Economic analysis of standard form contracts: the monopoly case

The terms of standard form contracts are rarely known to consumers. Still, it is often argued that few consumers who read and understand the contract can assure that it does not include sub-optimal terms. According to this argument, if the proportion of informed consumers is sufficiently high, they can secure an optimal set of contract terms to the benefit of all other consumers. This paper shows that when suppliers can adjust the content of the form contract, the few reading consumers cannot correct the market failure. In fact, unless all consumers read and understand the form contract, a monopoly is always encouraged to offer sub-optimal terms, i.e., terms that benefit her but at a higher cost to the consumers.      

The cost of regulation in a decentralized context: the case of the Spanish regions

The impact of regulation on productivity is an issue that has attracted increasing interest in recent decades, as some scholars have argued that the proliferation of red tape may be the cause of slower growth rates in some western economies. Regulation (and other public instruments) has significant effects that may be either benign or harmful. Justified and well designed regulation protects consumers from potentially unsafe products, limits pollution, enhances workplace safety and contributes to public health and safety, as well as a more productive and fair society. However, an overabundance of rules or badly designed regulation can cause confusion and delay, impose unreasonable compliance costs in terms of capital investment, labour and official paperwork, retard innovation, lower productivity and, accidentally, distort incentives for private initiative. The objective of this paper is to examine the possible impact of regulatory activity in the Spanish regions over the past decade (1989–2001) on growth and productivity.     

Regulation as a cause of firm fragmentation:the case of the Spanish construction industry

Team members organize their relationships to achieve efficient incentives in accordance with institutional constraints. When these constraints change, the rights and tasks of members are reallocated, generating a new contractual structure [or governance mechanism] that solves more easily the problem of collective action associated with team production. We show how this process has worked in the case of Spanish construction firms, in which more restrictive labor and tax regulations have induced parties to substitute market contracts for labor contracts because of the need to avoid moral hazards. We argue that this explains the increased fragmentation of the Spanish construction industry, and technical change does not seem to account for this process.     

Students,academic institutions and contracts — a ticking time bomb?

Traditionally the courts have been reluctant to trespass too far on the sanctity of academic freedom, and have certainly not wished to be seen as final arbiters of academic decisions. It is doubtful whether anything in the fast changing world of higher education has yet changed enough to modify such reluctance. However, when the student/college relationship is viewed through the prism of 'service provision' very different conclusions may be reached. It seems very hard to deny that the agreement between an academic institution and a student is a contract, and (most obviously) a contract for the provision of educational services. If the advertised services are not provided, or are provided inadequately or incompletely then an action for breach of contract on behalf of the student(s) affected may lie. Moreover any generalised disclaimer on behalf of the academic institution may (now) fall foul of unfair contract terms legislation. In Education and the Law Vol 11 No. 2, 1999, Tim Birtwistle and Melissa Askew began the process of exploring such issues. This article will endeavour to examine in greater depth matters such as the formation of the student/college contract; claims for breach of contract and unfair contract terms.     

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     

Spanish court rules in 'Accessorize' trade marks case

The Barcelona Court of First Instance No. 1 found in favourof the claimants, owners of the famous registered trade mark‘Accessorize’ in their action for trade mark infringement,trade mark cancellation, unfair competition, and damages inrespect of the use by the defendants of the Accessori, Mr Accessoriand Accessori trade marks.     

How officers spend their time with the community

Using data from field observation of police patrol officers at work in two American cities, we explore similarities and differences between the tasks undertaken by generalist patrol officers and community policing specialists. As expected, community policing specialists are much more able to choose the work they do and the people they encounter. Specialists use their discretion to spend less “face time” with the public and more time “behind the scenes” than do patrol generalists, and to engage a higher-status and less problem-ridden clientele. Implications for adoption of community policing are discussed.     

Technology contracts: An academic perspective

As university-industry ties broaden and strengthen it becomes more important for technology managers on both sides to understand the nature and obligations of the other, and thus its needs, policies, and limitations. This paper discusses some relevant aspects of the nature of universities, the needs of industry, current technologytransfer laws, and in consequence, university policies. It also provides standard language in selected clauses of research and licensing agreements that address these issues. In explicating this fundamental information, the paper might be a useful basis for starting negotiations.     

Deadline or guideline? – Stipulations as to time in IT contracts

In this article practical guidance is offered on the implications of English law rules relating to stipulations as to time in IT contracts, with reference to recent case law.     

TMT contracts: Avoiding termination and achieving positive realignment: How legal counsel can make a difference - A UK perspective

“The task of a leader is to get his people from where they are to where they have not been” Henry A. KissingerWith stuttering growth in the Western economies where major sourcing and TMT (Technology, Media & Telecoms) contracts are pervasive, it is perhaps not surprising that internal and external legal counsel are increasingly being called upon to advise clients on termination options and strategies to effect or oppose a threatened termination for breach of contract. This short paper considers why this has happened and the other factors which are in play which have meant that advice on termination and the renegotiation of contracts in this context has become more common. Expertise in this area is part of an IT lawyer’s tool kit and we consider that this is an area where internal and external legal counsel can make a substantial difference in delivering solutions to their clients.In this paper I talk about termination and renegotiation interchangeably. The reason for this as will become clear is that all forms of termination, whether they are consensual or contested, will involve some form of renegotiation of the terms of the contract between the parties. This is because it is almost impossible except perhaps in the simplest of installations to predict the nature in which a supplier or a customer may wish to change the services provided, and consequently even the most carefully crafted of exit and transition clauses, schedules and plans will require some form of post-contract negotiation between the customer, the outgoing supplier and potentially a new supplier or suppliers. This will necessarily involve some form of renegotiation of the terms of the contract between the parties.This paper looks at renegotiation in the context of a termination scenario rather than dealing with renegotiation during the normal course of operation of the contract.     

我国餐饮特许经营企业的知识产权战略研究

知识产权战略对餐饮特许经营企业来说非常重要。我国餐饮特许经营企业知识产权意识的缺乏,运用知识产权战略能力的不足已经影响到我国餐饮特许经营企业的健康发展。知识产权战略应贯穿于餐饮企业特许经营的始终,在开始特许经营前就初步建立起知识产权体系,并在特许经营的过程中注意知识产权的保护。     

The Bosman ruling and the presence of native football players in their home league: the Spanish case

This paper examines whether the Bosman ruling plays a role in the presence (participation and performance) of native football (soccer) players in their home league, focusing on the Spanish case. By abolishing transfer fees after the expiration of contracts, as well as liberalizing the migration of professional football players within the European Union, the Bosman ruling could negatively impact the participation of national players in their home league. To explore this issue, we use data from the First Division of the Spanish League for the seasons 1980/1981–2011/2012. The results suggest a decline in the number of native Spanish players as a consequence of the Bosman ruling, although the impact does not appear to be permanent. However, we find that the Bosman case has a negative and lasting impact on the performance of Spanish players in their home league. Our findings do not change when we use different subsamples or introduce controls for unobserved characteristics, or for observed characteristics that could drive the presence of Spanish players, such as participation in European competitions, the performance of the Spanish national team, and the success of teams’ youth academies, among others. This work also takes into account other changes in the nationality quota rules and the impact of other post-Bosman legislative changes, such as the Kolpak case and the Cotonou agreement.     

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.     

A case of mistaken identity: The wrongful classification of Islamic marriage contracts as premarital agreements in New York

New York precedent has mischaracterized Islamic marriage contracts, or nikah agreements, as premarital agreements. Nikah agreements are not premarital agreements; they are contracts. This mischaracterization has subjected nikah agreements to the acknowledgement requirement codified in N.Y. DRL § 236(B)(3) which has incorrectly been used to strike down valid contracts which Islamic litigants rely on. To prevent the effects of this mischaracterization, this Note suggests to New York appellate courts that a recharacterization of these agreements as contracts would prevent further confusion amongst the lower courts and allow for clearer, more uniform decisions.