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.     

Have you signed your electronic contract?

The ease with which business can be transacted over the Internet raises various issues, not least among which are writing and signature requirements. While it has been established that an electronic record is a functional equivalent of writing, the position appears to be less clear with regard to electronic signatures. This paper examines the signature requirement as it applies to electronic contracts, in particular the form of electronic signature that can serve the functional equivalent of a handwritten signature for the purpose of the English Statute of Frauds 1677 and its various re-enactments. Reference will be made to legislation, the relevant UNCITRAL Model Laws and UN Conventions as well as to the substantial body of case law on paper contracts for analytical and comparative purposes.     

美国《横向合并指南》的最新修订及启示

美国司法部与联邦贸易委员会于2010年8月联合发布了新版《横向合并指南》,新指南进一步淡化了结构主义色彩,打破了1992年指南所创设的五步分析法,相关市场界定的重要性也被大大降低,指南的制度设计趋向一个事实为基、更富弹性的分析框架。中国应借鉴美国的成熟经验,尽快研究制定横向合并指南,从"反竞争效果认定制度群"、"反竞争效果抗辩制度群"以及"反竞争效果补救制度群"三大方面来把握横向合并指南的内容。中国应注意平衡合并审查制度的确定性与灵活性,加强合并审查中法学与经济学的融合,并积极创建合并案件跟访制度。     

The polyamorous threat to nonmarriage

Some progressive U.S. Cities and several Canadian provinces now provide mechanisms for polyamorous families to register as such with state authorities. More than a million people in the United States identify as polyamorous and many more practice some form of ethical nonmonogamy. This article suggests that the growing recognition of polyamory poses a substantial threat to a simultaneous development in family law: the call by scholars and the Uniform Law Commission for courts to enforce a more implied contract, implied partnership and equitable claims in the context of non-marital conjugal cohabitation. Non-marital cohabitants argue that courts can infer marital-type commitments to share property from the fact of conjugal cohabitation. They argue that their nonmarriage should entitle them to the kinds of relief afforded to divorcing couples. But polyamorous conjugal cohabitation involves very different norms and commitments to reliance, partnership and transparency than does traditional marriage. Marital-type relief maps awkwardly, if at all, onto the reality of most polyamorous relationships. By bringing into relief that which we cannot necessarily assume about conjugal cohabitation, the recognition of polyamory questions what many proponents of more legal protection of nonmarital couples ask courts to assume about conjugal cohabitation, namely that it gives rise to reasonable reliance on a status quo and an intent to share property. Moreover, by providing a means for polyamorous households to register their relationships, polyamorous registration normalizes the idea of non-marital relationship registration. The more normal and expected it is for people who want rights as some form of family to register their familial intent with the state, the harder it is for those who have not so registered to argue that the state must treat them as some sort of family.     

Influence of eco-product innovation and firm reputation on corporate social responsibility and competitive advantage: A mediation-moderation analysis

Eco-product innovation is a response to environmental legislation and social responsibility movements. Established agricultural manufacturers must figure out how to use green ideas and reputation to compete for business excellence. This study adopted a knowledge-based approach to examine corporate social responsibility and competitive advantage. This study also examined how eco-product innovation and reputation affect firms' competitive advantage. The proposed model was tested on 427 Nigerian agro-allied manufacturers using causal pathways and structural equation modeling. Business competition is directly and indirectly affected by corporate social responsibility, eco-product innovations, and firm reputation. Additionally, eco-product innovation partially mediated the nexus between corporate social responsibility and competitive advantage, while reputation moderated the influence of eco-product innovation. The findings suggest that manufacturers pursuing green initiatives should strive to participate in an eco-friendly competition and deal with policy pressures in order to meet environmental standards. Overall, this study adds the environment and business competition to the idea of innovation.     

Unwanted cohabitation agreements

Given the predominant role in American law of cohabitation agreements in protecting cohabitants, this Article presents an informal study that measured attitudes toward such agreements. The results confirm the literature findings that people generally are not inclined to want cohabitation agreements upon cohabitation. Further studies might explore the reasons for the unpopularity of cohabitation agreements and the ways to improve the protection of cohabitants, and this Article offers potential considerations.