cuadernillo lecto nivel iii - 2012 - 230812

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InglésInglésInglésInglés Nivel III

2012

Programa de Lecto-comprensión: Inglés Nivel III 2

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Área Temática: The Law of Succession

Texto 1 : “The Law of Succession” ......................................................................................... 3

Texto 2 : “Succession on Intestacy” ...................................................................................... 8

Texto 3 : “The Basics of Texas Intestate Succession Law” ………………………. 13

Texto 4 : “How to Overcome the ‘Negative Will’” ………………………………….….. 17

Área Temática: Company Law

Texto 5 : “The Starting-point” ................................................................................................ 20

Texto 6 : “Juristic Persons” ...................................................................................................... 24

Texto 7 : “Convergence Past: The rise of the Corporate form” ……………….…….…

29

Texto 8 : “What Happens When a Corporation Files” ……………………………..….. 33

Área Temática: Bankruptcy

Texto 9 : “Insolvency and Bankruptcy”………………………………………………...…..

37

Texto 10 : “Dolphin Telecom Files for Creditor Protection” .................................... 41

Texto 11: “Egghead.com to File for Bankruptcy ” .............................................................. 44

Texto 12: “Bankruptcy: Chapter 11” ………………………...………………….……..……

49

Área Temática: Tort Law

Texto 13: “Asbestos claims lead RPM Int'l units to bankruptcy”……….…………… 53

Texto 14: “The Law of Torts” ................................................................................................... 57

Texto 15: “Canadian Tort Law: Causation”………………………………………………

63

Texto 16: “The Case Against Tort Reform” ……………………………………………….

68

Área Temática: Criminal Law

Texto 17: “Criminal Law and Cyber Crimes” ………………….……………………….... 72

Texto 18: “Cyber Crimes”………………………………………………...……………………

76

Texto 19: “Burden and Standard of Proof-Presumption of Innocence-Woolmington”…………………………………………………………………… 79

Texto 20: “Knife Crime is Epidemic, Top Judge Claims” ................................................ 83

Texto 21: “Air Canada Fined $1M in Disclosure Case” .................................................

86

Texto 22: “Securities Fraud” ....................................................................................................

91

Texto 23: “Latest Legal News from the Criminal Courts of Los Angeles, California and the U.S.” .......................................................................................

96

Texto 24: “Bulk Cash Smuggling into or out of the United States” ............................ 102

Texto 1: “The Law of Succession” Fuente: Harpwood, Vivienne; Alldridge, Peter: GCSE Law. 4ª Edición. Blackstone Press Limited: Londres, 1995. Págs. 256-7.


The Law of Succession

The law has developed rules to govern the disposition of a person's property on his or her death. Every person who dies will either die 'testate' (that is, having validly executed a document called a will), or 'intestate? (that is, not having executed such a document). By making a will the deceased exercises the maximum possible control over who is to inherit from him or her. It also serves to prevent argument 5 between survivors and in large estates to minimise liability to tax. The rules of intestate succession represent a guess by the legislature as to whom the deceased would have wished to have his or her property.

Valid Wills

Subject to the provisions of the Inheritance (Provision for Family and Dependants) 10 Act 1975, a person may dispose of any property which remains after the lawful debts of his or her estate have been paid, in any way at all. But in order to do this the person must execute a valid will.

Eighteen is the minimum age at which anyone can make a valid will, except for 'a soldier being in actual military service, or any mariner or seaman being at sea', 15 who may make them under age 18. Soldiers and seamen may also execute oral wills, but otherwise a will must be (Administration of Justice Act 1982 s. 17):

(a) a document in writing; and

(b) 'signed' by the testator (the person making the will); and

(c) signed by two witnesses. 20

'Signing' can include making a mark where the testator cannot read or write, but in the case where the testator cannot read there must be evidence that he or she had been properly informed of the contents of the will. The will must be signed by the testator or by someone acting under his or her direction. Someone else may sign where, for example, the testator is too weak physically to do it but is nonetheless 25 compos mentis (in one's right mind).

The function of the witnesses is to witness the signature only, not to attest to anything concerned with the contents of the will. So it is not necessary that a witness should read (or even see) the body of the will, nor know that it is a will which is being witnessed. 30

If a 'will' is not executed in this form then it will not be validly executed, and on the testator's death his or her property will pass according to the rules for intestacy. If one of the witnesses is also a beneficiary (i.e., a person receiving a gift under the will), then the gift to that beneficiary will fail and the property concerned will pass as though the deceased had died intestate in respect of that property. 35

Once a will has been validly executed, it is said to be 'ambulatory'. That is to say, it does not have an immediate effect, and is only 'activated' by the death of the testator. In between the time of the execution of the will and the death of the testator, the will may be (a) 'revoked' (cancelled), or (b) altered, by the testator.



Revocation 40

This may come about in three ways:

(a) By executing a document in the same form as he or she would have to employ to make a valid will: thus if the testator could validly make a will orally, the revocation may be made orally (Wills Act 1837 s. 20). This revoking document is often itself a new will. It is sensible (though not formally necessary) to begin a will 45 with a clause revoking any former wills.

(b) By marriage: by s. 18 of the Wills Act 1837 any will which is made before the testator's marriage is automatically revoked by that marriage (save where the will is made specifically and explicitly with that marriage in mind). However, divorce does not revoke a will made in favour of the spouse. 50

(c) By destruction: under s. 20 of the Wills Act 1837 a will may be revoked 'by burning, tearing or otherwise destroying [the will] by the testator, or by some person in his presence and by his direction, with the intention of revoking [it].' It is not enough that the will actually is destroyed. It must be shown to have been done with the intention of revoking the will. If the document is destroyed without the 55 required intention, then a copy is admissible in evidence of its contents.

Alteration

Wills may be altered before or after execution.

(a) Before execution: it is perfectly possible to alter a will before execution (i.e., before signature, etc.). Such a will is valid in the form it took when it was actually 60 executed.

(b) After execution: a will may be altered by the execution in the correct form (i.e., properly signed and witnessed) of an additional part called a codicil. If a codicil is inconsistent with the terms of the original will, the codicil, representing the later expression of the wishes of the testator, will prevail. Likewise, a later codicil will 65 prevail over an earlier one.

A will can also be altered upon its own face (for example, in a bequest of money, by crossing out one figure and inserting another). However, the amendment must have the requisite formalities (signature by or on behalf of the testator and witnesses), and is only effective if the position prior to the alteration is completely 70 obliterated (Wills Act 1838 s. 21).

Declaration Of Intent

A will is a declaration of intent only; the execution of a will does not interfere at all with the general power of an owner of property to dispose of the property during his or her own lifetime. If there is a specific bequest of property in a will and that 75 piece of property has been given away or sold by the testator during his or her life, then the gift fails.



��Actividades

1) Responder:

(a) ¿Qué requisitos debe reunirse para redactar un testamento válido?

(b) ¿Qué se entiende por el carácter modificable de los testamentos?

2) Decidir si las siguientes afirmaciones son verdaderas o falsas. En caso de ser falsas, rescribirlas de modo tal que resulten verdaderas a tenor del texto.

(a) Las normas que rigen la sucesión intestada resultan ser una interpretación de la voluntad de los causantes que no dejan testamento.

Verdadero Falso

Sería verdadera de la siguiente manera:



(b) Las normas que rigen la sucesión intestada resultan ser una interpretación de la voluntad de los causantes que no dejan testamento.

Verdadero Falso


(c) Un beneficiario que a su vez sea testigo queda anulado como testigo.

Verdadero Falso


(d) Si una persona cree que firma un contrato en calidad de testigo, cuando en realidad se trata de un testamento, entonces el testamento no es válido.

Verdadero Falso




(e) La existencia de un testamento no paraliza la libre disposición de los bienes en vida de quien lo hubiere suscripto.

Verdadero Falso


3) Completar con información del texto sobre:

(a) Revocación

(b) Modificación

Texto 2: “Succession on Intestacy” Fuente: Forsyth, T. A.: A Brief Outline to the law relating to Trusts, Wills, Executors and Administrators. 3ª Edición. The Dunmore Press Limited: Palmerston North, Nueva Zelanda: 1994..


Succession on Intestacy Chapter 8

When a person dies without leaving a valid will, she is said to die ‘intestate’. An ‘intestacy’ will also result when the deceased has left a will but all the gifts fail as, for example, when the beneficiaries have all predeceased the testator.

There will be a partial intestacy when the deceased has left a will, but has failed to dispose effectively of the whole of the estate. This will occur when the testator has 5 left specific gifts, but has not included a residuary clause to cover those assets not specifically bequeathed and gifts that fail, or when the residuary disposition itself fails. In such cases, the deceased will be deemed to have died intestate for that part of his estate not effectively disposed of under the will.

When a person has died intestate, either wholly or partially, her assets must still be 10 disposed of. The law at present in force in New Zealand governing succession on intestacy is contained in the Administration Act 1969 which, in Part III, sets out the rules of intestate succession.1

For the purposes of these rules:

A. In similar manner to what we saw in subsection 6.1.1 (General administration) 15 in connection with grants of Letters of Administration, a ‘spouse’ does not qualify as such when a separation order is in force.2

B. ‘Personal chattels’ do not correspond exactly with ‘personal property’. Not only do ‘personal chattels’ exclude leaseholds, but they also exclude any chattels (including cars) used principally for business purposes, and money and securities 20 for money (for example, mortgages and company shares).

C. ‘Issue’ means children of the intestate, plus the children of any child who has predeceased the intestate, such grandchildren (or great grandchildren, as the case may be) taking per stirpes the share that their parent would have received.

The main rules of intestate succession are: 25

1. The spouse of the intestate gets the personal chattels,3 plus $90,000.

2. The spouse of the intestate also gets one-third of the balance of the estate. The other two-thirds goes to the issue of the intestate.

3. If the intestate left no issue, the spouse gets two-thirds of the balance of the estate. The other one-third goes to the parents (or surviving parent) of the intestate. 30

1 Where a Maori has died intestate, and the estate includes a beneficial interest in Maori freehold land, see s 109

of the Maori Land Act 1993. 2 Even though such a ‘spouse’ is not entitled to succeed under the rules of intestate succession, he or she can still

bring a claim under the Family Protection Act 1955 (see subsection 1.5.2). 3 Remember that, if personal chattels are subject to a hire purchase agreement, the spouse will (as between

successors) take them free of liability for instalments due or to become due.



4. If the intestate left no issue and no parents, the balance of the estate goes to the spouse.

5. If the intestate left no spouse, the whole of the estate goes to the issue.

6. If the intestate left no spouse and no issue, the whole of the estate goes to the intestate’s parents (or surviving parent). 35

7. If the intestate left no spouse, no issue and no parents, the whole of the estate goes to the brothers and sisters of the intestate or, if a brother or sister has predeceased the intestate, to his or her issue. (You can see that the words in italics4 are significant because, if their parent has predeceased the intestate, it brings in nephews and nieces. The corresponding thing applies in 8.(c) and (d) below to 40 bring in cousins).

8. If the intestate left no spouse, no issue, no parents, no brothers or sisters, and no nephews and nieces, the estate is divided into two halves to cater for the mother’s and father’s sides of the family, respectively:

(a) The first half of the estate goes to the maternal grandparents (or surviving one), 45 while

(b) The second half of the estate goes to the paternal grandparents (or surviving one).

(c) However, if the intestate did not leave a maternal grandparent, the first half of the estate goes to the maternal uncles and aunts or, if a maternal uncle or aunt has 50 predeceased the intestate, the share goes to his or her issue and, likewise

(d) If the intestate did not leave a paternal grandparent, the second half of the estate goes to the paternal uncles or aunts or, if a paternal uncle or aunt has predeceased the intestate, the share goes to his or her issue.

9. (a) If, in addition to the foregoing defaults, the intestate left no maternal 55 grandparents, no maternal uncles or aunts, and no cousins on that side of the family, the first half of the estate goes to the other side of the family and is distributed, along with the second half, in accordance with 8.(b) and (d) above and, likewise

(b) Vice versa, in the case of the second half of the estate, if the intestate left no 60 paternal grandparents, no paternal uncles or aunts, and no cousins.

10. If nobody qualifies under 1.-9. above, the estate goes to the Crown as bona vacantia (literally, ‘goods without any apparent owner’). The Act provides that the Crown may, out of the whole or any part of the property, provide for any dependants of the intestate (whether kindred or not) and other persons for whom 65 he might reasonably have been expected to make provisions (such as a de facto spouse5).

4 Which have their foundation in s 78(3) Administration Act 1969. 5 The Courts have not yet recognised the right of a de facto spouse to bring a claim under the Family Protection

Act 1955.



��Actividades

1) Responder:

(a) ¿En qué circunstancias se afirma que una persona falleció intestada?

(b) ¿En qué casos se afirma que dicha situación es parcial?

(c) ¿Cómo define la “Administration Act 1969” la palabra descendencia?

(d) ¿Por qué hay dos referencias a la “Family Protection Act 1955”?



2) Decidir si las siguientes afirmaciones son verdaderas o falsas. Justificar las respuestas indicando el renglón de referencia.

(a) Cuando el causante no deja descendencia ni padres que lo sobrevivan, el cónyuge excluye a todo otro familiar.

Verdadero Falso

Justificación:

Renglón de referencia:

(b) Cuando el causante no tiene cónyuge supérstite, los padres excluyen a todo otro familiar.

Verdadero Falso

Justificación:


(c) Los sobrinos del causante lo suceden cuando éste no tiene cónyuge, descendencia ni padres que lo sobrevivan.

Verdadero Falso

Justificación:




(d) Los primos maternos del causante tienen derecho a sucederlo en los bienes

siempre que no exista cónyuge, descendencia, padres, hermanos, sobrinos, abuelos maternos ni tíos maternos que lo sobrevivan.

Verdadero Falso

Justificación:


(e) La Corona tiene derecho a los bienes del causante cuando nadie lo sucede.

Verdadero Falso

Justificación:


Texto 3: “The Basics of Texas Intestate Succession Law” Fuente: The Basics of Texas Intestate Succession Law- G.W. Beyer.


The Basics of Texas Intestate Succession Law

A. Choice of Law

Issues regarding the transfer of real property at death are governed by the law of the state in which the land is located. On the other hand, the law of the decedent's domicile at the time of death governs personal property matters. Thus, you may need to apply the probate law of several states to determine the proper distribution 5

of a decedent's estate.

B. Survival

To be an heir, the individual must outlive the decedent. At common law, survival for only a mere instant was sufficient. This rule led to many proof problems as family members tried to establish that one person outlived the other or vice versa. 10

(...)

To remedy this problem, Probate Code § 47 imposes a survival period of 120 hours (5 days). If a person survives the decedent but dies prior to the expiration of the survival period, the property passes as if the person had actually predeceased the decedent. 15

C. Assignment or Release of Inheritance

• 1. Before Intestate's Death.

(. . . )

• 2. After Intestate's Death

Once an heir receives the property through intestate succession, the heir may 20

assign his/her interest in the property to a third person under Probate Code § 37B. Unlike with a disclaimer under § 37A, the heir will be liable for transfer taxes and the property will become subject to the creditors of the heir.

D. Disclaimers

An heir may disclaim or renounce the person's interest in the intestate's estate. In 25

the normal course of events, heirs do not disclaim. Most people like the idea of getting something for free. However, there are many good reasons why an heir might desire to forego the offered bounty. Four of the most common reasons are as follows: (1) the property may be undesirable or accompanied by an onerous burden (e.g., littered with leaky barrels of toxic chemical waste or subject to back 30

taxes exceeding the value of the land); (2) the heir may believe that it is wrong to benefit from the death of another and refuse the property on moral or religious grounds; (3) an heir who is in debt may disclaim the property to prevent the property from being taken by the heir's creditors; and (4) the heir may disclaim to reduce the heir's transfer tax burden (a "qualified disclaimer" under I.R.C. § 2518). 35

Probate Code § 37A provides the formal requirements for effectuating a disclaimer. The heir must disclaim in a written and acknowledged (notarized) document. The writing must be filed in the court handling the estate of the decedent not later than



9 months after the deceased's death. The heir must give notice of the disclaimer to the executor or administrator of the estate by personal service or by registered or 40

certified mail.

The heir or beneficiary may "pick and choose" which assets to disclaim but if the person accepts the property, the right to disclaim is waived. Even a relatively small exercise of dominion or control over the property may prevent disclaimer. See Badouh v. Hale, 22 S.W.3d 392 (Tex. 2000) (holding that a beneficiary who used 45

property she expected to receive under a will as collateral for a loan prior to the testator's death could not disclaim because such a use was the exercise of dominion and control).

Once a valid disclaimer is made, the disclaimant is treated as predeceasing the person from whom the disclaimant is taking. The disclaimed property then passes 50

under intestacy as if the heir had died first. The disclaiming heir cannot specify the new owner of the disclaimed property. See Welder v. Hitchcock, 617 S.W.2d 294 (Tex. Civ. App.-Corpus Christi 1981, writ ref'd n.r.e.) (holding that the disclaimed property passes as if the disclaiming person is dead vis-à-vis the disclaimed property, not the entire estate). Once made, a disclaimer is irrevocable. 55

Disclaimers are an effective method for a debtor to prevent property to be inherited from falling into the hands of a creditor. The disclaimer is not a fraudulent conveyance and thus it may not be set aside by the disclaimant's creditors. However, the United States Supreme Court has held that a disclaimer will not defeat a federal tax lien. Drye v. United States, 528 U.S. 49 (1999). 60

E. Advancements

An advancement is a special type of inter vivos gift. The advancer (donor) anticipates dying intestate and the advancee (donee) is an individual who is likely to be one of the advancer's heirs. Although the gift is irrevocable and unconditional, the advancer intends the advancement to be an early distribution 65

from the advancer's estate. Thus, the advancee's share of the advancer's estate is reduced to compensate for the advancement.

When the advancer dies intestate, the advanced property is treated as if it were still in the advancer's probate estate when computing the size of the intestate shares. Thus, the advancee receives a smaller share in the estate because the advancee 70

already has part of the advancer's estate, that is, the advancement. This equalization process is referred to as going into hotchpot.

Probate Code § 44 provides that property given during an intestate's life to an heir is an advancement only if (1) the decedent acknowledges the advancement in a contemporaneous writing at the time of or prior to the transfer or (2) the heir 75

acknowledges in writing, at any time, that the transfer of property is to be treated as an advancement.



��Actividades

1) Responder o completar según corresponda:

(a) ¿Cuál es la ley aplicable en el caso de sucesiones intestadas en Texas?

(b) ¿Cuál es la condición necesaria para constituirse en heredero?

(c) ¿Cómo evolucionó dicho criterio?

(d) Con posterioridad a la muerte del causante, ¿qué consecuencias derivan de la recepción de los bienes por parte del heredero?



(e) Completar:

Disclaimer:

1. Concepto:

2. Posibles Causas:

3. Procedimiento:

4. Casos de Improcedencia:

5. Ficción que se crea en caso de procedencia:

6. Posible beneficio para el heredero deudor:

Advancements:

1. Concepto:

2. Fin:

3. Efectos después de la muerte del causante:

Texto 4: “How to Overcome the ’Negative Will’” Fuente: www.florida-probate-lawyer.com.


How to Overcome the “Negative Will”

Can disinherited heirs still take inheritance by intestacy? Sometimes a testator leaves a last will that expresses his or her intent to disinherit an heir. These wills are described under the common law, and some states’ statutes, as “negative wills.” Sometimes, the law allows a relative or heir disinherited under the negative will to nevertheless share in property that the testator failed to devise to another and as to 5

which he or she died intestate. See In re Levy’s Estate, 196 So.2d 225 (Fla 3d DCA 1967).

The Uniform Probate Code addresses the issue and provides that a decedent through a last will and testament may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate 10

succession, and if that individual or a member of that class survives the decedent, the share of the decedent’s intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his or her intestate share. Uniform Probate Code §2-101(b). Stated more plainly, if you really want to exclude a person and every descendent, relative and 15

heir of that excluded person, you need to make it crystal clear in the last will and testament.

Thus, there is different treatment under the model probate code promoted by the UPC and the existing common law of many jurisdictions in the treatment of disinherited heirs, intestate distribution, and negative wills. Because of the great 20

variance in the law’s treatment of these tricky situations, it is a good idea to follow the decisions of our sister states in order to predict how the law might progress in its treatment of this unique situation. Once such case was recently published by the Supreme Court of North Dakota in In re Estate of Samuelson, 757 N.W.2d 44 (N.D. 2008). 25

Estate of Samuelson involved the Last Will and Testament of Ernest Samuelson. Paragraph IV stated: “I give, devise, and bequeath all the rest, residue and remainder of my estate to my mother, Hulda Samuelson.” Paragraph V provided: “I have intentionally failed to provide for my half sister, Eleanor West.”

Ernest Samuelson died on August 12, 2005. He never married and did not have 30

children. His mother, Hulda Samuelson, father, Harry Samuelson, and sister, Eleanor West, all predeceased him. Eleanor West’s two granddaughters, Amanda West and Robin West, survived Ernest Samuelson.

Following the commencing of probate proceedings, Amanda West and Robin West asserted that Ernest Samuelson died intestate; therefore, they were entitled to the 35

residue of Ernest Samuelson’s estate, through intestacy law.

The case worked its way to the state’s highest court and was presented with the issue of whether Ernest Samuelson’s clear and unambiguous intent to exclude Eleanor West, as expressed in his last will and testament, also precludes Eleanor West’s heirs from inheritance. The Supreme Court observed that in paragraph IV 40



of his last will, Ernest Samuelson gave the residue of his estate to his mother, Hulda Samuelson. However, Hulda Samuelson predeceased him. Ernest Samuelson did not include a provision in his will governing the event in which his mother predeceased him. “We have not found, and the parties have not brought to our attention, case law discussing whether a testator who excludes an individual 45

by will, needs to specify whether that exclusion applies to only testate distribution, or both testate and intestate distribution.”

Next, the Court observed that Ernest Samuelson excluded Eleanor West specifically by name and relationship. He did not expressly exclude Eleanor West’s heirs, either individually or by class, and the Court was unwilling to infer Ernest 50

Samuelson intended to exclude Eleanor West’s heirs.

The Court then looked to the official comment to section 2-101 of the 1990 Uniform Probate Code, which provides an example comparable to the issue in this case. The example provides:

“G died partially intestate. G is survived by brother [H], [H's] 3 children (X, Y, and 55

Z), and the child (V), of a deceased sister. G’s will excluded [H] from sharing in G’s intestate estate. The example explains V takes one-half of G’s intestate estate, and X, Y, and Z split one-half.

The comment provides if H would not have been excluded in G’s will, he would have taken one-half of G’s intestate estate. But, since G excluded H, H’s share, 60

which was one-half of G’s estate, passed to H’s descendants via representation, as though H disclaimed his intestate share.

The court then concluded, using the same logic as the UPC’s example that since Ernest Samuelson excluded Eleanor West, the share she would have received if she had not been excluded, that being the remainder of Ernest Samuelson’s estate, 65

passes to Eleanor West’s heirs, Amanda West and Robin West. Therefore, Amanda West and Robin West qualify to take the residue of Ernest Samuelson’s estate.

��Actividades

1) Responder:

(a) ¿A qué se denomina “negative will”?



(b) ¿Qué se resolvió en Levy's Estate 96 So.2d 225 (Fla 3d DCA 1967)?

(c) ¿Qué establece el Uniform Probate Code respecto de los “negative wills”?

(d) ¿Qué dispone el testamento de Ernest Samuelson?

(e) ¿Qué situación imprevista se planteó?

(f) ¿Qué resolvió la Corte Suprema de Dakota del Norte? ¿Cuáles fueron los fundamentos de tal decisión?

Texto 5: “The Starting-point” Fuente: OLIVER M. S, MARSHALL E.A., Company Law, ME Handbooks Series UK, 1995, pages 113-115.


The Starting-point

Every subject should have a starting-point which a beginner with no previous knowledge can understand. Here it is suggested that the easiest way of beginning to study company law is to imagine that you yourself are about to 'go into business', i.e. that you have a little money saved or lent to you and are about to start a small business. 5

The first legal question which arises is: in which legal form shall the business operate? In order to decide this question it is necessary to examine the legal forms of a business and understand the differences between them. There are three:

(a) You may be a sole trader. (b) You may form a partnership with one or more other persons. 10 (c) You may form a limited company by registration under the Companies Act. Each of these must now be considered in turn.

8. As a sole trader

A sole trader is so called because he alone bears the responsibility for running the business, and he alone takes the profits. 15

He may of course be helped by his wife and family, or he may employ other people to work for him, but this does not alter the fact that the management is entirely in his hands. A person in this position has not formed any kind of “association” in law.

9. A partnership 20

In a partnership the members “associate”, i.e. they form collectively an association in which they all participate, as a rule, in management and in sharing the profits. The basic rules governing such an association are to be found in the Partnership Act 1890.

(a) Number of partners. Obviously there must be at least two members in a 25 partnership, but there may be more. There is, however, in most cases a maximum number. Section 716 Companies Act 1985, as amended by s. 145 and Schedule 19 Companies Act1989, states that this maximum is 20, but exempts from this provision partnerships of solicitors, accountants, members of a recognised stock exchange and other partnerships prescribed by regulations made by the Secretary 30 of State for Trade and Industry. If a partnership not covered by any of the exemptions has a membership of more than 20, the members must incorporate themselves by registering as a company under the Companies Act.

(b) Liability of partners. In a partnership the legal position of the members is not very different from that of a sole trader. If the firm gets into financial difficulties, 35 all the partners may find that their creditors are seeking to make them bankrupt, and since all the partners are liable for the debts of the firm, they are not protected against the possibility of total bankruptcy. At the same time, just because they are liable for the firm's debts, they may find that tradesmen are willing to give them credit on the grounds, for example, that one of the partners is known to be a very 40 wealthy person.



(c) Legal position of partners. The members of a partnership may sue and be sued collectively by using the name of the firm, but this is a matter of legal procedure only, and does not alter the fact that the action is being brought by or against the partners. [In Scotland, a partnership is a legal person distinct from the individuals 45 of whom it is composed and the action is brought by or against the partnership.] All the partners are agents for each other, i.e. each one can bind the others when he makes contracts on behalf of the firm. It follows that each partner is a principal. They are therefore all in a fiduciary relation with each other, i.e. they must not only tell each other the truth in conducting the business, but they must disclose the 50 whole truth. For instance, no partner may make a secret profit. The word “fiduciary” comes from the Latin fides, meaning trust or confidence.

(d) Rights of partners. Usually the rights of the partners are regulated by a contract drawn up between them and put in writing called the “articles” of partnership or the “partnership deed” [in Scotland, the deed of co-partnery]. The partners may 55 make what arrangements they like in this contract, but when they have not made any provision at all the position is regulated by the Partnership Act 1890. A partnership need not be created formally, however, and may arise through an oral agreement or even by conduct.

10. A limited partnership 60

There is a special type of partnership which is very rare but should be mentioned. It is called a limited partnership and is regulated by the Limited Partnerships Act 1907. Here it is possible for all the partners except one to be “limited partners”. A limited partner puts into the firm a certain amount of money, e.g. £500, and then he is not responsible for the debts of the firm above that figure. This means that he 65 can lose his £500, but cannot be made bankrupt or made to pay more than this sum. The £500 is the “limit” of his liability. He cannot, however, take part in the management of the firm.

There must always be at least one partner whose liability for the firm's debts is not limited in this way, and he is called a “general partner”. He manages the business, 70 bears the risk, but normally gets the bulk of the profits. Limited partnerships are very rare because in the same year in which they were introduced the Companies Act 1907 made it possible to form a private company, which is a much more convenient way of running a small business. The ordinary type of partnership described in 9 above, however, is very common and will be referred to later when 75 a comparison will be drawn between it and the limited company (see 4: 7).

��Actividades

1) Responder:

(a) ¿Qué se afirma en la primera oración?



(b) ¿Qué sugerencia presenta la segunda?

(c) ¿Qué situación personal podría imaginarse según el texto?

(d) ¿Qué planteos surgen en primer término?

(e) ¿Qué modos de operar comercialmente se mencionan?

2) Completar el siguiente cuadro de contenido colocando el título y el contenido que corresponde a la sección del texto según el número con que figura.

Sección 8 (renglones 14 - 19)

Título:

Contenido:




Título:

Contenido:


Título:

Contenido:

Texto 6: “Juristic Persons” Fuente: Keenan, Denis: Smith & Keenan's English Law. 11ª Edición. Pitman Publishing. Londres: 1995.


Juristic Persons

The registered joint stock company

The enormous increase in industrial activity during the industrial revolution of the last century made necessary and inevitable the emergence of the registered joint stock company and the concept of limited liability. For the first time it was possible for the small investor to contribute to the capital of a business enterprise with the assurance that, in the event of its failure, he could lose no more than the amount he 5 had contributed or agreed to contribute. The principles of 'legal entity' and 'perpetual succession' apply, whereby the joint stock company is deemed to be a distinct legal person, able to hold property and carry on business in its own name, irrespective of the particular persons who may happen to be the owners of its shares from time to time. 10

The concept of corporate personality is capable of abuse and where, for example, the concept has been used to evade legal obligations, the courts have been prepared to investigate sharp practice by individuals who are trying to hide behind a corporate mask or front.

Joint stock companies are formed by registration under the Companies Act 1985 or 15 previous Acts. The main current controlling statute is the Companies Act 1985. It provides for two types of registered companies: the Public Limited Company and the Private Company. A registered company is fully liable for its debts but the liability of the members may be limited either to the amount unpaid on their shares, i.e. a company limited by shares, or to the amount they have agreed to pay if 20 the company is brought to an end (wound up), i.e. a company limited by guarantee. Some companies are unlimited and the members are fully liable for the unpaid debts of the company if, and only if, the company goes into liquidation.

The allotted capital of a public limited company, which must before it can trade or borrow money be at least £50,000 with 25% of the nominal value and the whole of 25 any premium paid up, is usually raised by the public subscribing for its shares, which are issued with varying rights as to dividends, voting powers, and degrees of risk. Shares are freely transferable and are almost invariably listed on a recognised investment exchange such as the London Stock Exchange. When making a public issue of shares, the company is under a statutory obligation to 30 publish full particulars of the history, capital structure, loans, profit record, directors, and many other matters calculated to assist the intending shareholder to assess the possibilities of the company. Such a document is called Listing Particulars or a Prospectus, and the directors are liable to penalties for fraud, misrepresentation or failure to disclose the material information as required by the 35 Financial Services Act 1986 (for listed securities) and the Companies Act 1985 (for unlisted securities on the Unlisted Securities Market maintained by the Stock Exchange), together with the rules of a recognised investment exchange such as the London Stock Exchange.

The minimum number of members is usually two but there is no upper limit. 40 Incorporation is achieved by lodging with the Registrar of Companies certain documents of which the following are the most important:



(a) The memorandum of association is a document which defines the constitution of the company, and sets out in the Objects Clause the powers of the company. Since the passing of the Companies Act 1989 this clause no longer entirely governs the 45 activities into which the company can legally enter. In the memorandum one also finds the company's name, together with a statement that the liability of the members is limited (where this is the case); the situation of its Registered Office, i.e. England or Wales or Scotland (this governs the company's nationality and domicile); the amount of its Authorised Capital; and an Association Clause in 50 which the subscribers ask for incorporation and agree to take at least one share. Under s. 1 of the Companies Act 1985 the memorandum of a public limited company has a clause stating that that is what it is.

(b) The articles of association contain the regulations governing the relationship between the company and its members, and thus cover the internal or domestic 55 affairs of the company. Such matters as alteration of shareholders' rights, powers of directors, conduct of meetings, and resolutions, are contained in the Articles.

The directors of a company stand in the fiduciary position of agents towards the company whose money they control, and many of the provisions of the Companies Act 1985 are framed to ensure the maximum possible degree of disclosure by the 60 directors of information calculated to keep the members acquainted with the affairs of the company.

The Memorandum and Articles of Association are public documents which must be deposited with the Registrar of Companies at Companies House in Cardiff and are open to public inspection along with other records relating to charges on the 65 company's property, and copies of important resolutions. (…) Any person may inspect the Register of Members at the Registered Office of the company.

The private company, for which the usual minimum number is two members and no maximum number, is now a firmly established feature of the business world. The private company is barred by s. 170 of the Financial Services Act 1986 from going 70 to the general public for subscriptions for its securities. Since the implementation of an EC Directive by SI 1992/1699, a private company limited by shares or guarantee may be formed with only one member or allow its membership to fall to one.

Dissolution of a registered company usually takes place by the company being put 75 into liquidation, as a result of the process of winding up.

��Actividades

1) Responder:

(a) ¿Por qué se menciona el concepto de responsabilidad limitada en el primer párrafo?



(b) ¿Qué distinción se hace entre la responsabilidad de las sociedades y la de los socios en el tercer párrafo?

(c) ¿Qué se dice del capital en el cuarto párrafo?

(d) ¿De dónde emana la obligación a la que se hace referencia al mencionar la oferta pública de acciones?

(e) ¿En qué consiste dicha obligación?

(f) ¿Qué información se encuentra en el documento denominado “memorandum of association”?



2) Decidir si las siguientes afirmaciones son verdaderas o falsas. En caso de ser falsas, reescribirlas de modo tal que resulten verdaderas a tenor del texto.

(a) La única ley que rige la materia es la "Companies Act 1985".

Verdadero Falso

(b) Las “public limited companies” no cotizan sus acciones en bolsa aunque éstas pueden transferirse libremente.

Verdadero Falso

(c) Las “private companies” se forman con un mínimo de dos miembros sin máximo estipulado.

Verdadero Falso



3) Indicar la opción correcta.

(a) El término “articles of association” se entiende como:

1- los artículos del memo constitutivo 2- los artículos del instrumento constitutivo 3- el estatuto 4- el instrumento constitutivo

(b) El término “registered office” se entiende como:

1- oficina del registro 2- domicilio social 3- oficina de inscripción 4- sede registrada

Texto 7: “Convergence Past: The rise of the Corporate form” Fuente: H. Hansmann - Yale Law School Visiting, NYU School of Law- R. Kraakman- Harvard Law School.


Convergence Past: The rise of the Corporate form

We must begin with the recognition that the law of business corporations had already achieved a remarkable degree of worldwide convergence (‘uniformity’) at the end of the nineteenth century. By that time, large-scale business enterprise in every major commercial jurisdiction had come to be organized in the corporate form, and the core functional features of that form were essentially identical across 5

these jurisdictions.

Those features, which continue to characterize the corporate form today, are: (1) full legal personality, including well-defined authority to bind the firm to contracts and to bond those contracts with assets that are the property of the firm as distinct from the firm’s owners, (2) limited liability for owners and managers, (3) shared 10

ownership by investors of capital, (4) delegated management under a board structure, and (5) transferable shares.

These core characteristics, both individually and in combination, offer important efficiencies in organizing the large firms with multiple owners that have come to dominate developed market economies. What is important to note here is that, 15

while those characteristics and their associated efficiencies are now commonly taken for granted, prior to the beginning of the nineteenth century there existed only a handful of specially chartered companies that combined all five of these characteristics. The joint stock company with tradeable shares was not made generally available for business activities in England until 1844, and limited 20

liability was not added to the form until 1855. While some American states developed the form for general use a few years earlier, all general business corporation statutes appear to date from well after 1800. By around 1900, however, every major commercial jurisdiction appears to have provided for at least one standard-form legal entity with the five characteristics listed above as the default 25

rules, and this has remained the case ever since.

Thus, there was already strong and rapid convergence a century ago regarding the basic elements of the law of business corporations. It is, in general, only in the more detailed structure of corporate law that jurisdictions have varied significantly since then. 30

The five basic characteristics of the corporate form provide, by their nature, for a firm that is strongly responsive to shareholder interests. They do not, however, necessarily dictate how the interests of other participants in the firm - such as employees, creditors, other suppliers, customers, or society at large - will be accommodated. Nor do they dictate the way in which conflicts of interest among 35

shareholders themselves _ and particularly between controlling and non-controlling shareholders _ will be resolved. Throughout most of the twentieth century there has been debate over these issues, and experimentation with alternative approaches to them.



Recent years, however, have brought strong evidence of a growing consensus on 40

these issues among the academic, business, and governmental elites in leading jurisdictions. The principal elements of this consensus are that ultimate control over the corporation should be in the hands of the shareholder class; that the managers of the corporation should be charged with the obligation to manage the corporation in the interests of its shareholders; that other corporate constituencies, 45

such as creditors, employees, suppliers, and customers should have their interests protected by contractual and regulatory means rather than through participation in corporate governance; that non-controlling shareholders should receive strong protection from exploitation at the hands of controlling shareholders; and that the principal measure of the interests of the publicly traded corporation’s shareholders 50

is the market value of their shares in the firm.

For simplicity, we shall refer to the view of the corporation that comprises these elements as the standard shareholder-oriented model of the corporate form (or, for brevity, simply the standard model). ...

... Just as there was rapid crystallization of the core features of the corporate form 55

in the late nineteenth century, at the beginning of the twenty-first century we are witnessing rapid convergence on the standard shareholder-oriented model as a normative view of corporate structure and governance, and we should expect this normative convergence to produce substantial convergence as well in the practices of corporate governance and in corporate law. 60

There are three principal factors driving consensus on the standard model: the failure of alternative models; the competitive pressures of global commerce; and the shift of interest group influence in favor of an emerging shareholder class.

��Actividades

1) Responder o completar según corresponda:

(a) ¿Qué características reúne una sociedad anónima en la actualidad?



(b) Sintetizar los cambios según las fechas detalladas a continuación.

1. Antes del siglo XIX:

2. Durante el siglo XIX:

3. A comienzos del siglo XX:

4. En el siglo XXI:

(c) ¿Qué cuestiones NO están contempladas en las características básicas de las sociedades anónimas?



(d) En los últimos años se ha logrado consenso sobre los siguientes puntos:

1. Los accionistas:

2. Los administradores:

3. Los acreedores, proveedores, clientes y empleados:

4. Los accionistas minoritarios:

(e) ¿Cuáles son los factores que propician el consenso sobre el ‘standard model’?

Texto 8: “What Happens When a Corporation Files for Bankruptcy?” Fuente: www.allbusiness.com.


What Happens When a Corporation Files for Bankruptcy?

The fate of a corporation in bankruptcy — whether it goes out of business or is reorganizing in order to recover from crippling debt — is determined by federal bankruptcy law. The bankrupt corporation (i.e., "the debtor") can use Chapter 7 of the Bankruptcy Code to liquidate or Chapter 11 to reorganize the business in hopes of turning things around and becoming profitable again. 5

Under Chapter 7, the corporation must stop conducting all operations. A court-appointed trustee liquidates the company's assets and the money is used to pay off the debt. The company goes completely out of business.

In Chapter 11, management continues to run the daily business operations, but the bankruptcy court must approve all significant business decisions. Publicly held 10

companies usually choose to file under Chapter 11 rather than Chapter 7 because it allows them to continue to run their business as well as maintain some control over the bankruptcy. The U.S. Trustee appoints one or more committees to represent the creditors and stockholders in working with the corporation. A reorganization plan is developed to get the company out of debt. The plan must be confirmed by the 15

court and agreed to by the creditors, bondholders, and stockholders. The court can confirm the plan over the rejection of the creditors or stockholders if it finds that the plan treats them fairly.

The plan relieves the corporation from paying a portion of its debt so that the company can make a recovery. A committee is formed to represent the unsecured 20

creditors, including bondholders. An additional committee may be created to represent stockholders. The trustee may also create a committee to represent other creditors, such as secured creditors and employees.

After the committees develop a plan with the corporation, the bankruptcy court must find that it complies with the Bankruptcy Code before the plan can be 25

implemented. Known as plan confirmation, this process is usually completed in a few months.

Corporations that are in too much trouble to continue business operations often file under Chapter 7 and liquidate. The assets of these companies are sold for cash by the trustee, who sees to it that administrative and legal expenses are paid first. 30

Whatever remains goes to creditors. The collateral of secured creditors is returned to them. If the value of the collateral is not sufficient, they are put together with other unsecured creditors for the remainder of their claim. Other unsecured creditors and bondholders are notified of the Chapter 7 and need to file a claim in the event that any money is left for them. Stockholders generally don't receive 35

anything in return for their investment and so do not have to be notified of the Chapter 7.



Those investors whose investments were backed by collateral, such as a mortgage or other assets of the company, are paid first. Stockholders, who own the company, have taken a greater risk and are less likely to recover their loss than bondholders, 40

because bonds represent the debt of the company and the company has agreed to pay bondholders interest and to return their principal. The owners are the last to be repaid if the company fails.

A company's stocks can still be traded even after the business has filed for Chapter 11 bankruptcy. Generally, companies that file under Chapter 11 do not meet the 45

listing standards of the major stock exchanges, such as Nasdaq or the New York Stock Exchange, but their shares may continue to trade on either the OTCBB or the Pink Sheets.

Bondholders will stop receiving interest and principal payments during bankruptcy, and stockholders will stop receiving dividends. The bondholder may 50

receive new stock or bonds in exchange for their bonds. The trustee may ask the stockholder to send back their stock in exchange for new shares in the reorganized company. These may be fewer in number and lower in value than the original shares. If the corporation is insolvent, the bankruptcy court may determine that the stockholders get nothing. 55

When a corporation becomes insolvent and files for bankruptcy, the IRS will usually go after unpaid federal taxes, and it is possible for the IRS to break through the corporate firewall and pursue the owners' personal assets for payment. In general, a corporate officer or director won't be held personally liable for corporate income taxes. But if employment taxes are due, the IRS has the power to seize 60

company cars, bank accounts, or any other assets.

��Actividades

1) Responder o completar según corresponda. Utilizar sólo información contenida

en el texto.

(a) ¿En materia de concursos y quiebras, ¿qué fines persiguen los Capítulos 7 y 11?



(b) Para las sociedades reguladas por el Capitulo 11, detallar:

1. Proceso de elaboración del plan de reorganización:

2. Homologación:

3. Efectos:

4. Influencia sobre la compraventa de acciones:

5. Pago de intereses y dividendos:



(c) Para las sociedades reguladas por el Capitulo 7, detallar:

1. Liquidación y distribución de activos:

2. Situación de los acreedores con privilegio (garantía):

3. Situación de los accionistas:

4. Situación de los tenedores de bonos:

(d) ¿Qué facultades tiene la IRS en caso de insolvencia y posible quiebra de una S.A?

Texto 9: “Insolvency and Bankrupcy”

Fuente: Mulholland, R. D., Business Law Today. 4ª Edición, The Dunmore Press, Palmerston North, Nueva Zelanda: 1995. Págs. 405-7.


Insolvency and Bankruptcy

Objects of the law

In former times the non-payment of one's legitimate debts was regarded, not only as immoral, but as criminal. It was thus regarded as proper that appropriate action be taken against such persons and, until the eighteenth century physical punishments, such as being placed in the pillory and having one's ear cut off, were 5 frequently carried out against debtors. Even well into the nineteenth century, as the readers of Dickens will be well aware, the debtors' prison was a feature of English life.

Not only was the physical person of the debtor at the mercy of his creditors, but the property was at the disposal of the moneylenders to deal with as they pleased. 10 This meant that there was no thought of equity between the various creditors. The claims of the most rapacious among the creditors were likely to be satisfied at the expense of those who were more hesitant in their conduct. The creditors acted individually to satisfy their debts, and there was no thought of collective action on behalf of all creditors so that the assets of the debtor could be equitably divided 15 among them.

It was not until the United Kingdom Bankruptcy Act 1883 that the contemporary law evolved. The New Zealand Bankruptcy Act 1908 was based upon the English legislation, and that was superseded by the Insolvency Act 1967, which is now in force. The 1967 Act is substantially a code of the contemporary law. 20

The broad objects of the law may be set out as follows:

(a) To provide justice to the debtor by allowing this person to be extricated from a state of indebtedness, but at the same time permitting the retention of such minimum by way of property as to enable restart in life.

(b) To provide justice for all the different creditors so that the property of the 25 bankrupt which is available for distribution is equitably divided with no creditor being favoured, without good reason, at the expense of the others.

(c) To eliminate the element of criminality from bankruptcy proceedings.

(d) To provide a machinery whereby an insolvent party can satisfy debts without having to go through the procedure of bankruptcy. This machinery was novel to 30 the 1967 Act.

(e) To provide a way out of an impasse which arises when creditors are pressing for payment and the debtor, even if he or she is a model of honesty and has the best will in the world, is quite unable to pay the debts.

The law relating to insolvency and bankruptcy serves an important function in the 35 commercial community by providing an ultimate guarantee for every debt. The advancement of credit is a vital feature of our business life, and without the existence of a rational system to underpin the repayment of debts the propensity to advance credit would be substantially reduced. This is despite the fact that no




creditor, when making a loan, relishes the thought of having to sue to recover the 40 money.

The law provides for an Official of the court, known as the Official Assignee to administer the estate of the bankrupt. This absolves individual creditors of the need to take personal direct action to enforce their claims, and provides for the impartial administration of the estate of the bankrupt by an official vested in the 45 law and practice of the particular situation. Both the debtor, creditors, and those likely to do business with the debtor, now have a clear set of rules which they know will be strictly adhered to. The result is that all parties know precisely where they stand.

Bankruptcy and insolvency 50

There is a clear division between bankruptcy and insolvency. Bankruptcy is a legal state which develops upon a debtor once a particular procedure, set out in the Insolvency Act 1967, has been executed. Bankruptcy is thus a legal status. A party who is adjudged a bankrupt in accordance with the provisions of the Insolvency Act is under a legal disability, especially with regard to his contractual capacity. 55 The bankrupt remains in that state until formally discharged from it, again in accordance with the requirements of the Act.

Insolvency is the state of being unable to pay one's debts. Legally, it is quite different from bankruptcy. It does not derive from any statutory fiat but is a phenomenon of commercial life. There is no legal disability attaching to 60 insolvency. Although it may be imprudent from a financial point of view to do business with a person in difficulty with debt, no specific legal consequence is likely to flow from such dealings.

Debt itself has become a highly structured and institutionalised practice and will normally result from a contract between the debtor and the creditor. The contract 65 will usually provide for the contingency of the debtor defaulting. The creditor may be able to pursue a private remedy against the debtor in accordance with the contract. However, should that creditor or some other creditor have the debtor adjudged bankrupt, all private contracts between creditor and debtor will be set aside and the provisions of the Insolvency Act will apply. 70

Merely being in debt is not, of itself, sufficient to have a party declared bankrupt. For bankruptcy proceedings to be commenced, it is necessary that not only should there be a debt owing but there should be a manifest indication that it will not be paid. The law has provided for this by stipulating a number of 'available acts of bankruptcy'. Although these are set out in the Act the expression 'act of 75 bankruptcy' is not itself defined in the Act. An 'act of bankruptcy' may be defined as an act done by the debtor, or permitted to be done by the debtor which indicates that the debt is unlikely to be paid. The existence of one or more of these acts of bankruptcy is a fundamental condition for the commencement of bankruptcy. No person can be declared a bankrupt unless one of these acts has taken place. 80




��Actividades

1) Responder:

(a) ¿De qué manera respondían antiguamente los deudores por las deudas impagas?

(b) ¿Qué beneficios trajo la ley actual para los deudores?

(c) ¿Cómo se benefician los acreedores?

(d) ¿Qué otras ventajas tiene la ley actual?




2) Completar el cuadro con información del texto comparando los conceptos de:

Bankrupcy Insolvency

(a) Naturaleza del

concepto

(b) Efecto(s) sobre el

deudor

(c) Facultad(es) de los acreedores

Si No Si No

(d) ¿Incluye al otro

término? (Justificar)

Justificación:

Justificación:

Texto 10 : “Dolphin Telecom Files for Creditor Protection” Fuente: internet: http://thestar.com/NASApp/cs/Content.../Article... del 27/07/01.


Dolphin Telecom Files for Creditor Protection

MONTREAL (CP) – A British court has given Dolphin Telecom, a subsidiary of Quebec-based Telesystem International Wireless Inc., bankruptcy protection from creditors while it attempts to restructure.

The creditor protection order was approved in court Friday for Dolphin, a cellular phone and messaging service that has been trying to build digital 5 networks in Europe.

In a statement Friday, Dolphin said it will continue to operate its network and business normally and that there will be no impact on the service it provides to its customers.

The company added that some of its operating subsidiaries in other European 10 countries are reviewing their options, including seeking court protection, or are in discussions with their main creditors.

“The company remains positive about the opportunity which exists to develop a European mobile service focused on the business customer,” Dolphin said in its statement. 15

“The company believes that with restructured liabilities, it would be in a good position to seize the opportunity.”

In May, Charles Sirois – president of parent company, Telesystem – warned at a Montreal meeting with shareholders that Dolphin Telecom could be sold if new funding wasn’t found. 20

“If we can find a way to save Dolphin, we’ll do it,” Charles Sirois told shareholders at the May 15 meeting.

Telesystem, also known as TIW (TSE:TIW), is a global mobile communications operator with over 4.2 million subscribers worldwide.

Dolphin’s cellular-phone and messaging service, now with just 61,900 25 subscribers, was conceived to cover seven Western European nations. Its top management was replaced last year following a series of technical snafus.

The company shifted its service focus to Britain and France, shelving indefinitely its expansion plans in Germany, Belgium, Portugal and Spain.

Sirois said discussions were held with an unidentified international company to 30 try to pull together as much as $400 million of new financing into the company. Speculation suggested Germany’s Deutsche Telekom was considering a partnership.

Texto 10: “Dolphin Telecom Files for Creditor Protection” Fuente: internet: http://thestar.com/NASApp/cs/Content.../Article... del 27/07/01.


��Actividades

1) Responder las siguientes preguntas.

(a) ¿A qué país refiere la lectura A?

(b) ¿Qué medida se dictó a favor de la empresa Dolphin Telecom?

(c) ¿Cuál es el impacto de esta medida en el servicio que presta a sus clientes?

(d) ¿Cuál es la situación de las subsidiarias?

(e) ¿Qué planes tiene la empresa para el mercado europeo?

Texto 10: “Dolphin Telecom Files for Creditor Protection” Fuente: internet: http://thestar.com/NASApp/cs/Content.../Article... del 27/07/01.


(f) ¿Cuál es la hipótesis de la empresa para concretar los proyectos para el mercado europeo?

(g) ¿Qué planes decidió descartar la empresa?

(h) ¿Qué opción se plantea en el último párrafo?

Texto 11: “Egghead.com to File for Bankruptcy ” Fuente: internet: http://www.nytimes.com/aponline/techno.../AP-Egghead-Bankruptcy.html? searchpv=aponline&pagewanted... del 15/08/01.


Egghead.com to File for Bankruptcy by The Associated Press

San Francisco (AP)- Online technology merchant Egghead.com Inc. on Wednesday joined the procession of unprofitable Internet business limping into bankruptcy court.

As part of its plan to file for Chapter 11 bankruptcy protection, Menlo Park-based Egghead said it would sell its Web site and other related assets to Fry's Electronics, 5 a popular chain that has grown from a single store in Silicon Valley 16 years ago to 18 stores spread through California, Texas, Arizona, and Oregon.

The Egghead assets that aren't bought by San Jose-based Fry's will be sold under the bankruptcy court's supervision, the company said.

With the decision to wind down its operations, Egghead laid off 185 employees in 10 Menlo Park and Vancouver, Wash. The 59 percent cutback left Egghead with 10 employees, down from more than 500 five months ago.

The company had been taking other extreme measures to survive.

Besides laying off workers, Egghead pared its operating expenses in the first quarter, down 49 percent from the same time last year, and in April subleased half 15 its 50,000-square-foot headquarters for an annual take of $1.4 million.

But it wasn't enough to save a company that has lost more than $345 million since its inception in 1994 as a technology products auction site called Onsale.com. The company changed its name and entered the retail business in 1999 when it bought Egghead. 20

Egghead is just the latest high-profile Internet business to land in bankruptcy court in the last four months.

Since April, prominent Web sites Quokka Sports and Webvan have taken the bankruptcy route, along with wireless Internet provider Metricom Inc. and high-speed Internet access providers Covad Communications Inc. and Rhythms 25 NetConnections Inc.

Like many failed Internet companies, Egghead's potential once enchanted Wall Street.

The stock once traded above $100 per share. On Wednesday it fell 1 cent to close at 30 cents on the Nasdaq Stock Market. The shares have been in a funk so long that 30 Nasdaq warned Egghead in April that it might be delisted.

Egghead had built one of the Internet's biggest commerce sites by retailing and auctioning more than 75,000 items – mostly computers, technology gadgets and office supplies – to 3.8 million registered customers. The company's annual revenues peaked at $541 million in 1999 before falling to $479 million last year. The 35 sales erosion continued through the first half of this year, as revenue plunged 48 percent to $136 million, leading an $12.8 million loss that left Egghead with $4.6 million in cash as of June 30.



��Actividades


(i) ¿A qué país refiere la lectura B?

(j) ¿Qué actividad desarrolla Egghead?

(k) ¿Qué decisión tomó la empresa el día miércoles?

(l) ¿Qué medidas de salvataje adoptó Egghead?

(m) ¿Qué advertencia recibió por parte de Nasdaq?



2) Ejercicio referido a textos 9 y 10. Indicar la opción correcta:

(a) La empresa Dolphin Telecom opera en:

1- Quebec, Canadá 2- Gran Bretaña 3- Alemania, Bélgica, Portugal y España

(b) Es posible que:

1- Dolphin se venda aunque se consiga financiamiento. 2- Dolphin decida vender Telesystem si no se consigue financiamiento. 3- Telesystem decida vender Dolphin si no se consigue financiamiento.

(c) Dolphin nació de la visión de:

1- brindar un servicio de telefonía celular y mensajes para el mercado europeo. 2- Telesystem en conseguir un socio Alemán. 3- tender redes de telefonía por toda Europa.

(d) Egghead.com:

1- había comprado hace unos años a la empresa Onsale.com. 2- vendió ya sus acciones a Fry Electronics. 3- había sido comprada por Onsale.com.



(e) Las acciones de Egghead.com:

1- llegaron a cotizar a 30 centavos cada una. 2- llegaron a caer hasta cotizar a 1 centavo. 3- llegaron a cotizar como máximo a 100 dólares.

3) Ejercicio referido a textos 9 y 10. Decidir si las siguientes afirmaciones son

verdaderas o falsas. Justificar las respuestas indicando el renglón de referencia.

(a) Como parte de su plan concursal, el sitio web y otros activos de Egghead pasarían a manos de Fry's Electronics.

Verdadero Falso

Justificación:


(b) El plan de Egghead incluye la continuidad de la empresa.

Verdadero Falso

Justificación:


(c) Las pérdidas acumuladas de Egghead llegan a US$136 millones.

Verdadero Falso

Justificación:




(d) El proceso al que se sometión Egghead tiene la misma finalidad que aquel al que se sometió Dolphin Telecom.

Verdadero Falso

Justificación:


Texto 12: “Bankruptcy: Chapter 11” Fuente: Bankruptcy: Chapter 11 Reorganizations - Phillip L. Kunkel, Jeffrey A. Peterson, Jessica A. Mitchell.


Bankruptcy: Chapter 11

Introduction

Most people assume that bankruptcy means liquidating all of a debtor's nonexempt assets and distributing the proceeds among his creditors. However, the bankruptcy laws also provide for rehabilitating the debtor. Chapter 11 allows a debtor to enter into an agreement with creditors under which all or a part of the 5

business continues. The debts of the business are restructured so as to allow the debtor to continue his business operation. Chapter 11 is more complex than Chapter 12; however, it may provide an option for those farm operators whose businesses are too large for Chapter 12.

Chapter 11 10

Eligibility – If a farm debtor cannot qualify for Chapter 12, Chapter 11 provides similar reorganization possibilities. In general, any partnership, corporation or limited liability entity except a governmental unit may be a debtor in a Chapter 11 case.

Initiating a Chapter 11 Bankruptcy – To initiate a Chapter 11 case, a voluntary 15

petition is filed with the court. A schedule of assets and liabilities and a statement of financial affairs also must be filed.

Debtor-in-Possession – The objective in a Chapter 11 case is to adjust and reorganize a debtor's obligations so as to allow the business to continue. In most cases, the debtor, known as the debtor in possession once the case has begun, 20

remains in possession of his property, develops a plan, and generates funds to pay his debts. If there is evidence of mismanagement or fraud, a trustee may be appointed upon the request of creditors. The ability of the debtor to remain in possession and to continue to operate the business is a substantial reason to file a Chapter 11. The debtor can continue to raise and sell crops and livestock, use 25

equipment, and acquire the necessary inputs to continue the farming operation. A committee of creditors will generally be appointed to oversee the farming operation under the supervision of the debtor in possession once the case has been initiated.

Use of Cash Collateral/Adequate Protection – Although the ultimate goal in any 30

Chapter 11 is the formulation and acceptance of a reorganization plan, rarely does the debtor have a plan developed when the case is filed. There is thus often a period between the filing of the petition and confirmation of a plan during which business will be carried on by the debtor as the debtor in possession. As a debtor in possession, the debtor has all the rights of a bankruptcy trustee. He may generally 35

continue to use assets in the ordinary course of business without court approval.



There are, however, certain restrictions applicable when he uses cash collateral. The debtor in possession cannot use, sell, or lease "cash collateral" unless each creditor with an interest in the collateral consents or unless the court authorizes such use. To obtain court permission to use cash collateral such as proceeds of 40

stored grain, milk proceeds, or the proceeds of livestock sales, the debtor in possession must provide any creditor who holds a lien on such property with adequate protection. In other words, the creditor's secured position must be protected and not harmed by the use of the creditor's collateral.

Besides being able to continue to use the business assets, the debtor in possession is 45

authorized to borrow funds. He may obtain unsecured credit in the ordinary course of business without court approval. And he may obtain secured credit by granting a lien on unencumbered property of the estate or a subordinate lien on encumbered property with court approval. Finally, if the debtor cannot obtain credit on either an unsecured basis or by using previously unencumbered assets, a 50

super priority lien may be obtained if he can establish that any lender who also has a lien on the property will be adequately protected.

In the case of a farming operation, it is possible to obtain secured credit by using crops that are planted after the filing of the petition as collateral. If the petition has been filed prior to the planting of crops, such crops are free of the lien of any 55

prepetition creditors. In other words, the filing of a bankruptcy petition (including Chapter 7 or Chapter 12) cuts off the after acquired property clause contained in any prepetition security agreement. However, this rule does not apply to proceeds, products, offspring, rents, or profits of prepetition property. Thus, if a lender has a security interest in livestock and offspring, the security interest will extend to 60

offspring conceived and born after the filing of the case.

Sale of Assets – A farm debtor may sell any assets pior to or as part of the debtor's confirmed Chapter 11 plan. The Bankruptcy Code allows a debtor to sell (and the buyer to acquire) any assets free and clear of any liens or other encumbrances. Any liens of the farm debtor's creditors will be satisfied with the sale proceeds. If the 65

sale proceeds are not enough to pay off all the liens on the sold property, the property may still be sold and the unpaid lien holder will be left with a general unsecured claim in the bankruptcy. If the sale proceeds are enough to pay off all of the liens on the sold property, the debtor may be able to use the surplus sale proceeds to fund the Chapter 11 plan. 70



��Actividades

1) Responder:

(a) ¿Cuál es la creencia popular mayoritaria y qué suple la legislación de quiebras en tal sentido general y según el Capítulo 11?

(b) ¿Qué requisitos se deben reunir para iniciar el procedimiento falencial según el Capítulo 11?

(c) ¿Cuál es el objeto y el efecto sobre el deudor del trámite establecido según el Capítulo 11?



(d) ¿Qué le está permitido hacer al deudor durante el procedimiento del Capítulo 11?

(e) Describa sintéticamente el procedimiento de liquidación de activos según el Capítulo 11

Texto 13: “Asbestos claims lead RPM Int'l units to bankruptcy” Fuente: www.reuters.com.


Asbestos claims lead RPM Int'l units to bankruptcy

More than 10,000 asbestos lawsuits filed - No agreement with claimants prior to filing - Shares of RPM slip 0.9 percent

By Tom Hals

WILMINGTON, Del., June 1 (Reuters) - Two subsidiaries of RPM International Inc filed for bankruptcy as the chemical company seeks to resolve thousands of 5

asbestos-related lawsuits, according to court documents.

The parent company also asked the bankruptcy court for an injunction to prevent it from becoming a target of plaintiffs who brought asbestos lawsuits against the bankrupt subsidiaries, according to court documents filed on Monday.

The bankrupt subsidiaries -- Specialty Products Holding Corp and Bondex 10

International Inc -- plan to use Chapter 11 to establish a trust for the payment of asbestos-related claims.

However, the companies did not enter bankruptcy with a negotiated plan or outline of a settlement for claimants, and one plaintiff attorney said he was "very troubled" by the "motives and purpose of the bankruptcy filing." 15

Specialty Products Holding is a direct parent to operating companies, that produce coatings and finishings, including DayGlo Color Corp, the world's largest producer of daylight florescent pigments.

The operating companies and RPM International are not part of the bankruptcy.

Specialty Products Holding said in a statement that it had a commitment for $40 20

million from Wells Fargo Capital Finance to fund its bankruptcy. The company listed assets and liabilities of $100 million to $500 million.

The two bankrupt subsidiaries also want a permanent injunction against any further asbestos claims related to products they made or sold.

"This action has been taken to once and for all resolve the asbestos-related Bondex 25

legacy liability," Frank Sullivan, RPM's chairman and chief executive officer, said in a statement.

Many of the alleged asbestos liabilities, at the heart of more than 10,000 lawsuits against the bankrupt subsidiaries, stem from Reardon Co, which was acquired in 1966. Reardon sold home patch and repair products that contained asbestos until 30

1977.

Asbestos is a naturally occurring mineral that was once widely used in manufacturing. It has been banned by the U.S. government after it was proven to cause cancer, often in people who were exposed by breathing in asbestos particles.

The bankrupt subsidiaries had fiscal year 2009 revenue of $329 million and pretax 35

income of $19 million, which is less than 11 percent of RPM's consolidated total.



Until 2003, insurance covered 90 percent of the asbestos-related costs, according to court documents. Since then, insurers have claimed exhaustion and have stopped making payments.

In addition, after many other companies with asbestos liabilities filed for 40

bankruptcy, Specialty Products Holding and Bondex become more attractive as litigation targets, according to the court documents.

In the period 2005 to 2009, the bankrupt subsidiaries incurred asbestos costs of $60 million to $82 million annually, up from $8.2 million in 2000.

Joseph Belluck of Belluck & Fox, which is suing Bondex, said that recently, many 45

companies facing asbestos claims and filing for bankruptcy have negotiated the terms of a trust or settlement prior to entering Chapter 11.

"Of the recent vintage (of bankruptcy filings), all companies with asbestos liabilities have done it with an agreement with plaintiffs' counsel," said Belluck.

"The fact of the matter is, these companies sold products that killed people and 50

these companies should be held liable."

Shares of RPM International were down 18 cents to $19.63 in early-afternoon trading on the New York Stock Exchange.

The case is In re Specialty Products Holding Corp, U.S. Bankruptcy Court, District of Delaware, No. 10-11780. 55

��Actividades

1) Responder:

(a) ¿Qué hecho describe el título del artículo y, según el copete o subtítulo, cuáles son sus antecedentes jurídicos y su consecuencia bursátil?



(b) ¿Qué solicitó judicialmente la sociedad controlante afectada, con qué finalidad lo hizo y dónde tramita el expediente?

(c) Por su parte, ¿qué estrategia legal planean utilizar las subsidiarias fallidas?

(d) ¿A qué se dedica la empresa Specialty Products Holding y cuál es su relación jurídica con las demás empresas mencionadas en el artículo? (Aclaratoria: ¿todas ellas se ven afectadas por la quiebra?)

(e) ¿De qué se trató el anuncio financiero que formuló la empresa Specialty Products Holding?



(f) ¿Quién es Frank Sullivan y cómo explica la finalidad de la medida judicial pretendida?

(g) ¿Cuál es el argumento jurídico que hay detrás de las numerosas demandas planteadas contra las empresas fallidas?

(h) ¿Qué sucedió en el año 2003 que afectó las finanzas de las empresas fallidas?

(i) ¿Quién es Joseph Belluck y qué dice sobre este tipo de casos?

Texto 14: “The Law of Torts” Fuente: Willes, John A.: Contemporary Canadian Business Law: Principles and Cases, 4ta Edición, McGraw-Hill Ryerson Limited: Toronto, 1994.


The Law of Torts

Tort Law defined

The term tort is a legal term derived from the Latin word tortus meaning a “wrong.” Its use in law is to describe a great many activities that result in damage to others with the exception of breach of trust, a breach of duty that is entirely contractual in nature, or a breach of a merely equitable obligation.1 The term has 5 been used in English law for many hundreds of years to characterize a wrong committed by one person against another, or against the person’s property or reputation, either intentionally or unintentionally. It also generally covers cases where a person causing an injury has no lawful right to do so. Unfortunately, the term is not capable of precise definition, because the area of the law that it 10 encompasses is so broad that to determine its limits with any degree of precision would be an impossible task. We can, however, identify many of the more important areas of tort law and examine those which have a direct bearing on ordinary personal and business activities.

The Development of Tort Law 15

Some of the earliest laws made by the community or the early judges pertained to actions that are now the subject of tort law. Indeed, most of our more familiar criminal law was once tort law, and many criminal actions today still have a concurrent tort liability attached to them. Assault causing bodily harm, for example, is an act covered by the Criminal Code, where the Crown would proceed 20 against the person who committed the assault. Under tort law, the victim of the assault would also have the right to seek redress from the accused for the injury by way of civil proceedings for assault and battery.

In the past, no distinction was made between acts that were criminal, and acts that were civil in nature. Both were treated as torts in the sense that compensation 25 would be due to the victim or the victim’s family. This is not so today. Because so many torts in the past have now become crimes, modern legal writers, particularly those in the United States, distinguish the two classes by referring to crimes as “public wrongs” or “wrongs against society,” and the remainder of tort law as “private wrongs” or “wrongs against the individual.” 30

The earliest tort cases tended to reflect the injuries that a plaintiff of that era might suffer: violent assault and battery, the seizure of one’s goods, or the slander of one’s name. Today, the scope of the law of torts has broadened to the point where it encompasses a great many areas of human endeavour. Yet, for all of its applications, to modern-day activity, many of the principles and concepts date 35 back to much simpler earlier times when the courts first saw the need to remedy a wrong.

Tort law, by and large, is an attempt by the courts to cope with the changes that take place in society, and to balance as best they can individual freedom of action

1 Osborn, P. G., The Concise Law Dictionary, 4th ed. (London: Sweet & Maxwell, 1954), p. 334.



with the protection or compensation for the inevitable injury to others that the 40 exercise of such freedom occasionally produces. The development of the law of torts is essentially the development of the principles and legal fictions used by the courts to effectively maintain some sort of equilibrium between these two individual desires in an ever-increasingly complex society.

Tort situations might arise in the course of a number of business activities. It 45 would, for example, arise where a business person negligently produces a product that injures the user or consumer. It would also occur where a surgeon carelessly performs an operation on a patient, causing the patient further unnecessary pain and suffering or permanent injury.

While many areas of the law affect business, the law of torts and the law of 50 contract are the two major areas of importance in terms of rights of the parties arising out of business transactions or business activity. As a very general rule, contract law applies to business activities where the parties have voluntarily agreed to their rights and responsibilities which the courts will enforce through civil action. In the case of tort law, a party affected by a business activity which 55 causes injury need not necessarily be associated in the business transaction or activity, and in many cases may be a complete stranger to the transaction, but, nevertheless, injured by it. In this instance, tort law may provide a remedy, and in a sense, has a much broader application than contract law.

Many common business torts relate to carelessness resulting in injury or loss to a 60 client or customer, but some torts may arise out of deliberate acts. For example, for a person to deliberately enter on the private property of a landowner is the tort of trespass, and to deliberately threaten and then strike someone a blow with your fist would be an assault and battery. Because business persons are often responsible for the actions of their employees in the course of carrying out their 65 duties, liability for any tort committed by an employee in the course of business may fall on the employer as well. In the chapters in this part of the text, the law of torts and its impact on business activity is explored under the general headings of intentional and unintentional torts.

��Actividades

1) Responder:

(a) ¿Cuál es el uso jurídico del término “tort”?



(b) ¿Qué uso se le dio durante siglos en el Derecho Inglés?

(c) ¿Qué clasificaciones distingue la doctrina actual?

(d) ¿Qué finalidad persigue la justicia al entender en causas vinculadas a la materia?

(e) ¿Qué situaciones pueden dar lugar a responsabilidad en materia civil?



(f) ¿Qué se dice respecto de los empleadores en el último párrafo?

2) Decidir si las siguientes afirmaciones son verdaderas (V) o falsas (F). En caso de ser falsas, rescribirlas de modo tal que resulten verdaderas a tenor del texto.

(a) Según el Código Penal, las amenazas de daño físico que finalmente se materializan dan a la víctima la posibilidad de iniciar la causa penal.

Verdadero Falso


(b) Siempre existió una diferenciación entre actos de naturaleza penal y aquellos de naturaleza civil.

Verdadero Falso




(c) Un ejemplo de responsabilidad en el área “tort law” estaría dado por el empresario que fabrica un producto que provoca un daño al consumidor.

Verdadero Falso


(d) En líneas generales, el derecho contractual rige las actividades comerciales

por medio de las cuales las partes han pactado de conformidad derechos y obligaciones para los que en caso de incumplimiento la rama “tort law” prevé algún tipo de resarcimiento.

Verdadero Falso


(e) Los actos típicos que generan responsabilidad en esta materia son exclusivamente de carácter voluntario.

Verdadero Falso




(f) En el ámbito comercial, las personas que sufren un daño, muchas veces no tienen vínculo alguno con quienes lo provocan.

Verdadero Falso


Texto 15: “Canadian Tort Law: Causation” Fuente: http://www.duhaime.org/LegalResources/TortPersonalInjury/LawArticle74/Causation.aspx http://www.duhaime.org/LegalResources/TortPersonalInjury/LawArticle-74/Causation.aspx>


Canadian Tort Law: Causation

It is always said there must be a link of "causation" between the negligent act and the harm or damage.

"Causation is an expression of the relationship that must be found to exist between the tortious act of the wrongdoer and the injury to the victim in order to justify compensation of the latter out of the pocket of the former." (Snell v. Farrell, 5

Supreme Court of Canada, 1990)

Allen Linden in Canadian Tort Law (Butterworths Legal Publishers, 1993, p. 99) explains:

"The most commonly employed technique for determining causation-in-fact is the but for test, sometimes called the sine qua non test. It works like this: if the accident 10

would not have occurred but for the defendant's negligence, this conduct is a cause of the injury. Put another way, if the accident would have occurred just the same, whether or not the defendant acted, this conduct is not a cause of the loss. Thus, the act of the defendant must have made a difference."

Where more than one person has contributed negligent conduct resulting in 15

damage or loss, or where the plaintiff is partly negligent, the situation is covered by "negligence acts" in place in most provinces. These statutes allow a court to find more than one person as having contributed, through their negligence, to an injury for which damages are being sought.

For example, British Columbia's Negligence Act says that where, by the fault of two 20

or more persons, loss is caused to one or more of them, the liability to make good the loss shall be in proportion to the degree in which each person was at fault (expressed as a percentage). If it is not possible to establish different degrees of fault, the liability is divided equally.

In order to successfully bring a legal action against another person for negligence, 25

it is important that the plaintiff prove that the conduct of that person was the "proximate cause" of the damages or losses suffered by the plaintiff. It used to be that scientific evidence was needed to prove causation but, in Snell v. Farrell, Canada's Supreme Court greatly simplified things by saying (1) scientific evidence is not required and that (2) that causation can be inferred from the facts "in the 30

absence of evidence to the contrary adduced by the defendant."

Another important distinction of this field of Canadian law is that it is not enough to show that the defendant's action caused the damages or losses but that, also, the negligence of the defendant was the "proximate cause" of the damage. In most cases, this will not be a difficulty as the damage or loss will ensue immediately 35

from the negligence. But in other cases, there could be intervening factors, such as the actions of other persons (eg. a rescuer), the pre-condition of the plaintiff to the



damages or losses which were suffered, and any new injury suffered as a result of the original damage or loss, such as a person who, having suffered a broken leg, then falls down stairs as a result of the crutches. 40

In Canadian Tort Law, Mr. Linden reviews the inconsistent approach of the courts to conclude that there are "no easy answers to the remoteness and proximate cause issues." He suggests that the case law is so convoluted that the courts should approach these cases "without the blinders of directness or foresight."

In the 1920s, the rule was that if an act was negligent and caused damage or loss, 45

then it was immaterial whether the damage or loss was foreseeable or not; all damage or loss from the negligent act was recoverable. This was based on a shipping case where a piece of wood was dropped into the hold of a ship. The plank, by some quirk of the way it fell, produced a spark causing a fire which destroyed the entire ship (the case is called Re Polomis and Furness). 50

In 1961, the English common law courts reversed their earlier position and held in Overseas Tankship v. Mort's Dock and Engineering that: "a man must be considered to be responsible for the probable consequences of his act. To demand more of him is too harsh a rule." The new rule became "the foresight of the reasonable man."

But in 1966, in a case called The Wagon Mound #2, the English High Court changed 55

the word "probable" to "possible" suggesting now that defendants be held liable to all the consequences of their act.

In this background, the Canadian courts struggled to find or devise a made-in-Canada solution.

…

��Actividades

1) Responder:



(a) ¿Cómo se define la ‘relación de causalidad’ en el fallo de la Corte Suprema de Canadá en 1990?

(b) ¿Cómo se determina la relación de causalidad? ¿Qué ejemplo se consigna en el texto?

(c) ¿Qué situaciones se contemplan en la Negligence Act?



(d) ¿Qué establece la Negligence Act de British Columbia?

(e) ¿Qué debe probar el actor en una demanda por negligencia?

(f) ¿Qué cambio se introdujo a partir de Snell v. Farrell?



(g) ¿Qué otro punto importante destaca el derecho canadiense en esta materia?

(h) ¿Cómo evolucionó la jurisprudencia entre 1920 y 1966? Incluir sólo los principios generales, no los ejemplos.

1. 1920:

2. 1961:

3. 1966:

Texto 16: “The Case Against Tort Reform” Fuente: September 3, 2009 By Simon, Eddins & Greenstone, LLP.


The Case Against Tort Reform

Tort reform has been a heated topic of debate for quite some time among legal professionals in the United States. For those on the outskirts of the debate, understanding the issues that come along with tort reform can be a little confusing at first. 5

To understand tort reform, one must understand the definition of a tort. Simply put, a tort is a non-criminal civil wrong that is caused either on purpose or through negligence. Or, to put it another way, torts are civil cases in which an act, intentional or otherwise, has caused injury (physical, mental or monetary). In such cases where a tort is committed, the injured party has the right to sue the 10

wrongdoer for damages.

Examples of torts include medical malpractice, assault, false imprisonment, and negligence, such as in asbestos exposure cases that cause mesothelioma.

Once the definition of tort law is known, understanding tort reform becomes much easier. Tort reform is essentially any attempt to limit someone’s rights to seek 15

redress in a court of law for a civil wrong. The most common form of tort reform is the placement of limitations on the amount that can be sought through a civil suit. For example, a particular medical malpractice case may only allow the injured party to claim a maximum of $100,000. Placing a statute of limitations on the amount of time a person has to file a claim is another example of tort reform; this 20

particular aspect of tort reform has a significant effect on the rights of mesothelioma victims to seek financial compensation for their exposure.

In a nutshell, tort reform proponents seek to limit the liabilities of negligent and knowingly injurious parties. In fact, the strongest backers of tort reform are big corporations and big insurance companies — those with the most to lose by tort 25

lawsuits.

The proponents claim such laws will reduce frivolous lawsuits, therefore reducing the cost consumers pay for insurance and products. As you’ll learn in an upcoming post in the series, tort reform that has already passed has done nothing to decrease the cost the average consumer pays; it’s a diversion to help protect the interests of 30

big corporations and a cover-up to hide the fact that they’re trying to take away your rights to a trial by jury. Tort reform takes away the rights of the victim.

Tort reform is any attempt to reduce or limit the ability of an injured party to seek compensation in a civil lawsuit. Individuals in favor of tort reform argue that limitations placed on civil wrongs help reduce the glut of frivolous lawsuits that 35

occur each year. They also see tort reform as a way to reduce high costs associated with the U.S. tort system and claim that tort reform will reduce the cost consumers pay for insurance, health care and products.

While reducing the number of frivolous lawsuits and lowering court system costs are, indeed, good ideas, that doesn’t necessarily make tort reform the right solution 40

to the problem. What many proponents of tort reform fail to mention is that tort



reform lowers the level of punishment for negligence or intended injurious acts. In the business world, everything is measured in dollars and cents. If there are fewer legal ramifications for manufacturing an unsafe product, then corporations would worry less about the safety of products entering the marketplace. 45

Corporate wrongdoing is rampant in our society. Tort law is one of the few real incentives big corporations have to produce products that are safe - if a company knows that a product it manufacturers is deadly, and that a certain percent of people that use the product will be injured and could potentially sue for millions of dollars each, they are motivated to protect themselves and therefore the consumer. 50

If this incentive was severely limited by tort reform, what would stop companies from going back to putting products as bad or worse than benzene, asbestos, or pharmaceuticals with deadly side effects back in production? Studies related to non-motor vehicle accidental death rates have indicated that tort reforms do, in fact, work to increase death rates. 55

From a medical standpoint, tort reform is often brought in the form of a statute of limitations. For example, current laws are in place that require an individual to file a claim for malpractice within two years from the date of injury. However, many individuals do not learn of the malpractice until months or years later, when the first symptoms of the unnecessary health ailment arise. By this time, tort reform 60

limitations have made it impossible to seek legal recourse.

In the case of mesothelioma, symptoms may not manifest for decades. In order to ensure that injured parties have a fair chance at receiving compensation, many experts on the subject, including our mesothelioma attorneys, feel that tort reform should be limited as much as possible. 65

��Actividades

1) Responder:

(a) ¿Qué significa el título del artículo?



(b) ¿Cómo define el texto el concepto de “tort” y qué ejemplos se dan?

(c) ¿En qué consiste la reforma del régimen jurídico de los “torts”?

(d) ¿Quiénes son los principales partidarios de dicha reforma y qué interés persiguen?



(e) ¿Según dichos partidarios de la reforma, ¿cuáles serían los beneficios de llevarla a cabo?

(f) Por el contrario, ¿cuáles son los argumentos opuestos que esgrime el autor del texto acerca de los potenciales efectos negativos que acarrearía la reforma? SINTETICE.

(g) Describa sintéticamente el planteo que se formula respecto del problema de la prescripción de estas acciones nacidas a partir de la ocurrencia de un “tort”.

Texto 17: “Criminal Law and Cyber Crimes” Fuente: Clarkson, et al., “West’s Business Law”, West Publishig Group: St. Paul: 2006 págs.: 178-180.


Criminal Law and Cyber Crimes

The law imposes various sanctions in attempting to ensure that individuals engaging in business in our society can compete and flourish. These sanctions include those imposed by civil law, such as damages for various types of tortious conduct (discussed in Chapters 6 and 7); damages for breach of contract (to be discussed in Chapter 18); and the equitable remedies discussed in Chapters 1 and 5 18. Additional sanctions are imposed under criminal law. Indeed, many statutes regulating business provide for criminal as well as civil penalties. Therefore, criminal law joins civil law as an important element in the legal environment of business.

In this chapter, after examining some essential differences between criminal law 10 and civil law, we look at how crimes are classified, the basic requirements that must be met for criminal liability to be established, the various types of crimes that exist, and the defenses that can be raised to avoid criminal liability. We conclude the chapter with a discussion of crimes that occur in cyberspace, which are often referred to as cyber crime. Generally, cyber crime refers more to the way in which 15 particular crimes are committed than to a new category of crimes.

Section 1 – Civil Law and Criminal Law

Recall from Chapter 1 that civil law pertains to the duties that exist between persons or between persons and their governments. Criminal law, in contrast, has to do with crime. A crime can be defined as a wrong against society proclaimed in 20 a statute and punishable by a fine and/or imprisonment – or, in some cases, death. As mentioned in Chapter 1, because crimes are offenses against society as a whole, they are prosecuted by a public official, such as a district attorney (D.A.) or an attorney general (A.G.), not by victims.

Major differences between Civil Law and Criminal Law 25

Because the state has extensive resources at its disposal when prosecuting criminal cases, there are numerous procedural safeguards to protect the rights of defendants. We look here at one of these safeguards – the higher standard of proof that applies in a criminal case – as well as the harsher sanctions for criminal acts compared with civil wrongs. 30

BURDEN OF PROOF In a civil case, the plaintiff usually must prove his or her case by a preponderance of the evidence. Under this standard, the plaintiff must convince the court that based on the evidence presented by both parties, it is more likely than not that the plaintiff’s allegation is true.

In a criminal case, in contrast, the state must prove its case beyond a reasonable 35 doubt. If the jury views the evidence in the case as reasonably permitting either a guilty or a not guilty verdict, then the jury’s verdict must be not guilty. In other words, the government (prosecutor) must prove that the defendant has committed every essential element of the offense with which she or he is charged beyond a reasonable doubt. If the jury is not convinced of the defendant’s guilt beyond a 40



reasonable doubt, the defendant is not guilty. Note also that in a criminal case, the jury’s verdict normally must be unanimous – agreed to by all members of the jury – to convict the defendant. (In a civil trial by jury, in contrast, typically only three-fourths of the jurors need to agree.)

The higher burden of proof in criminal cases reflects a fundamental social value – 45 the belief that it is worse to convict an innocent individual than to let a guilty person go free. We will look at other safeguards later in the chapter, in the context of criminal procedure.

CRIMINAL SANCTIONS The sanctions imposed on criminal wrongdoers are also harsher than those that are applied in civil cases. Remember from Chapters 6 and 50 7 that the purpose of tort law is to allow persons harmed by the wrongful acts of others to obtain compensation, or money damages, from the wrongdoer or to enjoin (prevent) a wrongdoer from undertaking or continuing a wrongful action. Tortfeasors are rarely subject to punitive damages – damages awarded simply to punish the wrongdoer. In contrast, criminal sanctions are designed to punish those 55 who commit crimes in order to deter others from committing similar acts in the future. Criminal sanctions include fines as well as the much harsher penalty of the loss of one’s liberty by incarceration in a jail or prison. The harshest criminal sanction is, of course, the death penalty.

Civil Liability for Criminal Acts 60

Some torts, such as assault and battery, provide a basis for a criminal prosecution as well as a civil action in tort. For example, Jonas is walking down the street, minding his own business, when a person attacks him. In the ensuing struggle, the attacker stabs Jonas several times, seriously injuring him. A police officer restrains and arrests the wrongdoer. In this situation, the attacker may be subject both to 65 criminal prosecution by the state and to a tort lawsuit brought by Jonas to obtain compensation for his injuries.

��Actividades

1) Responder:

(a) ¿Cuáles son las sanciones que prevé el derecho civil?



(b) ¿Cuáles las que prevé el derecho penal?

(c) ¿Qué significado le da el texto al término delitos cibernéticos?

(d) ¿Cómo se define la palabra delito?

(e) ¿Cómo se evalúa la prueba en una causa civil?

(f) ¿Cómo se evalúa en una causa penal?



(g) ¿En qué circunstancias debe el jurado pronunciar un veredicto de absolución?

(h) ¿Qué es lo que justifica la utilización del parámetro de evaluación de la prueba por parte del jurado en una causa penal?

2) Completar el cuadro con información del texto (en inglés):

Causa según ... Derecho civil Derecho penal

Quien impulsa la causa es ...

La conducta obrada afecta a ...

Evaluación de la prueba

Veredicto

Tipo de resarcimiento o sanción

Finalidad de la sanción

Texto 18: “Cyber Crimes” Fuente: www.findlaw.com ; criminallaw.uslegal.com.


Cyber Crimes

The body of laws governing crimes on the Internet are some of the most rapidly changing of all state laws. Controversy surrounding issues such as pornography on the Internet and the World Wide Web, the copying and posting of copyrighted information from an authorized site on the Internet to another site, and privacy of communication and access to materials on the Internet are still being hotly debated 5

and no clear method for dealing with them has yet been devised. In addition, recent efforts to regulate the world of the Internet have taken place largely in the federal level. As of this writing, major federal legislation has just been enacted that covers many activities on the Internet, but the regulations have not yet been written enforcing its various provisions and much of the act is not yet effective. 10

Accordingly, there is still much speculation about what the law means.

On the state level, the one thing upon which there is much unanimity is that theft of information or money in electronic form is much the same as theft in any other form. State laws on computer crime, therefore, focus on theft of information or money through the use of a computer or an on-line computer service. 15

Virtually every state requires that one have the requisite mental state before they may be convicted of a computer crime. One must willfully, knowingly or purposely access computer-based data and intend to steal, destroy or alter computer-based information, steal services, passwords, or otherwise interfere with hardware or software, etc. It is not enough for purposes of these laws to accidently 20 or unintentionally wander into areas on the internet where valuable or secure information may reside. If one enters such an area using computers or computer technology, his/her intent must be to steal, destroy or defraud to be found guilty of a crime.

Only a handful of states don’t explicitly ban access to certain computer files. In 25 most states mere access can be prosecuted as a crime. In addition, many states have the additional requirement that damage sustained by the victim of the crime be of a certain amount before the crime becomes a felony. For example, in New Jersey, if damage is more than $200, it is a felony. If it is less, it is a misdemeanor. The limit is $1,000 in South Dakota, $10,000 in Connecticut. In very few states, there is either 30 no misdemeanor provision at all, or no money amount distinguishing the one from the other.

As the technology becomes ubiquitous, the law in this controversial area is sure to be subject to tremendous change and development over the next few years. One new development that is only beginning is legislation regarding the use of 35 computers in acts of terrorism. To date, only two states have provisions regarding computer crimes and acts of terrorism. For example, Indiana specifically mentions terrorism, but others imply it in language that makes it a crime to use computers to disrupt government services or public utilities. It is anticipated that in the next few years there will be a growing number of states defining certain computer crimes as 40 terrorism and then enhancing the penalties for committing such crimes. In the meantime, this chapter can be used at least as a guidepost to identify the specific laws in question even if the specific provisions change in the details.



New York

Code Section Penal Code 156.00, et seq. Mental State Required for Prosecution Knowingly; intentionally 5

Misdemeanor Unauthorized use of computer is a class A misdemeanor; computer tampering in fourth degree is a class A misdemeanor Felony Computer tampering in third degree is a class E felony; computer tampering in 10

second degree is a class D felony; computer tampering in first degree is a class C felony; unlawful duplication of computer related material is a class E felony; criminal possession of computer related material is a class E felony

Texas

Code Section 15

Penal Code 33.01, et seq. Mental State Required for Prosecution Knowingly, intentionally Misdemeanor Break of computer security is class B misdemeanor; class A if the amount involved 20

is above $1,500 Felony Break of computer security is a state of jail felony if amount involved is between $1,500 and $20,000 or amount is less than $1,500 and defendant has previous conviction; felony of third degree is amount between $20,000 and $100,000; felony 25

of second degree if amount between $100,000 and $200,000; felony of first degree if amount is $200,000 or above

California

Code Section Penal Code 502 30

Mental State Required for Prosecution Knowingly, willful for additional punitive or exemplary damages Misdemeanor Access; introduce virus; traffic in providing access; theft of services valued under $400, fine up to $5000 or imprisonment in county jail for up to 1 year, for first 35

offense that doesn’t result in injury Felony Access plus scheme to defraud; alter, damage or destroy hard/software valued over $5000; theft of services valued over $400; access and alters, destroys, uses, copies, damages data or disrupts computer services punishable by fine up to 40

$10,000 or imprisonment in county jail for 1 year, for offense that results in injury or 2nd or subsequent offense.



��Actividades

1) Responder:

(a) ¿Cuáles son los temas controvertidos planteados en torno a los delitos informáticos?

(b) ¿Por contraposición a la pregunta anterior, ¿en qué tema existe unanimidad?

(c) ¿Qué requisito subjetivo imponen casi todos los estados para la configuración de un delito informático?

(d) ¿En qué criterios se basan los estados para clasificar los delitos informáticos?

(e) Teniendo en cuenta que cada Estado en los EE.UU. tiene su propia y distintiva legislación de fondo, consigne brevemente SÓLO 2 (dos) características legales distintivas de los Estados de Nueva York, Texas y California.

Texto 19: “Burden and Standard of Proof -Presumption of innocence” Fuente: Unlocking Criminal Law- Jacqueline Martin- Tony Storey- Hodder Education.


Burden and Standard of

Proof -Presumption of innocence

An accused person is presumed innocent until proven guilty. The burden is on the prosecution to prove the case. This means that they must prove both the required actus reus (physical element) and the required mens rea (fault element) The prosecution may also have to disprove a defence which the defendant raises. This was confirmed in the case of ‘Woolmington v DPP’(1935) AC 462. 5

Case example

Woolmington v DPP 1935 AC 462

D’s wife had left him and gone to live with her mother. D wanted her to return to him. He went to the mother’s house and shot his wife dead. He claimed that he had decided to ask his wife to come back to him and, if she 10

refused, to commit suicide. So he took with him a loaded shotgun. He attached a piece of wire flex to the gun so he could put the flex over his shoulder and carry the gun underneath his coat. When his wife indicated that she would not return to him, he threatened to shoot himself and brought the gun out to show her he meant it. As he brought it across his 15

waist it somehow went off, killing his wife. He claimed this was a pure accident.

The judge at the trial told the jury that the prosecution had to prove beyond reasonable doubt that the defendant killed his wife. He then went on to tell them that, if the prosecution satisfied them of that, the defendant had to show that there 20

were circumstances which made that killing pure accident. This put the burden of proof on the defendant to prove the defence. In the House of Lords it was held that this was a misdirection.

Lord Sankey stated that:

“Throughout the web of the English criminal law, one golden thread is always to be seen – 25

that it is that duty of the prosecution to prove the prisoner’s guilt... if at the end of and on

the whole of the case, there is a reasonable doubt, created by evidence given by either the

prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious

intention, the prosecution has not made out the case and the prisoner is entitled to an

acquittal. No matter what the charge or where the trial, the principle that the prosecution 30

must prove the guilt of the prisoner is part of the common law of England and no attempt

to whittle it down can be entertained’”



This judgment makes several important points which the House of Lords regards as fixed matters of English law. These are:

• The prosecution must prove the case • This rule applies to all criminal cases. • The rule must be applied in any court where there is a criminal trial. (...) • Guilt must be proved beyond reasonable doubt. • A reasonable doubt can be raised by evidence from either the prosecution or

the defence.

Raising a defence

If the defendant raises a defence then it is for the prosecution to negate that defence. In Woolmington the defendant stated that the gun had gone off accidentally, thus raising the defence of accident. The prosecution were obliged to disprove this if the defendant was to be found guilty. For all common law defences, except insanity, the defendant only has to raise some evidence of the key points of the defence. This can be from evidence given by the defence or by the prosecution. If evidence of a defence is given at the trial, then even where the defendant has not specifically raised the defence, the prosecution must disprove at least one element of that defence. The trial judge must direct the jury to acquit unless they are satisfied that the defence has been disproved by the prosecution.

Reverse onus

For certain defences, the burden of proof is on the defendant. For example, if the defendant claims that he was insane at the time of the crime, the burden of proving this is on the defendant. This shifting of the burden of proof to the defendant is known as the ‘reverse onus’. As well as the common law defence of insanity, it applies to exceptions which have been created by statute. One of these is the defence of diminished responsibility in the Homicide Act 1957, where s 2(2) states:

‘2(2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder.’

.

��Actividades

1) Responder:

(a) ¿En qué consiste el principio planteado en el primer párrafo?



(b) ¿Cuáles fueron los hechos del caso Woolmington v DPP 1935?

(c) ¿Qué instrucciones se le impartieron al jurado en primera instancia? ¿Qué consecuencias tuvo dicho proceder?

(d) ¿Cuál fue la opinión de Lord Sankey?

(e) ¿Cuál es la importancia del fallo?

(f) ¿Qué sucede cuando el acusado plantea su defensa?



(g) Hay supuestos en los que se invierte la carga de la prueba? Justificar.

(h) ¿Qué establece el art. 2.2 de la Homicide Act 1957?

Texto 20: “Knife Crime is Epidemic, Top Judge Claims” Fuente: http://www.telegraph.co.uk, by Richard Alleyne, Last Updated: 5:12PM BST 21/05/2008.


Knife Crime is Epidemic, Top Judge Claims

Knife crime has escalated to “epidemic proportions” and has to be “confronted and stopped”, said Sir Igor Judge, the President of the High Court Queen’s Bench Division.

Sir Igor, speaking as he was dealing with four unconnected cases at the Court of Appeal, said courts should be imposing the “most severe” sentences appropriate. 5

The judge, sitting with Mr Justice Griffith Williams and Mr Justice Saunders, dismissed three challenges to knife crime sentences, but allowed a fourth by a man caught with an axe during a Royal parade.

The judge’s stern remarks, mirroring public concern over rising knife crime on the nation’s streets, are likely to result in stronger sentences being passed in cases of 10 knife-related crime in the future.

Carrying a knife or offensive weapon without reasonable excuse is a crime which is being committed far too often by far too many people,” he said.

“Every weapon carried about the streets, even if concealed from sight, even if not likely to be used or intended to be used, represents a threat to public safety and 15 public order.

“That is because, even if carried only for bravado or carried for some misguided sense that it would be used in possible self-defense, it takes only a moment of irritation, drunkenness, anger, perceived insult, or something utterly trivial like a 'look’, for the weapon to be produced. 20

“Then you have mayhem, and offences of the greatest possible seriousness follow, including murder, manslaughter, GBH, wounding and assault.

“Offences of this kind have recently escalated. They are reaching epidemic proportions. Every knife or weapon carried in the street represents a public danger and, therefore, in the public interest, this crime must be confronted and stopped. 25

“The courts will do what they can to reduce and, so far as it is practicable, eradicate it. In our view, it is important for public confidence in the criminal justice system that the man or woman caught in possession of a knife or offensive weapon without reasonable excuse should normally be brought before the courts and prosecuted. 30

“Even if the offender does no more than carry the weapon, even when the weapon is not used to threaten or cause fear, when considering the seriousness of the offence, courts should bear in mind the harm which the weapon might foreseeably have caused.

“So, the message is stark: this is a serious offence and it should be treated with the 35 seriousness it deserves.”

The judges dismissed three appeals for sentences to be cut but reduced the six year term of Daniel Bleazard, 34, of Adelphi Road, Huddersfield, to five for carrying an axe as he pushed through crowds to get to the front as the Queen passed by St George’s Square in Bradford on May 24 of last year. 40



��Actividades

1) Indicar los antónimos de las siguientes palabras del texto:

(a) Unconnected

(b) Practicable

(c) Reasonable

(d) Appropriate

2) Indicar con una "X" según corresponda.

(a) ¿A qué se refiere el término “escalated” dentro del texto?

(1) subir una montaña

(2) aumentar o intensificar

(3) escala de medición

(b) ¿A qué se refiere el término “epidemic” dentro del contexto?

(1) a una enfermedad contagiosa

(2) a una cantidad importante

(3) a una oleada

(c) ¿A qué se refiere la expresión “in our view”?

(1) al alcance de nuestra vista

(2) según nuestra opinión

(3) previniendo una intención futura



(d) A Daniel Bleazard:

(1) se lo condenó a 34 años de prisión

(2) se le redujo la pena

3) Resumir en unas pocas líneas a qué se refiere el texto, y que determinaron los jueces.

Texto 21: “Air Canada Fined $1M in Disclosure Case” Fuente: internet: http//:thestar.com/NASApp/cs/Content.../ del 27/07/01


Air Canada Fined $1M in Disclosure Case

Securities regulators penalize airline over profit warnings

From Canadian Press

Air Canada has been fined more than $1 million in settling a corporate disclosure case with securities regulators in Ontario and Quebec, which accused the airline of giving analysts an early warning of lower company profits last year.

In a decision Friday, the Ontario Securities Commission and the Quebec Securities Commission announced they had approved a settlement reached earlier this week 5 with Canada's dominant airline.

Air Canada, which is based in Montreal, will pay $500,000 to each commission. In Ontario, the money will go towards investor education, while in Quebec, the cash will help finance the regulator's operations. Another $80,000 was added to the sum to cover the Ontario Securities Commission's investigation costs. 10

The decisions of the provincial regulators also force Air Canada's auditors to report quarterly on its disclosure compliance. The report has to be made public and available to members of the commission, according to the settlement.

Frank Switzer, spokesman for the Ontario commission, called the penalties “significant and appropriate under the circumstances.” 15

“I think it sends a clear message to public companies that they should not be able to favour institutional investors. I think it was made very clear by the panel that this is meant to serve as a warning.”

Regulators had accused Canada's dominant airline of passing material information to a select group of analysts last October, breaking provincial securities laws, 20 Toronto Stock Exchange rules and the airline's own internal guidelines.

Securities regulators wrangled over what to do about the accusations for months, saying there was no precedent for the selective-disclosure case.

The commissions alleged that on Oct. 5, 2000, Air Canada left a telephone message with 13 analysts, telling them its earnings for the second half of that year would be 25 $140 million less than expected because of higher fuel and other expenses and lower-than-projected revenue.

The messages were recorded after trading hours. When trading resumed the next day on the Toronto Stock Exchange, Air Canada stock opened $1 lower at $14.

The shares fell as low as $12.85 and finished at 13.25, dropping 12 per cent on the 30 day.

Air Canada didn't release any public statements until three minutes before the market closed on Oct.6. The staff of the two commissions then accused Air Canada of acting against the public interest by using selective disclosure.

In trading Friday, Air Canada shares slipped 28 cents to $7.62 on the Toronto Stock 35 Exchange.



��Actividades


(a) ¿Qué acusación recayó sobre Air Canada?

(b) ¿Cómo se decidió sancionarla?

(c) ¿Qué acuerdos alcanzó la empresa respecto de la sanción?

(d) ¿Quiénes aplican la sanción?



2) Decidir si las siguientes afirmaciones son verdaderas o falsas. Justificar la respuesta remitiéndose a las partes pertinentes en la lectura.

(a) La forma en que se sancionó a Air Canada se considera que es un llamado de atención.

Verdadero Falso

Justificación:

Lectura: Renglón/renglones de referencia:

(b) Esta no es la primera vez que se da un caso de estas características.

Verdadero Falso

Justificación:


(c) En su proceder en Canadá, la empresa quebrantó leyes provinciales, normas del mercado de valores y de las aerolíneas.

Verdadero Falso

Justificación:




(d) En los Estados Unidos las causas relacionadas con delitos en los mercados de valores tramitan por la justicia de cada estado.

Verdadero Falso

Justificación:


(e) La justicia decide, en base a las causas que le eleva la Comisión de Valores, la continuidad de los procesos penales.

Verdadero Falso

Justificación:


(f) La carga de la prueba referida a la conducta delictiva recae en la fiscalía.

Verdadero Falso

Justificación:




(g) Sólo se menciona la existencia de dos leyes que rigen la materia en los Estados Unidos.

Verdadero Falso

Justificación:


Texto 22: “Securities Fraud” Fuente: Podgor, Ellen; Israel Jerold H., White Collar Crime in a Nutshell, 2ª Edición. West Group, St. Paul, Minn., 1997. Págs. 76-7, 82-3.


Securities Fraud

Introduction

An overlap between civil and criminal law is apparent in examining cases involving securities fraud. An individual violating securities statutes can be subject to civil and administrative proceedings, criminal prosecution, or dual civil and criminal actions. (...) 5

Securities violations are typically investigated by the Securities and Exchange Commission (SEC). Most often criminal prosecutions arise when the SEC refers the matter to the Department of Justice for criminal prosecution. (15 U.S.C. § 78 u(d)). Selective enforcement of violations occurs both in the referring of matters to the Department of Justice and in their decision of whether to prosecute. 10

Although securities violations may arise under an array of federal acts, most often prosecutions under securities law emanate from the Securities Act of 1933 and the Securities Exchange Act of 1934. These acts are found in Title 15 of the United States Code.

Section 24 of the Securities Act of 1933 (15 U.S.C. § 77x) provides criminality to 15 willful violations of provisions under the Act or rules and regulations of the Commission. It also prohibits, in a registration statement filed under the Act, the making of any untrue statement of material fact or omitting to state any material fact required to be stated or necessary so as to keep a statement from being misleading. This felony offense authorizes a fine and imprisonment up to five 20 years.

The Securities Exchange Act of 1934, likewise, provides criminality to willful violations of the civil provisions of the Act. Amendments to the Securities and Exchange Act of 1934 authorize stiffer penalties than its predecessor, permitting fines up to one million dollars and imprisonment up to ten years. In the case of 25 persons other than natural persons, the fine may be increased to two million five hundred dollars. (...)

Legislative response to insider trading is seen in the passage of two congressional acts. The Insider Trading Sanctions Act (ITSA) and the Insider Trading and Securities Fraud Enforcement Act (ITSFEA) include provisions that increase the 30 penalties to individuals engaged in improper insider trading.

Insider Trading

There is an “expectation of the securities market-place that all investors trading on impersonal exchanges have relatively equal access to material information.” Securities and Exchange Commission v. Texas Gulf Sulpher Co. (2d Cir. 1968). Insider 35 trading, although not specifically defined by any statute, arises when an insider, with material nonpublic information, trades in securities without first disclosing the material inside information to the public. Issues arise as who is an insider and when it is necessary to disclose nonpublic information. Issues can also arise as to whether the information is material. 40



Insider trading prosecutions have been at the forefront of white collar crime cases. Investment bankers, lawyers, arbitragers, and financial executives have been among the many that have been indicted and convicted for violations of securities laws. In many instances the individuals reached plea agreements that required government cooperation in further investigations. Significant publicity has 45 surrounded many insider trading cases.

Insider trading cases are usually prosecuted under section 10(b) of the Securities Exchange Act of 1934 and its accompanying Rule 10b-5. The government has the burden of proving that the accused willfully employed a scheme to defraud, or misrepresented or failed to disclose a material fact, or engaged in a course of 50 business which operated as a fraud, in connection with the purchase or sale of any security. Federal jurisdiction is attained by showing that the accused used a means or instrumentality of interstate commerce, the mails, or any facility of any national securities exchange.

��Actividades


(a) ¿En cuál de las conductas prohibidas por las leyes de los Estados Unidos encuadraría la conducta de Air Canada si cotizara sus acciones en alguno de los mercados de valores de dicho país?

(b) ¿Cómo se iniciaría y tramitaría la causa en los Estados Unidos?

(c) ¿Qué sanciones se le podrían aplicar?



(d) ¿Cómo se entiende el término “insider trading”?

2) Decidir si las siguientes afirmaciones son verdaderas o falsas. Justificar la respuesta remitiéndose a las partes pertinentes en la lectura.

(a) La forma en que se sancionó a Air Canada se considera que es un llamado de atención.

Verdadero Falso

Justificación:


(b) Esta no es la primera vez que se da un caso de estas características.

Verdadero Falso

Justificación:




(c) En su proceder en Canadá, la empresa quebrantó leyes provinciales, normas del mercado de valores y de las aerolíneas.

Verdadero Falso

Justificación:


(d) En los Estados Unidos las causas relacionadas con delitos en los mercados de valores tramitan por la justicia de cada estado.

Verdadero Falso

Justificación:


(e) La justicia decide, en base a las causas que le eleva la Comisión de Valores, la continuidad de los procesos penales.

Verdadero Falso

Justificación :




(f) La carga de la prueba referida a la conducta delictiva recae en la fiscalía.

Verdadero Falso

Justificación :


(g) Sólo se menciona la existencia de dos leyes que rigen la materia en los Estados Unidos.

Verdadero Falso

Justificación :


Texto 23: “Latest Legal News from the Criminal Courts of Los Angeles, California and the U.S.” Fuente: internet: http://www.criminaldefenselawyers.com/news/December%2007/19a.htm.


Latest Legal News from the Criminal Courts of Los Angeles, California and the U.S.

December 19, 2007

Four Defendants Sentenced In Operation Funk 49

United States Attorney Karen P. Hewitt announced that four defendants prosecuted federally in “Operation Funk 49 ” were sentenced today in San Diego before United States District Court Judge Larry A. Burns in connection with their 5 guilty pleas to conspiracy to distribute methamphetamine, distribution of cocaine, and money laundering.

According to Assistant U.S. Attorney Laura E. Duffy, who prosecuted the case, the charges arose as a result of a three-year local, state, and federal law enforcement investigation into an international drug and money laundering organization based 10 in Guadalajara, Mexico. Operation Funk 49 began as a federal investigation in April 2004 when a methamphetamine user living on the streets of San Diego led to the identification of a local multi-pound methamphetamine distributor. Through the hard work and determination of agents of the Drug Enforcement Administration (DEA), Internal Revenue Service, Criminal Investigations (IRS) and 15 Immigration and Customs Enforcement (ICE), the investigation grew into a nation-wide investigation involving federal law enforcement officials in more than 10 judicial districts (including the Central District of California, Eastern District of New York, Northern District of Illinois, and Northern District of Georgia), and officials in Mexico and South America. 20

The federal portion of Funk 49 resulted in a total of 31 arrests and the seizure of 596 pounds of cocaine, 193 pounds of methamphetamine, $2,859,000 in currency, and two single-family residences valued at approximately $1,000,000 each. The New York and Atlanta parts of the federal investigation involved the prosecution of an October 2006 double homicide committed in Atlanta. 25

The defendants who were sentenced today before Judge Burns include:

Gustavo Espinoza -A United States citizen who was identified during the investigation as a multi-pound methamphetamine distributor and money collector working under the direction of one of the organization’s primary distributors in the San Diego area, Felipe Ballesteros. On August 2, 2007, Espinoza pled guilty to 30 conspiracy to distribute methamphetamine, in violation of Title 21, United States Code, Sections 841(a)(1) and 846; and bulk cash smuggling, in violation of Title18, United States Code, Section 5332(a).

Robert Galindo - A United States citizen who was involved in storing methamphetamine and drug proceeds for Felipe Ballesteros. On August 2, 2007, 35 Galindo pled guilty to two counts of using a communication device to facilitate the distribution of methamphetamine, in violation of Title 21, United States Code, Section 843(b). Galindo’s plea agreement called for his forfeiture of a single-family residence he owned in Chula Vista, CA.



Samuel Galindo - A United States citizen identified during the investigation as the 40 “straw purchaser” of a residence actually owned by Ballesteros. Galindo made monthly mortgage payments on the residence, purchased other assets, and paid monthly bills for Ballesteros using drug proceeds. On August 7, 2007, Galindo pled guilty to conspiracy to launder drug proceeds, in violation of Title 18, United States Code, Section 1956(h). Galindo’s plea agreement called for the forfeiture of 45 $102,000.

Francisco Fuentes - A United States citizen identified during the investigation as methamphetamine and cocaine transporter working under the direction of Mexico-based sources of supply. After crossing drugs into the United States, Fuentes delivered them to storage locations and collected drug proceeds to transport back 50 to Mexico. On November 28, 2007, Fuentes pled guilty to possession with intent to distribute 67.3 kilograms of cocaine, in violation of Title 21, United States Code, Section Section 841(a)(1).

Felipe Ballesteros is scheduled to be sentenced on December 17, 2007 before Judge Burns. 55

United States Attorney Hewitt said, “Funk 49 is truly a model showing how to work a case from the ground up. It demonstrates how everyday law enforcement actions as small as identifying a drug user on our streets can eventually lead to the dismantling of large drug trafficking networks.” U.S. Attorney Hewitt praised all of the federal, state, and local law enforcement officials across the country who 60 were involved in the Organized Crime Drug Enforcement Task Force (OCDETF) investigation. The OCDETF program was created to consolidate and utilize all law enforcement resources in this country’s battle against major drug trafficking.

DEA Special Agent in Charge Ralph Partridge commented, “Today’s sentencing is the result of law enforcement agencies’ tireless efforts as they pursued this drug 65 ring across the country. DEA and its law enforcement partners will continue to employ our combined resources in the fight against these ruthless drug trafficking organizations not only San Diego but cities across the country.”

IRS

“ICE is committed to working with it's federal, state, and local law enforcement 70 partners to secure the nation’s borders and dismantle the drug smuggling organizations that seek to bring dangerous drugs into our communities,” said Michael Carney, Acting Special Agent in Charge for ICE investigations in San Diego.

DEFENDANTS Case Number: 05cr2078-LAB 75 Gustavo Espinoza Robert Galindo Samuel Galindo Francisco Fuentes

SUMMARY OF CHARGES Title 21, United States Code, Sections 841(a)(1) and 846 Title18, United States Code, Section 5332(a) Title 21, United States Code, Section 843(b) 80 Title 18, United States Code, Section 1956(h)



SENTENCES RECEIVED Gustavo Espinoza - 150 months in custody, five years of supervised release and a $200 special assessment.

Francisco Fuentes - 108 months in custody, five years of supervised release, a $10,000 fine, and a $100 special assessment.

Robert Galindo - 96 months in custody, five years of supervised release, $200 special assessment and forfeiture of the single family residence located in Chula Vista, California.

Samuel Galindo - 37 months in custody, three years of supervised release, $100 special assessment and the forfeiture of $102,000.

FEDERAL INVESTIGATING AGENCIES U.S. Drug Enforcement Administration U.S. Internal Revenue Service, Criminal Investigation U.S. Immigration and Customs Enforcement

��Actividades


(a) ¿Qué anunció Karen P. Hewitt?

(b) ¿Qué cargo ocupa?

(c) ¿Qué cargo ocupa Laura E. Duffy, cuál fue su rol en esta causa y qué explicación da sobre el origen de dicha causa?



(d) ¿Qué nombre recibió la investigación y qué organismos intervinieron? ¿Por qué?

(e) ¿Qué información contiene el tercer párrafo?

(f) ¿Cuál es la situación de Felipe Vallesteros?

(g) ¿Qué se entiende por “Straw purchaser”? (renglón 41)

(h) ¿Cuál es la opinión de Hewitt respecto de la operación Funk 49?



(i) ¿Qué artículos se violaron?

(j) ¿Por qué son competentes los tribunales Federales?

(k) ¿Cuál es la opinión de Ralph Partidge y qué tareas desarrolla?

(l) ¿Quién es Michael Carney y qué comentarios hizo respecto de la causa?

(m) ¿Qué información proporciona el renglón 75 ("DEFENDANTS Case Number: 05cr2078-LAB")?



2) Completar el cuadro con la información contenida en el texto.

El juez Burns condenó a:

Fundamentos y hechos Condena aplicada

(a) Gustavo Espinosa

(b) Robert

Galindo

(c) Samuel Galindo

(d) Francisco Fuentes

Texto 24: “Bulk cash smuggling into or out of the United States” Fuente: United States Code, Title 31, Subtitle Iv, Chapter 53, Subchapter Ii, § 5332.


Bulk Cash Smuggling into or out of the United States(a) Criminal Offense.

(1) In general. Whoever, with the intent to evade a currency reporting requirement under section 5316, knowingly conceals more than $10,000 in currency or other monetary instruments on the person of such individual or in any conveyance, article of luggage, merchandise, or other container, and transports or transfers or 5 attempts to transport or transfer such currency or monetary instruments from a place within the United States to a place outside of the United States, or from a place outside the United States to a place within the United States, shall be guilty of a currency smuggling offense and subject to punishment pursuant to subsection (b). 10

(2) Concealment on person. For purposes of this section, the concealment of currency on the person of any individual includes concealment in any article of clothing worn by the individual or in any luggage, backpack, or other container worn or carried by such individual.

(b) Penalty. 15

(1) Term of imprisonment. A person convicted of a currency smuggling offense under subsection (a), or a conspiracy to commit such offense, shall be imprisoned for not more than 5 years.

(2) Forfeiture. In addition, the court, in imposing sentence under paragraph (1), shall order that the defendant forfeit to the United States, any property, real or 20 personal, involved in the offense, and any property traceable to such property.

(3) Procedure. The seizure, restraint, and forfeiture of property under this section shall be governed by section 413 of the Controlled Substances Act.

(4) Personal money judgment. If the property subject to forfeiture under paragraph (2) is unavailable, and the defendant has insufficient substitute property 25 that may be forfeited pursuant to section 413(p) of the Controlled Substances Act, the court shall enter a personal money judgment against the defendant for the amount that would be subject to forfeiture.

(c) Civil Forfeiture.

(1) In general. Any property involved in a violation of subsection (a), or a 30 conspiracy to commit such violation, and any property traceable to such violation or conspiracy, may be seized and forfeited to the United States.

(2) Procedure. The seizure and forfeiture shall be governed by the procedures governing civil forfeitures in money laundering cases pursuant to section 981 (a)(1)(A) of title 18, United States Code. 35

(3) Treatment of certain property as involved in the offense. For purposes of this subsection and subsection (b), any currency or other monetary instrument that is concealed or intended to be concealed in violation of subsection (a) or a conspiracy to commit such violation, any article, container, or conveyance used, or intended to be used, to conceal or transport the currency or other monetary instrument, and 40 any other property used, or intended to be used, to facilitate the offense, shall be considered property involved in the offense.



��Actividades


(a) ¿A qué tipo de delito hace referencia el artículo 5332 del Código de los Estados Unidos de América?

(b) ¿Qué penas se contemplan para el delito al que se refiere el artículo?

(c) ¿Cómo se configura el delito de acuerdo con el artículo 5332 (a) (2)?

(d) Explicar que establece el punto (b) (3).

(e) ¿Qué ocurre cuando la pena contemplada en (b) (2) se aplica y no hay bienes disponibles?



(f) ¿Qué establece el artículo 5332 en (c) (1)?

(g) ¿Cuál es el alcance respectivo del artículo 413, "Controlled Substances Act" y del artículo 981(a)(1)(A), "title 18 USC" en lo referente al procedimiento aplicable?

(h) ¿Qué tipo de bienes se incluyen en el artículo para la configuración del delito en cuestión?

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