Zeitschriftenartikel zum Thema „Contract bill clause“

This article looks at two recent court decisions and one recent arbitral award which help to clarify the position of English Law with regard to incorporation of charterparty arbitration clauses into bills of lading. It starts by giving a brief overview of past decisions of the English Courts on this issue. It proceeds to consider recent developments and to draw conclusions therefrom. Most bills of lading contain jurisdiction clauses providing that parties are to resolve any disputes arising in connection with the contract of carriage contained in the bill through litigation in the courts. Where a bill of lading is issued under a charterparty, however, and where it expressly incorporates the charterparty’s arbitration clause into its terms, the parties to the contract of carriage contained in the bill of lading, including any transferees of the bill, may be obliged to refer their disputes to arbitration. Wilson notes that “[a] strict contra proferentem approach has been adopted towards [attempts to incorporate charterparty arbitration clauses into bills of lading] since, while arbitration clauses are common in charterparties, hey are rarely found in bills of lading.” Three conditions must be met in order for a charterparty arbitration clause to be successfully incorporated into the bill of lading. First of all, “the operative words of incorporation must be found in the bill of lading itself”. Secondly such words must be suitable to describe the charterparty clause that is being incorporated. Finally, the incorporated clause must be consistent with the terms of the bill of lading, and in the event of conflict, the provisions of the bill of lading will prevail.

Abstract: The article demonstrates through an analysis of the limitations on choice of forum or arbitration agreements following the invalidity of a choice of law clause included in a charter party and/or a bill of lading (B/L). It is equally difficult enforcing a jurisdiction or arbitration clause included in a B/L if the parties are not clearly defined in the contract for the carrige of goods by sea. The article delivers some conclusions and suggests the approach to be taken by maritime contracting parties to overcome any feasible invalidity of a choice of forum or arbitration agreement based on the choice of law by European Member (EU) States’ courts.Keywords: Jurisdiction and arbitration agreements, choice of law clauses, contracts for the carria­ge of goods by sea, charter party, bill of lading, anti-suit injunctions, actions in contract, actions in tort, actions in bailment, Demise Clause, Identity of the Carrier Clause.Resumen: El artículo demuestra a través de un análisis de las limitaciones en la elección del foro o los acuerdos de arbitraje después de la invalidez de una cláusula de elección de ley incluida en las partes de la carta constitutiva y / o conocimiento de embarque (B / L). Es igualmente difícil hacer cumplir una cláusula de jurisdicción o arbitraje incluida en un B / L si las partes no están claramente definidas en el contrato para el transporte de mercancías por mar. El artículo presenta algunas conclusiones y sugiere el enfoque que deben adoptar las partes contratantes marítimas para superar cualquier posible invalidez de un acuerdo de elección de foro o arbitraje basado en una elección de la ley por los tribunales de Estados miembros de la Unión Europea (UE).Palabras clave: Jurisdicción y acuerdos de arbitraje, cláusulas de elección de ley, contratos para el transporte de mercancías por vía marítima, fletamento, conocimiento de embarque, medidas antipro­ceso, acciones contractuales, acciones extracontractuales, acciones basadas en “bailment”, cláusula de cesión, cláusula de identidad del transportista.

Resumen: Las controversias de carácter jurisdiccional son muy comunes en litigios derivados de la contratación marítima internacional y, en este contexto, la elección del foro es una cuestión capital. Tanto las cláusulas atributivas de jurisdicción y como las cláusulas de arbitraje son dos mecanismos diferentes que ayudan a garantizar la imparcialidad y la previsibilidad en la resolución de las controver­sias internacionales. A pesar de sus beneficios, en el contexto de los documentos de transporte marítimo internacional estas cláusulas pueden ser inconvenientes para las partes que se ven obligadas a litigar ante foros lejanos. La mayoría de los conocimientos de embarque contienen atributivas de jurisdicción que establecen que las partes deben acudir a determinado tribunal para resolver cualquier controversia que surja en relación con el contrato de transporte internacional. Sin embargo, cuando se emite un co-nocimiento de embarque bajo una cláusula de fletamento que incorpore expresamente la cláusula de arbitraje, las partes en el contrato de transporte incluidas en el conocimiento de embarque, pueden verse obligados a acudir al arbitraje. El art. 468 Ley de Navegación Marítima regula la validez formal de aquellas cláusulas de jurisdicción y arbitraje que prevean la sumisión de las partes a una jurisdicción extranjera o a un arbitraje en el extranjero e impone la negociación individual y separada de ambas cláusulas como requisito de validez.Palabras clave: Derecho internacional privado, cláusulas atributivas de jurisdicción, cláusulas de arbitraje, arbitraje marítimo, Ley de Navegación marítima de 2014.Abstract: Disputes about jurisdiction are very common in litigation arising from international maritime contracting. In this context the choice of forum is an important matter. Jurisdiction and ar­bitration clauses are two different mechanisms that help to ensure impartiality and predictability in international dispute resolution. Despite their benefits, in the context of international maritime transport documents these clauses can be inconvenient for parties that are forced to litigate many times before distant fora. Most bills of lading contain jurisdiction clauses providing that parties are to resolve any disputes arising in connection with the contract of carriage contained in the bill through litigation in the courts. Where a bill of lading is issued under a charter party, however, and where it expressly incor­porates the charter party’s arbitration clause into its terms, the parties to the contract of carriage con­tained in the bill of lading, including any transferees of the bill, may be obliged to refer their disputes to arbitration. Article 468 of the new Maritime Navigation Act regulates the formal validity of choice of court agreements and arbitration agreements establishing the submission to a foreign court or to an arbitration located abroad.Keywords: International Private Law, jurisdiction and arbitration clauses, maritime arbitration, Spa­nish Maritime Navigation Act 2014

In construction contracts, employers generally insist on submission of ‘no due/certificate’ claims signed by the contractors, as pre-condition to release paymentsdue under the final bill. To secure the full amount, contractors generally send anarbitration invocation notice setting out their claims (or in cases where there is noarbitration clause, a legal notice) to the employers, in defiance of any such settlementcertificate/voucher. When the employers contend that the dispute is not ‘arbitrable’on account of discharge of the contract in terms of the No Dues/Claims Certificate,the contractors refute it by stating that any such settlement certificate/voucher wasobtained by fraud, coercion or undue influence and that there was absence of freeconsent. The article will analyse the Indian law on validity of such no duescertificates/settlement certificates/discharge vouchers in construction contracts andthe possible course of action that contractors may adopt to contest claims, despitesuch certificates.

The long-awaited Adoption Act was passed in 1989. The object of the Act as indicated in the objects and reasons of the Bill is to make provision for the adoption of juveniles by persons who are fit and willing to do so. Informal adoptions existed in Sierra Leone in a variety of situations but for the past decade there has been a growing realization that these arrangements needed a legal stamp in order to provide proper security for the child and for the adopters who often feared that the natural parent might claim possession of the child after a number of years of care by the adopters. The absence of any provision for legal adoption was a cause for concern for couples who wished to provide a permanent home for children who were not their natural children.In the past lawyers have attempted to fill this vacuum by ensuring that the natural parent or parents executed a contract with supporting affidavits, where requisite, disclaiming all rights and liabilities towards the child. Such contracts were not strictly legal and lawyers therefore attempted to include a clause (which did not have legal validity) whereby the natural parent could resume his or her rights over the child only if he or she compensated the adopters for all expenses incurred during the child's upbringing. The size of the expenditure involved was often enough to discourage the natural parent's efforts to gain custody over the child.

The article is devoted to the consideration of the specifics of the carrier’s liability for the nonpreservation of cargo during its transportation by rail, transported under a contract of carriage. The grounds and nature of the carrier’s liability for loss, damage, and damage to cargo are analyzed. The reasons for which the carrier’s responsibility for the non-preservation of cargo during its transportation by rail is removed are investigated. The Civil Code of the Russian Federation in modern economic conditions is fundamental in the issues of cargo transportation when using railway rolling stock. Contracts for the carriage of goods by rail take into account a number of basic rights and obligations. One of the features of this type of contract is that it is confirmed by the issuance of a bill of lading. The conclusion of such contracts takes place between the shipper and the carrier. A unified approach to explaining the legal nature of such documents has not yet been defined. Articles 36 and 37 of the Customs Code of the Russian Federation contradict clause 3 of the Article on the obligation of the consignee to accept and pay for the goods (308 of the Civil Code of the Russian Federation). The solution to this problem is to consolidate the obligation to receive the goods and pay to the shipper.. The article discusses in detail a number of problems that may arise when signing agreements between the carrier and the shipper. Among them, such as those that relate to the prolongation of the delivery period of cargo by rail. Therefore, it is noted that the norm of the Civil Code of the Russian Federation is contrary to the Customs Code of the Russian Federation, which at the moment allows the conclusion of an agreement on increasing the delivery time of cargo. Consideration of issues related to liability, issues related to the regulation of railway transportation of goods on the basis of current legislation, and a thorough analysis of judicial practice are important, since they are used not only to improve and increase the efficiency of transportation itself, but also to ensure high-quality and reliable operation of railway transport.

AbstractFrom a purely contractual perspective, this article reflects upon labour standard clauses with the objective to ensure that the fundamental ILO conventions and the International Bill of Human Rights are complied with throughout global value chains in respectively business-to-business (private), and public commercial contracts. The clauses are in both settings based widely on the same standards; however scholarship on the two types of contracts has been quite separate. The article reviews some Scandinavian case law concerning labour standard clauses and procurement regulation. It finds that contractual argumentation supported the outcome in these cases, isolates this argumentation, and reflects on whether contractual perspectives on the public contract might inspire current research on private contracts. It finally argues that an actual fusion is already taking place, wherefore contract lawyers may play an important role as to whether ‘the interpretative wall’ should be breached, or whether this is not feasible due to the distinctive characteristics of each contract.

On 8th June 2020 Vladimir Putin signed into law a new bill amending Russian Commercial Code (RCC) introducing provisions that enable sanctioned persons to sue in Russian commercial courts their foreign counterparts irrespective of jurisdiction clause within the contract signed or international treaty. The main sponsor has given his name to the new Law, which is already known as Lugovoy Law. The sense of the Parliament was that to provide Russian sanctioned persons and their affiliates (both domestic and foreign) with extra support vis-à-vis ongoing and forthcoming litigations abroad. As of now, the RCC is supplemented by sections 248.1 and 248.2 and the commercial courts shall have exclusive jurisdiction over disputes involving persons that are subject to restrictive measures. The Law neither list countries and jurisdictions that shall impose sanctions on the Russian plaintiffs, nor specify type of restrictive measures. For instance, the Russian company sanctioned solely by Ukraine may prevent LCIA arbitration or High Court proceedings in England at the suit of its British opponent. In doing so, the Russian sanctioned Plaintiff is required adducing evidence to show deprivation from right to an effective remedy and to a fair trial abroad. Pursuant to the Lugovoy Law, the Plaintiff could be either an individual or a legal entity including foreign ones and be subject of restrictive measures imposed by any foreign country, union of states or by a body of certain interstate community. The Plaintiff’s home commercial court shall have inherent jurisdiction to entertain cases arising out of the new Lugovoy Law. Meanwhile section 248.2 of RCC enables sanctioned persons to seek injunctive relief precluding foreign opponents either commencing or continuing court proceedings in foreign fora. It is a kind of ex parte anti-suit injunction previously unknown to the Russian legal order. The sanctioned person may invoke 248.2 relief once mailed by opponent’s pre-trial letter. In support of the anti-suit injunction the Lugovoy Law allows sanctioned persons asking the court to order for security for costs. However, the amount sought shall not exceed the sum at stake in the main proceedings. Both orders made under the Lugovoy Law may be challenged on appeal at the Circuit Commercial court within one month. At the outcome, the protectionist logic of the legislature made foreign non-residents extraterritorially amenable to the jurisdiction of Russian commercial courts irrespective their personal law. This might provoke competition between jurisdictions and the emergence of two judicial acts on a dispute between the same persons on the same subject and grounds. If the major actors of the Russian economy decide to recourse to the provisions of the new law in disputes that have nothing to do with sanctions that may entail international tensions. The real purpose of the Lugovoy law is to create an extra tool to protect sanctioned persons and their interests. The opponents of those persons designated under some sanctions program shall not be able to recognise and enforce on the territory of Russia a judgment or arbitral award that in some extent appears to disadvantage Russian sanctioned persons. The author was followed by the objective to discover background and reasons behind the Lugovoy Law, as well as to attempt establishing its beneficiaries. Examining court proceedings versus Russian sanctioned persons abroad that have been commenced or disposed of within a month prior Andrei Lugovoy introduced his bill, it were found situations the Lugovoy Law would like to prevent and persons it tries to protect beforehand. In addition to this, the research focused on cases in Russian commercial courts wherein the Plaintiffs were trying to persuade the Commercial courts to apply the principles of Lugovoy bill before it has become law.

Resumen: Los acuerdos atributivos de jurisdicción a favor de un tribunal extranjero incluidos en un conocimiento de embarque se han utilizado tradicionalmente en el sector marítimo como mecanismo que agiliza la práctica comercial a la vez que busca el equilibrio entre las partes que resolverán sus controversias ante un foro neutral y especializado. Sin embargo, la presencia de estas cláusulas en contratos estandarizados fomenta la discusión acerca de la existencia de una parte débil en la relación y la imposición de la cláusula sin su consentimiento y en detrimento de sus intereses. En esta decisión se vislumbra la dicotomía que ha resurgido a raíz de la nueva Ley de Navegación marítima que, con el objetivo de evitar los abusos inherentes a las cláusulas de sumisión sufridos por terceros poseedores de conocimientos de embarque, incorpora estrictas exigencias que alteran la línea seguida por la normativa europea.Palabras clave: Derecho Internacional privado, artículo 25 Reglamento 1215/2012 (Bruselas I bis), clausulas atributivas de jurisdicción, autonomía de la voluntad de las partes. Abstract: Jurisdiction agreements in favour of a foreign court included in a bill of lading have traditionally been used in the maritime sector as a mechanism that streamlines commercial practice while seeking a balance between the parties that will resolve their disputes in a neutral and specialized forum. However, the presence of these clauses in standardized contracts encourages discussion about the existence of a weak party in the relationship and the imposition of the clause without its consent and to the detriment of its interests. In this decision both positions are glimpsed reflecting a dichotomy that has resurfaced as a result of the new Law of Maritime Navigation which, with the aim of avoiding the abuses inherent in the submission clauses suffered by third parties possessing bills of lading, incorporates strict requirements that alter the line followed by the European regulations.Keywords: Private international law, article 25 R 1215/2012 (Brussels I bis), clauses conferring jurisdiction, autonomy of the will of the parties.

AbstractFiona Fogden gave a very practical talk at the BIALL Conference 2010 in Brighton on contract negotiation with online vendors and it has been held over to this issue of LIM as it fits so well with our vendor relations theme.

In the modern world, the conclusion of a contract is commonplace, but it is still important to prevent opportunistic behavior of market participants at the stage of post-contractual relations. From a financial point of view, it is important to prescribe such terms of the contract so that its violation will cost more for the party that does not comply with the clauses of the contract than further joint activities. However, in Islamic law there are a number of restrictions on the use of traditional tools to ensure compliance with the terms of the contract, which created the prerequisites for this study. The work is becoming even more relevant against the background of the introduction of a bill to the State Duma of the Russian Federation on partner financing activities, in fact, created for Islamic banking, as well as interest from the largest Russian banks. The purpose of this article is to identify tools to deter post-contractual opportunism in Islamic law.

Abstract: The UK approach to the demarcation of the unfairness assessment, as between exempted 'core' or 'price' terms and assessable 'peripheral' and/or contingent terms, under the Directive 93/13/EEC on Unfair Terms in Consumer Contracts (UTD), as implemented in the 1999 Unfair Terms in Consumer Contracts Regulations (UTCCR), has appeared in disarray following Abbey National. Hence, while the Department of Business, Innovation and Skills (BIS) seeks to introduce a new Consumer Rights Bill, the Law Commissions were asked to clarify unfair terms' law. This paper evaluates the Law Commissions' resulting 2012 Issues Paper 'Unfair Terms in Consumer Contracts: A New Approach' (hereinafter '2012 Issues Paper'), placing the unfairness exemption in its disjointed, 'Europeanized' context (section 2), attention then turns to Abbey National and the UTD/UTCCR interplay (section 3). The Law Commissions' 2012 Issues Paper, championing the need to correct the reach of the UTCCR, is then analysed (section 4). Finally, the paper turns to the implications of the 2012 Issues Paper (section 5). Résumé: L'approche du Royaume Uni concernant la distinction de l'appréciation du caractère abusif, entre les clauses sur 'l'objet' ou 'le prix', exclues et les clauses 'accessoires' et/ou occasionnelles, appréciables, selon la Directive 93/13/EEC sur les clauses contractuelles abusives (UTD), transposée dans la Loi de 1999 sur les clauses contractuelles abusives (UTCCR) est apparue comme prêtant à confusion selon Abbey National. Par conséquent, tandis que le Ministère britannique des Entreprises, des Compétences Economiques et de l'Innovation cherche à introduire une nouvelle Loi sur les Droits du Consommateur, les Commissions de Loi ont été chargées de clarifier la loi sur les clauses contractuelles abusives. Cet article évalue les résultats des documents de travail de 2012 des Commissions de Loi, plaçant l'exemption pour caractère abusif dans son contexte incohérent, 'européanisé (section 2), l'attention se tourne alors vers Abbey National et l'interaction UTD/UTCCR (section 3). Le Document de travail de 2012 des Commissions de Loi, promouvant le besoin de corriger la portée de l'UTCCR, est analysé à la section 4. Enfin, l'article traite des implications du Document de travail 2012 (section 5).

Constitutional law and international law operate in simultaneous conjunction and reciprocal tension. Both fields seem to have overcome the great challenges of destruction and neglect in the course of the 20th century. Both after World War I and World War II the world experienced new waves of constitution making. In both cases the current German constitutions (the Weimar Constitution of 1919 and the Grundgesetz of 1949) were influential. Characteristic of constitution-making in this century, is the final victory of liberal constitutions based on the rule of law, the Rechtsstaat, fundamental rights, meaningful control of public powers and the establishment of constitutional courts. Following the destruction of World War II, the notion of the Sozialstaat emerged strongly in Germany. In contrast to the Constitution of the United States of America, the principle of the responsibility of the state for social justice has emerged in almost all new constitutions, including Russia, Poland, South Africa, Spain, Italy and Portugal. Where courts are given the mandate to interpret bills of rights, fundamental rights have been developed into foundation stones of the legal system. The presence in a Bill of Rights of restrictive clauses, is important for its analysis. Generally restrictive clauses in new constitutions try to limit the possibilities of restriction. The importance of constitutional rules establishing and legitimizing the political organs, must not be overlooked. Of particular importance is the degree of control over the head of state, a positive attitude among political actors towards the constitution and the protection of the interests of minorities in a democratic system. In the field of Public International Law much of Kant's ideal of an international confederation of peace has been realized. Since 1990 the United Nation's Security Council has shown the potential of becoming a directorate for the community ofnations. International law has also been instrumental in the worldwide recognition of human rights. Especially in Europe, Convention Law has had a strong impact. Furthermore, global and regional systems of regulation have tended to alter the legal attitude towards state sovereignty. It may be that the South African constitutional approach in terms of which international law is subject to constitutional and other national law, is not in line with international tendencies.

In this decision the 9th Civil Chamber of the German Federal Supreme Court changed its case law on the validity of a standard form contract providing a universal guarantee, and followed the 'causation' line of case law of the 5th and 11th Civil Chambers. The judgment was based on the following set of facts: The plaintiff savings bank provided a property company, a Kommanditgesellschaft, with an overdraft. In 1984 the defendant, a shareholder in the company, agreed to become personal guarantor of the credit advanced to the property company under a standard form of agreement with no restrictions on the time period or amount of the guarantee. Under Condition 1(1) of the Conditions of Guarantee, the guarantee was 'to provide security for all existing and future claims of the savings bank against the principal debtor, including conditional and time limited claims, … which arise out of their business relationship (in particular out of overdraft, credit and loan facilities of all kinds and bills of exchange) as well as out of bills of exchange which are submitted by third parties, guarantees, assignments or by way of subrogation.' In October 1985, the defendant parted from the company and in January 1986 the plaintiff raised the company's overdraft facility to 2.5 million DM and in addition granted it loans of 2 million and 1.5 million DM. The defendant gave notice of the termination of the guarantee in 1990, and shortly thereafter the company became bankrupt. The plaintiff claimed a sum of more than 10 million DM from the defendant as guarantor, and asserted an initial part claim in court for 1 million DM. At first instance and on appeal the claim was allowed. An appeal in cassation in the Supreme Court led to the quashing of the decision of the appeal court and the reference of the case back for a rehearing. In a departure from its earlier jurisprudence, the 9th Civil Chamber of the Supreme Court held that the clause in question was invalid, for breach of § 9 of the Law on General Conditions of Contract, and possibly of § 3 of the same Law. § 767 (1) of the German Civil Code required the guarantee to be limited. In a case where an overdraft facility was guaranteed, the extent of the overdraft allowed at the time the guarantee was given provided the limit within the meaning of this provision. The broad declaration of scope contained in the Conditions of Guarantee was by contrast inconsistent with this interpretation of § 767 (1) of the Civil Code and the purpose of the contract, because under it the guarantor was obliged to stand security for new extensions of credit, provided by the lender without any action on the part of the guarantor and exceeding the level of credit authorised by the lender at the time the guarantee was given. In addition, the standard form extension of liability to all existing and future commitments of the principal debtor was entirely surprising if the guarantee was given in order to encourage the grant or maintenance of a specific overdraft of a given amount, or the raising of the overdraft limit to a certain amount (causation principle). The standard form extension of the liability of the guarantor to all existing and future commitments of the principal debtor arising out of its relationship with the bank had not become a part of the contract of guarantee, therefore, but the declaration of scope remained valid in so far as it concerned the overdraft up to the limit agreed at the time the guarantee was given. The clause could therefore be partly maintained: it was not an impermissible reduction of the contract in an attempt to preserve it. The following comments analyse the decision from the point of view of Belgian (De Wilde), Swiss (Belser) and Greek (Tzouganatos) law.

Purpose: It was decided to determine the influence of credit card contracts on the right to information of customers of financial institutions, Peru. Theoretical framework: The violation of the right to information has become a habit on the part of financial entities, since the regulatory and supervisory entities do not comply with overseeing and sanctioning this type of companies, therefore, the theoretical background found allowed to go deeper into the subject. Design/methodology/approach: A quantitative methodology was considered, under a non-experimental descriptive correlational design, surveying 60 people, made up of 30 lawyers and 30 clients of financial entities, Peru. Findings: The findings showed that when credit card contracts are prepared in an inadequate manner, which only benefits the financial institutions, clients' information rights will be inadequate. Likewise, a significance of less than 0.05 was reached. Research, Practical & Social implications: Clauses that exclude legal rights have a direct and significant influence on the right to information of customers of financial institutions. Considering the Spanish legislation in article 32.3 of the new Credit Card Payment Services Law and in Colombian legislation in Article 333 of the Political Constitution of Colombia, by allowing private initiative to carry out economic activities and warning that it does not allow companies to abuse their position of dominance, Paradoxically, it grants the financial sector all the faculties and tools to define its excessive and exaggerated charges that harm a population that loses purchasing power every day. It is recommended that the legislative and executive powers reform the 1993 Political Constitution of Peru, where it should establish that small bills that cause economic damage to consumers of financial entities are prohibited. Originality/value: It is essential that the state supervisory entities verify compliance with the clauses of the contracts, since this ensures that the right to information of each client in the financial sector is not violated.

Purpose: It was decided to determine the influence of credit card contracts on the right to information of customers of financial institutions, Peru. Theoretical framework: The violation of the right to information has become a habit on the part of financial entities, since the regulatory and supervisory entities do not comply with overseeing and sanctioning this type of companies, therefore, the theoretical background found allowed to go deeper into the subject. Design/methodology/approach: A quantitative methodology was considered, under a non-experimental descriptive correlational design, surveying 60 people, made up of 30 lawyers and 30 clients of financial entities, Peru. Findings: The findings showed that when credit card contracts are prepared in an inadequate manner, which only benefits the financial institutions, clients' information rights will be inadequate. Likewise, a significance of less than 0.05 was reached. Research, Practical & Social implications: Clauses that exclude legal rights have a direct and significant influence on the right to information of customers of financial institutions. Considering the Spanish legislation in article 32.3 of the new Credit Card Payment Services Law and in Colombian legislation in Article 333 of the Political Constitution of Colombia, by allowing private initiative to carry out economic activities and warning that it does not allow companies to abuse their position of dominance, Paradoxically, it grants the financial sector all the faculties and tools to define its excessive and exaggerated charges that harm a population that loses purchasing power every day. It is recommended that the legislative and executive powers reform the 1993 Political Constitution of Peru, where it should establish that small bills that cause economic damage to consumers of financial entities are prohibited. Originality/value: It is essential that the state supervisory entities verify compliance with the clauses of the contracts, since this ensures that the right to information of each client in the financial sector is not violated.

In NEHAWU & others v Minister of Public Service and Administration & others 2022 (6) BCLR 673 (CC), the Constitutional Court declared invalid and unenforceable a clause regulating the third payment period in a collective agreement regulating periodic wage increases for public service employees. We do not take issue with the court’s findings concerning the validity of the impugned collective agreement. However, we question the reasoning provided for the ‘just and equitable’ remedy ordered. We find the court’s reasoning insufficient in so far as it overlooked applicable principles of corrective justice, the significance of the state being unjustifiably enriched by labour peace by curtailing public servants’ right to strike, and the consequences of its decision on the effectiveness of the delay-bar in preventing ill-motivated state self-review. We propose the bifurcated approach that the court adopted in the AllPay saga as a tool to adjudicate polycentric cases such as the impugned case, as it enhances the judiciary’s proper place in the separation of powers and maximises remedial possibilities for innocent third parties to state contracts. We conclude with what has happened on the ground since this decision was reached.

Artikel ini ingin menjawab bagaimana perlindungan konsumen dalam perjanjian baku elektronik pada telekomunikasi seluler. Undang-Undang Perlindungan Konsumen menyebutkan klausula baku sebagai ketentuan dan syarat-syarat yang telah dipersiapkan dan ditetapkan terlebih dahulu secara sepihak oleh pelaku usaha. Metode penelitian yang digunakan adalah yuridis-normatif, yakni berusaha dengan bahan hukum meng-analisis klausula baku telekomunikasi seluler. Hasil penelitian menunjukkan bahwa perlindungan kepada konsumen dalam kontrak elektronik Telkomsel, perusahaan PT. Telekomunikasi Indonesia Tbk memberikan alternatif penyelesaian sengketa dengan cara pengajuan klaim keberatan pelanggan baik lisan maupun tulisan melalui Grapari PT. Telekomunikasi Indonesia Tbk dan apabila ditetapkan suatu ganti rugi, maka ganti rugi yang dibayar pihak PT. Telekomunikasi Indonesia Tbk berbentuk ganti rugi pengembalian uang atas kesalahan penghitungan biaya tagihan. Consumer Law Protection in Electronic Standard Agreement This article aims to answer how consumer protection in an electronic standard agreement on cellular telecommunications. The Consumer Protection Law stipulated that standard clauses as provisions and conditions that have been unilaterally prepared and determined by business actors. This is normative juridical research, using legal materials to analyze the standard clauses of cellular telecommunications. This research found that the protection of consumers in Telkomsel electronic contracts, Indonesia Telecommunication Company provides an alternative dispute resolution by submitting customer objection claims both oral and written through Grapari Indonesia Telecommunications Company and if a compensation is stipulated, then it will be paid by Indonesia Telecommunication Company in the form of refund for the error calculation of bill fees.

LABURPENA: Europa 2020 estrategiak balioetsi duenez, kontratazio publikoa tresna egokia da sozialki integratzailea, berdea eta berrikuntza-sustatzailea izango den hazkundea lortzeari begira. Europar Batasuneko Justizia Auzitegiaren jurisprudentzia-doktrinak klausula sozialak sartzea onartu du, baina kontratazio publikoaren printzipioak (funtsean, lehia askea) ez mugatzeko baldintzapean. Horrela, bada, 2004ko zuzentarauek jurisprudentzia-doktrina positibizatu zuten. Zuzentarauen laugarren belaunaldiak, berriz, paradigma-aldaketa ekarri du. Horren bidez, kontratazio publikoa erabiltzen da gizarteratzeko politikak, ingurumen-politikak eta berrikuntza-politikak sustatzeko bitarteko apropos gisara. Sektore Publikoko Kontratuei buruzko Legearen proiektuaren bidez ari da jorratzen 2014/24 Zuzentarauaren transposizioa. Klausula sozialen arloan, kontratazio publikoaren paradigma berriari erantzuten al dio proiektuak? Kontu horixe jorratu nahi da lan honen bidez. RESUMEN: La Estrategia Europa 2020 ha considerado que la contratación pública es un instrumento adecuado para lograr un crecimiento socialmente integrador, verde y que fomente la innovación. La incorporación de cláusulas sociales ha sido aceptada por la doctrina jurisprudencial del TJUE, aunque condicionada a no limitar los principios de la contratación pública, fundamentalmente la libre competencia. Así, las directivas de 2004 positivizaron la doctrina jurisprudencial. La cuarta generación de directivas, por su parte, ha introducido un cambio de paradigma que instrumentaliza la contratación pública como medio idóneo para el fomento de políticas de integración social, ambiental y de innovación. La transposición de la Directiva 2014/24 se está abordando mediante el Proyecto de Ley de Contratos del Sector Público. ¿Responde el proyecto al nuevo paradigma de la contratación pública en materia de cláusulas sociales? Esa es la cuestión que pretende abordarse a través del presente trabajo. ABSTRACT: The Europa 2020 strategy found public procurement to be an adequate tool for achieving a socially and green integrative growth and that promotes innovation. The incorporation of social clauses has been accepted by the case law doctrine of the EUCJ, although subjected to not to curtail public procurement principles, mainly free competition. Thus, 2004 Directives positivize the case law doctrine. The fourth generation of Directives, in turn, has introduced a paradigm shift that uses the public procurement as an ideal way to promote social integration, environment and innovation policies. The transposition of the directive 2014/24 is being carried out by means of the Bill on Public Contracts. Does this bill answer to the new paradigm in public procurement as far as social clauses are concerned? That is the issue we try to deal with in this work.

Since the decision of the Supreme Court in Soucisse, a growing number of sureties try to obtain their liberation by invoking a fault of the creditor. This phenomenon occurs in the province of Quebec as in the other provinces of Canada. This paper relates mostly to the Quebec Law. The sureties plead a fault in information about the nature or the consequences of their contract or about the risks and circumstances of the operation. The author writes that such a general duty of information does not exist, except if the creditor has been contractually engaged to do so. Nevertheless, if the creditor gives wrong information with bad faith, he will be held liable. Secondly, the sureties invoke the recall of the loan. Here again, there is no fault on the creditor's part, if the term is arrived or if a reasonable notice has been given when the debt is payable on demand. But if the creditor has promised that he would not recall his loan for a certain period, he must do so. Thirdly, the sureties invoke a fault in the realization of the securities for a low price. The courts will ascertain whether the sale has been held in accordance with prescriptions of the law for this type of security. If the creditor sells privatly, the courts do not hold him liable if the price obtained is justified within the economic context. In case of a fault in the realization of the securities, an action on liability belongs to the principal, the company, and not to the surety, the shareholder, a victim by ricochet, except if the goods are his own. Nevertheless if the surety is sued, he may oppose a fin denon-recevoir. The burden of the proof of the fault will be more or less easy according to the circumstances of the case. Most often, an exoneration clause will deny liability except in the case of bad faith. In the absence of such a clause, the criterium is that of a reasonable man. Sureties must also prove the amount of the prejudice. Recent amendments to the Bank Act and to the Act respecting Bills of lading, Receipts and Transferts of property in stock impose new standards of conduct on the creditor and will offer more protection to sureties.

The Privy Council was faced with the following set of facts: Shipowners chartered their vessel to time charterers. The vessel was subchartered to shippers for the carriage of a cargo from Indonesia to China. The time charterers issued a bill of lading which contained a so-called Himalaya clause, i.e. a clause which purported to confer on subcontractors the benefit of 'all exceptions, limitations, provision, conditions and liberties benefitting the carrier. It also contained a clause conferring exclusive jurisdiction on the Indonesian courts. After discharge of the cargo, the cargo owners issued a writ against the vessel in Hong Kong claiming that the cargo was damaged on delivery. The shipowners sought to rely on the jurisdiction clause, as being a provision within the meaning of the Himalaya clause. In the view of the Hong Kong Court of Appeal, the shipowners were not entitled to rely on the clause because they were not parties to the bill of lading. Nor had there been a bailment on terms which included the jurisdiction clause. The shipowners appealed to the Privy council, which dismissed the appeal (Lord Goff of Chieveley giving the judgment of the Board). It traced the development of Himalaya clauses as a device to accommodate various situations arising in the context of carriage of goods by sea where there was a commercial expectation that the benefit of certain terms of the contract of carriage should be made available to parties involved in the adventure who were not parties to the contract - primarily stevedores, but in some cases also shipowners relying on terms in charterers' bills of lading to exempt them from possible liability to cargo owners and consignees. The theoretical basis for giving effect to such clauses remained problematic (although they were currently construed as bilateral contracts arrived at through the agency of the carrier). It was not apparent that a jurisdiction clause should be included within the list of clauses from which a subcontractor should be allowed to benefit. 'Such a clause can be distinguished from terms such as exceptions and limitations in that it does not benefit only one party, but embodies a mutual agreement under which both parties agree with each other as to the relevant jurisdiction for the resolution of disputes. It is therefore a clause which creates mutual rights and obligations.' While the Himalaya clause in the contract in question referred to subcontractors enjoying the benefit of a 'provision' for the benefit of the carrier, this term must be interpreted eadem generis with exceptions and limitations. The function of a Himalaya clause was 'to prevent cargo owners from avoiding the effect of contractual defences available to the carrier by suing in tort persons who perform the contractual services on the carrier's behalf. To make available to such a person the benefit of an exclusive jurisdiction clause in the bill of lading contract does not contribute to the solution of that problem.' In addition, the purpose of a jurisdiction clause is usually to confer jurisdiction on a court in the place where the carrier carries on business. It is purely fortuitous if that court is also a convenient place for a subcontractor to litigate. Both the terms of the Himalaya clause and the policy it pursued therefore indicated that it was not intended to include the jurisdiction clause. The following case note contrasts the legal reasoning employed in Belgium in similar situations (E. Dirix).

In April 2012 Bill Nichols, a financial analyst at the real estate investment firm Koenig Capital, was about to enter a unique lease renegotiation. One of Koenig's tenants, Hasperat Inc., had sixteen years left on its long-term lease of the Kelley Building, a 165,000-square-foot office building in downtown Cleveland. The lease contained a clause giving Hasperat the option to buy the Kelley Building from Koenig. When Nichols tried to place a mortgage on the property to take advantage of low interest rates, he learned that the existence of this option in the lease contract prevented lenders from offering Koenig their lowest rates. As a result, Nichols had been tasked with renegotiating the lease to remove the option clause. This unexpected event offered Nichols the opportunity to use his financial skills. He needed to calculate the fair value of the purchase option to be able to justify to his superiors by how much they should compensate Hasperat. Students will step into the role of Bill Nichols and apply real options modeling techniques to value the purchase option in Hasperat's lease.After reading and analyzing the case, students will be able to: Apply real options theory to the valuation of a purchase option in a commercial real estate lease Identify the common mistakes in applying traditional discounted cash flow (DCF) analysis to financial problems with option components

The conversion, as a way of correcting the causes of nullity of the civil legal act, which consists in capitalizing in a transformed manner the manifestation of valid will expressed in a civil legal act struck by nullity in a subsequent civil legal act, has applicability in various matters of civil law. This paper focuses on the identification and analysis of conversion hypotheses in the field of civil obligations, which can be deduced from the norms of the Civil Code. Thus, the author noted that the manifestation of will, which, void as alienation, may be worth pre-contract of alienation, and to this hypothesis of conversion the author attributed the conversion of a legal act of disposition on a good, concluded in violation of the prohibition of alienation and with the violation of the inalienability clause, as well as the conversion of legal alienation of a common property made by one spouse without the consent of the other spouse. There is also a case of conversion of the legal act in the situation in which an act of constituting an autonomous personal guarantee struck by absolute nullity will be able to be valid as an act of constitution of a surety. The conversion can also take place in case of nullity of the bill of exchange, which can be valued as a writing certifying a claim (confirmation of debt).

PurposeConflicts, claims and disputes are inherent in most construction projects. Acceptable degree of commonality in the interpretation of contract provisions is critical in effective contract administration. This study aims to assess the effects of contract ambiguity factors on construction conflicts, highlighting the causes of divergent interpretations using fuzzy technique for order of preference by the similarity-to-ideal-solution (TOPSIS) method.Design/methodology/approachFuzzy TOPSIS framework with 27 ambiguity factors is constructed by conducting a comprehensive literature review, accompanied by a pilot study. Questionnaire survey is formed, and one-to-one interviews are arranged with 35 contract administration experts.FindingsThe findings indicate that (1) ambiguity due to excessive changes in the bill of quantity (BOQ) (including ambiguous provisions related to BOQ changes), (2) incomplete clauses that do not describe the scope of the intended work purely, (3) ambiguity due to excessive amendments in the scope of works (including ambiguous provisions related to scope changes), (4) ambiguous enforceability including excessive demands and (5) ambiguous goal and performance requirements are the top five ambiguity factors affecting construction conflicts.Research limitations/implicationsPresented framework is performed referring to ambiguity factors in all type of construction contracts in the general sense. However, the identified factors may vary depending on the project type, contract type, procurement method or use of standard contract forms (such as NEC, FIDIC).Originality/valueThe literature lacks the investigation of ambiguity factors in construction contracts, yet the assessment of the effects of contract ambiguity is essential to minimize conflicts.

Photo by Patrick Tomasso on Unsplash ABSTRACT In cases where the law conflicts with bioethics, the status of rights must be determined to resolve some of the tensions. This paper considers the origins of both legal and philosophical rights, arguing that rights per se do not exist naturally. Even natural rights that are constitutional or statutory came from relationships rather than existing in nature. Once agreed upon, rights develop moral influence. INTRODUCTION l. The Question of Rights The language of rights is omnipresent in current discourse in law, bioethics, and many other disciplines. Rights dialogue is frequently contentious – some thinkers take issue with various uses of rights in the modern dialogue. For example, some criticize “rights talk,” which heightens social conflict when used as a “trump” against disfavored arguments.[1] Others are displeased by what is termed “rights inflation,” where too many novel rights are developed, such that the rights these scholars view as “more important” become devalued.[2] Some solutions have been proposed: one recommendation is that rights should be restricted to extremely important or essential ones. Some Supreme Court justices make arguments for applying original meanings in legal cases.[3] Conflict over the quantity and status of rights has long been a subject of debate in law and philosophy. Even Jefferson had to balance his own strict reading of the Constitution with tendencies to exceed the plain text of the document.[4] This thread of discourse has grown in political prominence over the years, with more Supreme Court cases that suggest newly developed (or, perhaps, newly recognized) rights. The theoretical conflict between textualists and those looking to intent or context could lead to repealing rights to abortion, sterilization, or marital privacy and deeply impacts our daily lives. Bioethics is ubiquitous, and rights discourse is fundamental. This paper analyzes the assumptions that underlie the existence of rights. The law is steeped in philosophy, though philosophical theories have an often-unacknowledged role. This is especially true in cases that navigate difficult bioethical issues. As a result of this interleaving, the ontological status of rights is necessary to resolve some of the theoretical tensions. Many philosophers have either argued for or implicitly included human rights in their theories of morality and legality. However, there is no universally accepted definition of rights; various philosophers have their own approaches. For example: Louden comments, “Rights are permissions rather than requirements. Rights tell us what the bearer is at liberty to do”; Martin thinks that a right is “an established way of acting”; Hohfeld concludes that all rights are claims.[5] Similarly, there is dissent about the qualities of rights: The Declaration of Independence characterizes rights as unalienable, but not all thinkers agree. Nickel comments, “Inalienability does not mean that rights are absolute or can never be overridden by other considerations. . . Perhaps it is sufficient to say that [human] rights are very hard to lose.”[6] This discord necessitates additional analysis. “Many people tend to take the validity of. . . rights for granted. . . However, moral philosophers do not enjoy such license for epistemological complacency.”[7] Because of the fundamental impact that political and moral philosophy enacted as the law have, this paper considers the origins of both legal and philosophical rights, arguing that rights per se do not exist naturally. Even natural rights that are constitutional or statutory came from relationships rather than existing in nature. Once agreed upon, rights take on moral force. ll. Legal Rights: From Case to Constitution Bioethics and law sometimes address rights differently. Three Supreme Court cases marked the development of privacy rights in the United States: Griswold v. Connecticut (1965), Roe v. Wade (1973) and Cruzan v. Director, Missouri Department of Health (1990). These cases shape the normative dialogue and consider complex moral quandaries. Griswold v. Connecticut concerned providing contraception to married couples in contravention of state law. Justice Douglas writes for the majority that, based in “a right of privacy older than the Bill of Rights,” legally protected zones of privacy extend from the text of the Constitution. “Specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance.”[8] Writing in dissent, Justice Black argues that there is not a broad right to privacy included in the provisions of the Constitution, and expresses concern over “dilut[ion] or expans[ion]” of enumerated rights by terms such as privacy, which he characterizes as abstract and ambiguous – and subject to liberal reinterpretation.[9] He concludes that the government does have the right to invade privacy “unless prohibited by some specific constitutional provision.”[10] Also dissenting, Justice Stewart finetunes the argument: rather than look to community values beyond the Constitution, the Court ought to rely solely on text of the document, in which he “can find no such general right of privacy in the Bill of Rights, in any other part of the Constitution, or in any case ever decided by this court.”[11] Thus, Griswold v. Connecticut is an example of the tensions within the Supreme Court over strict textualism or broader interpretations of the Constitution that look to intent and purpose. Roe v. Wade held that there is a right to privacy found through the Due Process Clause of the Fourteenth Amendment that includes the right to make medical decisions including abortion. While the conclusion – that there is a Constitutionally protected right to abortion, with certain limits seems to expand the Griswold doctrine of privacy rights, dissent to the ruling stems from much the same concern as before. Justice Rehnquist writes: A transaction resulting in an operation such as this is not "private" in the ordinary usage of that word. Nor is the "privacy" that the Court finds here even a distant relative of the freedom from searches and seizures protected by the Fourth Amendment to the Constitution, which the Court has referred to as embodying a right to privacy.[12] However, he then departs from the stricter approach of Justices Black and Stewart: I agree… that the "liberty," against deprivation of which without due process the Fourteenth Amendment protects, embraces more than the rights found in the Bill of Rights. But that liberty is not guaranteed absolutely against deprivation, only against deprivation without due process of law.[13] This is a tempering of the stricter constructionism found earlier, where more latitude is allowed for the interpretation of the text of the Constitution, even though there are clearly limits on how far the words may be stretched, with the genesis of a new right. Later, in Planned Parenthood of Southwestern Pennsylvania v. Casey, the Court further refined Roe v. Wade implementing an “undue burden” test.[14] In Cruzan v. Director, Missouri Department of Health, the Court held that there is a general liberty interest in the refusal of medical treatment. The case continues the tradition of Griswold and Roe v. Wade ensuring a liberty that is beyond the text, but also allows states to impose a strict evidentiary burden to shape how the right is exercised. The Court affirmed the lower court’s decision that “because there was no clear and convincing evidence of Nancy [Cruzan’s] desire to have life-sustaining treatment withdrawn. . . her parents lacked authority to effectuate such a request.”[15] The Supreme Court found that the clear and convincing evidentiary burden applied by the Missouri Supreme Court was consistent with the Due Process clause. Justice Scalia notes that even though he agrees with the Court’s decision, he finds this judgment unnecessary or, perhaps counterproductive, because the philosophical underpinnings of the case “are neither set forth in the Constitution nor known to the nine Justices of this Court any better than they are known to nine people picked at random from the Kansas City telephone directory” and should be left to the states to legislate as they see fit.[16] He goes on to further argue that the Due Process clause “does not protect individuals against deprivations of liberty simpliciter”; rather, it protects them from infringements of liberty that are not accompanied by due process.[17] Justice Scalia’s textualist position likely influenced his remarks.[18] Comparing these cases, I argue there is a distinct effort to make the Constitution amenable to contemporary mores and able to address present issues that is moderated by justices who adhere to the text. The legal evolution of rights that are beyond the text of the Constitution may reflect social norms as well as the framers’ intent. Rights are protected by the Constitution, but the Constitution is mutable, through both case law and legislation. Prior to the adoption of the Constitution, the Declaration of Independence declared: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.[19] The Declaration of Independence gives insight into rights prior to the Constitution by referring to a priori rights extended by a creator, sheltered and supported by the state.[20] For earlier evidence of rights, Supreme Court cases often reference English common law doctrines. The common law was informed by preexisting principles and drew on a historical body of thought: philosophy. Exploring philosophy can give insight about the evolution of law. lll. Philosophical Rights: Issues of Ontology A moral right, the precursor to many legal rights, in some ways is a claim that bears moral weight. One relevant distinction is between positive and negative rights: a positive right is a claim on another to do something for the right holder; a negative right is a claim on others to leave the rights holder alone. Some rights are per se (that is, rights that have a de novo ontological origin) and some are constructed (rights that are secondary to some other theoretical apparatus). We must appeal to the state of nature to understand the origin of rights. If rights exist in the state of nature, they are de novo; if not, they are constructed. The state of nature is the theoretical realm where there are no social conventions or no normative rules. The theoretical state of nature is stateless. Hobbes writes about the state of nature. He constructs the person within as incorporating two normative qualities: the law of nature, “whereby individuals are forbidden to do anything destructive of their lives or to omit the means of self-preservation,” and the right of nature, where the person has the “right to all things” – those things required for self-preservation.[21] Similarly, more contemporary philosophers have also inferred that the right to freedom is a natural right.[22] I argue that nature allows every person the freedom to all things, or a natural right against limitation on freedom. Every person has the capacity to do whatever they want, in accordance with their reason; liberty, rather than being a normative claim, is a component of the essence of beings. Yet both nature and other people pose some limitations. Early modern contractarians’ status theories maintain that human attributes engender rights. [23] A specific formulation of human status ethics can be found in Kantian deontology. From the autonomous and rational will, Kant evolves his Categorical Imperative: “Act only according to that maxim whereby you can at the same time will that it should become a universal law.”[24] Without (or before) law, philosophers suggested behaviors should reflect moral rights. Like Rawls, I maintain that the state of nature includes both a scarcity of resources and individuals with whom we may develop conflicts of interest.[25] Individually, we are vulnerable to others, and because of that natural vulnerability, we have an inclination toward self-interest.[26] Therefore, we eventually find the state of nature unsatisfactory and move to create a civil society. Then the subsequent pathway to creating “rights” is well known. People agree on them and act accordingly. Then, they are enshrined in the law.[27] I attribute the impetus to move from the state of nature toward government to interpersonal interaction that creates a form of the social contract. Rawls qualitatively describes this when he notes the “identity of interests” that powers interpersonal cooperation.[28] To me, the development of positive social relations has three components. The first is the human capacity for empathy. Empathy is commonly accepted by psychologists as universal.[29] Kittay deepens the concept of human empathy, arguing that there is a “register of inevitable human dependency” – a natural sense of care found in the human experience of suffering and decay and death to which we all eventually succumb, necessitating a recognition of interdependence and cooperation.[30] The second is the importance of identity in generating social cooperation.[31] There is a sense of familial resemblance that resonates when we see others in our lives, forming the base of the identification that allows us to create bonds of mutual assent. A microsociety develops when people are exposed to each other and acts as a miniaturized state, governed by what is at first an implicit social contract. An internal order is generated and can be codified. The third component of social relations is the extension of the otherness-yet-sameness beyond human adults. Mirroring connects the fully abled adult man and the woman, as well as the child, the physically and mentally disabled, and could extend to animals as well.[32] Therefore, to me, it seems that rights do not exist per se in the state of nature, but because of our human capacities, relationships yield a social contract. This contract governs interpersonal relations with normative power: rights are constructed. Once constructed based on people in micro-society and then larger groups, rights were codified. Negative rights like those found in the U.S. Constitution allow people in liberal society to codify nearly universal ground rules in certain arenas while respecting minority views and differing priorities. However, the social contract is not absolute: it may be broken by any party with the power to enforce their will upon the other and it will evolve to reflect changing standards. So, there is a subtle distinction to be made: in unequal contractual social relations, there are not constructed rights but rather privileges. In a social relationship that aims at equal status among members, these privileges are normative claims – rights that are not inherent or a priori but mandated to be equally applied by society’s governing body. In this way, I differ from Rawls. To me, justice is a fundamental moral principle only for societies that aim at cooperation, where advancing the interests of all is valued.[33] CONCLUSION From Liberty to Law Social contractualism purports to provide moral rules for its followers even when other ethical systems flounder in the state of nature. Relationships consider the needs and wants of others. Rights exist, with the stipulation that they are constructed under social contracts that aim for equality of application. I also suggest that contractualist approaches may even expand the parties who may be allowed rights, something that has significant bearing on the law and practical bioethics. The strict/loose constructionism debate that has played out in the Supreme Court’s decisions focuses on whether rights are enumerated or implied. Theoretical or implicit contracts may be change quickly, based on the power dynamics in a social relationship. Theoretical bounds of the social contract (possibly including animals, nonhumans, etc.) may be constricted by an official contract, so these concerns would need to be adjudicated in the context of the Constitution. In certain cases, strict interpretation reflects the rights determined by the social compact and limits new positive rights; in others, a broad interpretation keeps government out of certain decisions, expanding negative rights to reflect changing social norms. The negative rights afforded in the Constitution provide a framework meant to allow expansive individual choices and freedom. The underlying social compact has more to do with the norms behind societal structure than forcing a set of agreed upon social norms at the level of individual behavior. The Constitution’s text can be unclear, arbitrary, or open to multiple meanings. The literary theorist may be willing to accept contradiction or multiple meanings, but the legal scholar may not. The issue of whether the social compact is set or evolving affects constitutional interpretation. The law is itself may be stuck in a state of indeterminacy: the law, in the eyes of the framers, was centered on a discourse steeped in natural, human rights, attributed to a creator. Today, there is an impulse toward inherent human dignity to support rights. The strict/loose constructionism debate concerns interpretation.[34] In conclusion, rights have no ontological status per se, but are derived from a complex framework that springs from our relationships and dictates the appropriateness of our actions. While the Constitution establishes the negative rights reflecting a social compact, interpretations recognize the limitations on rights that are also rooted in societal relationships. The author would like to thank Stephen G. Post, PhD, and Caitlyn Tabor, JD, for providing feedback on early drafts of this paper. [1] Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights (New York: Random House, 2001), 14. [2] James Griffin, On Human Rights (Oxford: Oxford University, 2008). [3] Maurice Cranston, What Are Human Rights? (London: Bodley Head, 1973). [4] Barry Balleck, “When The Ends Justify the Means: Thomas Jefferson and the Louisiana Purchase,” Presidential Studies Quarterly 22, no. 4 (1992): 679-680. [5] Robert Louden, “Rights Infatuation and the Impoverishment of Moral Theory,” Journal of Value Inquiry 17 (1983): 95; Rex Martin, A System of Rights (Oxford: Oxford University, 1993), 1; Wesley Hohfeld, Fundamental Legal Conceptions (New Haven: Yale University, 1919), 36. [6] James Nickel, "Human Rights", The Stanford Encyclopedia of Philosophy (Summer 2019 Edition), ed. Edward N. Zalta, accessed 27 April 2021, https://plato.stanford.edu/archives/sum2019/entries/rights-human/. [7] Andrew Fagan, “Human Rights,” Internet Encyclopedia of Philosophy, ed. James Fieser and Bradley Dowden, accessed 27 April 2021, https://iep.utm.edu/hum-rts/. [8] Griswold v. Connecticut 381 U.S. 479 (1965), para. 18, https://www.law.cornell.edu/supremecourt/text/381/479. [9] Griswold v. Connecticut 381 U.S. 479 (1965), para. 69 https://www.law.cornell.edu/supremecourt/text/381/479. [10] Griswold v. Connecticut 381 U.S. 479 (1965), para. 69 https://www.law.cornell.edu/supremecourt/text/381/479. [11] Griswold v. Connecticut 381 U.S. 479 (1965), para. 92 https://www.law.cornell.edu/supremecourt/text/381/479. [12] Roe v. Wade 410 U.S. 113 (1973), 172, https://www.law.cornell.edu/supremecourt/text/410/113%26amp. [13] Roe v. Wade 410 U.S. 113 (1973), 172-173, https://www.law.cornell.edu/supremecourt/text/410/113%26amp. [14] Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), https://supreme.justia.com/cases/federal/us/505/833/#:~:text=Casey%2C%20505%20U.S.%20833%20(1992)&text=A%20person%20retains%20the%20right,the%20mother%20is%20at%20risk. [15] Cruzan v. Director, Missouri Department of Health 497 U.S. 261 (1990), https://www.law.cornell.edu/supct/html/88-1503.ZO.html. [16] Cruzan v. Director, Missouri Department of Health 497 U.S. 261 (1990), https://www.law.cornell.edu/supct/html/88-1503.ZO.html. [17] Cruzan v. Director, Missouri Department of Health 497 U.S. 261 (1990), https://www.law.cornell.edu/supct/html/88-1503.ZO.html. [18] It is worth noting that some of the Supreme Court’s conservatives – like Scalia, Thomas, Roberts – have expressed explicit disdain for the right to privacy introduced in Griswold. Jamal Greene, “The So-Called Right to Privacy,” UC Davis Law Review 43 (2010): 715-747, https://scholarship.law.columbia.edu/faculty_scholarship/622. [19] National Archives. “Declaration of Independence: A Transcription.” July 4, 1776; reviewed July 24, 2020, https://www.archives.gov/founding-docs/declaration-transcript. [20] However, the reference to a creator has come to mean a natural right and a priori best describes it rather than a religious underpinning. To borrow from Husserl, this approach will be bracketed out. [21] DJC Carmichael, “Hobbes on Natural Right in Society: The ‘Leviathan’ Account,” Canadian Journal of Political Science 23, no. 1 (1990): 4-5. [22] HLA Hart, “Are There Any Natural Rights?” The Philosophical Review 64, no. 2 (1955): 175. [23] Warren Quinn, Morality and Action (Cambridge: Cambridge UP, 1993), 170. [24] Immanuel Kant, Groundwork of the Metaphysic of Morals, trans. James Ellington, 3rd ed. (Indianapolis: Hackett, 1993), 30. [25] John Rawls, A Theory of Justice: Revised Edition (Cambridge: Belknap, 1999), 109. [26] JS Mill, Remarks on Bentham’s Philosophy, in Collected Works of John Stuart Mill, Vol. X, ed. JM Robson (Toronto: U of Toronto Press, 1985), 13-14. [27] Rex Martin, A System of Rights (Oxford: Oxford University, 1993), 1; Kenneth Baynes, “Kant on Property Rights and the Social Contract,” The Monist 72, no. 3 (1989): 433-453. [28] John Rawls, A Theory of Justice: Revised Edition (Cambridge: Belknap, 1999), 109. [29] Frederik von Harbou, “A Remedy Called Empathy: The Neglected Element of Human Rights Theory,” Archives for Philosophy of Law and Social Philosophy 99, no. 2 (2013): 141. [30] Eva Feder Kittay. Learning from My Daughter: The Value and Care of Disabled Minds (Oxford: Oxford UP, 2019), 145-146. [31] Jane Gallop, “Lacan’s ‘Mirror Stage’: Where to Begin,” SubStance 11, no. 4 (1983): 121; Lacan, Jacques. The Seminar of Jacques Lacan: Book X: Anxiety: 1962-1963, trans. Cormac Gallagher, 26-27, https://www.valas.fr/IMG/pdf/THE-SEMINAR-OF-JACQUES-LACAN-X_l_angoisse.pdf. (In Lacanian psychoanalytic theory, human development necessitates both recognition of the Self and the separation of the Self from the Other.) [32] Lacan, Jacques. The Seminar of Jacques Lacan: Book X: Anxiety: 1962-1963, trans. Cormac Gallagher, 27-28, https://www.valas.fr/IMG/pdf/THE-SEMINAR-OF-JACQUES-LACAN-X_l_angoisse.pdf. [33] There is an interesting discussion to be had about whether social contract theory allows for this gradation in quality of contracts, or whether the two are fundamentally different phenomena. I cannot answer this question here; John Rawls, A Theory of Justice: Revised Edition (Cambridge: Belknap, 1999), 102-103. [34] Ruthellen Josselson, “The Hermeneutics of Faith and the Hermeneutics of Suspicion,” Narrative Inquiry 14, no. 1 (2004): 2-4.

In the 2019 documentary Chasing Happiness, recording artist/musician Joe Jonas tells audiences that the band was “living the dream”. Similarly, in the 2012 documentary Artifact, lead singer Jared Leto remarks that at the height of Thirty Seconds to Mars’s success, they “were living the dream”. However, for both the Jonas Brothers and Thirty Seconds to Mars, their experiences of the music industry (much like other commercially successful recording artists) soon transformed into nightmares. Similar to other commercially successful recording artists, the Jonas Brothers and Thirty Seconds to Mars, came up against the constraints of the industry which inevitably led to a forfeiting of authenticity, a loss of creative control, increased exploitation, and unequal remuneration. This work will consider how working in the music industry is not always a dream come true and can instead be viewed as a proverbial nightmare. Living the DreamIn his book Dreams, Carl Gustav Jung discusses how that which is experienced in sleep, speaks of a person’s wishes: that which might be desired in reality but may not actually happen. In his earlier work, The Interpretation of Dreams, Freud argued that the dream is representative of fulfilling a repressed wish. However, the creative industries suggest that a dream need not be a repressed wish; it can become a reality. Jon Bon Jovi believes that his success in the music industry has surpassed his wildest dreams (Atkinson). Jennifer Lopez considers the fact that she held big dreams, had a focussed passion, and strong aspirations the reason why she pursued a creative career that took her out of the Bronx (Thomas). In a Twitter post from 23 April 2018, Bruno Mars declared that he “use [sic] to dream of this shit,” in referring to a picture of him performing for a sold out arena, while in 2019 Shawn Mendes informed his 24.4 million Twitter followers that his “life is a dream”. These are but a few examples of successful music industry artists who are seeing their ‘wishes’ come true and living the American Dream.Endemic to the American culture (and a characteristic of the identity of the country) is the “American Dream”. It centres on “a land in which life should be better and richer and fuller for every man, with opportunity for each according to his ability and achievement” (Adams, 404). Although initially used to describe having a nice house, money, stability and a reasonable standard of living, the American Dream has since evolved to what the scholar Florida believes is the new ‘aspiration of people’: doing work that is enjoyable and relies on human creativity. At its core, the original American Dream required striving to meet individual goals, and was promoted as possible for anyone regardless of their cultural, socio-economic and political background (Samuel), because it encourages the celebrating of the self and personal uniqueness (Gamson). Florida’s conceptualisation of the New American dream, however, tends to emphasise obtaining success, fame and fortune in what Neff, Wissinger, and Zukin (310) consider “hot”, “creative” industries where “the jobs are cool”.Whether old or new, the American Dream has perpetuated and reinforced celebrity culture, with many of the young generation reporting that fame and fortune were their priorities, as they sought to emulate the success of their famous role models (Florida). The rag to riches stories of iconic recording artists can inevitably glorify and make appealing the struggle that permits achieving one’s dream, with celebrities offering young, aspiring creative people a means of identification for helping them to aspire to meet their dreams (Florida; Samuel). For example, a young Demi Lovato spoke of how she idolised and looked up to singer Beyonce Knowles, describing Knowles as a role model because of the way she carries herself (Tishgart). Similarly, American Idol winner Kelly Clarkson cited Aretha Franklin as her musical inspiration and the reason that she sings from a place deep within (Nilles). It is unsurprising then, that popular media has tended to portray artists working in the creative industries and being paid to follow their passions as “a much-vaunted career dream” (Duffy and Wissinger, 4656). Movies such as A Star Is Born (2018), The Coal Miner’s Daughter (1980), Dreamgirls (2006), Begin Again (2013) and La La Land (2016) exalt the perception that creativity, talent, sacrifice and determination will mean dreams come true (Nicolaou). In concert with the American dream is the drive among creative people pursuing creative success to achieve their dreams because of the perceived autonomy they will gain, the chance of self-actualisation and social rewards, and the opportunity to fulfil intrinsic motivations (Amabile; Auger and Woodman; Cohen). For these workers, the love of creation and the happiness that accompanies new discoveries (Csikszentmihalyi) can offset the tight budgets and timelines, precarious labour (Blair, Grey, and Randle; Hesmondhalgh and Baker), uncertain demand (Caves; Shultz), sacrifice of personal relationships (Eikhof and Haunschild), the demand for high quality products (Gil & Spiller), and the tense relationships with administrators (Bilton) which are known to plague these industries. In some cases, young, up and coming creative people overlook these pitfalls, instead romanticising creative careers as ideal and worthwhile. They willingly take on roles and cede control to big corporations to “realize their passions [and] uncover their personal talent” (Bill, 50). Of course, as Ursell argues in discussing television employees, such idealisation can mean creatives, especially those who are young and unfamiliar with the constraints of the industry, end up immersed in and victims of the “vampiric” industry that exploits workers (816). They are socialised towards believing, in this case, that the record label is a necessary component to obtain fame and fortune and whether willing or unwilling, creative workers become complicit in their own exploitation (Cohen). Loss of Control and No CompensationThe music industry itself has been considered by some to typify the cultural industries (Chambers). Popular music has potency in that it is perceived as speaking a universal language (Burnett), engaging the emotions and thoughts of listeners, and assisting in their identity construction (Burnett; Gardikiotis and Baltzis). Given the place of music within society, it is not surprising that in 2018, the global music industry was worth US$19.1billion (IFPI). The music industry is necessarily underpinned by a commercial agenda. At present, six major recording companies exist and between them, they own between 70-80 per cent of the recordings produced globally (Konsor). They also act as gatekeepers, setting trends by defining what and who is worth following and listening to (Csikszentmihalyi; Jones, Anand, and Alvarez). In essence, to be successful in the music industry is to be affiliated with a record label. This is because the highly competitive nature and cluttered environment makes it harder to gain traction in the market without worthwhile representation (Moiso and Rockman). In the 2012 documentary about Thirty Seconds to Mars, Artifact, front man Jared Leto even questions whether it is possible to have “success without a label”. The recording company, he determines, “deal with the crappy jobs”. In a financially uncertain industry that makes money from subjective or experience-based goods (Caves), having a label affords an artist access to “economic capital for production and promotion” that enables “wider recognition” of creative work (Scott, 239). With the support of a record label, creative entrepreneurs are given the chance to be promoted and distributed in the creative marketplace (Scott; Shultz). To have a record label, then, is to be perceived as legitimate and credible (Shultz).However, the commercial music industry is just that, commercial. Accordingly, the desire to make money can see the intrinsic desires of musicians forfeited in favour of standardised products and a lack of remuneration for artists (Negus). To see this standardisation in practice, one need not look further than those contestants appearing on shows such as American Idol or The Voice. Nowhere is the standardisation of the music industry more evident than in Holmes’s 2004 article on Pop Idol. Pop Idol first aired in Britain from 2001-2003 and paved the way for a slew of similar shows around the world such as Australia’s Popstars Live in 2004 and the global Idol phenomena. According to Holmes, audiences are divested of the illusion of talent and stardom when they witness the obvious manufacturing of musical talent. The contestants receive training, are dressed according to a prescribed image, and the show emphasises those melodramatic moments that are commercially enticing to audiences. Her sentiments suggest these shows emphasise the artifice of the music industry by undermining artistic authenticity in favour of generating celebrities. The standardisation is typified in the post Idol careers of Kelly Clarkson and Adam Lambert. Kelly Clarkson parted with the recording company RCA when her manager and producer Clive Davis told her that her album My December (2007) was “not commercial enough” and that Clarkson, who had written most of the songs, was a “shitty writer… who should just shut up and sing” (Nied). Adam Lambert left RCA because they wanted him to make a full length 80s album comprised of covers. Lambert commented that, “while there are lots of great songs from that decade, my heart is simply not in doing a covers album” (Lee). In these instances, winning the show and signing contracts led to both Clarkson and Lambert forfeiting a degree of creative control over their work in favour of formulaic songs that ultimately left both artists unsatisfied. The standardisation and lack of remuneration is notable when signing recording artists to 360° contracts. These 360° contracts have become commonplace in the music industry (Gulchardaz, Bach, and Penin) and see both the material and immaterial labour (such as personal identities) of recording artists become controlled by record labels (Stahl and Meier). These labels determine the aesthetics of the musicians as well as where and how frequently they tour. Furthermore, the labels become owners of any intellectual property generated by an artist during the tenure of the contract (Sanders; Stahl and Meier). For example, in their documentary Show Em What You’re Made Of (2015), the Backstreet Boys lament their affiliation with manager Lou Pearlman. Not only did Pearlman manufacture the group in a way that prevented creative exploration by the members (Sanders), but he withheld profits to the point that the Backstreet Boys had to sue Pearlman in order to gain access to money they deserved. In 2002 the members of the Backstreet Boys had stated that “it wasn’t our destinies that we had to worry about in the past, it was our souls” (Sanders, 541). They were not writing their own music, which came across in the documentary Show Em What You’re Made Of when singer Howie Dorough demanded that if they were to collaborate as a group again in 2013, that everything was to be produced, managed and created by the five group members. Such a demand speaks to creative individuals being tied to their work both personally and emotionally (Bain). The angst encountered by music artists also signals the identity dissonance and conflict felt when they are betraying their true or authentic creative selves (Ashforth and Mael; Ashforth and Humphrey). Performing and abiding by the rules and regulations of others led to frustration because the members felt they were “being passed off as something we aren’t” (Sanders 539). The Backstreet Boys were not the only musicians who were intensely controlled and not adequately compensated by Pearlman. In the documentary The Boy Band Con: The Lou Pearlman Story 2019, Lance Bass of N*Sync and recording artist Aaron Carter admitted that the experience of working with Pearlman became a nightmare when they too, were receiving cheques that were so small that Bass describes them as making his heart sink. For these groups, the dream of making music was undone by contracts that stifled creativity and paid a pittance.In a similar vein, Thirty Seconds to Mars sought to cut ties with their record label when they felt that they were not being adequately compensated for their work. In retaliation EMI issued Mars with a US$30 million lawsuit for breach of contract. The tense renegotiations that followed took a toll on the creative drive of the group. At one point in the documentary Artifact (2012), Leto claims “I can’t sing it right now… You couldn’t pay me all the money in the world to sing this song the way it needs to be sung right now. I’m not ready”. The contract subordination (Phillips; Stahl and Meier) that had led to the need to renegotiate financial terms came at not only a financial cost to the band, but also a physical and emotional one. The negativity impacted the development of the songs for the new album. To make music requires evoking necessary and appropriate emotions in the recording studio (Wood, Duffy, and Smith), so Leto being unable to deliver the song proved problematic. Essentially, the stress of the lawsuit and negotiations damaged the motivation of the band (Amabile; Elsbach and Hargadon; Hallowell) and interfered with their creative approach, which could have produced standardised and poor quality work (Farr and Ford). The dream of making music was almost lost because of the EMI lawsuit. Young creatives often lack bargaining power when entering into contracts with corporations, which can prove disadvantaging when it comes to retaining control over their lives (Phillips; Stahl and Meier). Singer Demi Lovato’s big break came in the 2008 Disney film Camp Rock. As her then manager Phil McIntyre states in the documentary Simply Complicated (2017), Camp Rock was “perceived as the vehicle to becoming a superstar … overnight she became a household name”. However, as “authentic and believable” as Lovato’s edginess appeared, the speed with which her success came took a toll on Lovato. The pressure she experienced having to tour, write songs that were approved by others, star in Disney channel shows and movies, and look a certain way, became too much and to compensate, Lovato engaged in regular drug use to feel free. Accordingly, she developed a hybrid identity to ensure that the squeaky clean image required by the moral clauses of her contract, was not tarnished by her out-of-control lifestyle. The nightmare came from becoming famous at a young age and not being able to handle the expectations that accompanied it, coupled with a stringent contract that exploited her creative talent. Lovato’s is not a unique story. Research has found that musicians are more inclined than those in other workforces to use psychotherapy and psychotropic drugs (Vaag, Bjørngaard, and Bjerkeset) and that fame and money can provide musicians more opportunities to take risks, including drug-use that leads to mortality (Bellis, Hughes, Sharples, Hennell, and Hardcastle). For Lovato, living the dream at a young age ultimately became overwhelming with drugs her only means of escape. AuthenticityThe challenges then for music artists is that the dream of pursuing music can come at the cost of a musician’s authentic self. According to Hughes, “to be authentic is to be in some sense real and true to something ... It is not simply an imitation, but it is sincere, real, true, and original expression of its creator, and is believable or credible representations or example of what it appears to be” (190). For Nick Jonas of the Jonas Brothers, being in the spotlight and abiding by the demands of Disney was “non-stop” and prevented his personal and musical growth (Chasing Happiness). As Kevin Jonas put it, Nick “wanted the Jonas Brothers to be no more”. The extensive promotion that accompanies success and fame, which is designed to drive celebrity culture and financial motivations (Currid-Halkett and Scott; King), can lead to cynical performances and dissatisfaction (Hughes) if the identity work of the creative creates a disjoin between their perceived self and aspirational self (Beech, Gilmore, Cochrane, and Greig). Promoting the band (and having to film a television show and movies he was not invested in all because of contractual obligations) impacted on Nick’s authentic self to the point that the Jonas Brothers made him feel deeply upset and anxious. For Nick, being stifled creatively led to feeling inauthentic, thereby resulting in the demise of the band as his only recourse.In her documentary Gaga: Five Foot Two (2017), Lady Gaga discusses the extent she had to go to maintain a sense of authenticity in response to producer control. As she puts it, “when producers wanted me to be sexy, I always put some absurd spin on it, that made me feel like I was still in control”. Her words reaffirm the perception amongst scholars (Currid-Halkett and Scott; King; Meyers) that in playing the information game, industry leaders will construct an artist’s persona in ways that are most beneficial for, in this case, the record label. That will mean, for example, establishing a coherent life story for musicians that endears them to audiences and engaging recording artists in co-branding opportunities to raise their profile and to legitimise them in the marketplace. Such behaviour can potentially influence the preferences and purchases of audiences and fans, can create favourability, originality and clarity around artists (Loroz and Braig), and can establish competitive advantage that leads to producers being able to charge higher prices for the artists’ work (Hernando and Campo). But what impact does that have on the musician? Lady Gaga could not continue living someone else’s dream. She found herself needing to make changes in order to avoid quitting music altogether. As Gaga told a class of university students at the Emotion Revolution Summit hosted by Yale University:I don’t like being used to make people money. It feels sad when I am overworked and that I have just become a money-making machine and that my passion and creativity take a backseat. That makes me unhappy.According to Eikof and Haunschild, economic necessity can threaten creative motivation. Gaga’s reaction to the commercial demands of the music industry signal an identity conflict because her desire to create, clashed with the need to be commercial, with the outcome imposing “inconsistent demands upon” her (Ashforth and Mael, 29). Therefore, to reduce what could be considered feelings of dissonance and inconsistency (Ashforth and Mael; Ashforth and Humphrey) Gaga started saying “no” to prevent further loss of her identity and sense of authentic self. Taking back control could be seen as a means of reorienting her dream and overcoming what had become dissatisfaction with the commercial processes of the music industry. ConclusionsFor many creatives working in the creative industries – and specifically the music industry – is constructed as a dream come true; the working conditions and expectations experienced by recording artists are far from liberating and instead can become nightmares to which they want to escape. The case studies above, although likely ‘constructed’ retellings of the unfortunate circumstances encountered working in the music industry, nevertheless offer an inside account that contradicts the prevailing ideology that pursuing creative passions leads to a dream career (Florida; Samuel). If anything, the case studies explored above involving 30 Seconds to Mars, the Jonas Brothers, Lady Gaga, Kelly Clarkson, Adam Lambert and the Backstreet Boys, acknowledge what many scholars writing in the creative industries have already identified; that exploitation, subordination, identity conflict and loss of control are the unspoken or lesser known consequences of pursuing the creative dream. That said, the conundrum for creatives is that for success in the industry big “creative” businesses, such as recording labels, are still considered necessary in order to break into the market and to have prolonged success. This is simply because their resources far exceed those at the disposal of independent and up-and-coming creative entrepreneurs. Therefore, it can be argued that this friction of need between creative industry business versus artists will be on-going leading to more of these ‘dream to nightmare’ stories. The struggle will continue manifesting in the relationship between business and artist for long as the recording artists fight for greater equality, independence of creativity and respect for their work, image and identities. 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