Sistema Regional de Información
en línea para Revistas Científicas de América Latina,
el Caribe, España y Portugal

Tratado de Fiscalidad Internacional para el EcuadorRomeo Carpio Rivera, Cesar Montaño Galarza, Pablo Villegas Landázuri (coords. 2019).Universidad Andina Simón Bolívar e Instituto Ecuatoriano de Derecho Tributario: Quito.

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This study analyzes the element of unlawful act in social media posts as events that cause an affectation to the right of honor and good name and could consequently cause moral damage. Initially, the unlawful act is distinguished from the wrongful act, as a necessary element for the damage to be configured. The speech or opinion analyzed must comply with requirements determined by international human rights standards regarding freedom of speech, in order to determine whether the act is unlawful or not. In this case, the standard consists of a tripartite test and the digital systemic perspective in order to verify the existence of an unlawful act that constitutes moral damage to be compensated. Similarly, the nature is briefly differentiated between the publications disseminated by its author and those in which the person who performs the act only shares the content created by a third person. This article evidences the lack of application of human rights standards in the classification of the damage and its pernicious consequences in the administration of justice in Ecuador. With this analysis, the judge will be able to determine the nature of the act in order to convict the defendant to repair damages or dismiss the alleged claim.  

The figure of impeachment in the United States and that of muerte cruzada in Ecuador are two political figures created with a double purpose. The first, is to demonstrate that there is a clear division of powers in the governmental sphere; and second, to serve as a checks and balances mechanism that controls the actions of the public power, especially those of the president of the nation. As such, these figures have an important role because they seek to maintain democracy and political, social and economic stability of the countries involved. The problem that arises when trying to put these tools into practice is that they clash with the power of the strongest political parties. Thus, its effectiveness is put at risk and the doubt of its true usefulness arises. This article will focus on analyzing how effective these figures have been to remove presidents from office. To achieve that end, research will be conducted, first of all, to define both figures and find a useful meaning in their existence; later, it will analyze if there are cases in which these political figures have been tried to be applied and if they succeeded or failed and, finally, determine if the figures in these countries are truly political tools to control public power, or if they are only rhetorical figures that have no practical use since there are barriers to their real and effective application.

The constitutional recognition of arbitration as an alternative mechanism for dispute resolution mechanism has fostered a relationship between this mechanism and the Constitution. In equity arbitration, arbitrators decide a dispute to the best of their knowledge, without having to rely on any legal norm. Nevertheless, arbitration in equity is closely related to the constitutional right to due process. This means that, in addition to having public order as a limit, its procedure must be in accordance with the provisions of the Arbitration and Mediation Law. Furthermore, despite not being based on substantive law, the award must necessarily be motivated, as it is subject to constitutional control. This analysis will take into consideration the standard of performance of the arbitrator in equity and will discuss its relationship with procedural law. It will also be determined whether or not the award in equity must be motivated. Finally, the possibility of constitutional control in this matter will be examined.

This paper analyzes smart contracts, which are characterized by their automatic execution through blockchain. Despite their automatic execution, these contracts are not exempt from disputes; and the controversies arising from them will be discussed in this paper. This article argues that arbitration has certain characteristics, particularly its detachment from legal orders, flexibility and confidentiality, which make it the ideal method for the resolution of disputes resulting from smart contracts; while it also analyzes how two platforms have developed dispute resolution mechanisms for them. In the light of the procedure adopted by these platforms and the General Theory of Arbitration, this investigation assesses the challenges involved in arbitrating this type of contracts.

Throughout the years, the civil liability"™s system has been conceived as a mechanism to avoid the victim from not being repaired for the damages that have been caused to it. However, there are situations in which the victim is an active participant in the self-infliction of its damage. For this matter, it has been attempted to determine whether the victim"™s participation in the damage falls into the hypothesis of contributory negligence or if it fits into the hypothesis of the victim"™s fault considering two of the elements that rule Torts Law: culpability and causality.

An uncomfortable reality, but openly accepted reality is that Latin American justice systems are far from being efficient. Ecuador is not the exception. And it is not that justice cannot be obtained from the State, but society has convinced itself that it may take time to arrive. Mechanisms such as precautionary measures seek to resolve this difficulty related to the delay in the processes resulting from the congestion of the jurisdictional services. In the legal environment, the answer to a problem can be the cause of many others, as a consequence of a legislation plagued with antinomies that can lead the subject of rights to a state of defenselessness. This is the reason why this article seeks to be an exposition of the pertinent regulations to the case, in order to lead the reader to a well-founded discussion about the ethical and legal implications regarding precautionary measures. First, an account of the development of similar measures in Ecuador will be provided, then seeking to ground the weaknesses of the exposed regulations, resolution 2015-10509 will be used. As this case is a health-related issue, specifically dialysis procedures, a review of the relevant legal regime will clarify how precautionary measures are connected to fundamental rights. Subsequently, the scope of the laws that regulate this guarantee will be retaken and the risk that the discretion that triggers possible abuses of the law will be evidenced, after which it opens the way to criticism and observation that the Ecuadorian legal regime, regarding this chapter, seems to mitigate its rigor. The sensitivity of the issue lies in the powers of an institution that allows the generation of prohibitions or forcing certain actions with direct impact on citizens without having a trial procedure involved.

Between one world and the other, between civil and commerce law, that"™s the juncture the sales contract, the most used legal instrument in exchange relationships to obtain goods, must face. Contracts perform the duty to set the rules that provide legal security to transactions, nonetheless, the legal regime that applies to that set of rules can be sometimes confusing, causing uncertainty and the loss of legal security. In Ecuador, two legal bodies are applicable at the moment in order to define the legal regime of the sales contract: the Civil Code and the Commerce Code. This double regulation provokes a large number of doubts not only for the contracting parties, who are not sure about which regime they must comply with; but also for legal actors such as judges, arbitrators and lawyers, who have the duty to determine which regime they must apply. The present work analyzes the historical development of the sales contract from civil law to commercial law due to the economic value of this institution. Additionally, the difficulty to determine de commerciality of a contract and the phenomena of generalization and commercialization are studied in order to identify current differences in some key aspects of the sales contract. Finally, some modern tendencies will be reviewed due to their contribution to solve these unnecessary differences in regulation and to reach the conclusion that a unified code of private law is the way to solve this and other inconsistencies in contracts.

The paper critically explores those scenarios (hypothetical, but probable) in which armed conflicts take place in outer space. First, the problem regarding the definition and delimitation of outer space will be analyzed. In this regard, the reasons why there is no consensus among the States, and even within the scientific community, will be explained. Subsequently, the relevant branches (for the topic) of Public International Law will be introduced (International Space Law, International Humanitarian Law, and Ius ad Bellum) and their key regulations will be identified. At this point, the main reasons why International Humanitarian Law shall be applied in the event that an armed conflict develops in outer space will be explained taking into account PIL formal and auxiliary sources. Likewise, specific challenges, that result from the application of International Humanitarian Law in outer space, will be exposed and analyzed. These challenges include: (i) attacks on dual-use objects; (ii) the obligations of the parties to the conflict when there is human direct or physical participation; and (iii) the applicable regulations for the development and use of new weapons. For each problem raised, possible solutions based on the rules and principles of current law will be provided. Finally, the need for the eventual creation of a specific treaty to regulate the matter will be emphasized, in view of the unique nature of this type of conflict.