Contractual Parties Research Articles

Current Issues of Cryopreservation and Storage of Human Reproductive Biomaterial

With the development of assisted reproductive technologies (ART), contracts covering cryopreservation and the storage of germ cells, as well reproductive organ tissues and embryos are beginning to find wide practical application. Parties to such contracts are faced with questions not currently set out in the current legislation of the Russian Federation. This aim of this article is to identify legal models capable of resolving the most pressing issues arising from these contracts. It is proposed that the following types of biomaterial be reviewed as a continuation of the human body: reproductive biomaterial extracted from the human body in the aims of subsequent reintroduction, and capable of fulfilling that biological function for which it is designated; as well as material aimed at restoration or improvement of organ function. Any intervention upon such biomaterial should be qualified as intervention upon human health. Thus any medical organization found to be in violation of its obligation to preserve health must compensate for any damage caused to a patient’s reproductive health - as set out in the rules of chapter 59 of the Civil Code of the Russian Federation. The author suggests the notion of “abandoned biomaterial” be incorporated in Russian legislation. “Abandoned biomaterial” presupposes the termination of the rights of a person to this biomaterial and enables the medical organization, while ensuring its preservation, to utilize such biomaterial or to use it for research purposes. This would ensure the protection of human rights and legitimate the interests of the contracting party in the event of any violation of the terms of the contract by the client. The author also proposes legal models for the resolution of conflicts related to the plurality of contractual parties, as well as to postmortem human reproduction.

The Dispute over the Geographical Application of the Svalbard Treaty: Into a New Phase, An Essay in Honor of Ted L. McDorman

Under the 1920 Treaty concerning the archipelago of Spitsbergen (Svalbard Treaty), the contracting parties recognize the full and absolute sovereignty of Norway over the archipelago. The sovereignty is to be exercised subject to the stipulations of the Treaty, which include equal rights of the contracting parties to fish and hunt on the territory of Spitsbergen and its territorial waters. Consistent with the developments of the law of the sea, Norway has claimed sovereign rights over the continental shelf and established 200 nautical miles (NM) zones off its coast, including Svalbard. Norway established a 200 NM Fisheries Protection Zone off the coast of Svalbard. Several contracting parties claim that the equal rights under the Svalbard Treaty are applicable in the maritime zones claimed or established after 1920. This is disputed by Norway by referring to the wording of the Treaty, which stipulates that it is applicable within the 12-NM territorial waters. Owners and captains of vessels flagged in other contracting parties have protested and argued that the arrest and prosecution for illegal fishing in the 200-NM zone off Svalbard violated their equal rights of fishing. The Court had not addressed the question of the applicability of the Treaty provisions until 2023. In a civil case before the Supreme Court, a Latvian shipowning company argued that the snow crab regulations on the continental shelf in the Barents Sea were void as they violated the equal rights of contracting parties under the Svalbard Treaty to fish on the continental shelf. The Supreme Court concluded that the treaty provisions were not applicable beyond the 12-NM territorial sea of the archipelago. An attempt by the same company at international litigation through investment arbitration was also unsuccessful. As the dispute issue is settled within the Norwegian legal system, the dispute enters into a new phase.

PROBATION PERIOD IN THE INDIVIDUAL LABOR CONTRACT. THEORETICAL AND PRACTICAL ASPECTS

To check the skills of the employee, at the conclusion of the individual employment contract for an indefinite period, a probation period of no more than 90 calendar days may be established for the execution functions and no more than 120 calendar days for management positions. The probation period is, as a rule, optional, in the individual employment contract and is stipulated in the form of a contract clause. There are a number of important advantages in this way of checking the skills of the employee, which is why in practice it is frequently used by the parties of the individual employment contract. This study aims to analyse this specific clause of the individual employment contract and its impact on both sides of the individual employment contract, as well as the controversial aspects of judicial practice regarding the probation period

Multi-objective optimal allocation of construction project risks, ant colony optimization algorithm

PurposeThe purpose of this paper is to introduce a new approach for finding the most appropriate risk allocation among construction contract parties. Although risk allocation is a strategic decision that can greatly affect the cost and time of the project, it is often made based on the personal judgments of employers. That is why owners usually find it a very time-consuming and expensive decision process, while most contractors feel that risk sharing is not done fairly. In this paper, a quantitative model for risk allocation is introduced to fulfill clients’ conflicting expectations in the risk allocation process.Design/methodology/approachBy defining conflicting expectation of owners in the form of three quantitative objectives (lowest cost, maximum reliability and minimum risk exposure), a multi-objective optimization algorithm was developed to select the most appropriate risk allocation. Using experts’ knowledge through fuzzy set theory, a multi-objective decision-making model is developed based on an ant colony optimization algorithm. The proposed model is able to find the optimum risk allocation at the lowest cost and highest reliability while protecting the client against risk exposure within multiple parties projects.FindingsThe proposed model has the ability to select the most appropriate risk allocation in multi-parties projects (such as public–private partnerships) and quantitatively measure the impact of each employer’s choice on project results in the form of cost and time. The results of implementing the proposed model in a case study project revealed that optimum risk allocation requires a balanced attitude, and the transfer of all risks to the other parties will not necessarily lead to the lowest cost. The client should bear more responsibilities in risk management to avoid extreme time delay and cost overrun.Research limitations/implicationsThe proposed model can be implemented in multi-parties projects (such as public–private partnership), while other methods introduced in previous studies can only be used for projects with two party (client and contractor).Practical implicationsBy implementing the proposed model in a real project in this article and comparing its results with previous works, it has been shown that the proposed model has a good performance. Using this model can help clients drastically reduce cost and time and ultimately successfully conclude risk allocation negotiations (which is the most difficult part of any contract negotiation).Originality/valueIn this paper, the risk allocation process is modeled in the form of a multi-objective decision problem. This method helps employers to measure their conflicting goals and choose the most appropriate risk allocation according to their objectives. Also, in this article, the conflicting expectations of the employer in the process of contract negotiations are introduced as three measurable goals, which gives the decision-maker the ability to balance his expectations and not miss an objective. In the final step, an optimization model is developed to select the best option, which can choose the most appropriate party to bear the risk in a short time and among an unlimited number of participants.

The social contract theory meets cybersecurity: systematic literature review

Purpose This study aims to provide a comprehensive overview of social contract theory (SCT) utilization in cybersecurity literature, elucidating the current state of research, identifying major applications and themes and highlighting gaps, particularly in empirical studies, and the integration of emerging technologies. The study also maps the contractual parties and governance tools discussed in SCT and cyberspace interactions. Design/methodology/approach This study uses a systematic literature review to investigate the application of SCT within the cybersecurity domain. Using a mixed-methods approach that combines quantitative and qualitative content analysis with the Grounded Theory strategy, over 30,000 documents were initially screened. The final data set comprised 873 peer-reviewed papers from multiple databases. MAXQDA software facilitated coding and thematic analysis to identify key SCT applications, governance tools and research gaps. Findings The review revealed the following: emerging technologies such as artificial intelligence (AI) and blockchain are sparsely researched within the SCT-cyberspace intersection, yet they offer solutions to various SCT-related issues; empirical studies are underrepresented, with theoretical explorations dominating the discourse; there is a notable gap in integrating emerging technologies such as AI within SCT frameworks; governance tools discussed are varied, including economic incentives, regulatory measures and informational strategies. Originality/value This study synthesizes SCT applications in cybersecurity, highlighting the interdisciplinary nature and potential for richer theoretical integration. By systematically mapping the literature, it identifies crucial gaps and offers a foundation for future empirical and theoretical research. The findings emphasize the importance of considering traditional SCT themes and contemporary technological contexts, contributing to the development of more robust frameworks for cyberspace governance.

Islamic Law Review of the Principle of Freedom of Contract in Murabahah Contracts

In the banking world there is a tendency for standard contracts, in the form of contracts that have previously been determined and determined unilaterally in terms of the content and form of the contract with the intention of being addressed to the public with the same clauses, are continuous and are usually printed and detailed and cannot be negotiated. Likewise, what applies to Bank Aceh Syariah, the contents of the contract are deliberately left blank to give the customer the opportunity to negotiate and are filled in after an agreement is reached. This kind of contract limits the customer and does not provide a balanced position for either party, who basically has the same opportunity to determine what is desired in the contract. The application of the principles of al-hurriyah, fairness and balance between parties in contracts has been limited in banking. For this reason, this writing aims to find out how the process of making a murâbahah contract/agreement is, the position of the customer and the Aceh Syariah bank in formulating the murâbahah contract and the application of the principle of freedom of contract in the process of making the murâbahah contract according to a review of Islamic law at PT. Bank Aceh Syariah Sub-Branch of UIN Ar-Raniry Banda Aceh. This research is categorized as qualitative research based on data collection methods through Library Research and field research. Based on the studies that have been carried out, the results show that the process of making a murabahah contract/agreement at PT. Bank Aceh Syariah does not fully involve the customer, the customer only has the opportunity to read the contract which has been fully prepared by the bank, so that the position of the customer and the bank is not equal. The bank is in a stronger position and can unilaterally determine the contents of the contractual clauses agreed upon, while the customer is in a weak position and must accept all the contents of the clauses that have been determined by the bank. A position like this shows that the principles of freedom, justice and balance in contracts cannot be fully applied in the process of making murabahah contracts/agreements at PT. Bank Aceh Syariah Capem. UIN Ar-Raniry Banda Aceh.

Discourse on Consumer Legal Protection on The Inclusion of Exoneration Clauses (Standardised Contract) In An Agreement

The purpose of this study is to find out whether the standard agreement reflects the principle of freedom of contract in an agreement and the form of legal protection against the inclusion of the standard clause in an agreement. The results of this study indicate that the application of the standard clause in an agreement does not reflect and does not realize the principle of full freedom of contract, because the consumer has only the freedom to decide whether he makes a contract or not and the freedom to vote with whom he will make the agreement. While the debtor has absolutely no freedom to make agreements on the substance of the treaty, the contents of the agreement, the form of agreement and the manner of making the agreement and the protection of the law in the inclusion of the standard clause is set forth in article 18 of the consumer protection legislation regarding the ban on the inclusion of the standard clause. However, if in the implementation of the standard agreement there is a difference of interpretation of the standard contract formulation made by the parties then one of the legal efforts that can be done to become a defense fortress or legal protection to the consumer so that in the implementation of the standard agreement does not incriminate one party in contract, especially the consumer Then the standard contract formulation shall use the interpretation of an impartial agreement to the standard contractor.

주택임대차보호법상 법적 쟁점과 개선 방안에 대한 소고

While a lease contract is a civil relationship between private parties, the importance of residential stability, the unique characteristics of the domestic housing market, and the protection of tenants necessitate state intervention based on the special law of the Civil Code, the Housing Lease Protection Act. The original Housing Lease Protection Act was primarily focused on protecting the lease deposit, considering the social conditions at the time of its enactment. However, it has been gradually amended to stabilize the housing market and preserve the foundation of the national economy. Recently, the law has evolved to include the introduction of the right to request contract renewal and the regulation of rent increase limits. Nevertheless, during this process, issues of fairness have continuously arisen, particularly concerning whether reasonable protection is provided to both parties of the lease contract, the tenant and the landlord. There is ongoing debate about whether the emphasis on tenant protection infringes on the landlord’s fundamental property rights. Additionally, the achievement of the Housing Lease Protection Act’s fundamental objective of ensuring the stability of the tenant’s living environment remains uncertain, and there are concerns that landlords’ rights are ambiguously restricted. This underscores the need for review and reassessment. One of the main amendments to the Housing Lease Protection Act is the extension of the lease contract duration due to the tenant’s right to request renewal. While this aims to provide stability to the tenant’s living situation in the short term, it is questionable whether it benefits tenants in the long term, especially when considered alongside other tenant protection measures such as the rent cap system. Moreover, the ambiguity surrounding the landlord’s right to refuse renewal based on “actual residence” does not enhance legal stability for either party. Therefore, it is crucial to establish clear and specific standards.

Are we even close? Five years marine litter ingestion monitoring in loggerhead turtles along Italian coast reveals how far we are from the Good Environmental Status

The loggerhead sea turtle Caretta caretta has been chosen as bioindicator to monitor the amount of litter ingested by marine animals within the European Marine Strategy Framework Directive and the Barcelona Regional Sea Convention. European Member States and Contracting Parties are committed to achieve the Good Environmental Status (GES), which is reached when the quantity of ingested litter does not adversely affect the health of the species concerned. Although the monitoring strategy has been outlined for more than a decade, to date no threshold values have been adopted to verify GES achievement. After five years of extensive monitoring along the Italian coasts, this study evaluates the suitability of five different GES scenarios and proposes a new threshold value (i.e., “there should be less than 33% of sea turtles having more than 0.05 g of ingested plastic in the GI”) for its implementation in the European seas and the Mediterranean basin.

The Hybridization of the Regulatory Framework of Insurance Contract Law: Elements of a New Setting

This article aims to highlight the phenomenon of hybridization of insurance contract law, which started with its emancipation from contract law. The next phase included its internal stratification, stemming from obvious differences between commercial and consumer insurance, and various contractual positions of contracting parties in these different insurance contracts. Two features of insurance contracts regulation are addressed, based on Serbian law as it currently stands, as well as comparative legal analysis. The first feature is that the legislatively envisaged unified regime for insurance contracts is incomplete and inadequate for all manifestations of this contract. The second feature is that regulation of this matter must enable balancing of interests between insurers and insureds, especially consumers. The authors conclude that insurance regulation can only be conducive when simultaneously ensuring protection of the weaker party, protecting insurers from the negligent actions of the insured, while facilitating conduct of insurance business.

Обмежені речові права на земельні ділянки сільськогосподарського призначення: стан і перспективи

The article is dedicated to the realization of limited property rights to agricultural land plots. The author thoroughly examines the regulatory and legal framework of this issue and its doctrinal elaboration. The problematic aspects related to the realization of limited property rights are highlighted. It is noted that the current legislation lacks a clear definition of “limited property rights,” but such a concept may emerge during the update of civil legislation. The scientific literature presents a moderate view on the legal nature of limited property rights, necessitating a summary of different perspectives. The author’s proactive proposals for amending the current legislation are a significant step towards eliminating the existing gaps and ensuring legal certainty in the regulation of the relevant relations. The author also establishes that in today’s environment, the variability of property rights in terms of their content comes to the fore, which calls into question the absolute nature of these rights. This circumstance necessitates a study of an actual contract or a dispositive transaction, given that they (these rights) may be the objects of such contracts or transactions, and this requires the development of a universal contractual basis for the establishment of property rights. It is proposed that within the framework of recodification of civil legislation and considering the peculiarities of the national legal system and the specifics of national legislation, it is possible to consider the introduction of such a structure since this will ensure an inevitable unification of national legislation with EU legislation. In this study, the author used legal analysis and synthesis, systemic and structural, and comparative legal and formal logical methods to analyse the relevant legislation and doctrine and propose amendments to civil legislation. Keywords: freedom of will of the parties to the employment contract; change of employment contract, employee, employer, labor relations, work, labor contract, parties of labor contract, transfer, transfer, change of essential working conditions, right to work.

Legal Consequences in Murabahah Agreement Litigation Dispute Resolution: Analysis of Forum Choice Clauses in District Courts

The development of Islamic banking in Indonesia, with the Murabahah financing contract dominating, is not free from disputes among the parties involved. Dispute resolution can be settled out of court (non-litigation), one of which can be through the National Sharia Arbitration Board (Basyarnas) and through the Religious Courts (litigation). Legislation has regulated the absolute authority of the institution responsible for litigation dispute resolution through Article 49 letter (i) of Law Number 3 of 2006, as amended in Law Number 50 of 2009 Regarding the Second Amendment of Law Number 7 of 1989 and Article 55 paragraph (1) of Law Number 21 of 2008 Regarding Islamic Banking, namely the Religious Court. A conflict of norms appears in the Murabahah financing contract, which still includes a clause for dispute resolution litigation in the District Court. This raises the first issue formulation regarding what the legal consequences are for the parties in the Murabahah financing contract with the choice of forum clause in the District Court when resolving litigation disputes and what choice of forum clause is stipulated in the Murabahah financing contract to provide a balanced position for the parties when resolving litigation disputes.

Neutralising the ECT Sunset Clause Inter Se

Abstract Following a wave of announcements from major EU Member States withdrawing or considering withdrawing from the Energy Charter Treaty (ECT), the European Commission decided to recommend a coordinated withdrawal of the EU and its Member States from the ECT. The European Commission also backs the adoption of a ‘subsequent agreement on the interpretation of the ECT’ between the EU and its Member States that would ‘clarify’ that the ECT and its sunset clause do not apply intra-EU. The sunset clause contained in Article 47(3) of the ECT has been described as a major hurdle in States’ attempt to exit the ECT. However, under an international treaty law analysis, strong arguments confirm the availability of an agreement between a subset of ECT Contracting Parties that would exclude the application of the ECT and its sunset clause in their relations inter se—including the envisaged EU agreement—as a suitable and effective alternative to modernisation of the ECT. Not only does this appear as the most desirable outcome in view of the continuing protection of fossil fuels under the modernised ECT, but such an agreement would also be firmly grounded in public international law.

Global Impact of Breach of Good Faith in Insurance Contracts

This study explores the principle of utmost good faith (itikad baik) in insurance contracts, which mandates full and honest disclosure by all parties to prevent agreement nullification. Despite its critical importance, the enforcement and consequences of breaches are poorly documented, particularly regarding legal outcomes and claims processes. Through normative legal research utilizing primary and secondary sources, this research examines the implications of such breaches and suggests regulatory enhancements. Key findings indicate breaches can lead to contract cancellation, claim denial, or legal actions. The study highlights the necessity of regulatory improvements and increased notarial involvement to ensure equitable and transparent insurance practices. Highlights: Critical Role of Disclosure: Utmost good faith requires complete honesty from all parties in insurance contracts. Consequences of Breach: Violations can lead to severe outcomes like contract termination and denied claims. Need for Regulation: Suggests stronger legal frameworks and notarial oversight to ensure fairness and transparency. Keywords: Utmost Good Faith, Insurance Contracts, Legal Implications, Regulatory Enhancements, Notarial Involvement

A Study on Reconstructing the Mechanism of Insurance Beneficiary: Based on the“Trinity”Theory of Contractual Parties

A Study on Reconstructing the Mechanism of Insurance Beneficiary: Based on the“Trinity”Theory of Contractual Parties

Editorial Wetlands for human well-being

Editorial Wetlands for human well-being

Promoting sustainable policy in construction: Reducing greenhouse gas emissions through performance-variation based contract clauses

With the growing global concern about construction industry emissions, a potentially useful approach to reduce such emissions could be to obligate the contractual parties to establish emissions-related construction contract provisions. Unfortunately, implementation of such initiatives has been limited in the practice. This study is motivated by the realization from previous studies that it is feasible to use contract clauses to regulate contractor use of equipment in a manner that reduces emissions and that there exist opportunities to establish frameworks that could facilitate implementation. In this paper, a framework is developed for designing and evaluating a green-performance variation clause. The framework involves a model whose objective is to maximize the net present value (NPV) by minimizing greenhouse gas emissions from the contractor's equipment fleet. The model addresses the uncertainties associated with the analysis inputs using Monte Carlo simulation, and the model outcomes are the probabilities of a positive NPV of emissions associated with the Owner and the contractor separately. The framework is demonstrated using a case study in road construction. The case study results yielded the following probabilities that a positive NPV for each of the two parties: 52% and 70% for the Owner and the contractor, respectively. This result suggests that using the developed framework, contract clauses can be designed at the pre-procurement phase to promote mutual and voluntary adoption of emissions-reducing practices at the subsequent phase (construction) of road development. This is shown to yield outcomes that are attractive (thereby, encouraging obligated parties to pursue emissions reduction) and the attractiveness is consistent across the parties. The proposed framework, which is consistent with green contracting, can generally help promote sustainability-related goals and outcomes related to construction projects.

CVA with wrong-way risk and correlation between defaults: An application to an interest rate swap

This paper presents a counterparty credit risk adjustment model to value over-the-counter financial derivatives. To do so, a bilateral credit valuation adjustment with wrong-way risk (WWR) and dependency between the defaults of both contract parties is developed in line with the Hull-White model (2012), which calculates default probabilities using a hazard rate modelled as an exponential function dependent on the value of the derivative. The model proposed incorporates a modified hazard rate for each entity, which includes the company’s own exposure to credit risk attributable to the other entity’s default. By so doing, a correlation between the respective defaults of the entities party to the financial derivative is added. The model developed is also applied to obtain the fair value of an interest rate swap and the results obtained, using Monte Carlo simulation, demonstrate that the value of this swap adjusted to the credit risk falls when the dependency between the entities’ defaults is considered.

Decision Analysis to Find Best Solution of Operation and Maintenance Management System in Central Processing Plant (CPP) Gundih Using The SMART Method at PT. Pertamina EP

Central Processing Plant (CPP) Gundih is a gas field owned by PT. Pertamina EP Cepu Field area which is located in Blora Regency, Central Java. The gas produced by the CPP Gundih is channelled to the Tambak Lorok Gas and Steam Power Plant (PLTGU) with a capacity of 1,469MW in the Semarang City area, Central Java. Therefore, the CPP Gundih is a vital national object that supports national energy security, especially for the Central Java area. CPP Gundih first operated in 2013 with the operation and maintenance management system being fully handled by a third party with a contract term of one decade. In the coming year, the contract system will approach the end of the collaboration so that PT. Pertamina EP needs more efficient management schemes and strategies and more agile business processes. In the past decade, there have been several evaluations that have become a concern for companies in implementing contract systems with third parties. These obstacles mean that several aspects are not managed well and result in problems that reduce the level of customer satisfaction, decrease profits, and increase operational and maintenance costs. So that PT. Pertamina EP is considering several options for better management of the CPP Gundih in the future, namely the option of detailing third party contracts in the future, the option of transferring management by PT. Pertamina EP partially, full management transfer option by PT. Pertamina EP without any third-party involvement. From several proposed options, the author will use the Simple Multi Attribute Rating Technique (SMART) method to select the best option by considering aspects of Cost, Durability and Plant Availability, Manpower Competency Management, Remuneration, Communication Flow, and Integrated Work Procedure. The research results obtained from this method will become a reference for the PT management team. Pertamina EP for decision making related to the operation and maintenance implementation system at the Central Processing Plant (CPP) Gundih gas field.

A Study on the Compensation for Mental Damage in the Breach of Personhood Property Contracts

The personhood property are not only the carriers of personality interests, but also an important manifestation of personality interests. The protection of personhood property is a key issue that the law needs to pay attention to. In recent years, contracts with personal property as the subject matter of contracts have become increasingly common, and the resulting breach of contract requires legal regulation. Article 996 of the Civil Code confirms China's compensation system for breach of contract mental damages, but stipulates that the damage to personality rights is a prerequisite for compensation for breach of contract mental damages. There is no provision for compensation for breach of contract mental damages in personal property contracts, resulting in different judicial standards for compensation for breach of contract mental damages in judicial practice, and the phenomenon of different judgments in the same case is common, The non breaching party in a personal property contract is unable to receive timely and effective judicial remedies, which is not conducive to the protection of the personal interests of the rights holders in reality. Based on this, this article takes the breach of personal property contracts as the starting point, combined with specific cases in judicial practice, to conduct in-depth analysis and propose improvement suggestions for the current problems of unclear standards for identifying personal property, lack of legal provisions for compensation for mental damages caused by breach of personal property contracts, and unclear reference standards for compensation for mental damages caused by breach of contract. The aim is to enable the parties who suffer losses in personal property contracts to receive corresponding compensation for mental damages, Strengthen the protection of personal property rights and the interests of everyone.