Contractual Position Research Articles

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.

Modeling the dynamics of contractual relations.

Contracts usually have clauses that enable contracted parties to adjust their contractual positions in time, e.g., to relieve another party from duty or to grant new permission. This is especially important in long-running service relations, which require contracts to be adjusted to accommodate new or unforeseen circumstances. Despite that, the representation of dynamic aspects of contractual relations has not been given enough attention in the literature. In this study, we address this gap by employing the notions of legal power and legal subjection. We propose an ontological analysis of unilateral contractual changes based on a well-founded legal core ontology that adopts a relational perspective for legal positions. We present a case study to show the benefits of representing different types of contractual changes and how these changes can impact contractual dynamics. The case study is based on recent changes to WhatsApp terms of service.

Postgraduate Psychiatry Training Programme in Morocco

AimsThe field of psychiatry in Morocco has grown significantly since the 1970s, from less than 10 psychiatrists to the current number of around 400. The increased number of practising psychiatrists has enabled the expansion of local residency training programmes, which has been set up since 1974 to cater for the population needs of more than 36 million population of Morocco. This study is aimed to describe the current medical educational approach of the Moroccan postgraduate psychiatry training programme.MethodsThis descriptive medical educational study was based on official training documents and interviews with local faculty members involved in the training.ResultsThe entry requirement of the four-year Moroccan postgraduate psychiatry residency programme includes the completion of 1 year of foundation training and passing the entrance examination consisting of psychiatric semiology and pharmacology. The postgraduate residency programme is run by the local universities in collaboration with the Ministry of Health and accredited by the Moroccan government. Trainees have the option of taking up a voluntary or contractual position with the government or University Hospitals. All trainees will go through 34 months of general adult outpatient and inpatient, while liaison psychiatry training starts from the second year until the end of the training. On top of the core rotation, a trainee can opt for two months in old age and neuropsychiatry postings. Child and adolescent rotation is currently not available. Addiction psychiatry training is optional and can be done through a university diploma. The 4th year is a 12-month elective posting in any discipline that is relevant to psychiatry, which can be done either locally or abroad. Teaching methodologies involve lectures, seminars, ward rounds, case conferences, journal clubs, and skill training workshops. Formative assessments included case-based discussions and mini-clinical evaluation exercise. There are multiple high stakes summative assessments at year 1, year 2, year 3, and year 4. The summative assessment strategies includes modified essay question, clinical short case and long case. Viva voce is used to assess competency in research. Different mandatory skill competencies include electroconvulsive therapy, psychotherapy, and research.ConclusionThe advancement of local postgraduate psychiatry residency training in Morocco has improved the access of local trainees to quality training. Similar to other developing countries, Morocco requires more psychiatrists to improve the psychiatrists to population ratio so that the mental service can become more accessible to the local population.

Notes on the transposition in Italy of the principle of ‘appropriate and proportionate remuneration’ with reference to the film and audiovisual sector

Article 18 of the Directive on Copyright in the Digital Single Market1 introduces a principle of ‘Fair remuneration in exploitation contracts of authors and performers’ within Title IV entitled ‘Measures to achieve a well-functioning marketplace for copyright’. As it is clear from recitals 72 and 75, the principle is based on the fact that authors and performers tend to be in the weaker contractual position, so as to require protection through rights harmonized under Union law. Before the enactment of the legislative decree no. 177/2021,2 which implemented the Directive in Italy, a discussion took place as to the exact meaning and effects of Article 18. According to a commentator, in particular, this provision could have been considered as merely establishing the principle (and intrinsic limitations) inspiring the subsequent provisions of the Directive. Therefore, the Italian legislator could have fulfilled its obligations without affirming a right to adequate and proportionate remuneration. The parties would remain free to agree as they wish on the remuneration due to the author or performer, leaving it to the right of information and the contract adjustment mechanism provided for in Article 20 of the Directive the correction of grossly disbalanced agreements.3

NOTES ON THE ASSIGNMENT OF CONTRACT IN THE NEW ROMANIAN CIVIL CODE

Reduced to its basic functioning, the legal operation of assignment of contract implies a global transfer of the contractual position of one party, assignor, from a contract concluded with the ceded contractor, to a third party, assignee. If the legal operation as such does not seem to raise complications, it was an object of dispute in Romanian civil law even before the New Romanian Civil Code in force since 2011, considering the personal nature of the obligation relationship, especially with regard to the passive element of the obligation. Considering the debates around this topic in the legal doctrine of the Romanian Civil Code of 1864 and following certain arguments advanced in French civil law, the New Romanian Civil Code explicitly recognizes the assignment of contract as a distinct legal figure with specific effects in Articles 1315-1320. This article intends to analyse the legal regime of the assignment of contract, from the debates in the legal doctrine around this topic in both Romanian and other legal systems to the specific legal provisions which address the assignment of contract, starting with the notion of assignment of contract, the form of the assignment, the moment in which the assignment occurs, the effects the transfer has on the assignor, the legal exceptions which can be formulated by the ceded contractor and the warranty obligations of the assignor.

Tracking Down the Educational Backgrounds of Graduates of Industrial Technology Education Program of a Public University

In this day and age of globalization, effective agents and managers generate significant opportunities for professional development and progress in virtually every industry and field of effort. The primary objective of this research was to track down former students who had graduated from the Industrial Technology Education Program at Isabela State University between the academic years of 2003 to 2007. This was done in order to inquire about the graduates' current employment situations, with the ultimate goal of collecting data that can be used as a foundation for the university to improve its educational curriculum. In order to collect the information that was required, the Commission on Higher Education's Graduate Tracer (GTS) Standardized Survey Questionnaire was applied. This questionnaire was designed and is endorsed by the Commission on Higher Education (CHED-GTS, 2005, Revised 2007). According to the findings, the fact that graduates from all four campuses of Isabela State University are considered employable demonstrates that the academic program of industrial technology education that was provided between the academic years of 2003 to 2007 were both effective and relevant. This finding was based on the fact that graduates from all four campuses of Isabela State University are considered employable. Graduates are currently working in a variety of jobs in the local and global labor markets, including full-time, part-time, temporary, and contractual positions, as well as self-employment. These graduates are engaged in the roles of service workers, technicians, professionals, and associate professionals. Graduates have a high rate of success in obtaining government eligibilities and certificates, as well as passing licensure examinations, and they also have a high rate of participation at trainings and advanced studies. It was found out in this particular inquiry that the personal traits and educational backgrounds of graduates had an effect on the employment situations that those graduates found themselves in after graduation. As a direct result of this, the graduates were given at least some access to a pertinent pre-service training program that was made available to them.

The renewed bestseller clause of the copyright act

The bestseller clause of the Copyright Act is an older legal institution of Hungarian copyright law. The rule was taken over by Hungarian law from the German Copyright Act. The bestseller clause provides protection for a creator in a weaker contractual position than the user. It provides effective assistance for the subsequent consideration of unforeseen circumstances at the time of the conclusion of the contract. Its primary purpose is to remedy the post-contractual shift in value using the special means of judicial amendment of the contract.The legal institution of the bestseller clause is a special regulatory solution compared to the provisions of the Civil Code on invalidity. It is a special provision compared to invalidity in the event of a significant difference in value, however, it provides a strong limitation on the legal consequences of invalidity.It only provides an opportunity for the court to amend the contract and eliminate the striking difference in value.The rule has very poor judicial practice, both in Hungary and abroad. The primary reason for this is that the parties apply contractual arrangements that avoid future uncertainties regarding the amount of the royalty.One of the aims of the DSM Directive is to extend the legal opportunities for weaker contracting parties, including the EU-level harmonization of the bestseller clause. According to Article 20 DSM, Member States shall ensure that in the absence of an applicable collective bargaining agreement providing for a mechanism comparable to that set out in this Article, authors and performers or their representatives are entitled to claim additional, appropriateand fair remuneration from the party with whom they entered into a contract for the exploitation of their rights, or from the successors in title of such party, when the remuneration originally agreed on turns out to be disproportionately low compared to all the subsequent relevant revenues derived from the exploitation of the works or performances. The essay examines the possible effects of the extension of the bestseller clause to new areas in the national copyright law and the relationship between the new provisions and civil law invalidity rules.

Not Simply ‘Counting Heads’: A Gender Diversity Index for the Team Level

This article proposes a new composite measure of gender diversity for research teams that goes beyond simply ‘counting heads’. This measure adopts a more elaborated understanding of gender diversity than merely relying on the proportion of women and men, by taking into account the outcomes of gendered processes along seven grounds of diversity (age, care responsibilities, marital status, education, tenure, seniority, contractual position). Rather than focus on the individuals or the organisations, this measure is computed at the level of teams. This is because teams constitute a unit of analysis highly relevant to the context of higher education research but are often neglected. Illustrations of the results for STEM research teams are provided to show the potential uses of the Gender Diversity Index as a diagnostic tool (e.g. in certification schemes such as Athena SWAN in the UK and elsewhere), or to measure and report on the progress of gender change within higher education institutions.

Administrative Contracts in Serbian Law – Specificities of the New Statutory Regime

The subject of this paper is the special legal regime for administrative contracts under the recently enacted Serbian Law on General Administrative Procedure of 2016. We offer a comprehensive analysis of the new statutory rules, and examine their relationship to the general rules and principles of Serbian contract law. In addition, we identify the main shortcomings of the new regime, especially in the context of the lack of any statutory, scholarly and judicial typology of administrative contracts in Serbia. Furthermore, we highlight the lack of references to the notions of public interest, public purpose or public needs in the statutory definition of administrative contracts. This is cause for concern, since only the need to protect the public interest could justify the new statutory provisions, which significantly improve the contractual position of a public body as a contracting party in relation to the position of a private entity as the other party in administrative contracts. There is as yet no case law pertaining to administrative contracts in Serbia. This is why we turn to practical experience in the Croatian legal system, which is sufficiently similar and historically connected to Serbia via a shared Yugoslav heritage. We also consider German and French legal models, since they traditionally serve as comparative points of reference for Serbian legal scholars, judges and law makers.

Impact of corporate social responsibility practices on employee commitment

PurposeThe purpose of this paper is to critically review the existing literature on corporate social responsibility (CSR) to develop a framework to analyse the impact of CSR on employee commitment to the organisation.Design/methodology/approachUsing the scoping review, this paper reviewed the published articles on CSR and employee commitment and how CSR and employee commitment were defined, theoretically supported and conceptualised for a comprehensive understanding of current and future research directions in the field.FindingsThis paper presents a framework developed through the analysis of existing literature on the impact of CSR) on employee commitment to the organisation. This framework aims to explore the impact of internal CSR and external CSR on employee commitment while using the contractual position of employees as an intervening variable.Originality/valueDuring a time where employee attraction and retention is widely discussed as a competitive advantage, this framework could be used by any industry, especially those with high staff turnover such as mining. The researchers propose to use this framework to explore how perception towards external CSR (directed towards external stakeholders) and perception towards internal CSR (directed towards the own employees) can influence organisational identification and commitment levels. To address several gaps in the literature, this model is based on the Maslow’s Hierarchy of Needs and Social-Identity Theory.

The Principle of Appropriate and Proportionate Remuneration of ART.18 Digital Single Market Directive: Some Thoughts for Its National Implementation

Directive (EU) 2019/790 of 17 April 2019 on Copyright and related rights in the Digital Single Market [DSMD] has taken a significant step towards improving fair remuneration of Authors and Performers across the EU, by establishing a set of harmonized mandatory principles and rights to strengthen their contractual position. Now, it is up to Member States to complete this job by implementing them in national laws. Member States must ensure that Authors and Performers effectively obtain fair remuneration for the exploitation of their works and performances. To that end, Member States must rely on a variety of mechanisms at their disposal. Statutory contract rules (already existing in most national laws) are necessary, but not enough. Sectorial collective bargaining, where available, may help define minimum remuneration schemes as well as other rules for the enforcement of the transparency, contractual adjustment, alternative resolution and revocation provisions mandated by the DSMD. However, conditions for a successful negotiation and enforcement of collective bargaining agreements are only a reality in a handful of countries and for specific sectors and, even then, with a limited scope (affiliated members and new productions). Statutory residual remuneration rights, granted by law as unwaivable (and inalienable) rights to receive remuneration subject to collective management (mandatorily, if necessary) and paid by users/licensees remain the best mechanism to secure effective fair remuneration for Authors and Performers, especially in the audiovisual and music sectors. Residual remuneration rights, retained by Authors and Performers after transferring their exclusive rights to producers, are in compliance with EU acquis and international instruments. They neither “duplicate” the transferred exclusive right nor “substitute” it for a statutory license. Residual remuneration rights are “merely” a statutory mechanism to secure that Authors and Performers receive fair remuneration for the transfer of their exclusive rights to Producers, especially when dealing with specific means of exploitation which - due to contractual and/or factual circumstances - are not conducive to provide fair remuneration for them. The principle of fair remuneration in Art.18 DSMD not only confirms the important role of national legislators in securing that goal, but obliges them to explore and implement the full potential of these several mechanisms, adjusting them to different sectors as necessary. Let’s hope national legislators successfully complete the important task started by the Directive.

Accounting for pandemics and economic crises management: Moral hazard, blockchain, and smart-contracts

During economic crises, sovereign states and central banks support the general economy and firms with a range of emergency measures, such as the allocation of subsidies to enterprises and citizens. The sudden availability of money without the need for any consideration by the recipient leads the way to inappropriate conduct known as moral hazards, such as diversion or improper use of the financial resources received. The moral hazard arises from the individual tendency to rational behavior when in the presence of information asymmetry, inadequate controls, or favorable contractual positions. To reduce moral hazard, and to preserve the intentionality of the states, information asymmetry must be reduced. Avoiding moral hazard is particularly important in cases such as the COVID-19 pandemic, but also during economic crises and other emergency situations. This paper conceptualizes a relevant topic for the economy and accounting fields of study because information tends to be naturally asymmetrical. Traditional accounting is limited by the fact that some accounting practices or techniques can be used to reduce the effect of the pandemics on the economic performance of organizations. In our study we propose a way to reduce the natural subjectivity in accounting and reporting, using blockchain and smart contracts technologies, as a solution to information asymmetry during crises (such as economic ones or pandemics)

Contractual Relationships in Collaborative Economy Platforms

The collaborative economy platforms have become part of the lives of many citizens; their number is growing day by day and covers many sectors of the market. However, it is a deregulated sector because the existing regulations are very difficult to apply, due to the complexity of contractual relationships in three bands (platform, provider and user), which causes uncertainties about which of the parties involved should be subject to the rules. This paper seeks to clarify the respective relationships and contractual positions of each of the three parties and, especially, of the platforms, in order to determine what their rights, obligations and responsibilities are. First, the contract between provider and user (the underlying contract by which the goods or service are provided) is studied, whose most notable problem derives from being a contract between strangers, based on data that they themselves have published on the platform website. Next, the contractual relationships of the clients (provider and user) with the platforms are studied, distinguishing three types of platforms, according to the function they perform in the contract between the provider and the user (the underlying contract). The conclusion reached is that the legal position of the first type of platforms is very similar, although with nuances, to which the Internet Service Providers (ISPs) have data hosting. The position of those of the second group is similar to that of an agent. Finally, the position of the platforms of the third type is distinctive since it is obliged to provide a service, but uses a third party (auxiliary or subcontractor) to carry it out.

Development of Automatic-Extraction Model of Poisonous Clauses in International Construction Contracts Using Rule-Based NLP

As construction projects have significantly increased in size and become more complicated, the number of claims and dispute cases between participating parties during the construction work have been continuously increasing. To prevent such claims and disputes, the participants need to be assured of their contractual positions and rights based on contract facts. For this reason, the process of writing and reviewing the contracts for construction work is crucial. Most international construction projects require contract management teams to review all the possible risks in the contracts during the bidding periods. However, it is very difficult to review a vast number of contracts in a short period of time. Therefore, in this study, we proposed an automatic model of contract-risk extraction based on natural language processing (NLP) that can automatically detect the poisonous clauses of the contract in order to support contract management for construction companies (contractors). In validating the performance of the automatic model developed in this study, we found that the precision and recall were both 81.8% compared with manual review. This study is meaningful since a model has been developed that can carry out a preemptive contract-risk review.

I is for Agency: Education, Social Justice, and Auto/Biographical Practices

In this polyphonic pedagogical essay, six members of the Department of English at the University of Puerto Rico at Mayagüez discuss their incorporation of auto/biographical acts into course syllabi for the purpose of facilitating social justice in and through education. Drawing from disciplinarily diverse faculty members holding different contractual positions within the university, this essay demonstrates the widespread need for creating space for student voices as means of supporting agency on- and off-campus, especially in times of disaster, tragedy, and crisis.

Design of a safety cost estimation parametric model in oil and gas engineering, procurement and construction contracts

The purpose of this research is to identify parameters that govern safety costs in oil and gas projects. An initial conceptual model was proposed to identify the contractual position of safety management system in engineering, procurement and construction (EPC) projects, followed by identification of safety work packages and estimated costs per package. Next, a work breakdown structure (WBS) and cost breakdown structure (CBS), with the suggested safety parameters included for the case study project in focus. Then, a mathematical model was designed based on the parametric modeling approach and the related weighting factors were determined. The proposed model can be considered as an innovative approach to designing safety indicators in oil and gas projects. Field studies and interviews were conducted to investigate the validity of the variables based on the Delphi method. Finally, safety management costs for different phases of the project and related weighting factors were determined separately. The results indicate that the safety management's weighting factors are 1.1% of the total project's weighting factor.

Lack of application of the European Work Time Directive: effects on workload, work satisfaction and burnout among Italian physicians

The Italian Parliament has excluded hospital physicians from the application of the European Work Time Directive (EWTD), which imposes a maximum workweek of 48 h and compulsory resting periods. This resulted in extended and excessive work time for the category. This paper is aimed at evaluating the impact of this legislation gap, by assessing the presence of excessive work-related stress and risk for burnout syndrome among Italian physicians working in public hospitals. This observational study is based on an on-line survey conducted on a sample of 1925 Italian doctors (covering a wide range of age, work experience and contractual positions) from October 2014 to February 2015. The questionnaire included 30 questions concerning their personal and professional life (<em>e.g</em>., assessment of workloads, number of uncomfortable or extra shifts, unused days-off, <em>etc</em>.). On the basis of the results, it can be inferred that the average Italian doctor working in public hospitals is under considerable stress at work with negative consequences on his health. He is exposed to high risk of suffering from sleep disorders and cardiovascular diseases (due to the lack of time for private practice and eating regular meals). Overall, his perception is that his job worsens his quality of life. This study shows the relevance of the risk of burnout among Italian physicians employed in public hospitals due to severe workload and work conditions. The resulting impact on the quality of care and the significant cost involved - both in human and economic terms - calls for significant emergency measures by the Italian health work organization. An important increase and prolonged working time is associated with a worsening of the objective cognitive performance and an increase of clinical risk, but also to an increased risk of diseases for operators and of the burnout syndrome. Our survey shows that lack of application of the EWTD has adverse effects on the quality of life and performance of Italian doctors. Failure to respond by all Italian doctors is the greatest limitation of our survey.

Peer-to-Peer Lending: Opportunities and Risks

AbstractWeb-based financial intermediation on a peer-to-peer (P2P) basis will eventually prevail as an economically superior form of organisation compared to the traditional banking business model. P2P lending is the most popular type of crowdfunding, whereby an internet platform collects small amounts of funds from individuals in a crowd to finance collectively a larger loan to individuals or businesses. Unlike a commercial bank, the platform does not take risks through its own contractual positions. Whereas banks accumulate risks by taking positions on their balance sheet, platforms decentralise the risks by spreading them to their users. The emergence of financial platform businesses challenges legislators and regulators in several respects: the “easy way” of modifying existing finance and banking laws is inadequate; the internal organisation and knowledge of staff is not well suited to regulating crowdfunding; and capital mediation by crowdfunding platforms requires a different regulatory approach than banking. Finally, there is no doubt that P2P lending platforms will in the long run need a dedicated, single European regulatory framework.

채권의 (가)압류와 계약인수 - 계약인수와 주임법 제3조 4항과의 비교를 중심으로 -

채권에 대한 압류 또는 가압류가 있는 경우, (가)압류의 처분금지효로 인하여 채무자는 그 채권을 양도할 수 없고, 제3채무자는 (면책적) 채무인수를 할 수 없다. 그러나 그 채권의 발생기초가 되는 채권관계에 대한 처분은 구속되지 않는다고 봄이 일반적 견해인데, ‘채권관계에 대한 처분’에 계약인수가 포함되는지가 문제된다. 계약인수는 사적자치의 영역에서 자유롭게 인정되지만, 그 법적 규율은 원칙적으로 채권양도와 채무인수의 규정을 준용할 수밖에 없다. 다시 말해서, 채권의 (가)압류에도 불구하고 허용되는 ‘채권관계에 대한 처분’에는 계약의 해제ㆍ해지나 취소와 같은 그 채권관계에 본래적으로 - (가)압류 전에 존재한 - 내재된 권리의 행사에 의한 처분에 한하고, 계약인수와 같이 특정승계의 성격을 갖는 처분행위는 그 본질이 채권양도 내지 (면책적) 채무인수에 준한다는 점에서 (가)압류의 처분금지효에 반하기 때문에 허용될 수는 없다고 본다. 반면, 주택임대차보호법 제3조 4항은 임대목적물이 양도되면 양수인이 임대인의 지위를 승계한다고 규정하고 있는데, 이는 법률규정에 의한 계약인수로서 포괄승계의 성격을 갖는 처분행위라는 점에서 (가)압류의 처분금지효에도 불구하고 허용되어야 한다고 본다. 왜냐하면, 포괄승계의 대표적 예에 해당하는 상속에서는 상속인이 채무자의 지위를 당연히 승계하는데, 이는 주임법 제3조 4항에 의한 승계를 포괄승계로 이해하는 한 동일하게 규율되어야 하기 때문이다.

“If It’s Easy to Read, It’s Easy to Claim”—The Effect of the Readability of Insurance Contracts on Consumer Expectations and Conflict Behaviour

In the area of financial services, lawmakers and regulators increasingly promote the use of plain language in business-to-consumer contracts. Although such efforts are undoubtedly welcomed by consumers, as they promote better comprehension, not much is known about the actual effects of improved readability on consumer attitudes and cognitive processes. Does improved readability in general contract terms have an impact on the consumer’s perception of their contractual position? Do contracts that are easier to read influence the steps or actions taken by consumers in the wake of conflict? In response to these questions, we present data from an experiment that investigates the relationship between the reading ease of general contract terms on the one hand and consumer expectations and willingness to engage in conflict on the other. Our findings suggest that readability increases the trust and confidence of the consumer in the sense that it increases their expectations of the claim. Moreover, we have found partial evidence to suggest that reading ease also increases the consumer’s willingness to engage in legal action in the case of subsequent claim denial.