Contractual Restrictions Research Articles

Zmiany umów w sprawie zamówień publicznych w świetle wyroku Trybunału Sprawiedliwości Unii Europejskiej z 7 grudnia 2023 r.

The article deals with a judgment that is important from the perspective of interpreting the public procurement law on contract modifications, namely, the judgment of the CJEU of 7 December 2023. The judgment draws attention to at least two incorrect practices. First, “unforeseeable” circumstances, the occurrence of which may justify a contract modification, are sometimes interpreted too broadly. Second, contract modifications that are not made “explicitly” (by an agreement or annex modifying the contract) are not treated as contract modifications within the meaning of the regulations. The conclusions resulting from the judgment are a relevant signal for the entire public procurement market, a signal whose identification by participants in the public procurement market is mandatory. The article takes a closer look at the motives of the CJEU, as well as the implications of the ruling for participants in the public procurement market and empirical research. According to the author’s research, the contract modification rationale for the occurrence of “unforeseeable” circumstances is often used as a justification for contract modification. However, research supports the thesis that there are numerous cases in which it may be questionable to apply the rationale allowing contract modification due to the occurrence of “unforeseeable” circumstances. The correct interpretation of the CJEU judgment in question is all the more important in view of the above (the author’s research) and in terms of the potential increase in the number of public contracts (associated with the use of European Funds). Modification of a contract covered by EU funding in a manner that is not in compliance with the law may result in a 25% adjustment of the funding received.

Redesigning payments for ecosystem services to increase cost-effectiveness

Payments for Ecosystem Services (PES) are a widely used approach to incentivize conservation efforts such as avoided deforestation. Although PES effectiveness has received significant scholarly attention, how PES design modifications can improve program outcomes is less explored. We present findings from a randomized trial in Mexico that tested whether a PES contract that requires enrollees to enroll all of their forest is more effective than the traditional PES contract that allows them to choose which forest parcels to enroll. The modification’s aim is to prevent landowners from enrolling only parcels they planned to conserve anyway while leaving aside other parcels to deforest. We find that the full-enrollment treatment significantly reduces deforestation compared to the traditional contract (41% less deforestation; p = 0.01). As a result, cost-effectiveness of the PES program quadruples. This result highlights the potential to substantially improve the efficacy of conservation payments through simple contract modifications.

Management Model Using Standardized Contracts and BIM Tools for the Optimization of PPP Projects in Peru

Public–private partnerships (PPPs) are contractual schemes that have relative success in Latin America due to their configuration, where the spirit of the contract lies in an appropriate distribution of risks. This is both the most important and fundamental aspect of this contractual scheme but also the most complex, as it is the main cause of contract modifications (addenda) in countries across the region. In this context, different concessionary contractual frameworks for PPPs on the national road network of Peru were evaluated, revealing common failure indicators that lead to contract modifications within the first six years of the concession. This study offers the development of a management model that includes the good practices of contractual management of NEC4 Option F and the application of BIM information management processes, optimizing the management of infrastructure through emerging technologies of information management supported by agile contractual schemes.

민법 개정안에서 의사표시의 유효성

This article analyzes the main contents of the proposed amendments to the Civil Code suggested by the Civil Code Amendment Committee, which was launched on June 16, 2023, in relation to the validity of declarations of intent from a legislative policy and comparative law perspective. First, the proposed amendments maintain the current law for Articles 107, 108, and 110, except for minor modifications in wording. Next, the proposed amendment to Article 109 on mistakes explicitly includes mistakes regarding the juridical act's necessary basis (Grundlagenirrtum) and mistakes induced by the other party as grounds for avoidance. It also modifies the wording of the essential part requirement to clarify the subjective and objective causal relationships as its meaning. Furthermore, it exceptionally allows avoidance even when the declarant is grossly negligent, provided that the other party is also grossly negligent. These changes reflect both case law and comparative law. However, the proposed amendment does not accept the declarant's liability for damages in case of negligence and leaves the possibility of contract modification in case of mutual mistakes to doctrine and case law. Meanwhile, the newly introduced Article 110-2 recognizes a new ground for avoidance when the declarant makes a declaration of intent under undue interference in their decision-making due to a state of psychological dependence or a close relationship of trust. This rule attempts to introduce the common law doctrine of undue influence and protect the autonomy of intent in a manner equivalent to fraud and duress. The content and direction of the above-mentioned amendments appropriately reflect the current state of our doctrine and case law and align with recent legislative trends from a comparative law perspective.

An Empirical Estimation of NCAA Head Football Coaches Contract Duration

Abstract While previous research on head coach dismissals finds that team performance and managerial characteristics impact employment survival, these studies ignore the impact of contract modifications. Using an accelerated failure time survival model with hand-collected college head football coach contract data, I find that race/ethnicity affects the hazard rate of contract modifications but not the hazard rate of a head coach’s dismissal. Additionally, analysis of employment duration ignoring contract modifications may result in erroneous conclusions with respect to the effect that race/ethnicity has on a head coach’s dismissal.

Some problems of correlation of the categories "contract modification" and "contract termination" with related categories of civil law

Some problems of correlation of the categories "contract modification" and "contract termination" with related categories of civil law

Contractual Limitations of Liability and their Impact on Tort Claims

Abstract By concluding a contract, parties intend to allocate the contractual risk between them. This means that parties must anticipate any future adverse result and determine whether a party will have to cover any loss incurred by the other party as a result of performance or, more often, bad performance. In sales contracts, for example, parties may decide to exclude any liability for defects of goods, especially when selling used goods or for other reasons, or at least to limit liability for some defects or to limit types of possible claims. Similarly, in mergers and acquisitions, parties very strictly determine what is known by the seller in a disclosure letter and give the buyer access to some information in a data room prior to the conclusion of the contract to limit liability to the unknown and the non-disclosed. CA Hill/BJM Quinn/SD Sollomon, Mergers and Acquisitions, Law, Theory, and Practice (2019) 372–403; R Tschäni/H-J Diem/M Wolf (eds), M&A-Transaktionen nach Schweizer Recht (3rd edn 2021) 209–215 (paras 420–431); O Duys/K Henrich in: W Hölters (ed), Handbuch Unternehmenskauf (8th edn 2015) ch 16, paras 16.108–16.116. For each party, much of contractual drafting boils down to limiting risk to the greatest extent possible, or at least to ensure compensation for any risk incurred. If parties are on an equal footing, this may lead to an equitable allocation of risk and a balanced contractual liability regime. Contractual limitations of liability are, therefore, part of this process of adequate allocation of risks. In this contribution, I will briefly address three issues. First, I will look at which principles are applicable to the validity of limitations of contractual liability (I) and then determine to what extent these principles apply to tort claims (II). This will finally lead me to determine whether the Principles of European Tort Law (PETL) need to be supplemented by a further rule dealing with the validity of contractual clauses limiting liability in tort (III).

You Get What You Pay for: An Analysis of Public Contracts for Engineering Services

To understand the effects of bidder’s strategies on contractual modifications, this study utilized econometric methods and a database containing 5,434 engineering service contracts from Brazilian federal government. The results demonstrate the effects arising from the trade-off between the low prices presented in the contractor selection phase and the contractual performance measured by contract modifications. Competition among bidders in a reverse auction with multiple rounds of bid submissions can exacerbate this trade-off, potentially incentivizing risk-taking strategies by bidders. Subsequently, this may lead to the need for contract modifications to facilitate the ongoing execution of the contract.

Why modify or terminate contracts for critical supplies? Evaluating federal purchasing of PPE following COVID-19

Contract managers change contracts to respond to unforeseen events and to improve the likelihood of securing critical supplies. This study employs data from the General Service Administration’s SAM.gov Data Bank on over 8,000 contracts to examine the prevalence, reasons for, and timing of contract modifications and terminations in federal purchasing of personal protective equipment (PPE) in the first year of the COVID-19 public health crisis. Results show that modifications that transform transactional contracts to more collaborative designs were utilized for some of the highest-risk contracts and were associated with increased obligations, indicating that collaborative designs led to more purchasing of PPE. Competitive selection increased the likelihood of termination, the rate at which terminations occurred, and deobligations, indicating that the approach increased the costs of administration without improving the likelihood of securing supplies. A substantial portion of modifications and terminations occurred within the first forty days of delivery, revealing how contract management capacity was needed in the early stages of critical supply acquisition.

Managing Seller Conduct in Online Marketplaces and Platform Most‐Favored Nation Clauses*

This article investigates the incentive and ability of a platform to limit the extent of competition between the sellers it hosts. Absent contractual restrictions, a platform has an incentive to ensure competition between the sellers. This incentive can change with the introduction of so‐called platform most‐favored nation clauses (PMFN) that require the online sellers not to offer better conditions on other distribution channels. Such clauses can align the interests between sellers and platforms to restrict competition. I illustrate that a platform can stabilize seller collusion to its own benefit. These results offer a novel rationale to treat PMFNs with scrutiny.

Harship Doctrine Regarding Fulfillment of the Performance of an Agreement

<em>In contract law, performance fulfillment is a fundamental principle. However, in practice, unforeseen changes in circumstances can disrupt performance fulfillment. To address this, the doctrine of hardship is necessary to create a balance between performance fulfillment and unforeseen changes in circumstances. The aim of this research is to analyze the concept of the hardship doctrine in contract law and identify its impact on the interpretation and performance of contracts, as well as the protection of rights and fairness for parties bound by contractual agreements. The research method used is normative research method with a focus on analyzing the legal regulations that govern the hardship doctrine. The data sources include legal texts, regulations, court decisions, and relevant legal expert opinions, along with techniques such as legal document analysis, comparison, and drawing conclusions to generate a comprehensive understanding. In contract law, the hardship doctrine refers to the concept of unforeseen changes in circumstances significantly affecting contract performance. This doctrine allows parties to request contract modifications or terminations in situations that are no longer fair or feasible. It also impacts contract interpretation, as courts determine whether the changed circumstances meet the criteria for activating the doctrine. Although not fully regulated in Indonesian legislation, the Civil Code provides relevant legal grounds. It is important for contracting parties to understand the implications of the hardship doctrine and consider its inclusion in their agreements. The doctrine plays a crucial role in protecting the rights and ensuring fairness to parties bound by contractual agreements in Indonesia. It provides protection, flexibility, and considerations for social impact and public interests. However, its use should be limited, meet strict requirements, and align with applicable laws. Therefore, the hardship doctrine serves as an essential tool to maintain balance and justice in contract performance when used carefully and in compliance with relevant conditions. </em>

Navigating contract renegotiations with sustainability at the helm: Societal benefits and transaction costs

Public procurement and cross-sector collaborations in national economies offer the opportunity for advances in sustainability practices, including through sustainability-related renegotiations during the execution of public contracts. Using rich, granular data from contract modification notices made publicly available by the European Union (EU) tenders electronic daily (TED), we investigate whether sustainability-related renegotiations, apart from generating positive environmental externalities, also limit ex-post transaction costs associated with contract renegotiations. Transaction costs are assessed in our study by the sentiment of renegotiations (negative or conflictual) and potential red flags associated with overly costly adjustments. Our findings suggest that regardless of whether contracts were initially focused on sustainable issues or not, sustainability-related renegotiations could have the dual benefit of a priori reducing environmental externalities while further limiting ex-post transaction costs associated with contract execution. More generally, contract modifications (renegotiations) may be under-utilised in public procurement contracts given their possible ‘double dividends’.

To what extent can smart contracts replace traditional contracts in construction project?

PurposeThe smart contract provides an opportunity to improve existing contract management practices in the construction projects by replacing traditional contracts. However, translating the contracts into computer languages is considered a major challenge which has not been investigated. Thus, it is necessary to: (1) identify the obstructing clauses in real-world contracts; and (2) analyze the replacement's technical and economic feasibility. This paper aims to discuss the aforementioned objectives.Design/methodology/approachThis study identified the flexibility clauses of traditional contracts and their corresponding functions through inductive content analysis with representative standard contracts as materials. Through a speculative analysis in accordance to design science paradigm and new institutional economics, the economic and technical feasibility of existing approaches, including enumeration method, fuzzy algorithm, rough sets theory, machine learning and artificial intelligence, to transform respective clauses (functions) into executable codes are analyzed.FindingsThe clauses of semantic flexibility and structural flexibility are identified from the contracts. The transformation of semantic flexibility is economically and/or technically infeasible with existing methods and materials. But with more data as materials and methods of rough sets or machine learning, the transformation can be feasible. The transformation of structural flexibility is technically possible however economically unacceptable.Practical implicationsGiven smart contracts' inability to provide the required flexibility for construction projects, smart contracts will be more effective in less relational contracts. For construction contracts, the combination of smart contracts and traditional contracts is recommended. In the long run, with the sharing or trading of data in the industry level and the integration of machine learning or artificial intelligence reducing relevant costs, the automation of contract management can be achieved.Originality/valueThis study contributes to the understanding of the smart contract's limitations in industry scenarios and its role in construction project management.

Two-dimensional forward and backward transition rates

Forward transition rates were originally introduced with the aim to evaluate life insurance liabilities market-consistently. While this idea turned out to have its limitations, recent literature repurposes forward transition rates as a tool for avoiding Markov assumptions in the calculation of life insurance reserves. While life insurance reserves are some form of conditional first-order moments, the calculation of conditional second-order moments needs an extension of the forward transition rate concept from one dimension to two dimensions. Two-dimensional forward transition rates are also needed for the calculation of path-dependent life insurance cash-flows as they occur upon contract modifications. Forward transition rates are designed for doing prospective calculations, and by a time-symmetric definition of so-called backward transition rates one can do retrospective calculations.

Methods for addressing variable turbine operations during wind farm noise compliance monitoring

Post-construction wind farm noise measurements at dwelling locations are commonly required in Australia to verify compliance with regulatory and contractual noise limits. These measurements are often required as soon as the wind farm has begun operating. However, commissioning issues and electricity network restrictions are a common occurrence during the initial stages of operation. Large wind farm projects are also commonly commissioned in stages. As a result, curtailed modes of operation and shutdowns are a regular occurrence, and large sections of a wind farm may only be operating intermittently. This presents challenges to obtaining noise measurement data that is representative of normal operation of the wind farm and may ultimately limit the conclusions that are able to be reached from measurements during the early stages of operation. To address these challenges, it is necessary to identify and account for any periods when operational noise levels may be lower as a result of turbines being curtailed or shut down. Several methods have been developed for this purpose, and range from simple procedures that remove any data affected by curtailment or shutdown, through to more complex assessments of the magnitude and implications of the uncertainty introduced by variable wind turbine operations. These methods are presented and assessed in this paper with case studies of their application to operational projects.

Rebuilding the social function of contracts

The social function is one of the most instigating principles in contractual relations. In the social function, contractual limits become more fluid, in order to conform to social needs and expectations. With the new regulation of private relations, arising from the Economic Freedom Law (Law act 13.874/19), the economic characteristics of the social function, already covered in the Brazilian Federal Constitution of 1988, gained special importance. This study seeks to demonstrate how the individual and the social aspects need to work together in the new universe of private relations.

Multicounty fuel constraint‐based dynamic economic dispatch problem using horse herd optimization

AbstractDue to the diminution of fossil fuels, the profitable usage of fuel for the generation of power is reducing. It is an extremely vital concern for power generation companies. The fossil fuel‐based power plant must operate within its fuel limits and contractual restrictions. Therefore, economic optimization is required to optimize the fuel cost for generation under fuel constraints. To address this issue, in this work, a horse herd optimization algorithm (HOA) is developed to solve multicounty fuel‐constrained dynamic economic dispatch with demand‐side management incorporating wind turbine generators, solar photovoltaic plants, and pumped hydro storage plants. The efficiency of the suggested HOA algorithm has been revealed on a selected test system. The HOA technique shows better convergence as compared with the other methods. Moreover, the computation time requirement of the HOA technique is also lower than that of other compared methods. From numerical results, it is observed that the consumption of fuel is sufficiently high if constraints are incorporated into the problem. Simulation results are matched up to those obtained from hierarchical particle swarm optimization with time‐varying acceleration coefficients, fast convergence evolutionary programming, and differential evolution. After comparison, it is observed that the recommended HOA offers a better‐quality solution.

NEURIM PHARMACEUTICALS (1991) LTD v GENERICS (UK) LTD

H1 Patents — European patents — Pharmaceuticals — Insomnia treatments — Melatonin — Exclusive licences — Contractual construction — Exclusivity in relation to part of a claim — Effect of contractual restrictions on entitlement to sue — Costs — Barrell jurisdiction — Concurrent proceedings before EPO — Patent held invalid by the EPO Opposition Division — European Patent (UK) held valid by Patents Court — Consequentials order made but not formally drawn up — Appeal to EPO Technical Board of Appeal withdrawn by patentee two days after consequentials order hearing — Patent treated as invalid ab initio — Appeal to Court of Appeal

A Systematic Comparison between the Ethereum and Hyperledger Fabric Blockchain Platforms for Attribute-Based Access Control in Smart Home IoT Environments.

Despite the lack of blockchain systems being utilized in modern IoT environments, the prevalence of blockchain technology is increasing, due to its high level of security and accountability. The integration of blockchain technology and access control in a decentralized system for smart home networks is a promising solution to this issue. This paper compares the implementation of attribute-based access control (ABAC) with two popular blockchain platforms, Ethereum and Hyperledger Fabric, for a smart home internet of things (IoT) environment. We present a comprehensive summary of access-control and blockchain-access-control methods, to provide the necessary background for this study. Additionally, we present an original ABAC smart contract for Ethereum, and the modification of a pre-existing Hyperledger Fabric ABAC smart contract, for this comparison. Through the simulation of both implementations, the advantages and limitations will be considered, to determine which is better suited for a smart home IoT environment.

The Improvement of Service Quality in Prefabricated Steel Structure Construction Process

The purpose of this study is to investigate customers’ perceptions of service quality and to present guidelines for improving services in prefabricated steel structure management. The researchers use qualitative research by in-depth interview as a data collection method. Twenty customers in Bangkok who had used the service in the construction of prefabricated steel structures were the key informants. The results showed that in developing the service quality of the steel building structure business, the management had to improve the entire process in three stages, which are as follows: 1) the pre-service stage consists of providing tender document and contract and design ability for prefabricated steel structures; 2) the in-service stage consists of contract and design modifications, time management, resources management, ability to monitor the construction process, team management, and safety management ; 3) the post-service stage consists of success in service activities and success in financial and monitoring management. This three-step process improvement increased customer satisfaction in the present and would persuade potential customers to choose to use the services.