YEAR 2021 N.º 3 Volume 26

ISSN 2182-9845

2021 N.º 3 Volume 26
EDITORIAL

Maria Regina Redinha /Maria Raquel Guimarães

Stable climate: the urgency of a right, apropos the Milieudefensie et al. v. Royal Dutch Shell case

Clima estável: a urgência de um direito, a propósito do caso Milieudefensie et al. v. Royal Dutch Shell

A preocupação social e individual com a questão ambiental e com as suas múltiplas dimensões tem já largas décadas de existência e, por conseguinte, vão-se acumulando estratos sedimentares na sua construção jurídica, sem que, verdadeiramente, possamos reconhecer um instrumento que, no plano macro ou micro jurídico da estrutura normativa se possa reconduzir à ideia de direito a...

YEAR 2021 N.º 3 Volume 26

ISSN 2182-9845

2021 N.º 3 Volume 26
EDITORIAL

Claudio Consolo

No answer to the claim and simplified approximation to the most likely factual truth

Não contestação e aproximação simplificada à mais provável verdade factual

O direito processual italiano confere pouco espaço, em geral, aos negócios processuais. Não só não conhece a figura da sentença homologatória de confissão, total ou parcial, do pedido (Anerkenntnisurteil) e da sentença homologatória da desistência do pedido (Verzichtsurteil), como nem sequer associa à revelia valor de admissão dos factos. Estas eram e continuam a ser as caraterísticas da ZPO alemã (§ 331 ZPO), propostas por Chiovenda no seu projeto para um novo Código de Processo Civil (ver, respetivamente, os artigos 78, 79 e 80 do Projeto), mas não nunca implementadas.

Regarding the CJEU of 8 October 2020 (EU v. PE Digital GmbH): supply of digital services and right of withdrawal

Rosa Barceló Compte

Digital content; digital services; consumer; right of withdrawal; distance contract.

The commentary that is addressed analyzes the judgment of the CJEU of 8 October 2020 (Case EU v. PE Digital GmbH) which examines several preliminary questions relating to the exercise of the right of withdrawal on a contract for the provision of digital services concluded at a distance. Thus, the work affects the question relating to the nature of the contract for the supply of digital content and digital services and analyzes whether one of the performances of the contractual object can be considered as digital content according to the definition provided by Directive 2019/770 of 20 May 2019 on certain aspects concerning contracts for the supply of digital content and digital services.

Third party rights to reinsurance agreement under Brazilian law: a study on facultative civil liability insurance

Mariana Cavalcanti Jardim

Insurance; Facultative civil liability insurance; Reinsurance; Third party; Cut-through Clause; Lawsuit.

Despite the impossibility to, under Brazilian law, as a rule, an insured or aggrieved third party seek payment of insurance indemnity directly from a reinsurer, it is recurrent the inclusion of reinsurers as defendants in lawsuits, especially in cases involving the purchase of facultative civil liability insurance. As a result of legislative, jurisprudential, bibliographical and documentary research, this study aims to shed light on the relationships and obligations established by reinsurance agreements and reject this unlawful practice at once.

Access to justice for consumers in globalized B2C electronic commerce. Myth or Reality?

Rolando Joaquín Ortega Hernández

Access to justice; arbitration; consumers; e-commerce, ODR.

Today, the ubiquity of the Internet raises the need to study the behavior of consumers and users from a transnational perspective, not even placing them in a region or continent, but as an essential element of world economic development. For this reason, consumer trust in cross-border e-commerce is a challenge for many political and economic global operators. It is therefore essential to create alternative methods of conflict resolution, global and harmonized to ensure the legitimate rights of consumers and users, access to justice in the broad sense, and access to, both individually and collective effective judicial protection.

The Lafarge case: tackling corporate impunity in the battlefield

Benedita Sequeira

Lafarge; corporate criminal liability; business and human rights; international humanitarian law; international criminal law; corporate responsibility.

The Lafarge case, brought before French criminal justice against parent company Lafarge, incorporated in France, and its Syrian subsidiary, Lafarge Cement Syria, for the actions of the latter in the context of the Syrian Civil War, is an important milestone in the tackling of corporate human rights and international humanitarian law harms in the battlefield context. The company stands accused of complicity in war crimes, crimes against humanity, the crime of financing terrorism and deliberate endangerment of people’s lives. The case under analysis, which awaits a decision from the French Supreme Court, sheds light on the difficulties in accessing justice and establishing corporate criminal responsibility.

The national single window for trade as a trade facilitation tool

Víctor Nikiforovich Sidorov / Elena Víctorovna Sidorova

International Economic Law; World Trade Organization; procedures obstacles to trade; trade facilitation; information technology; single window.

Trade facilitation is promoting international trade by facilitating the flow of goods and services by reducing the cost and time of cross-border trade transactions and thus eliminating procedural barriers to trade. To achieve this objective, trade facilitation as a diversified concept includes several instruments. One of the main measures that seeks to promote trade facilitation is a single window for trade. The notion and main model of the national single window bases on the Recommendation No. 33 and Guidelines on Establishing a Single Window and the World Trade Organization's Trade Facilitation Agreement.

Flight Cancellation - Extraordinary Circumstances and Compensation

Bruno Teleze Stroebel

Consumer; Passenger; Flight Cancellation; Extraordinary Circumstances; Compensation; Regulation 261/2004.

The Regulation (EC) No 261/2004 of the European Parliament and of the Council established, in 2004, common rules on compensation and assistance to air passengers in the event of denied boarding and of cancellation or long delay of flights. The Article 5(3) of the Regulation states that the operating air carrier shall not be obliged to pay compensation if it can prove that the cancellation is caused by extraordinary circumstances that could not have been avoided even if all rea-sonable measures had been taken. Thus, it was up to the Jurisprudence to analyze the situations brought to the court to exempt (or not) the air carriers from compensating their passengers.

Technology transfer agreements in the Brazilian Innovation Law: the impact of exclusivity on the exploitation of technology/ICT patent by third parties

Armando Roberto Revoredo Vicentino / Maria Gabriela Garbelotti

Technology Transfer; Licensing; Innovation Law; Exclusivity Clause; Technology Offer; Advantages and Disadvantages.

This paper aims to address the technology transfer and licensing contracts between public STIs and third parties interested in exploring their technologies, according to article 6 of the Innovation Law, in order to identify the advantages and disadvantages of the exclusivity clause for both public STI and companies, notably, in relation to the procedure to be observed by the STI, its practical problems and the possible adoption of sole licensee and priority to license clauses. For that, the methodology used is the theoretical research of bibliographic and documentary nature, with the reading and interpretation of the legislation, scientific articles and case law, starting from the inductive method to elucidate the formulated problem.

Review of J. Von Staudingers. Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen. Eckpfeiler des Zivilrechts, Berlin, Otto Schmidt/ De Gruyter, 2020

Tiago Azevedo Ramalho / Luísa Eckenroth Moreira

Civil Law; Contracts; Tort Law; Ownership; Family Law; Sucessions and wills. 

Review of J. Von Staudingers. Kommentar zum Bürgerlichen Gesetzbuch mit Einführungsgesetz und Nebengesetzen. Eckpfeiler des Zivilrechts, Berlin, Otto Schmidt/ De Gruyter, 2020