, and Georgia.

The twelfth circuit court is the Court of Appeals for the District of Columbia, and is located in

Washington. Additionally, there is also a United States Court of Appeals for the Federal Circuit,

which hears certain specialized cases.

The Federal District Courts are the lowest part of the pyramid. There are 94 judicial districts across

the country, including judicial districts in the District of Columbia, Puerto Rico, the Virgin Islands,

the Northern Mariana Islands, and Guam.

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Texto 3. The House of Commons and the House of Lords Fuente: http://:www.parliament.uk

The House of Commons and the House of Lords

Parliament has the power to make new laws and change old ones.

Parliament's parts

The UK Parliament can be found in Westminster, London. It has three parts:

The House of Commons is made up of 650 Members of Parliament (MPs). We vote for our

MPs and whoever wins represents everyone in our local area (called a constituency) even if

we voted for someone else.

The House of Lords has over 700 members, who are not elected but who have been selected

by the prime minister and appointed by the Queen.

The monarch, our Queen, opens and closes Parliament every year, asks the winning party

in a general election to become the government and officially signs all the laws that

Parliament votes for.

How are laws made in Parliament?

Acts of Parliament are laws of the land that affect us all. For example, laws determine at

what age people can drive cars or vote in elections.

A proposed new law is called a bill. Bills must be agreed by both Houses of Parliament

before becoming laws. This often means that a bill is passed backwards and forwards

between the House of Commons and House of Lords, each making changes, until they are

both happy with the exact wording.

This makes sure that the bill is properly thought through and that all the consequences of

the new law have been considered.

Once both Houses have agreed on the bill it can be approved by the Queen. This is called

Royal Assent and means the bill becomes an Act of Parliament and therefore officially a

new law

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Texto:4: Central Features of the English Legal System

Fuente: English Law and Language, Frances Russell and Christine Locke (Prentice Hall Macmillan)

The Characteristics of English Law

The United Kingdom does not have a single legal system. The law in Scotland was

influenced by Roman Law and is different from the law of England, Wales and Northern

Ireland.

The English legal system is centralised through a court structure which is common to the

whole country. It is hierarchical, with the higher courts and judges having more authority

than the lower ones. Some important characteristics of English Law are:

1.- English law is based on the common law tradition. By this we mean a system of “judge

made” law which has continuously developed over the years through the decisions of

judges in the cases brought before them. These judicial precedents are an important source

of law in the English legal system. Common law systems are different from the civil law

systems of Western Europe and Latin America. In these countries the law has been codified

or systematically collected to form a consistent body of legal rules.

2.- English judges have an important role in developing case law and stating the meaning of

Acts of Parliament.

3.- The judges are independent of the government and the people appearing before them.

This allows them to make impartial decisions.

4.- The style of legal reasoning in Common law systems is inductive –reasoning in

individual cases leads to general rules, whereas the style of reasoning in civil law systems is

deductive –decisions are reached by reasoning from general rules to particular cases.

5.- English law is said to be more flexible and dynamic, but we have to remember that

judges, who are the ones who “make the law”, are not part of the legislative body, and that

separate decisions in individual cases may not have a coherent general form. Civil law

systems are said to be more rigid and static legal principles may not correspond to

changing circumstances, but the law is more certain because since it brings together in one

place all the legal rules of the country, making it easier to find the law.

6.- Court procedure in the English legal system is accusatorial. This means that judges do

not investigate the cases before them but reach a decision based only on the evidence

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presented to them by the parties. In continental systems, on the contrary, court procedure is

inquisitorial, which means that judges investigate the case and collect evidence.

Equity

Equity comprises the rules developed by the common law courts in contrast to the rules

developed by the courts of equity or courts of chancery.

In the middle ages, in many situations there was no remedy available at common law.

Thus, a practice developed of appealing directly to the king or to his chief legal

administrator, the lord chancellor, and a new system of law developed alongside the

common law. This system, equity, aimed at achieving more justice and fairness. The two

main examples of equitable remedies are:

a) Injunctions: a court order which requires a party to do or refrain from doing specific

acts.

b) Specific performance: the right to force someone to fulfil a contract rather than simply

pay damages for breaking it.

“Common law” is then the part of law that is opposed to “equity”, the body of rules

administered by the old courts of equity/chancery (today, the Chancery Division of the

High Court of Justice). Courts of equity or chancery are still maintained as separate

jurisdictions in certain areas of the commonwealth and in some states of the United States.

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Texto 5: Solicitor or Barrister? Fuente: Smith, Tricia, Business Law, Pearson Education Limited, England.

Solicitor or Barrister?

The solicitor is the first point of contact with the law for a client in the UK. The solicitor

listens carefully to the client, making sure their needs are clearly understood and then

explains the legal position and tenders advice.

By contrast, barristers will only see the client in the company of a briefing solicitor. The

barrister is the specialist with particular skills in advocacy, a consultant who will examine

the case and decide what line to take in court. The barrister will be reliant on the detailed

brief prepared by the client’s solicitor.

There are only a few solicitors who are allowed to present cases in the higher courts. Many

more solicitors work in their litigation departments and spend much of their time preparing

briefs for counsel. Barristers are self-employed in the independent Bar. Solicitors are

normally salaried and may be offered a share in the profits of the practice if they are

successful.

The Bar is an advocacy profession. The Bar’s right of audience in the higher courts remains

virtually unchallenged. The work divides equally between civil and criminal law. There are

over 70 specialist areas, including major ones like chancery (mainly property and finance)

and the commercial bar.

Judges in England and Wales have mostly been barristers of 10 years’ standing, then

Queen’s Counsellors, and are appointed by the Lord Chancellor.

Judges cannot work as barristers once they are appointed. A barrister who is a part-time

judge is known as a Recorder. The Crown Prosecutor, who works for the Director of Public

Prosecutions, is responsible for prosecuting criminals based on evidence presented by the

police.

Solicitors do a variety of work -corporate and commercial, litigation, property, private law,

banking and project finance, employment law and environmental law.

Attorney at Law

A person admitted to practice law in their respective state and authorized to perform both civil and

criminal legal functions for clients, including drafting of legal documents, giving of legal advice, and

representing such before courts, administrative agencies, boards, etc.

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Prosecutor

One who prosecutes another for a crime in the name of the government. One who instigates the

prosecution upon which an accused is arrested or who prefers and accusation against the party

whom they suspect to be guilty, as does a district, county, or state´s attorney on behalf of the state,

or a United States Attorney for a federal district on behalf of the US government.

In Spain, the universities are in charge of the education of lawyers. Anyone completing a law degree

is entitled to be called a lawyer and may work as a lawyer for a legal practice or in a company.

However, to achieve public office and work for the State Judiciary, as a notary or judge, for example,

graduate lawyers must compete for places through public examinations and then attend judicial

school for two years. They then may be appointed as civil servants anywhere in the country.

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UNIDAD 2:

DERECHOS HUMANOS

Texto 6: Human Rights Council Complaint Procedure

Texto 7: Human Rights Council Complaint Procedure

Form

Texto 8: Human Rights Court Rejects New Attempt to

Extradite Terror Suspect to US

Texto 9: Prohibition of Torture

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Texto 6: Human Rights Council Complaint Procedure

Fuente: http://www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/HRCComplaintProcedureIndex.aspx

HUMAN RIGHTS COUNCIL COMPLAINT PROCEDURE

On 18 June 2007, the Human Rights Council adopted resolution 5/1 entitled “Institution-Building of the United Nations Human Rights Council” by which a new complaint procedure was established to address consistent patterns of gross and reliably attested violations of all human rights and all fundamental freedoms occurring in any part of the world and under any circumstances. The complaint procedure addresses communications submitted by individuals, groups, or non-governmental organizations that claim to be victims of human rights violations or that have direct, reliable knowledge of such violations. Like the former 1503 procedure, it is confidential, with a view to enhance cooperation with the State concerned. The new complaint procedure has been improved, where necessary, to ensure that the procedure be impartial, objective, efficient, victims-oriented and conducted in a timely manner.

History of situations considered since the establishment of the complaint procedure

How does the complaint procedure work?

Pursuant to paragraph 94 of resolution 5/1, the Chairperson of the Working Group on Communications, together with the Secretariat, undertake an initial screening of communications based on the admissibility criteria set in paragraphs 85 to 88 of resolution 5/1. Manifestly ill-founded and anonymous communications are screened out. Communications not rejected in the initial screening are transmitted to the State concerned to obtain its views on the allegations of violations. Both the author of a communication and the State concerned are informed of the proceedings at each stage. Two distinct working groups - the Working Group on Communications and the Working Group on Situations – are responsible, respectively, for examining written communications and bringing consistent patterns of gross and reliably attested violations of human rights and fundamental freedoms to the attention of the Council. (Click in the “in this section” for more information on both Working Groups and the closed meetings of the Council).

What are the criteria for a communication to be accepted for examination?

A communication related to a violation of human rights and fundamental freedoms is admissible, provided that:

It is not manifestly politically motivated and its object is consistent with the Charter of the

United Nations, the Universal Declaration of Human Rights and other applicable instruments

in the field of human rights law;

It gives a factual description of the alleged violations, including the rights which are alleged

to be violated;

Its language is not abusive. However, such a communication may be considered if it meets

the other criteria for admissibility after deletion of the abusive language;

It is submitted by a person or a group of persons claiming to be the victims of violations of

human rights and fundamental freedoms, or by any person or group of persons, including

non-governmental organizations, acting in good faith in accordance with the principles of

human rights, not resorting to politically motivated stands contrary to the provisions of the

Charter of the United Nations and claiming to have direct and reliable knowledge of the

violations concerned. Nonetheless, reliably attested communications shall not be

inadmissible solely because the knowledge of the individual authors is second-hand,

provided that they are accompanied by clear evidence;

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It is not exclusively based on reports disseminated by mass media;

It does not refer to a case that appears to reveal a consistent pattern of gross and reliably

attested violations of human rights already being dealt with by a special procedure, a treaty

body or other United Nations or similar regional complaints procedure in the field of human

rights;

Domestic remedies have been exhausted, unless it appears that such remedies would be

ineffective or unreasonably prolonged.

National human rights institutions, established and operating under the Principles Relating to the Status of National Institutions (the Paris Principles), in particular in regard to quasi-judicial competence, may serve as effective means of addressing individual human rights violations.

How to submit communications?

Please fill out the complaint procedure form if you consider that your communication meets the abovementioned criteria.

Where to send communications?

Communications intended for handling under the Human Rights Council complaint procedure may be addressed to: Complaint Procedure Unit Human Rights Council Branch Office of the United Nations High Commissioner for Human Rights United Nations Office at Geneva CH-1211 Geneva 10, Switzerland Fax: (41 22) 917 90 11 E-mail: CP@ohchr.org

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Texto 7: Human Rights Council Complaint Procedure Form

1) Fuente: http://www.ohchr.org/EN/HRBodies/HRC/ComplaintProcedure/Pages/HRCComplaintProcedureIndex.aspx

Human Rights Council

Complaint Procedure Form

- You are kindly requested to submit your complaint in writing in one of the six official

UN languages (Arabic, Chinese, English, French, Russian and Spanish) and to use these

languages in any future correspondence;

- Anonymous complaints are not admissible;

- It is recommended that your complaint does not exceed eight pages, excluding

enclosures.

- You are kindly requested not to use abusive or insulting language.

I. Information concerning the author (s) of the communication or the alleged victim (s)

if other than the author

Individual Group of individuals NGO Other

Last name: ………

First name(s): ………….

Nationality: ………

Address for correspondence on this complaint: ………..

Tel and fax: (please indicate country and area code) ……….

E-mail: ……….

Website: ……….

Submitting the complaint:

On the author’s own behalf:

On behalf of other persons: (Please specify: ………………..)

II. Information on the State concerned

Name of the State concerned and, as applicable, name of public authorities responsible for

the alleged violation(s): …………..

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III. Facts of the complaint and nature of the alleged violation(s)

The complaint procedure addresses consistent patterns of gross and reliably attested

violations of all human rights and all fundamental freedoms occurring in any part of

the world and under any circumstances.

Please detail, in chronological order, the facts and circumstances of the alleged violations

including dates, places and alleged perpetrators and how you consider that the facts

circumstances described violate your rights or that of the concerned person(s).

……..…………………………………………………………………………………………...

………………………………………………………………………………………………….

………………………………………………………………………………………………….

.

………………………………………………………………………………………………….

.

………………………………………………………………………………………………….

.

………………………………………………………………………………………………….

.

IV. Exhaustion of domestic remedies

1- Steps taken by or on behalf of the alleged victim(s) to exhaust domestic remedies– please

provide details on the procedures which have been pursued, including recourse to the courts

and other public authorities as well as national human rights institutions1, the claims made,

at which times, and what the outcome was:

…………………..

2- If domestic remedies have not been exhausted on grounds that their application would be

ineffective or unreasonably prolonged, please explain the reasons in detail:

…………………………

V. Submission of communication to other human rights bodies

1- Have you already submitted the same matter to a special procedure, a treaty body or other

United Nations or similar regional complaint procedures in the field of human rights?

1 National human rights institutions, established and operating under the Principles Relating to the Status of National

Institutions (the Paris Principles), in particular in regard to quasi-judicial competence, may serve as effective means of

addressing individual human rights violations.

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……………

2- If so, detail which procedure has been, or is being pursued, which claims have been made,

at which times, and the current status of the complaint before this body:

…………………………

VI. Request for confidentiality

In case the communication complies with the admissibility criteria set forth in Council

resolution 5/1, kindly note that it will be transmitted to the State concerned so as to

obtain the views of the latter on the allegations of violations.

Please state whether you would like your identity or any specific information contained

in the complaint to be kept confidential.

Request for confidentiality (Please tick as appropriate): Yes No

Please indicate which information you would like to be kept confidential

Date: ………………… Signature: …………………….

N.B. The blanks under the various sections of this form indicate where your responses are

required. You should take as much space as you need to set out your responses. Your

complaint should not exceed eights pages.

VII. Checklist of supporting documents

Please provide copies (not original) of supporting documents (kindly note that these

documents will not be returned) in one of the six UN official languages.

- Decisions of domestic courts and authorities on the claim made (a copy of the relevant

national legislation is also helpful):

- Complaints sent to any other procedure mentioned in section V (and any decisions taken

under that procedure):

- Any other evidence or supporting documents deemed necessary:

VIII. Where to send your communications?

Office of the United Nations High Commissioner for Human Rights- Human Rights Council Branch-Complaint

Procedure Unit- OHCHR- Palais Wilson

United Nations Office at Geneva

CH-1211 Geneva 10, Switzerland

Fax: (+41 22) 917 90 11

E-mail: CP@ohchr.org

Website: http://www.ohchr.org/EN/HRBodies/HRC/Pages/HRCIndex.aspx

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Texto 8: Human Rights Court Rejects New Attempt to

Extradite Terror Suspect to US Fuente: theguardian.com, Wednesday 11 September 2013 13.42 BST

Human rights court rejects new attempt to extradite terror suspect to US

Grand chamber of human rights court rejects appeal by UK government over Haroon Aswat because of his mental illness

Alan Travis, home affairs editor

A renewed attempt by the British government to secure the extradition to the United States of a terror suspect accused of being a co-conspirator of the Islamist cleric Abu Hamza has failed. The grand chamber of the European court of human rights has rejected a British appeal to lift its bar on sending Haroon Aswat, who has been diagnosed with paranoid schizophrenia, to face pre-trial detention in an American "supermax" prison.

The grand chamber's ruling on Wednesday said the extradition of Aswat, who is currently detained in Broadmoor high security psychiatric hospital, would amount to inhumane treatment because his detention conditions were likely to exacerbate his paranoid schizophrenia.

The European court of human rights ruled in April that Aswat could not be extradited because of the threatened deterioration in his mental health. The British government asked for that ruling to be reconsidered but it has now been rejected.

"While the court held that Aswat's extradition to the US would be in violation of article 3 (prohibition of inhuman and degrading treatment), it was solely on account of the current severity of his mental illness and not as a result of the length of his possible detention there," said the latest ruling.

It said that in the light of the medical evidence in the case there was a real risk that the potentially more hostile prison environment would result in a significant deterioration in his mental and physical health.

The US department of justice told the court that it could not say with certainty where Aswat would be detained pending his trial or for how long.

Aswat has been indicted in the US as a co-conspirator with Abu Hamza in a plan to set up a jihadist training camp in Oregon.

The latest medical reports in the case indicated that while Aswat's condition was well controlled, his detention in hospital was required for his medical treatment.

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Texto 9: European Convention on Human Rights Fuente: http://www.echr.coe.int/Documents/Convention_ENG.pdf

European Convention on Human Rights

ARTICLE 3 Prohibition of torture

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

.

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UNIDAD 3:

CONTRATOS

Texto 10: What is a Contract?

Texto 11: E-Contracts?

Texto 12: New Law Makes e-signatures valid

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Texto 10: What is a Contract? Fuente: Basic English Law, 2da ed., extraido del capítulo 10: Contractual Rights and Obligations, Mac

Millan Press

What is a Contract?

A contract is an agreement; but not all agreements are contracts.A contract is sometimes defined

as a legally enforceable agreement.

Agreement

Agreement is reached when a firm offer is unconditionally accepted by the

offeree. The rules governing offer and acceptance form an important part of the case-law of

contract.

(a) The offer

An offer is a statement of the terms of a contract which the offeror is prepared to enter into with

the offeree.

(b) Acceptance

A valid acceptance operates to create a contract between offeror and offeree. An acceptance must satisfy two requirements. First, it must be unqualified; secondly, it must be communicated to the offeror.

(i) Unqualified assent to the offer

An acceptance demonstrates an intention to make a contract in terms identical to the terms of the offer. Where a purported acceptance alters the terms of the offer in any way, it will operate as a counter-offer.

(ii) Communication of acceptance

The general rule is that the contract is made when acceptance is actually

communicated to the offeror by the offeree. Where there is no communication there is no contract.

(c) Acceptance by post

(d) Acceptance by compliance with the requirements of the offer

(e) Method of communication of acceptance

Apart from the two exceptional cases where communication is not required, the acceptance must be actually communicated to the offeror. If it is not so communicated there is no contract.

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(f) Termination of an offer

The legal characteristic of an offer is that acceptance transforms the terms of the offer into the terms of an agreement. For how long does the offer retain this characteristic? An offer continues to retain its legal characteristic until one of the following events has occurred: rejection, revocation, lapse.

(i) Rejection

An offer may be terminated by the express rejection of the offeree.

(ii) Revocation

An offer may be revoked by the offeror at any time before acceptance has taken place.

(iii) Lapse

Where the offeror stipulates that his offer is to remain open for a specified period of time, the offer will lapse if not accepted within that period. Consideration

(g) What is consideration?

It was said that consideration “may consist either in some right, interest, profit or benefit accruing to one party, or some forbearance, detriment, loss, or responsibility given, suffered, or undertaken by the other”.

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Texto 11: E-contracts

Fuente: Callanan, Helen and Edwards, Lynda, Absolute Legal English, Delta Publishing,

Surrey, England, 2010. Pág. 50.

E-contracts

Online contractual transactions are becoming increasingly common, and it is

essential that those entering such transactions examine the terms and

conditions carefully before clicking on “I agree” to indicate acceptance, as

courts are inclined to uphold agreements accepted in this way.

There are two main types of e -contracts: B2C contracts between businesses

and consumers, and B2B contracts, which are between businesses and

businesses. Obviously, there are jurisdictional issues that arise because of the

global scope of the Internet, and agreements affect the jurisdiction and

specify laws that will govern the tra nsactions. Technology also brings with it

other risks for companies. Data protection and privacy issues must be dealt

with by companies to limit their exposure to liability.

The need to regulate requirements concerning e-commerce contracts led to

the setting up of UNCITRAL Model Law on Electronic Commerce in 1996 to

set general conditions. It confirms that clicking “I agree” on a website

constitutes a valid form of consent and allows an offer to be made and

accepted in electronic form. UNCITRAL Mode Laws ha ve been enacted

nationally worldwide and are also important for developing countries, as e-

commerce greatly facilitates and protects new businesses in accessing new

markets.

However, as with paper-based contracts, electronic contracts are not

automatically valid, and in disputes, courts consider whether the parties

involved were fully aware of the terms. This sometimes involves deciding

how clear the terms were in relation to the size of the text or location on a

website.

Developments in the law governing e-commerce are continuing. Recently, we

have seen a Model Law on Electronic Signatures, which has already been

adopted by the national law of certain countries. Other developments

currently being considered include an international treaty on Jurisdiction

and the Enforcement of Judgements and a global agreement on e -commerce

taxation regulations.

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Texto 12: New law makes e-signatures valid

Fuente: International legal English - Amy K. Lindtner. Cambridge University, 2010.

(página73)

New law makes e-signatures valid

Contracts created online are now as legal as those on paper

While contract basics generally apply to any contract, regardless of form, there are some

new and emerging rules that apply specifically to contracts created online. Thanks to

federal legislation recently signed into law, electronic contracts, and electronic

signatures are just as legal and enforceable as traditional paper contracts signed in ink.

The law, known as the Electronic Signatures in Global and International Commerce Act,

removes the uncertainty that previously accompanied e-contracts. However, consumer

groups worry that the law doesn't adequately protect against online fraud and may

create disadvantages and penalties for consumers who prefer printed agreements.

What are electronic contracts and electronic signatures?

An electronic contract is an agreement created and “signed” in electronic form.

An e-contract can also be a "Click to Agree" contract, commonly used with downloaded

software; the user clicks an 'I Agree" button on a page containing the terms of the

software license before the transaction can be completed. One of the more difficult

electronic contract issues has been whether agreements made in a purely online

environment were "signed" and therefore legally binding. Since a traditional ink

signature isn't possible on an electronic contract, people have used several different

ways to indicate their electronic signatures, including typing the signer's name into the

signature area, pasting in a scanned version of the signer's signature, clicking an "I

Accept" button, or using cryptographic "scrambling" technology. While the term "digital

signature" is used for any of these methods, it is becoming standard to reserve the term

for cryptographic signature methods, and to use "electronic signature" for other

paperless signature methods.

Are e-signatures secure?

Security experts currently favour the cryptographic signature method known as Public

Key Infrastructure (PKI) as the most secure and reliable method of signing contracts

online.

PKI uses an algorithm to encrypt online documents so that they will be accessible only

to authorized parties. The parties have "keys" to read and sign the document, thus

ensuring that no one else will be able to sign fraudulently. Though its standards are still

evolving, it is expected that PKI technology will become widely accepted.

No paper needed

The most significant legal effect of the new e-signature law is to make electronic

contracts and signatures as legally valid as paper contracts. The fact that electronic

contracts have been given solid legal support is great news for companies that conduct

25

business online. Under the law, consumers can now buy almost any goods or services-

from cars to home mortgages- without placing pen to paper form. The law also benefits

business-to-business websites who need enforceable agreements for ordering supplies

and services. For all of these companies, the new law is essential legislation because it

helps them conduct business entirely on the Internet.

Federal law versus state law

The federal electronic signature law won't override any state laws on electronic

transactions provided the state law is "substantially similar" to the federal law or the

state has adopted the Uniform Electronic Transactions Act (UETA). This ensures that

electronic contracts and electronic signatures will be valid in all states, regardless of

where the parties live or where the contract is executed.

26

UNIDAD 4:

DERECHO PROCESAL CIVIL

Texto 13: How Courts Work

Lectura A: Civil Cases

Lectura B: The Appeals process

Texto 14: Trial by Jury

Texto 15: Trial by Jury Frequently Asked Questions (FAQ’s)

27

Texto 13: Lectura A: How Courts Work. Civil Cases. Fuente: http://www.uscourts.gov/FederalCourts/UnderstandingtheFederalCourts/

Lectura A : Civil Cases

A federal civil case involves a legal dispute between two or more parties. To begin a civil lawsuit in federal court, the plaintiff files a complaint with the court and "serves" a copy of the complaint on the defendant. The complaint describes the plaintiff 's injury, explains

how the defendant caused the injury, and asks the court to order relief. A plaintiff may seek money to compensate for the injury, or

may ask the court to order the defendant to stop the conduct that is causing the harm. The court may also order other types of relief, such as a declaration of the legal rights of the plaintiff in a

particular situation.

To prepare a case for trial, the litigants may conduct "discovery." In discovery, the litigants must provide information to each other about

the case, such as the identity of witnesses and copies of any documents related to the case. The purpose of discovery is t o prepare for trial by requiring the litigants to assemble their evidence

and prepare to call witnesses. Each side also may file requests, or "motions," with the court seeking rulings on the discovery of

evidence, or on the procedures to be followed at trial.

One common method of discovery is the deposition. In a deposition, a witness is required under oath to answer questions about the case asked by the lawyers in the presence of a court reporter. The court

reporter is a person specially trained to record all testimony and produce a word-for-word account called a transcript

To avoid the expense and delay of having a trial, judges encourage

the litigants to try to reach an agreement resolving their dispute. In particular, the courts encourage the use of mediation, arbitration, and other forms of alternative dispute resolution, or "ADR," designed

to produce an early resolution of a dispute without the need for trial or other court proceedings. As a result, litigants often decide to resolve a civil lawsuit with an agreement known as a "settlement."

If a case is not settled, the court will schedule a trial. In a wide

variety of civil cases, either side is entitled under the Constitution to request a jury trial. If the parties waive their right to a jury, then

the case will be heard by a judge without a jury.

At a trial, witnesses testify under the supervision of a judge. By applying rules of evidence, the judge determines which information may be presented in the courtroom. To ensure that witnesses speak

from their own knowledge and do not change their story based on what they hear another witness say, witnesses are kept out of the

courtroom until it is time for them to testify.

A court reporter keeps a record of the trial proceedings. A deputy

28

clerk of court also keeps a record of each person who testifies and marks for the record any documents, photographs, or other items introduced into evidence. As the questioning of a witness proceeds,

the opposing attorney may object to a question if it invites the witness to say something that is not based on the witness's personal

knowledge, is unfairly prejudicial, or is irrelevant to the case. The judge rules on the objection, generally by ruling that it is either sustained or overruled. If the objection is sustained, the witness is

not required to answer the question, and the attorney must move on to his next question. The court reporter records the objections so that a court of appeals can review the arguments later if necessary.

At the conclusion of the evidence, each s ide gives a closing argument. In a jury trial, the judge will explain the law that is relevant to the case and the decisions the jury needs to make. The

jury generally is asked to determine whether the defendant is responsible for harming the plaintiff in some way, and then to determine the amount of damages that the defendant will be

required to pay. If the case is being tried before a judge without a jury, known as a "bench" trial, the judge will decide these issues. In

a civil case the plaint iff must convince the jury by a "preponderance of the evidence" (i.e., that it is more likely than not) that the defendant is responsible for the harm the plaintiff has suffered.

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Texto 13: How Courts Work

Lectura B: The Appeals Process

The losing party in a decision by a trial court in the federal system

normally is entitled to appeal the decision to a federal court of appeals.

Similarly, a lit igant who is not satisfied with a decision made by a federal

administrative agency usually may file a petition for review of the agency

decision by a court of appeals. Judicial review in cases involving certain

federal agencies or programs — for example, disputes over Social Security

benefits — may be obtained first in a district court rather than a court of

appeals.

In a civil case either side may appeal the verdict. In a criminal case, the

defendant may appeal a guilty verdict, but the government may not

appeal if a defendant is found not guilty. Either side in a criminal case

may appeal with respect to the sentence that is imposed after a guilty

verdict.

In most bankruptcy courts, an appeal of a ruling by a bankruptcy judge

may be taken to the district court. Several courts of appeals, however, have

established a bankruptcy appellate panel consisting of three bankruptcy

judges to hear appeals directly from the bankruptcy courts. In either

situation, the party that loses in the initial bankruptcy appeal may then

appeal to the court of appeals.

A lit igant who files an appeal, known as a n "appellant," must show that

the trial court or administrative agency made a legal error that affected the

decision in the case.

The court of appeals makes its decision based on the record of the case

established by the trial court or agency. It does not receive additional

evidence or hear witnesses. The court of appeals also may review the

factual findings of the trial court or agency, but typically may only

overturn a decision on factual grounds if the findings were "clearly

erroneous."

Appeals are decided by panels of three judges working together. The

appellant presents legal arguments to the panel, in writing, in a document

called a "brief." In the brief, the appellant tries to persuade the judges that

the trial court made an error, and that its decis ion should be reversed. On

the other hand, the party defending against the appeal, known as the

"appellee," tries in its brief to show why the trial court decision was

correct, or why any error made by the trial court was not significant

enough to affect the outcome of the case.

30

Although some cases are decided on the basis of written briefs alone, many

cases are selected for an "oral argument" before the court. Oral argument

in the court of appeals is a structured discussion between the appellate

lawyers and the panel of judges focusing on the legal principles in dispute.

Each side is given a short t ime — usually about 15 minutes — to present

arguments to the court.

The court of appeals decision usually will be the final word in the case,

unless it sends the case back to the trial court for additional proceedings,

or the parties ask the U.S. Supreme Court to review the case. In some cases

the decision may be reviewed en banc, that is, by a larger group of judges

(usually all) of the court of appeals for the circuit.

A lit igant who loses in a federal court of appeals, or in the highest court of

a state, may file a petition for a "writ of certiorari," which is a document

asking the Supreme Court to review the case. The Supreme Court,

however, does not have to grant review. The Court typically will agree to

hear a case only when it involves an unusually important legal principle,

or when two or more federal appellate courts have interpreted a law

differently. There are also a small number of special circumstances in

which the Supreme Court is required by law to hear an appeal. When the

Supreme Court hears a case, the parties are required to file written briefs

and the Court may hear oral argument.

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Texto 14: Trial by Jury

Fuente: Coughlin, Jr., G. G. , Your Handbook of Everyday Law, 5ta ed., Harper Perennial, Nueva York,1993

The distinguishing feature of the English and American systems of law is

the trial by jury. When a case is tried in front of a jury, it is up to the jury

to decide what the facts in the case are.

Throughout a jury trial the judge must decide all the questions of law, all

questions concerning whether or not evidence should be received, and

whether or not there is sufficient evidence to permit the case to be decided

by a jury. When a case is tried without a jury before a judge, arbiter or

commissioner, one of the latter occupies a dual role: He is the presiding

officer who must guide the trial and, at the same time, he is the finder of

the facts.

Selection of the Jury

The petit or trial jury serves in the trial of a civil or criminal case. It

consists usually of twelve jurors and sometimes of alternate jurors, who

replace other jurors in emergencies.

A petit jury is drawn from a large jury panel (from 25 to 300 citizens). In

most states the names of the jurors are drawn from the jury panel by lot;

then the prospective lawyers examine them about their acquaintanceship

with the parties, interest in the case, and prejudices or predispositions.

If an attorney decides that he or she does not want a particular juror to sit

in the case, he exercises a challenge in an attempt to have the juror

excused.

Challenges are of two kinds; challenges for cause and peremptory

challenges.

A challenge for cause may be granted when the court rules that the

prospective juror, by reason of blood relationship, pecuniary interest in

the outcome of the case, or other prejudice, may not look at the case

objectively. These challenges are unlimited in number.

A peremptory challenge is one which may be made without giving any

reason for it. The number is limited and it is automatically granted (when

within the number allowed by lot), and the court does not have to approve it.

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TEXTO 15 :Trial By Jury. Frequently Asked Questions (FAQs)

Questions and Answers (FAQ's)

Where do you get the names of potential jurors?

Who must report?

What happens if a juror does not report for jury service?

What accommodations are available for jurors with disabilities?

Can jurors postpone jury service for a later date?

How long is jury service?

Are jurors compensated?

How long does it take for jurors to get paid?

What if my summons or questionnaire is lost?

Can I request a financial or medical hardship?

Is there an age restriction for jurors?

What happens if a juror does not report for jury service?

If I serve as a juror in federal court do I still have to serve in state court?

If I served as a juror in New York State Court, do I still have to serve in federal court?

How can jurors make comments regarding jury service?

Where do you get the names of potential jurors?

Potential jurors are randomly selected from lists of registered voters, holders of drivers’ licenses or ID’s issued by the Division of Motor Vehicles, New York State income tax filers, recipients of unemployment insurance or family assistance, and from volunteers.

Who must report?

There are no automatic exemptions or excuses from jury service in New York State. Everyone who is eligible must serve. You are eligible to serve as a juror in New York State if you are:

1) a United States citizen,

2) at least 18 years old, and

3) a resident of the county to which you are summoned to serve.

In addition, jurors must

4) be able to understand and communicate in the English language, and

5) not have been convicted of a felony

What happens if a juror does not report for jury service?

Jury duty, like paying taxes, is mandatory. Skipping jury duty can result in civil or criminal penalties. In addition, anyone who skips jury service will be assigned a new date for future jury service.

33

What accommodations are available for jurors with disabilities?

The court provides services or aids to reasonably accommodate jurors with disabilities. Aids that are generally available for hearing impaired people include assistive listening devices, sign language interpreters, and “real-time” captioning of court proceedings. Courts may also be able to provide a reader for visually impaired jurors. A juror who has a mobility impairment and is sent to a courtroom with access problems may be reassigned to a different location that has better access. TDD users can call the relay service at 1-800-662-1220 to place the call. Some courts may have a TDD or TTY in the Clerk’s office. Access questions or requests for assistance should be addressed to a jury commissioner, court clerk or judge.

Can jurors postpone jury service for a later date?

You can postpone your service once by calling 800-449-2819 at least one week before your date of service. Have your juror index number (from your summons) with you when you call. Pick a date between 2 and 6 months from the date on your summons and you will be assigned the available date closest to your choice. Any future postponement request or request for excusal from jury service must be made by calling your local commissioner of jurors office.

If you cannot serve even if granted a postponement, you may contact your local commissioner of jurors office and ask to be excused from service. The commissioner may ask you to provide documentary proof of the reasons why you need to be excused.

How long is jury service?

Jurors who do not sit on a jury may serve for as little as 1–2 days. However, even if not needed for a trial, a juror may be asked to be available or on call for up to five days. Those who are selected to serve on a jury are required to serve on only one trial. The judge informs the jurors how long the trial is expected to last. Length of service on a grand jury may vary from two weeks to a month or more. For more information about service as a grand juror see the Unified Court System’s “Grand Juror’s Handbook.”

Are jurors paid?

The jury fee is $40 per day. If service extends beyond 30 days the court may authorize an additional $6 per day per juror.

The fee is paid by the State or the employer depending on (1) the day of service and (2) the size of employer. Employers’ jury fee obligations are explained below. For help figuring out how the rules apply to your individual circumstances, you can use the chart “Who Pays Your Jury Fee?”

How long does it take for jurors to get paid?

Four to six weeks.

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What if my summons or questionnaire is lost?

Contact your local Commissioner of Jurors. Find contact information by scrolling down at “Select County” in the box on the left menu.

Can I request an excuse from service due to a financial or medical hardship?

Yes. Jurors are normally required to provide supporting documentation. Contact your local Commissioner of Jurors. Find contact information by scrolling down at “Select County” in the box on the left menu.

Is there an age restriction for jurors?

Jurors must be at least 18 years old. There is no upper age limit.

What happens if a juror does not report for jury service?

Jury duty, like paying taxes, is mandatory. Skipping jury duty can result in civil or criminal penalties. In addition, anyone who skips jury service will be assigned a new date for future jury service.

If I serve as a juror in federal court do I still have to serve in state court?

A person who serves in a State or Federal court in New York—either by reporting in person or by being available to serve via a telephone call-in system—normally is not eligible to serve again in the New York State courts for at least six years. A juror who serves for more than ten days normally is not eligible to serve again in the New York State courts for at least eight years. Jurors who physically report to serve in Town and Village courts are eligible to serve again in two years. Just because a person is eligible to serve does not mean they will be called.

If I served as a juror in New York State Court, do I still have to serve in federal court?

Each of the four federal district courts in New York State treats the length of time for ineligibility from service differently. The Eastern, Western, and Northern Districts excuse from service anyone who has served within two years. The Southern District excuses anyone who has served within four years. If your service in the Eastern District (Queens, Kings, Richmond, Nassau or Suffolk) was limited to telephone standby you are not excused from federal court service. In the Northern District (32 northern counties) a summoned juror who attended a jury selection in state court but was not selected to serve on a jury is not excused. For specific information about each court’s practices go to NYS Federal Court Jury Rules.

35

How can jurors make comments regarding jury service?

Write to:

Chief Judge Jonathan Lippman

Continuing Jury Reform

25 Beaver Street, 11th Floor

New York, NY 10004

Send an E-mail

Call 1-800-NYJUROR [1-800-695-8767] or 212-428-2990

Directed by Gary Fleder. With John Cusack, Rachel Weisz, Gene Hackman, Dustin Hoffman.

36

37

UNIDAD 5:

DERECHO PENAL Y PROCESAL PENAL

Texto 16: Federal Rules of Criminal Procedure

Texto 17: Criminal Procedure: An Overview

Texto 18: Famous Cases & Criminal Cases: Al Capone

38

Texto 16: Federal Rules of Criminal Procedure Fuente: http://www.law.cornell.edu/rules/frcrmp

FEDERAL RULES OF CRIMINAL PROCEDURE (As amended to December 1, 2012)

TITLE I. APPLICABILITY

o Rule 1. Scope; Definitions

o Rule 2. Interpretation

TITLE II. PRELIMINARY PROCEEDINGS

o Rule 3. The Complaint

o Rule 4. Arrest Warrant or Summons on a Complaint

o Rule 4.1 Complaint, Warrant, or Summons by Telephone or Other Reliable Electronic

Means

o Rule 5. Initial Appearance

o Rule 5.1 Preliminary Hearing

TITLE III. THE GRAND JURY, THE INDICTMENT, AND THE

INFORMATION

o Rule 6. The Grand Jury

o Rule 7. The Indictment and the Information

o Rule 8. Joinder of Offenses or Defendants

o Rule 9. Arrest Warrant or Summons on an Indictment or Information

TITLE IV. ARRAIGNMENT AND PREPARATION FOR TRIAL

o Rule 10. Arraignment

o Rule 11. Pleas

o Rule 12. Pleadings and Pretrial Motions

o Rule 12.1 Notice of an Alibi Defense

o Rule 12.2 Notice of an Insanity Defense; Mental Examination

o Rule 12.3 Notice of a Public-Authority Defense

o Rule 12.4 Disclosure Statement

o Rule 13. Joint Trial of Separate Cases

o Rule 14. Relief from Prejudicial Joinder

o Rule 15. Depositions

o Rule 16. Discovery and Inspection

o Rule 17. Subpoena

o Rule 17.1 Pretrial Conference

TITLE V. VENUE

o Rule 18. Place of Prosecution and Trial

o Rule 19. [Reserved]

o Rule 20. Transfer for Plea and Sentence

o Rule 21. Transfer for Trial

o Rule 22. [Transferred]

TITLE VI. TRIAL

o Rule 23. Jury or Nonjury Trial

o Rule 24. Trial Jurors

o Rule 25. Judge's Disability

o Rule 26. Taking Testimony

o Rule 26.1 Foreign Law Determination

39

o Rule 26.2 Producing a Witness's Statement

o Rule 26.3 Mistrial

o Rule 27. Proving an Official Record

o Rule 28. Interpreters

o Rule 29. Motion for a Judgment of Acquittal

o Rule 29.1 Closing Argument

o Rule 30. Jury Instructions

o Rule 31. Jury Verdict

TITLE VII. POST-CONVICTION PROCEDURES

o Rule 32. Sentencing and Judgment

o Rule 32.1 Revoking or Modifying Probation or Supervised Release

o Rule 32.2 Criminal Forfeiture

o Rule 33. New Trial

o Rule 34. Arresting Judgment

o Rule 35. Correcting or Reducing a Sentence

o Rule 36. Clerical Error

o Rule 37. Indicative Ruling on a Motion for Relief That Is Barred by a Pending Appeal

o Rule 38. Staying a Sentence or a Disability

o Rule 39. [Reserved]

TITLE VIII. SUPPLEMENTARY AND SPECIAL PROCEEDINGS

o Rule 40. Arrest for Failing to Appear in Another District or for Violating Conditions of

Release Set in Another District

o Rule 41. Search and Seizure

o Rule 42. Criminal Contempt

TITLE IX. GENERAL PROVISIONS

o Rule 43. Defendant's Presence

o Rule 44. Right to and Appointment of Counsel

o Rule 45. Computing and Extending Time

o Rule 46. Release from Custody; Supervising Detention

o Rule 47. Motions and Supporting Affidavits

o Rule 48. Dismissal

o Rule 49. Serving and Filing Papers

o Rule 49.1 Privacy Protection For Filings Made with the Court

o Rule 50. Prompt Disposition

o Rule 51. Preserving Claimed Error

o Rule 52. Harmless and Plain Error

o Rule 53. Courtroom Photographing and Broadcasting Prohibited

o Rule 54. [Transferred] 1

o Rule 55. Records

o Rule 56. When Court Is Open

o Rule 57. District Court Rules

o Rule 58. Petty Offenses and Other Misdemeanors

o Rule 59. Matters Before a Magistrate Judge

o Rule 60. Victim's Rights

o Rule 61. Title

40

Texto 17: Criminal Procedure: An Overview Fuente: http://www.usconstitution.net/const.html

AMENDMENTS TO THE U.S. CONSTITUTION (BILL OF RIGHTS)

AMENDMENT V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on

a presentment or indictment of a grand jury, except in cases arising in the land or naval

forces, or in the militia, when in actual service in time of war or public danger; nor shall

any person be subject for the same offense to be twice put in jeopardy of life or limb;

nor shall be compelled in any criminal case to be a witness against himself, nor be

deprived of life, liberty, or property, without due process of law; nor shall private

property be taken for public use, without just compensation.

AMENDMENT VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public

trial, by an impartial jury of the state and district wherein the crime shall have been

committed, which district shall have been previously ascertained by law, and to be

informed of the nature and cause of the accusation; to be confronted with the witnesses

against him; to have compulsory process for obtaining witnesses in his favor, and to

have the assistance of counsel for his defense.

Fuente: Coughlin, Jr., G. G. , Your Handbook of Everyday Law, 5ta ed., Harper Perennial,

Nueva York, 1993

Criminal procedure deals with the set of rules governing the series of proceedings

through which the government enforces substantive criminal law. Municipalities,

states, and the federal government each have their own criminal codes, defining types

of conduct that constitute crimes. Title 18 of the U.S. Code outlines all federal crimes.

Typically, federal crimes deal with activities that either extend beyond state boundaries

or directly impact federal interests.

The U.S. Supreme Court, pursuant to its authority under the Rules Enabling Act, first

promulgated the Federal Rules of Criminal Procedure, (F.R.Crim.Pro.) which Congress,

in turn, passed. The Federal Rules outline the procedure for conducting federal criminal

trials. Similarly, states have their own codes of criminal procedure of which many

closely model the Federal Rules. The Federal Rules incorporate and expound upon all

guarantees included within the U.S. Constitution's Bill of Rights. A few of the rights

guaranteed to criminal defendants by the Constitution include the guarantees of due

process and equal protection under the laws, the right to have legal counsel present, the

right to confront witnesses, the right to a jury trial, and the right to not testify against

oneself. While state constitutions and procedural rules may increase the protection

afforded to criminal defendants, they may not offer less protection than that guaranteed

by the U.S. Constitution.

41

INVESTIGATORY AND ACCUSATORY POLICE PROCEDURE

The U.S. Constitution, the Federal Rules and the federal court system's interpretations

of both provide guidance and procedural canons that law enforcement must follow.

Failure to follow such procedure may result in the suppression of evidence or the

release of an arrested suspect.

Substantive due process requires police to make criminal defendants aware of their

rights prior to the defendant making any statements if the government intends to use

those statements as evidence against the defendant. For example, law enforcement must

ensure that the defendant understands the right to remain silent and the right to have

an attorney present, as the Fifth and Sixth Amendments respectively provide. The

defendant must knowingly, intelligently, and voluntarily waive those rights in order for

the government to use any statements as evidence against the defendant. See Miranda v.

Arizona, 384 U.S. 436 (1966).

Law enforcement also must abide by the confines of the Fourth Amendment, which

prohibits the government from performing unreasonable searches and seizures. Courts

ordinarily suppress evidence obtained during an unreasonable search or seizure and

offered against the accused. See Mapp v. Ohio, 367 U.S. 643 (1961).

In order to avoid illegally searching or seizing the property of a suspect, law

enforcement personnel typically obtain search warrants. To obtain a search warrant,

law enforcement must show probable cause, must support the showing by oath or

affirmation, and must describe in particularity the place they will search and the items

they will seize. A judge can find probable cause only be examining the totality of the

circumstances. Exceptions to the warrant requirement exist, however. These exceptions

include searches made at or near the border; a search following a lawful arrest; a stop-

and-frisk arrest; where the seized items are in plain view; where the articles are in an

automobile; where the private individual makes the search; and under exigent

circumstances, where the officer has probable cause for a search to find a crime or

evidence relating to a crime.

The Fourteenth Amendment of the U.S. Constitution applies all substantive due process

rights to state criminal defendants.

PRE-TRIAL PROCEDURE

The Sixth Amendment to the U.S. Constitution guarantees criminal defendants the right

to a speedy trial. Consequently, prosecutors cannot wait an inordinate amount of time

before filing charges or proceeding with the prosecution after filing charges. To create

more precise rules for ensuring a speedy trial, Congress passed the federal Speedy Trial

Act, which requires that a trial begin within 70 days of the prosecutor filing the

indictment.

The Sixth Amendment also guarantees the right to a public trial by an impartial jury of

one's peers. The criminal justice system provides for an impartial jury by permitting

both sides to utilize peremptory challenges during jury selection. If a party exercises a

peremptory challenge against a prospective juror, then the court must excuse that

particular juror from the panel. These challenges occur during jury voir dire to root out

bias. Neither side must explain their reasons for a challenge; however, a party may not

42

strike a jury purely because of the juror's race or gender. Batson v. Kentucky, 476 U.S.

79(1986) (prohibiting race-based challenges); J.E.B. v. Alabama, 511 U.S. 127 (1994)

(prohibiting gender-based challenges).

Due Process requires that criminal defendants receive a fair trial. In high-publicity

trials, trial judges have the responsibility to minimize effects of publicity, perhaps by

implementing a gag-order on the parties and to eliminate outside influences during the

trial. An interesting question of outside influence went to the U.S. Supreme Court in

2007 in Carey v. Musladin, 549 U.S. 70 (2006). After the victim's family wore pictures of

the victim on buttons during the trial, the jury convicted Musladin of murder. The

Supreme Court overturned the Ninth Circuit's grant of post-conviction habeas relief for

a lack of due process because no clear federal rule existed regarding spectator conduct.

Due Process further commands that defendants have the right to call their own

witnesses, mount their own evidence, and present their own theory of the facts. In order

to properly mount a defense, the prosecution must turn over all evidence that will be

presented against the defendant and have pre-trial access to depose all of the

prosecution's witnesses.

Pre-trial would also be the point at which the defense might raise a defense of double

jeopardy, if such a defense existed in the particular case. The Fifth Amendment,

through the Double Jeopardy Clause prohibits states from charging the same defendant

with substantially the same crime on the same facts.

CRIMINAL TRIAL PROCEDURE

Once a trial begins, the U.S. Constitution affords further rights to criminal defendants.

Trying to avoid convicting an innocent defendant at all costs, the law only permits the

prosecution to overcome the defendant's presumption of innocence if they can show the

defendant's guilt beyond a reasonable doubt. This very high burden differs drastically

from a civil trial's much lower standard in which the plaintiff must only prove a claim

by a preponderance of the evidence.

One such right includes the right to cross-examine the prosecution's witnesses.

Defendants derive this right from the Sixth Amendment's Right to Confront Clause. The

U.S. Supreme Court took up the Right to Confront Clause in Giles v. California (07-

6053)(2008). After domestic violence resulted in a woman's murder, the Supreme Court

overturned a court's admission of a murder victim's statements under a theory of

forfeiture by wrongdoing The Court reached this holding because the Framers did not

recognize the forfeiture exception to the Confrontation Clause at the time of the

Constitution's founding.

The Sixth Amendment guarantees a defendant the right to assistance of counsel during

trial. If a defendant cannot afford an attorney, the government is required to provide

the defendant an attorney. Such defendants receive legal representation from the Public

Defender's Office. The Federal Rules of Criminal Procedure provide that an accused

shall have access to counsel at every stage of the proceedings, beginning with the

defendant's initial appearance. If a defendant demands the presence of counsel during

police interrogation, police must stop the interrogation until the defendant's counsel is

present.

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However, if a defendant voluntarily and intelligently chooses to waive assistance of

counsel and self-represent, the defendant may do so. This is called "pro se"

representation.

The legal counseling received must also constitute "effective counseling." Ineffective

assistance of counsel may serve as grounds for a new trial. Establishing ineffective

assistance of counsel requires establishing that the prevailing professional norms at the

time of trial render the actual assistance received inadequate and that the ineffective

assistance caused a fundamentally unfair result.

At all times during the trial, the defendant enjoys a right of not having to provide self-

incriminating testimony. Thus, the defendant can choose not to take the stand, or the

defendant can choose to take the stand but not answer certain questions that would

self-incriminate. The Fifth Amendment of the U.S. Constitution provides this right.

STAGES OF THE CRIMINAL TRIAL

After law enforcement arrests a suspect, a judge will set the suspect's initial bail, which

is a specified amount of cash that allows the defendant to get out of jail after the initial

arrest. If the defendant shows up for the proper court dates, the court refunds the bail,

but if the defendant skips the date, then the court keeps the bail and issues a warrant for

the individual's arrest.

The arraignment comes next. During an arraignment, a judge calls the person charged

and takes the following actions: reading the criminal charges against the accused,

asking the accused whether the accused has access to an attorney or needs the

assistance of a court-appointed attorney, asking the accused to plead, deciding whether

to amend the initial bail amount, and setting the dates of future proceedings.

The preliminary hearing follows the arraignment. At the preliminary hearing, the judge

determines whether enough evidence exists for the prosecution to meet its burden of

persuasion. The burden of persuasion refers to whether the prosecution even has

enough evidence to make the defendant stand trial. The defense has the right to cross

examine the government witnesses during this proceeding. Under federal law, a grand

jury, rather than a judge, makes this determination when the defendant faces "capital or

infamous crimes" pursuant to the U.S. Constitution's Fifth Amendment. Unlike the

other rights afforded to criminal defendants, the U.S. Supreme Court has not found the

Fifth Amendment grand jury right incorporated into state law through the Fourteenth

Amendment.

A pre-trial hearing is the next step in the process. The prosecution and the defense team

use the pre-trial to file motions before a judge. These motion usually concern whether

the court should suppress certain evidence, whether certain individuals can testify, or

whether the judge should dismiss all charges for lack of evidence.

After all these preliminary stages, the defendant stands trial. Both sides offer opening

statements first, although the defense can reserve their opening statement until the

prosecution rests. The prosecution presents its witnesses and evidence first. Then, the

defense presents its witnesses and evidence. After the defense rests, the defense offers a

closing argument, and then the Prosecution offers the final closing argument. After

closing arguments, the trier of fact deliberates and returns a verdict.

44

SENTENCING

Sentencing usually occurs immediately for infractions and misdemeanors. For such

minor infractions, penalties may include probation; fines; short-term incarceration;

long-term incarceration; suspended sentence, which only takes effect if the convict fails

to meet certain conditions; payment of restitution to the victim; community service; or

drug and alcohol rehabilitation.

More serious crimes result in the trier of fact hearing evidence and arguments from

both the prosecution and the defense regarding the appropriate sentence. Some

jurisdictions allow the judge, alone, to determine the sentence; others will have a

separate sentencing phase trial, complete with a new jury, to determine the sentence for

certain crimes.

During a sentencing trial, the prosecution presents evidence of aggravating factors, and

the defense presents evidence of mitigating factors. The U.S. Supreme Court has

interpreted the U.S. Constitution to protect the right to a jury sentencing trial for all

defendants facing the death penalty.

Before the judge announces the sentence, a defendant is entitled to allocution.

Allocution is the right of the defendant to directly address the judge without the help of

counsel. During this direct address, the defendant may offer a personal explanation of

any unknown facts, may ask for mercy, or may offer an apology for the criminal

behavior. This opportunity for defendants to show remorse or to offer the motivations

behind their criminal acts may influence whether the judge grants some leniency.

45

Texto 18: Famous Cases & Criminal Cases: Al Capone

Fuente:http://www.fbi.gov/about-us/history/famous-cases/al-capone

FAMOUS CASES & CRIMINALS: AL CAPONE

Born of an immigrant family in Brooklyn, New York in 1899, Al Capone

quit school after the sixth grade and associated with a notorious street

gang, becoming accepted as a member. Johnny Torrio was the street gang

leader and among the other members was Luck y Luciano, who would

later attain his own notoriety.

About 1920, at Torrio’s invitation, Capone joined Torrio in Chicago

where he had become an influential lieutenant in the Colosimo mob. The

rackets spawned by enactment of the Prohibition Amendment, illeg al

brewing, distilling and distribution of beer and liquor, were viewed as

“growth industries.” Torrio, abetted by Al Capone, intended to take full

advantage of opportunities. The mob also developed interests in

legitimate businesses in the cleaning and dy eing field and cultivated

influence with receptive public officials, labor unions, and employees’

associations.

Torrio soon succeeded to full leadership of the gang with the violent

demise of Big Jim Colosimo, and Capone gained experience and expertise

as his strong right arm.

In 1925, Capone became boss when Torrio, seriously wounded in an

assassination attempt, surrendered control and retired to Brooklyn.

Capone had built a fearsome reputation in the ruthless gang rivalries of

the period, struggling to acquire and retain “racketeering rights” to

several areas of Chicago. That reputation grew as rival gangs were

eliminated or nullified, and the suburb of Cicero became, in effect, a

fiefdom of the Capone mob.

The St. Valentine’s Day Massacre on February 14, 1929, might be

regarded as the culminating violence of the Chicago gang era, as seven

members or associates of the “Bugs” Moran mob were machine -gunned

against a garage wall by rivals posing as police. The massacre was

generally ascribed to the Capone mob, although Al himself was in

Florida.

The investigative jurisdiction of the Bureau of Investigation during the

1920s and early 1930s was more limited than it is now, and the gang

warfare and depredations of the period were not within the Bureau’s

investigative authority.

The Bureau’s investigation of Al Capone arose from his reluctance to

appear before a federal grand jury on March 12, 1929 in response to a

subpoena. On March 11, his lawyers formally filed for postponement of

his appearance, submitting a physician’s affidavit dated March 5, which

attested that Capone had been suffering from bronchial pneumonia in

Miami, had been confined to bed from January 13 to February 23, and

46

that it would be dangerous to Capone’s health to travel to Chicago. His

appearance date before the grand jury was re -set for March 20.

On request of the U.S. Attorney’s Office, Bureau of Investigation agents

obtained statements to the effect that Capone had attended race tracks in

the Miami area, that he had made a plane trip to Bimin i and a cruise to

Nassau, that he had been interviewed at the office of the Dade County

Solicitor, and that he had appeared in good health on each of those

occasions.

Capone appeared before the federal grand jury in Chicago on March 20,

1929 and completed his testimony on March 27. As he left the courtroom,

he was arrested by agents for contempt of court, an offense for which the

penalty could be one year in prison and a $1,000 fine. He posted $5,000

bond and was released.

On May 17, 1929, Al Capone and his bodyguard were arrested in

Philadelphia for carrying concealed deadly weapons. Within 16 hours

they had been sentenced to terms of one year each. Capone served his

time and was released in nine months for good behavior on March 17,

1930.

On February 28, 1931, Capone

was found guilty in federal court

on the contempt of court charge

and was sentenced to six months

in Cook County Jail. His appeal

on that charge was subsequently

dismissed.

Meanwhile, the U.S. Treasury

Department had been developing

evidence on tax evasion

charges— in addition to Al

Capone, his brother Ralph

“Bottles” Capone, Jake “Greasy

Thumb” Guzik, Frank Nitti, and

other mobsters were subjects of

tax evasion charges.

On June 16, 1931, Al Capone pled

guilty to tax evasion and

prohibition charges. He then boasted to the press that he had struck a

deal for a two-and-a-half year sentence, but the presiding judge

informed him he, the judge, was not bound by any deal. Capone then

changed his plea to not guilty.

On October 18, 1931, Capone was convicted after trial and on November

24, was sentenced to eleven years in federal prison, fined $50,000 and

charged $7,692 for court costs, in addition to $215,000 plus interest due

on back taxes. The six-month contempt of court sentence was to be

served concurrently.

Al Capone’s criminal record and

fingerprint card

47

While awaiting the results of appeals, Capone was confined to the Cook

County Jail . Upon denial of appeals, he entered the U.S. Penitentiary in

Atlanta, serving his sentence there and at Alcatraz.

On November 16, 1939, Al Capone was released after having served

seven years, six months and fifteen days, and having paid all fines and

back taxes.

Suffering from paresis derived from syphilis, he had deteriorated greatly

during his confinement. Immediately on release he entered a Baltimore

hospital for brain treatment and then went on to his Florida home, an

estate on Palm Island in Biscayne Bay near Miami, which he had

purchased in 1928.

Following his release, he never publicly ret urned to Chicago. He had

become mentally incapable of returning to gangland politics. In 1946, his

physician and a Baltimore psychiatrist , after examination, both

concluded Capone then had the mentality of a 12 -year-old child. Capone

resided on Palm Island with his wife and immediate family, in a

secluded atmosphere, until his death due to a stroke and pneumonia on

January 25, 1947.

48

UNIDAD 6

DERECHO COMERCIAL (TÍTULOS NEGOCIABLES)

Texto 19: Negotiable Instruments Law: An Overview Texto 20: Business Law Today: Essentials

Texto 21: Negotiable Instruments

49

TEXTO 19: Negotiable Instruments

Fuente: http://www.law.cornell.edu/wex/negotiable_instrument

NEGOTIABLE INSTRUMENTS LAW: AN OVERVIEW

In general, any financial document that directs payment to its holder or a named

party. More specifically, a negotiable instrument must be written, signed by the

maker, include an unconditional promise or order to pay a sum of money to the holder

or specific party, and be payable any time or on a specific date. Examples include

bank checks, promissory notes, certificates of deposit, and bills of exchange.

Negotiable instruments are mainly governed by state statutory law. Every state has

adopted Article 3 of the Uniform Commercial Code (UCC), with some modifications,

as the law governing negotiable instruments. The UCC defines a negotiable instrument

as an unconditioned writing that promises or orders the payment of a fixed amount of

money. Drafts and notes are the two categories of instruments. A draft is an

instrument that orders a payment to be made. An example is a check. A note is an

instrument that promises that a payment will be made. Certificates of deposit (CD's)

are notes. Drafts and notes are commonly used in business transactions to finance the

movement of goods and to secure and distribute loans. To be considered negotiable an

instrument must meet the requirements stated in Article 3. Negotiable instruments do

not include money, payment orders governed by article 4A (fund transfers) or to

securities governed by Article 8 (investment securities).

The rule of derivative title, which is applicable in most areas of the law, does not allow

a property owner to transfer rights in a piece of property greater than his own. If an

instrument is negotiable this rule is suspended. A good faith purchaser, who does not

have any knowledge of a defect in the title or claims against it, takes title to the

instrument free of any defects or claims. In relation to the suspension of the rule of

derivative title, Article 3 provides for warranties to protect the parties in transactions

involving negotiable instruments.

Checks are negotiable instruments but are mainly covered by Article 4 of the UCC.

Secured transactions may contain negotiable instruments but are predominantly

covered by Article 9 of the UCC. If there is a conflict between the Articles of the UCC

both Article 4 and 9 govern over Article 3.

The United Nations Convention on International Bills of Exchange and International

Promissory Notes would preempt Article 3 in the case of international transactions if

the United States were to join. (As of late 1994 it had not ratified the treaty.)

50

Texto 20: Business Law Today: Essentials

Fuente: "Business Law Today" (9th edition). Roger Miller & Gaylord Jentz (2011) págs 391-392. Southwestern Cengage Learning,

51

Texto 21: Negotiable Instruments Fuente: http://www.translegal.com/lets/negotiable-instruments-2

Negotiable Instruments

The law of negotiable instruments (also called commercial paper in the US) is an area

of commercial and business law which sets out the general rules that relate to certain

documents of payment. A negotiable instrument is a document which promises the

payment of a fixed amount of money and may be transferred from person to person.

Negotiable instruments have two functions—a payment function and a credit function.

This area of law started developing in the fourteenth century because merchants

needed a less risky and more convenient alternative to carrying large amounts of gold

or money, as well as ways of obtaining credit. This law was eventually codified, and

since 1882, in England, transactions in negotiable instruments are governed by the

Bills of Exchange Act. In the US, this area is regulated by the Uniform Commercial

Code, Article 3, which has been adopted in all states. The rules are very similar in

other common-law jurisdictions such as Canada, India and Pakistan.

In this context, the word negotiable means transferable; it does not mean open to

discussion or modification, as it does in a litigation context. Negotiability allows the

transfer of ownership from one party (the transferor) to another (the transferee) by

delivery or endorsement. Endorsement is the action of signing an instrument to make it

payable to another person or cashable by any person. That means merely signing your

name on the back of the document, or adding an instruction such as “pay to the order

of Emily Burns”

There are several types of common negotiable instruments including promissory notes,

certificates of deposit, cheques (US checks) and bills of exchange.

A promissory note is a document, signed by the person making the document,

containing an unconditional promise to pay a fixed sum of money to a named person,

to the order of a named person, or to the bearer (the person who is in physical

possession) of the document. Loans are typically formalized in promissory notes, and

since they often provide for payments over time, they function to provide credit to the

borrower who is the maker of the note.

A debenture (UK) or bond or secured debenture (US) has a similar function to a

promissory note; it is a written acknowledgment of debt, secured on the assets of a

company. In fact debentures are the most common form of long-term loan used by UK

companies.

52

A certificate of deposit (CD) is a document from a bank which indicates that a

specific sum of money has been deposited and promises to repay that sum with

interest to the order of the depositor, or to some other person’s order. A CD, which is

also called a time deposit, bears a maturity date (the date when it must be repaid) and

a specified interest rate, which is usually higher than on ordinary savings accounts.

A bill of exchange is a three-party written order signed by the first party (the drawer),

requiring the second party (the drawee) to make a specified payment to a third party

(the payee) on demand or at a fixed future date. A cheque is a type of bill of exchange

where the drawee is always a bank and is payable on demand. Unlike promissory

notes and certificates of deposit bills of exchange and cheques do not pay interest.

A letter of credit is a document provided by a bank or other financial institution as a

guarantee that a specific sum of money will be paid once stated conditions have been

met. Letters of credit are often used in the import and export business to ensure that

payment will be received. Because of factors such as distance, different laws in each

country and difficulty in knowing each party personally, the use of letters of credit has

become a very important aspect of international trade

53

UNIDAD 7:

DERECHO SOCIETARIO

Texto 22: Corporations: An Overview Texto 23: Major Forms Of Business Compared

Texto 24: UK Company Law is Terrorism’s Friend

54

TEXTO 22: CORPORATIONS: AN OVERVIEW CORPORATIONS: AN OVERVIEW Fuente: Clarkson, “BUSINESS LAW” Eleventh Edition, 2009 Cengage Learning.

A corporation is a legal entity created through the laws of its state of incorporation.

Individual states have the power to promulgate laws relating to the creation,

organization and dissolution of corporations. Many states follow the Model Business

Corporation Act. State corporation laws require articles of incorporation to document

the corporation's creation and to provide provisions regarding the management of

internal affairs. Most state corporation statutes also operate under the assumption that

each corporation will adopt bylaws to define the rights and obligations of officers,

persons and groups within its structure. States also have registration laws requiring

corporations that incorporate in other states to request permission to do in-state

business.

There has also been a significant component of Federal corporations law since

Congress passed the Securities Act of 1933, which regulates how corporate securities

are issued and sold. Federal securities law also governs requirements of fiduciary

conduct such as requiring corporations to make full disclosures to shareholders and

investors.

The law treats a corporation as a legal "person" that has standing to sue and be sued,

distinct from its stockholders. The legal independence of a corporation prevents

shareholders from being personally liable for corporate debts. It also allows

stockholders to sue the corporation through a derivative suit and makes ownership in

the company (shares) easily transferable. The legal "person" status of corporations gives

the business perpetual life; deaths of officials or stockholders do not alter the

corporation's structure.

Corporations are taxable entities that fall under a different scheme from individuals.

Although corporations have a "double tax" problem -- both corporate profits and

shareholder dividends are taxed -- corporate profits are taxed at a lower rate than the

rates for individuals.

Corporate law has important intersections with contracts and commercial transactions

law.

55

Texto 23: Major Forms of Business Compared

56

TEXT0 24: UK COMPANY LAW IS TERRORISM’S FRIEND FUENTE: http://www.theguardian.com/commentisfree/2010/jan/20/uk-company-law-terrorism

UK company law is terrorism's friend by Premm Sikka

By prioritising laissez-faire ideology over public safety, Britain is helping al-Qaida et

al to move cash through the banking network

US security officials claim that the growing presence of terrorist networks operated by

al-Qaida and others in the UK poses a major security threat. The UK fights wars in Iraq

and Afghanistan, but its domestic laws can enable Osama bin Laden, al-Qaida and

others to own and operate companies and move resources.

For less than £100 almost anyone can buy a ready-made off-the-shelf company. Armed

with the certificate of incorporation, the controllers can open bank accounts and be in a

position to move cash through the banking network.

The UK laws on formation of companies are very permissive. Almost anyone over the

age of 16, with the exception of undischarged bankrupts and those specifically

disqualified by the UK courts, can become a company director. Under the Companies

Act 2006, directors of companies are required to register a service and a residential

address with Companies House, which could be the UK address of an agent or a

nominee. All companies must have at least one natural person as a director but she or

he does not have to be a UK citizen or permanently resident in the UK. So in the absence

of extradition treaties, the UK law is powerless to do anything if the company directors

leave the country to escape criminal inquiries.

In principle, Companies House is supposed to check on the eligibility of individuals to

be company directors, but it can't cope. Last year, a study revealed that nearly 4,000

individuals suspected of terrorism, drug trafficking, fraud and illicit trading were

running UK companies. Banned company directors manage to set up new

businesses without great difficulty.

The UK law also allows companies to become directors of other companies. These

companies can be registered in secretive tax havens. Over the years, I have conducted

many investigations into dubious corporate practices for newspapers, radio and

television programmes and the trail always leads to tax havens, which hold no public

information about the individuals behind those companies. The registered address is

about the only publicly available information. One building in the Cayman Islands, a

UK overseas territory, is the registered address of 18,857 corporations. British Virgin

Islands, another UK overseas territory, with a population of 23,000 has more than

813,000 registered companies, the highest number per capita in the world. These

companies rarely carry out any trade in their locales, but facilitate secrecy to their

owners.

Over the years, US regulators have complained that many of the anonymously

controlled companies are behind terrorist funding, money laundering and organised

financial crime. US Senate inquiries show that offshore companies are behind organised

tax abuses and the jurisdictions rarely co-operate with investigations. Indeed, the whole

57

idea of control through tax havens is to pitch one country's legal system against

another's and thus obstruct and slow down any investigation.

The anonymously controlled companies registered in tax havens control and direct UK

companies. The public has no idea who the real owners are and who they are really

dealing with. As part of the money laundering regulations banks subscribe to the

doctrine of "know your customer" (KYC), but without knowing the details of directors

they are happy to open bank accounts for companies controlled by anonymous

companies from tax havens. They may be providing banking and credit facilities to

criminals and terrorists. Accountants and lawyers frequently act as the UK postboxes

for the tax haven companies and are often the brains behind the secrecy structures. The

accounts of the UK companies controlled by companies from tax havens carry a clean

bill of health even though there is no public information about the individuals behind

these companies.

The current UK company law prioritises laissez-faire ideologies over concerns about

public safety, security and accountability. It is perfectly possible for Osama bin Laden,

al-Qaida and others to be operating UK companies and shifting funds through the

established banking network. A first step towards reform should to ban companies from

acting as directors of other companies. Only natural persons who are UK residents and

citizens should be allowed to become directors of companies.

58

UNIDAD 8:

DERECHO DE FAMILIA

Texto 25:Marriage Texto 26: Florida´s Adoption Information Guide

Texto 27: Grounds for Divorce

59

Texto 25: Marriage Fuente: Coughlin, Jr., G. G., Your Handbook of Everyday Law, 5ta ed., Harper Perennial, Nueva York,

1993,págs. 204-205.

Marriage

Marriage is a civil contract entered into by both parties. The marriage contract

differs from ordinary contracts in that it cannot be dissolved by the parties but only

by the sovereign power of the state.

The validity of the marriage is determined by the laws of the place where the

marriage is contracted and validated.

In order for there to be a valid marriage, there must be the legal, mental and

physical capacity to enter into the marriage contract and the consent of the

parties.

a) Legal impediments to the marriage contract may result from 1) one or both of the parties being underage, 2) a marriage between relatives within the prohibited degrees of relationship, and 3) a previous marriage (of one of the persons) undissolved by death or divorce.

Where legal impediments exist there is a distinction between marriages which

are voidable (recognised until set aside in court) and those which are void (never

existed legally). For example, marriages where one or both of the persons are under

the age required by law are voidable and may be set aside only at the election of

one of the parties to the marriage.

b) Mental Incapacity to Marry means that a person may be of unsound mind

or mentally incompetent; this may include insanity, imbecility, intoxication or

other states of mind that deprives a person of the use of reason. The marriage

contracted during the mental incapacity is voidable, but it may later be

ratified by this person if he /she subsequently becomes competent.

c) Physical Incapacity to Marry or impotence to perform the marriage act may

render the marriage voidable. Impotence should not be confused with

sterility, the inability to procreate.

d) Consent of Parties to Marriage: It seems unnecessary to say that consent

of the parties to the marriage is necessary for a valid marriage; yet there have

been many court cases in which the question of consent has been seriously

disputed. The law says that there is no valid consent to the marriage if there has

been a mistake on the part of one of the parties concerning whether there was

really a marriage.

60

Texto 26: Florida’s Adoption Information Guide Source: http://www.adoptflorida.com

Adoption -

Steps on the Road

Once you decide to pursue adoption, you will begin a mutual approval process. The specific process

may vary slightly in different parts of the state. Overall, the purpose of this process is twofold: to help

prospective adoptive parents decide whether they truly want to adopt a foster child and for The

Department of Children and Family Services to evaluate prospective adoptive parents. Not everyone

who completes the process will be approved to adopt.

Early in the process every prospective adoptive parent must complete the Model Approach to

Partnerships in Parenting (MAPP) training. The class usually meets once a week for 10 weeks. During

this time you will explore the issues of adoption and decide if you really want to adopt and, if so,

whether you would like to become a family for an older child, a group of brothers and sisters, or a

younger child with medical needs.

Case workers will visit your home one or more times to do a home study to help determine if you

would be a good prospective parent for a foster child and which child might fit you family. They will

interview you and your spouse, if you have one, and your children if you have any.

The kinds of topics you will discuss include:

Why you want to adopt a child

What your childhood was like

Your marriage (if applicable)

Your lifestyle and how it would accommodate a child

Your finances

Your parenting philosophy

You support system

As part of the home study, the case worker will contact your friends, relatives and employers for

character references.

You will be asked to see your doctor for a physical examination to determine your state of health, and

your doctor will be asked to supply your medical records for the past two years.

When your application has been approved, your name will join a pool of waiting families. The task of

the adoption staff is to match the strengths of the family with the needs of the child. In order to get

better acquainted with the children in need of a foster home, you may attend department-sponsored

events with children seeking families or look at the Children in Waiting brochures or the department's

adoption homepage on the Internet at http://www.adoptflorida.org.

When a "match" between your family and a child has been made, we will provide you with

information and a picture of the child. When you decide you want to meet the child, the adoption

counselor will arrange it for you. If you feel you and the child are right for each other, you will visit

61

together several times until everyone is comfortable, and then the child will come to live with your

family. To ensure everyone is happy with the adoption, there is a three month "adjustment" period

before the adoption is complete.

The process will be over when you finalize the adoption before a judge. Your child will receive a new

birth certificate with his or her new last name on it - yours. Then you and your child are a family in the

eyes of the law.

Source: http://adoptflorida.com

62

TEXTO 27: GROUNDS FOR DIVORCE

Fuente: Coughlin, George Gordon , Your Introduction to Law, 3era ed., Barnes & Noble, págs. 176-177

Grounds for Divorce

There are at least 15 major grounds (or causes) for divorce, but these grounds are not uniformly recognized among the 50 states. The problem is left to the individual state legislatures, each of which has a different basic pol icy. The principal grounds for divorce follow:

Adultery For years adultery was considered to be the principal cause of divorce in most states . That is no longer true, although it st i l l is one of the causes for divorce

Conviction of a Crime or Felony The laws of about 40 states provide that conviction of a felony or an i nfamous cr ime or imprisonment for a certain number of years in a state prison or penitentiary is ground for divorce.

Extreme Cruel ty The courts of some states have become quite l iberal in interpreting the word “cruelty.” I t may include acts of v iolence; co nduct which causes fear of personal harm or mental suffering, such as offensive language; false charges of adultery; refusal to cohabit; and so on.

Desertion The courts have defined desert ion as a voluntary separation of one spouse from the other without consent, without justi fication and with the intention of not returning.

Fraud Seven states l is t fraud as a ground for divorce, if i t involves the concealment of something that was, in those states, essential to the validity of the marriage i tself. The following examples of fraud and concealment could be grounds for divorce: 1) nondisclosure by the wife that she was pregnant by another man at the time of the marriage, 2) nondisclosure that one party to the marriage is intermittently insane, al though sane at the t ime of the marriage, or 3) false representation concerning fortune, social standing, or previous marriage.

Duress Duress is the legal word for force. Four states provide that divorces may be granted when the marriage was contracted by force or by threat of bodily harm.

Insanity Over twenty states l i st insanity or idiocy as grounds for divorce, and a few states include mental incapacity at the time of the marriage.

63

UNIDAD 9:

DERECHO SUCESORIO

Texto 28: Inheritance Law

Texto 29:. What is Probate?

Texto 30:.Uniform Succession Laws: Intestacy

64

TEXTO 28:INHERITANCE LAW Fuente:http://www.wisegeek.com/what-is-inheritance-law.htm

Inheritance law is the area of the law that deals with how a decedent's estate will be distributed or passed down to heirs upon his or her death. Not only will inheritance law vary by country, but it may also vary by states within a country or by religions within a co untry. In some jurisdictions, these laws take the place of a last will and testament, while in others they only determine the division of assets in the absence of a will.

In the United States, when a decedent dies, his or her estate generally goes through a legal process known as probate. During probate, the decedent's last will and testament is admitted to the court for review. If the decedent did not leave a will then the inheritance law of the state where the decedent died will apply and the estate will pass to the heirs through intestate succession. Intestate succession refers to the legal rules that determine who will receive the decedent's assets and what percentage they will rece ive

Intestate succession is a process through the property of someone who has died without a valid will is transferred to heirs in accordance with statute. In this case, rather than distributing property as specified in a will, the executor of the estate follows regional law when determining how to break up an estate. Intestate succession is actually quite common; even wealthy people sometimes neglect to make wills or draft wills which are not considered valid.

The term “intestate” means “without a will.” Someone can die intestate in the sense that a will was never written or cannot be found, even if people believe that it exists. There can also be situations in which there is a will present but it cannot be considered valid. This may be because it has not been prepared properly or because it lacks witnesses. More complex legal challenges to validity such as questions about whether or not the testator was of sound mind may be litigated in court by surviving family members.

When someone dies intestate and the assets of the estate exceed any debts, a problem is presented because the decedent's wishes are not known. By statute in most regions, the government dictates how estates should be broken up. As a general rule, the surviving spouse is favored in intestate succession, although some regions may also indicate that certain property should pass to children. In rare cases where someone dies with no surviving family members, the property may revert to the ownership of the government.

U.S. inheritance laws do not distinguish between male and female heirs. For instance, if the intestate succession laws of the state where the decedent died dictate that the estate shall pass to the decedent's children, then all children inherit equal shares. Of course, the decedent may give a larger share to a male or female child in a will if he or she chooses to do

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so. Absent a will, however, all heirs are treated equal regardless of gender.

International inheritance law is often predicated on religious beliefs or doctrines. As such, inheritance laws in countries outside the United States may give preference to male heirs or exclude females from inheriting altogether.

Muslim laws of inheritance traditionally excluded females from inheriting at all. In more recent times, Muslim inheritance law has evolved to allow females to inherit, but male heirs a re often given two shares for every one share given to a female. In India, under the Indian Succession Act of 1925, a daughter is only entitled to one -fourth of the son's share of any inheritance. Efforts are being made in some countries to change the prac tice of favoring male heirs over their female counterparts. The Hindu Succession Amendment Act of 1985 is one such example. Under the Act, female heirs are now given equal treatment in the absence of a will and inherit in equal shares to their male counterparts.

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TEXTO 30 : What is Probate?

Fuente: http://www.lectlaw.com/filesh/qfl08.htm

Probate is the court supervised legal process that includes determining

the validity of your will, gathering your assets, paying your debts, taxes,

and the expenses of will administration, and then distributing the

remaining assets to those persons entitled to them.

To make sure that your property is distributed according to your wishes,

your survivors will usually submit your Will to probate court. The main

advantage of probate is that the probate court is supervising the entire

proceedings, and the probate laws are being followed. This is especially

beneficial if there are claims of cre ditors, challenges to the will, or

disputes that arise from the will . However, the probate process can be

time consuming and costly. The probate process is also criticized for the

loss of privacy surrounding the will maker’s financial affairs.

Probate with a Will

Without a doubt, things can proceed in an orderly and legal fashion if

you have a will at the time of your death. The person you name as the

executor of your will becomes the central figure in the probate

proceedings. Your executor will carry out t he many duties specified by

law, and the Will you leave will provide the guidelines for the probate

process.

The legal term for probate proceedings with a will is testate proceedings.

Initial Proceedings

Upon your death, your survivors will determine wheth er it is necessary

and appropriate to probate your estate. If so, then usually the person

you have nominated to be your executor will submit your Will to the

appropriate court in your state, along with a petition to the court that

will include information about you, your death and your Will. The

petition will request that the court accept the Will as valid and to

appoint the executor designated in the Will. The court will also review

the executor's residency and bond requirements.

Heirs, beneficiaries, and creditors must be notified of the admission of

the Will and the opening of the estate, after which they have a limited

amount of t ime to challenge the Will and/or submit claims to the estate.

Usually the estate will then obtain a federal identification num ber for tax

purposes because it is considered a separate taxpayer. The executor will

also open a bank account in the name of the estate in which to deposit

income and receipts of the estate, and out of which to pay expenses, and

make distributions to the beneficiaries.

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The initial proceedings will also be when the court takes into

consideration any challenges to the Will.

Executor Duties

The executor plays the key role in the probate proceedings from the very

beginning. After residency and bond issues are r eviewed, and the court

officially appoints him or her as the executor, it is up to him or her to

collect and inventory the assets of the estate, pay all debts and expenses

of the estate, and then distribute property to the beneficiaries and

establish any trusts, if directed by the Will.

It will be the executor's responsibility to notify heirs, beneficiaries and

creditors, obtain a federal identification number for tax purposes, and

open a checking account in the name of the estate.

The executor must review all records to determine all of the assets of

your estate, and physically take custody of all assets which are subject to

probate. After taking custody, the executor must determine the fair

market value of the estate property, pay any debts still outstand ing,

resolve any claims by creditors, and pay the costs of all expenses

incurred in administering the estate. The executor may have to sell some

of the estate's assets to pay debts and expenses.

The executor is also responsible for preparing and filing dea th tax

returns. This can include the federal estate tax return and the state

inheritance and estate tax returns. He or she will also be responsible for

filing your final individual income tax return, the estate income tax

returns, and any necessary gift tax returns.

Finally, it is the responsibility of the executor to distribute the remaining

estate assets to the beneficiaries, and to establish and fund any trusts

specified in the Will.

Closing the Estate

When all of the distributions to the beneficiaries h ave been made or are

nearing completion, a final report must be filed with the probate court

which summarizes all of the receipts and disbursements of the estate and

summarizes all other acts taken by the executor. A copy is provided to

the beneficiaries who have the opportunity to object to any items in the

report.

If the beneficiaries have no objections, the court will typically approve

the closing of the estate, the beneficiaries will sign receipts indicating

that they have received their distributions, the executor will file these

receipts, and the court will discharge the executor from duty.

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Cost of Probate

There can be substantial cost involved in probating an estate, so it makes

sense to avoid or curtail full probate where possible and appropriate. If

it is not necessary to deal with possible claims against the estate or

challenges to the Will, if it 's not necessary to have formal authority to

retitle the decedent's assets, and if it 's not necessary for the court to

supervise the activities of the executor, court supervision and its related

costs can be dramatically reduced, or eliminated altogether.

Probate also involves executor and attorney fees, which, however, are

usually subject to state law limitations. Although such limits vary from

state to state, executor fees often range from 2 to 4 percent of the assets

that are subject to probate. Of course, many executors who are friends or

family members of the deceased agree to serve without a fee. An

attorney’s fees will vary depending on the amount o f work spent on the

probate process, but they are usually based on the same guidelines as the

executor fees.

Time Spent in Probate

Probate proceedings are lengthy. Many estates can take a year or two to

complete, and if it 's necessary to file federal estat e tax returns, the

proceedings can last well into a third year. The size of the estate and

state laws affect the length of the probate process.

The time it takes for distributions to reach beneficiaries also varies. The

usual t ime frame for the first dist ribution is from four to eight months

from the time of death, although most states have provisions for spouses

and minor children to receive distributions almost immediately.

Privacy Issues

When a Will is admitted to probate, it becomes public record. Not only

does the Will itself become public, but all documents involved in the

proceedings become public record and can be viewed by anyone desiring

access. Some people have legitimate reasons for viewing this loss of

privacy as a negative aspect of probate pr oceedings.

Probate without a Will

If you do not leave a Will, then the courts will take over the distribution

of your property. The probate court will first appoint an administrator,

whose duties will include the same asset gathering, debt paying and

distributing tasks as an executor would do who is designated by a Will.

However, a court-appointed administrator will usually have to post a

bond. The cost of the bond will be paid from your estate, using available

cash or else the proceeds from the sale of some property. Because there is

no direction from a Will to choose beneficiaries, the courts will

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distribute the remaining assets according to state law. Most states give

top priority to the spouse, followed by surviving children.

The legal term for probate without a will is intestate proceed ings, and

the laws that govern estate distribution are called intestacy laws.

Short Form Probate

The duration and cost of the regular probate process can be minimized

for some small estates that do not exceed a certain value. Every state but

Montana and North Carolina has some sort of Small Estate

Administration, but they differ on what exactly qualifies as a small

estate.

If the laws in your state allow your estate to qualify as a small estate,

then a more economical and streamlined approach can be used to

distribute your property. While most of these laws qualify an estate

based strictly on the size of your estate, some states also require consent

of the heirs before allowing short form probate.

There are circumstances in which you can avoid the probate pr ocess

altogether. A very common way is through the establishment of a living

trust and the transfer to the trust, while you are alive, of substantially all

of your assets. Living trusts are governed by their own provisions and

they need not end immediately at your death. Therefore, if the trust is

the titleholder to your property, there is no need to go through probate

to retitle those assets out of your name. Instead, the successor trustee

merely distributes the trust assets to the beneficiaries that you h ave

specified in the trust document. Similarly, life insurance, pension plans,

and retirement accounts are payable directly to a named beneficiary, and

therefore are neither governed by the Will nor require probate. Finally,

property owned jointly with survivorship rights passes automatically to

the survivor, and is not subject to the Will or probate proceedings.

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TEXT 30: Uniform Succession Laws: Intestacy

Fuente: http://www.lawlink.nsw.gov.au/lrc.nsf/pages/ip26chp07

7. Distribution when no relatives are entitled

BONA VACANTIA

7.1 Bona vacantia is the Crown’s statutory r ight to the property of an intestate estate, to which no relat ives are ent it led. In most jur isdict ions when the intestate is not survived by a spouse or partner, issue, parents or remoter el igible relat ives, the Crown (or “Territory”) is ent it led to the intestate’s estate by bona vacantia.

7.2 The possibi l i ty of an intestate’s estate passing t o the Crown may not be so unl ikely as it once was, given the reduction in the size of the average family in Australia and the higher incidence of single chi ld famil ies. The following hypothetical example i l lustrates the point:

Alan died intestate leaving no spouse and no issue. Alan was an only child of parents each of whom was an only child. His parents and al l of his grandparents had predeceased him.

A further example may be found in a 1991 case where one third of the large estate of an elder ly woman (who lef t no relat ives entit led on intestacy) went on part ial intestacy to the Crown, contrary to her intent ion, because her wil l was badly drawn.

7.3 In the Austral ian Capital Terr itory, condit ions are imposed upon the publ ic trustee where the Territory is entit led to an intestate estate. The estate must be held in trust unt i l six years have passed since the date of death of the intestate. At that point the estate must be sold and the proceeds paid to the Territory ( less all costs and charges lawfully due to the publ ic trustee or any other person).

7.4 An alternat ive proposal could be to enact a provision whereby the intestate’s estate goes to a char ity or charit ies rather than to the Crown. In 1985 the Law Reform Commission of Tasmania noted:

The Commission bel ieves that most people would prefer their estate to go to charity than to the Crown, given that no close family exist at the t ime of their death. Although many people might object to the property going to the State rather than to relat ives of the deceased, they are less l ikely to object to it going to charity.

However, the Tasmanian proposal would involve the establ ishment of a “Char it ies Board” to distr ibute the funds received. Uniform national legislat ion would then require the creat ion of a charit ies board in each jurisdict ion. The Law Commission of England and Wales was opposed to such a proposal as the chosen char ity would, then, also have the job of administer ing the intestate estate and would be required to account to any benef iciar ies that are subsequently discovered.

7.5 A provision to similar ef fect has been enacted in Queensland with respect to Indigenous people who die intestate. In cases where the chief executive of the Abor iginal and Islander Af fairs Corporation is unable to determine that a ny person is entit led to succeed to the estate or a part of the estate, that property

71

shall “vest in the chief executive who shal l apply the moneys or the proceeds of the sale of any property ( less the expenses ( if any) of such sale) for the benef it of [Aborigines/Islanders] generally” under the schemes whereby the chief execut ive may grant aid to Indigenous persons who apply for it on such terms as the chief executive may think f it .

ISSUE 7.1

Are the present provisions for the disposal of intestate estate s where no relatives of the intestate are entitled to distribution under the rules of intestacy satisfactory?

PROVISION FOR DEPENDANTS

7.6 A number of jur isdict ions al low the Crown to provide for dependants for whom the intestate might have been reasonably expected to have made provision, or who might be said to have a “moral claim” against the estate. In New South Wales the Crown Sol ic itor has published guidelines on the procedure for appl icat ions.

7.7 Such a provision was designed to include foster chi ldren and “wi l l cover also the situat ion of an old f r iend, say, who looked af ter the intestate in the last days of his l i fe”. Such a provision could also be used, albeit in l imited circumstances, to provide for step children of the intestate who are oth erwise not entit led to distr ibut ion on intestacy.

7.8 The provision can be seen to be statutory recognit ion of the common law r ight “of certain dependants of the intestate who, although not ent it led at law, may nevertheless petit ion the Crown for a waiver of its r ights of bona vacant ia in any estate in respect of which there are no legal next of k in”. I t has been noted, at least in New South Wales, that the provision al lowing dependants to make appl icat ion was of part icular importance to de facto couples, both heterosexual and same-sex, before the reforms of 1984 and 1999 respectively, since they could not apply under family provision legislat ion.

7.9 Certoma has crit ic ised the discret ionary nature of this provision and argues that, at least in New South Wa les, “…it implies that the intestate would not reasonably have been expected to make provision for a relat ive as close as a f irst cousin. I t would, one would suspect, be dif f icult to imagine that any testator would prefer the Crown as bona vacantia rather than to benef it his closest relat ives.”

7.10 It can be argued that such a provision is no longer necessary given the broader scope of family provision legislat ion to cover dependants. In any case, the recommendat ions of the National Committee in relat ion t o family provision would appear to cover the situat ion, whereby a person, whether or not they are a member of the family of a deceased person, may apply for a family provision order if they are “a person to whom [the] deceased person owed a responsibi l i ty to provide maintenance, educat ion or advancement in l i fe.” In making a family provision order in relat ion to such an appl icat ion, the court may have regard to whether the appl icant “was being maintained, either wholly or part ly, by the deceased person befo re the deceased person’s death”.

7.11 It is important to dist inguish between the nature of an applicat ion under family provision and the nature of an appl icat ion for provision out of bona

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vacant ia . In the case of a claim for family provision a person, who is not entit led to a share of the deceased’s estate, may only make a claim if they were being maintained by the deceased or over whom the deceased had responsibi l i ty. In the case of an appl icat ion for provision out of bona vacant ia applicat ion may be made by a person who has a purely moral claim to a share of the estate, for example, foster chi ldren.

ISSUE 7.2

Should uniform legislat ion al low persons to petit ion the Crown to make provision for them out of bona vacant ia?

ISSUE 7.3

I f so, what cr iter ia should be used to identify the people who are ent it led to apply?

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UNIDAD 10:

DERECHO DE DAÑOS

Texto 31: Torts-Your Protection Against Wrongs

Texto 32: Definitions (Specific Torts -from LII Cornell University School of Law and Nolo's Plain- English Law Dictionary)

Texto 33: The Nature of Tort Liability (Texto 3) - Prof. Sam Blay- University of Technology (Sydney)

Texto 34: Rulings Appear To Be Split In Tort Cases For Coffee Burns (4)

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Texto 31: YOUR PROTECTION AGAINST WRONGS Fuente: “You and the Law” The Reader’s Digest Association Int. Pleasantville, New York. Fourth

Printing July 1980.

Most of us are aware of what crimes are (murder, arson, theft) but are vague about what

lawyers call torts. There’s a good reason: leading legal writers agree that no one has

satisfactorily defined a tort. This is partly because torts are so common, so widespread and

so varied. You are more likely to be the victim of a tort than of a crime, and you are also far

more likely to commit a tort than a crime.

A tort is a civil wrong against an individual. A crime, on the other hand, is an offense against

the public at large, or the state. An automobile driver who carelessly bumps into your car in a

parking lot has committed a tort against your property. Because the law recognizes your legal

right to freedom from injury to your property caused by other people’s carelessness, you are

entitled to sue the driver and be awarded damages for his breach of your right. But he has

committed no crime.

Suppose, however, that after leaving the parking lot the same driver goes to a bar, drinks six

whiskeys, then drives through a crowded city street at fifty miles an hour. Now he has

committed at least these crimes: drunken driving, reckless driving and endangering the lives

of others. But unless he actually damages another car or injures someone he has not

violated the rights of any individual. His offenses are against the people as a whole. For

these offenses he may be arrested and prosecuted by the state.

A tort, on the other hand, is an act that violates your private or personal rights. If you believe

someone has violated your personal rights – but has not acted against the interests of the

public as a whole – it is entirely up to you to seek relief by suing him in the civil courts. If the

judge or jury finds that he did in fact injure you or your property, he may be required to give

you relief by paying you “damages” for the injury or property loss you suffered, to discontinue

his wrongful acts, or to restore to you what he took from you.

Elements of a tort: A tort is usually committed when someone injures you physically,

damages or misuses your property, attacks your reputation without justification or takes away

your liberty and freedom of action without just cause. To recover damages for a tort you must

prove either that the act was committed with deliberate intent (as when someone circulated a

letter calling you a thief) or that it was the result of negligence (as in the case of a driver in a

parking lot who carelessly hits your car when he has a duty to drive carefully).

In most cases you must prove that the act inflicted actual damage or injuries. A malicious act

that does you no harm, such as a threat to punch you in the nose is not sufficient cause for

legal action.

Who can be held responsible for committing a tort: Generally speaking, any person,

young or old, mentally competent or not, is responsible for his tort: for the consequences of

his actions to others injured by those actions. Here again is an interesting distinction between

crimes and torts. Children below a certain age are not usually liable for the crimes they

commit, on the ground that children of their age really do not understand the significance of

their actions. For basically the same reason, persons who have been adjudged mentally

incompetent are not liable for their crimes. But these same persons may be liable for their

torts, whether they are deliberate or the result of carelessness.

Intent is an essential element in such torts as libel or trespass. Intent is an essential element

in many crimes. But the same person who in the eyes of the law is not mentally competent to

75

commit a crime, on the ground that an insane person lacks intent, may nonetheless be held

liable for committing a tort. A lunatic who escapes from an insane asylum with a gun, breaks

into a house and shoots up the china and puts a bullet or two in the owner’s thigh would be

held liable for damages for trespass, battery and the value of the china he broke – if the

homeowner chose to sue him. But he might well escape criminal prosecution either for

breaking and entering the house or for assault and battery on the owner.

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TEXTO 32: Definitions (Specific Torts -from LII Cornell University

School of Law and Nolo's Plain- English Law Dictionary) Fuente: http://www.law.cornell.edu

DEFAMATION

A false statement that harms a person’s reputation The tort of defamation includes both

libel and slander. If the statement is published, it is libel, if spoken, it is slander. To

establish a prima facie case of defamation, four elements are generally required: a false

statement purporting to be a fact concerning another person or entity; publication or

communication of that statement to a third person; fault on the part of the person making

the statement amounting to intent or at least negligence; and some harm caused to the

person or entity who is the subject of the statement.

TRESPASS

The act of entering someone's property without permission or authority. (Although it

usually refers to real estate, trespass can apply to personal property as well.) Trespassing

can be a tort (a civil wrong, which the property owner can sue over) and can be a crime if

it's done willfully. Under Tort Law, a property owner may bring a Civil Law suit against a

trespasser in order to recover damages or receive compensatory relief for injury suffered

as a direct result of a trespass. In a tort action, the plaintiff must prove that the offender

had, but knowingly violated, a legal duty to respect another person’s right to property,

which resulted in direct injury or loss to the plaintiff.

NEGLIGENCE

A failure to behave with the level of care that someone of ordinary prudence would have

exercised under the same circumstances. The behavior usually consists of actions, but

can also consist of omissions when there is some duty to act (e.g. a duty to help victims

of one's previous conduct).

Five elements are required to establish a prima facie case of negligence: the existence of

a legal duty to exercise reasonable care; a failure to exercise reasonable care; cause in

fact of physical harm by the negligent conduct; physical harm in the form of actual

damages; and proximate cause, a showing that the harm is within the scope of liability.

ASSAULT AND BATTERY

The combination of two crimes, of threat (assault) and actual beating (battery). Victims

can also sue in a civil suit for the damages suffered as a result of the attack. NUISANCE

Something that interferes with the use of property by being irritating, offensive,

obstructive, or dangerous. Nuisances include a wide range of conditions, everything from

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a chemical plant's noxious odors to a neighbor's dog barking. The former would be a

public nuisance, one affecting many people, while the other would be a private nuisance,

limited to making your life difficult. Lawsuits may be brought to abate (remove or reduce)

a nuisance.

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TEXTO 33: THE NATURE OF TORT LIABILITY Fuente: www.findlaw.com.au/.../the-nature-of-tort-liability.a...

The nature of tort liability by Professor Sam Blay. University of Technology (Sydney)

This is an extract from Lawbook Company's Nutshell: Torts by Sam Blay (Sydney: LBC, 1999, 4th ed). LBC Nutshells are the essential revision tool: they provide a concise outline of the principles for each of the major subject areas within undergraduate law. Written in clear, straightforward language, the authors clearly explain the principles, and highlight key cases and legislative provisions for each subject.

Meaning of tort. The word 'tort' is derived from the Latin word 'tortus' meaning wrong or crooked. A 'tort' in law means a civil wrong. Tort law is thus primarily concerned with compensation for damages for civil wrongs suffered as a result of another's acts or omissions. The civil wrong arises as a result of breach of a duty imposed by law. Thus there are, for instance, duties not to assault another person, not to trespass on another's land, not to take another's goods, and to take care not to injure one's neighbour. Some duties are laid down by legislation; others are found in the common law. The emphasis on a tort as a civil wrong distinguishes it from a crime.

Crime and tort. Like a tort, a crime is a breach of duty imposed by law. However, unlike a tort, a crime is considered a 'community' wrong. A crime therefore does not generally entitle the victim to an individual right of compensation as such. It rather involves the imposition of punishment by the community against the wrongdoer. Criminal law is therefore concerned primarily with punishing a wrongdoer for wrongful acts. On the other hand, the law of torts is concerned largely with compensating the person injured or damaged by a wrongful act or omission. Because both crimes and torts arise from breaches of duties imposed by law, it is possible for a particular breach to be both a tort and a crime. However not every tort is necessarily a crime. Since a crime is considered a wrong against the community, criminal proceedings are, in theory, a contest between the state (ie the community) and the wrongdoer or defendant in which the injured person or victim (as complainant, if that person is still alive) merely becomes a witness for the state. On the other hand, since a tort is a 'private wrong', in tort proceedings the injured person or victim, as plaintiff in their private capacity, sues the wrongdoer or tortfeasor, as defendant, for compensation. In spite of the differences between tort law and criminal law, it is important to note that there are some similarities between the two areas of law. For instance, even though tort law is primarily concerned with compensation, in some circumstances it may permit the imposition of punitive damages against a wrongdoer. Similarly, under the criminal injuries compensation statutes in Australia, it is possible for a victim of crime to be awarded some limited compensation.

Contract and tort. Like the law of torts, contract law is concerned with civil obligations. However, unlike tort law, the law of contract is largely concerned with the enforcement of duties that one person has by agreement, bound himself or herself to perform for the benefit of another. Even though the law of torts is also concerned with breaches of duties, those duties are not established by any agreement between persons but rather by the law itself. In some cases, a breach of contract may also constitute a tort. However not every breach of a contractual obligation is also a tort.

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Compensation Compensation is a monetary award made to a person who has suffered a wrong or injury. It usually takes one of two forms: (a) an award of damages; or (b) the making of a court order designed to compensate the injured party where damages will not adequately compensate him or her.

"Damages" in this sense simply means money or dollars. A court order designed to compensate the injured party is an order that either compels a wrongdoer to do something (other than pay damages) or restrains a wrongdoer from doing something. If the wrongdoer has taken something from the injured party (such as an irreplaceable family heirloom) the injured party would hardly be compensated adequately by being awarded monetary damages. The court, in such a case, might order the wrongdoer to return the thing taken. If a wrongdoer repeatedly does a wrong act, such as releasing foul smelling exhaust fumes from premises so as to pollute the air in the neighbourhood, a court might restrain the wrongdoer from continuing to do so (ie grant an injunction). An injunction is merely a court order either restraining someone from doing an act or (less frequently) compelling someone to do an act. The objective of compensation is not to enrich the injured party; it is to as far as practicable, return the injured person to the position in which he or she was in before the injury. Compensation granted to an injured person is normally also referred to as damages (ie as against the wrong doer) Damages may be real, nominal or punitive. Actual damage is an award that reflects the actual loss sustained by the injured person. Where an injured party does not suffer any loss from the conduct of the wrong doer, a court may award the injured party only nominal damage in recognition of his or her breach of right. By its nature, nominal damage is usually small or modest. Punitive or exemplary damages are awarded in circumstances where the defendant's conduct is so gross or outrageous that it calls for a degree of punishment. The object of punitive damages is to punish and deter. Thus as a rule where the defendant has already been punished under criminal law, a court in a civil action would not award exemplary damages.

Liability in tort law. In tort law, a defendant would be required to pay damages or compensation for the injuries of a plaintiff only if that defendant is found to be responsible for the cause of the plaintiff's injury. Where the defendant is so responsible, he or she is said to be liable. Liability in tort law may be based on fault or it may be strict. Fault liability concerns the failure to live up to a standard through an act or omission. There are two main types of fault liability: (a) liability may be due to an intentional act ( for example, where a defendant intentionally causes an injury to the plaintiff by hitting him or her); and (b) liability may also be due to a negligent act (such as where the defendant negligently causes an injury to the plaintiff). In general, there is no liability without fault. Thus even where a person causes an injury to another, that person is not liable for a tort unless fault (ie intention to cause the injury or negligent conduct) can be proven. Where the injury is caused neither intentionally nor negligently, it may be described as a 'pure accident', and is not actionable. On the other hand, there is a small number of torts which require no fault for liability. These are described as strict liability torts. In such torts, one can be held liable once it is proved that he or she caused the injury irrespective of whether their conduct was intentional or negligent or not.

The element of intent. The element of intent is crucial in torts and must be understood properly as a foundation for a significant part of the subject. One can

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speak of intent or the 'intentional act' as the basis of fault liability in four principal instances:

(a) the deliberate or wilful conduct of the defendant (for example where the defendant wilfully or deliberately hits the plaintiff in the face);

(b) constructive intent (in cases where the consequences of the defendant's conduct are substantially certain or foreseeable as for example where the defendant throws a brick into a crowded room and hits the plaintiff);

(c) where the defendant's conduct is reckless (for example, where the defendant kicks or throws arms around without consideration for the safety of the plaintiff who is near, and subsequently causes injury to the plaintiff); or

(d) transferred intent where the defendant intends to hit B but misses and hits P instead the defendant would be taken as having intended to hit P.

The element negligence. There are two senses in which the law of torts deals with negligence. In its 'ordinary' meaning, negligence simply refers to a careless conduct of the defendant as opposed to a wilful conduct. However in tort law, the term negligence is used more commonly in its technical sense to mean the breach of a duty by the defendant consisting of his or her failure to take reasonable care to avoid a reasonably foreseeable harm to another person. A significant section of the law of torts is based on this notion of negligence.

Causes of action. Before a person can sue another in tort, he or she usually has to fit the facts of the case into the framework of a recognised cause of action. There are two principal forms of actions in torts. These are actions in trespass and actions in negligence. In addition to these two there is a range of related torts which are dealt with later in this text.

Interests protected in tort law. Like other branches of law, the law of torts protects specific interests, these include: (a) personal security (through the torts of trespass and negligence); (b) personal reputation (through the tort of defamation); (c) property rights (through trespass and conversion); and (d) economic and financial interest (through trespass and conversion).

Trespass: An intrusion or infringement on another. Trespass implies willful intrusion on another's rights, possessions, or person: "In the limited and confined sense [trespass] signifies no more than an entry on another man's ground without a lawful authority" (William Blackstone). Infringement is most frequently used to denote encroachment on another's rights: "Necessity is the plea for every infringement of human freedom" (William Pitt the Younger).

Conversion: The unlawful appropriation of another's property. Any unauthorized act that deprives an owner of personal property without his or her consent. The wrongdoer converts the goods to his or her own use and excludes the owner from use and enjoyment of them.

The type of property that can be converted is determined by the original nature of the Cause of Action. It must be personal property, because real property cannot be lost and then found. It must be tangible, such as money, an animal, furniture, tools,

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or receipts. Crops or timber can be subject to conversion after they are severed from the ground. The rights in a paper—such as a life insurance policy, a stock certificate, or a promissory note—can be converted by one who appropriates the paper itself.

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Texto 34: Rulings Appear To Be Split In Tort Cases For Coffee Burns (4) Fuente: www.masslawyersweekly.com

Vol. 30, No. 46 July 15, 2002 http://www.masslawyersweekly.com $7.75 per copy

Rulings Appear To Be Split In Tort Cases For Coffee Burns

Industry Standard Debated As Claims Brew

JUDGE DIANNE M. KOTTYMER Plaintiff must show coffee was ‘unreasonalby hot’

by John O. Cunningham

Lawyers say there is a dearth of state decisions on the critical elements

of coffee-burn cases—and an apparent split in authority, but that may

soon change as such suits become more common.

In two recent cases brought by plaintiffs burned by hot coffee, Superior

Court Judge Diane M. Kottmyer dismissed one case by summary

judgment, but District Court Judge Leah W. Sprague ruled that a similar

suit should be decided at trial.

The two court decision, respectively, are: Martinelli v. Custom Accessories,

Inc. , Lawyers Weekly No. 12-143-02; and Guay v. Starbucks Coffee

Company , Lawyers Weekly No. 16-016 02. Jeffrey S. Stern of Boston

reported that he settled a third case for a plaintiff in Middlesex Superior

Court early this year.

Local lawyers say that coffee burn cases are much more complicated than

the media portrayal of the seminal “McDonald’s coffee case.”

But recent Massachusetts rulings show that there are indeed good -faith

claims of coffee being brewed at dangerous temper atures higher than the

industry standards.

Attorneys for plaintiffs and defendants agreed that hot coffee is

normally brewed at temperatures that can cause second degree burns

almost instantly.

But lawyers differ on the relevance of industry standards fo r brewing

and serving coffee, the need for explicit warning’ about the dangers of

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coffee spills, and the possible relevance of negligent design theories

applicable to cups and lids.

Differences Of Opinion

Brittany J. Smith of Springfield, who represented a plaintiff who

survived summary judgment in the District Court case of Guay, said that

“you have to get an expert who can testify that the coffee was served at

temperatures too hot to be safe.”

She added that cup design and warnings must be put in issue as well,

arguing that the trier of fact should decide whether cups and lids should

be more insulated or harder to spill .

Smith also argued that a mere warning that “coffee is hot” is not

sufficient to put hurried consumers on notice of the real dangers of

mobile consumption.

She noted that many may not be aware that the plaintiff in the 1994 New

Mexico case of Liebeck v. McDonald’s Corp . suffered third-degree burns

that required skin grafts. Smith said her own client needed “painful skin

debridements that involved cutting of blisters and skin.”

But defense counsel in Guay , David S. Katz of Wellesley, suggested that

plaintiffs must show a breach of industry standards, noting that “coffee

is brewed between 175 and 195 degrees for flavor and freshness” that

consumers prefer.

He added that his client, Starbucks Coffee keeps a databank of decisions

around the country, and he suggested that e very opinion except for one

has ultimately favored the defendant based upon application of

“industry standards.” Katz suggested defense lawyers should examine

McMahon v. Bunn-O-Matic Corporation , a 1998 decision from the 7th U.S.

Circuit Court of Appeals, as well as Holowaty v. McDonald’s Corp. , a 1998

decision from the U.S. District Court in Minnesota for cogent arguments

on the subject.

He also said there have been no appellate decisions in Massachusetts on

coffee burn cases, noting that many coffee clai ms settle out. Smith relied

on the 1997 appellate case from Ohio, Nadel v. Burger King , which upheld

a recovery by a child burned from a coffee spill, and she argued that

“maybe the industry standards are wrong.” She also pointed to previous

case law rejecting industry standards for diving boards and pool depths

after numerous injuries.

Frederick J. Cicero of Malden, counsel for plaintiffs Lynda and Ralph

Martinelli in the recent Superior Court case, stated that he would appeal

the summary judgment granted to Dunkin’ Donuts and one of its

franchisees in his case.

He said his clients’ claim “is primarily a defective container claim” that

“implicates implied warranties of adequate containment and fitness for a

particular purpose.”

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Cicero argued that “Dunkin’ Donuts selects the container and lid

arrangement” knowing that “hot coffee purchased at a drive -up window

has to be transported away in an auto.”

He maintained the lid in his case was not designed to stay on the

container if it fell over.

Stern, who handled a case involving an exploding coffee maker, said that

getting hit with hot coffee “can be like getting hit with napalm.” He

suggested that “retail practices should take account of the fact that

coffee is brewed at inherently dangerous temperatures.”

Summary Judgment Denied

Plaintiff Gail Guay brought an action against Starbucks Coffee Co. at the

end of 1998 for damages allegedly resulting from the defendant’s

negligence, breach of implied warranties and failure to warn.

The plaintiff suffered second-degree burns when she accidentally spilled

a cup of black coffee purchased at the defendant’s Newburyport store on

May 30, 1998.

The judge noted that the defendant “contended that it should be

absolved of liability as a matter of law because it at all ti mes complied

with prevailing standards in the industry regarding the temperature at

which coffee is brewed and served.”

But Sprague added that “such compliance is not the ‘sole determinative

factor in assessing liability.”

She said the defendant’s negligence “is not an issue of law but is an issue

to be determined by the trier of fact at trial.”

Sprague suggested that the finder of fact “is to consider all relevant

factors, one of which may be the defendant’s compliance with the custom

or practice of its trade.”

The judge also emphasized that the plaintiff “has produced . .. the

affidavit of an expert, Richard Fraser, M.D.” who is prepared to testify

that “the excessive temperature of the coffee plaintiff purchased from the

defendant was the direct and proximate cause of the plaintiff’s injuries.”

Summary Judgment Granted

On June 12, 1997, plaintiff Lynda Martinelli purchased a cup of hot

coffee in a Styrofoam cup with a lid at the drive -up window of a Dunkin’

Donuts at 980 Eastern Ave. in Malden.

After purchasing the coffee, the plaintiff affixed a plastic cup holder to

the door of her vehicle to hold the covered cup in place. When she made

a sharp turn into her driveway, the cup holder and the coffee fell onto

her side and coffee spilled out of the cup burning her left hip and thigh.

The plaintiff sued the vendor, the maker of the cup holder and other

defendants in Middlesex Superior Court in the year

2000.

85

The judge granted summary judgment for Dunkin’ Donuts and its

franchisee who served the coffee because there was “no indication that

the cups failed to contain their contents under foreseeable conditions

where they would reasonably be expected to do so.”

Kottmyer said that the “plaintiff must adduce evidence that the coffee

was defective or unreasonably dangerous by virtue of being hotter than

it should have been.” She also emphasized that “heat is an inherent

feature of a cup of coffee.”

The judge noted that coffee is customarily served and intended to be

consumed as a hot beverage. Given the nature of the product, the fact

that the coffee was hot enough to burn skin on contact is insufficient to

satisfy their burden,” Kottmyer said.

She asserted that the plaintiff must show that the coffee was

“unreasonably hot” to survive summary judgment, and she added that

there was “no evidence that the cup and lid violated any applicable

standard or were otherwise unreasonable in design.”

Settling Out

In Stern’s case, a glass “French press” type of coffee maker exploded due

to failure of the glass components to homogenize evenly during

manufacturing.

The fact that coffee grounds were mixed with the water worsened the

burn injury suffered by the plaintiff, a 41 -year-old woman, because the

mixture adhered to her thigh.

Stern said he engaged an expert “ceramicist” from MIT, Yet -Ming

Chiang, to analyze the product and explain how the catastrophic failure

occurred.

He also argued that a design defect failed to include a feasible enclosure

around the glass which could have minimized the injury.

The case settled at mediation after depositions of the plaintiff and her

husband. Stern said that “getting early and effective expert assistance on

glass and ceramic fractures was a critical key to settlement.”

Quest i ons or comments may be d i rec t ed t o th e wri t e r a t j cunningham@lawyersweekly .c om .

Pla in ti f f Gai l Guay

suffered second -

degree burns on her

foot due to a coffee

burn.

Guay’s case recently

survived summary

judgement in s tate

Distr ic t Cour t .

86

UNIDAD 11:

DERECHO INTERNACIONAL PRIVADO

Texto 35:International Law

Texto 36: International Trade Law: An Overview

Texto 37 : The Importance of Private International Law for Family

Issues in an Era Of Globalization: International Child

Abduction

Texto 38 What is the Hague Convention on the Civil Aspects of

Child Abduction?

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Texto 35: International Law Fuente: http://www.hg.org/international-law.html

International Law, unlike most other areas of law, has no defined area or governing body, but instead refers to the many and varied laws, rules and customs

which govern, impact and deal with the legal interactions between different nations, their governments, businesses and organizations, to include their rights and

responsibilities in these dealings. The immense body that makes up international law encompasses a piecemeal

collection of international customs; agreements; treaties; accords, charters (i.e. the United Nations Charter); protocols; tribunals; memorandums; legal precedents of

the International Court of Justice (aka World Court) and more. Without a unique governing, enforcing entity, international law is a largely voluntary endeavor, wherein the power of enforcement only exists when the parties consent to adhere to

and abide by an agreement.

Due to the diverse legal systems and applicable histories of different countries, laws addressing international law include both common law (case law) and civil law (statutes created by governing bodies). Their application covers all the facets of

national law, to include substantive law, procedure, and remedies. There are three main legal principles recognized in much of international law, which

are not required, but are based chiefly on courtesy and respect: - Principle of Comity - in the instance where two nations share common public policy

ideas, one of them submits to the laws and judicial decrees of the other.

- Act of State Doctrine - respects that a nation is sovereign in its own territory and its official domestic actions may not be questioned by the judicial bodies of another country. It dissuades courts from deciding cases that would interfere with a country’s

foreign policy.

- Doctrine of Sovereign Immunity - deals with actions brought in the court of one nation against another foreign nation and prevents the sovereign state from being tried in court without its consent. In the U.S., this is governed by the Foreign

Sovereign Immunities Act (FSIA) of 1976.

To be determined a sovereign state a nation must run its own government, with its own territory and population.

There are both national laws and international agreements which govern/regulate international business transactions, which include investments, offshore banking,

contracts, imports/exports, tariffs, dumping, trade and more.

Although there is no definitive governing body overseeing international law, the United Nations is the most widely recognized and influential international organization and the International Court of Justice (ICJ) is its judicial counterpart.

International law may further be broken down as public or private. Public

International law covers the rules, laws and customs that govern and monitor the conduct and dealings between nations and/or their citizens. The UN deals largely with public international law. Private International law (Conflict of laws) handles

disputes between private citizens of different nations.

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Texto 36: INTERNATIONAL TRADE LAW: AN OVERVIEW

Fuente: http://www.law.cornell.edu/wex/international_trade

INTERNATIONAL TRADE LAW: AN OVERVIEW

International trade is “the exchange of goods [or] services” “between

nations.” Black’s Law Dictionary 285, 1529 (8th ed. 2004).

SOURCES OF INTERNATIONAL TRADE LAW

Constitutional, federal, and international laws govern international trade between

the United States and foreign nations (or persons or entities therefrom). Federal

and international laws address a wide range of trade issues, such as customs

duties, dumping, embargoes, free trade zones, intellectual property, quotas, and

subsidies.

The Commerce Clause of the U.S. Constitution empowers Congress to “regulate

commerce with foreign nations,” U.S. Const. Art. I, § 8, cl. 3, while other Article I

provisions empower Congress to “lay and collect taxes, duties, imposts, and

excises,” id. at Art. I, § 8, cl. 1, and prohibit states from doing the same without

congressional approval, id. at Art. I, § 10, cl. 2. Pursuant to this authority,

Congress has enacted numerous federal statutes, including the Tariff Act of

1930, the Trade Act of 1974, and the Trade Agreements Act of 1979.

Article II of the U.S. Constitution empowers the President, “by and with the

advice and consent of the Senate, to make treaties, provided two thirds of

Senators present concur.”U.S. Const. Art. II, § 2, cl. 2. Pursuant to this authority,

presidents have negotiated numerous international treaties and trade

agreements, including the Marrakesh Agreement Establishing the World Trade

Organization, the Agreement on Trade-Related Investment Measures (regarding

trade in goods), the Agreement on Trade-Related Aspects of Intellectual

Property (regarding intellectual property), and the North American Free Trade

Agreement. Currently, the United States has free trade agreements in force

with 17 nations.

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INTERNATIONAL TRADE ADMINISTRATION

The International Trade Administration ("ITA"), a bureau of the U.S. Department

of Commerce, aims to "strengthen[] the competitiveness of U.S. industry,

promote[] trade and investment, and ensure[] fair trade through rigorous

enforcement of [U.S.] trade laws and agreements." ITA, About the International

Trade Administration (last visited Oct. 23, 2010). The ITA is comprised of four

distinct business units: (1) U.S. and Foreign Commercial Service,

(2) Manufacturing and Services, (3) Market Access and Compliance, and

(4) Import Administration. Id.

WORLD TRADE ORGANIZATION

The United States is a member of the World Trade Organization ("WTO"). The

WTO is an international organization that only recently (1995) came into being,

succeeding the General Agreement on Tariffs and Trade ("GATT"). WTO, The

Multilateral Trading System — Past, Present and Future (2010). The

WTO provides a forum and a "legal and institutional framework" for its member

to negotiate, implement, monitor, and resolve disputes relating to international

trade agreements.

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Texto 37: The Importance Of Private International Law For

Family Issues In An Era Of Globalization: International Child Abduction Source: http://www.hofstra.edu/PDF/law_lawrev_silberman_vol32no1.pdf

THE IMPORTANCE OF PRIVATE INTERNATIONAL LAW FOR FAMILY

ISSUES IN AN ERA OF GLOBALIZATION: INTERNATIONAL CHILD

ABDUCTION

I. CROSS-BORDER CUSTODY DISPUTES

Disputes over and about children are some of the hardest issues in the transnational

context. First, these issues are so personal and strike such emotional chords that the

stakes become quite high. Questions about custody go to the very core of people’s lives,

and parties are often willing to go to extraordinary lengths to obtain what they want and

need. Second, the traditional judicial process—whether in a common law or civil law

regime—is a very poor mechanism for settling the kinds of issues that arise in these

disputes. The questions that authorities are asked to resolve in these cases, e.g., what

particular custodial arrangements would be in the best interests of a particular child,

should a parent be permitted to relocate with a child, when and how should a parent be

permitted to exercise rights of access, do not turn on the kinds of fact/law determinations

that characterize other types of litigation. Nor is a judicial proceeding, with its formal

rules, likely to produce an accurate snapshot of the real family dynamic. Resolution of

these matters is part of a value-laden decision-making process that necessarily brings into

play differences in culture, attitudes, and moral standards. […]

The role of culture and values—and stereotypes—is magnified even more dramatically in

the transborder context. Consider, for example, the Bahamian court order that gave

custody to a Saudi father rather than an American mother, explaining that the decision

was taken in order to avoid the risk of the children becoming “little Americans,” of

“losing the cultural heritage of Saudi Arabia,” and of “losing the inheritance of royalty.”

How one overcomes these kinds of cultural biases—whether in the United States or

elsewhere—is well beyond the scope of this Article or the parameters of this Conference.

Nonetheless, legal systems must be sensitive to legitimate cultural norms and values,

particularly in disputes involving children. Private international law principles do play

an important role here, and two multilateral treaties reflect private international law

norms in this area. Similar principles in United States law make the same assessment,

although not entirely without criticism. An example comes from a case that arose in the

United States. The mother and father in the case were both Pakistani, and the child was

born in Pakistan. When the daughter was eight years old, the mother, Joohi, left the

marital home and moved in with her parents in Pakistan. When she realized that her

husband, Anwar, had filed custody proceedings in Pakistan, she fled to the United States

with her daughter. Nonetheless, the custody case proceeded in the Pakistani court. The

mother was represented by counsel but refused to appear in the proceeding; she also

refused to obey a court order that the child be produced in Pakistan. The Pakistani judge

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considered a written statement submitted by the mother detailing certain unsavory

aspects of the husband’s character, but nonetheless awarded custody to the father. Using

private detectives, the father located the mother and child in Maryland some two years

later. The mother then brought suit in Maryland requesting custody while the father

sought enforcement of the Pakistani order that had granted him custody. Under United

States law—in this case, state law—(and state law today is either the Uniform Child

Custody Jurisdiction Act (“UCCJA”) or the Uniform Child Custody Jurisdiction and

Enforcement Act (“UCCJEA”))—it is clear that Pakistan would be the “home state” of the

child. Under the Uniform Act provisions—as well as general principles of private

international law—it is the home state or state of habitual residence that is the

appropriate court to hear a custody jurisdiction case; moreover, under those Acts, the

decree of the state or country of habitual residence is entitled to recognition and

enforcement. By way of resistance to enforcement, the mother attempted to show that the

Pakistani court did not apply the “best interests” of the child test in awarding custody

and, thus, that the order of the Pakistani court should not be enforced on public policy

grounds. Under the new UCCJEA, now in force in most U.S. states, enforcement of

foreign country custody orders is required unless the “child custody law of a foreign

country violates fundamental principles of human rights.” […] the Maryland court

explained: “a Pakistani court could only determine the best interest of a Pakistani child

by an analysis utilizing the customs, culture, religion, and mores of the community and

country of which the child and—in this case—her parents were a part, i.e., Pakistan.”

Thus, the Maryland court refused to rehear the custody issues and enforced the Pakistani

judgment. The court believed that to do otherwise would be to encourage circumvention

of the laws of the home state through the abduction of children to a place that would

award custody on a basis more in harmony with the fugitive’s interests. The court’s

decision in Hosain adopts a strict rule of deference and enforces the decree of the court of

a country that was both the child’s habitual residence and the country of citizenship of all

the parties involved. Although one is always moved to take account of the child’s

interests and to protect the child at all costs, “best interests” is an amorphous concept

filtered through the customs and mores indigenous to a particular society; cultural

relativism cannot be completely ignored. Those who would look to the United Nations’

Convention on the Rights of the Child for guidance will not find any clear solution.

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TEXTO 38: What is the Hague Convention on the Civil Aspects

of Child Abduction? Fuente:http://www.justice.govt.nz/courts/family-court/what-family-court-does/hague-convention#fc53

What is the Hague Convention on the Civil Aspects of Child Abduction

The Hague Convention on the Civil Aspects of Child Abduction is an international treaty that aims

to ensure that children who are abducted or wrongfully retained by a parent will be returned as

quickly as possible to the country in which they habitually reside so that issues of parental

responsibility can be resolved by the courts in that country.

The basic principles of the Convention are that:

The rights of the child are the primary consideration;

Custody of the child (which includes day to day care) should be determined in the country

where the child usually lives;

Children should not be taken or kept overseas without the prior agreement of other people

who are entitled by law to give their consent. If these people refused to consent, the correct

thing would have been to seek the consent of the Court in New Zealand BEFORE the child

was taken overseas.

If a child is abducted from New Zealand, the child is returned to New Zealand so that issues of

parental responsibility can be resolved by the Family Court. If a child is wrongfully retained in

New Zealand, the child is returned to their country of habitual residence.

The Hague Convention assumes that the courts in the child's country of habitual residence are best

able to make decisions about the best interests of the child.

The Convention sets up a Central Authority in each country to deal with applications for the return

of children taken to or from each country. The Chief Executive of the Ministry of Justice is the

Central Authority for New Zealand.

What are the aims of the Hague Convention?

The Convention allows parents to seek the return of children who are wrongfully retained in

another country, for example at the end of a contact visit.

Further, the Convention allows parents to seek assistance in obtaining contact with their

children who live with another parent overseas

What are the requirements for a successful application for the return of my Child?

To ensure that a child can be returned from another Hague Convention Country the following

requirements must be met:

Your child must be under 16 years old;

You must have had "rights of custody" over the child; (It is not always necessary for you to

have a Court order giving you day-to-day care of (custody) or contact with (access), or

guardianship of your child. However you must have a right to determine where the child is to

live). Most natural parents in New Zealand automatically have rights to guardianship. Even if

you do not have day-to-day care of your child, you may still have enough rights under the

Hague Convention to ask for your child to be returned to New Zealand.)

93

You must have been exercising the rights you had in relation to your child when the child was

taken out of New Zealand. (For example, if you had contact (access) rights, you were using

these rights to spend time with your child, and you can no longer do this);

Your child must have been habitually resident in New Zealand right before the child was

taken overseas;

Your child has been taken to or retained in a country which is a party to the Hague

Convention;

Your child must have been taken or retained out of New Zealand without your prior consent

or the consent of the Court.

If these conditions are satisfied, you may be able to ask for your child to be brought back to New

Zealand through the government authorities.

In some cases, the person who took your child out of New Zealand will oppose the child being

returned to New Zealand, and the Court will consider their reasons for doing this.

If you want to seek the return of your child, it is important to take action as soon as you discover

that the child has been taken from New Zealand or kept overseas. Any delay may later be seen as a

lack of concern about the child being overseas.

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UNIDAD 12:

DERECHO INTERNACIONAL PÚBLICO

Texto.39: Researching Public International Law. Definitions

Texto 40: The International Court of Justice (ICJ)

Texto 41: Principles of International Law Recognized in the UN

Charter- Nüremberg

95

Texto 39: -Researching Public International Law -Definitions

Source:www.library.law.columbia.edu

Public International Law - (Introduction)

Definitions of International Law Columbia University-Law School

Public International Law is the law of the political system of nation-states. It is a distinct and

self-contained system of law, independent of the national systems with which it interacts,

and dealing with relations which they do not effectively govern. Since there is no overall

legislature or law-creating body in the international political system, the rules, principles,

and processes of international law must be identified through a variety of sources and

mechanisms. This can make international law appear difficult to pin down. Students and

scholars in the United States often use the Restatement of the Law (Third), the Foreign

Relations of the United States as a guide to identifying international law as applied in the

US.

ALI Restatement 3rd, Section 101, International Law Defined:

"International law, as used in this Restatement, consists of rules and principles of general application dealing with the conduct of states and of international organizations and with their relations inter se, as well as with some of their relations with persons, whether natural or juridical."

From the Oxford English Dictionary:

"[I]nternational law, the law of nations, under which nations are regarded as individual members of a common polity, bound by a common rule of agreement or custom; opposed to municipal law , the rules binding in local jurisdictions."

Institutions Involved in the Process

As international law developed in the 17th and 18th centuries, it was widely understood that

it was a tool for relations between nation-states. Individuals had no role in the process which

resolved disputes between states except as representatives of the states, such as diplomats or

naval officers. The classic ‘player’ is the sovereign body of the nation in whatever form it

takes for a given state. It can be the President, Prime Minister, King, or Queen, but it is now

often the bureaucratic representation of the sovereign power, such as the State Department,

the Foreign Ministry, the military, etc. Until the middle of the 20th Century, international

law consisted primarily of custom. More recently, customary international law has been

increasingly codified.

While that part of the governmental entity charged with foreign relations will have the lead

role in developing international law for the country, in practice each subunit of a government

has some ability to create what can be recognized as International Law. In the United States,

for example, the Executive Branch (acting through the State Department) may sign a treaty,

but the President ratifies it with the "advice and consent" of the Senate, and the Congress as

a whole may pass laws implementing it. In addition, administrative agencies can make and

96

enforce regulations implementing the treaty and the statutes, and the courts can interpret any

of the above and use non-treaty related international law as an exercise of their judicial

power.

On the global scale, international organizations such as the United Nations and the European

Union have become extremely important as forums for creating international law. The most

recent development in this area has been the recognition that there is a role, within the sphere

of public international law, for individuals to pursue remedies against sovereign nations.

Identification of Authoritative Texts

The Charter of the United Nations establishes the International Court of Justice (ICJ) as the

principal judicial organ of the UN. The treaty which establishes the ICJ is informally known

as the “Statute” . Article 38 of this "Statute" furnishes an indirect answer to the question:

What are the texts of international law? The article is written in terms of what sources the

court will use in order to resolve a dispute. These sources include treaties, customary law,

case law, academic writings, and general principles of law. Article 38 reads:

"1. The Court, whose function is to decide in accordance with international law such disputes as are submitted to it, shall apply:

a. international conventions, whether general or particular, establishing rules expressly recognized by the contesting states; b. international custom, as evidence of a general practice accepted as law; c. the general principles of law recognized by civilized nations; d. subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified publicists of the various nations, as subsidiary means for the determination of rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono , if the parties agree thereto."

A different presentation of these ideas can be found in the Restatement of the Law 3d:

Foreign Relations Law of the United States , Articles 102 (Sources of International Law) and

103 (Evidence of International Law).

§ 102 Sources of International Law (1) A rule of international law is one that has been accepted as such by the international community of states (a) in the form of customary law; (b) by international agreement; or (c) by derivation from general principles common to the major legal systems of the world. (2) Customary international law results from a general and consistent practice of states followed by them from a sense of legal obligation. (3) International agreements create law for the states parties thereto and may lead to the creation of customary international law when such agreements are intended for adherence by states

97

generally and are in fact widely accepted. (4) General principles common to the major legal systems, even if not incorporated or reflected in customary law or international agreement, may be invoked as supplementary rules of international law where appropriate. § 103 Evidence of International Law (1) Whether a rule has become international law is determined by evidence appropriate to the particular source from which that rule is alleged to derive (§ 102). (2) In determining whether a rule has become international law, substantial weight is accorded to (a) judgments and opinions of international judicial and arbitral tribunals; (b) judgments and opinions of national judicial tribunals; (c) the writings of scholars; (d) pronouncements by states that undertake to state a rule of international law, when such pronouncements are not seriously challenged by other states.

Since the adoption of the ICJ statute in 1946, the post World War II growth of a wide variety

of Inter-Governmental Organizations (IGOs) has injected the work product of these IGOs

into the mix as well.

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Texto 40: The International Court of Justice (ICJ) Fuente:www.icj-cij.org

INTERNATIONAL COURT OF JUSTICE (ICJ)

1. What is the International Court of Justice?

The Court is the principal judicial organ of the United Nations. It was established by the United Nations Charter, signed in 1945 at San Francisco (United States), and began work in 1946 in the Peace Palace, The Hague (Netherlands).

The Court, which is composed of 15 judges, has a dual role: in accordance with international law, settling legal disputes between States submitted to it by them and giving advisory opinions on legal matters referred to it by duly authorized United Nations organs and specialized agencies.

The official languages of the Court are English and French.

2. Who may submit cases to the Court?

Only States are eligible to appear before the Court in contentious cases. At present, this basically means the 192 United Nations Member States.

The Court has no jurisdiction to deal with applications from individuals, non-governmental organizations, corporations or any other private entity. It cannot provide them with legal counselling or help them in their dealings with the authorities of any State whatever.

However, a State may take up the case of one of its nationals and invoke against another State the wrongs which its national claims to have suffered at the hands of the latter; the dispute then becomes one between States.

3. What differentiates the International Court of Justice from the International Criminal Court and the ad hoc international criminal tribunals?

The International Court of Justice has no jurisdiction to try individuals accused of war crimes or crimes against humanity. As it is not a criminal court, it does not have a prosecutor able to initiate proceedings.

This task is the preserve of national courts, the ad hoc criminal tribunals established by the United Nations (such as the International Criminal Tribunal for the former Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR)) or in co-operation with it (such as the Special Court for Sierra Leone), and also of the International Criminal Court, set up under the Rome Statute.

4. How does the International Court of Justice differ from other international courts?

The International Court of Justice differs from the European Court of Justice (the seat of which is in Luxembourg), whose role is to interpret European Community legislation uniformly and rule on its validity, as well as from the European Court of Human Rights (in Strasbourg, France) and the Inter-American Court of Human Rights (in San José, Costa Rica), which deal with allegations of violations of the human rights conventions under which they were set up. As

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well as applications from States, those three courts can entertain applications from individuals, which is not possible for the International Court of Justice.

The jurisdiction of the International Court of Justice is general and thereby differs from that of specialist international tribunals, such as the International Tribunal for the Law of the Sea (ITLOS).

Lastly, the Court is not a supreme court to which national courts can turn; it does not act as a court of last resort for individuals. Nor is it an appeal court for any international tribunal. It can, however, rule on the validity of arbitral awards.

5. Why are some disputes between States not considered by the Court?

The Court can only hear a dispute when requested to do so by one or more States. It cannot deal with a dispute of its own motion. It is not permitted, under its Statute, to investigate and rule on acts of sovereign States as it chooses.

The States concerned must also have access to the Court and have accepted its jurisdiction, in other words they must consent to the Court"s considering the dispute in question. This is a fundamental principle governing the settlement of international disputes, States being sovereign and free to choose the methods of resolving their disputes.

A State may manifest its consent in three ways:

- A special agreement: two or more States in a dispute on a specific issue may agree to submit it jointly to the Court and conclude an agreement for this purpose;

- A clause in a treaty: over 300 treaties contain clauses (known as compromissory clauses) by which a State party undertakes in advance to accept the jurisdiction of the Court should a dispute arise on the interpretation or application of the treaty with another State party;

- A unilateral declaration: the States parties to the Statute of the Court may opt to make a unilateral declaration recognizing the jurisdiction of the Court as binding with respect to any other State also accepting it as binding. This optional clause system, as it is called, has led to the creation of a group of States each having given the Court jurisdiction to settle any dispute that might arise between them in future. In principle, any State in this group is entitled to bring one or more other States in the group before the Court. Declarations may contain reservations limiting their duration or excluding certain categories of dispute. They are deposited by States with the Secretary-General of the United Nations.

6. Are decisions of the Court binding?

Judgments delivered by the Court (or by one of its Chambers) in disputes between States are binding upon the parties concerned. Article 94 of the United Nations Charter lays down that "each Member of the United Nations undertakes to comply with the decision of [the Court] in any case to which it is a party".

Judgments are final and without appeal. If either of the parties challenges their scope or meaning, it has the option to request an interpretation. In the event of the discovery of a fact hitherto unknown to the Court which might be a decisive factor, either party may apply for revision of the judgment.

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As regards advisory opinions, it is usually for the United Nations organs and specialized agencies requesting them to give effect to them or not by whatever means are appropriate for them.

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Texto 41: -Principles of International Law Recognized in the UN Charter _ Nüremberg .. Fuente: www.legal.un.org/ola

Principles of International Law Recognized in the Charter of the

Nüremberg Tribunal and in the Judgment of the Tribunal

1950

Text adopted by the International Law Commission at its second session, in

1950 and submitted to the General Assembly as a part of the Commission’s

report covering the work of that session. The report, which also contains

commentaries on the principles, appears in Yearbook of the International Law

Commission, 1950, vol. II, para. 97.

Copyright © United Nations

2005

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Principles of International Law Recognized in the Charter of the Nüremberg Tribunal and

in the Judgment of the Tribunal

Principle I

Any person who commits an act which constitutes a crime under

international law is responsible therefor and liable to punishment.

Principle II

The fact that internal law does not impose a penalty for an act which

constitutes a crime under international law does not relieve the person who

committed the act from responsibility under international law.

Principle III

The fact that a person who committed an act which constitutes a crime

under international law acted as Head of State or responsible Government

official does not relieve him from responsibility under international law.

Principle IV

The fact that a person acted pursuant to order of his Government or

of a superior does not relieve him from responsibility under international

law, provided a moral choice was in fact possible to him.

Principle V

Any person charged with a crime under international law has the right to a

fair trial on the facts and law.

Principle VI

The crimes hereinafter set out are punishable as crimes under

international law:

(a) Crimes against peace:

(i) Planning, preparation, initiation or waging of a war of

aggression or a war in violation of international treaties, agreements or

assurances;

(ii) Participation in a common plan or conspiracy for the

accomplishment of any of the acts mentioned under (i).

(b) War crimes:

Violations of the laws or customs of war which include, but are not

limited to, murder, ill- treatment or deportation to slave-labour or for

any other purpose of civilian population of or in occupied territory,

murder or ill-treatment of prisoners of war, of persons on the seas,

killing of hostages, plunder of public or private property, wanton

destruction of cities, towns, or villages, or devastation not justified by

military necessity.

(c) Crimes against humanity:

Murder, extermination, enslavement, deportation and other inhuman

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acts done against any civilian population, or persecutions on political,

racial or religious grounds, when such acts aredone or such persecutions

are carried on in execution of or in connection with any crime against

peace or any war crime.

Principle VII

Complicity in the commission of a crime against peace, a war

crime, or a crime against humanity as set forth in Principle VI is a crime

under international law.