Vol. 3 No. 1 (2023): Revista Latinoamericana de Estudios Europeos

Revista Latinoamericana de Estudios Europeos

Vol. 3 No. 1 (2023)

El Latin American Journal of European Studies (ISSN 2763-8685) es una publicación del Latin American Center of European Studies, creada a partir del proyecto BRIDGE - Jean Monnet Network con financiamiento del Programa Erasmus + de la Comisión Europea. Centrándose en líneas editoriales sobre Derecho y Políticas de la Unión Europea y Relaciones Internacionales de la Unión Europea con terceros países y América Latina, la quinta edición de la Revista también cuenta con un dossier temático sobre El Derecho Internacional privado en las relaciones entre la Unión Europea y América Latina”, organizado por Beatriz Campuzano Dias de la Universidad de Sevilla, (Espanha). La convocatoria de la quinta edición de la Revista ya se encuentra abierta y los interesados pueden enviar sus ponencias hasta el 1 de mayo de 2023.

Edición completa

Editorial

Resumen

The Latin American Journal of European Studies (ISSN 2763-8685) is a publication of the Latin American Center of European Studies, created from the BRIDGE Project of Jean Monnet Network with funding from the Erasmus + Program of the European Commission. With a focus on the editorial lines on European Union Law and Policies and International Relations of the European Union with third countries and Latin America, the fifth edition of the Journal also has a thematic dossier on Private International Law in relations between the European Union and Latin America, organized by Beatriz Campuzano Díaz of the University of Seville, (Spain). The fifth edition of the Journal is open for submissions until May 1st, 2023.

LACES

Dossier

EL CONVENIO EUROPEO DE DERECHOS HUMANOS Y SU INCIDENCIA EN EL DERECHO A LA VIDA FAMILIAR DE LAS PERSONAS EXTRANJERAS

Palabras clave:

Right to family life; foreigners people; European Convention on Human Rights.

Resumen

The present contribution aims to analyze the complex and evolving case law of the European Court of Human Rights regarding the respect for “family life” as enshrined in Article 8 of the European Convention on Human Rights. The objective is to examine the impact that this dynamic jurisprudential development has on the protection of family life for foreign individuals, particularly in cases of family reunification and expulsion from European territory. To achieve this, an inductive methodological approach has been chosen, combining the analysis of the case law of the Strasbourg Court with the main doctrinal works in the field, which is essential to understand the scope of the analyzed regulations. From the analysis of Strasbourg jurisprudence in this matter, it can be inferred that there is a need to reconsider the Court’s approach to the balancing of interests, particularly the primary consideration of the best interests of the child in cases where denia

Lucía Padilla Espinosa

CERTIFICADO EUROPEU DE PARENTALIDADE: aspectos sobre a proposta de reconhecimento de filiação de casais homoparentais na união europeia

Palabras clave:

Same-sex families; European Union; Regulation.

Resumen

This article addresses the difficulties of same-sex families in terms of regulations and rules of private international law, especially regarding the conditions for recognition of parenthood in relation to their children and, consequently, the implications on the nationality and free movement of these children and adolescents. For the elaboration of the research, the bibliographical exploratory methodology was adopted, with the objective of analyzing what and if there are currently rules that have the power to regulate such issues, so that a European Certificate of Parenting could supply the lack of them and guarantee the application of fundamental rights to rainbow families. For this, a case study was presented through jurisprudential analysis, in addition to other paradigm decisions regarding the theme, directives and treaties. Finally, the results obtained indicate that the existence of a European Certificate of Parenthood is fundamental to guarantee decent conditions for same-sex families.

Carolina Attuati, Maurício Dal Pozzo Schneider , Vanessa Thalia Linhares Medeiros Ramos

FAMILIAS TRANSNACIONALES IBEROAMERICANAS: una revisión de las reglas de competencia judicial internacional que acompañen a la mujer migrante

Palabras clave:

Transnational families; parental responsibility; international jurisdiction.

Resumen

This paper provides some keys to better respond to cases of parental responsibility that arise in transnational families. In particular, we look at women of Ibero-American origin who have arrived in Spain in an economic migration leaving their children in the care of relatives or close people in their States of origin. To do this, firstly, an analysis of the differences between transnational and cross-border families is made, emphasizing the family relocation that exists in transnational families and the need, therefore, as a singular reality, to also provide specific answers. Next, the rules of international judicial jurisdiction are analyzed, in particular, the Hague Convention of 1996 and it is analyzed, through various sentences, how the Spanish courts have applied it. In this application, it is detected that there is an absolute lack of gender perspective and the need for flexibility in the responses, taking into account the special situation in which mothers, residing in Spain, find themselves with their children in their States of origin.

Antonia Durán Ayago

NUEVAS APORTACIONES DEL SISTEMA INTERAMERICANO DE DERECHOS HUMANOS A LAS NECESIDADES DE INTERÉS PRIVADO DE FLUJOS MIGRATORIOS

Resumen

The article addresses the study of the transformation in migratory profiles, categories in which people are placed as migrants, which due to the globalization of migratory flows have created new challenges of migratory regulation. The countries belonging to the Inter-American Human Rights System, in order to face these challenges, have developed tools that codify the application of conventional instruments to once again open the possibility of a more dynamic normative unification. The control of conventionality is one of the key points on which the analysis of the internal application of the national regulations of the countries is in harmony with the international criteria and that has undoubtedly materialized in the unified codification of the internal law of the members. , so that it is relevant for migration policy, because the migrant as a global citizen will not have a single legal framework, but rather starts from a particular territorial area, to later move beyond the traditional spheres of power, for the capacity it has to relate to other subjects of international law. Thus, the study finally moves to those tools of conventional interpretation and those created with the objective of governing the private relations of migratory flows in the territories of the members of the community.

Ilse Mariana Cruz Rojas

DIGITALIZACIÓN DE LAS NORMAS EN MATERIA COOPERACIÓN JUDICIAL INTERNACIONAL

Palabras clave:

International legal assistance; digitization; notification.

Resumen

In international judicial assistance, the private interests of the litigants are at stake. In this context, regulations have begun to emerge, with a marked technological context, in order to improve the efficiency and speed of judicial procedures and ensure the proper administration of justice in cases with cross-border repercussions. For this reason, we intend to analyze the regulatory frameworks at the European level, the new Regulations 2020/1784 and 2020/1783, in terms of “notification and transfer of documents” and the “obtaining of evidence”, and, in the absence of application, of the regulations European Union will have to comply with the provisions of international agreements, in this case, we want to make a special assessment regarding the possible application of the e-Apostille, which will be applied between countries of the European Union and Latin America. With all this, it is intended to design and provide better services in accordance with the needs and demands of citizens and companies.

Antonio Merchán Murillo

INTERNACIONALIZACIÓN DE SOCIEDADES ARGENTINAS MEDIANTE TRASLADO DE SEDE SOCIAL A LA UNIÓN EUROPEA, TOMANDO COMO EJEMPLOS DE PAÍSES DE DESTINO A ALEMANIA Y ESPAÑA

Palabras clave:

Global; mobility; companies

Resumen

This paper deals with the global mobility of Argentinean companies, specifically with the transfer of their registered office to the European Union (EU), taking Germany and Spain as examples of destination countries. The aim is to demonstrate that such a transfer is possible, although there is no detailed procedure in the analyzed laws. Applicable laws and regulations, academic opinions and decisions of administrative bodies and Courts are studied and analyzed; as far as legally admissible, analogy is used to integrate regulatory gaps. The tax aspects of the transaction from the point of view of Argentina are summarized, and more broadly the corporate aspects from the point of view of the EU and the three jurisdictions involved, as well as the requirements for registering a transaction of this nature before the Registers of Commerce from Argentina and Spain. It is concluded that it is possible to transfer the registered office of an Argentinean company to the EU, that it is possible for Spain to be the country of destination, and that it is also possible for Germany to be the final destination in the event that the company has become subject to EU law as a result of a change of its registered office to a Member State of the European Union (e.g. Spain), since Germany does not currently allow the cross-border transformation of companies from third countries.

Virginia Scharn

LA PARTICIPACIÓN DE LA UNIÓN EUROPEA EN LOS CONVENIOS DE LA CONFERENCIA DE LA HAYA DE DERECHO INTERNACIONAL PRIVADO Y SUS RELACIONES CON LOS REGLAMENTOS

Palabras clave:

European Union; Regulation 1215/2012; Regulation 2019/1111; Conventions of the Hague Conference on Private International Law.

Resumen

This paper analyses the competence of the European Union to regulate questions of private international law and how this has affected the negotiation of agreements with third States, where the European Union also plays a leading role. In relation to this, the participation of the European Union in the conventions of the Hague Conference on Private International Law and the relations established with the Regulations of the European Union are analysed. The paper starts by analysing the most important Regulations adopted by the European Union regarding international jurisdiction and the recognition and enforcement of judicial decisions – Regulation 1215/2012 in civil and commercial matters and Regulation 2019/1111 on matrimonial crises and parental responsibility issues- to then identify the Conventions of the Hague Conference on Private International Law on overlapping matters and analyse the relations between them. As can be seen, the relations are easy to articulate in the area of recognition and enforcement of judicial decisions, given the inter partes nature of these rules, but greater difficulties arise in relation to international jurisdiction rules, which raises criticism in the European Union.

Beatriz Campuzano Díaz

EL ACCESO Y LA COMERCIALIZACIÓN DE ALIMENTOS EN MERCADOS INTEGRADOS: Un puente que une aspectos privados y públicos

Palabras clave:

European Union; MERCOSUR; Food; Consumers; Quality; Information; Labeling.

Resumen

The purpose of this paper is to analyze what are the changes in the legal regulation on food in the European Union (EU) and in the Common Market of the South (MERCOSUR) that have occurred in recent times to account for the impact on the actions of legal and natural persons as consumers in integrated spaces. It starts from the premise that -currently- there are three purposes pursued by legislation issued both locally and regionally: food safety, quality and competitiveness. The regional legal framework must ensure that the rules applied to food allow a wide offer to ensure competition in the regional market, and at the same time that food is safe and of high quality so that consumers have the possibility of choosing freely. The jurisprudence of the Court of Justice of the EU (CJEU), exemplifies, through its interpretation – in selected cases – of the norms concerning the multiple facets – from the introduction and circulation (commercialization) of a food in the regional market- and allows reflection from the public (member states-third states) and private (operators and consumers) spheres on the importance of the rules. The main data collection technique used -in this work- is the analysis of documentation from the EU regulatory framework, both original and secondary law – in particular, Parliament and Council regulations, or directives – as well as the analysis of jurisprudence of the CJEU, through which secondary data is collected -mainly Decisions of the Common Market Council (CMC), Resolutions of the Common Market Group (GMC), Directives of the Common Market Trade Commission (CCM)-. In relation to the data analysis procedures, qualitative and comparative analyses are used.

Sandra C. Negro

PARTY AUTONOMY IN THE CHOICE OF LAW: some insights from Brazil

Palabras clave:

Private international law; party autonomy; international contracts.

Resumen

For nearly seventy years, the Brazilian private international law system has remained unchanged, while many other countries around the world have enacted new legislation in this field. Despite the significant involvement of Brazilian companies in the global market, the Brazilian legal system has shown resistance to accepting party autonomy in the choice of law. In light of this situation, the aim of this paper is to examine the existing divergence of opinions regarding the principle of party autonomy in Brazilian private international law. The focus will be on understanding the different perspectives regarding the scope of party autonomy in the absence of explicit legislative provisions. The specific objective is to assess whether the current Brazilian legislation, doctrine, and jurisprudence pertaining to international contracts offer adequate solutions to the challenges faced in international trade transactions, such as the possibility of using an arbitration clause as an escape valve for the inflexibility of the system.

Aline Beltrame de Moura

Artículos

DESARROLLO SUSTENTABLE EN EL ACUERDO DE ASOCIACIÓN MERCOSUR-UNIÓN EUROPEA: tensiones y expectativas

Palabras clave:

Soft Law; Hard Law; Sustainable Development; Jus Cogens.

Resumen

This article offers an internationalist perspective on the environmental issue within interregional agreements, focusing on the European Union-Mercosur Free Trade Association Agreement, which is currently in the process of ratifications. We qualitatively analyze the history and evolution of international environmental law, the importance of the indicative origin of said legal discipline, and the dialogue of sources typical of Public International Law in order to highlight the strengths of Soft Law in the construction of a global paradigm of. Sustainable Development. We consider the aspects of environmental regulations, where the legal nature of the right to sustainable development is analyzed, as well as the limitation of the sovereignty of States in these issues; in conceiving it as a fundamental right of the human person and an international jus cogens norm. The sustainable development article of the Agreement is considered as a relevant point of analysis, and how it could have an impact on the dispute resolution mechanisms and procedures established by MERCOSUR and the European Union regarding disputes that may arise in relation to commercial activities that may affect the environment. The methodology was deductive, with bibliographic survey, analysis of jurisprudence and exegesis of normative texts.

Vera Lúcia Viegas-Liquidato, Ivan Lucchesi Van Brussel