Cyber insurance – What coverage in case of an alleged act of War? Questions raised by the Mondelez v. Zurich case

In October 2018, snack company Mondelez International, Inc. (Mondelez) filed an action against Zurich American Insurance Company (Zurich), requesting indemnification for more than USD $100,000,000 in losses caused by the NotPetya cyber virus. Zurich refuses to cover these damages alleging one of the insurance policy's exclusions for damage resulting from a hostile or warlike action by a government, as the NotPetya attack is said to have been sponsored by Russia. This case is noteworthy for multiple reasons: not only is it the first significant legal dispute in the insurance field concerning the recovery of costs resulting from a cyber attack, but it is also the first time that an insurance company is invoking the war exclusion to decline coverage for an allegedly state-sponsored cyber hack.This article analyzes the key issues of this important case, including attribution of a cyber attack to a State and interpretation of an insurance policy's war exclusion in a cyber context, and the likelihood of success of Mondelez's arguments. It also explores the strengths and limits of general principles of contract and public international law when applied to new technologies and cyber incidents. Finally, it discusses the potential impacts of the Mondelez case on the contents and limits of future traditional and cyber-specific insurance policies.     

Contract Spirit and Kindness System: Constructing of New Government-society Relationship in Purchase of Services from Good Governance Perspective

As an innovative approach of social governance mechanism under the good governance perspective, purchase of services is currently the necessary requirement of transforming government functions and constructing the new government-society relationship, and it is also the important way of stimulating the vitality of social organization and meeting the public needs. Since China’s purchase of services system is still in its infancy, how to establish a cooperative relations of independent, equality, mutual trust between government and society to promote the achievement of expected effectiveness of purchase of services policy, and it has become currently the core issues of constructing new government-society relationship. This article points out that there exist government being community, the lag of legal system and lack of mutual trust and other multiple characteristics and practical problems in the construction of government-society relationship of purchase of services; and then based on the analysis for its roots and from the perspective of good governance theory, the paper creatively introduces contract spirit and kindness system and seeks the effective ways to construct a new government-society relationship of firmness and flexibility from the structural reform, legal system construction, mutual trust mechanism and other aspects, so that making purchase of services truly become an innovation of social governance mechanism.     

税法的交易定性理论

交易定性在税法分析中占有举足轻重的地位。交易定性围绕认定纳税主体、税收客体的有无、定性和量化以及由此延伸的税收管辖权等税企争议的关键环节展开。在单一合约交易,法律关系与交易定性具有同一性,税法与私法呈协调与融合状态;在复合交易、"名—形"冲突或"名—实"冲突的虚假交易,合同性质与交易定性分道扬镳,税法与私法呈现冲突与龃龉。实务中,交易定性应从行为和所得主体的"名—实"冲突或"形—实"冲突、"法律关系"和"交易定性"的协调与冲突、税收客体的"定性"与"定量"的决定关系中来把握,凸显税收活动的法律属性、交易定性与法律关系的辩证关系和税法追求实质正义的精神气质。     

‘Til Death Do Us Part: Affidavits of Support and Obligations to Immigrant Spouses

This article analyzes the use of a federal affidavit of support, a required document that forms part of all family immigration petitions to overcome public charge grounds of inadmissibility. The federal statute mandating affidavits of support was altered in 1996 in an attempt to make them contractually binding, even after the dissolution of marriage. Further, affidavits of support implicate not only obligations between spouses, but also deeming analysis for public benefit eligibility. Case law interpreting these affidavits of support is scarce and varied, but trends, patterns, and contested issues are emerging. Yet courts have not settled on any theory and practice for incorporating these affidavits into their decisions related to family dissolution. This article provides an introduction to affidavits of support and an initial effort to frame the most critical issues related to them that arise in family litigation. This article also highlights some of the key strategic issues and caveats for litigants and parties.

Key Points for the Family Court Community:
• An introduction to affidavits of support and the immigration law context in which it exists
• A review of trends, patterns, and contested issues emerging in available judicial decisions in state and federal courts
• Key strategic issues and caveats for litigants and parties on the use of affidavits of support

     

Certainty of Terms and Leases: Curiouser and Curiouser

The common law rule that requires leases to have a fixed terminus from the outset is one that has been much criticised. In Berrisford v Mexfield Housing Co‐operative Ltd, the Supreme Court managed to blunt its effect by suggesting that most leases of uncertain duration can be transformed into 90‐year tenancies. However, it is suggested that their Lordships have possibly misunderstood and overstretched an ancient common law ‘rule’ and have not fully considered some of the implications of their decision.     

论合同僵局中违约方申请解约

合同僵局是司法实践中出现的新情况和新问题,合同法不能通过确认违约方享有解除权的方式打破僵局,但有必要通过确认司法解除制度,允许违约方申请司法解除,由人民法院决定是否解除合同。法律必须对合同僵局情形下的司法解除条件作出明确规定,以维护诚信和公平原则,并保障交易的效率。打破合同僵局的要件包括:非违约方拒绝解除合同违反了诚信原则,非违约方拒绝解除合同对违约方显失公平,且应由当事人提出申请。民法典合同编(二审稿)第353条第2款虽然对打破合同僵局作出了大胆的尝试,该规定是我国民法典的大胆创新,但其关于合同司法解除的条件规定得过于严苛,且与打破合同僵局的现实需求并不完全吻合,因此有必要作进一步的完善。     

试论货运合同诈骗案件的侦防对策

随着我国市场经济的不断发展,利用签订货运合同诈骗钱财的犯罪案件呈现上升趋势。货运合同诈骗侵犯他人财产权,扰乱市场秩序,在全国各地屡有发生。其诈骗手段形式不断翻新,侦破难度很大。为此,必须从其表现形式和特征对货运合同诈骗案件作出分析,并提出行之有效的侦防对策。     

《劳动合同法》修改建议

在对《劳动合同法》的修改中,应对劳务派遣单位和劳务派遣用工实行严格限制;进一步强化劳动者权益保障条款;吸收《劳动合同法实施条例》中成熟合理的部分;增加有利于用人单位合理经营、健康发展的内容;并对部分条款表述作必要的调整。     

民众脆弱性与危机管理——心理契约的分析角度

民众在公共危机事件中做出何种心理与行为反应,是贯穿危机管理的一个关键性的变量,其中脆弱性是常见现象。在公共危机事件本身的危害性和政府应对能力一定的条件下,危机的实际损失将主要取决于民众的脆弱性状况。化解民众脆弱性,要重视公众与政府之间的心理契约：危机前通过制度和文化建设,以铺垫危机心理契约的建立;危机中透明公开,积极行动,满足公众期待,以巩固危机心理契约;危机后抓住关键节点,心理救治,不断学习和改进,以促进心理契约的升华,从而化解民众脆弱性,提升政府的危机管理能力。     

论平等协商集体合同制度

平等协商集体合同制度是劳动法上的一项法律制度,根据我国自1994年推行建立平等协商集体合同制度以来所普遍存在的问题,提出了建立稳定和谐的劳动关系是构建和谐社会的基础,在和谐社会的环境中劳资关系才能有和谐的发展这一劳资关系新思路和新方案,以完善我国的平等协商集体合同立法。