University of Concepción Law Review

ACTION FOR MORAL DAMAGES AND CONTINUATION OF THE PROCESS BY THEIR HEIRS

Ramon Horace Dominguez-Aguila — Tue, 31 Dec 2024 00:00:00 -0500

This paper analyzes a ruling from the Supreme Court that resolves an issue that had not been decided previously: the transmissibility of the action for compensation for moral damage when, having been filed while alive by the victim, he or she dies in the course of the instance. The opinion of the national doctrine on the matter is reviewed, its relationship with the transmissibility of moral damage, and exposing its position in order to recognize that, if the plaintiff in an action for reparation of moral damage dies after the procedural relationship has been established, The trial will continue and his heirs will collect the proceeds of the trial, because a procedural substitution will have occurred.

ABSENCE OF CITIZEN PARTICIPATION AND INDIGENOUS CONSULTATION ON HYDROBIOLOGICAL RESOURCES AS A CAUSE FOR REJECTION OF GAS PIPELINE PROJECT

Sergio Pena-Neira, Patricio Araya-Meza, Ignacio Canales-D'arcangeli — Tue, 31 Dec 2024 00:00:00 -0500

This case commentary analyzes the omission of consultation of indigenous people when adverse effects on natural renewable resources of hydrobiological nature are effective sources of food for members of these indigenous people. When the judicial appeal was accepted, it was funded directly in the violation of standards of the indigenous consultation, the way of life and the legitimation of the indigenous consultation and indirectly in the accomplishment of the indigenous consultation procedure.

EDITORIAL

Veronica Delgado-Schneider, Gamalier Caniuqueo-Burgos, Valentina Llanos-Munoz — Tue, 31 Dec 2024 00:00:00 -0500

Editorial of issue No. 256 of the University of Concepción Law Review, dedicated to the memory of the Civil Law Professor Hernán Troncoso Larronde (R.I.P.), includes a brief presentation of the works published in this issue by the Editorial Team of the Journal.

FOR THE REVOCATION OF THE WILL BY PUBLIC DEED

Carlos Pena-Gonzalez, Carlos Pizarro Wilson — Tue, 31 Dec 2024 00:00:00 -0500

This paper defends the thesis that the will can be revoked by a public deed stating the explicit and unequivocal will of the deceased to render it void. The traditional thesis that only admits revocation by another will is discussed. It is maintained that there is no prohibition in the chilean Civil Code against it being carried out in any other way, nor is it stated that it can only be carried out by another will. When verifying the existence of a regulatory gap, the legal system must be completed or integrated with the principles that inspire inheritance law and our thesis is also corroborated by article 1135 of the chilean Civil Code regarding the alienation of the legacy.

THE CHILEAN ATTORNEY-CLIENT PRIVILEGE AND MONEY LAUNDERING

Johann Sebastian Benfeld Escobar — Tue, 31 Dec 2024 00:00:00 -0500

This article deals with the conflict that exists between the right-duty of professional secrecy of lawyers in Chile and the control by the public authority of money laundering. The current regulatory framework of the problem is presented, showing the reasons for limiting the lawyer's professional secrecy, the complexities of this task and the current control mechanisms in our country.

THE ILLEGAL MIGRANT TRAFFICKING IN CHILE

Karen Sanhueza-Sepulveda — Tue, 31 Dec 2024 00:00:00 -0500

Chile has experienced exponential growth in migration flows over the last decade, largely characterized by irregular migration. This has facilitated the development of trafficking networks run by organized criminal groups, exacerbating the violation of human rights of the migrant population. In this context, the article analyzes how certain policies have influenced the increase in irregular migration, migrant trafficking, and violations of their fundamental rights. Based on this contextual analysis, the study focuses on the criminal type of article 411 bis of the Penal Code, evaluating its adequacy to international standards to effectively punish this crime, and the consideration of the migrant as a victim and not only as an object of the crime, using at the same time the Spanish criminal type as a point of comparison. Based on what has been developed, adjustments to the criminal type are proposed in the area of ??its subjective element and in the established aggravating factors, as well as the incorporation of an exemption from liability.

THE SHORT ISAPRES LAW AND EXCLUSION OF MUTUAL FINANCING

Rafael Plaza-Reveco, Camilo Aguilera-Ramirez — Tue, 31 Dec 2024 00:00:00 -0500

This research addresses how the ISAPRES Short Law makes possible to comply with November 2022 Supreme Court´s rulings which compel ISAPRES to apply the Health Authority´s "Single Table of Factors" and to reimburse affiliates excess charges derived from using their own tables of risk factors, and compares it against a different mechanism to afford financial costs associated to high risk factors: the mutualization. The research delves into the viability and implications of mutualization as an alternative to finance health benefits and contributes to public debate and decision-making processes regarding potential long-term or structural reforms to the private health system and equitable access to health benefits and financing ideas based upon the principle of solidarity.

ANALYSIS OF THE INTERNATIONAL PUBLIC ORDER RULE OF THE BUSTAMANTE CODE

Esteban Busch Montanares — Tue, 31 Dec 2024 00:00:00 -0500

The work analyzes the international public order norm existing in the Code of Private International Law, as a public order control mechanism in force in the conventional source norm, and which shares a common origin with the exception of international public order collected in a form limited in it, and which in turn is accepted at a doctrinal level in the system of Private International Law of Chile from an autonomous source, in which it manifests itself as a limit to the application of foreign Law, exposing the field of application of each one of these institutions, so that they can be functionally articulated.

ARBITRAL CLAUSES IN GROUPS OF CONTRACTS

Lucas Villagrán Gajardo — Tue, 31 Dec 2024 00:00:00 -0500

The purpose of this paper is to analyze the subjective scope of the arbitration clause in groups of contracts, as a consequential analysis of the objective extension of the commitment. First, the institution of groups of contracts is described, conceptualizing the common economic purpose as the essential element of this figure and the ways of identifying it (I). Next, the objective extension of the arbitration clause in the context of linked contracts is addressed, observing the characterization of the common economic purpose and the connection between the contracts that has been appreciated by the relevant case law in this area (II). After that, the subjective extension of the clause is dealt with, as a consequential problem of the objective extension of the clause (IV). As will be seen, in some cases the justification for the subjective extension of arbitration clauses in groups of contracts seems to have been overlooked. A general outline is presented in the light of the conclusions of the paper.

IDENTIFYING AND INTERPRETING THE TERMS OF THE ARBITRATION AGREEMENT

Miguel Jose Dibarrart Ferrada — Tue, 31 Dec 2024 00:00:00 -0500

This article (in english) will focus on identifying the main differences among the principal legal systems or traditions of contract law in providing rules or principles to identify and construe contractual terms, and their relevance to identifying and construing the terms of arbitration agreements. From an Anglo-Saxon and comparative perspective this article will identify some consequences of applying the appropriate law for the issue of identification and interpretation of the terms of arbitration agreements. We assume that the application of contract law principles is the main area of the law which claims for application. We concluded, among other ideas, that once these terms of the arbitration agreement have been identified, to interpret them, the main differences to consider are the interpreter’s goal (subjective versus objective method of interpretation) and the existence of detailed rules of interpretation or statutory guidance to judges.

HUMAN RIGHTS AND ENVIRONMENTAL OBLIGATIONS OF FOREIGN INVESTORS IN THE FRAMEWORK OF INTERNATIONAL INVESTMENT ARBITRATION

Paula Cortés González — Tue, 31 Dec 2024 00:00:00 -0500

The purpose of this work is to demonstrate the tendency that exists in current international investment law to establish obligations for foreign investors in order to try to fill the existing gaps regarding the lack of regulations regarding human rights and environmental violations that they may commit within the framework of their investments.