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

The arbitration agreement has its origin, by nature, in the free will of the parties who want to summit their controversies to arbitration, instead of the ordinary jurisdiction. However, in the case of the public contracts, the arbitration agreement does not have the same characteristics of free will, as they have in civil contracts, precisely because of the public nature of the authority, which means that they are subject to the legality principle instead of having free will. In this paper I will try to prove that, as a consequence of it, our legal framework produces one-sided arbitration agreements which benefit the public authorities who draft those agreements. In fact, the lack of possibilities for the contracting party to negotiate the content of the agreement allows the public authority to draft such content in a way that only benefit them and negatively affects the contractor, creating a situation of inefficiency. The legislator, aware of the problem, has enacted rules that seek to recognize rights to the bidder and restrict the discretionary powers of the authority; however, those measures are not good enough. In this scenario, I propose a solution which requires legal regulation in the content of the aforementioned agreements, in a way that can be granted, from an ex-ante regulation, that the arbitration agreement will be balanced.

In the Peruvian practice of international law, the universe of international agreements is not reduced merely to treaties. In that context, this article seeks to examine the international instrument par excellence that is celebrated between public entities of at least two States. Such accord, within the framework of Peruvian legislation, is called «interinstitutional agreement».First, this paper will study the main characteristics of this kind of agreement with the purpose of identifying its legal nature. Subsequently, it will examine some of the main challenges the use of an interinstitutional agreement faces: (1) the difficulty of classifying an interinstitutional agreement as a legal norm within the Peruvian system of law sources; (2) the possible confusion with other international instruments, such as twinning arrangements (a kind of interinstitutional agreement), memoranda of understanding or collaboration agreements; (3) the possible consequences than an interinstitutional agreement infers in regard to the commission of an international illicit act in the sphere of the international responsibility of the State. 

«Law and Literature» names a space of encounter between the strangest objects and disciplines. That space took the form of the «Law and Literature movement», and since the 70s, it has evolved, grown and expanded into multiple directions. The importance of «law and literature» can be measured in terms of this expansion, but also considering the profound debts to the movement held by many legal scholars and many of the most important discussions in the field of law. This paper reconstructs the trajectory of the law and literature movement in order to show the importance of this discussion in the legal field since the institutional foundation in the 70s to the first years of the new millennium.

The Salvadoran State, by virtue of the international principle of State sovereignty, submits the migratory flows of people both in and out of the country to the maximum control. All Salvadoran legal instruments of migration and aliens in force today are the result of this maximized control of the population. They are anachronistic legal norms and some of them even pre-constitutional, which do not respond to the current Salvadoran social reality. At the present, an Act is pending for the consolidation of all migration and foreign legislation.

This article proposes an annotated review of «De liberalitate et parsimonia», chapter XVI of Nicholas Macchiavello’s The Prince. It addresses how the Florentine author exposes the exceptionalities of misery and liberality as a mechanism of adaptation and interpretation of political reality. Both misery and liberality are part of a schema that expresses the nuances, exceptions, and twilights of real politics as well as the limits of human virtues.Also, this article dialogues with other Macchiavello’s texts (letters and Discorsi) and other chapters of The Prince.

It is undeniable that over the last decades the idea of alternative dispute resolution (ADR) started to receive more attention. In this sense, such aspect has been recurrently confronted with the guarantee of access to justice, verifying their compatibility. The present study observes this element, investigating, specifically, the inevitable role that the techniques of online dispute resolution (ODR) might play in our reality. This, particularly, due to the cultural nature of civil procedure.

The treatment of the relicta pia (pious bequests assigning temporal goods to the purpose of salvation of the soul) in Nueva Granada in the eighteenth and nineteenth century, where properly studied according to its own dogmatic (a juridical one, originated in the Western canon of Roman descent), provides the opportunity to rethink the idea of secularization itself, as a form of transmission of material, juridical and political resources (land, iurisdictio), along the transition from the ancien régime to constitutional and legalist republics. The notion of «spiritual» or «spiritualized» goods, placed outside the commercium, among which land must be possibly included, as object of pious dispositions, refers to sacrum, the sacred, as an «antineutral» dimension of politics, law and justice; this dimension originates in the pignora of the pagan religio, a pactist and communitarian one, and lingers on in Christian relicta and relics, described and interpreted according to the set of concepts, principles and institutions of the ius commune, Roman and canonical, plural and casuistical; a system far from all blunt identification with the «law of the Catholic Monarchy», and whose rule continues for decades after the establishment of Republics in Hispanic America. In its effort to create modern «property», Bourbon laws intervene against customary and immaterial forms of gaining and circulating rights on land, neutralizing dispositives of the ancient sacrum, so announcing the transition of law to an abstract dimension, tending to depoliticization, due to legalism and positivism. The liberal State rising triumphant from the revolutions will eventually displace politics, previously established in rendering justice, to new territories, temporarily coextensive with the domains of (political) economy.

The nineteenth-century Spanish-American constitutionalism was inextricably related to the emancipatory process. The constitutional texts sought to establish limits to public powers that were forming in the independent territories, in mined paths of crossroads on which the newest historical and legal studies are elucidating motivations and objectives. From there, it is being discovered that constitutional projects did not ignored a four-hundred-yearold public order, but incorporated elements, subjects and above all, purposes: what is the objective of putting functions and limits to a public power separate from the domestic sphere? Can we trace the survival of an old domestic order —oeconomic— in the constitution, social and political order that should not be confused with the colonial fact? Therefore, it is important to periodize the constitutional journey, since although in the final products, the constitutions that came into force in the nascent Latin American States, the traces of an old mentality are not easily discernible, in the earliest projects they were not only the view but they were determinants in the definition of the subject of law and in the values —catholic, oeconomic— that had to be protected. The nineteenth-century Spanish-American constitutionalism was inextricably related to the preeminent place of the Spanish householder, catholic and land owner. On nineteenth-century Spanish-American constitutionalism, the prescriptive capacity of the catholic economy has weighed, like a sword of Damocles, for the determination of juridical principles.To highlight this hypothesis, it is necessary to perform an almost archaeological tracking of concepts and themes in the first debates on the fundamental law and the resulting texts. For this, we have chosen a provincial constitution, that of the province of Tucumán, written in 1820. Located halfway between the Peruvian space and the River Plate, Tucumán wanted to insert itself in the debate on the formation of the State by dictating its own constitution, as cover letter for a game of powers that was yet to be defined.

In the province of Córdoba, a policy of dismantling the lands occupied by indigenous communities started to be implemented at the end of the nineteenth century. After the passing of two statutes in 1881 and 1885, the government of Córdoba started, after failed attempts, to initialize the disassembly of these lands. The aim of this paper is to analyze the process of private property construction by considering the articulation of local norms and the articles of the Civil Code. It then undertakes the study of the implementation of these provincial laws and the Civil Code in the community of Soto and attempts to show the different actors and norms that were implemented to build the legal category of private property.

In 1570 the Spanish Crown decided to create, in the overseas spaces, the Holy Office of the Inquisition in order to control, effectively, the religious manifestations of the people and their social behaviors, bringing intolerance towards those who had different practices. However, initially it had only two district courts installed in the viceroyalties capitals of Mexico and Peru. The other places, captaincies and governorates, were controlled by commissioners dependent on Mexico or Lima, as appropriate. In the case of the Government of Chile, several police stations were deployed between the two dioceses. However, they were not efficient enough to achieve the objectives proposed in the inquisitorial ideology, on the one hand because of precarious material, and on the other hand because of the lack of ad-hoc officials to fill the positions. This led to the Chilean Governorate experience a more laxed control than other imperial territories. However, the climate of fear and prejudice among the inhabitants permeated the society generating intolerance and discrimination through other perspectives and through other social control devices, which survived in the republic and allow to understand —partway— the intolerance and discrimination in the current Chile. The present article will make a tour of the installation of the Holy Office in America, the historiographic status of the studies related to the Inquisition in Chile, the possible lines of investigation and the hypotheses to be tested.