Report digest study State's Construction Contracting Methods /

"LPU Order 33114"--Colophon.

The future of the tenanted sector in British agriculture: a review of the proposals for change

The impending decline of the tenanted sector in British agriculture has been forecast for many years. Much debate has surrounded the issues and ensuing legislation has repeatedly attempted to stave-off what some view as the inevitable demise of tenant farmers. Following a flurry of activity after the Northfield Report of 1979 and culminating in the Agricultural Holdings Acts of 1984 and 1986, the debate has recently been fuelled by a strongly pro-market lobby. With the public support of successive Ministers of Agriculture, this lobby has advocated a rejection of the former state intervention in the landlord/tenant relationship in favour of freedom of contract, an option that now appears increasingly likely to reach the statute books. This paper reviews the significant elements of the debate, attempting to explain the principal reasons for the failure of earlier legislation and the primary shortcomings of the current emphasis of consultation. The paper concludes that while there are some significant legislative disincentives to letting land, the freeing-up of contracts in isolation from other, non-contractual issues, will not result in the increase in lettings purportedly desired by the Ministers and their acolytes.

Performance of incentive contracts in highway PPP projects in Brazil

Private-Public Partnerships (P.P.P.) is a new contractual model institutionalized in 2004 that could be used to remedy to the infrastructure deficit in Brazil. In a context of a principal and agent relation, the public partner goal is to give incentives to the private partner in the contract so that their interests are aligned. This qualitative research presents the findings of an empirical study examining the performance of incentive PPP contracts in Brazil in the highway sector. The goal is to explain how the contracting parties can align their interests in an environment of asymmetric information. Literature identified the factors that can influence PPP design and efficient incentive contracts. The study assesses the contribution of these factors in the building of PPP contracts by focusing on the case of the first and only PPP signed in the highway sector in Brazil which is the MG-050. The first step is to describe the condition of the highway network and the level of compliance of the private partner with the contract PPP MG-050. The second step is to explain the performance of the private partner and conclude if the interests of both partners were aligned in contractual aspects. On the basis of these findings and the analysis of the contract, the study formulates suggestions to improve the draft of PPP contracts from the perspective of the incentive theory of contracts.

A comparative evaluation of the legislative controls on unfair terms and exemption clauses in consumer and business contracts in England and Brazil

The purpose of the present study is to make a comparative evaluation of the legislative controls on unfairness in the context of B2B, B2C and small businesses contracts in England and Brazil. This work will focus on the examination of statutes and relevant case law which regulate exemption clauses and terms on the basis of their ‘unfairness’. The approach adopted by legislation and courts towards the above controls may vary according to the type of contract. Business contracts are more in line with the classical model of contract law according to which parties are presumably equals and able to negotiate terms. As a consequence interventions should be avoided for the sake of freedom of contract even if harmful terms were included. Such assumption of equality however is not applicable to small businesses contracts because SMEs are often in a disadvantageous position in relation to their larger counterparties. Consumer contracts in their turn are more closely regulated by the English and Brazilian legal systems which recognised that vulnerable parties are more exposed to unfair terms imposed by the stronger party as a result of the inequality of bargaining power. For this reason those jurisdictions adopted a more interventionist approach to provide special protection to consumers which is in line with the modern law of contract. The contribution of this work therefore consists of comparing how the law of England and Brazil tackles the problem of ‘unfairness’ in the above types of contracts. This study will examine the differences and similarities between rules and concepts of both jurisdictions with references to the law of their respective regional trade agreements (EU and the Mercosul). Moreover it will identify existing issues in the English and Brazilian legislation and recommend lessons that one system can learn from the other.

Contracts for the sale of land and personal property:the equitable interests of the purchaser

As property lawyers, we are all familiar with the general principle that a contract for the sale of land, which is capable of specific performance, operates in equity so as to confer a trust on the purchaser pending completion of the sale. Although some controversy exists as to the exact nature of the trust, it is well established that, upon exchange of contracts, equity will ‘‘treat that as done which ought to be done’’1 with the consequence that the purchaser acquires equitable ownership even though full (legal) title to the land will not pass until completion (and registration). As land is unique, specific performance is readily available in the context of sales of land where damages would, clearly, not be an adequate remedy. The same cannot be said for contracts for the purchase of personal property where invariably the subject matter is not unique and where a substitute can easily be acquired in the open market. In circumstances, however, where the property is unique or scarce (for example, a rare painting or vintage car), the maxim that ‘‘equity treats as done that which ought to be done’’ may be invoked so as to confer on the seller an equitable obligation to transfer the property to the purchaser in fulfilment of the contract. Where, therefore, the contract is specifically enforceable in this way, the seller, it is submitted, will again hold the property on trust for the purchaser where, as in a contract for the sale of land, there is an interval between the date of the contract and completion of the sale. The notion that a seller holds personal property upon trust for the purchaser pending completion of the sale is admittedly controversial, but this article seeks to argue that the same principles governing equity’s intervention in sales of land should apply in the context of sales of personalty. It is submitted that equity’s role in imposing a trust on the vendor both in relation to sales of land and personalty may be important in safeguarding the interests of the purchaser prior to, as well as after, completion of the transaction.

Implications of Blockchain-Based Smart Contracts on Contract Law

Smart contracts are the most advanced blockchain applications. They can also be used in the contractual domain for the encoding and automatic execution of contract terms. Smart contracts already existed before the blockchain, but they take advantage of the characteristics of that technology. Namely, the decentralised and immutable characters of the blockchain determine that no single contracting party can control, modify, or interrupt the execution of smart contracts. As every new phenomenon, blockchain-based smart contracts have attracted the attention of institutions. For example, in its Resolution of 3 October 2018 on distributed ledger technologies and blockchain, the European Parliament has stressed the need to undertake an in-depth assessment of the legal implications,starting from the analysis of existing legal frameworks. Indeed, the present research thesis aims to verify how blockchain-based smart contracts fit into contract law. To this end, the analysis starts from the most discussed and relevant aspects and develops further considerations. Before that, it provides a detailed description and clarifications about the characteristics, the functioning, and the development of the technology, which is an essential starting point for a high-level quality legal analysis. It takes into considerations already existing rules concerning the use of technology in the life cycle of contracts, from vending machines to computable contracts, and verifies its applicability to blockchain-based smart contracts. The work does not limit to consider the mere technology, but some concrete scenarios of adoption of blockchain-based smart contracts in the contractual domain. Starting from the latter, it focuses on the implications of blockchain-based smart contracts on contract formation, contract performance, and applicable law and jurisdiction.

Electricity markets modeling considering complex contracts and aggregators

All over the world, the liberalization of electricity markets, which follows different paradigms, has created new challenges for those involved in this sector. In order to respond to these challenges, electric power systems suffered a significant restructuring in its mode of operation and planning. This restructuring resulted in a considerable increase of the electric sector competitiveness. Particularly, the Ancillary Services (AS) market has been target of constant renovations in its operation mode as it is a targeted market for the trading of services, which have as main objective to ensure the operation of electric power systems with appropriate levels of stability, safety, quality, equity and competitiveness. In this way, with the increasing penetration of distributed energy resources including distributed generation, demand response, storage units and electric vehicles, it is essential to develop new smarter and hierarchical methods of operation of electric power systems. As these resources are mostly connected to the distribution network, it is important to consider the introduction of this kind of resources in AS delivery in order to achieve greater reliability and cost efficiency of electrical power systems operation. The main contribution of this work is the design and development of mechanisms and methodologies of AS market and for energy and AS joint market, considering different management entities of transmission and distribution networks. Several models developed in this work consider the most common AS in the liberalized market environment: Regulation Down; Regulation Up; Spinning Reserve and Non-Spinning Reserve. The presented models consider different rules and ways of operation, such as the division of market by network areas, which allows the congestion management of interconnections between areas; or the ancillary service cascading process, which allows the replacement of AS of superior quality by lower quality of AS, ensuring a better economic performance of the market. A major contribution of this work is the development an innovative methodology of market clearing process to be used in the energy and AS joint market, able to ensure viable and feasible solutions in markets, where there are technical constraints in the transmission network involving its division into areas or regions. The proposed method is based on the determination of Bialek topological factors and considers the contribution of the dispatch for all services of increase of generation (energy, Regulation Up, Spinning and Non-Spinning reserves) in network congestion. The use of Bialek factors in each iteration of the proposed methodology allows limiting the bids in the market while ensuring that the solution is feasible in any context of system operation. Another important contribution of this work is the model of the contribution of distributed energy resources in the ancillary services. In this way, a Virtual Power Player (VPP) is considered in order to aggregate, manage and interact with distributed energy resources. The VPP manages all the agents aggregated, being able to supply AS to the system operator, with the main purpose of participation in electricity market. In order to ensure their participation in the AS, the VPP should have a set of contracts with the agents that include a set of diversified and adapted rules to each kind of distributed resource. All methodologies developed and implemented in this work have been integrated into the MASCEM simulator, which is a simulator based on a multi-agent system that allows to study complex operation of electricity markets. In this way, the developed methodologies allow the simulator to cover more operation contexts of the present and future of the electricity market. In this way, this dissertation offers a huge contribution to the AS market simulation, based on models and mechanisms currently used in several real markets, as well as the introduction of innovative methodologies of market clearing process on the energy and AS joint market. This dissertation presents five case studies; each one consists of multiple scenarios. The first case study illustrates the application of AS market simulation considering several bids of market players. The energy and ancillary services joint market simulation is exposed in the second case study. In the third case study it is developed a comparison between the simulation of the joint market methodology, in which the player bids to the ancillary services is considered by network areas and a reference methodology. The fourth case study presents the simulation of joint market methodology based on Bialek topological distribution factors applied to transmission network with 7 buses managed by a TSO. The last case study presents a joint market model simulation which considers the aggregation of small players to a VPP, as well as complex contracts related to these entities. The case study comprises a distribution network with 33 buses managed by VPP, which comprises several kinds of distributed resources, such as photovoltaic, CHP, fuel cells, wind turbines, biomass, small hydro, municipal solid waste, demand response, and storage units.

Completing contracts ex post: How car manufacturers manage car dealers

This article illustrates how contracts are completed ex post in practice and, in so doing, indirectly suggests what the real function of contracts may be. Our evidence comes from the contracts between automobile manufacturers and their dealers in 23 dealership networks in Spain. Franchising dominates automobile distribution because of the need to decentralize pricing and control of service decisions. It motivates local managers to undertake these activities at minimum cost for the manufacturer. However, it creates incentive conflicts, both between manufacturers and dealers and among dealers themselves, concerning the level of sales and service provided. It also holds potential for expropriation of specific investments. Contracts deal with these conflicts by restricting dealers decision rights and granting manufacturers extensive completion, monitoring and enforcement powers. The main mechanism that may prevent abuse of these powers is the manufacturers reputational capital.

Risk sharing with the monarch: Excusable defaults and contingent debt in the age of Philip II, 1556-1598

Contingent sovereign debt can create important welfare gains. Nonetheless,there is almost no issuance today. Using hand-collected archival data, we examine thefirst known case of large-scale use of state-contingent sovereign debt in history. Philip IIof Spain entered into hundreds of contracts whose value and due date depended onverifiable, exogenous events such as the arrival of silver fleets. We show that this allowedfor effective risk-sharing between the king and his bankers. The data also stronglysuggest that the defaults that occurred were excusable they were simply contingenciesover which Crown and bankers had not contracted previously.

State of Iowa Directory of certified Disadvantaged Business Enterprises, September 2007

The Iowa DOT takes affirmative action to ensure that Disadvantaged Business Enterprises have the maximum practical opportunity to get Iowa DOT contracts for construction, professional, and technical service. The Iowa DOT also has taken specific steps to ensure there is no discrimination in the awarding and administering of contracts. The department's DBE Program, which has been developed under this policy, is administered by the Office of Contracts.

Aggregate consequences of limited contract enforceability

We study a general equilibrium model in which entrepreneurs finance investment with optimal financial contracts. Because of enforceability problems, contracts are constrained efficient. We show that limited enforceability amplifies the impact of technological innovations on aggregate output. More generally, we show that lower enforceability of contracts will be associated with greater aggregate volatility. A key assumption for this result is that defaulting entrepreneurs are not excluded from the market.

Moral hazard and non-exclusive contracts

This paper studies equilibria for economies characterized by moral hazard(hidden action), in which the set of contracts marketed in equilibrium isdetermined by the interaction of financial intermediaries.The crucial aspect of the environment that we study is thatintermediaries are restricted to trade non-exclusive contracts: theagents' contractual relationships with competing intermediaries cannot bemonitored (or are not contractible upon). We fully characterize equilibrium allocations and contracts. In thisset-up equilibrium allocations are clearly incentive constrainedinefficient. A robust property of equilibria with non-exclusivity isthat the contracts issued in equilibrium do not implement the optimalaction. Moreover we prove that, whenever equilibrium contracts doimplement the optimal action, intermediaries make positive profits andequilibrium allocations are third best inefficient (where the definitionof third best efficiency accounts for constraints which capture thenon-exclusivity of contracts).

Intercultural business communication between Arabs of the United Arab Emirates and Finns

Kun kauppaa käydään eri maanosien välillä, törmätään vieraisiin kulttuureihin ja erilaisiin kaupankäyntitapoihin. Tämä tutkimus keskittyy suomalaisten liikemiesten ja - naisten työhön Yhdistyneissä Arabiemiraateissa kulttuurierojen näkökulmasta. Tavoitteena on kuvata kulttuurierojen vaikutuksia kaupankäyntiprosessiin ja löytää niitä ongelmia, joita tämän prosessin aikana kohdataan. Tavoitteena on tuottaa tietoa, jonka avulla kulttuurieroista johtuvia ongelmia voidaan vähentää tulevaisuudessa. Tutkimuksen teoreettinen tausta perustuu Hofsteden kulttuurista vaihtelua kuvaaviin dimensioihin ja Ting Toomeyn kulttuurisen identiteetin neuvotteluprosessin malliin. Näihin malleihin perustuen luotiin tähän tutkimukseen oma kulttuurien välisen kohtaamisen malli. Tutkimusongelmia ovat: 1) Miten suomalaiset liikemiehet kuvailevat arabien kaupantekokulttuuria? Kuinka vastapuoli kuvailee omaa kaupantekokulttuuriaan? 2) Minkälainen on suomalaisten ja arabien välinen kaupankäyntiprosessi? 3) Minkälaisia ongelmia kohdataan tehtäessä kauppaa suomalaisten ja arabien kesken? Tutkimus on etnografinen, laadullinen haastattelututkimus (n=12). Haastattelut tehtiin suurimmaksi osaksi Yhdistyneissä Arabiemiraateissa, osin Suomessa. Erilainen kulttuuritausta näkyy kaupankäynnissä. Kollektivistinen, maskuliininen, islamilaisen uskontoon ja vain vähäisessä määrin suoraan kielelliseen koodistoon perustuva kulttuuri heijastuu kaupankäyntiprosessiin. Ystävyyden ja sukulaisten sekä muiden verkostojen merkitys korostuu. Ruumiin kieleen, ilmeisiin ja eleisiin liittyvä kommunikaatio on erilaista ja voi aiheuttaa väärinkäsityksiä. Myös aikakäsitys ja sopimuskäytäntö poikkeavat suomalaisesta. Kaikki nämä voivat aiheuttaa ongelmia kaupankäyntiprosessissa. Tärkeimmiksi tekijöiksi ongelmien kohtaamisessa nousivat ammattitaidon lisäksi kärsivällisyys ja joustavuus. Ongelmia voidaan vähentää huolellisella valmistautumisella ennen ulkomaille lähtöä. Toinen tapa on jatkuviin työkokemuksiin perustuen oppia paikallista kulttuuria ja sen piirteitä.

Do more decentralized local governments do better? an evaluation of the 2001 decentralization reform in Colombia

In this paper I evaluate the impact of the 2001 decentralization reform in Colombia. I use data from Colombia's municipalities. I look at the effect of the 2001 reform on enrolment in pre-college schools. While all municipalities received earnmarked national transfers, withthe reform some of then now have more responsabilities to provide education (deeper decen-tralization) than others. Particulary important, the reform entitle the more decentralizedmunicipalities to sign subsidy contracts with private school. Departments (the regional gov-ernments) are entitle to sign this type of contracts for the less decentralized municipalities.Since the rule for municipalities to receive more responsabilities follows and exogenous popu-lation threshold, I can implement Regression Discontinuity Design. Enrolment is measuredthrough two variables: the number of students enroled in public schools and the number of subsidized students enroled in private schools. Results sugest that more decentralized mu-nicipalities subsidize more students in private schools. The difference is significant at all thelevels of pre-college school for the period 2004-2006. In 2005, the difference accounts for20% of enrolment in private schools and 3% of population of school age. Besides, there are not significant differences among municipalities regarding enrolment in public schools.

The engineer under FDIC's conditions of contract for construction

FIDIC has over the years produced standard forms of contracts for the international procurement of projects. A source of continuing criticism of its Red Book concerns the duality in the traditional role of the engineer as the employer's agent and as an independent third party holding the balance fairly between the employer and the contractor. In response to this and other criticisms FIDIC produced a replacement for it in 1999. The role of the engineer under the new Red Book is critically examined in the light of relevant case law, expert commentaries and feedback from two multidisciplinary workshops with international participation. The examination identified three major changes: (1) a duty to act impartially has been replaced by a duty to make fair determination of certain matters; (2) it is open to parties to allow greater control of the engineer by the employer by stating in the appropriate part of the contract powers the engineer must not exercise without the employer's approval; (3) there is provision for a Dispute Adjudication Board (DAB) to which disputes may be referred. Although the duality has not been eliminated completely, the contract is structured flexibly enough to support those who wish to contract on the basis of the engineer acting solely as the agent of the employer.