Unilateral Modification Research Articles

Crypto Insolvencies and the Limits of a Contract and Contract Law

This article examines contracts between crypto-asset service providers (CASPs) and their customers. The recent collapses of major crypto-platforms, like Celsius and FTX, highlight both the importance and limitations of such contracts. In this article, I examine the role of digital contracts or ‘crypto-contracts’ in the resolution of conflicts in crypto insolvencies, and question whether (exclusive) reliance on these contracts is optimal from the perspective of foreseeability, fairness and protection of customer rights. I demonstrate that contracts with crypto-platforms tend to be long, complex, ambiguous and subject to frequent unilateral modifications. They often create uncertainty about the rights of customers in deposited crypto-assets (personal v. proprietary). This is their first limitation. The second limitation relates to potential interference of property law. Even if a contract grants certain proprietary rights to customers, property law may attach additional requirements for their creation and protection, such as asset segregation, and lead to the loss or transfer of ownership in a situation of commingling. Finally, the third limitation comes from the fact that the promises of contract and property law may be of little help where a CASP breaches the contract and reuses (disposes of) customer assets without consent. Together, these limitations constitute compelling policy justifications for interference with contractual relations. Insolvency of cryptoplatforms brings to light complex legal problems, which require a balanced and multi-dimensional approach. This approach should complement contractual arrangements with relevant rules from different areas of law, including consumer, property and administrative (regulatory) law.

Examining contract modifications in purchasing personal protective equipment: A bargaining approach

This paper presents a bargaining model of contract outcomes as a function of contract uncertainties associated with critical supply purchasing after a crisis. It examines contract modifications and termination. The model yields the following results: (1) contract modification by the government alone (unilateral modification) does not change the optimal contract; (2) contract modification by mutual agreement (bilateral modification) makes the optimal contract dependent on product price, acquisition costs, transaction costs, and uncertainty; (3) mutual contract modifications are affected negatively by government costs of contract modification and are affected positively by supplier's costs of contract modification; (4) the government may find it necessary to terminate a contract if the contract elasticity of government utility is zero, and the contractor may want to terminate the contract when its supply price equals the acquisition price.

Comparing the laws of England, Wales and Italy Relating to the Unilateral Modification for the Terms of Operational Contract during the COVID-19 Pandemic.

The study compares the mechanisms through which employers in England, Wales and Italy may be legally entitled to unilaterally vary the terms of their employment contracts due to the coronavirus pandemic and developing a taxonomy, through which a meaningful side-by-side comparison of these very different jurisdictions can be constructed. To attain the core purpose of this research, the study relied on the comparative legal research method. Despite the fundamental differences between the employment law regimes of the three countries; the mechanisms through which employers from these jurisdictions can vary the terms of their employment relationships in response to COVID-19 fall into one of these categories, force majeure mechanisms; flexibility mechanisms; hardship mechanisms or mechanisms facilitating bilateral variations tantamount to unilateral variations. The study concluded that there are fundamental differences between the employment law regimes that operate respectively in England and Wales and in Italy. England and Wales is a common law jurisdiction, whereas Italy is a civil law jurisdiction; Italy’s labour market is significantly more tightly regulated than England’s; in England and Wales, the employment contract regulates the employment relationship, whereas in Italy the individual employment.

Efficient and Stable Perovskite Solar Cells Using Bathocuproine Bilateral-Modified Perovskite Layers.

Surface modification engineering is an effective method to improve the crystallinity and passivate the perovskite interface and grain boundary, which can improve the power conversion efficiency (PCE) and stability of perovskite solar cells (PSCs). The typical interface modification method is usually introduced at the interface of the perovskite/hole transport layer (HTL) or perovskite/electron transport layer (ETL) through coordination of the groups in the material with the perovskite. In this work, the n-type semiconductor bathocuproine (BCP) including the pyridine nitrogen bond was modified at the interfaces of perovskite/HTL or perovskite/ETL to improve perovskite crystallinity and interface contact properties. The better crystallinity and superior interface contact properties are obtained using BCP unilateral modification, which obviously increases the PCEs of PSCs. The BCP bilateral modification at both perovskite/ETL and perovskite/HTL interfaces can further improve the crystallinity with fewer defects and superior contact properties, which show the largest Voc (1.14 V) and fill factors (FF 77.1%) compared to PSCs with BCP unilateral modification. PSCs with BCP bilateral modification obtained 20.6% PCEs, which is greatly higher than that (17.5%) of the original PSCs. The stability of PSCs with BCP bilateral modification can be greatly improved due to the better crystal quality and hydrophobic property of the interfaces. The results demonstrated that the n-type BCP material can efficiently modify both perovskite/HTL and perovskite/ETL interfaces beyond its semiconductor type, which can greatly improve the PCEs and stability of PSCs because BCP modification can passivate interfaces, improve interface contact and hydrophobic properties, promote crystallinity of the perovskite layer with fewer defects, and block carrier recombination at both interfaces.

Unilateral Modification of Long Term Contracts: American Change of Terms Clauses and Italian Ius Variandi from a ‘Relational’ Point of View

Abstract This article analyses the compromise required between certainty and flexibility in long-term contracts, which would appear to be intrinsically linked to the adoption of adjustment tools. The allocation of rights and risks at the beginning of a contract may include the enforceability of clauses which empowers one party to unilaterally amend the original terms of the contract. On the one hand, a right granted by a change of terms clause, if properly exercised, may allow both parties to obtain the most from a long-term contract. On the other, it is essential to provide limitations so as to avoid the result that this contractual dexterity gives an unfair advantage to one party to the detriment of the weaker party.

Non-Competes and Other Contracts of Dispossession

Employers have used non-compete clauses to deprive tens of millions of workers of the freedom to change jobs or start their own businesses. In occupations ranging from home health aide to journalist and sandwich shop worker, employers have used this legal power to their great benefit. Non-compete clauses reduce worker mobility, help employers keep wages and wage growth down, deter small business formation, entrench potentially abusive, discriminatory, or hostile work environments, and fortify market power to the detriment of workers, rivals, consumers, and broader society. The justifications for non-compete clauses are unpersuasive. While employers and their advocates argue that they are necessary to protect investment in workers, such as trade secrets and training, there are at least three reasons to reject that reasoning. First, a broad dissemination of information across firms is often good for society. Second, non-competes are onerous for workers and a flawed means of protecting intangibles. Third, other measures, such as trade secret law and employment contracts, are more effective at protecting trade secrets and other intangibles and also much less restrictive for workers. Non-competes are merely one example of abusive contractual terms that the legal system has condoned or tolerated. Other terms, such as mandatory arbitration, class action waivers, confessions of judgment, and unilateral modification, reflect a ubiquitous economic and political problem. Corporations use these contractual terms to unilaterally rob consumers, suppliers, and workers of a wide range of constitutional and statutory rights. Like non-competes, these contractual terms are established in an environment of radical inequality between a corporation and a worker, consumer, or small business and are often contingent and non-salient to the person or business who must accept them. The result of these contracts of dispossession is the loss of legal recourse for wrongdoing, loss of possessions, and the imposition of unaccountable private governments. Congress should pursue a comprehensive legislative solution to contracts of dispossession. First, it should enact a comprehensive law banning these contracts of dispossession. Second, it should delegate authority to a federal agency to identify and outlaw novel contracts of dispossession in the future. These legislative reforms would remake contract law to liberate workers, consumers, and small businesses from the private rule of corporations.

Fair’s fair: psychological contracts and power in platform work

Platform work can be understood as a particularly acute instance of the individualization of economic risk. Responding to the broader trends of labour commodification and decline of the standard employment relationship, psychological contract theory emerged as a way to conceptualize fairness in individualized work arrangements. In this paper, we draw out the critical potential of psychological contract theory by mobilizing Lukes’ theory of power. We apply this lens to 12 semi-structured interviews with platform-mediated food delivery couriers, supplemented by both online and offline participant observation, to identify ways in which platform firms use decision-making, nondecision-making and ideological power to encourage the acceptance of platform work as fair: through the unilateral modification of exchange terms, through the nondecisions of communication and technology design, and through the ideological power of neoliberalism and tribalism. In so doing, we also identify coping strategies deployed by couriers in response to violations by platform firms of perceived exchange terms, variously resistant to and reinforcing of these forms of platform power. In this way, we uncover mechanisms by which firms present risk individualization as a fair exchange of worker security for worker autonomy, as well as more and less effective ways workers can resist this framing.

Consumer Protection and the Regulation of Mobile Phone Contracts: A Study of Automatically Renewable Long-Term Contracts Across Jurisdictions

This article deconstructs mobile phone contracts as an example of long-term contractual relations in four jurisdictions to reveal that there are three elements which define consumer protection. The elements are contract duration, renewal of the agreement and unilateral modification. Each of these factors are regulated differently in each of the jurisdictions, but, assessed collectively, similar levels of consumer protection are found. The authors show that the reason for the different weighting is determined by regulation (subject-specific or general); by external factors, such as technological development, geography or business considerations; and by wider cultural considerations. The comparison of these features across the jurisdictions shows that, ultimately, regulatory intervention plays little role in contract design, unless an overwhelming policy goal is pursued, which means that, in most cases, regulators would be advised to avoid or reduce regulation of mobile phone and other long-term contracts.

근로계약내용의 일방적 변경가능성- 독일의 근로시간단축청구권을 중심으로 -

근로계약내용의 일방적 변경가능성- 독일의 근로시간단축청구권을 중심으로 -

Aplicabilidad de las cláusulas excepcionales en los contratos y convenios interadministrativos

Las cláusulas excepcionales fueron creadas para que la administración ejerciera su poder exorbitante frente a los particulares que coadyuvan al cumplimiento de los fines del Estado. Esas potestades de interpretación unilateral del contrato, modificación unilateral del contrato, terminación del contrato, reversión, multas, declaratoria de incumplimiento y cláusula penal, la misma Ley 80 de 1993 ha señalado que no podrán ser aplicadas en algunas tipologías de contrato dentro de los que se encuentra el Contrato Interadministrativo. Ahora bien, si las dos formas que tiene el Estado para materializar sus fines son a través de la prestación del servicio y la contratación estatal, el interés público o interés general se convierte en el bien jurídico a proteger por parte del Estado en cualquiera de los negocios jurídicos que decida celebrar ¿por qué no es aplicable en los negocios jurídicos celebrados entre entidades públicas?

Jednostrana izmena ugovora o kreditu u pravu Mađarske

The issue of legality of stipulations enabling banks and other financial institutions to modify loan contracts unilaterally had its evolution in Hungarian law, too. What is peculiar to Hungarian law, if considered parallel to Serbian law, is that Hungary, at the eruption of the global financial crisis, or to be more precise, somewhat later, when the number proceedings for the annulment of loan contracts became significant, had specific legislation on this subject the matter, the 1996 Law on Credit Institutions and Financial Enterprises (Hpt.). The Law, in its text applicable until 1st January, 2004, considered valid stipulations enabling unilateral modification of loan contracts. However, it did not prescribe conditions under which such clause may be considered valid, but left freedom to parties to regulate it. The consequence of freedom of contract was that such stipulations have regularly been formulated, so that financial organizations had wide discretion in its application. Realizing the danger of abuse, the legislator changed the Law. The new text, effective from 1st January, 2010, contains considerably more detailed regulations and prescribes stringent conditions of validity of a clause on the right to amend the terms of the loan unilaterally. However, even with the more detailed regulations, a number of issues remained open that ultimately needed to be addressed by the supreme judicial instance, i.e. the Curia. It was first attempted in the judgment of the Curia in the so-called Partiscum case from 2011, but the most significant interpretation of the conditions under which stipulating the right to unilaterally amend the contract, was given in the decision no. PK 2/2012. (XII.10) of the civil law session of the Curia. The Curia stated that such stipulation shall be considered valid, if it is unambiguously and clearly formulated; if the reasons of unilateral modifications are enumerated; if they are determined objectively; if they have a real impact on the elements that influence the interest rate, fees and expenses in connection with the contract and that the scope of changes in the contract is proportional to the scope of changes of relevant circumstances; that the stipulation was transparent for consumers, and if the clause is applicable to the consumer as well, if the relevant circumstances change to his advantage. The requirements of clear and unambiguous formulation and transparency was further clarified in Curia's decision no. 2/2014. PJE. The Curia stated that for the fulfillment of this condition it is not satisfactory that the wording of the stipulation is correct linguistically and grammatically, but it requires that is should be formulated so as to enable the consumer to understand and assess its possible economic consequences. The adoption of this decision was necessary because the ECJ delivered its decision in the Kásler case (C-26/13) in the meantime, which complements the interpretation of Art. 4. sec. 2 of the Directive 93/13/EEC on unfair terms in consumer contracts. The final stage in the evolution of the legal framework of the right to unilateral modifications of loan contracts in Hungarian law, was the enactment of the Law no. XXXVIII of 2014, which raised the content of the conclusions of the Curia to the level of general legal act. The law sparked much criticism regarding its constitutionality: concerns were raised in relation to the establishment of a legal presumption of unfairness of contractual clauses and provisions of general business conditions of banks that explicitly enabled them to change loan contracts unilaterally. It is stated correctly in the literature that by this means the consequences of incomplete and inadequate legal framework were subsequently shifted on financial institutions, even if at the time of conclusion of the contract, or when the general business conditions were in force, they were in line with the effective regulations. The Law has, however, sustained the control of constitutionality. In Hungary today, unilateral modification of banking loan contracts is subject to a very strict legal regime. According to the amendments of the Consumer credit act from 2014 loans with repayment period shorter than three years cannot be unilaterally modified to the detriment of the consumer at all. Contracts with longer repayment period can be modified to the detriment of the consumer up to five times, while the interest rate must remain unaltered for at least three years after each modification. In addition, the range in which financial organizations could increase the interest rate is controlled by the Hungarian Central Bank by disclosing indices officially in the range of which the interest rate could be altered.

Comments on International Legal Aspects of the Crimean Question in the UN

The article analyses three main elements of the Crimean question which aredirectly connected with the UN Charter as discussed and voted on in theSecurity Council and in the General Assembly, namely the problems of theself-determination requested by the Crimean population, the unilateralmodification of the internationally recognized border between Ukraine andRussia and the veto put by Russia on the vote on a draft resolutiondeclaring the invalidity of a referendum organized in Crimea in March 2014.Despite the fact that international law does exceptionally tolerate secessionas a form of self-determination, the secession of Crimea did not satisfy thenecessary international legal conditions for accepting a secession.International law does not allow a unilateral modification of aninternational border between two existing states, but nevertheless, that iswhat happened in Crimea. Finally, Russia vetoed the above mentioned draftresolution in spite of Article 27 [3] of the Charter, which requires the partiesto a dispute, when they are members of the Security Council, to abstainfrom voting in the Council on their dispute. The draft resolution on Crimeahas to be considered as applying Chapter VI of the Charter, with Russiabeing a party to a dispute on the status of Crimea with Ukraine. Therefore,Russia had no right to vote on the draft,

Bulgakov v. Ukraine

132Human rights — Privacy and family life — Name — Protection from unilateral modification of name — International Covenant on Civil and Political Rights, 1966, Articles 17, 26 and 27 — Whether State Party violating Article 17 of Covenant — Effective remedy — United Nations Human Rights Committee

Police Powers of States in Sovereign Debt Restructurings

The paper looks at the powers of the States to unilaterally modify their debt obligations in the context of sovereign debt restructurings. Drawing on the national case law on the unilateral modifications of domestic debt, the paper argues that the States entering into sovereign bonds act in private capacity and cannot modify the private obligations in a unilateral manner. To support the argument, paper relies on the case law from the US, the Russian Federation and England. The paper also considers the powers of the State to modify private-to-private debt obligations and the debt entered into by quasi-public entities.

The Renegotiating Clause in Petroleum International Joint Venture Agreements

Foreign investors and host states rely for the protection of their interests on contractual clauses aiming at maintaining the integrity of their contracts and precluding any modification of the ventures except by mutual consent. Petroleum International Joint Venture Agreements (JVAs) involve the commitment of significant capital for a very long duration. For example, the classic forms of Stabilisation Clauses were introduced by foreign partners as a mechanism to prevent the host state from taking action by virtue of its sovereign power that might affect oil and gas agreements. Unlike some forms of classic Stabilisation Clauses, which try to prevent unilateral modification, Renegotiation Clauses are known to recognise the mutability of the contract and allow for changes in the contract. Renegotiation Clauses aim to protect the parties to oil and gas joint ventures by making the contract flexible and dynamic throughout its duration, in order to adapt it to changing circumstances and, more particularly, to re-establish the contractual equilibrium of the transaction. This article is devoted to a discussion of renegotiation. Section B begins by defining what is meant by the term renegotiation, and argues that we only need to distinguish between two different renegotiation situations, namely, anticipated renegotiation and involuntary renegotiation. Section C focuses on and discusses some reasons for renegotiation. I explore three such reasons, and in so doing, I look at some arbitration cases that have taken place in the petroleum industry. Apart from illustrating the point that renegotiation is a fact of life in any long-term commercial relationship, the case analysis should also help us understand the factors and forces that trigger renegotiation. To avoid confusion in this section, I shall not discuss cases that do not directly concern renegotiation. Two such cases described in the literature are Phillips Petroleum Co (UK) Ltd et al v Enron Europe Ltd. and Mobil Oil Iran, Inc. v. Government of the Islamic Republic of Iran. This is because I believe that the importance of the Enron case lies not in the reasons for renegotiation but the difficulties that can arise in the enforcement of a clause – ie is it an agreement to agree or not. The Mobil case, on the other hand, is about negotiation in relation to the termination of a contract and not about renegotiation. The article then, in section D, discusses the change in circumstances concept. On one hand, according to the concept of sanctity of contract (pucta sunt servanda) a contract is an expression of the parties’ free will and choice; as an exercise of the parties’ freedom and autonomy, as such, it should be honoured and not be interfered with by the court. The terms of the contract must be implemented to the letter no matter how onerous or burdensome they may prove to be. The change of circumstances concept, on the other hand, has been recognised by many major legal systems of the world, ie England, United States, France, and the Vienna Convention on the Law of Treaties (1969). Hence, some writers, rightly, argue that, based on the change in circumstances concept, parties in oil and gas agreements can overcome the sanctity of the contract principle in order to adjust the contract. We shall therefore quickly highlight those major legal systems that have recognised the change in circumstances concept. The aim is to see whether or not those legal systems have recognised the change of circumstances similarly. The comparison is important in case parties to oil and gas agreements are put in situations where there are no contractual clauses that provide for renegotiation. If parties face a case where no contractual term provides for renegotiation but where an obligation to re-negotiate under the general law is argued, then much will depend on the applicable law. For example, if the law governing the agreement is English law, the result may be different from when the law governing the contract is the law of France.

Public Sector Employment Under Siege

This article was prepared for a symposium at Indiana University Maurer School of Law on Labor and Employment Law under the Obama Administration. The article analyzes the current spate of attacks on public employees with particular reference to three sub-topics: teacher tenure and evaluation “reform,” the periodic cycles of public sector fiscal crises, and the unilateral modification of public sector collective bargaining agreements. The article concludes with the assessment that cyclical attacks on public sector workers reflect a skewed viewpoint that public employees owe first-class obligations but possess only second-class rights.

Cubewrap Contracts and Worker Mobility: the Dilution of Employee Bargaining Power Via Standard Form Noncompetes

This symposium article critically considers the role of bargaining power in the creation and enforcement of agreements restraining post-employment competition. Under current doctrine, courts assess the fairness of employer imposed restraints on competition by analyzing the employer's need for protection and the hardship that the restraint will impose on the employee at the point enforcement is sought. In most jurisdictions, they will also modify overbroad agreements to make them less onerous to employees. While this approach has historically been justified by reference to workers' limited bargaining power, it fails to account for the ways in which employer contracting practices intentionally exploit inherent imbalances between the parties, both at the point of contract formation and at the point at which an employee wishes to terminate the relationship. On the front end of the relationship, noncompetes are frequently provided to employees in the form of cubewrap terms - they are made available for review and acceptance only after initial oral assent to employment. On the back end of the transaction, employers' wide scale adoption of broad, standardized noncompetition terms has significant in terrorum effects that alter workers' perceptions about their default rights and impact their ability to negotiate terms and conditions of continued employment. In these ways, cubewrap noncompetes succeed in further diluting an employee's already tenuous grip on any form of bargaining power: they strip away the worker's ability, both at the outset and during the course of employment, to refuse the deal. Current law not only fails to address these forms of power imbalances but in some situations encourages objectionable contracting practices. Courts often accept cubewrap terms as valid unilateral modifications of the at-will employment relationship, and their practice of reforming agreements at the time of enforcement encourages employer overreaching. The article considers how enforcement rules can be reshaped to incentivize better contracting practices on the part of employers, arguing, among other things, that courts should refuse to enforce noncompete agreements withheld until after the commencement of employment and should abandon the practice of modifying overbroad restraints in favor of deferring to industry standards of reasonableness.

FdCS v. Minister for Foreign Affairs

Rivers — International rivers — Freedom of navigation — Definition — Certificate facilitating cross-border navigation of the River Rhine — Restriction limiting issuance of certificates to nationals of certain countries — Whether constituting impediment to freedom of navigation — Revised Act Concerning Navigation of the Rhine (Act of Mannheim), 1868–1922Sources of international law — General principles of law — Protest and acquiescence — Estoppel — Regulations issued by International River Commission pursuant to international treaty — Unilateral modification of regulations by party to treaty — Subsequent protest by other parties — The law of the Netherlands

Internal bargaining and strategic innovation in the theory of the firm

The transaction cost analysis of the firm has identified asset idiosyncrasy and the risk of ex post opportunism as key determinants of organizational form. Simultaneously, several writers have modeled the distribution of quasi-rents among input suppliers as a bargaining game. These complementary ideas are used to formalize the notion of strategic innovation, where capital and labor attempt to redistribute firm income after specialized assets are in place, through unilateral modifications in production technology. Because strategic behavior can enlarge the quasi-rent component of fifirm income, this process may persist in equilibrium. Asset idiosyncrasy therefore creates room for an autonomous theory of organizational dynamics, partially insulated from events at the market level of analysis.

The Unilateral Change of Economic Development Agreements

IT seems appropriate to begin this article with an apology. Legal writings on economic development agreements, i.e., contracts between governments and foreign private investors, are already abundant and, as Professor Farer formulated it,' torrents of language are foaming around eminent topics like the one which is the object of this study. The efficient practitioner undoubtedly would be inclined to dismiss the problem invoked here altogether as being merely the legal academic's concern with little or no impact on reality. Does not, after all, the law in this field entirely depend on the skill and bargaining power of the negotiators and the techniques of the draftsmen of legal documents? Or, to say it in a more academic way,2 is not the iex contractus the only governing law between the parties? This thesis, as we shall see, is untenable. Economic development agreements are not situated in a legal vacuum but-at least partlygoverned by rules of international or transnational law based on the general principles of law recognised by civilised nations.3 It is true, of course, that unilateral modification or abrogation of agreements becomes relevant only in a small minority of cases when the relations of the contracting parties have reached an impasse and consensual arrangements are no longer possible. This, however, is no reason to neglect the issue. Foreign private investors in developing countries try to obtain a maximum of government guarantees for the security of their investment such as promises of non-expropriation and clauses of non-interference or legislative stability. In drafting such clauses, they should know what they can reasonably expect of them. Moreover, clarification of the legal issues may help or induce the parties to find a realistic and comprehensive basis for cooperation and thus avoid unnecessary litigation.