Contractual Parties Research Articles

The Role of the Constitutional Court of the Russian Federation in Ensuring the Freedom of Labour Contract Parties

In connection with the 25th anniversary of the Constitution of the Russian Federation, the study of the role of the Constitutional Court of the Russian Federation, including in the field of labour law, is particularly relevant. This article analyzes the activities of the Constitutional Court of the Russian Federation on constitutional control over the observance of freedom in the sphere of labor, the freedom of an employee and employer as parties to the labor contract. The legal positions elaborated by the court concerning the permissible restriction of rights and freedoms of a person and a citizen, which by virtue of their general nature can also be applied when assessing the admissibility of restriction by law of employee and employer freedom in the course of an employment contract, are studied. Some ordinances and definitions of the Constitutional Court of the Russian Federation, which, in the author’s opinion, explain in detail the current constitutional and legal meaning of the labor legislation norms in terms of the freedom of labor and freedom of economic activity. The focus of the article is on the latest acts of the Constitutional Court of the Russian Federation. It is concluded that the freedom of employee and employer as parties to an employment contract cannot be considered properly secured without constitutional control activities.

Arbitration agreement or service contract on dispute resolution

Arbitration agreement plays a vital role in arbitral proceedings, because the absence of arbitration agreement will lead to the invalidity of arbitral proceedings. Firstly, arbitration agreement figures out the name and type of the arbitration mechanism, then it clarifies parties’ requirements relating to the arbitration procedure including substantive law for the merit, procedural law for the arbitration proceedings, language of arbitration, number of arbitrators in the tribunal, locality of arbitration etc. In its essence, arbitration agreement not only describes the parties’ autonomy but also serves as a service contract (service contract on dispute resolution), accordingly arbitration organ will supply service on dispute resolution for parties. Unlike normal service contracts, autonomies of parties in service contract on dispute resolution, which indicates that arbitration organ is the service supplier, are established in two divergent stages. In the event of specific circumstances, although arbitration agreement has validity, the arbitration organ can refuse to become a service supplier.

SCIENTIFIC AND LEGAL BASIS OF INFORMATION SYSTEM OF WETLANDS PROTECTION

Purpose: the article reveals the issue of development of information support for the conservation of wetlands. The international and national legislation on the development of information support for the conservation of wetlands is analyzed. Methods of research: the list of normative legal acts and international agreements in this field is determined. The methodological basis of the research comprise general scientific methods of scientific knowledge, such as integrated and interdisciplinary. Results: the main directions of the further development of information support for the conservation of wetlands are determined. It is concluded that the formation and further implementation of the development of information provision for the conservation of wetlands is a complex and urgent task. Discussion: problems of national and international legislation and implementation of norms of foreign legislation to the norms of domestic legislation in the field of development of information provision for the conservation of wetlands. It is concluded that the formation and further implementation of the development of information provision for the conservation of wetlands is a complex and urgent task. The legal status of wetlands in Ukraine today is not sufficiently researched. The regulation of relations regarding the protection, use, ownership of wetlands is regulated according to the category of territory they are located. For many centuries, the socio-negative environmental assessment of wetlands has been formed, which has led to the massive destruction of mires. Swamps were considered evil, ruined places where life can not exist. This led to massive mosquito destruction. Later, a number of studies were conducted to study marshes in terms of their biodiversity. On February 2, 1971, in Ramsar (Iran), the Ramsar Convention or the Convention on Wetlands of International Importance, mainly as a Waterfowl Habitat, which is an international agreement. The purpose of the Convention was to preserve the existing wetlands, mainly as habitats for rare species of animals. Ukraine is a Contracting Party to the Convention. If we look at the root causes of the destruction of unique cells - then, it should be noted the leveling of the role of wetlands for the environment and human life because of the lack of environmental information, environmental education. Unfortunately, this situation persists today, especially in the countries of the former Soviet Union.

SUBROGATION IN INSURANCE CONTRACT

Subrogation is a legal right characteristically reserved by property insurers. Subrogation occurs in property insurance and in some particular cases of liability insurance. The doctrine of subrogation operates to ensure protection of certain specific principles relevant to the property insurance including the principle of indemnification whereby the compensation received is no more and no less than a full indemnity for the insured loss or damage suffered by the insured due to loss occurrence, the principle of non-cumulation in terms of claims under the same insurance contract and the principle which excludes claiming indemnity from the person who is legally responsible for causing the loss, because otherwise the insurance contract may be an unjustified source of profit for the insured as the insured would get double recovery or paid out twice for the same claim.With the payment of the reimbursement from an insurance agreement on the insurer, all rights that the insured has towards the persons responsible for the damage up to the amount of the paid compensation are transferred. With the subrogation, the insurer takes up the legal position of the insured person and exercises his right to subrogation from the rights of the insured (derivative acquisition of the right), so that the insurer exceeds the claims in scope and amount as the insured had towards the perpetrator.Subrogation is the right of the insurer, it is not his obligation. The insurer is not obliged to use this right to transfer the rights to the responsible person.The notion of subrogation is often associated with the concept of insurance regression. But there is a difference between these two terms: recourse is the right of the insurer to claim the amount of compensation that he has paid to the insured (injured parties) from the harmful person, while subrogation is the transfer of the right (the claim for damages to the responsible person) from the insured to the insurer up to the amount of the compensation paid on the basis of an insurance contract. The right to recourse is a consequence of the existence of subrogation, i.e. transfer of the rights of the insured person to the responsible person, and which is reached by the law itself.Тhe subrogation doctrine also operates to ensure that the defendant or the person who is legally responsible for the loss shall not be absolved of liability under the civil law. Namely, the perpetrator should bear the consequences of his liability for the caused damage, and therefore the legislator of the insurer (as one of the contractual parties in insurance contract) has recognized the right what he has paid the injured party (as the contractual party in the insurance contract called the insured) to calm from the perpetrator.Furthermore, subrogation doctrine operates to ensure profit for the insurance companies whereby the reimbursement funds the claims or sum insured are covered from additionally grow; therefore, this doctrine is of great importance to the insurers.

AGREEMENT OF THE WILLS FROM THE CONTRACTUAL PARTIES AS ONE OF THE CONDITIONS TO MAKE A DEAL

Every agreement of the wills among two or more persons who make mutual law relation or changes or calls of the existing law relation is named as a contrast in the theory of law. According its characteristics, the law relations may be different - obligatorious, familliarious, hereditorious, administrativ, merchanditorious etc., because of what the contracts as instruments of law regulations of that relationships are published in different law branches, like: familly law, heretige law, administrative law, merchandise law etc. Regarding its theoretical structure and frequent use and meaning in the law practice, the obligatory contracts are separated - those which may make obligatory relationships.The obligatory relationships are law connection among two or more parties from which one of them has the right to ask for, and the other is obligated to give the asked or to do, or not to do, or to bear it. The essence of the obligatory relation is in the right of the creditor to ak from the debtor to fulfille his obligation, which means - basicly - they are in creditor - debtor's relationships. Therefore, the obligatory contracts are double law acts according to which, in the agreement of the wills between two parties, the one part obeys to give something, to do or not to do something, or to bear something in the benefit of the other part, the part which takes that obligation as its right.The agreement of the wills of the contractual parties is one of the four common conditions of the genezes of a contract. It is realized by equality of the different whishes and different aims which the parties like to reach by making an agreement. There are the questions which I am trying to answer in my written text: about law relevant will, the atributes which the will should possesse, the ways of giving the will and, at the end, coordinating the wills of the two parts which goes to make the contact. The coordinating of the wills should be done on a legalized or usual way, frequently or usually by giving an offer from the first part and reaching the offer from the other one. That is the most usual mode of implementation the reunification of the wills between the contractual parts.

Bilateral Trade Agreements and the Interconnectedness of Global Trade

Over the last decades, bilateral trade agreements (BTAs) have increased considerably in number and economic relevance. Notably, such agreements substantially affect global trade, since the reorganization of flows of goods and services has prominent impacts on the contracting countries' economies, but also on other parties that are (directly or indirectly) engaged in trade with these countries. Here, we empirically study the effect of BTAs on the input-output linkages between the contractual parties' national economic sectors by defining a new measure of Trade Interconnectedness (TI), which describes the relative importance of direct and indirect production linkages between the two countries in the international trade network. By analyzing its time evolution for each pair of trade agreement partners, we demonstrate that while most BTAs are succeeded by an increase in TI between the contractors, there are some notable exceptions. In particular, comparing the trade profiles of China and the United States (US), we find indications that both countries have been pursuing fundamentally different objectives and strategies related to the negotiation of BTAs.

ON THE OPTIMALITY OF A STRAIGHT DEDUCTIBLE UNDER BELIEF HETEROGENEITY

AbstractThis article attempts to extend Arrow’s theorem of the deductible to the case of belief heterogeneity, which allows the insured and the insurer to have different beliefs about the distribution of the underlying loss. Like Huberman et al. [(1983) Bell Journal of Economics14(2), 415–426], we preclude ex post moral hazard by asking both parties in the insurance contract to pay more for a larger realization of the loss. It is shown that, ceteris paribus, full insurance above a constant deductible is always optimal for any chosen utility function of a risk-averse insured if and only if the insurer appears more optimistic about the conditional loss given non-zero loss than the insured in the sense of monotone hazard rate order. We derive the optimal deductible level explicitly and then examine how it is affected by the changes of the insured’s risk aversion, the insurance price and the degree of belief heterogeneity.

Developing of a mathematical model for selecting a project manager using hierarchical analysis process

The project manager represents the actual leadership of the human resources in every project process. This position refers to the most important human components of the project. Establishing a scientific approach to its selection process is the cornerstone of successful project planning. This study examined the factors influencing the selection of the project manager and the basis of the required skills in general. The researcher concluded that the criteria adopted in the selection process in general, representing the construction industry in Iraq, which numbered (51). The part of this research is developed a mathematical model that facilitates the selection process. It makes the process of selection project manager is more logical and well-understand from all contractual parties. The researcher adopted analytic hierarchy process technology known for its ability to compare alternatives and to promote the best alternative to determine the set of critical criteria to be considered in the project manager selection process. Significantly, the researcher built and developed a mathematical model that includes critical criteria only for selecting the project manager in the construction industry in Iraq. The researcher applied the mathematical model to select project managers for four projects of the University of Baghdad (under implementation), and compared this with the evaluation forms for these projects. The researcher found the success of the mathematical model in the evaluation process and then evaluated the results in the closed questionnaire. This study shows a set of conclusions from different levels of results during the procedures of applying this research.

The Time Value of Money Concept in Islamic Finance

The time value of money is a basic investment concept and a basic element in the conventional theory of finance. The Shari`ah does not rule out this consideration, for it does not prohibit any increment in a loan given to cover the price of a commodity in any sale contract to be paid at a future date. What is prohibited, however, is making money’s time value an element of any lending relationship that considers it to have a predetermined value. Here, the Shari`ah requires that a loan be due in the same currency in which it was given. The value (i.e., purchasing power) of paper currencies varies due to changes in many variables over which the two parties of a loan contract usually have no control. This study examines possible modus operandiof time valuation according to the Shari`ah’s precepts vis-a-vis the concept of money, and whether any value can be attributed to time while considering money’s value. For this purpose, it investigates the juristic views on such relevant issues as the permissibility of difference between a commodity’s cash and credit prices and an increase and reduction of the loan’s amount in return for early repayment.

Breach Inducement Activities and Performance of Breach Remedies

We study different breach remedies, considering the possibility of breach inducement activities -- actions taken by one contract party to make it more costly for the other party to perform the contract. We analyze the performance of each remedy in suppressing breach inducement activities and eliciting efficient (selfish) relationship-specific investment when ex-post renegotiation is allowed. We find that (1) expectation damages perform best, always achieving the optimal outcome; (2) specific performance and liquidated damages cannot always achieve the optimal outcome; and (3) liquidated damages may or may not perform better than specific performance, inducing less or more breach inducement activity. These rankings offer an alternative justification for the court to implement expectation damages rather than specific performance and explain many disputes on liquidated damages involving breach inducement activities.

THE ROLE OF BANKING IN PAYMEN OF INTERNATIONAL TRADE CONTRACT

The research aims to find out the regulation of Letter of Credit (L/C) as an instrument of payment in international trade; and to analyze the role of banks inthe implementation of payment services in international trade contracts. This research is a normative legal research with statutory approach, dan conceptual approach. The technique of collecting legal material is done by literature study, analyzing various legal references relevant to the examined issues to be further analyzed qualitatively and descriptively. It conducted by applying in depth and holistic review of the various references, and evaluated the legal materials as regulatory description of the role of banks in international trade contracts. The results of research indiceted that, the L/C regulation as a instrument of payment, regulatedin the International Civil Law (ICL) and in the Uniform Custom and Practice (UCP) provisions. According to ICL, the relations of the parties in trade contract based on the agreed legal option. If there is no legal option, it refers to the principle of the most characteristic performance, refers to the country in which the bank gives credit, or in which country the credit is disbursed. As for itsregulation in UCP 600, that L/C is an agreement requiring a bank to act upon request and instruction from a customer to conduct payment to the beneficiary. Meanwhile the role of banks in the implementation of payment services in international trade contracts is to guarantee payment of goods thatsent by exporters to importers in accordance with agreed price, and to ensure completeness of the shipment documents.

Proposed Model to Address Challenges of Digital and Audit Analytics (Presentation Slides)

In view of recent developments relating to the use of data analytics, as well as the need for authorized access and verified procedures to private data and information, this presentation considers whether regulatory responsibilities (primary and secondary) should be fortified in respect of the following areas, namely: Data analytic firms, Prominent social media platforms, Consideration of Non GAAP matters (such as GDPR) Further, a consideration of extended roles for the SEC, the CAQ, the PCAOB, the FASB, the IASB, the FRC and other international standard setters will be considered. Should regulators always assume sole regulatory and reporting responsibilities for cumbersome and technical areas – particularly sensitive matters which involve third party interests? And in cases where contributory negligence on the part of a contractual party has further aggravated third party interests?

Citizens rights and administrations' duties in environmental matters: 20 years of the Aarhus Convention

The article uses the 20th anniversary of the Aarhus Conventionon25 June 2018 to retrace the development of the Convention during these twenty years. For the three pillars of the Convention - access to information, public participation in decision-making and access to justice in environmental matters- it describes and assesses the main impacts which the Convention had on the situation of the European Contracting Parties, and points to the weaknesses of its practical application. Overall, it strikes a positive balance of the effects of the Convention, though it clarifies that significant improvements still remain necessary.

Naturaleza jurídica del seguro de vida grupo deudores

El seguro de vida grupo deudores protege la entidad bancaria asegurada contra el riesgo de pérdida que puede causar el deceso o incapacidad del deudor, asegurando entonces el reembolso de la deuda. En este esquema, el tomador es el banco que al mismo tiempo tiene la calidad de beneficiario. Esta particularidad del contrato de seguro vida grupo deudores dificulta el entendimiento que tradicionalmente se tiene de la noción de parte en el contrato
 de seguro colectivo. Más aun, la interpretación que al respecto ha hecho la jurisprudencia no ha servido para aclarar el derecho que tienen los deudores respecto del asegurador o el banco en este tipo de contratos. Después de describir la interpretación de la Corte Suprema de Justicia de Colombia sobre las principales reglas del contrato de seguro de vida grupo y de su comparación con las de las cortes de Francia y de Singapur, el autor describe la nueva teoría del banco-tomador como un intermediario en la distribución del seguro de vida grupo deudores, buscando con ello simplificar los problemas que actualmente presenta este contrato en nuestro país.

EVALUATION OF SIMULATION TECHNIQUES FOR MODELING PROGRESSION OF CONSTRUCTION CLAIMS

The unstructured and dynamic nature of construction projects and the on-site work complexities have been inevitably leading to claims. These evolve according to a staged mechanism set forth in the adopted conditions of contracts. More specifically, claims might progress expeditiously or drag depending on the nature of the applied mechanism and the behavior and interaction among contractual parties. As such, this complex problem of claim progression, which entails a lot of parameters and variables, is addressed in detail in this paper by resorting to three simulation techniques namely: (1) Discrete-Event Simulation (DES), (2) Agent-Based Modeling (ABM), and (3) System Dynamics (SD). The purpose behind this study is two-fold: (1) capturing and visualizing, through three different simulation models, the dynamic and interaction among the different entities as claims are progressing and defining the weak links hindering the efficiency improvement of such a process, and (2) comparing DES, ABM, and SD simulation approaches, using choose-by-advantage technique, and evaluating the advantages and drawbacks of each when studying the progression of claims. Results of all approaches are presented and analyzed followed by a discussion of the effectiveness of each simulation technique and the potential applicability of a hybrid approach in modeling the progression of claims.

INFLUENCE OF COLLABORATIVE BEHAVIOR ON CLAIM NEGOTIATION

The high cost incurred by the resolution of conflicts is largely affected by the existing adversarial nature of the construction industry along with the use of non-efficient dispute resolution methods in construction projects. This paper studies opinion dynamics in the negotiation of construction disputes while trying to understand the behavior and extremism of each contractual party. The developed model uses an agent-based approach to show how each agent’s attitude can influence the negotiation process when solving a dispute. It can also be used to highlight the importance of alternative dispute resolution (ADR) methods and the use of a mediator in helping parties initiate negotiation and decrease the number of negotiation cycles needed to converge. The results showed that negotiation is not only affected by the attitude and character of the agents involved but it is also influenced by the delivery method of the project and the level of intensity of each agent. It was found that when the project is delivered through an Integrated Project Delivery (IPD) method, parties are more flexible and cooperative and will reach agreement within few negotiation cycles.

THE PARTIES OF THE LABOR CONTRACT ON THE ACTUAL LEGISLATION AND THE DRAFT LABOUR CODE OF UKRAINE

The theoretical and legal study of the subject-matter composition (parties) of the employment contract according to the current legislation and the Draft Labor Code of Ukraine is conducted in the scientific article, the peculiarities of the labor legal personality of the employee and the employer as parties to the employment contract are determined. The article contains proposals on improving the acts of the current legislation, the relevant norms of the Draft Labor Code of Ukraine, taking into account the positive legislative experience of foreign countries.

The Distribution of Residual Controls and Risk Sharing: A Case Study of Farmland Transfer in China

Structuring contracts to share interest and risk is the central premise of farmland transfer, yet the contract framework and its determinants have rarely been empirically tested based on micro-level data. In this study, we aim to examine factors underlying the balanced distribution of residual controls and risk sharing on contract framework by using field surveyed data of 353 individual farmland transfer contracts. Our evidence shows that the policy of farmland property rights registration has a significant effect on the contract framework and supports the implication of enforcement costs exerted by the effects of the scale ratio and the contract form, contract duration, conversion way, and long-lived assets input. Although our findings fail to support the typical implication of risk sharing as an explanation of contract framework of farmland transfer, given the symmetric positions of two contracted parties of rural farmer households, it is proved that right confirmation and contract duration are two important factors underlying contract options.

The Interpretation and Effect of Permissive Forum Selection Clauses Under U.S. Law

A forum selection clause is a form of contractual waiver. By this device, a contract party waives its rights to raise jurisdictional or venue objections if a lawsuit is initiated against it in the chosen court. The use of such a clause in a particular case may therefore raise a set of questions under contract law. Is the waiver valid? Was it procured by fraud, duress, or other unconscionable means? What is its scope? And so on. Unlike most contractual waivers, though, a forum selection clause affects not only the private rights and obligations of the parties, but something of more public concern: the jurisdiction of a court to resolve a dispute. The enforcement of such a clause therefore raises an additional set of questions under procedural law. For instance, if the parties designate a court in a forum that is otherwise unconnected to the dispute, must (or should) that court hear a case initiated there? If one of the parties initiates litigation in a non-designated forum that is connected to the dispute, must (or should) that court decline to hear the case? This report, prepared for the International Academy of Comparative Law in connection with its XXth International Congress, analyzes the approach to these questions in the United States. The bottom line is straightforward: almost always, in consumer as well as commercial contracts, forum selection clauses will be enforced. Navigating the array of substantive, procedural, and conflicts rules whose interplay yields that result, though, is far less straightforward. That is the task of this report. Following a short background, it surveys current state law on their use, in consumer as well as commercial contracts. The report then discusses the interpretation and enforcement of forum selection clauses in both state and federal courts. It analyzes their effect on jurisdiction as well as on doctrines involving venue, such as removal and forum non conveniens. The report also covers choice of law problems, particularly as they arise in the course of litigation in federal courts.

Impact of Rework on Building Project and Organisation Performance: A View of Construction Professionals in Nigeria

Rework has become a menace in the construction industry as it leads to undesired and unnecessary loss of efforts. It degrades project cost, quality and schedule performance, and it occurs at both the design and construction phases of construction projects. This study therefore examined the perception of construction professionals on the impact of rework on the performance of both the project and the performing organization. This was achieved by determining the most important effect of rework on project and organizational performance, and identifying variables in which the professionals view varies significantly. The study adopted a quantitative survey approach in which structured questionnaire was adopted as the research instrument. Mean item score was used in ranking the professionals perception of the effect of rework, and Kruskal-Wallis H test was used to identify the variables in which the professionals view varies. The study revealed that: rework has a very high impact of (MIS = 4.00) on project performance which results in projects over shooting their planned budget and planned duration, and degradation of project quality. Rework has a very high effect of (MIS = 4.04) on organizational performance leading to loss of profit/reduced profit, de-motivation of workers, and loss of future work/business. Disputes between contracted parties, design team dissatisfaction, de-motivation of workers and Fatigue are the factors in which the professionals’ view varied significantly. It was recommended that there is the need for the training of construction stakeholders on construction rework and other variables that cause projects to over shoot their budget, time and other resource.