El principio de preservación en el derecho comunitario andino: un imperativo desde la seguridad jurídica

The principle of legal certainty is, essentially, all about legal predictability. At any time, the law should be clear and precise - and its effect on any contemplated courses of action should be reasonably predictable. If this is not the case, then persons and entities are in a most precarious and unsatisfactory situation - namely, one of legal uncertainty. For business persons, especially, a state of legal uncertainty can be, at the least, a hindrance and, more seriously, a deterrent. Hence legal certainty is something which is very desirable. My Thesis is that, in the legal order of the European Union (EU), there is a high level of legal certainty.The Thesis is developed in several steps. First of all, in order that my Thesis can be considered in the correct context, in Chapter 1, I outline the nature of the European Union (EU) and its legal order. I then explain what, essentially, the principle of legal certainty means and point out that it is not a principle which is unique to the EU legal order, but rather is something which is widely recognised in many legal orders. However, in the EU legal order, it is more developed. I also draw attention to the fact that, for at least two reasons, it is just not possible to attain a state of ‘absolute’ legal certainty. Still within Chapter 1, I indicate that, by referring to ‘a high level of legal certainty’ in the EU legal order, I am meaning legal certainty to such an extent that, in most situations in which persons normally find themselves, such persons will be able to know (or will at least be able easily to ascertain) what the law is and how it affects them. My Thesis is, essentially, that there is legal certainty to this extent in the EU legal order.In Chapters 2 and 3, I endeavour to show that the principle of legal certainty is both very developed and definitely does exist in the EU legal order. I do this, firstly, by discussing the various characteristics of legal certainty that have been identified by the European Court of Justice (ECJ) and, secondly, by examining the outcomes in recent cases in which a plea of an infringement of the principle of legal certainty (or of an associated concept) was raised. Thereafter, in Chapter 4, I supplement my preceding argument and line of reasoning (to that point) by demonstrating that the EU does do everything that can be considered reasonably necessary to ensure there is legal certainty in its legal order.Subsequently, in order to cover all aspects, in Chapters 5 to 8 inclusive, I analyse and discuss the criticisms that might possibly be made as to why there is not, and cannot be, legal certainty in the legal order of the European Union. In these chapters, I aim to show that such criticisms are unpersuasive.In my Thesis, I am not arguing that there is anything more than ‘a high level’ of legal certainty in the EU legal order (i.e. I am not professing that there is an extremely high level of legal certainty). In fact, there are several factors working against such a state of affairs and, in Chapter 9, I discuss these.Finally, in Chapter 10, I restate my argument by relating all the preceding chapters back to my Thesis and submit that, on the basis of the information and reasoning I have presented, my Thesis is indeed valid (namely, that there is a high level of legal certainty in the EU legal order).

Land disputes in Indonesia are still very high, including land disputes that occur on ulayat lands. In the settlement of land disputes in court, sometimes indigenous peoples have to lose in defending their rights due to the weakness of the legality factor of land ownership rights on ulayat land. To minimize customary land disputes, regulations are needed that guarantee legal protection and certainty for the customary lands of indigenous peoples. The research method used is normative legal research. In this study using a statutory approach. The analysis used is descriptive qualitative analysis. The ulayat land of the customary law community unit has received recognition regarding its existence as long as the fact is that it still exists. The acknowledgment of this existence has been stated in Article 3 of the Basic Agrarian Law, but in the implementing regulations there is still a legal vacuum that results in weak aspects of protection and legal certainty for the existence of ulayat land. The existence of customary law institutions that do not yet have legality becomes a barrier for customary law community units in defending their rights in ulayat land disputes. The existence of ulayat lands cannot be separated from the recognition of customary law communities who are part of the existence of ulayat lands. Legal certainty in providing protection for ulayat lands of customary law community units is very necessary to maintain the existence of ulayat lands.

In the community of Casaorcco, Ayacucho, customary law remains the primary mechanism for conflict resolution, coexisting with state law within a framework of legal pluralism. This study examines its role in the administration of justice, its theoretical foundations, and its impact on social cohesion and communal autonomy. Through a qualitative and ethnographic approach, including interviews with 62 community members (among them 8 leaders) and documentary analysis, it was found that the communal assembly is the main authority, imposing sanctions such as cold-water baths with nettles and communal labor. While these practices reinforce cultural identity and social order, they also spark debates regarding the proportionality of punishments and their compatibility with human rights. Communal justice, based on collective participation, lacks written regulations, leaving room for arbitrariness and tensions with state law. In this context, it is essential to articulate both systems through intercultural dialogue that balances communal autonomy with respect for fundamental rights, ensuring fair and culturally relevant justice.

Paralegals, especially those in the Indigenous Law Community, are at the forefront to help resolving problems outside the courts. However, it is necessary to examine further whether the regulation of Paralegals based on the Indigenous Law Community has legal certainty and justice? This study focuses on paralegal regulation in Indonesia and aims to analyse whether the regulation have given legal certainty and justice to Paralegals based on the Indigenous Law Community to realize legal certainty and justice. It will also discuss some ideas to strengthen the paralegal arrangement based on Customary law Community. Using both empirical and normative legal methods, this study finds that there is still lack of legal certainty and justice in the regulation of Paralegals based on customary law communities. Paralegal regulation in Indonesia is still limited to paralegals affiliated with Accredited Legal Aid Organizations in the context of the implementation of Law Number 16 of 2011 concerning Legal Aid. However, there are some efforts made to strengthen the role of Paralegals based on customary law communities for example by providing assistance in substantive and administrative training and recognizing the Customary Law Communities existence and their laws.

The Treaties establishing the European Communities have created a new legal order which can neither be explained in terms of general international law nor be described as a particular type of national law. In a series of decisions the Court of Justice has ruled that the legal system set up by the Treaties is autonomous in its own sphere. As a legal order sui generis it should be distinguished from municipal law and from international law. However, this does not mean that there is no need for close contacts between the Community legal order and the legal systems of the Member States. For its proper functioning the Community legal order depends heavily on co-operation of the Member States; the Community legal order is said to be integrated with the municipal legal systems of the Member States. Thus, with regard to the enforcement of Community Law, not only the Court of Justice but also municipal courts are obliged to apply Community Law. Other national authorities are required to ensure the implementation of Community Law by adopting laws, regulations or administrative measures.

One of the primary functions of law is to ensure that the legal structure governing all social relations is predictable, coherent, consistent and applicable. All these characteristics of law taken together are referred to as legal certainty. In traditional approaches to legal certainty, law is regarded as a hierarchic system of rules characterised by stability, clarity, uniformity, calculable enforcement, publicity and predictability. However, the current reality is that national legal systems no longer operate in isolation, but within a multilevel legal order, wherein norms created both at the international and regional level are directly applicable to national legal systems. Also norm creation is no longer the exclusive prerogative of public officials of the state: private actors have an increasing influence on norm creation as well. Social scientists have referred to this phenomenon of interacting and overlapping competences as multilevel governance. Only recently have legal scholars focused attention on the increasing interconnectedness (and therefore the concomitant loss of primacy of national legal orders) between the global, European and national regulatory spheres through the concept of multilevel regulation. In this project I use multilevel regulation as a term to characterise a regulatory space in which the process of rule making, rule enforcement and rule adjudication (regulatory life cycle) is dispersed across more than one administrative or territorial level amongst several different actors, both public and private. I draw on the concept of a regulatory space, using it as a framing device to differentiate between specific aspects of policy fields. The relationship between actors in such a space is nonhierarchical. Lack of central ordering of the regulatory life cycle within this regulatory space is the most important feature of such a space. The implications of multilevel regulation for legal certainty have attracted limited attention from scholars. The demand for legal certainty in regulatory practice is still a puzzle. I explore the idea of legal certainty in terms of perception and expectations of regulatees in the context of medical products. By medical products I mean pharmaceuticals and medical devices which can be differentiated as two regulatory spaces and therefore form two case studies. As an exploratory project, this thesis is necessarily stepping into new territory in terms of investigating legal certainty first in terms of regulatee perceptions and expectations and second, because it studies this in the context of multilevel regulation.

The Law of Regional and Multilateral Agreements: How Does Andean Community Law Relate to WTO Rules???

Each State has its own body of interlocking and complementary legal rules which taken together govern the legal relationships within the country. Within Community law these bodies of legal rules are normally called ‘legal orders’.1 Apart from these national legal orders international organizations have legal orders of their own.2 In comparison with these the legal order of the European Communities is of particular significance not only because of the large number of rules it contains, and the preponderance and the frequent direct effect of these rules for a large group of people, but also due to its homogeneity.3 Most international organizations embody their binding legal rules in treaties or conventions. These obtain force of law only after ratification by the States concerned. As in practice not all States ratify every convention, the binding force of conventions differs as regards territorial application. This precludes one convention being used for completing another. Because of the fact that not all legal rules bind the same States, they cannot form one legal order; each convention constitutes a legal order of its own. In the European Communities the three Treaties and all the rules of secondary Community law taken together form one legal order, equally binding within all Member States. The inherent unity of this legal order is of the greatest importance for its further development.4

El artículo analiza la evolución de la regulación del nombre comercial en la Comunidad Andina y en el Perú, específicamente en lo que respecta a su ámbito de protección a partir de lo establecido en el artículo 8 del Convenio de la Unión de París para la Protección de la Propiedad Industrial (CUP). Asimismo, tomando como referencia ciertos fallos emitidos por el Instituto Nacional de Defensa de la Competencia y de la Protección de la Propiedad Intelectual (IndecopI) y el Tribunal de Justicia de la Comunidad Andina, se propone una modificación a la Decisión 486 de la Comunidad Andina y al decreto legislativo 1075 a fin de actualizar la regulación del nombre comercial a los tiempos modernos y asegurar que la solución de controversias que involucren dicha figura jurídica proporcionen predictibilidad y seguridad jurídica.

Since its formal inauguration in the year 2006, the Caribbean Court of Justice (CCJ) has arguably shown itself to be quite capable of effectively dispensing with its overarching aims of consistency, coherence and legal certainty in the process of adjudication. Indeed, through the adoption of a teleological approach to the construction of the Revised Treaty of Chaguramas, the CCJ has positioned itself as a major operational component in the new Caribbean legal order, serving, as the European Court of Justice as well as several domestic courts have done, to ensure transparency and accountability. The court’s relatively nuanced purpose-driven approach has arguably been the single biggest contributing factor to the region’s quickly evolving ‘indigenous jurisprudence’. Nevertheless, some of the court’s most recent original jurisdiction decisions reveal a growing trend towards judicial restraint. The varying degrees to which the CCJ has adopted a teleological approach to the interpretation of the Revised Treaty of Chaguramas, the concomitant effects of this important development as well as the challenges which invariably arise in this connection are the subject of this article.

On 'Middle Ground': The European Community and Public International Law

There have been changes to institutions: some have had name changes (such as the ‘Assembly’ to ‘European Parliament’); some have had powers removed or added, and some have been relatively recently created (for example, the Committee of the Regions). It is therefore important to be clear about the construction of the EU, the place of the EC, its areas of

This article analyzes the application of game theory, particularly the Nash equilibrium, to the strategic design of arbitration clauses in international contracts amid global crises and geopolitical tensions. Through a qualitative, analytical, comparative, and documentary study—grounded in specialized literature, regulatory frameworks from the Andean Community, the European Union, and the United States, and landmark cases such as Occidental Petroleum Corp. v. Republic of Ecuador and Kimberly Clark y Colpapel S.A.—a legal-strategic model is proposed to optimize dispute prevention and management. The study identifies five critical variables—arbitral seat, applicable law, procedural language, confidentiality, and enforceability—and shows that cooperative configurations enhance predictability, efficiency, and legal certainty, while opportunistic strategies increase costs and risks. It concludes that integrating law, economics, and game theory strengthens cooperation and resilience in international arbitration, providing practical recommendations for lawyers, legislators, and arbitral institutions.

This study deals with the issue of public participation and legal certainty in the context of legislation in special legal order. The hypothesis of the research is that in times of crises, we cannot fully disengage from the rule of law, as the special legal order does not result in a situation of extra-legalism, as its purpose is to restore normality. The aim of this thesis is to examine how the principles of quality legislation (e.g., the right to be consulted by society, the prior assessment of the impact of legislation, or the requirement for preparation time before the legislation is put into force) that can be defined in the normal legal order apply in special legal order situations. In examining this question, the study draws on literature and case law. After clarifying the basic doctrinal concepts, the study examines the qualitative legislative requirements in the normal legal system, and then takes these as a starting point to examine the differences in special legal order. The conclusion of the study is that public participation in legislation can be restricted in special legal situations (e.g., the right to consult on legislation or the right of assembly for the collective expression of opinions), while legal security requirements such as the requirement for the adequate preparation time or the linking of special legal norms to empowerment cannot be ignored. With regard to the latter, it is particularly important that the legislator does not deviate from the purpose justifying the introduction of the special legal order, as failure to do so will cause legitimacy problems both with regard to the legislation issued and the sustainability and social support for the special legal order introduced. Only by adhering to these principles can special legal order legislation remain a process within the constitutional legal order and not outside it, and only in this way can it effectively serve the quick and efficient return to normal legal order.

The purpose of this study is to analyze and describe the legal certainty of the ownership land for Ammatoa Kajang Indigenous Peoples which around published cultivation right for legal entity and to analyze and describe the implementation of regional regulations in providing legal protection Ammatoa Kajang Indigenous Peoples rights. This research is empirical legal research that was conducted in Tamatto Village, Ujungloe District, Bulukumba Regency, South Sulawesi. The data collection techniques are interview and literature study. Data obtained in the study were primary and secondary data, analyzed qualitatively and presented descriptively. The results of the study found that the ownership of the Ammatoa Kajang Customary Law Community which around published cultivation right for legal entity had not been fulfilled and had not provided legal certainty because the land was still in the status of PT. Lonsum. The legal certainty of customary community’s cultivation rights title is exacerbated by the lack of evidence of ownership of land owned by customary law communities, which is only proven by natural evidence such as coconut wood so PT. Lonsum which is proof of legal certainty cannot be disrupted. The implementation of regional regulations in providing legal protection has not yet been fully realized. This is influenced by law enforcement factors, community factors, and cultural factors. Meanwhile, on the other hand, settlement through state law is often taken by means of repressive mediation so that the impact does not meet legal certainty for the Indigenous Peoples Law Community, even just swallowing victims and the emergence of many forms of violence.