Giuristi Vol. 3 Nº 5 (2022)
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Item Metadata only Actividad empresarial y rol promotor del estado en la constitución peruana de 1993(Universidad ESAN, 2022-06-24) Gasco Valer, María del CarmenThis article proposes a constitutional approach of the role of Government in Economy, and the principle of subsidiarity in the 1993 Peruvian Constitution. The proposal discusses the generally accepted notion of promotion in Public Law, as a reference to establish when Government can develop business activity within the framework of the 1993 Constitution. The discussion adopts the point of view of the Public Law to analyze the principle of subsidiarity of Government when it comes to developing business.Item Metadata only ¿Y si vamos a arbitraje? El arreglo interino multipartes de arbitraje: análisis y vacíos legales(Universidad ESAN, 2022-06-24) Manrique de Lara Seminario, Jorge LuisIn December 2019, the period of two member of the Appellate Body expired. Consequently, the Appellate Body became an inoperative institution. In this context, a group of Members of the WTO negotiated an alternative mechanism to settle their disputes: “The Interim Multi-Party Arbitration Agreement”. This paper analyses the functioning of this instrument, evinces some of the aspects not resolve by this instrument and explains that the reform of the dispute settlement system of the WTO is part of a bigger problem related to the need to reform the WTO.Item Metadata only El ejercicio del poder de dirección del empleador y sus límites frente a los derechos de los trabajadores(Universidad ESAN, 2022-06-24) Jiménez Silva, Carlos; Ramírez Sarmiento, Xiomara Jacqueline; Charre Quispe, Mónica FranccescaThe information and communication technologies applied in labor relations have a series of constitutional implications on the limits of the use of the power of management, of which there have been different pronouncements, hence the academic interest. In order to develop this topic, we have resorted to the doctrine and, from a practical point of view to the Constitutional Court Rulings and Supreme Court Cassations. The article then deals with a brief introduction, followed by some general concepts on the power of direction, which is broken down into three powers: Regulatory Power, Supervisory Power and Sanctioning Power, including in each section the analysis and notes to the various case law cases.Item Metadata only Criminalidad organizada, lavado de activos y extinción de dominio en el Perú(Universidad ESAN, 2022-06-24) Acevedo Vásquez, Daniela Patricia; Soto Palomino, Yuly; Virhuez Cerna, Flor ElizabethThe large-scale criminal phenomena that characterize our contemporary history are those related to the constitution of criminal organizations. Criminal organizations have set up a new crime, the so-called macrocriminality; it has effectively provided large criminal gangs and drug traffickers with effective tools to make greater profits, allowing them to escape possible investigations into the provenance of their income. The new forms of crimes constituted by criminal organizations significantly exceed geographical and temporal borders, which is why Peru seeks to confront and fight against this type of crime through new criminal figures.Item Metadata only Reflexiones en torno al ciberacoso laboral en el Perú(Universidad ESAN, 2022-06-24) Puntriano Rosas, CésarCyberbullying at work constitutes, undoubtedly, a form of violence exacerbated by the use of Information and Communication Technologies, of a multi-offensive nature as it involves an impairment of both unspecific and specifically labor fundamental rights. In this paper we reflect on its manifestations and the response formulated by the Peruvian labor law. For its preparation we have resorted to bibliographic research, through access to texts in English and Spanish that address cyberbullying. Likewise, the main conclusions point to rescuing how fundamental it is to adopt preventive measures, such as training staff on workplace about cyberbullying practices or how to avoid them, but also to commit the company's senior management. The level of response that the Peruvian legal system has is not optimal, since it does not require that companies implement procedures to prevent and punish acts of cyberbullying at work, however it is part of the employer’s duties the adoption of corresponding preventive mechanisms, safeguarding the rights of those involved. Ideally, this type of mechanism should have the participation of trade union organizations, but given the low unionization rate that exists in Peru, this could not be taken as a rule. However, a committee could even be formed with representation from the personnel that will be in charge of the investigation to provide impartiality to the procedure.Item Metadata only El seguro de declaraciones y garantías en transacciones de fusiones y adquisiciones(Universidad ESAN, 2022-06-24) Abad Seminario, VictorMergers and acquisitions transactions allow the intervening parties to create a specific legal regime applicable only to them, which distributes the responsibility for the goods transferred through the sale (whether shares, assets, or a combination of the latter that results in a running business). Within the framework of these legal regimes, an opportunity to reduce risks has been found in the insurance market, through the contracting of insurance policies that cover scenarios of responsibility of the sellers, in the event of falsehood, inaccuracy or non-compliance with the representations and warranties that they grant to buyers, and that result in damages to the latter or to the target company. In this article we address the complexity of this legal figure that even though it is not offered directly in the Peruvian market, it has been gaining strength in the region.
