Private Contracts Research Articles

State-business relations and access to external financing: evidence from Russia

Contractual relations of firms with a state may give lenders a positive signal and facilitate access to debt. This paper studies the impact of public procurement contract on firms access to debt using an extensive survey of Russian manufacturing firms combined with accounting and procurement data. It shows that earnings from state-to-business contracts increase the short-term debt twice larger than revenue from private contracts. The long-term debt is not affected by public contracts differently compared to private contracts. The debt sensitivity to public contracts is four times larger for politically connected firms, though it is still positive and significant for non-connected firms. The paper concludes that political connection does not entirely suppress the beneficial access to debt the public contracts create.

From Colonial to Multilateral International Law: A Global Capitalism and Law Investigation

This Forward integrates international law, international relations, and global history scholarship to understand two global trends that are in tension with each other: 1) the shift from European colonial dominance to a law-based multilateralism, which enabled a more equal and inclusive international law and 2) global capitalism which across time has been a political and economic force that, left to its own devices, promotes exclusion and inequality. Alter builds an encompassing conception of global economic law to show the interplay of colonial law, private law, domestic law and international law in enabling and constraining global capitalism across time. The investigation looks backwards so as to think forward. The larger goal of the endeavor is to imagine how an Asian law-based capitalism might continue past trends and recreate continuities despite a professed desire to be different. Just as capitalism once locked in colonial features despite the shift to multilateral international law, multilateralism and capitalism may be forces that sustain the very features of the Western Liberal International Order that China seeks to move beyond. Theoretically, the article argues that we need to conceive of global economic law as an international regime complex that in the colonial era included colonial law and private contracts, and in the multilateral era includes private contracting and extraterritorial domestic law. The various elemental units in the complex provide states and firms with options, and these options create an incentive to block or circumvent multilateral solutions. Blocking leads to multilateral non-decisions, which then unleash power-based bilateralism, coalition of the willing preferential international law, and private and market forces that step into the void. The non decisions are thus as consequential as the decisions— yet non decisions tend to fall into the blind spots if IL/IR debates. The options alongside the legal and market developments they unleash then constrain states from encasing markets so as to protect domestic, social, and political priorities. The Forward will be published in 2021, with responses appearing in 2022.

Addressing National Workforce Shortages by Funding Child Psychiatry Access Programs.

* Abbreviations: CPAP — : Child Psychiatry Access Program PediPRN — : Pediatric Psychiatry Resource Network For decades, the medical community has been dealing with a shortage of child psychiatrists in the United States. A study published in Pediatrics in November 2019 demonstrated that although the number of child psychiatrists increased in the last 10 years, there are still not enough to meet demand, and counties in the United States with lower levels of income and education particularly struggle to meet demand.1 Thirty-six states have fewer than 10 child psychiatrists per 100 000 children, with only 3.3 child psychiatrists per 100 000 in the most extreme case.1 This imbalance translates into wait times of over 11 months for an appointment with a child psychiatrist in some areas.2 Furthermore, up to 20% of children in the United States have a mental health disorder, with suicide the second most common cause of death among 12 to 17 year olds.3 A commentary by David Axelson, MD,4 published alongside the Pediatrics study, called for innovation in the delivery of mental health services to children to leverage the existing workforce to make the greatest possible impact. Over the years, many proposed solutions have addressed the workforce shortage, including developing accelerated training pathways for child psychiatrists, recruiting nurse practitioners to the field, and expanding federal loan forgiveness programs, but the shortage has persisted despite these efforts. One … Address correspondence to Kathryn Sullivan, BA, Warren Alpert Medical School of Brown University, Box G-9040, Providence, RI 02912. E-mail: kathryn_sullivan{at}brown.edu

National Wealth and Private Poverty through Civil Law? A review of the book "The Code of Capital" by Katharina Pistor

The central thesis of Katharina Pistor's book is that private law, in conjunction with its increasingly global outreach, serves the interests of the rich and enables “rule by law” (p. 205) rather than a “rule of the law”. The rules of contract law, corporate law, insolvency law, property law and private international law are of particular importance in this regard. According to the author, these areas of the law shape or encode the domination of resources and capital in ways that increase wealth and inequality. The book seeks to understand, from a jurisprudential perspective, disruptive economic developments such as the Lehman crisis, rising inequality and the lagging of wages behind general economic development in the US and Western industrialised economies, and it makes proposals for legal policy. The English version, published in 2019, has been widely discussed and largely positively reviewed. This essay presents a decidedly critical perspective. It does not doubt important lines of thought in the book but questions central statements and hypotheses made in it.

Russian aircrews in Africa (eyewitness narrative accounts)

The last decade of the 20th century saw another boom in the supply of Soviet-made civil aircraft to the countries of Africa. Hundreds of highly qualified aviation specialists from all post-Soviet states were involved in its operation and maintenance. Market relations, new for many of them, the aggressive way of doing business on the part of entrepreneurs, as well as the complicated military and political situation in some regions, have led to the formation of a certain type of business and personal relationships. Lessons learned over the thirty years of work in special economic and socio-cultural conditions are still actual. Nevertheless, this aspect of Russia-Africa relations remains one of the least studied. Analysis of the narratives of the eyewitnesses - pilots, flight engineers, translators - is still the only way to know more about some hallmarks of the African aviation market, which still has a significant shadow segment. For this study the narratives of a Russian flight engineer who has worked as a flight crew member in various African countries for more than ten years were collected. The recollections presented relate to the first organized trip to South Africa and Mozambique in 1992, and to the later period of private contract work in Angola and Rwanda, and are interesting because they trace the formation of psychological and ethnocultural aspects of business and personal contacts with the employers, local residents and co-workers.

Will markets provide humane jobs? A hypothesis

Many features of today's jobs have not been produced by market forces emerging in individual private contracts. Instead, they resulted from social struggles and union bargaining, and they appear in collective agreements, labor regulations, and international laws. This paper presents one hypothesis explaining this observation: A negative correlation between workers' taste for amenities and unobserved productivity. I show that such correlation implies a sub-optimal provision of amenities by the market since providing such amenities leads to lower quality workers. Mandating amenities is optimal when the correlation is strong, or the dispersion of worker productivity is large.

Judicial review on the restriction of participation in tendering procedures based on contract – Focusing on the poetic search for the application of administrative law to civil sanctions of public institutions –

In addition to administrative dispositions in public contracts, restrictions on participation based on contracts are used as civil law measures. In this regard, the Supreme Court recognizes the category of civil sanctions in public contracts by seeing that civil law is applied, not administrative law, and is subject to civil lawsuits, not administrative lawsuits. Whether the administrative law can be applied to these civil sanctions is a question of whether public contracts are subject to the principles of private autonomy and contract freedom. Public institutions are not subjects of enjoyment of the principle of private autonomy and contract freedom. In addition, the public contract law is not a simple internal regulation, but rather a regulation that restricts the representative authority of the contract official. The discretion control under the administrative law may apply to the restriction of the representative authority of the contract official. Of course, it is also possible to approach civil sanctions from a civil law perspective. However, from the standpoint of administrative law, civil sanctions are assessed whether special agreements on transaction restrictions, which are the basis for civil sanctions, are permitted from the non-delegation doctrine and the principle of proportionality. On the other hand, in an administrative lawsuit, the court can only revoke or confirm invalidity of the restriction on participation in tendering procedures, but from the perspective of public contract law, similar to the reduction of penalty, it is possible to seek whether the court can directly admit the reduction of the restriction period. From this point of view, judicial standard for civil sanctions need to be established through competition and cooperation between administrative law and civil law. Furthermore, the method of litigation regarding the restriction of the restriction of participation in tendering procedures needs to escape from the current dualization of the administrative and civil suits. Civil sanctions should be viewed as ‘administrative dispositions in the aspect of litigation law’. Through this, confusion over the remedy procedure can be minimized and consistent standards for administrative and civil sanctions can be established.

Ole Lando Memorial Lecture: Contract Law and Human Dignity. Second Ole Lando Memorial Lecture, Vienna 2020

The second Ole Lando Memorial Lecture is about the influence of theconstitutional protection of human dignity on private contract law. The paper argues that where violations of human dignity occur, it is no longer possible to distinguish between the vertical and horizontal effects of fundamental and human rights. The article demonstrates this using the example of contracts that violate dignity, in particular within the law on assisted dying. Human dignity, Contracts violating human dignity, Assisted dying Motsclés: Dignité humaine, Contrats portant atteinte à la dignité, Mort assistée Schlüsselwörter: Menschenwürde, Würdeverletzende Verträge, Sterbehilfe

Breaching the Interpretative Wall between Private and Public Commercial Contracts

Abstract From a purely contractual perspective, this article reflects upon labour standard clauses with the objective to ensure that the fundamental ILO conventions and the International Bill of Human Rights are complied with throughout global value chains in respectively business-to-business (private), and public commercial contracts. The clauses are in both settings based widely on the same standards; however scholarship on the two types of contracts has been quite separate. The article reviews some Scandinavian case law concerning labour standard clauses and procurement regulation. It finds that contractual argumentation supported the outcome in these cases, isolates this argumentation, and reflects on whether contractual perspectives on the public contract might inspire current research on private contracts. It finally argues that an actual fusion is already taking place, wherefore contract lawyers may play an important role as to whether ‘the interpretative wall’ should be breached, or whether this is not feasible due to the distinctive characteristics of each contract.

Institutional Innovations and Their Challenges in the Green Climate Fund: Country Ownership, Civil Society Participation and Private Sector Engagement

This article investigates the institutional innovations within the Green Climate Fund (GCF), a new international organization that finances climate mitigation and adaptation in developing countries. In particular, donor–recipient parity in decision making, civil society participation and private sector involvement are explored. The aim of this study is to lay the institutional groundwork for a larger study that will be analyzing the effect of these institutional innovations on the design and result of the fund’s projects. An exploratory qualitative case study approach is used that includes the review of the secondary literature, official sources from the GCF, participant observation and semi-structured interviews. This article concludes that the GCF indeed implemented important institutional innovations that are unique for a major international organization. At the same time, this article reveals that these innovations have created some important challenges for the functioning of the fund. For example, donor–recipient parity, in combination with consensus orientation, initially led to gridlock. It is also difficult for the GCF to balance the goal of transparency and civil society participation with the need for secrecy of private contracts and a speedy process demanded by the private sector.

Subcontracting in Construction and Privity of Contract: Defining the Nexus

AbstractThis article will examine the suitability of the Jordanian legal system in providing sufficient protection in the field of subcontracting in construction contracts. The author argues that t...

Costs of at-sea monitoring under government and private contracts in the groundfish fishery of the northeastern United States

Costs of at-sea monitoring under government and private contracts in the groundfish fishery of the northeastern United States

The Notion of Administrative Contracts in Civil Law System vs Common Law System

Any country undertakes several actions to fulfill the public needs of it’s people or to achieve economical and financial targets. One of the most famous actions are CONTRACTS, the state is usually engaged in several contractual relationships to achieve the aforementioned targets. In both Civil law and Common law systems, the public authorities conclude two types of contracts, the public law contracts and private law contracts. The issue here is what are the criteria in distinguishing the public contracts from private contracts in both Civil and Common legal systems? What are the powers of the public authorities in the Administrative Contracts in both legal systems? To what extent the public law contracts can be considered as bridge between the two systems? These what we will explore together in the following pages. I chose Egypt and France as case study of the Civil law system and USA and UK as case study of the Common law system.

Nonessential Businesses and Liability Waivers in the Time of COVID-19

States are gradually reopening after months of lockdown. However, the risk of exposure to the deadly COVID-19 virus still remains. While states would like to have the economy up and running, the price that small businesses may be forced to pay following possible coronavirus personal injury lawsuits may drive them out of business. Nonessential businesses, such as dine-in restaurants, will turn to waivers of liability to insulate themselves from COVID-19 related liability: an area known as assumption of risk. This essay argues that in this climate of crisis, and due to the invisible nature of the virus, waivers are an inadequate tool to immunize small nonessential businesses from unwarranted tort liability. Instead of private contracts, limited legislation should address the competing legitimate concerns of both businesses and their customers by laying out mandatory minimum safety guidelines to ensure safety compliance, while insulating businesses who comply with the measures from COVID-19-related ordinary negligence lawsuits. Such legislative intervention, however, should not address the employer-employee relationship.

Contracting v. Multilateral-Ism in Global Economic Governance: Before, During and After the WTO

This chapter, for a book focused on the future of the World Trade Organization, discusses three ways that global economic law and corresponding transnational dispute settlement systems have been constructed across time: via private contracting, inter-state contracting, or through principled multilateral-ism. Offering a global capitalism and law perspective, the chapter compares the ideal type of each model to the historical practice, identifying what multilateral-ism provides that contracting does not. The larger argument is that all three modes of law-making should and will co-exist. We should therefore be thinking about which mode of law-making is best for a particular issue or context, and how we might use the other modes to address problems that arise in each approach. The chapter then considers how contracting can supplant the WTO, and the trade-offs associated with such an outcome.

The Principally of the Obligations of Legal Consultant’s as a Capital Market Supporting Profession in the Preparation of Independent Legal Due Diligence

The obligation of a legal consultant as a capital market supporting profession regulated in article 67 of Law Number 8 of 1995 on the Capital Market is “to provide an independent opinion or assessment”. When alignment with the Advocate Law, the formulation of the article contradicts the pricinple of an advocate in providing legal services as stipulated in Article 1 point 2 in Law Number 18 of 2003 on Advocates, that “an advocate takes legal action for the client’s legal interest”. Thus, this contradiction serves as the background of the following problem formulations proposed: (1) The principally of the obligations of legal consultant’s as a capital market supporting profession in the preparation of independent legal due diligence; (2) Legal due diligence as an independent opinion of a legal consultant to provide legal protection for investors. The two problem formulations were analyzed using normative legal research method, a research method to identify legal concepts and principles related to legal regulation in the capital market. After conducting a juridical, theoretical, and philosophical analysis, the findings obtained were: (1) The principally of the obligations of legal consultant’s as a capital market supporting profession in the preparation of independent legal due diligence is manifested through an independent attitude, meaning that it is not controlled, not affiliated, no conflict of interest, and no partial element with service users. (2) Since the legal relationship between the legal consultant and service users is bound by an agreement, the parties have built their respective internal legal protections. Although this legal relationship can be categorized as an internal legal protection effort based on the privity of contract, it must also pay attention to the legislation, customs, and propriety that develop (heteronomous elements). Keywords: Legal Due Diligence, Independent, Internal Legal Protection DOI: 10.7176/JLPG/101-02 Publication date: September 30 th 2020

Private Ordering and the Role of Shareholder Agreements

Corporate law has embraced private ordering -- tailoring a firm’s corporate governance to meet its individual needs. Firms are increasingly adopting firm-specific governance through dual-class voting structures, forum selection provisions and tailored limitations on the duty of loyalty. Courts have accepted these provisions as consistent with the contractual theory of the firm, and statutes, in many cases, explicitly endorse their use. Commentators too support private ordering for its capacity to facilitate innovation and enhance efficiency. Private ordering typically occurs through firm-specific charter and bylaw provisions. VC-funded startups, however, frequently use an alternative tool – shareholder agreements. These agreements, which have largely escaped both judicial and academic scrutiny, highlight the extent to which rights and responsibilities in the corporation should be the subject of private contract. This Article offers the first broad-based analysis of shareholder agreements, detailing the scope of issues to which they are addressed and identifying the challenges that they pose for corporate governance. Focusing on the use of shareholder agreements by VC-funded startups, the Article recognizes the broad role played by shareholder agreements in structuring and coordinating investors’ economic rights, but it argues that using shareholder agreements for corporate governance, what this Article terms “stealth governance,” sacrifices critical corporate law values. These concerns are particularly problematic for the growing number of unicorns that have substantial economic impact but whose governance structures are shielded from the transparency and price discipline of the public capital markets. This Article argues that stealth governance is inappropriate for corporations and instead advocates a uniform structural approach to corporate law that would limit private ordering to the charter and bylaws. It further critiques the use of shareholder agreements to evade statutory limits on charter and bylaw provisions, arguing that, to the extent existing limits are undesirable, they should be the subject of legislative reform. A prior draft of this Article was posted with the working title of “Private Ordering and the Role of Shareholder Agreements.”

A New Chinese Economic Order?

ABSTRACT China is incrementally developing a new, decentralized model of trade governance through a web of finance, trade, and investment initiatives involving memorandum of understanding, contracts, and trade and investment treaties, supported by an indigenous innovation policy that is transnational in its reach. In this way, China could create a vast, Sino-centric, legal order in which the Chinese state plays the nodal role. It is a hub and spokes model, with China at the hub. In this article, we first examine China’s export of an infrastructure-based development model, implemented through Chinese state-owned and private enterprise investments and commercial contracts (Part B), before turning to China’s development of a complementary web of free trade and investment agreements (Part C), and an indigenous innovation policy (Part D). The paper theorizes and empirically traces how these Chinese initiatives shape the evolving ecology of the transnational legal order for trade.

Economic implication of contract farming on small-scale rice farmers in Kwara State, Nigeria

This study examines the implication of contract farming on Olam Out-growers farming scheme in Kwara State, Nigeria. The objectives of the study are to determine the costs and returns to production of rice, assess the productivity level of rice, evaluate the technical efficiency of rice farm and identify the determinants of the technical inefficiency of the rice farms in contract farming. In this study, the average net farm income of the rice farmers under the scheme was N191,862.56 and the land productivity level was 2,006.04kg/ha. The technical efficiency of the rice farm was estimated using Cobb-Douglas Stochastic Frontier Production function which shows that likelihood coefficients for quality of seeds, hired labour and farm size were statistically significant at 1% level. Likewise, the determinants of technical efficiency among the farmers were household size and farming experience. The results further show that the contract farming scheme has a positive impact on the lives of rice farmers. Therefore, there is a need for partnership with private contract farming outfits in order to improve the current level of access to inputs by rice farmers.
 Keywords: Contract farming, Out-growers rice farmers, Technical efficiency, Farm income

Coding in the World of COVID-19: Non-Face-to-Face Evaluation and Management Care.

Almost all medical care in the United States is delivered with the provider and patient in immediate proximity; this model is referred to as face-to-face care. Medical services can be apportioned as procedural care (eg, surgery, radiology, or laboratory testing and others) or cognitive care, also known as Evaluation and Management (E/M) services, in which the provider formulates an assessment and plan after obtaining information from the patient's history, examination, and diagnostic tests.Providing a medical opinion and plan using the telephone as the technology that links the provider and the patient is an example of a non-face-to-face E/M service. Common Procedural Terminology (CPT) codes and the details for how to provide telephone services have been available for decades but have not been reimbursed and therefore were rarely used. In recent years, as new technologies have evolved, there has been slow and steady acceptance that non-face-to-face E/M care can be an adjunct to or replacement for some face-to-face E/M services. These technologies and the descriptors for associated CPT and Healthcare Common Procedure Coding System (HCPCS) codes were introduced over the past few years and have become known by the generic term telehealth. They have been slowly incorporated into medical practice. Most of these services were introduced in the consumer retail market, in which the cost was borne directly by the patient, or as private contract services, in which the cost was borne by the consulting hospital, such as with telestroke services. In both the consumer retail model and private contract model, the care delivered usually did not involve CPT or HCPCS coding. The adoption of telehealth has been slow, in part because of the initial costs and several regulatory constraints, as well as the reluctance of patients, providers, and the insurance industry to change the concept that medical care could only be delivered when the patient and their provider were in physical proximity.After the COVID-19 pandemic reached the United States, the US Department of Health & Human Services issued a public health emergency and declared a Section 1135 Waiver that lifted many of the administrative constraints. With the need for near-absolute social distancing, this perfect storm has resulted in the immediate adoption of telemedicine, at least for the duration of the pandemic, for cognitive care to be delivered using communication technologies that are already in place. This article discusses the most common forms of non-face-to-face E/M care and the proper coding elements necessary to provide these services.