Private Contracts Research Articles

The global oil market with a price ceiling for one of the producers

Subject. The article considers the functioning of the oil market under a price ceiling set for one of the producers. Objectives. The aims are to develop tools to study the global oil market under sanctions restrictions, define the characteristics of sustainability of such a market when applying sanctions to one of the producers, analyze economic consequences of setting a price ceiling for the purchase of oil, explore the possibilities of achieving equilibrium states. Methods. The main research tool is mathematical modeling of the market. The research methodology rests on the study of changes in market characteristics caused by the introduction of non-market methods of its regulation. Results. I built a game-theoretic model suitable for studying the global oil market with sanctions restrictions, defined critical parameters of the market caused by the introduction of a price ceiling, determined the ways to stabilize the market with this ceiling. Furthermore, I examined the current state of the market and determined the consequences of changing the characteristics of sanctions restrictions. Conclusions. The model is suitable for studying the current state of the global oil market. The introduction of a price ceiling, in contrast to a complete embargo, allows the market to remain stable within certain limits. To stabilize the market, it is also possible to conclude private contracts at discounted prices. Current trends in the development of the global oil market require the inclusion of oil importing countries in the set of players in the developed model.

역사적 신제도주의를 통한 중소기업정책의 변화 - 경로의존과 단절적 균형을 중심으로

This study examined how small and medium-sized enterprise(SMEs) policies focused on protecting and fostering SMEs changed under the Kim Dae-jung, Roh Moo-hyun and Lee Myung-bak governments in the 2000s through historical new institutionalism. A path-dependent institutional change appeared in that both the quantitative growth of SMEs through the Kim Dae-jung government’s venture business development policy and their qualitative growth through the Roh Moo-hyun government’s innovative SMEs development policy were promoted for the purpose of creating jobs and securing new growth engines. The policy ideas of strengthening the competitiveness of SMEs, expanding competition, and transitioning to a technology- and knowledge-intensive industrial structure influenced the actors’ choice. Under the Lee Myung-bak administration, due to the external factor of the global financial crisis, there were not many restrictions on policy ideas for actors’ selection of institution, resulting in a punctuated equilibrium in which the social policy nature was greatly weakened and the political nature was strengthened. The abolition of the collective private contract system and designation of distinct business system appeared as a form of punctuated equilibrium between the ‘protection and development’ paradigm and the ‘autonomy and competition’ paradigm. It suggests that policies need to support industries that require protection in a selective and focused manner to ensure competitiveness of SMEs. It also suggests that effectiveness through institutional change should be improved by presenting a clear single policy stance on policy ideas to be considered when changing the institution.

The Migrant Personal Work Relation: A New Category of Employment

ABSTRACT The relationship between UK immigration law and labour law is increasingly intertwined and complex. Migrant workers are regularly incorporated into the labour market on an unequal and instrumental basis as economic commodities. A central aim of this paper is to expand our conceptual understanding of the legal nature and form of migrant employment. I contend that the regulatory integration of immigration law with labour law into a distinct, intermediate legal framework of 'migrant labour law' challenges and disrupts existing categories of employment classification and orthodox conceptions of modern employment. It does so by constructing ‘migrant personal work relations’ with a unique hybrid legal character of private contract and public immigration status, using migrants’ private capacities to regulate their relationship with the state and vice versa. Central to this endeavour is an idea of labour regulation that incorporates immigration norms of conditionality, deportability, deterrence and immobility into the construction of the migrant personal work relation. Five elements of the migrant personal work relation illustrate its hybrid character: formation, structure, content, variation, and termination. The interplay of public and private law doctrines exhibits immigration status distorting the employment contract and shows that migrant employment cannot be explained on a contractual basis. As a result, we start observing a juridical divide between migrant workers and citizen workers as separate legal subjects allocated to different regulatory regimes. It constitutes a whole new category of employment. Finally, the article examines the implications of its construction and legal character for its power dynamics. I argue that vulnerability to exploitation is a structural feature of the ‘migrant personal work relation’, such that it is a vulnerability-inducing legal institution. It exacerbates the pre-existing asymmetrical distribution of power and creates special vulnerabilities additional to those ordinarily present.

Between Chaos and Coherence – Attribution Tests in the Practice of International Investment Tribunals

Abstract This article analyses how investment tribunals apply attribution standards in their case practice. Attribution standards as applied by investment tribunals will be assessed in two different categories. First, the article will survey how tribunals apply traditional attribution tests, which originally refer to establishing internationally wrongful acts, as defined under Articles 4, 5 and 8 of ARSIWA. Second, the article will examine how attribution tests are applied and defined in so called non-traditional attribution scenarios, such as in the context of establishing the jurisdiction of arbitral tribunals, the applicability of the umbrella clause, certain declarations of the state (right of representation in the field of estoppel), as well as certain issues relevant to decide about the state’s involvement in private contracts in situations of corruption. The article ultimately presents a plea for nuanced application for attribution standards under different attribution scenarios instead of the automatic application of ARSIWA attribution standards.

An evaluation of third-party funding in commercial arbitration

Arbitration as a dispute resolution mechanism aims to advance access to justice in accordance with Goal 16 of the United Nations Substantiable Development Goals (SDGs). One key issue in arbitration law and practice is the role of third-party funders in fundraising for the arbitration or even litigation process. Third Party Funding (TPF) has grown as a practice of financial responsibility for litigation or arbitration by sponsors that are not parties to a dispute, but whose interest is return for their investment. Such an arrangement may cover major litigation or arbitration costs, as well as other miscellaneous costs. The practice contradicts well established legal principles such as privity of contract and/or complements party autonomy, but the enormous advantages it offers, such as faster access to justice and investment opportunities cannot be ignored. Whilst the concept has developed in advanced countries it is yet to take shape in developing nations like Nigeria. The methodology deployed is doctrinal with primary and secondary sources being the content of Statutes, Bills and Case law. Online sources were also relied upon for secondary sources. The study found that TPF will assist in higher fundraising for litigation and arbitration, that it applies mainly to claimants and will increase access to justice. It is recommended that funds be made available to Defendants too and that developing countries should embrace the practice.

THE ROLE OF ADMINISTRATIVE CONTRACTS IN THE FIELD OF PUBLIC ADMINISTRATION

Background: This scientific paper aims to delve deeply into the concept of administrative contracts and their importance in the field of public administration. Therefore, our goal is to provide a clear and detailed analysis and interpretation for readers, ensuring that all those interested have the opportunity to gain a foundational understanding of the importance and legal consequences of administrative contracts. By means of this paper, treating administrative contracts broadly regarding their development, meaning and importance in the theoretical aspect will positively influence and facilitate their application in practice by the public administration. These contracts, often similar to classical ones, with their content and purpose, are so differentiated that now it is no longer possible to speak of their belonging to one of the existing groups of contracts but of new, independent types of contracts. Methods: This paper employs analytical, normative, historical and comparative methods. The analytical method will be used to analyse administrative contracts in the Republic of Kosovo and their application by state bodies. The normative method will treat the legal provisions that regulate administrative contracts, starting with those within administrative law and extending to provisions in other legal domains. The historical method will illustrate the history of the development of administrative contracts, detailing their past and how they work today. Lastly, the comparative method will compare the development and operation of administrative contracts in the Republic of Kosovo with those in other democratic states mentioned in the paper. Results and conclusions: The administrative contract holds significant importance in public administration, as its primary objective is always to serve the general state interest. Despite being a bilateral legal act, an administrative contract typically involves a public or state administration body as the contracting party, which inherently holds greater power or authority in relation to the other legal entity involved. This power disparity means there is no equal footing between the contracting parties, contrary to the principle of equality observed in civil law and generally required for concluding private contracts.

Ultimate beneficial holders of offshore bonds are contingent creditors for winding up proceedings

There has been a recent flurry of decisions from offshore common law jurisdictions dealing with the issue of whether the ultimate beneficial holder in a New York law bond structure has standing as a “ contingent creditor” to present a winding up petition (or the local procedural equivalent) against the Issuer. First-instance courts in Bermuda, the Cayman Islands, and Hong Kong have held that the ultimate beneficial holder is not a contingent creditor for this purpose. The BVI Commercial Court has held that it is. The BVI decision had been appealed by the company, but this has now been withdrawn. In view of the lack of consideration of the issue at the appellate level, this article examines the reasoning of the decisions in detail. It concludes that the approach taken in the BVI is correct. The approach taken in the other jurisdictions is flawed, based on an erroneous conflation between privity of contract and creditor status and relies on unsound case law that has been rejected by more recent authority from the UK Supreme Court.

Balance Sheet Debt Covenants and Seasoned Equity Offerings

Synopsis The research problem This study examined the effect of having debt contracts that contain balance sheet covenants on the decision to make seasoned equity offerings (SEOs). Motivation Prior studies examined the determinants of equity issuance without considering private debt contracts that contain balance sheet covenants. Generally, firms are not restricted from stock issuance when they have financial debt covenants. This might motivate firms to make SEOs when they are more susceptible to balance sheet debt covenant violations. Making SEOs increases firms’ equity capitals in the short term and, therefore, has the direct effect of improving balance sheet covenants in the current period. This effect motivated this study to examine whether firms are more likely to conduct SEOs when their debt contracts include more-restrictive balance sheet covenants. The test hypothesis The hypothesis of the study is in the null form, which states that balance sheet covenant restrictiveness is unrelated to the probability of conducting SEOs. Target population The target population includes shareholders, debtholders, and firm managers. Adopted methodology Panel data estimation was used, specifically, the fixed effects model. Analyses The empirical analysis was conducted on a unique sample of UK listed firms with private debt covenants that is hand-collected from annual reports. Equity issuance in the sample is based on private placements, which are a common type of SEO in the UK. The restrictiveness of balance sheet-based covenants is defined as the number of balance sheet covenants in a loan contract or the tightness of net worth covenant slack. Findings The results show that balance sheet covenant restrictiveness is positively associated with the probability of conducting SEOs through private placements. The baseline result is robust to the application of a number of the controls often used in the literature, including cash shortage, the use of balance sheet covenants in the previous loan contract, earnings management, and the quality of external governance. It is also robust to excluding the financial crisis period and addressing potential endogeneity concerns using a propensity score-matching procedure. Additionally, further analysis provides some evidence that equity issuance by firms with more-restrictive balance sheet covenants is negatively associated with future operating performance, suggesting that these firms may not efficiently use the raised capital.

Abrogation “Privity of Contract” Due To One Sided Withdrawal of A Third Party As An Emergency Contact From Borgtocht Perspective

Abrogation “Privity of Contract” Due To One Sided Withdrawal of A Third Party As An Emergency Contact From Borgtocht Perspective

THE ACTIVITIES OF INSURANCE COMPANIES UNDER MARTIAL LAW AND THEIR ROLE IN THE POST-WAR RECOVERY OF UKRAINE

The article analyzes the current state of activity of insurance companies, which is formed under the influence of crisis trends of recent years: the Covid-19 pandemic and quarantine restrictions, a full-scale invasion of the russian federation and mass damage. The extent of the damage to the Ukraine’s economy and the needs for recovery have been analyzed, which will include special support and mobilization of the private sector, as well as necessary costs for the recovery of housing, social infrastructure, energy and transport. It is noted that the downward changes in the number of companies do not have a negative impact on the quality of services provided and the penetration of the insurance market, as these trends may indicate changes in the insurance market and its adaptation to new conditions, reflecting the impact of changes in the economy as a whole, the regulatory environment and demand for specific types of insurance products. It has been determined that in the future, the number of lawsuits under military policies from the ships damaged by sea mines, missile attacks and bombings in the conflict zone in the Black and Azov seas, as well as under private contracts, will increase in the activity of insurance companies. The structural changes in the insurance market and the factors that caused them are analyzed, as well as the trends of changes are given. It has been proven that in the conditions of martial law, the issue of war risk insurance possibilities is quite natural. The possibilities of introducing a fully functional military risk insurance system in Ukraine, which is provided for by the Memorandum on Economic and Financial Policy between Ukraine and the IMF, have been studied. This concept was developed with the participation of specialists from the World Bank, the National Bank of Ukraine of Ministry of Finance and the Ministry of Economy of Ukraine, which is positive for the progressive development of the insurance market of our country in the direction of adaptation to EU standards. A comprehensive analysis of the insurance products of the leading Ukrainian insurers, which provide protection against war risks, was carried out. Prospects for the introduction of new insurance products that will meet the needs of society have been determined. The most promising is the implementation of the effective measures for the proper insurance of investments against war risks, which can contribute to the attraction of funds for the reconstruction of the country, the relocation of enterprises, the organization of high-tech production and services, the creation of new jobs, the adoption and application of innovative experience, an increase in the level of income and an increase in income to state.

LEVELS OF PROVISION OF AGROECOSYSTEM SERVICES

Rural areas are characterised by high biological diversity. Farmers are both direct users of ecosystem services, but on the other hand management of agricultural land affects not only the economic outcome but also has an impact on the condition of agroecosystems. Farm activities and agroecosystems are interlinked. The more conserved and protected the ecosystem functions are, the higher the positive feedback on the farm and the surrounding ecosystems is. The provision of ecosystem services can take different forms – through private contracts, collective contracts, government payments, etc. In Bulgaria at the moment, the most common form of provision is through public payments or through ecological certification of organic products. However, private arrangements can also enhance this provision and secure a win-win scenario for both provider and buyer of ecosystem services. This study shows several case-studies on private arrangements with comparative analysis on several contract features. These examples show different levels of provision of ecosystem services. In some cases, both the efforts and the actual benefit are at the same level, for example an agricultural plot (pollination contracts). In other cases, an actual effort in the form of agri-environmental measure can take place in a certain farm holding, but the actual benefit can be seen somewhere else, for example downstream of a watershed catchment. And in some instances, the actual effort is used to compensate for someone else’s pollution activities (see carbon credit markets). Very often, a farm is a user of ecosystem services, both within and outside its physical boundaries. On the other hand, some ecosystem services require collective action to be effective and meaningful (most often this is the example of biodiversity conservation). There is still a controversy over what is the best form for providing ecosystem services from agriculture – through private contracting or through the traditionally used public provision. The answer is likely to be found in the nature of the ecosystem services themselves. If for an ecosystem service such as crop pollination it is easy to establish a buyer and seller of the service, there are clear benefits for both parties, and the price can be easily determined. For others such as biodiversity, all this is very difficult to be achieved. For this purpose, it is necessary to assess the most important features characterising a contract. The form of the contract is tightly connected with whether the environmental effort of the farmer is measurable or not. For some ecosystem services, like pollination the environmental result is easily monitored and measured. Where in other instances, like the watershed groundwater quality, monitoring is difficult or impossible. Therefore, different ecosystem services pose the need for different contract arrangements. Keywords: agroecosystem services, private contracts JEL code: Q15, Q57

Who Rewards Farmers Better for Commercialisation? Public versus Private Contracting Firms in North India

This article explores the socioeconomic factors of wheat growers’ participation intensity in contract farming (CF) under both public and private firms in Haryana. Using the primary survey data of 754 wheat growers collected from two districts of Haryana, the study finds that CF participation intensity is higher under government corporations than in private firms. The Tobit regression results show that similar variables determine the participation intensity under both types of firms. But the perception of agricultural profitability has different significant signs for public and private firms. This difference in profitability perception spawns from the different contracting nature of both types of firms. The government firms directly contact farmers, while private firms hire agents to communicate with farmers. In addition, government firms encourage marginal and small farmers to adopt CF, while private firms prefer medium to large farmers owning a minimum of five acres of cultivable land. Payment security is another reason for the intensity difference between types of firms. Therefore, the study calls for a policy framework to establish better institutional structure to strengthen CF inclusiveness, where both types of firms provide the scope for more extensive participation across the groups of farmers. JEL Codes: Q12, Q13, C01

Regulatory innovation and (de)legitimisation: accountability challenges in the healthcare field

ABSTRACT Accounting research examines accountability in the healthcare field but little attention is paid to how contemporary regulatory innovations (e.g. AI-driven data algorithms) impact accountability objectives. We address this concern through a study of how regulatory innovations may appropriate accountability by (de)legitimising healthcare actions. This is examined in the case of a regulatory innovation enacted in the US healthcare sector. Specifically, we employ a field study of a healthcare provider subject to oversight to highlight how actors (de)legitimise the provision of healthcare services. Our findings show that regulatory innovation generates debates around illegitimate services as determined by healthcare oversight contractors. These contractors are incentivised to appropriate AI-driven data algorithms towards a focus on reducing costs of non-standard healthcare services while healthcare providers legitimate those services as quality healthcare. Additionally, findings suggest that more extensive implementation of AI-driven data algorithms in the healthcare field may serve to limit healthcare options, particularly when combined with private contracting. This study contributes to the literature by showing the (de)legitimising consequences that regulatory innovations combining the use of algorithmic decision-making and private incentive contracts have for accountability and delivery of services in the healthcare field.

Cream-Skimming through PPAs – Interactions between Private and Public Long-term Contracts for Renewable Energy

Cream-Skimming through PPAs – Interactions between Private and Public Long-term Contracts for Renewable Energy

The institutional environment and gig platform transaction cost solutions

Abstract A growing number of labour market participants transact through gig platforms. This choice should reflect a reduction in transaction costs for platform users, compared to costs they meet when using alternative modes of governance. We exploit a unique cross-platform, cross-country data set of gig platform users to test the impact of the institutional environment in one of its dimensions – the strictness of labour market regulation (LMR) – on the ability of gig platforms to reduce users' transaction costs. According to our findings, the regulation indicator of both the user and platform countries influences transaction costs for platform users, even controlling for platform and user characteristics. The platform appears to reduce transaction costs most when users face stricter or weaker LMR, in a U-shaped effect. In the former case, the platform may provide an escape from labour regulations when hiring for tasks, while in the latter case, the platform can economize on the usual transaction costs of private contracting by administrating some types of users' activities.

БИРЖЕВАЯ ТОРГОВЛЯ И ЗАКЛЮЧЕНИЕ ЧАСТНЫХ КОНТРАКТОВ НА ГЛОБАЛЬНОМ НЕФТЯНОМ РЫНКЕ

The most important element of the global economic system research is the study of the trends in the development of the global oil market. The aim of the work is to build a mathematical model suitable for researching this market in modern conditions. A theoretical game model has been developed, which provides for the possibility of describing oil trade, both through commodity exchanges and under separate agreements between producers and consumers. The parameters of stable states of this market have been determined, both in conditions of non-cooperative behavior of participants, and in the devel-opment of joint strategies for their behavior. With the help of the proposed model, the possibilities of concluding coalition agreements were investigated, both between producers regulating oil supplies on the exchange, and between producers and consumers of oil, concluding private contracts for the purchase of oil bypassing the exchange. The effectiveness of such agreements in the global oil market was assessed. It was concluded that it is possible to use the model to describe the oil market in the presence of sanctions restrictions.

LEGAL REASONING OF THE JUDGE'S DECISION REGARDING GOVERNMENT PROCUREMENT CONTRACT GUARANTEE CLAIM

The decision is a written legal text made by an authorized judge, and its legal product is categorized as a crown. However, despite being considered a crown, a judge's decision is not exempt from examination by legal scholars. The optics used in the examination process are based on various perspectives, including hermeneutics as the fundamental basis for interpreting the text (decision). Substantively, hermeneutics has three main streams of thought, namely as a theoretical (methodological), philosophical, and critical hermeneutics, each with different understandings. Hermeneutics as a method focuses more on the effort to capture and reveal the meaning of the text, while philosophical hermeneutics goes beyond that and emphasizes "capturing meaningful meaning," implying that the meaning of the text can be continuously produced through a dialectical process. On the other hand, critical hermeneutics focuses on the aspect of disclosing the meaning of the author's ideological interests. This research aims to examine the legal reasoning in Decision No. 272 / PDT.G / 2017 / PN.BDG regarding the Government Procurement Contract Guarantee Claim from the perspective of Hans Georg Gadamer's Hermeneutic Circle. The research type is normative doctrinal, using secondary data sources consisting of primary, secondary, and tertiary legal materials with a conceptual approach, statutory approach, and case study. The research findings suggest that the process of claiming a bank guarantee through the judicial institution can be carried out by the Procurement Committee (PPK) as long as they obtain authorization from the Budget User, who is the owner of the work (bouwheer). This is due to the hybrid nature of government procurement contracts, which distinguishes them from private contracts, and the clarity of the scope of authority of the Budget User serves as the establishment of formal justice, acting as a bridge (epistemology) toward substantive justice.

Digitized Terms: The Regulation of Standard Contract Terms in the Digital Age

Abstract Digital transformation is also transforming standard contract terms. With the emergence of online platforms, supported by algorithmic data analysis and self-enforcing technologies, platform terms are becoming increasingly common. The article argues that this type of terms differs from traditional standard terms in a number of ways, and it considers whether the existing unfair contract terms regime is still appropriate. The regulatory tools once developed for standard terms in bilateral agreements – transparency requirements, fairness review, and restrictions on contracting around – seem inadequate to meet the new challenges of digital transformation. In order to preserve – or rather recreate – the architecture of choice for private contracts, the paper argues for a new regulatory strategy: In order to strike the right balance between protecting private autonomy and avoiding significant imbalances, the regulatory objective should be to ensure the impartiality of platforms by focusing on the structural conditions of their rule-making.

The metropolitan and neighborhood geographies of REIT- and private equity–owned single-family rentals

ABSTRACT After the U.S. foreclosure crisis, institutional investors purchased thousands of homes and converted them into rental properties. Past research links these entities to a number of negative outcomes, including rent increases and eviction filings. This paper examines a larger variety of investors, including private equity firms and contract sellers. Using a national dataset of real estate transactions from 2010 to mid-2017, we examine the inter- and intra-metropolitan geography of institutional investors. Consistent with prior research, we find that large publicly traded entities purchased homes in growing Sunbelt metros, yet some specific firms target weaker-market metros. Large, publicly traded firms have concentrated investment in higher-value neighborhoods with larger shares of white residents. In contrast, private equity firms and contract sellers tend to invest in relatively lower-value neighborhoods with larger shares of Black residents. Results suggest different potential implications for these diverse actors’ investments, from crowding out prospective homebuyers to racial targeting.

Sugarcane Plantations and the Alienation of Land from Smallholder Farmers through Out-grower Schemes in Busoga Sub-Region in Eastern Uganda

Despite wide research on land grabbing in Africa, much of the existing literature restricts the practice mainly to a situation where land is leased or sold to outside investors for the production of food and biofuel for export to the western world. This paper extends the debate further by examining how local sugarcane companies and individuals in Busoga Region in Eastern Uganda force smallholder farmers to surrender their land willingly through the out-grower schemes based on contract farming or private sugarcane production. Using a qualitative methodology that relied mainly on interviews of key informants and documentary reviews, the paper analyses the nature of the contemporary land alienations through contract farming between plantation agriculturalists and smallholder farmers, and how it has affected the livelihood of the peasants in the Busoga region especially when it comes to the production of sugarcane for sale at the expense of food for local consumption. The findings show that in the areas where sugarcane production through the out-grower schemes is the dominant economic activity, land alienation for sugarcane growing is rampant as the sugar companies and the agro-business farmers lure local peasants who mainly own land on customary tenure to grow sugarcane at the expense of producing food crops. The paper concludes that this is a new form of land grabbing in Uganda.