Latin American Legal Studies

Mónica Madariaga, the Female Lawyer of the Dictatorship: Gender Performance and Professional Ascent in an Authoritarian Regime (Chile 1974- 1985)

Marianne Gonzalez Le Saux — 2025-01-03

This article focuses on the role of gender identity in the professional and political career of the female lawyer Mónica Madariaga Gutiérrez (1942-2009), who was legal counsel, secretary of state and ambassador of the Chilean Military Junta led by Augusto Pinochet, between 1973 and 1985. Through critical discourse analysis of her memoirs, interviews, and interventions in the Junta sessions, we argue that the key of her professional and political success in a military regime dominated by men was her gender performance of a subordinated masculinity, which simultaneously reproduced and challenged the patriarchal gender ideology of the military dictatorship. This study contributes to a re-reading of the political and legal history of Latin American authoritarian regimes through the lens of gender. Furthermore, it complicates the narratives regarding the access of women to the legal profession, revealing the paradoxical place occupied by conservative women who have reached positions of power in the juridical field.

Communicative reason and idea of substantive justice in Contract law. Regarding the control of content of non-negotiated clauses

Sebastián Campos — 2025-01-10

In the light of the communicative action theory and the discourse ethics, an attempt is made to show that the maxim consisting of taking unrestricted responsibility for the consequences derived from an agreement reached in conditions of procedural justice has been thematized and that it is probable, if no longer a fact, that his claim of normative correctness is rejected or at least rectified in the practical discourse of jurists. The work takes as a reference the content control of non-negotiated clauses, reviewing the existing panorama in various legal systems, its hold on rules and principles of civil law and the resignification that this has caused regarding the rules of default law. It is postulated that the rules of default law protect a minimum of substantive justice and that the parties cannot move away from them without a reasonable justification.

The attribution of civil liability for the act of auxiliary third parties of the debtor

Álvaro Vidal Olivares — 2025-01-03

Unlike what happens in extracontractual civil liability, in contractual liability there is no provision equivalent to that contained in articles 2320 and 2322 of the Civil Code that establishes a rule by which the debtor is responsible for the fact of auxiliary third parties that intervene. in the preparation and/or execution of the service. Despite not having a rule like this, it is possible to affirm the general purpose of article 1679 of the Civil Code, according to which the act or fault of the debtor includes the act or fault of the people for whom the debtor is responsible. Certain provisions of the Civil Code relating to the leasing of things make it possible to discover that these people correspond to the debtor's dependents and contractors. Suppliers do not have the status of auxiliaries to the debtor, because they are not third parties involved in the execution, but rather their activity constitutes a budget for the execution of the service or its preparation. The risk of supplier non-compliance belongs to the debtor. Depending on the way in which the auxiliary third parties intervene, the liability rule applicable to the debtor will be when the non-compliance arises from the acts of the first. The dependent auxiliaries or those who make up the debtor's organization are part of its sphere of control, so that the application of the fortuitous event does not apply. The debtor guarantees the actions of these third parties against the creditor. On the other hand, in the case of independent auxiliaries, the debtor is subject to vicarious liability whose limit is the fortuitous event. Unless auxiliary third parties are part of the sphere of control, the liability of the debtor for the act of the auxiliaries is limited to the fortuitous event.

A two-stage framework for addressing punitive damages in Chilean civil law. A comparative approach from English law

Francisco Alvarado — 2025-01-03

Punitive damages are a controversial legal figure which has been present in English common law for almost 200 years, with a presence in its statutes for practically 800 years. Although Chilean Civil Law has certain punitive notions, the so-called punitive damages have gained relevance in the last decade. Interestingly, Civil Law may offer a more systematic and coherent treatment of this type of damages than that coined in English common law. This paper explores this by answering, from a civilian perspective, when it would be reasonable to award punitive damages.

Related party transactions regulation in large intragroup transactions in Chile: law in books and law in action

Osvaldo Lagos — 2025-01-03

What is the foreseeable effect of the Chilean regulation on related party transactions with regard to large intra-group transactions? Does it succeed in deterring transactions whose purpose is to pursue benefits for the controller without generating clear benefits for the company? A first reading of the Chilean legal regulation would suggest that the legislative design of the RPT regulation sets a high standard. Consequently, it should discourage or avoid large intra-group transactions that do not pursue the corporate interest. However, the practical application of the rules shows that the regulation rests in one remedy: the publication of reports by independent appraisers, the effect of which is simply to improve —not too much— for the reference company, the conditions of large intra-group transactions.

The Fresh Start of the Bankrupt Legal Entity: Myth or Reality

Guillermo Caballero — 2025-01-03

The recognition of debts discharge at the end of a bankruptcy procedure in favor of a legal entity (and not only in favor of a natural person) is an innovation of our legal system intended to facilitate a fresh start of the legal entity. In this work we provide empirical evidence to evaluate the effectiveness of this public policy, analyzing the economic activity of more than 600 companies once the respective bankruptcy procedure is completed. The results show that only a minor subgroup of debtor companies presents some post-insolvency economic activity, but this activity is scarce and temporary, without being demonstrative of a real fresh start of the legal entity.

Are non-formalized cohabiting relationship a title that justifies the occupation of the occupant? An approach from the judgements of the Supreme Court

Boris Loayza Mosqueira — 2025-01-03

Even against the opinion of the national authors, the Supreme Court considers the
cohabiting relationship as an opposable title against actions of precarious. To justify his
position, he uses at least two criteria: the existence of children in common and the
authorizations of the owners. The idea behind this work is that these criteria do not prove to
be adequate since they do not allow the existence of an obligation of the owner to tolerate
the use of his thing the defendant does. Consequently, cohabiting relationships do not constitute an opposable title in the face of precarious claims under article 2195, paragraph
2°.

Constitutional procedure for side letters to the CPTPP

Jaime Tijmes-Ihl — 2025-01-03

The purpose of this article is to elucidate which is the competent body, in accordance with the Chilean Constitution of 1980, to revoke, by means of the side letter that the Government of Chile subscribed on February 17, 2023 with the Government of New Zealand, the acceptance that the State of Chile had granted to the investor-State dispute settlement mechanisms contained in the CPTPP. This side letter provides that no investor of the subscribing States may invoke investor-State dispute settlement against the other subscribing State under the CPTPP. This article concludes that the competent body is the President of the Republic with the approval of the National Congress.

The legal geography of property in the new Chilean Rural Development Policy: Reflections on an inherent contradiction

Eduardo Andrés Villavicencio Pinto — 2025-01-03

Chile’s new Rural Development Policy (PNDR, by its Spanish acronym) is the instrument that seeks to coordinate and guide public action for the sector, promoting a paradigm based on competitiveness. This article investigates the role played by the neoliberal property regime in this type of instrument. For this purpose, on the one hand, I present evidence regarding the sustained increase in rural land concentration in the most important forestry and agricultural regions of the country, while on the other hand, I show how the PNDR systematically fails to observe this type of phenomena directly linked to rurality. Using the lens of critical legal geography, I argue that this is an inherent contradiction, since the individual, absolute and exclusive condition of rural property prevents its strategic linkage with global and spatial phenomena.