Revista de la Facultad de Jurisprudencia.

Tensions between the international investment protection system, state sovereignty, and human rights.

Julio Prieto — 2025-06-30

This article examines the structural tensions between Bilateral Investment Treaties (BITs), state sovereignty, and human rights, arguing that the Investor-State Dispute Settlement (ISDS) system prioritizes corporate interests over public welfare and democratic governance. Through a combination of critical legal analysis and case studies—including Chevron vs. Ecuador, Vattenfall vs. Germany, and Copper Mesa vs. Ecuador—the study reveals how ISDS tribunals are able undermine national judicial systems, invalidate domestic rulings, and deter states from enacting regulations to protect health, environmental sustainability, and Indigenous rights. Key findings highlight systemic issues such as regulatory chill, asymmetrical power dynamics favoring investors, and the retroactive application of treaties to shield corporations from accountability. The analysis underscores the incompatibility of BITs with international human rights frameworks, particularly in cases involving environmental degradation or public health crises. The article concludes by advocating for radical reforms, including the abolition of ISDS, the integration of binding human rights clauses into investment treaties, and the advancement of multilateral initiatives like the UN Binding Treaty on Business and Human Rights. By centering the voices of affected communities and emphasizing the global relevance of these conflicts, this work calls for a reimagined international economic order that prioritizes justice, equity, and the primacy of human rights over corporate profit.

Complex Construction Arbitration Disputes: Complex Construction Arbitration Disputes

Lenin Navarro — 2025-06-30

Construction plays a central role in the development of human settlements and impacts the general welfare and public interest significantly. The state must ensure minimal guarantees regarding investment operability, labor maintenance, and, especially, meeting the population's housing and public infrastructure needs due to the construction's profound impact. The complex legal nature of construction underscores the necessity of incorporating expedited and technical dispute prevention and resolution mechanisms into domestic legislation. These mechanisms aim to prevent, among other things, community and environmental harm. However, complex disputes cannot effectively be prevented or resolved solely through judicial means, given the functional gap between administrative and international law, resulting in legal uncertainty. Choosing the most suitable mechanism to efficiently and timely prevent and resolve disputes would enable real-time technical solutions without halting construction or disrupting related operations and transactions.

The Caso de las aseguradoras de salud chilenas [ISAPRES]: consideraciones jurisprudenciales sobre un posible arbitraje internacional vinculado a los derechos humanos

Patricio Cury Pastene — 2025-06-30

Based on international arbitration cases concerning investment protection, this article examines jurisprudential criteria that can be applied in disputes, for example, between states and foreign investors. The analysis highlights the incorporation of human rights criteria in arbitration situations regarding the case of Chilean health insurers [ISAPRES]. A Chilean Supreme Court's ruling, concerning an across-the-board decision on arbitrary discrimination by insurers that would have affected users, could eventually be discussed in international forums. If the owners of health insurers consider that they have not been treated fairly, the decision adopted by the court could be expropriatory. This study addresses the compatibility of human rights criteria in arbitration proceedings within foreign investment frameworks. Finally, the main aspects under examination will consider jurisprudential criteria and the Court's ruling regarding health insurers.

Sufficiency and Motivational Accuracy: A Critical Analysis of the Guarantee of Reasoning

Fernando Bajaña — 2025-06-30

This paper will analyze motivation as a phenomenon where correctness and sufficiency constitute two inseparable approaches. The link between its formal structure, material validity and pragmatic context will be examined, as well as the general scheme and basic elements of motivation. Likewise, a critical evaluation of the jurisprudential line set by the Constitutional Court with Ruling No. 1158-17-EP/21 will be proposed, regarding the reasons provided for the abandonment of the old “test of motivation”, the minimum motivational structure and the typology of argumentative deficiencies. Finally, the four main modalities with which the defect of apparent motivation is represented will be reviewed, analyzing its content, principles and relationships.

The precautionary principle and AI: a regulatory absence in Ecuador

Bryan Díaz Alava — 2025-06-30

This study analyzes the new phenomena faced by Environmental Law derived from the evolution of the use and management of ICT. The objective is to evaluate the impact and challenges of artificial intelligence on the environment, through a dogmatic and normative analysis linked to the precautionary principle in new technologies, in order to infer measures for a normative reform regarding the sanctions of Environmental Law. The qualitative approach of this article makes the problem visible and synthesizes the theoretical, doctrinal and jurisprudential bases from the historical, analytical and exegetical method linked to a bibliographic review that addresses the legal institutions of national and international character around the field of Environmental Law. The research highlights the absence of regulations and legal gaps in the Organic Environmental Code regarding artificial intelligence in our country. The purpose is the construction of a justice system in defense of human rights and nature.

Proper omission in position of guarantor: signs of a dogmatic-legislative mixture

Bairon Iván Espinoza Guillén — 2025-08-26

In criminal law doctrine, pure omission encompasses offenses that do not require a result. As is often the case, the Ecuadorian legislator while attempting to develop a rational criminal policy has complicated the operational framework of the two existing categories of omission: proper omission and commission by omission. This research aims to demostrate that the criminal provision regarding proper omission has not been addressed within the offense of neglect of healthcare service from a differential standpoint between the categories of omission. At the same time, it critiques the problems of interpretation and attribution inherent in the legal classification. Finally, this study concludes by showing that the mixture acknowledges the category of proper omission offenses in a position of guarantor, while highlighting issues that render the offense ambiguous, contradictory, and disproportionate.

The Rights of pregnant and breastfeeding women in the Consejo de La Judicatura De Pichincha

Gabriela-Anahí Robalino-Lucero — 2025-06-30

Every human being is bound by fundamental rights and others that are more specific according to the context of his or her life. In this regard, during pregnancy and its different phases, a woman and her baby are guaranteed several constitutional rights and other rights proclaimed in international instruments that ensure their physical and psychological care and the child's proper development. Unfortunately, the female employees of the judicial units of the Consejo de la Judicatura de Pichincha often face the lack of recognition and free exercise of their rights and guarantees, an obvious antinomy if one considers that this body is the head of the judicial function and, therefore, the defender of rights. From the results of the investigation carried out in the four main judicial units of the province, Iñaquito, Mariscal Sucre, Quitumbe and Rumiñahui, as well as in central plant, there is an evident infringement of the rights of mothers and their children. The outlook is discouraging only one judicial unit has a lactation center approved by the Ministry of Public Health since the beginning of 2024 and none has a playroom; even less a nursery that meets all the necessary parameters to care for infants and ensure their integrity.

Description of the “Consultorio Jurídico Gratuito de la PUCE-Q” (CJG-PUCE-Q): management elements and professional training

Vivian Tatiana Escobar Haro — 2025-06-30

The purpose of this research is to describe elements of the management and academic training of the PUCE Free Legal Clinic (CJG-PUCE-Q). The exploratory research question was: What are the identifying characteristics of CJG-PUCE-Q? To answer this question, a qualitative method was chosen, using a mixed methodology and documentary review techniques, including academic articles, theses, and books. In addition, an interview was conducted with the general coordinator of this office, attorney Camila Cedeño, who emphasized administrative management elements that impact student training and ultimately provide safe, high-quality service to users, taking into account the university's Ignatian educational paradigm. A graphic is also presented illustrating the procedure outlined in the "User Addressing and Control Manual 2024." Comparatively, a survey was administered using Google Forms for interns in the office space, with closed-ended questions and an open-ended one. The results obtained reveal a historical space for pre-professional practice with its own institutional characteristics that focus its service on restoring human dignity through the exercise of law and in constant evolution.