YEAR 2013 N.º 2

ISSN 2182-9845

2013 N.º 2

Maria Raquel Guimarães

A Bibliometria, as avaliações de desempenho científico e, de uma forma geral, os métodos de apreciação mais ou menos objectivos ou subjectivos do trabalho de investigação produzido pelos juristas são temas que recentemente têm preocupado aqueles que, nas universidades, nos centros de investigação, enquanto docentes, investigadores ou alunos pós-graduados, têm vindo a dedicar as suas carreiras ao estudo do Direito. A importação de métodos, de fórmulas e de sistemas próprios das ciências exactas para o mundo do juristas parece impor-se inelutavelmente e a necessidade de adaptação da forma como temos trabalhado ao longo de muitas décadas surge como uma realidade sem retorno.

Brazilian trade union organization: a system of freedoms and restrictions

Eneida Lima de Almeida

Brazil; Union; category; organization; freedoms; restrictions

The union in Brazil of today, although it has undergone many changes since the days of its founding, still has numerous features that scored at the beginning. When strictly controlled by the State, was awarded powers and privileges of public authority. Under this context is established principles, for example, the uniqueness of the association, which is still in force in our system. Under this perspective, we can see that the model adopted the hybrid organization is composed of freedoms and restrictions, so it is criticized on issues of freedom of association. Also, in front of our current standards, ever the union meeting will be totally free.

Council Regulation (EU) n.1259/2010: some considerations about applicable law to divorce and legal separation and party choice of law

Fernanda Muraro Bonatto

European International Private Law; European regulation Rome III; Divorce and legal separation; Private autonomy in family law

This paper examines, albeit briefly, Council Regulation (EU) n.1259/2010 that authorizes an enhanced cooperation among 14 of 27 member states on the subject of law applicable to divorce and legal separation of international couples. In order to provide an overview of the regulation the following topics are addressed: the historical path of the Regulation’s development, its context as an instrument of European private international law as well as the analysis of its structure and scope. Will be also examined the exercise of party autonomy in choice of law through a simple agreement, since such a possibility means unprecedented openness to private autonomy in the context of private international family law.

The Date of Maturity in Agreements for the Sale of Food Products

Jorge Morais Carvalho

Maturity of the obligation; late payment; food products; relationship between producer and retailer; self-regulation; mandatory rules

Decree-Law 118/2010, 25 October, as amended by Decree-Law 2/2013, 9 January, in essence deals with the date of maturity in agreements regarding the sale of food products entered into between small producers and large companies that purchase food products for their productive or retailing activities, whereby it establishes that, unless an instrument of self-regulation provides differently, the term for the payment cannot be longer than 30 days. This is a mandatory legal regime, clearly indicating the existence of an unbalanced relationship between the two parties, in which the large retailer can set the terms and the small producer has to submit to them. In this paper we will analyse the scope of this statute, through a detailed description of the legal regime thereby enacted, followed by an analysis of the main issues raised and, finally, by an assessment of the private autonomy of the parties pursuant to the statute, emphasizing the interests sought to be protected by the Decree-Law.

The adoption of the CISG in Portugal: benefits and perspectives

Luca G. Castellani

CISG; international sale of goods; UNCITRAL; European Union; Common European Sales Law; Portuguese-speaking countries

The CISG represents a success story of uniform law, having been adopted by 80 States representing more than 80% of global trade. The CISG offers as well a major restatement of modern contract law and has been used as a model for regional and national contract law reform in various parts of the world. The CISG brings immediate benefits to traders in terms of efficiency of the legislative framework, which is specifically designed for long-distance transactions, predictability of applicable law and ease of choice of law.

Strike and economical crisis

Francisco Liberal Fernandes

Strike; right to take collective action; independent workers; parasubordinate workers; Laval and Viking cases; freedom of establishment; freedom to provide services; transnational situations

The potential recognition of the right to take collective action for the independent and parasubordinate workers; the art 11º of the labour code; ILO Recommendation nº 198 (2006); analyses of the proposal (withdrawal) of European Council regulation on the exercise of the right to take collective action in transnational situations.

The individual enterprise in the law of Portuguese speaking countries

João António Bahia de Almeida Garrett

Portuguese speaking countries law; individual entrepreneur; unity of the patrimony; limited business liability; individual limited enterprise; individual company

This article focus on a very well-known and debated commercial law theme – the possibility offered to the individual entrepreneur of limiting his business liability to the patrimony of the enterprise – viewed from the perspective of the Portuguese speaking countries’ law. We studied the pertinent legal solutions of the European countries which influenced at most our own law – Germany, France, Italy, Spain – to assess the way those solutions were received in Portugal and then looked to the commercial law of three Portuguese speaking countries – Brazil, Angola, Mozambique – and the Territory of Macau to perceive the similarities and differences between them at this regard.

The adverse possession and the registration: should we rethink the theme?

J. A. Mouteira Guerreiro

Possession; adverse possession; registry; property; rights; publicity

The article deals with the question of ownership leading to adverse possession and its prevalence over the registry. This prevalence, which is questioned, corresponds to the solution from the provisions of Article 1268º of the Civil Code, according to the interpretation that is traditionally given to the precept. However, the historical circumstances that constituted their ratio are now deeply changed, especially with the forthcoming of a multitude of owners and property rights, together with the mutual ignorance of the people. Those events contribute decisively to the lack of advertising and the equivocity of the possession animus.

Some brief thoughts on the employment contract as a pre-formulated standard contract

Leonor Pizarro Monteiro

Unfair contract terms; pre-formulated standard contract; employment contract; collective agreements

This paper tries to shed some light on the possibility of applying the Unfair Contract Terms Act to the employment contracts that are really pre-formulated standard contracts. It is believed that this is a relevant issue within the change that is occurring in the Labor Law Legislation. This will be done by presenting the general framework and a brief analysis of the Portuguese Unfair Contract Terms Act (Decree-Law n. 446/85), so that we can move on to the specific topic, analyzing the possibility of applying this regime to the employment pre-formulated standard contract, how this should be done, and above all the advantages of using this modus operandi.

Contracts of consumption in Brazilian law: general rules, interpretation and abusive practices

Renato Lovato Neto

Contracts in the Consumer Protection Code; abusive practices; contractual balance

The promulgation of the Consumer Protection Code comes from the need to protect the weakest part of the link, who, before the law, was a victim of constant abuses and arbitrariness of suppliers of products and services, which often acted so vile, only in order to preclude the defense of the purchaser. The consumerist diploma brings with this protection principles aimed at situations in which the express legal provision does not reach as well as explicit requirements that prohibit specific behaviors of the suppliers.

General principles of electronic public procurement

Duarte Amorim Pereira

Cyberspace, regulation; internet; electronic public procurement; information technology law; general principles of law.

The standing up of this “virtual world” – the twenty-first century “global village” as MCLUHAN put it –, beginning in the fifties of the twentieth century, is generally attributed to the advanced new technologies such as the Internet. The need for regulation of “cyberspace” has thus become pressing as the number of Internet users worldwide keeps increasing impressively, especially over the last three decades – is it estimated that, in 2012, there will be over one billion of them – and, therefore, it faces the corresponding expansion of their rights and duties and of the actions and omissions in need of a legally relevant and adequate protection.