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PUBLIC INTEREST ACTIONS
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With regard to the public interest actions against the operators of cellular movable telephony (Communications Cellular S.A. - COMCEL S.A. y Telefonica Moville’s Colombia S.A.. - MOVISTAR) and PCS (Colombia Mobil S.A. E.S.P. - OLA), in last days the Section Second of the Administrative Court of Cundinamarca spoke sentences within a process initiated with occasion of the subject referring to the sending and reception of text messages (English SMS abbreviation in), by means of which denied the pretensions of the demand, but granted the incentive that it deals with article 39 of the Law 472 of 1998, which is worth the trouble to indicate had been asked for like a pretension.
In summary , the pretensions of the demand, in addition of the incentive, persecute that the operators of movable telephony allow "the interconnection of the service of text shipment between the paid telephones to the different companies" and that the Commission of Regulation of Telecommunications (C.R.T.) and the Supervision of Industry and Commerce (S.I.C.) advance the corresponding procedures to demand to Comcel, Movistar and WAVE the fulfillment of the "obligations" that correspond to them.
According to the actor the collective interests presumably infringe take shape in the violation of the rights to the free competition and of the rights of the consumers and users.
Within the process, the operators of movable telephony gave all the elements of judgment to demonstrate to the judge of instance that the trouble own of an interconnection process and implementation of this type had been surpassed, improving therefore the quality of the service. In the same way, they made relation of the legal norms by means of which the subject of the SMS is regulated. He is worth the trouble to indicate, within this context, that the proceeding of study and creation of the legal dispositions that established the parameters within which must lend this type of services, are to say those of shipment and reception of text messages, date from a time previous to the dead line date and admission of the demand (October of 2003), time from which the operators of movable telephony already came, also, making approaches to unfold the activities of the case.
It is as well as, from the perspective of the public interest actions, the managements developed by the actor were completely inanes for "avoiding a contingent damage, to make stop a danger, threatens, infringe or offense on rights and I interest groups", inasmuch as the activities of Comcel, Movistar and OLA, developing of the benefit of the shipment and reception of text messages, did not fit in no of the situations before described, since they were only located in the normal transit that any activity of this type experiments until its more effective moment.
In this order of ideas, and to light of the legal interpretation and of principle of congruency of sentence, is totally disquieting uprising in that, after to have made analysis of proceeding procedural and of heap approbatory, to sentence of first instance (having denied the pretensions of the demand) granted to prosecutor "right" of that he was not deserving, in measurement in that when to grant incentive not only lost of Vista truth procedural, but that also did not know the purpose for which this legal figure was conceived, that, as jurisprudence it has settled down, is only originating "when it demonstrates unequivocally that as a result of the notification of the act allow of the demand the demanded authority adopts the measures that make stop the infringe, because it proves the omission which it would have incurred and that the interposition of the action was decisive to obtain the effective protection of the collective rights." .
At previous conclusion arrives in virtue to that, in the first place, as I am demonstrated properly within the process, at no moment the operators of movable telephony affected or threatened to harm collective some straight, and second place because the procedural performance unfolded by the prosecutor never was the reason, the motor or the means so that it was regulated and served of efficient and effective form of shipment and reception of text messages.
At the present time the sentence was appealed as much by the proxy of the actor part like by the proxy of the company Colombia Mobile S.A. E.S.P, Doctor Isaac Alfonso Devis Granados. Lack to see, in a time, as it unties to the resource the Honorable Advice of State, that on the subject of the incentive (now algid within the litigation) has seated great number of jurisprudence.
ADRIANA XIMENA BARRAGÁN
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THE PROCEDURE IN DISLOYAL COMPETITION, LAW 962 OF 2005
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Law 256 of 1996 of disloyal competition, at his article 24 established the competition to know the processes disloyal competition in the judges and as it transacts the described brief process in the code of civil procedure, up to here it was clear that it was basically an activity in head of the judicial and governed branch in his proceeding by the code of civil procedure.
Later in the year of 1998 the law 446 was sent whose main purpose was to clear, the judicial offices, in her among other subjects was tried to grant to some supervisions jurisdictional faculties to know subjects of its specialty, lucky person or unfortunately for the subject of disloyal competition to the Industry and commerce Supervision were attributed “the same attributions indicated legally in relation to the dispositions relative to promotion of the competition and restrictive commercial practices. " this new faculty granted to SIC (Industry and Commerce Supervision) it generated two great doubts 1. Wish is the nature of these faculties? 2. Wish is the applicable procedure, the first question was solved by the Constitutional Court by means of 2001 sentence C 649 the Court affirms that “…if competition exists a preventions to know the cases of disloyal competition, is clear that it must deal with the same function, of jurisdictional, that exerts the judges of the Republic by virtue of Law 256 of 1996. By the same, it must conclude that at least some of the functions that the article 143 grants, demanded, are jurisdictional, and that consequently, the acts dictated by the Supervision in exercise of this function, will do transit to judged thing, so and as has interjection 3 at the same article 147” The second point on the procedure moderately was solved in the same sentence in which the manifest the court. "By virtue of this disposition, in the investigations that ahead by disloyal competition, the Industry and Commerce Supervision will have to follow the procedure that devotes in the regime of promotion of the competition and restrictive commercial practices, and will be able to adopt the measures you will prevent that they contemplate the effective legal dispositions" in theory with this uprising of the Court the subject was left the difficulties nevertheless resolute were continued presenting/displaying in the development of the processes before at the (SIC), difficulties such as the term to ask for and to contribute tests to the process, origin of the previous exceptions, origin of previous exceptions, invalidities competent civil employee to know the appeal, all these while they were object of uprisings of the Honorable Constitutional Court were solved by the (SIC) in as time of the processes, which did not imply for administered a clear sample of the principle of legal security.
The past 6 of September of 2005 were published in the official newspaper law 962 of 2005, well-known one as the new law anti-transact, in their article 49 that modifies the 144 of 1998 law 446 establishes "the jurisdictional processes that go ahead before the Industry and Commerce Supervision in the matter of disloyal competition, will be followed according to the anticipated dispositions of the brief process in Chapter I, Title XXII, Book Third of the Civil Procedure Code. In case of existing pretensions to replay, these will be transacted within the same process."
We hoped that with the expedition of this norm they are left all the doubts resolute on the procedure to follow in the matter of disloyal competition, no longer is place to interpretations that now exceed the limits established by the civil procedure code director of these processes.
MORENO RESTREPO LAURA.
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THE LEGAL SECURITY IN ELECTRONIC COMMERCE AND THE CONTRACT FORMATION
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The multiple changes caused by a as revolutionary tool as the Internet, necessarily take of the hand a change in the form of life of the present society. New challenges are faced by the new generations, that will have to make an effort as opposed to not to perish the challenges that the era of computer science imposes. The present generation on the other hand, fights successfully to assimilate the great changes of articles of incorporation that in last, will be determining to forge the future generations.
Thus, the electronic commerce is a so valuable tool for the computer science revolution, like at its moment was it the railroad for the industrial revolution, reason why the present challenge of the legislators, national and international lawyers, and organisms, is the search of exits that provide certainty and confidence for the users of the electronic commerce, institutionalizing the validity and the legality of contracts made through the Internet, creating key norms and principles for the formation of this type of legal businesses. It is for that reason which nowadays, tools as the digital company/signature and other forms that pro hang by the protection to the consumer and the rights of author, turn out indispensable successfully to reach the goals of the digital era.
In the search of an international consensus respect to the norms that must govern the electronic hiring, arose on the part of the UNCITRAL , the law model of Electronic Hiring, whose objective era to obtain a mechanism that allowed to the uniformity and harmony between the different legislations from the world. Colombia welcomed east model through Law 527 of 1999, nevertheless, did not happen the same with other countries, reason why the presence of a Convention was required that allowed to the profit of the uniformity and the security to the interior of international the electronic commerce.
One of the most important contributions of this law model to the international trade, it was the recognition of the message of data , welcomed by our legislation in its articles 5º, 14 and 15 like a valid system by means of as, the parts will be able to formulate supplies and their correlative acceptances, in the formation of the legal transaction.
However, Law 527 of 1999 recognizes the forms or methods specifically to accuse of receipt: i) by means of any communication of the addressee, is this automated or no; ii) by means of any act of the addressee to indicate to the initiator that has been received the message. Anyone of these forms is apt also to perfect the acceptance of the supply .
This method is an important tool at the time of providing legal security to the made manifestations of will through electronic means, because it grants validity to the supply and in that measurement, of its possible acceptance, the formation takes control possible of the contract.
However, we do not have to forget that the supply as much as their correlative acceptance is elements internationally recognized for the formation of contracts, nevertheless, each legislation anticipates a little while different for the formation from such. Thus for example, article 864 of our Code of Commerce it stipulates that a contract "is a two more part or agreement to constitute, to regulate or to extinguish among them a patrimonial legal relation and safe stipulation in opposite, will be understood celebrated in the place of residence of the proposes and at the moment that the acceptance of the proposal" (black receives and emphasized outside text). Even the things, the Colombian legislation, it anticipates the ACCEPTANCE of the supply, like the moment at which the contract forms.
In this order of ideas, we cannot let remember arranged by the article 6º of the Law 527 of 1999, that accepts the message of data like equivalent functional of documents written, which implies that the terms indicated by the Colombian legislation for acceptance or rejection of a supply are to him applicable. Thus, if the addressee and the proponent are in the same place, the acceptance or rejection of the supply will have to be formulated within the six (6) following days to the date of the proposal; on the contrary, if the addressee and the proponent are not in the same site, the applicable term will be the one of the distance.
On the matter, and in being supplies made by means of messages of data and the time of its shipment, Law 527 of 1999 arranges in its article 23 that "the message of data will be had by sent when it enters in a person or information system that is not under control of the initiator that sent the message of data in name of this one".
In related with time of reception of the message of data, article 21 of Law 527 of 1999, it indicates that the same one is determined:
a) If the addressee is designating an information system for the reception of messages of data, the reception will take place: 1. At the moment that enters the message of data in the designated information system; or 2. to be sent the message of data to an information system of the addressee who is not the designated information system, at the moment at which the addressee recovers the message of data;
b) If the addressee has not designated an information system, the reception will take place when the message of data enters to an information system of the addressee.
Under the shelter of the Anglo-Saxon law, to determine the moment in which the contract forms, two criteria exist. First he is the one of the reception, according to which, the contract will form at the moment at which the offered receives the acceptance of the supply. The second, is the one of the postal rule, according to which the contract perfects when the acceptance is sent or put in the mail, which implies the presence of third people, doing of such communication, an indirect communication, question that has been criticized at the time of applying this criterion in the matter of electronic hiring, inasmuch as that is considered that most of contracts made by means of Internet they are direct communications.
As opposed to the subject, we have to indicate that the confirmation principle - receipt requested ends the dilemma that produces the criteria of reception and the postal rule. This principle, along with the principle of technological neutrality, provides to the contractual parts greater certainty, and with her, so yearned for legal security.
MARÍA PAULA GONZÁLES
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ARBITRATION
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The arbitration is an alternative mechanism of conflict resolution, established by the law, by means of as, the parts involved in a conflict, that is of negotiable character, that is to say, whose solution depends directly on the parts, is put under the decision of referees, who acting like judges, emit a decision, equivalent to a judicial sentence, denominated I render by arbitration. (Concept of the Chamber of Commerce of Bogotá - Center of Arbitration and Conciliation.)
In equal sense, 1998 decree 1818, in its article 115, establish ': "the arbitration is a mechanism by means of as the parts involved in a conflict of negotiable character, defer their solution by arbitration court, who is invested with the faculty transitorily to administer justice, preferring a denominated decision I render by arbitration."
The arbitration is a procedure that is asked for before the arbitration centers, properly authorized by the law, in these centers the installation of the respective courts of arbitration is made which they will be in charge to decide the existing conflicts between the parts, by means of failures dictated by individuals invested transitorily with the function to administer justice denominated referees, this, in agreement established in the clause of agreement, or the by arbitration pact.
Through this legal figure, the parts involved in a conflict, that has the special connotation of being negotiable, defer their solution to a by arbitration court, which turns the figure a collegiate mechanism and it allows that court to be transitorily invested with the faculty to administer to justice to prefer a decision. The decision taken within the by arbitration proceeding, or I render by arbitration, she is identical to a decision or judicial failure and counts on the possibility of interposition of resources.
The request of installation of the Court of Arbitration is originating by three forms: a) to establish it the Law; b) to exist a clause commitment agreed in a contract; or c) by a commitment decided later to the sprouting of the conflict.
The types of arbitration established by the law are: To Arbitration in Right: Is that must be fit to right being due to found its resolution on effective the legal norms and the jurisprudence. B. Arbitration in Fairness: Is the applied of one in confidence situations where it is not necessary to apply to the legal norms or the jurisprudence, but the own criteria of justice of the referees according to the place of the parts in conflict. C. Technical arbitration: It is based on the specialized professional technical knowledge of the referees who have been named.
Of anyone of these forms of arbitration, the court will decide the difference through I render, that must turn on all the pretensions submissive the decision of the scope within the term fixed to the by arbitration pact.
The fundamental difference of this figure with mediation, to provide and the mediation is that in a arbitration process, the third actor has the attribute to make decisions. On the other hand, the actors in conflict have the obligation to accept the determinations and to assume the responsibilities in implicit them.
The arbitration is a tool of use common in the resolution of commercial or enterprise disputes of international character. Organizations created for such intention are, for example, the Camera the International of Commerce located in Paris; the Institute of Arbitration of the Chamber of Commerce of Stockholm, and the Court the International of Arbitration. Each one of these organizations has own procedures of arbitration, which prevail to solve the conflicts, independently of the internal legislation of the countries in dispute.
The by arbitration procedure has multiplex advantages; these are only some of them:
A. On time,
B. Economy’s,
C. Efficacy,
D. Efficiencies,
E. Confidential,
F. Ideally,
G. A high level of qualification.
In this order of ideas, DISTINGUISHED company/signature DEVIS & ASSOCIATE COUNSELS, specialized in the benefit of services of consultant's office in right of the telecommunications, administrative right, right civilian, right of the competition and commercial right; it has obtained fruitful results in by arbitration justice, representing important companies in his litigations, so is the case of Colombia Mobile, Orbitel, Superview, Equant, among others, processes in which the company/signature obtained excellent results when defending the interests of those societies.
PAULO CÉSAR MARTÍNEZ.
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