Contractual Norms Research Articles

Selected E-commerce Customs in Russia and China: Comparative Analysis

The article examines the experience of regulating e-commerce in the Russian Federation and China, mainly in terms of compliance with contractual norms, settlement of business disputes and protection of consumer rights. We can conclude that if the use of positive norms predominates in the Russian Federation, then the PRC quite successfully uses ordinary norms, revised and adapted to the needs of today — both at the national level and in the practice of cross-border trade transactions (the formation of a new customary trade law — lex mercatoria). It is especially worth noting the signifi cant role of mediation as a method of resolving business disputes, which is widespread in the PRC. The historical, cultural and current signifi cance of mediation allows us to talk about it as a legal custom that has found its place in the system of modern legislation of the PRC.

Problems of the Sources of Law Systematisation

Introduction . In the national legal science the concept of the sources of law multiplicity had been denied for decades. It was alleged that legislative acts are the only embodiment and the main form of the legal norms existence. The situation changed in the 90s of the twentieth century due to the crucial political and socio-economic transformations that took place in the Soviet Union, in Russia, on the former Soviet Union territory. Gradually not only legislative regulatory acts, but also authorized practice, judicial precedent, normative contract have become referred to as the sources of law. Over the past decades, the range of external forms of the legal norms expression has significantly expanded and become more complicated. One of the legal science most important objectives is classification of objects, distribution of objects (phenomena) by classes (types) depending on their characteristics. However, there are just few works focusing on the theoretical and practical issues of the sources of law classification within the post-Soviet period of the Russian legal science evolution. The aim of this study is to identify the problems in the sources of law systematisation. The relevance of this topic is determined by the theoretical and practical significance of the sources of law system, its reformation in the modern conditions. Materials and Methods. The research methodology consists of the general scientific and special juridical methods. Due to the rapidly changing attitude towards these methods among the scientific community the priority in the research was given to the contemporary sources. The conceptual statements of other authors were analysed and integrated with the own empirical experience which jointly made it possible to formulate the number of provisions. Results . One of the most important objectives of science is classification of objects, distribution of objects (phenomena) by classes (types) depending on their characteristics. It has been found that in the Russian legal science just single works are focusing on the theoretical and practical issues of the sources of law systematisation and classification. The diversity of theoretical approaches to understanding the essence of the source of law phenomenon in the legal science, the diametrical opposite of the authors’ interpretation of its meaning has accordingly led to the problems in the sources of law systematisation. It has been recognised that the problem of the sources of law classification is in the process of investigation and has not received the unified solution. Various approaches to the sources of law classification have been considered. The status of codified acts in the legislative system has been analysed. Discussion and Conclusions. The problems in the sources of law systematisation have been revealed. The difficulties are caused by the dichotomy (sources — forms) which a priori underlies the sources comprehension and presupposes distinction of the independent types under both conceptual and terminological uncertainty. The Russian sources of law system continues to develop dynamically. In the Russian legislative system the range of sources of law steadily expands, which is directly related to the process of convergence of the main legal systems, first of all the Romano-Germanic and Anglo-Saxon systems.

The significance of international legal standards in the context of the development of the constitutional law of Ukraine

Purpose. The aim of the work is to analyze in the general legal aspect of understanding the significance of international legal standards and their implementation in the context of the development of constitutional law of Ukraine, determining their role and significance in the national legal system. Methodology. The methodology includes a comprehensive analysis and generalization of available scientific and theoretical material and the formulation of relevant conclusions and recommendations. The following methods of scientific reseach have been implemented: terminological, logical-semantic, functional, system-structural, logical-normative. Results. In the process of research, it was recognized that ensuring commitment to the principles and norms of international law is a socio-historical, socially determined phenomenon and appears to be a significant factor in the world recognition of Ukraine as a full-fledged participant in international relations, where a significant role is played by the readiness and ability of the state through the system of contract law, the implementation and the implementation of contractual norms, their introduction into the system of national constitutional law to fulfill the prescriptions of international legal standards. Originality. In the process of research, it was established that international legal standards should be considered an integral part of the national legal system in general and the constitutional law of Ukraine in particular, which is the result of the efforts of the international community of states for their democratic, legal development. Practical significance. The results of the research can be used in law-making and law-enforcement activities during the development of proposals regarding the mechanism of implementation of international legal standards into the national system of law and legislation.

Legal contracts in the field of private law

The article focuses on the legal nature of regulatory agreements in the field of private law. It is argued that in the economic and social sphere, the regulation of social relations is often practiced on the basis of normative agreements other than the norms of the law. It is noted that by its nature, a normative agreement expresses the conciliatory will of two or more parties to establish, modify and terminate their rights and obligations, to exercise or withhold certain legal actions.
 The examples of the material industries reveal the nature of regulatory agreements. The article focuses on collective agreements and collective agreements in labor law. The history of their appearance and scope is revealed. It is concluded that the reason for their emergence in the field of labor law was the need to resolve the confrontation between employers and employees in the field of labor relations regulation. By their structure, the provisions of collective agreements can be divided into normative and binding. Actually regulations are local norms on the main issues of labor, pay, conditions and labor protection, social and household issues. That is why not all content of collective agreements is normative.
 While revealing the importance of private-law normative treaties, attention is drawn to standard and exemplary treaties in civil and commercial law. Despite the widespread position in the theory of private law, the position of typical and exemplary contracts to the sources of law, it is noted that from the standpoint of the general theory of a normative contract it is not possible to consider typical or exemplary contracts a kind of normative contract. This claim is substantiated by the fact that standard and exemplary treaties are developed and enter into force on the basis of a unilateral legal act (for example, a by-law of the Cabinet of Ministers of Ukraine), while a normative agreement is always a bilateral (or multilateral) arrangement of the subjects of law.
 It is concluded that it is necessary to further study the problems of application of normative treaties in the field of private law, since to other sources of branches of private law the normative treaty is not just a way of regulating social relations, but a way of self-regulation.

Metaethics and the Limits of Normative Contract Theory

AbstractThis article outlines two models of constructing contract theory: The impinging model (based on metaethical cognitivism), which gives central place to truth and justification; and the projectivist model (based on metaethical non-cognitivism), which gives central place to attitudes and motivation. It is argued that modern contract theories which typically seek to present the whole body of contract doctrine as deducible from, and morally justifiable by, one or a small number of apex principles, presuppose the impinging model. By contrast, a projectivist approach to theory creation does not purport to offer justificatory apex principles, but rather argues for propositions that are likely to have maximum motivational purchase in the practical reasoning of contract law’s subjects. The article then goes on to point out the theoretical cost of the impinging model and argues that projectivist accounts do a better job of accommodating the internal point of view of contract law’s subjects.

Генезис юридической силы: значение формального источника права

The article is devoted to the issue of the origin of a fundamental phenomenon for legal science and practice – legal force, which both the outer shells of normative texts (regulatory legal acts, normative contracts and other forms of objective law) have, and the legal norms themselves as generally binding rules of social interaction. The issues of formation and subsequent action of the category of «legal force» are considered from the standpoint of the embodiment of this category in the carriers of regulatory legal information – legal norms that need stable outer shells (formal sources of law). The author determines the methodological significance of the impact of the future formal source of law to genesis and the subsequent implementation of legal force as an abstract category of the legal system. Particular attention is drawn to the reflection of the significance of legal force through the prism of the property of universal validity in formal sources of law. The author establishes that the category of «legal force» may exist before the formation of a specific outer shell (form) of legal regulation, however, for its practical action, it fundamentally needs it. The fundamental distinction between the legal force possessed by the norms of law and the formal power possessed by formal sources of law (mainly normative legal acts expressing the state will) in the question of the genesis of the category «legal force» is associated with the distinction between methods for their determination and subsequent practical application. In this sense, the importance of the difference in the legal force of legal norms, the normative force of individual legal acts and the public power of legal documents is emphasized. The article provides examples from modern theoretical and legal literature, substantiating the need to study the category of «legal force» in the context of formal sources of law. The views of classical and modern authors in relation to the categories «legal force» and «source of law» are analyzed, the origin and content of the category «legal force» are clarified. Conclusions are drawn about the fundamental importance of the factors that determine the genesis of the category «legal force» and the sign of the general obligatory nature of objective law; an objective period of time is established for the emergence of the legal force of the norms of law and formal sources of law as their outer shells. The existence of legal force for the norms of law, systematically fixed in the normative text (formal source of law), is determined.

ОСОБЕННОСТИ РЕАЛИЗАЦИИ БЮДЖЕТНО-НАЛОГОВОГО ФЕДЕРАЛИЗМА В РОССИЙСКОЙ ФЕДЕРАЦИИ

The article deals with the economic and legal foundations of budgetary and tax federalism as fundamental principles of organization of the system of state and municipal governance in federal states. The system of distribution of budgetary and tax powers between all levels of government in the course of realization of the budgetary process is studied. The existing uncertainty of interpretations of budgetary and fiscal federalism reduces the possibility of their effective use in the process of developing managerial decisions at all levels of government. The budget model applied in the Russian Federation, based on the constitutional and contractual norms of delimitation of budgetary and tax powers, has distinctive features of the construction and functioning of the budgetary system. This leads to a decrease in the budgetary sustainability of most Russian regions, maintaining a high level of differentiation of the subjects of the Russian Federation in terms of fiscal capacity. The study characterized the main theoretical approaches to the concepts of budgetary and fiscal federalism, analyzed the implementation of the current budgetary and tax mechanism, in the context of existing problems and possible risks of financial sustainability of budgets of the budgetary system.

The Principle of Racta Sunt Servanda in the Mechanism for Ensuring the Fulfillment of Obligations Under International Agreements

Problem setting. The mechanism for ensuring the fulfillment of obligations under international treaties is a complex legal phenomenon that includes a number of international legal institutions (the institution of obligation, institutions related to good faith, means of ensuring the fulfillment of obligations, institutions of international judicial bodies, institution of responsibility). The main premise that contributed to the formation of the mentioned institutional mechanism is the principle «pacta sunt servanda» «agreements must be fulfilled», which concentrated in itself the idea of the binding nature of international agreements, and later the conscientiousness of their implementation. Denoting the binding nature of any legal agreement, the principle «pacta sunt servanda» is one of the main principles of contract law. However, its implementation is accompanied by a number of problems, the solution of which requires the development of an appropriate scientific basis. Analysis of recent researches and publications. The analysis of recent researches and publications shows that the issue of the principle of contractual law “pacta sunt servanda” has repeatedly attracted the attention of the scientific community. Some of its aspects were considered by both Ukrainian and foreign scientists, including: S. I. Afanasenko, D. P. Bogatchuk, O. V. Butkevich, S. V. Gonzalez Sinisterra, Z. M. Yudin and others. However, most of the research and publications available today are rather superficial in nature. Target of the research is to analyze the legal meaning and essence of the principle «pacta sunt servanda». Article’s main body. The purpose of the article is to analyze the legal meaning and essence of the principle «pacta sunt servanda». The article highlights the legal meaning and essence of the «pacta sunt servanda» principle. The author takes the position that the binding nature of international agreements is based not only on the consensual nature of contractual norms, but also on the mutual interest of the parties in the agreement. The article explains the nature of the principle «pacta sunt servanda» from the standpoint of «jus cogens», which theoretically substantiates the meaning of the principle as a prerequisite for the formation of a mechanism for ensuring the fulfillment of obligations under international treaties. Based on a number of philosophical and legal theories, the most common of which are the theory of promise, the will theory, as well as the theory of efficiency, «pacta sunt servanda», as one of the principles of contract law, is generally recognized in legal science. The study of these theories justifications allows us to ascertain the absence of historical continuity between the initial and subsequent meanings of the principle, and even the absence of a consensus view in the doctrine. Conclusions and prospects for the development. Realizing the need to observe laws, as well as observing international treaties, at the individual level, the state must realize the necessity and inevitability of multi-level interaction in the international sphere. Only the understanding that in the implementation of the common will and cooperation it is possible to achieve a solution to the international problems that are currently faced by the international community, accepting the possibility of interaction to achieve the common interest, and not to meet the current economic needs of each state separately, will allow solving many global problems of our time and leaving to a new level of understanding of law as a tool for building a new reality within the framework of the interaction of states. In this regard, the principle of «pacta sunt servanda» is gaining more and more global scope.

Historical interpretation in law: content and types

The subject of the study is historical method of interpretation in law, its capacities and types. Despite the recognition of historical interpretation by legal science, there are no specialized works and there is no consensus on the content of this method of interpretation. Historical interpretation is considered both as an interpretation based on a previous rule of law, as an interpretation considering the conditions for the adoption of the norm, and as an interpretation based on the practice of applying the interpreted norm.The purpose of the study is to substantiate the authors' hypothesis that historical interpretation in law is an intellectual activity that involves clarifying the content of a legal prescription, achieved based on identifying legal and non-legal factors that both precede the creation of the norm and accompany its adoption. In addition, the authors set the task to identify those factors that should be taken into account in historical interpretation, as well as to classify the types of historical interpretation. The analysis of historical interpretation is made using scientific methods: induction and deduction, formal legal, comparative legal synchronous and diachronic methods.The main results, scope of application. Historical interpretation considers political, economic, social, and legal factors. Legal factors include the rules of law that preceded the interpreted norm, repealed acts, official and unofficial documents of law-making entities, draft laws, acts and the norms contained therein that accompanied the interpreted regulation, i.e. were adopted simultaneously with the interpreted norm, as well as other factors, such as the level of development of legal science and legal technique.The authors suppose that historical interpretation cannot be considered as a homogeneous way of interpretation. In reality, the historical interpretation in law can be carried out using different techniques and methods, in relation to heterogeneous legal prescriptions, and carried out by subjects with different legal status. Therefore, several grounds for classifyinghistorical interpretation are proposed. First, it is a classification that considers the connection of historical interpretation with the other ways of interpretation. According to this criterion, it is possible to divide it into a proper historical and a complex historical interpretation. Complex historical interpretation includes historical-systematic, historical-functional, historical-teleological, historical-legal, and historical-linguistic interpretation. Second, the basis may be the sources of law that contain the rules of law. On this basis, historical interpretation is divided into the interpretation of prescriptions of normative legal acts, legal customs, normative contracts, etc. Third, it is possible to classify the historical interpretation, depending on whether the rule of law is valid or not, into the historical interpretation of the rules that have lost their legal force and the historical interpretation of the rules of the current law. The latter, in its turn, is divided into the interpretation of the current legal norms of the current content and those legal norms that have not lost their force but are outdated in content. The fourth classification is based on subjects and includes historical official interpretation and historical unofficial interpretation.Conclusions. Correct approach to the concept and process of historical interpretation of the content of legal norms, as well as the choice of the type of historical interpretation helps in law enforcement, allows you to put forward scientific hypotheses, predict the further development of law based on historical knowledge of the interpreted norm, assess the possibility of reviving canceled acts in recurring socio-economic and political-legal situations.

Justice in Transactions: A Public Basis for Justifying Contract Law?

Abstract This paper challenges Peter Benson’s claim that his theory of justice in transactions can provide a public basis of justification in the Rawlsian sense specifically worked out for contract law. It argues that Benson’s distinct conception of the contracting parties and their relationships makes it an unlikely candidate for public justification in contemporary liberal democracies that are characterized by the fact of a reasonable pluralism of worldviews. Moreover, Benson’s method of deriving principles of contractual justice from existing contract law doctrines and principles risks pre-empting any critical potential for normative contract theory. In addition, its quasi universalism seems difficult to match with the political autonomy of citizens in democratic societies. Finally, Benson’s understanding of contract law as separate from politics appears at odds, not merely with Rawlsian political justice, but with the very idea of public justification.

Revisiting the oil wealth-growth nexus: The role of economic norms in avoiding the oil curse

This paper investigates how economic norms shape the relation between oil wealth and economic growth based on a dynamic model that accounts for endogeneity problems. To achieve that, we apply a system-GMM dynamic approach in 103 developing countries classified by their level of contract intensity, over the period 1970–2010. We find that controlling for contract intensity, is important in rendering the direction of the detrimental effects of oil wealth on economic growth. When economies are characterised by a low degree of contract intensity, oil wealth is not growth-enhancing. And when economies achieve a certain level or threshold of contract intensity, then they may become immune to the economic resource curse. In this connection we make an important contribution, by identifying a threshold level of contract intensity, above which the resource curse vanishes. Overall, our paper demonstrates that the oil related economic curse is not inevitable. The presence of contract intensive economic norms can alter a curse into a blessing, and we identify the point at which the switch takes place. This has important implications for policy design in managing resource rents in developing countries; promoting contractual norms in the marketplace is growth enhancing.

About the Issue of the Place of the Agreement on the Implementation of Technological Connection in the System of Contracts for the Performance of Works and Services

Problem statement. In the current legislation, the issue of the place of a contract for technological connection in the system of civil law contracts is not explicitly resolved, which creates prerequisites for different approaches to the legal qualification of this contract in judicial and arbitration practice. The goals and objectives of the study. Identification of whether the contract for technological connection has an independent legal purpose as the main constitutive feature of the normative contract model in order to determine the place of the contract under study in the system of contracts for the performance of works and services. Method of research. Dialectical, analysis, synthesis, comparative legal, formal legal, linguistic. Results, brief conclusions. It is concluded that the contract for technological connection has an independent legal purpose, which is not reduced to the typical legal goals of contract and paid services; this conclusion indicates the existence of an objective prerequisite for the regulatory regulation of the technological connection contract as an independent contractual type.

Sources of Legal Regulation of Sports Relations in the Russian
 Federation and Foreign Countries

Introduction. In modern conditions of socio-economic development of the Russian Federation, physical culture and sport are the key to the formation of a healthy lifestyle of the population and are important indicators of the success of the Russians participating in various sports events at various levels. At the same time, the number of people involved in physical education and sports in Russia is insignificant, due to the insufficient level of citizens' legal awareness, the inaccessibility of receiving high-quality services in this area, the underdeveloped infrastructure, and the presence of gaps and conflicts in the legal regulation of this block of public relations. One of the ways to solve these problems is to develop a system of sources of legal regulation of sports relations. Purpose. Based on the studied sources of legal impact on sports relations in Russia and foreign countries, theoretical developments and materials of judicial practice, the authors attempted to form a model of legal regulation of sports relations. Methodology. The authors in the process of writing the article used formal legal, logical, systemic and comparative legal methods. Results. A study of existing sources of Russian and foreign law governing sports relations suggests the presence of a complex multi-level system of legal regulation. The state level of legal impact is represented by a set of regulatory legal acts, which are formal sources of regulation of sports relations. The non-state level includes customs, unified rules, other recommendatory acts, as well as local and contractual norms created by the participants in sports relations themselves, taking into account the specifics of the relations established between them. Conclusion. Based on the analysis of various sources regulating relations in the field of physical culture and sports in Russia and foreign countries, the authors propose a model of legal regulation of sports relations in the Russian Federation, which is a multi-level system of sources of state and non-state influence on the behavior of participants in these relations. It is concluded that it is necessary to expand the dispositive principles in the system of legal regulation of sports relations through the active use of such regulators as local and contractual rulemaking, as well as other forms of non-state influence on the behavior of participants in these relations.

Justice in Transactions: A Public Basis for Justifying Contract Law?

This paper challenges Peter Benson’s claim that his theory of justice in transactions can provide a public basis of justification in the Rawlsian sense specifically worked out for contract law. It argues that Benson’s distinct conception of the contracting parties and their relationships makes it an unlikely candidate for public justification in contemporary liberal democracies that are characterized by the fact of a reasonable pluralism of worldviews. Moreover, Benson’s method of deriving principles of contractual justice from existing contract law doctrines and principles risks pre-empting any critical potential for normative contract theory. In addition, its quasi universalism seems difficult to match with the political autonomy of citizens in democratic societies. Finally, Benson’s understanding of contract law as separate from politics appears at odds, not merely with Rawlsian political justice, but with the very idea of public justification.

Solidarity in Times of Pandemics

This short article discusses how the COVID-19 crisis has affected solidarity. It starts by defining solidarity in such a way that it can be distinguished from other types of support and pro-social practice, and by arguing that solidarity can manifest itself at three different levels: at the inter-personal level, the group level, or at the level of legal and contractual norms. Drawing upon findings from two ongoing studies on personal and societal effects of the COVID-19 crisis, I then go on to argue that, while forms of inter-personal solidarity have been shifting even during the first weeks and months of the crisis, the importance of institutionalized solidarity is becoming increasingly apparent. The most resilient societies in times of COVID-19 have not been those with the best medical technology or the strictest pandemic containment measures, but those with good public infrastructures and other solidaristic institutions.

Strong Fusion of Social Unionism and Normative Contract Negotiations: A Square Peg in a Round Hole?

This paper considers a recent strike at York University in Toronto, Canada by three units of Canadian Union of Public Employees (CUPE) Local 3903, representing teaching assistants, contract or adjunct faculty and graduate assistants. The consideration of the strike has a two-fold purpose: The first is to situate it within the concept of social unionism, illustrating how this concept assists in understanding the strike beyond its strictly local and sector context. The second purpose is to consider how the strike reflects back on social unionism. In this regard, the paper considers challenges that can arise from the fusion of normative terms-and-conditions contract negotiations and the advancement of social justice issues. To lay the ground work for situating the negotiations within social unionism, the table issues advanced by the Union and the Union’s approach to the negotiation process, including practices developed to support the approach, are discussed. The picture that emerges is a practice of social unionism that can be characterized as a strong fusion of normative contract negotiations and the advancement of common good or social justice issues. The paper concludes by considering implications of the type of “strong fusion” social unionism practiced by CUPE Local 3903, including the implications of this practice as a bargaining model and broader implications for unions with a strong social union agenda and for university administrators on a campus with such a union.

DEFINITION OF A SEAFARER’S REMUNERATION IN COLLECTIVE AND LABOR CONTRACTS

The article stipulates that contractual regulation of wages is carried out when concluding collective agreements and agreements of all levels, ie legal regulation of seafarers ‘wages is determined not only in individual employment agreements (seafarers’ contract), but also in collective ones. Regulation of seafarers’ labor according to an individual agreement specifies the legal norms established by the state where by local method shipowners develop more specific, detailed conditions of remuneration on the basis of norms and indicators established centrally in the collective agreement. At the same time, these contractual norms help to increase the level of benefits and guarantees provided by law to seafarers, both at the international and national levels. They are aimed at creating, forming maritime rules of conduct of a particular vessel by filling gaps in the law or establishing specific rules that complement and specify the provisions of applicable law. It is concluded that in the process of reforming labor relations on wages plays a significant role in improving the mechanisms of state and contractual regulation. The main direction of improvement is to achieve the optimal relationship between these two mechanisms. In recent years, the above regulatory mechanisms have been ignored by legal science and studied mainly by economists, which has created gaps in the study of legal methods and methods of regulating wages and largely led to deviations at the present stage from the basic principles of legal regulation. Therefore, these two main mechanisms for regulating wages: state and contract have become very relevant for more than a century of existence and require detailed study and streamlining in a modern way. The importance of state regulation of wages is not in the issuance of a large number of laws, but in their economic feasibility, social orientation and effectiveness, as wages should be based on real financial capabilities of the country, ensuring the balance of interests of all segments of the population.

Psychological contract and organizational justice: the role of normative contract

PurposeThe purpose of this paper is to examine perceptions of the psychological contract (PC) simultaneously at the individual level (fulfillment of obligations by the organization and PC violation) and the organizational level (normative contract), and their relationship with employees’ evaluations of organizational justice. Based on justice and information processing approaches, the hypothesis is that normative contract has an effect on employees’ perceptions of organizational justice, and also moderates the relationship between PC violation and organizational justice.Design/methodology/approachMultilevel modeling was employed with a multinational sample of 5,338 employees nested in 214 companies.FindingsFindings showed that beyond the positive effect of fulfillment of obligations by the organization, PC violation has a strong negative effect on organizational justice. In addition, normative contract has a positive effect on organizational justice, showing that when shared perceptions of normative contract are higher, then the organizational justice perceptions of employees are also higher. Furthermore, the normative contract moderated the relationship between PC violation and organizational justice, showing that the negative relationship of PC violation with organizational justice was stronger when the normative contract was higher.Practical implicationsFindings suggest that normative contract has effects on organizational justice, and that PC violation had more negative effects on employees’ perceptions of organizational justice perceptions when colleagues’ shared perceptions of fulfillment were higher. This means that social context (shared perceptions in an organization about the PC) has effects on individual perceptions of organizational justice. Companies need to pay attention to detrimental effects on employees who perceive a worse PC than their colleagues do.Originality/valueThe study extends the current research by demonstrating that employee–employer exchanges are not limited to individual level effects because shared perceptions of PC fulfillment (normative contract) also have relevant effects on employees’ perceptions of organizational justice.

Exit, Voice & Innovation: How Human Capital Policy Equality (& How Inequality Hurts Growth)

If an employee believes her organization is failing, she can take action using one of two strategies: exit (leaving the company) or voice (advocating change from within). But what happens when both exit and voice are restricted? Change itself–including both innovation and equality–suffers. This article, written for the 24th Annual Frankel Lecture, investigates the connections between fields that are usually kept separate: intellectual property and innovation policy; antitrust law and market competition; employment law and contract norms; and anti-discrimination law and equality policy. In employment, non-disclosure agreements (NDAs), non-compete agreements, innovation assignment clauses, non-disparagement agreements, mandatory arbitration, and secrecy policies all create exit constraints. These restrictive clauses also serve to silence employees, inventors, creators, and entrepreneurs from speaking up and from expressing themselves creatively. These trends impede mobility in the job market while also suppressing voice. The recent steep rise in the use of restrictive clauses has shaped human capital in ways that are harmful to all workers, as well as to industries and innovation at large. Still, the burden of these restrictions is not equally distributed. By integrating economic theory and new empirical research in the field of equality and innovation, this article shows that restricting mobility and voice has negative effects on gender diversity, particularly with respect to women’s opportunities to lead, create, and invent. As a result, industries using these techniques become more concentrated, with less new entry and start-up activity and less gender parity. And because the process operates endogenously, the more an industry is concentrated, the more mobility and equality suffer. The article argues that recent findings on the gender deficit in patenting activity, intellectual property ownership, leadership, and entrepreneurship should be understood in relation to exit and voice policy infrastructure. It concludes with directions for future research and policy recommendations.

Types and features of sources of family law acting on the Ukrainian lands included in the Austro-Hungarian Empire

The scientific article is devoted to the study of the types and features of sources of family law that operated on the Ukrainian lands during their entry into the Austro-Hungarian Empire. In particular, it was determined that from 1797 to 1811 on the territory of Galicia and Bukovina a draft code of civil law of the Austrian Empire was introduced to regulate civil and family relations. Subsequently, in 1811, the Austrian Civil Code, which operated on these lands until 1934, when the Code of Obligations of the Polish Republic came into force, became effective on the Western lands that were part of the Austrian Empire, as well as on the whole territory of the Empire. Transcarpathia and Northern Bukovina – before their joining Ukraine in 1945 and 1940 respectively. This codification, unlike the similar drafts of codifications of civil and family law in the territory of Dnieper Ukraine, did not concider local customs (as stated in the document, the application to legal relations of customs and local statutes was only possible in cases expressly provided by the Code). As a whole, it was part of a pan-European process of reforming civil and family law that began with the Napoleonic Code. At the same time, it was based mainly on the norms of Roman law (pandekt law), German law (Prussian Provincial Code, provincial law of Austrian territories), rather than local customs. Other sources of family law were of a derivative nature, had to comply with the rules of the Austrian Civil Code or to close the gaps in law. At this time, the role of contractual norms that could regulate the property relations of the spouse is increasing. This period was characterized by the predominant position of the husband in marriage, the restriction of parental authority only during the period of minor age, the clear establishment of obstacles to marriage and the grounds for marriage invalidity in the legislation, as well as the extension of the rights of illegitimate children in terms of securing the right to parental maintenance.