Revista Cubana de Derecho

Letter from the Director

Juan Mendoza Díaz — Wed, 30 Jul 2025 00:00:00 -0400

National Law Award "Carlos Manuel de Céspedes", 2024

Unión Nacional de Juristas de Cuba — Wed, 30 Jul 2025 00:00:00 -0400

Reseñas

Unión Nacional de Juristas de Cuba — Wed, 30 Jul 2025 00:00:00 -0400

The protective paradigm

Ricardo Lorenzetti — Wed, 30 Jul 2025 00:00:00 -0400

The protectionist paradigm protects the vulnerable and is consistent with the access paradigm. However, they refer to different fields: the problem of access focuses exclusively on those who are excluded and can therefore be applied to those who are not weak, for example, a company seeking to enter a closed market; it focuses on the market's "ex ante" allocations, that is, on its structural flaws that cause exclusion. The protectionist paradigm, on the other hand, focuses on those who are in the market but are weak. Its constitutional foundation is equality. Its structuring principle is the protection of the individual and the collective goods that require it, such as the environment. In public law, it is manifested in human rights, which are regulated in treaties and constitutions. In private law, it arises from an evolution of principles of interpretation favoring the debtor, “favor debilis”, in favor of the consumer, and then in favor of the individual. Generalization leads to a shift from a bilateral view to a structural one, which takes into account the individual's position in the market. In collective goods, the principle "in dubio pro natura" emerges. Its unlimited development leads to a society of protected individuals who collide with each other. This view is criticized for assuming law as a defensive shield for the individual, disregarding the regulation of society. For this reason, there are tensions with the consequentialist and collective paradigms.

Post-truth and disinformation in the digital age: towards a new normative paradigm?

Emilia María Santana Ramos — Wed, 30 Jul 2025 00:00:00 -0400

This article analyzes how post-truth has transformed the way we consume, validate and share information, undermining critical thinking. Objectivity has been replaced by discourses based on emotions and beliefs, driven by social networks and algorithms that reinforce pre-existing opinions and limit rational deliberation. It is emphasized that post-truth is not a casual phenomenon, but a strategy of manipulation through information bubbles and echo chambers, where opinions are accepted without question. In this context, the Philosophy of Law warns about its impact on fundamental rights and the rule of law. The key to confronting disinformation is not only normative regulation, but the promotion of critical thinking to resist digital manipulation.

A new vertical constitutional control in the Argentine Republic

Pablo Octavio Cabral — Wed, 30 Jul 2025 00:00:00 -0400

This paper critically analyzes the doctrine of the Argentine Supreme Federal Court on the use of two concepts that reveal a transformation in the role of the Supreme Court, which implies its institutional strengthening. This transformation consists of assuming the power to review the constitutionality of norms and decisions of international human rights systems, based on the discretionary use of the principles of public law of our Constitution and a particular vernacular version of the foreign doctrine of the national margin of appreciation, replicated in its relationship with the provinces in the local margin of appreciation. Thus, these judicial decisions jeopardize the principle of popular sovereignty and the democratic system of the Argentine Republic by unbalancing the weight of the constituted powers, privileging the decision-making powers of the head of the Judiciary, to the detriment of the powers that directly represent the people.

A look at the Cuban Constitution of 2019 from its vocation of otherness

Majela Ferrari Yaunner — Wed, 30 Jul 2025 00:00:00 -0400

The confluence of interests, needs, and potential conflicts generated by life in society, an increasingly dynamic and complex phenomenon, means that the law cannot be ignored as the regulatory body for everyone's life in the diverse settings where people's daily lives unfold. The role of the Constitution, with its responsibility to uphold an entire legal system and design a political system, is always under siege from a changing, unstoppable society that demands its revitalization and effectiveness. Socialism cannot ignore that what is expected of it requires legal and political evolution to adapt to new circumstances, but also to fulfill its protective and inclusive vocation in new settings, to redefine the “all”, the “some”, and the “me” so that their interests, if not articulated, at least coexist in a civilized manner. This paper proposes an examination of the 2019 Constitution of the Republic of Cuba from this perspective, taking into account the constitutional context within socialism in the country. This may provide an interesting insight into the evolution of law, driven by its course in this small, distinct socialist nation.

The meaning and scope of the constitutional right to decent employment in Cuba

Ulises Padilla Sánchez — Wed, 30 Jul 2025 00:00:00 -0400

The enactment of the Constitution of the Republic of 2019, provided among its novelties the recognition of workers' right to decent employment, being necessary to achieve an approximation to its meaning and scope in correspondence with the current context of updating the economic and social model of Cuban socialist development, based on the strategic importance it has for the success of the project, Consolidate labour relations.

The right to work and labor protection for older workers in Cuba

Caridad Rosa Jiménez Morales, Victoria Margarita Villarreal Lesmes — Wed, 30 Jul 2025 00:00:00 -0400

The right to work is a second-generation human right, and its assessment will always be an engaging inquiry. We examine generic conceptions of the institution, associated with the inextricable relationship between rights and their protection, focusing our objective on a specific age group of workers, based on the changes that have occurred in current Cuban society following the approval of the current Constitution of the Republic, proclaimed on April 10, 2019. We analyze the phenomenon of population aging and its connection to the rights of older workers, and the necessary guarantees to address this problem in general. We outline, through reflections, the dissimilar doctrinal criteria linked to the regulatory framework from the international context and the Cuban reality.

The sanctioning power of municipalities: guiding principles

Lissette Pérez Hernández — Wed, 30 Jul 2025 00:00:00 -0400

Regarding the regulatory capacity of Cuban municipalities, arising from the principle of municipal autonomy, there are questions of a different nature. The objective of this work is to provide elements that allow answers to one of them: what grounds can be used to confirm the municipal sanctioning power? To achieve this objective, the following methods have been generally used: a) the historical-legal method, to investigate some origins and the validity of the phenomenon under study; b) the legal comparison from which the similarities and differences existing in the different municipal Hispanic American legislative texts were analyzed, and c) the analytical legal method that took as a starting point, the multiple interrelationships inherent to the same systemic dynamics and the understanding of Law as a historically conditioned sociopolitical phenomenon. It is concluded that the municipal sanctioning power is a matter admitted by an important and recognized part of the doctrine, by jurisprudence and in the municipal laws of Latin American countries. Municipalities can exercise their ius puniendi by issuing general ordinances on matters that they are responsible for exercising in accordance with the Constitution and the laws.

Clean hands in international business

Rodolfo Dávalos Fernández — Wed, 30 Jul 2025 00:00:00 -0400

The clean hands doctrine is based on the principle that no one can legally benefit from his own deceit, and therefore maintains that any claim by a plaintiff must be excluded because of his own illegal conduct linked to the claim that he seeks and presents before a court or tribunal. To date, this doctrine has had some acceptance in the field of human rights in the International Court of Justice. However, the “clean hands” doctrine is currently calling for its application to the field of international business. It is not a new approach in the ethical field of international business and economic activities, but rather an ethical-jurisdictional need, arising from the intensification of an evil that, unfortunately, underlies and persists in the complex world of cross-border monetary-financial relations and, in general, in international business: corruption. To understand the origin, meaning and scope of the concept of “clean hands” it is necessary to delve into the study of English law, especially its contractual system and judicial precedent, which is what this paper attempt to do in summary. The novel and recent evolution favorable to the acceptance of the legal value of the principle of contractual good faith in English jurisprudence facilitates the application of the doctrine of clean hands with which its foundation is closely linked. Considering that “clean hands” has a marked ethical-jurisdictional character, it must be a generally accepted sine qua non requirement to exercise the right to jurisdiction, without distinction of the subject matter related to public procurement.

Legal regime of moratory interests in Cuba. An analysis from their processing in judicial and arbitral proceedings

Melissa Cepero Lantigua — Wed, 30 Jul 2025 00:00:00 -0400

In the context of contractual obligations, when a debtor fails to fulfill their obligation within the specified term, they incur in default, resulting in moratory interests that the debtor must pay because of a blameworthy delay in fulfilling the obligation. This is an institution of great importance in economic contracting. However, it is common in legal practice to confuse moratory interests with commercial interests and the pecuniary penalty agreed upon in the contract, leading to errors in the calculation of the former, as rates corresponding to commercial interests or pecuniary penalties are imposed due to the lack of predictability at the time of contracting. In the context of dispute resolution in judicial or arbitral proceedings, this legal issue affects the administration of justice, as applying an excessive rate for moratory interest results in a detrimental decision for the debtor who has lost in the process. Cuban legal regulations establish a reference rate for legal moratory interest; however, this is sometimes not taken into account in practice, resulting in a violation of the norm and an imbalance in the contractual relationship. This work aims to analyze moratory interests and distinguish them from other institutions such as commercial interests and pecuniary penalties for their correct disposition in economic contracting and application in dispute resolution, by addressing the problems that arise in legal practice.

Emergence and historical evolution of limited liability companies in Cuba

Jaime René Teruel Hernández — Wed, 30 Jul 2025 00:00:00 -0400

This article analyzes, from a historical perspective, the emergence of limited liability companies, and identifies the main legal characteristics that distinguishes them from other types of companies in Commercial Law. First, it illustrates the evolution of commercial partnerships in Law´s History, and analyzes the economic context where the limited liability companies evolved. Also, we here describe the development of Cuban partnership laws within the framework of Spanish colonial law, as well as the introduction of limited liability companies in Cuba after independence, their evolution, and their current state. Finally, the several suggestions proposed for a better regulation of this companies in Cuba at present, recommend considering the traits that have defined limited liability companies throughout their existence.

The will: contemporary looks at an ancient institution

Pedro Luis Landestoy Méndez — Wed, 30 Jul 2025 00:00:00 -0400

The will is one of the oldest legal institutions as it hails back to the dawn of Western civilization. Even though its conceptual core has managed to survive from Roman times into our day and age, multiple questions remain as to its requisites, its content, and its interpretation. It is, therefore, of the utmost urgency to adapt the will to new socio-legal realities, such as the need to draft a will in the aftermath of the signing of human right treaties, or the radical transformation of family relationships and the status of property. It will always be essential to refer to its genesis, but in order to preserve the will’s effectiveness, as well as its status as the mortis causa deal par excellence, it is imperative to adapt its ancient provisions to contemporary phenomena for which it must provide an accurate response.

Theory of the rebus sic stantibus clause or the theory of unforeseen circumstances: perspectives on its formulation in a new Cuban Civil Code

Joanna Pereira Pérez — Wed, 30 Jul 2025 00:00:00 -0400

This article addresses the main theoretical postulates related to changed circumstances and their influence on contractual matters, based on a comparison of the different theories that have attempted to address their effects. It analyzes the theory of the basis of the business, the theory of the rebus sic stantibus clause, and the theory of unforeseen circumstances, along with the main doctrinal postulates and standards that have served as their representation. Starting from the explanation of extraordinary changes in circumstances, disproportionate performance, unforeseen circumstances, the absence of any other means to save what was stipulated, good faith, and lack of fault, as their traditional requirements, a posteriori exegesis of current Cuban regulations is carried out, concluding with the assumptions that would contribute to their future regulation in a new Cuban Civil Code.

Use of national symbols as brands: Challenges and difficulties from the Cuban perspective. Case study

Alejandra Vigil Hernández — Wed, 30 Jul 2025 00:00:00 -0400

National symbols represent and identify States and their nationals within their borders and in the international arena. Due to the transcendence and significance, they entail, it is natural that businessmen wish to use them as part of their trademarks, commercial slogans, advertising, industrial designs and indications of origin, in order to give certain strength to their distinctive signs and emphasize the origin of the goods and/or services they offer. However, such uses, as part of industrial property rights, mainly trademarks, are legally restricted or limited. This article is aimed at analyzing the registrability of national symbols as part of industrial property rights. Based on the assessment of international and national experiences, the difficulties or problems faced by a Cuban examiner when receiving such applications are analyzed. In addition, bases or guidelines are proposed for future guidelines or examination guides that offer homogeneous solutions.

The articulation between international law and domestic law as a function of the Constitution

Dianelis Zaldívar Valdés — Wed, 30 Jul 2025 00:00:00 -0400

The relationship between international law and domestic law is, without a doubt, one of the most important and studied aspects of legal publicity doctrine. This acquires special relevance given that the effectiveness of international law depends on its specificity within the domestic sphere of the State. Various theories have been formulated to explain this relationship, some of which are still under construction. However, despite extensive study of this relationship within the international law context, very little has been done within the constitutional law context; specifically, the significance of the way in which it is regulated in constitutions for the relationship between international law and domestic law. This article is specifically dedicated to outlining the constitutional function of the relationship between international law and domestic law as an essential element for its specificity within the domestic sphere.

Criminal profiling applied to the investigation of offences associated with sexual delinquency in Cuba. Perspectives from a criminological approach

Nathalie de la Caridad Miret González , Iracema Gálvez Puebla — Wed, 30 Jul 2025 00:00:00 -0400

Sexual violence is the dark mixture of sex, violence and aggressiveness; it is the basis of sexual delinquency, manifested in illegitimate behavior that goes against socially accepted norms and violates the right of each person to freely choose how to express their sexuality and to maintain relationships of this type in a healthy and voluntary manner according to their preferences. Currently, it constitutes one of the manifestations of the criminal phenomenon that generates the greatest concern and insecurity among citizens. Given the multiplicity of factors underlying it, the variable characteristics of the sexual offenders, and the fact that these acts generally occur alone, their investigation can become extremely complex. Therefore, the implementation of techniques that contribute to their solution is required. In this scenario, criminal profiling is a very useful tool for any investigative process. Considering the high incidence of sexual delinquency in Cuba, the limitations of the traditional mechanisms of investigation that difficult the clarification of these offences, and the fact that criminal profiling is not used as an auxiliary technique in the investigation, the present report is aimed at establishing the criteria on which the actions of the profiler should be implemented in order to contribute to the investigation of the facts associated with sexual delinquency in the country; on the basis of the theorico-criminological elements that frame the criminal behavior associated with sexual violence and its approach from the perspective of criminal profiling; and the proposal of the guidelines on which the work of the profiler should be based.

Considerations on contractual practice

Alex L. Chiang Cárdenas — Wed, 30 Jul 2025 00:00:00 -0400

Contracting, as the highest expression of the will of the parties, surrounds the commercial life of natural and legal persons. However, the activity of legal counselling in this matter varies in accordance to each law operator. This article reflects the author´s experiences and points of view in the last years in the matter of national contracting; as well as those considerations derived from an entirely practical point of view. It is not about homogenize contracts nor processes. Nor it is intended here to teach how to draft or to negotiate a contract, but simply to bear in mind some basic issues that could be taken into account, from the idea and the drafting to the decision of signing or not.

Closing conference of the First International Conference on Parliamentary Diplomacy, entitled "Notes on Parliamentary Diplomacy and Its Expression in Cuban Parliamentary Practice," given by M.Sc. Homero Acosta Álvarez, Secretary of the National Assembly o

Homero Acosta Álvarez — Wed, 30 Jul 2025 00:00:00 -0400