Search results for: doctrine of privity of contract

Authors: Adekemi Adebowale

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The duty of disclosure in Nigerian insurance law is in need of reform. The materiality of an undisclosed fact (notwithstanding that it was an honest and innocent non-disclosure) currently entitles insurers to avoid insurance policies, leaving an insured with an uncovered loss. While the test of materiality requires an insured to voluntarily disclose facts that will influence an insurer's decision without proper guidelines from the insurer, the insurer is only expected to prove that the undisclosed fact had influenced its judgment in fixing the premium or determining whether to accept the risk. This problem places an onerous duty on the assured to volunteer to the insurer every material fact even though the insured only has a slight idea about the mind of a hypothetical prudent insurer. This paper explores the modern approach to revisiting the problem of an insured’s pre-contractual obligation to determine material facts in Nigerian insurance law. The aim is to build upon the change in the structure of insurance contract obligations in other common law jurisdictions such as the United Kingdom. The doctrinal and comparative methodology captures the burden imposed on the insured under the existing Nigerian insurance law. It finds that the continued application of the law leaves the insured in the weakest position, and he stands to lose in a contract supposedly created for his benefit. It is apparent that if this problem remains unresolved, the over-all consequence will contribute to a significant decline in the insurance contract, which may affect the Nigerian economy. The paper aims to evaluate the risks of the continuous application of the traditional law, which does not keep with the pace of modern insurance practice. It will ultimately produce a legally compliant reform, along with a significant deviation from the archaic structure that exists in the Nigerian insurance law. This paper forms part of an on-going PhD research on "The insured’s pre-contractual duty of utmost of utmost good faith". The outcome from the research to date finds that the insured bears the burden of the obligation to act in utmost good faith where it concerns disclosure of material facts.

Keywords: disclosure, materiality, Nigeria, United Kingdom, utmost good faith

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Authors: Mariam Begadze

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Separation of Powers (SOP) has often been the most frequently posed objection against the judicial enforcement of socio-economic rights. Although a lot has been written to refute those, very rarely has it been assessed what effect the current practice of social rights adjudication has had on the construction of SOP doctrine in specific jurisdictions. Colombia is an appropriate case-study on this question. The notion of collaborative SOP in the 1991 Constitution has affected the court’s conception of its role. On the other hand, the trends in the jurisprudence have further shaped the collaborative notion of SOP. Other institutional characteristics of the Colombian constitutional law have played its share role as well. Tutela action, particularly flexible and fast judicial action for individuals has placed the judiciary in a more confrontational relation vis-à-vis the political branches. Later interventions through abstract review of austerity measures further contributed to that development. Logically, the court’s activism in this sphere has attracted attacks from political branches, which have turned out to be unsuccessful precisely due to court’s outreach to the middle-class, whose direct reliance on the court has turned into its direct democratic legitimacy. Only later have the structural judgments attempted to revive the collaborative notion behind SOP doctrine. However, the court-supervised monitoring process of implementation has itself manifested fluctuations in the mode of collaboration, moving into more managerial supervision recently. This is not surprising considering the highly dysfunctional political system in Colombia, where distrust seems to be the default starting point in the interaction of the branches. The paper aims to answer the question, what the appropriate judicial tools are to realize the collaborative notion of SOP in a context where the court has to strike a balance between the strong executive and the weak and largely dysfunctional legislative branch. If the recurrent abuse lies in the indifference and inaction of legislative branches to engage with political issues seriously, what are the tools in the court’s hands to activate the political process? The answer to this question partly lies in the court’s other strand of jurisprudence, in which it combines substantive objections with procedural ones concerning the operation of the legislative branch. The primary example is the decision on value-added tax on basic goods, in which the court invalidated the law based on the absence of sufficient deliberation in Congress on the question of the bills’ implications on the equity and progressiveness of the entire taxing system. The decision led to Congressional rejection of an identical bill based on the arguments put forward by the court. The case perhaps is the best illustration of the collaborative notion of SOP, in which the court refrains from categorical pronouncements, while does its bit for activating political process. This also legitimizes the court’s activism based on its role to counter the most perilous abuse in the Colombian context – failure of the political system to seriously engage with serious political questions.

Keywords: Colombian constitutional court, judicial review, separation of powers, social rights

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Authors: Nipuli Gajanayake

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The Russian military role beyond its national frontier has become a debatable hot topic in the international political arena. It’s advanced, and strategic responses in combating regional and international security problems have always been a factor to debate and criticize. Under such critical circumstances, Russia is attentive to play its military role according to the provisions of the Military Doctrine of the Russian Federation. Most importantly, the legal basis of the doctrine has also consisted with the generally recognized principles and norms of international law. Therefore, Russian international military assistances are pledged to accomplish international peace and security. The expansion of Russian military participation in the United Nations Peacekeeping operations, and military- political, and technical cooperation have largely evident the great effort of Russia in maintaining and restoring international peace and security. Moreover, the conflict management diplomacy and the development of dialogue with nation states to confront military risks and threats can also identify as a part of preserving international peace and security. In addition, Russia strives to strengthen the system of collective security with regional and international organizations through the legal framework of the Collective Security Treaty Organization (CSTO). Maintaining cooperative ties with the Commonwealth of Independent States (CIS), the Organization for Security and Cooperation in Europe (OSCE) and the Shanghai Cooperation Organization (SCO) have highlighted the Russian deliberation on maintaining regional peace and security. Nevertheless, the extension of cordial relations with nation states and providing of military assistances during tensions and conflicts on their territories can also underscore as Russians commitments on maintaining international peace and security. Observing and recognizing the disparity between the West portrayed terms like ‘illegal Russian interventions’ and the comprehensive reality behind the ‘Russian military assistances’ are important to understand. However, a lopsided vision or a perspective towards the Russian international military role would not present a clear understanding about its valued and also dedicated hard work on maintaining international peace and security.

Keywords: collective security, diplomacy, international military role of Russia, international peace and security

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Authors: Samuel I. Becher, Tal Z. Zarsky

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The digital world becomes part of our DNA now. The way e-commerce, human behavior, and law interact and affect one another is rapidly and significantly changing. Among others things, the internet equips consumers with a variety of platforms to share information in a volume we could not imagine before. As part of this development, online information flows allow consumers to learn about businesses and their contracts in an efficient and quick manner. Consumers can become informed by the impressions that other, experienced consumers share and spread. In other words, consumers may familiarize themselves with the contents of contracts through the experiences that other consumers had. Online and offline, the relationship between consumers and businesses are most frequently governed by consumer standard form contracts. For decades, such contracts are assumed to be one-sided and biased against consumers. Consumer Law seeks to alleviate this bias and empower consumers. Legislatures, consumer organizations, scholars, and judges are constantly looking for clever ways to protect consumers from unscrupulous firms and unfair behaviors. While consumers-businesses relationships are theoretically administered by standardized contracts, firms do not always follow these contracts in practice. At times, there is a significant disparity between what the written contract stipulates and what consumers experience de facto. That is, there is a crucial gap (“the Gap”) between how firms draft their contracts on the one hand, and how firms actually treat consumers on the other. Interestingly, the Gap is frequently manifested by deviation from the written contract in favor of consumers. In other words, firms often exercise lenient approach in spite of the stringent written contracts they draft. This essay examines whether, counter-intuitively, policy makers should add firms’ leniency to the growing list of firms suspicious behaviors. At first glance, firms should be allowed, if not encouraged, to exercise leniency. Many legal regimes are looking for ways to cope with unfair contract terms in consumer contracts. Naturally, therefore, consumer law should enable, if not encourage, firms’ lenient practices. Firms’ willingness to deviate from their strict contracts in order to benefit consumers seems like a sensible approach. Apparently, such behavior should not be second guessed. However, at times online tools, firm’s behaviors and human psychology result in a toxic mix. Beneficial and helpful online information should be treated with due respect as it may occasionally have surprising and harmful qualities. In this essay, we illustrate that technological changes turn the Gap into a key component in consumers' understanding, or misunderstanding, of consumer contracts. In short, a Gap may distort consumers’ perception and undermine rational decision-making. Consequently, this essay explores whether, counter-intuitively, consumer law should sanction firms that create a Gap and use it. It examines when firms’ leniency should be considered as manipulative or exercised in bad faith. It then investigates whether firms should be allowed to enforce the written contract even if the firms deliberately and consistently deviated from it.

Keywords: consumer contracts, consumer protection, information flow, law and economics, law and technology, paper deal v firms' behavior

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Authors: Seyed Habib A. Rahmati, Parsa Fallah Sheikhlari, Morteza Musakhani

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This paper studies the structure of financial investment and efficiency on the subway would be created between Hashtgerd and Qazvin in Iran. Regarding ascending rate of transportation between Tehran and Qazvin which directly air pollution, it clearly implies to public transportation requirement between these two cities near Tehran. The railway transportation like subway can help each country to terminate traffic jam which has some advantages such as speed, security, non-pollution, low cost of public transport, etc. This type of transportation needs national infrastructures which require enormous investment. It couldn’t implement without leading and managing funds and investments properly. In order to response 'needs', clear norms or normative targets have to be agreed and obviously it is important to distinguish costs from investment requirements critically. Implementation phase affects investment requirements and financing needs. So recognizing barrier related to investment and the quality of investment (what technologies and services are invested in) is as important as the amounts of investment. Different investment methods have mentioned as follows loan, leasing, equity participation, Line of financing, finance, usance, bay back. Alternatives survey before initiation and analyzing of risk management is one of the most important parts in this project. Observation of similar project cities each country has the own specification to choose investment method.

Keywords: subway project, project investment, project contract, project management

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Authors: Budsarin Padwang, Darunee Jongudomkarn, Thawan Nieamsup, Autchareeya Patumwan, Rutja Phuphaibul

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In Northern Thailand, a pilot study by the qualitative data, on caring for family members with chronic illness/bedridden based on in-depth interviews of the 12 elderly caregivers in family was carried out during November to December 2017. There are four families that living with three generations in the family. This report is part of a larger study of 'The intergenerational contract of the family in long-term care for older members' to understand the situation and context related to the research questions. Content analysis was obtained and the results revealed as followings. 1) No choice and no freedom: most caregivers were asked by their family members to do the care giving roles because of various appropriate reasons and they could not refuse and felt like having no freedom. 2) ‘Katanyu’ to the parents: The Thai ideology of making merit by taking care of parents was beliefs to do the best in their caregiver roles. 3) The family commitments: The issues of family caring and relationships were the key value of keeping family members to take care of older members with chronic illness/bedridden. The preliminary findings can be beneficial for other regions and will lead to in-depth explore to answer the research questions of the larger study in the future.

Keywords: intergenerational contract, long term care, older members, generational family

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Authors: Hamed Homaei, Seyed Reza Hejazi, Iraj Mahdavi

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Return policy (RP) is a strategy for supply chain coordination, whereby the retailer returns the unsold products to the manufacturer or the manufacturer offers a credit on unsold products to the retailer at the end of selling season. Early order commitment (EOC) is another efficient mechanism for channel coordination wherein the retailer commits to purchasing from the manufacturer a fixed order quantity a few periods in advance of the regular delivery lead time. This paper studies the coordination issue of a two-level supply chain with one retailer and one manufacturer through combining two mentioned contracts. The main purpose of this paper is to present an analytical model to show that how the contract which is created by combining RP and EOC can improve supply chain performance. Numerical analyses show that the supply chain coordination through mentioned contract in compare with EOC mechanism, can improve supply chain performance under certain ranges of model parameters. Furthermore, some numerical analyses are done to determine the best buyback price in order to achieve maximum cost saving in the supply chain. Finally, a revenue sharing scheme is presented in order to achieve a win-win condition in the supply chain.

Keywords: supply chain coordination, early order commitment, return policy, revenue sharing

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Authors: Mojtaba Eshraghi Arani

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According to the international conventions for the carriage of goods by sea, the consignee is the person who is entitled to take delivery of the cargo from the carrier. Such a person is usually named in the relevant box of the bill of lading unless the latter is issued “To Order” or “To Bearer”. However, there are some cases in which the apparent consignee, as above, was not intended to take delivery of cargo, like the L/C issuing bank or the freight forwarder who are named as consignee only for the purpose of security or acceleration of transit process. In such cases as well as the BL which is issued “To Order”, the so-called “real consignee” can be found out in the “Notify Party” box. The dispute revolves around the choice between apparent consignee and real consignee for being entitled not only to take delivery of the cargo but also to sue the carrier for any damages or loss. While it is a generally accepted rule that only the apparent consignee shall be vested with such rights, some courts like France’s Cour de Cassation have declared that the “Notify Party”, as the real consignee, was entitled to sue the carrier and in some cases, the same court went far beyond and permitted the real consignee to take suit even where he was not mentioned on the BL as a “Notify Party”. The main argument behind such reasoning is that the real consignee is the person who suffered the loss and thus had a legitimate interest in bringing action; of course, the real consignee must prove that he incurred a loss. It is undeniable that the above-mentioned approach is contrary to the position of the international conventions on the express definition of consignee. However, international practice has permitted the use of BL in a different way to meet the business requirements of banks, freight forwarders, etc. Thus, the issue is one of striking a balance between the international conventions on the one hand and existing practices on the other hand. While the latest convention applicable for sea transportation, i.e., the Rotterdam Rules, dealt with the comparable issue of “shipper” and “documentary shipper”, it failed to cope with the matter being discussed. So a new study is required to propose the best solution for amending the current conventions for carriage of goods by sea. A qualitative method with the concept of interpretation of data collection has been used in this article. The source of the data is the analysis of domestic and international regulations and cases. It is argued in this manuscript that the judge is not allowed to recognize any one as real consignee, other than the person who is mentioned in the “Consingee” box unless the BL is issued “To Order” or “To Bearer”. Moreover, the contract of carriage is independent of the sale contract and thus, the consignee must be determined solely based on the facts of the BL itself, like “Notify Party” and not any other contract or document.

Keywords: real consignee, cargo, delivery, to order, notify the party

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Authors: Rahmi Kopar

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Legitimate expectations principle is considered one of the most dominant elements of the Fair and Equitable Treatment Standard which is today’s most relied upon treaty standard. Since its utilization by arbitral tribunals is relatively new, the contours of the legitimate expectations concept under investment treaty law have not been precisely defined yet. There are various fragmented views arising both from arbitral tribunals and scholarly writings with respect to its limits and use even though the principle is ‘firmly rooted in arbitral practice.’ International energy investments, due to their characteristics, are more prone to certain types of risks, especially the political risks. Thus, there are several mechanisms to protect an energy investment against those risks. Stabilisation is one of these investment protection methods. Stability provisions can be found under domestic legislations, as a contractual clause, or as a separate legal stability agreement. This paper will start by examining the roots of the contentious concept of legitimate expectations with reference to its application in domestic legal systems from where the doctrine under investment treaty law context was transplanted. Then the paper will turn to the investment treaty law and analyse the main contours of the doctrine as understood and applied by arbitral tribunals. 'What gives rise to the investor’s legitimate expectations?' question is answered mainly by three categories of sources: the general legal framework prevalent in a host state, the representations made by the officials or organs of a host state, and the contractual commitments. However, there is no unanimity among the arbitral tribunals and the scholars with respect to the form these sources should take. At this point, the study will discuss the sources of a stability provision and the effect of these stability provisions found in various legal sources in creating a legitimate expectation for the investor. The main questions to be discussed in this paper are as follows: a) Do the stability provisions found under different legal sources create a legitimate expectation on the investor side? b) If yes, what levels of legitimate expectations do they create? These questions will be answered mainly by reference to investment treaty jurisprudence.

Keywords: fair and equitable treatment standard, international energy investments, investment protection, legitimate expectations, stabilization

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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: Fedorova Elena

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In this article, we draw a distinction between two important functions of public policy in private international law. The first function is widely recognized and relates to the prevention of application of foreign laws and enforcement of foreign court judgments whenever their effects are incompatible with the domestic legal system of the forum. This effectively protects sovereign rights of the forum state as it allows to resist against the undesirable effects of foreign law-making and law-enforcement policies. The second function is less obvious, but not less important. As the internal private legal relationships, international private relationships are usually governed by rules of public policy, to which the parties can not derogate by mutual agreement. Thefore, for international private law relations public policy has a different function than previously mentioned: in this case, the public policy acts as a defense against unacceptable effects of the party autonomy. Thus, this second function of public policy consists in the limitation of the party autonomy wich effects would be unacceptable for the local legal system. In the frame of this second function the author will analyse two types of public policy which can limit the party autonomy: « substantial » public policy (which regulates the substance of international legal relationship) and « conflictual » public policy (which regulates the party autonomy to choose the law applicable for the substance of relationship). The author provides an analysis of these functions of the public policy in the field of international contract law because of the important role of the principle of party autonomy for international contract relations.

Keywords: public policy, general theory of private international law, substantial public policy, conflictual public policy

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Authors: Gvantsa Magradze

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The paper examines the grounds for the imposition of a personal liability on shareholder/partner, mainly under Georgian and UK law’s comparative analysis. The general emphasis was made on personal responsibility grounds adaptation in practice and presents the analyze of court decisions. On this base, reader will be capable to find a difference between the dogmatic and practical grounds for imposition personal liability. The first chapter presents the general information about discussed issue and notion of personal liability. The second chapter is devoted to an explanation the concept – ‘the head of the corporation’ to make it clear who is the subject of responsibility in the article and not to remain individuals beyond the attention, who do not hold the position of director but are participating in governing activities and, therefore, have to have fiduciury duties. After short comparative analysis of personal responsibility, the Georgian Corporate law reality is further discussed. Here, the problem of determining personal liability is a problematic issue, thus a separate chapter is devoted to the issue, which explains the grounds for personal liability imposition in details. Within the paper is discussed the content and the purpose of personal liability institutions under UK’s corporate law and an attempt to implement them, and especially ‘Alter Ego’ doctrine in Georgian corporate Law reality and the outcomes of the experiment. For the research purposes will be examined national case law in regard to personal liability imposition, as well as UK’s experience in that regard. Comparative analyze will make it clear, wherein the Georgian statute, are gaps and how to fill them up. The articles major finding as stated, is that Georgian Corporate law does not provide any legally consolidated grounds for personal liability imposition, which in fact, leads to unfaithful, unlawful actions on partners’/shareholders’ behalf. In order to make business market fair, advancement of a national statute is inevitable, and for that, the experience sharing from developed countries is an irreplaceable gift. Overall, the article analyses, how discussed amendments might influence case law and if such amendments were made years ago, how the judgments could look like (before and after amendments).

Keywords: alter ego doctrine, case law, corporate law, good faith, personal liability

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Authors: Issam Jebreen, Eman Al-Qbelat

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Outsourcing software development projects can be challenging, and there are several common challenges that organizations face. A study was conducted with a sample of 46 papers on outsourcing challenges, and the results show that there are several common challenges faced by organizations when outsourcing software development projects. Poor outsourcing relationship was identified as the most significant challenge, with 35% of the papers referencing it. Lack of quality was the second most significant challenge, with 33% of the papers referencing it. Language and cultural differences were the third most significant challenge, with 24% of the papers referencing it. Non-competitive price was another challenge faced by organizations, with 21% of the papers referencing it. Poor coordination and communication were also identified as a challenge, with 21% of the papers referencing it. Opportunistic behavior, lack of contract negotiation, inadequate user involvement, and constraints due to time zone were also challenges faced by organizations. Other challenges faced by organizations included poor project management, lack of technical capabilities, vendor employee high turnover, poor requirement specification, IPR issues, poor management of budget, schedule, and delay, geopolitical and country instability, the difference in development methodologies, failure to manage end-user expectations, and poor monitoring and control. In conclusion, outsourcing software development projects can be challenging, but organizations can mitigate these challenges by selecting the right outsourcing partner, having a well-defined contract and clear communication, having a clear understanding of the requirements, and implementing effective project management practices.

Keywords: software outsourcing, vendor, outsourcing challenges, quality model, continent, country, global outsourcing, IT workforce outsourcing.

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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: Ionel Zagan, Vasile Gheorghita Gaitan, Adrian Brezulianu

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This paper presents the contributions in designing a mobile system named Tele-ECG implemented for remote monitoring of cardiac patients. For a better flexibility of this application, the authors chose to implement a local memory and multiple communication interfaces. The project described in this presentation is based on the ARM Cortex M0+ microcontroller and the ADAS1000 dedicated chip necessary for the collection and transmission of Electrocardiogram signals (ECG) from the patient to the microcontroller, without altering the performances and the stability of the system. The novelty brought by this paper is the implementation of a remote monitoring system for cardiac patients, having a real-time behavior and multiple interfaces. The microcontroller is responsible for processing digital signals corresponding to ECG and also for the implementation of communication interface with the main server, using GSM/Bluetooth SIMCOM SIM800C module. This paper translates all the characteristics of the Tele-ECG project representing a feasible implementation in the biomedical field. Acknowledgment: This paper was supported by the project 'Development and integration of a mobile tele-electrocardiograph in the GreenCARDIO© system for patients monitoring and diagnosis - m-GreenCARDIO', Contract no. BG58/30.09.2016, PNCDI III, Bridge Grant 2016, using the infrastructure from the project 'Integrated Center for research, development and innovation in Advanced Materials, Nanotechnologies, and Distributed Systems for fabrication and control', Contract No. 671/09.04.2015, Sectoral Operational Program for Increase of the Economic Competitiveness co-funded from the European Regional Development Fund.

Keywords: Tele-ECG, real-time cardiac monitoring, electrocardiogram, microcontroller

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Authors: Sema Cortoglu Koca

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Intellectual and industrial property rules, have a substantial effect on the sustainable development. Intellectual and industrial property rights, as temporary privileges over the products of intellectual activity, determine the supervision of information and technology. The level and scope of intellectual property protection thus influence the flow of technology between developed and developing countries. In addition, intellectual and industrial property rights are based on the notion of balance. Since they are time-limited rights, they reconcile private and public benefits. That is, intellectual and industrial property rights respond to both private interests and public interests by rewarding innovators and by promoting the dissemination of ideas, respectively. Intellectual and industrial property rights can, therefore, be a tool for sustainable development. If countries can balance their private and public interests according to their particular context and circumstances, they can ensure the intellectual and industrial property which promotes innovation and technology transfer relevant for them. People, enterprises and countries who need technology, can transfer developed technology which is acquired by people, enterprises and countries so as to decrease their technological necessity and improve their technology. Because of the significance of intellectual and industrial property rights on the technology transfer law as mentioned above, this paper is confined to intellectual and industrial property agreements especially technology transfer contracts. These are license contract, know-how contract, franchise agreement, joint venture agreement, management agreement, research and development agreement. In Turkey, technology transfer law is still a developing subject. For developing countries, technology transfer regulations are very important for their private international law because these countries do not know which technology transfer law is applicable when conflicts arise. In most technology transfer contracts having international elements, the parties choose a law to govern their contracts. Where the parties do not choose a law, either expressly or impliedly, and matters which is not excluded in party autonomy, the court has to determine the applicable law to contracts in a matter of capacity, material, the formal and essential validity of contracts. For determining the proper law of technology transfer contracts, it is tried to build a rule for applying all technology transfer contracts. This paper is confined to the applicable law to intellectual and industrial property agreements according to ‘5718 Turkish Act on Private International Law and Civil Procedure’ and ‘Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations (Rome I)’. Like these complex contracts, to find a rule can be really difficult. We can arrange technology transfer contracts in groups, and we can determine the rule and connecting factors to these groups. For the contracts which are not included in these groups, we can determine a special rule considering the characteristics of the contract.

Keywords: intellectual and industrial property agreements, Rome I regulation, technology transfer, Turkish act on private international law and civil procedure

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Authors: Saidu Ibrahim, Winston M. W. Shakantu

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The problem of construction material waste remains unresolved, as a significant percentage of the materials delivered to some project sites end up as waste which might result in additional project cost. Cost overrun is a problem which affects 90% of the completed projects in the world. The argument on how to eliminate it has been on-going for the past 70 years, but there is neither substantial improvement nor significant solution for mitigating its detrimental effects. Research evidence has proposed various construction cost overruns and material-waste management approaches; nonetheless, these studies failed to give a clear indication on the framework and the equation for managing construction material waste and cost overruns. Hence, this research aims to develop a conceptual framework and a mathematical equation for managing material waste and cost overrun in the construction industry. The paper adopts the desktop methodological approach. This involves comparing the causes of material waste and those of cost overruns from the literature to determine the possible relationship. The review revealed a relationship between material waste and cost overrun that; increase in material waste would result to a corresponding increase in the amount of cost overrun at both the pre-contract and the post contract stages of a project. It was found from the equation that achieving an effective construction material waste management must ensure a “Good Quality-of-Planning, Estimating, and Design Management” and a “Good Quality- of-Construction, Procurement and Site Management”; a decrease in “Design Complexity” which would reduce “Material Waste” and subsequently reduce the amount of cost overrun by 86.74%. The conceptual framework and the mathematical equation developed in this study are recommended to the professionals of the construction industry.

Keywords: conceptual framework, cost overrun, material waste, project stags

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Authors: Rafael Bezerra de Souza, José Ribas Vieira

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The judicial litigation on socio-economic rights (SERs), in a context of increasing centrality of the judiciary as an area of political debate for civil society actors, has assumed greater importance in the last two decades. This tendency to seek social change through the courts generated a long tradition of research on the role of legal institutions and of legal mobilization in the US and some European countries. However, little is known about these processes in Latin America, Asia and Africa. A significant portion of the Brazilian constitutional doctrine did not bother to investigate the phenomenon of constitutional judicial litigation of socio-economic rights, in a practical and empirical look, from the functioning of democratic institutions. The central issue of this study draws attention to the theoretical and analytic deficit of Brazilian constitutional doctrine: the lack of a holistic understanding of the effects and impact of judicial decisions. Consequently, for a proper understanding was analyzed if the trend of judicial litigation in Brazil - to ensure the fulfillment of its institutional mission to protect and ensure the effectiveness of socio-economic rights - has been accompanied by the establishment of institutional mechanisms that enable decision making and the implementation of SERs in complex cases involving structural and public policy. The lack of empirical studies in Law in order to verify this hypothesis justified the adoption of the case study method as an interdisciplinary methodological strategy between Law and Political Science, aiming to construct an explanation of the Raposa Serra do Sol Case and, in a complementary way, the process-tracing technique. Drawings of small-n type or case studies, when guided by theory, are more suitable to problems it is supposed to increase the potential of intensive analysis of causal processes. As a preliminary result, the Brazilian Supreme Court was not a sufficient agent to implement a relevant social change and to assure the protection of the social rights, because there were few measures that directly impacted the behavior of other institutional political actors and should, therefore, be considered another actor within a complex institutional arrangement.

Keywords: courts, case study, judicial litigation, social change

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Authors: Franklin Nantui Mabe, Samuel A. Donkoh, Seidu Al-Hassan

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Rice yields among agro-ecological zones are heterogeneous. Farmers, researchers and policy makers are making frantic efforts to bridge rice yield gaps between agro-ecological zones through the promotion of improved agricultural technologies (IATs). Farmers are also modifying these IATs and blending them with indigenous farming practices (IFPs) to form farmer innovation systems (FISs). Also, different metafrontier models have been used in estimating productivity performances and their drivers. This study used the two-step stochastic metafrontier model to estimate the productivity performances of rice farmers and their determining factors in GSZ, FSTZ and CSZ. The study used both primary and secondary data. Farmers in CSZ are the most technically efficient. Technical inefficiencies of farmers are negatively influenced by age, sex, household size, education years, extension visits, contract farming, access to improved seeds, access to irrigation, high rainfall amount, less lodging of rice, and well-coordinated and synergized adoption of technologies. Albeit farmers in CSZ are doing well in terms of rice yield, they still have the highest potential of increasing rice yield since they had the lowest TGR. It is recommended that government through the ministry of food and agriculture, development partners and individual private companies promote the adoption of IATs as well as educate farmers on how to coordinate and synergize the adoption of the whole package. Contract farming concept and agricultural extension intensification should be vigorously pursued to the latter.

Keywords: efficiency, farmer innovation systems, improved agricultural technologies, two-step stochastic metafrontier approach

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Authors: Asanga Gunawansa, Shenella Fonseka

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On-demand bonds, also known as unconditional bonds, are commonplace in the construction industry as a means of safeguarding the employer from any potential non-performance by a contractor. On-demand bonds may be obtained from commercial banks, and they serve as an undertaking by the issuing bank to honour payment on demand without questioning and/or considering any dispute between the employer and the contractor in relation to the underlying contract. Thus, whether or not a breach had occurred under the underlying contract, which triggers the demand for encashment by the employer, is not a question the bank needs to be concerned with. As a result, an unconditional bond allows the beneficiary to claim the money almost without any condition. Thus, an unconditional bond is as good as cash-in-hand. In the past, establishing fraud on the part of the employer, of which the bank had knowledge, was the only ground on which a bank could dishonour a claim made under an on-demand bond. However, recent jurisprudence in common law countries shows that courts are beginning to consider unconscionable conduct on the part of the employer in claiming under an on-demand bond as a ground that contractors could rely on the prevent the banks from honouring such claims. This has created uncertainty in connection with on-demand bonds and their liquidity. This paper analyzes recent judicial decisions in four common law jurisdictions, namely, England, Singapore, Hong Kong, and Sri Lanka, to identify the scope of using the concept of “unconscionability” as a ground for preventing unreasonable claims for encashment of on-demand bonds. The objective of this paper is to argue that on-demand bonds have lost their effectiveness as “cash-in-hand” and that this is, in fact, an advantage and not an impediment to international commerce, as the purpose of such bonds should not be to provide for illegal and unconscionable conduct by the beneficiaries.

Keywords: fraud, performance guarantees, on-demand bonds, unconscionability

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Authors: Jin Chuhao

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Sustainable design is the key for the human to realize the harmonious development. However, sustainable design requires localization that combines their own regional culture’s characteristics, then forms the most common cultural identity. As a result, the concept of sustainable design integrates into social behavior and promotes the harmonious development. Chinese Confucian doctrine is one of the important thoughts of human culture, which is accepted by more and more people. This paper summarizes the sustainable concept from the Chinese traditional culture and local design, discusses how they change the life of human being and produces enlightenment and significance to China and world.

Keywords: sustainable design, Chinese traditional culture, harmonious development, Confucianism

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Authors: Andi Fallahi, Bona Ryan Situmeang

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The Construction Industry is notoriously risky. Much of the preparatory paperwork that precedes construction project can be viewed as the formulation of risk allocation between the owner and the Contractor. The Owner is taking the risk that his project will not get built on the schedule that it will not get built for what he has budgeted and that it will not be of the quality he expected. The Contractor Face a multitude of risk. One of them is an unforeseen condition at the construction site. The Owner usually has the upper hand here if the unforeseen condition occurred. Site data contained in Ground Investigation report is often of significant contractual importance in disputes related to the unforeseen ground condition. A ground investigation can never fully disclose all the details of the underground condition (Risk of an unknown ground condition can never be 100% eliminated). Adipala Coal Fired Steam Power Plant (CSFPP) 1 x 660 project is one of the large CSFPP project in Indonesia based on Engineering, Procurement, and Construction (EPC) Contract. Unforeseen Ground Condition it’s responsible by the Contractor has stipulated in the clausal of Contract. In the implementation, there’s indicated unforeseen ground condition at Circulating Water Pump House (CWPH) area which caused the Contractor should be changed the Method of Work that give big impact against Time of Completion and Cost Project. This paper tries to analyze the best way for allocating the risk between The Owner and The Contractor. All parties that allocating of sharing risk fairly can ultimately save time and money for all parties, and get the job done on schedule for the least overall cost.

Keywords: unforeseen ground condition, coal fired steam power plant, circulating water pump house, Indonesia

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Authors: Franklin N. Mabe, Samuel A. Donkoh, Seidu Al-Hassan

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In order to increase and bridge the differences in rice yield, many farmers have resorted to adopting Farmer Innovation Systems (FISs) and Improved Agricultural Technologies (IATs). This study econometrically analysed the impacts of adoption of FISs and IATs on rice yield using multinomial endogenous switching regression (MESR). Nine-hundred and seven (907) rice farmers from Guinea Savannah Zone (GSZ), Forest Savannah Transition Zone (FSTZ) and Coastal Savannah Zone (CSZ) were used for the study. The study used both primary and secondary data. FBO advice, rice farming experience and distance from farming communities to input markets increase farmers’ adoption of only FISs. Factors that increase farmers’ probability of adopting only IATs are access to extension advice, credit, improved seeds and contract farming. Farmers located in CSZ have higher probability of adopting only IATs than their counterparts living in other agro-ecological zones. Age and access to input subsidy increase the probability of jointly adopting FISs and IATs. FISs and IATs have heterogeneous impact on rice yield with adoption of only IATs having the highest impact followed by joint adoption of FISs and IATs. It is important for stakeholders in rice subsector to champion the provision of improved rice seeds, the intensification of agricultural extension services and contract farming concept. Researchers should endeavour to researched into FISs.

Keywords: farmer innovation systems, improved agricultural technologies, multinomial endogenous switching regression, treatment effect

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Authors: Ewenam Gbormittah

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Because of the effects of the pandemic, companies are focusing on the future of work arrangements for their employees. This includes adapting to a remote or hybrid working model. It is important that employers provide those working remotely or in a hybrid mode a rewarding onboarding experience and opportunities for interaction. Although, Information & Communication Technologies (ICT) have transformed the ways organisations manage employees over the years, there is still a need for a platform where organisations can adjust their onboarding to suit the social and interactive aspects of their employees, to facilitate successful integration. This study aimed to explore this matter by investigating whether Virtual Reality (VR) technology contributes to new employees integration into the organisation during their job-onboarding (JOB) process. The research questions are as follows: (1) To what extent does VR have an impact on employees successful integration into the organisation, and (2) How does VR help elements of new employees Psychological Contract (PC) during the course of interactions. An exploratory case study approach, which consisted of a semi-structured interview was conducted on 20 employees, split from two different case organisations. The results of the data were analysed according to each case, and then a cross-case comparison was provided. The results have generated 8 themes, presenting in excess of 7 sub-themes for CS1 and presented 7 themes, in excess of 7 sub-themes for CS2. The cross-case analysis has revealed that VR does have the potential to support employees integration into the organisation. However, the effects were shown to be stronger for employees in CS2, compared to employees in CS1. The results highlight practical implications for onboarding psychology and strategic talent solutions within recruitment. Such strategy this research particularly outlines, involves providing insights on how to manage the PC of employees from the recruitment stage to creating successful employment relationships.

Keywords: job-onboarding, psychological contract, virtual reality, case study one, case study two

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Authors: Patel Parul, Harsh Ganvit

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The construction industry is the second highest industry after agriculture provides employment in India. In developing countries like India, many construction projects are coming up to meet the demand. On the one hand, construction projects are increasing; on the other hand still, construction companies are struggling with many problems. One of the major problems is to ensure safe working conditions at the construction site. Due to a lack of safety awareness and ignorance of safety aspects, many fatal accidents are very common at the construction site in India. One of the key success factors for construction projects is “Accident-Free Construction Projects”. The construction projects can be divided into various categories like Infrastructure projects, industrial construction and real estate construction. Real estate projects are mainly comprised of commercial and residential projects. In the construction industry, private sectors play a huge role in urban and rural development and also contribute significantly to the growth of the nation. Infrastructure and Industrial projects are mainly executed by well-qualified construction contractors. For such projects, ensuring safety at construction projects is inevitable and probably one of the major clauses of contract documents as well. These projects are monitored from time to time by national agencies and researchers, too. However, Real estate projects are rarely monitored for safety aspects. No systematic contract system is followed for these projects. Safety is the most neglected aspect of these projects. In the current research projects, an attempt is made to carry out safety auditing for about 75 real estate projects. The objective of this work is to collect the activity-based safety survey of real estate projects in western India. The analysis of activity-based safety implementation for real estate projects is discussed in the present work. The activities are divided into three categories based on the data collected. The findings of this work will help local monitoring authorities to implement a safety management plan for real estate projects.

Keywords: construction safety, safety assessment, activity-based safety, real estate projects

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Authors: Erva Akin

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– The use of copyrighted material for machine learning purposes is a challenging issue in the field of artificial intelligence (AI). While machine learning algorithms require large amounts of data to train and improve their accuracy and creativity, the use of copyrighted material without permission from the authors may infringe on their intellectual property rights. In order to overcome copyright legal hurdle against the data sharing, access and re-use of data, the use of copyrighted material for machine learning purposes may be considered permissible under certain circumstances. For example, if the copyright holder has given permission to use the data through a licensing agreement, then the use for machine learning purposes may be lawful. It is also argued that copying for non-expressive purposes that do not involve conveying expressive elements to the public, such as automated data extraction, should not be seen as infringing. The focus of such ‘copy-reliant technologies’ is on understanding language rules, styles, and syntax and no creative ideas are being used. However, the non-expressive use defense is within the framework of the fair use doctrine, which allows the use of copyrighted material for research or educational purposes. The questions arise because the fair use doctrine is not available in EU law, instead, the InfoSoc Directive provides for a rigid system of exclusive rights with a list of exceptions and limitations. One could only argue that non-expressive uses of copyrighted material for machine learning purposes do not constitute a ‘reproduction’ in the first place. Nevertheless, the use of machine learning with copyrighted material is difficult because EU copyright law applies to the mere use of the works. Two solutions can be proposed to address the problem of copyright clearance for AI training data. The first is to introduce a broad exception for text and data mining, either mandatorily or for commercial and scientific purposes, or to permit the reproduction of works for non-expressive purposes. The second is that copyright laws should permit the reproduction of works for non-expressive purposes, which opens the door to discussions regarding the transposition of the fair use principle from the US into EU law. Both solutions aim to provide more space for AI developers to operate and encourage greater freedom, which could lead to more rapid innovation in the field. The Data Governance Act presents a significant opportunity to advance these debates. Finally, issues concerning the balance of general public interests and legitimate private interests in machine learning training data must be addressed. In my opinion, it is crucial that robot-creation output should fall into the public domain. Machines depend on human creativity, innovation, and expression. To encourage technological advancement and innovation, freedom of expression and business operation must be prioritised.

Keywords: artificial intelligence, copyright, data governance, machine learning

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Authors: Hosein Rahmati

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The Fatimid government was one of the powerful Shiite governments that was formed in 297 AH in the Islamic Maghreb based on Ismaili ideas and played an important role in promoting the culture and civilization of the Islamic world. Ismaili is one of the Shiite sects that has its own beliefs and teachings. This research seeks to find out which of the Ismaili beliefs and teachings were considered by the Fatimid political government and which the Fatimid government paid serious attention to highlighting. The present study, based on library sources and descriptive-analytical method, has concluded that the Ismaili doctrinal foundations, especially the doctrine of Imamate, are essential elements in the formation and continuation of the Fatimid rule. Their goals were approaching.

Keywords: Fatimid rule, The Ismaili, The Islamic Maghreb, Imamate

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Authors: İbrahim Arslan, Mücahit Ünal

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An important issue to ensure justice is to simplify the right to seek justice. But there is a cost of seeking justice in civil law. It costs at least, attorneys' fees and judicial expenses during the beginning and in case of losing a trial. Indeed, most of the people refrain from seeking justice because of these expenses. Therefore, it is not inappropriate to say that the removal of obstacles staying on the way of seeking justice will increase the belief in justice. Legal expenses insurance is a private law contract of insurance in which the insurer is obliged to pay premiums of the insured, to provide the necessary services for the protection of legal interests of the insured person within the agreed scope. This type of insurance is being practiced in the Western world for a long time. The special rights, duties and obligations of the parties to a legal expenses insurance contract shall be governed by the Turkish Commercial Code (TCC) and the contractual agreements which are regularly closed in the form of general terms and conditions. If the number of the legal expenses insurance contracts concluded increase this will definitely improve the percentage of seeking justice before the courts. The general terms and conditions applicable in Turkey generally include litigation costs, referee fees, guarantee fund , enforcement costs , appeal costs borne decision corrections costs. In addition, besides the insured, other family members or the people specified in the policy are protected in the scope of personal/family legal expenses insurance. The commercial law disputes fall outside the scope of coverage in this insurance branch. The insured person chooses his own lawyer and the insurer is not allowed to give advice during the selection of a lawyer. In April 2015, the Prime Minister announced of a new era in the field of legal expenses insurance in Turkey and this announcement excited the insurance industry and legal community.

Keywords: insurance, in the Turkish law on legal protection insurance, legal protection insurance, legal protection

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Authors: Taonga Temwani Chibaka

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This qualitative research study was conducted to identify the common risk factors that affect the construction industry in Malawi in the building and infrastructure (civil works) projects. The study then evaluates the possible risk responses that are done to mitigate the various risk factors that were identified. I addition the research also established the barriers to risk management implementation with lastly mapping out as where the identified risk factors fall on which stage of the project and then also map out the knowledge areas that need to be worked on the cases on Malawian construction industry in order to mitigate most of the identified risk factors. The study involved the interviewing the professionals from the construction industry in Malawi where insights and ideas were collected, analysed and interpreted. The key study findings show that risks related to clients group are perceived as most critical followed by the contractor related, consultant related and then external group related factors respectively where preventive measures are the most applied risk response technique where the aim to avoid most of the risk factors from happening. Most of the risk factors identified were internal risks and in managerial category which suggested that risk planning was to be emphasized at pre-contract stage to minimize these risks since a bigger percentage of the risk factors were mapped out at implementation stage. Furthermore, barriers to risk management were identified and the key barriers were lack of awareness; lack of knowledge; lack of formal policies in place; regarded as costly and limited time which resulted in proposing that regulating authorities to purposefully introduce intense training on risk management to make known of this new knowledge area. The study then recommends that organisation should formally implement risk management where policies should be introduced to enforce all parties to undertake this. Risk planning was regarded as paramount and this to be done from pre-contract phase so as to mitigate 80% of the risk factors. Finally, training should be done on all project management knowledge areas.

Keywords: risk management, risk factors, risks, malawi

Procedia PDF Downloads 254