Exclusion Clauses Research Articles

Welfare Effects of Platforms’ Exclusivity Clauses

Abstract Buyers are often active on multiple digital platforms, while gatekeeper platforms can force sellers contractually to use one platform exclusively. This paper considers the welfare effects of such exclusivity clauses for buyers, sellers and platforms in a platform duopoly with a seller membership fee. A setting with partially multihoming buyers and sellers is compared to one with partially multihoming buyers and singlehoming sellers. It is shown that exclusivity clauses predominately harm total welfare. Buyers suffer if sellers are exclusive on one platform, while platforms and sellers benefit from exclusivity clauses under certain conditions. In an environment with exclusivity clauses, when strong cross-group benefits and weak platform differentiation result in fierce price competition, exclusivity clauses can be welfare-enhancing.

Perjanjian Investasi Bilateral: Self-Judging Sebagai Solusi?

This article was prepared to formulate a strategy for formulating the drafting of exclusion clauses in bilateral investment treaties and legal policies that are in accordance with national security without violating international law. In its preparation, doctrinal legal research with legal objects is used which is conceptualized as a statutory rule based on the doctrine of positivism (normative juridical) schools. In the Discussion, it was found that Host Country has several options in implementing policies that put forward the national interest such as, asserting rights in agreements in good faith, including exceptions expressly, establishing definitions appropriately in agreements, mentioning special clause categories in agreements, conducting evaluations in a reasonable manner and self-judging. However, of the seven options already mentioned, self-judging is the most profitable option for host countries in implementing policies that orientate national interests. The self-judging clause is the choice of host country for two reasons. First, the clause gives the state discretion to unilaterally opt-out of international obligations and secondly, the evaluation of the elements for opt-out is not set out completely objectively from an external point of view, but only from the point of view of the state concerned.

A Practical Note on Drafting Exclusion Clauses Learning from Selected Dutch and English Law and Cases

<b>A Practical Note on Drafting Exclusion Clauses</b> Learning from Selected Dutch and English Law and Cases

Ending Exclusion from Refugee Protection and Advancing International Justice

In any utopic vision of the international refugee protection regime at least these two conditions ought to prevail: (1) all those who are genuinely in need of refugee protection will be granted international protection; (2) all those who are responsible for criminality, especially, serious international crimes, shall be held criminally liable. This presumes that the so-called “exclusion clauses” of the 1951 Refugee Convention, Article 1F, and those found in the regional refugee rights instruments (1969 OAU Convention, 1984 Cartagena Declaration, 2011 EU Qualifications Directive) are not required. No one would be excluded from refugee protection who meets the definition of refugee as found in these international refugee rights instruments. By the same token, anyone who is responsible for serious criminality, especially, serious international crimes, (as defined by the 1998 Rome Statute of the International Criminal Court) shall be held criminally liable. This serves the ideal of bringing an end to impunity for serious international criminality and ensuring everyone is held accountable for their contribution for the persecution of others. Accordingly, the first part of this article presents the thesis that serious criminality should be part of the inclusionary portions of the definition of who is a refugee and not its exclusionary portions, Article 1F of the 1951 Refugee Convention. Indeed, Article 1F, it is argued, is antiquated and no longer conforms to contemporary international norms and principles and can result in injustices to refugee applicants. Given the inherent complexity and difficulties with Article 1F and the fact it is no longer required, it can be repealed and Article 1A(2), the definition of who is a refugee, can be amended to not include anyone who is responsible for the commission of serious criminality. Moreover, when there is sufficiently reliable and trustworthy evidence that a refugee applicant is responsible for serious criminality then they can be prosecuted and by doing so both ending impunity for serious international crimes and advancing international justice can be achieved. The second part of the article is a commentary on the first part and raises a word of caution. The thesis of this part is that before adopting any radical solution with respect to the exclusion clause, it would be useful to provide a broader context to the issues raised. The commentary raises some questions regarding the underlying assumptions in the first part, specifically, in its examination of the human rights and international criminal justice framework. These questions are on three levels, namely conceptual, legal, and practical. The commentary concludes with some overarching observations in respect to the criticisms raised and the proposal submitted.

Exclusion Clauses, the Federal Competition and Consumer Protection Act (FCCPA) 2018 to the Rescue: Chukwuma v Peace Mass Transit Ltd

Exclusion Clauses, the Federal Competition and Consumer Protection Act (FCCPA) 2018 to the Rescue: Chukwuma v Peace Mass Transit Ltd

Self-Judging Security Exception Clause as a Kind of Carte Blanche in Investment Treaties: Nature, Effect and Proper Standard of Review

AbstractIn investment treaties, the self-judging security exception clause allows states to restrict the exercise of investors’ rights and protections provided for by such treaties during security emergencies. During the last decade, such a clause has been included in numerous investment treaties to support state positions vis-à-vis foreign investors. States consider that this provision gives them a very broad discretion to limit or derogate from obligations which arise under the treaty. In this article, after having identified the self-judging character of this clause, it will be demonstrated that such a clause does not affect the jurisdiction of the tribunal but requires the tribunal to apply the principle of good faith as the proper standard of review to interpret the elements of the clause, preventing states’ abuse of such a clause.

Multi-sided platforms and innovation: A competition law perspective

We propose a simple theoretical model emphasizing the importance of a multi-sided platform (MSP) in fostering innovation. This model aims to assess the effects of structuring industries around an MSP on innovation dynamics and emphasizes the impact of cross-platform competition. It teaches us how to encourage cross-platform competition in terms of competition policy. The outcome is threefold. To begin, the presence of an MSP is critical for market innovation. Second, our findings indicate that skewed market power in favor of the MSP may stifle innovation in this industry, even if the negative impact on the industry’s rate of innovation is not immediately apparent. Finally, we demonstrate that industries with multiple MSPs have a higher rate of innovation. The model’s conclusions emphasize the critical importance of preserving the contestability of digital markets through competition rules enforcement. Even if the inherent technical characteristics of this industry result in a situation of dominance, competition rules should aim to preserve the possibility of market competition through, among other things, interoperability requirements, data portability requirements, and control of exclusivity clauses.

Multi‐unit ownership and market power: A study of the lodging industry in Texas

AbstractAs franchisees in the retail and service industries become experienced and acquire local market knowledge, they are likely to own multiple franchised units. Given non‐ (or weak) exclusive clauses in franchising contracts or industry norms, some of these multi‐unit owners are affiliated with multiple franchisors. Agency and transaction cost theories, the classic theoretical framework to analyze franchising, cannot explain this type of multi‐franchisor affiliation because this type of ownership would create incentive problems across franchisors. Conversely, this paper investigates whether this type of the multi‐unit ownership can be explained by the exercise of market power by these franchisees. We test this hypothesis in geographically clustered markets (hotels near the interstate highway exits), where multi‐unit ownership is common. We first show that multi‐unit owners affiliated with multiple franchisors charge higher prices than other franchisors. Then, in our main analysis, we show that one explanation for this pattern is the existence of market power: Without multi‐unit ownership, prices at these hotels would decrease by 9%, on average (and market‐level volume sales would increase by 7.52%). These results help explain why franchisors might be willing to engage in franchising contracts with franchisees that operate units associated with different franchisors.

Comparative study of the control of exclusion clauses in consumer contracts: Lessons for Ghana

A lot of concerns have been raised over the use of exclusion clauses, especially in respect of transactions involving parties with unequal bargaining power since they are usually not voluntarily subscribed to by the weaker party, but rather imposed on him/her. The problem is compounded by the fact that everyone is a consumer one way or the other, and therefore at risk of the exploitative effects of exclusion clauses. The paper adopts a comparative research methodology in an attempt to evaluate both the judicial and legislative controls of exclusion clauses in consumer contracts under Ghanaian law, as well as those of the United Kingdom (UK) and the Republic of South Africa. The paper reveals that the legislative and judicial controls of exclusion clauses under Ghanaian law are not robust, thereby creating the need for certain reforms to be introduced under Ghanaian law to effectively protect the consumer. The paper concludes by proffering recommendations for legislative interventions which can be introduced to better protect the Ghanaian consumer.

Public Health and Investment Protection in the Context of the COVID-19 Pandemic—From the Sustainable Perspective of Exception Clauses

In response to the COVID-19 pandemic, various preventive and controlling measures have been taken by host states but may damage the interests of foreign investors and consequently result in international investment disputes. Confronted with potential international investment arbitration, the exceptions clause in international investment law is one of the host state’s defences. However, the public health exception clause is a general exception clause with uncertainty when investment arbitration takes place and investment arbitral tribunals interpret it. In the international society, sustainable development has gradually been recognized as a key principle in contemporary international law. Against this background, in the context of international investment, it is appropriate for host states to optimize the exception clauses in BITs or FTAs, thereby reducing the risk of arbitration concerning the host state’s regulatory measures to protect the public from the pandemic.

Australian COVID-19 measures and its international investment obligations

PurposeThis paper aims to examine the prospect for international investment disputes in the aftermath of the COVID-19 pandemic due to measures implemented by the Australian government to tackle the pandemic.Design/methodology/approachDoctrinal research. Contains qualitative analysis.FindingsThis paper finds that claims based on the protections in the International Investment Agreements (IIAs) signed by Australia are unlikely to succeed and that Australia’s COVID-19 measures can be justified as necessary measures under the general and security exception clauses included in more recent IIAs and under customary international law.Originality/valueIn the context of the COVID-19 pandemic, scholars have written papers apprehending possible claims by international investors against emergency measures adopted by host countries to face the pandemic which might also have damaged the interest of the foreign investors. The existing literature is too vague and general. To the best of the authors’ knowledge, this is the first paper that draws some specific conclusions in this regard applicable to the COVID-19 regulatory measures taken by Australia. While the existing literature projects the possibility of such investor claims, this paper argues that at least no such claim would succeed against the COVID-19 measures taken by Australia.

The Clause of the Murabahah Financing Agreement in Sharia Banking

This study describes the standard clauses in the murabahah financing agreement. This study uses a normative juridical research method. The data was collected using literature study techniques on primary, secondary, and tertiary legal materials. The collected legal material is then analyzed using qualitative data analysis methods, which will conclude the research’s object. The results show that there are 17 standard clauses and a prohibition of inclusion of the exclusion clause in the murabahah financing agreement. Therefore, it is recommended that the Bank and the Customer apply the standard clauses in the murabahah financing agreement. In this case, the Bank and the Customer get guarantees, comfort, and legal protection during the murabahah financing period.

Not Just Sea Turtles, Let’s Protect Women Too: Invoking Public Morality Exception or Negotiating a New Gender Exception in Trade Agreements?

Abstract The most common provisions we find in almost all multilateral, regional and bilateral trade agreements are the exception clauses that allow countries to protect public morals, humans, animals or plant health and life and conserve exhaustible natural resources. If countries can allow trade-restrictive measures that aim to protect these non-economic interests, is it possible to negotiate a specific exception to justify measures that are aimed at protecting women’s economic interests as well? Is the removal of barriers that impede women’s participation in trade any less important than the conservation of exhaustible natural resources such as sea turtles or dolphins? In that context, this article prepares a case for the inclusion of a specific exception that can allow countries to leverage women’s economic empowerment through international trade agreements. This is done after carrying out an objective assessment of whether a respondent could seek protection under the existing public morality exception to justify a measure that is taken to protect women’s economic interests.

Constitutionality of The Exclusionary Clause of Marital Rape in India

Constitutionality of The Exclusionary Clause of Marital Rape in India

Security Exception Negotiation from the Perspective of Habermas’ Discourse Ethics

Security exception negotiation is conducive to improving the WTO security exception clause and promoting the correct and reasonable use of the clause, so as to balance the conflicts and contradictions between safeguarding national security and realizing free trade in multilateral trade. Habermas's discourse ethics advocates that in an ideal discourse environment, communication subjects with communication qualifications seek understanding and reach consensus through dialogue and negotiation in accordance with rational requirements and preset norms and procedures, in order to solve the multivariate conflict problems of modern society. Based on this theory, the dilemma of security exception negotiation lies in the inability of equal dialogue, the lack of semantic identity and the lack of pragmatic effectiveness. Therefore, we should respect the dominant position of each country, create an ideal discourse environment and realize equal dialogue among countries. Paying attention to the interpretation of WTO security exception clauses will be a desirable way to solve the dilemma of security exception negotiation.

Suicide and Life Insurance.

Much has been written about the history of suicide and, notably, about societies that condemned both the act and the actor, resulting in a perpetuation of suicide being stigmatized in many cultures. One aspect of this perceived stigmatization involves exclusionary clauses in life insurance policies that reject paying benefits to survivor-beneficiaries of the decedent if the decedent has died by suicide within a prescribed time frame. From the perspective of the individual, life insurance is designed to protect the estate of a decedent from a significant financial burden. From the insurer's perspective, there are essentially 2 reasons for having a suicide exclusion clause: limiting risk and preventing or discouraging fraud. This column examines these rationales in light of the estimated few suicides that do occur during exclusionary clause time frames. Observations are made about the effect of these clauses on those impacted by the loss of a loved one who died by suicide within the exclusionary time frame. An examination of the perspectives of both the life insurance industry and the impacted survivors of suicide decedents raises questions about what are reasonable and appropriate exclusionary clause time frames that protect both the insurer and survivor-beneficiaries. The forensic expert consulting on such cases should be cognizant of these competing perspectives and engage in therapeutic assessment whenever possible, identifying opportunities to promote thoughtful suicide postvention.

Recovery of damages in the form of lost profits in the USA

Initially American law rejected any possibility of recovering lost profits as consequential damages, but ultimately agreed. The lost profits claim is for net income from lost business activity, less expenses that would have been attributable to that activity. Generally accepted approaches in calculating lost profits are Yardstick method, Before and After method, Projection method. In addition to the mentioned measures it is admissible to use statistical methods: multivariate regression analysis, matching analysis, stratification, analysis of variance, probit analysis, logit analysis, discriminant analysis, factor analysis and so on. Consequential damages aim to put the non-breaching party in the position that they would have been in if the breach had not occurred. The court is to estimate the reasonable size of compensation needed after a breach to restore the offended party losses yet avoid overcompensation. The lost profits award is limited by the principles of foreseeability, certainty, causation and mitigation. The award isreduced when a portion of the promisee’s loss profit is attributable to circumstances that the promisor could not ordinarily foresee (foreseeability). In order for damages to be recoverable, the loss must have been proximately caused by the breach (causation). Damages are not recoverable for loss beyond an amount that the evidence permits to be established with reasonable (certainty). The non-breaching party is to avoid loss wherever possible (mitigation). Also parties are free to include in a contract an exclusion clause which seeks to exclude or restrict their liability to one another in the event of default. All these rules are not rigid. A court may limit damages for consequential damages if it concludes that in the circumstances justice so requires in order to avoid disproportionate compensation. Keywords: consequential damages; lost profits; foreseeability; reasonable certainty; mitigation; causation; exclusion clause.

OS LIMITES DA LIBERDADE CONTRATUAL E O (DES)RESPEITO À PROTEÇÃO DO RISCO NAS APÓLICES DE SEGURO

The purpose of this article is to outline some considerations about the Judgment of the STJ of 01/24/2018, rendered in the records of Case No. 534/15.2T8VCT.G1.S1, in Portugal. The problem is related to the delimitation of liability operated by the limitation and exclusion clauses contained in the General Conditions and Special Conditions of the insurance contract policies at the time of contracting. Differentiating between the prohibited clauses and the clauses that aim to delimit the object of the contract is important because the verification of the clauses that intend to disallow or empty the guarantee of risk protection that the contract should guarantee, sounds like a measure aimed at ensure contractual balance. The study focuses on the principle of autonomy of will, but above all, on the materialization of the institute as a fundamental principle of Civil Law and on autonomy as an element of the concept of obligation. The aim is to demonstrate that the liability exclusion clauses cannot be substantiated in a lack of attention to the dynamics necessary for the proper functioning of the contractual relationship that is intended to be established, even if it is an adhesion contract, such as insurance policies.

Germany’s Supply Chain Due Diligence Act: Is It Compatible with WTO Obligations?

Regulations that aim at the observance of certain human rights and environmental standards by companies along the value chain have gained momentum. A recent example is the German Supply Chain Due Diligence Act that obliges German companies to adhere to due diligence obligations vis-à-vis human rights and, to a lesser extent, the environment when making use of global supply chains. Germany, as other WTO members, must at the same time ensure compliance with WTO law when adopting such measures. This article will argue that due diligence laws may have a bearing on WTO obligations, but can be justified according to the general exceptions clause of Art. XX GATT. Ultimately, the article argues that such measures may be necessary if international economic law is to accommodate the common goal of sustainable development.

Ethical and Legal Issues in Psychotherapy.

Ethical and Legal Issues in Psychotherapy.