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LECTOCOMPRENSION

INGLÉS
MATERIAL DIDÁCTICO
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
DEPARTAMENTO DE IDIOMAS técnicas de comprensión lectora en lengua
extranjera
De

FACULTAD DE DERECHO
UNIVERSIDAD DE BUENOS AIRES

AÑO 2014

0
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.

23
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
24
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.

25
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)

26
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 plai ntiff 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 co mpensate 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 tri al.

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 medi ation, 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 wit h 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


27
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.

28
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 litigant 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 litigant 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.

29
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 time — 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 litigant 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 g rant 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.

30
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.

31
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.

32
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.

33
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.

34
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.

35
36
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

37
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 IN DICTMENT, 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
38
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 PROCEEDIN GS
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

39
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.

40
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

41
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.

42
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.

43
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.

44
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 ac quire 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
investigat ive 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 phy sician’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
45
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 Al Capone’s criminal record and
tax evasion charges. fingerprint card
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.
46
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.

47
UNIDAD 6

DERECHO COMERCIAL
(TÍTULOS NEGOCIABLES)

Texto 19: Negotiable Instruments Law: An Overview


Texto 20: Business Law Today: Essentials
Texto 21: Negotiable Instruments

48
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.)

49
Texto 20: Business Law Today: Essentials
Fuente: "Business Law Today" (9th edition). Roger Miller & Gaylord Jentz (2011) págs 391-392.
Southwestern Cengage Learning,

50
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.
51
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

52
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

53
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.

54
Texto 23: Major Forms of Business Compared

55
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

56
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.

57
UNIDAD 8:

DERECHO DE FAMILIA

Texto 25:Marriage
Texto 26: Florida´s Adoption Information Guide
Texto 27: Grounds for Divorce

58
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.

59
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

60
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

61
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 policy. 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 still 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 crime or imprisonment for a certain
number of years in a state prison or penitentiary is ground for divorce.
Extreme Cruelty The courts of some states have become quite liberal in
interpreting the word “cruelty.” It may include acts of violence; 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 desertion as a voluntary separation of one
spouse from the other without c onsent, without justification and with the intention
of not returning.
Fraud Seven states list fraud as a ground for divorce, if it involves the
concealment of something that was, in those states, essential to the validity of
the marriage itself. The follo wing 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, although sane at the time 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 list insanity or idiocy as grounds for divorce, and a
few states include mental incapacity at the time of the marriage.

62
UNIDAD 9:

DERECHO SUCESORIO

Texto 28: Inheritance Law


Texto 29:. What is Probate?
Texto 30:.Uniform Succession Laws: Intestacy

63
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. The re 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

64
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 counter parts.

65
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 time 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 b eneficiaries.
66
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 ta x 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 w ho 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.

67
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 exec utor, 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 time 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

68
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 sur vivorship rights passes automatically to
the survivor, and is not subject to the Will or probate proceedings.

69
TEXT 30: Uniform Succession Laws: Intestacy
Fuente: http://www.lawlink.nsw.gov.au/lrc.nsf/pages/ip26chp07

7. Distribution when no relatives are entitled


BON A V AC ANTI A

7.1 Bona vacantia is the Crown’s st atutory right to the property of an intestat e
estate, to which no relat ives are ent itled. In most jur isdictions when the
intestat e is not sur vived by a spouse or partner, issue, parents or remoter
eligible r elatives, the Crown (or “Territor y”) is ent itled to the intestat e’s estat e
by bona vacantia.

7.2 The possibilit y of an intestate’s estat e passing t o the Crown may not be so
unlikely as it once was, given the reduction in the size of the average f amily in
Australia and the higher incidence of single child f amilies. The f ollowing
hypothetical example illustrates 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 all of his
grandparents had pr edeceased him.

A f urther example m ay be f ound in a 1991 case where one third of the large
estate of an elder ly woman ( w ho lef t no r elat ives entit led on intestacy) went on
partial intestacy to the Crown, contrar y to her intent ion, because her will was
badly drawn.

7.3 In the Australian Capital Territor y, conditions are imposed upon the public
trustee wher e the Territor y is entit led to an intestate estate. The estate must
be held in trust unt il six years have passed since the date of death of the
intestat e. At that point the estate must be sold and the proceeds paid to the
Territory ( less all costs and charges lawf ully due to the public trustee or any
other person).

7.4 An alternat ive proposal could be to enact a provision whereby the


intestat e’s estate g oes to a char it y or charit ies r ather than to the Crown. In
1985 the Law Ref orm Commission of Tasmania noted:

The Commission believes that most people would pref er their estate to go to
charit y t han to the Crown, given t hat no close f amily exist at the time of their
death. Alt hough many people m ight obj ect to the propert y going to the State
rather than to relat ives of the deceas ed, they are less lik ely to object to it
going to charit y.

However, the Tasm anian proposal would involve the establishment of a


“Char ities Board” to distr ibute the f unds received. Unif orm national legislation
would then requir e the creat ion of a charities boar d in each jurisdiction. The
Law Commission of England and W ales was opposed t o such a proposal as the
chosen char it y would, then, also have t he 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 f ect 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 f airs Corporation is unable to determine that a ny
person is entit led to succeed to the estate or a part of the estate, that propert y
70
shall “ vest in the chief executive who shall apply the moneys or the proceeds
of the sale of any propert y (less the expenses (if any) of such sale) f or the
benef it of [Ab origines/Islanders] generally” under the schemes whereby the
chief execut ive may grant aid to Indigenous persons who apply f or it on such
terms as the chief executive may think f it.

ISSUE 7.1

Are the present provisions for the di sposal of intestate estate s w here no
relatives of the int estate are entitled to distribution under the rules of
intestacy satisfact ory?

PROVISION FOR DEPEND ANTS

7.6 A number of jurisdict ions allow the Crown to provide f or dependants f or


whom the intestate might have been reasonably expect ed to have m ade
provision, or who might be said to have a “moral claim” against the estate. I n
New South W ales the Crown Solicitor has published guidelines on the
procedure f or applications.

7.7 Such a provision was designed to include f oster children and “ will cover
also the situat ion of an old f riend, say, who looked af ter the intestate in the
last days of his lif e”. Such a provision could also be used, albeit in limit ed
circumstances, to provide f or step childr en of the intestate who are oth er wise
not entit led to distr ibution on intestacy.

7.8 The provision can be seen to be stat utory recognition of the common law
right “of certain dependants of the intest ate who, although not ent itled at law,
may nevertheless petit ion the Crown f or a waiver of its rights of bona
vacant ia in any estat e in respect of which there are no legal next of kin”. It has
been noted, at least in New South W ales, that the provision allowing
dependants to make application was of particular importance to de f acto
couples, both heter osexual and same -sex, bef ore the ref orms of 1984 and
1999 respectively, since they could not apply under f amily provision
legislat ion.

7.9 Certoma has criticised the discr etionar y nature of this provision and
argues that, at least in New South W a les, “…it implies that the intestate would
not reasonably have been expected to make provision f or a relative as close
as a f irst cousin. It would, one would suspect, be diff icult to imagine that any
testator would pref er the Crown as bona vacantia rather than to benef it his
closest relatives.”

7.10 It can be argued that such a provision is no longer necessar y given the
broader scope of f amily pr ovision legislation to cover dependants. In any case,
the recommendat ions of the National Committee in relation t o f amily provision
would appear to cover the situat ion, whereby a person, whet her or not they are
a member of the f amily of a deceased person, may apply f or a f amily provision
order if they are “a person to whom [the] deceased person owed a
responsibilit y to pr ovide maintenance, educat ion or advancement in lif e.” In
making a f amily provision order in r elation t o such an application, the court
may have regard to whether the applicant “ was being maintained, either wholly
or partly, by the deceased person bef o re the deceased person’s death”.

7.11 It is important to dist inguish bet ween the nat ure of an application under
f amily pr ovision and the nature of an applicat ion f or provision out of bona

71
vacant ia. In the case of a claim f or 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 maint ained by the deceased or over whom t he deceased had
responsibilit y. In t he case of an applicat ion f or provision out of bona
vacant ia application may be made by a person who has a pur ely moral claim to
a share of the estate, f or example, f oster children.

ISSUE 7.2

Should unif orm legislation allow persons to petit ion the Crown to make
provision f or them out of bona vacant ia?

ISSUE 7.3

If so, what cr iter ia should be used to identif y the people who are ent itled to
apply?

72
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)

73
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
74
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.

75
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
76
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.

77
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.

78
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

79
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,
80
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.

81
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 pl aintiffs 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
82
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.”
83
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 ha ndled 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 neglig ence “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 pr oximate 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 th e 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.

84
The judge granted summary judgment for Dunkin’ Donuts and its
franchisee who served the c offee 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 u nreasonably 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 th e 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 comp onents 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 “c eramicist” 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.”

Questions or comments may be directed to th e writer at jcunningham@lawyersweekly.com.

P l a i n ti f f G a i l G u a y
s u f f e r e d s e c on d -
d e g r e e bu r n s on h e r
f o o t d u e t o a c of f e e
bu r n .
G u a y ’ s c a s e r e c e n tl y
survived summary
j u d g e m e n t i n s ta t e
D i s tr i c t C ou r t.

85
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?

86
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.

87
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.

88
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.

89
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

90
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.

91
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.)

92
 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.

93
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

94
Tex to 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

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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
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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 _ N üremberg ..
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.

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