Contract Research Articles

Arbitration in Resolving Construction Cost Claim Disputes Due to Time Extensions: A Study of Contract Law in Indonesia

This research aims to analyze the resolution of construction cost claim disputes arising from time extensions, focusing on the arbitration mechanism. The findings indicate that delays in the completion of construction projects not only give rise to cost claim disputes but also necessitate a meticulous analysis of the causes of the delays and the responsibilities of the parties involved. In this regard, arbitration offers a more effective and efficient dispute resolution mechanism than litigation. The advantages of arbitration, including the speed of the process, confidentiality, expertise of arbitrators, procedural flexibility, and binding awards, make it a favourable option for the parties. Therefore, the parties must pay close attention to the arbitration clause in the construction contract. This clause must be formulated clearly and definitively, encompassing the types of construction cost claim disputes arising from time extensions, including claims for price adjustment, overhead costs, extension of performance bonds, material demurrage, and equipment idleness. In addition, the parties can also utilize the Binding Opinions of the BANI Arbitration Center as an instrument for dispute prevention and resolution. For information, Binding Opinions have binding legal force on the parties and are enforceable through the District Court. Thus, the Binding Opinions of the BANI Arbitration Center are beneficial as a dispute resolution instrument and contribute to the development of legal scholarship.

From liability gaps to liability overlaps: shared responsibilities and fiduciary duties in AI and other complex technologies

AbstractComplex technologies such as Artificial Intelligence (AI) can cause harm, raising the question of who is liable for the harm caused. Research has identified multiple liability gaps (i.e., unsatisfactory outcomes when applying existing liability rules) in legal frameworks. In this paper, the concepts of shared responsibilities and fiduciary duties are explored as avenues to address liability gaps. The development, deployment and use of complex technologies are not clearly distinguishable stages, as often suggested, but are processes of cooperation and co-creation. At the intersections of these stages, shared responsibilities and fiduciary duties of multiple actors can be observed. Although none of the actors have complete control or a complete overview, many actors have some control or influence, and, therefore, responsibilities based on fault, prevention or benefit. Shared responsibilities and fiduciary duties can turn liability gaps into liability overlaps. These concepts could be implemented in tort and contract law by amending existing law (e.g., by assuming that all stakeholders are liable unless they can prove they did not owe a duty of care) and by creating more room for partial liability reflecting partial responsibilities (e.g., a responsibility to signal or identify an issue without a corresponding responsibility to solve that issue). This approach better aligns legal liabilities with responsibilities, increases legal certainty, and increases cooperation and understanding between actors, improving the quality and safety of technologies. However, it may not solve all liability gaps, may have chilling effects on innovation, and may require further detailing through case law.

Legal Foundations in Business: Key Factors Influencing Modern Practices

The primary objective of this study is to explore how various legal factors influence business law in Canada. Although the involvement of businesses in facilitating legitimate legal changes remains limited, it has provided several insightful lessons. This research employed a quantitative approach to assess the impact of specific legal elements on the dynamics of business law within the region. For this purpose, the study considered four key legal dimensions as independent variables to analyze their effects on the overarching framework of business law, which serves as the dependent variable. These dimensions included employment law, contract law, company policies and regulations, and competition law. The research methodology involved distributing 115 surveys to participants, with a return of 102 completed forms. The data from these surveys were then analyzed using multiple regression analysis. The findings revealed that employment law, contract law, and competition law significantly and positively affect business law in Canada, indicating that these areas of legal practice are integral to shaping the business environment in the region.

Migration of Nurses and Allied Healthcare Professionals from Sri Lanka: Role of the State Universities

The migration of healthcare professionals is a burdening issue in Sri Lanka. The country invests to produce these skilled graduates; however, due to multiple push factors such as low salaries, heavy workload, lack of professional identification, and on the other hand better wages, expanded career growth and facilities available with the technological advancement in developed countries motivate them to pursue their career in such countries. Migration provides both professional and economic benefits for the healthcare graduates, however, it negatively affects the healthcare system of the country mainly through brain drain, absence of return on investment for education, healthcare deficiencies, and poor services in the underserved areas. State universities in Sri Lanka produce these skilled healthcare graduates for local and international healthcare systems while facing numerous challenges. Addressing migration positively is a main responsibility of the universities, as migration has both positive and negative outcomes. Therefore, by taking necessary measures, universities can turn it into more positive than negative effects. Hence, universities can initiate measures including the revision of curricula with global standards, enhancing the language proficiency of graduates, and helping the government to establish legislation and policies for balancing migration and retention. Further, universities can promote ethical migration with a few arrangements such as service agreements, temporary migration programs and further improving the working conditions to avoid the brain drain while working with both the Ministry of Higher Education and the Ministry of Health. Transforming brain drain into brain circulation is a promising initiative to overcome issues associated with migration. This approach facilitates the mutual benefits for individual healthcare professionals, the country’s healthcare system, and their families.

Consumer Contract Law and the Sustainability Goals in Slovenia: Any Room for Improvement?

Consumer Contract Law and the Sustainability Goals in Slovenia: Any Room for Improvement?

일본 개정민법상 매도인의 담보책임의 규율 - 법무부 민법개정위원회안(2024)과의 비교를 겸하여 -

This paper examines the regulations on the seller’s liability for warranty under Japan’s revised Civil Code (Law of Obligations), which came into effect on April 1, 2020. The author’s motivation for exploring this topic stems not only from curiosity about the outcomes of the revision but also from a strong interest in the legislative techniques employed to simplify, integrate, and reorganize the substantial provisions on the seller’s liability for warranty into a coherent system based on the “contractual liability theory.” The pre-revision Japanese Civil Code’s provisions on the seller’s liability for warranty, much like those in the Korean Civil Code, were characterized by a highly complex regulatory framework and content. Reorganizing such provisions from a new theoretical perspective was undoubtedly a significant legislative challenge. This paper seeks to trace not only the results of the revision but also the process through which the simplification of regulatory content was realized. The revised Japanese Civil Code restructured the seller’s liability for warranty as a special rule of non-performance under the “contractual liability theory.” It explicitly provides that when a non-conformity to the contract is recognized, the buyer is entitled to remedies such as the right to demand cure, the right to reduce the purchase price, the right to claim damages and to terminate the contract based on general principles of non-performance. As a result of the revision, the scattered provisions of the pre-revision Civil Code governing the seller’s liability for warranty were unified into a single framework of liability for non-performance due to non-conformity with the contract. Coincidentally, in Korea, the Ministry of Justice's Civil Code Revision Committee, launched in 2023, has been working on a comprehensive revision of the contract law, and the draft amendment has recently been disclosed. The draft amendment, like Japan’s revised Civil Code, integrates various types of warranty liabilities by distinguishing between defects in rights and defects in goods, and it provides the buyer with remedies such as the right to demand cure, the right to reduce the purchase price, the right to claim damages, and the right to terminate the contract. It also introduces special provisions on the period for exercising rights in cases of defects in goods. However, there are differences from Japan’s revised Civil Code, including the Korean draft’s retention of the concept of defects, its use of the buyer’s awareness of a defect as a subjective condition to exclude the buyer’s rights, and its sequence of remedies (cure, termination, price reduction, and damages). Japan’s revised Civil Code serves as a valuable comparative legal resource for understanding and analyzing the Korean Civil Code Revision Committee’s draft. Future studies comparing the seller’s liability for warranty under the Korean draft Civil Code (or the revised Korean Civil Code) and the Japanese revised Civil Code are anticipated.

Analysis of IFRS 7 requirements for disclosure of information about financial risks in financial statements and analysis of disclosure practices. Part 1

Subject. The article addresses requirements of IFRS 7 and IFRS 9 for disclosure of information about financial risks in financial statements of an organization when market conditions change. Objectives. The aim is to disclose information about the significance of financial instruments to an organization; the nature and extent of risks arising from those financial instruments; and the impact on these risks by financial instruments. Methods. The study rests on the institutional theory of contracts, the Conceptual Framework for Financial Reporting. The latter, for the first time, recognized the need to reflect contractual rights and obligations in reporting, as an object of accounting and analysis, and became the theoretical basis for generating information about reporting of derivatives in financial statements when analyzing risks and minimizing them when using derivatives. Results. We assumed that to sufficiently and adequately meet the requirements of IFRS 7 in terms of disclosure of information about risks inherent in a business, heads of any organization should hold a number of events outlined in the article. Conclusions. The analysis of financial risks, their nature, and the degree of influence on the financial position of the reporting organization can significantly increase the transparency of financial statements for external stakeholders, strengthen their trust in the management of the organization and, as a result, contribute to making more balanced and responsible investment decisions.

Implementasi Kebebasan Berakad Pada Akad-Akad Perbankan Syariah Di Kota Pekanbaru Dalam Hukum Islam

freedom of contract in terms of making/entering conditions in it is only a quasi-freedom of contract. This means that freedom of contract in Islamic law has not been fully implemented in existing contracts in sharia banking in Indonesia. Because on the one hand, in various contracts there are clauses/conditions that contain elements of freedom of contract based on Islamic law, but on the other hand they still contain elements of freedom of contract based on the conventional system. This is because the restrictions on freedom of contract in Islamic law are not fully respected by BUS. Implementation of freedom of contract in making clauses/entering conditions in the contract in BUS customers cannot yet exercise full freedom of rights because they receive a standard contract from a sharia bank. If viewed based on the theory of maslahah al-murlah, the clauses/conditions in the standard contract do not fully meet the criteria of benefit and are not in accordance with the concept of freedom of contract in Islamic law

Smart Contract on a Crypto Assets in the Civil Law and Common Law Jurisdictions: Implementation of Best Practices

The article is devoted to the analysis on a crypto assets smart contract in the civil law and common law jurisdictions and the implementation of the best practices into Ukrainian law. It is argued that the essence of a crypto assets smart contract is that it is a self-executing contract which is represented and executed by a computer program, remains unchanged and unstoppable after the creation of this contract, and its terms are included in the internal functions of a decentralized database which is not controlled by the databases of the parties to the contract or third parties. It is noted that a cryptoasset smart contract, like any contract, may be declared invalid if the will to conclude it does not meet the conditions for the validity of this transaction, regardless of the form in which this transaction is concluded, as in this case in the form of a computer code. It is also stated that the terms of a cryptoasset smart contract must be specific (clear, unambiguous), feasible (objective), legitimate, and capable of automation (no evaluative terms, such as “reasonable time,” may be used), exist within the blockchain platform (on which cryptoassets are currently transacted) and not involve obtaining and confirming information from outside (in this regard, the terms of force majeure are not specified in the smart contract). The study applies dialectical, comparative legal, formal and logical, and systemic and structural methods of scientific knowledge. It is proved that a smart contract is a contract which is represented and executed by a computer program, the components of which are a computer code, some or all of the terms of this contract which are fulfilled upon the occurrence of predefined events, are stored in an electronic register system which records the result of execution of this program, and the contract itself cannot be changed and is executed in accordance with the programmed instructions of the computer program. The author concludes that the determination of the person who is legally liable when a smart contract fails to perform the programmed function depends on the terms of the smart contract, and in their absence, the provisions of applicable law regarding the legal consequences of non-performance of the contract and liability for such non-performance should be used.

Защита жертв войны через призму международного строительного контрактного права: проблемы и решения

The research focuses on the legal aspects of protecting war victims through the application of international construction contract law (ICCL). Emphasis is placed on constructing housing and infrastructure for refugees and internally displaced persons in crisis and conflict conditions. The analysis covers international and national legal norms, including standards developed by the International Federation of Consulting Engineers (FIDIC), and their role in expediting construction, ensuring safety standards, and mitigating legal disputes. Special attention is given to the practical adaptation of contractual obligations to emergency situations, enhancing the protection of affected individuals and reducing risks in humanitarian projects. The research highlights the need for coordination among states, international organizations, and non-state actors to develop comprehensive legal solutions.

Professor Horst Lucke (1929–2024)

Horst Lücke was an outstanding legal scholar who brought to Australia a deep knowledge of comparative law from his native Germany (via a Fulbright Scholarship in the United States of America). He specialised in private law, particularly the law of contract, statutory interpretation and legal history. He was an outstanding Head of School at the University of Adelaide and finished his career as an Honorary Professor at the University of Queensland. He was a delightful and stimulating colleague who contributed to research seminars right up until his death, aged 95, on 26 September 2024. His long life bore witness to profound changes in society, his personal life and academia.

Antitrust rules and remedies against platforms' treacherous turns

AbstractDigital platforms can take a ‘treacherous turn’, where they initially set advantageous terms and conditions only to reverse them once demand has become sticky. Transaction costs economics has long recognised the harm caused by such opportunism, especially in the presence of relation‐specific investments. Such investments are the norm in the platform economy, where opportunism is being rediscovered under labels such as ‘open early, closed late’. Despite economic recognition of the phenomenon, however, antitrust law is lagging behind. Its micro‐rules of liability, for example on excessive pricing and refusal to supply, do not adequately capture treacherous turn strategies, neither do related rules from contract law or sectoral regulation. Hence, we propose adopting a targeted quasi‐per se rule to fill the treacherous gap. Unless the platform can advance a plausible business justification, the rule imposes a remedy freezing the previous terms in place.

O PRINCÍPIO DO FORMALISMO MODERADO COMO FORMA DE CONVALIDAÇÃO DOS VÍCIOS SANÁVEIS CONSTATADOS NOS ATOS PROCEDIMENTAIS LICITATÓRIOS

The principle of moderate formalism in the context of public contracts and tenders seeks to balance the need to follow formal procedures with flexibility to correct errors that do not affect the essence of administrative acts. This means that, when possible, formal errors that do not compromise the public interest or the competitiveness of the process can be validated, that is, corrected without the need to cancel the entire procedure. The Federal Audit Court (TCU), the Superior Court of Justice (STJ) and the Federal Supreme Court (STF) have recognized this principle as a way of avoiding the annulment of processes due to errors that can be remedied, thus promoting greater efficiency and savings in administrative procedures. The application of this principle must always be in accordance with the Bidding and Contracts Law and the Federal Constitution, ensuring that the public administration acts legally, efficiently and in favor of the public interest. This understanding seeks to ensure that formalism does not become an obstacle to effective public procurement, allowing the focus to be on the substance of administrative acts and not just their form.

Redefining equality in European contract law: protecting consumer interests in a post-consumer society

Abstract Consumers have in law been defined as the weaker parties in a transaction. Contract laws have integrated consumer protection with a view to balancing the interests of the parties, ensuring equal bargaining power and to some extent substantive fairness in contractual relations. Rules of consumer protection have therefore, from a contract lawyer’s perspective, been construed as expressions of a general principle of equality. The principle of equality, conceived in this way, complements the general principle of autonomy underlying contract law, which embodies the idea that parties should have the capacity for self-realisation. Does this construction of consumer contract law still hold in EU consumer markets transformed by the rise of online platforms and the overall move towards an economy based on services and experiences rather than the sale of physical goods? Or do we need to redefine the ways in which the principle of equality is expressed in European contract law in order to correct for new inequalities arising between consumers and businesses? This article aims to answer that question against the backdrop of established insights of the ways in which the rationality of European contract law differs from that of national, doctrinal private law systems. It concludes that the rules laid down in instruments such as the Unfair Commercial Practices Directive (UCPD) and the Unfair Contract Terms Directive (UCTD) can protect consumers against exploitative practices. However, problems arise in cases where the interest at stake go beyond economic interests and concern also non-economic interests, such as data protection or freedom of expression, or do not have a market exchange value. Solutions can be pursued, it is submitted, by the European legislator and the European Court of Justice, potentially using the EU Charter of Fundamental Rights as a catalyst for reform.

Electronic contract

The issue of the relevance of using electronic contracts for legal regulation of social relations has been analyzed in the article. The specified topic is focused on electronic document management. advantages and disadvantages of its application. The pandemic period that used to be on the territory of Ukraine, then the introduction of the martial law in Ukraine caused by the military aggression of the Russian Federation became a determining factor for spreading such a method of concluding contracts as an electronic digital signature. The risks arising from the mentioned method of contracts’ conclusion still exist, however, it is worth expecting further legal development of the researched issue in relation to the digital tendencies taking place in the world. The main purpose of a contract as a legal fact, with the entry into force of the Civil Code of Ukraine of 2003, gave way to the purpose of a contract primarily as a regulator of civil relations, which shoves its other application into the shadow. The contract is currently evaluated like other sources of law within the doctrine of civil procedural law. An important issue for the Ukrainian online trade market was the adoption of the Law of Ukraine “On Electronic Commerce” by the Verkhovna Rada, which entered into force on September 30, 2015. This Law regulated a number of aspects related to contracts in the field of online trade by specifying, along with other things, the process of signing electronic contracts. As a result, an electronic contract is among the most effective means of establishing and regulating relations between the subjects. It is concluded online by using digital technologies and creates a mutual obligation between two parties, which is subject to execution in accordance with the contract’s provisions. The possibility of concluding a contract in electronic form is established in paragraph 2, Part 2 of the Art. 639 of the Civil Code of Ukraine, which provides for the rule of equating a contract concluded with the help of information and communication systems to a written form. Electronic contracts combine the formalities of a traditional contract and elements of digital document management and calculations. The author of the paper has noted that it is possible to currently conclude that an electronic contract is the most effective mean of establishing and regulating relations between civil law subjects. The obtained research results have scientific and practical significance, in particular they can be used in scientific, legal precedents both in the field of medical law and doctrinal research of electronic contracts.

Legal regulation of IT employees

This article is aimed at studying the labour regulation of IT workers in the context of labour law. Particular attention is paid to issues related to remote work, flexible working and conditions that are typical in this area. Many aspects are devoted to the analysis of the employment contract, especially in the context of the growing demand for IT specialists and new forms of employment. The issue of flexible working hours for IT employees is one of the most important, as this area of work requires more adapted conditions aimed at ensuring a balance between professional duties and personal life. The availability of opportunities for remote work or flexible working requires certain changes in labour legislation. It is important to define not only the rights and obligations of the parties to labour relations, but also the conditions for the proper protection of such rights, in particular in terms of occupational health and safety, confidentiality of information, social guarantees, and liability for breach of employment duties. Most IT employees prefer civil law contracts, as they offer more benefits and flexibility than labour law in some aspects. However, it is necessary to analyse both contracts in detail and understand that this form of cooperation can lead to social insecurity for employees, as they do not have the rights provided for by labour law. Many employees choose gig contracts, which offer new opportunities but also have their limitations, especially social guarantees and the lack of guaranteed salary. The IT sector involves intellectual property, trade secrets and other confidential information, which requires appropriate legal regulation. To ensure the protection of confidentiality, it is important to define the rights and obligations of employees in the employment contract and internal labour regulations. Failure to comply with confidentiality terms can lead to legal consequences and a negative reputation for the employee and the employer. Another important aspect is occupational health and safety, especially when working remotely. The issue of labour protection in the context of remote work is not sufficiently regulated in labour legislation, so employers need to conduct appropriate briefings, especially in the context of martial law. In Ukraine, the IT sector continues to be important for the economy, contributing about 5% of GDP, but exports of IT services have declined during the war. The process of European integration will contribute to the development of the IT sector, as well as change the legal and economic situation, which will directly affect the working conditions, rights and obligations of IT professionals in Ukraine. Ukraine’s accession to the EU creates new opportunities for IT workers, such as career growth, improving their skills and access to European labour markets. However, this process also requires significant changes in national legislation to adapt to European standards.

Implementation of The Basic Freedom of Contract in Review From The Shariah Alliance

In civil matters, the parties will not be separated from the legal relationship. The legal relationship itself arises when there are rights and obligations of the parties so that what is agreed can be achieved. The parties are given freedom to make a contract. The contract itself must meet both subjective and objective requirements. One of the subjective conditions, which is the agreement between the parties, must be based on the principle of freedom of contract. The basis of freedom of contract according to Article 1338 BW "All legally made agreements are legally binding on those who make them”. The purpose of Article 1338 BW is that the basis for the parties to carry out the contract must be equality, justice, honesty and truth. The meaning of freedom of contract does not mean that the law allows parties to deviate from legal regulations or immoral acts. The Draft Law or what is known as (RUU) Engagements is a draft sub-codification of the national engagement law which previously, sub-engagements were regulated in Book III BW/Perdata. A special codification of contract law regulates sharia contracts as a form of implementing cooperation or business agreements with sharia principles. Therefore, in this article the author will explore the principle of freedom of contract in sharia agreements in cooperation agreements between parties in society. This research is legal research (doctrinal research) with an analytical approach (analytical research), a statutory approach (statues approach), and a conceptual approach (conceptual approach). The formulation of the problem to be studied is as follows, first Basis of Freedom of Contract in Agreements, Second, Freedom of the parties in carrying out the agreement, and third, The application of the basic freedom of contract is reviewed from the sharia alliance. The results of the research explain firstly, freedom of contract in contractual relationships is the essence of individuals being able to carry out the agreements agreed to in the contract as long as they do not conflict with public order and legislation. Second, freedom of contract on a contract must be based on good faith (good faith) the parties and state their wishes (conduct) proportionally. Third, The application of freedom of contract in sharia agreements places greater emphasis on benefits for the benefit of the parties and is not merely individualistic.

Prenuptial Agreements in the Institution of Marriage in India: Legal Framework & Societal Perceptions

In modern culture, prenuptial agreements represent a significant shift from traditional marital customs to a more popular strategy. Such agreements are effective in navigating potential risks and enhance communication among future spouses. These agreements embody a strengthened framework of legal protection that guarantees that the financial interests of both parties are respected, while also easing the financial burdens and emotional difficulties linked to the divorce process. Current research examines prenuptial agreements in Hindu marriages in India revealing the possible pathways beyond customary laws. It also highlights the significance of customs in Hindu marriages and growing interest in prenuptial agreements young couples. It is suggested to implement a well-defined legal framework which aligns traditional marriage with modern requirement. In India, prenuptial agreements are subject to inconsistent and ambiguous legal provisions. Although there are no particular provisions for prenuptial agreements in personal laws, they may fall under the purview of contract law or the ‘Indian Contract Act, 1872.Courts have generally held them unlawful on public policy grounds. In India, marriages are governed by Hindu marital traditions.

La internacionalización del derecho civil de contratos

"Globalization," "globality," "harmonization," and "integration" are concepts characteristic of the early 20th century that, in the legal sphere, have gained increasing relevance, especially in relation to Contract Law. But what do these notions mean in this context? And what effects are these phenomena generating?Internationalization, harmonization, and integration are reflected in legislation, particularly in the fact that the harmonization of private law has become a significant trend within the international community. In this regard, the international harmonization of contract law represents one of the most dynamic and productive fields of private law today.From the perspective of contract law development, instruments such as the UNIDROIT Principles of International Commercial Contracts and the United Nations Convention on Contracts for the International Sale of Goods are increasingly being adopted. These frameworks are used by parties in international transactions as governing law and are applied by arbitration institutions as general rules in global trade contexts.In this sense, both the Contract Law of China and the Contracts Section of the Chinese Civil Code are rooted in a solid practical experience derived from Chinese commercial transactions. At the same time, they incorporate legislative advances from foreign laws and adopt a broad international perspective. These legal instruments reflect distinctively Chinese characteristics while incorporating contemporary elements, positioning themselves as an example of civil law adapted to the era of globalization.

Roman Law on the Just Price in Nicolaus Bernoulli’s Mathematics

Abstract It must be rare that discoveries which transform mathematics also undermine legal rules. Yet this is precisely what happened when probability was first developed in the second half of the 17th century and the first decades of the following one. The focus of this article is a doctoral thesis in law written in 1709 by Nicolaus Bernoulli, an important mathematician of the age. He highlighted the dramatic implications of the new mathematics of probability for a rule which was fundamental to contemporary contract law in continental Europe. This article reconstructs a remarkable story about the place of mathematics in the history of contractual justice and the place of contractual justice in the history of mathematics.