Contract Research Articles

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.

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.

Legal Certainty of Abuse of Circumstances as a Basis for Contract Cancellation in Indonesia

This research discusses the necessity for legal reform in regulating abuse of circumstances within contract law in Indonesia, considering the existing legal vacuum that has the potential to cause uncertainty and injustice in transactions. By analyzing the provisions in the Civil Code (KUHPerdata) and comparing them with the laws of other countries, such as the Netherlands, this study identifies ambiguities and shortcomings in the regulations concerning defects of will, particularly related to abuse of circumstances. The findings indicate that legal uncertainty negatively impacts the bargaining position of the weaker party, creating risks of unfair practices in agreements. Therefore, this research recommends the recognition and clearer regulation of abuse of circumstances to enhance legal protection for vulnerable parties and promote the creation of a fairer and more transparent business environment in Indonesia.

PENGARUH 'URF DALAM HUKUM PEMINANGAN DAN AKAD NIKAH, STUDI KOMPARASI KHI DI INDONESIA DENGAN QĀNŪN AL-AHWĀL AL-SHAKHṢIYYAH DI YAMAN

One of the sources of Islamic law is the 'urf argument. The use of this argument is often found in cases where there are no provisions in the Qur'an or hadith. This paper examines the role of 'urf in the articles of the Compilation of Islamic Law in Indonesia and the Personal Status Law in Yemen, particularly in the articles related to the law of engagement and marriage contracts. This research is a qualitative study with a literature review type. (library research). Using a legislative approach and also a comparative approach with a Micro Comparison scale. The main sources used are the KHI book and the Qānūn al-Aḥwāl al-Shakhṣiyyah al-Yamani, which were then analyzed qualitatively to determine the extent of the role of 'urf in those articles. The conclusion of this research is: 1. The importance of considering 'urf in marriage law legislation, taking into account Islamic legislation which is largely absorbed from fiqh schools with different societal 'urf settings. 2. In the context of marriage proposal and marriage contract law, the application of 'urf in the Qānūn al-Aḥwāl al-Shakhṣiyyah of Yemen receives more emphasis than the KHI of Indonesia. Proven by the recitation of Surah Al-Fatiha and the exchange of gifts in Article (2), and the mention of the formula of offer and acceptance using phrases that mean "marriage" according to 'urf in the text of the Article. (7). Also, the Personal Status Law of Yemen opens the possibility of marriage contracts via letter, telephone, or video conference. Meanwhile, the KHI places more emphasis on the use of delegation to avoid the process of remote marriage contracts.

How Will Consensus on Key Elements of the International Legally Binding Instrument on Plastic Pollution Be Reached by the End of 2024?

How Will Consensus on Key Elements of the International Legally Binding Instrument on Plastic Pollution Be Reached by the End of 2024?

Sosialisasi Hukum Tentang Hak-Hak Keperdataan Masyarakat Yang Timbul Dari Perkawinan Dan Perjanjian

Introduction: Society as a legal subject has civil rights in legal interactions within the community. These civil rights come in many forms, and the socialization carried out includes marriage rights and contract rights. Therefore, legal socialization is necessary to provide enlightenment regarding civil rights.Purposes of Devotion: The purpose of this community service is to transform information and legal knowledge related to civil rights of the community.Method of Devotion: The outreach activities are carried out by conveying a) information and legal knowledge; b) dissemination of marriage law; and c) dissemination of contract law.Results of the Devotion: Increased public understanding of rights arising from civil law relationships, particularly marriage and contract. The community obtains information from the aspect of marriage law regarding the requirements of marriage, rights and obligations within marriage, and the legal consequences of marriage. From the aspect of contract law regarding the validity of unwritten contracts that are often made by the community and their legal consequences. This legal education is expected to provide guidance on legal protection and preventive measures.

Big Data Misuse and European Contract Law

Big Data Misuse and European Contract Law

Analisis Sengketa Wanprestasi dan Ganti Rugi dalam Kontrak Pengadaan Jasa Ditinjau dari Kitab Undang-Undang Hukum Perdata

Contract law plays a key role in trade and business. Failure to fulfill obligations in an agreement, known as default, can include non-fulfillment, delays, or performing actions not aligned with the agreement. The aggrieved party is entitled to seek compensation for the default. In a service agreement case resolved through arbitration, the Respondent was found to have defaulted. Despite both parties agreeing to all terms and performing the contract without objection, the Respondent was ordered to pay compensation under Article 1248 of the Civil Code, which includes the concept of "fraud." The author aims to analyze how default in service procurement is resolved through arbitration and whether the arbitral panel’s decision to impose compensation is justified according to the Civil Code and the contract. The research employs a normative legal approach, focusing on literature and statutory regulations. The findings show that both parties committed default, yet the arbitral panel only adjudicated the Respondent, as the Claimant was not counter-sued. Moreover, the Respondent's actions cannot be classified as fraud. The compensation imposed by the arbitral panel based on Article 1248 of the Civil Code should be seen as abuse of circumstances, not fraud..

Defects of English Rules of Contractual Interpretation and Their Challenges for African Businesses

Abstract The Law Society of England and Wales, as well as English politicians and judges, claim that English (contract) law is admirable, settled and predictable, and non-English legal systems are “laxer systems” whose judges are not as exceptionally knowledgeable as English judges. These claims of legal superiority attract foreign litigants such as African businesspeople to use English laws and forums to resolve their contractual disputes. This article aims to disprove these claims by rigorously assessing them from an Afrocentric lens, as well as from the prediction theory of law, English case law, and rules of contractual interpretation. It finds that English contract law and dispute resolution mechanisms are far from predictable and settled. Also, there is a staggering level of disagreement among English judges regarding their interpretation of commercial contracts. The article exposes the defects of English contract laws to enable foreign businesses to make informed decisions about their choice of laws and forums to resolve their contractual disputes.

The Unidroit Principles of International Commercial Contracts: potential for greater use in the Middle East and North Africa

Abstract The International Institute for the Unification of Private Law’s (Unidroit) Principles of International Commercial Contracts (UPICC) provide a uniform international instrument setting out general rules for international commercial contracts as an alternative to the State law-centred approach to contracting and dispute resolution. While the UPICC are well known among academics and frequently referred to in practice in many regions of the world including Europe, Latin America, and Asia, they are applied far less often in the Middle East and North Africa (MENA). This is in spite of the fact that their use appears to be widely permissible under MENA States’ domestic legislation, and international trade involvement provides opportunities for them to be applied productively. The reasons for less usage in the MENA region are manifold and include, among others, a judicial tendency to apply domestic law, the hierarchy between the Islamic Sharia and lex mercatoria, the limited involvement of experts from the MENA region in the elaboration of the UPICC and their subsequent promotion, and limited linguistic accessibility. Potential advantages of greater usage include the promotion of fair and harmonized contract practices and facilitating the resolution of cross-border private legal conflicts as well as the UPICC’s use as a model and reference for modernization and harmonization of contract law across the region and beyond. This article examines the use of the UPICC in MENA and the potential for facilitating their future impact in the region, focusing on Arab jurisdictions influenced by Islamic law.

The future of negotiations under the climate change COP (Conference of the Parties): Implementation is not enough

Ever since the adoption of the Paris Agreement's rulebook, the United Nations (UN) climate regime has been in an implementation phase. Patchy and weak implementation of the Paris Agreement obligations, however, has led to calls for the Conference of the Parties (COP) to take a more active role in promoting delivery. However, the COP's scope for action is constrained by its limited mandate and unwieldy process. There are potential ways around these constraints, such as leveraging the authority of COP Presidents, reforming the COP, or setting up ‘climate clubs’ outside the COP. However, given that global emissions continue to rise, and ambition also remains insufficient, this commentary argues for a more radical approach: introducing a voting rule, and negotiation under the COP of new optional legal agreements on specific emission sectors and sources.

Gains from Contractualization: Evidence from Labor Regulations on Chinese Workers

Abstract The 2008 Labor Contract Law of China stipulates that all employment relationships must be covered by a written labor contract. This regulation considerably strengthened employment protection for workers. Using a unique longitudinal dataset, the China Labor-force Dynamics Survey (2012, 2014, and 2016 waves), this article estimates the impact of the formal contractualization of labor relations on workers’ labor market outcomes, social insurance participation, and job satisfaction. We find that obtaining a labor contract was strongly associated with an increase in salary, a decrease in working overtime hours, and greater participation in unemployment and pension insurances. In terms of job satisfaction, workers who obtained a labor contract reported being less satisfied with their workplace environment and income than they had anticipated. This is not to suggest that workers are not benefiting from the law. Instead, it suggests that workers had higher expectations from benefits gained through contractualization than what they derived.

Linking the Right to Electricity as a Contractual, Derivative and Human Right through the Undisclosed Principal Agency Law

The South African Constitution in its Bill of Rights does not explicitly detail a human right to electricity, as with other socio-economic rights. This, however, does not change the fact that electricity is a sought-after commodity that is essential to the everyday life of people in the modern era and essential to the development of a nation's economy. The only instruments that detail electricity as a right are international instruments such as the Convention on the Elimination of All Forms of Discrimination Against Women and the United Nations Sustainable Developmental Goals, that emphasise electricity as a right that states must fulfil towards their citizens. This discussion hypothesises that the company law agency model of the undisclosed principal can be used to better explain the relationship between Eskom, municipalities or private municipal service providers and citizens. It discusses a three-way legal relationship among these stakeholders when providing electricity. Due to the three-way legal relationship, three forms of rights exist: contractual, derivative and human rights. By using undisclosed principal agency law, this discussion will explain how the legal relationship between the state, municipalities and citizens, and the resultant duties herein, create contractual, constitutional and human rights duties for the state to adhere to for the ultimate benefit of citizens.

The potency of the OHADA law in the African digital economy

Abstract There are various technological developments or innovations that have (or will in the future) radically transform business transactions and the way in which people work, enter into contracts, and fulfil their contractual obligations. The principal focus of this article is to analyse the shortfall of the Organisation for the Harmonisation of Business Laws in Africa’s (OHADA) law, through its Uniform Act on General Commercial Law, in failing to embrace new technologies in a trending digital era when applying traditional contract laws rules to the buying and selling of goods. This is significant because the Uniform Act, as a tool for the regulation of cross-border sale of goods contracts, has been put to the test. Although the scope of the OHADA Uniform Act on General Commercial Law is not extensive to new technologies, this article probes the question as to whether the pulse of technology poses a challenge for the traditional 20th-century rules under OHADA. In other words, is the statute robust enough to reflect the modern digital world, or will it become outdated if it is not revamped or supplemented by other conventions to accommodate new technologies and ways of conducting business? This study uses an in-depth critical analysis of the provisions of the Uniform Act in order to ascertain its potency as it concludes that it is imperative in this modern digital age for such a statute to embody technological innovations for the efficient conduct of transnational businesses.

Unraveling Incongruence: The EU Proposal in the Belgrade-Pristina Dialogue

This paper explores the complexities surrounding the acceptance of the European Union (EU) Proposal in the ongoing Belgrade-Pristina dialogue. The incongruence between Belgrade and Brussels is shaped by several interrelated factors. Central to this discord is the premature transfer of authority from the United Nations Mission in Kosovo (UNMIK) to the EU. This transition was prompted by UNMIK's failure to safeguard Kosovo's non-Albanian population and the breakdown of status negotiations, culminating in Kosovo’s unilateral declaration of independence. Although the EU has facilitated technical agreements that have supported the region's trajectory toward European integration, it has also encountered significant challenges. Notably, the withdrawal of Kosovo Serbs from political, judicial, and law enforcement institutions, compounded by the destabilizing effects of the Ukraine conflict, has intensified the crisis. These dynamics have accelerated a reliance on informal agreements, which circumvent domestic legislative processes and are characterized by a lack of transparency. The EU Proposal seeks to expedite the normalization process but contains a contentious provision that implicitly demands Serbia's acceptance of Kosovo's independence—an issue perceived in Serbia as a transgression of its core national interests. While the proposal lacks formal legal bindingness, the EU wields considerable influence, applying pressure on Serbia through mechanisms such as economic sanctions. However, such measures risk exacerbating anti-EU sentiment within Serbia. The paper argues that the EU’s strategy, which emphasizes informal agreements and seeks to avoid overt confrontation, may yield eventual progress but also risks entrenching political tensions within Serbia and Kosovo. The long-term implications of this approach remain uncertain, posing potential challenges for the stability of the EU and the broader Western Balkans region.

Blockchain-as-a-Service (BaaS) Empowered Vendor-Managed Inventory (VMI): A Paradigm Shift in Supply Chain Efficiency

This article explores how Blockchain-as-a-Service (BaaS) can revolutionise Vendor-Managed Inventory (VMI) models. VMI is a supply chain approach where vendors manage customer inventory levels. However, traditional VMI models face challenges in data sharing, integration, real-time access, security, and enforcing service agreements. To overcome these limitations, this paper suggests using BaaS to implement VMI with blockchain technology. The utilisation of BaaS in VMI processes allows organisations to utilise blockchain’s attributes, including trustless collaboration, real-time data access, heightened security, data integrity, immutability, and automation through smart contracts. The article explains how BaaS platforms offer streamlined provisioning, easy configuration, rapid member onboarding, and seamless integration with existing systems. Furthermore, it highlights the benefits of using BaaS to enhance supply chain efficiency by facilitating smooth collaboration among VMI stakeholders. In addition to these benefits, the proposed solution emphasises the use of built-in functions within each partner’s ERP/supply chain/enterprise applications, combined with blockchain integration capability, to establish a comprehensive end-to-end VMI solution. Moreover, the article provides a conceptual model of the solution that covers an end-to-end VMI process. It also provides guidelines for selecting a suitable BaaS provider tailored to VMI implementation. Through these contributions, the article proposes an innovative VMI model built upon BaaS foundations, effectively addressing the inefficiencies of traditional VMI, and ushering in a new era of optimised supply chain performance.

DISPUTE BOARDS COMO MEIO DE RESOLUÇÃO DE CONFLITOS NA LEI DE LICITAÇÕES E CONTRATOS ADMINISTRATIVOS (LEI N. 14.133/2021): A IMPLEMENTAÇÃO DOS DISPUTE BOARDS NOS CONTRATOS ADMINISTRATIVOS

This article analyzes the application of Dispute Resolution Committees as a means of resolving conflicts in administrative contracts, focusing on the Law on Tenders and Administrative Contracts (Law no. 14,133/2021). Dispute Boards emerge as a preventive and effective tool to deal with the complexity and high amounts involved in public contracts, such as concessions and public-private partnerships (PPPs). The study addresses the origin and concept of Dispute Boards, their preventive and resolutive action in contracts, and their increasing use in the public sector, highlighting the challenges and limitations in this context. Furthermore, it deals with Dispute Boards compared to other conflict resolution mechanisms, such as arbitration and mediation, comparing their advantages and advantages. Finally, areas for future research are suggested, such as the economic impact of Dispute Boards and the analysis of practical cases involving large-scale public contracts.

Franchise Sözleşmesinin Kuramsal Çerçevesinin Özel Hukuk Bağlamında İncelenmesi

Firstly, in the franchise agreement, there is no relationship between the parties such as dependent or independent merchant assistance, on the contrary, the parties to the agreement are completely independent of each other. Dec. Secondly, the parties to this agreement do the work they do on their own behalf and accounts. Franchise refers to a system consisting of intellectual or industrial property rights related to trademarks, trade names, store signs, utility models, designs, copyrights, know-how or patents that will be used for the resale of goods or the provision of services to on users. The franchise agreement, on the other hand, includes a number of obligations of the franchisor in which the franchisor grants the franchisor the right to use a franchise for the purpose of marketing certain types of goods or services in exchange for direct or indirect financial contribution, and at least; the use of a common brand or business name and the uniform appearance of facilities or means of transportation; the transfer of know-how by the franchisor to the franchisor; the continuous commercial and technical support of the franchisor by the franchisor during the agreement. In this context, the franchise agreement; it is possible to define the right to sell, distribute or operate a product or service belonging to the franchisor as a concession in a certain region in favor of the franchisee, including the use of intangible assets such as names, brands, signs, know-how, presentation and marketing strategies belonging to it, as well as a bilateral, urgent legal framework agreement that includes the inclusion of the franchisee in the organization and concept established by the franchisor with certain obligations, goals and limitations. Key Words: Franchise, Franchise Agreement, Competition, Private Law