Contractual Perspective Research Articles

State of the Art on Forensic Bridge Engineering in Chile. A Management and Technical Overview

Chile is a country highly affected by natural hazards, especially scour and seismic phenomena. Therefore, throughout the twentieth century and the beginning of the twenty-first, total or partial collapses of bridges have been evidenced, particularly those that occurred in the 1960 and 2010 earthquakes. From these experiences, the Chilean Highway Administration has promoted a series of management activities in order to reduce the number of collapsed structures. In this context, since 2019 the Ministry of Public Works of Chile (MOP) supported by the Chilean universities started a program to develop the subject of forensic engineering on bridges, in order to include the methodology in the technical codes and provide a standardization of protocols for the implementation of activities in the case of the collapse of structures. The aspects included in this methodology are: Determination of volatile and non-volatile information; Actions for intervention on the structure and protection of users; Gathering of technical information through the application of tests; Review of stress–strain states through Finite Element Method (FEM); Elaboration of hypotheses and review of them through a decision tree; and, finally, Conclusions and recommendations from a technical and contractual perspective. This paper presents a detailed description of the current forensic engineering methodology in Chile and its first application in the Cancura Bridge case study. In addition, a historical compilation of Chilean bridge collapses is presented, in each case identifying the typology of the structure, the causes of collapse and the main inspection techniques used. Finally, a statistical review is carried out analyzing aspects such as stages of the life cycle where collapse has occurred: design, construction or operation, and the incidence of natural hazards in these phenomena. From this analysis, the cases of Loncomilla, Cancura and Huasco bridges are highlighted. Since the collapse of these bridges occurred without the implementation of current methodology, the article concludes on the advantages and disadvantages of the methodology, providing a comparative analysis with the inspection activities in these structures.

Preparing for serendipity: an illustrative analysis of participation in the field

PurposeThis paper aims to explore how researchers in general, and field researchers in particular, might respond to systems of governance of the researchers' activity in ways that can support rather than distort the quality of the research.Design/methodology/approachWe draw upon literature on serendipity to develop a framework for engaging with the positive and negative potentials of systems of governance. We ground our analysis in discussion of participation in the field comprising two parts: first, the examination of our own activities and second, the accounts of participation found in two career-autobiographical interviews with emeritus professors of management accounting from Japan.FindingsWe highlight the potential for a productive tension between two contrasting perspectives that researchers might take on governance of their activity. A contractual perspective sees the value of targets and detailed pre-planning. A reflexive perspective sees the value of exploring the unexpected and considering many alternatives. We offer a framework for considering serendipity and the conditions that facilitate serendipity to help researchers maintain a productive tension between these perspectives.Research limitations/implicationsWe build upon retrospective accounts of two successful individuals whose careers evolved in a specific context. The intention is not to set out what might be generally achievable in a research career, nor to propose specific lines of action or planning in relation to specific systems of governance, since these vary across countries and over time. Rather, the paper draws on these materials to illuminate the more general challenge of preparing for serendipity in a way that goes beyond simple opportunism.Originality/valueWe analyse how researchers' mindfulness of serendipity and the nature of contexts that facilitate serendipity can encourage a productive tension between contractual and reflexive perspectives on governance of academic activity.

Managing construction projects impacted by the COVID-19 pandemic: a contractual perspective

The Coronavirus Disease (COVID-19) had severe, unforeseen, and prolonged implications on construction projects as well as many other industries. This resulted in severe effect on the supply of material, manufacturing, availability of human resources, and other factors which collectively negatively affected construction processes. To this end, there is a lack of comprehensive studies and understanding concerning that the contractual implications and remedies associated with the COVID-19 pandemic. This paper addresses this knowledge gap. The authors utilise a multi-step research methodology that comprised: (1) studying the contractual interpretation of COVID-19 under the American Institute of Architects (AIA) A-201-2017 as a widely used standard form of contract in the United States; (2) determining the associated contractual remedies for COVID-19; (3) comparing how the aforementioned two issues are handled under the Federation of International Construction Engineers (FIDIC) Red Book 2017, as being a much utilised international standard form of contract that is adopted by the World Bank; (4) developing guidelines and recommendations to be used by owners, contractors, project managers, and contract administrators in planning, handling, and mitigating the contractual implications of the current pandemic; (5) investigating the applicable legal doctrines and principles; and (6) solidifying the research steps and overall research outcomes using the input of legal experts who also helped investigate the relevant common law legal principles that could be associated with COVID-19. The results of this research should promote effective and efficient project management practices under the current new normal and similar interrelated conditions.

MISTAKE AND SURETYSHIP: AVOIDING THE SPECTRE OF BRINK V HUMPHRIES & JEWELL (PTY) LTD

The nettlesome matter of operative mistake and suretyships tucked away in credit applications tends to find its way into the law reports on a rather frequent basis. This phenomenon is hardly surprising because in the cut and thrust of modern commerce, and even more so in lean times, individuals are keen to apply for credit on behalf of the corporate entities which they represent, but less eager to stand in for these debts when they cannot be serviced. From the contractual perspective of mistake, these cases tend tofollow a familiar pattern. Commonly, a member of a close corporation or director of a private company applies on behalf of the close corporation or company, as the case may be, for some or other form of credit from another party. Usually, within a business context, credit will not be granted without some form of security, and in these instances more often than not the representative is required to agree to a personal suretyship in favour of the creditor, which is often embodied in the credit application form itself. Oncethe representative has appended him or her signature to the application form, he or she inexorably finds himself or herself simultaneously bound as surety and co-principal debtor, the formal requirements for a suretyship agreement having been complied with (as prescribed by s 6 of the General Law Amendment Act 50 of 1956). On the whole older case law displays a reluctancy on the part of the judiciary to excuse a surety on the basis of material mistake in such circumstances, but in Brink v Humphries & Jewell (Pty) Ltd (2005 2 SA 419 (SCA)) the Supreme Court of Appeal adopted a far more lenient approach in favour of the surety, and perhaps heralded a not too subtle change in the law. This note examines the way in which the courts have adjudicated similar cases, and specifically whether more recently they have reinforced the generally stricter approach of old or been prepared to follow the path which Brink seemed to have cleared.

Opening and closing open innovation projects: A contractual perspective

In this article we introduce three concepts from transaction cost economics that have so far remained excluded from the open innovation literature, and that enable us to address the demands in the literature for an explanatory mechanism for closing open innovation: unanticipated disturbances, tolerance zone and interpretations of contracts. First, we argue that threats resulting from unanticipated disturbances are absorbed in a tolerance zone and lead to adaptations in knowledge sharing. Second, we argue that these threats and changes in knowledge sharing at the project level impact the interpretation of the open innovation contract at the firm level. Adopting a contractual perspective, the article contributes to the open innovation literature by explaining the tolerance zone of transitioning between closed and open innovation. We illustrate in a case study on a B2B open innovation project how a threat to value creation leads to a continuation of open innovation, whereas a threat to value capture leads to a closing of open innovation.

Plural Governance for the Management of Local Public Services: An Empirical Investigation on the French Car Park Industry

This paper investigates the use of plural governance for the provision of local public services. Most of the studies conducted on local data compare direct public provision (i.e., in-house provision where governments produce public services themselves, using their own equipment and employees) to contracting out. But governments actually face a more complex set of choices than the simple make-or-buy dichotomy. In particular, cities can simultaneously opt for the ‘make’ and ‘buy’ alternatives for the provision of the same public service, and thus produce a portion of the service themselves while contracting with external (public or private) companies. We show how contractual perspectives and the resource-based view of the firm help to understand the rationales behind plural sourcing. Organizations appear to be able to adopt this governance structure to enhance efficiency since it enables them to employ benchmarking strategies. However, authors in public management insist on the specificities of public sector contracting, and our analysis also includes political measures, such as the number of changes of political affiliation at the head of cities. Our empirical analysis examines data about car park management by 97 municipalities in 2010. We use a multinomial logit to compare three distinct alternatives: total internal provision, complete externalization, and plural sourcing. Our results clearly indicate that plural sourcing is a strategic choice that is adopted by municipalities to reduce the cost of service delivery when they suffer from high levels of fiscal stress. Plural governance does not result from the alternation of political parties in power, indicating that political factors do not play a significant role in explaining that sourcing decision.

Breaching the Interpretative Wall between Private and Public Commercial Contracts

Abstract From a purely contractual perspective, this article reflects upon labour standard clauses with the objective to ensure that the fundamental ILO conventions and the International Bill of Human Rights are complied with throughout global value chains in respectively business-to-business (private), and public commercial contracts. The clauses are in both settings based widely on the same standards; however scholarship on the two types of contracts has been quite separate. The article reviews some Scandinavian case law concerning labour standard clauses and procurement regulation. It finds that contractual argumentation supported the outcome in these cases, isolates this argumentation, and reflects on whether contractual perspectives on the public contract might inspire current research on private contracts. It finally argues that an actual fusion is already taking place, wherefore contract lawyers may play an important role as to whether ‘the interpretative wall’ should be breached, or whether this is not feasible due to the distinctive characteristics of each contract.

Navigating the emerging lithium rush: lithium extraction from brines for clean-tech battery storage technologies

The expansion of electric vehicle technologies and renewable energy storage will increasingly depend on lithium-ion batteries. Current lithium extraction operations are far from the environmentally and socially compliant operations desired by the ‘clean-tech’ industry. However, an innovative and more compliant lithium extraction process has emerged. Several companies are actively working on scrubbing lithium from lithium-enriched brines by purifying wastewater from oil and gas operations or through standalone extraction facilities. This paper examines the legal considerations and risks associated with the development of a novel lithium brine extraction industry in Western Canada, primarily focused on Alberta as a traditional oil and gas jurisdiction. Our analysis of Alberta's subsurface regimes identifies and discusses ambiguities that the Alberta government may need to address for this emerging subsurface industry. Similarly, we identify unique contractual considerations for counsel to contemplate when advising parties involved in this new industry. We conclude that the current legal landscape in Alberta, from both a regulatory and a contractual perspective, needs further clarification in order to attract a large-scale and viable industry. Nevertheless, we emphasise that Western Canada is ripe with opportunity to commercialise on a new lithium extraction industry and take note of the increased governmental interest in the development of this emerging industry.

Contractual Perspective for BIM Utilization in US Construction Projects

AbstractAlthough building information modeling (BIM) is experiencing substantial development and use in the construction industry, its legal and business structures lag far behind. While many resea...

Baseball arbitration desde una perspectiva contractual

El baseball arbitration es un mecanismo alternativo de solución de conflictos que permite una solución pronta y económica de los conflictos, la cual, además, favorece la conservación de la relación subyacente, porque obliga a las partes a ser moderadas. No obstante, su implementación en Colombia aún no se ha logrado, dado que no se puede hacer como arbitraje ni como amigable composición. Por esto, en este artículo se propone un mecanismo de implementación en el país desde una perspectiva meramente contractual, a través del contrato de mandato, de transacción y de otras instituciones jurídicas nacionales.

Enhancing BIM-Based Information Interoperability: Dispute Resolution from Legal and Contractual Perspectives

AbstractBuilding information modeling (BIM) produces positive results for the construction delivery process. BIM obtains these types of results by enabling information interoperability in respect o...

RIO DE JANEIRO AND THE SILVER MINING ECONOMY OF POTOSI: TRANS-IMPERIAL, GLOBAL, AND CONTRACTUAL APPROACHES TO SOUTH ATLANTIC MARKETS (18TH CENTURY)

Abstract This paper’s main goal is to advance some considerations on the interrelations between port cities and capital. More specifically, it sheds light on how these interdependencies took place in the eighteenth-century Portuguese and Spanish Atlantic world. This paper thus seeks to draw an urban political economy in transimperial, global, and contractual perspectives. For so doing, particular attention will be put to Rio de Janeiro’s projection far beyond the South Atlantic, and in particular, its interconnections with the Rio de la Plata basin and Potosi markets. Attention will also be paid to the impact of and repercussions that far-flung economic phenomena had for the urban domestic markets.

Introduction: a symposium on the predatory state

Economists have adopted two broad perspectives on the state: contractual (i.e., provider of public goods and services) and predatory (coercive and extractive). By a predatory state, we mean a state that promotes the private interests of dominant groups within the state (such as politicians, the army and bureaucrats) or influential private groups with strong lobbying powers. Neo-institutional economists support an extended version of the contractual perspective in which the state is not simply a ‘benevolent dictator’ but may itself be composed of predators. However, it considers predation as only a means to promote protection. By contrast, a predatory vision of the state argues that while protection and predation are two faces of the same coin, a predatory state protects only to promote its predation on the private sector. This symposium explores how a predatory approach to the state can shed light on all types of state, from liberal democratic to authoritarian and failed ones, both in the past and present.

Green leasing in commercial real estate

PurposeThis paper aims to investigate the drivers and barriers for green leases and tenancies in sustainable “Building Research Establishment Environmental Assessment Method” (BREEAM) and “Leadership in Energy and Environmental Design” (LEED) certified office and office buildings in Norway, the UK and the USA. This study focuses on the differing perspectives between owners and tenants. It is then considered as to how these issues are dealt with during different phases of a buildings life cycle. This research is based on existing literature and semi-structured interviews that studied qualitative and quantitative elements in the context of ownership and tenancy of single and multi-tenanted sustainable office buildings.Design/methodology/approachUsing a mixed-method approach involving semi-structured interviews with both qualitative and quantitative elements along with desk research, this paper evaluates how green leases and tenancies in offices and office buildings that are BREEAM and LEED certified require a reconsideration and re-evaluation of the acquisition, operation and disposal of office buildings by building owners and their tenants. These stakeholder relationships are supported theoretically using a theoretical model that outlines the interrelation between the sustainable building and the relationships of the building owner, the user and the FM service provider.FindingsThe data gathered from the interviews justify and partly contradict some of the statements within existing literature, diminishing the importance of cost and the barrier of split incentive but instead illuminate the importance of less tangible considerations such as company policy or a sustainability strategy. The results also note the realisation of a changing market for commercial real estate driven by the sustainable business needs of tenants for the occupation of workspaces.Research limitations/implicationsThese findings have the potential to further develop theories and provide an insight into how the relationships between actors from a business, procurement and contractual perspective need to be developed to ensure more proactive development of green leasing of new and existing sustainable office buildings, along with where strategic attention is required during the building design, construction, operational and use phases.Originality/valueThis paper is based on original research through interviews and literature studies supported by an existing theoretical model. The results have been partly presented and initially discussed at the WBC World Congress 2016 in Tampere, Finland.

Reducing Excess Requirements Through Orthogonal Categorizations During Problem Formulation: Results of a Factorial Experiment

Problem formulation lays at the heart of systems engineering. While an over-constrained solution space may yield no satisficing solution affordably, properly defined solution spaces may enable developing solutions with high levels of affordability. Therefore, effective requirement elicitation from stakeholder needs is key to achieve a proper definition of the problem to be solved. Categorizing requirements according to predefined taxonomies is an inherent part of this activity and they are as diverse as engineering industries are. Conventional approaches, which use a designer-perspective, a contractual perspective, or a combination of both, facilitate the generation of excess facilitate the generation of excess requirements during requirements elicitation due to promoted design biases and overlaps between the different categories. In order to mitigate those problems, orthogonal, system-centric categorization methods have been proposed as a potential solution. Yet, research has not measured the influence of any type of requirement taxonomy on the effectiveness in defining solution spaces of maximum size, i.e., without excess requirements with respect to a given set of stakeholder needs. In order to fill in this gap, this paper presents the results of a factorial experiment involving systems engineering practitioners that compares the effectiveness in eliciting less excess requirements of an orthogonal, system-centric categorization method versus traditional ones.

Review in formulating the standard form of contract for Industrialized Building System (IBS) construction approach in Malaysia

Industrialised Building System (IBS) is the common term used to represent the prefabrication concept in Malaysia. Based on previous research being done locally and internationally, it is certain that using IBS offers huge benefits in terms of cost, time, productivity and quality. The Malaysian construction industry has been urged to use innovative construction techniques. It is being highlighted under the present Construction Industry Transformation Programme 2016 - 2020 (CITP). These initiatives illustrate the Malaysia government’s commitment in addressing the IBS agenda. Although some efforts have been taken to enhance the IBS adoption in Malaysia, various contract issues have emerged to become major concern amongst the IBS players that have led to delays, disputes, payment and cash flow issues in their projects. Formulating a dedicated standard form of contract for IBS construction approach is necessary to address the concerns. Therefore, the aim of the main research is to formulate the standard form of contract for IBS projects that will assist authorities and IBS industry players in mitigating the issues and challenges from the contractual perspectives. However, this paper will only present the literature reviews and findings from a preliminary survey conducted to establish pertinent contractual issues and challenges on the subject matter.

Istvan Hont's Politics in commercial society: Jean- Jacques Rousseau and Adam Smith, eds. Béla Kapossy and Michael Sonenscher. Cambridge (MA): Harvard University Press, 2015, 138 pp.

Review of Istvan Hont's Politics in commercial society: Jean- Jacques Rousseau and Adam Smith, eds. Bela Kapossy and Michael Sonenscher. Cambridge (MA): Harvard University Press, 2015, 138 pp.In the past decades scholars have come to revise the view that Rousseau and Smith were on opposite sides in their appreciation of commercial society. In Politics in commercial society: Jean-Jacques Rousseau and Adam Smith (posthumously published and edited by Bela Kapossy and Michael Sonenscher), Istvan Hont (1947-2013) takes the issue to a new level. He presents Rousseau and Smith both as theorists of commercial society, arguing that we still underestimate the extent to which they held similar aims and views. They were engaged in conversation with fellow contributors to the ongoing debate on how to balance self-love, growth and stability through politics in commercial society. Emphasizing their extensive common ground, Hont highlights the riddle of why they held such different views on politics. Aiming to solve this riddle, he reconstructs the political theories of Rousseau and Smith, arguing that the themes and concerns of their contrasting visions of politics in commercial society still define tensions in modern politics.In the first two chapters Hont maps out the agreements and disagreements between Rousseau and Smith. He places them in the Hobbesian, selfish tradition, engaged in refining the moral foundation of selfish theory. While agreeing with Hobbes that humans have no inborn sociability, Rousseau and Smith rejected the Hobbesian claim that sociability only arises after sovereign power is established by contract to control the disruptive human desire for recognition and superiority. Instead they offered a conjectural history of law and government, explaining the rise of sociability and pre-political consensus out of need and utility. Sociability as well as morality are the natural outgrowth of development through which humans learn the benefits of cooperation and cohesion. Along the way, however, people also start to compare themselves, evoking envy and the desire for recognition and superiority with the inevitable result of dissension and conflicts. Thus Rousseau and Smith sought to explain how passions and judgments linked to selflove became the building materials of a working moral enterprise.Given their alternative view on the origin of sociability, Rousseau and Smith had no need for Hobbes's absolutism, which neglects prepolitical consensus and commercial sociability. Commercial society, interpreted by Hont as a halfway house between Tonnies's 'Gemeinschaft' and 'Gesellschaft', reflects this tension between pridebased and utility-based sociability. Hont argues that the tension between these two types of sociability has been pinned on Rousseau and Smith as if they were in two minds. The well-known Adam Smith problem has a precedent in Rousseau. Both 'problems' concern the (in)compatibility of amour-propre and compassion in commercial society, and lead up to the question of how inherent tensions need to be complemented by government to arrive at a stable social order. If commercial sociability is a product of historical evolution, how does politics develop from preexisting sociability and how can the rise of justice and government be plotted?Despite all similarities, Rousseau's and Smith's sketches of the historical development of law and government bring to light that views diverge on law, liberty, property, and inequality. As a consequence, Hont shows in chapter three and four, Rousseau and Smith developed very different visions of politics. One bone of contention is the question of what comes first: judges or the law? Rousseau, arguing from a contractual perspective, claimed the primacy of the law, taking his cue from Locke. Locke had argued that natural authority based on trust was bound to be corrupted with economic development. The institution of private property and the invention of money allowed accumulation of wealth, which increased inequality and created conflicts, only to be solved by establishing a legalized regime by social contract. …

Terms of Use: Reflections on a Theme

The paper presents multiple perspectives on the unpopular but omnipresent terms of use (or "ToUs"), i.e. terms and conditions contained in a link at the bottom of many websites. ToUs serve different functions: from governing the transaction taking place on a website, (e.g. contracts of sale) to the very act of browsing. Accordingly, every browsing experience has both a commercial and a legal tint. On a theoretical level ToUs raise concerns with regards to their validity as legally binding contracts as well as to their incorporation. Both formation and incorporation converge on the presence and quality of contractual intention. The latter underpins the freedom of contract - a concept frequently overlooked in endless discussions of "click-" and "browse-wrap" agreements. One must not be deceived by the paper's purely contractual perspective - problems of ToUs underlie many legal aspects of privacy and intellectual property. Our most important online relationships with providers like amazon, facebook or google are governed by ToUs that are frequently perceived as irrelevant, unimportant or simply unenforceable. Many traditional arguments raised "against" standard terms can be transposed onto online ToUs. Care must be taken not to imply that these arguments are new or unprecedented. What cannot be denied, however, is that the growing importance of ToUs online sheds new light on these "old" problems and forces a re-evaluation of some traditional positions in light of the technological possibility of ensuring a nearly seamless communication process: informing the website user that terms exist and ensuring their availability. At present, the problem has not been addressed in any of the Asian jurisdictions. Given the growing importance of online transactions in their national economies it is only a question of time when courts will have to confront ToUs in all their complexity.

A Categorization Model of Requirements Based on Max‐Neef's Model of Human Needs

ABSTRACTRequirements categorization is an inherent part of the requirements engineering activity. Conventional approaches use a designer perspective (requirements organized according to design needs or attributes), a contractual perspective (requirements organized according to procurement or acquisition needs), or a combination of both. Such models present several inconveniences that result in limitation of system affordability: facilitate the generation of overlapping requirements, of design‐dependent requirements, and of a mix of requirements applicable to different levels of the architecture decomposition or to different products. The present research proposes a Need‐based Categorization (NbC) model that is system‐centric: Requirements are organized around the system. Inspired by Max‐Neef's model of human needs, the proposed model supports requirement elicitation by defining only what the system does, how well, where, and what it uses to accomplish it. The model facilitates the identification of constraints that limit the solution tradespace without supporting the satisfaction of new needs, of overlapping requirements, and of requirements that are not applicable to the system. Finally, the proposed model defines requirements in subsets that are associated with value to stakeholders, thus reflecting the actual dependency nature of requirements at a given level of an architecture decomposition, which promotes holistic decisions instead of local optimizations.

Review Essay: The Antiglobalisation Paradox – Freedom to Enter into Binding International Law is Real Freedom

In The Globalization Paradox, Dani Rodrik sets up what he calls a policy trilemma among hyperglobalisation, democracy and autonomy. This trilemma is best understood as a trade‐off between national autonomy and rules that promote globalisation. However, a contractual perspective on international law – recognising that states use international law to make exchanges of policy autonomy in ways that enhance each consenting state's welfare – suggests that there is no real trade‐off between national autonomy and international legal rules that promote globalisation. The antiglobalisation paradox is that these rules of international law may be seen as an expression of national autonomy. There is no trilemma, and even the trade‐off between national autonomy and globalisation must be understood instead as a trade‐off between two ways of promoting national welfare: one through autarchy and the other through international legal exchange. It then becomes apparent that a bias in favour of autarchy is mistaken, as it inappropriately limits the ways in which governments may promote national welfare. Furthermore, international law does not necessarily need, at the international level, the same types of mechanisms for democratic accountability that are required at the national level, because states consent to international law through their national democratic processes. Globalisation can take place through international legal rules that have appropriate democratic credentials and that leave in place appropriate national autonomy.