Fraudulent insurance claims : recent legal developments

Insurance fraud continues to be a major problem worldwide. This article will canvass recent legal developments in relation to selected issues and matters of particular concern to the insurance industry. This article is confined to fraudulent claims. Fraud may arise at various points in the insurance relationship, including initial fraud on placement and fraudulent breach of contract by the assured. Fraud at the outset by the assured is treated differently from innocent or negligent conduct. "Fraud" in the context of this paper embraces all claims where an insured intednds to deceive an insurer by getting out i money to which the insured knew he had no right. This article will examine fraudulent insurance claims.

A comparative overview of "know-how" protection in Japan and Australia

"Know How" protection varies enormously from country to country and is a complex equation of legal, political, cultural and economic factors. A contrast between Japan and Australia serves to highlight some of these factors. For the purposes of this article, a working definition of "know how" is required. In Australia and other common law systems, no statutory definition of "know how" exists, "confidential information" proving the closest comparative term in Australia ('trade secret law' in the United States).

Disclosure in insurance law : contemporary and historical economic considerations

This article examines the importance of accurate classification and identification of risk with particular reference to the problem of adverse selection. It is argued that, historically, this concern was the paramount consideration influencing standard form contract formation and disclosure laws. The scope of its relevance today however is less apparent in that contemporary insurance contracting is conducted in a vastly different environment from that which prevailed at the time Lloyd's was better known as a coffee house. Accordingly, the second part of this article looks at the contemporary framework of information disclosure and those dynamics within it designed to elicit information weighing on risk forecasting : specifically, (a) direct inquiry and testing requirements; (b) signaling - or incentive based structuring of insurance contractual and (c) bargaining in the shadow of the utmost good faith doctrine. Finally, certain conclusions arising out of contemporary and historical economic considerations underpinning disclosure in insurance law are outlined.

Utmost good faith in insurance : reform overdue?

Considerable attention has been devoted to the duty or doctrine of utmost good faith in the academic literature and in the courts. This attention ranges from an analysis of the precise legal basis for the duty through a consideration of the continuing nature of that duty in the post-contract environment.It is quite clear that all contracts of insurance are subject to this duty of utmost good faith. What is less clear and certain are the incidents attendant upon such a duty and the scope of the obligations that such a duty imposes. This article examines the relative positions that have been reached in England and Australia and concludes with some recommendations for legislative reform to this area of the law.

Disclosure under the prescribed insurance contracts regime : Section 35 of the Insurance Contracts Act 1984 and consumer protection revisited

Section 35 of the Insurance Contracts Act 1984 requires insurers offering insurance policies in six prescribed areas "to clearly inform" prospective insureds of any departure their policies may constitute from the standard covers established by the Act and its accompanying Regulations. This prescribed insurance contracts regime was designed to remedy comprehension problems generated by the length and complexity of insurance documents and to alleviate misunderstanding over the terms and conditions of individual policies. This article examines the rationale underpinning s 35 and the prescribed insurance contracts regime and looks at the operation of the legislation with particular reference to home contents insurance in Australia. It is argued that the means whereby disclosure of derogation from standard cover may be effected largely negates the thrust of the prescribed insurance contract reform. Recommendations to address these operational deficiencies are made.

The insured's non-disclosure in the formation of insurance contracts : a comparative perspective

The requirements that an insured disclose all facts material to a transaction as well as not misrepresent material facts in the formation of an insurance contract are universal requirements of insurance law. The nature and extent of these obligations varies from one jurisdiction to the next. Disclosure in the insurance context is distinct from the general approach in commercial contracts, and in others between persons dealing at arm's length. It is the purpose of this article therefore to examine, on a comparative basis, the approaches adopted in the Anglo-Commonwealth context of England, Australia New Zealand and Singapore to the resolution of disclose issues in the formation of insurance contracts. Particular attention is focused on the Insurance Contracts Act 1984 (Australia) as this statue effects the most significant overhaul of the common law and the National Consumer Council in the United Kingdom has advocated that similar reforms be adopted.

Metaheuristic approaches to the hybrid flow shop scheduling problem with a cost-related criterion

In the paper, the flow-shop scheduling problem with parallel machines at each stage (machine center) is studied. For each job its release and due date as well as a processing time for its each operation are given. The scheduling criterion consists of three parts: the total weighted earliness, the total weighted tardiness and the total weighted waiting time. The criterion takes into account the costs of storing semi-manufactured products in the course of production and ready-made products as well as penalties for not meeting the deadlines stated in the conditions of the contract with customer. To solve the problem, three constructive algorithms and three metaheuristics (based one Tabu Search and Simulated Annealing techniques) are developed and experimentally analyzed. All the proposed algorithms operate on the notion of so-called operation processing order, i.e. the order of operations on each machine. We show that the problem of schedule construction on the base of a given operation processing order can be reduced to the linear programming task. We also propose some approximation algorithm for schedule construction and show the conditions of its optimality.

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.