"No-hire" clauses in healthcare sector contracts: their use and enforceability

In today's healthcare industry, many hospitals utilize outside agencies for both business and clinical functions. This Article acknowledges the prevalence of outsourcing contract labor in the healthcare arena and focuses on the restrictive provisions included in these employment contracts, particularly "no-hire" clauses. No-hire clauses are often included in contracts between healthcare providers and professional groups that provide clinical service employees to the provider, such as a medical practice group providing physicians to a hospital or an agency providing nurses to a nursing home. These clauses usually provide that the healthcare provider may not directly hire an employee provided by the professional group, nor may it contract with another professional group that later hires the employee. The purpose of a no-hire clause is two-fold: to protect the professional group's investment of time and moneyfor recruiting, training, and establishing the employee's clinical practice, and to give the professional group leverage to retain its employees. While noncompete clauses in employment contracts have traditionally been the subject of litigation, no-hire clauses raise distinct legal issues. Case law provides conflicting views as to the enforceability of these provisions. Some courts find no-hire clauses to be per se illegal restrictions on trade, while others will permit them when they are reasonable within a specific context. The author proposes that a multifactor test be applied on a case-by-case basis to determine the reasonableness of the no-hire provision in a given employment contract and suggests drafting improvements to facilitate enforcement.     

Most-favored-nation clauses in commercial contracts: legal and economic analysis and proposal for a guideline

The prevalent use of “most favored nation” (MFN) clauses in commercial agreements has garnered significant attention in the economics and legal literature and by practitioners and enforcement agencies. From an antitrust standpoint, there is a strong consensus that while MFN provisions can lead to procompetitive outcomes or at least play a competitively neutral role, they may also result in competitive harm and a loss of consumer welfare. Therefore, US and EU enforcement agencies and courts have held that MFNs should be reviewed on a case-by-case basis, considering the specific characteristics of both the contractual provision and the industry. While a case-by-case approach is valid, it is not ideal from a variety of standpoints: that of the competition authorities seeking to make best use of their limited resources and that of practitioners seeking to advise their clients. Accordingly, published guidelines on the use of MFNs, containing presumptions and safe harbors, would be both efficient and useful. The paper argues that it would increase the efficiency and accuracy of antitrust enforcement if one of the leading competition authorities issued MFN guidelines. The paper suggests a set of presumptions and safe harbors that should be included in any such guidelines.     

Sustainable use of wildlife: The role of private contracts as a conservation tool

Abstract

This paper focuses on the ability of local communities to make effective use of private legal tools as a means of assuring sustainable wildlife use. Using recent legal developments in Kenya as a case study, the paper examines a series of contracts entered into between local communities in the Samburu District and tour operators wishing to bring wildlife “photo safaris”; onto Samburu lands. These contracts, typically referred to as “Eco‐tourism contracts,”; are designed simply to allow tour operators to lead tour groups through community property without trespass. The authors argue that to achieve their true potential, these contracts must be treated, in essence, as “wildlife easements,”; or “eco‐easements,”; that can become publicly‐recorded mutual conservation commitments, and as such must incorporate conservation principles with a focus on environmental impact and wildlife management. Moreover, these contracts must be linked both conceptually and financially to the communities’ governance structure and to its broader conservation efforts.     

Institutions and contracts: Franchising

This paper investigates a new dataset of franchise networks in nine countries in order to assess whether and to what extent do institutions influence the practice of franchising. Our regressions relate the structure of franchise networks (the rate of franchised units as opposed to corporate units) to individual parameters supposed to reflect the extent of moral hazards on the franchisor's and franchisee's sides and, more specifically, to various institutional parameters of the franchisor's country, namely, the legal tradition, the level of procedural formalism, the constraints imposed by labour regulation and the effectiveness of trademark protection. While agency theory parameters seem to perform rather badly in this international setting, institutions such as trademark protection and labour regulation have more explanatory power: greater trademark protection encourages franchising and the impact of labour regulation is mostly positive, depending on the type of labour regulation that is being considered. The effect of legal tradition and formalism seems negligible once these parameters are taken in. JEL Classification D23 · F23 · K12     

Most-favored-nation clauses and monopsonistic power: an unhealthy mix?

Most-favored-nations clauses appear in health insurance contracts allegedly to prevent price discrimination by health care providers among competing insurers. In fact, use of these provisions often works to exclude competitors from the health insurance market. This Note examines the antitrust implications of most-favored-nations clauses as used in the health insurance industry.     

From old to new: From internet to smart contracts and from people to smart contracts

Discussing legal issues related to smart contracts on the blockchain is very topical. This article will discuss primarily smart contracts on the blockchain the conclusion and execution of which does not interact with the physical world, as well as briefly touch upon smart contracts on the blockchain which do interact with the physical world. For these smart contracts, it will be determined to what extent existing EU internet laws can help support their development and if not, what is needed to support this. In order to answer this question, the following will be discussed: the rise of e-commerce and in particular the EU internet laws supporting and regulating e-commerce, how smart contracts work and how smart contracts compare with existing technological developments and comparable legal constructs (internet, bank accounts and bank guarantees). Subsequently, it will be explained how the use of smart contracts leads to a shift of confidence, from trust in people to trust in code. On the basis of The DAO hack and the problems that arose, it will be illustrated that this shift to trust in code is not as absolute as is often thought. The article concludes that applying specific EU laws on supporting and regulating e-commerce to smart contracts is difficult for two reasons. First of all, the starting points differ: trust in people versus trust in code. Secondly, technical and practical obstacles often inhibit applying internet laws in a meaningful manner. When using smart contracts, it makes more sense to prevent problems from arising than to correct them afterwards. For this reason, it is advocated that programmers work together with lawyers to create better smart contracts and that the legislator focuses on laws dealing with auditing smart contracts code by trusted third parties and automatically equating smart contracts with written contracts with wet ink signatures. This will hopefully facilitate the rise of smart contracts on the blockchain.     

论国际合同中最密切联系原则的运用

国际民事关系由于介入了外国因素,从而使国际民事关系涉及到不同国家的法律,由于不同国家法律存在差异,当所涉各国均认为含有自己国家的因素而主张行使管辖权时,就会产生法律冲突,从而需要作出法律的选择.在当事人没有选择或选择不明、选择无效而无法以意思自治原则确定合同准据法时,如何解决这一问题,有人提出应以传统的缔结地法或履行地法作为合同准据法,但由于国际贸易方式和通讯交通工具的高度发展,合同关系的内容和性质、合同种类更趋复杂多样,各国对不同性质合同的政策也有所不同,如果按照传统的机械、僵固的确定合同准据法的方法去调整错综复杂的合同关系,时常会因缺乏针对性而显得力不从心.最密切联系原则正是在扬弃传统国际私法的基础上产生并发展起来的一种新的确定合同准据法的方法.