Contract Rules Research Articles

The Policies against Leapfrogging in Unjust Enrichment: A Critical Assessment

This article critically examines the merit of the policy reasons against leapfrogging one's contractual counterparty in unjust enrichment. Where the benefit of a performance, which is rendered by someone (C) pursuant to a contract with his counterparty (T), ends up with someone (D) who is not a party to that contract, will the law of unjust enrichment then allow the performer (C) to recover that benefit directly from its recipient (D)? The utility of allowing the leapfrog arises where recovery by C from T under general rules of contract becomes impossible (mainly) due to the insolvency of T. The most important policy reasons brought forward against leapfrogging are insolvency-related. These policy reasons are assessed in this article with reference to Dutch and English cases in particular. In past decades the comparative approach has proven to be extremely fruitful for unjust enrichment. As I hope to illustrate with this contribution, also after ‘Brexit’ it will continue to be important and exciting to examine legal problems on a comparative basis in common law and civil law (and mixed) jurisdictions.

International Legal Rules for Adjudicating Matters of State Contracts ('State Contract Rules'). Informal Reflection on Public International Law in Its Current Development Phase

Rules pertaining to State contracts is the most intricate part of public international law dealing with foreign investors. While earlier this branch predominantly focused on safeguarding interests of foreign business, the attitude of international commercial community has evolved. Still, the major focus on committing the State to honor its voluntary contractual undertakings throughout the business project's life is maintained. At the same time, nowadays Tribunals tend to refer to various subsets of sustainable business environment principles when assessing implications of changed Government policies, conduct of the Investor, or workings of International Governmental Organizations. This paper aims to be the first codified set of modern public international rules regarding full plethora of major issues regarding State contracts. Especially, it gives position on such issues commonly facing Tribunals as: hierarchy of applicable laws to a State contract; conflict between terms of a State contract and EU law; whether defenses of force majeure and similar tools are applicable to State contracts at all (with regard to a Host State); or - when hardship has occurred and Parties are obliged to renegotiate terms of the deal. It is frequently forgotten (even by reputable Arbitrators) that, in the first half of the 20th century, when protection of State contracts was developing as a specific subset of public international law, the whole system was implicitly based on assumption that a Home State of the Investor permits direct dealing by the Host State with Investor only on condition as if the direct international bond existed between the two States regarding the agreed rules for operation of business of the Investor in the Host State. In other words, intention was to avoid opportunistic behavior on part of the Host State (that could formally cite changes in its laws - or impetus from international organizations - as ground for deviation from the contract). There are Tribunals committing a grand mistake of letting political factors influence their decisions - while it is true that, especially lately, international scene has witnessed various high level misuses of corporate power and links (and so, one shall be careful enough to properly assess each case), Tribunals shall persistently maintain a realistically juristic attitude rather than making politics or becoming popular with States (in terms of, potentially securing appointments as arbitrators in further proceedings). Of course, there are more and more known or publicized instances when Investor has been so exploitively, speculatively, or grossly negligently keen to secure the deal that it would run contrary to basic tenets of international justice to protect its interests, when later the deal brakes off and various risks turn against the Investor. But, for a proper and comprehensive assessment of peculiarities of each case, Tribunal would much benefit from existence of codified rules and guidance, such as put forward in this Paper. As a final note, these Codified Rules have been amalgamated from workings of both (i) Tribunals specifically formed under State contracts, or bilateral or multilateral investment protection treaties (including, the Energy Charter Treaty), and (ii) general international courts and tribunals (including, International Court of Justice and Permanent Court of International Arbitration). The latter referred general courts are an extremely useful source for inspirations concerning efficient and progressive adjudication of modern complex international relations.

Advanced chance-constrained predictive control for the efficient energy management of renewable power systems

This study presents a complete advanced control structure aimed at the optimal and most efficient energy management for a Grid-Connected Hybrid Power plant. This control scheme is composed of process supervision and process control layers, and it is a possible technology to enable improvements in the energy consumption of industrial systems subject to constraints and process demands. The proposed structure consists of the combination of a Model-Based Predictive Controller, formulated within the Chance Constraints framework to deal with stochastic disturbances (renewable sources, as solar irradiance), an optimal finite-state machine decision system and the use of disturbance estimation techniques for the prediction of renewable sources. The predictive controller uses feedforward compensation of estimated future disturbances, obtained by the use of Nonlinear Auto-Regressive Neural Networks with time delays. The proposed controller aims to perform the management of which energy system to use and to decide where to store energy between multiple storage options. This has to be done while always maximizing the use of renewable energy and optimizing energy generation due to contract rules (maintain maximal economic profit). The proposed method is applied to a case study of energy generation in a sugar cane power plant, with non-dispatchable renewable sources (such as photovoltaic and wind power generation), as well as dispatchable sources (as biomass and biogas). This hybrid power system is subject to operational constraints, as to produce steam in different pressures, sustain internal demands and, imperiously, produce and maintain an amount of electric power throughout each month, defined by strict contract rules with a local Distribution Network Operator (DNO). This paper aims to justify the use of this novel approach to optimal energy generation in hybrid microgrids through simulation, illustrating the performance improvement for different cases.

General and Specific Conditions of Arbitration Agreement

Arbitration as an alternative method of dispute resolution intrinsically is considered an exceptional institution. Being exceptional the arbitration institution requires to form it under the agreement of the will of the parties in the form of the arbitration agreement and thus until the parties have not agreed, Judgment is not imposed on them. Arbitration agreement is a contract in term of nature, and like all contacts must be respected the general rules of contract in it. The noteworthy point about this is that how is the observation of these conditions in arbitration agreement? In addition, this contract has the contents and conditions that the contracting parties agree to it and the basis of action of arbitrator or arbitrators is in the dispute settlement that it is interpreted as the specific conditions of the contract. The most important cases that often are noticed them in arbitration agreements and in the case of silence of the parties, the law governing the arbitration is replaced with their will in this regard, as follow: competence of arbitrator, language arbitration, the arbitration time, the arbitration costs, location of investigation and the number of arbitrators. The main question in this regard is this, how is the mutual consent of the parties of agreement in this regard. The answer to these two questions is the subject of this paper, which has been dealt with it through library studies and with the content analysis method.

Enforcing the rules in timber concessions: Performance bonding in the presence of corruption risk

Performance bonding is a common method to enforce logging standards and timber contract rules, yet their applications in tropical concessions are still uncommon, with prohibitively high cost of capital, imperfect enforcement, risk of corruption, and long payback periods cited as reasons. In the face of these factors, we derive conditions for a feasible bond scheme and the amount of additional insurance a landowner can ask from a harvester in the form of a higher than strictly needed bond payment. We then determine the effect of confiscation risk on the feasibility of bond schemes, with this risk stemming from the presence of a corrupt inspector and taking the form of either collusive or non-collusive corruption. We show that confiscation risk can seriously limit the range of possible bond payments and the effects differ between the corruption types. An empirical example evaluates these results in the context of enforcement of reduced impact logging techniques in tropical concession management. The results will help governments better apply bond schemes and in particular adjust them in the presence of risks and external constraints.

Regulation performance of public–private partnerships in the Portuguese water sector

Starting from transaction costs (and new institutional economic approaches, this study sought to understand the influence of the regulatory structure and incentives on the performance of public–private partnerships in Portugal. The findings of this case study show that agency participation in the mediation process between parties is time consuming and improper from a technical perspective; in addition, the agency is captured by political interests, which does not favor users’ interests or the sustainability of water services. Thus, the regulatory structure and incentives cannot be dependent on political nominations, and existing contractual rules need to be reassigned.

Like Oil and Water? Human Rights in Investment Arbitration in the Wake of Philip Morris v. Uruguay

Whether considered ‘wholly distinct, autonomous, or even antagonistic legal domains’, or seen as two sets of legal regimes belonging to the same legal system with ‘meaningful relationships between them’, the international law of investments and the law of human rights appear to have, in the practice of arbitration, an uneasy, tense, strained relationship. For some commentators, public international law (of which human rights is a part) and international investment law would have ‘structural differences’, which have ‘led investment tribunals to grant precedence to the contractual rules that have been agreed upon by host states and investors’. For others, human rights are ‘a marginal issue in investment law’, ‘peripheral at best’, to fulfil ‘no more than an ancillary role in the settlement of investorstate disputes’. This article looks into the fundamental relationship between human rights and investment law in the wake of the recent Philip Morris v. Uruguay and Urbaser v. Argentina cases. In doing so it addresses questions such as: Are human rights and investment arbitration animals of a different nature? Are human rights arbitrable within an investment claim?

La vendita dell'opera d'arte materiale e della performance artistica nel dialogo tra arte e diritto

Il presente lavoro indaga il rapporto tra l'arte e il diritto civile dalla prospettiva del trasferimento di proprietà dell'opera d'arte. Quest'analisi viene condotta dall'Autore con particolare riferimento alle opere della c.d. arte contemporanea: ossia quelle forme artistiche che si diffondono durante il secolo scorso e quello attuale.Tali opere consistono, a differenza di quelle in cui prende corpo la c.d. arte classica, non solo in manufatti, come ad es. la scultura o il disegno, ma anche in opere c.d. immateriali, come ad es. la performance artistica. Questa differenza pone diverse questioni sul fronte normativo. L'Autore si sofferma sulla diversa rilevanza giuridica che assume il trasferimento di proprietà delle opere materiali e il trasferimentodi proprietà della performance artistica. Quest'analisi viene effettuata sia sul piano della fattispecie sia su quello della tutela e prende corpo, nel primo caso, nell'indagine dell'incidenza delle caratteristiche dell'opera d'arte sulle regole del contratto di vendita, e, nel secondo caso, nella lettura della performance artistica dalla prospettiva del contratto d'opera intellettuale e della cessione del credito.

Contentious Issues Arising from Payments made in Full and Final Settlement

Payments made in full and final settlement have on several occasions presented interpretative difficulties for our judiciary, as will become apparent from this case discussion: Be Bop A Lula Manufacturing & Printing v Kingtex Marketing 2008 3 SA 327 (SCA). The Supreme Court of Appeal reversed the judgments of the trial court and the appeal court (full bench of the Cape Provincial Division) which were in favour of the creditor. In such cases, the essential enquiry is whether an agreement of compromise exists. A transactio or compromise (in the form of a legal agreement) exists where the relevant parties agree to settle previously disputed or uncertain obligations. Like any other agreement, a compromise is based on the contractual rules of offer and acceptance. The first material enquiry in this case wherein the debtor delivered the cheque payment to the creditor (in full and final settlement of the account), is whether 1) an intended offer of compromise exists; or 2) did the debtor merely intend to make payment towards an admitted liability. The court in the Be Bop (SCA) case came to the correct finding that an offer of compromise existed. Whilst the judgment is brief, the finding itself gives practical recognition to the principle that admission of liability for a specific amount, accompanied by payment (in full and final settlement), may still be accompanied by an intended offer of compromise, instead of merely making payment towards an admission of liability.

Advanced Control for Energy Management of Grid-Connected Hybrid Power Systems in the Sugar Cane Industry

This work presents a process supervision and advanced control structure, based on Model Predictive Control (MPC) coupled with disturbance estimation techniques and a finite-state machine decision system, responsible for setting energy productions set-points. This control scheme is applied to energy generation optimization in a sugar cane power plant, with non-dispatchable renewable sources, such as photovoltaic and wind power generation, as well as dispatchable sources, as biomass. The energy plant is bound to produce steam in different pressures, cold water and, imperiously, has to produce and maintain an amount of electric power throughout each month, defined by contract rules with a local distribution network operator (DNO). The proposed predictive control structure uses feedforward compensation of estimated future disturbances, obtained by the Double Exponential Smoothing (DES) method. The control algorithm has the task of performing the management of which energy system to use, maximize the use of the renewable energy sources, manage the use of energy storage units and optimize energy generation due to contract rules, while aiming to maximize economic profits. Through simulation, the proposed system is compared to a MPC structure, with standard techniques, and shows improved behavior.

Justice, Fault, and Efficiency in Contract Law

This article explores some of the core concepts that underlie contract law. It rejects the feasibility of a uniform theory of contract law including a critique of the economic analysis of contract law. The importance of efficient contract rules and efficient contracts is not disputed, but efficiency’s explanatory power is limited due to the breadth of contract law, as well as the complexity and dynamism of modern contracting. Behavioral law and economics is introduced as a method for making law and economics more predictive of real world contracting. The article selects three core principles for analysis—justice, fault, and efficiency that help explain the essence of contract law. It also reflects on the tension between freedom of contract and paternalism.

Further Evidence on Consequences of Debt Covenant Violations

AbstractWe present new evidence on debt covenant violation (DCV) consequences that have not previously been examined in the literature. In particular, we show that a DCV triggers significant information asymmetry and uncertainty on the part of shareholders and auditors as reflected in higher bid–ask spreads, return volatility, and audit fees. Further, these consequences occur even when lender‐imposed costs are relatively lower, consistent with the act of default itself triggering shareholder and auditor uncertainty. The results highlight costs to the firm of having bright‐line rules in contracts, and add to an understanding of the consequences of DCVs.

Examining espoused and enacted values in AACSB assurance of learning

ABSTRACTThe authors explore the disconnect between espoused and enacted values in assurance of learning activities—assessment is said to be encouraged, valued, and rewarded—but is it? The data from an analysis of 200 pages of the contractual rules (bylaws) for reappointment, tenure, and promotion at Central Michigan University demonstrate little emphasis and little reward for faculty engagement in assessment activities. Recommendations for closing the gap between espoused and enacted values are made.

Contraction, Infinitary Quantifiers, and Omega Paradoxes

Our main goal is to investigate whether the infinitary rules for the quantifiers endorsed by Elia Zardini in a recent paper are plausible. First, we will argue that they are problematic in several ways, especially due to their infinitary features. Secondly, we will show that even if these worries are somehow dealt with, there is another serious issue with them. They produce a truth-theoretic paradox that does not involve the structural rules of contraction.

From Cut-free Calculi to Automated Deduction: The Case of Bounded Contraction

The addition of the bounded contraction rules to Full Lambek Calculus with exchange and weakening (FLew) gives rise to serious complications for proof search. For example, adding to FLew a naive version of these rules brakes cut-admissibility. Although this can be avoided by refining these rules, in this work we show that even “good” proof systems for FLew plus bounded contraction do not necessarily lead to good implementations. In order to solve this problem, we propose an extension of the lazy splitting methodology to bounded contractions, showing how to transform our focused, cut-free sequent calculus into a terminating theorem prover. Our system is used to show that the decision problem for FLew with bounded contraction is in EXPTIME.

Contracts, Causation, and Clarity

Contract-law remedies start with the assumption that an injured party should be fully compensated for all losses caused by the breach. As in tort law, however, difficult issues regarding the cause of an injured party’s loss sometimes arise, including situations in which multiple factors might have caused the loss. And, like tort law, contract law is reluctant to apply the principle of full compensation when the loss was caused by multiple factors.Multiple factors contributing to a particular loss often suggest the existence of principles competing with contract law’s goal of full compensation. For example, the law seeks to avoid unlimited liability for losses caused by the breach (particularly if the loss was a remote consequence of the breach) to encourage parties to take reasonable actions to reduce losses caused by breach, and to urge parties to disclose, during contract negotiations, any special circumstances that would cause the loss from breach to be greater than ordinarily expected. Accommodating the full- compensation principle and these competing principles is the primary function of the rules of contract damages.Contract law furthers these principles that compete with the full-compensation principle not through a single doctrine, but through a general causation requirement plus the three limitations on an award of damages: the limitations of certainty, avoidability, and foreseeability, with each governing different aspects of causation. A problem, however, with treating causation issues under multiple doctrines is that courts and attorneys are sometimes confused about which doctrine applies, and doctrines are sometimes used in a manner that addresses a problem designed to be addressed by a different doctrine. This Article clarifies causation analysis in contract law and proposes a coherent framework for such an analysis. Part I discusses common situations in which a causation issue arises in contract cases. Part II discusses the role each of the three limitations on contract damages plays in causation analysis. Part III proposes a coherent framework for analysis. Part IV is a brief conclusion.

ERRORS OF STUDENTS IN SOLVING PROBLEM “WRITE THE EQUATION OF A STRAIGHT LINE THROUGH A POINT AND PARALLEL TO A GIVEN STRAIGHT LINE”: A STUDY BASED ON THE CONCEPT “DIDACTICAL CONTRACT”

The paper presents the result of a research based on the concept “didactical contract” which was introduced by G. Brousseau in 1980. On the basis of this concept, we predicted students’ errors and verified by the investigation of 60 students who are studying in the “Long Phu” high school – Tam Binh District, Vinh Long Province. These results indicated that the rules of didactical contract could be reasons for students’ errors in solving mathematical problems. Article visualizations:

"The procedural Rules of the Disputes of the Contracts of International Trade Law in Arab Regulations under the International Agreements "Comparative Study

The current study aims at identifying the substantive and procedural rules of the international commercial contracts disputes in the Arabic regimes and agreements under the international conventions. In this context, the study considered the related international conventions. The study relied on the analytical descriptive comparative approach. This study reached results about the non- submission of the international commercial contracts to the “law of the Judge”. The contractors put in advance the arbitration clause in the international commercial contracts to the global nature of the international contract arising at the occurrence of conflict. Finally, among the most important findings was the focus of the Arabic legislations on the international agreements to be an integral part of the national law, and updating the systems to keep up with the international economic and commercial development. The current study consists of three chapters:- Introductory Chapter: Identification of the international trade contract. Chapter (I): The substantive rules that should be applied to the disputes of the International Trading Transactions Contracts. Chapter (II): The procedural rules of the conflicts relating to the International Trade Contracts.

Post-Contractual Duties of Financial Institutions Regarding Wealth Management Products

Since the global financial crisis, Asian regulators have strived to curb the misselling of wealth management products by strengthening product disclosure, enhancing suitability assessments and conducting product intervention. However, much less attention has been paid to financial institutions’ post-contractual duties after selling a product. This article examines various issues that might arise during the post-contractual stage of a structured wealth management product, which may include a margin call, notification of a material adverse event and advice on redemption or settlement. By drawing on product documentation available in the public domain, disputes occurring in various jurisdictions and relevant judicial decisions, this article suggests that there could be a potential gap between contractual protection and regulatory rules in the post-contractual stage that we should further elaborate upon to clarify the rights and obligations of financial institutions and their customers.

An introduction to differential linear logic: proof-nets, models and antiderivatives

Differential linear logic enriches linear logic with additional logical rules for the exponential connectives, dual to the usual rules of dereliction, weakening and contraction. We present a proof-net syntax for differential linear logic and a categorical axiomatization of its denotational models. We also introduce a simple categorical condition on these models under which a general antiderivative operation becomes available. Last, we briefly describe the model of sets and relations and give a more detailed account of the model of finiteness spaces and linear and continuous functions.