Nature Of Contract Research Articles

The French SAS business entity

The author describes the introduction in 1994 and extension in 1999 of the French simplified share company - Societe par actions simplifee (SAS). He explains that the provisions are regarded as being of a largely contractual nature, based on an element of personal co-operation between its members, and are likely to be used for a number of different purposes. Article by Dr Frank Wooldridge. Published in Amicus Curiae - Journal of the Institute of Advanced Legal Studies and its Society for Advanced Legal Studies. The Journal is produced by the Society for Advanced Legal Studies at the Institute of Advanced Legal Studies, University of London.

Contribution of the Reims School to the Debate on the Critical Analysis of International Law: Assessment and Limits

The changes which have occurred in the world and the failure of the mechanism of collective security oblige lawyers to open a new critical approach to international law. In this context, it is important to come back to the French movement known as Critique du droit, and more especially to the work produced in the Reims Colloquia under Professor Chaumont�s authority. This theoretical contribution points out the link between the norms of law and the concrete conditions of their formation. It considers the compulsory nature of norms as a result of a compromise between several contradictions, and by doing so, it opens a new window on the understanding of law. But, today, this theory has to be completed by a deeper analysis of the concept of sovereignty. The consequence of this core concept is the contractual nature of most norms of international law. It is quite impossible to build a universal international law, the emergence of general imperative norms being hitherto too weak. International law, dominated by sovereignty, is inadequate to protect world society.

Transnational commercial surrogacy in India: gifts for global sisters?

In this ethnography of transnational commercial surrogacy in a small clinic in India, the narratives of two sets of women involved in this new form of reproductive travel – the transnational clients and the surrogates themselves – are evaluated. How do these women negotiate the culturally anomalous nature of transnational surrogacy within the unusual setting of India? It is demonstrated that while both sets of women downplay the economic aspect of surrogacy by drawing on predictable cultural tools like ‘gift’, ‘sisterhood’ and ‘mission’, they use these tools in completely unexpected ways. Previous ethnographies of surrogacy in other parts of the world have revealed that women involved in surrogacy use these narratives to downplay the contractual nature of their relationship with each other. Ironically, when used in the context of transnational surrogacy in India, these narratives further highlight and often reify the inequalities based on class, race and nationality between the clients and suppliers of reproductive tourism in India. In this ethnography of transnational commercial surrogacy in a clinic in India I evaluate the narratives of two sets of women involved in this new form of reproductive travel – the transnational clients and the surrogates themselves. How do these women negotiate the culturally anomalous nature of transnational surrogacy within the unusual setting of India? I demonstrate that, while both sets of women downplay the economic aspect of surrogacy by drawing on predictable cultural tools like ‘gift’, ‘sisterhood’ and ‘mission’, they use these tools in completely unexpected ways. Previous ethnographies of surrogacy in other parts of the world have revealed that women involved in surrogacy use these narratives to downplay the contractual nature of their relationship with each other. Ironically, when used in the context of transnational surrogacy in India, these narratives further highlight and often reify the inequalities based on class, race and nationality between the clients and suppliers of reproductive tourism in India.

‘Fair Wear and Tear’

ABSTRACTThis article traces the debate about the nature of marital cruelty evident in legal journals, newspapers and official papers in England between 1945 and 1960. It then explores the extent to which this debate influenced decisions in the magistrates' courts, where the majority of working-class couples still contested their marital rights. The article draws on evidence from records of four magistrates' courts in the industrial area of the North Riding of Yorkshire and demonstrates that whilst discourses about mental cruelty in marriage dominated the national debate, this seemed to have had little impact at a local level. Indeed, in the magistrates' courts examined there was more emphasis on the contractual nature of marriage rather than on individual rights and happiness.

Therapist as operator or interactor? Moving beyond the technique

We very much enjoyed the excellent article by Bialosky et al1 regarding the placebo effect in manual therapy. This is an important article that provides an opportunity for the physical therapy profession to reconceptualize the role of the therapist in the provision of manual treatment. Most human commerce involves a contractual nature of agreement to solve a problem. A problem can be an actual object, or it can be an objectification of a situation. Hairdressers cut hair. Dentists work on teeth. Lawyers argue cases. Some actual object (or objectification of a subjective situation) is involved. The definition of the object or objectification is made clear, and the parties who have contracted to solve the problem work together to solve it. In manual therapy the objective frequently involves helping a fellow human with a painful problem, but the pain experience is complex and incompletely understood and therefore the actual object in the contract is not and never has been entirely clear. Pain, although ubiquitous, is a subjective experience and has long eluded precise definition.2 Great strides have been made in recent years in understanding the pain experience: once thought to be a specific sense or input to the brain from the body, pain is now regarded as an output from the brain in response to a perceived threat.3 This understanding of pain moves beyond nociception alone and provides a foundation for understanding the many factors the authors review in their article. Traditional instructional books and courses on manual therapy often refer to the therapist as an ‘operator’. The implication of this terminology is that the patient is a passive recipient of the manual act. This seems at odds with not only the common practice of physical therapy,4 but the balance of research evidence which favors active over passive approaches. We feel a more current understanding of the mechanisms and processes of manual therapy1,5,6 leads naturally to a different understanding of the therapist’s role – that of an ‘interactor’. This interactor model7 of manual therapy is consistent with the authors’ statement that ‘the context of the treatment including the technique, the provider, the participant, the environment, and the interaction between these factors may contribute to patient outcomes.’ It is precisely this interaction between various factors that we need to consider, and not simply the performance of one or more techniques as an ‘operator.’ We believe this interactive model to also be scientifically congruent with the emerging explanatory model of the multifactorial, biopsychosocial pain experience, the neuromatrix.8 As a result, we feel it is now incumbent upon the manual therapy community to acknowledge and embrace factors beyond the performance of a particular given technique as critical to clinical care, and to include these considerations in our educational curricula, research designs, patient education, and our therapy culture. The authors’ article serves as an excellent introduction to factors and considerations in manual therapy that are beyond the technique. Directly to the subject of technique, the authors note ‘…spinal thrust manipulation appears to be more effective than … joint mobilization in some individuals with low back pain.’ The authors cited the work of Cleland et al9 to support that statement. However, that study did not directly compare techniques based purely on speed of movement, used different positioning methods and technique performance, and there were (as noted by Dorko10), ‘marked differences in patient-therapist positioning and context when directly comparing mobilization to manipulation.’ Consequently Cleland et al’s study design doesn’t permit us to draw conclusions on the effectiveness of thrust versus nonthrust manipulation in general for low back pain – only to compare three different techniques in one established subgroup. If in fact there are superior clinical outcomes associated with the use of a thrust versus a nonthrust manipulative approach to patient care, we’ve yet to see evidence of it in the literature, and secondary analyses of clinical trials (such as those in the cervical spine11,12) support that contention. In fact, the many factors and considerations reviewed in the author’s outstanding paper may help us understand why that continues to be the case, and why the manual therapy community needs to move beyond the technique13 to progress our foundational science and provide the best outcomes for our patients.

The Theory of the Firm in a Contractual Perspective (La Teoria Dell'Impresa in una Prospettiva Contrattuale ) (Italian)

Starting from the Contribution from Ronald Coase, the modern theoretical literature tends to identify the firm with the hierarchic coordination of the workforce, opposed to the coordination of the production factors operated by the market. Other authors prefer to concentrate on the entrepreneur instead of the firm. Starting from the organization put in place by the entrepreneur, they find that the price mechanism operates also within the firm (employees engage themselves through contracts to execute the orders of the entrepreneur), and that the hierarchic principle operates also with reference to market exchanges through the price mechanism (the entrepreneur coordinates the production factors also when she buys them on the market). Since either the market and the firm are contractual arrangements, it is more useful to concentrate the attention on the modalities with which the entrepreneur conducts her organizing (and necessarily contractual) activity. The contribution of those who stress the contractual nature of the firm allows to place the theory of the firm within the point of view of the neoclassical economists, according to whom the economic function of the firm is to ensure productive specialization and the interdependence of economic actors, something which does not ensue from the vision of the firm as the means to optimize transaction costs.A decrease in the latter (that is, in the cost of functioning of the price mechanism) would entail not a substitution of the market for the firm but an increase in the number of firms through a higher production specialization. Contrary to what assumed by Coase, the correlation of firms and market exchanges is positive.

Stock and Option Grants with Performance-based Vesting Provisions

W e assemble a sample of 983 equity-based awards that include either an accelerated- or a contingent-vesting provision tied to firm performance and explore the frequency, contractual nature, usage, and implications of such awards. We find that performance-vesting (p-v) provisions specify meaningful performance hurdles and provide significant incentives for executives. The propensity to use p-v provisions is positively related to the arrival of a new CEO and the proportion of outsiders on the board of directors and negatively related to prior stock performance. Performance-vesting firms have significantly better subsequent operating performance than control firms. Abnormal accounting performance does not arise from earnings management or discernible differences in financial or investment policy. (JEL G34, J33, M52)

Protected areas and community incentives in savannah ecosystems: a case study of Tanzania’s Maasai Steppe

AbstractTwo issues of central importance to conservation are developing an improved understanding of the relative roles of state protected areas and local institutions and developing effective strategies for creating community-based incentives for conservation. We provide a case study of northern Tanzania’s Maasai Steppe to explore these issues in the context of a savannah ecosystem where wildlife is mobile and depends extensively on community lands for seasonal habitats. We compare the impacts and outcomes of four approaches to developing local incentives for wildlife conservation on community lands: protected area benefit-sharing, trophy hunting donations, village–private tourism concession contracts, and a direct payment scheme for habitat conservation. Tourism and direct payment concession areas have resulted in large areas of community land being protected for wildlife by villages as a result of the conditional and contractual nature of these ventures. By contrast, other approaches that provide economic benefits to communities but are not conditional on defined conservation actions at the local level demonstrate little impact on wildlife conservation on community lands. In spatially extensive ecosystems where protected areas cover limited areas and wildlife relies heavily on community and private lands, strategies based on maximizing the direct income of communities from wildlife are fundamental to the sustainability of such systems.

Void agreements and voidable contracts: the need to elucidate ambiguities of their effects

We enter into contractual engagements daily, if not many times a day. Every business organization, be it large or small, binds itself in bonds of contract with customers, suppliers or employees in the conduct of its business operations. All these involve interactions of contractual nature. "We all make contracts everyday... [and]... many of us spend most of our lives in performing contractual obligations."1 One may safely say that contracts are the most frequent juridical acts and the most useful among laws that govern social relationships.

Independência, Imparcialidade e Suspeição de Árbitro

ABSTRACT: The independence and impartiality of arbitrators is of the essence in the development of international trade arbitration. The fact that parties may appoint non-neutral arbitrators has given rise to negative reactions within the international arbitration community. However, there are some questions that need to be considered, namely: the non-neutrality of party-appointed arbitrators and the presiding arbitrator's role ensuring fair trial, tacit acceptance by one party of the non-neutrality of the arbitrator appointed by the other party and the motion of suspicion on the arbitrator within such context, the contractual nature of arbitration and the appointed arbitrators' disclosure duties, the criteria to appraise the arbitrator's subjective impartiality and the principle of good faith, the partyappointed arbitrator's role of cultural translation within international arbitration and the party's possible research duties on the independence of the arbitrator appointed by the other party.

EL LLAMADO CONTRATO DE PRENDA SIN DESPLAZAMIENTO

The new regulation of non-possessory pledge, contained in Law No 20,190, is distinguished, as axes, a security agreement and a real right of pledge. This paper examines the rules set for the contract and try to fix their contractual nature or merely conventional, its characters and, in particular, its solemn character like his other requirements, the effects it produces, its extinction and conventions established by law as possible to add to it.

Levelling Down, Levelling Up, and Governing Across: Three Responses to Hybridization in International Law

This article investigates developed countries’ financial and technical assistance commitments under the Stockholm Convention on Persistent Organic Pollutants. It shows that their organization is secured through the establishment of a hybrid implementation network, involving the cooperation of state and transnational actors, and argues that institutional hybridization affects the quality and status of treaty norms. The norms defy a classification into either hard or soft law, but contain elements of both. Institutional and normative hybridization is at once a productive response to the emergence of global risks, and a source of new challenges. The article identifies the diffusion of accountability, the complication of enforcement, and the dilution of the communicative role of international law as challenges flowing from hybridization, and develops three responses: ‘levelling down’, which emphasizes the contractual nature of international agreements; ‘levelling up’, which strengthens state accountability; and ‘governing across’, which constitutionalizes the transnational actors in the implementation network. The advantages and drawbacks of each response are reviewed, and suggestions for reform developed.

Asset Substitution and Structured Financing

AbstractThis article shows how structured financing can be used to solve the asset substitution problem in a dynamic setting. Structuring induces the firm’s owner to optimally choose the first best operating strategy even though the owner’s value function might be locally convex (concave), which would ordinarily lead to overinvestment (underinvestment) in risky projects. This result is demonstrated in two different continuous time settings—one that is based on the risk-shifting framework of Leland (1998) and one that generalizes the scaled return model of Green (1984). It is shown that the contractual nature of the structuring is a key determinant of the issuing firm’s dynamic asset volatility. Furthermore, unlike nonstructured financing, the default (conversion) probability of a structured debt security may be increasing (decreasing) in the firm’s total assets. Structured securities are therefore hedge assets, which potentially explains the popularity of structured securities among investors and third-party issuers.

Life with Hoyt: Avoiding Misrepresentation Claims in Negotiating Settlement Agreements

In 2007, the Minnesota Supreme Court decided Hoyt Properties, Inc. v. Production Resource Group, L.L.C. (Hoyt II), holding that factual statements made by attorneys in settlement negotiations are actionable if reasonably relied on by their clients' adversaries. Some in the legal community fear this holding puts undue constraints on settlement negotiations, while creating potential liability for an attorney's representation to their client's adversary. This article addresses these fears. Hoyt is about merely telling the truth and carefully drafting settlement agreements. Part II examines the factual background and procedural history of Hoyt and presents a discussion of the Supreme Court's analysis. Part III introduces the basic contractual nature of settlement agreements, covering issues of capacity, authority, formation, defense, fraud and misrepresentation, and the requirement of a writing. Part IV examines the duties owed by attorneys to their clients' adversaries, emphasizing the difference between affirmative representations and non-disclosures. Finally, Part V presents a solution to those fearful of Hoyt - careful drafting of settlement agreements. Use of integration and representation clauses should reduce the risk that extra-contractual statements, like those at issue in Hoyt, will survive to form the basis for a rescission of a settlement agreement. Thus, although some in the legal community fear negative repercussions from Hoyt, in reality, it does not announce any fundamental change to the law. Rather, Hoyt simply underscores the need for well-considered statements in settlement negotiations and careful drafting of settlement agreements.

Loyalty in Seventeenth and Eighteenth Century Samurai Discourse

Chū, usually translated as loyalty, is supposed to have been the paramount virtue of samurai, inspiring them to the selfless service of their daimyo. Analyzing the understandings of this notion among samurai thinkers of seventeenth and eighteenth century Japan, this article stresses that, far from there being one understanding of chū, many interpretations were competing with each other; it examines the various dynamics that can explain this fragmentation. One, opening the possibility of higher values, was the necessity of justifying the demands of chū. Another was the competition from other moral notions, such as the concern for one's reputation. The problems that chū inevitably encountered in practice—the dilemma of conflicting loyalties, or the rivalry from non moral goods like wealth and power—were also powerful factors. Yet another dynamic was the weakening of the private feudal bonds and the subsequent recognition of the contractual nature of many social relationships. The cumulative effect of those dynamics explains that in the end chū could even become an object of incomprehension or derision. Ultimately chū only survived because it was enlisted to construct a relationship that could withstand any test, being, quite unlike that of samurai and daimyo, purely imaginary and empty: that between the Emperor and his subjects.

Transformative Social Policy and Innovation in Developing Countries

Social policy is today receiving greater attention in the field of development studies. Much emphasis is placed on the important issues of reproduction, redistribution and social protection. However, in the context of development, one must add to these concerns the vital issue of production. This article argues that social policy can be innovation-enhancing, through its effects on human capital and skill formation; its capacity to alleviate risk and uncertainty by underpinning the social pacts necessary for managing the contractual nature of labour markets; its incorporation of labour into the saving-investment regime and inducement of long-term perspectives in the financial sector; and its contribution to political stability. These roles underscore the transformative role of social policy that is often overlooked. The recognition of these roles is quite recent in the case of developed countries and much more research is required, with special attention to the problems of catching up. Les politiques socia...

Fiduciary Obligation in Principal Agent Relationship

The concept of fiduciary relations and related obligations are as ancient as that of law and jurisprudence. Fiduciary duties might be said to grow out of a variety of relationships involving one party's exercise of some measure of control. One of the major areas where Fiduciary relations are of important essence is that of Agency. This paper will endeavor to prove that the fiduciary duties are bound with the contractual nature of fiduciary duties especially so in the institution of Agency.

The formation and evolution of non-equity strategic alliances in China

Contractual joint ventures (CJVs) are a major form of non-equity strategic alliance in China, employed mainly by Hong Kong firms in the south China province of Guangdong. Due to their ambiguous legal status and the lack of conceptualisation and of their contractual nature, there has been little empirical research on CJVs. By theorising CJVs as a relational subcontracting arrangement and drawing on data from structured interviews with managers from both sides, this paper reveals the managerial decisions pertaining to the formation and evolution of the CJV non-equity alliances in Guangdong.

Simple money-based tests for choosing between private and public delivery: a discussion of the issues

The decision when to provide services by the public sector and when to use the private sector is a fundamental one. The economic literature emphasises that the efficiency of the mechanisms of delivery will depend on the contractual nature of what can be achieved by the parties and the political economy forces. Totally separate from this literature, however, governments have tried to implement practical and simple tests to indicate when to use private and when to use public delivery methods. The aim of this paper is to address some of the issues associated with simple money-based tests.

Kaiho Seiryō on ‘What it is to be a Human Being’

Kaiho Seiryō (1755–1817) is probably the first Japanese thinker to proclaim the contractual nature of human relationships. I examine in this paper the view of human beings that led him to this conclusion. Giving up previous definitions of humans, Seiryō focuses on the faculty of practical reason. While this leads him to recognize a hierarchy of humans, some having more humanity than others, it also allows him to develop the most modern understanding of social relationship available in his time. His radical reinterpretation of what it is to be a human being is all the more remarkable because it was done with the concepts and ideas provided by the Chinese Classics. Establishing new connections, giving new life to ideas that were never exploited, Seiryō showed it was possible to make sense of modernity without using foreign concepts.