Exclusion Clauses Research Articles

The Insurability of Cyber Risk

In June 2017, the food and beverage conglomerate Mondelez International became a victim of the NotPetya ransomware attack. Around 1,700 of its servers and 24,000 of the company’s laptops were suddenly and permanently unusable. Commercial supply and distribution disruptions, theft of credentials from many users, and unfulfilled customer orders soon followed, leading to losses that totaled more than $100 million. Unfortunately, Zurich, which had sold the company a property insurance policy that included a variety of coverages, informed Mondelez in 2018 that cyber coverage would be denied under the policy based on the “war exclusion clause.” This case, now pending, will be a watershed moment for the cyber insurance industry, highlighting the great ambiguity around the insurability of certain types of cyber risk and the scope of coverage that insurers will provide in the case of a cyber incident. The literature on the insurability of cyber risk has focused all of its attention on questions of economic efficiency and viability. Scholarship has, for example, examined the actuarial challenges in cyber risk modeling and the likelihood for adverse selection resulting from information asymmetries and lack of historical claims data. Scholars have so far avoided a different set of considerations rooted not in economics but rather in public policy analysis of societal values. This paper lays the framework for such an analysis. Relying on traditional insurance and torts jurisprudence the paper makes the public policy case for limited legal interventions in the indemnification of three controversial categories of cyber harm: (1) acts of cyber terrorism or state-sponsored cyber operations; (2) extortion payments for ransomware attacks; and (3) administrative fines for violations of statutory data protection regulations. In so doing, the paper highlights systemic challenges to cyber insurance underwriting while explaining insurers’ role in increasing societal cyber posture by reducing the likelihood of moral hazard and suboptimal cyber-norms enforcement.

The clauses of exception in “domestic law” and in Hague Conventions

The present work is proposed after a necessary preliminary examination on the terminology and classification level to analyze the clauses (in comparative mode) in question under EU legislation and jurisprudence at a conventional level. In this reconstruction it will be necessary to identify not only the content and scope of the normative data but also to understand with examples where possible supported by practical references, the hypotheses that can concretely justify and concretize the non-application of the conflict rule destined to operate in general as well as the use of the exception clause.

Approaches to Jurisdiction Clauses in Anglophone African Common Law Countries: Principle and Policy

When parties based in different countries enter into a contract, they may be well advised to include therein a jurisdiction clause, agreeing that the courts of a particular place will have (exclusive) jurisdiction to determine disputes arising out of that contract. This article analyses the various approaches which courts in Anglophone African common law countries adopt when asked to enforce exclusive jurisdiction clauses. By scrutinising these various approaches, this article hopes to develop further the legal policy informing courts' decisions whether to enforce exclusive jurisdiction clauses in the places under study.

The Legal Saga of Exclusion Clauses in Malaysia

One of the issues that could affect the success or the sustainability of a business organisation is its ability to manage the legal risk of liability that it faces in running its business. One common tool utilised by businesses is to insert an exclusion or limitation clause in their contracts. This would allow them to predict and apportion the possible amount of liability that could arise from breach of contract or negligence. The courts usually exercise caution in allowing such clauses to be enforced in order to prevent unfairness especially to the weaker party. Malaysia is of no exception. The Malaysian courts have display willingness to strike down the validity of an exclusion clause to ensure that a business organisation does not escape liability arising from its own fault. The Federal Court and the Court of Appeal decision in Bourke v CIMB Bank Bhd (2018) are good examples of such an approach. However, the legal reasoning adopted by the courts in this case has led to numerous confusions on the legal principles of contract law in Malaysia. It is therefore necessary to examine the legal position of exclusion clauses in Malaysia today and to determine what is the most appropriate way forward. This research found that there are difficulties with the legal coherency and application of Bourke in future cases.

Queering ’69: The Recriminalization of Homosexuality in Canada

Several efforts are underway to commemorate the fiftieth anniversary of the decriminalization of homosexuality in Canada. The problem is that homosexuality was not decriminalized in 1969. This is a myth. The reform added an exception clause to the crimes of buggery and gross indecency that allowed queer sex in private between only two adults. This merely recognized the obvious; the state could not access the bedrooms of the nation using these provisions. At the same time, police forces across the country mobilized to charge queer people not only with gross indecency but also with other sections of the Criminal Code untouched by the omnibus bill, including indecent acts, vagrancy, and the bawdy-house law. When viewed from the perspective of queers and their interactions with the justice system, 1969 was a turning point, but not towards a more progressive society. Instead, it facilitated the recriminalization of homosexuality in Canada.

Legislative Enforcement of Contractual Fairness in Malaysian Consumer Contracts


 Consumers faced with contract do not know what 'small print' contains or understand its effect. Exclusion clauses may deprive a consumer of specific rights in which he deserves protection. The Consumer Protection Act 1999 in Malaysia, allows the consumers to identify between procedural unfairness and substantive unfairness. However, the Consumer Protection Act 1999 does not adequately protect the consumer. By applying the content analysis research method, this paper reviews the legislative and judicial intervention on unfair terms in consumer contracts. This article advocates that Malaysia should establish a specific framework on consumer law protection against unfair terms in consumer contracts.
 Keywords: Exclusion clauses; unfair terms; consumer contracts; judicial-legislative intervention
 eISSN 2514-7528 © 2019. The Authors. Published for AMER ABRA cE-Bs by e-International Publishing House, Ltd., UK. This is an open-access article under the CC BY-NC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer–review under responsibility of AMER (Association of Malaysian Environment-Behaviour Researchers), ABRA (Association of Behavioural Researchers on Asians) and cE-Bs (Centre for Environment-Behaviour Studies), Faculty of Architecture, Planning & Surveying, Universiti Teknologi MARA, Malaysia.DOI: https://doi.org/10.21834/jabs.v4i13.334

Environmental Considerations in Japan’s International Investment Agreements

International investment agreements (IIAs) have proliferated considerably in the globalized world. Environmental measures (EMs) in states hosting foreign investment could conflict with IIAs. The purpose of this article is to analyze how environmental provisions (EPs) in Japan’s IIAs consider the environment, based on assessment of EPs contained in IIAs. This article shows that, as the whole, Japan's IIAs have sufficiently considered the environment. Japan's IIAs also have enhanced environmental considerations over time. EPs in exception clauses, especially EPs on not relaxing the EMs, play a central part in environmental considerations in Japan’s IIAs. Japan’s IIAs handle the issue of the fair and equitable treatment (FET) obligations differently than that of indirect expropriation. However, Japan’s IIAs leave ample room for improvement in some categories or types of EPs, such as EPs on the rights to environmental regulation, EPs on the FET, and EPs in procedural clauses.

제상거래계약상 준거법의 분할지정에 관한 연구 - 영국법을 중심으로 -

제상거래계약상 준거법의 분할지정에 관한 연구 - 영국법을 중심으로 -

Klauzula odstupanja u međunarodnom privatnom pravu

If the civil relations with the foreign element have a weak connection with a state whose law has been determined as applicable by the choice of law rule, but significantly closer connection to the law of another country, then the exception clause will apply, without taking into account the above mentioned applicable law. Our legislation in the field of Private International Law does not yet know this clause, but it is envisaged in the Draft Act on Private International Law of Serbia. The paper analyses the justification of the application of the exception clause, which changes the legal nature of the choice of law rule, and favours the facts relating to the civil relations themselves as elements that determine the applicable law. The author also addresses the regulation of this clause in individual countries, whether within or outside the EU. Almost all countries similarly regulate this institute. The exception clause is, mostly, defined in a general way. Likewise, most legislation provides that this clause will not apply in the case of a choice of law by the parties. After all, the paper also analyses in particular the possibility of applying this clause in contractual relations with a foreign element. The author concludes that the exception clause must not be equalized with institutes of private international law such as: renvoi, fraus legis, public policy, proper law theory, etc. Namely, these institutes, also, lead to the application of a different right to that determined by the choice of law rule, but for other reasons, which are related to the violation of the law.

A Legal Study related to Steroid Drug Side Effects in Accidental Insurance: Focusing on the Application of Medical Treatment Exclusionary Clause in Policy and whether an Avascular Necrosis is an Accident

A Legal Study related to Steroid Drug Side Effects in Accidental Insurance: Focusing on the Application of Medical Treatment Exclusionary Clause in Policy and whether an Avascular Necrosis is an Accident

Empowering Malaysian Consumers through Legislation: Does ‘small print’ in contract influence consumer behaviour and affect the quality of life?

Consumers faced with contract do not know what 'small print' contains or understand its effect. Exclusion clauses may deprive a consumer of specific rights in which he deserves protection. The Consumer Protection Act 1999 in Malaysia, allows the consumers to identify between procedural unfairness and substantive unfairness. However, Consumer Protection Act 1999 does not adequately protect consumer. By applying the content analysis research method, this paper reviews the legislative and judicial intervention on unfair terms in consumer contracts. This paper advocates that Malaysia should establish a specific framework on consumer law protection against unfair terms in consumer contracts.Keywords: Exclusion clauses; unfair terms; consumer contracts; judicial-legislative interventioneISSN: 2398-4287 © 2018. The Authors. Published for AMER ABRA cE-Bs by e-International Publishing House, Ltd., UK. This is an open access article under the CC BYNC-ND license (http://creativecommons.org/licenses/by-nc-nd/4.0/). Peer–review under responsibility of AMER (Association of Malaysian Environment-Behaviour Researchers), ABRA (Association of Behavioural Researchers on Asians) and cE-Bs (Centre for Environment-Behaviour Studies), Faculty of Architecture, Planning & Surveying, Universiti Teknologi MARA, Malaysia.https://doi.org/10.21834/e-bpj.v3i9.1483

National Margin of Appreciation as a Standard of Review for Economic Sanctions: in Search of the Golden Fleece?

Recent economic sanctions imposed by the EU and US on Russia in relation to the Ukrainian conflict revived a discussion concerning the security exception clauses in international law. These clauses permit a particular state to take action aimed at protection of its national security that might be otherwise inconsistent with its substantive treaty obligations. Taking into account the ambiguity of such clauses, the question arises as to how to verify whether the adopted sanctions are indeed introduced with national security in mind and not to pursue pure protectionist aims. This article examines the national margin of appreciation from the perspective of its suitability as a standard of review for sanctions introduced under umbrella of the security exception provision of the General Agreement on Tariffs and Trade. Since this doctrine was developed in the case-law of the European Court of Human Rights both academics and practitioners alike are undecided as to its application in international trade and investment law disputes. In search of inspiration for an appropriate standard of review, the article briefly analyses recent Court of Justice of the European Union cases dealing with the security exception provisions. Drawing from the analysis of the relevant case-law of the international tribunals, the research points out that despite its frequent use by the European Court of Human Rights this doctrine remains vague, which, in turn, makes it hard to transplant to international economic law. The author concludes that the abstract contours of the national margin of appreciation doctrine, combined with diverging goals of the European Convention on Human Rights and world trade systems, make it unsuited for review of economic sanctions.

KAJIAN YURIDIS PENGESAMPINGAN PASAL 1266 DAN PASAL 1267 KITAB UNDANG-UNDANG HUKUM PERDATA SEBAGAI SYARAT BATAL DALAM PERJANJIAN KREDIT PERBANKAN

<em>Banks in credit agreements use more standard agreements, standard contracts in 2 (two) things, (1) There is an unbalanced position between banks and debtors, banks that have a more dominant position and debtors. (2) There is an understanding of the principle of freedom of contracting and without limits. The Bank has the freedom to seek the form and content of the agreement. Code of Ethics in agreement. The provisions of the Civil Code provide types of compensation for parties. Based on the background, then for problems the problem is written (1). Does the inclusion of Article 1266 and Article 1267 of the Civil Code on the banking system have collected the principles of balance and justice. (2) What are the legal implications of the exclusion clause. The research method is normative juridical research. The result of this research is the neglect of civil law and the principle of compensation is the principle of balance. The basic principle according to Rawls is that it is unfair or more people. in the sense of "freedom of results", in other words. is the nature of the debtor in a bank credit agreement. For the legal implications of the clause that excludes Article 1266 and Article 1267 of the Civil Code concerning the right of the debtor to the debtor. Legal efforts in finding and resolving problems that cannot be made by a decision due to the imbalance of the parties in the agreement. For people who make changes, no party will be harmed.</em>

영국법에 준거한 국제거래계약상 간접손해면책규정의 효과에 관한 연구

영국법에 준거한 국제거래계약상 간접손해면책규정의 효과에 관한 연구

Resistance and Consistent: Access to Medicines and Patent Law Reform in India and China

The paper starts with reviewing the debates on patent in access to medicines in the context of globalization of TRIPS regime. It then looks at the issue of resistance related to patent theories, mechanism and the linkage with social movement during law reform processes. Accordingly, the 2005 revision of Patent Act in India and the 2008 revision of Patent Law in China are chosen as the backdrops for comparison. The choice of patentability doctrine and the exceptional clauses to promote research use would be the major aspects of comparison, both having been influenced by civil society actions at different degrees in both countries. The paper intends to draw the conclusions that while strong technocratic influences remain, both countries’ law makers have started walking out of the closed discourse of patent law reform via interacting with societal concerns in the context of improving access to medicines.

Exclusionary practices in two‐sided markets: The effect of radius clauses on competition between shopping centers

We analyze exclusionary conduct of platforms in 2‐sided markets. Motivated by recent antitrust cases, we provide a discussion of the likely positive and normative effects of exclusivity clauses, which prevent tenants from opening outlets in other shopping centers covered by the clause. In a standard 2‐sided market model, we show that exclusivity agreements are especially profitable for the incumbent and detrimental to social welfare if competition is intense between the 2 shopping centers. We argue that the focus of courts on market definition is misplaced in markets determined by competitive bottlenecks.

Direct Taxes and the GATS: Substantive and Procedural Defences for Non-compliant Income Tax Measures

This article reviews the applicability of substantive and procedural defences for non-compliant income tax measures. It is argued that increasing legislative action on the domestic level will require detailed knowledge not only of the substantive obligations of the General Agreement on Trade in Services (GATS) but also its various exception clauses. GATS Article XXII:3 is reviewed that shields violations of the national treatment (NT) requirement from challenge in WTO dispute settlement proceedings where the measure falls within the scope of a double taxation agreement (DTA). The ambiguous wording and the lack of jurisprudence on the provision leave states with little guidance on its application. This article explores issues that arise under the provision ratione materiae, temporis, and personae. The quantitative reach of the provision is equally examined. Subsequently, the once-off opportunity to immunize violations of the most-favoured-nation (MFN) clause by means of inclusion in the List of Article II Exemptions is reviewed. Few states have submitted tax exemptions all of which are, with the exception of the US’, narrowly framed. Lastly, the scope of the subparagraphs of the general exception clause, Article XIV, is analysed. In addition to subparagraph c) which may serve to justify a wide range of violations, subparagraphs d) and e), relating to national and MFN treatment respectively, are scrutinized.

Customizing licensing strategies to inventions: Comparing business unit and R&D inventions

Most of the focus in the licensing literature has been on how firm and market characteristics affect licensing activity. However, in the field of management of technology licensing, there is also a need to understand within-firm heterogeneity in managing licensing activity beyond firm- and market-level approaches. Inventions originate in different parts of the firm [research and development (R&D) lab, business unit]. This heterogeneity requires strategic decisions about whether to enter the licensing market, and then, whether to put restrictions in the licensing contract (exclusivity clauses) if licensed. Using invention-level licensing data, this study analyzes when and how these inventions sourced from different parts of a firm participate in markets for technology. The results suggest that business unit inventions, compared with R&D inventions, are less likely to participate in the licensing market and more likely to include exclusivity clauses if licensed. The results add new empirical evidence for and also help advance the management of technology licensing.

Linking Counter Terrorism and Refugee Law: Unravelling the (Undue) Nexus with International Law

The link between the arrivals of refugees seeking international protection and an increase in the risk of terrorism seems to have been already established in public opinion and it has been a basis for the recent adoption of controversial measures, including the suspension of the Schengen Agreement in Europe or the so-called Muslim Ban in the United States. Against the backdrop of an alleged refugees-terrorism nexus, the purpose of this paper is to understand whether there is any degree of convergence or, conversely, divergence, between the crimes included within the “exclusion clause” under International Refugee Law (IRL) and the acts classified as “terrorist acts” under Counter-Terrorism Law (CTL), with particular reference to the European context. After some introductory remarks, the paper discusses the grounds for exclusions under IRL and European Law in section 2, while in section 3 the multiple definitions of terrorist offences under CTL are presented. Section 4 aims at discussing specific circumstances leading to the exclusion of an individual from refugee status on the basis of terrorism. Some conclusive remarks are finally proposed.

La insuficiente regulación de los acuerdos pesqueros durmientes en el Reglamento (UE) 2017/2403 sobre la gestión sostenible de las flotas exteriores

This article analyses the harmful effects of the exclusivity clause on so-called dormant agreements, a relevant but unstudied legal problem that arises in the EU’s fisheries treaty practice with third States. The paper focuses on the situation that appears when a fisheries agreement lacks an operational execution protocol for years but, because of the exclusivity clause of the treaty that continues in force, the EU external fleet cannot access the coastal third State’s fisheries resources through another kind of legal arrangement such as a private license or a charter contract. The article reviews the scope and implications of this problem and criticices the unsatisfactory treatment of this issue included in new Regulation (EU) 2017/2403.