Liability for negligently issued anti-mafia certificates

2018 ◽  
Vol 25 (1) ◽  
pp. 210-217
Author(s):  
Paola Monaco
Keyword(s):  
Academic Writing ◽  
Design Methodology ◽  
Public Procurement ◽  
Case Law ◽  
Legal Framework ◽  
Administrative Practices ◽  
Content Type ◽  
Legal Rules ◽  
Black Letter ◽  
Procurement Contracts

Purpose This paper aims to analyse the different forms of liability that might apply under Italian private law to anti-mafia advisors who negligently perform their duties, with particular regards to auditors concerning the drafting of mandatory anti-mafia certificates as bidding documents for public procurement contracts. Design/methodology/approach The analysis is based on the comparative law methodology of dissociation of “legal formants”, that is, on the study of separate contributions by each element of the legal system – from black-letter provisions to judicial dicta, from scholars’ arguments to administrative practices – to the making of legal rules in a given setting. Findings Neither case law nor academic writing is abundant on this topic. Yet, it can be fairly assumed that an advisor who negligently drafts anti-mafia certificates might incur both contractual and tortious liability. Originality/value The paper investigates an area, which has so far been largely unexplored, and, thus, contributes to paving the way for a better understanding of the legal framework applicable to the cases under examination.

Examining year-end spending spikes in the European Economic Area: a comparative study of procurement contracts

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Clifford P. McCue ◽  
Eric Prier ◽  
Ryan J. Lofaro
Keyword(s):  
Comparative Study ◽  
Design Methodology ◽  
Public Procurement ◽  
Fourth Quarter ◽  
European Economic Area ◽  
Content Type ◽  
European Economic ◽  
Economic Area ◽  
Contract Type ◽  
Procurement Contracts

PurposeThe purpose of this study is to analyze year-end spending practices in the European Economic Area (EEA) to baseline the pervasiveness of year-end spending spikes across countries in Europe.Design/methodology/approachThe Tenders Electronic Daily dataset is used to descriptively analyze above-threshold procurement contracts by country, year and contract type from 2009 to 2018. Proportional distributions are employed to compare percentages of spend across quarters. Analyses are run within each country on the number of years displaying a fourth quarter spike, as well as within each country and contract type.FindingsThe results show that while spending spikes for above-threshold contracts in the final fiscal quarter are not consistent across all countries, patterns emerge when the data are disaggregated by country. The most populous nations in the EEA are more likely to have years with the highest proportion of fiscal spend occurring in the fourth quarter. Further, the type of contract makes a difference – services and supplies contracts are more likely to display fourth quarter spikes than works contracts.Originality/valueThis article provides the first analysis of the year-end spending spike across countries in Europe using procurement data, as well as the first to disaggregate by year and contract type. Findings support the literature on the presence of year-end spikes; such spikes exist even for above-threshold public procurement contracts.

Money laundering control in Tanzania

2019 ◽  
Vol 22 (4) ◽  
pp. 796-835
Author(s):  
Eugene E. Mniwasa
Keyword(s):  
Money Laundering ◽  
Design Methodology ◽  
Case Law ◽  
Legal Framework ◽  
Law And Literature ◽  
Policy Documents ◽  
Content Type ◽  
Enabling Environment ◽  
Banking Institutions ◽  
Political Economic

Purpose This paper aims to examine how banks in Tanzania have been vulnerable to money laundering activities and how the banking institutions have been implicated in enabling or aiding the commission of money laundering offences, and highlights the banks’ failure or inability to prevent, detect and thwart money laundering committed through their financial systems. Design/methodology/approach The paper explores Tanzania’s anti-money laundering law and analyzes non-law factors that make the banks exposed to money laundering activities. It looks at law-related, political and economic circumstances that impinge on the banks’ efficacy to tackle money laundering offences committed through their systems. The data are sourced from policy documents, statutes, case law and literature from Tanzania and other jurisdictions. Findings Both law-related and non-law factors create an enabling environment for the commission of money laundering offences, and this exposes banks in Tanzania to money laundering activities. Some banks have been implicated in enabling or aiding money laundering offences. These banks have abdicated their obligations to fight against money laundering. This is attributed to the fact that the banks’ internal anti-money laundering policies, regulations and procedures are inefficient, and Tanzania’s legal framework is generally ineffective to tackle money laundering offences. Originality/value This paper uncovers a multi-faceted nature of money laundering affecting banks in Tanzania. It is recommended that Tanzania’s anti-money laundering policy should address law-related, political, economic and other factors that create an enabling environment for the commission of money laundering offences. Tanzania’s anti-money laundering law should be reformed to enhance its efficacy and, lastly, banks should reinforce their internal anti-money laundering policies and regulations and policies.

Incentives and limits in letters of intent: are they worth the paper they’re written on?

2014 ◽  
Vol 6 (3) ◽  
pp. 214-232
Author(s):  
Sarah J.V. Fox
Keyword(s):  
Design Methodology ◽  
Standard Form ◽  
Case Law ◽  
Primary Sources ◽  
Judicial Interpretation ◽  
England And Wales ◽  
Content Type ◽  
Black Letter ◽  
Construction Law ◽  
Practical Implications

Purpose – The purpose of this paper is to review the extensive case law in England and Wales on contractually binding letters of intent. The research focused on discovering whether the limits commonly found in binding letters of intent were upheld by the courts and so were effective in practice. It also reviews whether these limits are, as presumed by drafters, sufficient to act as incentives to the parties to conclude the full contract. The paper uses case law to analyse and evaluate the legal and business efficacy of these limits and incentives. It considers the rationale for such limits and incentives before drawing its conclusions and making recommendations. Design/methodology/approach – The paper draws on cases in England and Wales to analyse the judicial interpretation of binding letters of intent. The author has adopted a black letter approach to this subject by focusing almost exclusively on primary sources. As there is no relevant legislation in England and Wales, the primary sources are case law. A limited literature review was adopted, as there is little commentary on this aspect of letters of intent and to ensure the paper’s originality. The paper also considers papers published by the Society for Construction Law. Findings – The paper demonstrates that even if the drafting of the letter of intent is clear, it is the conduct of the parties after a letter of intent which prevents the stated limits on work times or cost applying, and undermines these limits in their roles as incentives intended to persuade the parties to conclude the full contract for the project. The terms of the letter of intent are easily ousted and may not be strictly enforced by the courts when a dispute arises. Practical implications – The paper concludes with recommendations for ensuring the terms of the commonly used letters of intent provide more effective limits on the liability for the employer while giving the constructor the incentive to continue negotiating and concluding a formal contract for the works. The paper also recommends changes to the guidance to be given to users of standard form letters of intent to improve their efficacy as limited contracts. Originality/value – The analysis of the cases is instructive and the recommendations provide valuable pointers for those who draft, review or agree letters of intent. The issues that are dealt with relate to how the parties can be incentivised through clear drafting to execute a more comprehensive contract for the project.

Formation of contracts for the international sale of goods under Korean law and the CISG

2017 ◽  
Vol 21 (3) ◽  
pp. 208-223
Author(s):  
Byung Mun Lee
Keyword(s):  
Comparative Study ◽  
Design Methodology ◽  
Case Law ◽  
The Other ◽  
Basic Question ◽  
Content Type ◽  
International Sale Of Goods ◽  
The Comparative Study ◽  
International Sales ◽  
Insight Into

Purpose The purpose of this paper is to describe and analyze the rules on the formation of contracts under Korean law and the Contracts for the International Sale of Goods (CISG) in a comparative way and introduce the relevant proposed rules under the Amendment Draft of the Korean Civil Code (KCC). In addition, it attempts to compare and evaluate them in light of the discipline of comparative law. Design/methodology/approach In order to achieve the purposes of the study, it executes a comparative study of the rules as to the formation of contracts of the CISG, Korean law and the Amendment Draft of the KCC. The basic question for this comparative study is placed on whether a solution from one jurisdiction is more logical than the others and to what extent each jurisdiction has responded to protect the reasonable expectations of the parties in the rules as to the formation of contracts. Findings The comparative study finds that most of the rules under the CISG are quite plausible and logical and they are more or less well reflected in the proposals advanced by the KCC amendment committee. On the other hand, the other rules under the CISG which have brought criticisms in terms of their complexity and inconsistent case law invite us their revision or consistent interpretation. The drawbacks of the CISG have also been well responded in the Amendment Draft of the KCC. Nevertheless, it is quite unfortunate that the Amendment Draft of the KCC still has a rule that regards any purported performance with non-material alteration of the terms of an offer as an acceptance. Originality/value This study may provide legal and practical advice to both the seller and the buyer when they enter into a contract for international sales of goods. In addition, it may render us an insight into newly developed or developing rules in this area and show us how they interact with each other. Furthermore, it may be particularly useful in Korea where there is an ongoing discussion for revision of the KCC.

Systemic corruption and public procurement in developing countries: are there any solutions?

2018 ◽  
Vol 18 (2) ◽  
pp. 131-147 ◽  
Author(s):  
Sope Williams-Elegbe
Keyword(s):  
Quality Of Life ◽  
Developing Countries ◽  
Design Methodology ◽  
Public Procurement ◽  
Content Type ◽  
Asymmetry Of Information ◽  
Culture Of Silence ◽  
Systemic Corruption

Purpose Corruption affects development and quality of life of citizens in affected countries. The increase in anti-corruption measures globally reflects a consensus that corruption is pervasive and costly. Public procurement is one area in which corruption manifests because of the sums of money involved; the asymmetry of information; and the bureaucratic nature of decision-making, which presents opportunities for abuse. In developing countries, procurement corruption is rife because of institutional weaknesses, lack of enforced accountability mechanisms and culture of silence in relation to public sector malfeasance. Design/methodology/approach This paper examines procurement corruption in countries with systemic corruption, using Nigeria as a case study, to determine how to reduce public procurement corruption. Findings The paper will highlight prevalent corrupt schemes in public procurement in Nigeria, examine the reasons for the failure of state anti-corruption institutions and analyze the kinds of initiatives that reduced procurement corruption and increased accountability in other countries and the utility of adopting such mechanisms in the Nigerian context.

A critical examination of the regulation of Ponzi scheme in Mauritius

2018 ◽  
Vol 60 (6) ◽  
pp. 1393-1400
Author(s):  
Valerie Uppiah
Keyword(s):  
Research Method ◽  
Design Methodology ◽  
Legal Framework ◽  
Critical Examination ◽  
Financial Crime ◽  
Modus Operandi ◽  
Content Type ◽  
Ponzi Scheme ◽  
Definition Of ◽  
Legal Mechanism

Purpose The purpose of this paper is to analyse the regulation of the financial crime of Ponzi scheme in Mauritius. Contrary to money laundering which has a legal framework to combat it, for Ponzi scheme, there is no specific legal mechanism to combat this particular financial crime. Therefore, the aim of the paper is to provide for an analysis of Ponzi scheme which includes, inter alia, the definition of a Ponzi scheme, its modus operandi and how it should be tackled. Focus will be placed on devising a specific legal framework for it in Mauritius. Design/methodology/approach The research method used to conduct this research and write this paper is a black letter legal research method. An analysis of several laws and cases is carried out so as to provide for the legal background of the research. Findings The investigation conducted in this paper will lead to the conclusion that Mauritius has to devise a law which will specifically combat Ponzi schemes. This law shall provide for the ways to counter this financial crime as well as the duties of the various financial supervisory bodies. Originality/value The paper provides for an analysis of the operation of Ponzi scheme in the Mauritian context. The paper also examines the existing legal framework that combats this financial crime in Mauritius and highlights its strengths and weaknesses.

The influence of legal framework on the Hellenic sector of public works

2018 ◽  
Vol 60 (5) ◽  
pp. 1196-1209
Author(s):  
Pavlos Metallinos
Keyword(s):  
Design Methodology ◽  
Research Work ◽  
Legal Framework ◽  
Public Works ◽  
Content Type ◽  
Legislative Framework ◽  
Annual Volume ◽  
Statistical Indicators ◽  
Total Circulation

Purpose This study aims to discover the motive for the time-to-time Hellenic collective capitalists’ intervention in the total circulation of capital of public works throughout the relative legislative framework. Thus the study attempts an original correlation of statistical indicators of Hellenic Statistical Authority with the legislative texts. Design/methodology/approach The Hellenic truth is that the branch of public works presents a peculiarity as far as the volume and quality of statistical facts and figures are concerned. To overcome this obstacle, this study analyzed the change of time series, relating the procedure of total circulation of contracting capital involved in public works with the content of the relative legislative rules which were applied during the period of 1958-2004 and their preambles. In this way, the annual volume of the constructional product in general is directly related with the particular characteristics that define the procedure of total circulation of the contracting capital in general. Findings The directly relation between the annual volume of the constructional Product in general and the particular characteristics that define the procedure of total circulation of the contracting capital in general, leads us to conclusions which, related with the policy and practices adopted by the collective capitalist, confirm or even set off eventual failures of respective conclusions drawn according to the prevailing concept. Originality/value By introducing the technique, the aim of this research work is achieved without reproducing the method of study and the conclusions of other researchers.

The anti-social behaviour, crime and policing act in practice – a practitioner perspective

2016 ◽  
Vol 15 (4) ◽  
pp. 176-182
Author(s):  
Kirsty Varley
Keyword(s):  
Social Housing ◽  
Social Behaviour ◽  
Design Methodology ◽  
Case Law ◽  
Press Coverage ◽  
Content Type ◽  
Insight Into ◽  
The Way

Purpose The purpose of this paper is to offer a practitioner’s perspective to the Anti-Social Behaviour Crime and Policing Act 2014. Many of the new sections are now in force and three in particular have been of interest to me in the last 12-18 months. Design/methodology/approach The paper is written on the basis of the author’s own knowledge, experience and cases that the author has dealt with under the new legislation. Where cases have been published the author has included the relevant links to press coverage. Findings The financial limitations upon registered provides of social housing (RPs) will affect the way in which they conduct litigation and so might mean that RPs are less likely to want to take risks in court. The new grounds have not faced meaningful challenge yet, and so their use might be limited until case law is developed and settled to provide more certainty in this area. Originality/value The perspective is the author’s own and has been written solely by the author for this specific purpose. It is hoped that this will offer insight into the development of anti-social behaviour/housing law and how practitioners view the changes now that they are in force.

Unpacking the framework of unsolicited proposal for public private partnership projects – the Indian case

2021 ◽  
Vol ahead-of-print (ahead-of-print) ◽  
Author(s):  
Varaprasad Mallisetti ◽  
Tharun Dolla ◽  
Boeing Laishram
Keyword(s):  
Design Methodology ◽  
Public Procurement ◽  
Time Frame ◽  
Public Private Partnership ◽  
Successful Implementation ◽  
Implementation Framework ◽  
Private Partnership ◽  
Content Type ◽  
The Public ◽  
Private And Public

Purpose The most recent advent of the unsolicited proposal in the public private partnership mode of infrastructure procurement has changed the duties and roles of private and public sector agencies. Also, they have increased the practitioners' difficulties to work out strategic mechanisms and methods to manage these unsolicited proposals (USP) effectively. So, this study aims to understand how well equipped are the Indian USP guidelines for managing procurement. Design/methodology/approach Content analysis with coding procedures was carried to understand the regulations of USP frameworks of India over the four stages of USP procurement. Findings The findings show that there are severe flaws in various states' frameworks. The states have flaws in their policies in implementation features across the stages of USP such as defined objectives, the absence of fees and review timeframes in the submission, time frame and guidance on benchmarking and market testing in evaluation and development, time frame for bidding and access to information in procurement stages. Originality/value The USP implementation framework developed as part of this study can direct the policymakers and practitioners to improve public procurement regulations and the necessary changes for the successful implementation of USPs. In doing this, the private sector is enabled to develop more competitive and innovative proposals.

Green Public Procurement

2019 ◽  
pp. 136-160
Author(s):  
Carmen Lenuta Trica ◽  
Luminita Ghita
Keyword(s):  
Public Procurement ◽  
Legal Framework ◽  
The Public ◽  
Green Procurement ◽  
Product Categories ◽  
Legal Provisions ◽  
Green Public Procurement ◽  
Environmental Requirements ◽  
Procurement Contracts

At present, legal provisions and environmental policy regulate the possibilities of using environmental considerations in the development of award criteria, as well as in the performance clauses of procurement contracts. The first part of the chapter analyzes the concept of green procurement and product categories for which green procurement can be used. The second part of the chapter presents the benefits of using green procurement. The third part of the chapter will include assessing the progress and impact of using green procurement. The fourth part of the chapter analyzes the legal framework for public procurement in Romania, as well as the capacity of the market to offer and develop products and services that include minimum environmental requirements and criteria. In the fifth part of the chapter, the authors analyze the possibility of implementing a mechanism for the operation and implementation of the legal provisions in Romania in order to improve the quality of the services and optimize the costs of the public procurement.

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