The Universidad de San Andrés Law Review is a student-run organization whose main objective is the periodic publication of academic content related to different fields of law. Its main purpose is to contribute to the open debate of judicial ideas and enrich the practice of law in Argentina. In order to guarantee the quality of the publications, all writings are subjected to a rigorous peer review process, carried out by experts in the respective field.
Review of David Campbell, Contractual Relations – A Contribution to the Critique of the Classical Law of Contracts
Review of DDavid Campbell, Contractual Relations: A Contribution to the Critique of the Classical Law of Contracts (Oxford: Oxford University Press, 2022).
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Is the crime of self-money laundering punishable as an autonomous offense?
This paper aims to analyze the criminalization of self-money laundering, following its inclusion as a criminal offense in 2011. There has been significant doctrinal debate on how to interpret the punishability of this crime not only in our country as the modification stems from the requirements of the international group FATF. Arguments opposing its punishability, often related to concealment, rely on the thesis of post-facto co-punished crimes, the prohibition of self-incrimination, the unfeasibility of requiring a different behavior, or the existence of a state of necessity that could justify the conduct. This study will examine and critique these objections, ultimately concluding that self-money laundering, as currently regulated, is punishable as an autonomous offense.
Hacia una justicia aumentada: un análisis iusfilosófico de los desafíos de la inteligencia artificial en el sector judicial
Este trabajo analiza las transformaciones que la inteligencia artificial produce en la administración de justicia desde una perspectiva iusfilosófica. Se examinan las implicancias éticas y constitucionales de los sistemas de inteligencia artificial en el razonamiento judicial, con especial atención a las tensiones entre la automatización y los principios del Estado de Derecho. A partir del análisis del Reglamento de IA del Parlamento Europeo, se identifican insuficiencias regulatorias frente a los desafíos conceptuales que plantea la delegación de decisiones judiciales a sistemas automatizados. El artículo propone un modelo híbrido que preserve la centralidad del razonamiento humano en cuestiones valorativas, mientras se aprovechan las capacidades computacionales para tareas de menor complejidad. La filosofía del derecho emerge como disciplina para salvaguardar los valores democrático-constitucionales ante los riesgos de una automatización acrítica de la justicia.
The application of Positive Administrative Silence in Administrative Law Procedures after the entry into force of Law No. 27,742
After the enactment of the Law of Bases and Points of Departure for the Freedom of Argentines No. 27,742 (Ley de Bases y Puntos de Partida para la Libertad de los Argentinos) and its regulations, the principle of silence of the administration with positive effect began to rule administrative procedures. In this paper, a conceptual, comparative, historical recapitulation will be made. Finally, the current regulations will be analyzed.
law of bases and starting points for the freedom of argentines
From operator to off-taker: CAMMESA's transformation over the years
This paper considers the expansion of the functions of Compañía Administradora del Mercado Mayorista Eléctrico S.A. (‘CAMMESA’) in the last twenty years and its implications in relation to the provisions of Law 24.065. Special emphasis is placed on the different regimes articulated by the National State by virtue of which CAMMESA was constituted as an off-taker of electricity from conventional and non-conventional sources. A brief analysis of the current administration's intentions with respect to CAMMESA is also carried out.
Differences in the Criminal Law Response between Large-Scale Drug Trafficking and Small-Scale Drug Dealing
This brief essay aims to analyze the changes in criminal policy related to Law No. 23737 (the Narcotic Drugs Law), its historical background, legal nature, legislative modifications (Law No. 26052) and its jurisprudential impact that have substantially and unavoidably altered criminal policy in addressing the crime of drug trafficking, as defined in Article 5, section c of said law. It also seeks to highlight the necessary new criminal strategies that need to be developed in light of what has been determined by our legislators and the jurisprudence on the matter.
Report on the Republic of Argentina on Judicial Independence within the Context of the Organization of the Judiciary
This report examines judicial independence within the context of the organization of the judiciary in Argentina. It is divided into four parts. Firstly, it addresses the organization of the judiciary. Special attention is devoted in that part to the appointment of judges and the role of the Council of the Magistracy (Consejo de la Magistratura). Secondly, it discusses the autonomy of the judiciary. There, the focus is on the stability and removal of judges. Thirdly, the report offers insights into the court system, delving mainly into the operation of federal courts. Finally, the report briefly explores two aspects of the independence of judiciary. On the one hand, the report examines the court hierarchy and stare decisis; and on the other hand, the report offers insights on the interplay of federal and provincial orders.
The Jury Trial in Entre Ríos: law 10.746 and the “Cervín case”
In this article I will analyze, first and briefly, the constitutionality of jury trials. Likewise, I will examine Law No. 10.746, which regulates jury trials in the Province of Entre Rios, the types of crimes subject to this system, as well as its criticisms and key aspects. Subsequently, I will delve into a resonant case from the aforementioned province, in which not only the constitutionality of the right to a double degree of jurisdiction is discussed (Article 89 of the Jury Trial Law of Entre Ríos), but also the arbitrariness of the verdict and the unique gender-related aspects that permeate the case under analysis.
Application of Artificial Intelligence in insolvency proceedings: the future is today
The emergence of new technologies such as Artificial Intelligence, machine learning, Blockchain and Smarts Contracts are very useful and definitely indispensable tools which, when applied –without fear or scepticism– to insolvency proceedings, avoid inefficiency, long duration and high costs; common weaknesses that they suffer from, both in the Argentine insolvency system and in almost all comparative insolvency legislations.
Interpretation and argumentation: Importance of the use of plain language in the oral adversarial criminal process
The purpose of this research is to examine the importance and degree of application of plain language in Argentina today, both in its oral and written aspects, specifically in the framework of oral adversarial criminal proceedings. The research carried out reveals that the majority tendency is oriented towards the creation of instruments (laws, manuals, guides, guidelines, among others) aimed at promoting plain language only in written communications, but not in oral communications. Consequently, it can be seen that the absence of information expressed in clear terms during the course of an oral adversarial criminal proceeding violates the constitutional rights of access to justice and defense at trial.
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Postmortem assisted human reproduction: A criterion for legislative enshrinement
In the field of biogenetics, assisted human reproduction is one of the greatest achievements. The new civil order failed to include surrogate motherhood and postmortem assisted human reproduction techniques due to ethical and legal dilemmas. It is worth asking if it is possible to build an intermediate position between extremist theses that defend the realization of the technique or condemn it. Argentine jurisprudence has been developing an intermediate position with solid foundations that will probably gain legislative consecration over the years. Postmortem assisted human reproduction constitutes a special category of assisted human reproduction techniques, characterized by being carried out after the death of one of the members of the couple. The regulatory framework should be structured around basic criteria, such as the exceptional nature of the admission of presumed consent, limited to the presumed postmortem transfer of cryopreserved embryos at the time of death, and the iuris tantum presumption of presumed consent, based on the premise that an assisted reproduction treatment constitutes a process.
Female genital mutilation: between culture and oppression of bodies
This paper will address the phenomenon of female genital mutilation, its link with Islamic culture and religion. In addition, it will focus on international human rights instruments, and Islamic feminist movements, which have come in recent times to demand a rereading of the Koran, with a gender perspective. In this way, we will see that female genital mutilation is far from being a Koranic imposition, but rather a strategy of control over the bodies of women and girls, violating their fundamental rights.
The retirement age as a problematic criterion in competitive hiring process for public administration in the province of Córdoba: ¿discrimination against women?
The purpose of this paper is to conduct a critical analysis of the terms and conditions of competitive hiring processes for senior executive positions in the public administration in the province of Córdoba. Specifically, what is of interest to examine is the regulation based on one of the exclusionary requirements it imposes: contestants must not be eligible for retirement benefits. This criterion is considered problematic because it fundamentally imposes an age limit on the right to participate in competitive hiring processes, and motivates a review of the reasonableness with wich the regulatory power has been excercised. For this purpose, the impact of this criterion on women over sixty and the potential risk that the regulation may be discriminatory are assessed. This involves analyzing the issues of gender and old age in light of the constitutional framework. Additionally, it is explored whether it is appropriate to categorize the problematic criterion as a suspect classification. The article concludes by offering some reflections that could contribute to a more reasonable approach in future competitive hiring processes for public administration, aiming to safeguard human dignity.
Law, dissociation and how (not) to solve it
In Argentina, our way of relating with the legal system is shaped and influenced by a kind of habituation to the fact that the law is never fully complied with. In other words, we live in a state of dissociation between the normative reality and the social reality. Within this framework, some legal approaches, instead of providing tools to help resolve our contradictions, aggravate them. This paper focuses particularly on a concrete demonstration of this issue in the field of our public law: the idea of the "real constitution". It will try to show that this concept, which calls itself descriptive, is actually much more than that. To do so, it will refer to the not-so-descriptive origins of the "real constitution" idea and will try to show that, even in its most inoffensive version, the "two constitutions" idea pretends to function as a way of defining how law is determined in a society. In the end, this idea of the “real constitution” portrays a clear example of how not to solve our dissociation between normative expectations and social reality.
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The Unconstitutionality of “Primary Administrative Jurisdiction”
The paper begins by defining the concept of jurisdictional power, describing it as a prerogative exclusive to the Judiciary. It then introduces the discussion about the possibility of the Executive Branch assuming jurisdictional powers and presents the four possible stances on the matter. Once the topic is introduced, the paper analyzes Argentine jurisprudence. It concludes that the theory of "primary administrative jurisdiction" was first adopted by the Supreme Court in the Fernández Arias v. Poggio case. The paper takes a position diametrically opposed to that of the Court and presents various constitutional arguments against its legitimacy. It starts by presenting constitutional arguments in favor of a categorical prohibition of administrative jurisdiction. Following that, it mentions arguments related to procedural guarantees. Finally, it analyzes the practicality of the theory under scrutiny.
In search of lost contracts (regulatory powers of the Secretary of Energy by Law 24,065 and section 9 of Resolution SE 95/13)
This paper considers the scope of regulatory powers attributed to the Secretary of Energy by Law 24,065. It focuses on Resolution SE 95/2013, particularly in relation to its Section 9. This section provided for the suspension of the right of generators, distributors, and large users to enter into contracts in the electricity market. This suspension, as of date, although was originally referred to as provisional, has extended more than ten years.
What is the “special sacrifice” for the Argentine Supreme Court?
This article studies the special sacrifice, one of the requisites necessary to obtain redress for the State’s lawful activity. The special sacrifice is introduced in the context of this system of State liability. The paper examines the Argentine Supreme Court’s relevant precedents in the subject. The concept of vagueness and the distinction between rules and standards are introduced in order to provide more clarity to the matter, and the conclusion is that there is still no clear case of what a special sacrifice is.
State responsibility for lawful activity
Sexual violence against children in Mexico as a reflection of the lack of material protection of the best interests of the child
The objective of this paper is to analyze whether the formal guarantees granted by the Mexican Constitution, in terms of the best interests of the child, also become material guarantees. The Mexican legal system, in the first article of its Constitution, safeguards the recognition and application of human rights and international instruments to which the State is part of, for all its citizens, as well as the guarantees for their protection. That is to say, the international instruments subscribed by Mexico regarding the protection of the fundamental rights of minors. Within this set of international instruments, our country recognizes the International Convention on the Rights of the Child, promulgated on November 20, 1989, in New York, to which Mexico adhered, ratified and put the means for its entry into force the following year (1990). Within this legal framework of constitutional rank, the purpose is to verify the materialization of the protection of the rights of minors in matter of child sexual violence, in view of the figures and statistics that show us if this inalienable right is being protected or not, as stipulated by law. This research does not intend to provide a solution to the problems that can and, in fact, do arise. It is only the verification of a legal-judicial gap in the Mexican legal system, the investigation of its possible causes and the analysis of the answers that have been given over time, with the hope that this reality will end and the lives of children will have hope.
The influence of technology on labor relations: a comparative analysis of teleworking
The purpose of this article is to conduct a thorough analysis of teleworking in the Argentine Republic, how it was implemented and the corresponding regulations. In the first place, we will provide a notion of teleworking and the subtle differences from other modalities such as "remote work", "homework" and "home-based work". Then, we will delve into the regulatory framework, with a focus on recent Law 27.555, that regulates teleworking in our country. In the second place, we will carry out a comparative analysis with other countries (Chile, Mexico, Ecuador, Uruguay, and Paraguay) to understand their legislation regarding teleworking and how the states have responded to this new contractual modality, that had its greatest boom from the covid-19 pandemic that set the agenda for 2020. Finally, we will try to provide an approximation about the reality of this not so new modality of work, which, although not entirely new, still has room for further development, in each of the countries mentioned. To achieve this, we will provide specific data on the existing number of teleworkers and their possible growth, considering the socioeconomic context and employment situation of these individuals.
Information and Communication Technologies (ICTs)
The compelled unlocking of cellphones and the privilege against self-incrimination: its study in the digital age
The compelled unlocking of cellphones is a measure that is slowly beginning to be applied throughout the federal criminal courts of Argentina. It leads us to discuss whether it is, in the first place, valid in the terms of the constitutional prohibition of forced self-incrimination and, in the second place, viable from a procedural perspective. This article addresses these questions. For this purpose, I will preliminarily resort to a study on the origin of the privilege, its reception in our country, and the various positions related to this topic in the legal scholarship and in the case law of the Supreme Court of Justice. Furthermore, I will address the discussion that exists in the United States on this specific issue. Based on this framework, I will argue that the compelled unlocking related to access with numerical, alphanumerical keys or a pattern will not be admissible under the prevailing constitutional and procedural order. However, I will argue that the privilege will not operate when is required biometrical features of the accused person.
physical evidence vs testimonial evidence
Argentina and the Multilateral Development Banks: legal regime and international relations
The Multilateral Development Banks are a key player in international relations. For the Latin American region, and Argentina in particular, they have played a fundamental role in recent decades, financing development policies and supporting the strengthening of local capacities. But the relationship between banks and borrowing countries is not without controversy and power struggles. The complex regulatory plexus that regulates the actions of the development banks, both within the institutions themselves and in the relationship with the borrowers, constitutes a fundamental framework, which leaves out what is defined throughout the dynamics of international relations.
The Bad Law: an explanation about the causes of institutional decline
“Bad Law” is an implicit legal meta-theory that inhabits some legal traditions and that will make all the tools that can lead to institutional strength and the Rule of Law fail. The paradox is that one of the protective hypotheses of Bad Law is that, if it fails, it is the fault of the immorality of society and never of Bad Law itself, which makes it irrefutable, unfalsifiable and even invisible. In the legal tradition of Argentina, as in others, there would be this kind of “infection” and then, Bad Law would be what would weaken the institutions. The proposal is to explore the debate of the implicit legal meta-theories that determine that some countries have “Good Law” and their institutions are strong and effective while others, suffering from Bad Law, live stuck in institutional failure, injustice, corruption and inequity, as well as a lack of trust and any long-term predictability.
Child sexual exploitation through information and communication technologies (ICT). Current approach in Argentine case law
Child sexual exploitation committed through ICTs is a phenomenon that ha grown with the advance of new technologies and the lowered age of access to them. In Argentine criminal law, the issue of sexual exploitation of children and adolescents is primarily addressed through two provisions: art. 128 of the Criminal Code (the production and distribution of material for sexual exploitation of children and adolescents) and art. 131 of the Criminal Code (grooming). This paper analyzes the aforementioned offenses in detail, and identifies and outlines the problems generated by the interpretation of these criminal offenses in Argentine courts.
Moral and Criminal Law: Devlin and the imposition of morality in the framework of judicial decisions on crimes against humanity in Argentina
Even today, we wonder whether there is a connection between criminal law and morality and, if so, what it consists of. Regarding this, Patrick Arthur Devlin, a 20th century British judge and philosopher, argued that there is a common morality that can be defended by the application of criminal law. The purpose of this work is to demonstrate that justice operators apply the morality of society in criminal law in certain cases, as developed by Devlin. Along with the author's theory, other authors from different fields of study are also examined. As a result of the analysis of the case law/jurisprudence of the Supreme Court of Argentina, we will see that, in practice, common morality does apply in criminal law. It is concluded that justice operators usually apply the morality of society in criminal law when there is a real feeling of repulsion.
Unpopular justice: advantages of social participation in criminal matters
This essay discusses some issues related to the role that people should play in the creation, application and interpretation of criminal law. In this sense, some points highlighted by the author Paul Robinson regarding empirical merit as a distributive principle and the criticisms made by Marcelo Ferrante are taken up again. Finally, a proposal related to the subject is outlined.
The power of annulment of the Public Administration: Is it a constitutionally implied power?
This article analyzes whether, within the framework of the Argentinian Constitution, the power of annulment of administrative acts can be regarded as a constitutionally implicit power of the Public Administration. To this end, we evaluate the positions raised in legal scholarship, the jurisprudence of the Supreme Court on the matter and, in particular, the different theories about implied powers, including the so-called inherent powers. We conclude that, according to the current standards of these theories, such power cannot be considered to be implied or inherent power of the Public Administration.
Social Media Platforms: An Approach for the Inter-American System Legislation
In recent years, social media platforms have been in the eye of the storm. The Cambridge Analytica case, the disinformation campaigns against Hillary Clinton in 2016, Trump's censorship on Twitter or the allegation made in 2021 by the whistleblower Francis Haugen are examples of this. Nowadays, there is a global debate about whether social media networks should be regulated or not, how that regulation should look like and what consequences could imply. For instance, the European Union has already established two programs: the Digital Services Act (DSA) and the Digital Market Act (DMA) that create a legal framework for this environment. In the US, there is an open debate on which should be the role of the government. The main concerns that have been raised in favor of its regulation are about their content and privacy policies, as well as the use of personal data provided by users. According to this research, the lack of regulation of social networking platforms poses a concrete risk to people's basic rights and guarantees. Consequently, this regulation would be urgent in so far as it would allow to determine limits, obligations and the legal liability of the companies that own these social media platforms. At the same time, it would make it possible to regulate and adapt its operation in accordance with the users' guarantees. When drafting this model legislation, the initial challenge was to be able to create consensus regarding the definitions of the object to be regulated - or the object of study -, and its related concepts. One of the contributions of this manuscript is the clear conceptualization of each term, which allow us to have a common ground to start a debate on how social media platforms can be regulated. This research challenges the conceptualization of social media platforms and approach to determining responsibility in the four questions and rights mentioned above. As social media is an international resource, it is thus necessary that the legislation is not only framed in one country. Therefore, this study is framed within the Inter-American system, understanding that the common legal ground of the countries involved is the American Convention on Human Rights. First, this research provides a uniform and comprehensive definition of the key concepts for eventual legislation. Second, it answers three main questions: who will be responsible for enforcing the legislation and surveilling its compliance? How will compliance be assured? And what are the dangers and threats of having stringent legislation? Finally, it proposes a uniform standard legislation that any country within the Inter-American system could consider when legislating social media platforms in their own territory.
Objections to the admission and production of evidence. An observation from the Federal Code of Criminal Procedure
This article focuses on the activities of admission and production of evidence from an adversarial accusatory perspective, in order to arrive to correct and legitimate judicial decisions. The introduction sets out the task and purposes of the article (I). It continues with an explanation of the impact and scope of contradiction as a structuring principle of an accusatory criminal process (II). Then, it exposes and details the importance of evidentiary objections to the system (III). After clarifying the aforementioned ideas, it is presented what is considered to be an ideal model in terms of evidentiary objections, addressing what is considered to be an objection, their foundations, their assumptions and a scheme regarding objections to the admissibility and production of evidence (IV). As a comparative input, it is explained how objections have been regulated in the Federal Code of Criminal Procedure (V). Finally, some brief conclusions are provided (VI).
admissibility and production of evidence
Comments on the regulation of legal guardianship in the Civil and Commercial Code
The changes introduced in the regulation of legal guardianship through the enactment of the Argentine Civil and Commercial Code are positive, since they conform to the social and family reality experienced by children who are protected by this legal framework. However, it is possible to regulate some other aspects that would contribute to strengthen the relationship between the child and his or her guardian(s), as well as to enhance the relationship with his or her environment. This paper will analyse the feasibility of incorporating to the Civil and Commercial Code the need to integrate the minor into the family life of the guardian, the subsidiary maintenance obligation of the guardian and the general rule of unpaid guardianship in cases where there is a kinship or affective relationship between the child and his or her guardian(s).
Some Considerations on the Reform Processes of the Argentine Provincial Constitutions
The purpose of this article is to carry out an analysis of the different provincial constitutions in relation to the exercise of the derived constituent power, that is, the cases in which the people as sovereign decide to reform the previously established constitution; and the participation that citizens, in their capacity as holders of this constituent power, in each of the stages of the constitutional reform procedure that can be carried out for this purpose. The different systems of constitutional reform that are present in our provincial public law will be analyzed, with the requirements imposed by each of the provinces in order to carry out a reform of this type, particularly in relation to whom can submit a project to reform the constitution, the majority that is required, the possibility of veto by the governors, among other relevant aspects.
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