Disclosure and concealment in consumer insurance contracts

This book provides an in-depth examination of the theoretical,legal, social and economic foundations to disclosure and concealment of information in relation to the formation of consumer insurance contracts. A comparative treatment of this issue is undertaken with particular attention given to the judicial and legislative approaches adopted in the United Kingdom, the United States of America, Australia and New Zealand.

Motivational misalignment on an iconic infrastructure project

Aligning the motivation of contractors and consultants to perform better than ‘business-as-usual’ (BAU) on a construction project is a complex undertaking and the costs of failure are high as misalignment can compromise project outcomes. Despite the potential benefits of effective alignment, there is still little information about optimally designing procurement approaches that promote motivation towards ‘above BAU’ goals. The paper contributes to this knowledge gap by examining the negative drivers of motivation in a major construction project that, despite a wide range of performance enhancing incentives, failed to exceed BAU performance. The paper provides a case study of an iconic infrastructure project undertaken in Australia between 2002 and 2004. It is shown that incentives provided to contractors and consultants to achieve above BAU performance can be compromised by a range of negative motivation drivers including: • inequitable contractual risk allocation; • late involvement of key stakeholders; • inconsistency between contract intentions and relationship intentions; • inadequate price negotiation; • inconsistency between the project performance goals and incentive goals; •unfair and inflexible incentive performance measurement processes. Future quantitative research is planned to determine the generalisability of these results.

How environmental and organizational complexity affects opportunity recognition and exploitation in development projects

Principal Topic: Project structures are often created by entrepreneurs and large corporate organizations to develop new products. Since new product development projects (NPDP) are more often situated within a larger organization, intrapreneurship or corporate entrepreneurship plays an important role in bringing these projects to fruition. Since NPDP often involves the development of a new product using immature technology, we describe development of an immature technology. The Joint Strike Fighter (JSF) F-35 aircraft is being developed by the U.S. Department of Defense and eight allied nations. In 2001 Lockheed Martin won a $19 billion contract to develop an affordable, stealthy and supersonic all-weather strike fighter designed to replace a wide range of aging fighter aircraft. In this research we define a complex project as one that demonstrates a number of sources of uncertainty to a degree, or level of severity, that makes it extremely difficult to predict project outcomes, to control or manage project (Remington & Zolin, Forthcoming). Project complexity has been conceptualized by Remington and Pollock (2007) in terms of four major sources of complexity; temporal, directional, structural and technological complexity (See Figure 1). Temporal complexity exists when projects experience significant environmental change outside the direct influence or control of the project. The Global Economic Crisis of 2008 - 2009 is a good example of the type of environmental change that can make a project complex as, for example in the JSF project, where project managers attempt to respond to changes in interest rates, international currency exchange rates and commodity prices etc. Directional complexity exists in a project where stakeholders' goals are unclear or undefined, where progress is hindered by unknown political agendas, or where stakeholders disagree or misunderstand project goals. In the JSF project all the services and all non countries have to agree to the specifications of the three variants of the aircraft; Conventional Take Off and Landing (CTOL), Short Take Off/Vertical Landing (STOVL) and the Carrier Variant (CV). Because the Navy requires a plane that can take off and land on an aircraft carrier, that required a special variant of the aircraft design, adding complexity to the project. Technical complexity occurs in a project using technology that is immature or where design characteristics are unknown or untried. Developing a plane that can take off on a very short runway and land vertically created may highly interdependent technological challenges to correctly locate, direct and balance the lift fans, modulate the airflow and provide equivalent amount of thrust from the downward vectored rear exhaust to lift the aircraft and at the same time control engine temperatures. These technological challenges make costing and scheduling equally challenging. Structural complexity in a project comes from the sheer numbers of elements such as the number of people, teams or organizations involved, ambiguity regarding the elements, and the massive degree of interconnectedness between them. While Lockheed Martin is the prime contractor, they are assisted in major aspects of the JSF development by Northrop Grumman, BAE Systems, Pratt & Whitney and GE/Rolls-Royce Fighter Engineer Team and innumerable subcontractors. In addition to identifying opportunities to achieve project goals, complex projects also need to identify and exploit opportunities to increase agility in response to changing stakeholder demands or to reduce project risks. Complexity Leadership Theory contends that in complex environments adaptive and enabling leadership are needed (Uhl-Bien, Marion and McKelvey, 2007). Adaptive leadership facilitates creativity, learning and adaptability, while enabling leadership handles the conflicts that inevitably arise between adaptive leadership and traditional administrative leadership (Uhl-Bien and Marion, 2007). Hence, adaptive leadership involves the recognition and opportunities to adapt, while and enabling leadership involves the exploitation of these opportunities. Our research questions revolve around the type or source of complexity and its relationship to opportunity recognition and exploitation. For example, is it only external environmental complexity that creates the need for the entrepreneurial behaviours, such as opportunity recognition and opportunity exploitation? Do the internal dimensions of project complexity, such as technological and structural complexity, also create the need for opportunity recognition and opportunity exploitation? The Kropp, Zolin and Lindsay model (2009) describes a relationship between entrepreneurial orientation (EO), opportunity recognition (OR), and opportunity exploitation (OX) in complex projects, with environmental and organizational contextual variables as moderators. We extend their model by defining the affects of external complexity and internal complexity on OR and OX. ---------- Methodology/Key Propositions: When the environment complex EO is more likely to result in OR because project members will be actively looking for solutions to problems created by environmental change. But in projects that are technologically or structurally complex project leaders and members may try to make the minimum changes possible to reduce the risk of creating new problems due to delays or schedule changes. In projects with environmental or technological complexity project leaders who encourage the innovativeness dimension of EO will increase OR in complex projects. But projects with technical or structural complexity innovativeness will not necessarily result in the recognition and exploitation of opportunities due to the over-riding importance of maintaining stability in the highly intricate and interconnected project structure. We propose that in projects with environmental complexity creating the need for change and innovation project leaders, who are willing to accept and manage risk, are more likely to identify opportunities to increase project effectiveness and efficiency. In contrast in projects with internal complexity a much higher willingness to accept risk will be necessary to trigger opportunity recognition. In structurally complex projects we predict it will be less likely to find a relationship between risk taking and OP. When the environment is complex, and a project has autonomy, they will be motivated to execute opportunities to improve the project's performance. In contrast, when the project has high internal complexity, they will be more cautious in execution. When a project experiences high competitive aggressiveness and their environment is complex, project leaders will be motivated to execute opportunities to improve the project's performance. In contrast, when the project has high internal complexity, they will be more cautious in execution. This paper reports the first stage of a three year study into the behaviours of managers, leaders and team members of complex projects. We conduct a qualitative study involving a Group Discussion with experienced project leaders. The objective is to determine how leaders of large and potentially complex projects perceive that external and internal complexity will influence the affects of EO on OR. ---------- Results and Implications: These results will help identify and distinguish the impact of external and internal complexity on entrepreneurial behaviours in NPDP. Project managers will be better able to quickly decide how and when to respond to changes in the environment and internal project events.

Competition laws and policies in China and Hong Kong : a tale of two regulatory journeys

Reviews the background to China's enactment of the Anti-Monopoly Law in 2007 and compares the debate surrounding the proposed introduction of similar legislation in Hong Kong. Examines the main issues arising during the Law's 13 year drafting stage, its key provisions and the remaining areas of uncertainty concerning its enforcement. Discusses ongoing efforts to introduce competition law regulations in Hong Kong, the main features of the draft General Competition Law and the shortcomings of its approach to penalties and exemptions.

Regulatory multiplicities in telecommunications reforms in Indonesia and China

Telecommunications is a key component in any country's economic infrastructure, requiring a vast amount of capital injection and ongoing technical support and innovation. Many developing countries experience handicaps in accessing capital and sustaining the required technical capability in their industralisation process. Therefore, attracting both capital investments and expertise by attuning the developing country's economic policies and legal environment to meet investors' expectations is a priority. Privatisation has been seen as a triumph by international institutions such as the World Bank, and a major requirement for developing economies to industrialise. However from a regulatory perspective, this process is far from straightforward. Implementing economic policies requires a number of regulations and regulatory instruments to be in place. Apart from the need for an independent regulator, regulatory outcomes are often dependent on the willingness of various stakeholders to comply with the course of actions undertaken by authorities. This article examines the factors steering the processes and changes in the telecommunication reforms of Indonesia and China.

Joint consumer submission to the review of the code of banking practice

This submission has been prepared on behalf of Australian consumer advocates by Nicola Howell, Faculty of Law, Queensland University of Technology (‘the researcher’), under a consultancy arrangement with the Australian Securities and Investments Commission (ASIC). The researcher has been engaged by ASIC to consult with consumer advocates across Australia in order to prepare a detailed consumer submission to the Review of the Code of Banking Practice and the Review Issues Paper.

Steering towards pinnacle of success : the NEC tenets in Australian construction contracting

Contractual relationships have become increasingly strained in recent years in the construction industry result in the use of the judicial system for the settlement of contractual disagreements. Why is this so? Evidence from anecdotes suggest that the lack of capacity amongst owners and contractors to carry out a contract using a good practice approach during the construction of a project contribute to the occurrence of conflicts, losses, deficient contractual relationships and poor performance of the construction work. Recognizing that current forms of contract in use today perpetuate a legacy of construction problems, we are conducting explanatory research to examine whether the widely publicized benefits of New Engineering Contract (NEC) could be realized in the Australian construction industry. This paper outlines a research agenda that will help shed light on how contract forms are able to be used as a mechanism to ensure construction projects are delivered successfully whilst also meeting the goals of multiple stakeholders. Understanding the Critical Success Factors (CSFs), commonly used construction contracts and the NEC system can help us address some of these issues. However, there are gaps in the validation of the benefits of NEC and its link with project success. We identify some of these gaps and propose a methodology by which to gain insights into this phenomenon. Keywords: Project Success, Construction Contracting, New Engineering Contract (NEC)

Post-WTO China : competition and technology transfer laws in the 'new' socialist market economy

China has been the focus of much academic and business scrutiny of late. Its economic climate is changing and its huge new market opportunities seem quite tantalizing to the would-be 'technology entrepreneur'. But China's market is a relatively immature one; it is still in the process of being opened up to real competition. The corollary of this is that, at this stage of the transitional process, there is still significant State control of market function. This article discusses Chinese competition law, the technology transfer system, how the laws are being reformed and how the technology entrepreneur fares under them. The bottom line is that while opportunities beckon, the wise entrepreneur will nevertheless continue to exercise caution.

The nine lives of Vietnam's new competition law

Vietnam's present draft of the proposed new Law on Competition is currently in its ninth version. Although there is a need to enact legislation as quickly as possible, Vietnam cannot rush the drafting process. Under its Bilateral Trade Agreement with the USA, Vietnam has committed to improve the quality of its laws and consistency of its legislative framework. Since the Law on Competition will be fundamental in establishing the legal framework for a more coherent and effective competition regime, and will have profound influences on Vietnam's objective of becoming a socialist-oriented market economy, its provisions must be well constructed and well considered, and this takes time. This article shows how the proposed Law is being crafted as compared to older drafts which sheds light on changes in policy during the drafting process. Where possible, the Draft is also compared with the laws in other jurisdictions for any assistance they might lend. In this author's opinion not all the changes are positive but any defects in the draft are not intractable and can be remedied prior to promulgation.

The Changing world and service problems in bankruptcy

In an age where financial transactions are conducted worldwide and mobility of citizens throughout the world is common, lawyers seeking to serve Bankruptcy Notices and Creditor’s Petitions encounter many problems. To assist lawyers in overcoming some of the service problems that are arising as a result of this changing world, a number of recent cases are considered that highlight a number of issues, including American Express Australia Limited v Michaels [2010] FMCA 103, Deputy Commissioner of Taxation v Barnes (2008) 70 ATR 776; [2008] FMCA 7, Battenberg v Restom & Ors (2005) 223 ALR 692; upheld by the Full Federal Court in Battenberg v Restrom and Ors (2006) 149 FCR 128 at 133; [2006] FCAFC 20 and Envee Energy Pty Ltd (In Liquidation) v Stockford [2007] FMCA 1426. While the fact situation of every bankruptcy case will differ, recent decisions may assist lawyers in dealing effectively with bankruptcy matters in these times of transition. Lawyers can facilitate completion of the litigious process within the relevant legislative framework in order to satisfy their responsibility to clients and to the Court by considering this case law.

Labour rights as human rights : workers' safety at work in Australian-based supply chains

The increase of buyer-driven supply chains, outsourcing and other forms of non-traditional employment has resulted in challenges for labour market regulation. One business model which has created substantial regulatory challenges is supply chains. The supply chain model involves retailers purchasing products from brand corporations who then outsource the manufacturing of the work to traders who contract with factories or outworkers who actually manufacture the clothing and textiles. This business model results in time and cost pressures being pushed down the supply chain which has resulted in sweatshops where workers systematically have their labour rights violated. Literally millions of workers work in dangerous workplaces where thousands are killed or permanently disabled every year. This thesis has analysed possible regulatory responses to provide workers a right to safety and health in supply chains which provide products for Australian retailers. This thesis will use a human rights standard to determine whether Australia is discharging its human rights obligations in its approach to combating domestic and foreign labour abuses. It is beyond this thesis to analyse Occupational Health and Safety (OHS) laws in every jurisdiction. Accordingly, this thesis will focus upon Australian domestic laws and laws in one of Australia’s major trading partners, the Peoples’ Republic of China (China). It is hypothesised that Australia is currently breaching its human rights obligations through failing to adequately regulate employees’ safety at work in Australian-based supply chains. To prove this hypothesis, this thesis will adopt a three- phase approach to analysing Australia’s regulatory responses. Phase 1 will identify the standard by which Australia’s regulatory approach to employees’ health and safety in supply chains can be judged. This phase will focus on analysing how workers’ rights to safety as a human right imposes a moral obligation on Australia to take reasonablely practicable steps regulate Australian-based supply chains. This will form a human rights standard against which Australia’s conduct can be judged. Phase 2 focuses upon the current regulatory environment. If existing regulatory vehicles adequately protect the health and safety of employees, then Australia will have discharged its obligations through simply maintaining the status quo. Australia currently regulates OHS through a combination of ‘hard law’ and ‘soft law’ regulatory vehicles. The first part of phase 2 analyses the effectiveness of traditional OHS laws in Australia and in China. The final part of phase 2 then analyses the effectiveness of the major soft law vehicle ‘Corporate Social Responsibility’ (CSR). The fact that employees are working in unsafe working conditions does not mean Australia is breaching its human rights obligations. Australia is only required to take reasonably practicable steps to ensure human rights are realized. Phase 3 identifies four regulatory vehicles to determine whether they would assist Australia in discharging its human rights obligations. Phase 3 then analyses whether Australia could unilaterally introduce supply chain regulation to regulate domestic and extraterritorial supply chains. Phase 3 also analyses three public international law regulatory vehicles. This chapter considers the ability of the United Nations Global Compact, the ILO’s Better Factory Project and a bilateral agreement to improve the detection and enforcement of workers’ right to safety and health.

The stewardship paradigm : an enquiry into the ethical obligation associated with being in control of resorces

The resource allocation and utilization discourse is dominated by debates about rights particularly individual property rights and ownership. This is due largely to the philosophic foundations provided by Hobbes and Locke and adopted by Bentham. In our community, though, resources come not merely with rights embedded but also obligations. The relevant laws and equitable principles which give shape to our shared rights and obligations with respect to resources take cognizance not merely of the title to the resource (the proprietary right) but the particular context in which the right is exercised. Moral philosophy regarding resource utilisation has from ancient times taken cognizance of obligations but with ascendance of modernity, the agenda of moral philosophy regarding resources, has been dominated, at least since John Locke, by a preoccupation with property rights; the ethical obligations associated with resource management have been largely ignored. The particular social context has also been ignored. Exploring this applied ethical terrain regarding resource utilisation, this thesis: (1) Revisits the justifications for modem property rights (and in that the exclusion of obligations); (2) Identifies major deficiencies in these justifications and reasons for this; (3) Traces the concept of stewardship as understood in classical Greek writing and in the New Testament, and considers its application in the Patristic period and by Medieval and reformist writers, before turning to investigate its influence on legal and equitable concepts through to the current day; 4) Discusses the nature of the stewardship obligation,maps it and offers a schematic for applying the Stewardship Paradigm to problems arising in daily life; and, (5) Discusses the way in which the Stewardship Paradigm may be applied by, and assists in resolving issues arising from within four dominant philosophic world views: (a) Rawls' social contract theory; (b) Utilitarianism as discussed by Peter Singer; (c) Christianity with particular focus on the theology of Douglas Hall; (d) Feminism particularly as expressed in the ethics of care of Carol Gilligan; and, offers some more general comments about stewardship in the context of an ethically plural community.

Tendering ethics : a study of collusive tendering from a marketing perspective

This thesis provides a behavioural perspective to the problem of collusive tendering in the construction market by examining the decision making factors of individuals potentially involved in such agreements using marketing ethics theory and techniques. The findings of a cross disciplinary literature review were synthesised into a model of factors theoretically expected to determine the individual's behavioural intent towards a set of collusive tendering agreements and the means of reaching them. The factors were grouped as internal cognitive (the individuals' value systems) and affective (demographic and psychographic characteristics) as well as external environmental (legal, industrial and organisational codes and norms) and situational (company, market and economic conditions). The model was tested using empirical data collected through a questionnaire survey of estimators employed in the largest Australian construction firms. All forms of explicit collusive tendering agreements were considered as having a prohibitive moral content by the majority of respondents who also clearly differentiated between agreements and discussions of contract terms (which they found to be a moral concern but not prohibitive) or of prices. The comparisons between those of the respondents that would never participate in a collusive agreement and the potential offenders clearly showed two distinctly different groups. The law abiding estimators are less reliant on situational factors, happier and more comfortable in their work environments and they live according to personal value and belief systems. The potential offenders on the other hand are mistrustful of colleagues, feel their values are not respected, put company priorities above principles and none of them is religious or a member of a professional body. The research results indicate that Australian estimators are, overall law abiding and principled and accept the existing codification of collusion as morally defensible and binding. Professional bodies' and organisational codes of conduct as well as personal value and belief systems that guide one's own conduct appear to be deterrents to collusive tendering intent and so are moral comfort and work satisfaction. These observations are potential indicators of areas where intervention and behaviour modification can increase individuals' resistance to collusion.

The naked audience : audience performance at a recent staging of Gibson’s "the Miracle Worker"

Contemporary mainstream theatre audiences observe etiquette strictures that regulate behaviour. As Baz Kershaw argues, “the idea of the passive audience for performance has been associated usually with mainstream theatre.” This paper explores a mainstream event where the extant contract of audience silence was replaced with a raw, emotional audience response that continued into the post-performance discussion. William Gibson’s The Miracle Worker was performed by Crossbow Productions at the Brisbane Powerhouse to an audience made up of mainstream theatre patrons and people living with hearing and visual impairment. Various elements such as shadow signing and tactile tours worked metatheatrically and self-referentially to heighten audience awareness. During the performances the verbal and non-verbal responses of the audience were so pervasive that the audience became not only co-creators of the performance text but performers of a rich audience text that had a dramatic impact on the theatrical experience for audience and actors alike. During the post-performance discussion the audience performers spilled onto the stage interacting with the actors, extending the pleasure of the experience. This paper discusses how in privileging the audience as co-creators and performers, the chasm between stage and audience was bridged. The audiences’ performance changed, enriched and created new meanings for each performance.