Revista da Faculdade de Direito da Universidade Federal de Minas Gerais
NOTES ON FREEDOM OF EXPRESSION AND SOCIAL MEDIA: CHALLENGES TO DEMOCRATIC LEGITIMACY - DOI: 10.12818/P.0304-2340.2025v86p367
Based on a critical interpretative approach to Constitutional Theory and Constitutional Law, the article aims to address the emerging tension between the exercise of freedom of expression and the most recent guidelines of some of the largest online platforms (X and Meta), set against the backdrop of the requirement for democratic legitimacy in the norms proposed by both state and corporate entities. Restrictions and limits in this field must, to avoid illegitimate abuses, serve as a condition for the very possibility of public discourse. The hypothesis put forward is that, in a world marked by digital ubiquity, democratic principles need to be displaced and reinterpreted, but not abandoned as if they were anachronistic. Thus, the article seeks to demonstrate that any normative solution raised in response to the challenges posed by online platforms to established conceptions of freedom of expression must be confronted with the requirement for transparency, discursiveness, and comprehensibility in democratic deliberative processes. KEYWORDS: Freedom of Expression. Social Media. Democratic Legitimacy.
Copyright (c) 2025 REVISTA DA FACULDADE DE DIREITO DA UFMG
FUNDAMENTAL DUTY OF PARLIAMENT AND THE CHIEFS OF THE EXECUTIVE POWER TO ALLOW THE SOCIAL CONTROL - DOI: 10.12818/P.0304-2340.2025v86p115
This paper deals with a major topic in a democracy: social control (control of the Public Administration’s actions by the people). Considering Brazil is a Democratic Rule of Law State in which all power emanates from the people, popular sovereignty is one of its bases. Furthermore, Public Administration, when acting, must have the public interest as its guide, and pay attention to the principle of publicity, among others. Therefore, the State must justify its actions to its people in accordance with constitutional premises. In respect to this article, the scope deals with the publicity of administrative acts carried out by natural persons holding mandates in parliament and at the head of the Executive Branch. In addition to the duty to comply with the attributes inherent to the public function performed, these people, as citizens of a community of free and equal people, have a responsibility towards society. Thus, the research’s problem is: is there a fundamental duty in regard to the promotion of social control by these natural persons that occupies Parliament seats and in the Head of Executive Branch? To answer the question, the chosen method is Edmund Husserl’s phenomenology, revealing the phenomenon, as it presents itself in the world of life. The hypothesis brought forward is that, through the liturgy of the position held, in addition to the responsibilities arising from the execution of public activity, there is a fundamental duty, extracted from solidarity, to provide publicity for one’s actions. KEYWORDS: Social Control. Fundamental duty. Phenomenology.
THE TAXATION OF TECHNOLOGY TRANSFER AND FISCAL ISONOMY: THE EXAMPLE OF CIDE-ROYALTIES - DOI: 10.12818/P.0304-2340.2025v86p95
The present work aims to address the compatibility between CIDE-Technology and the principle of tax equality, through a qualitative approach to the issue, developed through bibliographic and documentary research, using the deductive method. The research is justified by the gigantic tax burden on technology transfer and the incompatibilities of this tax with various constitutional norms. It is concluded that, in addition to formal equality, CIDE-Technology violates the principle of material equality, as companies in similar situations must be taxed equally. KEYWORDS: CIDE-Technology. Tax Equality. Technology Transfer.
THE NEW EUROPEAN UNION DIRECTIVES ON THE DIGITALISATION OF CONTRACT LAW - DOI: 10.12818/P.0304-2340.2025v86p65
Our world is changing and the EU Directives of more than a decade do not adequately address all the challenges of electronic commerce through platforms and on digital assets. In this new environment, it is worth highlighting the enactment of two fundamental directives, which were adopted in 2019: one regulates the contract for the sale of tangible goods, though it presents the distinctive feature that its scope covers both tangible goods and those same goods with digital elements (smart goods). This is Directive (EU) 2019/771 of 20 May. The other is Directive (EU) 2019/770, of the same date as the former, which regulates the contract for the supply of digital contents and services, without specifying what type of contract should have them as its subject matter. The European legislator is thus taking into account the changes brought about by technological advances, but also introduces the idea of sustainable consumption by admitting, for the first time, that durability is a conformity requirement. KEYWORDS: Digital content and services. European private law. Consumer protection. Sales. Conformity. Durability. Remedies.
CONSENSUS IN CONSTITUTIONAL JURISDICTION: CONCILIATION AS AN INSTRUMENT IN THE JUDICIAL REVIEW BASED ON THE ANALYSIS OF ADPF Nº 829/RS - DOI: 10.12818/P.0304-2340.2025v86p275
This article aims to analyze the possibility of conciliation in the context of judicial review, as well as to systematize the limits, requirements, and potentialities of dispute resolution within constitutional jurisdiction. It is argued that this type of conciliation also represents an appropriate procedural avenue for upholding constitutionality, allowing agreements that respect democratic pluralism. However, it is acknowledged that such agreements entail several risks, including the potential cooptation of the judiciary and the exclusion of the legal community from the debate. This study employed a bibliographic review methodology, focusing on the Brazilian system of judicial review and alternative dispute resolution, as well as a case study methodology, examining the “ADPF — Ação de Descumprimento de Preceito Fundamental — de nº 829/RS”. This approach sought to realistically assess the advantages and risks associated with this type of conciliation. Ultimately, the study concluded that it is possible to achieve agreements within the framework of judicial review, provided that this procedural arena is regulated from a redistributive perspective of access to justice. KEYWORDS: Conciliation. Constitutional review. Constitutional jurisdiction. Access to justice.
A COMPLEMENTARIDADE PROCESSUAL DA GARANTIA CONVENCIONAL EUROPEIA - DOI: 10.12818/P.0304-2340.2025v86p475
LEGAL LOOPHOLES: AN ANALYSIS OF NORMATIVE VOIDS AND THEIR MANAGEMENT IN A DYNAMIC LEGAL SYSTEM - DOI: 10.12818/P.0304-2340.2025v86p41
The concept of legal gaps in civil law systems stems from the impossibility of legal norms to foresee all social situations, which generates normative gaps that require complementary mechanisms for their resolution. This article aims to analyze these gaps from a theoretical and practical perspective, exploring their nature, typologies and tools for legal integration. The methodology used combines an analytical-descriptive approach with the doctrinal and comparative analysis of legal systems. It was concluded that the existence of gaps in the legal order depends on the theoretical framework adopted. For those who believe in the integrity of the legal order as a closed system of norms, legal gaps are not possible, while for those who conceive of the legal order as an open system, gaps are inevitable. The proper management of gaps is fundamental to preserving the coherence and integrity of the legal system. Integration mechanisms allow the law to adapt to new social and technological realities and ensure justice and equity. The role of the judge is key in this process, given the prohibition of non liquet. KEYWORDS: Loopholes. Legal Gaps. Analogy. General principles of law. Legal Integration. Legal Coeherence.
INFORMATION OVERLOAD IN CONSUMER RELATIONS: CONSUMER VULNERABILITY IN THE FACE OF EXCESSIVE INFORMATION - DOI: 10.12818/P.0304-2340.2025v86p249
This article aims to analyze the impact of new information and communication technologies on consumer relations, focusing on the formation of a “technoconsumerist” market and the consumer vulnerability generated by the increased circulation of information in society, treated as information overload, a phenomenon also known as informational obesity, which tends to affect the consumer´s free and informed choice, accentuating their vulnerability in the modern consumer relationship. The research, based on the hypothetico-deductive method and bibliographic review, utilizes the theoretical frameworks of Jeremy Rifkin, Yoneji Masuda, and Gilles Lipovetsky. The paper is divided into three chapters: the first discusses the “informational deluge” triggered by the excessive flow of information resulting from the convergence of new technologies and internet use; the second examines “informational obesity,” which arises from the combination of the “informational deluge” and the creative strategies of suppliers, such as planned obsolescence and aggressive advertising, increasing consumer vulnerability and perpetuating “hyperconsumption”; the third proposes an “informational diet,” highlighting the need to reduce excessive information and promote education for conscious consumption, while suggesting greater state control over advertising. The conclusion points out that technology, while essential, poses challenges to the right to information and healthy consumption, requiring measures to ensure consumer protection. KEYWORDS: Informational obesity. Hyperconsumption. Consumer awareness. Informational diet.
O USO POLÍTICO DO JUIZ INTERNACIONAL - DOI: 10.12818/P.0304-2340.2025v86p421
É muito raro que um Estado recorra a uma jurisdição internacional guiado exclusivamente por considerações jurídicas. Dada a singularidade da ordem jurídica internacional, qualquer recurso interestatal sempre responde, de uma forma ou de outra, a considerações políticas. Em algumas hipóteses, no entanto, estas podem suplantar todas as demais. Em outras palavras, ocorre, de maneira paradoxal, que o requerente acione o juiz internacional sem, no entanto, esperar uma solução judicial para o litígio. Por razões diversas e variadas, busca obter alguma outra vantagem. Embora esse fenômeno seja antigo, ele se ampliou significativamente nas últimas décadas. Os Estados encontram-se cada vez mais instrumentalizando o tribunal do juiz internacional para fins políticos. Trata-se de uma tendência forte, explicada, em particular, pelo contexto geopolítico atual e pela multipolarização do mundo. Devido a profundas divisões internas entre seus membros, vários órgãos políticos internacionais não conseguem mais desempenhar suas funções de maneira satisfatória. Diante dessa situação preocupante, os Estados, às vezes, não têm outra alternativa senão recorrer ao juiz internacional. Essa tendência, que se revela difícil de conter, levanta certas inquietações quanto ao futuro.
SPEECH GIVEN BY THE SPEAKER OF CLASS 180, DAY SHIFT, GRADUATES OF THE SECOND SEMESTER OF 2024 OF THE UNDERGRADUATE LAW COURSE AT THE UFMG LAW SCHOOL, AT THE GRADUATION SESSION HELD ON 02/17/2025 - DOI: 10.12818/P.0304-2340.2025v86p415
ARTIFICIAL INTELLIGENCE AND SUSTAINABILITY: REGULATORY CHALLENGES AND ENVIRONMENTAL IMPACT - DOI: 10.12818/P.0304-2340.2025v86p225
The advancement of artificial intelligence (AI) has driven innovations across various sectors but also raises significant environmental concerns, particularly due to the high energy and water consumption of data centers. This article examines AI’s environmental impact by analyzing rising energy and water consumption, carbon emissions, and global regulatory challenges. The research is based on a literature review and official reports, comparing mitigation initiatives adopted by different countries, such as the European Union, the United States, and China. The study highlights the need for public policies and technological advances aimed at sustainability, emphasizing solutions such as low-energy AI, renewable energy sources, and efficient server cooling methods. It concludes that the transition to sustainable AI requires coordinated efforts between governments, the private sector, and the academic community to minimize environmental impacts and ensure responsible technological development. KEYWORDS: Artificial intelligence. Environmental impact. Sustainability. Data centers.
Paulo José Pereira Carneiro Torres da Silva
O ESTUDANTE ZÉ PAULO NA VETUSTA CASA DE AFONSO PENA - DOI: 10.12818/P.0304-2340.2025v86p399
THE POTENTIAL OF PROCEDURAL MECHANISMS IN COLLECTIVE LITIGATION: REFLECTIONS ON THE EFFECTIVENESS OF THE RIGHT TO HEALTH - DOI: 10.12818/P.0304-2340.2025v86p17
The collective rights tutelage is constantly challenged by the complexity of requests, the respective instruction and the effects of decisions or agreements, which demand much more than awarded and linear solutions. The article investigates the feasibility and possible advantages of using procedural transactions in the context of collective protection, as a strategy to ensure greater protagonism to interested parties and co-responsibility in the conformation of procedures and implementation of the rights to be guaranteed. Based on bibliographic and documental research, the limitations of the traditional civil procedure for the effectiveness of collective and individual rights are outlined and the characteristics of the procedural legal business are examined. Subsequently, based on real cases on the protection of the right to health, the benefits that can be obtained in the preprocedural, procedural and execution phases of lawsuits are identified, indicating, at the end, possible paths for a greater use of the institute. KEYWORDS: Procedure Bargain; Collective Rights Tutelage; Effectiveness; Right to Selfdetermination
LEGAL CHALLENGES TO INTERNATIONAL COOPERATION AGAINST OFFENCES RELATED TO ONLINE CHILD SEXUAL ABUSE, CHILD SEXUAL EXPLOITATION MATERIAL DURING ARMED CONFLICTS - DOI: 10.12818/P.0304-2340.2025v86p201
Legal protection of children during armed conflicts is considered as a means to reduce suffering of this highly vulnerable group. Unfortunately, information and telecommunication technologies are intensively used to aggravate humanitarian condition of children being disproportionately affected by military conflicts. Although international humanitarian law contains a significant number of norms providing special protection of children, most issues related to child abuses on the Internet are enshrined in specific treaties that may be not applicable during international military conflicts. Since many treaties may be suspended or terminated during armed conflicts for different reasons, including practical impossibility to exercise international cooperation between law-enforcement agencies, the issue of applicability of cybercrime conventions to international cooperation in the fight against child abuses on the Internet during armed conflicts needs particular academic attention. Thus, the present article addresses the norms of the law of treaties related to the effects of armed conflicts on treaties, including cybercrime conventions; discusses applicability of the existing cybercrime treaties during armed conflicts. KEYWORDS: Online sexual abuse. Online child sexual exploitation and abuse. Armed conflict. Cybercrime. Operation of treaties.
LABOR LAW REMEDIES IN THE FACE OF EMERGENCIES. THE SPANISH CASE - DOI: 10.12818/P.0304-2340.2025v86p345
The article analyzes how the discipline of labour law has the tools capable of coping with emergencies, be they economic, health, war, environmental. The experience of Covid has highlighted this ability and has led to the establishment of mechanisms that remain definitive aimed at maintaining employment levels threatened by any event. KEYWORDS: Emergency. Labour law. Health war. Environmental crisis. Dismissal.
BETWEEN AUTONOMY AND SOLIDARITY: A PROPOSAL FOR CHANGING THE “LEGÍTIMA” BASED ON THE CUBAN SUCCESSION MODEL - DOI: 10.12818/P.0304-2340.2025v86p183
In most legal systems, private autonomy is limited by the government in such a way that the author of the inheritance cannot freely determine the destination of all of his assets and must observe the “legítima” share of the necessary heirs. Traditionally, this untouchable percentage of the inheritance seeks to protect the family and ensure objective equality among the heirs. However, the imposition of the “legítima” through a generic and impersonal state command not only reduces the private autonomy of the testator, but also does not always satisfy the principle of family solidarity. Therefore, it is necessary to investigate alternatives that, although they do not eliminate the “legítima”, correct its main practical dysfunctions, such as the welfare model adopted by Cuba. Guided by these premises, the research adopted the legal-dogmatic methodological approach, of legal-comparative and legal-propositive types, with the aim of presenting, based on the comparison between two legal systems, solid reflections on the need to modernize the rules that regulate the inheritance phenomenon in Brazil. The main objective is to offer reasonable solutions for the replacement or adaptation of the “legítima” through a legal mechanism that guarantees compliance with the principle of solidarity without, however, sacrificing private autonomy on the altar of the welfare functionalization of the inheritance. The conclusion was that Brazilian inheritance law should be reformulated so that the private autonomy of individuals is restricted only to the extent that it ensures the necessary assistance to the heirs of the deceased in a situation of economic vulnerability. KEYWORDS: Succession Law. Legítima. Private autonomy.
Ana Carolina de Mari Rocha Benício Carvalho
THE RIGHT TO INTERCULTURAL EDUCATION IN THE DIGITAL SOCIETY: FOUNDATIONS, PRINCIPLES, APPROACH AND EMERGING ISSUES - DOI: 10.12818/P.0304-2340.2025v86p161
The article discusses the concept of intercultural education as a right of indigenous peoples, based on international human rights law and the 1988 Constitution of the Federative Republic of Brazil. It points out that this concept of education is part of the commitments made by the Brazilian state in Agenda 2030 of the United Nations Sustainable Development Goals (SDGs). It investigates the relationship between intercultural education and the improvement of the protection system for territories in the digital society, based on an interdisciplinary approach that combines Special Rights, Sociology and Education. Finally, it examines the emerging issues arising from the digital society and the challenges of training for citizenship in the context of the increasing digitalization of life and the power of global technology agents. KEYWORDS: Intercultural education. Indigenous peoples. Citizenship. Digital Society.
CATALOGUE OF TOPICS ON CHILDREN’S RIGHTS: COMMONPLACES IN THE JURISPRUDENCE OF THE INTER AMERICAN COURT OF HUMAN RIGHTS - DOI: 10.12818/P.0304-2340.2025v86p305
This article analyses the jurisprudence of the Inter-American Court of Human Rights (IACHR) in order to determine the functionality of the topics —catalogue of topics— commonly used by the Court to elaborate its arguments in cases affecting children’s rights. To this end, a search was carried out in the Court’s database between 1999 and 2023 to identify judgments that refer to children’s rights and the use of a catalogue of topics in relation to a set of problems. Regarding the relevance of these special topics in the arguments produced, it is observed that the IACHR uses them to describe the protection measures aimed at this group of people —response of the Inter- American legal system— as well as to offer a structure that allows for the understanding and study of children’s rights in its jurisprudence. KEYWORDS: Rights of the child. Jurisprudence. Legal argumentation. Inter-American Court of Human Rights.
THE BRAZILIAN CONSTITUTION AS THE REGULATOR OF THE RELATIONSHIP BETWEEN INTERNATIONAL LAW AND BRAZILIAN DOMESTIC LAW - DOI: 10.12818/P.0304-2340.2025v86p137
This study examines the role of Brazil’s 1988 Constitution in shaping the relationship between domestic and international law. It explores how constitutional provisions and their interpretation define the legal framework governing the interaction between these two systems. By analyzing the interpretative practice surrounding the constitutional allocation of powers and the evolving interpretation of the principles outlined in Article 4, this study argues that the 1988 Constitution establishes fundamental guidelines for Brazil’s stance in the international legal order, though it does not exhaustively determine its scope. Significant aspects of this relationship extend beyond the constitutional text and are reflected in judicial rulings, particularly those of the Supreme Federal Court. This dynamic positions national judges as key actors in defining the interplay between legal systems and in updating the constitutional framework governing these interactions. KEYWORDS: Relationship between International Law and Brazilian Law. Article 4 of the Federal Constitution. International Powers of the Brazilian State.
HISTORY AND CONSTITUTIONALISM OF THE GRAND DUCHY OF LUXEMBOURG: BRIEF NOTES - DOI: 10.12818/P.0304-2340.2024v85p223
The text provides a brief and general approach to the formation history of Luxembourg, emphasizing the constitutional landscape of the country, presented in three sections. The first one highlights the historical and formal events that lead to modern Luxembourg. In the second, the more important constitutional moments in the XIX century are exposed, with commentaries regarding the Constitutions of 1841, 1848, 1856, and 1868. In the third, the political and constitutional reforms of the XX century, considering the I and II World Wars, are commented upon, with the intention to expose some of the main characteristics of the Grand-Duché, such as its openness to the international sphere, constitutional actions for the integration of Europe, and the main normative diploma that shows the compromise with Human and Fundamental rights, considering specific dynamics of the relations of the powers of the state. KEYWORDS: Luxembourg Constitutionalism. History of Luxembourg. Human and Fundamental Rights.
Copyright (c) 2024 REVISTA DA FACULDADE DE DIREITO DA UFMG
IDENTITY AS A PERSONAL RIGHT: THE DISCIPLINARY REGULATIONS OF THE ASSOCIATION FOR THE PROTECTION AND ASSISTANCE OF CONVICTS (APAC) AND THE DEPERSONALIZATION OF THE INCARCERATED SUBJECT
This article seeks to address the phenomenon of the Association for the Protection and Assistance of Convicts (APAC), with a special focus on the study of its disciplinary rules. This association will be presented in the paper as a kind of self-governing prison institution, created with the aim of restructuring the Brazilian prison scene. The general aim of the research is to analyze whether the APAC system’s disciplinary rules violate the prisoners’ right to identity, which is analyzed in this paper as a personality right. Thus, as a research question, the aim is to analyse whether the APAC system’s disciplinary regulations, due to their disciplinary sanctions, can present themselves as an instrument for depersonalizing the incarcerated subject, violating the very personal right to identity of the individuals who serve time in the prisons designed by the association. To develop the work, the hypothetical-deductive approach method was used, as well as the procedural techniques of bibliographical research and documentary research. The conclusion of the research is that the right to identity of prisoners, understood in this work as a personality right, can be violated by the particular disciplinary sanctions laid down in the disciplinary regulations of the APAC system. KEYWORDS: Identity. Personal Rights. Association for the Protection and Assistance of Convicts. Disciplinary Regulations.
STATE GUARANTEES FOR THE SAFETY OF OFFSHORE OIL AND GAS INSTALLATIONS WITHIN THE FRAMEWORK OF INTERNATIONAL LAW AND IMMIGRATION LAW - DOI: 10.12818/P.0304-2340.2024v85p201
Offshore oil and gas installations are independent structures that are vulnerable to disturbances and threats. Like ships, offshore oil and gas installations also have national flags and legal instruments that protect them. Under international law, offshore oil and gas installations are protected by the Rome Protocol for the Suppression of Unlawful Acts against the Safety of Fixed Platforms Situated on the Continental Shelf 1988. It is noted that there have been several incidents of disturbances and threats that have occurred at offshore oil and gas installations around the world. Some events are well recorded and known to the public, while some events are not public consumption. So far, offshore oil and gas installation operators have received legal guarantees for the security of their installations both on the high seas and in the sea territory of a country based on international law, territorial law and the inherent law according to the citizenship of the offshore oil and gas installation. Through this paper, the author aims to explain the potential threats and disturbances at offshore oil and gas installations and concrete examples of events that have occurred. Another aim is to explain how international legal instruments and immigration law protect offshore oil and gas installations from these threats and disturbances. Through normative legal research, this paper describes a series of threats and disturbances and the international and national laws that have emerged to protect them and their application in the field. KEYWORDS: Offshore installations. Interna tional law. Immigration law. Disturbance and threat.
NAVIGATING THE REGULATORY LANDSCAPE OF VOLUNTARY SUSTAINABILITY STANDARDS IN INTERNATIONAL FOOD TRADE: A MULTILATERAL INTERPLAY - DOI: 10.12818/P.0304-2340.2024v85p171
Voluntary sustainability standards (VSSs) are non-mandatory criteria designed to foster sustainable practices throughout the global supply chain. These standards are particu larly prevalent in the agri-food sector, where they aim to support wider public policy ob jectives such as sustainable food production, animal welfare, healthy lifestyle, and labour conditions. Significant challenges arises from the fact that VSSs, despite their voluntary nature, they often impose mandatory effect in the global supply chain. They also often lack easily-identifiable features of the product themselves. These creates systematic problems for the global food trade system, where con ventional regulation address governmental measures on goods with specific inherent cha racteristics that can be clearly identified in the final product. This article explored the inter relationship among private VSSs, national re gulations and international treaties within the agri-food industry. It highlights ambiguity sur rounding the regulatory framework for VSSs under the WTO law, noting the absence of a consensus on how relevant provisions should be interpreted. Despite the diversity among various VSSs, VSSs, this article argues for the potential for harmonization and equivalence among VSSs. By aligning various VSSs and with technical regulations, it is possible to stri ke a balance between trade liberalization and promotion of sustainable practices. KEYWORDS: Voluntary sustainability stan dards. Food regulation. WTO Law.
PHILOSOPHICAL AND LEGAL BASIS OF SOLIDARITY
The aim of this text is to analyze the philosophical category of care from a Heidegger perspective as the foundation of solidarity in the legal dimension. This is due to the fact that Heidegger designates care as being-in-the-world, linking the relationship of care with oneself and with the world, interconnecting life as a whole. Based on this understanding, there is a direct relationship with solidarity (also as a normative command), since being supportive implies taking responsibility for one’s own life and for the world around them, constituting a legal right and duty. Thus, solidarity, even in the legal sphere, manifests care for oneself and for others. It manifests the individual and social dimensions. The method used is deductive because, by establishing some parameters of Heidegger’s theory, the elements linked to the conception of Law adopted in this work were located. The research instruments, as required by the nature of the subject, were bibliographical. KEYWORDS: Care. Fundamental. Heidegger. Philosophy. Solidarity.
THE CONCEPT OF “ARMED ATTACK”, NON-STATE ACTORS, AND THE USE OF FORCE IN INTERNATIONAL LAW: RUPTURE OR CONTINUITY?
The international law on the use of force is founded on the general prohibition to employ force enshrined in the UN Charter, Article 2(4). Article 51 of the Charter contains one of the only exceptions to the general prohibition, the legality of use of force in self-defence if an armed attack occurs. One of the debates is about who can commit an armed attack so that the Article 51 exception applies. To the International Court of Justice in Nicaragua1, an armed attack can only be committed by a state against another state – the Court requires “substantial state involvement” for there to be an armed attack. After September 11th 2001, there is an increased understanding that non-state actors in general, and terrorists in particular, can undertake armed attacks, expanding the possibilities that to use force legally in self-defence. The doctrine of the state “unwilling or unable” to tackle terrorist threats also comes to the fore, opening innocent third States to foreign armed intervention. This article tackles the main perspectives in state practice, doctrine, and judicial decisions about armed attacks’ ratione personae. The conclusions reached are that this is currently a point being negotiated in international law, even within the ICJ itself as evidenced by separate and dissenting opinions. However, this article defends that a restrictive interpretation is more appropriate and more desirable. KEYWORDS: Jus ad bellum. Use of force. Terrorism. International Law. Armed Attack. Non-state actors.
ECO-TAXATION AND ENVIRONMENTAL ECONOMICS: AN ANLYSIS IN THE LIGHT OF NIKLAS LUHMANN`S SYSTEMS THEORY
This article aims to analyze the possibility of taxes being used as the most appropriate tools for environmental protection. Initially, we seek to understand the possible contributions of Tax Law, under the bias of intersystemic and ecological “communication”, to promote the natural environment. Next, it is observed in extrafiscality the traffic of directing conducts of the individuals for the attainment of ends desired by the State. The big question faced stems from the possibility, or not, of imposing taxes that absorb the environmental complexity, in order to cover the “licit”, “sustainable” and “profit” codes, making them compatible respectively with Law, Ecology and Economy. The analysis will be carried out through bibliographical and normative research, through the logicaldeductive method, and for the implementation of these fiscal instruments it will be based on Niklas Luhmann’s Theory of Systems. In the end, it demonstrates the possibility of the tribute to encourage the alteration of lawful but unwanted polluting conducts, as a complement between the economic and legal systems. KEYWORDS: Ecology. Systems Theory. Extrafiscality. Eco-taxation.
DUAL CLASS STOCK AND ITS IMPLICATIONS FOR THE STRUCTURE OF ORGANIZATIONS
This article aims to understand the implications of the dual class stock for the structure of an organization, on the market and on the business. Over time, a conflict has focused on the dichotomy between adopting corporate governance postures, based on ESG policies, and the desire to raise capital from the market, considering the interests of investors, compared to the focus of the controlling shareholder to maintain power. Thus, the article analyzes the implications of the dual class stock from the perspective of corporate theories and their assumptions, while observing the relationships of the investor’s voice, whether to remain in the business or to exit its. It discusses the regulations that have emerged, regarding the dual class stock, including recent legislation. And then discuss the maximization of shareholder value in view of the dual class stock and the market’s perception of the adoption of the class model. Therefore, the discussion on the subject is still far from congruent, but it already sparks the discussion of the importance of companies for society, their participation in building an engaged society and, therefore, how does companies signal to the market their intentions of control that balance power and value maximization. KEYWORDS: Dual class. Super-voting. Signaling. Value maximization. Financial Logic.
DE FACTO UNION: FROM NON-EXISTENCE TO LEGAL INSECURITY
In the contemporary legal context, the de facto union presents itself as a challenging subject to be conceptualized due to the ambiguity of its criteria. The line between characterization and non-characterization of this institution becomes thin, reflecting the jurisprudential oscillation between the flexibilization and restriction of its requirements, as well as the increasing equivalence with marriage. This legal uncertainty is evidenced in the casuistic application of the concept, which sometimes recognizes the de facto union in cases of longterm cohabitation, while other times rejects it. This article, therefore, aims to conduct a critical analysis of this scenario, from a historical approach to the investigation of specific cases, especially those judged by the Superior Court of Justice (STJ). The method used was analytical, aiming to evaluate the excessive regulation of Family Law, proposing reflection on deregulation as a possible solution. As results, the study points out issues related to the freedom of choice between marriage and de facto union, highlighting as a conclusion the need for corrections in the current legal landscape to mitigate the insecurity and present flaws. The article thus contributes to understanding the gaps and contradictions in the application of de facto union, evidencing the transition from nonexistence to legal insecurity in this context. KEYWORDS: Family law. De facto union. Long-term cohabitation. Legal insecurity.
Osvaldo José Gonçalves de Mesquita Filho