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Nahnybida, Volodymyr, Yurii Bilousov, Yaroslav Bliakharskyi, Ievgen Boiarskyi, and Anatolii Ishchuk. "Trade agreements, digital development and international commercial arbitration." Cuestiones Políticas 40, no. 74 (2022): 160–77. http://dx.doi.org/10.46398/cuestpol.4074.08.
Texte intégralRésumé :
The purpose of the article was to study the problems that arise during the settlement of disputes in the order of international commercial arbitration. The article used general scientific (dialectic, analysis and synthesis) and special legal (comparative legal, formal-logical, systemic, hermeneutic, axiological) methods. In the results of the research, it was established that the characteristic features of electronic development contracts in international trade are: electronic forms of conclusion of pre-contractual and contractual communication, making amendments and additions to the contract. Taking into account the features that accompany the chosen form of contracting prevails the need to refer to the provisions of the applicable legislation on tax and customs legislation and protection of personal data, etc. The conclusions state that the main problems in the resolution of disputes arising from e-commerce contracts, in international commercial arbitration, are the issues of requirements and validity of the arbitration clauses contained in such contracts, the importance of the agreements reached in the pre-contractual stage in the subsequent resolution of disputes between the parties and the problems of proof arising from the peculiarities of entering into relevant contracts
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Linh, NGUYỄN THỊ MỸ. "Marital Agreements in Vietnam from 1858 until Now." DÍKÉ 5, no. 1 (2021): 150–61. http://dx.doi.org/10.15170/dike.2021.05.01.10.
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The institution of prenuptial agreement is a founder of contractual matrimonial property regime. The possibility of concluding a marriage contract contributes to ensuring the equal rights of the spouses, as they are free to agree on their pre-marital property. Recognizing the necessity of the contractual freedom in family law, the 2014 Act on Marriage and Family of Vietnam allows couples to choose between the statutory property regime and the agreed property regime. This article presents the history of the institution of marriage agreement in Vietnam, also with regard to the development of law in European countries. 
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Teremetsʹkyy, V., and N. Huts. "PROCEDURE NOVATIONS FOR CONCLUDING INDEPENDENT CONTRACTOR AGREEMENTS." Scientific Notes Series Law 1, no. 12 (2022): 176–81. http://dx.doi.org/10.36550/2522-9230-2022-12-176-181.
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The article is focused on defining procedure novations for concluding independent contractor agreements. The existence of two tendencies in the legal construction of the procedure for concluding an independent contractor agreement has been emphasized: unchanged architectonics of the procedure for concluding an acceptance and introducing novation elements into this system, which depend on the method of concluding and the purpose of the corresponding agreement. The general and special procedures for concluding independent contractor agreements have been characterized. General procedure – is when proposals set out in the offer coincide with the acceptance. Special procedure for concluding an independent contractor agreement is implemented in regard to public, defense procurement. The content of the stages of concluding an independent contractor agreement has been revealed, in particular the offer and acceptance. Specific features of concluding an independent contractor agreement with Diia-City residents have been researched. It has been emphasized that the conclusion of an independent contractor agreement in the digital environment forms a special legal regime of civil legal relations, which arise, are changed, are terminated in this environment. At the same time, the consumer receives a positive effect from the electronic agreement in the real, material world, and the product or service has the appropriate objective form. It has been proved that the institution of assurance can be applied in corporate, labor legal relations, relations in the field of intellectual property law, innovation law, foreign economic activity. It has been stated that this institution includes the following elements: 1) pre-contractual contacts of the parties (negotiations); 2) obtaining assurances and guarantees; 3) consideration of assurances and guarantees; 4) formation and provision of the offer; 5) consideration of the offer; 6) acceptance of the offer. It has been established that the procedure of concluding an independent contractor agreement for public, defense procurement is characterized by: the presence of an imperative element in the procedure of concluding an agreement; mandatory compliance with the procedure for concluding an agreement; lack of pre-contractual contacts of the parties: expanded public offer; planned procurement, i.e. the conclusion of a future agreement; narrowing the principle of contractual freedom. The lack of practice in applying the institution of assurance has been emphasized.
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Poludniak-Gierz, Katarzyna. "Sanctions for Lack of Fulfilment of Information Duties: Searching for an Adequate Regulatory Model for Personalized Agreements." European Review of Private Law 28, Issue 4 (2020): 817–39. http://dx.doi.org/10.54648/erpl2020050.
Texte intégralRésumé :
The effectiveness of the protection-by-information model in consumer law depends primarily on the method of structuring pre-contractual duties and sanctions correlated with the lack of fulfilment of said duties. Modern legal doctrine considers applying technology to law-making i.e. to fix flaws in the existing protection-by-information model. However, during this discussion, the problem of sanctions for lack of fulfilment of information duties has been disregarded. This article fills this gap by exploring how the use of technology might influence the adequacy of contemporary sanctioning models. There are two main approaches towards how lack of fulfilment of information obligations should be sanctioned. First, the fact that consumer acts based on his false impression of reality can trigger liability. As a result, the individual protection mechanism (i. a. regulation of mistake and deceit) is seen as a proper sanction for non-compliance with information duties. Second, failing to provide pre-contractual information might itself be sanctionable. In this scenario, standardized protection mechanisms are preferred (Unfair Commercial Practices Directive, Consumer Rights Directive). However, the balance achieved by linking specific sanctioning mechanisms to particular pre-contractual obligations is disturbed by the use of personalization tools during contracting. Therefore, the postulate of answering the personalization of contracts with personalization of pre-contractual information duties is discussed. The possibility of extending the scope of personalization to sanctions of these norms is considered. Finally, the introduction of smart execution mechanisms is explored, and the influence of technical changes on the essential characteristics of protection-by-information model is observed.
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Sanders, Anne. "PRIVATE AUTONOMY AND MARITAL PROPERTY AGREEMENTS." International and Comparative Law Quarterly 59, no. 3 (2010): 571–603. http://dx.doi.org/10.1017/s0020589310000230.
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AbstractAfter the Court of Appeal decision in Radmacher v Granatino, the question whether English law should introduce enforceable pre-nuptial or marital property agreements came into focus again. Taking the decision as a starting point, the article argues in favour of introducing such agreements. Adopting a comparative approach, the article explains how such agreements are used in Germany and demonstrates that the idea of private autonomy, which has been regarded as the basis of pre-nuptial property agreements in Germany since the 19th century, can explain why couples should be allowed to make their own decisions with respect to the financial consequences of the breakdown of their relationship. Analysis of the different notions of contract in German and English law as well as comparing marriage with partnerships and other long-term contractual relationships illustrates not only the historical reasons why such agreements have not been allowed so far, but also helps to understand what safeguards the legislator and the judiciary could apply to ensure that parties do not abuse their freedom.
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Lalafaryan, Narine. "Orchestrating finance with Material Adverse Changes?" Legal Studies 42, no. 1 (2022): 1–22. http://dx.doi.org/10.1017/lst.2022.6.
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AbstractFrom a legal and economic perspective, the global financial crisis, terrorist attacks, wars, natural catastrophes, and COVID-19 all have one thing in common: they are potentially ‘material adverse change’ events. Such events are unpredictable and have severe consequences for the global economy. To help manage the fallout from such negative events, businesses in economically valuable and complex deals, such as debt financing or mergers and acquisition (M&A) agreements, include special contractual risk allocation provisions, called Material Adverse Change/Effect (MAC) clauses. The COVID-19 crisis has had a drastic effect on M&A and debt financing deals, often leading to renegotiation and sometimes to litigation of these agreements based on MAC clauses. Termination of such transactions via MAC clauses poses serious risks, including those of causing a domino-effect in the market.The effects of MAC clauses in debt finance (as opposed to M&A deals), however, have been largely overlooked both in law and in finance. This paper is the first to investigate the pre-contractual (ex-ante) and contractual (ex-post) effects of MAC clauses in commercial debt financing agreements. It proposes a novel Multifunctional Effect Approach of MAC clauses in debt finance. This paper aims to explain why the commercial parties attach high importance to these vague and uncertain MAC clauses in debt financing agreements but hardly ever rely on them. First, the paper argues that apart from acceleration of the credit facilities, MAC clauses have various beneficial effects, such as screening. Secondly, MAC clauses should be regarded not only as mechanisms to solve information asymmetry but also have the following effects: improving governance, decoupling debt, providing restructuring impulses, countering uncertainty, signalling with acceleration. Potentially, MAC clauses also have the effect of a penalty default rule. The paper finds that despite these functions, the potential of MAC clauses in debt finance is not fully utilised, due to the unique characteristics of debt finance. This significantly undermines the efficiency of MAC clauses in debt finance, as lenders overprotect themselves by additionally relying on other contractual protection mechanisms and risk offsetting strategies for more efficiency.
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Mendis, Daylath, Kasun N. Hewage, and Joanna Wrzesniewski. "CONTRACTUAL OBLIGATIONS ANALYSIS FOR CONSTRUCTION WASTE MANAGEMENT IN CANADA." Journal of Civil Engineering and Management 21, no. 7 (2015): 866–80. http://dx.doi.org/10.3846/13923730.2014.893907.
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Construction industry creates a massive amount of waste, which typically ends up in landfills. Canadian construction industry represents 30% of the total municipal solid waste deposited in landfills. Construction and demolition (C&D) waste has created negative socioeconomic and environmental impacts including contaminating ground water, emitting greenhouse gases, and adding more waste to scarce landfills. Literature is cited rework/waste generation due to ambiguity/errors in construction contract documents. Exculpatory clauses in contract documents are included in contractual agreements to prevent contractor claims, which often cause rework. After an extensive contract documents review, these clauses were categorized in to eight major areas. This paper (1) analyses expert opinions on pre-identified contractual clauses; and (2) introduces recommendations to minimize rework and waste in construction projects. It was found that the clauses related to quality, workmanship, and field quality control/inspection have the most potential to generate construction waste.
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Sood, Muhammad. "Mechanism of Business Contract Drafting in Supporting Economic Activities." Unram Law Review 4, no. 2 (2020): 193–204. http://dx.doi.org/10.29303/ulrev.v4i2.124.
Texte intégralRésumé :
The development of business contracts in supporting economic activities, especially in the trade sector, is inseparable from developments in the field of law. Thus, economic actors should understand the contract design method. This article aims to analyze the regulations of business contracts both nationally and internationally, and analize the mechanism of business contract draftingin supporting economic activity. This article is sourced from the results of normative legal research; therefore the method of approach used is the legal approach and conceptual approach. The results of the study indicates that the legal sources which form the basis for regulating business contracts include national law as regulated in Article 1457-1540 of the Civil Code; contract documents; international agreements in the field of contract; court decisions regarding business contracts; and doctrines in the field of contract law. The business contract mechanism includes 3 stages, namely: 1) Pre contractual includes: negotiations on the delivery, delivery and payment of goods; risk of loss if there is a default and procedure for resolving contractual problems; make a Memorandum of Understanding as an initial guideline for the understanding of the parties; Feasibility study concerning the prospects of business contracts made by the parties; 2) Contractual or contractual arrangements include, writing the initial manuscript, revising the manuscript, exchanging draft contracts, revising and writing the final manuscript, and signing of the contract. 3) Contract contractual or contract completion where the parties are responsible for providing guarantees or guarantees that the agreed contract is executed and completed properly. Understanding the mechanism of contract design will facilitate business activities carried out by the parties.
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Grace, John G., and Max Williamson. "THE PAPUA NEW GUINEA STANDARD PETROLEUM AGREEMENT: ITS STRENGTHS AND WEAKNESSES." APPEA Journal 31, no. 1 (1991): 502. http://dx.doi.org/10.1071/aj90046.
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Until the discovery of the Iagifu/Hedinia/Agogo (now called Kutubu) Fields, Papua New Guinea (PNG) petroleum laws followed, in both legislation and administration, the Australian model brought to PNG by the former pre-independence administrators. In particular, exploration and production rights derived from licences issued under the national petroleum legislation.This practice was distinctly different from the State practice of PNG's near neighbours to the north, particularly Indonesia and Malaysia. In those countries rights to explore for and produce petroleum were acquired by entry into a production sharing contract with the State which to a considerable extent was a self-contained legal code.In addition, PNG has developed a unique contractual model which has been grafted on to the existing licensing system. This new model, embodied in a Standard Petroleum Agreement (SPA), incorporates elements of the negotiated petroleum agreements common in countries with a less developed legal system.The scope of this paper is to assess the strengths and weaknesses of the SPA, both internally and against the framework of the PNG legislation, particularly the Petroleum Act, as well as against the background of similar petroleum agreements offered to oil companies by other countries in the region.
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Rini, Ragil Kusnaning. "Urgensi Prinsip Kepatutan dan Keadilan (Redelijkheid en Billijkheid) Dalam Pembuatan Perjanjian Pendahuluan." Notaire 4, no. 3 (2021): 425. http://dx.doi.org/10.20473/ntr.v4i3.27221.
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The principle of reasonableness and fairness (redelijkheid en billijkheid) is a pair of principles that are closely related and constitute an interpretation of the principle of good faith. So that the terms used in NBW are no longer good faith, but rather reasonableness and fairness. In the Netherlands, this principle is mandatory not only at the time of contract execution, but also at the pre-contract stage, giving rise to pre-contractual liability. Whereas to judge whether or not a preliminary agreement is binding, what must be observed first is the substance and not just based on the title. The importance of applying the principles of reasonableness and fairness in the preliminary agreement is to realize contractual justice and provide protection for weak parties when the expectations of the promises offered cannot be fulfilled. In essence, the principle of reasonableness and fairness requires proportionality among the parties. A preliminary agreement if the clauses are made without paying attention to the principles of reasonableness and fairness will have the potential to cause disputes. Furthermore, the party who feels aggrieved can file a lawsuit on the basis of an unlawful act and demand compensation for the costs that have been incurred.Keywords: Preliminary Agreements; Good Faith; Redelijkheid en Billijkheid.Prinsip kepatutan dan keadilan (redelijkheid en billijkheid) merupakan sepasang prinsip yang saling terkait erat dan merupakan penafsiran dari makna prinsip itikad baik. Sehingga istilah yang digunakan pada NBW tidak lagi itikad baik (good faith), melainkan kepatutan dan keadilan (reasonableness and fairness). Di Belanda, prinsip ini tidak hanya diwajibkan pada saat pelaksanaan kontrak saja, namun juga pada tahapan pra kontrak sehingga menimbulkan adanya pra-contractual liability. Bahwa untuk menilai mengikat atau tidaknya suatu perjanjian pendahuluan, maka yang harus dicermati terlebih dahulu adalah substansinya dan bukan hanya didasarkan pada judulnya saja. Pentingnya penerapan prinsip kepatutan dan keadilan dalam perjanjian pendahuluan adalah untuk mewujudkan keadilan berkontrak dan memberikan perlindungan terhadap pihak yang lemah manakala harapan dari janji-janji yang ditawarkan tidak dapat terpenuhi. Pada hakikatnya prinsip kepatutan dan keadilan menghendaki adanya proporsionalitas diantara para pihak. Suatu perjanjian pendahuluan jika klausul-klausulnya dibuat tanpa memperhatikan prinsip kepatutan dan keadilan akan berpotensi menimbulkan perselisihan. Selanjutnya terhadap pihak yang merasa dirugikan dapat mengajukan gugatan atas dasar perbuatan melanggar hukum dan menuntut ganti kerugian atas biaya-biaya yang telah dikeluarkannya.Kata Kunci: Perjanjian Pendahuluan; Itikad Baik; Redelijkheid en Billijkheid.
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M. Elsawi, Ahmed. "The civil liability of the consortium members for the individual mistake of one member." International Journal of Engineering & Technology 7, no. 2.13 (2018): 272. http://dx.doi.org/10.14419/ijet.v7i2.13.12677.
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Nowadays, the various forms of contractual agreements have spread between the different contracting companies for the purpose of executing the huge international contracts which require the synergy of all efforts. This has led to the appearance of new forms of cooperation between the international contractors, called the "Consortium Agreement", which is a kind of special partnership entered into for the purpose of executing a certain project, and ends at the completion of this project, without the constitution of a separate entity for the parties of this consortium. Nonetheless, many and various legal implications result from this consortium, some of which may be attributed to the subordination relationship between this agreement and the international contract of construction; while other legal implications might be attributed to the Consortium Agreement itself. The main problem in this regard may arise, if the consortium members did not agree on the accurate determination of the civil liability for each party, whether it was during the pre-contractual stage, or during the contract's execution; as well as the specific determination of the consortium members' liability towards the employer for the individual mistake of one member, especially in light of the multiple parties and the unity of purpose. In this regard, the liability may take one of the following two forms: first, to consider all members of the consortium as joint partners before the employer; second, to adopt the personal liability of each member separately, thus, each member shall be liable only for the part assigned to him. Hence, we will try here to answer a major question regarding the liability of the consortium members for the individual error of one member towards each other or towards the employer, taking into consideration the special nature of the Consortium Agreement.
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Anderson, Shannon W., Margaret H. Christ, Henri C. Dekker, and Karen L. Sedatole. "The Use of Management Controls to Mitigate Risk in Strategic Alliances: Field and Survey Evidence." Journal of Management Accounting Research 26, no. 1 (2013): 1–32. http://dx.doi.org/10.2308/jmar-50621.
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ABSTRACT Transaction cost economics (TCE) theory is widely used to study the governance and management control practices used to mitigate interfirm alliance risk. Following Williamson (1985, 1991), empirical studies typically measure transaction characteristics that proxy for risk in alliances (e.g., asset specificity), and test for a relation between these measures and alliance management control choices. A common criticism of studies in this literature is that they typically focus on a narrow set of governance decisions (e.g., make versus buy) or control practices (e.g., specific contract terms). We posit that an equally limiting aspect of this literature is its reliance on risk proxies measured at the level of the individual transaction. These proxies fail to explicate specific alliance risks and, coupled with an undue focus on transactions rather than the totality of interfirm relationships, limit our understanding of how risks give rise to management controls more broadly defined. In this study we use field-based research and survey methods to develop a comprehensive inventory of the specific risks that managers anticipate and to provide insight regarding their prevalence across different types of interfirm alliances. Our analysis of the data supports an extant classification scheme that dichotomizes alliance risk as relational risk or performance risk (Das and Teng 1996, 2001). However, our analysis reveals another distinct risk category—compliance and regulatory risk—that figures prominently in accounting risk frameworks (i.e., COSO). Our exploratory analysis of correlation in the use of management controls, including contracts as well as pre- and post-contractual control processes, reveals six sets of alliance control practices. Relating these to risks, we find that performance risk is associated primarily with careful partner selection and contractual outcome agreements; relational risk is associated primarily with explicit exit agreements; and, compliance and regulatory risk is associated primarily with informal controls. In addition, we find that as compared to contractual alliances, alliances with shared ownership (i.e., joint ventures) make greater use of financial controls and informal controls. By identifying specific risks and controls used in practice and providing preliminary evidence of their relationships, this study provides a reference for future researchers seeking to provide more meaningful insight into the relationship between interfirm alliance risk environment and control systems.
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Soni, Shubham. "Various Routing Protocols of Vehicular Ad hoc Network: A Survey." International Journal for Research in Applied Science and Engineering Technology 9, no. 12 (2021): 1791–99. http://dx.doi.org/10.22214/ijraset.2021.39612.
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Abstract: A vehicular ad hoc network is a type of network divided by an area where car nodes can join or leave the network. Due to the flexibility of the network environment active contractual routes are used in the development of the route from the source to the destination. Various active and active protocols are updated in this paper. Active routing protocols are those that use current network information in the development of the route from the source to the destination. Active routing protocols are those that use the pre-defined network information in the route setting. Active route agreements use route tables in route development. In this review paper, a literature survey was conducted on VANET route protocols. It is analyzed that an effective route protocol offers higher performance compared to active router protocols. Keywords: VANET, Reactive, Proactive Routing
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Parasharami, Archis A., and Timothy Tyler. "Finality over Choice:Hall Street Associates, L.L.C. v.Mattel, Inc.(U.S. Supreme Court)." Journal of International Arbitration 25, Issue 5 (2008): 613–21. http://dx.doi.org/10.54648/joia2008047.
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In Hall Street Associates, L.L.C. v. Mattel, Inc., the U.S. Supreme Court held that, under the Federal Arbitration Act, parties to an arbitration agreement may not contract for broader judicial review of arbitral awards than the grounds provided for in the FAA itself. The Supreme Court’s decision resolved a disagreement on this point among lower courts in the United States. The Court’s decision will have no effect on international arbitration agreements in which the parties did not seek to expand judicial review. But it seems highly unlikely that courts will enforce provisions of arbitration agreements that do call for broader review by courts. The decision in Hall Street sought to resolve a tension between two competing values in arbitration law: the desire for quick and final decisions versus the goal of enforcing the contractual choices of parties. In Hall Street, finality won out over party autonomy. In the course of reaching its decision, the Supreme Court discussed, but left untouched, “manifest disregard of the law,” an important common law ground on which an arbitration award may be vacated. The lower federal courts that have considered the issue all agree that arbitral awards are subject to review for manifest disregard of the law, though they differ on the nature and extent of that review. While the Supreme Court rejected the notion that the existence of the “manifest disregard” doctrine opened the door for private parties to expand judicial review by contract, it did not alter pre–existing case law on the availability of review of arbitral awards for “manifest disregard”of the law.
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Tabash, Mosab I., Umaid A. Sheikh, Ali Matar, Adel Ahmed, and Dang Khoa Tran. "Do Financial Crises Matter for Nonlinear Exchange Rate and Stock Market Cointegration? A Heterogeneous Nonlinear Panel Data Model with PMG Approach." International Journal of Financial Studies 11, no. 1 (2022): 7. http://dx.doi.org/10.3390/ijfs11010007.
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The existing literature has explained the causality flow from the exchange rates toward the stock market without explaining the role of the economic crisis in effecting this nexus. This study examines the role of the financial crisis in affecting the nonlinear causality flowing from the exchange rates toward the stock market indexes of the ASEAN-5 region. The precrisis, postcrisis, and overall sample duration comprised 365, 650, and 1085 observations over the periods from January 2002 to January 2008, January 2010 to January 2020, and January 2002 to January 2020, respectively. The results showed that the conventional symmetrical panel ARDL (PARDL) model was not able to formulate long-run cointegration between currency value fluctuations and stock market indexes for both regimes, i.e., the post recessionary and pre recessionary periods. However, asymmetrical cointegration was established between the currency values and stock market indexes for the pre recessionary period and the overall sampling time frame by utilizing the panel-based NARDL framework (PNARDL). The study suggests practical implications for the exporters and importers to consider the regime as well as both the negative and positive shocks in the international dollar values while making forward contractual agreements.
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McKelvey, Steve, and John Grady. "Sponsorship Program Protection Strategies for Special Sport Events: Are Event Organizers Outmaneuvering Ambush Marketers?" Journal of Sport Management 22, no. 5 (2008): 550–86. http://dx.doi.org/10.1123/jsm.22.5.550.
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Companies invest millions of dollars to become “official sponsors” of major global sporting events. The tremendous publicity and consumer audiences generated by such events provide an attractive marketing opportunity for companies other than the event’s official sponsors who seek to associate themselves in the minds of the public with the goodwill and popularity of these events. This activity, known as ambush marketing, poses significant legal and business challenges for sport event organizers seeking to protect both the financial investment of official sponsors and the integrity of their sponsorship programs. With rising sponsorship stakes, event organizers have become increasingly proactive in their efforts to combat ambush marketing. This article examines the implementation and effectiveness of a variety of evolving sponsorship program protection strategies including: pre-event education and public relations initiatives; on-site policing tactics; contractual language in athlete participation and spectator ticket agreements; and the enactment and enforcement of special trademark protection legislation.
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Knox, Simone. "Bringing the Battle to Britain: Band of Brothers and Television Runaway Production in the UK." Journal of British Cinema and Television 17, no. 3 (2020): 313–33. http://dx.doi.org/10.3366/jbctv.2020.0531.
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This article explores the development and pre-production history of the 2001 HBO mini-series Band of Brothers. It does so via a combination of original archive research (conducted at the BFI Reuben Library) and interviews with several industry figures with relevant professional experience, including John Barclay, the current Head of Recorded Media for the UK trade union Equity, and Roger Harrop, the former director of regional film commission Herts Film Link. Using these methodologies, the article identifies Band of Brothers as the first significant US runaway television production in the UK, and uncovers how this HBO programme came to benefit from British film tax relief. Here, close attention is paid to dubious practices concerning tax policy and contractual agreements for actors, especially Damian Lewis's pay. The article demonstrates the impact Band of Brothers has had on television production in the UK in terms of providing Equity with a useful precedent when negotiating for subsequent international productions such as Game of Thrones (2011–19). Band of Brothers offers important and timely lessons to be learned, especially given the recent growth of US television runaway productions in the UK.
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Południak-Gierz, Katarzyna. "Consequences of the Use of Personalization Algorithms in Shaping an Offer – A Private Law Perspective." Masaryk University Journal of Law and Technology 13, no. 2 (2019): 161–88. http://dx.doi.org/10.5817/mujlt2019-2-2.
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Personalization mechanisms in consumer e-commerce allow for the adjustment of the time, form and manner of contact, the way of concluding the contract and the availability and content of the offer. Subsequently concluded agreements can be seen as a new phase of development of the consumer transaction model – secondary individualization replaces standardization. The possibility of concluding contracts on a massive scale is retained, but with added granularity and flexibility that mimic the individualisation of transactions. Special provisions for personalized contracts are missing on the EU level and within the Polish legal system.The starting point is an analysis of the reaction of the traditional private instruments of Polish law towards the personalization of offers – case law and doctrinal approach towards the concept of a standard contract and an individually negotiated one are examined. Next, the pre-contractual stage is investigated – the personalization process is explored from the perspective of unfair practices regulation, and the legal basis for the personalization process in the context of the GDPR is discussed. While Polish national law focuses on combating the undesired results of personalization, the EU initiatives aim at granting ex-ante protection. The mechanism in directive 2005/29/EC is being supplemented with an information protection mechanism (consent requirement). The limitations of this model are identified and some alternative solutions are proposed.
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Prokopchuk, О. T. "Insurance Principles as a Methodological Basis for the Formation of Insurance Relations in the Agricultural Sector of the Economy." Collected Works of Uman National University of Horticulture 2, no. 97 (2020): 22–35. http://dx.doi.org/10.31395/2415-8240-2020-97-2-22-35.
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The specificity of the agrarian production process is associated with numerous risks of various species, which leads to a special formation of relationships between the subjects of the agro-insurance market, which should be based on certain specific principles. The functioning of the agricultural insurance market and, accordingly, the formation of a system of insurance relations in the agricultural sector of the economy is based on certain principles that determine the basis for the functioning of the subject composition of the agricultural insurance market in the context of financial, economic, organizational and legal components. Compliance with fundamental insurance principles ensures the possibility of achieving a balance of property interests of participants in insurance relations. The substantive basis of insurance principles regulates the value system of key subjects of the insurance market when concluding agricultural insurance agreements. In this context, it should be noted that knowledge of the insurance methodology requires an unambiguous interpretation of the essence of the principles of the latter, which is the basis for the formation of insurance relations in the agricultural sector of the economy. Consequently, insurance principles are the basis of insurance activities accompanying all stages of the insurance process, starting with pre-contractual relations, then continuing to support contractual relations and ending with participation in their post-contractual types. In essence, the principles of agricultural insurance make it possible to properly coordinate the professional activities of participants in the agricultural insurance market, aimed at neutralizing the risks of various types of population, reflecting the fundamental principles that provide appropriate conditions for the implementation of the interests of all participants in the specified market in the context of both social and economic types. According to the results of the study, the fundamental (basic) insurance principles are classified into three main groups: first — the principles used as the basis of the process of organizing and conducting insurance activities (group of basic insurance principles); second — for risk management of insurance companies (group of additional insurance principles); third — to include special clauses in insurance contracts (group of selective insurance principles). In addition, a set of principles are highlighted that are specific and function in agricultural insurance, forming a methodological basis for the development and distribution of insurance relations in the agricultural sector of the economy, to which, according to the research results, the following principles are attributed: voluntary participation, mutual interest, tariff justification, food security, subsidies and financial stability. This systematization will allow to properly coordinate the professional activities of participants in both the insurance market and its agricultural insurance segment aimed at neutralizing the risks of various species.
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Mirza, Mansha, Rooshey Hasnain, and Kathryn Duke. "Fostering Community-Academic Partnerships to Promote Employment Opportunities for Refugees with Disabilities: Accomplishments, Dilemmas, and Deliberations." Societies 8, no. 3 (2018): 86. http://dx.doi.org/10.3390/soc8030086.
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Little attention has been given to the processes and dynamics involved in community-engaged research with hard-to-reach and marginalized communities. This concept paper focuses on experiences with and lessons learned from the developmental phase of a community-engaged research project aimed at promoting the economic self-sufficiency of refugees with disabilities in Illinois. Steps taken to foster collaboration between academic researchers and community stakeholders are described, followed by the authors’ commentary on challenges encountered and how these were addressed. Several methods were used to facilitate engagement of community stakeholders. In the pre-funding stage, lead researchers identified potential community partners by networking with coalition groups and task forces focused on disability- and refugee-related issues. In the post-funding stage, relationships with partners were formalized, partners’ roles were defined, and contractual agreements were developed. An advisory board consisting of representatives from partner agencies and self-advocates with disabilities was also assembled to help guide the project goals and deliverables. Structured group and one-on-one meetings were held to sustain community partner engagement. These community engagement strategies were deemed successful. However, challenges did emerge due to conflict between community stakeholders’ preferences, and research logistics and regulatory requirements of the academic institution. Findings suggest that with careful planning, barriers to community-academic collaborations can be addressed in ways that benefit all parties. This paper offers practical strategies and a roadmap for other community-engaged research projects focusing on vulnerable and marginalized groups.
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Bottoni, Francesco. "Partial Agreement and Contract Formation." European Business Law Review 31, Issue 2 (2020): 337–44. http://dx.doi.org/10.54648/eulr2020014.
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The article discusses the possibility for contracts to be partially formed or not fully complete under the Italian Civil Code and how these are to be treated in relation to enforcement and remedies. Partial agreement, incomplete contract, letter of intent, pre-contractual liability, breach
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Yuwono, Reza Septa. "Heads of Agrement (HOA) sebagai Salah Satu Perjanjian PraKontrak (Pre-Contractual Agreement) Di Indonesia." Jurist-Diction 2, no. 2 (2019): 639. http://dx.doi.org/10.20473/jd.v2i2.14256.
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Perjanjian pra-kontrak merupakan dokumen hukum yang lazim digunakan dalam proses pendirian bisnis, baik nasional maupun internasional, selama tahap negosiasi berlangsung. Perjanjian prakontrak yang sering digunakan di Indonesia adalah Memorandum of Understanding (MOU)/ Memoranda of Agreement (MOA) atau yang dalam Bahasa Indonesia disebut sebagai Nota Kesepahaman. Nota Kesepahaman berfungsi sebagai code of conduct atau acuan dalam melakukan negosiasi bisnis bagi para pelaku bisnis pada umumnya. Hal ini berbeda dengan Heads of Agreement (HOA) sebagai salah satu perjanjian pra-kontrak jenis lain yang berbeda dengan MOU. Heads of Agreement atau Pokok-Pokok Perjanjian sendiri baru pertama kali digunakan dalam praktek hukum di Indonesia melalui Proses Divestasi Saham PT Freeport Indonesia. Dalam proses negosiasi pengeluaran Izin Usaha Pertambangan Khusus (IUPK) Freeport ini salah satu kesepakatan yang disetujui adalah Divestasi Saham 51% (lima puluh satu persen) kepada Pemerintah Indonesia sesuai amanat UU Mineral dan Batubara, yang sebelum dicantumkan dalam IUPK dilegal-formalkan terlebih dahulu dalam bentuk Heads of Agreement. Berbeda dengan MOU yang bersifat sebagai aturan dalam bernegosiasi bisnis, HOA bersifat sebagai partial agreement (bagian dari kontrak utama) yang berisi kesepakatan yang telah disetujui para pihak dan kemungkinan besar akan dicantumkan dalam Perjanjian/Kontrak utama (main contract) nantinya.
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Rukavina, Ivana. "Do Financial Arrangement of the International Monetary Fund Has Impact on the Reduction of Government Spending, Evidence through Political Fiscal Cycles, the Case of Croatia." Journal of Economics and Public Finance 4, no. 2 (2018): 143. http://dx.doi.org/10.22158/jepf.v4n2p143.
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<p><em>This paper examines the regulatory role of the IMF on government spending through political fiscal cycles. According to theoretical views, the fiscal policy in the pre-election period reflects an increase in government spending or budget expenditures; in postelection period, it takes a restrictive course by reducing spending. In the presence of a contractual agreement with the IMF, the theory points to limiting and reducing the magnitude of government spending in the pre-election period. According to the research results in Croatia, there is an increase in government spending in the election quarter, and its decrease in the quarter after the election. On the other hand, the contractual arrangements with the IMF show significant reductions in government spending. When a country is under a contractual obligation with the IMF, it reduced the government spending in the pre-election period in relation to the period when it is not under a contractual obligation.</em></p>
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Belozerova, Elena Olegovna, and Aleksandr Andreevich Zaria. "Application of the civil law institution of pre-contractual liability to labor relations." Право и политика, no. 10 (October 2021): 99–116. http://dx.doi.org/10.7256/2454-0706.2021.10.36544.
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The subject of this research is the legal relation that arise between the employee and the employer prior to signing employment agreement. Such relation, which suggest interviews, negotiation costs, etc., are not regulated by the Russian legislation. However, the number cases when the party suffers losses due to unfair conduct of negotiation by the other party increases. If the relations before conclusion of employment agreement are viewed from the perspective of labor legislation, there is no mechanism of compensation for damage. The article analyzes the need for inclusion of negotiations to the sphere of regulation of civil legislation and feasibility of application of the norms on pre-contractual liability in case of detection of bad faith. The author explores the foreign practice of implementation of the institution of pre-contractual liability in the sphere of employment. The novelty consists proving the expediency of application of civil law instruments to the relations under consideration. The article describes the procedural peculiarities of application of pre-contractual liability to the relations preceding labor relations. The following conclusions are made: relations that arise prior to signing employment agreement are referred to as civil relations, and do not intersect with employment relations; the job offer represents a formal offer within the framework of the Civil Code of the Russian Federation.
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Kusmiati, N. Ike. "Legal Standing of Pre-Contractual Good Faith Principle as a Law Reformation of Indonesian Contract Law." International Journal of Science and Society 2, no. 1 (2020): 73–85. http://dx.doi.org/10.54783/ijsoc.v2i1.61.
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Good faith plays an important role in a contract since it holds a dominant position either during pre-contractual phase or when a contract is executed. However, pre-contractual good faith in Indonesian Civil Code is not recognized as such there is no legal assurance. In fact in pre-contractual stage, the parties already put some investment based on trust and hope, however, they faced dead end and they did not reach an agreement. This was tinted with the fading of wall between two major legal systems: Common Law System and Civil Law System as a result of dynamic in business relation involving countries bringing some developments in contract law. The extension in the substance of good faith in Article 1338 verse (3) of the Civil Code should not be implemented so grammartically that good faith does not only appear during the execution of the contract but it should also be interpreted during the whole process of the contract that good faith should lay the foundation of the parties relation both in pre-contractual phase and during the contract such that the good faith in Article 1338 verse (3) of Civil Code functions dynamically. In UPICC, the provision of good faith is stipulated in Article 1, 7 stressing on the importance of good faith and fair dealing. This stressing underlays the process of contract agreement. Good faith should be interpreted and formulated during the whole process of contract. Under the traditional doctrine of Common law, court cannot punish the defendant because Common Law system does not recognize the good faith principle in negotiation process. Nevertheless, modern law contract waives the legal assurance to reach a substantial justice that good faith is not only applied in a contractual relation but also in a pre-contractual. Meaning, good faith does not only bind upon matters explicitly stated in the agreement, but also upon ones that traditionally are required by appropriateness, tradition, or the law as stipulated in Article 1339 of the Civil Code and Article 6:248 of Netherlands NBW. The good faith and fair dealing principles should be the underpinning of contract law. Each party should uphold the principles of good faith and fair dealing in the whole process of the contract starting from negotiation, contract arrangement, the execution of the contract as far as the termination of the contract particularly in the reformation of Indonesian future contract law
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Chistyakov, P. D. "Withdrawal from Negotiations as the Basis for Pre-Contractual Liability under Russian and Foreign Law." Actual Problems of Russian Law 16, no. 11 (2021): 83–98. http://dx.doi.org/10.17803/1994-1471.2021.132.11.083-098.
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The paper analyzes the criteria for unfair termination of negotiations as a basis for pre-contractual liability. There are 3 components of unfair interruption of negotiations: 1) entry into negotiations without the intent to conclude an agreement and their subsequent interruption; 2) arbitrary termination of negotiations if the counterparty has confidence in the conclusion of the contract; 3) untimely notification of the counterparty about withdrawing from the negotiation process. The author analizes the criteria for unfair breakdown of negotiations. They include the following: the counterparty has reasonable confidence in the conclusion of the contract and the absence of a valid reason for terminating business contacts. These criteria are relevant only for the second composition of the elements of unfair termination of negotiations. To be held liable for entering into negotiations without intending to conclude an agreement and for the subsequent withdrawal from them, it is not required to establish such criteria, and in case of untimely notification of the severance of business contacts, it is necessary to establish only one criterion, namely, the counterparty can reasonably believe in conclusion of the agreement. As a general rule, participants in pre-contractual relations have the right to conduct parallel negotiations with other persons. This possibility may be limited by entering into an exclusivity agreement. At the same time, in some cases, entering into parallel negotiations can be qualified as unfair behavior even without the conclusion of such an agreement.
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Муратова, Ольга, and Olga Muratova. "Conflict-of-Law Regulation of Obligations, Arising from Faulty Negotiations of Treaties (culpa in contrahendo) in Russia and the European Union." Journal of Russian Law 4, no. 5 (2016): 0. http://dx.doi.org/10.12737/19229.
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The article covers the questions of comparative analysis of conflict-of-law regulation of obligations, arising from faulty negotiations of treaties in the Russian legislation and the European law. Such regulation is envisaged in article 12221 of the Civil Code of the Russian Federation and in article 12 of the Regulation (EC) No 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (Rome II). The author considers conflict-of-law regulation of pre-contractual relations from the point of view of the following aspects: possibility of applying the agreement about the law chosen by the parties to regulate their pre-contractual relations; applying the contractual connecting factor to determine the law applicable to precontractual relations; exploration of other connecting factors applicable to the precontractual relations in case of impossibility to determine the applicable law on the basis of the contractual connecting factor. The author’s conclusion contains the results of the comparative analysis, such as deduction of common and specific features of the Russian and European conflict-of-law regulation of the above-mentioned group of obligations. Also the author offers some recommendations on the improvement of the Russian legislation.
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Henrik Edlund, Hans. "Culpa in Contrahendo: Tortious Liability, Breach of Contract or an Autonomous Legal Instrument?" European Business Law Review 30, Issue 5 (2019): 815–22. http://dx.doi.org/10.54648/eulr2019033.
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The legal character of contract negotiations is much debated and different answers are given to the question whether disloyal behaviour committed during unsuccessful contract negotiations can be met by contractual or tort law remedies or, as a third possibility, some unique sanctions developed for this certain semi-contractual situation only. In this article, it is argued that an agreement to negotiate a contract is a contract in itself, although a very non-binding one – a pre-contract. Subsequently, breach of the parties´ duties relating to the pre-contract might be sanctioned by using contractual remedies. Most of the usual remedies, however, are not relevant, except for damages. These may be measured according to the principles on expectation interest, but in this specific situation the outcome will be almost identical with damages that are calculated according to the reliance interest. It is of course not possible to claim damages related to the contract that could have been the result if the contract negotiations had been successful.
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Davtyan, Tsolak Agasovich. "The ratio of will and expression of will in the issue of determining pre-contractual liability." Юридические исследования, no. 9 (September 2022): 62–79. http://dx.doi.org/10.25136/2409-7136.2022.9.37973.
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The subject of the study is aspects of the institute culpa in contrahendo, embodied in the novels of the Gc 2015. The main purpose is to demonstrate the significance of the correlation of the will and the will of the parties (the object of the study) in determining pre-contractual liability (PO) in cases where the contract remains valid; an appropriate legal technique is given to explain the restoration of the legal situation in accordance with the concept of the desired agreement, understood as a coincidence of wills (common will). In this regard, it turns out that the norms of the domestic Civil Code, defining the responsibility of the party for culpa in contrahendo while maintaining the validity of the contract, are insufficiently elaborated. In this situation, the theoretical construction of the software turns out to be so similar to the liability caused by a legal relationship from a specific contract that it is possible to determine both the independent position of this institution and within the framework of contractual liability, but not tort. One of the conclusions to which this study comes is the assertion that the nature of the agreement is bound by the will of the parties until the framework of the contract-transaction, at the request of one of the parties (termination of the contract, invalidation of the transaction) is not disclosed in order to legally fix the agreement itself as a single legal relationship linking the pre-contractual and contractual stages of commitment. The article also provides specific proposals for unifying the scope of liability in the form of losses caused by unfair actions at the negotiation stage, in particular, in the case when the concluded contract is not disputed by the injured party (that is, when the norms of Articles 178 and 179 do not apply).
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Kucherenko, Oleksii. "FRANCHISING AGREEMENT UNDER THE LEGISLATION OF FOREIGN COUNTRIES." Scientific Notes Series Law 1, no. 9 (2020): 33–37. http://dx.doi.org/10.36550/2522-9230-2020-1-9-33-37.
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The article is devoted to the topical issue of studying the foreign experience of legal regulation of the franchise agreement. The author emphasizes that there is no comprehensive full-fledged regulation of the franchise agreement either in the national legislation of individual EU member states or at the international level. The article focuses on the franchisor's obligation to enter into an agreement to provide future franchisees with information about doing business under the franchise system, including the basic conditions of the franchise, data on the number of franchisees in the network, its growth, financial performance, etc. The experience of legal regulation of a franchise agreement in such foreign countries as the USA, Great Britain, Italy, Germany, Spain, Estonia, Lithuania, Australia, etc. is considered. The duality of the legal regulation of franchising at the federal and local levels, as well as the prevalence of the most favorable rules for franchisors (USA) is demonstrated. The author focuses on the experience of the institute of self-regulation of franchising and the establishment of appropriate criteria for franchise companies in the absence of government regulation (Britain). The need to adopt a single institutional law in the field of franchising and to enshrine in it all the key terms used in franchising: the actual franchise agreement, know-how, entrance fee, royalties (periodic payments for the use of intellectual property), the franchisor's goods (Italy). It is expedient to establish a provision on mandatory pre-contractual disclosure of information, according to which the counterparty is provided with information on experience, company experience, prospects for the development of the relevant market, duration of the agreement, terms of renewal or termination of contractual relations (France).
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Paula, Giliker. "A Role For Tort In Pre-Contractual Negotiations? An Examination Of English, French, And Canadian Law." International and Comparative Law Quarterly 52, no. 4 (2003): 969–93. http://dx.doi.org/10.1093/iclq/52.4.969.
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The common law has traditionally regarded the question of pre-contractual liability as a matter of contract formation.2 Where the claimant is able to satisfy the rules of offer and acceptance, consideration, an intention to be bound, and certainty, contract law possesses a number of tools capable of resolving disputes arising prior to contract. For example, the courts will utilise the law of misrepresentation and mistake and, if necessary, imply terms to respond to questions such as the effect of pre-contractual representations or whether the claimant should be paid for work commenced prior to contract.3 Notably where a transaction between two commercial parties has been executed, the English courts have shown themselves particularly willing to intervene and ensure the validity of the agreement reached between the parties.4
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Xue, Yong, and Xinyi Yun. "The optimal performance target of valuation adjustment mechanism agreement with real options perspective." PLOS ONE 17, no. 11 (2022): e0277509. http://dx.doi.org/10.1371/journal.pone.0277509.
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The valuation adjustment mechanism (‘VAM’) agreement has recently been widely adopted in venture capital investment in emerging markets. The VAM agreement endows venture capital institutions a contractual right to reevaluate invested startup contingent on preset performance targets, which is crucial for the effectiveness of the VAM agreement by deeply affecting the strategy and fate of the startup. Motivated by exploring a rational performance target setting, this paper: 1)Firstly, extracts a general structure of the VAM agreement by cases analysis;2) Secondly, adopts a real options methodology to derive the option value held by venture capital institutions and how the pre-determined performance target affect the payoff of venture capital institutions;3)Thirdly, derives the expected time to achieve the given performance target and the behavior choice of entrepreneurs of startups; 4)Finally, by maximizing the contractual value of venture capital institutions with the participation constraints of the entrepreneur, derives the optimal performance target setting. The result finds that the option value of the VAM agreement is positively related to the performance target. It may partially explain why venture capital institutions tend to dominate overly high targets from a real options perspective. We also confirm the incentive effect of the VAM agreement that entrepreneurs tend to exert their best effort. Furthermore, the derivation of the optimal performance target shows that it is an increased function of the agreement period and a subtractive function of project risk. This paper contributes to the literature on contingent payment mechanisms and provides practical implications for the VAM agreement design.
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Dewanti, Rizky Febri, Pujiyono Pujiyono, and Yudho Taruno Muryanto. "The application of good Faith principle of precontract in common law and civil law contry." Research, Society and Development 10, no. 16 (2021): e139101623621. http://dx.doi.org/10.33448/rsd-v10i16.23621.
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In Indonesia, development of application of good faith principle in legal agreement focuses on the application of Civil Code (KUHPerdata) where scope is still placed on the implementation of agreement. It is as if Civil Code has not recognized the existence of good faith principle at pre-contract stage. In comparison, according to modern agreement theory that parties who suffer losses in pre-agreement/contract stage or at negotiation stage, their rights also deserve to be protected. Thus, pre-agreement/contract promises will have legal implications for those who violate them. This will be seen in countries that have common law and civil law systems. An important issue in this case relates to the principle of good faith at the pre-contract stage which creates a gap with the provisions in the legislation. To analyze these problems, legal research was conducted with the black-letter law paradigm. Technique of collecting legal materials in this research used library research. Legal materials are analyzed deductively and utilize the method of interpretation (hermeneutics). Results showed that the application of the principle of good faith at the pre-contract stage in Common Law and Civil Law countries had differences. In the Civil Law system, good faith is highly emphasized in the stage of contractual negotiation. Whereas in the Common Law system, it prioritizes efforts to restore rights of aggrieved party in pre-contract stage. Parties who do not have good faith at the pre-contract stage have legal consequences for cancellation of the agreement.
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Irakli, Tedoradze. "The Principle of Freedom of Contract, Pre-Contractual Obligations Legal Review English, EU and US Law." European Scientific Journal, ESJ 13, no. 4 (2017): 62. http://dx.doi.org/10.19044/esj.2017.v13n4p62.
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The impregnable foreign policy of Georgia is to become a full and equal member of the world. Over the past decade the country has been actively trying to integrate into the European economy, to regulate and harmonize the legal space, which will help the state to become attractive both for the world community, as well as potential investors and significantly strengthen its position in the domestic economy. A step forward in this direction may be considered signing the EU association agreement. This event clears the way to Europe for the business of Georgia. Therefore, it is extremely important to establish the proven regulations of Europe and to develop the legal space in compliance with international standards. All of this, of course, require legislative changes within the country in terms of its development, improving and adaptation, especially civil, antitrust, antidumping and competition regulatory legislation.
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KHAMIDULLIN, Marat T. "PROVISION OF TECHNICAL CONNECTION CONDITIONS AS A PRE-CONTRACTUAL STAGE OF THE RELATIONS BETWEEN THE PARTIES TO THE TECHNOLOGICAL CONNECTION AGREEMENT." HERALD OF THE RUSSIAN LAW ACADEMY, no. 1 (2020): 72–77. http://dx.doi.org/10.33874/2072-9936-2020-0-1-72-77.
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Kirillova, A. O. "Рrospects for the Development of Norms of Сivil Law on Preliminary Contract". Rossijskoe pravosudie 6 (26 травня 2021): 33–38. http://dx.doi.org/10.37399/issn2072-909x.2021.6.33-38.
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This article is devoted to the study of the historical experience of regulating pre-contractual legal relations. The main focus is on the development of preliminary contract legislation. At the same time, problems are posed related to possible ways of further development of legislation on a preliminary contract. The purpose of the article is to study the current legal regulation of legal relations complicated by a preliminary agreement, and to propose scientific ideas aimed at improving the Civil Code of the Russian Federation in the part related to the preliminary agreement. The article was written with the active use of general scientific methods and special legal methods. When writing the article, the methods of formal logic and the general dialectical method and methods of interpretation of legal texts were used. In this article, conclusions are drawn about the need for a general design of a preliminary contract, uniting elements of all existing structures that ensure the organization of future contractual relations. In addition, this article draws conclusions about the introduction of special restrictions on freedom of contract when concluding a preliminary contract. The author expressed the idea of fixing such a legal consequence in case of violation of a preliminary contract, as the recognition of legal consequences as having occurred.
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Mróz, Arkadiusz. "ZAWARCIE UMOWY PRZEDWSTĘPNEJ W OBROCIE NIERUCHOMOŚCIAMI." Zeszyty Prawnicze 14, no. 2 (2016): 99. http://dx.doi.org/10.21697/zp.2014.14.2.06.
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THE CONCLUSION OF A PRELIMINARY CONTRACT IN CONVEYANCINGSummaryThis is the first of three articles presenting a detailed discussion of the structure and functions of the preliminary contract (umowa przedwstępna), its significance, and the practical potential for its use in conveyancing. This article shows the essence of the preliminary contract as a particular type of pre-contractual agreement and its relation to the final contract (umowa stanowcza). The study discusses issues related to the content of the preliminary contract, methods of concluding such a contract by the parties, as well as the term for the conclusion of the final contract.
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Ardyo, Bebeto. "Formulasi Pengaturan Tahapan Pra Kontrak dalam Proses Pembentukan Kontrak di Indonesia." JURNAL YUSTIKA: MEDIA HUKUM DAN KEADILAN 22, no. 02 (2020): 84–93. http://dx.doi.org/10.24123/yustika.v22i02.2406.
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The increasement of human needs in society goes hand in hand with the development of technology. To meet these needs, there must be interaction between people which sometimes has the potential to cause disputes. That’s why a contract is needed. The existence of a contract guarantees legal certainty regarding protection of the rights of the parties and also the obligations that they must fulfill. There are several stages of contract formation which consist of pre-contract and agreement between the parties. According to the system in the Book III of Indonesia’s Code of Civil Law, consensus is the base for the formation of contract that means once the agreement has reached between the parties then a contract is formed. Indonesia’s Code of Civil Law doesn’t yet regulate pre-contract stages of contract formation, even though these stages are equally important. The regulation of pre-contract stages are usually set in the common law system, but along with the times, the regulation of pre-contract stages should also be regulated in the civil law system. As a comparison, Het Nieuw Burgerlijke Wetboek (New Civil Code of Netherlands) has already regulated that pre-contract stages, although the Netherlands is a country that implements civil law system. The pre-contract stages are very important to be regulated in Indonesia because there are many potential pre-contractual issues. This paper aims to formulate the outline of what needs to be regulated in the pre-contract regulations.
 Keywords : Interaction, Contract, Formation, Civil Code
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De Werra, Jacques. "The Expanding Significance of Arbitration for Patent Licensing Disputes: from Post-Termination Disputes* to Pre-Licensing FRAND Disputes." ASA Bulletin 32, Issue 4 (2014): 692–706. http://dx.doi.org/10.54648/asab2014078.
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In its recent decision ATF 140 III 134, the Swiss Federal Supreme Court held that certain claims raised by patent licensors against their exlicensee after the termination of their patent license agreement were within the jurisdiction of the arbitral tribunal notwithstanding a contractual provision which seemed to limit the submission to arbitration of only pretermination disputes. This interesting decision confirms that courts can consider adequate to confer to arbitral tribunals the jurisdictional powers to decide on patent-related claims after the termination of the patent license agreement at issue, even in the presence of contractual limits to the jurisdiction of the arbitral tribunal. This note further discusses the opposite scenario in which certain disputes arising before the conclusion of a patent license agreement can be submitted to arbitration. This peculiar situation arises in connection with so-called standard essential patents (which are quite common in the information technology / telecommunication industries) which must be made available to willing licensees under fair, reasonable and non-discriminatory terms and conditions (FRAND) and for which arbitration can be used in order to determine the FRAND-compliant terms and conditions of the patent license agreement (specifically the royalties to be paid by the licensee for the use of the standard essential patents). This note analyses this scenario in the light of the recent commitments made by Samsung (in its high profile dispute with Apple) which were validated by the European Commission on April 29, 2014 and which contains very interesting arbitration-related features which deserve to be presented. In sum, this note illustrates the expanding significance of arbitration for patent licensing disputes with respect to both post-termination disputes (as decided in ATF 140 III 134) and pre-licensing disputes (as contemplated for FRAND disputes).
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Xu, Jingwei. "Chinese Resource-for-Infrastructure (RFI) Investments in Sub-Saharan Africa and the Future of the "Rules-Based" Framework for Sovereign Finance: The Sicomines Case Study." Michigan Journal of International Law, no. 41.3 (2020): 615. http://dx.doi.org/10.36642/mjil.41.3.chinese.
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China has emerged as sub-Saharan Africa’s largest development financier over the past two decades. While commentators have observed novel, sui generis transactional structures in China’s financing arrangements, legal analysis of those contractual forms and their relationships to incumbent international economic governance regimes remains scant. This note addresses those scholarly lacunae, taking as its case study the 2008 Sicomines Agreement—a multi-billion USD investment financing agreement between the Democratic Republic of the Congo and various Chinese corporate entities that merges infrastructure investment with a mineral extraction joint-venture project. It demonstrates that the Sicomines Agreement selectively draws on and integrates pre-existing modes of sovereign development finance, but in ways that subvert the extant legal and customary frameworks those modes have depended on. Legal issues arising under the Sicomines Agreement fall under two analytical categories: (1) areas of the Sicomines Agreement that the extant, “rules-based” framework governing sovereign development finance adequately captures; and (2) elements of the transaction that subvert that framework, confounding existing rules. This note concludes by considering what broader implications Chinese-origin development finance may have on the legal regimes and institutions governing the international financial system as a whole.
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Weatherill, Stephen. "The Consumer Rights Directive: How and why a quest for coherence has (largely) failed." Common Market Law Review 49, Issue 4 (2012): 1279–317. http://dx.doi.org/10.54648/cola2012065.
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Directive 2011/83 on consumer rights is a case of misleading advertising. Despite its grand title, it is little more than an up-dating of the Directives on doorstep and distant selling which also re-casts them as measures of maximum, not minimum, harmonization. The real interest lies in why the Directive is such a mouse. And this story tells of political resistance to the Commission's original plan to convert also the far more significant Directives on unfair terms and consumer sales to the maximum model. This vertical shift in regulatory responsibility, driven by an aggressive rhetoric of improving "coherence" in harmonized EU contract law, was firmly rejected, with the result that the finally adopted text is stripped of any depth of ambition. Consequently Directive 2011/83 on consumer rights is not without interest for its choice of detailed regulatory technique, explored in this paper, which focuses on pre-contractual information disclosure, post-agreement rights of withdrawal and limited aspects of contractual performance. But much more so, it reveals the contested heart of the EU's internal market project - coherence achieved by suppression of national regulatory competence (unity) or preservation of regulatory experimentation and local autonomy (diversity). The making of Directive 2011/83 demonstrates political readiness to shield the latter from the Commission's current predilection for the former.
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BAYGUSHEVA, Yu V. "THE THEORIES OF THE OBLIGATION OF A REPRESENTATIVE WITHOUT AUTHORITY TO A THIRD PARTY: THE EXPERIENCE OF GERMAN CIVIL LAW AND ITS USE IN RUSSIA." Civil Law Review 21, no. 2 (2021): 199–216. http://dx.doi.org/10.24031/1992-2043-2021-21-2-199-216.
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The purpose of the study is to determine the basis of the occurrence and the legal nature of the obligation of a representative without authority in case of refusal to approve the contract conducted by him. To achieve this purpose, the author turns to the history of para. 1 p. 1 and p. 3 of Art. 183 of the Civil Code of the Russian Federation and identifies the theoretical model that underlies these prescriptions. The legal regulation of the obligation of the representative was borrowed by the domestic legislator from the draft and the final text of the German BGB. The prescriptions for this undertaking were formed as a result of a heated debate that unfolded in the second half of the 19th century among German civil law experts. They developed the basic theories of an obligation of a representative without authority: a theory of tort liability, a theory of obligation from a guarantee agreement, a theory of pre-contractual liability and a theory of obligation to protect trust. The last theory turned out to be the most viable and was enshrined in the final version of § 179 BGB, and therefore in the paragraphs of Art. 183 of the Civil Code of the Russian Federation. The essence of this theory is that if a representative without authority concludes a contract on behalf of the principal who then refuses to approve, then a representative has an obligation to compensate a third party (counterparty) for property damage; this obligation follows from the prescription of the law and the trust of a third party in the existence of authority that the representative shows, regardless of the representative’s fault. The obligation of the representative without authority is not a tort liability or obligation from the guarantee agreement; this obligation is precontractual in nature, however, it cannot be considered as liability for unfair negotiation, as it arises without the fault of the representative. The theory of obligation to protect trust has not been well covered in Russian literature. The few domestic authors who answer the question about the basis of the occurrence and the legal nature of the obligation of a representative are supporters of the theory of tort liability, the theory of obligation from a guarantee agreement or the theory of pre-contractual liability.
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Martin, Charles L. ,. Jr, and Benjamin Neil. "Standing At The Altar." Journal of Business Case Studies (JBCS) 7, no. 4 (2011): 85. http://dx.doi.org/10.19030/jbcs.v7i4.4686.
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This case provides an excellent test of a students basic knowledge of the residential property real estate process as it relates to having a signed buyers agreement, pre-approved financing and potential ethical dilemmas. The case introduces students to the purchase of property using the expertise of a real estate agent. It also highlights the need for a formal contract between the buyer and the realtor as well as the potential pitfalls to the buyer and realtor if a contract is not employed.This case is suited to students taking the first real estate course, those who are taking a course in personal financial planning or those who are preparing to become realtors. After reading and discussing the case, students should have a pragmatic understanding what a realtor brings to the market and why a contractual relationship is necessary for all parties.
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Anggraeny, Isdian, Tongat Tongat, and Wardah Dinnar Rahmadanti. "URGENSI PELAKSANAAN TAHAPAN PERSIAPAN PENYUSUNAN KONTRAK OLEH PELAKU BISNIS DALAM MENGKONTRUKSI HUBUNGAN BISNIS." Yurispruden 3, no. 1 (2020): 1. http://dx.doi.org/10.33474/yur.v3i1.5013.
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ABSTRACT Hypothetically-theoretical, almost certainly, without adequate understanding of the business relations agreement will not go well. So, every business person must understand the agreement. Departing from such needs, this article presents two fundamental issues as a material discussion. First, What are the elements that business people must consider in the preparation phase of the business contract? Secondly, What is the urgency of implementing a contract planning preparation phase by business people? Through normative and juridical studies, the explanation is obtained as follows. Business contracts are conducted through the following phases: Pre-contracted stages, contractual stages, and post-contractual phases. As an effort to make an ideal, systematic, and safe contract for the parties, it is necessary to maturation in the preparation phase of the contract drafting. The Implementation of the preparation phase of the business contract is very important so that the contract can be held accountable legally and can be understood by the parties.Keywords: Contract planning, business people, business relationships ABSTRAK Secara hipotetis-teoretis, hampir dapat dipastikan, tanpa ada pemahaman yang memadai tentang perjanjian hubungan bisnis tidak akan berjalan dengan baik. Sebegitu urgennya, maka setiap pelaku bisnis harus memahami tentang perjanjian. Berangkat dari kebutuhan yang demikian, tulisan ini menyajikan dua masalah pokok sebagai bahan pembahasan. Pertama, apa saja unsur-unsur yang harus diperhatikan oleh Pelaku Bisnis dalam tahapan persiapan kontrak bisnis? Kedua, apa urgensi pelaksanaan tahapan persiapan perancangan kontrak oleh Pelaku Bisnis? Melalui kajian secara yuridis normatif, diperoleh paparan penjelasan seperti berikut. Kontrak bisnis dilakukan melalui tahapan seperti berikut: tahapan pra kontratual, tahap kontraktual, dan tahap pasca-kontraktual. Sebagai upaya membuat kontrak yang ideal, sistematis, dan aman bagi para pihak maka perlu pematangan dalam tahap persiapan penyusunan kontrak. Pelaksanaan tahapan persiapan penyusunan Kontrak bisnis sangat penting agar kontrak yang dibuat bisa dipertanggungjawabkan secara hukum dan dapat dipahami oleh para pihak.Kata kunci : perancangan kontrak, pelaku bisnis, hubungan bisnis
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Susanto, Wahyu, Heru Sandika, and Arga J. P. Hutagalung. "Penerapan Asas Proporsionalitas Dalam Kontrak Komersial Pada Jasa Konstruksi." Jurnal Ilmiah Penegakan Hukum 8, no. 2 (2021): 193–201. http://dx.doi.org/10.31289/jiph.v8i2.5675.
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This study aims to find out how the application of the principle of proportionality in commercial contracts on construction services and in line with the government's objectives in establishing a regulation related to construction services provided as a form of government appreciation in providing legal protection for clients or partners of the company's cooperation. The research method used is normative juridical law research based on secondary legal materials. This research uses the statute approach, conceptual approach, and case approach. The technique of tracing legal materials uses document study techniques, and analysis of studies using qualitative analysis. The results of the study indicate that the proportional principle is the principle that underlies or underlies the exchange of rights and obligations of the parties according to their proportion or share in the entire contractual process. The principle of proportionality ensures that the exchange of wills in the contract, which includes 3 stages (pre-contract, contract, and post-contract) can take place fairly according to the proportions of each party. So that with the application of the principle of proportionality, it is hoped that the agreement can be guarded into a fair agreement according to the proportions of each party
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Shojaei, Abdorreza. "Validity of Open Contract in International Trade Law." Journal of Politics and Law 10, no. 2 (2017): 241. http://dx.doi.org/10.5539/jpl.v10n2p241.
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Open contracts are agreement whereby parties of the contract can insert terms and conditions in the contract, delete them, or revise them. Some contracts for the supply of goods or construction are examples of such contracts. One party (usually a contractor or seller) can have many initiatives by increasing and decreasing the price or by changing elements of the contract. Certainly, there are many reasons, motives, and important goals in creating this type of conventions and its acceptance by the legal community. Discovery of these reasons and the goals leads to fundamental changes and definition of this type of contract could be a major driver of reform in Iranian contract laws, as Iranian community prefers to use example or pre-specified forms of contracts. Therefore, referring to the Principles of European Contract Law and implementation of the legal provisions, legal doctrines, and jurisprudence, presentation of new concepts such as open contract as well as analysis of its nature, validity, and effects leads to establishment of grounds for accepting new contractual frameworks and its localization of contractual rights in Iran because it has been rejected due to traditional perspectives. It may result in legislation to pave the way for solving many legal problems in specialized issues such as oil contracts. In this regard, in addition to genealogy of open contract, this article aims to examine its types and its effects legally in the laws of countries like Iran and European countries.
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Primakov, Denis, Anton Rudokvas, and Inese Tenberga. "The Salam transaction in the Islamic tradition and its application in Islamic banking." Pravovedenie 66, no. 4 (2022): 408–21. http://dx.doi.org/10.21638/spbu25.2022.404.
Texte intégralRésumé :
This article reveals some features of the “Salam” contract which refers to the purchase of a commodity for deferred delivery in exchange for immediate payment. The structure of the Salam Contract changes the logic of ordinary sales contracts, hereby article focuses on differentiation between pre-paid Salam Contract on the one hand and the sales of goods contract (bay’) and the concept of advanced payment on the other hand. Part 2 of the article highlights the Salam Contract as a type of pre-delivery finance instrument based on the Islamic banking theory and practice. As a banking instrument, the salam agreement is primarily aimed at implementing pre-delivery financing of the real sector of the economy, which makes it possible to adjust, plan, replenish and accelerate the turnover of funds of both Islamic banks themselves and their counterparties. Nevertheless, the mechanism of implementing salam in the activities of Islamic banks is primarily aimed at forming contractual relations with reliable and financially stable counterparties. With the help of salam, the Islamic bank acts as a participant in trade in the domestic and foreign markets. Under the Salam agreement, the Islamic bank mainly buys goods whose prices are quoted on international commodity exchanges or on Islamic financial and trading platforms. Along with cooperation with companies operating in the export-import industry, this type of purchase and sale is an effective way of pre-delivery financing of agricultural producers. The article observes also a discussion over Salam Contract application for the market of shares. One point of view on this issue is that the shares have the signs of the individually defined things and thus do not meet the mandatory feature of the salam transaction. Another opinion insists that the shares correspond to all the characteristics of generic items, including the ability to determine their properties and the ability to order (deliver) them. There are also other intermediate points of view.
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Ryzhenkov, Anatoly Ya. "REDEMPTION AS A LEGAL FACT IN CIVIL LAW." Vestnik Tomskogo gosudarstvennogo universiteta. Pravo, no. 40 (2021): 184–90. http://dx.doi.org/10.17223/22253513/40/16.
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The article is devoted to the problem of redemption as a legal fact. In its external form and in its legal consequences, it represents a paid transfer of ownership of a thing and thus primarily resembles a contract of sale, so that it could be considered as a special case of it. However, at the doctrinal level, there is a completely different picture, where the redemption under its civil law regime is not only not identified with the purchase and sale, but sometimes does not even receive unambiguous recognition as a transaction. It is noted that the comparison of various options for redemption, enshrined in the norms of civil law, allows us to identify one common feature for them: in all cases, the decision to transfer ownership or to terminate the obligation (as in the case of an annuity contract) is made not by mutual will, but unilaterally. At the same time, the transfer of the right or the termination of the legal relationship in all cases is carried out on a strictly reimbursable basis. The universal property of redemption is precisely the legal effect, the emergence of a new legal relationship is only optional. Therefore, it is possible to formulate the definition of re-demption as a paid termination of a real or binding legal relationship at the request of one of the parties or a third party. In determining the redemption price, the agreement of the parties one of them is obliged to pay the agreed amount and the right to appropriate the thing from another – an obligation to provide the item and receive the agreed amount. Thus, the relation-ship of the participants in the buyout fits the description of the obligation. Moreover, the existence of an agreement between the parties indicates that this obligation is of a contractual nature. In the case of a buyout, such an integral element of the freedom of contract as the ability to decide at its own discretion whether to enter into this contract or not to enter into it is not maintained. More precisely, only one of the parties to the contract, namely the initiator of the purchase, is entitled to such a right, and this violates another fundamental principle of civil law – the equality of the participants in the legal relationship. The overall buyout model is a complex factual composition and includes the following elements: 1) the Base purchase (for example, abandoned the maintenance of cultural values, the mistreatment of animals, disagreeing with the decision of the shareholders meeting, etc); 2) treatment with the ransom demand, the transaction; 3) determination of the redemption price of: a) by agreement – a contractual obligation; b) court – ordered non-contractual obli-gation; 4) Payment of the purchase price (optional characterized proprietary and joint rela-tions, is the transfer of property to the payer; 5) Termination of a pre-existing legal relation-ship (with or without a new one).
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Tirmizi, Syed Asim Ali, and Farrukh Arif. "Identification and stakeholder responsibility mapping of contractual risk factors in oil and gas sector infrastructure projects using Delphi technique." Mehran University Research Journal of Engineering and Technology 42, no. 1 (2023): 17. http://dx.doi.org/10.22581/muet1982.2301.03.
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The continuing demand for energy has led to the need for developing and improving the oil and gas infrastructure through the execution of various infrastructure capital projects in many parts of the world, including Pakistan. Oil and gas companies have vast experience implementing these infrastructure projects, yet many such projects face delays and cost overruns. This failure to meet project targets may be attributable to the lack of identifying and addressing the risks at the pre-execution stage in the contract documents. This study aims to identify the risks to address in the contract documentation developed for the infrastructure projects and allocate each factor to a particular stakeholder (Client, design consultant, legal consultant, and bidders) in Pakistan. Risks were identified through literature review and were validated using the Delphi technique applied through surveys. Twenty-four survey respondents were selected based on their qualifications and experience in Pakistan’s Oil and Gas sector. In the first round of the Delphi survey, the level of agreement authenticates the risks applicable to Pakistan's Oil and Gas sector. The level of agreement was reaffirmed in round two of the Delphi survey. It also included a check for stability of responses between rounds using the McNemar test. Results confirmed that sixty-one risk factors are the contractual risk for evaluation when developing contracts for Oil and Gas infrastructure projects in Pakistan.
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Fauvarque-Cosson, Bénédicte, Madeleine Van Rossum, and Nieves Fenoy Picón. "House of Lords, 19 November 2003, Shogun Finance Limited v. Hudson - Effect of Fraudulent Misrepresentation on the Formation of a Contract." European Review of Private Law 13, Issue 4 (2005): 519–52. http://dx.doi.org/10.54648/erpl2005033.
Texte intégralRésumé :
In order to obtain possession of a car under a hire-purchase agreement with the claimant firm, a person who can only be described as a fraudster availed himself of a false identity, i.e. that of a Mr. Patel. The firm concerned, Shogun Finance, performed all the necessary identity and credit checks in relation to the Mr. Patel. The defendant duly paid a deposit, and the dealer delivered the vehicle to the fraudster. The latter then sold the car to a third party, one Norman Hudson, and disappeared with the money. Once it appeared that the fraudster had defaulted on the agreement, the claimants demanded that the vehicle be returned to them. Under S. 27 of the Hire Purchase Act 1964, Mr. Hudson could have retained the car lawfully if he could prove that the agreement between the rogue and Shogun was merely voidable by the latter. If, on the other hand, the contract had been void ab initio, the hapless Mr. Hudson would be compelled to return the vehicle to the claimants. The House of Lords, by a majority of 3 to 2, awarded the action to Shogun. The basis for their ruling was that, since the pre-contractual negotiations had not been conducted on a face-to-face basis, and since the circumstance of Mr. Patel being the purchaser was fundamental to Shogun, no contract could have been made since no agreement had been reached. Had the negotiations taken place on a face-to-face basis, the Law Lords would probably have found in favour of Mr. Hudson. In a dissenting opinion, Lords Millett and Nicholls of Birkenhead opined that, in today?s world of customer identification and credit checks, it was impossible to make a distinction between negotiations conducted face-to-face and those which took place by telephone, fax or even videolink.