YEAR 2020 No 2 Vol. 22

ISSN 2182-9845

2020 No 2 Vol. 22
EDITORIAL

Mariana Fontes da Costa

No passado dia 23 de setembro, o Estado Português depositou, junto do Secretário-Geral das Nações Unidas, o seu instrumento de adesão à Convenção das Nações Unidas sobre Contratos de Compra e Venda Internacional de Mercadorias (doravante identificada pela sigla inglesa CISG), estando prevista a sua entrada em vigor em Portugal no dia 1 de outubro de 2021.
Trata-se de um marco de enorme importância para todos os empresários portugueses que desenvolvem as suas atividades de comércio para além das fronteiras nacionais e de um acontecimento há muito esperado por aqueles que se dedicam ao estudo do direito comercial internacional, ou, mais rigorosamente, do direito que regula as relações comerciais transfronteiriças entre operadores económicos privados.

Types of contracts, related contracts and withdrawal: the arguments of the Judgement of the CEU of 20 march 2020 (C-583/18)

Lídia Arnau Raventós

services contract; sales contract; transport contract; ancillary contract; linked contract; right of withdrawal.

The Court denies the term “contracts for passenger transport services” (art. 3,3.k Dir. 2011/83) includes the service contract whose object is to entitle the consumer to a price reduction when passenger transport contract are subsequently concluded. The arguments are: the contract is neither itself directly concerned with enabling the transporting of passengers to be carried out, nor is a contract “inextricably linked” to the transport contract and the exercise of withdrawal will not entail disproportionate consequences to the professional. The comment analyzes the three arguments.

Some Notes About the Protection of the Essential Public Services User

David Falcão

Essential public services; electronic comunications; protection of the user; suspension of the service for non-payment; prescription; lapse.

In the present study we dedicate ourselves to make an analysis of the Law of Essential Public Services, giving a special focus to the mechanisms of protection of the user of such services. If it is true that, on the one hand, it has not been doctrinally peaceful to qualify contracts for the provision of essential public services as public or private law agreements, on the other, and consequently, the question of where to bring legal action arising from disputes that oppose the provider and the user, therefore, we will try to answer that question. Having made a general analysis of the user protection mechanisms, we focus on issues related to the suspension of the service for non-payment, establishing a parallel between the regimes of the Essential Public Services Law and the Electronic Communications Law.

The end of the weekly rest period on the seventh day?

Francisco Liberal Fernandes

weekly rest; shift work; directive 2003/88; Article 5; direct effectiveness; reference period.

The monologue that is reproduced has in its genesis two sentences related to the imperfect problem of the enjoyment of weekly rest at shift work: the judgments of the Court of Justice of the European Union, of 9-11-2017 (Maio Marques da Rosa, case C - 306/16), and the Supreme Court of Justice, of 14-11-2018 (case 1181/15.4T8MTS.P1.S1).

Antitrust law, Anti-corruption law and lenience agreement: the Odebrecht case

Emerson Ademir Borges de Oliveira, Julienne de Melo Kill Aguirre

Leniency Agreement; Leniency program; CADE Law; Anticorruption Law; Odebrecht case.

The Brazilian Competition Defense System, built by Law 12,529 / 2011, received, in 2013, an important contribution from the Anti-Corruption Law (Law 12,846). In one of the aspects in common, the laws stipulate the Leniency Program or Agreement, aimed at recognizing the economic infraction and the corruptive business practice, facilitating the investigation of infractions, as well as any co-authors, in exchange for benefits regarding the punitive aspects. This essay intends, at first, to understand the origin and historical evolution of “leniency” in Brazil, differentiating the institutes foreseen in the CADE Law and in the Anticorruption Law.

Machine Learning Evidence

Fernando Silva Pereira

Artificial Intelligence; Machine Learning Evidence; Evidence; Civil Procedure Law.
 

Machine learning is a field of artificial intelligence that gives computers the ability to learn without being explicitly programmed, posing the problem of using the outputs of deep learning software as evidence in a judicial process. Focusing on Civil Procedure Law, this article aims to reflect on this problem, from the point of view of the admissibility and weight of such an evidence, giving close attention to the north-American experience, where the problem of the use of scientific and technic evidence has been largely discussed.

The curious case of the new anti-money laundering Portuguese law

João Luz Soares

Money Laundering; Portuguese AM Law 83/2017; Economic Criminal Law; Terrorism Financing. 

Starting from what is the international legislative apport, with special relevance to the 5th and 6th Community Directives, this article aims to address the new Portuguese Anti-Money Laundering Law (Law 83/2017) fragilities. More than a simple verification of the general characteristics of the aforementioned legal framework, this study intends to assert itself as a constructive criticism to the existing weaknesses (specificities) of the abovementioned law. In fact, this new anti-Money Laundering Law moves in intricacies that are difficult to implement, and the transposition of the legal framework regarding the prevention of money laundering has raised a concrete interest on the part of the legal professions that deal closely with this reality.

General regime for electronic acts - a forgotten regime

Pedro Dias Venâncio

proof; digital; document; signature; communications; electronics.
 

In addition to the digitization of physical evidence associated with the modernization of the mechanisms of the digitalized civil process, the future of Justice is closely linked to digital proof: the use of originally electronic documents to prove contracts and other legally relevant acts. The proliferation of electronic communications (replacing postal mail, fax communications and even telephone), in its multiple forms (electronic mail, instant messages, and the multiple public and private communications services provided by social networks), as well as the expansion of electronic commerce, and in particular the generalization of electronic contracting, has been increasing exponentially the use of electronic means for the practice of legal acts.