Search results for: enforcing contracts

Authors: Noor Suhaida Kasri

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In the last three decades, Malaysia has developed fundamental legal and regulatory structures that aim to accommodate and facilitate the growth of Islamic banking and finance industry. Important building blocks have been put in place, to cite a few, the elevation of the position of the Malaysian Central Bank Shariah Advisory Council (SAC) as the apex advisory body and the empowerment of their Shariah resolutions through the Central Bank Act 1958; the promulgation of the Islamic Financial Services Act 2013 that regulate and govern Islamic finance market with a robust statutory requirement of Shariah governance and Shariah compliance. Notwithstanding these achievements, enforceability of Shariah-compliant contract remains a contentious subject. The validity of Al Bai Bithaman Ajil concept that was commonly used by the Islamic financial institutions in their financing facilities structures and documentation has been unabatedly challenged by the customers in courts. The challenge was due to the manner in which the Al Bai Bithaman Ajil transactions were carried out. Due to this legal challenge, Al Bai Bithaman Ajil financing structure seems to no longer be the practitioners’ favourite in Malaysia, though its substitute tawarruq and commodity murabahah financing structure may potentially face similar legal challenges. This paper examines the legal challenges affecting the enforceability of these underlying Shariah contracts. The examination of these cases highlights the manner in which these contracts were being implemented and applied by the Malaysian Islamic financial institutions that triggered Shariah and legal concern. The analysis also highlights the approach adopted by the Malaysian courts in determining the Shariah issues as well as the SAC in ascertaining the rulings on the Shariah issues referred to it by the courts. The paper adopts a qualitative research methodology by using textual and documentary analysis approach. The outcome of this study underlines factors that require consideration by industry stakeholder in order to ameliorate the efficacy of the existing building blocks that would eventually strengthens the validity and enforceability of Shariah-compliant contracts. This, in the long run, will further reinforce financial stability and trust into the Islamic banking and finance industry in Malaysia.

Keywords: enforceability of Shariah compliant contract, legal challenge, legal and regulatory framework, Shariah Advisory Council

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Authors: Teodorica G. Ani

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Economic activity requires an encouraging regulatory environment and effective rules that are transparent and accessible to all. The World Bank has been publishing the annual Doing Business reports since 2004 to investigate the scope and manner of regulations that enhance business activity and those that constrain it. A streamlined business environment supporting the development of competitive small and medium enterprises (SMEs) may expand employment opportunities and improve the living conditions of low income households. Asia has emerged as one of the most attractive markets in the world. Economies in East Asia and the Pacific were among the most active in making it easier for local firms to do business. The study aimed to describe the ease of doing business and its effect to economic growth among selected economies in Asia for the year 2014. The study covered 29 economies in East Asia, Southeast Asia, South Asia and Middle Asia. Ease of doing business is measured by the Doing Business indicators (DBI) of the World Bank. The indicators cover ten aspects of the ease of doing business such as starting a business, dealing with construction permits, getting electricity, registering property, getting credit, protecting investors, paying taxes, trading across borders, enforcing contracts and resolving insolvency. In the study, Gross Domestic Product (GDP) was used as the proxy variable for economic growth. Descriptive research was the research design used. Graphical analysis was used to describe the income and doing business among selected economies. In addition, multiple regression was used to determine the effect of doing business to economic growth. The study presented the income among selected economies. The graph showed China has the highest income while Maldives produces the lowest and that observation were supported by gathered literatures. The study also presented the status of the ten indicators of doing business among selected economies. The graphs showed varying trends on how easy to start a business, deal with construction permits and to register property. Starting a business is easiest in Singapore followed by Hong Kong. The study found out that the variations in ease of doing business is explained by starting a business, dealing with construction permits and registering property. Moreover, an explanation of the regression result implies that a day increase in the average number of days it takes to complete a procedure will decrease the value of GDP in general. The research proposed inputs to policy which may increase the awareness of local government units of different economies on the simplification of the policies of the different components used in measuring doing business.

Keywords: doing business, economic growth, gross domestic product, Asia

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Authors: Gaurav Kumar Sinha

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The oil and gas industry, characterized by its complex and global supply chains, faces significant challenges in ensuring security, transparency, and efficiency. Blockchain technology, with its decentralized and immutable ledger, offers a transformative solution to these issues. This paper explores the application of blockchain technology in the oil and gas supply chain, highlighting its potential to enhance data security, improve transparency, and streamline operations. By leveraging smart contracts, blockchain can automate and secure transactions, reducing the risk of fraud and errors. Additionally, the integration of blockchain with IoT devices enables real-time tracking and monitoring of assets, ensuring data accuracy and integrity throughout the supply chain. Case studies and pilot projects within the industry demonstrate the practical benefits and challenges of implementing blockchain solutions. The findings suggest that blockchain technology can significantly improve trust and collaboration among supply chain participants, ultimately leading to more efficient and resilient operations. This study provides valuable insights for industry stakeholders considering the adoption of blockchain technology to address their supply chain management challenges.

Keywords: blockchain technology, oil and gas supply chain, data security, transparency, smart contracts, IoT integration, real-time tracking, asset monitoring, fraud reduction, supply chain efficiency, data integrity, case studies, industry implementation, trust, collaboration.

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Authors: Shaya Alshahrani

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Perceived risks play a major role in consumer intentions, behaviors, attitudes, and decisions about online shopping in the KSA. This paper investigates the influence of six perceived risk dimensions on Saudi consumers: product risk, information risk, financial risk, privacy and security risk, delivery risk, and terms and conditions risk empirically. To ensure the success of this study, a random survey was distributed to reflect the consumers’ perceived risk and to enable the generalization of the results. Data were collected from 323 respondents in the Kingdom of Saudi Arabia (KSA): 50 who had never shopped online and 273 who had done so. The results indicated that all six risks influenced the respondents’ perceptions of online shopping. The non-online shoppers perceived financial and delivery risks as the most significant barriers to online shopping. This was followed closely by performance, information, and privacy and security risks. Terms and conditions were perceived as less significant. The online consumers considered delivery and performance risks to be the most significant influences on internet shopping. This was followed closely by information and terms and conditions. Financial and privacy and security risks were perceived as less significant. This paper argues that introducing adequate legal solutions to addressing related problems arising from this study is an urgent need. This may enhance consumer trust in the KSA online market, increase consumers’ intentions regarding online shopping, and improve consumer protection.

Keywords: perceived risk, online contracts, Saudi Arabia, consumer protection

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Authors: Nadezhda Kvatashidze, Elena Kharabadze

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It is broadly known that lease is a flexible means of funding enterprises. Lease reduces the risk related to access and possession of assets, as well as obtainment of funding. Therefore, it is important to refine lease accounting. The lease accounting regulations under the applicable standard (International Accounting Standards 17) make concealment of liabilities possible. As a result, the information users get inaccurate and incomprehensive information and have to resort to an additional assessment of the off-balance sheet lease liabilities. In order to address the problem, the International Financial Reporting Standards Board decided to change the approach to lease accounting. With the deficiencies of the applicable standard taken into account, the new standard (IFRS 16 ‘Leases’) aims at supplying appropriate and fair lease-related information to the users. Save certain exclusions; the lessee is obliged to recognize all the lease agreements in its financial report. The approach was determined by the fact that under the lease agreement, rights and obligations arise by way of assets and liabilities. Immediately upon conclusion of the lease agreement, the lessee takes an asset into its disposal and assumes the obligation to effect the lease-related payments in order to meet the recognition criteria defined by the Conceptual Framework for Financial Reporting. The payments are to be entered into the financial report. The new lease accounting standard secures supply of quality and comparable information to the financial information users. The International Accounting Standards Board and the US Financial Accounting Standards Board jointly developed IFRS 15: ‘Revenue from Contracts with Customers’. The standard allows the establishment of detailed revenue recognition practical criteria such as identification of the performance obligations in the contract, determination of the transaction price and its components, especially price variable considerations and other important components, as well as passage of control over the asset to the customer. IFRS 15: ‘Revenue from Contracts with Customers’ is very similar to the relevant US standards and includes requirements more specific and consistent than those of the standards in place. The new standard is going to change the recognition terms and techniques in the industries, such as construction, telecommunications (mobile and cable networks), licensing (media, science, franchising), real property, software etc.

Keywords: assessment of the lease assets and liabilities, contractual liability, division of contract, identification of contracts, contract price, lease identification, lease liabilities, off-balance sheet, transaction value

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Authors: Hayyan ul Haq, Zainal Asikin

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This work aims to explore the appropriate solution in solving legal problems stemmed from managing and exploiting strategic natural resources in Indonesia. This discussion will be focused on the exploitation of gold mining, i.e. divestation process in the New Mont Corporation, West Nusa Tenggara. These legal problems relate to the deviation of the national budget regulation, UU. No. 19/2012, and the implementation of the divestastion process, which infringes PP. No. 50/2007 concerning the Impelementation Procedure of Regional Cooperation, which is an implementation regulation of UU No. 1/2004 on State’s Treasury. The cooperation model, have been developed by the Provincial Government, failed to create a permanent legal solution through normative approach. It has merely used practical approach that tends (instant solution), by using some loopholes in the divestation process. The above blunders have accumulated by other secondary legal blunders, i.e. good governance principles, particularly justice, transparency, efficiency, effective principles and competitiveness principle. To solve the above problems, this work offers constitutionalisation of contract that aimed at reviewing and coherencing all deviated contracts, rules and policies that have deprived the national and societies’ interest to optimize the strategic natural resources towards the greatest benefit for the greatest number of people..

Keywords: constitutionalisation of contract, strategic national resources, divestation, the greatest benefit for the greatest number of people, Indonesian Pancasila values

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Authors: Wafa Ghonaim

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Though quite fast on growth, Islamic financing at large, and its diverse instruments, is a controversial matter among scholars. This is evident from the ongoing debates on its Shariah compliance. Arguments, however, are inciting doubts and concerns among clients about its credibility, which is harming this lucrative sector. The work here investigates, particularly, some issues related to the Tawarruq instrument. The work examines the issues of linking Murabaha and Wakala contracts, the reselling of commodities to same traders, and the transfer of ownerships. The work affirms that a multi-agent smart electronic market design would facilitate Shariah compliance. The smart market exploits the rational decision-making capabilities of autonomous proxy agents that enable the clients, traders, brokers, and the bank buy and sell commodities, and manage transactions and cash flow. The smart electronic market design delivers desirable qualities that terminate the need for Wakala contracts and the reselling of commodities to the same traders. It also resolves the ownership transfer issues by allowing stakeholders to trade independently. The bank administers the smart electronic market and assures reliability of trades, transactions and cash flow. A multi-agent simulation is presented to validate the concept and processes. We anticipate that the multi-agent smart electronic market design would deliver Shariah compliance of personal financing to the aspiration of scholars, banks, traders and potential clients.

Keywords: Islamic finance, share'ah compliance, smart electronic markets design, multiagent systems

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Authors: Ezra Kavana

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This article analyses the role those East African countries play in enforcing crude oil pipeline regulations. The paper finds that countries are more likely to have responsibility for enforcing these regulations if they have larger networks of gathering and transmission lines and if their citizens are more liberal and more pro-environment., Pipeline operations, transportation costs, new pipeline construction, and environmental effects are all heavily controlled. All facets of pipeline systems and the facilities connected to them are governed by statutory bodies. In order to support the project manager on such new pipeline projects, companies building and running these pipelines typically include personnel and consultants who specialize in these permitting processes. The primary permissions that can be necessary for pipelines carrying different commodities are mentioned in this paper. National, regional, and local municipalities each have their own permits. Through their right-of-way group, the contractor's project compliance leadership is typically directly responsible for obtaining those permits, which are typically obtained through government agencies. The whole list of local permits needed for a planned pipeline can only be found after a careful field investigation. A country's government regulates pipelines that are entirely within its borders. With a few exceptions, state regulations governing ratemaking and safety have been enacted to be consistent with regulatory requirements. Countries that produce a lot of energy are typically more involved in regulating pipelines than countries that produce little to no energy. To identify the proper regulatory authority, it is important to research the several government agencies that regulate pipeline transportation. Additionally, it's crucial that the scope determination of a planned project engage with a various external professional with experience in linear facilities or the company's pipeline construction and environmental professional to identify and obtain any necessary design clearances, permits, or approvals. These professionals can offer precise estimations of the costs and length of time needed to process necessary permits. Governments with a stronger energy sector, on the other hand, are less likely to take on control. However, the performance of the pipeline or national enforcement activities are unaffected significantly by whether a government has taken on control. Financial fines are the most efficient government enforcement instrument because they greatly reduce occurrences and property damage.

Keywords: crude oil, pipeline, regulatory compliance, and construction permits

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Authors: Robin Molinier

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Industrial symbiosis (I.S) is the realization of Industrial Ecology (I.E) principles in production systems in function. I.S consists in the use of waste materials, fatal energy, recirculated utilities and infrastructure/service sharing as resources for production. Environmental benefits can be achieved from resource conservation but economic profitability is required by the participating actors. I.S indeed involves several actors with their own objectives and resources so that each one must be satisfied by ex-ante arrangements to commit toward I.S execution (investments and transactions). Following the Resource-Based View of transactions we build a modular framework to assess global I.S profitability and to specify each actor’s contributions to costs and benefits in line with their resource endowments and performance requirements formulations. I.S projects specificities implied by the need for customization (asset specificity, non-homogeneity) induce the use of long-term contracts for transactions following Transaction costs economics arguments. Thus we propose first a taxonomy of costs and value drivers for I.S and an assignment to each actor of I.S specific risks that we identified as load profiles mismatch, quality problems and value fluctuations. Then appropriate contractual guidelines (pricing, cost sharing and warranties) that support mutual profitability are derived from the detailed identification of contributions by the cost-benefits model. This analytical framework helps identifying what points to focus on when bargaining over contracting for transactions and investments. Our methodology is applied to I.S archetypes raised from a literature survey on eco-industrial parks initiatives and practitioners interviews.

Keywords: contracts, cost-benefit analysis, industrial symbiosis, risks

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Authors: Salamah Ansari

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In absence of a comprehensive international legal regime for sovereign debt restructuring, majority of the complications arising from sovereign debt restructuring are frequently left to the uncertain market forces. The resort to market forces for sovereign debt restructuring has led to a phenomenal increase in litigations targeting assets of defaulting sovereign nations, internationally across jurisdictions with the first major wave of lawsuits against sovereigns in the 1980s with the Latin American crisis. Recent experiences substantiate that majority of obstacles faced during sovereign debt restructuring process are caused by inefficient creditor coordination and collective action problems. Collective action problems manifest as grab race, rush to exits, holdouts, the free rider problem and the rush to the courthouse. On defaulting, for a nation to successfully restructure its debt, all the creditors involved must accept some reduction in the value of their claims. As a single holdout creditor has the potential to undermine the restructuring process, hold-out creditors are snowballing with the increasing probability of earning high returns through litigations. This necessitates a mechanism to avoid holdout litigations and reinforce collective action on the part of the creditor. This can be done either through a statutory reform or through market-based contractual approach. In absence of an international sovereign bankruptcy regime, the impetus is mostly on inclusion of collective action clauses in debt contracts. The preference to contractual mechanisms vis- a vis a statutory approach can be explained with numerous reasons, but that's only part of the puzzle in trying to understand the economics of the underlying system. The contractual approach proposals advocate the inclusion of certain clauses in the debt contract for an orderly debt restructuring. These include clauses such as majority voting clauses, sharing clauses, non- acceleration clauses, initiation clauses, aggregation clauses, temporary stay on litigation clauses, priority financing clauses, and complete revelation of relevant information. However, voluntary market based contractual approach to debt workouts has its own complexities. It is a herculean task to enshrine clauses in debt contracts that are detailed enough to create an orderly debt restructuring mechanism while remaining attractive enough for creditors. Introduction of collective action clauses into debt contracts can reduce the barriers in efficient debt restructuring and also have the potential to improve the terms on which sovereigns are able to borrow. However, it should be borne in mind that such clauses are not a panacea to the huge institutional inadequacy that persists and may lead to worse restructuring outcomes.

Keywords: sovereign debt restructuring, collective action clauses, hold out creditors, litigations

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Authors: Munawwar Mohabuth, Andrei Kotousov, Ching-Tai Ng

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On the basis of the finite deformation theory, the effect of homogeneous stress on the propagation of Lamb waves in an initially isotropic hyperelastic plate is analysed. The equations governing the propagation of small amplitude waves in the prestressed plate are derived using the theory of small deformations superimposed on large deformations. By enforcing traction free boundary conditions at the upper and lower surfaces of the plate, acoustoelastic dispersion equations for Lamb wave propagation are obtained, which are solved numerically. Results are given for an aluminum plate subjected to a range of applied stresses.

Keywords: acoustoelasticity, dispersion, finite deformation, lamb waves

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Authors: M. A. H. Barry

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The concept of Good faith (husn al-niyyah) and fair-dealing (Nadl) are the fundamental guiding elements in all contracts and other agreements under Islamic law. The preaching of Al-Quran and Prophet Muhammad’s (Peace Be upon Him) firmly command people to act in good faith in all dealings. There are several Quran verses and the Prophet’s saying which stressed the significance of dealing honestly and fairly in all transactions. Under the English law, the good faith is not considered a fundamental requirement for the formation of a legal contract. However, the concept of Good Faith in private contracts is recognized by the civil law system and in Article 7(1) of the Convention on International Sale of Goods (CISG-Vienna Convention-1980). It took several centuries for the international trading community to recognize the significance of the concept of good faith for the international sale of goods transactions. Nevertheless, the recognition of good faith in Civil law is only confined for the commercial contracts. Subsequently to the CISG, this concept has made inroads into the private international law. There are submissions in favour of applying the good faith concept to public international law based on tacit recognition by the international conventions and International Tribunals. However, under public international law the concept of good faith is not recognized as a source of rights or obligations. This weakens the spirit of the good faith concept, particularly when determining the international disputes. This also creates a fundamental flaw because the absence of good faith application means the breaches tainted by bad faith are tolerated. The objective of this research is to evaluate, examine and analyze the application of the concept of good faith in the modern laws and identify its limitation, in comparison with Islamic concept of good faith. This paper also identifies the problems and issues connected with the non-application of this concept to public international law. This research consists of three key components (1) the preliminary inquiry (2) subject analysis and discovery of research results, and (3) examining the challenging problems, and concluding with proposals. The preliminary inquiry is based on both the primary and secondary sources. The same sources are used for the subject analysis. This research also has both inductive and deductive features. The Islamic concept of good faith covers all situations and circumstances where the bad faith causes unfairness to the affected parties, especially the weak parties. Under the Islamic law, the concept of good faith is a source of rights and obligations as Islam prohibits any person committing wrongful or delinquent acts in any dealing whether in a private or public life. This rule is applicable not only for individuals but also for institutions, states, and international organizations. This paper explains how the unfairness is caused by non-recognition of the good faith concept as a source of rights or obligations under public international law and provides legal and non-legal reasons to show why the Islamic formulation is important.

Keywords: good faith, the civil law system, the Islamic concept, public international law

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Authors: Yingyi Luo

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Cross-border commercial surrogacy, where Australians travel overseas to access reproduction through a surrogate mother, is an increasing phenomenon. This paper focuses on the role of Australian surrogacy facilitators, including lawyers, non-for-profit agents, fertility counselors, who act as intermediaries managing cross-border surrogacy arrangements in Australia. It explores the extent to which surrogacy facilitators are concerned with the human rights of children born through cross-border surrogacy, surrogate mothers in developing countries, and intended parents. Commercial surrogacy is a matter that is often cast in the language of human rights. This paper will contribute to an in-depth understanding of the dynamics between intended parents, surrogates, and surrogacy facilitators by adopting a human rights framework to inform data analysis regarding the role of facilitators. The purpose of this research is to inform debate and discussion on law reform related to surrogacy. This paper presented here centers on interviews with surrogacy facilitators in Australia and non-participant observations in Australia to generate thick, empirical data about the fertility industry. The data showed that the process of facilitating surrogacy arrangements had prompted facilitators to form a view on human rights as they applied to their works. Although facilitators claimed that the right of intended parents, surrogate mothers, and children were all taken into consideration, the researcher observed that the commercial surrogacy contracts described by these facilitators favored the interests of intended parents with the baby acting as their unique selling point. The interests and needs of surrogate mothers were not prioritized in the views or actions of facilitators. The result was a commercial transaction that entailed the purchase, through cross-border surrogacy, of a child, as a commodity, by relatively affluent intended parents from disadvantaged surrogate mothers through unfair contracts.

Keywords: cross-border surrogacy, facilitators, human rights, surrogacy

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Authors: Fatemeh Noori

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The fashion industry is a dynamic and ever-evolving realm that continuously shapes societal perceptions of beauty and style. Within this industry, fashion modeling plays a crucial role, acting as the visual representation of brands and designers. However, behind the glamorous façade lies a complex web of legal considerations that govern the rights, responsibilities, and ethical practices within the field. This paper aims to explore the legal landscape surrounding fashion modeling, shedding light on key issues such as contract law, intellectual property, labor rights, and the increasing importance of ethical considerations in the industry. Fashion modeling involves the collaboration of various stakeholders, including models, designers, agencies, and photographers. To ensure a fair and transparent working environment, it is imperative to establish a comprehensive legal framework that addresses the rights and obligations of each party involved. One of the primary legal considerations in fashion modeling is the contractual relationship between models and agencies. Contracts define the terms of engagement, including payment, working conditions, and the scope of services. This section will delve into the essential elements of modeling contracts, the negotiation process, and the importance of clarity to avoid disputes. Models are not just individuals showcasing clothing; they are integral to the creation and dissemination of artistic and commercial content. Intellectual property rights, including image rights and the use of a model's likeness, are critical aspects of the legal landscape. This section will explore the protection of models' image rights, the use of their likeness in advertising, and the potential for unauthorized use. Models, like any other professionals, are entitled to fair and ethical treatment. This section will address issues such as working conditions, hours, and the responsibility of agencies and designers to prioritize the well-being of models. Additionally, it will explore the global movement toward inclusivity, diversity, and the promotion of positive body image within the industry. The fashion industry has faced scrutiny for perpetuating harmful standards of beauty and fostering a culture of exploitation. This section will discuss the ethical responsibilities of all stakeholders, including the promotion of diversity, the prevention of exploitation, and the role of models as influencers for positive change. In conclusion, the legal considerations in fashion modeling are multifaceted, requiring a comprehensive approach to protect the rights of models and ensure ethical practices within the industry. By understanding and addressing these legal aspects, the fashion industry can create a more transparent, fair, and inclusive environment for all stakeholders involved in the art of modeling.

Keywords: fashion modeling contracts, image rights in modeling, labor rights for models, ethical practices in fashion, diversity and inclusivity in modeling

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Authors: Mas Pertiwi I. G. AG Istri, Sri Kristinayanti Wayan, Oka Aryawan I. Gede Made

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Ability of government to meet the needs of infrastructure investment constrained by the size of the budget commitments for other sectors. Another barrier is the complexity of the process of land acquisition. Public Private Partnership can help bridge the investment gap by including the amount of funding from the private sector, shifted the responsibility of financing, construction of the asset, and the operation and post-project design and care to them. In principle, a construction project implementation always requires the investor as a party to provide resources in the form of funding which it must be contained in a successor agreement in the form of a contract. In general, construction contracts consist of contracts which passed in Indonesia and contract International. One source of funding used in the implementation of construction projects comes from funding that comes from the collaboration between the government and the private sector, for example with the system: BLT (Build Lease Transfer), BOT (Build Operate Transfer), BTO (Build Transfer Operate) and BOO (Build Operate Own). And form of payment under a construction contract can be distinguished several ways: monthly payment, payments based on progress and payment after completed projects (Turn Key). One of the tools used to analyze the feasibility of the investment is to use financial models. The financial model describes the relationship between different variables and assumptions used. From a financial model will be known how the cash flow structure of the project, which includes revenues, expenses, liabilities to creditors and the payment of taxes to the government. Net cash flow generated from the project will be used as a basis for analyzing the feasibility of investment source of project financing Public Private Partnership could come from equity or debt. The proportion of funding according to its source is a comparison of a number of investment funds originating from each source of financing for a total investment cost during the construction period by selected the contract system and several alternative financing percentage ratio determined according to sources will generate cash flow structure that is different. Of the various possibilities for the structure of the cash flow generated will be analyzed by software is to test T Paired to compared the contract system used by various alternatives comparison of financing to determine the effect of the contract system and the comparison of such financing for the feasibility of investment toll road construction project for the economic life of 20 (twenty) years. In this use case studies of toll road contruction project Bali Mandara. And in this analysis only covered two systems contracts, namely Build Operate Transfer and Turn Key. Based on the results obtained by analysis of the variable investment feasibility of the NPV, BCR and IRR between the contract system Build Operate Transfer and contract system Turn Key on the interest rate of 9%, 12% and 15%.

Keywords: contract system, financing, internal rate of return, net present value

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Authors: Farshad Ghodoosi

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This article analyzes the effect of supervening events in contracts. Contracts serve an important function: allocation of risks. In spite of its importance, the case law and the doctrine are messy and inconsistent. This article provides a fresh look at excuse doctrines (i.e., force majeure, impracticability, impossibility, and frustration) with a focus on force majeure clauses. The article makes the following contributions: First, it furnishes a new conceptual and theoretical framework of excuse doctrines. By distilling the decisions, it shows that excuse doctrines rests on the triangle of control, foreseeability, and contract language. Second, it analyzes force majeure clauses used by S&P 500 companies to understand the stickiness and similarity of such clauses and the events they cover. Third, using computational and statistical tools, it analyzes US cases since 1810 in order to assess the weight given to the triangle of control, foreseeability, and contract language. It shows that the control factor plays an important role in force majeure analysis, while the contractual interpretation is the least important factor. The Article concludes that it is the standard for control -whether the supervening event is beyond the control of the party- that determines the outcome of cases in the force majeure context and not necessarily the contractual language. This article has important implications on COVID-19-related contractual cases. Unlike the prevailing narrative that it is the language of the force majeure clause that’s determinative, this article shows that the primarily focus of the inquiry will be on whether the effects of COVID-19 have been beyond the control of the promisee. Normatively, the Article suggests that the trifactor of control, foreseeability, and contractual language are not effective for allocation of legal risks in times of crises. It puts forward a novel approach to force majeure clauses whereby that the courts should instead focus on the degree to which parties have relied on (expected) performance, in particular during the time of crisis.

Keywords: contractual risks, force majeure clauses, foreseeability, control, contractual language, computational analysis

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Authors: R. M. Rajapaksa

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Construction industry is one of the key players in driving the economy of a country to achieve its prosperity. However, a dispute is one of the crucial factors which prevent the completion of construction contracts within the budgeted cost, scheduled time, and accepted quality. Disputes are inevitable in the construction contract. Accordingly, a study has been undertaken to identify the factors affecting contractual disputes in construction projects in Sri Lanka. The study was a mixed approach with major qualitative and minor quantitative. Qualitative study was set in the form of in-depth interviews with eighteen participants, and quantitative study was conducted using a questionnaire with twenty-four respondents from previously implemented projects by the National Water Supply & Drainage Board representing the employer, engineer and the Contractor to identify the factors affecting contractual disputes and to verify most critical factors respectively. Data analysis for qualitative and quantitative studies was carried out by means of transcribing, code & categorizeand average score methods, respectively. The study reveals that there are forty factors affecting the contractual disputes in construction contracts in Sri Lanka. The finding further illustrates that conflicting decisions by inexperience personnel in the higher position of the Employer, ambiguities resulting inadequate descriptions of the preliminary/general items in price schedule, unfair valuation and late confirmation of variations, unfair determination due to lack of experience of the Engineer/Consultant, under certification of progress payments, unfair grant of EOT & application of delay damages, unreasonable claims for variation of works, errors/discrepancies/ambiguities in the contract conditions and discrepancies & errors in designs & specifications are the most critical factors affecting contractual disputes. Finally, the study proposed remedial measures to most critical factors affecting contractual disputes.

Keywords: dispute, contractual, factors, employer, engineer, contractor, construction projects

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Authors: M. Hilmi Ozdemir, Gokhan Ozkan

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Performance Based Logistics (PBL) is a strategic approach that enables creating long-term and win-win relations among stakeholders in the acquisition. Contrary to the traditional single transactions, the expected value is created by the performance of the service pertaining to the strategic relationships in this approach. PBL motivates all relevant stakeholders to focus on their core competencies to produce the desired outcome in a collective way. The desired outcome can only be assured with a cost effective way as long as it is periodically measured with the right performance parameters. Thus, defining these parameters is a crucial step for the PBL contracts. In performance parameter determination, Analytic Hierarchy Process (AHP), which is a multi-criteria decision making methodology for complex cases, was used within this study for a complex system. AHP has been extensively applied in various areas including supply chain, inventory management, outsourcing, and logistics. This methodology made it possible to convert end-user’s main operation and maintenance requirements to sub criteria contained by a single performance parameter. Those requirements were categorized and assigned weights by the relevant stakeholders. Single performance parameter capable of measuring the overall performance of a complex system is the major outcome of this study. The parameter deals with the integrated assessment of different functions spanning from training, operation, maintenance, reporting, and documentation that are implemented within a complex system. The aim of this study is to show the methodology and processes implemented to identify a single performance parameter for measuring the whole performance of a complex system within a PBL contract. AHP methodology is recommended as an option for the researches and the practitioners who seek for a lean and integrated approach for performance assessment within PBL contracts. The implementation of AHP methodology in this study may help PBL practitioners from methodological perception and add value to AHP in becoming prevalent.

Keywords: analytic hierarchy process, performance based logistics, performance measurement, performance parameters

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Authors: Azar Mahmoudi

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Despite the rise of global anti-corruption movements and the strong emergence of international and national anti-corruption laws, corrupt practices are still prevalent in most places, and countries still struggle to translate these laws into practice. On the other hand, in most countries, political and economic elites oppose anti-corruption reforms. In such a situation, the role of external actors, like the other States, international organizations, and transnational actors, becomes essential. Among them, Transnational Corporations [TNCs] can develop their own regime-like framework to govern their internal activities, and through this, they can contribute to the regimes established by State actors to solve transnational issues. Among various regimes, TNCs may choose to comply with the transnational anti-corruption legal regime to avoid the cost of non-compliance with anti-corruption laws. As a result, they decide to strenghen their anti-corruption compliance as they expand into new overseas markets. Such a decision extends anti-corruption standards among their employees and third-party agents and within their projects across countries. To better address the challenges posed by corruption, TNCs have adopted a comprehensive anti-corruption toolkit. Among the various instruments, anti-corruption clauses have become one of the most anti-corruption means in international commercial agreements. Anti-corruption clauses, acting as a due diligence tool, can protect TNCs against the engagement of third-party agents in corrupt practices and further promote anti-corruption standards among businesses operating across countries. An anti-corruption clause allows parties to create a contractual commitment to exclude corrupt practices during the term of their agreement, including all levels of negotiation and implementation. Such a clause offers companies a mechanism to reduce the risk of potential corruption in their dealings with third parties while avoiding civil and administrative penalties. There have been few attempts to examine the role of anti-corruption clauses in the fight against corruption; therefore, this paper aims to fill this gap and examine anti-corruption clauses in a specific sector where corrupt practices are widespread and endemic, i.e., the petroleum industry. This paper argues that anti-corruption clauses are a positive step in ensuring that the petroleum industry operates in an ethical and transparent manner, helping to reducing the risk of corruption and promote integrity in this sector. Contractual anti-corruption clauses vary in terms of the types commitment, so parties have a wide range of options to choose from for their preferred clauses incorporated within their contracts. This paper intends to propose a categorization of anti-corruption clauses in the petroleum sector. It examines particularly the anti-corruption clauses incorporated in transnational hydrocarbon contracts published by the Resource Contract Portal, an online repository of extractive contracts. Then, this paper offers a quantitative assessment of anti-corruption clauses according to the types of contract, the date of conclusion, and the geographical distribution.

Keywords: anti-corruption, oil and gas, transnational corporations, due diligence, contractual clauses, hydrocarbon, petroleum sector

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Authors: Jot Prakash Kaur

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The paper aims to showcase that with the introduction of anti-graft instruments and willingness of the governments towards their implementation, a significant change can be witnessed in the anti-corruption landscape of any country. Since the past decade anti-graft instruments have been introduced by several international non-governmental organizations with the vision of curbing corruption. Transparency International’s ‘Integrity Pact’ has been one such initiative. Integrity Pact has been described as a tool for preventing corruption in public contracting. Integrity Pact has found its relevance in a developing country like India where public procurement constitutes 25-30 percent of Gross Domestic Product. Corruption in public procurement has been a cause of concern even though India has in place a whole architecture of rules and regulations governing public procurement. Integrity Pact was first adopted by a leading Oil and Gas government company in 2006. Till May 2015, over ninety organizations had adopted Integrity Pact, of which majority of them are central government units. The methodology undertaken to understand impact of Integrity Pact on Public procurement is through analyzing information received from important stakeholders of the instrument. Government, information was sought through Right to Information Act 2005 about the details of adoption of this instrument by various government organizations and departments. Contractor, Company websites and annual reports were used to find out the steps taken towards implementation of Integrity Pact. Civil Society, Transparency International India’s resource materials which include publications and reports on Integrity Pact were also used to understand the impact of Integrity Pact. Some of the findings of the study include organizations adopting Integrity pacts in all kinds of contracts such that 90% of their procurements fall under Integrity Pact. Indian State governments have found merit in Integrity Pact and have adopted it in their procurement contracts. Integrity Pact has been instrumental in creating a brand image of companies. External Monitors, an essential feature of Integrity Pact have emerged as arbitrators for the bidders and are the first line of procurement auditors for the organizations. India has cancelled two defense contracts finding it conflicting with the provisions of Integrity Pact. Some of the clauses of Integrity Pact have been included in the proposed Public Procurement legislation. Integrity Pact has slowly but steadily grown to become an integral part of big ticket procurement in India. Government’s commitment to implement Integrity Pact has changed the way in which public procurement is conducted in India. Public Procurement was a segment infested with corruption but with the adoption of Integrity Pact a number of clean up acts have been performed to make procurement transparent. The paper is divided in five sections. First section elaborates on Integrity Pact. Second section talks about stakeholders of the instrument and the role it plays in its implementation. Third section talks about the efforts taken by the government to implement Integrity Pact in India. Fourth section talks about the role of External Monitor as Arbitrator. The final section puts forth suggestions to strengthen the existing form of Integrity Pact and increase its reach.

Keywords: corruption, integrity pact, procurement, vigilance

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Authors: Fani Sakellariadou

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The Blue Economy includes all marine-based and marine-related activities. They correspond to established, emerging as well as unborn ocean-based industries. Seabed mining is an emerging marine-based activity; its operations depend particularly on cutting-edge science and technology. The 21st century will face a crisis in resources as a consequence of the world’s population growth and the rising standard of living. The natural capital stored in the global ocean is decisive for it to provide a wide range of sustainable ecosystem services. Seabed mineral deposits were identified as having a high potential for critical elements and base metals. They have a crucial role in the fast evolution of green technologies. The major categories of marine mineral deposits are deep-sea deposits, including cobalt-rich ferromanganese crusts, polymetallic nodules, phosphorites, and deep-sea muds, as well as shallow-water deposits including marine placers. Seabed mining operations may take place within continental shelf areas of nation-states. In international waters, the International Seabed Authority (ISA) has entered into 15-year contracts for deep-seabed exploration with 21 contractors. These contracts are for polymetallic nodules (18 contracts), polymetallic sulfides (7 contracts), and cobalt-rich ferromanganese crusts (5 contracts). Exploration areas are located in the Clarion-Clipperton Zone, the Indian Ocean, the Mid Atlantic Ridge, the South Atlantic Ocean, and the Pacific Ocean. Potential environmental impacts of deep-sea mining include habitat alteration, sediment disturbance, plume discharge, toxic compounds release, light and noise generation, and air emissions. They could cause burial and smothering of benthic species, health problems for marine species, biodiversity loss, reduced photosynthetic mechanism, behavior change and masking acoustic communication for mammals and fish, heavy metals bioaccumulation up the food web, decrease of the content of dissolved oxygen, and climate change. An important concern related to deep-sea mining is our knowledge gap regarding deep-sea bio-communities. The ecological consequences that will be caused in the remote, unique, fragile, and little-understood deep-sea ecosystems and inhabitants are still largely unknown. The blue economy conceptualizes oceans as developing spaces supplying socio-economic benefits for current and future generations but also protecting, supporting, and restoring biodiversity and ecological productivity. In that sense, people should apply holistic management and make an assessment of marine mining impacts on ecosystem services, including the categories of provisioning, regulating, supporting, and cultural services. The variety in environmental parameters, the range in sea depth, the diversity in the characteristics of marine species, and the possible proximity to other existing maritime industries cause a span of marine mining impact the ability of ecosystems to support people and nature. In conclusion, the use of the untapped potential of the global ocean demands a liable and sustainable attitude. Moreover, there is a need to change our lifestyle and move beyond the philosophy of single-use. Living in a throw-away society based on a linear approach to resource consumption, humans are putting too much pressure on the natural environment. Applying modern, sustainable and eco-friendly approaches according to the principle of circular economy, a substantial amount of natural resource savings will be achieved. Acknowledgement: This work is part of the MAREE project, financially supported by the Division VI of IUPAC. This work has been partly supported by the University of Piraeus Research Center.

Keywords: blue economy, deep-sea mining, ecosystem services, environmental impacts

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Authors: Mohammad Abbas Nejad

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Tuka Sabz service production company (private shares), with more than 30 years of history, is considered as one of the first holding companies of Tuka Foulad, which takes steps in the direction of increasing service quality and customer satisfaction. Manpower supply is one of the most important activities of Tuka Sabz company, in addition to car supply services; light and heavy transportation services; management of entertainment, sports, tourism and accommodation centers; design, creation and maintenance services of land space; preparing, cooking, distributing and serving all kinds of personal and ceremonial foods; design, construction, repair and reconstruction of non-industrial buildings; industrial laundry services; public and industrial cleaning services are also among other activities of Tuka Sabz. This company has a high capacity of specialized and committed human resources as the main pillar of its success and spent most of its years of activity in Mobarakeh steel company as one of the reliable contractors in the field of automotive service contracts, green space, industrial cleaning, management cultural, recreational and tourism places, consulting, maintenance and repair of buildings and facilities, industrial laundry, management of cooking centers and personnel transportation. The final result of this article states that Tuka Sabz company is trying to get the satisfaction of three main groups of stakeholders, i.e., employees, customers, and shareholders, for this purpose, by improving the competence and competence of employees, trying to establish a system of meritocracy and respecting the human status of employees. On the one hand, the implementation of quality management and assurance to employers with the timely and favorable implementation of contracts takes a step in this direction.

Keywords: Mubarakeh steel company, Tuka Sabz company, human resources, industrial laundry services

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Authors: Abdulrahman Aloufi

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E-commerce has evolved to become a functional and mainstream tool of global trading, including in the Kingdom of Saudi Arabia. Consequently, online consumers need protection just as much as consumers in the offline world. In 2019, the Ministry of Commerce in Saudi Arabia established a so-called ‘e-commerce law’; however, this law does not cover the court enforcement of contracts entered into by international vendors, so it is not applicable in cross-border situations. The purpose of this paper is to identify the gaps present in this new e-commerce law in Saudi Arabia.

Keywords: consumer protection, e-commerce law, Saudi consumer, international vendor

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Authors: Ayyoub Jamali, Jennie Edlund, Alena Kozlová

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This paper evaluates the monitoring, prevention, and enforcing mechanisms of the core values of international organisations (IOs) in a comparative human rights perspective. The IOs in focus are the European Union, the Council of Europe, the African Union, and the Organization of American States. The paper will take the founding treaties of these IOs and their relevant protocols as a starting point to identify the values and the mechanisms used for their implementation. It will explore the scope of violations, the procedures in place and evaluate what type of response to those breaches seems to work best in terms of achieving its declared objectives. The study will identify and compare the weaknesses and strengths of each mechanism used by the IOs and recognize common challenges and means, thereby drawing inter-organizational comparisons. Consequently, the findings of this paper can be used among the IOs to improve their system and thus enhance their effectiveness.

Keywords: international organizations, core values, human rights, enforcement mechanism, compliance

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Authors: Desere Kokt

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Hospitality establishments worldwide are bearing the brunt of the effects of Covid-19. As the hospitality industry is looking to recover, emphasis is placed on rejuvenating the industry. This is especially pertinent for economic development in areas of high unemployment, such as the Free State province of South Africa. The province is not a main tourist area and thus depends on the influx of tourists. The province has great scenic beauty with many accommodation establishments that provide job opportunities to the local population. The two main economic hubs of the Free State province namely Bloemfontein and Clarens, were the focus of the investigation. The emphasis was on graded accommodation establishments as they must adhere to the quality principles of the Tourism Grading Council of South Africa (TGCSA) to obtain star grading. The hospitality industry is known for being labour intensive, and employees need to be available to cater for the needs of paying customers. This is referred to as ‘emotional labour’ and implies that employees need to manage their feelings and emotions as part of performing their jobs. The focus of this study was thus on psychological factors related to working in the hospitality industry – specifically psychological contract and psychological capital and its impact on the commitment of employees in graded accommodation establishments. Employee commitment can be explained as a psychological state that binds the individual to the organisation and involves a set of psychological relationships that include affective (emotions), normative (perceived obligation) and continuance (staying with the organisation) dimensions. Psychological contract refers to the reciprocal beliefs and expectations between the employer and the employee and consists of transactional and rational contracts. Transactional contracts are associated with the economic exchange, and contractional issues related to the employment contract and rational contracts relate to the social exchange between the employee and the organisation. Psychological capital refers to an individual’s positive psychology state of development that is characterised by self-efficiency (having confidence in doing one’s job), optimism (being positive and persevering towards achieving one’s goals), hope (expectations for goals to succeed) and resilience (bouncing back to attain success when beset by problems and adversity). The study employed a quantitative research approach, and a structured questionnaire was used to gather data from respondents. The study was conducted during the Covid-19 pandemic, which hampered the data gathering efforts of the researchers. Many accommodation establishments were either closed or temporarily closed, which meant that data gathering was an intensive and laborious process. The main researcher travelled to the various establishments to collect the data. Nine hospitality establishments participated in the study, and around 150 employees were targeted for data collection. Ninety-two (92) questionnaires were completed, which represents a response rate of 61%. Data were analysed using descriptive and inferential statistics, and partial least squares structural equation modelling (PLS-SEM) was applied to examine the relationship between the variables.

Keywords: employee commitment, hospitality industry, psychological contract, psychological capital

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Authors: Khaled Hesham Hyari, Amjad Almani

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Construction projects in the public sector are commonly awarded through competitive bidding. In the last decade, the Construction projects environment in the Middle East went through many changes. These changes have been caused by different factors including the economic crisis, delays in monthly payments, international competition and reduced number of projects. These factors had a great impact on the bidding behaviors of contractors and their pricing strategies. This paper examines the competition characteristics in public construction projects through an analysis of bidding results of contractors in public construction projects over a period of 6 years (2006-2011) in Jordan. The analyzed projects include all categories of projects such as infrastructure, buildings, transportation and engineering services (design and supervision contracts). Data for the projects were obtained from the General Tender’s Directorate in Jordan and includes 462 projects. The analysis performed in this projects includes, studying the bid spread in all projects as it is an indication of the level of competition in the analyzed bids. The analysis studied the factors that affect bid spread such as number of bidders, Value of the project, Project category and years. It also studying the “Signal to Noise Ratio” in all projects as it is an indication of the accuracy of cost estimating performed by competing bidders and bidder´s evaluation of project risks. The analysis performed includes the relationship between signal to noise ratio and different parameters such as project category, number of bidders and changes over years. Moreover, the analysis includes determining the bidder´s aggressiveness in bidding as it is an indication of competition level in such projects. This was performed by determining the pack price which can be considered as the true value of the project and comparing it with the lowest bid submitted for each project to determine the level of aggressiveness in submitted bids. The analysis performed in this project should prove to be useful to owners in understanding bidding behaviors of contractors and pointing out areas that needs improvement in preparing bidding documents. Also the project should be useful to contractors in understanding the competitive bidding environment and should help them to improve their bidding strategies to maximize the success rate in obtaining contracts.

Keywords: construction projects, competitive bidding, public construction, competition

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Authors: Ali Mohammad Mobaser Azad, Alireza Akhlaghinia

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Blockchain is changing our world and launching a new generation of decentralized networks. Meanwhile, Blockchain-based networks like Ethereum have been created and they will facilitate these processes using tools like smart contracts. The Ethereum has fundamental structures, each of which affects the activity of the nodes. Our purpose in this paper is to review similar research and examine various components to demonstrate the performance of the Ethereum network and to do this, and we used the data published by the Ethereum Foundation in different time spots to examine the number of changes that determine the status of network performance. This will help other researchers understand better Ethereum in different situations.

Keywords: blockchain, ethereum, smart contract, decentralization consensus algorithm

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Authors: Mohamed Fairooz Abdul Khir

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The linkage between liability for risk and legitimacy of reward is a governing principle that must be fully observed in financial transactions. It is the cornerstone of any Islamic business or financial deal. The absence of risk taking principle may give rise to numerous prohibited elements such as ribā, gharar and gambling that violate the objectives of financial transactions. However, fiqhī domains from which it emanates have not been clearly spelled out by the scholars. In addition, the concept of risk taking in relation to contemporary risks associated with financial contracts, such as credit risk, liquidity risk, reputational risk and market risk, needs further scrutiny as regard their Sharīʿah bases. Hence, this study is imperatively significant to prove that absence of risk taking concept in Islamic financial instruments give rise to prohibited elements particularly ribā. This study is primarily intended to clarify the concept of risk in Islamic financial transactions from the fiqhī perspective and evaluate analytically the selected issues involving risk taking based on the established concept of risk taking from fiqhī viewpoint. The selected issues are amongst others charging cost of fund on defaulting customers, holding the lessee liable for total loss of leased asset under ijārah thumma al-bayʿ and capital guarantee under mushārakah based instruments. This is a library research in which data has been collected from various materials such as classical fiqh books, regulators’ policy guidelines and journal articles. This study employed deductive and inductive methods to analyze the data critically in search for conclusive findings. It suggests that business risks have to be evaluated based on their subjects namely (i) property (māl) and (ii) work (ʿamal) to ensure that Islamic financial instruments structured based on certain Sharīʿah principles are not diverted from the risk taking concept embedded in them. Analysis of the above selected cases substantiates that when risk taking principle is breached, the prohibited elements such as ribā, gharar and maysir do arise and that they impede the realization of the maqāṣid al-Sharīʿah intended from Islamic financial contracts.

Keywords: Islamic finance, ownership risk, ribā, risk taking

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Authors: Yusuf Adebayo Oduwole

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The evaluation of blockchain technology's potential effects on the accounting and auditing fields is the main objective of this essay. It also adds to the existing body of work by examining how these practices alter technological concerns, including cryptocurrency accounting, regulation, governance, accounting practices, and technical challenges. Examples of this advancement include the growth of the concept of blockchain and its application in accounting. This technology is being considered one of the digital revolutions that could disrupt the world and civilization as it can transfer large volumes of virtual currencies like cryptocurrencies with the help of a third party. The basis for this research is a systematic review of the articles using Vosviewer to display and reflect on the bibliometric information of the articles accessible on the Scopus database. Also, as the practice of using blockchain technology in the field of accounting and auditing is still in its infancy, it may be useful to carry out a more thorough analysis of any implications for accounting and auditing regarding aspects of governance, regulation, and cryptocurrency that have not yet been discussed or addressed to any significant extent. The main findings on the relationship between blockchain and accounting show that the application of smart contracts, such as triple-entry accounting, has increased the quality of accounting records as well as reliance on the information available. This results in fewer cyclical assignments, no need for resolution, and real-time accounting, among others. Thereby, to integrate blockchain through a computer system, one must continuously learn and remain naive when using blockchain-integrated accounting software. This includes learning about how cryptocurrencies are accounted for and regulated. In this study, three original and contributed efforts are presented. To offer a transparent view of the state of previous relevant studies and research works in accounting and auditing that focus on blockchain, it begins by using bibliographic visibility analysis and a Scopus narrative analysis. Second, it highlights legislative, governance, and ethical concerns, such as education, where it tackles the use of blockchain in accounting and auditing. Lastly, it examines the impact of blockchain technologies on the accounting recognition of cryptocurrencies. Users of the technology should, therefore, take their time and learn how it works, as well as keep abreast of the different developments. In addition, the accounting industry must integrate blockchain certification and practice, most likely offline or as part of university education for those intending to become auditors or accountants.

Keywords: blockchain, crypto assets, governance, regulation & smart contracts

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Authors: Guanqun Shi, Xueqing Zhang

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The frequent occurrence of failures in PPP projects which caused great loss has raised attention from the government as well as the concessionaire. PPPs are complex arrangements for its long operation period and multiple players. Many types of risks in PPP projects may cause the project fail. The insurance is an important tool to transfer the risks. Through a comparison and analysis of international government PPP guidelines and contracts as well as the case studies worldwide, we have identified eight main insurance principles, discussed thirteen insurance types in different stages. An overall procedure would be established to improve the practices in PPP projects.

Keywords: public private partnerships, insurance, contract, risk

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