Contractual Parties Research Articles

Rethinking Contract Remedies

This Article offers a theoretical framework for thinking about contract remedies. The argument starts from the distinction between rights and remedies in contract law. The distinction is consistent with the doctrinal structure of contract law in Western legal systems, and with the available empirical evidence regarding contractual parties’ expectations. Because they tend to downplay this distinction, recent theoretical analyses of the American law of contract remedies, such as Shiffrin’s analysis of the divergence between contract and promise, and Markovits and Schwartz’s defense of expectation damages, go astray. An adequate theory of contract remedies must start by taking the distinctiveness of remedies seriously. The theory offered here argues that the function of contract remedies consists of two central roles: they protect the integrity of the practice of contracting and the individuals who engage in it. Because of these considerations, there is a pro tanto reason for a certain resemblance or proportionality between remedies and the primary contractual rights they enforce. But this reason is only one of the relevant considerations in the design and evaluation of contract remedies. Once we bear in mind the distinction between rights and remedies, remedial analysis can also incorporate other morally relevant considerations beyond the central function of remedies. In order to show this, this Article offers a defense of money damages which incorporates those additional considerations. The Article, thus, offers an integrated framework for remedial analysis, and therefore for illuminating some of the debates that have perplexed contract theorists writing about contract remedies.

Taşıma Hukukunda Riziko Alanı İlkesi Bağlamında Nötr Alan ve COVID-19’un Nötr Alan Olarak Değerlendirilmesi

The transport law of Turkish Commercial Code No. 6102 grants certain demand rights to the parties of a carriage contract. This has been attributed to the fact that the transport or delivery obstacle may not fall within the carrier’s own risk area or is included in the risk area of the other party. Risk area principle is broader than fault liability. Because, while determining the risk areas of the parties of the contract, besides personally culpable behavior or negligence; some other criteria such as culpability arising from the organizational areas of the parties, predictability, and controllability are also applicable. It is not disputed that there is a carrier’s risk area and a consignor’s risk area. It is, however, controversial whether there is a third or neutral area. If the existence of a neutral risk area is accepted, there is no legal regulation regarding which party must endure the consequences of carriage or delivery obstacles that arise from the neutral risk area; doctrinal solutions to this issue diverge. For much of the world, the COVID-19 pandemic brought normal life to a standstill beginning in February 2020. The pandemic revealed how necessary it is to acknowledge the existence of a neutral risk area. Solutions must be developed within transport law regarding the consequences of carriage or delivery obstacles that result from a neutral event. Also, in this context, the fifth book of the Turkish Commercial Code contains provisions related to sea transport that should be utilized.

Freedom to (Smart) Contract

Since Friedrich Kessler wrote “Contracts of Adhesion-Some Thoughts About Freedom of Contract” in 1943, condemning narrow adherence to the principle of “freedom to contract” in the face of large scale enterprises’ growing preference for standard form contracts, Courts have balanced their desire to uphold contracts while protecting weaker parties from adhesion. Today, they face similar challenges with the rise of code-driven smart contracts and blockchain governance. Similar to Kessler’s world, where standard-form contracts were a tool for “excluding or controlling the ‘irrational factor’ in litigation” such as uncertain outcomes of judicial interpretation, automated smart contracts aim to put themselves outside the control of both contractual parties and the courts, thus removing any ability to breach or tamper with the original terms. Smart contract advocates contend that removing the judiciary as the governing body over contract law and imposing contractual performance via decentralized blockchain governance improves efficiency and certainty.
 But, how much can one really write a contract that completely circumvents the potential for legal intervention or judicial enforcement? Will smart contracts finally achieve the complete separation between private and public law that advocates of “freedom to contract” originally claimed, or does the common law legal system’s deep-rooted belief in the rule of law and due process prevent the judiciary from being excluded from contract enforcement regardless the medium? And is there a risk that, as smart contract sceptics posit, smart contract platforms and blockchain governance create a new feudal order with a “potentially illegitimate exercise of power” and “normatively suspect” wealth distributions?
 The short answer, as this paper will demonstrate, is that as long as smart contracts meet the traditional requirements of a contract, they cannot fall outside the establish legal system’s purview. The only thing a smart contract truly adds to traditional contracts is automated execution that is enforced by the blockchain’s consensus mechanism; this may provide some efficiency to the legal system by streamlining basic performance but it cannot be the only form of governance over smart contracts. While there may be procedural challenges to undoing or enforcing specific performance under smart contracts because of their decentralized features, any substantive problems that could occur within a smart contract are imminently addressable with and must be subjected to the principles and remedies found in traditional contract law. Finally, I will conclude with current developments in smart contracts which point to a potential for them to become an integral part of our legal system going forward. Overall, I will argue that smart contracts, if carefully drafted to consider potential pitfalls and the future needs of contracting parties to amend or enforce, can hold the potential to provide efficiencies and greater legal certainty to contracting parties. This is achieved, not through circumventing the legal system, but by working with it to automate simple performance enforcement and deferring more complex contractual breakdowns to the judiciary.

The equilibrium of venture capital incentive contract: Optimization and Q-learning approaches

This paper presents an incentive contract model for allocating the income of venture projects. Venture Capital (VC), as one of the main sources of financing innovative projects, faces challenges like moral hazards, information asymmetry and interest conflicts (three agency problems). In addition to identifying the items that may affect the income of venture projects and the introduction of cost functions, we present an optimal incentive contract model from the perspective of both venture capitalists and entrepreneurs. In this model, a venture capitalist, as an active investor, provides managerial and training assistance to the entrepreneur. The results showed that the higher the initial ability of the entrepreneur, the less money the venture capitalist pays for training. Furthermore, the wealth that the contract parties can obtain if the venture contract is not accepted, is an influential factor in the contract payment function. This model has also been studied with bounded rationality hypothesis and has been implemented using the Q-learning algorithm. In addition, the results obtained from the Q-learning approach, are reasonably convergent with the Nash equilibrium.

Liability of Platforms as Contract Parties, Intermediaries and Secondary Liable Subjects

Liability of Platforms as Contract Parties, Intermediaries and Secondary Liable Subjects

Building Information Modeling Strategy in Mitigating Variation Orders in Roads Projects

Most governmental projects in Jordan have cost overrun, it rises during the on-going stage to increase the cost and prolong the time of the project. Unfortunately, until this moment, there is no particular management system in Jordan construction industry to minimize cost overrun and variation order adopted by the government. In contrast, global construction industry has witnessed a huge transformation in terms of the use of digital technologies, particularly Building Information Modeling (BIM) which is a revolutionary digital technology and operation that is reshaping the Architecture, Engineering and Construction (AEC) industry. approach and objectives causes before of this paper are firstly to review the factors contributing to variation orders in governmental road projects in Jordan, secondly, to propose a BIM design applications strategy to minimize variation orders, to achieve the objectives a quantitative approach was followed by distributing a questionnaire, then the data was analyzed statistically using relative importance index, the results were as follow. Our findings suggests that the most important factors causing change orders were as follow: Inaccurate quantity take-off (0.66); Labours or material not meeting the specifications (0.63); Logistic delays (0.60); Internal politics (0.566); and the equipment and tools are not available (0.55). The results also indicate that Contract Parties, Consultant, Contractor and Other Variations had significant positive effects on V. O, whereas the effects of BIM Design Applications, Facility Operations Simulation, Exploration Design Scenarios, BIM Design Detection, (BIM Quantity Take-off and Cost Estimation) had a passive impact on V.O. Lastly, BIM has obtained a great reputability by enhancing the productivity in construction society, minimizing the total cost of the projects, and many other benefits.

متطلبات تفعیل الشراکة (PPP) بین القطاع العام والخاص مدخلًا لإصلاح التعلیم قبل الجامعی

الملخص العربى : يعد التوجه نحو خصخصة الخدمات العامة جزءا من إطار عام للإصلاح، يهدف إلى التقليل من حجم النفقات العامة في المجتمع، وإتاحة التنوع من الجهات المقدمة للخدمات، وتحقيق الأهداف العامة من خلال مشارکة القطاع الخاص في تحقيقها، وقيام الدولة بمنحه بعض الصلاحيات لتقديم بعض الخدمات وفقا لضوابط وحدود معينة. ويهدف البحث إلى التوصل إلى تصور مقترح لتفعيل الشراکة (PPP) بين القطاع العام والخاص لإصلاح التعليم قبل الجامعي، وذلک من خلال التعرف على الإطار المفاهيمي لإصلاح التعليم، ومفهوم نظام الشراکة بين القطاع العام والخاص (PPP)، وأهدافه وخصائصه، ومزاياه، ودواعي اللجوء إليه، والتطرق إلى بعض ملامح تجارب الدول في مجال الشراکة بين القطاع العام والخاص (PPP)، وأهم نماذجه. منهج البحث اعتمد البحث على المنهج الوصفي. نتائج البحث توصل البحث إلى تصور مقترح لتفعيل الشراکة (PPP) بين القطاع العام والخاص لإصلاح التعليم قبل الجامعي، وتمثلت أهم آليات تفعيل الشراکة بين القطاع العام والخاص في التعليم قبل الجامعي، في الآتي: - إضافة تشريعية فيما يخص المتابعة والرقابة والمساءلة وإسنادها على مشروعات الشراکة التعليمية بين القطاعين العام والخاص، وإسنادها لجهة سيادية محايدة، تستطيع من خلال القانون أن تتابع وتراقب وتحاسب جميع الأطراف في عقود الشراکة، وذلک بداية من طرح المشروع مرورا بتنفيذه وتشغيله، وحتى انتهاء المدة وتسليمه للجهة الإدارية بالحالة المتفق عليها في عقد الشراکة. - ضررة وجود دعم سياسي قوي للشراکة بين القطاع العام والخاص فهذا الدعم، يشجع المستثمر المحلى أو الأجنبي، على الدخول في مشروعات شراکة مع القطاع العام، حيث أن دعم القيادات السياسية لتلک المشروعات يبعث بالثقة والاطمئنان في نفوس المستثمرين. -العمل على توفير قاعدة بيانات سليمة يمکن الاعتماد عليها والوثوق بها تمکن من التخطيط الجيد لمشروعات الشراکة وتحديد الاحتياجات وإدراجها في الخطة الاستثمارية. الملخص الانجليزى : The Direction towards privatization of public services is considered part from public framework for reformation, it's aimed at reducing the public expendure in society. It also gives chance for diversity of services and achieving public goals through private participation, in addition to granting certain Prowers from country to provide some services according to special limits. This research aims to making suggested framework for activating public private partnership (PPP) to reform pre-university education through recognizing the conceptual frame of education reform, concept of public private partnership system and its aims, characteristics and mentioning some of experiments of countries in the field of public private partnership. Search methodology: The research depended on descriptive method. The results of research The research resulted in suggested framework for activating public private partnership for reforming pre-university education. - The most important mechanisms of activating public private partnership in pre-university education are: 1) Monitoring and accountability for educational partnership projects between public and private sectors, which can monitor and accountability from the law and control all the parties of partnership contracts from the beginning of project to the implementation and operation. 2) Necessity of political support for public-private partnership in which this support encourage political authorities for these projects. - working on availability of data base which we can depend on in good planning of partnership projects and determining the needs and putting them in investment plan.

Contracts as Reference Points: A Replication

We replicate two treatments of an experimental theory test (Fehr et al., 2011) studying Hart and Moore (2008)’s idea that contracts serve as reference points in trading relationships. In contrast to rigid contracts, flexible contract terms may be perceived in a self-serving manner and, therefore, the contract parties might form subjective entitlements. This reference-dependent perception of flexible contract terms leads to a trade-off of the contractual form. While flexible contracts are, in theory, deemed preferable to rigid contracts, frustrated subjective entitlements may lead to perfunctory performance and shading behavior that is absent in rigid contracts. The results of our replication are mixed. On the one hand, we find that sellers under flexible contracts shade more often than sellers under rigid contracts and our replication analysis suggests replication success. On the other hand, our analysis does not indicate a meaningful positive effect of removing ex ante competition on shading rates under rigid contracts. Our replication analysis does not unambiguously suggest replication success here. Thus, we do not find supporting evidence for the idea that competition creates objectivity and enhances perceived fairness of the contract terms.

Investigation of Contributing Factors for Smart Parking Development Projects Delay:The Case of Addis Ababa, Ethiopia

Considering the increase of urban population and traffic congestion, smart parking is always a strategic issue to work on, not only in the research field but also from economic interests. The existing and ongoing works on smart parking are complicated and Trans disciplinary. The construction industry is one of the main sectors that provide important ingredients for the development of an economy. However it is becoming more complex because of the sophistication of the construction process itself and the large number of parties involved in the construction process. Delay in construction project completion is a global phenomenon that occurs in the construction industry and considered as one of the most common problems causing a multitude of negative effects on the project. The objective of this study is to identify the major determinants factor smart parking project delay. Both primary and secondary data were used in this study. A survey questionnaire was structured and distributed to contractor, consultant, client and subcontractor who were working in smart parking construction projects. The questionnaire included 30 predefined factors, which were grouped into six major factors, client, contractor, and consultant, and material, external and labor factors. The relative importance index (RII) was determined and the factors were ranked within their groups and overall. The results showed that the group of client factors ranked first among the six groups. The top ten factors causing delay of smart parking projects are: delay in sub-contractors, slow in decision making by client, delay in delivering the site to the contractor, Dollar insecure in government, delay in obtaining permits from municipality, less capacity to admin the project, lack in qualified labors/shortage of qualified engineers, shortage of construction materials, late procurement of materials and Ineffective planning and scheduling of projects. Finally, recommendations have been developed for each of the contract parties’ client, contractor, consultant and subcontractor where present in this research in order to minimize and avoid the delay factor and get the project completed within the planned schedule. Keywords : Smart parking, project delay, determinant factor, Relative Importance Index (RII) DOI: 10.7176/JAAS/67-02 Publication date: August 31 st 2020

Concurrent Liability in Contract and Intellectual Property Law: Licensing Agreements in Light of Case C-666/18 IT Development SAS

Abstract It is the starting point in some jurisdictions that if a licensing agreement has been breached, the licensor may choose to establish their claims against the licensee on the basis of either contract or intellectual property law. This article argues that such a starting point should not be upheld. Not least because of developments in EU law, the intellectual property rights (IPR) system contains special remedies and procedures, which systematically and unilaterally benefit one of the parties to a contract, viz. the rightholder (licensor). The ability to have recourse against a contractual party via IPR instead of contract law ought to be limited as far as possible, i.e. restricted to those instances where this is prescribed by law. In the recent judgment of the CJEU, C-666/18 IT Development SAS, the Court held that a copyright holder/licensor must be able to rely on the remedies and procedures of the Enforcement Directive (IPRED). Consequently, freedom of choice between contract and IPR law is guaranteed in this respect. It is notable that this judgment deals exclusively with IPRED and does not have any broader effect in relation to the basic question of choice between contract and IPR law outside of the scope of the IPRED. Therefore, freedom of choice could still be limited, and licensees shielded against the special remedies and procedures which are at rightholders’ disposal outside of the IPRED.***

Energy Performance Contracting and Public-Private Partnership: How to Share Risks and Balance Benefits

Public private partnerships (PPPs) are a well-known instrument used worldwide by public administration (PA) to build public infrastructure using private knowhow and financial resources, and sharing risks. In recent years, PPPs have been widely adopted to develop energy efficiency projects between public and private sectors. In this context, a successful project requires a contractual arrangement based on energy performance contracting (EPC) that balances the interests of the two parties. This paper aims to answer two questions: how to share the benefits between the contractual parties and reach an optimal long-term contractual agreement; and which type of contract ensures a consistent risk transfer to the private partner, allowing the PA an “off balance” accounting treatment. The research questions are answered through the development of a mathematical equation able to calculate the optimal percentage of benefits sharing between partners in a long-term contractual agreement. The results are tested with a simulation based on a case study about the energy efficiency project of an Italian hospital. The paper is innovative because it provides suggestions to improve the EPC-PPP contractual structure and realize a balanced agreement between the public and private partners. Moreover, it analyzes the different allocation of risks in EPC contracts to identify the implication for the PA in terms of on-off balance accounting treatment in energy efficiency investment. We show how a successful long-term EPC-PPP can benefit from a mixed contractual structure in which profit-sharing percentage changes during the contract’s life to ensure the same net present value (NPV) to both public and private partners. This paper supports public decision making in order to choose contracts that are able to transfer energy and management risks. Moreover, it helps to understand the balance between public and private interests in a long-term EPC-PPP contract.

우리나라 공공조달계약의 문제점과 개선방안에 관한 연구

Public procurement contracts refer to contracts concluded in the process of procuring goods, construction, and services required by administrative entities. Typical laws that regulate it include the “Act on Contracts to Which the State Is a Party” and the “Act on Contracts to Which a Local Government Is a Party.” This study discussed the legal issues and proposed alternatives in that point of view as follows. First of all, the current sanctions system for illegal party owners' participation in bidding is being used to impose sanctions on illegal party owners, a public system, despite the fact that the reasons are too wide and simple judicial problems. Therefore, it is necessary to review the reasons for imposing sanctions on fraudulent parties stipulated in the relevant laws once again to clearly distinguish the reasons for truly restricting their eligibility to participate in the bidding, and to improve the system to prevent excessive infringement of their rights to the other parties. Disputes related to public procurement contracts and legal remedies can be divided into disputes at the bidding stage and disputes at the implementation stage after the conclusion of the contract, and disputes at the bidding stage are mostly related to the decision of the winning bidder. In the case of disputes in the performance stage of a contract, there is not much difference in functionality and efficiency compared to civil litigation, even by administrative litigation as a means of legal relief. However, understanding the legal nature of the successful bidder's decision as a disposition in the dispute at the bidding stage will enable more efficient rights relief in that it will be subject to an appeal and emphasize the objective function of expanding the scope of the plaintiff's qualification and restoring the legal order. Finally, the long-term continuous construction contract has a clear advantage in that it is possible to secure and execute flexible budgets considering the budget situation for each fiscal year. Despite these advantages, however, there are many cases in which the contract is discontinued due to the counterparty's non-responsibility in the course of performing the contract. This resulted in additional overhead costs resulting from the extension of the construction period, which eventually resulted in a dispute over the payment of overhead. Above all, it is unreasonable that the construction contract amount is not adjusted even though the extension of the construction period is not an incentive to the other party. Therefore, if additional overhead occurs due to non-responsibility reasons of the other party in a long-term construction contract, the ordering agency will need to pay additional overhead to protect the other party's interests, enhance credibility in contracts with the state and local governments, and prevent small and medium- sized companies from defaulting on wages and deteriorating management. One solution to this is the activation of the continuing cost system. In addition, it is also urgent to establish a legal basis for the ordering agency to pay additional overhead if an extension of the construction period occurs despite the fact that the other party is not a legislative liability.

Contract Law in an Era of Technology: Examining Liability in Smart Contract Transactions

The growing use of smart contracts in a wide range of transactions has raised a deluge of legal issues, including allocation of liability in such transactions. In many circumstances, using smart contracts involves a range of legal risks that might be distributed beyond the contractual parties to other parties, such as the developers of the smart contract code. While smart contracts have the potential to disrupt the current legal and transactional status quo, notorious occurrences such as attacks on Ethereum or Bitcoin platforms highlight the need to properly dissect the issue of liability and rightly apportion liability where it falls. This also includes working on any lapses in the existing legal and transactional framework to cater for these issues. This article sets out to examine the validity of smart contracts in the light of existing contract law principles. It examined the legal regime and development of smart contracts in Nigeria. It further discussed the problem of allocation of liability associated with smart contracts. It made certain propositions on how these issues could be tackled including the amendment of existing legal framework to aptly provide for and regulate the smart contracts era particularly in Nigeria. The doctrinal method of research was employed to dissect the issues raised and discussed in the article. Relevant texts were scrutinized and analyzed to arrive at the findings and recommendations contained in the article.

The impact of online platform transparency of information on consumers’ choices

AbstractMillions of Europeans use online platforms with almost blind trust that the platforms operate in the interests of the consumer. However, the presentation of search results, transparency about contractual parties and the publication of user reviews that contribute to the value of online platforms in Europe's Single Digital Market also pose significant risks regarding consumer protection and market competition. The current study investigates how enhanced information transparency in online platforms might affect consumers’ trust in online activities and choice behaviour. Following an exploratory qualitative study, three online discrete-choice experiments were conducted with representative samples of 1200 respondents in each of four countries: Germany, Poland, Spain and the UK. The objective of the experiments was to test whether increased transparency in the presentation of online search information, details of contractual entities and the implications for consumer protection and user reviews and ratings would affect consumers’ choices. The results show that increased online transparency increases the probability of product selection. A comparison across the four countries found that the similarities in responses to online transparency were far greater than the differences. The findings are discussed in relation to the biases and heuristics identified in behavioural science. In conclusion, recommendations are made to increase online transparency, which the empirical evidence of this study shows would benefit both users and platform operators.

Unfair Termination Review During Probationary Period

Probation is a trial period to test a new employee for a particular position. It is commonplace for many employers to stipulate that the contract begins with probation based on a mutual agreement with the employee. During the probationary period, more flexible standards are given to review unfair termination. Notwithstanding, a degree of protection insofar as it safeguards employees from the risk of unfair termination shall be granted. Article 37 in the Iraqi Labour Code No. 37 of 2015 permits the employer to test the employee for a maximum of three months if the latter has no professional certificate. The same article empowers the employer to terminate the contract if the employee has failed in the suitability test without setting any standards for such a test. In reviewing cases arising on the basis of unfair termination claims, the judiciary in some developed countries has come up with basic standards of the suitability test. This paper, therefore, attempts to examine Article 37 in the Iraqi Labour Code in light of the new judiciary trends and finally suggests redrafting the mentioned article to be more compatible with the rights of contractual parties.

Optimal Reinsurance Minimizing the Absolute Value of the Difference between the Profits of the Insurer and the Reinsurer

Many optimal reinsurance studies in the literature only take into consideration the insurer. However, there are two parties in reinsurance contracts. The aim of the study is to contribute to the optimal reinsurance literature by considering the interests of both the insurer and the reinsurer. A reasonable compromise between their interests is desired. Then, we examine the optimal retention problem that minimizes the absolute value of the difference between the insurer’s and the reinsurer’s profits under stop-loss and excess-of-loss reinsurance arrangements. With a non-negative random variable, we incorporate the stochastic essence of the aggregate loss for the reinsurer’s and insurer’s profits into the model. For reinsurance premium calculation we use two different premium principles and for aggregate loss we use exponential, Pareto and lognormal distributions. The results of the studies only deal with the benefits of the insurer and the studies consider both the benefits of the insurer and reinsurer are compared. Our findings can be helpful for insurance companies and reinsurer companies in their decision making task. For simulation studies in the model MATLAB programming language is used.

Ratification of Pre-Incorporation Contracts under the Nigerian Companies and Allied Matters Act (CAMA) 1990: A Balance of Business Efficacy and Interest Protection

Against the backdrop of the inadequacy of Common Law for the protection of the interests of promoters and contractual third parties in pre-incorporation contracts, this article argues that section 72 of the Nigerian Companies and Allied Matters Act (CAMA) 1990 provides a balance that will assure business efficacy and interest protection in the Nigerian corporate life and formation process.

Does the COVID-19 Outbreak Constitute a Force Majeure Event? A Pandemic Impact on Construction Contracts

The emergence of novel coronavirus disease 2019 (COVID-19) at the end of 2019 has transformed from an epidemic to a pandemic disaster. As of 12 April 2020, this outbreak has spread to more than 210 countries and territories and caused 108,837 deaths. The development of this outbreak has resulted in the closure of several major cities in the world (such as Wuhan, Daegu, and Manila) to country-wide lockdowns as observed in Italy and Malaysia. This also affects the construction sector as a labor-intensive industry. Force majeure has become one of the critical points of discussion, considering that this provision allows a contract party to hinder from fulfilling its obligations on the grounds that events are beyond a party’s control. Nevertheless, the application of this provision often faces challenges considering that in prior legal cases, the Courts tend to interpret this clause narrowly. Thus, it would be problematic when the force majeure clause does not include an epidemic outbreak as a force majeure event in the contract. This paper aims to explore the potential of the COVID-19 outbreak as a force majeure event in construction contracts. A qualitative approach consisting of two-step interdependent methods was done to highlight the fundamental elements of force majeure and to analyze whether the COVID-19 outbreak constitutes a force majeure event or not. Finally, a decision model was developed to assist the contracting parties in determining the COVID-19 outbreak potential as a force majeure event. This paper contributes since research related to the impacts of epidemic or pandemic outbreaks on the construction industry has not been intensified.

COVID-19: Possible Defences to a Non-Performing Party in a Commercial Contract

It is no longer news that the world is confronted with a common enemy today – the novel Coronavirus 2019 popularly known as COVID-19. The virus was first discovered in China and has today spread across over 190 countries around the globe. COVID-19 has disrupted the world economy and businesses across the globe are heavily hit by the operation of the pandemic. There is no gainsaying the fact that this novel coronavirus has surfaced in Nigeria with over 40 cases discovered so far as at the time of this article and still counting. The Nigerian Government, like other countries of the world have taken some measures to contain the spread of this virus in the most populous nation in Africa, which measures obviously is taking a hard toll on businesses, transactions and the economy at large. While the world continuously strives hard to put an end to this misery ravaging the whole world, it is almost certain that the post COVID-19 world would likely herald a bundle of commercial disputes possibly arising from breach of obligations as a result of the sudden outbreak of this disease. Thus, commercial lawyers would be called upon to review various commercial agreements and defaulting litigants would rely on commercial lawyers, to present a solid defence for them, to the breach of their obligations resulting from the COVID-19 disorder.

Issued Bills of Lading Based on Charter party Contract of Iran and International Legal System

Lawyers, who follow the Anglo-Saxon legal system, divide marine transportation contracts into two groups of bill of lading and charter party. Bill of lading is a document which attests to a marine transportation contract; and the delivery or loading of the goods by the carrier, in accordance to which the carrier pledges to deliver the item to the receiver, whose name has been mentioned in it, or to the holder of the document. Charter party is a contract, based on which the owner of a ship hands over the utilization of the ship (interests of a ship) to a lessee, for a specified period of time, or for one or several determined voyages between specified ports, for the purpose of transportation of cargo or passengers, in return for a clarified rent. This contract is divided into three types, including; journey-based, temporal-based and non-shared based contracts. Issuance of the bill of lading shows the presence of a transportation contract between a sender and a carrier. Meanwhile, it should be noted that the said document does not provide a solid and certain proof of fulfillment of all contractual conditions; because the corresponding conditions could have changed in accordance with the charter party contract; documents released by the owner of the ship; and/or the verbal commitment of the parties to the contract. Furthermore, the bill of lading is tantamount to the receipt of items which have been mentioned in it. However, it should not be considered as certain proof of delivery of the items. Thus, English legal texts refer to it as an apparent proof. Also, the bill of lading is synonymous to the goods’ title deed, and therefore, its holder can receive the items, as the owner; by rendering the document. The acceptance of such a role for the bill of lading is rooted in the global trade conditions. In other words, given the need for speed in commercial affairs, the holder of the bill of lading is considered as the owner of the items mentioned in it in a bid to expedite the unloading and delivery of the goods to the owner. Keywords: international law, charter party contract, bills of lading, shipping, global trade, marine transport. Resumo Os advogados, que seguem o sistema jurídico anglo-saxão, dividem os contratos de transporte marítimo em dois grupos de conhecimento de embarque e fretamento. Conhecimento de embarque é um documento que atesta um contrato de transporte marítimo e a entrega ou carregamento das mercadorias pelo transportador, de acordo com o qual o transportador se compromete a entregar o item ao destinatário, cujo nome tenha sido mencionado nele, ou ao titular do documento. A parte fretada é um contrato, com base no qual o proprietário de um navio entrega a utilização do navio (interesses de um navio) a um arrendatário, por um período de tempo especificado, ou para uma ou várias viagens determinadas entre portos especificados, pelo objetivo do transporte de carga ou passageiros, em troca de um aluguel esclarecido. Este contrato é dividido em três tipos, incluindo; contratos baseados em jornada, temporal e não compartilhados. A emissão do conhecimento de embarque mostra a presença de um contrato de transporte entre um remetente e uma transportadora. Entretanto, deve-se notar que o referido documento não fornece uma prova sólida e certa do cumprimento de todas as condições contratuais; porque as condições correspondentes poderiam ter sido alteradas de acordo com o contrato da parte fretada; documentos liberados pelo proprietário do navio; e / ou o compromisso verbal das partes no contrato. Além disso, o conhecimento de embarque é equivalente ao recebimento dos itens mencionados nele. No entanto, não deve ser considerado como prova de entrega dos itens. Assim, os textos legais em inglês se referem a ele como uma prova aparente. Além disso, o conhecimento de embarque é sinônimo da escritura da mercadoria e, portanto, seu detentor pode receber os itens como proprietário; renderizando o documento. A aceitação de tal papel para o conhecimento de embarque está enraizada nas condições comerciais globais. Em outras palavras, dada a necessidade de agilidade nos negócios comerciais, o detentor do conhecimento de embarque é considerado o proprietário dos itens mencionados, em uma tentativa de agilizar a descarga e a entrega das mercadorias ao proprietário. Palavras-chave: direito internacional, contrato de fretamento, conhecimentos de embarque, remessa, comércio global, transporte marítimo.