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.
Perspectiva gerontológica actual y acceso a la justicia
This paper addresses an innovative and compelling topic: elder law. This discipline has emerged as a response to “ageism”, a widespread phenomenon present in institutions, legislation, and public policies around the world. Ageism directly affects individuals’ health and dignity. It will examines how judges, in compliance with conventionality control and the 100 Brasilia Rules on Access to Justice for People in Vulnerable Conditions, can guarantee an effective judicial process. This requires respecting due process guarantees and applying principles such as enhanced protection, preferential treatment, and reasonable timeframes. It also entails incorporating procedural adjustments and other appropriate tools. The analysis will cover the entire judicial process, from its initiation to the enforcement of judgments, always taking into account the specific characteristics of the elderly population as a social group. The study is carried out through a descriptive analysis of existing literature and case law. The aim is to facilitate understanding of the current state of discussion on this issue, which has gained legal significance worldwide.
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This article proposes a legal-economic theory called the “Trust Index in Law,” which links the willingness to contract in the market with the legal transaction costs required to formalize agreements between economic agents. Using a qualitative and analytical approach, the paper argues that there is a direct correlation between the level of systemic trust in a society and market efficiency. Lower trust increases the demand for legal mechanisms, thereby raising transaction costs and decreasing contractual willingness. Drawing from Ronald Coase’s theorem and legal principles such as legal certainty, good faith, and democratic values, the study concludes that institutional design should aim to strengthen trust to enable efficient economic interaction.
Limited-recourse bonds and bonds issued for project finance
This essay analyzes the legal framework and regulatory evolution applicable to limited recourse bonds and bonds aimed at project financing (project bonds) in Argentina. It describes the main characteristics of both instruments, their structural and regulatory differences, and the specific requirements for their issuance, with particular emphasis on the impact of the Productive Financing Law and CNV regulations. The essay highlights the importance of these instruments for channeling investments into infrastructure and productive development projects, as well as the need for specialized vehicles and adequate guarantees. It also examines market precedents and identifies the challenges and opportunities faced by the Argentine capital market for the consolidation of these financing mechanisms.
Youth justice: specialization as an epistemological imperative
The article argues that youth justice has not achieved a genuine identity distinct from ordinary criminal law, despite the solid international regulatory framework based on the principle of specialization. It suggests that the ineffectiveness of this principle is due to the persistence of an underlying mindset rooted in the adult criminal justice model, which shapes the decisions and perceptions of practitioners. The text analyzes how this influence manifests itself in theoretical and methodological reductionism, the interpretation of the Convention on the Rights of the Child from a punitive logic, the prioritization of the act over the harm, and criminalization over protection. To overcome this stagnation, epistemological reengineering that promotes a deep and strategic understanding of the specialization is proposed, understood as a guiding principle that requires a holistic, restorative, and interdisciplinary approach. The article concludes that effective transformation requires active advocacy for the principle, changes in professional training, and a higher ranking of youth justice in power structures.
Distributive justice, judicial activism, and the institutional challenges of the judge in leveling social inequalities: reflections on the ruling “V. O., E. v. State of Buenos Aires Province”
In certain models of the democratic rule of law, the State is understood to be required to adopt measures aimed at guaranteeing essential conditions such as health, education, and employment, thereby enabling individuals to pursue their life projects. However, while primary responsibility for implementing these policies lies with the legislative and executive branches, the role of the judiciary in supervising and guaranteeing social rights remains a subject of debate. This article analyzes the ruling “V. O., E. v. State of Buenos Aires Province” by the Administrative Court of Appeals of La Plata, which ordered the payment of a minimum wage to a single mother in a situation of vulnerability. Based on this precedent, the article reflects on the scope of judicial intervention in the protection of social benefits, in order to assess how the judiciary may contribute to the enforcement of social rights without undermining the principle of separation of powers.
The Supreme Court and indefinite re-election: a correct ruling that ignored a valuable Argentine tradition
In December 2024, the Supreme Court of Justice ruled on one of the most awaited cases by the public and the legal community in recent times: the unconstitutionality of the indefinite re-election to the office of governor in the Province of Formosa. It did so in the case “Confederación Frente Amplio Formoseño”. Although this case resolved the conflict in a constitutionally correct manner, it will be seen that such a decision could have been anchored in the original meaning that the original constituents had of the term “forma republicana” of the Constitution and its concrete content. This commentary aims to reflect on and examine the origin of the limitation to re-election as one of the contents of the original meaning of the republican form that the framers of 1853 had. This is in order to highlight that the starting point for the reasoning behind the majority vote should have been anchored in a tradition that is authentically Argentine, based on different sources and experiences in comparative law.
The reconfiguration of the requirements for the opening of insolvency proceedings
Argentina’s Bankruptcy Law has become outdated—if not entirely obsolete—when it comes to two key issues: the preservation of small and medium-sized enterprises and the treatment of insolvency affecting non-entrepreneurial natural persons. The preventive reorganization process has often proven to be a late response, intervening only once the crisis is fully underway or already finished. The rigidity of the legal definition of cessation of payments as an objective requirement, together with the absence of specific procedures for individuals who are not business owners, constitute initial barriers to debt restructuring and the resumption of economic activity. Creditors are also negatively impacted. Their chances of recovery are significantly higher when the debtor’s activity continues, compared to judicial liquidation scenarios. In this context, there is a pressing need to legislate the intermediate phase between the onset of financial distress and the occurrence of cessation of payments. Rethinking the protection of enterprises, over-indebted individuals, and the creditor’s right to recovery is an urgent and structural task in building a more effective and equitable insolvency system.
Liability for damages caused by the use of AI: objective, subjective, or hybrid liability?
The outbreak of artificial intelligence in everyday and professional life has created unprecedented challenges for law, particularly in terms of damage and liability. The autonomy and learning capacity of AI systems make it difficult to apply traditional regimes of strict and fault-based liability since the identification of the responsible subject and the reconstruction of the causal chain are hampered by the intervention of multiple agents and the unpredictability of the outcomes. In this context, the distinction between autonomous and supervised AI systems, as well as the degree of human intervention, are decisive in assessing the attribution of responsibility. A hybrid and flexible approach, which allows for intelligent transition between aspects of the objective and subjective liability models, seems appropriate in view of the multiple challenges and peculiarities of AI.
Should good faith in contracts be construed restrictively?
This article deals with the principle of good faith in contracts, aiming to determine its actual scope in arm’s length agreements. It posits that the principle’s broad expression may lead to judicial overreach, potentially supplanting the parties will, and above all, exposing them to unnecessary litigation. To test these assumptions, this principle is analyzed from its origins in Roman law, its divergent evolution in common law and civil law systems and its regulation in the new Argentine Civil and Commercial Code. Subsequently, a distintion is made between subjective and objective good faith, the latter being, in general, that which is applicable to contracts. The article discusses the functions of good faith or, in other words, the purposes that good faith serves in contracts. It then sets forth the criticisms made the principle of good faith in contracts, pertaining to its lack of certainty, on the one hand, and the excessive power it grants to judges, on the other. Finally, the study develops a rationale regarding what the scope of this principle should be in arm’s length agreements, and it answers the question, less obvious than it seems at first glance, of whether the parties can agree not to have their contract reviewed under criteria linked to good faith.
Limiting the criminal liability of corporate directors: does the obligation to implement compliance and control systems replace personal supervision?
This article examines the limits of the criminal liability of corporate directors within complex corporate structures, taking as its starting point the Supreme Court of Justice of the Nation’s decision in “Oviedo, Javier Darío v. Telecom Argentina S.A.”. The doctrine established in this precedent holds that, in large-scale corporations, the director’s duty of care does not require personal supervision of every decision, but it is instead fulfilled by ensuring the existence of appropriate internal control mechanisms. Following a valid delegation of functions, the liability of the board of directors is limited to breaches of its residual duty of oversight—namely, the failure to implement such control systems or to react to known irregularities. The article argues that criminal liability cannot be objective but must be grounded in proof of the subjective element (intent or negligence). Finally, it addresses the concept of willful blindness as a mechanism for attributing intent, contending that when a director consciously chooses to disregard warning signs, such conduct is equivalent to intent.
criminal liability of corporate directors
On repeat offending as a basis for preventive detention in the criminal procedure code of the Autonomous City of Buenos Aires
This paper examines the incorporation of the repeat offending clause in article 182, subsection 7, of the Criminal Procedure Code of the City of Buenos Aires as a criterion to establish flight risk in pretrial detention decisions. By breaking down the inferential chain involved in its application, the study assesses the clause’s logical and empirical validity. It shows that the underlying reasoning rests on weak generalizations lacking empirical support, which diminishes its epistemic value and increases the risk of arbitrary decisions. Furthermore, it argues that the operation of this provision undermines the defendant’s autonomy and overlaps with functions already covered by other rules. The paper concludes that the repeat offending clause is unnecessary and problematic within the current procedural framework.
What are we talking about when we talk about justification of punishment? A dworkinian proposal
This article argues that much of the persistent ambiguity surrounding the discussion about the justification of punishment results from an unnoticed conflation of descriptive, normative, and conceptual questions within the so-called theories of punishment. Such conflation, it is suggested, produces a confusion of analytical levels, as illustrated by the position advanced by Zaffaroni, Alagia, and Slokar in their Manual de Derecho Penal. Building on this diagnosis, the article proposes a methodological alternative inspired by Ronald Dworkin’s theory of interpretation. It contends that the philosopher of criminal law should approach the practice of punishment in a manner analogous to the way Dworkin’s judge approaches the law. This interpretive approach offers a coherent framework for addressing some of the recurrent tensions identified in the penal theory literature.
Feuerbach’s Anti-Hobbes in recent Latin American philosophy of law
In 1797, Paul Johann Anselm von Feuerbach —widely regarded as one of the founding fathers of modern criminal theory— published Anti-Hobbes, one of his most significant philosophical works. Like much of Feuerbach's work, this book remained untranslated into Spanish until 2010, when the Spanish edition was published. Nevertheless, Anti-Hobbes has received significant attention in Latin American legal philosophy over the last fifteen years, with reviews and critical texts being published. In this text, I will analyse critical remarks against Feuerbach's ideas in Anti-Hobbes made by three Latin American authors in recent years: Mauro Benente's leftist critique, Santiago Truccone’s republican critique, and Eugenio Raúl Zaffaroni's critique of punishment theory. I will demonstrate that, although the discussion was stimulating, none of the critical remarks are conclusive.
Duration of the ordinary legislative procedure for enacting laws: legislative timing as a structural justification for executive decrees
This paper examines the duration of the ordinary legislative process in the Argentine National Congress, with the aim of providing elements that allow for a more precise assessment of when the issuance of emergency decrees (DNUs) by the Executive Branch is constitutionally permissible. The analysis is based on the assumption set forth in the Supreme Court’s Verrocchi decision, which permits recourse to DNUs when the need—and, in certain cases, the urgency—of a situation is incompatible with the normal timeframe required for the drafting and enactment of legislation. However, the absence of a guiding benchmark for the duration of that legislative process creates a gap that complicates the evaluation of such incompatibility. Through a twofold approach—both theoretical and empirical—this paper seeks to provide a reference point regarding the actual time that the ordinary legislative procedure typically requires. With that information in hand, the analysis then attempts to address an additional question: if the legislative process takes, on average, 272 days, would that delay—under the Verrocchi standard—be sufficient, by itself, to justify a DNU, thereby risking the practical erosion of its exceptional constitutional nature?
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).
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.
Copyright (c) 2023 Universidad de San Andres Law Review https://creativecommons.org/licenses/by/4.0
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.