Opting only in: Contractarians, waiver of liability provisions, and the race to the bottom

This paper will test the core claim of scholars in the nexus of contracts tradition—that private ordering as a process of bargaining creates optimal rules. We do this by analyzing empirical evidence in the context of waiver of liability provisions. These provisions allow companies to eliminate monetary damages for breach of the duty of care through amendments to the articles of incorporation. With all states allowing some form of these provisions, they represent a good laboratory to examine the bargaining process between management and shareholders. The contractarian approach would suggest that shareholders negotiate with management to obtain agreements that are in their best interests. If a process of bargaining is at work as they claim, the opt-in process for waiver of liability provisions ought to generate a variety of approaches. Shareholders wanting a high degree of accountability would presumably not support a waiver of liability. In other instances, shareholders might favor them in order to attract or retain qualified managers. Still others would presumably want a mix, allowing waiver but only in specified circumstances.Our analysis reveals that the diversity predicted by a private ordering model is not borne out by the evidence with waiver of liability provisions for Fortune 100 companies. All states permit such provisions and in the Fortune 100, all but one company has them. Moreover, they are remarkably similar in effect, waiving liability to the fullest extent permitted by law. In other words, one categorical rule was merely replaced by another, dealing a significant blow to the contractarian thesis.

Information systems development contracts : An exploratory study of Australian legal pratitioners' and information systems professionals' perceptions

IS professionals are primarily concerned with the development of a project to meet the goals of a client. Unfortunately, IS professional do not always pay close attention to the contract or to its management and are often unaware of the legal implications of the contracts to which they are assenting. Legal advice can be sought during pre-contractual processes to help ensure that the contract meets the expectations of all the parties. If the project does not meet stakeholder’s expectations, thus causing a contract to come into dispute, lawyers may be called in to review the contract and to seek a settlement. This paper reports an exploratory study of the differences in perceptions of IS development contracts that exist between IS professionals and legal practitioners.

Global social justice at the WTO? The role of NGOs in constructing global social contracts

Over the past decade, international non-governmental organizations (NGOs) have been contesting the neo-liberal economic order in international politics by campaigning for normative conditions to bring about what Richard Falk calls 'humane governance'. However, the degree to which NGOs have contributed to the formation of global social contracts remains controversial. While NGO activists and various scholars advocate the establishment of such contracts, empirical testing of this normative argument is underdeveloped. Drawing upon this lack of empirical support, critics dismiss the global social contract concept and question the roles played by NGOs in international politics. This article addresses the controversy through a review, refinement and application of global social contract theory and an empirical study of two prominent international NGO campaigns directed at the World Trade Organization (WTO), an institution that represents a 'hard test case'. It explores the ways in which NGOs and their networks are challenging the neo-liberal basis of WTO agreements and contributing to the emergence of global social contracts. The article concludes that in some circumstances, NGOs have the capacity to inject social justice into international economic contracts and there is some basis for optimism regarding the formation of global social contracts involving NGOs, nation-states and international organizations.

An examination of psychological contracts, careerism and intention to leave

Purpose - The aim of this paper is to investigate the relationships between elements of the psychological contract (i.e., type and fulfilment) and an employee’s intention to leave (ITL) their current organisation. The role of careerism as a potential mediating and moderating variable is also explored.

Design/methodology/approach - Allied Health Professionals (N=202) completed a questionnaire containing measures of the psychological contract, careerism and ITL.

Findings - As predicted, path analyses conducted via structural equation modelling demonstrated that careerism partially mediates the relationship between contract types and ITL. These findings suggest that employees with transactional contracts are more careerist, resulting in higher ITL, while employees with relational contracts are less careerist, resulting in lower ITL. Contrary to expectation, a hierarchical multiple regression analysis revealed that careerism failed to moderate the relationship between perceived contract fulfillment and ITL. However, a strong positive association between contract fulfillment and ITL was found.

Research limitations/implications - The data were collected cross-sectionally, which limits the ability to make causal inferences.

Practical implications - Results were consistent with the proposition that contract type and fulfillment predict employee ITL. It appears that employees with relational contracts are more likely to remain with their organization on a longer-term basis, compared to employees with transactional contracts, due to differences in career motives. Organizational awareness and understanding of employee psychological contracts and career motives is needed.

Originality/value - This paper provides new theoretical and practical insights on how psychological contracts and careerism can influence Intention to leave among Allied Health Professionals.

Peanuts and publicists : 'letting Australian friends know the Chinese side of the story' in interwar Sydney

In the wake of an Australian government embargo on Chinese peanuts, a group of Sydney Chinese merchants launched a pro-Chinese publicity campaign in late 1927. To do so, they hired a newspaper editor previously employed by the anti-Chinese Labor Daily and Beckett’s Budget. The campaign was an act of minority resistance to the White Australia Policy, a shrewd business strategy, and a sophisticated example of cross-cultural public relations. By tracing two historical actors in this ‘drama of spin’, the peanut and the publicist, this article reveals unexpected links between the Chinese-Australian and Anglo-Australian communities. In seeking ‘the Chinese side of the story’, we find an alternative history of race, representation and citizenship in interwar Sydney.

Consumer perceptions of bundles and time-limited promotion deals: Do contracts matter?

Marketers use various types of deals to positively influence consumers' product evaluations. Across two experiments, we manipulated print advertisements to examine whether the commonly used deal content of both bundling and time-limited promotions affect consumers' perceived confusion, risk and value. In study 1, the influence of this content was tested in the context of a 2-year telecommunications (telco) contract. Here, consumers associated a three-item bundle with greater perceived value than a single item, but perceived value was reduced and risk heightened when it was only available for a limited time. We speculate that this is because of the long-term nature of the contract. Study 2 removed the contract restriction, examining the bundling of a video game console and game(s), again with a time-limited promotion. However, in this context, we failed to locate any interaction effects. It appears that consumers further appraise the drawbacks of a long-term telco contract when accompanied by a time-limited promotion and may perceive the switching costs for study 1 three-item telco bundle to be particularly risky. Our studies represent the first empirical investigation of the effect on consumers' perceptions of offering a bundle in conjunction with a time-limited promotion. Testing these effects in contract and no contract conditions adds to the contribution of our studies by delineating a boundary condition. From a managerial perspective, our findings are thought-provoking in respect to information integration, or how consumers process different deal content together.

How does the cookie crumble? legal costs under a uniform interpretation of the United Nations Convention on Contracts for the International Sale of Goods

A family owned Mexican company, Zapata Hermanos Sucesores, S.A. ("Zapata"), sold approximately US$950,000 worth of cookie tins over a period of four years to the Maurice Lenell Cooky Company ("Lenell"), an American company that produced baked goods. Lenell failed to pay Zapata for the cookie tins so Zapata sought legal advice and instituted legal proceedings against Lenell for breach of contract in the Federal District Court of Illinios. The cookie tin sale contracts were governed by the United Nations Convention on Contracts for the International Sale of Goods ("CISG"). Zapata succeeded in its Federal District Court claim and, as part of the Court's order, was awarded US$550,000 as foreseeable loss under Article 74 of the CISG, being the amount of legal fees incurred by Zapata in bringing proceedings against Lenell. On appeal to the Federal Appellate Court, however, the award of legal fees was overturned. The parties now find themselves contesting a leave application to appeal to the Supreme Court of the United States of America in a much anticipated debate over who should pay the lawyers.

Harmonisation and the United Nations Convention on Contracts for the International Sale of Goods

After many years of negotiation, the United Nations Convention on Contracts for the International Sale of Goods (“CISG”) came into force in 1988. Today, 62 states have adopted the CISG. Together these countries account for over two-thirds of all world trade.2 On this basis alone, the CISG is an outstanding success in the legal harmonisation of the law governing the international sale of goods. However, the CISG has its critics and much comment has been made on the failure of the CISG to achieve its goal of promoting international trade through a body of uniform rules.The primary motivation driving the push for a harmonised law on the international sale of goods is economic: a harmonised law makes it easier and more efficient for the business person to sell and buy goods across state borders. However, the engine driving the push for harmonisation is political and cultural; and the task of creating the harmonised law belongs to the diplomat.3 A study of the CISG demonstrates that the political and cultural demands on the diplomat also act as shackles that restrain the achievement of a harmonised law.This paper will consider the CISG and discuss the constraints on treaty making as a mechanism for legal harmonisation. Part one discusses the constraints faced when creating a uniform text.Part two discusses the problems with the text of the CISG that result from the negotiation process. Finally, part three discusses the constraints faced in maintaining the uniformity of the CISG.

Perceptions of fairness in the psychological contracts of allied health professionals

Purpose-The purpose of this paper is to investigate the relationships between components of the psychological contract, organisational justice, and negative affectivity (NA), with key employee outcomes (i.e. organisational commitment, job satisfaction, depression, and psychological distress) among allied health professionals. Design/methodology/approach-In total, 134 (response rate of 46 per cent) Australian allied health professional completed a questionnaire. Findings-Multiple regressions revealed that higher NA was associated with lower organisational commitment, lower job satisfaction, and higher levels of depression. The psychological contract variable, breach, was associated with depression. Informational justice was associated with organisational commitment. Distributive justice was associated with job satisfaction. Research limitations/implications-This research is limited by its cross-sectional design and that the data were self-reported. The results obtained suggest the potential utility of collecting longitudinal data to replicate and extend the results. Practical implications-While NA may be beyond management control, it may be ameliorated by attention to improving communication of management decisions and by sensitivity to the elements implicit in psychological contracts. The negative consequences of contract breach may be offset by informational and distributive justice. Originality/value-This study is one of the first to examine multiple measures of the psychological contract in addition to organisational justice and NA. Further, this study adds to the literature for allied health professionals, where little is known about factors contributing to their turnover.